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And, first, to refuse or delay to bail any person bailable is an offence against the liberty of the subject in any magistrate, by the common law,(d) as well as by the statute Westm. 1, 3 Edw. I. c. 15, and the habeas corpus act, 31 Car. II. c. 2. And, lest the intention of the law should be frustrated by the justice's requiring bail to a greater amount than the nature of the case demands, it is expressly declared, by statute 1 W. and M. st. 2, c. 1, that excessive bail ought not to be required; though what bail should be called excessive must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail he is liable to be fined if the criminal.doth not appear.(e) Bail may be taken either in court, or in some particular cases by the sheriff,} coroner, or other magistrate, but most *298]

usually by the justices of the peace. Regularly, in all offences, either

against the common *law or act of parliament, that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament.(f) In order, therefore, more precisely to ascertain what offences are bailable,

Let us next see who may not be admitted to bail, or what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute from prisoners convicted of particular offences; for then such imprisonment without bail is part of their sentence and punishment. But where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away wherever the offence is of a very enormous nature; for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused, in order to insure that justice shall be done upon him if guilty. Such persons therefore, as the author of the Mirror observes,(g) have no other sureties but the four walls of the prison. By the antient common law, before(h) and since(i) the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. 1, 3 Edw. I. c. 15 takes away the power of bailing in treason and in divers instances of felony. The statutes 23 Hen VI. c. 9 and 1 & 2 P. and M. c. 13 give further regulations in this matter ;1o and

(*) 2 Inst. 189.

In omnibus placitis de felonia solet accusatus per plegros dimitti, præter quam in placito de homicidio, ubi ad terrorem aliter statutum est. Glany. l. 14, c. 1.

(d) 2 Hawk. P. C. 90.
(®) Ibid. 89.
() 2 Hal. P. C. 127.
( C. 2, 2 24.

6 And even if the criminal does appear, yet if the bail were taken corruptly the magistrate would continue liable to an information or indictment, 2 T. R. 190.-CHITTY.

? Sed quære if a sheriff has this power? It seems not. See 4 T. R. 505. 2 H. Bla. 418. Lamb. 15.-CHITTY.

8 The court of King's Bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever, (see 3 East, 163. 5 T. R. 169;) but none can claim this benefit de jure. 2 Hale, 129. As to when this court will bail, see 1 Chitt. C. L. 2d ed. 98, 99,-Chitty.

• The 24 Geo. II. c. 55 enacts that where a warrant has been backed, and the .party accused has been taken out of the county where the supposed offence has been committed, any justice of the county where he was taken may, if the offence be bailable, take hail; and the same provision is extended to Ireland, by 44 Geo. III. c. 92, s. 1, and the 45 Geo. III. c. 92 and the 48 Geo. III. c. 58, s. 2 enact that where the offender escapes from one part of the United Kingdom to the other he may be bailed by any judge or justice of that part of the United Kingdom where he was apprehended, unless the judg who granted the warrant has written the words “not bailable” on the back of the process.—Chitty,

10 These statutes are all repealed, by the 7 Geo. IV. c. 64, by sect. 1 of which it is enacted" that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be sur ported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner thereinafter mentioned; but if there Phall be only one justice present, and the whole evidence given before him shall be such 18 neither to raise a strong presumption of guilt, nor to warrant the dismissal of the upon the whole we may collect(k) that no justice of the peace can bail, 1. Upon an accusation of treason; nor, 2. Of murder; nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him; nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another; 5. Persons outlawed; 6. Such as have abjured the realm; 7. *Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused ; 8. Persons taken [*299 with the mainour, or in the fact of felony; 9. Persons charged with arson; 10. Excommunicated persons, taken by writ de excommunicato capiendo : all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 11. Thieves openly defamed and known; 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and 13. Accessories to felony, that labour under the same want of reputation These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame charged with a bare suspicion of manslaughter or other inferior homicide; 15. Such persons being charged with petit larceny or any felony not before specified; or, 16. With being accessory to any felony. Lastly, it is agreed that the court(1) of king's bench (or any judge(m) thereof in time of vacation) may bail for any crime whatsoever, be it treason,(n) murder or any other offence, accordiñg to the circumstances of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice; and yet there are cases (though they rarely happen) in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either house of parliament, so long as the *session lasts; or such as are com

[*300 mitted for contempts by any of the king's superior courts of justice.(P)

Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law.(@u But this imprisonment, as has (%) 2 Inst. 186. 2 Hal. P. C. 129.

(*) In omnibus placitis de felonia solet accusatus per plegios 2 Inst. 189. Latch. 12. Vaugh. 157. Comb. 111, 298. dimitti, præterquam in placito de homicidio. Glanv. I. 14, c. 1 Comyns Dig. 495.

1. Sciendum tamen quod, in hoc placito, non solet accusatus (***) Skin. 683. Salk. 105. Stra. 911. 1 Comyns Dig. 497. per plegios dimitti, nisi ex regiæ potestatis beneficio. Ibid.

(*) In the reign of queen Elizabeth it was the unanimous opinion of the judges that no court could bail upon a com- (?) Staundf. P. C. 73, b. mitment for a charge of high treason by any of the queen's (9) 2 Hal. P. C. 122. privy council. 1 Anders. 298.

c. 3.

charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices, shall be charged with felony, or on suspicion of felony, and the evidence given in support of the charge shall in their opinion not be such as to raise a strong presumption of the guilt of the person charged and to require his or her committal, or such evidence shall be adduced on behalf of the person charged as shall in their opinion weaken the presumption of his or her guilt, but there shall notwithstanding appear to them in either of such cases to be sufficient ground for judicial inquiry into his or her guilt, the person charged shall be admitted to bail, by such two justices, in the manner thereinafter mentioned; provided always that nothing therein contained shall be construed to require any such justice or justices to hear evidence on behalf of any person so charged unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same.-Cutty.

11 This is not the form where the offence is bailable and the party cannot find bail: in that case it is to keep the prisoner in custody " for want of sureties, or until he shall be Jischarged by due course of law.” And where the commitment is in the nature of punishment, the time of imprisonment must be stated, and if it be until the party be discharged by due course of law it will be bad, (5 B. & A. 895;) but where in other respects the time of imprisonment is sufficiently stated, the unnecessary addition of the kords“ until he be discharged by due course of law” will not vitiate. 3 M. & S. 283

been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only; though what are so requisite must too often be left to the discretion of the gaolers, who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner unless where he was unruly or had attempted to escape ;(r) this being the humane language of our antient lawgivers :(8) "custodes pænam sibi commissorum non augeant, nec eos torqueant; sed omni sævitia remota, pietateque adhibita, judicia debite exequantur."

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

*301]

*The next step towards the punishment of offenders is their prosecu

tion, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment.

I. A presentment, generally taken, is a very comprehensive term, including not only presentments properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation,(a) without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment(b) before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer to inquire of matters relating to the crown upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands and the like;' and presentments of petty offences in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards

(T) 2 Inst. 381. 3 Inst. 34.
(") Flet. l. 1, c. 26.

(*) Lamb. Eirenarch. l. 4, c. 5.
O 2 Inst. 739.

And as to the form of the mittimus in general, see 1 Chitt. C. L. 109 to 116, 2d ed. -Chitty.

* It may here be useful briefly to consider the time when the prosecution should be commenced. The habeas corpus act provides that a person committed for treason or felony must be indicted in the ensuing term or sessions, or the party must be bailed, unless it be shown upon oath that the witnesses for the prosecution could not be produced at the preceding session. 31 Car. II. c. 2, s. 7. See, accordingly, 2 R. S. 737, % 28, &c. This regulation applies, however, only to persons actually confined upon suspicion, and is solely intended to prevent the protracting of arbitrary imprisonment; so that it does not preclude the crown from preferring an indictment at any distance of time from the actual perpetration of the offence, unless some particular statute limits the time of prosecuting.

There is no general statute of limitations applicable to criminal proceedings. 2 Hale, 158. Lieutenant-colonel Wall was tried ard executed for a murder committed twenty years before. And it has been repeatedly held that no length of time can legalize a public nuisance, although it may afford an answer to an action of a private individual. 7 East, 199; ante, 167, note 12.-Chitty.

2 But such an inquisition is now considered traversable. 1 Saund. 363, note 1. Impey's Off. Cor. 437.-Chitty. * There is some inaccuracy in this statement. An inquisition finding that a man was

traversed and examined; as particularly the coroner's *inquisition of the death of a man when it finds any one guilty of homicide;" for in such [*302 cases the offender so presented must be arraigned upon this inquisition and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.

II. An indictmentíc) is a written accusation of one or more persons of a crime or misdemeanour, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which on the part of our lord the king shall then and there be commanded them.(d) They ought to be freeholders, but to what amount is uncertain ;(e) which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain but are now settled by

(9) See Appendix, & 1.

(4) 2 Hal. P. C. 157.

(6) Ibid. 155.

felo de se cannot of course be traversed by the individual; but it may be removed into the king's bench by certiorari and then traversed by the executors or administrators of the deceased. Toomes vs. Etherington, 1 Saund. Rep. 363, n. (1), ed. 1824. As to the flight of persons accused of felony, I am not aware that this was ever made a substantive matter of inquiry distinct from the trial of the felony itself, (see post, 387;) and, as that trial could only be in the presence of the party accused, it was then the regular verdict of a jury after an open trial, and not a case in point. The coroner, indeed, holding an inquisition on the death of a person, may find that he was murdered by A. B. and that A. B. has filed for it; and the authorities all agree that this latter part of the finding is not traversable, though it is observed that no adequate reason for this distinction is to be found in the books. This probably was the flight which the author intended to mention. With respect to deodands, there is no mode, indeed, by which the lord of the franchise can quarrel with the finding of the jury, so as to increase the value they have affixed, but the court will interfere to diminish that value, (Foster, 266 ;) and therefore it must be inferred that the finding is not absolutely conclusive.

And lastly, as to presentments of petty offences in the town or leet, lord Mansfield ha: said that it cannot be true that they are not traversable anywhere, (Rex vs. Roupell, Cowp 459 ;) and the law seems to be that before the fine is estreated and paid, though not after: wards, the presentment may be removed by certiorari into the court of King's Bench and traversed there. Rex vs. Heaton, 2 T. R. 184.

Upon the whole, it may be laid down generally that, with the exception of flight ou the death of a man, no finding of an inquisition can be conclusive on a party who has had no opportunity of vindicating his rights before the jury; while there are cases in which a party who has voluntarily foregone that right in one stage may yet traverse the finding in some future stage. As when, upon an inquiry by the sheriff under a writ of extent, the jury find certain goods to be the goods of A. B., and that finding is returned to the court of Exchequer, C. D., who claims the goods, and might have done so, but nega lected to do so before the sheriff, may yet traverse the finding in the court above... COLERIDGE.

* Upon this inquisition the party accused may be tried without the intervention of this grand jury, (2 Hale, 61. 3 Camp. 371. 2 Leach, 1095. Russ. & R. C. C. 240, S. C.;) and f an indictment be found for the same offence, and the defendant be acquitted on the one, he must be arraigned on the other,—to which he may, however, effectually plead his former acquittal. 2 Hale, 61.

Verdict in an Action. There is also a mode in which a party may be put on his trial without any written accusation, viz., the verdict of a jury in a civil cause. 2 Hale, 150. 4 T. R. 293. 3 Esp. 134. Thus, in an action for taking away goods, if the jury found that they were taken feloniously, the verdict served also as an indictment. 2 Hale, 151. Hawk. b. 2, c. 15, s. 6. Com. Dig. Indictment, C. Bac. Abr. Indictment, B. 5. And at the present day, in an action for slander, in which the plaintiff is charged with a criminal offence, and the defendant justifies, if the jury find that the justification is true, the plaintiff may be immediately put upon his trial for the crime alleged against him, without the intervention of a grand jury. 5 T. R. 293. But the verdict must be found in some court which has competent jurisdiction over criminal matters, or otherwise it seems to have but little force. 2 Hale, 151. Hawk. b. 2, c. 25, s. 6. An affidavit taken at nisi prius on a trial may also be received by the court of King's Bench as the foundation of a criminal information against another. T. R. 285.-Chitty.

several acts of parliament. However, they are usually gentlemen of the best figure is the county. As many as appear upon this panel are sworn upon the grand jury to the amount of twelve at the least, and not more than twentythree; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described so early as the laws of king Ethelred. (f) Ereant seniores duodecim thani, et præfectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare.” In the time of king Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own *303]

district. This number was probably *found too large and inconvenient;

but the traces of this institution still remain in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be sufficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an indictment so far as their evidence goes, and not to rest satisfied merely with remote probabilities; a doctrine that might be applied to very oppressive purposes.(g)

The grand jury are sworn to inquire only for the body of the county, pro corpore comitatus; and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by an act of parliament. And to so high a nicety was this matter artiently carried, that where a man was wounded in one county and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them ; but, by statute 2 & 3 Edw. VI. c. 24, he is now indictable in the county where the party died. And, by statute 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea or out of England, or rice versa, the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases; as, particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the king shall direct, in pursuance of statutes 26 Hen. VIII. c. 13, 33 Hen. VIII. c. 23, 35. Hen. VIII. c. 2, and 5 & 6 *304]

Edw. VI. 6. 11. And counterfeiters, washers, or minishers *of the cur

rent coin, together with all inanner of felons and their accessories, may, by statute 26 Hen. VIII. c. 6, (confirmed and explained by 34 & 35 Hen. VIII.C. 26, $$ 75, 76,) be indicted and tried for those offences, if committed in any part(h) of Wales, before the justices of gaol-delivery and of the peace in the next adjoining county of England, where the king's writ runneth: that is, at present in the courty of IIertford or Salop, and not, as it should seem, in the county of Chester or Monmouth; the one being a county palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII.(i) Murders, also, whether committed in England or in foreign parts,(k) may, by virtue of the statute 33 Hen. VIII. c. 23, be inquired of and tried by the king's special commission in any shire or place in the kingdom. By statute 10 & 11 W. III. c. 25, all robberies and other capital crimes committed in Newfoundland may be inquired of and (1) Wilk. LL. Angl. Sar. 117.

( See Hardr. 66. () State Trials, iv. 183.

(*) Ely's case, at the Old Bailey, Dec. 1720. Roache's case, () Stra. 533. 3 Mod. 134. 5 By stat. 7 Geo. IV. c. 64, this statute was repealed; and it is enacted by s. 12 that when any felony or misdemeanour shall be begun in one county and completed in another, or shall be committed on the boundary or boundaries of two or more counties, or within live hundred yards thereof, it may be tried and punished in either.-STEWART.

Dec. 1775.

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