relative to this matter, is that of Winchester, 13 Edw. I. c. 1 & 4. which directs, that from thenceforth every country fhall be fo well kept, that immed tely upon robberies and felonies committed, fresh fuit fhall be made from town to town, and from county to county; and that hue and cry fhall be raised upon the telons, and they that keep the town fhall follow with hue and cry, with all the town and the towns near; and fo hue and cry shall be made from town to [294] town, until they be taken and delivered to the sheriff. And, that fuch hue and cry may more effectually be made, the hundred is bound by the fame ftatute, c. 3. to anfwer for all robberies therein committed, unless they take the felon; which is the foundation of an action against the hundred ", in cafe of any lofs by robbery. By ftatute 27 Eliz. c. 13. no hue and cry is fufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II. c. 16. the constable or like officer, refufing or neglecting to make hue and cry, forfeits 51: and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein and the felon escapes. An institution, which hath long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century; which is faid to have effectually delivered that vast territory from the plague of robbers, by making in fome places the villages, in others the officers of justice, responsible for all the robberies committed within their respective districts". Hue and cry may be raised either by precept of a justice of the peace, or by a peace officer, or by any private man that knows of a felony. The party raifing it must acquaint the conftable of the vill with all the circumstances which he knows of the felony, and the perfon of the felon; and thereupon the conftable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the profecution of fuch hue and cry the con X u See Vol. III. pag. 161. w Mod. Un. Hist. vi. 383. vii. 156. x 2 Hal. P. C. 100-104 ftable Book IV. stable and his attendants have the fame powers, protection, and indemnification, as if acting under the warrant of a justice of the peace. But if a man wantonly or maliciously raises an hue and cry, without caufe, he fhall be feverely punished as a disturber of the public peace. In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on fuch as bring them to justice, by divers acts of parliament. The statute [295] 4 & 5 W. & M. c. 8. enacts, that fuch as apprehend a highwayman, and profecute him to conviction, fhall receive a reward of 401. from the public; to be paid to them (or, if killed in the endeavour to take him, their executors) by the fheriff of the county; befides the horfe, furniture, arms, money, and other goods taken upon the perfon of fuch rob-ber; with a reservation of the right of any perfon from whom the fame may have been stolen: to which the statute 8 Geo. II. c. 16. fuperadds 107, to be paid by the hundred indemnified by fuch taking. By statutes 6 & 7 W. III. c. 17. and 15-Geo. II. c. 28. perfons apprehending and convicting any offender against thofe ftatutes, refpecting the coinage, fhall (in cafe the offence be treafon or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By ftatute 10 & 11 W. III. cr 23. any person apprehending and profecuting to conviction a felon guilty of burglary, housebreaking, horsestealing, or private larciny to the value of 5 s. from any shop, warehouse, coach-house, or stable, fhall be excufed from all parish offices. And by statute 5 Ann. c. 31. any person so apprehending and profecuting a burglar, or felonious housebreaker, (or, if killed in the attempt, his executors,) shall be entitled to a reward of 40/4. By statute 6 Geo. I. c. 23. perfons difcovering, apprehending, and profecuting to conviction, any perfon taking reward for helping others to their ftolen goods, fhall be entitled to forty pounds. By statute 14 Geo. II. c. 6. explained by 15 Geo. II. c. 34. any per fon apprehending and profecuting to conviction such as steal, or kill with intent to steal, any sheep or other cattle specified in the latter of the faid acts, fhall for every fuch conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II. c. 15. and & Geo. III. c. 15. perfons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be tranfported, fhall receive a reward of twenty pounds. CHAPTER THE TWENTY-SECOND. OF COMMITMENT AND BAIL. W HEN a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought reguIarly to be carried before a justice of the peace: and how he is there to be treated, I fhall next fhew, under the second head, of commitment and bail. THE juftice, before whom fuch prifoner is brought, is bound immediately to examine the circumftances of the crime alleged and to this end by ftatute 2 & 3 Ph. & M. c. 10. he is to take in writing the examination of fuch prifoner, and the information of those who bring him: which, Mr. Lambard obferves, was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere feipfum: 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 manifeftly appears, either that no fuch crime was committed, or that the fufpicion entertained of the prifoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise he muft either be committed to prifon, or give bail; that is, put in fecurities for his appearance, to answer the charge against him. This commitment therefore being only for fafe cuftody, wherever bail will answer the fame intention, it ought to be taken; as in most of the inferior crimes; but in felonies, and other offences of a capi a Eirenarch. b. 2. c. 7. See pag. 357. tal nature, no bail can be a fecurity equivalent to the actual cuftody of the perfon. For what is there that a man may not be induced to forfeit, to save his own life? and what fatisfaction or indemnity is it to the public, to feize the effects of them who have bailed a murderer, if the murderer himself be fuffered to efcape with impunity? Upon a principle fimilar to which, the Athenian magiftrates, when they took a folemn oath, never to keep a citizen in bonds that could give three fureties of the fame quality with himself, did it with an exception to fuch as had embezzled the public money, or been guilty of treasonable practices. What the nature of bail is, hath been fhewn in the preceding book, viz. a delivery or bailment, of a perfon to his fureties, upon their giving (together with himself) sufficient fecurity for his appearance: he being supposed to continue in their friendly cuftody, instead of going to gaol, In civil cafes we have feen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore inquire, in what cafes the party accufed 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 fubject, in any magiftrate by the common law, as well as by the statute Westm. 1. 3 Edw. I. c. 15. and the habeas corpus act, 31 Car. II. c. 2. And, left the intention of the law should be fruftrated by the juftices requiring bail to a greater amount than the nature of the case demands, it is exprefsly declared by statute 1 W. & M. ft. 2. c. 1. that exceffive bail ought not to be required; though what bail fhall be called exceffive, must be left to the courts, on confidering the circumftances of the cafe, to determine. And, on the other hand, if the magiftrate takes infufficient bail, he is liable to be fined, if the criminal doth not appear. Bail may be taken either in court, or in fome particular cafes by the fheriff, coroner, or other magistrate; but most usually by the justices of the peace. Regularly, in all offences either against the common b Pott. Antiq. b. 1. c. 18. c See Vol. III, pag. 290. d2 Hawk. P. C. 901 law |