Until the mitigation of the draconic severity of the English law in the early part of the 19th century, little or no power existed of amending defective statements or indictments, and the courts in favorem vitae insisted strictly on accurate pleading and on proof of the offences exactly as charged. Since 1827 numerous enactments have been passed for getting rid of these technicalities, which led to undeserved acquittals, and since 1851 the courts have had power to disregard technical objections to the form of indictment and to amend in matters not essential in case of variance between the indictment and the evidence. These changes apply to ordinary offences; but for the most part do not touch charges of treason, as to which the old law in the main still applies. At the present time the looseness of pleading in criminal cases is carried almost too far; for while there is no danger in such looseness when times are quiet and when law is administered by the judges of the High Court in England, yet when crimes of a certain character are committed in times of great political excitement and the law is administered by an inferior judiciary, there may be some danger of injustice if the strictness of pleading and procedure is too much relaxed. In the Criminal Code drafted by Sir James Fitz James Stephen and revised by a judicial commission (Lord Blackburn and Lords Justices Lush and Barry), it was proposed to substitute for the old form of indictment a statement of the particulars of the offence with a reference to the section of the code defining the offence.
The law of Ireland as to indictments is in substance the same as that of England; but is to a certain extent expressed in different statutes.
In Scotland the terms indictment or criminal letters are used to express the acte d’accusation. But except in the case of high treason there is no grand jury, and the indictment is filed like an English criminal information by the lord advocate or one of his deputies: and it is only by order of the court of justiciary that a prosecution can be instituted without the general or particular assent of the lord advocate. By the Criminal Procedure Scotland Act 1887 the form of Scots indictments is much simplified. They are drawn in the second and not in the third person.
In those of the British colonies in which by settlement or statute the English criminal law runs, the form of indictment is substantially the same, and is found by a grand jury as in England. But in certain colonies, e.g. the Australian states, an indictment by a public officer without the intervention of a grand jury has been adopted. In India and British Asiatic possessions the procedure is regulated by the Indian Procedure Code or its adaptations. In South Africa indictments are framed under Roman Dutch law as modified by local legislation.
In the United States prosecution or indictment by a grand jury is the rule: the form of indictment is the same, substituting the state or commonwealth of the United States for references to the king, and the conclusions “against the form of the statute” and “against the peace” are still in use.
(W. F. C.)
“INDIES, LAWS OF THE,” in the colonial history of Spain, a general term designative either (1) of certain codifications of legislation for the colonies listed below, and especially the compilation of 1680; or (2) of the whole body of colonial law, of which those compilations were but a selection, and which was made up of a multitude of royal cédulas, orders, letters, ordinances, provisions, instructions, autos, dispatches, pragmatics and laws—all emanating from the crown (or crown and cortes) and all of equal force—that were passed through various departments of government to various officers and branches of the colonial administration, or between the different departments of government in Spain. The transfer of Spanish law to Ultramar began with the first days of the Conquest; and especially the civil law was translated with comparatively slight alteration. Many things, however, peculiar to colonial conditions—the special relations of the crown and the papacy in America, the repartimientos and encomiendas (“divisions of lands” and “commendations,” a system of patronage, or modified slavery) of the Indians, the development of African slavery, questions of natural and international law, the spread of discovery and establishment of new settlements and administrative areas, the sales and grants of public lands, the working of the mines—necessitated the organization of a great mass of special law, made up of a body of general doctrine and a vast quantity of administrative applications, la matéria de Indias—to which references are already found in the time of Ferdinand. The general doctrine was applicable everywhere in Ultramar, and the difficult and inconstant communication between the provinces, and other considerations, early counselled some work of codification. The first efforts to this end were begun in Mexico in 1525; a volume was published in 1563, and other inadequate compilations in 1596 and 1628, and finally the great Recopilación de Leyes de las Reinos de las Indias of 1680. This code has enjoyed great fame, and in some ways even extravagant praise. The greatest praise that has been given it is that its dominant spirit through and through is not the mercantile aim but the political aim—the principle of civilization; and this praise it deserves. It had various defects, however, of an administrative nature; and as time passed its basic doctrines—especially its minute administrative strangulation of colonial political life, and its monopolistic economic principles—became fatally opposed to conditions and tendencies in the colonies. Two centuries in formation, the code of 1680—continually altered by supplementary interpretation and application—was only one century in effect; for in the seventeen-sixties Charles III. began, in a series of liberal decrees, to break down the monopolistic principles of colonial commerce. This change came too late to save the mainland colonies in America, but its remarkable effects were quickly seen in the aggrandizement of Cuba. It is in the history of this colony (as also in Porto Rico and the Philippines) that one must follow the later history of the Laws of the Indies (see [Cuba]).
Of the Recopilación of 1680, five editions were issued by the government, the last in 1841 (Madrid, 4 vols.); and there are later, private editions approved by the government. See also J. M. Zomora y Coronado, Biblioteca de legislacion Ultramarina (Madrid, 1844-1849, 6 vols., with appendices often bound as vol. 7); J. Rodriguez San Pedro, Legislacion Ultramarina concordada, covering 1837-1868 (12 vols., Madrid, 1865-1868, vols. 10-12 being a supplement); the Boletin oficial del Ministerio de Ultramar, covering 1869-1879; and M. Fernandez Martin, Compilacion legislativa del gobierno y administracion civil de Ultramar (Madrid, 1886-1894); the gap of 1879-1886 can be filled for Cuba by the series of Reales Ordenes ... publicadas en la Gaceta de la Habana (annual, Havana, 1857-1898, covering 1854-1898).