In the reign of Richard the Third, (h) to obviate the evils attendant upon the writ de odio et atia on the one hand, and the arbitrary discretion of the sheriff on the other; it was expressly provided, that every justice of the peace should have a discretionary power to let such persons to bail or mainprize, as if they had been indicted before the justices at the sessions. But their power was expressly confined to persons arrested on slight sus picions...

This statute, although in some respects beneficial, contributed in general to obstruct the due administration of the law, as every justice of the peace, being individually authorized to take bail, criminals not legally mainprizable, were permitted to re-obtain their liberty.

To remove these inconveniences the stat. 1 Rię. 3. was repealed; and in the reign of Henry the Seventh (i) it was ordained generally, "That the justices of the peace in every shire, city, or town, or two of them at the least, whereof one to be of the quorum, have authority and power to let any such prisoners or persons mainpernable by the law, that have been imprisoned within their several counties, city, or town, to bail or mainprize unto their next general sessions, or unto the next gaol delivery of the same gaols in every shire, city, or town, as well within franchises as without, where any gaols have been or hereafter shall be; and that the said justices of the peace, or one of them, so taking any such bail or mainprize, do certify the same at the next general sessions of the peace, or the next general gaol-delivery of any such goal, within every such county, city, or town, next following after any such bail or mainprize so taken, upon

pain to forfeit unto the king for every default thereupon recorded." And, it was further enacted by the same statute, "That every sheriff, bailiff of franchise, and every other person having authority or power of keeping of gaol, or of prisoners for felony, in like manner and form do certify the names of every such prisoner in their keeping, and of every prisoner to them committed for any such cause, at the next general gaol-delivery in every county or franchise where any such gaol or gaols have been or hereafter shall be, there to be kalendered before the justices of the deliverance of the same gaol, whereby they may, as well for the king as for the party, proceed to make deliverance of such prisoner according to the law, upon pain to forfeit unto the king for every default thereof recorded; and that the foresaid act, (k) giving authority and power in the franchises to any justice of the peace by himself, be in that behalf utterly void and of none effect." (1)

Still, however, the security afforded to the subject against malicious imprisonment was inadequate: the act was evaded; and the legislature once more obliged to interpose. For although the statute of Henry the Seventh required two justices, at least, to authorize the discharge of a party from custody, it gradually became the practice for one to take the bail and insert the name of another justice of the peace, who was seldom present. By this system prisoners were admitted to bail, neither with the solemnity nor caution which was required by the legislature.

To remove these impediments to justice, several salutary provisions were made by the statute 1 & 2 Ph. & M.

c. 13. (m) which enacts, "That no justice or justices of the peace shall let to bail or mainprize any such person or persons, which for any offence or offences by them or any of them committed, are declared not to be replevised or bailed, or be forbidden to be replevised or bailed by the statute of Westminster." (n) And it also provides, "That any person or persons arrested for manslaughter or felony, or suspicion of manslaughter or felony, being bailable by law, shall not after the day therein mentioned, be let to bail or mainprize by any justices of the peace, if it be not in open sessions; except it be by two justices of peace at the least, whereof one to be of the quorum, and the same justices to be present together, at the time of the said bailment or mainprize, which bailment or mainprize they shall certify in writing, subscribed or signed with their own hands at the next general gaol delivery, to be holden within the county where the said person or persons shall be arrested or suspected." (0)

There is, however, a provision in this act as to bail taken in London or Middlesex, and other cities, boroughs, and towns corporate. "That justices of peace and coroners within the city of London and county of Middlesex, and in other cities, boroughs, and towns corporate, within this realm and Wales, shall within their several

(n) Sect. 2.

(m) See 2 & 3 Ph. & M. c. 10. (o) Section 3. See 3 Bulst. 113., and the 4th section of the same statute enacts, "That the said justices, or one of them, being of the quorum, when any such prisoner is brought before them for any manslaughter, or felony, before any bailment or mainprize, shall take the examination of the said prisoner, and information of them that bring him of the fact and circumstances thereof, and the same or as much thereof as shall be material to prove the felony shall be put in writing before they make the same bailment; which said examination, together with the said bailment, the said justices shall certify at the next general gaol delivery, to be holden within the limits of their commission,"

jurisdictions have authority to let to bail felons and prisoners, in such manner and form as they have been heretofore accustomed." (p)

In this act, it will be observed, that the provisions of the statute of Westminster were again expressly recognized; regulations which the legislature had uniformly indicated an anxiety to preserve and enforce. The remedies which had been attempted to be afforded by the enactments in the reign of Richard the Third, (q) were put on a more stable and permanent basis, not only by requiring that the bail must be taken by two justices at least, unless it was accepted in open sessions when partiality could not be exercised, or justice made subservient to private interest, but by directing that both the justices must be present at the time of admitting the accused to bail. All the evasions and subterfuges which had been previously resorted to, were thus finally prevented, and the present system of bailing criminals established.

CHAPTER II.

BY WHOM BAIL MAY BE TAKEN, AND IN WHAT INSTANCES

IT SHOULD OR SHOULD NOT BE ACCEPTED.

SECTION I.

BY THE HOUSES OF PARLIAMENT.

THE House of Peers, or House of Commons, during their sessions, may bail a person committed for a contempt. (a)

(p) Sec. 6.

(9) Vide ante.

(a) See Skin. 683,

THE Court of King's Bench, being the supreme criminal tribunal in the kingdom, and its authority not being affected by the statute of Westminster, 3 Edw. 1. c. 15. has an absolute and unlimited power in bailing offenders.

That court in term, or any of its judges in vacation, may in their discretion accept bail on charges even of high treason, murder, or any other species of felony. (b) But although invested with this authority, they invariably act in conformity with the acknowledged rules adopted by other criminal jurisdictions, and never admit to bail those who are incapable of being released from prison by an inferior tribunal, without some particular circumstances in their favour, or cogent reason to induce the court to grant the indulgence (c)

A defect in the warrant of commitment, will not afford any additional ground to influence the court to discharge the party out of custody, when it can be clearly collected from the examinations and depositions returned, that there is any substantial cause for the prisoner being remanded. (d) This rule applies both with respect to the

(b) Com. Dig. Bail, F. 4 Bac. Ab. Bail, D. See Witham v. Dutton, Comb, 111. Platt's case, 1 Leach, 168. Rex v. Remnant, 5 T. R. Rep. 169. s. c. 1 East, P. C. 420. s. c. Nol. Rep. 205. Rex v. Marks, 3 East, 157. Elderton's case, 2 Ld. Raym. 978. Holt, 500. Skin. 683. Cowp. 333. 1 Wils. 29. Rex v. Baltimore, 1 Bl. Rep. 648. Rex v. Grieffenburgh, 4 Burr. 2179.

(c) 2 Hawk. P. C. 114. Bulst. 87.

Vide

Rex. v.

(d) Rex v. Marks, 3 East, 157. Rex v. Wyer, 2 T. R. 77. 2 East, P. C. 255. Platt's case, Leach, Cr. Law, 163. Rex v. Tudd, ibid. 485. 5 T. R. 169. 2 Hawk. P. C. 114. Cromp. Jus. 154. Remnant, 5 T. R. 169. s. c. Nol. Rep. 205. s. c. 1 East, P. C. 420. 2 Leach, Cr. Law, 583. "In cases of defective commitments, the practice used formerly to be to draw up a rule, remanding the prisoners in general terms to the same custody as before; but it occurred to the officers of the crown office to suggest an alteration of the practice in

General authority.