THE HISTORY OF THE CRIMINAL
INFORMATION.

BY W. S. HOLDSWORTH, K.C., D.C.L.

Vinerian Professor of English Law, Oxford.

From a very early period in the history of the common law the two most important methods of beginning a criminal prosecution have been the procedure by way of Presentment and Indictment, and the procedure by way of Criminal Information. The criminal information is almost as old as the indictment, and, like it, it has been affected by the course of the political and constitutional history of the English State. Nor is the antiquity of these criminal informations surprising; for the idea underlying the procedure by information, criminal or civil, came very naturally to the centralized royal justice of the thirteenth century. It was a very natural mode of putting the law in motion that the King by his counsel should inform his courts of some fact which had legal consequences. Thus, if some one had got possession of property to which the King was entitled, or had committed some offence, the King could inform his courts, and ask them to act. Moreover such a procedure was in accord with the ideas of an age which considered that all men, including the King, were subject to law. The mediæval King was no Austinian sovereign who could motu mero assert his rights or punish those who had broken his laws. He must take the proper steps to see that the law which had been broken was enforced; and the natural way to do that was to inform his courts.

But naturally this vague general notion of an information developed as time went on. It is, so to speak, caught up into the technical procedure of the common law, the different cases in which the King may

1

1 Holdsworth, Hist. Eng. Law (3rd ed.) ii 196, 252-254, 435-436.

proceed by information are classified, and thus we get many different kinds of information each governed by its own technical rules. Further complications arose from the fact that this procedure by information, was taken up and developed on somewhat different lines, by the Common Law Courts, by the Council and Star Chamber, and by the Court of Chancery. The Council allowed other persons besides the King by his counsel to. give information to the Court, on which it could be asked to take action; and this idea was taken up and largely developed by the legislature. Many penal statutes were enforceable by qui tam informations as well as by qui tam actions; and the abuses arising from these invitations to informers to take these proceedings had given rise to legislation in Elizabeth and James I.'s reigns. In one case this procedure by information was extended in a manner analogous to some of the extensions of the action of trespass. On account of the greater convenience of this procedure the old writ of quo warranto was in the sixteenth century superseded by an information in the nature of a quo warranto.

It is not therefore surprising to find that in the developed common law there are many kinds of informations. Firstly, there are the informations by which the Crown asserts its right to money or chattels, or to damages for an intrusion on lands belonging to the Crown, and the information in rem by which property seized as having no owner was adjudged to belong to the Crown. To these informations at common law by Latin bill were added later informations in equity by English bill. All of these informations were essentially civil proceedings. Secondly, there is the information in the nature of a writ of quo warranto which superseded the old writ. It was originally a criminal proceeding designed to punish the usurper of a franchise as well as to seize the franchise for the Crown. But, in the course of the sixteenth and seventeenth cent

2 Bl. Comm. iii 261-2.

Robertson, Civil Proceedings by and against the Crown, 234; Halsbury, Laws of England, X 20-26.

302

THE CANADIAN BAR REVIEW.

uries, it develop DIAN

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a purely civil proceeding,* and

it is now enacted that it shall be so exclusively regarded. Thirdly, there is the criminal information. These fall under two heads-those brought by a subject on a penal statute on behalf of himself and the Crown, which are a sort of qui tam actions, only carried on by a criminal instead of a civil process"; and those brought solely at the suit of the King. The latter variety again fall under two heads: "first, those which are truly and properly his own suits, and filed ex officio by his own immediate officer, the AttorneyGeneral: secondly, those in which, though the King is the nominal prosecutor, yet it is at the relation of some private person or common informer; and they are filed by the King's coroner and attorney in the Court of King's Bench, usually called the Master of the Crown Office, who is for this purpose the standing officer of the public.""

It is with the informations falling under this third head that I am dealing here. But since this classification of informations is the result of a long historical development, it will be necessary, in tracing the history of these criminal informations, to say something of the other informations which have become distinct varieties. As I said at the outset, their history has been coloured by political and constitutional influences coming from different periods in the history of the law; and, as has happened with other institutions of English law, the legality of ex officio informations was made a matter of constitutional and legal controversy at the end of the seventeenth and in the eighteenth centuries. It will be necessary therefore in tracing their history to follow a chronological arrangement. I shall deal firstly with the mediæval and early Tudor period; secondly with the seventeenth century; and

Bl. Comm. iii 262, IV 307-8; Holdsworth, Hist. of Eng. Law. (3rd ed.) i. 230; the proceedings on this information were regulated by 9 Anne, c. 20.

thirdly with the settlement of the modern law in the seventeenth and eighteenth centuries.

(i) The Medieval and Early Tudor Period.

8a

It seems to be quite clear that in Edward I.'s reign the King could, by information to his Court, put a man on his trial for treason or felony. But, probably before the close of the medieval period, this right to put a man on his trial by information, without the process of presentment and indictment, had been restricted to offences under the degree of felony, that is, to misdemeanours. It is, I think, probable that we must look for the cause of this restriction to the extensive use made by the Council of the process of information, and to the medieval statutes passed to restrict the jurisdiction of the Council in Criminal cases. There seems to be no doubt that the Council habitually proceeded criminally against persons on the information, not only of the King and his counsel, but also of any private person. The decay of the criminal appeal had created the want for a criminal proceeding begun at the suit of the injured person; and though the action of trespass helped to fill this gap,10 there was room for this other expedient of an information to the Council.11 But, considering the way in which all the forms of law were abused by the litigious and unscrupulous in the latter part of the medieval period,12 it was inevitable that this procedure should be turned to evil uses. And "as the proceedings were secret, the way was opened for all kinds of false and malicious accusations.''18 But it was this abuse of the Council's procedure, coupled with the professional jealousy of the common lawyers, which led Parliament to pass that ser

'P. and M. ii. 658-9, and the references cited 659 n. 1 (1st ed.). Sa For these statutes and their effect see Holdsworth, Hist. Eng. Law (3rd ed.) i. 487-488.

9

Baldwin, the King's Council, 286; Select Cases before the King's Council (S.S.) XXXVI-VIII.

10 Holdsworth, Hist. Eng. Law (3rd ed.) ii. 360-361, 364-365.
"Select Cases before the Council (S.S.) XXXVII.

12 Holdsworth, Hist. Eng. Law (3rd ed.) ii. 415-416.

13 Baldwin, the King's Council, 286.

ies of statutes which effectually debarred the Council from hearing capital cases.14 It is reasonable therefore to conjecture that this restriction of the sphere of the information to offences under the degree of felony in cases coming before the Council reacted on the proceedings at the suit of the Crown by way of information in the common law courts. There can be little doubt that the sphere of informations was thus restricted in the medieval period, and later; but it would be as difficult to find an express authority for it's as to find an authority for the equally obvious proposition that the Council, certainly in the Tudor period and probably from the latter part of the fourteenth century, had no jurisdiction to try a case of treason or felony. Perhaps this lack of express authority lends further probability to the view that the restriction on the competence of the information at the King's suit in the common law courts, is connected with this legislation which insisted, as against the Council, that accusations for capital offences must be begun by presentment and indictment.

There is however no reason to think that the King was unable to proceed by information for offences under the degree of felony. It is clear that in civil cases he could proceed by information to recover property to which he was entitled.18 It is clear, too, that he could proceed in this way in the Exchequer for customs duties which had not been paid;". and it would seem that there are a series of precedents, which Hale recognized to be authorities, showing that an information also lay for such offences as nuisance, contempt, rescous, and the like.18 There are also cases of infor

"Holdsworth, Hist. Eng. Law (3rd ed.), i. 486-488.

15 Thus Hawkins, P.C. ii 260 can only say, "I do not find it anywhere holden that such an information will lie for any capital crime or for misprison or treason "; and he only cites so recent an authority as Shower's argument in R. v. Berchet (1690), 1 Shower at pp. 109-10.

16 Above.

17 See e.g. Reniger v. Fogossa (1549), Plowden, 1.

18 See the cases cited from the Hale MSS. in Lincoln's Inn, 1 Shower at pp. 118-9; cp. Y. B. 39 Hy. VI Hil. pl. 4 (p. 41)=Brook Ab. Surmise, pl. 3.