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: 8. 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 conımitted 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. (7) 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

(1) 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. 7. 14, c. 1.) Sciendum tamen quod, in hoc placito non solet accusatus per plegios dimitti, nisi ex regi potestatis beneficio. (Ibid. c. 3.) (q) 2 Hal. P. C. 122.

(p.) Staundr. 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; (s)" custodes pænam sibi commissorum non augeant, 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.

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 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 afterwards traversed and examined; as particularly the coroner's *inquisi[*302] tion of the death of a man, when it finds any one guilty of homicide; (3)

(r) 2 Inst. 351. 3 Inst. 34.

(s) Flet. 1.1 c. 26. (a) Lamb. Eirenarch. 1. 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 a 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 wil 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, (e) Ibid. 155. (f) Wilk. LL. Angl. Sax. 117.

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

(d) 2 Hal. P. C. 154.

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, e. 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.

that where a man was wounded in one county, and died in another, the offender was at common law indictable in either, because no complete act of felony was done in any one of them; but by statute 2 and 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 versa; 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. c. VIII, 23, 35 Hen. VIII, c. 2, and 5 and 6 Edw. VI, c. 11. And counterfeiters, washers or minishers of the current coin, together with all manner of felons and [*304] their accessories, may by statute 26 Hen. VIII, c. 6 (confirmed and explained by 34 and 35 Hen. VIII, c. 26, §§ 75, 76), be indicted and tried for those offences, if committed in any part (h) of Wales, before the justices of gaoldelivery and of the peace in the next adjoining county of England, where the king's writ runneth: that is, at present in the county of Hereford or Salop; and not, as it should seem, in the county of Chester or Monmouth: the one being a county-palatine where the king's writ did not run, and the other a part of Wales, in 26 Hen. VIII. (i) Murders, also, whether committed in England or foreign parts, (h) may by virtue of the statute 33 Hen. VIII, c. 23, be inquired of and tried by the king's special commission in any shire or place in the kingdom. By statute 10 and 11 Wm. III, c. 25, all robberies and other capital crimes, committed in Newfoundland, may be inquired of and tried in any county in England. Offences against the black-act. 9 Geo, I, c. 22, may be inquired of and tried in any county in England, at the option of the prosecutor. (1) So felonies in destroying turnpikes, or works upon navigable rivers, erected by authority of parliament, may by statutes 8 Geo. II, c. 20, and 13 Geo. III, c. 84, be inquired of and tried in any adjacent county. By statute 26 Geo. II, c. 19, plundering or stealing from any vessel in distress or wrecked, or breaking any ship contrary to 12 Ann. st. 2, c. 18, (m) may be prosecuted either in the county where the fact is committed, or in any county next adjoining; and, if committed in Wales, then in the next adjoining English county: by which is understood to be meant such English county as by the statute 26 Hen. VIII, above mentioned, had before a concurrent jurisdiction with the great sessions of felonies committed in Wales. (n) Felonies committed out of

[ *305] the realm, in burning or destroying the king's ships, *magazines or stores, may by statute 12 Geo. III, c. 24, be inquired of and tried in any county of England, or in the place where the offence is committed. By statute 13 Geo. III, c. 63, misdemeanors committed in India may be tried upon information or indictment in the court of king's bench in England; and a mode is marked out for examining witnesses by commission, and transmitting their depositions to the court. But in general, all offences must be inquired into, as well as tried, in the county where the fact is committed. Yet, if larceny be committed in one county, and the goods carried into another, the offender may be indicted in either; for the offence is complete in both. (0) Or he may be indicted in England, for larceny in Scotland, and carrying the goods with him into England, or vice versa; or for receiving in one part of the united kingdom goods that have been stolen in another. (p) But for robbery, burglary, and the like, he can only be indicted where the fact was actually cominitted; for though the carrying away and keeping of the goods is a continuation

Dec. 1720. Roache's Case, Dec. 1775.

(k) Ely's Case, at the Old Bailey, (1) So held by all the judges, II. 11 George III, in the case of Richard Mortis, on a case referred from the Old Bailey.

(m) See page 245.

(n) At Shrewsbury summer assizes, 1774. Parry and Roberts were convicted of plundering a vessel which was wrecked on the coast of Anglesey. It was moved in arrest of judgment, that Chester, and not Salop, was the next adjoining English county. But all the judges (in Mich. 15 Geo III) held the prosecution to be regular. (0) 1 Hal. P. c. 507. (p) Stat 13 Geo. III, c. 31.

of the original taking, and is therefore larceny in the second county, yet it is not a robbery or burglary in that jurisdiction. And if a person be indicted in one county for larceny of goods originally taken in another, and be thereof convicted, or stands mute, he shall not be admitted to his clergy; provided the original taking be attended with such circumstances as would have ousted him of his clergy by virtue of any statute made previous to the year 1691. (7) (5).

When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill, "ignoramus;" or, we know nothing of it: intimating, that though the facts might possibly be true, that truth did not appear to them: but now, they assert in English more absolutely, "not a true bill;" or (which is the better way) "not found;" and then the party is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then *indorse upon it, & a true bill;" [*306] anciently "billa vera." The indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted at the suit of the king of any capital offence, unless by an unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation: and afterwards, by the whole petit jury, of twelve more, finding him guilty, upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree. () And the indictment, when so found, is publicly delivered into court.

Indictments must have a precise and sufficient certainty. (C) By statute

(q) Stat. 25 Hen. VIII, c. 3. 3 W. and M. c. 9.

(r) 2 Hal. P. C. 161.

(5) Formerly it was necessary to state the venue in the body of the indictment, but it is not so now. See statute 14 and 15 Vic. c. 100, § 23. And as the court by the same statute has power to allow an amendment in the statement of the venue, an objection on this score does not often become available, unless the indictment on its face, or the evidence given on the trial, shows that the court had no jurisdiction. And if the record on its face shows the court to have no jurisdiction, a conviction cannot be sustained without amendment, notwithstanding the court had jurisdiction in fact. Reg. v. Mitchell, 2 Q. B. 636.

(6) [The indictinent must state the facts of the crime with as much certainty as the nature of the case will admit. Cowp. 682; 5 T. R. 611-623. Therefore, an indictment charging the defendant with obtaining money by false pretences, without stating what were the particular pretences, is insufficient. 3 T. R. 581. The cases of indictment for being a common scold or barrator, or for keeping a disorderly house, or for conspiracy, may be considered as exceptions to the general rule. 2 T. R. 586; 1 id. 754; 2 B. and A. 205. And an indictment for endeavoring to incite a soldier to commit an act of mutiny, or a servant to rob his master, without stating the particular means adopted, may also be considered as an exception. 1 B. and P. 180.

The indictment ought to be certain to every intent, and without any intendment to the contrary. Cro. Eliz. 490; Cro. Jac. 20. But this strictness does not so far prevail, as to render an indictment invalid in consequence of the omission of a letter, which does not change the word into another of different signification, as undertood for understood, and receved for received: 1 Leach, 134, 145: and if the sense be clear, nice objections ought not to be regarded: 5 East, 259; and in stating mere matter of inducement, not so much certainty is required as in stating the offence itself. 1 Ventr. 170; Com. Dig. Indictment, G. The charge must be sufficiently explicit to support itself; for no latitude of intention can be allowed to include any thing more than is expressed. 2 Burr. 1127; 2 M. and S. 381. And every crime must appear on the face of the record with a scrupulous certainty: Cald. 187; so that it may be understood by every one; alleging all the requisites that constitute the offence; and that every averment must be so stated, that the party accused may know the general nature of the crime of which he is accused, and who the accusers are, whom he will be called upon to answer: 1 T. R. 69; and as a branch of this rule it is to be observed, that in describing some crimes, technical phrases and expressions are required to be used, to express the precise idea which the law entertains of the offence; see the instances in the text. The offence must be positively charged, and not stated by way of recital, so that the words "that whereas" prefixed, will render it invalid. 2 Stra. 900, n. 1; 2 Lord Ray. 1363. Stating an offence in the disjunctive is bad. 2 Stra. 901, 200; and see further, 1 Chit. C. L. 2d ed. 236. Repugnancy, in a material matter, may be fatal to the indictment. 5 East. 254. But though the indictment must in all respects be certain, yet the introduction of averments altogether superfluous and immaterial will soldem prejudice. For if the indictment can be supported