Sivut kuvina

dere seipsum; and his fault was not to be wrung out of himself, but rather to be discovered by other means and other

picion of felony, shall take the examination of such person, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or so much thereof as shall be material, into writing; and the two justices shall certify such bailment in writing; and every such justice shall have authority to bind by recognizance all such persons as know or declare any thing material to making any such felony, or suspicion of felony, to appear at the next court of oyer and terminer, or jail delivery, or sessions of the peace, at which the trial thereof is intended to be, then and there to prosecute or give evidence against the party accused; and such justices and justice respectively shall subscribe all the examinations, informations, bailments, and recognizances, and deliver, or cause the same to be delivered, to the proper of ficer of the court in which the trial is to be, before or at the opening of the court. Similar duties are imposed (except as to the power of taking bail) by sect. 3 on justices in case of misdemeanor, and by sect. 4 on coroners; and the neglect of these provisions is punishable by fine (s. 5). See, also, the 3 Geo. IV., c. 46, 8. 4, ante, p. 253, n. (3).*

If the prosecutor or a witness refuse to enter into the recognizance to prosecute or give evidence, the justice may commit him till he does so. 1 Hale,

586; 2 Hale, 52, 131; 3 M. & Selw., 1; see Burn, Just., Recognizance; 1 Chit., Crim. L., 90. But he can not commit a witness who is willing to enter into the recognizance, because he can not find a surety to join him in it. 1 Burn, Just., (24 ed.), 1013: his own recognizance (at the peril of commitment) is all that ought to be required. Infants and married women who can not legally bind themselves must procure others to be bound for them. See ante, p. 254. A magistrate can not issue a warrant for the apprehension of a person to attend and find bail for his appearance in either a civil or criminal case. 12 Ad. & Ell., 55.

The recent act "for enabling Persons indicted for Felony to make their Defense by Counsel or Attorney," 6 & 7 Will. IV., c. 114, entitles the accused to require and have on demand, from the person who has the lawful custody thereof, copies of the examinations of the witnesses on whose depositions they have been held to bail or committed (which means, finally committed for trial, Reg. v. Fletcher, Q. B., Hil. T., 1844), on payment of a reasonable sum. not exceeding 1d. for each folio of 90 words. And by sect. 4, all persons under trial are entitled, at the time of their trial, to inspect, without fee or reward, all depositions, or copies thereof, which have been taken against them, and returned

In New York, it is the duty of a magistrate, when a party arrested on a warrant is brought before him, forthwith to proceed to examine the complainant and the witnesses produced in support of the prosecution on oath, in the presence of the accused. After which, the prisoner must be examined in relation to the offense charged. Previous to his examination he must be informed of the charge made against him, be allowed a reasonable time to send for and advise with counsel, and must be informed that he is at liberty to refuse to answer any question put to him. His examination is not on oath. After it is completed, he is allowed to have witnesses sworn and examined on his part; and in such examination is entitled to the assistance of counsel. If he desire it, his counsel must be allowed to be present during the examination of the complainant, his witnesses, and of the accused. His answers are reduced to writing, and certified and signed by the magistrate; so, also, the evidence given by the several witnesses is reduced to writing by the magistrate, or under his direction, and is signed by the witnesses.

If, upon the examination of the whole matter, it appears to the magistrate either that no offense has been committed by any person, or that there is no probable cause for charging the accused therewith, it is his duty to discharge the prisoner. If, on the contrary, it appears to him that an offense has been committed, and that there is probable cause to believe the prisoner to be guilty thereof, it his duty to commit him to prison, or to let him to bail; that is, permit him to go at large, upon his entering into a recognizance, with sufficient sureties, for his appearance at the next court having cognizance of the offense.-(2 R. S., 708, § 13 to 25.)

In New York, a witness may be required to enter into a recognizance, with sureties to appear and testify; and, in default of doing so, may be committed to prison.-(2 R. S., 709, § 22, 24.) A strange provision!

men. If, upon this inquiry, it manifestly appears either that 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. 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 offenses of a [297] 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 shown in the preceding book, viz., a delivery, or 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 jail. 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.

b Pott., Antiq., b. 1, c. 18.
See vol. iii., page 290.

And, first, to refuse or delay to bail any person bailable, is an Of bail offense 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,

d 2 Hawk., P. C., 90.

into the court. Since this statute, the judges have intimated, on several occasions (see 6 C. & P., 460; 7 C. & P., 296,650, 667, 817), that it is proper (although not compulsory) that the magis trate should return a full statement of all that the witnesses said, not merely of so much thereof as they deem material; so much time having been occupied, since the passing of this act, in endeavoring to establish contradictions between the evidence of the witnesses and their depositions, in the omission of minute circumstances stated before the magistrates. The statute does not entitle the prisoner to a copy of his own statement returned by the magistrate, but only to copies of the depositions

against him. 8 C. & P., 667; see 7 C.
& P., 671.

It has been held that the judges sit-
ting at a court of jail delivery have pow-
er, by their general authority as a court
of justice, to order a copy of depositions
taken before a coroner to be given to a
prisoner indicted for the murder of the
person concerning whose death the in-
quiry took place before the coroner, al-
though in a case where the coroner could
not have been compelled to return them
under the 7 Geo. IV., c. 64, s. 4. 8 C.
& P., 32; see id., 767.

(4) This statute is repealed, as to this matter, by the 7 Geo. IV., c. 64; see infra, n. (9).

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 shall 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 Bail may be taken either in court, or, in some particular cases, by the sheriff, coroner, or other magistrate, but most usually by the [298] justices of the peace.' Regularly, in all offenses either against

the common law or act of Parliament that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of Parliament. In order, therefore, more precisely to ascertain what offenses are bailable,

What of fenses are bailable.

Let us next see who may not be admitted to bail, or what offenses 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 offenses; 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 afterward, in such cases bail is ousted or taken away, wherever the offense 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, beforeh and since the

• 2 Hawk., P. C., 89.
2 Hal., P. C., 127.
C. 2, § 24.

h. 2 Inst., 189.

(5) 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. [CHITTY.]

(6) Sed quære, if a sheriff has this power; it seems not. See 4 T. R., 505; 2 H. Bla., 418; Lamb., 15.-[CHITTY.]

(7) 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 offense has been committed, any justice

i In omnibus placitis de felonia solet accusatus per plegios dimitti, præterquam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glanv., 1. 14, c. 1.)

of the county where he was taken may. if the offense be bailable, take bail;* the same provision is extended to Ireland, by 44 Geo. III., c. 92, s. 1; and the 45 Geo. III., c. 92, and 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.]

The same provision is made in New York, unless the offense be punishable with death or imprisonment in a state prison; in which case the prisoner must be taken to the county where the warrant was originally issued.-(2 R. S., 707, § 5, 8, 11.)


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 What not 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 further regulations in this matter, and, upon the whole, we may collectk 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 [299] realm; 7. Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused; 8. Persons taken with the mainor, or in the fact of felony; 9. Persons charged with arson; 10. Excommunicated persons, taken by writ de excommunicato capiendo; all of 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 offenses, not being of good fame; and, 13. Accessories to felony that labor 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 security; 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

* 2 Inst., 186; 2 Hal., P. C., 129.

(8) See ante, n. (4).

until he or she shall be taken before two justices at the least; and where any (9) The 7 Geo. IV., c. 64, s. 1 [1827], person so taken, or any person in the has now provided, that where any per- first instance taken before two justices of son shall be taken, on a charge of felony, the peace, shall be charged with felony or suspicion of felony, before a justice or or on suspicion of felony, and the evijustices of the peace, and the charge shall dence given in support of the charge be supported by positive and credible ev- shall, in their opinion, not be such as to idence of the fact, or by such evidence as, raise a strong presumption of the guilt if not explained or contradicted, shall, in of the person charged, and to require his the opinion of the justice or justices, raise or her committal, or such evidence shall a strong presumption of the guilt of the be adduced on behalf of the person person charged, such person shall be charged as shall in their opinion weakcommitted to prison by such justice or en the presumption of his or her guilt, justices, in the manner thereinafter men- but there shall, notwithstanding, appear tioned; but if there shall be only one to them, in either of such cases, to be justice present, and the whole evidence sufficient ground for judicial inquiry into given before him shall be such as nei- his or her guilt, the person charged shall ther to raise a strong presumption of be admitted to bail by such two justices, guilt, nor to warrant the dismissal of the in the manner thereinafter mentioned; charge, such justice shall order the per- provided that nothing therein contained son charged to be detained in custody shall be construed to require any such

the Court of King's Bench (or any judgem thereof in time of vacation) may bail for any crime whatsoever, be it treason," murder, or any other offense, 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 offense. 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; [300] or such as are committed for contempts by any of the king's

superior courts of justice.p*

1 2 Inst., 189; Latch., 12; Vaugh., 157; Comb., 111, 298; 1 Comyn's Dig.,


m Skin., 683; Salk., 105; Stra., 911; 1 Comyn's Dig., 497.

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

justice or justices to hear evidence on
behalf of any person so charged as afore-
said, unless it shall appear to him or
them to be meet and conducive to the
ends of justice to hear the same.

This statute is materially extended by
the 5 & 6 Will. IV., c. 33, s. 3 [1835],
which enables any two justices of the
peace, of whom one shall have signed
the warrant of commitment, to admit to
bail any persons charged with felony, in
the manner directed by the 7 Geo. IV.,
c. 64, in such sum or sums of money, and

of the queen's privy council. (1 Anders., 298.)

• In omnibus placitis de felonia solet accusatus per plegios dimitti, præterquam in placito de homicidio. (Glan., 1. 14, c. 1.) Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi ex regiæ potestatis beneficio. (Ibid., c. 3.)

P Staundf., P. C., 73, b.

with such sureties as they shall think fit, and notwithstanding the accused persons shall have confessed the matter laid to their charge, or the justices shall not think the charge groundless, or shall think the circumstances are such as to raise a presumption of guilt.

And by the stat. 2 & 3 Vict. c. 71, s. 36 [1840], a single magistrate, sitting in any of the metropolitan police courts, has the same powers in this respect as two justices under the above statutes.

* From the text it is manifest that when the author wrote there were certain criminal offenses which, by the law of England, were deemed non-bailable; and that, in many cases, persons accused of crimes which were bailable could be admitted to bail only by the Court of King's Bench, or by a judge of that court, and not by a justice of the peace. By the ancient common law of England all felonies were bailable; but by a course of legislation commencing with the statute Westm. 1, 3 Edw. I., c. 15, passed in 1275, the power of bailing was taken away from certain officers in cases of treason, murder, arson, and other flagitious crimes. During the existence of those statutes, however, it was conceded that the King's Bench, in the exercise of a sound discretion, might bail in all cases, whatever might be the nature of the crime.-(2 Inst., 185, 186.) Still, the court paid a due regard to the statutory enactments on the subject, and did not admit to bail a person declared by statute irreplevisable without some particular circumstances in his favor. -(2 Hawk., P. C., 175.) Now it will be observed by the notes (3), (4), and (9), subjoined to this chapter, that the act of Westm. 1, 3 Edw. I., c. 15, and the other English acts declaring certain offenses non-bailable, have been repealed, and that the power of bailing in cases of felony has been extended first to two justices of the peace, and subsequently to a single magistrate of a police court.

In New York, an act of the legislature similar in its provisions to the statute Westm. 1, 3 Edw. I., c. 15, was enacted in 1787, forbidding a sheriff, under-sher

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