quick with child. They then retire with her to some convenient place and make an examination; and if they find in the affirmative, she is reprieved until after delivery. Another ground for which the judge is bound to grant a reprieve is the insanity of the prisoner.

As the queen is herself the legal prosecutor in every indictment for crime, it follows, that she may, by means of a pardon, remit any punishment due to public justice, or any fine, after the offence has been committed. By the Act of Settlement, no pardon under the great seal of England can be pleadable in bar of an impeachment; but when the proceedings are finished, her prerogative is no further limited. And history furnished a remarkable instance in the case of the six noblemen, who, in 1715, joined with the Pretender, and who received the royal pardon. The prerogative of pardon is generally a matter of pure discretion, to be exercised by the crown in the manner it deems proper. A pardon may be granted either by a general act of pardon or by virtue of a

special pardon under the great seal. In order to render it valid, [ *83] it must express with sufficient accuracy the crime it is intended to forgive. A general pardon of all felonies would be bad. An act of grace by parliament need not specify any particular instance of crime. A pardon may be extended to the subject on any condition her majesty pleases to annex, whether precedent or subsequent, on the performance of which the validity of the pardon depends; and, in general, a pardon to felons is granted on the condition of transportation, and this is allowed by the Habeas Corpus Act and subsequent statutes.

The effect of a pardon is to give the prisoner new capacity, credit, and character; so much so, that he may sustain an action for being called a felon as though he had never been convicted.

CHAPTER XXIII.

OF CRIMINAL INFORMATIONS.

WE shall now proceed, in this chapter, to say something of criminal informations. They are of two kinds, one in the name of the queen, the other at the suit of an informer; we shall speak, in the first place, of the former.

A criminal information is filed in the name of the queen, for the punishment of offences affecting *the interests of the public. The difference between a criminal information and an indictment is, [*84] that the former is tried upon the mere allegation of the officer by whom it is preferred, while the latter is founded upon the finding of a grand jury. Moreover, unlike an indictment, an information may be altered in substance and amended at any time before trial; and though the defendant should be acquitted, no action will lie for a malicious prosecution, as the leave of the court in which it is filed must first be obtained. deed, wherever a court of competent jurisdiction has once sanctioned a

In

prosecution, this establishes that there was probable cause for instituting it, and no action lies, though the prosecution fail.

The filing of criminal informations existed at common law. Mr. Justice Blackstone observes, speaking of informations, in the fourth volume of his Commentaries, as follows: "As the king was bound to prosecute, or, at least, to lend the sanction of his name to a prosecutor, whenever a grand jury informed him, upon their oaths, that there was a sufficient ground for instituting a criminal suit; so when his immediate officers were otherwise sufficiently assured that a man had committed a gross misdemeanor, either personally against the king or his government, or against the public peace or good order, they were at liberty, without waiting for any farther intelligence, to convey that information to the Court of King's Bench by a suggestion on the record, and to carry on the prosecution in his majesty's name."

*For offences affecting the queen, her ministers, or the state, [*85] informations are filed ex officio by the attorney-general. The 4 & 5 W. & M. c. 18, greatly abridged the powers of coroners with regard to informations in which a private individual was virtually the prosecutor; but this statute does not affect informations filed ex officio. Informations lie for misdemeanors only, for no person where life is in question, or indeed in any case of treason or felony, can be called upon to answer until the charge has been sanctioned by the oaths of a grand jury.

Informations ex officio are filed by the attorney-general alone, though, if there be a vacancy in that office, it may be done by the solicitor-general. They may be filed for any offence, below the degree of felony, which tends to disturb the government, or to interfere with the interests of the public or the safety of the crown, such as libels on the government or crown officers, obstruction of revenue officers, or the bribing of public officers. The attorney-general is the sole judge of what public misdemeanors he will prosecute. The following is the commencement of an information ex officio:

"Be it remembered, that A. B., attorney-general of our sovereign lady the now queen, who for our said lady the queen prosecutes in this behalf, in his proper person comes here into the court of our said lady the queen, before the queen herself at Westminster, in the county of Middlesex, on, &c., and for our said lady the queen giveth the court here to understand, and be informed that, &c." *The substance of [*86] the charge then follows with the same accuracy and precision as in an indictment, after which it concludes thus: "Whereupon the said attorney-general of our said lady the queen, who for our said lady the queen in this behalf prosecutes, prays the consideration of the court here in the premises, and that due process of law may be awarded against the said C. D., the defendant in this behalf, to make him answer to our said lady the queen touching and concerning the premises aforesaid." The whole is then signed by the attorney-general, and filed in the Crown Office.

The attorney-general having filed his information, it is brought on for trial at such time as is convenient to that officer. In case of unnecessary delay, the defendant may apply to the court to fix a time for the trial.

The case is generally tried at the Nisi Prius side of the Queen's Bench. The attorney-general is entitled to a trial at bar, if he prefers it. If the defendant be acquitted, if a nolle prosequi be entered, he has to defray his own expenses, as the crown neither receives nor pays costs. Judg. ment is not pronounced until moved for by the attorney-general. The defendant then, either personally or through his counsel, addresses the court in mitigation of punishment.

We shall now consider informations filed in the name of the master of the Crown Office. The master of the Crown Office stands in the same relation to the public as the attorney-general in relation to the crown. These latter informations may be divided into two classes: namely, those *against magistrates for misconduct in their office, and those filed against private individuals. The jurisdiction over informations [*87]

is virtually vested in the Queen's Bench, as the 4 & 5 W. & M. c. 18, prohibits the master of the Crown Office from filing informations without the leave of the court. The court will grant leave to file a criminel information for offences below the degree of felony, which, though they do not affect the government, still materially concern the public welfare. Thus it would be allowed for offences against God, religion, or morality, as for blasphemy or obscene writings, for an imposture, and for conspiring to defraud, attempting to prejudice the minds of a jury by distributing handbills for that purpose, for libelling or obstructing magistrates in the discharge of their duty.

It is necessary now, since the 4 & 5 W. & M. c. 18, to disclose to the court upon affidavits the grounds upon which it is exhibited. The affidavits being prepared, the prosecutor, by his counsel, moves the Court of Queen's Bench for a rule, calling upon the defendant to show cause why leave should not be granted to file an information. If a rule is obtained at the proper time, cause is shown; if the rule is made absolute, the party is then bound to enter into a recognizance to prosecute; the information is then filed. An information may be amended at any time before the trial: after it is filed, the defendant either pleads or demurs, after which issue is joined; and notice of trial being given, the matter

is then brought before the court. Either *party may have a special jury if they think fit. Informations of the Crown Office [*88] against magistrates are subjected to the same rules as those against private individuals.

CHAPTER XXIV.

OF THE COURT OF CRIMINAL APPEAL.

PREVIOUSLY to the 11 & 12 Vict. c. 78, when any objection was taken on any indictment for treason or felony concerning which the judge entertained doubts, it was usual to reserve the case for the consideration of all the judges. The Court of Quarter Sessions, however, had no power to reserve questions for the consideration of the judges; conse

quently, by the 11 & 12 Vict. c. 78, it is enacted, that when any person shall have been convicted of any treason, felony, or misdemeanor before any Court of Oyer and Terminer, or Gaol Delivery, or Court of Quarter Sessions, the judge or commissioner, or justices of the peace, before whom the case was tried, may reserve any question of law for the consideration of the justices of either bench and barons of the exchequer, and may respite the execution of the judgment until the question shall have been decided. The prisoner may until such decision, in the discretion of the judge, be either committed to prison or admitted to bail. The judge or commissioner, or Court of Quarter Sessions, shall state a case to be remitted to the said justices and barons, showing [*89] what the question of law is which they have to decide; and the said justices and barons have full power and authority to hear and determine the said question or questions, and to reverse, affirm, or amend any judgment, or to arrest the judgment. If the judgment should be reversed, avoided, or arrested, and the defendant shall be in prison, the sheriff or gaoler shall forthwith discharge him.

The third section enacts, that the jurisdiction and authority given to the justices of either bench and barons of the exchequer shall and may be exercised by the said justices and barons, or five of them at least, of whom the lord chief justice of the Court of Queen's Bench, the lord chief justice of the Common Pleas, and the lord chief baron of the Court of Exchequer or one of such chiefs, at least, shall be part. Their judgments are to be delivered in open court, after hearing counsel, if the prosecutor or prisoner desire it. The justices and barons. have power to cause the case submitted to them to be sent back and amended. The judge at the trial has authority to reserve, not only questions of law raised by the evidence, but also questions of law which arise upon the record. The court generally sits in the Exchequer Chamber.

11 & 12 VICTORIA, CAP. 42.

An Act to facilitate the performance of the duties of justices of the peace out of sessions within England and Wales with respect to persons charged with indictable offences.-August 14, 1848.

WHEREAS it would conduce much to the improvement of the administration of criminal justice within England and Wales if the several statutes and parts of statutes relating to the duties of her Majesty's justices of the peace therein with respect to persons charged with indictable offences were consolidated, with such additions and alterations as may be deemed necessary, and that such duties should be clearly defined by positive enactment: Be it therefore declared and enacted by the queen's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, that in all cases where a charge or complaint (A.) shall be made before any one or more of her Majesty's justices of the peace for any county, riding, division, liberty, city, borough, or place within England or Wales, that any person has committed or is suspected to have committed any treason, felony, or indictable misdemeanor, or other indictable offence whatsoever, within the limits of the jurisdiction of such justice or justices of the peace, or that any person guilty or suspected to be guilty of having committed any such crime or offence elsewhere out of the jurisdiction of such justice or justices is residing or being or is suspected to reside or be within the limits of the jurisdiction of such justice or justices, then and in every [*92] such case, if the *person so charged or complained against shall not then be in custody, it shall be lawful for such justice or justices of the peace to issue his or their warrant (B.) to apprehend such person, and to cause him to be brought before such justice or justices, or any other justice or justices for the same county, riding, division, liberty, city, borough, or place, to answer to such charge or complaint, and to be further dealt with according to law: Provided always, that in all cases it shall be lawful for such justice or justices to whom such charge or complaint shall be preferred, if he or they shall so think fit, instead of issuing in MARCH, 1854.-20