Sivut kuvina

In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice, by divers acts of parliament. The statute 4 & 5 W. & M. c. 8. enacts, that such as apprehend a highwayman, and prosecute him to conviction, shall re

ceive a reward of 401. from the public; to be paid to them (or, if [*295] *killed in the endeavour to take him, their executors) by the sheriff of the county; besides the horse, furniture, arms, money, and other goods taken upon the person of such robber; with a reservation of the right of any person from whom the same may have been stolen: to which the statute 8 Geo. II. c. 16. superadds 10l. to be paid by the hundred indemnified by such taking. By statutes 6 & 7 W. III. c. 17. and 15 Geo. II. c. 28. persons apprehending and convicting any offender against those statutes, respecting the coinage, shall (in case the offence be treason or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By statute 10 & 11 W. III. c. 23. any person apprehending and prosecuting to conviction a felon guilty of burglary, house-breaking, horse-stealing, or private larceny to the value of 5s. from any shop, ware-house, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31. any person so apprehending and prosecuting a burglar, or felonious house-breaker, (or, if killed in the attempt, his executors), shall be entitled to a reward of 401. (z). By statute 6 Geo. I. c. 23. persons discovering, apprehending, and prosecuting to conviction, any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14 Geo. II. c. 6. explained by 15 Geo. II. c. 34. any person apprehending and prosecuting to conviction such as steal, or kill with an intent to steal, any sheep or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II. c. 15. and 8 Geo. III. c. 15. persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds (18).



WHEN a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace (1): and how he is there to be treated, I shall next shew, under the second head, of commitment and bail.

(2) The statutes 4 & 5 W. & M. c. 8. 6 & 7W. III. c. 17. and 5 Ann. c. 31. (together with 3 Geo. I. c. 15, ◊ 4, which directs the method of reimbursing

(18) The above acts are repealed by 7 and 8 Geo. IV. c. 22. 27. 64. and 58 Geo. III. c. 70; and costs are allowed to prosecutors in certain cases.

(1) In a late case, where it was stated the party behaved improperly in a church, it was

the sheriffs) are extended to the county-palatine of Durham, by stat. 14 Geo. III. c. 46.

held that though a constable might be justified in removing him from the church, and detaining him till the service was over, yet he could not legally detain him afterwards to take him before a magistrate, 2 B. & C. 699.

A watchman should deliver the supposed of

The justice before whom such prisoner is brought, is bound immediately to examine the circumstances of the crime alleged (2): and to this end by statute 2 & 3 Ph. & M. c. 10. he is to take in writing the examination of such prisoner, and the information of those who bring him (3): which, Mr. Lambard observes (a), was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men. If upon this inquiry it manifestly appears, that either no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he must either be committed to prison, or give bail: that is, put in securities for his appearance, to answer the charge against him (4). This commitment therefore

(a) Eirenarch. b. 2, c. 7. See page 357.

fender over to a constable, or take him before a magistrate. Dalt. J. c. 104.

A private person may do the same as a watchman. In a late case, it was held that a private person when he took a party endeavouring to commit a felony, might detain him, in order to take him before a magistrate. R. & M. C. C. 93.

(2) A constable, arresting a man on suspicion of felony, is bound to take him before a magistrate as soon as he reasonably can; and he has no right to detain a prisoner three days without taking him before a magistrate, in order that evidence may be collected in support of a felony with which he is charged. Wright v. Court, 6 D. and R. 623. And see 2 Haw. P. C. 117.

It is the duty of the magistrate to take and complete the examination of all concerned, and to discharge or commit the individual suspected, as soon as the nature of the case will admit. Fost. 142, 3. But he is allowed a reasonable time for this purpose, before he makes his final decisions. It seems to have been formerly considered, that the law intends three days to be sufficient, and that a magistrate cannot justify the detainer of a party eighteen days under examination. Scavage v. Tateham, Cro. Eliz. 829; 1 Hale, P. C. 585, 6; 2 id. 120, 1; 2 Haw. P. C. c. 16, s. 12; 1 Chit. Cr. L. 72. This point was considered in a very recent case, Davis v. Capper. K. B., sittings in banc before Easter term, 1829. That was an action against a magistrate for false imprisonment. The plaintiff had been brought before the defendant upon suspicion of felony, and was committed by him for further examination for fourteen days. The court, without giving judgment upon the whole case, which comprehended other questions, expressed a strong opinion that fourteen days was not a reasonable period for commit ment for re-examination, and that a warrant for such commitment was bad for not setting forth full and satisfactory reasons for commit

In New-York, see accordingly, 2 R. S. 708, § 14, &c. The prisoner is to be allow ed time to send for counsel, who shall be sent at the examination: and the prisoner is to be cautioned that he is not bound to answer


ting for so long a period; and they referred to the case of Scavage v. Tateham, Cro. Eliz. 829, as justifying that opinion. Ed. MS.

(3) The prisoner's examination must not be upon oath; that of the witnesses must be. 2 Hale, P. C. 52; 1 id. 585; 1 Phil. Ev. 106. Where magistrates first took the examination of witnesses, not on oath, in support of a conviction, and afterwards swore them to the truth of their evidence, the court of King's Bench expressed their disapprobation of the practice. Rex v. Kiddy, 4 D. and R. 734.† The prisoner has no right to the assistance of an attorney, when under examination on a charge of felony; the privilege, when allow ed, is entirely a matter of discretion in the magistrate. Cox v. Coleridge, 2 D. and R. 86; 1 B. and C. 37; 1 M. C. 142. See, however, an elaborate note on this important subject, Paley on Convictions, 2d ed. by Dowling, 28 et seq., where the propriety of that decision is considered.

(4) Recognizance to Prosecute.--Besides this commitment and bail, the magistrate should take the recognizance of the prosecutor to appear and prefer an indictment and give evidence at the next sessions of the peace, or general gaol delivery, as the case may require, and in case of refusal may commit him to gaol. 1 Hale, 586. 2 Hale, 52. 121. 3 M. & S. 1. See further, Burn J. Recognizance; Williams J. Recognizance; 1 Chit. C. L. 90.

Recognizance to give Evidence.-When it appears that a person brought before the magistrate as a witness, may probably be able to give material evidence against the prisoner, he has, in the cases of manslaughter and felony, by the express provisions of the statutes, 1 & 2 Ph. & M. c. 13. s. 5. and 2 & 3 Ph. & M. c. 10. s. 2. authority to bind such witness by recognizance or obligation to appear at the next general gaol delivery, to give evidence against the party indicted; and infants and married women, who cannot legally bind any question: he may also produce his own witnesses, who are to be examined. If there be "no probable cause for charging" him, he is to be discharged. (Id. 20.)

being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes: but in fe[*297] lonies, and other offences of a "capital nature, no bail can be a security equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to save his own life? and what satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which the Athenian magistrates, when they took a solemn oath, never to keep a citizen in bonds that could give three sureties of the same quality with himself, did it with an exception to such as had embezzled the public money, or been guilty of treasonable practices (b). What the nature of bail is, hath been shewn in the preceding book (c), viz. a delivery of bailment, of a person to his sureties, upon their giving (together with himself) sufficient security for his appearance: he being supposed to continue in their friendly custody, instead of going to gaol. In civil cases we have seen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore inquire, in what cases the party accused ought, or ought not, to be admitted to bail (5).

And, first, to refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any magistrate by the common law (d), as well as by the statute Westm. 1. 3 Edw. I. c. 15. and the habeas corpus act, 31 Car. II. c. 2. And, lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute 1 W. & M. st. 2, c. 1. that excessive bail ought not to be required; though what bail should be called excessive, must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal doth not appear (e) (6). Bail may be taken either in court, or in some particular cases

(b) Pott. Antiq. b. 1, c. 18.

(c) Sce Book III. page 200.

(d) 2 Hawk. P. C. 90.
(e) lbid. 89.

sonment in the state-prison, may be discharg ed by a justice of the county where he is ar rested on giving bail. (2 R. S. 707. 8.) The chancellor, the judges of the supreme court, circuit judges, and supreme court commissioners may let to bail in all cases; judges of the county courts may in cases triable before the general sessions: a justice of the peace, or alderman of a city; and in the city of New York, a special justice or assistant justice may in all cases of misdemeanor, and cases of felony where the imprisonment in the stateprison cannot exceed five years. (2 R. S. 710,

themselves, must procure others to be bound for them. And if the witness refuse to give such recognizance, the magistrate has power to commit him, this being virtually included in his commission, and by necessary consequence upon the above-mentioned statutes. 3 M. & S. 1. 1 Hale, 586. This doctrine was confirmed in a late case, where a married woman refused to enter into a recognizance for her appearance at sessions, to give evidence against a felon, and the magistrate committed her, and the court of king's bench held that the commitment was legal. 3 M. & S. 1. But a justice of the peace is not authorized 29.) So also the court of oyer and terminer by law to commit a witness willing to enter may let to bail any one committed before ininto a recognizance for his appearance to give dictment found upon any charge whatever; evidence against an offender, merely because and the court of general sessions has the like such witness is unable to find a surety to join power as to offences triable in that court. (Id. him in such recognizance, nor ought the jus-30, 31.) Persons already indicted, if entitled tice to require such surety: the party's own recognizance (at the peril of commitment) is all that ought to be required; per Graham, B. Bodmin Sum. Ass. 1817, 1 Burn J. 24 ed.


See accordingly, 2 R. S. 709, § 21, &c. (5) In New-York, any one accused of any offence not punishable with death or impri

to bail, can be let to bail only by the court having jurisdiction to try the offence: or if it be not sitting, then by the chancellor, a su preme court judge or commissioner, or a circuit judge: or, if the offence may be tried in a court of general sessions, then by a judge of the county court. (Id. 728, 56.)

(6) And even if the criminal does appear,

by the sheriff (7), coroner, or other magistrate (8): but most usually by the justices of the peace (9). 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 (ƒ). 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 (10); and upon the whole we may collect (k), that no justice

(f) 2 Hal. P. C. 127.

(g) c. 2, 24.

(A) 2 Inst. 189.

(i) In omnibus placitis de felonia solet accusatus

yet, if the bail were taken corruptly, the magistrate would continue liable to an information or indictment. 2 T. R. 190.

(7) Sed quære if a sheriff has this power? it seems not. See 4 T. R. 505. 2 H. Bla. 418. Lamb. 15.

(8) The court of king's bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever; see 3 East, 163. 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.

per plegios dimitti, praeter quam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glanv. 7. 14, c. 1.)

(k) 2 Inst. 186. 2 Hal. P. C. 129.

charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner thereinafter mentioned; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presump(9) The 24 Geo. II. c. 55, enacts, that where tion of guilt, nor to warrant the dismissal of a warrant has been backed, and the party ac- the charge, such justice shall order the person cused has been taken out of the county where charged to be detained in custody, until he or the supposed offence has been committed, any she shall be taken before two justices at the justice of the county where he was taken, may, least; and where any person so taken, or any if the offence be bailable, take bail; and the person in the first instance taken before two same provision is extended to Ireland, by 44 justices, shall be charged with felony, or on Geo. III. c. 92. s. 1; and the 45 Geo. III. c. suspicion of felony, and the evidence given in 92, and the 48 Geo. III. c. 58. s. 2, enact, that support of the charge shall, in their opinion, where the offender escapes from one part of not be such as to raise a strong presumption the United Kingdom to the other, he may be of the guilt of the person charged, and to rebailed by any judge or justice of that part of quire his or her committal, or such evidence the United Kingdom where he was apprehend shall be adduced on behalf of the person charg ed, unless the judge who granted the warranted, as shall in their opinion weaken the prehas written the words "not bailable" on the back of the process.

See, as to New-York, 2 R. S. 707, § 5, &c. (10) These statutes are all repealed by the 7 G. IV. c. 64; by s. 1. of which it is enacted, "that where any person shall be taken on VOL. II.



sumption of his or her guilt, but there shall notwithstanding appear to them, in either of such cases, to be sufficient ground for judicial inquiry into his or her guilt, the person charged shall be admitted to bail, by such two justices in the manner thereinafter mentioned

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 abjur[*299] ed the realm: 7. *Approvers, of whom we shall 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 admissable 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. Accessaries 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 other inferior homicide; 15. Such.persons, being charged with petit larceny, or any felony not before specified: or, 16. With being accessary 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 [*300] *session lasts or such as are 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 by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commit. ment there to abide till delivered by due course of law (q) (11). But

(7) 2 Inst. 189. Latch. 12. Vaugh. 157. Comb. 111. 298. 1 Comyns Dig. 495.

(m) Skin. 683. Salk. 105. Stra. 911. 1 Comyns Dig. 497.

(n) In the reign of queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment, for a charge of high treason by any of the queen's privy council.

provided always that nothing therein contain ed shall be construed to require any such jus tice or justices to hear evidence on behalf of any person so charged, unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same."

As to the law of New-York, see note † to note 3, p. 296, ante.

(11) This is not the form where the offence is bailable and the party cannot find bail; in that case it is to keep the prisoner in custody "for want of sureties, or until he shall be dis

(1 Anders. 298.)

(0) In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio. (Glan. . 14, c. 1.) Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi er regiae potestatis beneficio. (Ibid. c. 3.) (p) Staundf. P. C. 73. b. (q) 2 Hal. P. C. 122.

charged 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.

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