ally by the justices of the peace.10 Regularly, in all offences either against the common law or act of parliament, that are below [298] felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament. (f) In order, therefore, more precisely to ascertain what offences are bailable, :: Let us next see, who may not be admitted to bail, or what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature for then the public is entitled to demand nothing less than the highest security that can be given, viz. the body of the accused; in order to insure that justice shall be done upon him, if guilty. Such persons therefore, as the author of the mirror observes, (g) have no other sureties but the four walls of the prison. By the ancient common law, before (h) and since (i) the conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. 1. 3 Edw. I. c. 15. takes away the power of bailing in treason, and in divers instances of felony. The statutes 23 Hen. VI. c. 9. and 1 & 2 Ph. & Mar. c. 13. give farther regulations in this matter; and upon the whole we may collect, (k) that no justice of the peace can bail, 1. Upon an accusation of treason: nor, 2. Of murder: nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so: or if any indictment be found against him: nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another: 5. Persons outlawed: 6. Such as have abjured the realm: 7. Approvers, of whom we shall [299] speak in a subsequent chapter, and persons by them accused: 8. Persons taken with the mainour, or in the fact of felony : 9. Persons charged with arson 10. Excommunicated persons, taken by writ de excommunicato capiendo; all which are clearly not admissible to bail by the justices. Others are of a dubious nature: as, 11. Thieves openly defamed and known: 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and 13. Accessories to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not." The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame, charged with a bare suspicion of manslaughter, or f 2 Hal. P. C. 127. g C. 2. § 24. h 2 Inst. 189. i In omnibus placitis de felonia solet accusatus per plegios dimitti, praeter quam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glanv. l. 14. c. 1.) k 2 Inst. 186. 2 Hal. P. C. 129. persons to bail in all cases whatsoever; see 3 East, 162. 5 T. R. 169. ; but none can claim this benefit de jure. 2 Hale, 129. As to when this court will bail, see 1 Chit. C. L. 2 ed. 98, 9. (10) The 24 Geo. II. c. 55. enacts, that where a warrant has been backed, and the party accused has been taken out of the county where the supposed offence has been committed, any justice of the county where he was taken, may, if the offence be bailable, take bail; and the same provision is extended to Ireland, by 44 Geo. III. c. 92. s. 1. ; and the 45 Geo. III. c. 92. and the 48 Geo. III. c. 58. s. 2. enact, that where the offender escapes from one part of the United Kingdom to the other, he may be bailed by any judge or justice of that part of the United Kingdom where he was apprehended, unless the judge who granted the warrant has written the words "not bailable" on the back of the process. Chitty. (11) In prosecutions for obtaining goods by false pretences, 30 Geo. II. c. 24. s. 2.; or for receiving stolen goods, 2 East, P. C. 754. 39 & 40 Geo. III. c. 87. s. 22. sed vid. 2 T. R. 77. other inferior homicide; 15. Such persons, being charged with petit larciny, or any felony not before specified: or, 16. With being accessory to any felony. Lastly, it is agreed that the court (1) of king's bench (or any judge (m) thereof in time of vacation) may bail for any crime whatsoever, be it treason, (n) murder, (o) or any other offence, according to the circumstance of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes, would greatly tend to elude the public justice and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either house of parliament, so long as the session lasts: or such as are [300] committed for contempts by any of the king's superior courts of justice. (p) Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol 12 by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment there to abide till delivered by due course of law. (q) 13 But 12 Inst. 189. Latch. 12. Vaugh. 157. Comb. 111. 298. 1 Comyns Dig. 495. 13 up n In the reign of queen Elizabeth it was the unanimous opinion of the judges, that no court could bail on a commitment, for a charge of high treason by any of the queen's privy council. (1 Anders. 298.) o In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio. (Glanv. l. 14. c. 1.) Sciendum tamen quod, in hoc, placito, non solet accusatus per plegios dimitti, nisi ex regiae potestatis beneficio. (Ibid. c. S.) p Staundf. P. C. 73. b. q 2 Hal. P. C. 122. (12) The offender cannot be sent into any parts beyond the seas, or an action for false imprisonment may be brought, and not less than 5007. damages given. 31 Car. II. c. 12. The house of correction for the county of Middlesex, adapted to the separate reception of felons, pursuant to the 22 Geo. III. c. 64. and other acts, is a legal prison for the safe custody of persons under a charge of high treason, 8 T. R. 172.; and the Tower is a legal prison for state prisoners by immemorial usage, 5 Mod. 82. 8 T. R. 173. 1 Lord Raym. 425.; and it is provided, that persons charged with small offences may be committed by justices to the house of correction, or to the common gaol. 6 Geo. I. c. 19. s. 2. And the court of king's bench may commit defendants to any prison in England which they shall think most proper, and the party so committed cannot be removed or bailed by another court. Moore, 560. Bac. Ab. Gaol, C. By the 1 Geo. IV. c. 14. justices acting in any place, having a separate jurisdiction, are to commit offenders to the county gaol. The party should be committed to the proper prison in the first instance; for, to prevent the vexation and danger of protracted imprisonment which might otherwise be occasioned by his removal from gaol to gaol, it is provided by the habeas corpus act, that if any subject shall be committed to any prison, or in custody of any officer for any supposed criminal matter, he shall not be removed from such prison and custody into the custody of any other officer, unless it be by habeas corpus or some other legal writ, or where he is delivered to a constable or other inferior officer to be conveyed to some common gaol, &c. on pain of forfeiture of 1002. for the first offence, and 2001. for the second. 31 Car. II. c. 2. The 4 Geo. IV. c. 64. provides for the mode and places of imprisonment of persons committed for trial of various offences, and the admissions, at proper times, and under proper restrictions, of persons with whom such prisoners may desire to communicate. And the court of king's bench may compel the observance of this enactment, by mandamus, ordering the sheriff and gaoler to admit an attorney into the prison, to consult with the prisoner. The king v. Thurtell and others, K. B. 1823. On this act it has been decided, that prisoners committed to gaol for trial, who are able, but refuse to work, are not entitled by law to have any food provided for them by the public; and therefore where a magistrate reported as an abuse, to the justices of the quarter sessions, that untried prisoners had been compelled to work at the tread-mill, and the justices at the sessions ordered that the tread-mill should be applied to the employment of other prisoners as well as those sentenced to hard labour; and that those committed for trial who were able to work, and had the means of employment offered them, by which they might earn their support, but who refused to work, should be allowed bread and water only, this court refused to grant a mandamus to compel the justices to order such prisoners any other food. 2 B. & C. 236. 3 D. & R. 510. Chitty. (13) This is not the form where the offence is bailable and the party cannot find bail; in that S. C. this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore in his dubious interval 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) this being the humane language of our ancient lawgivers, (s) "custodes poenam sibi commissorum non au"geant, nec eos torqueant; sed omni saevitia remota, pietateque adhibita, "judicia debite exequantur." CHAP. XXIII. OF THE SEVERAL MODES OF PROSECUTION. THE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation.' And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment or indictment. I. A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, (a) without any bill of indictment laid before them at the suit of the king; as the presentment of a nusance, 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. An inquisition of office r2 Inst. 381. 3 Inst. 34. a Lamb. Eirenarch, 1. 4. c. 5. s Flet. l. 1. c. 26. case it is to keep the prisoner in custody "for want of sureties, or until he shall be discharged by due course of law." And where the commitment is in the nature of punishment, the time of imprisonment must be stated, and if it be until the party be discharged by due course of law it will be bad, 5 B. & A. 895.; but where in other respects the time of imprisonment is sufficiently stated, the unnecessary addition of the words " until he be discharged by due course of law," will not vitiate. 3 M. & S. 283. And as to the form of the mittimus in general, see 1 Chit. C. L. 109 to 116. 2d ed. (1) It may here be useful briefly to consider the time when the prosecution should be commenced. The habeas corpus act provides, that a person committed for treason or felony must be indicted in the ensuing term or sessions, or the party must be bailed, unless it be shewn upon oath, that the witnesses for the prosecution could not be produced at the preceding session. 31 Car. II. c. 2. s. 7. This regulation applies, however, only to persons actually confined upon suspicion, and is solely intended to prevent the protracting of arbitrary imprisonment: so that it does not preclude the crown from preferring an indictment at any distance of time from the actual perpetration of the offence, unless some particular statute limits the time of prosecuting. There is no general statute of limitations applicable to criminal proceedings. 2 Hale, 158. Lieutenant-colonel Wall was tried and executed, for a murder committed twenty years before. And it has been repeatedly held, that no length of time can legalize a public nuisance, although it may afford an answer to an action of a private individual. 7 East, 199, ante, 167. n. (12). Chitty. 2 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 therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; 2 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 or 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; 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. An indictment (c) is a written accusation of one or more persons of a crime or misdemesnor, preferred to, and 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 legisla ture as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county.5 As many as appear upon this panel are sworn upon 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. (f) Exeant seniores duodecim thani, et praefectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem c See Appendix, § 1. d 2 Hal. P. C. 154. f Wilk. LL. Angl. Sax. 117. e Ibid. 155. (2) But such an inquisition is now considered traversable. 1 Saund. 363. note 1. Impey's Off. Cor. 437. (3) Upon this inquisition the party accused may be tried without the intervention of the grand jury, 2 Hale, 61. 3 Camp. 371. 2 Leach, 1095. Russ. & R. C. C. 240. S. C.; and if an indictment be found for the same offence, and the defendant be acquitted on the one, he must be arraigned on the other, to which he may, however, effectually plead his former acquittal. 2 Hale, 61. Verdict in an Action.—There is also a mode in which a party may be put on his trial without any written accusation, viz. the verdict of a jury in a civil cause. 2 Hale, 150. 4 T. R. 293. 3 Esp. 134. Thus in an action for taking away goods, if the jury found that they were taken feloniously, the verdict served also as an indictment. 2 Hale, 151. Hawk. b. 2. c. 15. s. 6. Com. Dig. Indictment, C. Bac. Ab. Indictment, B. 5. And, at the present day, in an action for slander, in which the plaintiff is charged with a criminal offence, and the defendant justifies; if the jury find that the justification is true, the plaintiff may be immediately put upon his trial for the crime alleged against him, without the intervention of a grand jury. 4 T. R. 293. But the verdict must be found in some court, which has competent jurisdiction over criminal matters, or otherwise it seems to have but little force. 2 Hale, 151. Hawk. b. 2. c. 25. s. 6. An affidavit taken at nisi prius on a trial, may also be received by the court of king's bench, as the foundation of a criminal information against another. 4 T. R. 285. Chitty. (4) As to the mode of summoning and proving the attendance of the grand jury, see 1 Chit. C. L. 310, 1., and as to the time of summoning, id. 311. 6 Geo. IV. c. 50. s. 25. ante, 3 book, 356. (n). (5) The qualifications and exemptions of grand jurors are now pointed out by the 6 Geo. IV. c. 50. s. 1, 2. See the enactment, ante, 3 book, 356. n. 5. As to how many times they may be called on to serve, see 1 Chit. C. L. 308. b. c. 2ed. 6 Geo. IV. c. 50. s. 62. ante, 3 book. 356. n. 5. "noxium celare." 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 con. cerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces [303] 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) : 8 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 an 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 & 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 ver sâ; the offenders and their accessories 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 & 6 Edw. VI. c. 11. And counterfeiters, washers, or minishers of the current coin, together with all manner of felons [304] and their accessories, may by statute 26 Hen. VIII. c. 6. (confirmed g State Trials, IV. 183. (6) See further, as to the requisite number, 1 Chit. C. L. 306. 2 ed. (7) As to the mode of proceeding to swear and charge the grand jury, &c. 1 Chit. C. L. 2 ed. 312 to 314.; see the 59 Geo. III. c. 28.; for facilitating the despatch of business at sessions, ante, 271. n. 19. The jury must usually serve the whole of the sessions or assizes. 2 Hale, 156. See further, 1 Chit. C. L. 2 ed. 314. (8) See further, as to the preferring the bill, 1 Chit. C. L. 2 ed. 316. (9) See further, 1 Chit. C. L. 2 ed. 516, 7, 8.; and as to the mode of compelling the attendance of witnesses, id. 320 to 322. Stark. on Evid. part II. 109. IV. 1720. As to the kind of evidence a grand jury may receive, it should be observed as a general rule, they are bound to take the best legal proof of which the case admits, and it must be given on oath. 1 Chit. C. L. 318, 9. Russ. and R. C. C. 401. It is not unusual, except in the king's bench, where the clerk of the grand juries attends them, to permit the prosecutor to be present during the sitting of the grand jury, to conduct the evidence on the part of the crown. Kel. 8. 1 Chit. C. L. 317. The defendant, however, has no right to have a counsel or attorney, or any person skilled in the law, present as an advocate on his behalf, it being a preliminary investigation and not conclusive on him. 1 B. & C. 37. 51. 3 B. & A. 432. 1 Chit. Rep. 217. Chitty. VOL. II. 78 |