c. 42. but if evidence cient, justice commit the 11 & 12 VICT. under inquiry; but if, in the opinion of such justice or justices, such evidence is sufficient to put the accused party upon his trial for an indictable offence, or if the evidence given raise a strong or probable presumption considered suffi- of the guilt of such accused party, then such justice or justices shall, by his or their warrant (T. 1.), commit him to the common gaol or house of shall, by warrant, correction for the county, riding, division, liberty, city, borough, or place accused for trial. to which by law he may now be committed, or, in the case of an indictable offence committed on the high seas, or on land beyond the sea, to the common gaol of the county, riding, division, liberty, city, borough, or place within which such justice or justices shall have jurisdiction, to be there safely kept until he shall be thence delivered by due course of law, or admit him to bail as hereinbefore mentioned." (a) Regulations for conveying prisoners to gaol. As to payment Sect. 26. "And be it enacted, that the constable or any of the constables or other persons to whom the said warrant of commitment shall be directed shall convey such accused person therein named or described to the gaol or other prison mentioned in such warrant, and there deliver him, together with such warrant, to the gaoler, keeper, or governor of such gaol or prison, who shall thereupon give such constable or other person so delivering such prisoner into his custody a receipt (T. 2.) for such prisoner, setting forth the state and condition in which such prisoner was when he was delivered into the custody of such gaoler, keeper, or governor; and in all cases where such constable or other person shall be of costs convey- entitled to his costs or expenses for conveying such person to such prison ing prisoners to prison. as aforesaid, it shall be lawful for the justice or justices who shall have committed the accused party, or for any justice of the peace in and for the said county, riding, division, or other place of exclusive jurisdiction wherein the offence is alleged in the said warrant to have been committed, to ascertain the sum which ought to be paid to such constable or other person, for conveying such prisoner to such gaol or prison, and also the sum which should reasonably be allowed him for his expenses in returning, and thereupon such justice shall make an order (T. 2.) upon the treasurer of such county, riding, division, liberty, or place of exclusive (a) This section, if literally carried out, will be attended with consequences of a most serious and unlooked-for description. As the clause stands, the justices, upon determining whether or not the accused shall be discharged or committed for trial, are to act alone upon the evidence offered upon the part of the prosecution, the words being "that when all the evidence offered upon the part of the prosecution against the accused party shall have been heard" the justices may, if they are of opinion that it is not sufficient to put him upon his trial, order him to be discharged; but if in their opinion such evidence is sufficient to put him upon his trial or raises a strong or probable presumption of guilt, then they are to commit. It will matter not, therefore, that the accused can at the time, by the most indisputable testimony, disprove his guilt, or can explain by evidence of the most conclusive kind that the charge is groundless or malicious: the justices are to act alone upon the evidence for the prosecution. Let us suppose a case: a man is charged with robbery upon the strength of having in his possession part of the alleged stolen property; the accused says that he purchased it shortly before of a reputable tradesman (whom he produces) in the presence of other persons who are all present to prove the fact;-the tradesman being in a condition to prove that the article identified was a short time before sold by him to the prisoner, having himself purchased it of a party who offered it for sale in his shop: or suppose, in a case turning upon identity proved by one witness, the prisoner should allege that he has a number of witnesses who are present who can prove that long before, at, and after the time of the supposed offence, he was ill and in confinement in a hospital or gaol; or in numberless other cases in which a case of suspicion may be at once cleared up by positive evidence on the part of the accused; according to this section, the justices might well say "we have only to consider the evidence for the prosecution, and as that makes out a probable presumption of guilt, you must be committed for trial." It will, if this section is to be literally carried out, be idle for an accused ever to provide himself before the committing justice with evidence of his innocence, and yet how constantly is it retorted upon a witness for a prisoner upon his trial that he never went before the justice with the evidence which he afterwards gave in court. This section is certainly a most embarrassing one for justices, and may well have been altogether omitted, and have left them to have pursued their course in these particulars as heretofore. c. 42. jurisdiction, or if such place of exclusive jurisdiction shall be contributory 11 & 12 VICT. to the county rate of any county, riding, or division, then upon the treasurer of such county, riding, or division respectively, or, in the county of Middlesex, upon the overseers of the poor of the parish or place within which the offence is alleged to have been committed, for payment to such constable or other person of the sums so ascertained to be payable to him in that behalf; and the said treasurer or overseers, upon such order being produced to him or them respectively, shall pay the amount thereof to such constable or other person producing the same, or to any person who shall present the same to him or them for payment: provided, nevertheless, that if it shall appear to the justice or justices by whom any such warrant of commitment against such prisoner shall be granted as aforesaid that such prisoner hath money sufficient to pay the expenses, or some part thereof, of conveying him to such gaol or prison, it shall be lawful for such justice or justices, in his or their discretion, to order such money or a sufficient part thereof to be applied to such purpose." (a) tions are com Sect. 27. "And be it enacted, that at any time after all the examina- After examinations aforesaid shall have been completed, and before the first day of the pleted defendant assizes or sessions or other first sitting of the court at which any person entitled to copies of the depositions so committed to prison or admitted to bail as aforesaid is to be tried, such person may require and shall be entitled to have, of and from the officer or person having the custody of the same, copies of the depositions on which he shall have been committed or bailed, on payment of a reasonable sum for the same, not exceeding at the rate of three half-pence for each folio of ninety words.” (b) (a) This section was evidently intended as a substitution for the 3 Jac. 1, c. 10, s. 1, and the 27 Geo. 2, c. 2, s. 1, the first of which, on the default of the prisoner to defray the costs of his commitment, empowers the justices to issue their warrant to sell his goods, &c., but as this act is not expressly repealed, it may be doubtful whether it is so inconsistent with the present act as to be repealed by the general repealing provision at the conclusion of sect. 34. (b) A most remarkable and unfortunate oversight has been committed by the framer of this clause, which is intended as a substitution of so much of the 6 & 7 Will. 4, c. 114, as relates to the right of parties charged with offences to have copies of the depositions or examinations against them, and which portion of the act is repealed by sect. 34. By the 3rd section of the 6 & 7 Will. 4, c. 114 (the Prisoners' Counsel Act), it is enacted that "all persons who after the passing of the act shall be held to bail or committed to prison for any offence against the law, shall be entitled to require and have on demand (from the person who shall have the lawful custody thereof, and who is thereby required to deliver the same) copies of the examination of the witnesses respectively upon whose depositions they have been so held to bail or committed to prison, on payment of a reasonable sum for the same, not exceeding three half-pence for each folio of ninety words," &c. This enactment, therefore, applied to all cases in which a prisoner was committed for trial and included depositions taken before a coroner on a charge of murder or manslaughter; but the clause now under consideration applies only to "the examinations aforesaid," namely, to examinations taken by a justice of the peace as provided for by this act, and a prisoner, therefore, committed by the coroner, is now wholly deprived of his right to a copy of the depositions as taken by that functionary, and is thus unable, except by favour (and at any price to be put upon them by the coroner), to obtain a copy of the examinations of the witnesses in those cases in which, of all others, it is of importance he should have it. It was to have been hoped that the present act would have supplied a deficiency in the Prisoners' Counsel Act, which in many cases has operated with extreme hardship upon prisoners when put upon their trial, namely, the absence of any obligation to furnish with the depositions a copy of the prisoner's statement. The act speaks only of "copies of the depositions," and when, therefore, the accused has made a statement before the justices a copy of such statement need not be given. It very frequently occurs that almost the entire case against the prisoner rests upon such statement, and although true it is that the accused knows what it is that he has stated, it should be remembered that the object of giving him the evidence taken before the justices is to enable him the better to meet the accusation upon his trial, and that inasmuch as the prisoner may have no professional adviser at the preliminary examination, or such adviser may be excluded, and the accused may immediately after such hearing be removed very many miles away from the scene of the charge and the abode of his friends by whom his defence may be prepared, and who consequently might know 11 & 12 VICT. c. 42. Forms in schedule deemed valid. Metropolitan police magis trates and stipen in other places may act alone. Sect. 28. "And be it enacted, that the several forms in the schedule to this act contained, or forms to the same or the like effect, shall be deemed good, valid, and sufficient in law." Sect. 29. "And be it enacted, that any one of the magistrates appointed or hereafter to be appointed to act at any of the police courts of the metropolis, and sitting at a police court within the metropolitan police district, and every stipendiary magistrate appointed or to be appointed for diary magistrates any other city, town, liberty, borough, or place, and sitting at a police court or other place appointed in that behalf, shall have full power to do alone whatsoever is authorized by this act to be done by any one or more justice or justices of the peace; and that the several forms in the schedule to this act contained may be varied, so far as it may be necessary to render them applicable to the police courts aforesaid, or to the court or other place of sitting of such stipendiary magistrate; and that nothing in this act contained shall alter or affect in any manner whatsoever any of the powers, provisions, or enactments contained in an act passed in the tenth year of the reign of His late Majesty King George the Fourth, intiNothing to affect tuled An Act for improving the Police in and near the Metropolis,' or in contained in an act passed in the third year of the reign of Her present Majesty, inti10 Geo. 4, c. 44; tuled, An Act for further improving the Police in and near the Metro2 & 3 Vict. c. 47; polis, or in an act passed in the same year of the reign of Her present and Majesty, intituled An Act for regulating the Police Courts of the Metro3 & 4 Vict. c. 84. polis,' or in an act passed in the fourth year of the reign of Her present Majesty, intituled An Act for better defining the Powers of Justices within the Metropolitan Police District."" powers, &c., 2 & 3 Vict. c. 71; The Lord Mayor, or any alderman of London, may act alone. Sect. 30. "And be it enacted that it shall be lawful for the Lord Mayor of the City of London, or for any alderman of the said city for the time being, sitting at the Mansion House or Guildhall justice rooms in the said city, to do alone any act, at either of the said justice rooms, which by any law now in force, or by any law not containing an express enactment to the contrary hereafter to be made, is or shall be directed to be done Nothing to affect by more than one justice; and that nothing in this act contained shall alter or affect in any manner whatsoever any of the powers, provisions, or enactments contained in an act passed in the third year of the reign of Her present Majesty, intituled 'An Act for regulating the Police in the City of London."" powers, &c., contained in 2 & 3 Vict. c. 94. Sect. 31. "And be it enacted, that the chief magistrate of the metropolitan police court at Bow-street for the time being shall be a justice of the peace of and for the county of Berks, if his name be inserted in the commission of the peace for that county, without possessing the qualification by estate required by law in that behalf, and without taking any oath of qualification." Sect. 32. "And be it enacted, that the town of Berwick-upon-Tweed shall be deemed to be within England for all the purposes of this act, but nothing in this act shall be deemed or taken to extend to Scotland or Ireland, or to the Isles of Man, Jersey, or Guernsey, save and except the several provisions respectively hereinbefore contained respecting the backing of warrants, and also nothing in this act shall be deemed to alter or affect the jurisdiction or practice of Her Majesty's Court of Queen's Bench." nothing of the existence, purport, or effect of any such statement, which might, perhaps, require explanation or elucidation, and of the legal effect of which an untutored man may be in ignorance, it would have been but an act of common fairness to have required that, together with the depositions, a copy of the prisoner's statement should also be given. As, however, there is nothing which prohibits the statement from being given, and it is clearly the policy of the enactment that the prisoner should be put into possession of all the evidence that has been taken and is to be used against him, it will be well for justices to consider whether or not impartial justice does not recognize the propriety of supplying a copy of the statement of the accused, together with that of the depositions. It will be observed that this section makes no provision for furnishing the prosecutor with a copy of the depositions. Sect. 33. "And be it enacted, that this act shall commence and take 11 & 12 VICT. effect on the second day of October in the year of our Lord one thousand eight hundred and forty-eight." c. 42. Commencement Sect. 34. "And be it enacted, that the following statutes and parts of Act. of statutes shall from and after the day on which this act shall commence After commenceand take effect be and the same are hereby repealed; (that is to say,) a ment of this Act certain act of Parliament made and passed in the thirteenth year of the the following reign of His late Majesty King George the Third, intituled An Act Acts and parts of Acts repealed. for the more effectual Execution of Criminal Laws in the two parts of the 13 Geo. 3, c. 31. United Kingdom; and a certain other act made and passed in the twentyeighth year of the reign of His said late Majesty King George the Third, intituled An Act to enable Justices of the Peace to act as such in certain 28 Geo. 3, c. 49. Cases out of the Limits of the Counties in which they actually are;' and so much of a certain other act made and passed in the forty-fourth year 6 of the reign of His said Majesty King George the Third, intituled An 44 Geo. 3, c. 92. Act to render more easy the apprehending and bringing to trial offenders escaping from one part of the United Kingdom to the other, and also from one County to another,' as relates to the apprehension of offenders escaping from Ireland into England, or from England into Ireland, and to the backing of warrants against such offenders; and so much of a certain other act made and passed in the forty-fifth year of the reign of His said Majesty King George the Third, intituled An Act to amend two Acts 45 Geo. 3, c. 92. of the thirteenth and forty-fourth Years of His present Majesty, for the more effectual Execution of the Criminal Laws, and more easy apprehending and bringing to Trial Offenders escaping from one part of the United Kingdom to the other, and from one County to another,' as relates to the bailing of offenders escaping from Ireland into England, or from England into Ireland; and also a certain other Act made and passed in the fifty-fourth year of the reign of His said late Majesty King George the Third, intituled An Act for the more easy apprehending and trying of 54 Geo. 3, c. 186. Offenders escaping from one part of the United Kingdom to the other' and also a certain other Act made and passed in the first year of the reign of His late Majesty King George the Fourth, intituled 'An Act to 1 & 2 Geo. 4, amend an Act made in the twenty-eighth Year of the Reign of King c. 63. George the Third, intituled, 'An Act to enable Justices of the Peace to act as such in certain Cases out of the Limits of the Counties in which they actually are;' and so much of a certain other act made and passed in the third year of the reign of His said late Majesty King George the Fourth, intituled 'An Act for the more speedy Return and levying of Fines, 3 Geo. 4, c. 46. Penalties, and Forfeitures, and recognizances estreated,' as relates to the form of recognizances, and to the notice to be given to persons acknowledging the same; and so much of a certain other act made and passed in the seventh year of the reign of His said late Majesty King George the Fourth, intituled 'An Act to enable Commissioners for trying 7 Geo. 4, c. 38. Offences upon the Sea, and Justices of the Peace, to take Examinations touching such Offences, and to commit to safe custody Persons_charged therewith,' as relates to the taking of such examinations, and the commitment of persons so charged, by justices of the peace; and so much of a certain other act made and passed in the said seventh year of the reign of His said late Majesty King George the Fourth, intituled 'An Act 7 Geo. 4, c. 64. for improving the Administration of Criminal Justice in England,' as relates to the taking of bail in cases of felony, and to the taking of the examinations and informations against persons charged with felonies and misdemeanors, and binding persons by recognizance to prosecute or give evidence; and so much of a certain act made and passed in the sixth year of the reign of His late Majesty King William the Fourth, intituled 'An Act for preventing the vexatious Removal of Indictments into 5 & 6 Will. 4, the Court of King's Bench, and for extending the Provisions of an Act c. 33. of the Fifth Year of King William and Queen Mary, for preventing Delays at the Quarter Sessions of the Peace, to other Indictments, and for extending the Provisions of an Act of the Seventh Year of King George 11 & 12 VICT. [me], it is hereupon duly proved to [me] upon oath that the said A. B. is the same c. 42. person who is named and charged in and by the said indictment: These are therefore to command you the said constable, in Her Majesty's name, forthwith to take and safely convey the said A. B. to the said [house of correction] at in the said [county], and there to deliver him to the keeper thereof, together with this precept; and I hereby command you the said keeper to receive the said A. B. into your custody in the said house of correction, and him there safely to keep until he shall be thence delivered by due course of law. in the year of our Lord at Given under my hand and seal, this day of (I.) J. S. (L.S.) Warrant to detain a Person indicted who is already in Custody for another Offence. To the keeper of the [common gaol, or house of correction,] at in the said [county] of WHEREAS it hath been duly certified by J. D., clerk of the indictments on the circuit [or clerk of the peace of and for the county of ], that [&c., stating the certificate: And whereas [I am] informed that the said A. B. is in your custody in the said [common gaol] at aforesaid, charged with some offence or other matter; and it being now duly proved upon oath before [me] that the said A. B. so indicted as aforesaid, and the said A. B. in your custody as aforesaid, are one and the same person: These are therefore to command you, in Her Majesty's name, to detain the said A. B. in your custody in the [common gaol] aforesaid until by Her Majesty's writ of habeas corpus he shall be removed therefrom for the purpose of being tried upon the said indictment, or until he shall otherwise be removed or discharged out of your custody by due course of law. Given under my hand and seal, this day of at in the [county] aforesaid. Lord (K.) Indorsement in backing a Warrant. in the year of our J. S. (L.S.) that the WHEREAS proof upon oath hath this day been made before me, one of to wit. Her Majesty's justices of the peace for the said [county] of name of J. S., to the within warrant subscribed, is of the handwriting of the justice of the peace within mentioned; I do therefore hereby authorize W. T., who bringeth to me this warrant, and all other persons to whom this warrant was originally directed, or by whom it may lawfully be executed, and also all constables and other peace officers of the said [county] of to execute the same within the said last-mentioned [county], and to bring the said A. B., if apprehended within the same [county], before me, or before some other justice or justices of the peace of the same county, to be dealt with according to law. Given under my hand, this day of 184 J. L. *The words following this asterisk are to be used only where the justice backing the warrant shall think fit, and may be omitted in backing English warrants in Ireland, Scotland, &c. or in backing Irish or Scotch warrants, &c. in England. WHEREAS information hath been laid before the undersigned, [one] of Her Majesty's justices of the peace in and for the said [county] of that A. B [&c., as in the summons or warrant against the accused], and it hath been made to appear to me upon [path] that you are likely to give material evidence for the [prosecution] : These are therefore to require you to be and to appear before me on next at o'clock in the forenoon at or before such other justice or justices of the peace for the same county as may then be there, to testify what you shall know concerning the said charge so made against the said A. B. as aforesaid. Herein fail not. Given under my hand and seal, this at in the [county] aforesaid. day of in the year of our Lord J. S. (L.S.) |