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In order to encourage the apprehending of offenders, rewards are sometimes bestowed on such as bring them to justice, under the sanction of divers acts of parliament (p).

II. The examination and commitment.

II. The justice before whom a person charged with the commission of an indictable offence appears in obedience to a summons (9) or after arrest made by any of the means above mentioned, will proceed to deal with the accused in accordance with the requirements of the statute law (r). The justice will hear and put into writing the evidence of the witnesses produced against the defendant given on oath or affirmation in his presence (s)-the accused being at liberty to put questions to any such witness (t), and when the depositions have been taken, read [* 389] over to the witnesses and duly signed, the accused will be addressed by the justice in these words, or to this effect:-"Having heard the evidence, do you wish to say anything in answer to the charge? you are not obliged to say anything else you desire to do so, but whatever you say will be taken down in writing, and may be given in evidence against you upon your trial" (u). Should the accused person in answer to the question thus addressed to him desire to make a statement, the justice will first give him clearly to understand that he has nothing to hope from any promise of favour, and nothing to fear from any threat which may have been holden out to him to induce him to make any admission or confession of his guilt, but that whatever he shall then say may be given in evidence against him upon his trial, notwith

(p) Post, c. xix.

(q) Ante, p. 384.

(r) See 11 & 12 Vict. c. 42; 30 & 31 Vict. c. 35.

(8) 11 & 12 Vict. c. 42, s. 17. See Reg. v. Watts, L. & C. 339.

(t) 11 & 12 Vict. c. 42, s. 17.
(u) Sect. 18.

breaches of the peace. See Com. v. McLaughlin, 12 Cush. (Mass.) 615; Com. v. Carey, id. 246. And in the latter cases the arrests must be made within a very short time after the offense. After two hours has been held too late. Regina v. Walker, 25 Eng. Law & Eq. 589; Butolph v. Blust, 5 Lans. 84; S. C., 41 How. 481. And see Boyleston v. Kerr, 2 Daly, 220; Taylor v. Strong, 3 Wend. 384.

An officer, as just mentioned, has the right to call upon private individuals to assist in the arrest of persons charged with past felony, or to prevent the commission of an offense, and to refuse such assistance is indictable. Coyles v. Hurtin, 10 Johns. 85; Mitchell v. State, 7 Eng. (Ark.) 50; State v. Shaw, 3 Ired. (N. C.) 20. Private persons thus acting must be either actually or constructively under an officer's command. People v. Moore, 2 Doug. (Mich.) 1. See Com. v. Field, 13 Mass. 321; Coyles v. Hurtin, 10 Johns. 85.

An arrest of a felon may be justified by any person without warrant, whether there be time to obtain one or not, if a felony has in fact been committed by the person arrested. And if an innocent person is arrested upon suspicion by a private individual, such individual is excused, if a felony was in fact committed, and there was reasonable ground to suspect the person arrested (Burns v. Erben, 40 N. Y. [1 Hand] 463; Reuck v. McGregor, 3 Vroom [N. J.], 70; Holly v. Mix, 3 Wend. 350; Brockway v. Crawford, 3 Jones [N. C.], 434; State v. Roane, 2 Dev. [N. C.] 58; Com. v Deacon, 8 Serg. & R. [Penn.] 48; Brooks v. Com., 61 Penn. St. 352; Hawley v. Butler, 54 Barb. 490); but an officer is justified in making an arrest without warrant, though no felony has been actually committed, if he has reasonable ground to suspect that one has been, and acts in good faith and without evil design. Burns v. Erben, 40 N. Y. (1 Hand) 463; Eanes v. State, 6 Humph. (Tenn.) 53; Rohan v. Sawin, 5 Cush. (Mass.) 281; Com. v. Presby, 14 Gray (Mass.), 65.

When a breach of the peace is threatened, every good citizen is bound to intervene, and take proper measures to compel order. Res. v. Montgomery, 1 Yeates (Penn.), 419.

standing such promise or threat" (x). The justice will further ask the defendant whether he desires to call any witness; and if he shall thereupon call or desire to call witnesses, the justice will, in the presence of the defendant (y), take the statements on oath or affirmation, both on examination and cross-examination, of those who may be so called; and when put into writing such depositions will be read over to and signed respectively by the witnesses who shall have been thus examined, and also by the justice taking the same. Witnesses may be compelled to attend and give evidence before the justice (z), in like manner as where the examination is with a view to summary conviction (a) and the deposition of a person dangerously ill and not likely to recover may now be taken by the justice conformably to the provisions of the statute 30 & 31 Vict. c. 35 (b) in the presence of the prisoner.

The examination may be adjourned from time to time (c), * when [*390] necessary, as if a variance likely to have misled the prisoner appear between the warrant under which he was arrested and the evidence adduced against him (d).

When completed, the accused will be either discharged, or allowed to go at large on bail, or committed (e), the prosecutor and witnesses in this latter event being bound over in recognizances respectively to prosecute and give evidence, and such recognizances with the depositions, of which the prisoner is entitled to a copy (ƒ), and statement (if any) of the accused, will be transmitted to the court in which the trial is to be (g).

Should the justice, however, refuse to commit or to bail the accused when charged with any of the following offences, viz. perjury, subornation of perjury, conspiracy, obtaining property by false pretences, keeping a gambling or disorderly house, or an indecent assault; and should the prosecutor desire to prefer an indictment for the same, the justice will take the recognizance of the prosecutor to prosecute the said charge or complaint, and will transmit such recognizance, together with the information and depositions, to the court in which the indictment ought to be preferred in like manner as if the defendant had been committed (h).

III. Holding to bail may be defined as 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. (731)

III. Bail.

That branch of magisterial jurisdiction which has reference to the taking of bail is most important, and cases which fall within it may be thus classified:

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(731) To justify the holding of the prisoner for trial in the higher court, it is not necessary that the evidence should be sufficiently conclusive to authorize his conviction if the crime charged were within the magistrate's jurisdiction. The alleged offense appearing to have been committed, probable cause to believe the defendant to be the guilty person is all that is required. 1 Bish. Cr. Proced., § 233; State v. Hartwell, 35 Me. 129.

*

[*391] 1. No person charged with treason can be admitted to bail except by order of a secretary of state or by the Court of Queen's Bench, or, in vacation, by a judge thereof (i).

2. It is discretionary with the justice to admit the defendant to bail, on a charge of felony, or assault with intent to commit felony, or an attempt to commit it, or of obtaining or attempting to obtain property by false pretences, or of a misdemeanor in receiving property stolen or obtained by false pretences, or of perjury, subornation of perjury, concealing the birth of a child, exposure of the person, riot, assault in pursuance of a conspiracy to raise wages, assault upon a peace officer in the execution of his duty, or any one acting in his aid, neglect or breach of duty as a peace officer, or any misdemeanor for the prosecution of which the costs may be allowed out of the county rate (k).

3. The justice is required to admit to bail a defendant charged with any indictable misdemeanor other than those above-mentioned (1).

Subject to the foregoing regulations a defendant may be bailed after he has been committed to prison and before the commencement of the session at which he is to be tried (m), in which case a warrant for his deliverance will be sent to the keeper of the gaol (n).

The duty of a justice of the peace in regard to the taking of bail is essentially judicial (o). It is incumbent on him to take sufficient bail to ensure the appearance of the accused to take his trial, and as guiding to a determination on this point, three elements will generally be found important :-(1) the charge; (2) the nature of the evidence by which it is supported; and, (3) the punishment to which the defendant would be liable if convicted (p).

* Should the justice improperly refuse to take bail, the hardship [*392] thus caused to the defendant will be relieved on application to a higher tribunal, for it is agreed that the court (q) of queen's bench (or any judge (r) thereof in time of vacation) may bail for any crime whatsoever, be it treason (s), murder (t), or any other offence, according to the circumstances of the case (u). And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for the more serious 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: excepting only, even from this high jurisdiction, and of course from 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 queen's superior courts of justice (x).

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(0) Linford v. Fitzroy, 13 Q. B. 240; Reg. v. Badger, 4 Q. B. 468.

(p) Barronet's Case, 1 E. & B. 1. (q) 2 Inst. 189; Latch. 12; Vaugh. 157; Comb. 111, 298; 1 Comyn Dig. 497.

(r) Skin. 683; Salk. 105; Stra. 911; 1 Comyn Dig. 497.

(s) 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. (1 Anders. 298.) As to which, see, per Lord Camden, Entick v. Carrington, Broom Constit. L. 581-3.

(t) In omnibus placitis de feloniâ solet accusatus per plegios dimitti, præterquam in placito de homicidio. (Glanv. 1. 14, c. 1.) Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi ex regia potestatis beneficio. (Ib. c. 3.)

(u) See Barronet's Case, 1 E. & B. 1.
(x) Staundf. P. C. 73, b.

Lastly, under our present head, the reader will remember that 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 (y); as well as by the habeas corpus act, 31 Car. 2, c. 2 (z). 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 Will. & M. st. 2, c. 1,

that excessive bail ought not to be required; though what bail shall [* 393]

be called excessive, must be left to the court, on considering the circumstances of a case, to determine. On the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal does not appear (a).

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 (b). But such imprisonment is only for safe custody, not for punishment: therefore in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity; and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purpose of confinement only. The law (it was long since held) would not justify the gaoler in fettering a prisoner, unless where he was unruly, or had attempted to escape (c): this being the humane language of our ancient lawgivers (d), "custodes pænam sibi commissorum non augeant, nec eos torqueant; sed omni sævitiá remotá, pietateque adhibita, judicia debite exequantur.” (732) IV. The next step towards the punishment of an offender is his formal accusation, which is made either, 1, without, or, 2, with a jury intervening.

IV. Modes of prosecution.

1. Without a jury. (1.) Trial of a thief taken with the mainour.

1. Under the former subdivisions may be mentioned:(1.) The summary mode of procedure which formerly existed at common law, when a thief was taken "with the mainour,"

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

(z) Ante, vol. i.

(a) 2 Hawk. P. C. 89: see 7 Geo. 4, c. 64, ss. 5, 6.

(b) 2 Hale, P. C. 122.
(c) 2 Inst. 381; 3 Inst. 34.
(d) Flet. 1. 1, c. 26.

(732) The constitution of the United States provides that "excessive bail shall not be required." U. S. Const. Amend., art. 8. And by act of congress it is provided that “ upon all arrests in criminal cases bail shall be admitted, except where the punishment may be death, in which cases it shall not be admitted but by the supreme or a circuit court, or by a justice of the supreme court, or a judge of the district court, who shall exercise their discretion therein, regarding the nature and circumstances of the offense, and of the evidence and the usages of law." Act of September 24, 1789. In most of the States there are similar provisions. See State v. James, 37 Conn. 355; Foley v. People, Breese (111.), 31; Ex parte Wray, 30 Miss. 673; State v. Summons, 19 Ohio, 139; Ullery v. Com., 8 B. Monr. (Ky.) 3; Shore v. State, 6 Mo. 640. At common law all offenses of whatever degree are bailable within the judicial discretion; but if the offense with which the defendant is charged is punishable with death, and the proof of guilt is evident, or the presumption great, bail will be refused." See People v. Hyler, 2 Park. 570; State v. Rockafellow, 1 Halst. (N. J.) 332; State v. Hill, 3 Brev. (S. C.) 89; Heffren, ex parte, 27 Ind. 87; U. S. v. Stewart, 2 Dall. 343; State v. McNab, 20 N. H. 160; Lynch v. People, 38 Ill. 494; Thompson v. State, 25 Texas, 395; Bird, ex parte, 24 Ark. 275; Beall v. State, 39 Miss. 715. In misdemeanors it is the right of the person in ordinary cases to give bail. People v. Johnson, 2 Park. 322; People v. Kennedy, id. 312.

After a refusal to grant bail it is within the discretion of the court to decline looking a second time into the question. Campbell, ex parte, 2 Ala. 89. See Kittrel, ex parte, 20 Ark. 499; People v. Cunningham, 3 Park. 531.

VOL. II-74

that is, with the thing stolen upon him in manu. For he might when so detected, flagrante delicto, have been brought into court, arraigned, and tried, without indictment. But this proceeding was taken away by several statutes in the reign of Edward III. (e).

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(2.) Information.

*(2.) The proceeding by information. Informations are of two sorts: first those which are partly at the suit of the sovereign, and partly at that of a subject; and secondly, such as are only in the name of the sovereign. The former are brought upon penal statutes, which inflict a penalty upon conviction of the offender, one part to the use of the crown, and another to the use of the informer; and are a sort of qui tam actions (the nature of which was explained in a former volume (ƒ)) only carried on by a criminal instead of a civil process.

Informations exhibited in the name of the queen alone, are also of two kinds: first, those which are truly and properly her own suits, and filed ex officio by her own immediate officer, the attorney-general; secondly, those in which, though the queen is the nominal prosecutrix, yet it is at the relation of some private person or common informer; and these are filed by the queen's coroner and attorney in the court of queen's bench, usually called the master of the crown-office, who is for this purpose the standing officer of the public. Prosecutions, filed ex officio by the queen's attorney-general, are properly levelled at such great offences, less, however, in degree than treason, felony, or misprision of treason, as peculiarly tend to disturb or endanger her government, or to molest or affront her in the regular discharge of her royal functions. For offences so high and dangerous, in the punishment or prevention of which a moment's delay might be fatal, the law has given to the crown the power of an immediate prosecution, without waiting for previous application to any other tribunal: which power, thus necessary, not only to the ease and safety, but even to the very existence of the executive magistrate, was originally reserved. in the great plan of the English constitution, wherein provision is wisely made for the due preservation of all its parts. The object of the other species of information, filed by the master of the crown office, with leave * of [*395] the court of queen's bench upon the complaint or relation upon oath (g) of a private subject, is any gross and notorious misdemeanor, riot, battery, libel, or other immorality of an atrocious kind (h), not peculiarly tending to disturb the government (for any such is left to the care of the attorney-general), but which, on account of its magnitude or pernicious example, deserves the most public animadversion.

Upon motion made for a criminal information the court will take into consideration all the various circumstances of the charge, before they lend their sanction to this extraordinary mode of prosecution. They will observe the time of making the application, whether a long interval has elapsed since the alleged wrong, and if so to what cause it may fairly be ascribed; they will examine the evidence on which the charge is founded, and will consider the character and motives of the applicant in regard to the matter before them; and they will look forward to the consequences of the rule which they are requested to grant and the peculiar situation of the defendant (i). In support of an application of this nature for a libel, the applicant must, unless the

(e) 2 Hale, P. C. 149.

(f) Ante, vol. iii.

(g) 4 & 5 Will. & M. c. 18.

(h) 2 Hawk. P. C. 260.

(i) R. v. Robinson, 1 W. Bla. 542.

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