shall follow with hue and cry, with all the town and the
towns near;
and so hue and cry shall be made from town to
town, until they be taken and delivered to the sheriff. And,
that such hue and cry may more effectually be made, the
hundred is bound by the same statute, c. 3. to answer for
all robberies therein committed, unless they take the felon;
which is the foundation of an action against the hundred",
in case 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 constable
or like officer, refusing or neglecting to make hue and cry,
forfeits £5: 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 in-
stitution, 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 said 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
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 prosecution of such hue and cry the con-
stable and his attendants have the same powers, protection,
and indemnification, as if acting under the warrant of a jus-
tice of the peace. But if a man wantonly or maliciously
raises an hue and cry, without cause, he shall be severely pu-
nished as a disturber of the public peace'.

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In order to encourage farther the apprehending of certain Rewards for the ap felons, rewards and immunities are bestowed on such as bring prehension of fe

(u) See vol. III. page 161.

x) 2 Hal. P. C. 100-104.

VOL. IV.

X

them

(w) Mod. Un. Hist. vi. 383. vii. 156.

(y) 1 Hawk. P. C. 75.

lons.

[295]

them to justice, by divers acts of parliament. The statute 4 & 5 W. & M. c. 8. enacts, that such as apprehend a highwayman, and prosecute him to conviction, shall receive a reward of £40 from the public; to be paid to them (or, if killed the endeavour to take him, their executors) by the sheriff of the county; besides the horse, furniture, arms, money, and other goods taken upon the person of such robber; with a reservation of the right of any person from whom the same may have been stolen: to which the statute 8 Geo. II. c. 16. superadds £10, to be paid by the hundred indemnified by such taking. By statutes 6 & 7 W. III. c. 17. and 15 Geo. II. c. 28. persons apprehending and convicting any offender against those statutes, respecting the coinage, shall (in case the offence be treason or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By statute 10 & 11 W. III. c. 23. any person apprehending and prosecuting to conviction a felon guilty of burglary, house-breaking, horse-stealing, or private larceny, to the value of 5s. 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 prosecuting a burglar, or felonious house-breaker, (or, if killed in the attempt, his executors) shall be entitled to a reward of £40. By statute 6 Geo. I. c. 23. persons discovering, apprehending, and prosecuting to conviction, any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14 Geo. II. c. 6. explained by 15 Geo. II. c. 34. any person apprehending and prosecuting to conviction such as steal, or kill with intent to steal, any sheep or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II. c. 15. and 8 Geo. Ill. c. 15. persons discovering, apprehending, and convicting, felons and others, being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds.

(z) The statutes 4 & 5 W. & M. c. 8. 6 & 7 W. III. c. 17, and 5 Ann. c. 31. (together with 3 Geo. I. c. 15. § 4, which directs the method of reimbursing the sheriffs) are extended to the county palatine of Durham, by stat. 14 Geo. III. c. 46.

CHAPTER THE TWENTY-SECOND.

OF

COMMITMENT AND BAIL.

WHEN

THEN 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 seipsum: 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 manifestly appears, either that no such 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 securities for his appearance, to answer the charge

(a) Eirenarch, b. 2. c. 7. See page 357.

When arrested he 203 fore a justice,

must be brought be

and after examina

tion, be committed

or admitted to bail

taken in most felo

nies,

[ 297 ]

charge against him. This commitment therefore being only for the safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior but bail cannot be 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 satisfaction or indemnity is it to the public, to seize the effects of them who have bailed a murderer, if the murderer himself be suffered to escape with impunity? Upon a principle similar to which, the Athenian magistrates, when they took a solemn 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 such as had embezzled the public money, or been guilty of treasonable practices. What the nature of bail is, hath been shewn in the preceding book, viz. a delivery or bailment, of a person to his sureties, upon their giving (together with himself) sufficient 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 inquire, in what cases the party accused ought, or ought not, to be admitted to bail.

nor refused in bail

able offences, nor excessive bail be required.

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 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, lest the intention of the law should be frustrated by the justices requiring bail to greater amount than the nature of the case demands, it is expressly declared by statute 1 W. & M. st. 2. c. 1. that excessive bail ought not to be required; though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case, to determine. And, on the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal

(b) Pott. Antiq. b. 1. c. 18.

(c) See vol. III. page 290.

(d) 2 Hawk. P. C. 90.

minal 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 ascertain 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 consider 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 safe 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 insure 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 since 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 statutes 23 Hen. VI. c. 9. and 1 & 2 Ph. & Mar. c. 13. give farther regulations in this matter and upon the whole we may collect *, that no justice of the peace can bail-1. Upon an accusation of treason: 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:

(e) 2 Hawk. P. C. 89. (f) 2 Hal. P. C. 127. (g) C. 2 § 24. (h) 2 Inst. 189. (i) In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio, ubi ad terrorem aliter statutum est. (Glanv. l. 14. c. 1.) (k) 2 Inst. 186. 2 Hal. P. C. 129.

[298]

Cases where bail

cannot, where it

may, and where it must be taken ;