hundred, in cafe of any loss by robbery. By statute 27 Eliz. c. 13. no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II. c. 16. the conftable or like officer refusing 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 some 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 raising it must acquaint the conftable of the vill with all the circumftances which he knows of the felony, and the person of the felon; and thereupon the conftable is to search his own town, and raise all the neighbouring vills, and make purfuit with horse and foot: and in the profecution of fuch hue and cry, the constable 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 a hue and cry, without cause, he shall be severely punished as a disturber of the public peace*. In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice, by divers acts of parliament. The statute 4 & 5 W. & M. c. 8. enacts, that such as apprehend a highwayman, and profecute him to conviction, shall receive a reward of 40 1. from the public; to be paid to them (or, if killed t See Vol. III. pag. 160. Mod. Un. Hist. vi. 383. vii. 156. W 2 Hal. P. C. 100-104. * 1 Hawk. P. С. 75. Nn2 in Воок IV. in the endeavour to take him, their executors) by the sheriff of the county: to which the statute 8 Geo. II. c. 16. fuperadds 107. to be paid by the hundred indemnified by such taking. By statute 10 & 11 W. III. c. 23. any person apprehending and profecuting to conviction a felon guilty of burglary or private larciny to the value of 5 s. from any shop, warehouse, coachhouse, or stable, shall be excused 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/. CHAPTER THE TWENTY OF COMMITMENT SECOND. AND BAIL. HEN W a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace. And how he is there to be treated, I shall next shew, under the second head, of commitment and bail. THE justice, before whom such prisoner is brought, is bound immediately to examine the circumstances of the crime alleged : and to this end by statute 2 & 3 Ph. & M. c. 10. he is to take in writing the examination of such prisoner, and the information of those who bring him: which, Mr Lambard observes, 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 enquiry it manifestly appears, either that no such crime was committed, or that the fufpicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to difcharge him. Otherwise he must either be committed to prison, or give bail; that is, put in securities for his appearance, to anfwer • Eirenarch. b. 2. c. 7. the the charge against him. This commitment therefore being only for safe custody, 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 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 fatisfaction or indemnity is it to the public, to fcize the effects of then who have bailed a murderer, if the murderer himself be fuffered to escape 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 sureties of the same quality with himself, did it with an exception to fuch as had embezzled the public money, or been guilty of treasonable practises. What the nature of bail is, hath been shewn in the preceding book; viz. a delivery, or bailment, of a person to his fureties, upon their giving (together with himself) fufficient 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 cafes 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 lawd; 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 frustrated by the justices requiring bail to a greater amount than the nature of the cafe demands, it is expreffly declared by statute 1 W. & M. ft. 2. c. I. that excessive bail ought not to be required: though what bail shall be called excessive, must be left to the courts, on confidering the circumstances of the case, to determine. And on the other hand, if the magiftrate takes infufficient bail, he is liable Pott. Antiq. b. 1. c. 18. • See Vol. III. pag. 290. d 2 Hawk. P. С. 90. to to be fined, if the criminal doth not appear. Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate; 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, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament. In order therefore more precisely to afcertain 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 confider 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 fafe 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 ensure that justice shall be done upon him, if guilty. Such persons therefore, as the author of the mirror observes, have no other sureties but the four walls of the prison. By the antient common law, before and fince 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. 1. 3 Edw. I. c. 15. takes away the power of bailing in treason, and in divers instances of felony. The statute 1 & 2 Ph. & Mar. c. 13. gives farther regulations in this matter: and upon the whole we may collect*, that no justices of the peace can bail, 1. Upon an accufation of treason: nor, 2. Of murder: nor, i e 2 Hawk. P. C. 89. 2 Hal. P. C. 127. g c. 2. §. 24. ▲ 2 Inft. 189. 1 In omnibus placitis de felonia folet accufa tus per plegios dimitti, praeterquam in placito de homicidio, ubi ad terrorem aliter ftatutum eft. (Glanv. 1. 14. c. 1.) k 2 Inft. 186. 2 Hal. P. C. 129. 3. In |