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