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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 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 101. 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 Aun. 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.

(z) The statutes 4 & 5 W. & M. c. 8. 6 & 7W. the sheriffs) are extended to the county-palatine III. c. 17. and 5 Ann. c.31. (together with 3 Geo. I. of Durham, by stat. 14 Geo. Ill. c. 46. c. 15, 04, which directs the method of reimbursing

(18) The above acts are repealed by 7 and held that though a constable might be justified 8 Geo. IV. c. 22. 27. 64. and 58 Geo. III. c. in removing him from the church, and detain70; and costs are allowed to prosecutors in ing him till the service was over, yet he could certain cases.

not legally detain him afterwards to take him (1) In a late case, where it was stated the before a magistrate, 2 B. & C. 699. party behaved improperly in a church, it was A walchman 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 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.

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sender over to a constable, or take him before ting for so long a period; and they referred to a magistrate. Dalt. J. c. 104.

the case of Scavage v. Tateham, Cro. Eliz. A private person may do the same as a 829, as justifying that opinion. Ed. MS. watchman. In a late case, it was held that a (3) The prisoner's examination must not be private person when he took a party endea- upon oath; that of the witnesses must be. 2 vouring to commit a felony, mighi detair

. him, Hale, P. C. 52; 1 id. 585; 1 Phil. Ev. 106. in order to take him before a magistrate. 1 Where magistrates first took the examination R. & M. C. C. 93.

of witnesses, not on oath, in support of a con(2) A constable, arresting a man on suspi- viction, and afterwards swore them to the cion of felony, is bound to take him before a truth of their evidence, the court of King's magistrate as soon as he reasonably can; and Bench expressed their disapprobation of the he has no right to detain a prisoner three days practice. . Rex v. Kiddy, 4 D. and R. 734. without taking him before a magistrate, in or. The prisoner has no right to the assistance of der that evidence may be collected in support an attorney, when under examination on a of a felony with which he is charged. Wright charge of felony; the privilege, when allow. v. Court, 6 D. and R. 623. And see 2 Haw. ed, is entirely a matter of discretion in the P. C. 117.

magistrate. Cox v. Coleridge, 2 D. and R. It is the duty of the magistrate to take and 86; 1 B. and C. 37; 1 M. C. 142. See, how. complete the examination of all concerned, ever, im elaborate note on this important suband to discharge or commit the individual sus- ject, Paley on Convictions, 2d ed. by Dowling, pected, as soon as the nature of the case will 28 et seq., where the propriety of that decision admit.

Fost. 142, 3. But he is allowed a is considered. reasonable time for this purpose, before he (4) Recognizance to Prosecute.---Besides makes his final decisions. It seems to have this commitment and bail, the magistrate been formerly considered, that the law intends should take the recognizance of the prosecu. three days to be sufficient, and that a magis. tor to appear and prefer an indictment and trate cannot justify the detainer of a party give evidence at the next sessions of the eighteen days under examination. , Scavage peace, or general gaol delivery, as the case r. Tateham, Cro. Eliz. 829; 1 Hale, P. C. may require, and in case of refusal may com595, 6; 2 id. 120, 1; 2 Haw. P. C. c. 16, s. mit him to gaul. I Hale, 586. 2 Hale, 52. 12; 1 Chit. Cr. L. 72. This point was con- 121. 3 M. & S. l. See further, Burn J. Re. sidered in a very recent case, Davis v. Cap. cognizance; Williams J. Recognizance; 1 per. K. B., sittings in banc before Easter term, Chit. C. L. 90. 1829. That was an action against a magis. Recognizance to give Evidence. When it aptrate for false imprisonment. The plaintiff pears that a person brought before the magis. had been brought before the defendant upon trate as a witness, may probably be able to suspicion of felony, and was committed by give material evidence against the prisoner, him for further examination for fourteen days. he has, in the cases of manslaughter and fe

The court, without giving judgment upon the lony, by the express provisions of the statutes, whole case, which comprehended other ques. 1 & 2 Ph. & M. c. 13. s. 5. and 2 & 3 Ph. & tions, expressed a strong opinion that fourteen M. c. 10. s. 2. authority to bind such witness days was not a reasonable period for commit. by recognizance or obligation to appear at the ment for re-examination, and that a warrant next general gaoi delivery, to give evidence for such commitment was bad for not setting against the party indicted; and infants and forth full and satisfactory reasons for commit- married women, who cannot legally bind

+ In New-York, see accordir.gly, 2 R. S. any question : he may also produce his own 708, 9 14, &c. The prisoner is to be allow. witnesses, who are to be examined. If there ed time to send for counsel, who shall be pre- be “no probable cause for charging" him, he sent at the examination : and the prisoner is is to be discharged. (Id. 20.) to be cautioned that he is not bound to answer



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 ihere that a man may not be induced to forseit, 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 (). What the nature of bail is, haih 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 he 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) See Book III. page 200.

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

themselves, must procure others to be bound sonment in the state.prison, may be discharg. for them. And if the witness refuse to give ed by a justice of the county where he is arsuch recognizance, the magistrate has power rested on giving bail. (2 R. S. 707. 98.) The to commit him, this being virtually included in chancellor, the judges of the supreme court, his commission, and by necessary consequence circuit judges, and supreme court commission. upon the above-mentioned statutes. 3M. & ers may let to bail in all cases ; judges of the S. l. 1 Hale, 586. This doctrine was con- county courts may in cases triable before the firmed in a late case, where a married woman general sessions : a justice of the peace, or refused to enter into a recognizance for her alderman of a city; and in the city of New appearance al sessions, to give evidence York, a special justice or assistant justice may, against a felon, and the magistrate committed in all cases of misdemeanor, and cases of her, and the court of king's bench held that felony where the imprisonment in the statethe commitment was legal. 3 M. & S. l. prison cannot exceed five years. (2 R. S. 710, But a justice of the peace is not authorized 0 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 in. into 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 to bail, can be let to bail only by the court recognizance (at the peril of commitment) is having jurisdiction to try the offence : or if it all that ought to be required; per Graham, B. be not sitting, then by the chancellor, a su Bodmin Sum. Ass. 1817, i Burn J. 24 ed. preme court judge or commissioner, or a cir. 1013.

cuit judge : or, if the offence may be tried in See accordingly, 2 R. S. 709, 9 21, &c. a court of general sessions, then by a judge

(5) In New-York, any one accused of any of the county court. (Id. 728, 9 56.) offence not punishable with death or impri. (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 (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 (1) 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 ( 2 Hal. P. C. 127.

per plegios dimitti, praeter quam in placito de homi(g) c. 2, 0 24.

cidio, ubi ad terrorem aliter statutum est. (Glanv. (i) In omnibus placitis de felonia solet accusatus


(h) 2 Inst. 189.

1. 14, c. 1.)

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

yet, if the bail were taken corruptly, the ma. charge of felony, or'suspicion of felony, begistrate would continue liable to an informa- fore one or more justice or justices of the tion or indictment. 2 T. R. 190.

peace, and the charge shall be supported by (7) Sed quære if a sheriff has this power? positive and credible evidence of the fact, or it seems not. See 4 T. R. 505. 2 H. Bla. 418. by such evidence as, if not explained or conLamb. 15.

tradicted, shall, in the opinion of the justice (8) The court of king's bench, or any judge or justices, raise a strong presumption of the thereof, in vacation, may at their discretion guilt of the person charged, such person shall admit persons to bail in all cases whatsoever; be committed to prison by such justice or jus. see 3 East, 163. 5 T. R. 169; but none can tices, in the manner thereinafter mentioned; claim this benefit de jure. 2 Hale, 129. As but if there shall be only one justice present, to when this court will bail, see 1 Chit. C. L. and the whole evidence given before him shall 2 ed. 98, 9.

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 iwo 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. l; 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 charge ed, unless the judge who granted the warranted, as shall in their opinion weaken the prehas written the words “not bailable" on the sumption of his or her guilt, but there shall back of the process.

notwithstanding appear to them, in either of See, as to New York, 2 R. S. 707, 9 5, &c. such cases, to be sufficient ground for judicial

(10) These statutes are all repealed by the inquiry into his or her guilt, the person charg7 Ĝ. IV. c. 64 ; by s. I. of which it is enacted, ed shall be admitted to bail, by such two jus“ that where any person shall be taken on a tices in the manner thereinafter mentioned Vol. II.


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 sub

sequent 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 (0), 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 (9) (11). But


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

(0) In omnibus placitis de felonia solet accusatus (m) Skin. 683. Salk. 105. Stra. 911. 1 Comyns per plegios dimitti, praeterquam in placito de homiDig. 497.

Sciendum tamen quod, (n) In the reign of queen Elizabeth it was the in hoc placito, non solet accusatus per plegios dimitti, unanimous opinion of the judges, that no court nisi er regiae potestatis beneficio. (Ibid. c. 3.) could bail upon a commitment, for a charge of (p) Staundi. P. C. 73. b. high treason by any of the queen's privy council. (9) 2 Hal. P. C. 122. provided always that nothing therein contain: charged by due course of law.” And where ed shall be construed to require any such jus. the commitment is in the nature of punishment, tice or justices to hear evidence on behalf of the time of imprisonment must be stated, and any person so charged, unless it shall appear to if it be until the party be discharged by due him or them to be meet and conducive to the course of law it will be bad, 5 B. & A. 895; ends of justice to hear the same."

but where in other respects the time of impriAs to the law of New York, see note † to sonment is sufficiently stated, the unnecessary note 3, p. 296, ante.

addition of the words “ until he be discharged (11) This is not the form where the offence by due course of law," will not vitiate. 3 M. is bailable and the party cannot find bail; in & S. 283. And as to the form of the mittithat case it is to keep the prisoner in custodymus in general, see 1 Chit. C. L. 109 to 116. for want of sureties, or until he sball be dis. 2d ed.

cidio. (Glan. 1. 14, c. 1.)

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