[tion by information (or suggestion) filed on record by the attorney-general, or by the master of the Crown Office, is as antient as the common law itself. For, as the sovereign 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 these, his immediate officers, were otherwise sufficiently assured that one had committed a gross misdemeanor, either personally against him or his government, or against the public peace and good order, they were at liberty, without waiting for any further intelligence, to convey that information to the court of king's bench by a suggestion on record, and to carry on the prosecution in the name of the Crown. But these informations (of every kind) are confined, by the constitutional law, to mere misdemeanors only: for whereever any felonious offence is charged, the same law requires that the accusation be warranted by the oath of twelve men, before the party shall be put to answer it (d). And, as to those offences, in which informations were allowed as well as indictments, so long as they were confined to this high and respectable jurisdiction, and were carried on in a legal and regular course in his majesty's court of king's bench, the subject had no reason to complain. The same notice was given, the same process was issued, the same pleas were allowed, the same trial by jury was had, the same judgment was given by the same judges, as if the prosecution had originally been by indictment. But when the statute 3 Hen. VII. c. 1, had extended the jurisdiction of the Court of Star-Chamber, the members of which were the sole judges of the law, the fact and the penalty; and when the statute of 11 Hen. VII. c. 3, had

(d)"Any capital offence" is the expression of Blackstone (4 Bl. Com. p. 310). And in this he agrees with Sir M. Hale (2 Hale, P. C. 151). But the doctrine seems to

extend to felonies generally, whether capital or not. (See Com. Dig. "Information," A. 1; 1 Chit. C. L. 844.)

[permitted informations to be brought by any informer upon any penal statute, (not extending to life or member,) at the assizes, or before the justices of the peace, who were to hear or determine the same according to their own discretion; then it was that the legal and orderly jurisdiction of the court of king's bench fell into disuse and oblivion; and Empson and Dudley, (the wicked instruments of King Henry the seventh,) by hunting out obsolete penalties, and this tyrannical mode of prosecution, with other oppressive devices, continually harassed the subject, and shamefully enriched the Crown (e). The latter of these Acts was soon, indeed, repealed by statute 1 Henry VIII. c. 6; but the Court of Star-Chamber continued in high vigour, and daily increasing its authority, for more than a century longer; till finally abolished by statute 16 Car. I. c. 10.

Upon this dissolution, the old common law authority of the court of king's bench, as the custos morum of the nation (ƒ), being found necessary to reside somewhere for the peace and good government of the kingdom, was again revived in practice (g). And it is observable, that in the same Act of Parliament which abolished the Court of Star-Chamber, a conviction by information is expressly reckoned up as one of the legal modes of conviction of such persons as should offend a third time against the provisions of that statute (). It is true, Sir Matthew Hale, who presided in this court soon after the time of such revival, is said to have been no friend to this method of prosecution (i) and if so, the reason of such his dislike was probably the ill use which the master of the Crown Office then made of his authority, by permitting the subject to be harassed with vexatious informations whenever

(e) 1 And. 157.

(f) See Prynn's case, 5 Mod. 464.

(g) Styl. Rep. 217, 245; Styl. Pract. tit. "Information," p. 187,

edit. 1657); Fountain's case, 1 Sid. 152; Dudley's case, 2 Sid. 71.

(h) Stat. 16 Car. 1, c. 10, s. 6. (i) Prynn's case, 5 Mod. 460.

[applied to by any malicious or revengeful prosecutor; rather than from any doubt of their legality, or propriety upon urgent occasions (). For the power of filing informations, without any control, then resided in the breast of the master; and, being filed in the name of the Crown, they subjected the prosecutor to no costs, though on trial they proved to be groundless. This oppressive use of them in the time preceding the Revolution, occasioned a struggle, soon after the accession of King William, to procure a declaration of their illegality by the judgment of the court of king's bench (7). But Sir John Holt, who then presided there, and all the judges, were clearly of opinion that this proceeding was grounded on the common law, and could not be then impeached. And in a few years afterwards a more temperate remedy was applied in parliament, by statute 4 W. & M. c. 18, which enacted, that the Master of the Crown Office shall not file any information without express order from the court of king's bench (m); and that every prosecutor permitted to promote such information, shall give security by a recognizance of twenty pounds to prosecute the same with effect, and to pay costs to the defendant, in case he be acquitted thereon, unless the judge who tries the information shall certify that there was reasonable cause for filing it; and at all events, to pay costs unless the information shall be tried within a year after issue joined (n). But there is a proviso in this Act, that it shall not extend to any other informations than those which are exhibited by the master of the Crown Office, and consequently informations at the suit of the Crown, filed ex officio by the attorney-general, are nowise restrained thereby.]

It will be gathered from what has been already stated,

(k) 1 Saund. 301; R. v. Starling, 1 Sid. 174.

() M. 1 W. & M., Prynn's case, 5 Mod. 460; Comp. 141; Far. 361; R. v. Berchet, 1 Show. 106.

(m) Such order must now be

given in open court by the Queen's Bench Division.

(n) As to the costs of a criminal information for libel, see Reg. v. Latimer, 20 L. J. (N. S.) Q. B. 129.

that criminal proceedings are, as the general rule, instituted at the instance of a private prosecutor, that is to say, either by the person who has himself been the subject of the offence, or (in the case of misbehaviour punishable by the infliction of a penalty) by some common informer for the sake of money; and it is only occasionally that the Crown interferes directly, and that the alleged offender is prosecuted by the Treasury, and the Attorney-General directed to conduct it. One result of this state of things has been, that offenders have frequently escaped the legal consequences of the crimes they have committed, by reason of there being no one whose duty it is to see that they are properly punished. It is with the hope of preventing this evil in some measure for the future, that the 42 & 43 Vict. c. 22, has been passed (the Prosecution of Offences Act, 1879); by which statute the secretary of state is enabled to appoint an officer, to be called the "director of public prosecutions," whose duty it shall be, under the superintendence of the Attorney-General, to institute, undertake and carry on such criminal proceedings, and to give such advice and assistance to the police and magistracy as shall be prescribed by general regulations made under the Act, and sanctioned by both Houses of Parliament; or (in any special case) such as may be directed by the Attorney-General (o). And such general regulations are, in particular, to provide for such director taking action in cases of importance or difficulty; or in which special circumstances, or the refusal or failure of a person to proceed with a prosecution, appear to render such action necessary to secure the due prosecution of an offender.

In order to promote the object of the Act, there has been inserted a provision, whereby it is made the duty of every

(0) 42 & 43 Vict. c. 22, ss. 2, 8. In connection with this subject it may be noticed that there is now appointed, under the authority of the secretary of state, an officer

whose duty it is to superintend and generally to assist the police in their inquiries after crime. He is called the "director of criminal investigations."

clerk to a justice or police court to transmit to such director of public prosecutions a copy of the information, the depositions and other documents connected with any case in which an offence instituted before such justice or court is withdrawn, or not proceeded with in a reasonable time (o). And, on the other hand, nothing in the Act contained is. to interfere in any way with the right of any person to institute, undertake or carry on any criminal proceeding.

Besides prosecution by way of indictment and information, there formerly existed another, called an appeal,— which was at the suit of the subject, not of the Crown, and demanded punishment on account of the private injury rather than the public offence. This proceeding (involving, as we shall see hereafter, a trial by battle, instead of by jury,) though leading, in case of conviction, to the same punishment as if the offender had been indicted, might yet be remitted by the private prosecutor; [and probably originated in those times when a private pecuniary satisfaction, called a weregild, was constantly paid to the party injured, or his relations, to expiate enormous offences (p) : a custom derived to us, in common with other northern nations, from our ancestors, the antient Germans; among whom, according to Tacitus, "luitur homicidium certo armentorum ac pecorum numero; recipitque satisfactionem universa domus" (q).] Prosecutions by the method of

(0) Also, every justice and coroner who shall receive notice from the director of public prosecutions that he has intervened in a criminal proceeding before such justice or coroner, must in like manner transmit to the director such documents connected with the proceeding as he is required by law to deliver to the proper officer of the court in which the case is to be tried; and the duty of delivering them to such officer, thenceforward falls upon

the director. (42 & 43 Vict. c. 22, s. 5.)

(p) 4 Bl. Com. 313. In our Saxon Laws, particularly those of Athelstan, (Judic. Civ. Lund. Wilk. 71,) we find the several weregilds for homicide established in progressive order, from the death of the ceorl or peasant to that of the king himself. And see the laws of Hen. 1, c. 12.

(2) De Mor. Germ. c. 21. And in another place, c. 12: "Delictis,