―, and that

Whereas oath has been made before me, W. D., esquire, one of her majesty's justices of the peace in and for the said county, by P. Q. of —, that the said P. Q. was lately robbed [or other offence committed, as the case may be] at he hath good cause to believe that X. X. of - is a material witness to prove by whom the said robbery was committed; these are therefore to require you to cause the said X. X. forthwith to come before me to give such information and evidence as he knoweth concerning the said offence, that such further proceedings may be had therein as to the law doth appertain.

of

Given under my hand and seal at

in the said county, the

day

If the offence is of a less degree, and created by statute, it is doubtful whether a justice can grant a warrant to enforce the attendance of a material witness, as the preservation of the peace under the commission is not in question (1), and the common subpœna amply suffices to prevent a failure of justice.

Contumacy before Magistrate.]—If in a case of felony or misdemeanour (e. g. riot) a person supposed to have knowledge of the facts refuses, when before a justice, to be sworn and examined, it is not settled whether he can legally be committed for such refusal, though he appears liable to indictment at common law; and in no event can he be so committed, till after he has been apprised that his evidence is required respecting a specific offence named to him, with which a party then before the justice is charged (m). The commitment should state that the question was proper, and that the witness was apprised of the charge, &c. Nor can he be committed for refusing to answer an illegal question (n), or to read entries in a book, that not being a question (o).

If he is examined, and the magistrate finds his evidence material, he should require him to enter into a recognizance to attend at the session of the peace, and testify to the court and jury. If the party refuses to enter into such recognizance, the justice may commit him to gaol (p); where if he should obstinately continue till the session, he may be brought up there by writ of habeas corpus ad testificandum (q); and if refusing to be sworn, may be committed for contempt, or a fine imposed upon him.

Lord Preston, being committed by a court of quarter sessions for contempt in refusing to be sworn to give evidence to the grand jury there on an indictment of high treason, was brought by habeas corpus into the court of king's bench; and Chief Justice Holt said it was a great contempt, and that had he been there, he would have fined him, and committed him till he paid the fine; but being otherwise, he was bailed (r).

Subpoena.]-The process to bring before the grand jury or court such witnesses as have not been bound by recognizance to appear, whether on the part of the prosecution, or of the defendant (s), is by subpoena ad testificandum; which, whatever may have been the law in former times, is now to be obtained in all cases for either party, from the clerk of the peace, under the seal of the custos rotulorum, or from the crown-office (t). This writ, when issued by the clerk of the peace, (or clerk of assize at an assize), is at utmost only compulsory within the county where it is granted, and, therefore, if the witness lives beyond its limits, application must be made to the crownoffice, from whence it may issue to any part of England (u). This appears to be still law, notwithstanding that by 45 G. III. c. 92, s. 3, the service of every writ of subpoena upon any person in any one of the parts of the United Kingdom requiring the appearance of such person to give evidence in any criminal prosecution in any other of the parts of the same (x), is made as effectual in law as if the same had been served in that part of the United Kingdom where the person so served is required to appear; and the party disobeying it is liable to punishment by attachment in the court of queen's bench, as the highest court of criminal jurisdiction, and having power over all others. For that enactment only extends to give to a subpæna having validity throughout either England, Scotland, or Ireland, taken generally, the same validity in either of those parts of the United Kingdom; and contemplates such a subpoena as would be enforced by one of the courts having competent jurisdiction to compel the attendance of a witness in any county or place

(r) Salk. 278; R. v. Lord Preston; as to this case, see ante.

(8) Defendants have only acquired the right to sue out a subpoena since 1 Ann. st. 2, c. 9, s. 3. See 2 Haw. c. 46, s. 172.

(t) 2 Hale, 282, Hawk. B. 2, c. 46, s. 170, 171, 172; 1 Chit. Crim. L. 320, 1st edit.; 7 W. III. c. 3, s. 7; 1 Ann. c. 9.

(u) Cro. Circ. Comp. 9, 21. "The

old jurisdiction of counties was local; they were like different kingdoms. There was no jurisdiction, no process out of the county: one county had no jurisdiction over the inhabitants of a distinct county. See per Lord Mansfield, 4 Burr. 2511, 2512.

(x) Viz., England, Scotland, and Ireland, R. v. Brownell, 1 Adol. & E. 598.

within either of those parts (y); so that it is by far the more effectual and advisable course to sue out a subpoena from the crown-office, in order to bring the witness within reach of attachment from the court of queen's bench, in case of his making default in his attendance at the sessions (z). For disobedience to a subpoena from quarter sessions is not that manifest contempt for the authority of the court of queen's bench, which similar neglect of a crown-office subpæna is; and accordingly that court has not power to punish the witness for disobedience to a subpœna issued by the clerk of the peace, (though served within the jurisdiction of the same quarter sessions), either by its general authority, or by virtue of the above statute (a): whereas disobedience to its own subpœna issued from the crown-office, will be punished by attachment (b). In a case which is of a criminal nature, even in form (e. g., indictment for stopping a way), a person present in court, if called as a witness, is bound to be sworn and give evidence, though not subpœnaed (c).

The form of a subpœna to give evidence before the Grand Jury at the
Quarter Sessions.

Victoria, by the grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to A. B., C. D., E. F., and G. H., [not putting more than four in one subpæna], greeting: we command you, that all and singular business and excuses being laid aside, you, and every one of you, be, and personally appear in your own proper persons, before our justices assigned to keep the peace, in and for our county of, and also to hear and determine divers felonies, trespasses, and other misdemeanours, in the said county committed, at the general quarter [or general] sessions of the peace, to be holden at in and for the said --, in the forenoon of

county, on day, the

day of

at the hour of

the same day, to testify the truth, and give evidence before the grand inquest touching a bill of indictment to be preferred against

assault.

in a case of trespass and

Or, if it is to give evidence for the prosecution on the trial of an indictment, thus:

Or if the subpoena is to give evidence in an appeal against an order of removal, thus:

In a certain appeal now depending between the churchwardens and overseers of the poor of the parish of A. appellants, and the church wardens and overseers of the poor of the parish of B. respondents, touching and concerning the removal of C. D. from the said parish of B. to the said parish of A.

The close of the subpoena, in either case, is this:

And this you, or any of you, are by no means to omit, under the penalty upon each of you of 1007. Witness

at

aforesaid, the

day of

in

the

year of our reign.

Y. Z. Clerk of the Peace.

Subpoena duces tecum.]-If the party subpoenaed is supposed to be in possession of any documents necessary to the case of the party on whose behalf he will be called, a special clause, called a duces tecum, is to be inserted, requiring him to bring such documents with him (d).

Service of Subpoena.]-The subpoena is made out by the clerk of the peace, or by the master of the crown-office, and each of the witnesses must be personally served, either with a copy called a subpoena ticket (e), which is now most usual, or with a notice, also showing them the original subpoena or subpoena ticket, in the following form :

To Mr. A. B.

By virtue of her majesty's writ of subpoena to you directed, and herewith shown unto you, you are personally to be and appear before her majesty's justices, &c. [pursuing the form of the subpoena, as far as the words "in a case of ——;"] and this you are not to omit, under the penalty of 1007. Dated this in the

year of the reign

&c.

day of

Habeas Corpus ad "Testificandum."]-In order to obtain the attendance of a witness who is in prison or other confinement (e. g., on board ship, &c.), at a trial in any court of record, a writ of habeas corpus ad testificandum is necessary; to obtain which an affidavit must be made by the party applying, stating the imprisonment of the party, that he is a material and necessary witness, that the trial cannot safely be proceeded in without his presence, and that such trial, cause, or matter, civil or criminal, is pending, and will be inquired into, tried, and determined in the court of record named at a certain time and

(d) If a clerk in a public office is subpoenaed to produce official documents, his comptroller must be applied to to secure the production, Austin v. Evans,

9 D. P. C. 408.

(e) Maddison v. Shore, 5 Mod. 355; Cro. Car. 540, 522; Goodwin v. West.

place; with such other circumstances as may show the necessity for the application. This writ may be granted by any one of the judges of the superior courts in England and Ireland, on application made at chambers (ƒ). It is to be served on the person in whose custody the party is detained.

The form of a writ of habeas corpus ad testificandum to give evidence at the court of quarter sessions.

Victoria, &c., to the sheriff of —, greeting: we command you, that you have the body of A. B. detained as it is said in our prison under your custody, under safe and secure conduct, by whatsoever name the said A. B. may be called in the same, before our justices assigned, &c., at the general quarter sessions of the peace, to be holden at, in and for the said county, on, &c., then and there to testify the truth, and give evidence on our behalf before the grand inquest, touching a bill of indictment to be preferred against, &c., &c., [as the case may be,] and immediately after the said A. B. shall have then and there given his testimony before our said justices, to return him the said A. B. to our said prison under safe and secure conduct, and have you then there this writ. Witness --, in the reign, &c., &c.

year of our

Conduct Money to Witnesses.]-The money which is given with subpoenas to secure the attendance of witnesses at the quarter sessions of the peace, demands but very brief notice. It has been frequently decided, that, in civil cases, a witness is not bound to attend in pursuance of a subpœna, unless a tender be made by the party requiring his attendance, sufficient to cover all the reasonable expenses of his journey out and home (g). Attendance upon criminal prosecutions stands on a different ground. In cases of felony, and of certain aggravated misdemeanours, the prosecutor and witnesses will as of course, be allowed reasonable compensation, not only for their journey, &c., but for their trouble and loss of time also (h); it therefore appears that, in such cases, the making any advance of money with a subpoena is rather a mere matter of prudence, in order to prevent the witness from being impeded for want of the means of travelling, than of absolute legal obligation (i); nevertheless it should not pass unnoticed, that the

(f) 44 G. III. c. 102.

(g) Fuller v. Prentice, 1 H. B. 49; Tidd, 9th ed. 806; 1 Stark. Ev. 2nd ed. 77; Chapman v. Pointon, Stra. 1150; Hallett v. Mears, 13 East. 15; Ex parte Roscoe, 6 Merivale, 191; Holme . Smith, 1 Marsh. R. 410.

(h) 18 G. III. c. 19, s. 7; 7 G. IV. c. 64, s. 22. See post, Chap. XIII.

(i) 2 St. Tri. 124; R. v. Love, 2