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(truth of it: which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.]
II. An indictment is a written accusation that one or more persons have committed a certain felony or misdemeanor,--such accusation being preferred to, and (being found true) presented to the court upon oath by, a grand jury (f). [To this end the sheriff of every county is directed by precept, issued for the purpose, to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and loyal men of the county,—to inquire into, present, do, and execute all those things which, on the part of our lady the queen, shall then and there be commanded them (9).] At the sessions of the peace, their qualification is the same as required for jurors in the trial of civil causes. At the assize courts their qualification is not absolutely defined by law : [they ought, indeed, to be freeholders, but to what amount is uncertain (h). However, they are usually gentlemen of the best figure in the county (i). As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three, that twelve may be a majority (k). Which number, as well as the constitution itself, we find exactly described so early as the laws of King Ethelred (1):-“Exeant seniores duodecim thani, et prefectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare nec aliquem noxium celare.” In the time of King Richard the first (according to Hoveden),
(f) By 30 & 31 Vict. c. 35, s. 8, a juror unwilling from conscientious scruples to be sworn, on satisfying the court of the sincerity of such scruples, may make solemn affirmation instead of an oath.
(9) 2 Hale, P. C. 154.
[the process of electing the grand jury, ordained by that prince, was as follows:-four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district.] This number was probably found too large and inconvenient; but the traces of the institution long remained : for until dispensed with by 6 Geo. IV. c. 50, s. 13, it was held to be necessary that some of the jury should be summoned out of every hundred (m). [This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw to sit and receive indictments, which are preferred to them in the name of the sovereign, but at the suit of some private prosecutor: and they are only to hear evidence on behalf of the prosecution (n): for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire whether there be sufficient cause to call
party to answer it(o). A grand jury, however, ought to be thoroughly convinced of the truth of an indictment, so far as the
(m) 2 Hale, P. C. 154; 4 BI. some doubts with regard to the Com. 303.
legality of the proceeding, Lord (n) By 19 & 20 Vict. c. 54, the C. J. Pemberton and C. J. North foreman of the grand jury is an- both declared that it had always thorized to administer an oath, (or been the practice to examine the affirmation where such is allowed by witnesses publicly before the grand law,) to all persons appearing before jury, whenever it had been requested them to give evidence. Before this by those who prosecuted for the Act, such administration had to be king. (3 Harg. St. Tr. 417.) But in open court
it is apprehended this is the last in(o) Upon an indictment for high stance of such a procedure. (Christreason against the Earl of Shaftos- tian's Blackstone.) It seems that bury, in the year 1681, the evidence an improper mode of swearing the was given in public before the grand witnesses before a grand jury will jury at the Old Bailey; and the not vitiate the indictment. (R. v. gentlemen of the jury expressing Russel, 1 Car. & M. 247.)
[evidence goes: and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes (p).] By a recent enactment also, viz., 22 & 23 Vict. c. 17 (amended by 30 & 31 Vict. c. 45, s. 1), passed to prevent vexatious indictments, no bill of indictment shall be presented to the grand jury or found by them for offences of a certain description, unless there is either such recognizance given by the prosecutor as mentioned in the statute, or the person accused has been committed or bound over to appear to answer an indictment for the offence, or such consent or direction given for the prosecution as therein specified (2).
[The grand jury are sworn to inquire only for the body of the county, pro corpore comitatûs, but for no other part of the kingdom; and therefore they cannot regularly inquire of a fact done out of the county for which they are sworn, unless particularly enabled to do so by Act of Parliament. And to so high a nicety was this matter antiently carried, that where a man was wounded in one county and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them:] but by statute 2 & 3 Edw. VI. c. 24, he was rendered indictable in the county where the party died; and by statute 7 Geo. IV. c. 64, (repealing that of Edward the sixth,) he is now made indictable in either county. Also by 24 & 25 Vict. c. 100, s. 10, if the felonious stroke,
(p) St. Tr. iv. 183.
(9) See Ex parte Wason, Law Rep., 4 Q. B. 573. The offences named in the 22 & 23 Vict. c. 17, are the following :-Perjury, subornation of perjury, conspiracy, obtaining property by false pretences, keeping a gambling-house, keeping a disorderly house, and any indecent assault. The consent or direction referred to in the text, may be given by any of the judges, the attorney or the solicitor-general, the court
itself before whom the indictment shall be preferred, or (in a charge of perjury) any court or person authorized to direct a prosecution for that offence by 14 & 15 Vict. c. 100. (See The Queen v. Bray, 3 B. & Smith, 255.) By 30 & 31 Vict. c. 35, s. 2, a person indicted under the provisions of 22 & 23 Vict. c. 17, and acquitted at his trial, may, in some cases, be directed by the court to receive his reasonable costs and expenses from the prosecutor.
poisoning, or other hurt, be in England or Ireland, and the death on the sea (r), or out of England or Ireland, or vice versa—the offenders and their accessories may be dealt with, tried, and punished, in the county or place where either the death, stroke, poisoning, or hurt shall happen (s). [And so in some other cases; as particularly where treason is committed out of the realm, it may be inquired of either in the Queen's Bench, in any county where that court sits; or, under a special commission of oyer and terminer, in any county within the realm, as the Crown shall direct, in pursuance of statutes 26 Hen. VIII. c. 13; 35 Hen. VIII. c. 2, and 5 & 6 Edw. VI. c. 11 (t).] So, under 42 Geo. III. c. 85, all offences committed by persons employed by the Crown in any station abroad, in the exercise or under colour of their office, may be prosecuted in the Queen's Bench in England (u). So, also, offences committed at sea, or within the Admiralty jurisdiction, may—under 4 & 5 Will. IV. c. 36, s. 22, and 7 & 8 Vict. c. 2 (x),—be inquired of and determined in any of the courts of assize, oyer and terminer, and gaol delivery (y). To which we may add that by 24 & 25 Vict. c. 94, s. 7, the offence of a person accessory to any felony, wholly committed within England or Ireland, may be
() As to the case of a murder or manslaughter of a British subject on land out of the united kingdom, sec 24 & 25 Vict. c. 100, s. 9.
(8) This provision re-enacts 9 Geo. 4, c. 31, s. 8 (repealed by 24 & 25 Vict. c. 95). As to its construction, see Reg. v. Lewis, 1 Dears. & B. 182. By 23 & 24 Vict. c. 122, the colonies may make a similar enactment.
(t) 4 Bl. Com. p. 303. Another Act on the same subject, viz. 33 Hen. 8, c. 23, is repealed by 9 Geo. 4,
c. 12; 8 East, 31; and the case of The Queen v. Eyre, Law Rep., 3 Q. B. 487.
(x) And see 17 & 18 Vict. c. 104. s. 267, by which offences committed by British seamen, out of her majesty's dominions, are to be decmed to have been committed within the Admiralty jurisdiction.
(y) Vide sup. p. 312. In certain cases, however, by 12 & 13 Vict. c. 96, offences committed within the Admiralty jurisdiction, may be tried in the courts of the colony, (including India, see 23 & 24 Vict. c. 88,) where the person is charged.
(u) And see 11 & 12 Will. 3,
tried by any court having jurisdiction to try the principal felony, or to try any felonies committed in any county or place in which the act making such person accessory was committed; and that in every other case, an accessory may be tried by any court with jurisdiction to try his principal, or to try any felonies in the place where the accessory was apprehended,—wherever the principal felony was committed. Moreover any indictable offence, mentioned in any of the Acts passed in the year 1861 for the consolidation of the statute law relating to offences against the person, to larceny, to malicious injuries to property, to coinage offences, and to forgery, which shall be committed within the admiralty jurisdiction of England or Ireland, may be dealt with, inquired of, tried and determined in any county or place in which the offender shall be apprehended or be in custody (z). In addition to which, there are to be found in the statute book, a variety of other and more specific exceptions from the principle that an offender must be indicted and tried in the county in which the offence is committed,-which have been introduced, from time to time, to prevent the failure of justice, or to promote its convenient administration (a). We may also
(z) See 24 & 25 Vict. c. 100, s. 68; capes, prison-breach, and rescue, c. 96, s. 115; c. 97, s. 72; c. 99, s. 36; 4 Geo. 4, c. 64, s. 44.- As to offences c. 98, s. 36.
against the excise, 7 & 8 Geo. 4,c.53, (a) Sce as to the offences of ex- s. 43.- As to offences committed in tortion, 31 Eliz. c. 5, s. 4, (et 2 Chit. coaches or sels, 7 Geo. 4, c. 64, Cr. Law, 294, n.)—As to robberies, s. 13. (See Sharpe's case, 1 Dearsfo. in Newfoundland, 10 & 11 ley's C. C. R. 416.)-As to offences Will. 3, c. 25, s. 13.—As to burn- against the Post Office, 7 Will. 4 ing ships, fc. out of the realm, & 1 Vict. c. 36, s. 37.--As to offences 12 Geo. 3, c. 24, s. 2.-As to miste- against the customs, 16 & 17 Vict. meanors in India, 13 Geo. 3, c. 63. c. 107, s. 301- As to offences com- As to seducing soldiers, fr., 37 mitted on British ships, 18 & 19 Geo. 3, c. 70, s. 2; 57 Geo. 3, c. 7.- Vict. c. 91, s. 21. (See The Queen As to offences against stamp Acts, v. Lopez, 27 L. J. (M. C.) 48, and 63 Geo. 3, c. 108, s. 24; 55 Geo. 3, 30 & 31 Vict. c. 121, s. 11.)--As to c. 184, s. 8. As to offences by pilots, Foreign Enlistment Act, 33 & 34 1 & 2 Geo. 4, c. 75, s. 22.-As to es- Vict. c. 90, s. 16.