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And where a statute ordaineth that an offender shall be imprisoned at the king's will or pleasure, there the prisoner cannot be bailed till he hath redeemed his liberty by such fine or ransom as shall be assessed by the king's justices in his courts. Dalt. c. 167. pp. 294, 295.

And those who, on their examination, own themselves guilty of a felony alleged against them, and are charged in their mittimus with the felony so confessed, seem to be excluded from bail; for bail is only proper where it stands indifferent whether the party be guilty or innocent of the accusation against him. 2 Haw. c. 15. $40.

Although a person be committed to be detained without bail or mainprize, yet, if the offence be by law bailable, he that hath power of bailing may bail him. 2 Hale, 135.

It seems to be agreed that any one justice might always in his discretion either bail or imprison one who has given another a dangerous wound, according as it shall appear from the whole circumstances that the party is most likely to live or die; for that every such justice being a principal conservator of the peace, the offence at present being only an enormous breach thereof, and no felony, seems properly to come under his conusance. 2 Haw. c. 15. § 54.

IV. Requiring excessive Bail.

By the Declaration of Rights, stat. 1 W. & M. sess. 2. c. 2., excessive bail ought not to be required.

V. Denping Bail where it ought to be granted.

To refuse bail where the party ought to be bailed (the party offering the same) is a misdemeanor, punishable not only by the suit of the party, but also by indictment. 2 Haw. c. 15. § 13. Hale's Sum. 97.

VI. Granting Bail where it ought to be denied.

Admitting bail where it ought not is punishable by the judges of assize by fine; or punishable as a negligent escape at common law. Hale's Sum. 97.

Commitment
without bail or
mainprize.
Bail in case of

a dangerous
wound.

A justice of Surrey committed a man on suspicion of stealing Information a mare, and bound over the owner to prosecute. Afterwards, granted against upon examining two other persons, he admitted the party to bail. a justice for The prosecutor appeared at the assizes, and found a bill; but the bailing a felon. party accused did not appear. And the court granted an information against the justice, declaring they should not have bailed the man themselves. R. v. Clarke, 2 Stra. 1216.

"If any justice of the peace shall take bail where he ought not, or wittingly or willingly take insufficient bail, and the party appear not, the said justice not only to be proceeded against according to law, but likewise to be complained of to the lord chancellor, that he may be turned out of his commission." 6th Order of the Judges to be observed by Justices of the Peace, O. B. 16 C. 2. From Kelyng's Reports, p. 3.

31 C. 2. c. 2.

31 C. 2. c. 2. Causes of commitment.

Within what time to be brought to trial.

Penalty upon officers.

VII. Of Bail by Writ of Habeas Corpus.

If bail cannot otherwise be obtained, the law hath provided a remedy in most cases by the habeas corpus act, 31 C. 2. c. 2. The substance of which is briefly this:

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If the commitment be for any crime, unless for treason or felony, plainly and specially expressed in the warrant of commitment; or unless the person be committed and charged as accessary before the fact to any petty treason or felony, or upon suspicion thereof, or with suspicion of petty treason or felony, which petty treason or felony shall be plainly and specially expressed in the warrant of commitment; the person so committed, by suing out a habeas corpus, shall be discharged on bail, unless detained for such offence as by law is not bailable. §§ 2, 3. 21.

§ 7. Also if a person be committed for treason or felony especially expressed, yet if he shall, in open court, the first week of the term, or first day of assize, petition to be tried, and shall not be indicted some time in the next term or assize after the commitment, he shall upon motion the last day of the term or assize be bailed, unless it shall appear to the judge upon oath that the king's witnesses could not be produced within that time, and then, if he be not tried in the second term or assize, he shall be discharged.

§ 5. If any officer or officers, his or their under-officer or underofficers, under-keeper or under-keepers, or deputy, shall, upon demand made by the prisoner or person in his behalf, refuse to deliver, or within six hours after demand shall not deliver, to the Demand of copy person so demanding, a true copy of the warrant of commitment, of commitment. all and every the head-gaoler and keepers of such prisons, and such other person in whose custody the prisoner shall be detained, his executors or administrators, shall forfeit to the prisoner or party grieved, his executors or administrators, the sum of 100l. for the first offence, and 2007. for the second.

Governor, under keepers, &c.

How appli

cation for writ is to be made

in vacation time.

The construction of this section is, that if the governor be present, there is then no deputy or under-keeper, on whom a service of the demand can be made; but if the governor be not present, then the deputy may be served: and if the deputy have no deputy, then in the absence of the deputy, service may be on the turnkey, or may be left at the gaol, for it is the duty of the governor to leave some person in his place. But if the gaoler be in the gaol and accessible, the demand must be made on him; if he be not accessible, it may be on the deputy. And at all events, the demand should be served in such a way that the person to whom it was delivered should understand its nature; and where the principal is (as in this case he was) within the gaol, some pains should be taken that it should come to his hands. Huntley v. Luscombe, M. 42. G. 3. 2 Bos. & Pull. 530.

By 3., the writ is to be marked, Per statutum tricesimo primo Caroli secundi regis, and to be signed by the person awarding the same; and out of term time, the application for the writ is to be made in writing by the prisoner or any person for him, attested and subscribed by two witnesses who were present at the delivery thereof to the lord chancellor or one of the judges; and a copy of the warrant of commitment shall be produced before them, or oath made that such copy was denied.

Upon such application, the lord chancellor or judges re- To be awarded spectively shall award a habeas corpus under the seal of their immediatè. court, directed to the officer or keeper, returnable immediatè.

By § 10, if, on such application, in vacation time, the lord Denial of chancellor, or any of the judges, on view of the warrant of com- writ. mitment, &c., deny any writ of habeas corpus by that act required Penalty. to be granted, they shall forfeit 500l. to the prisoner or party grieved.

§ 4. But if any person had wilfully neglected by the space of Laches. two terms to apply for his enlargement, he shall not have a habeas corpus granted in the vacation.

2. And the charges of bringing the prisoner shall be ascer- Charges of tained by the judge or court that awarded the writ, and indorsed removal. thereon, not exceeding 12d. a mile.

The writ shall be served on the keeper, or left at the gaol with any of the under officers; and the charges so indorsed shall be paid or tendered to him, and the prisoner shall give bond to pay the charges of carrying him back, if he shall be remanded, and that he will not make any escape by the way. Ibid.

This done, the officer shall, within three days after service Time of (if it be within twenty miles), return the writ and bring the body, removal. and shall then likewise certify the true cause of the imprisonment; if above twenty miles and less than a hundred, then within ten days; if above a hundred, then within twenty days; on like pain as before, § 5. supra. Ibid.

§ 18. But after the assizes are proclaimed for the county where the prisoner is detained, he shall not be removed, but before the judge of assize.

3. If it shall appear to the said lord chancellor or judges If detainer be that the prisoner is detained on a legal process, order, or warrant, legal. out of some court that hath jurisdiction of criminal matters, or by warrant of a judge or justice of the peace for matters, for which by law he is not bailable; in such case the prisoner shall not be discharged.

And if he shall be discharged, he shall thereupon enter into recognizance to appear on his trial; and the writ and return thereof and recognizance shall be certified into the court where the trial must be. Ibid.

§ 8. But persons charged in debt, or other action, or with process in any civil cause, after their discharge for a criminal offence, shall be kept in custody for such other suit.

§ 6. And persons so set at large shall not be recommitted for the same offence, unless by order of court, on pain of 500l. to the

party grieved.

This is a remedial act, and indeed the most highly remedial act Statute rcwhich stands upon the statute book. But in respect to the penal medial. part, the most remedial act may contain penal clauses. Per Chambre J. 2 Bos. & Pull. 539.

Two things I shall observe upon this statute:

1. That although the constable, by his own authority, without any warrant of commitment, may carry offenders to gaol, and this was the method of securing prisoners before there were any justices of the peace, yet, since the institution of the office of justices of the peace, it is better that they be carried before a justice, to be sent by him to gaol by warrant of commitment; otherwise

Party may be bailed, unless

there be warrant of commitment.

Warrant must specify the nature of the

treason or

felony.

Court of K. B. may bail in all

cases.

Warrant of commitment informal.

Rule by K. B. for bailment by a magistrate.

43 G. 3. c. 140. Any judge of

the courts at Westminster may award a writ of habeas corpus for

they have a right to be bailed upon this act, whatever the offence may be.

2. That the warrant of commitment ought to set forth the cause specially; that is to say, not for treason, or felony in general, but treason for counterfeiting the king's coin, or felony, for stealing the goods of such an one of such a value, and the like; that so the court may judge thereupon, whether or not the offence be such for which a prisoner ought to be admitted to bail.

The court of king's bench (or any judge thereof in time of vacation) may bail for any crime whatsoever, be it treason, murder, or any other offence, according to the circumstances of the case. 4 Bla. Com. 299. 2 Haw. c. 15. § 77.

This court (K. B.) has undoubtedly a discretionary power to bail in all cases whatsoever. Per Ld. Mansfield C. J., Rudd's case, 1 Cowp. 333.

A warrant of commitment for felony must contain the species of felony. Vide per Pratt C. J., 2 Wils. 158.

But although a warrant of commitment be defective or informal, yet, if upon the depositions returned, the court see that a felony has been committed, and that there is reasonable ground of charge against a prisoner, they will not bail, but remand him. R. v. Marks and others, 3 East, 157. R. v. Horner, Cald. 295. S. P.

Where it appears to the court of K. B. that a prisoner ought to be bailed for felony, if he be unable to defray the expences of being brought to Westminster for that purpose, they will grant a rule to shew cause why he should not be bailed by a magistrate in the country, with a certiorari to return the depositions before them. R. v. Jones, M. 58 Geo. 3. 1 B. & A. 209. N. B. This was a case of manslaughter. The rule was afterwards made absolute.

By stat. 43 Geo. 3. c. 140., after reciting that "Whereas writs of habeas corpus have been frequently awarded by the judges of H. M.'s courts of record at Westminster, for bringing persons detained in custody under civil or criminal process before magistrates or courts of record, as well for trial as for examination, touching matters depending before such magistrates or courts respectively (a): but doubts have arisen whether such judges have trial or examin- power to award writs of habeas corpus for bringing persons de

bringing up

prisoners for

ation before

courts-martial, commissioners of bankrupt,&c.

(a) The court of K. B. will grant a habeas corpus to the Warden of the Fleet to take the body of a debtor confined there before a magistrate, to be examined from time to time respecting a charge of felony or misdemeanor. Ex parte Griffiths, E. 1822. 5 B & A. 730. Chitty moved for a writ of habeas corpus to be directed o the Warden of the Fleet, commanding him to carry the body of G. before the Lord Mayor or some other justice of the city of London, at the Mansion House, there from day to day to be examined touching a charge of felony and misdemeanor. It appeared that a warrant had been obtained from the Lord Mayor against G., who had been a master of a ship, for the purpose of proceeding to convict him of the offence of refusing to deliver up the certificate of registry, pursuant to the stat. 34 G. 3. c. 68. § 18. (see now 3 & 4 W. 4. c. 55. hips) and in order to enable the owner to obtain a registry de novo of the ship, if necessary. G. being, however, at this time a prisoner in the Fleet for debt, there was no power of taking him under the warrant, (see R. v. Woodham, Stra. 828.) unless the Court granted this writ. The Court thought it a proper case for their interference, and thereupon directed the writ to issue.

tained as aforesaid before courts martial, commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting under commission or warrant from H. M.; and whereas it is expedient to make provision for bringing prisoners before such courts martial or commissioners for the purposes herein-before mentioned, enacts, that any judge of the courts at Westminster may award a writ of habeas corpus to bring any prisoner, in any gaol in England, before a court-martial, commissioners of bankrupt, commissioners for auditing the public accounts, or other commissioners acting by virtue of any commission or warrant from H. M., in like manner as they award such writs to bring persons detained in gaol before magistrates or courts of record.

By stat. 44 Geo. 3. c. 102., any judge of the courts of K. B. or C. P. of England and Ireland respectively, or any baron of the court of exchequer of the degree of the coif in England, or any justice of O. and T. or gaol delivery, being such judge or baron aforesaid, may, at his discretion, award a writ of habeas corpus, for bringing any prisoner detained in any gaol or prison before any of the said courts, or any sitting of nisi prius, or before any other court of record, to be there examined as a witness, and to testify the truth before such courts, or any other grand, petit, or other jury, in any causes or matters, civil or criminal, whatsoever, which now are or hereafter shall be depending, or to be inquired into or determined in any of the said courts.

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The privileges of the famous act of habeas corpus before mentioned, which (as De Lolme, p. 191., observes) "is considered in England as the second great charter, and has extinguished all the resources of oppression," have been still further extended by stat. 56 Geo. 3. c. 100. intituled "An act for more effectually securing 56 G. 3. c.100. the liberty of the subject," which, after reciting that "whereas the writ of habeas corpus hath been found by experience to be an expeditious and effectual method of restoring any person to his liberty, who hath been unjustly deprived thereof: and whereas extending the remedy of such writ, and enforcing obedience thereunto, and preventing delays in the execution thereof, will be advantageous to the public: and whereas the provisions made by an act passed in England in the thirty-first year of king Charles the Second, intituled "An act for the better securing the liberty of the subject, and for prevention of imprisonment beyond the seas," and also by an act passed in Ireland in the twenty-first and twentysecond years of his present Majesty, intituled An act for better securing the liberty of the subject,' only extend to cases of commitment or detainer for criminal or supposed criminal matter;" it is enacted, "that where any person shall be confined or restrained As to persons of his or her liberty (otherwise than for some criminal or supposed restrained of their liberty, criminal matter, and except persons imprisoned for debt or by pro- otherwise than cess in any civil suit) within that part of G. B. called England, for criminal dominion of Wales, or town of Berwick-upon-Tweed, or the isles matters or by of Jersey, Guernsey, or Man, it shall and may be lawful for any process in civil one of the barons of the exchequer, of the degree of the coif, as suit. well as for any one of the justices of one bench or the other; and where any person shall be so confined in Ireland, it shall and may be lawful for any one of the barons of the exchequer, or of

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