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Justices of the Peace, &c.

served shall not be and appear before the Justice or Justices at the time and place mentioned in such summons in obedience to the same or at such other time and place, if any, to which the hearing of such case may be adjourned, then it shall be lawful for such Justice or Justices to issue his or their warrant (D) for apprehending the party so summoned, and bringing him before such Justice or Justices or some other Justice or Justices of the Peace for the said Colony to answer the charge in the said information and complaint mentioned and to be further dealt with according to law: Provided always that no objection shall be taken or allowed to any such summons or warrant for any alleged defect therein in substance or in form, or for any variance between it and the evidence adduced on the part of the prosecution before the Justice or Justices who shall take the examinations of the witnesses in that behalf as hereinafter mentioned; but if any such variance shall appear to such Justice or Justices to be such that the party charged has been thereby deceived or misled, it shall be lawful for such Justice or Justices at the request of the party so charged to adjourn the hearing of the case to some future day, and in the meantime to remand the party so charged or admit him to bail in manner hereinafter mentioned.

If party sum

moned do not attend, Justice

may issue a warrant to compel attendance

No objection alleged defect in form, &c.

allowed for

Warrant to apbe under the hand and seal of

prehend parties,

to

Justice

7. And be it declared and enacted that every warrant (B) hereafter to be issued by any Justice or Justices of the Peace to apprehend any person charged with any indictable offence shall be under the hand and seal or hands and seals of the Justice or Justices issuing the same and may be directed either to any Constable or other person or generally to the Constables of the district within which the same is to be executed, or any of them without naming them, or to such Constables and all other Constables or Peace Officers in the said Colony, or generally to all or any of the Constables or Peace Officers within the said Colony, and it shall state shortly the offence on which it is founded, and shall name or otherwise describe the offender, and it shall order the person or persons to whom it is directed to apprehend the offender and bring him before the Justice or Justices issuing the said warrant or before some other Justice or Justices of the Peace for the said Colony to answer the charge contained in the said information and to be further dealt with according to law; and it shall not be necessary to make such warrant returnable at any particular time, but the same may remain in force until it shall be executed; and such warrant may be executed by How warrant is apprehending the offender at any place within the said Colony; and in to be directed, all cases where such warrant shall be directed to all Constables or other Peace Officers within the said Colony it shall be lawful for any Constable or other Peace Officer for any place within such Colony to execute the said warrant in like manner as if such warrant be directed specially to such Constable by name, and notwithstanding the place in which warrant shall be executed shall not be within the place for which he shall be such Constable or other Peace Officer: Provided always that no objection shall be taken or allowed to any such warrant for any defect therein in substance or in form or for any variance between it and the evidence adduced on the part of the prosecution before the Justice or Justices who shall take the examinations of the witnesses in that behalf as is hereinafter mentioned; but if any such variance shall appear to such Justice or Justices to be such that the party charged has been thereby deceived or misled, it shall be lawful for such Justice

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and to whom

If summons not obeyed, warrant may be issued to compel attendance

Justices of the Peace, &c.

or Justices at the request of the party so charged to adjourn the hearing of the case to some future day, and in the meantime to remand the party so charged or to admit him to bail in manner hereinafter mentioned.

8. And be it enacted that if it shall be made to appear to any Justice of the Peace by the oath or affirmation of any credible person that any person within the jurisdiction of such Justice is likely to give material evidence for the prosecution, and will not voluntarily appear for the purpose of being examined as a witness at the time and place appointed for the examination of the witnesses against the accused, such Justice may and is hereby required to issue his summons (K 1) to such person under his hand and seal, requiring him to be and appear at a time and place mentioned in such summons before the said Justice or before such other Justice or Justices of the Peace for the said Colony as shall then be there, to testify what he shall know concerning the charge made against such accused party and also (if such Justice shall think fit) to bring with him and produce for examination such paper or papers or documents as shall be in his possession or power, and as shall by such Justice be deemed necessary and be therein set forth; and if any person so summoned shall neglect or refuse to appear at the time and place appointed by the said summons and no just excuse shall be offered for such neglect or refusal, then (after proof upon oath or affirmation of such summons having been served upon such person, either personally or by leaving the same for him with some person at his last or most usual place of abode) it shall be lawful for the Justice or Justices before whom such person should have appeared to issue a warrant (K 2) under his or their hands and seals to bring and have such person, at a time and place to be therein mentioned, before the Justice who issued the said summons or before such other Justice or Justices of the Peace for the said Colony as shall then be there, to testify as aforesaid and (as the case may be) to produce such papers and documents as aforesaid, or if such Justice or Justices shall be satisfied by evidence upon oath or affirmation that it is probable that such person will not attend to give evidence without being compelled to do so, then, instead of issuing such summons, it shall be lawful for him or them to issue his or their warrant in (K 3) warrants may be the first instance, and if on the appearance of such person so summoned before the said last-mentioned Justice or Justices, either in obedience to the said summons or upon being brought before him or them by virtue of the said warrant, such person shall refuse to be examined upon oath or affirmation concerning the premises or shall refuse to take such oath or affirmation, or having taken such oath or affirmation shall refuse to answer such questions concerning the premises as shall then be put to him or (as the case may be) shall refuse to produce for examination any such paper or document as aforesaid which shall be in his possession or power, without offering any just excuse for such refusal, any Justice or Justices of the Peace then present and having there jurisdiction may by warrant (K 4) under his hand and seal ing on summons, commit the person so refusing to the common gaol, house of correction or bridewell for the place where such person so refusing shall then be, there to remain and be imprisoned for any time not exceeding seven days, unless he shall in the meantime consent to be examined and

In certain cases

issued in the

first instance

Persons appear

&c., refusing to be examined, may be committed

Justices of the Peace, &c.

to answer concerning the premises or (as the case may be) to produce the said papers or documents as aforesaid.

nation of witnesses

minister oath or affirmation

9. And be it enacted that in all cases where any person shall As to the examiappear or be brought before any Justice or Justices of the Peace, charged with any indictable offence, whether committed in the Colony aforesaid or on the high seas or on land beyond the sea, or whether such person appear voluntarily upon summons or have been apprehended with or without warrant, or be in custody for the same or any other offence, such Justice or Justices, before he or they shall commit such accused person to prison for trial, or before he or they shall admit him to bail, shall in the presence of such accused person, who shall be at liberty to put questions to any witness produced against him, take the statement (L) on oath or affirmation of those who shall know the Justice to adfacts and circumstances of the case, and shall put the same into writing, and such depositions shall be read over to and signed respectively by the witnesses who shall have been so examined, and shall be signed also by the Justice or Justices taking the same, and the Justice or Justices before whom any such witness shall appear to be examined as aforesaid shall before such witness is examined administer to such witness the usual oath or affirmation, which such Justice or Justices shall have full power and authority to do; and if upon the trial of the person so accused as first aforesaid it shall be proved by the oath or affirmation of any credible witness that any person whose deposition shall have been taken as aforesaid is dead or so ill as not to be able to travel, and if also it be proved that such deposition was taken in the presence and hearing of the person so accused, and that he or his counsel or attorney had a full opportunity of cross-examining the witness, then, if such deposition purport to be signed by the Justice or Justices by or before whom the same purports to have been taken, it shall be lawful to read such deposition as evidence in such prosecution, without further proof thereof, unless it shall be proved that such deposition was not in fact signed by the Justice or Justices purporting to sign the same.

10. And be it enacted that after the examinations of all the witnesses on the part of the prosecution as aforesaid shall have been completed, the Justice of the Peace or one of the Justices by or before whom such examination shall have been so completed as aforesaid shall, without requiring the attendance of the witnesses, read or cause to be read to the accused the depositions taken against him, and shall say to him these words or words to the like effect:- Having heard the evidence, do you wish to say anything in answer to the charge? You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence against you upon your trial;' and whatever the prisoner shall then say in answer thereto shall be taken down in writing (M) 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 the said accused person the same may, if necessary, be given in evidence against him without further proof thereof if the same purports to be signed by the Justice or Justices by or before whom the same purports to have been taken, unless it shall be proved

Depositions of

persons who

have died, or who

are absent, may in certain cases be read in evi

dence

After examination of the accused, Justice to

read depositions taken against them, and caution as to any

statement they

may make ;

he has nothing

to hope or fear

from either

promise or

threat

Justices of the Peace, &c.

that the Justice or Justices purporting to sign the same did not in fact and inform that 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 favour 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 upon his 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.

Place where examination taken, not to be deemed an open Court, and no person remain

without consent

Power to Justice to bind over the prosecutors and witnesses by recognizance

Recognizance,

to be transmitted

to the Court in which the trial is to be had

11. And be it declared and enacted that the room or building in which such Justice or Justices shall take such examinations and statement as aforesaid shall not be deemed an open Court for that purpose, and it shall be lawful for such Justice or Justices in his or their discretion to order that no person (the counsel or attorney of any person then being in such Court as a prisoner only excepted) shall have access to or be, or remain in such room or building without the consent or permission of such Justice or Justices, if it appear to him or them that the ends of justice will be best answered by so doing.

12. And be it enacted that it shall be lawful for the Justice or Justices before whom any such witness shall be examined as aforesaid to bind by recognizance (N) the prosecutor and every such witness to appear at the next Court of Oyer and Terminer or gaol delivery or Court of General or Quarter Sessions of the Peace at which the accused is to be tried, then and there to prosecute or to prosecute and give evidence or to give evidence as the case may be against the party accused, which said recognizance shall particularly specify the profession, art, mystery or trade of every such person entering into or acknowledging the same together with his Christian and surname and the place of his residence, and if his residence be in a city or town; the recognizance shall also particularly specify the name of the street depositions, &c., and the number (if any) of the house in which he resides and whether he is owner or tenant thereof or a lodger therein; and the said recognizance being duly acknowledged by the person so entering into the same, shall be subscribed by the Justice or Justices before whom the same shall be acknowledged and a notice (N 2) thereof, signed by the said Justice or Justices, shall at the same time be given to the person bound thereby; and the several recognizances so taken, together with the written information (if any), the depositions, the statement of the accused and the recognizance of bail (if any) in every such case shall be delivered by the said Justice or Justices, or he or they shall cause the same to be delivered to the proper officer of the Court in which the trial is to be had before or at the opening of the said Court on the first day of the sitting thereof, or at such other time as the Judge, Recorder or Justice who is to preside in such Court at the said trial order and appoint: Provided always that if any such witness shall refuse to enter into or acknowledge such recognizance as aforesaid, it shall be lawful for such Justice or Justices of the Peace by his or their warrant (0 1) to commit him to the common gaol or house of correc

Witnesses refus ing to enter into recognizances may be committed

Justices of the Peace, &c.

tion of the district or place in which the accused party is to be tried, there to be imprisoned and safely kept until after the trial of such accused party, unless in the meantime such witness shall duly enter into such recognizance as aforesaid before some one Justice of the Peace of the said Colony: Provided nevertheless that if afterwards, from want of sufficient evidence in that behalf or other cause the Justice or Justices before whom such accused party shall have been brought shall not commit him or hold him to bail for the offence with which he is charged, it shall be lawful for such Justice or Justices or any other Justice or Justices of the said Colony by his or their order (02) in that behalf to order and direct the Keeper of such common gaol or house of correction where such witness shall be so in custody to discharge him from the same, and such Keeper shall thereupon forthwith discharge him accordingly.

to remand the accused from

time to time, not exceeding eight

days, by warrant

13. And be it enacted that if, from the absence of witnesses, or Power to Justice from any other reasonable cause, it shall become necessary or advisable to defer the examination or further examination of the witnesses for any time, it shall be lawful to and for the Justice or Justices before whom the accused shall appear or be brought by his or their warrant (P 1) from time to time to remand the party accused for such time as by such Justice or Justices in their discretion shall be deemed reasonable, not exceeding eight clear days, to the common gaol or house of correction or other prison, lock-up house or place of security in the place for which such Justice or Justices shall then be acting; or if the remand be for a time not exceeding three clear days, it shall be lawful for such Justice or Justices verbally to order the Constable or other person in whose custody such party accused may then be, or any other Constable or person to be named by the said Justice or Justices in that behalf, to continue or keep such party accused in his custody, and to bring him before the same or such other Justice or Justices as shall be there acting at the time appointed for continuing such examination: Provided always, that any such Justice or Justices may order such accused party to be brought before him or them, or before any other Justice or Justices of the Peace for the said Colony at any time before the expiration of the time for which such accused party shall be so remanded, and the Gaoler or Officer in whose custody he shall then be shall duly obey such order: Provided also that, instead of detaining the accused party in custody during the period for which he shall be so remanded, the Justice or Justices of the Peace before whom such accused party shall so appear or be brought as aforesaid may discharge him upon his entering into recognizance (P 2, 3), with or without a surety or sureties, at the discretion of such Justice, conditioned for his appearance at the time and place appointed for the continuance of such examination; and if such accused party shall not If party does not afterwards appear at the time and place mentioned in such recognizance, then the said Justice or any other Justice of the Peace who may then and there be present, upon certifying (P 4) on the back of the recognizance the non-appearance of such accused party, may transmit such recognizance to the Clerk of the Peace of the place within which such recognizance shall have been taken, to be proceeded upon in like manner as other recognizances, and such certificate shall be deemed sufficient prima facie evidence of such non-appearance of the said accused party.

[graphic]

Party accused may be admitted examination being adjourned

to bail on the

gnizance, Justice may same to the Clerk

transmit the

of the Peace

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