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 ftatute 8 Geo. II. c. 16. the conftable 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 inftitution, 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 vaft 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 refpective districts". Hue and cry may be raised either by precept of a juftice 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 constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and thereupon the constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot and in the profecution of such hue and cry, the constable and his attendants have the fame powers, protection, and indemnification, as if acting under the warrant of juftice of the peace. But if a man wantonly or maliciously raises a hue and cry, without caufe, he shall be severely punished as a disturber of the public peace *.

W

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, fhall receive a reward of 40 1. 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 to which the ftatute 8 Geo. II. c. 16. fuperadds 10l. to be paid by the hundred indemnified by fuch taking. By statute 10 & 11 W. III. c. 23. any perfon 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, 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) fhall be entitled to a reward of 40%.

CHAPTER THE TWENTY

OF COMMITMENT

SECON D.

AND

BAIL.

W mentioned in the preceding chapter, he ought regularly

HEN a delinquent is arrested by any of the means

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 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 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 enquiry it manifeftly appears, either that no fuch 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 fecurities for his appearance, to answer

a Eirenarch. b. 2. c. 7.

the

:

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 capital nature, no bail can be a fecurity equivalent to the actual custody of the person. For what is there that a man may not be induced to forfeit, to fave his own life? and what fatisfaction or indemnity is it to the public, to seize 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 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 fecurity for his appear, ance: he being supposed to continue in their friendly cuftody, inftead of going to gaol. In civil cafes we have seen that every defendant is bailable; but in criminal matters it is otherwise. Let us therefore enquire, 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 subject, in any magiftrate, by the common law; as well as by the ftatute Weftm. 1. 3 Edw.İ. c. 15. and the habeas corpus act, 31 Car. II. c. 2. And left the intention of the law fhould be frustrated by the juftices 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. 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 insufficient bail, he is liable 2 Hawk. P. C. 90.

Pott. Antiq. b. 1. c. 18. • See Vol. III. pag. 290.

d

I

to

to be fined, if the criminal doth not appear. Bail may be taken either in court, or in some particular cafes 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 fome fpecial act of parliament. In order therefore more precisely to ascertain what offences are bailable,

LET us next fee, 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 fuch imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for fafe cuftody before the conviction, and not for punishment afterwards, in fuch cases bail is oufted 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 juftice fhall be done upon him, if guilty. Such persons therefore, as the author of the mirror obferves, have no other fureties but the four walls of the prison. By the antient common law, before and fincei the conqueft, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every cafe. But the ftatute Westm. 1. 3 Edw. I. c. 15. takes away the power of bailing in treason, and in divers inftances of felony. The ftatute 1 & 2 Ph. & Mar. c. 13. gives farther regulations in this matter: and upon the whole we may collect*, that no juftices of the peace can bail, 1. Upon an accufation of treafon: nor, 2. Of murder: nor,

e 2 Hawk. P. C. 89.

f 2 Hal. P. C. 127.

8 c. 2. §. 24.

2 Inft. 189.

h