Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844

There are, however, difficulties almost peculiar to the more serious offences against the state, but which are entirely different, in their nature, from those imaginary difficulties which have formed the subject of so much declamation. A passing glance at the proceedings now pending in Ireland, will give the most casual observer some idea of what is sometimes to be encountered by those to whom is entrusted the arduous duty of conducting a state prosecution. Look back on the "tempest of provocation," which recently assailed the Irish Attorney-General, on the vexatious delays and frivolous objections which sprang up at every move of the crown lawyers, called forth by one who, though "not valiant," was well known to the government to be "most cunning offence" ere they challenged him, but who, "despite his cunning fence and active practice," may perhaps find, that this time the law has clutched him with a grasp of iron. In ordinary cases, criminals may, no doubt, be easily convicted; and in the great majority of the more common crimes and misdemeanours, the utmost legal ingenuity and acumen might be unable to detect a single error in the proceedings, from first to last. Still it must be remembered, that even among the more common of ordinary cases, in which the forms are simple, the practice certain, and in which the law may be supposed to be already defined beyond the possibility of doubt, error, or misconception—even in such cases, questions occasionally arise which scarcely admit of any satisfactory solution—questions in which the fifteen judges, to whom they may be referred, often find it impossible to agree, and which may therefore be reasonably supposed to be sufficiently perplexing to the rest of the world. State offences, such as treason and sedition, which are of comparatively rare occurrence, present many questions of greater intricacy than any other class of crimes. In treason especially, a well-founded jealousy of the power and prerogatives of the crown has intrenched the subject behind a line of outposts, in the shape of forms and preliminary proceedings; the accused, for his greater security against a power which, if unwatched, might become arbitrary and oppressive, has been invested with rights which must be respected and complied with, and by the neglect of which the whole proceedings are rendered null and void. At this moment, in all treasons, except attempts upon the person of the sovereign, "the prisoner," in the language of Lord Erskine, "is covered all over with the armour of the law;" and there must be twice the amount of evidence which would be legally competent to establish his guilt in a criminal prosecution for any other offence, even by the meanest and most helpless of mankind. Sedition is a head of crime of a somewhat vague and indeterminate character, and, in many cases, it may he extremely difficult, even for an acute and practised lawyer, to decide whether the circumstances amount to sedition. Mr East, in his pleas of the crown, says, that "sedition is understood in a more general sense than treason, and extends to other offences, not capital, of a like tendency, but without any actual design against the king in contemplation, such as contempts of the king and his government, riotous assemblings for political purposes, and the like; and in general all contemptuous, indecent, or malicious observations upon his person and government, whether by writing or speaking, or by tokens, calculated to lessen him in the esteem of his subjects, or weaken his government, or raise jealousies of him amongst the people, will fall under the notion of seditious acts." An offence which admits of so little precision in the terms in which it is defined, depending often upon the meaning to be attached to words, the real import of which is varied by the tone or gesture of the speaker, by the words which precede, and by those which follow, depending also upon the different ideas which men attach to the same words, evidently rests on very different grounds from those cases, where actual crimes have been perpetrated and deeds committed, which leave numerous traces behind, and which may be proved by the permanent results of which they have been the cause. Technical difficulties without number also exist: the most literal accuracy, which is indispensable—the artful inuendoes, the artistical averments, which are necessary, correctly to shape the charge ere it is submitted to the grand jury, may be well conceived to involve many niceties and refinements, on which the case may easily be wrecked. It must also be remembered that the utmost legal ingenuity is called into action, and the highest professional talent is engaged in the defence of the accused. The enormous pressure upon the accused himself, who, probably from the higher or middle classes, with ample means at his command, an ignominious death perhaps impending, or, at the least, imprisonment probably for years in threatening prospect close before him; his friends active, moving heaven and earth in his behalf, no scheme left untried, no plan or suggestion rejected, by which it may, even in the remotest degree be possible to avert the impending doom; the additional rancour which politics sometimes infuse into the proceedings, the partisanship which has occasioned scenes such as should never be exhibited in the sacred arena of the halls of justice, animosities which give the defence the character of a party conflict, and which cause a conviction to be looked upon as a political defeat, and an acquittal to be regarded as a party triumph—all these circumstances, in their combined and concentrated force, must also be take into consideration. In such a case every step is fought with stern and dogged resolution; even mere delay is valuable, for when all other hope is gone, the chapter of accidents may befriend the accused; it is one chance more; and even one chance, however slight, is not to be thrown away. Such is a faint picture of the defensive operations on such occasions: how is this untiring, bitter energy met by those who represent the crown?

"Look on this picture and on that."

Here all is calm, dignified, generous, and forbearing; every consideration is shown, every indulgence is granted, to the unfortunate being who is in jeopardy. The crown has no interest to serve beyond that which the state possesses in the vindication of the law, and in that cool, deliberate, and impartial administration of justice which has so long distinguished this country. Nothing is unduly pressed against the prisoner, but every extenuating fact is fairly laid before the jury by the crown; it is, in short, generosity, candor, and forbearance, on the one side, matched against craft, cunning and the resolution by any means to win, upon the other. Such are the real difficulties which may be often felt by those who conduct a state prosecution. Surely it is better far that these difficulties should, in some instances, be even wholly insuperable, and that the prosecution should be defeated, than that any change should come over the spirit in which these trials are now conducted; or that the crown should ever even attempt to make the criminal process of the law an instrument of tyranny and oppression, as it was in the days of Scroggs and Jefferies, and when juries, through intimidation, returned such verdicts as the crown desired. Our very tenacity of our liberties may tend to render these proceedings occasionally abortive; and the twelve men composing a jury of the country, though possibly all their sympathies would be at once enlisted in behalf of a wronged and injured subject, may, unconsciously to themselves, demand more stringent proof, in cases where the sovereign power appears before then as the party; and more especially, when the offence is of an impersonal nature, and where the theory of the constitution, rather than the person or property of individuals, is the object of aggression. In the olden time such was the power of the crown, that, whenever the arm of the state was uplifted, the blow fell with unerring accuracy and precision; but now, when each object of a state prosecution is a sort of modern Briareus, the blow must be dealt with consummate skill, or it will fail to strike where it was meant to fall. On this account, perhaps, in addition to then own intrinsic paramount importance, the proceedings now pending in Ireland, have become the object of universal and absorbing interest throughout the whole of the United Kingdom. Under these circumstances it has occurred to us, that a popular and accurate review of the several stages of a criminal prosecution, by which the general reader will be able, in some degree, to understand the several steps of that proceeding which is now pending, might not be unacceptable or uninstructive at the present moment. It must, however, be observed, that it is scarcely possible to divest a subject so technical in it very nature from those terms of art which, however familiar they may be to many of our readers, cannot be understood by all without some explanation, which we shall endeavour to supply as we proceed.

The general importance of information of this nature has been well summed up by a great master of criminal law. "The learning touching these subjects," says Sir Michael Foster, "is a matter of great and universal concernment. For no rank, no elevation in life, and, let me add, no conduct, how circumspect soever, ought to tempt a reasonable man to conclude that these enquiries do not, nor possibly can, concern him. A moment's cool reflection on the utter instability of human affairs, and the numberless unforeseen events which a day may bring forth, will be sufficient to guard any man, conscious of his own infirmities, against a delusion of this kind."

Let us suppose the minister of the day, having before been made aware that, in a portion of the kingdom, a state of things existed that demanded his utmost vigilance and attention, to have ascertained the reality of the apparent danger, and to have procured accurate information as to the real character of the proceedings, and to find that acts apparently treasonable or seditious, as the case may be, had been committed. Suppose him, charged with the safety of the state, and responsible for the peace, order, and well-being of the community, to set the constitutional process of the law in motion against the offending individuals; his first step, under such circumstances, must be to procure full and satisfactory evidence of the facts as they really exist. For this purpose agents must he employed, necessarily in secret, or the very end and object of their mission would be frustrated, to collect and gather information from every authentic source, and to watch, with their own eyes the proceedings which have attracted attention. This is a work of time, perhaps; but suppose that it is complete, and that the minister having before him in evidence, true and unmistakable, a complete case of crime to lay before a jury, what, under these circumstances, is the first step to be taken by the crown? Either of two distinct modes of procedure may be chosen; the one mode is by an ex officio information, the other is by indictment. An indictment is the mode by which all treasons and felonies must be proceeded against, and by which ordinary misdemeanours are usually brought to punishment. An ex officio information is an information at the suit of the sovereign, filed by the Attorney-General, as by virtue of his office, without applying to the court where filed for leave, and without giving the defendant any opportunity of showing cause why it should not be filed. The principal difference between this form of procedure and that by indictment, consists in the manner in which the proceedings are commenced; in the latter case, the law requires that the accusation should be warranted by the oath of twelve men, before he be put to answer it—or in other words that the grand jury must give that information to the court, which, in the former case, is furnished by the law officer of the crown. The cases which are prosecuted by ex officio information, are properly such enormous misdemeanours as peculiarly tend to disturb and endanger the government or to molest or affront the sovereign in the discharge of the functions of the royal office. The necessity for the existence of a power of this nature in the state, is thus set forth by that learned and illustrious judge, Sir William Blackstone. "For offences so highly dangerous, in the punishment or prevention of which a moment's delay would be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for any previous application to any other tribunal: which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved in the great plan of the English constitution, wherein provision is wisely made for the preservation of all its parts."

The crown, therefore, in a case such as we have imagined, must first make choice between these two modes of procedure. The leniency of modern governments has of late usually resorted to the process by indictment; and the crown, waiving all the privileges which appertain to the kingly office, appears before the constituted tribunals of the land, as the redresser of the public wrongs, invested with no powers, and clothed with no authority beyond the simple rights possessed by the meanest of its subjects. We shall, for this reason, take no further notice of the ex officio information; and as treasons form a class of offences governed by laws and rules peculiar to itself, we shall also exclude this head of crime from our consideration, and confine ourselves solely to the ordinary criminal process by which offenders are brought to justice.

In, general, the first step in a criminal prosecution, is to obtain a warrant for the apprehension of the accused party. In ordinary cases, a warrant is granted by any justice of the peace upon information, on the oath of some credible witness, of facts from which it appears that a crime has been committed, and that the person against whom the warrant is sought to be obtained, is probably the guilty party, and is a document under the hand and seal of the justice, directed generally to the constable or other peace-officer, requiring him to bring the accused, either generally before any justice of the county, or only before the justice who granted it. This is the practice in ordinary cases; but in extraordinary cases, the warrant may issue from the Lord Chief Justice, or the Privy Council, the Secretaries of State, or from any justice of the Court of Queen's Bench. These latter warrants are, we believe, all tested, or dated England, and extend over the whole kingdom. So far the proceedings have been all ex parte, one side only has been heard, one party only has appeared, and all that has been done, is to procure or compel the appearance of the other. The warrant is delivered to the officer, who is bound to obey the command which it contains. It would seem, however, that, as was done in a recent case in Ireland, it is sufficient if the appearance of the accused be virtually secured, even without the intervention of an actual arrest.

When the delinquent appears, in consequence of this process, before the authorities, they are bound immediately to examine into the circumstances of the alleged crime; and they are to take down in writing the examinations of the witnesses offered in support of the charge. If the evidence is defective, and grave suspicion should attach to the prisoner, he may be remanded, in order that fresh evidence may be procured; or the magistrate, if the case be surrounded with doubt and difficulty, may adjourn it for a reasonable time, in order to consider his final decision. The accused must also be examined, but not upon oath; and his examination also must be taken down in writing, and may be given in evidence against him at the trial; for although the maxim of the common law is "nemo tenebitur prodere seipsum," the legislature, as long ago as the year 1555, directed that, in cases of felony, the examination of the prisoner should be taken; which provision has recently been extended to misdemeanours also. Care must be taken that his examination should not even appear to have been taken on oath; for in a very recent case, in which all the examinations were contained upon one sheet of paper, and under one general heading—from which they all purported to have been taken upon oath, the prisoner's admission of his guilt contained in that examination, was excluded on the trial, and the rest of the evidence being slight, he was accordingly acquitted. Now, if upon the enquiry thus instituted, and thus conducted, it appears, either that no such crime was committed, or that the suspicion entertained against the accused is wholly groundless, or that, however positively accused, if the balance of testimony be strongly in favour of his innocence, it is the duty of the magistrate to discharge him. But if, on the other hand, the case seems to have been entirely made out, or even if it should appear probable, that the alleged crime has in fact been perpetrated by the defendant, he must either be committed to prison, there to he kept, in safe custody, until the sitting of the court before which the trial is to be heard; or, he may be allowed to give bail—that is, to put in securities for his appearance to answer the charge against him. In either of these alternatives, whether the accused be committed or held to bail, it is the duty of the magistrate to subscribe the examinations, and cause them to be delivered to the proper officer, at, or before, the opening of the court. Bail may be taken by two justices in cases of felony, and by one in cases of misdemeanour. In this stage of the proceedings, as the commitment is only for safe custody, whenever bail will answer the same intention, it ought to be taken, as in inferior crimes and misdemeanours; but in offences of a capital nature, such as the heinous crimes of treason, murder, and the like, no bail can be a security equivalent to the actual custody of the person. The nature of bail has been explained, by Mr Justice Blackstone, to be "a delivery or bailment of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance: he being supposed to continue in their friendly custody, instead of going to gaol." To refuse, or even to delay bail to any person bailable, is an offence against the liberty of the subject, in any magistrate, by the common law. And the Court of Queen's Bench will grant a criminal information against the magistrate who improperly refuses bail in a case in which it ought to have been received. It is obviously of great importance, in order to ensure the appearance of the accused at the time and place of trial, that the sureties should be men of substance; reasonable notice of bail, in general twenty-four or forty-eight hours, may be ordered to be given to the prosecutor, in order that he may have time to examine into their sufficiency and responsibility. When the bail appear, evidence may be heard on oath, and they may themselves be examined on oath upon this point; if they do not appear to possess property to the amount required by the magistrates, they may be rejected, and others must be procured, or the defender must go to prison. Excessive bail must not be required; and, on the other hand, the magistrate, if he take insufficient bail, is liable to be fined, if the criminal do not appear to take his trial. When the securities are found, the bail enter into a recognizance, together with the accused, by which they acknowledge themselves bound to the Queen in the required sums, if the accused does not appear to take his trial, at the appointed time and place. This recognizance must be subscribed by the magistrates, and delivered with the examinations to the officer of the court in which the trial is to take place. With this, the preliminary proceedings close: the accused has had one opportunity of refuting the charge, or of clearing himself from the suspicion which has gathered round him; but as yet, there is no written accusation, no written statement of the offence which it is alleged he has committed. True, he has heard evidence—he has heard a charge made orally against him—but the law requires greater particularity than this before a man shall be put in peril upon a criminal accusation. The facts disclosed in the evidence before the magistrates must be put in a legal form; the offence must be clearly and accurately defined in writing, by which the accused may be informed what specific charge he is to answer, and from which he may be able to learn what liability he incurs; whether his life is put in peril, or whether he is in danger of transportation or of imprisonment, or merely of a pecuniary fine. This is done by means of the indictment. The indictment is a written accusation of one or more several persons, preferred to and presented upon oath by a grand jury. This written accusation, before being presented to the grand jury, is properly termed a "bill;" and, in ordinary cases, it is generally prepared by the clerk of the arraigns at the assizes, and by the clerk of the peace at the quarter sessions; but, in cases of difficulty, it is drawn by counsel. It consists of a formal technical statement of the offence, which is engrossed upon parchment, upon the back of which the names of the witnesses for the prosecution are indorsed. In England it is delivered to the crier of the court, by whom the witnesses are sworn to the truth of the evidence they are about to give before the grand jury. In the trial now pending in the Court of Queen's Bench in Ireland, a great question was raised as to whether a recent statute, which, on the ground of convenience, enabled grand juries in Ireland themselves to swear the witnesses, extended to trials before the Queen's Bench. This question was decided in the affirmative; therefore, in that country, the oath, in every case, must be administered by the grand jury themselves; whereas, in this country, the witnesses are sworn in court, and by the crier, as we have already mentioned. The grand jury, ever since the days of King Ethelred, must consist of twelve at least, and not more than twenty-three. In the superior courts they are generally drawn from the magistracy or superior classes of the community, being, as Mr Justice Blackstone expresses it, "usually gentlemen of the best figure in the county." They are duly sworn and instructed in the articles of their enquiry by the judge who presides upon the bench. They then withdraw, to sit and receive all bills which may be presented to them. When a bill is thus presented, the witnesses are generally called in the order in which their names appear upon the back of the bill. The grand jury is, at most, to hear evidence only on behalf of the prosecution; "for," says the learned commentator already quoted, "the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon a party to answer it." They ought, however, to be fully persuaded of the truth of an indictment as far as the evidence goes, and not to rest satisfied with remote probabilities; for the form of the indictment is, that they, "upon their oath, present" the party to have committed the crime. This form, Mr Justice Coleridge observes, is perhaps stronger than may be wished, and we believe that the criminal law commissioners are now seriously considering the propriety of abolishing it.

After hearing the evidence, the grand jury endorse upon the bill their judgment of the truth or falsehood of the charge. If they think the accusation groundless, they write upon it, "not found," or "not a true bill;" in which case the bill is said to be ignored: but, on the other hand, if twelve at least are satisfied of the truth of the accusation, the words "true bill" are placed upon it. The bill is then said to be found. It then becomes an indictment, and is brought into court by the grand jury, and publicly delivered by the foreman to the clerk of arraigns, or clerk of the peace, as the case may be, who states to the court the substance of the indictment and of the indorsement upon it. If the bill is ignored, and no other bill is preferred against the party, he is discharged, without further answer, when the grand jury have finished their labours, and have been themselves discharged. To find a bill, twelve at least of the jury must agree; for no man, under this form of proceeding at least, can be convicted even of a misdemeanour, unless by the unanimous voice of twenty-four of his equals; that is, by twelve at least of the grand jury assenting to the accusation, and afterwards by the whole petit jury of twelve more finding him guilty upon the trial.