2 and 3 P. and 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. (4) 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 lawlul totally to discharge him. Otherwise he mast either be committed to prison, or give bail: that is put in securities for his appearance, to answer the charge against him. (5) This commitment, therefore, 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 felonies, 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 [*297] 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 mur

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

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, 143.}

(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 courts of king's bench expressed their disapprobation of the practice. Rex v. Kiddy, 4 D. and R. 734.]

(4) The statute 2 and 3 P. and M. c. 10, is repealed. By statute 11 and 12 Vic. c. 42, s. 17, when a person appears or is brought before a justice or justices charged with an indictable offence, the justice or one of the justices shall read or cause to be read to the accused the depositions taken against him, and shall say to him these words or words of the like effect: Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you on your trial;" and whatever the prisoner shall then say in answer thereto shall be taken down in writing and read over to him, and shall be signed by the said justice or justices, and kept with the depositions of the witnesses, and shall be transmitted with them as hereinafter mentioned; and afterwards, upon the trial of said accused person, the same may, if necessary, be given in evidence against him without further proof thereof, unless it shall be proved that the justice or justices purporting to sign the same did not in fact sign the same; provided always that the said justice or justices, before such accused person shall make any statement, shall state to him and give him clearly to understand that he has nothing to hope from any promise of favor and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him on the trial, notwithstanding such promise or threat; provided, nevertheless, that nothing herein enacted or contained shall prevent the prosecutor in any case from giving in evidence any admission or confession or other statement of the person accused or charged, made at any time, which by law would be admissible as evidence against such person.” Some further provisions are made by statute 30 and 31 Vic. c. 35.

The statement of one defendant is not evidence against another arrested on the same charge. Reg. v. Swinnerton, 1 C. and M. 593. It must not be taken on oath, or it will be inadmissible. Rex v. Smith, 1 Stark. N. P. 242; R. v. Rivers, 7 C. and P. 177; R. v. Pikesley, 9 id. 124.

(5) [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 id. 52, 121; 3 M. and S. 1.

When it appears nat 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 statute, 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 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. and S. 1; 1 Hale, 586.]

VOL. II.-61

481

derer, if the murderer himself be suffered to escape with impunity? Upon 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 shown 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 enquire in what cases the party accused ought, or ought not, to be admitted to bail.

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. 1, 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 I W. and 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 by the sheriff, coroner, or other magistrate, (7) but most usually by the justices of the peace. Regularly, in all offences either against the common law or act of parliament, that are below felony,

[ *298] 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. I, 3 Edw. 1, 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 and 2 P. and M. c. 13, give further regulations in this matter; (8) and upon the whole we may collect, (k) that no justice of the peace

(b) Pott. Antiq. b. 1, c. 18. (e) Ibid. 89.

(c) See book III, page 200.
(g) C. 2, § 24.

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

(d) 2 Hawk. P. C. 90. (h) 2 Inst. 189.

In omnibus placitis de felonia solet accusatus per plegios dimitti, præter 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.

(6) [And even if the criminal does appear, yet, if the bail were taken corruptly, the magistrate would continue liable to an information or indictment. 2 T. R. 190.]

(7) 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.]

(8) These statutes are since repealed, and much more liberal authority is conferred upon justices to admit to bail.

In the United States it is provided by the national and state constitutions that unreasonabio bail shall not be required. But what is reasonable is necessarily left to the discretion of the

can bail, 1. Upon an accusation of treason: (9) 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 [*299] we shall speak in a subsequent chapter, and persons by them accused: S. Persons taken with the mainour, or in the fact of felony: 9. Persons charged with arson. 10. Excommunicated persons taken by writ de excomunicato 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 other inferior homicide: 15. Such persons, being charged with petit larceny, 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 (0) or any other offence, according to the circumstances 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 clude 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 committed for contempts by any of the king's superior courts of justice. (p)

[*300 ]

Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be conimitted to the county gaol 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) But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, nor 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

(7) 2 Inst. 189. Latch 12. Vaugh. 157. Comb. 111, 298. 1 Comyn's Dig. 495. (m) Skin, 683. Salk. 105. Stra. 911. 1 Comyn's 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. 1 Anders. 298. (0) In omnibus placitis de felonia solet accusatus per plegios dimitti, præterquam in placito de homicidio. (Glan. l. 14, c. 1.) Sciendum tamen quod, in hoc placito non solet accusatus per plegios dimitti, nisi ex regiæ potestatis beneficio. (Ibid. c. 3.) (g) 2 Hal. P. C. 122.

(p.) Staundf. P. C. 73, b.

officer who is empowered to fix it. Bail is usually denied in offences punishable capitally, but it may be taken in any case. State v. Summons, 19 Ohio, 139; Ex parte Tayloe, 5 Cow. 39; U. S. v. Hamilton, 3 Dall. 18; Commonwealth v. Semmes, 11 Leigh, 665; .U. S. v. Jones, 3 Wash. C. C. 224; Barronet's Case, 1 El. and Bl. 1.

As to the duty of the justices in taking bail to look into the nature of the charge and the evidence to sustain it, see the case last cited. The duty is essentially judicial. Linford v. Fitzroy, 13 Q. B. 240; Reg. v. Badger, 4 id. 468.

(9) On a charge of treason, bail cannot be taken, except by order of a secretary of state, or by the court of queen's bench, or in vacation, by one of the judges thereof. 11 and 12 Vic.

C. 12.

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; (8) "custodes pænam sibi commissorum non augeunt, nec eos torqueant; sed omni sævitia remota, pietatique adhibita, judicia debite exequantur.”

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTIONS.

THE next step towards the punishment of offenders is their prosecution, cr the manner of their formal accusation. (1) 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.

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 nuisance, 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 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; 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. (2) Other inquisitions may be after[*302] wards traversed and examined; as particularly the coroner's *inquisition of the death of a man, when it finds any one guilty of homicide;(3).

(r) 2 Inst. 381. 3 Inst. 34.

(s) Flet. l. 1 c. 26. (a) Lamb. Eirenarch. l. 4, c. 5. (b) 2 Inst. 739.

(1) [It may here be useful briefly to consider the time when the prosecution shall 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 shown, upon oath, that the witnesses for the prosecution could not be produced at the preceding session. 31 Car. II, c. 2, § 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.] (2) Mr. Justice Coleridge points out an inaccuracy here. He shows that inquisitions of felo de se may be traversed by the executors or administrators of the deceased: Toomes v. Etherington, 1 Saund. R. 363, n. 1, ed. 1824; that inquisition is not taken of the flight of persons accused of felony distinct from the felony; that the finding as to deodands is not so conclusive but that the court may interfere to diminish the value: Fost. 266; and that, as to presentments of petty offences in the tourn or leet, Lord Mansfield has said that it cannot be true that they are not traversable anywhere: Cowp. 459: and the law seems to be that, before the fine is estreated and paid, though not afterwards, the presentment may be removed hy certiorari into the court of king's bench, and traversed there. Rex v. Heaton, 2 T. R. 184.

• (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, and 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

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 misdemeanor, 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, (4) but to what amount is uncertain: (e) which seems to be casus omissus, and as proper to be supplied by the legislature 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. 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 præfectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem 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 concerning all particulars relating to their own district. This number was probably *found too large and inconvenient; but the traces of this institution still remain [*303] 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)

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, (d) 2 Hal. P. C. 154. (e) Ibid. 155. (f) Wilk. LL. Angl. Sax. 117.

(c) See Appendix, § 1. (g) State Trials, iv, 183.

taken feloniously, the verdict served also as an indictment. 2 Hale, 151; Hawk, b. 2, c. 15, § 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. 5 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, § 6.]

Generally in the United States, by express constitutional provisions, a party can only be put on trial for a crime after presentment by a grand jury, except in the case of inferior offences. And where this presentment is allowed to be dispensed with, an information filed by the public prosecutor is substituted.

(4) It is not essential that they be frecholders. Russ. and R. 177.