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CHAPTER XXII.

OF COMMITMENT AND BAIL.

Examination of the accused-the depositions-procedure before committal— Commitment and bail.

WHEN a delinquent is arrested, he ought to be carried before a justice of the peace, who is bound immediately to examine the circumstances of the crime alleged and to this end, before committing the accused person to prison for trial, or admitting him to bail, is in his presence to take the statements on oath, or affirmation, of those who know the facts of the case; these statements, when signed and authenticated by the justice, constituting what are termed the depositions. The person accused has a right to question the witnesses, and is usually allowed legal assistance; but this is in the discretion of the magistrate, for the place where the examination takes place is not an open court; and the public may be excluded, if such a course will conduce to the ends of justice.

If, from the absence of witnesses, or other reasonable cause, it becomes necessary or advisable to adjourn the examination, this may be done, the accused person being remanded to prison, or allowed to go at large, upon his recognizance, at the discretion of the magis

trate.

After the examination of the witnesses for the prosecution has been completed, the depositions are read over to the accused, and he is then asked whether he wishes to say anything in answer to the charge, being warned that he is not obliged to do so, but that whatever he does say will be taken down in writing, and may be given in evidence against him upon the trial. If it appear that some inducement or threat has previously been held out to him, the magistrate should further give him clearly to understand, that he bas nothing to hope from any promise of favour held out, and nothing to fear from any threat made to him, as an inducement to make any admission or confession of his guilt; but that whatever he shall then say may be given in evidence, notwithstanding any such promise or threat.

Whatever he then says in answer, is to be taken down in writing, and after being read over to him, to be signed by the magistrate, and transmitted with the depositions to the court by which he is to be tried.

If, however, upon this inquiry the justice is of opinion that the

evidence is not sufficient to put the accused party upon his trial, he may forthwith, if in custody, be discharged. Otherwise, or if the evidence given raise a strong or probable presumption of his guilt, he must either be committed to prison, or give bail: that is, put in securities for his appearance, to answer the charge against him. This commitment, therefore, being only for safe custody, wherever bail will answer the same intention, as in most of the inferior crimes, it ought to be taken. Indeed, 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 Habeas Corpus Act. And, lest the intention of the law should be frustrated, by justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute 1 Will. & Mary, st. 2, c. 1, that excessive bail ought not to be required. But in felonies and other offences of a serious 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? Yet the court of Queen's Bench, or any judge thereof in vacation, may bail for any crime whatever, 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 therefore provides one court, 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 by either house of parliament, so long as the session lasts: or such as are committed for contempts by any of the superior courts of justice.

If the offence be not bailable, or the party cannot find bail, he is to be committed to gaol, there to abide till delivered by due course of law; but whether held to bail or committed to prison, in order to trial, he is entitled to have furnished to him, on demand, copies of the depositions on which he is held to bail or committed; and in either case the prosecutor and witnesses may be bound over in recognizances to appear at the trial in order to prosecute or give evidence. The original information, if any; the depositions; any recognizances taken by the justices; the statement, if any, made by the accused; and his recognizances, if he has been released on bail, must all be delivered to the proper officer on or before the first day of the assizes or sessions to which the accused is sent for trial.

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

I. Presentment-Inquest of office.—II. Indictment by a grand jury.III. Information, ex officio-Criminal information.

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

indictment.

I. A presentment is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office and indictments by a grand jury, Properly speaking, it is the notice taken by a grand jury of any offence from their own knowledge or observation, without any indictment laid before them at the suit of the crown; as the presentment of a nuisance, 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. Such 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 prosccution, and into which we will therefore inquire a little more minutely.

II. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff 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, having the qualification required by the law, to inquire, present, do, and execute all those things which, on the part of the sovereign, shall then and there be commanded them. 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

twenty-three; 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.

This grand jury, having chosen their foreman, are next instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw to receive indictments, which are preferred to them in the name of the sovereign, 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.

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When the grand jury have heard the evidence, if they think it a groundless accusation, they used formerly to indorse on the back of the bill," ignoramus;" or, we know nothing of it; intimating, that though the facts might possibly be true, that truth did not appear to them: but now they assert in English, more absolutely, not a true bill;" or, which is the better way, "not found;" and then the party is discharged without further answer. But a fresh bill may afterwards be preferred to a subsequent grand jury. If they are satisfied of the truth of the accusation, they then indorse upon it, "a true bill;" anciently, "billa vera." The indictment is then said to be found, and the party stands indicted. But to find a bill there must at least twelve of the jury agree: for so tender is the law of England of the lives of the subjects, that no man can be convicted, upon an indictment, at the suit of the crown of any offence, unless by the unanimous voice of twenty-four of his equals and neighbours: that is, by twelve at least of the grand jury, in the first place, assenting to the accusation; and afterwards, by the whole petit jury, of twelve more, finding him guilty, upon his trial. But if twelve of the grand jury assent, it is a good presentment, though some of the rest disagree. And the indictment, when so found, is publicly delivered into court.

III. The other method of prosecution is, without any previous finding by a jury, to fix the authoritative stamp of verisimilitude upon the accusation. Such, by the common law, was when a thief was taken with the mainour, that is, with the thing stolen upon him in manu. For he might, when so detected flagrante delicto, be brought into court, arraigned, and tried, without indictment; as by the Danish law he might be taken and hanged upon the spot, without accusation or trial. But this proceeding was taken away by several statutes in the reign of Edward III., so that the only

species of proceeding at the suit of the crown, without a previous indictment or presentment by a grand jury, now seems to be that of information.

Informations, in criminal cases, are of two kinds: first, those filed ex officio by the attorney-general; secondly, those in which, though the crown is the nominal prosecutor, yet it is at the relation of some private person; the latter being filed by the master of the Crown-office, who is for this purpose the standing officer of the public.

The objects of an ex officio information are properly such enormous misdemeanors as peculiarly tend to disturb or endanger the government; the law giving to the crown, in such cases, the power of an immediate prosecution, without waiting for any previous application to any other tribunal. The objects of the other species, or criminal informations as they are usually called, are any gross and notorious misdemeanors, such as libels, not tending to disturb the government, but which, on account of their pernicious example, deserve public animadversion. Either species of information, when filed, must be tried by a petit jury of the county where the offence arises; after which, if the defendant be found guilty, the court must be resorted to for his punishment.

There can be no doubt but that this mode of prosecution is as ancient as the common law itself.* For as the sovereign was bound to prosecute, or at least to lend the sanction of his name to a prosecutor, whenever a grand jury informed him that there was a sufficient ground for instituting a criminal suit: so, when these his immediate officers were otherwise sufficiently assured that a man had committed a gross misdemeanor, they were at liberty to convey that information to the court of King's Bench, and to carry on the prosecution in the name of the crown. But these informations are confined by the constitutional law to mere misdemeanors only: for wherever any felonious offence is charged, the same law requires that the accusation be warranted by the oath of twelve men, before the party shall be put to answer it. And to prevent any oppressive use of this method of proceeding by a private subject, the statute 4 & 5 W. & M. c. 18, expressly enacts that the clerk of the crown shall not file any criminal information without an express direction from the court, which can only be obtained on an application by · counsel, founded upon affidavit; and that every relator shall give security not only to prosecute the information with effect, but also to pay costs to the defendant in case he be acquitted thereon; and,

*This was the regular mole of prosecuting delinquents in the Star Chamber; where, however, there was no jury, the members present and constituting the court being the sole judges alike of the law, the fact, aud the penalty.

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