being only for safe custody, wherever bail will answer the same intention, it ought to be taken; as in most of the inferior crimes: but in fe[*297] lonies, 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 hem 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 (b). What the nature of bail is, hath been shewn in the preceding book (c), viz. a delivery of 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 (5).

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 (d), 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 a 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 should 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 doth not appear (e) (6). Bail may be taken either in court, or in some particular cases

(b) Pott. Antiq. b. 1, c. 18. (c) See Book III. page 200.

(d) 2 Hawk. P. C. 90.
(e) lbid. 89.

sonment in the state-prison, may be discharg
ed by a justice of the county where he is at
rested on giving bail. (2 R. S. 707. 08.) The
chancellor, the judges of the supreme court,
circuit judges, and supreme court commission-
ers may let to bail in all cases; judges of the
county courts may in cases triable before the
general sessions: a justice of the peace, or
alderman of a city; and in the city of New-
York, a special justice or assistant justice may
in all cases of misdemeanor, and cases of
felony where the imprisonment in the state-
prison cannot exceed five years. (2 R. S. 710,

themselves, must procure others to be bound
for them. And if the witness refuse to give
such recognizance, the magistrate has power
to commit him, this being virtually included in
his commission, and by necessary consequence
upon the above-mentioned statutes. 3 M. &
S. 1. 1 Hale, 586. This doctrine was con-
firmed in a late case, where a married woman
refused to enter into a recognizance for her
appearance at sessions, to give evidence
against a felon, and the magistrate committed
her, and the court of king's bench held that
the commitment was legal. 3 M. & S. 1.
But a justice of the peace is not authorized 29.) So also the court of oyer and terminer
by law to commit a witness willing to enter may let to bail any one committed before in-
into a recognizance for his appearance to give dictment found upon any charge whatever;
evidence against an offender, merely because and the court of general sessions has the like
such witness is unable to find a surety to join power as to offences triable in that court. (Id.
him in such recognizance, nor ought the jus-30, 31.) Persons already indicted, if entitled
tice to require such surety: the party's own
recognizance (at the peril of commitment) is
all that ought to be required; per Graham, B.
Bodmin Sum. Ass. 1817, 1 Burn J. 24 ed.

1013.

See accordingly, 2 R. S. 709, § 21, &c. 5) In New-York, any one accused of any offence not punishable with death or impri

to bail, can be let to bail only by the court
having jurisdiction to try the offence: or if it
be not sitting, then by the chancellor, a su
preme court judge or commissioner, or a cir
cuit judge: or, if the offence may be ried in
a court of general sessions, then by a judge
of the county court. (Id. 728, § 56.)
(6) And even if the criminal does appen

by the sheriff (7), coroner, or other magistrate (8). but most usually by the justices of the peace (9). Regularly, in all offences either against the common law or act of parliament, that are below [298] felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament (ƒ). 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 (g), have no other sureties but the four walls of the prison. By the ancient common law, before (h) and since (i) 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 (10); and upon the whole we may collect (k), that no justice (f) 2 Hal. P. C. 127.

yet, if the bail were taken corruptly, the magistrate would continue liable to an information or indictment. 2 T. R. 190.

(7) Sed quære if a sheriff has this power? it seems not. See 4 T. R. 505. 2 H. Bla. 418. Lamb. 15.

(8) The court of king's bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever; see 3 East, 163. 5 T. R. 169; but none can claim this benefit de jure. 2 Hale, 129. As to when this court will bail, see 1 Chit. C. L. 2 ed. 98, 9.

per plegios dimitti, praeter quam in placito de homi cidio, ubi ad terrorem aliter statutum est. (Glanv 1. 14, c. 1.)

(k) 2 Inst. 186. 2 Hal. P. C. 129.

charge of felony, or suspicion of felony, be fore one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or jus tices, in the manner thereinafter mentioned; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody, until he or she shall be taken before two justices at the least; and where any person so taken, or any person in the first instance taken before two justices, shall be charged with felony, or on suspicion of felony, and the evidence given in support of the charge shall, in their opinion, not be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced on behalf of the person charg

(9) The 24 Geo. II. c. 55, enacts, that where a warrant has been backed, and the party accused has been taken out of the county where the supposed offence has been committed, any justice of the county where he was taken, may, if the offence be bailable, take bail; and the same provision is extended to Ireland, by 44 Geo. III. c. 92. s. 1; and the 45 Geo. III. c. 92, and the 48 Geo. III. c. 58. s. 2, enact, that where the offender escapes from one part of the United Kingdom to the other, he may be bailed by any judge or justice of that part of the United Kingdom where he was apprehended, unless the judge who granted the warranted, as shall in their opinion weaken the prehas written the words "not bailable" on the pack of the process.

See, as to New-York, 2 R. S. 707, 5, &c. (10) These statutes are all repealed by the 1 G. IV. c. 64; by s. 1. of which it is enacted, hat where any person shall be taken on a VOL. II.

sumption of his or her guilt, but there shall notwithstanding appear to them, in either of such cases, to be sufficient ground for judicial inquiry into his or her guilt, the person charg ed shall be admitted to bail, by such two jus tices in the manner thereinafter mentioned 80

of the peace can bail, 1. Upon an accusation of treason: nor, 2. Of mur der: 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: 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 abjur[*299] ed 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 admissable 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. Accessaries 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 per sons, being charged with petit larceny, or any felony not before specified: or, 16. With being accessary to any felony. Lastly, it is agreed that the court (1) of king's bench (or any judge (m) thereof in time of vacation) may bail for any crime whatsoever, be it treason (n), murder (0), 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 by either house of parliament, so long as the [*300] *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 (q) (11). But

(2) 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.

(a) 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 council.

provided always that nothing therein contain ed shall be construed to require any such jus tice or justices to hear evidence on behalf of any person so charged, unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same."

As to the law of New-York, see note † to note 3, p. 296, ante.

(11) This is not the form where the offence is bailable and the party cannot find bail; in that case it is to keep the prisoner in custody "for want of sureties, or until he shall be dis

(1 Anders. 298.)

(0) In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio. (Glan. I. 14, c. 1.) Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi er regiae potestatis beneficio.'" (ĺbid. c. 3.) (p) Staundf. P. C. 73. b. (q) 2 Hal. P. C. 122.

charged by due course of law." And where the commitment is in the nature of punishment, the time of imprisonment must be stated, and if it be until the party be discharged by due course of law it will be bad, 5 B. & A. 895; but where in other respects the time of impri sonment is sufficiently stated, the unnecessary addition of the words "until he be discharged by due course of law," will not vitiate. 3 M. & S. 283. And as to the form of the mitti mus in general, see 1 Chit. C. L. 109 to 116 2d ed.

this imprisonment, as has been said, is only for safe custody, and not rör punishment: therefore in his dubious interval between 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 (r); this being the humane language of our ancient lawgivers (s)," custodes poenam sibi commissorum non augeant, nec eos torqueant; sed omni saevitia remota, pietateque adhibita, judicia debite exequantur."

CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

THE next step towards the punishment of offenders is their prosecution or the manner of their formal accusation (1). 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 (a), without any bill of indictment laid before them at the suit of the king: as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment (b), 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

(r) 2 Inst. 381. 3 Inst. 34. (s) Flet. I. 1, c. 26.

(1) It may here be useful briefly to consider the time when the prosecution should be commenced. The habeas corpus act provides, that a person committed for treason or felony must be indicted in the ensuing term or ses sions, or the party must be bailed, unless it be shewn upon oath, that the witnesses for the prosecution could not be produced at the preceding session. 31 Car. II. c. 2. s. 7. (See accordingly, 2 R. S. 737, ◊ 28. &c.) This regulation applies, however, only to persons actually confined upon suspicion, and is solely i tended to prevent the protracting of arbitrary imprisonment; so that it does not preclude the crown from preferring an indictment at any distance of time from the actual perpetration of the offeace, unless some particular statute limits the time of prosecuting.

(a) Lamb. Eirenarch. 1. 4, c. 5.
(b) 2 Inst. 739.

There is no general statute of limitations ap plicable to criminal proceedings. 2 Hale, 158 Lieutenant-colonel Wall was tried and exe cuted, for a murder committed twenty years before. And it has been repeatedly held, that no length of time can legalize a public nuisance, although it may afford an answer to an action of a private individual, 7 East, 199, ante, 167. note (12).

In New-York, indictments for murder may be found at any time; in all other cases, in dictments must be found and filed in the pro per office, within three years after the com mission of the offence: but the time during which the defendant has not been ar. inhabitant of the state, or usually residen: in it, is not to be computed part of the time 2 R. S 726, 37.)

m themselves con ictions, and cannot afterwards be traversed or denied; and therefore the inquest, or jury, ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se (2); of flight in persons accused of felony (2); of deodands, and the like (2); and pre sentments of petty offences in the sheriff's tourn or court-leet, whereupon

the presiding officer may set a fine. Other inquisitions may be af [*302] terwards traversed and examined; as particularly the coroner's "inquisition of the death of a man, when it finds any one guilty of homicide (3); 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.

:

II. An indictment (c) 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, 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 (d) (4). They ought to be freeholders, but to what amount is uncertain (e) 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 bes figure in the county (5). (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 (ƒ). "Exeant seniores duodecim thani, et praefectis cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare.” In the time of king Richard

(c See Appendix, ◊, 1.
(de 2 Hal. P. C. 154.

(2) But such an inquisition is now consider ed traversable. 1 Saund, 363. note 1. Impey's Off. Cor. 437.

(3) Upon this inquisition the party accused may be tried without the intervention of the grand jury, 2 Hale, 61. 3 Camp. 371. 2 Leach, 1095. Russ. & R. C. C. 240. S. C.; and if an indictment be found for the same of fence, and the defendant be acquitted on the one, he must be arraigned on the other, to which he may, however, effectually plead his former acquittal. 2 Hale, 61.

Verdict in an Action.-There is also a mode in which a party may be put on his trial without any written accusation, viz. the verdict of a jury in a civil cause. 2 Hale, 150. 4 T. R. 293. 3 Esp. 134. Thus in an action for taking away goods, if the jury found that they were taken feloniously, the verdict served also as an indictment. 2 Hale, 151. Hawk. b. 2. c. 15. s. 6. Com. Dig. Indictment, C. Bac. Ab. Indictment, B. 5. And, at the present day, in an action for slander, in which the plaintiff is charged with a criminal offence, and the defendant justifies; if the jury find

(e) Ibid. 155.

(f) Wilk. LL. Angl. Saz. 117.

that the justification is true, the plaintiff may be immediately put upon his trial for the crime alleged against him, without the intervention of a grand jury. 5 T. R. 293. But the ver dict must be found in some court, which has competent jurisdiction over criminal matters, or otherwise it seems to have but little force. 2 Hale, 151. Hawk. b. 2. c. 25. s. 6. An affidavit taken at nisi prius on a trial may also be received by the court of king's bench, as the foundation of a criminal information against another. T. R. 285.

(4) As to the mode of summoning and prov ing the attendance of the grand jury, see 1 Chit. C. L. 310, 1: and as to the time of summoning, id. 311. 6 Geo. IV. c. 50. s. 25.

As to the law of New-York, see? R. S. 720, &c.; and id. 411.

(5) The qualifications and exemptions o grand jurors are now pointed out by the 6 Geo. IV. c. 50. s. 1, 2. As to how many times they may be called on to serve, see 1 Chit. C. L. 308. b. c. 2 ed. 6 Geo. IV. c. 5u s. 62.