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tion and indemnity being concluded, it is usual, in the next place, for the clerk of the peace to call over the constables of hundreds, and of parishes, &c. (a), which is commonly done (with respect to the defaulters on the first call) a second, and even a third time. On their failing to answer at the third call to the name of the respective parishes for which they serve, the court will set a fine on the defaulters.

Registration of Dissenting Chapels, and granting Certificates to their Preachers.]-At this time also the registration of dissenting chapels, and the granting of certificates to their preachers, may conveniently take place. These proceedings are had by virtue of 52 G. III. c. 155, which was enacted for the protection of protestant dissenters; the former statutes for that purpose (b) not having been considered as sufficiently explicit. This statute enacts, by s. 2, that "no congregation or assembly for religious worship of protestants (at which there shall be present more than twenty persons, besides the immediate family and servants of the person in whose house, or upon whose premises, such meeting shall be had) shall be permitted, unless and until the place of such meeting, if the same shall not have been registered under any former act, shall have been certified to the bishop of the diocese, or archdeacon, or to the justices at the general or quarter sessions; and all places of meeting so certified to the bishop or archdeacon's court, shall be returned by such court once in each year to the quarter sessions; and all places of meeting certified to the quarter sessions shall be returned once in each year to the bishop or archdeacon; and the bishop or registrar, or clerk of the peace, shall give a certificate thereof to such persons as shall demand the same, on payment of 2s. 6d.

Exemption from Penalties.]-On compliance with these directions respecting the house of meeting, stat. 52 G. III. c. 155, declares by s. 4, 5, that "all teachers and preachers, and persons resorting to any place of worship thus certified, shall be exempt from all penalties under statutes relative to religious worship, on condition that such teachers and preachers shall take the oaths prescribed by 19 G. III. c. 44, (c),

(a) See ante, p. 122.

(b) 1 W. & M. c. 18; and 19 G. III.

c. 44.

(c) Viz. the Oaths of Allegiance and Supremacy in 1 W. & M. sess. 1, c. 1, s. 6, 7, Tyrwhitt & Tyndale's Digest of

Statutes, 1217, with the Declaration against Popery in 30 C. II. sta. 2, s. 2; ibid. with the Profession of Christian Belief as in 1 W. & M. st. 1, c, 18, s. 13; and Further Declaration as in 19 G. III. c. 44, s. 1.

when thereunto required by any justice of the peace; of which taking of the said oaths, the said justice shall give a certificate according to a form prescribed in sect. 8, which certificate shall be conclusive evidence; and by sect. 7 any person may require a justice of the peace to administer the said oaths." So that, as the law stands now, all doubts respecting the discretionary power of justices in session to judge of the qualifications of persons offering to take the oaths, and to accept or reject them, appear to be done away. See 31 G. III. c. 32, s. 5, post, Ch. XV.

SECTION III.

OF CALLING THE GRAND JURY, SWEARING AND CHARGING THEM, AND THEIR DUTIES AND JURISDICTION.

THE clerk of the peace, an officer now existing as well in boroughs as in counties, next proceeds to call the names of those who are returned to serve on the grand jury; whose qualifications at quarter sessions in counties are now, as we have already seen, the same with those of the petty jurors (d). If any person so called is an alien; or an outlaw, whether on criminal, or as some say, civil process; an idiot, or lunatic, or attainted of treason or felony; or returned at instance of a prosecutor or not returned by the proper officer, the party bound to answer a charge may, before indictment, challenge him in the first instance for cause; or if he discover it after a bill has been found against him, may plead it in avoidance of the finding (e). If the names of improper persons are inserted in the panel, it may be reformed, at the discretion of the court, by excluding their names and inserting others in their room (ƒ); and it is even said that this power extends to the dismissal of a juror who has been sworn, on the discovery that he is an improper person (g). On the other hand, if any of the parties. summoned have any claim of exemption by law or courtesy, they must now submit their claim to the chairman or recorder (h). In practice it is not uncommon, and may be discreet and proper, when the names are called over, for the court to direct the names of all those to be omitted who reside in a particular district, in which matter of prosecution has arisen, calculated to excite feelings in the inhabitants inconsistent with the calm administration of impartial justice.

(d) Ante, p. 127.

(e) Hawk. B. 2, c. 25, s. 16; 2 Hale, 155.

(f) Hawk. B. 2, c. 25, s. 32.
(g) Lamb. 400.

See ante, p. 136, 137.

Number sworn.]-The number called and sworn (or making affirmation, if quaker, moravian, separatist, &c., &c., see post, Chap. IV. s. 2) on the grand inquest, should not be less than thirteen, nor more than twenty-three; not less than thirteen, because every bill must be found by twelve at least; not more than twenty-three, for if a number amounting to two full juries were sworn, there might be an equal division (i). At sessions, after sixteen or seventeen names have been called, and the parties have appeared, it is not unusual to consider the inquest as complete, and to dismiss all others attending on their

summons.

When the grand jurors who remain to serve have taken their places in the box assigned to them, and have named their foreman, the following oath is administered by the clerk of the peace to their foreman :

You, as foreman of this inquest, shall diligently inquire, and true presentment make, of all such matters and things as shall be given you in charge. The Queen's council, your fellows', and your own, you shall keep secret (k). You shall present no man for envy, hatred, or malice; neither shall you leave any man unpresented for fear, favour, or affection, or hope of reward; but you shall present all things truly as they come to your knowledge, according to the best of your understanding. So help you God.

Then the rest of the grand jury, by three at a time, in order, are sworn in the following manner :—

The same oath which your foreman hath taken on his part, you, and every of you, shall well and truly observe and keep on your parts. So help you God.

Charge to the Grand Jury.-When the grand jury are sworn, it becomes the duty of the chairman of the session to deliver his charge to them. It should consist of remarks tending to explain and elucidate any cases which the calendar may disclose, or may be likely to be pre

(i) See R. v. Marsh, 1 Nev. & P. 197; 6 Ad. & E. 237. But if a bill is found by a grand jury of more than twenty-three, and the prisoner pleads and is found guilty, the indictment will not be quashed on motion, and he will be left to his writ of error; no affidavit by a grand juryman of what passed in the grand jury room, e. g. as to the number of grand jurors who found the bill, will be received, S. C. However, in Sykes v. Dunbar, Selw. N. P. 1066 (MSS.), Lord Kenyon, in an action for malicious prosecution, permitted a grand juror to prove that the defendant was the prosecutor of the indictment. Lord Ellenborough, C. J., vouched this case in R.

v. Watson, 32 Howell's St. T. 107, but entertained doubts on the point, and see 12 Vin. Ab. Evidence (B a 5), Contra, 5 Harg. St. Tri. 72. It was argued, that the obligation of secresy only extends to evidence given by witnesses before the grand jury, R. v. Marsh, 6 Ad. & E. 237; but the court did not assent. Parke, B. has suffered a witness to be cross-examined whether he said so and so before the grand jury. Reg. v. Gibson, 1 C. & Mar. 672. As to perjury before then, Reg. v. Hughes, C. & Kir. 519; Reg. v. Jenkins, id. 536.

(k) See last note. Lee q. t. v. Birrell, 3 Camp. 337.

173 sented, and to require more than ordinary attention, either from the complicated nature of the facts, or from the law applicable to them happening to be of recent enactment or of unfrequent use. In cases, for example, where the distinction between principal in the first or second degrees, and accessaries before or after the fact; between theft and embezzlement ; or between larceny and breach of trust, or obtaining money under false pretences, are likely to arise on the matters which will be submitted to the grand jury, a popular explanation of the law on these subjects will facilitate their labours, and give to them their proper aim. When parties have been committed or held to bail on charges arising upon any recent act of parliament, it becomes absolutely necessary that the statute should be stated and explained by the chairman; and even where no such case is presented by the calendar, it may be expedient for him to take this opportunity of publicly stating and expounding any new penal law, or modification of the former law, which it may be desirable should be generally understood. In the exercise of a sound discretion, he may also advert to general topics presented by the calendar-to the prevalence of crime in general, or of any particular class of crime-to the causes which may induce it, and the means which may be applied by way of prevention. He may properly take occasion to discourage petty and frivolous prosecutions, as indictments for trifling assaults, which only serve to prolong animosities, to unsettle habits of industry, and to burden the parties with fruitless expenses. His local knowledge will enable him to expose with gentleness and clearness any prevalent mistake which may operate to the public evil; as those which sometimes exist in the remuneration of the labourer, and the administration of the poor laws; and, in times of excitement, to suggest considerations which may tend to preserve peace, order, and good-feeling among all classes of his neighbours.

Prosecutors and Witnesses called on their Recognizances to appear before the Grand Jury.]-At the conclusion of the charge, the grand jury retire to their room (1), and the parties who are bound by recognizance to prosecute and give evidence should be called; and those

(It appears from Dalton that formerly, during this retirement of the jury, settlement appeals, &c. were heard, and persons bound over to keep the peace or to good behaviour, were called, though not discharged till the end of the sessions, for fear persons should come during the sessions to prefer bills against them "when the birds are

flown;" see ch. 185, p. 459. From the same writer it appears that the trials did not anciently commence till the bills were come in against all the prisoners. They were then all arraigned; but Dalton, in favorem vitæ, opposes the trial of felonies at the same sessions, urging that a common misdemeanour of nuisance is traversable.

whose indictments are not in readiness, should be instructed by the clerk of the peace to have them prepared in his office, or by some competent person.) The bills should be fairly engrossed on parchment, with the names of the witnesses written on the back, in the order in which it is proposed to call them on the trial. Those witnesses should then be called, sworn in court (m), and then sent with the bills before the grand jury. Where it is doubtful whether the conviction of one, two, or more accomplices in an offence can be obtained without the evidence of one of them, a brief should be given to counsel to move the court that the accomplice (naming him) be allowed to go before the grand jury to give evidence. A copy of the depositions should accompany the brief, and if on reading it the counsel states to the court his opinion that the evidence of the accomplice is requisite for the purposes of justice, the order is made accordingly. However, if it appears that the accomplice is charged at the same sessions with any other felony besides that on the trial of which he is to be a witness, the court will not in general accede to the motion (n). The examination of a witness, however regularly taken by the magistrate, cannot be offered before the grand jury on preferring the bill, though he prevaricate before them, and there is strong reason to suspect that he has been tampered with by the prisoner since his deposition was taken (o).

Parties bound to prefer indictments will be liable to the forfeiture of their recognizances, if they fail to appear in time to have them investigated, or if they depart the court without leave before the grand jury are discharged, to which liability there is no exception, except where the offence is committed within the county of a city or

(m) In one case where the witnesses were examined before the grand jury without being sworn, and the objection did not appear till after conviction, the judges nevertheless recommended a pardon, R. v. Dickinson, R. & Ry. 401. Quære, Could error in fact have been assigned? See 6 Ad. & E. 242. However, Wightman, J., is reported to have held that if the bill is found, the judge should not inquire whether the witnesses were properly sworn before going before the grand jury, Reg. v. Russell, Car. & Marsh, 247, and semb. an improper mode of swearing them would not avoid the bill for it may be found by the grand jury on their own knowledge, S. C.

(n) Per A. Park, J., and Garrow, B. Oxford Spring Circuit, 1826, 2 C. & P.

410. As matter of right, a king's evidence is not exempt from prosecution for offences distinct from that respecting which he gave evidence, R. v. Brunton, R. & Ry. 454; R. v. Lee, id. 361.

(0) Denby's ca. 1 Leach, 514; 1 Ch. Cr. L. 1st ed. 82; Contra per Coltman, J., in case of a bed-ridden witness, R. v. Wilshaw, 1 C. & Mar. 145; also of insanity at time of trial, Reg. v. Marshall, i C. & Mar. 147, Coltman, J.; though under particular circumstances, e. g. of the witness's death, permanent inability to travel, or absence by procurement of prisoner, Reg. v. Gutteridge, 9 C. & P., the deposition would be evidence before a petty jury, ib. 1 Ch. Crim. L. 1st ed., 81.

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