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.

1. 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 mode 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, and the penalty.

at all events, to pay costs, unless the information shall be tried within a year after issue joined.

These are the only methods of prosecution, which can now be resorted to for the punishment of offences, of which that by indictment is the most general.* I shall therefore confine my subsequent observations principally to this method of prosecution; remarking by the way the most material variations that may arise from the method of proceeding by information.

CHAPTER XXIV.

OF PROCESS UPON AN INDICTMENT.

Bench Warrant-Habeas Corpus-Capias-Outlawry-Certiorari.

We have hitherto supposed the offender to be in custody before the finding of the indictment; in which case he is immediately to be arraigned thereon. But if he has fled, or secretes himself; or has not been bound over to appear at the assizes or sessions, still an indictment may be preferred against him in his absence; since, were he present, he could not be heard before the grand jury against it. And, if it be found, then process must issue to bring him into court; for the indictment cannot be tried until he personally

appears.

Any court before which an indictment is found may issue a bench warrant for arresting the party charged; but the more usual course is to apply to a justice of the peace; who, upon production of a certificate by the clerk of the court of the indictment having been found, is bound to issue his warrant for the apprehension of the alleged delinquent, that he may be brought before him, to be dealt with according to law; that is, to be committed for trial or admitted to bail as in ordinary cases. If the person charged is already in prison for some other offence, the justice issues his warrant for his detention until he is removed for trial by writ of habeas corpus, which is then the proper course to be adopted.

If the accused is known to have fled, so that he cannot be arrested, and the prosecutor desires to proceed to outlawry, he must resort to the ancient and regular process of the court. This is, first, a writ of venire facias, in the nature of a summons to appear, enforced, if necessary, by a distress infinite till he do appear. But

* There was formerly another method of prosecution, at the suit of the subject called an appeal; for a short account of which, I must refer the reader to the Appendix.