[299]

him: nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another: 5. Persons outlawed: 6. Such as have abjured the realm: 7. Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused: 8. Persons taken with the mainour, or in the fact of felony: 9. Persons charged with arson: 10. Excommunicated persons, taken by writ de excommunicato capiendo: all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 11. Thieves openly defamed and known: 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and, 13. Accessories to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 14. Persons of good fame, charged with a bare suspicion of manslaughter, or other inferior homicide: 15. Such persons, being charged with petit larceny or any felony, not before specified; or, 16. With being accessory to any felony. Lastly, it is agreed that the court' of king's bail for any offence. bench (or any judge thereof in time of vacation) may bail for any crime whatsoever, be it treason", murder °, or any other offence, according to the circumstance of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes, would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed

but the court of

king's bench may

(1) 2 Inst. 189. Latch. 12. Vaugh. 157. Comb. 111. 298. 1 Comyns Dig. 495. (m) Skin. 683. Salk. 105. Stra. 911. 1 Comyns Dig. 497. (n) In the reign of queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment, for a charge of high treason by any of the queen's privy councii. (1 Anders. 296.) (0) In omninus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio. (Glanv. l. 14. c. 1.) Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi ex regiae potestatis beneficio. (Ibid. c. 3.)

committed by either house of parliament, so long as the session lasts; or such as are committed for contempts by any of the king's superior courts of justice P.

UPON the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law. But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval be-. tween the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only; though, what are so requisite, must too often be left to the discretion of the gaolers; who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner, unless where he was unruly, or had attempted to escape': this being the humane language of our antient law-givers", "custodes poenam " sibi commissorum non augeant, nec eos torqueant; sed omni "saevitia remota, pietateque adhibita, judicia debite exequantur.

(p) Staundf. P. C. 73 b. 381. 3 Inst. 34.

(q) 2 Hal. P. C. 122. (s) Flet. l. 1. c. 26.

(r) 2 Inst.

[300]

If not bailed, he is

committed by mit

timus of the justice.

CHAPTER THE TWENTY-THIRD.

OF

THE SEVERAL MODES OF PRO

SECUTION.

204 The several modes of prosecution, are,

205 1. by presentment by a grand jury;

THE

HE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous finding. The former way is either by presentment, or indictment.

I. A PRESENTMENT, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the king. As, the presentment of a nusance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment, before the party presented can be put to answer it. An inquisition of office is the act of a jury, summoned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and

and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alledged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offences in the sheriff's tourn or court-leet, whereupon the presiding officer may set a fine. Other inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide: for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.

c

[302]

II. AN indictment is a written accusation of one or more 2. by indictment preferred to, and persons of a crime or misdemesnor, preferred to, and pre- presented on oath sented upon oath by, a grand jury. To this end the sheriff by, a grand jury, of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol-delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things, which on the part of our lord the king shall then and there be commanded them. They ought to be freeholders, but to what amount is uncertain: which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury; which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twentythree; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so early as the laws of king Ethelred'. "Exeant seniores duo

"decim thani, et praefectus cum eis, et jurent super sanctuari

206

66 um

(c) See appendix, § 1.

(d) 2 Hal. P. C. 154. (f) Wilk. LL. Angl. Sax. 117.

(e) Ibid. 155.

[303]

who can only inquire of offences committed within the county,

"um quod eis in manus datur, quod nolint ullum innocentem "accusare, nec aliquem noxium celare." In the time of king Richard the first (according to Hoveden) the process of electing the grand jury, ordained by that prince, was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces of this institution still remain, in that some of the jury must be summoned out of every hundred. This grand jury are previously instructed in the articles of their inquiry, by a charge from the judge who presides upon the bench. They then withdraw, to sit and receive indictments, which are preferred to them in the name of the king, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution: for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths, whether there be sufficient cause to call upon the party to answer it. A grand jury however ought to be thoroughly persuaded of the truth of an indictment, so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine, that might be applied to very oppressive purposes &.

THE grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus: and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by act of parliament. And to so high a nicety was this matter antiently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them: but by statute 2 & 3 Edw. VI. c. 24. he is now indictable in the county where the party died. And, by statute 2 Geo. II. c. 21. if the stroke or poisoning

(g) State Trials, IV. 183.

be