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) (11): this being the humane language of our ancient lawgivers (s), 66 custodes pœnam sibi commissorum non augeant, nec eos torqueant; sed omni sævitiá remotá, pietateque adhibita, judicia debité exequantur (12) (13)." ( ) 2 Inst. 381; 3 Inst. 34. (s) Flet. 1. 1, c. 26. (11) A constable has no right to handcuff a prisoner whom he has taken into custody on suspicion of felony, unless he has attempted to escape, or it is necessary in order to prevent his escaping; Wright v. Court, 6 D. & R. 623. (12) Gaolers must not aggravate the punishment of those committed to their custody, nor apply any species of torture to them; but avoiding all cruelty, and exercising justice, precisely inflict the sentence; see 2 Chetw. Burn, 704, 5, in notis. (13) As regards the power of commitment in particular cases, the following decisions seem to deserve notice : A justice of peace may commit a feme covert, who is a material witness upon a charge of felony brought before him, and who refuses to appear at the sessions to give evidence, or to find sureties for her appearance; Bennett v. Watson, 3 M. & S. 1. In some counties where a child is a witness in a prosecution, and has no one who will enter into a recognizance for his or her appearance at the trial, the practice is for the constable or police officer to enter into a recognizance for the child's appearance, and to take the child to the assizes, he being allowed the expense of the child's travelling, &c. and, in such a case, where a child was taken away, and the constable could not bring her to the assizes, the judge respited the constable's recognizance, that he might bring the child to the next assizes; I Har. Dig. 833. : Where the magistrates of a borough had exclusive jurisdiction within the borough, but concurrent jurisdiction with the county magistrates over the liberties of the borough, it was held, that, for offences committed within the liberties, they might commit to the county gaol, and try the prisoners at the borough sessions; Rex v. Masson, 9 D. & R. 172. their of the several And secution, as, modes of pro THE next step towards the punishment of offenders is a which may be as of nuisances, ner's jury, as of by the sheriff's ous petty I. A presentment, generally taken, is a very comprehen- 1. Presentment, sive term; including not only presentments properly so by grand jury, called, but also inquisitions of office, and indictments by &c.; by corogrand jury. A presentment, properly speaking, is the notice felo de se, &c.; taken by a grand jury of any offence from their own knowledge tourn, or courtor observation (a), without any bill of indictment laid before leet, as of varithem at the suit of the king. As, the presentment of a offences; 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 (1). 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 (a) Lamb. Eirenarch, 1. 4, c. 5. (1) A constable, also, may present offences, of his own knowledge, but his presentments, for any offence, whether at assizes or sessions, must be made on oath, before a grand jury; Rex v. Justices of Somersetshire, 1 M. & R. 272. As to what offences he may present, Ritson, in his Office of Constable, p. 62, says, "the constable should pre sent all offences within his own knowledge which concern the peace, as defaults of watching, disorderly houses, affrays, &c., at the leet, town, or quarter sessions. And such presentment is (h) 2 Inst. 739. as available as one made by twelve men; Dalt. 474; Fitz. 6. But he is not obliged to present a highway, sworn before him by two witnesses to be out of repair, even though demanded so to do by the quarter sessions; and may tell them plainly that he will not present it; 1 Ventr. 336." And now, by the new Highway Act, 5 & 6 W. IV. c. 50, the proceeding by presentment for the non-repair of highways is entirely abolished, and a summary mode of proceeding before magistrates substituted. See Bateman's edition, 72, 80. therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature all are 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 tra[*302] versed 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 cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it (2); 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. Indictment, which must be presented by the eath, II. An indictment (c) is a written accusation of one or preferred to and more persons of a crime or misdemesnor, preferred to, and grand jury upon 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 several acts of parliament (3). However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon (c) See Appendix, § 1. (e) Ibid. 155. (2) It seems to be the better opinion, that any finding by a coroner's inquisition may be traversed; see Jervis on Coroners, 282 et seq., where the authorities upon the subject are collected and considered. (3) The qualification of grand jurors"in courts of sessions of the peace," is defined by 6 Geo. IV. c. 50, § 1, for which see post, 350, in notis. A grand juror who has assisted in finding a true bill against a person indicted of felony or trespass, cannot sit upon the petty jury to try the same person; see 25 Edw. III. st. 5, c. 3. As to the qualifications of grand jurors generally, and other matters relating to the same subject, see 1 Chit. Cr. L. c. 6; Collyer's Cr. St. 282. the grand jury, to the amount of twelve at the least, and not more than twenty-three, 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 (ƒ). "Exeant 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 (4)." 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 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) (5). : (f) Wilk. LL. Angl. Sax. 117. (g) State Trials, iv. 183. [*303] (4) The twelve senior shall go out, and their foreman with them, and shall swear upon the Holy Gospel, which is placed in their hands, that they will not accuse any innocent, or conceal any guilty, man. (5) Upon an indictment for high treason against the Earl of Shaftesbury in the year 1681, the evidence was whose jurisdic tion is limited to their own county. 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 act of parliament. And to so high a nicety was this matter anciently 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 and 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, vice versá; the offenders and their accessaries 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 and 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers [*304] *of the current coin, together with all manner of felons and their accessaries, may, by statute 26 Hen. VIII. c. 6, confirmed and explained by 34 and 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 county of Hereford or Salop; and not, as it should seem, in the county of Chester or Monmonth: 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 stat. 10 and 11 W. III. c. 25, all robberies and (h) Stra. 533; 8 Mod. 134. (k) Ely's case, at the Old Bailey, Dec. 1720; Roache's case, Dec. 1775. nesses publicly before the grand jury, Harg. St. Tr. 417. But I apprehend this is the last instance of such a procedure.-CH. |