Sect. 19. "And be it declared and enacted, that the room or building in 11 & 12 VICT. which such justice or justices shall take such examinations and statement

c. 42.

as aforesaid shall not be deemed an open court for that purpose; and Place where exait shall be lawful for such justice or justices, in his or their discretion, to mination taken order that no person shall have access to or be or remain in such room or not to be deemed building without the consent or permission of such justice or justices, if it an open court, and no person to appear to him or them that the ends of justice will be best answered by so remain without doing." (a)

consent.

prosecutors and

Sect. 20. "And be it enacted, that it shall be lawful for the justice or Power to justice justices before whom any such witness shall be examined as aforesaid to to bind over the bind by recognizance (Ŏ. 1.) the prosecutor and every such witness to witnesses by appear at the next court of oyer and terminer or gaol delivery, or superior recognizance. court of a county palatine, or court of general or quarter sessions of the peace, at which the accused is to be tried, then and there to prosecute, or to prosecute and give evidence, or to give evidence, as the case may be, against the party accused, which said recognizance shall particularly specify the profession, art, mystery, or trade of every such person entering into or acknowledging the same, together with his Christian and surname, and the parish, township, or place of his residence, and if his residence be in a city, town, or borough, the recognizance shall also particularly specify the name of the street, and the number (if any) of the house in which he resides, and whether he is owner or tenant thereof or a lodger therein; and the said recognizance being duly acknowledged by the person so entering into the same, shall be subscribed by the justice or justices before whom the same shall be acknowledged, and a notice (O. 2.) thereof signed by the said justice or justices, shall at the same time be given to the person bound thereby; and the several recognizances so taken, Recognizance, together with the written information (if any), the depositions, the state- depositions, &c. ment of the accused, and the recognizance of bail (if any), in every such to the court in case shall be delivered by the said justice or justices, or he or they shall which the trial is cause the same to be delivered to the proper officer of the court in which to be had. the trial is to be had, before or at the opening of the said court on the first day of the sitting thereof, or at such other time as the judge, recorder,

whatever you say will be taken down in writing, and may be given in evidence against you upon your trial. And you are also clearly to understand that you have nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to you, to induce you to make any admission or confession of your guilt, but whatever you shall now say may be given in evidence against you upon your trial, notwithstanding such promise or threat."

(a) This is merely a re-enactment of the old law, rendered, however, somewhat doubtful, from certain expressions contained in the 17th clause as to the proof that the accused or his counsel or attorney had a full opportunity of cross-examining the witnesses, and it may admit of some question, whether, taking this section in connexion with the 17th, it was really intended to empower the justices to exclude the counsel and attorney of the prisoner. Under the old law, it was by favour alone that an accused could have the assistance of a professional adviser in preliminary investigations before committal for trial: the Prisoner's Counsel Act, 6 & 7 Will. 4, c. 114, giving the right to such assistance only in cases of summary convictions; and as the present act does not by any express enactment give a right to such assistance in the cases within its purview, the words in section 17, referring to counsel or attorney, would seem to refer only to cases in which the justices have permitted their assistance to the prisoner, and not to any recognized right to their assistance. That this should be, is a grievous reproach to our criminal law, and is perhaps the blackest stain now remaining upon its character, for when it is considered that the depositions of the witnesses as taken before the committing magistrates may, upon the death of such witnesses or their inability through illness to attend the trial, be read in evidence against the accused, who consequently at that time is precluded from all benefit of crossexamination, and this too in cases even of the highest magnitude, the right to deprive him of legal assistance before the justices, when the depositions are taken, savours very much of cruelty, if not of positive barbarity. As, however, the exclusion of the professional advisers of the accused is merely discretionary with the justices, it is to be hoped that they will on all occasions feel that public justice never really can or ought to be promoted at the expense of that justice which common humanity and fairness teach us is due to individuals.

to be transmitted

C. 42.

Witnesses refusing to enter into recognizances may be committed.

11 & 12 VICT. or justice who is to preside in such court at the said trial shall order and appoint provided always, that if any such witness shall refuse to enter into or acknowledge such recognizance as aforesaid, it shall be lawful for such justice or justices of the peace, by his or their warrant (P. 1.), to commit him to the common gaol or house of correction for the county, riding, division, liberty, city, borough, or place in which the accused party is to be tried, there to be imprisoned and safely kept until after the trial of such accused party, unless in the meantime such witness shall duly enter into such recognizance as aforesaid before some one justice of the peace for the county, riding, division, liberty, city, borough, or place in which such gaol or house of correction shall be situate: provided nevertheless, that if afterwards, from want of sufficient evidence in that behalf or other cause, the justice or justices before whom such accused party shall have been brought shall not commit him or hold him to bail for the offence with which he is charged, it shall be lawful for such justice or justices, or any other justice or justices of the same county, riding, division, liberty, city, borough, or place, by his or their order (P. 2.) in that behalf, to order and direct the keeper of such common gaol or house of correction where such witness shall be so in custody to discharge him from the same, and such keeper shall thereupon forthwith discharge him accordingly."

Power to justice to remand the accused from

If remand be for three days only,

by verbal order.

Sect. 21. "And be it enacted, that if, from the absence of witnesses, or from any other reasonable cause, it shall become necessary or adtime to time, not visable to defer the examination or further examination of the witnesses exceeding eight for any time, it shall be lawful to and for the justice or justices before days, by warrant. whom the accused shall appear or be brought, by his or their warrant (Q. 1.), from time to time to remand the party accused for such time as by such justice or justices in their discretion shall be deemed reasonable, not exceeding eight clear days, to the common gaol or house of correction, or other prison, lock-up house, or place of security in the county, riding, division, liberty, city, borough, or place for which such justice or justices shall then be acting; or if the remand be for a time not exceeding three clear days it shall be lawful for such justice or justices verbally to order the constable or other person in whose custody such party accused may then be, or any other constable or person to be named by the said justice or justices in that behalf, to continue or keep such party accused in his custody, and to bring him before the same or such other justice or justices as shall be there acting at the time appointed for continuing such examination: provided always, that any such justice or justices may order such accused party to be brought before him or them, or before any other justice or justices of the peace for the same county, riding, division, liberty, city, borough, or place, at any time before the expiration of the time for which such accused party shall be so remanded, and the gaoler or officer in whose custody he shall then be shall duly obey such order: provided also, that, instead of detaining the accused party in custody during the period for which he shall be so remanded, any one justice of the peace before whom such accused party shall so appear or be brought as aforesaid may discharge him, upon his entering into a recognizance (Q. 2, 3.), with or without a surety or sureties, at the discretion of such justice, conditioned for his appearance at the time and place appointed for the continuance of such examination; and if such accused party shall not afterwards appear at the time and place mentioned in such recognizance, then the said justice, or any other justice of the peace who may then and there be present, upon certifying (Q. 4.) on the back of the recognizance the nonappearance of such accused party, may transmit such recognizance to the clerk of the peace of the county, riding, division, liberty, city, borough, or place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient primâ facie evidence of such nonappearance of the said accused party."

Party accused

may be admitted

to bail, on the examination

being adjourned.

If party does not appear upon retice may transmit the same to the

cognizance, jus

clerk of the peace.

offence com

he be

Sect. 22. "And whereas it often happens that a person is charged 11 & 12 VICT. before a justice of the peace with an offence alleged to have been com- C. 42. mitted in another county or place than that in which such person has If a person be been apprehended or in which such justice has jurisdiction, and it is apprehended in necessary to make provision as to the manner of taking the examinations one county on of the witnesses, and of committing the party accused, or admitting him charge of an to bail, in such a case; be it therefore enacted, that whenever a person mitted in another, shall appear or shall be brought before a justice or justices of the peace examined in the in the county, riding, division, liberty, city, borough, or place wherein former; such justice or justices shall have jurisdiction, charged with an offence alleged to have been committed by him in any county or place within England or Wales wherein such justice or justices shall not have jurisdiction, it shall be lawful for such justice or justices and he and they are hereby required to examine such witnesses, and receive such evidence in proof of such charge as shall be produced before him or them, within his or their jurisdiction; and if in his or their opinion such testimony and if evidence and evidence shall be sufficient proof of the charge made against such be deemed suffiaccused party, such justice or justices shall thereupon commit him committed to to the common gaol or house of correction for the county, riding, prison. division, liberty, city, borough, or place where the offence is alleged to have been committed, or shall admit him to bail, as hereinafter mentioned, and shall bind over the prosecutor (if he have appeared before him or them) and the witnesses by recognizance accordingly, as

cient may be

be brought before some justice in

is hereinbefore mentioned; but if such testimony and evidence shall If insufficient to not in the opinion of such justice or justices be sufficient to put the accused party upon his trial for the offence with which he is so charged, the latter county. then such justice or justices shall bind over such witnesses as he shall have examined, by recognizance, to give evidence, as herein before is mentioned, and such justice or justices shall, by warrant (R. 1.) under his or their hand and seal or hands and seals, order such accused party to be taken before some justice or justices of the peace in and for the county, riding, division, liberty, city, borough, or place where and near unto the place where the offence is alleged to have been committed, and shall at the same time deliver the information and complaint, and also the depositions and recognizances so taken by him or them, to the constable who shall have the execution of such last-mentioned warrant, to be by him delivered to the justice or justices before whom he shall take the accused in obedience to the said warrant, and which said depositions and recognizances shall be deemed to be taken in the case, and shall be treated to all intents and purposes as if they had been taken by or before the said last-mentioned justice or justices, and shall, together with such depositions and recognizances as such last-mentioned justice or justices shall take in the matter of such charge against the said accused party, be transmitted to the clerk of the court where the said accused party is to be tried, in the manner and at the time hereinbefore mentioned, if such accused party shall be committed for trial upon the said charge, or shall be admitted to bail; and in case such accused party As to payment shall be taken before the justice or justices last aforesaid by virtue of the of expenses of conveying the said last-mentioned warrant, the constable or other person or persons to accused into the whom the said warrant shall have been directed, and who shall have proper county, conveyed such accused party before such last-mentioned justice or justices, shall be entitled to be paid his costs and expenses of conveying the said accused party before the said justice or justices; and upon the said constable or other person producing the said accused party before such justice or justices, and delivering him into the custody of such party as the said justice or justices shall direct or name in that behalf, and upon the said constable delivering to the said justice or justices the warrant, information (if any), depositions, and recognizances aforesaid, and proving by oath the handwriting of the justice or justices who shall have subscribed the same, such justice or justices to whom the said accused party is so produced shall thereupon forthwith ascertain the sum

&c.

C. 42.

11 & 12 VICT. which ought to be paid to such constable or other person for conveying such accused party and taking him before such justice or justices, as also his reasonable costs and expenses of returning, and thereupon such justice or justices shall make an order (R. 2.) upon the treasurer of the county, riding, division, or liberty, city, borough, or place, or if such city, borough, or place shall be contributory to the county rate of any county, riding, division, or liberty, then upon the treasurer of such county, riding, division, or liberty respectively to which it is contributory, for payment to such constable or other person of the sum so ascertained to be payable to him in that behalf, and the said treasurer, upon such order being produced to him, shall pay the amount to the said constable or other person producing the same, or to any person who shall present the same to him for payment: provided always, that if such lastmentioned justice or justices shall not think the evidence against such accused party sufficient to put him upon his trial, and shall discharge him without holding him to bail, every such recognizance so taken by the said first-mentioned justice or justices as aforesaid shall be null and void."

Power to justice to admit to bail

persons charged with felony and

certain misdemeanors.

Justices may

Sect. 23. "And be it enacted, that where any person shall appear or be brought before a justice of the peace charged with any felony, or with any assault with intent to commit any felony, or with any attempt to commit any felony, or with obtaining or attempting to obtain property by false pretences, or with a misdemeanor in receiving property stolen or obtained by false pretences, or with perjury or subornation of perjury, or with concealing the birth of a child by secret burying or otherwise, or with wilful or indecent exposure of the person, or with riot, or with assault in pursuance of a conspiracy to raise wages, or assault upon a peace officer in the execution of his duty, or upon any person acting in his aid, or with neglect or breach of duty as a peace officer, or with any misdemeanor for the prosecution of which the costs may be allowed out of the county rate, such justice of the peace may, in his discretion, admit such person to bail, upon his procuring and producing such surety or sureties as in the opinion of such justice will be sufficient to ensure the appearance of such accused person at the time and place when and where he is to be tried for such offence; and thereupon such justice shall take the recognizance (S. 1, 2.) of the said accused person and his surety or sureties, conditioned for the appearance of such accused person at the time and place of trial, and that he will then surrender and take his trial, and not admit to bail in depart the court without leave; and in all cases where a person charged with any indictable offence shall be committed to prison to take his trial for the same, it shall be lawful, at any time afterwards, and before the first day of the sitting or session at which he is to be tried, or before the day to which such sitting or session may be adjourned, for the justice or justices of the peace who shall have signed the warrant for his commitment, in his or their discretion, to admit such accused person to bail in manner aforesaid; or if such committing justice or justices shall be of opinion that for any of the offences herein before mentioned the said accused person ought to be admitted to bail, he or they shall in such cases, and in all other cases of misdemeanors, certify (S. 3.) on the back of the warrant of commitment his or their consent to such accused party being bailed, stating also the amount of bail which ought to be required, it shall be lawful for any justice of the peace, attending or being at the gaol or prison where such accused party shall be in custody, on production of such certificate, to admit such accused person to bail in manner aforesaid; or if it shall be inconvenient for the surety or sureties in such a case to attend at such gaol or prison to join with such accused person in the recognizance of bail, then such committing justice or justices may make duplicate of such certificate (S. 4.) as aforesaid, and upon the same being produced to any justice of the peace for the same county, riding, division, liberty, city, borough, or place, it shall be lawful for such last-mentioned justice to take the recognizance of

the like cases after commit

ment for trial.

C. 42.

admit to bail

the surety or sureties in conformity with such certificate, and upon such 11 & 12 VICT. recognizance being transmitted to the keeper of such gaol or prison, and produced together with the certificate on the warrant of commitment as aforesaid to any justice of the peace attending or being at such gaol or prison, it shall be lawful for such last-mentioned justice thereupon to take the recognizance of such accused party, and to order him to be discharged out of custody as to that commitment, as hereinafter mentioned; and where any person shall be charged before any justice of the peace with Justice may any indictable misdemeanor other than those hereinbefore mentioned, 2 persons charged such justice, after taking the examinations in writing as aforesaid, instead with other misdeof committing him to prison for such offence, shall admit him to bail in meanors. manner aforesaid, or if he have been committed to prison, and shall apply to any one of the visiting justices of such prison, or to any other justice of the peace for the same county, riding, division, liberty, city, borough, or place, before the first day of the sitting or session at which he is to be tried, or before the day to which such sitting or session may be adjourned, to be admitted to bail, such justice shall accordingly admit him to bail in manner aforesaid; and in all cases where such accused person in Certain recognicustody shall be admitted to bail by a justice of the peace other than the zance to be transcommitting justice or justices as aforesaid, such justice of the peace so mitting justices. admitting him to bail shall forthwith transmit the recognizance or recognizances of bail to the committing justice or justices, or one of them, to be by him or them transmitted, with the examinations, to the proper officer: provided nevertheless, that no justice or justices of the peace No bail in cases shall admit any person to bail for treason, nor shall such person be ad- of treason, but mitted to bail, except by order of one of Her Majesty's Secretaries of by order of SecreState, or by Her Majesty's Court of Queen's Bench at Westminster, or a judge thereof in vacation: provided also, that when, in cases of misdemeanor, the defendant shall be entitled to a traverse at the next Assizes Where defendant or Quarter Sessions, and shall not be bound to take his trial until the entitled to second assizes or sessions, in every such case the recognizance (S. 1.) of bail shall be conditioned that he shall appear and plead at the next assizes or sessions, and then traverse the indictment, and that he shall surrender and take his trial at such second assizes or sessions, unless such accused party shall, before he enter into such recognizance, choose and consent to take his trial at such first assizes or sessions, in which case the recognizance may be in the ordinary form hereinbefore mentioned." (a)

mitted to com

tary of State, &c.

traverse.

to bail after com

shall be sent to

Sect. 24. "And be it enacted, that in all cases where a justice or When justice justices of the peace shall admit to bail any person who shall then be in admits a person any prison charged with the offence for which he shall be so admitted to mitment a writ bail, such justice or justices shall send to or cause to be lodged with the of deliverance keeper of such prison a warrant of deliverance (S. 5.) under his or their him, if not dehand and seal or hands and seals, requiring the said keeper to discharge tained for any the said person so admitted to bail, if he be detained for no other offence, other offence. and upon such warrant of deliverance being delivered to or lodged with such keeper he shall forthwith obey the same."

the accused, it is

Sect. 25. "And be it enacted, that when all the evidence offered upon If, after hearing the part of the prosecution against the accused party shall have been evidence against heard, if the justice or justices of the peace then present shall be of opinion not thought sufthat it is not sufficient to put such accused party upon his trial for any ficient to warrant indictable offence, such justice or justices shall forthwith order such shall be accused party, if in custody, to be discharged as to the information then discharged;

(a) This section effects some important alterations in reference to bailing prisoners. Under the old law, in all cases of felony, it was discretionary with the justices to take or refuse bail; but if they decided upon taking it, it must have been taken by two justices at least, one justice alone having no power to bail for felony, whilst in all cases of misdemeanor (with very few exceptions) the justices had no discretion, but were bound, if substantial sureties were offered, to admit the accused to bail: (3 Edw. 1, c. 15; Reg. v. Badger, 4 Q. B. 468.) By the present enactment, however, one justice alone can admit to bail in all felonies; and in certain specified misdemeanors, a discretion is given to them as to admitting to bail.

D

commitment