to be discharged, on entering into a recognizance (with some sufficient surety or sureties), to appear and surrender himself to custody, and take his trial on such indictment as may be found against him, in respect of the charge in question, at the next assizes or sessions of the peace. If the charge cannot be properly investigated at a single hearing, it is the practice of the examining magictrate to remand the person accused from time to time, to be kept in safe custody and under proper restraint until he can either be discharged or committed. It is, however, in the discretion of the court to allow the person accused to remain at large during the period of the investigation.

The justices, however, have no power to admit any person to bail for treason; nor shall bail, in that case, be allowed except by order of a secretary of state, or by the Queen's Bench, or a judge thereof in vacation: while, on the other hand, they are bound to admit to bail in all cases of misdemeanor, except such as the Act of 11 & 12 Vict. c. 42, particularly enumerates; and as to all felonies (treason excepted), as well as to the misdemeanors so enumerated, they have a discretionary power either to admit to bail (g), or to commit to prison (h).

[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 (i), as well as by the statute

(9) Formerly there were many other cases besides treason in which justices of the peace had no power to bail; for example, that of murder and of arson. (See 4 Bl. Com. 299.)

(h) The misdemeanors enumerated in 11 & 12 Vict. c. 42, for which justices are not obliged to take bail, are as follows-assault with intent to commit felony; obtaining or attempting to obtain property by false pretences; receiving property stolen or obtained by false pretences; perjury or subornation of perjury; con

cealing the birth of a child by secret burying or otherwise; wilful and indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a police officer in the execution of his duty, or upon any person acting in his aid; neglect or breach of duty as a peace officer; and any misdemeanor, for prosecution of which costs may be allowed out of the county rate. (Sect. 23.)

(i) Hawk. P. C. b. 2, c. 15, s. 13, See Queen v. Badger, 4 Q. B. 468; Linford v. Fitzroy, 13 Q. B. 240.

[of Westminster the first, 3 Edw. I. c. 15, and the Habeas Corpus Act, 31 Car. II. c. 2 (k). And lest the intention of the law should be frustrated, by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by 1 W. & M. st. 2, c. 1, that excessive bail ought not to be required; though what bail shall 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 take insufficient bail, he is liable to be fined if the criminal doth not appear (1).]

Such, as the law now stands, is the power of the justices of the peace in bailing prisoners brought before them (m). It is to be understood, however, that in this matter the Queen's Bench (or a judge thereof) exercises a paramount jurisdiction; having authority to bail, not only in cases where the charge is originally before them, but also in cases where it is brought before justices of the peace, and bail is there refused. [Nor is there any limit whatever to the power of the Queen's Bench in this particular (n): which may bail for any crime whatsoever, be it treason (o), murder (p) or any other offence according to

(k) See also 56 Geo. 3, c. 100.

(1) Hawk. P. C. b. 2, c. 15, s. 6; and see 7 Geo. 4, c. 64, ss. 5, 6; R. v. Saunders, 2 Cox's Cr. C. 249.

(m) The court before which a prisoner is brought to plead, has also power to bail him. (4 Bl. Com. 297.) As to the power of bailing in the metropolitan police courts, see 2 & 3 Vict. c. 71, s. 36; and in the case of juvenile offenders charged with simple larceny, see 10 & 11 Vict. c. 82, s. 5. See also 18 & 19 Vict. c. 126, ss. 5, 6, as to bailing persons charged with larceny, &c., under that Act, and 22 Vict. c. 33, enabling coroners to admit to bail persons charged with manslaughter, by the

verdict of a coroner's jury.

(n) 2 Inst. 189; Latch. 12; Vaug. 157; Comb. 111, 298; 1 Com. Dig. 493.

(0) In the reign of Queen Elizabeth, however, it was the unanimous opinion of the judges, that no court could bail a person committed, on a charge of high treason, by any of the queen's privy council. (1 Anders. 298.)

(p) Antiently felonious homicide seems to have been an exception. "In omnibus placitis de feloniâ solet accusatus per plegios dimitti, præterquam in placito de homicidio." (Glan. 1. 14, c. 1.) "Sciendum tamen quod, in hoc placito,

[the circumstances of the case.] It is not usual, however, either for the Queen's Bench, or for magistrates, to admit to bail in a case of felony, except under circumstances of a special and favourable kind (7).

Supposing no bail to be allowed, or none to be found by the accused, he is then to be committed to prison by warrant of the examining magistrate, to be there safely kept until delivered by due course of law (r). [But this imprisonment is only for safe custody, and not for punishment; and therefore, in this dubious interval between the commitment and trial, a prisoner ought to be treated with the utmost humanity; and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purposes of confinement.] And it is accordingly expressly enacted by the 28 & 29 Vict. c. 126, s. 32, that criminal prisoners before trial shall have the option of employment, but shall not be compelled to perform any hard labour (s).

In either case, whether of bailing or commitment, the accused is entitled to demand, from the person having the custody of the same, copies of the examinations (or depositions) on which he shall have been bailed or committed, upon payment for them at a reasonable and prescribed rate (t). And the justice or justices are also empowered, in either case, to bind over by recognizance the prosecutor and witnesses to appear at the next assizes

non solet accusatus per plegios dimitti, nisi ex regia potestatis beneficio." (Glan. 1. 14, c. 3.)

(9) See Barronet's case, 1 Dears

ley's C. C. R. 51.

(r) 11 & 12 Vict. c. 42, s. 25. See 28 & 29 Vict. c. 126, s. 56.

(s) If the prisoner elect to be employed and shall be acquitted, or no indictment be found against him, a reasonable allowance may be made to him on account of such his earnings. (28 & 29 Vict. c. 126, s. 33.)

It may be noticed that the prison rules for the treatment of prisoners before trial, as well as of accused persons under remand, and previously either to their discharge or commitment, are subject to the supervision and allowance of the secretary of state.

(t) 11 & 12 Vict. c. 42, s. 27; 30 & 31 Vict. c. 35, s. 4. See Queen v. Lord Mayor of London, 5 Q. B. 555; R. v. Davies and others, 1 L. M. & P. 323.

or sessions of the peace, at which the accused is to be tried, then and there to prosecute or to give evidence. And the several recognizances so taken, together with the written information (if any); the depositions; the statement of the accused; and the recognizance of bail (if any);—must be delivered to the proper officer at such assizes or sessions before or at the opening of the court, on the first day of its sitting (u).

(u) 11 & 12 Vict. c. 42, s. 20; 30 & 31 Vict. c. 35, s. 3. By 19 & 20 Vict. c. 16, where any person shall have been committed or held to bail for any felony or misdemeanor alleged to have been committed out of the jurisdiction of the Central Criminal Court, the Queen's Bench, (or any judge thereof in vacation,) may, if it shall appear expedient to the ends of justice, order the trial of such person to take place at the Central Criminal Court. In such case, the examining justice, coroner, or other officer in whose custody the indictment or inquisition against the

person charged may be,-must forthwith transmit to the proper officer of the Central Criminal Court any recognizances, depositions, examinations or informations relating to the offence charged, to be kept among the records of the Central Criminal Court. And the gaoler or keeper of any gaol or house of correction, in which the person charged is confined, is, without writ of habeas corpus or other writ for that purpose, to cause such person to be removed to the prison of that court. (19 & 20 Vict. c. 16, s. 4.)

CHAPTER XVIII.

OF THE SEVERAL MODES OF PROSECUTION.

[THE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation (a): 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 by indictment.

I. A presentment, generally taken, is a very comprehensive term; and includes inquisitions of office, and indictments by a grand jury. But a presentment, properly speaking, is the notice taken by a grand jury, of any matter or offence from their own knowledge or observations, without any bill of indictment laid before them at the suit of the Crown (b):-as the presentment by them of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it (c). 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. Such inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide (d): for, in such cases, the offender so presented must be arraigned upon this inquisition, and may dispute the

(a) Vide sup. p. 344.

(b) Lamb. Eirenarch. 1. 4, c. 5.

(c) 2 Inst. 739.

(d) See Jervis on Coroners, 282.