117.121. Lamb. 85, 86. Sect. 23. THIRDLY, That it is (c) safe, but perhaps not neces- (c) Dalton, c. sary, in the body of the warrant to shew the place where it was made; yet it seems necessary to set forth the county in the mar- Crompton, 147. gin at least, if it be not set forth in the body. Sect. 24. FOURTHLY, That it may be made either in the name of the king, or of the justice himself, as appears from the precedents above referred to. 232, &c. 4 Burn, 383. Sect. 25. FIFTHLY, (d) That if it be for the peace or good (d) Dalt. c. 117. behaviour, it is advisable to set forth the special cause upon 2 Hale, 111. Sup. sect. 10. which it is granted; but if it be for treason or felony, or other offence of an enormous nature, it is said, that it is not necessary to set it forth; and it seems to be rather discretionary than necessary to set it forth in any case. Sect. 26. SIXTHLY, (e) That such a warrant may be either general, to bring the party before any justice of peace of the county; or special, to bring him before the justice only who granted it. (e) Dalt. c. 117. 5 Coke, 59. Sect. 27. SEVENTHLY, (f) That it may be directed to the (f) Dalt. c. sheriff, bailiff, constable, or to any indifferent person by name, 117. who is no officer; for that the justice may authorise any one to 14 H. 8. 16. be his officer, whom he pleases to make such; yet it is most advis- B. Peace, 6. able to direct it to the constable of the precinct wherein it is to be executed (g), for that no other constable, and à fortiori no private person, is compellable to serve it. As to the THIRD POINT, viz. In what manner such warrant is to be executed, I shall lay down the following rules: Salk. 176. 381. Ld. Ray. 1192. (g) Salk. 176. 1 Hale, 582. 2 Hale, 110. E. 4. 14 14 H. 7. 9. 6 Coke, 54. Sect. 28. FIRST, That a bailiff, or a constable, if they be sworn, and commonly known to be officers, and act within their own precincts, need not shew their warrant to the party, notwithstanding he demand the sight of it; but that these and all other persons whatsoever making an arrest, ought to acquaint the party with the substance of their warrants, and that all pri- 8 vate persons to whom such warrants shall be directed, and even officers, if they be not sworn and commonly known, and even 9 Coke, 69. these, if they act out of their own precincts, must shew their 1 Hale, 583. warrants, if demanded. † And therefore it is enacted by 27 2 Hale, 116. Geo. 2. c. 20. that in all cases where any justice of the peace is required or empowered by any statute to issue a warrant of dis- Vide also 24 tress for the levying any penalty inflicted, or sum of money Geo. 2. c. 44. thereby directed to be paid," the officer executing such warrant, "if required, shall shew the same to the person whose goods " and chattels are distrained, and shall suffer a copy thereof to "be taken." Sect. 29. SECONDLY, That the sheriff having such warrant Dalton, c. 117. directed to him, may authorise others to execute it; but that 8 E. 4. 14. every other person to whom it is directed, must personally execute it; yet it seems, that any one may lawfully assist him. Sect. 30. THIRDLY, That if a warrant be generally directed to all constables, no one can execute it out of his own precinct; but if it be directed to a particular constable by name, he may execute it any where within the jurisdiction of the justice. CHAP. Carthew, 508. Salkeld, 176. 1 Hale, 581. 2 Hale, 110. Ld. Raym. 546. 4 Comm. 288. (a) 27 Ass. 35. 4 Inst. 177. 5 Co. 91, 92. Dalton, c. 78. 2 Hale, 103. 116, 117. Summary, 90. F. Execu. 25. 2. 2 Hale, 117. (b) 27 Ass. 35. 12 Co. 131. 4 Inst. 151. CHAP. XIV. WHERE DOORS MAY BE BROKEN OPEN IN AND now I am to consider in what cases it is lawful to break And to this purpose I shall premise, that the law doth never allow of such (a) extremities but in cases of necessity; and therefore, that no one can justify the breaking open another's doors to make an arrest, unless he first signify (1) to those in the house the cause of his coming, and request them to give him admittance. Sect. 2. But where a person authorised to arrest another who is sheltered in a house, is denied quietly to enter into it, in order to take him, it seems generally to be agreed, that he may justify breaking open the doors in the following instances: Sect. 3. FIRST, Upon a (b) capius grounded on an indictment for any crime whatsoever: or upon a (c) capias from the (d) (e) Moor, 606. King's Bench or Chancery, to compel a man to find sureties for the peace or good behaviour: or even upon a warrant from a justice of peace for such purpose. 668. (d) Dalton, (e) Moor, 606. 668. C. Eliz. 908. Yelverton, 28. Dalton, c. 78. (f) 2 Jones, 253, 234. Sect. 4. SECONDLY, Upon a (e) capias utlagatum, or capius pro fine, in any action whatsoever. Sect. 5. THIRDLY, Upon the (f) warrant of a justice of peace, for the levying of a forfeiture in execution of a judgment or conviction for it grounded on any statute which gives the whole, or but part of such forfeiture to the king, and authorises But in this case the justice of peace to give such judgment or conviction for it. the officer must shew the war rant if required. Sect. 6. FOURTHLY, Where a (g) forcible entry or detainer is Vide c. 13. sect. either found by inquisition before justices of peace, or appears upon their view. 28. (g) Dalt c. 22 90. 93. Dalton, c. 78. (k) Summ. 91. 4 Inst. 117. F. Barr. 110. 583. contra. Sect. 7. FIFTHLY, (h) Where one known to have committed a treason or felony, or to (i) have given another a dangerous wound, is pursued, either with or without a warrant, by a constable or private person. But where one lies under a probable suspicion only, and is not indicted, it seems the better (k) opinion at this day, that no one can justify the breaking open doors in order to apprehend him. Sect. 8. SIXTHLY, Where an (1) affray is made in a house in the view or hearing of a constable; or where those who have: made an affray in his presence fly to a house, and are immediately pursued by him, and he is not suffered to enter, in order to sup (1) Sum. 134. 2 Hale, 95. Cromp. 170. Dalton, c. 78. B. F. Imprison. 6. (1) No precise form of words is required to be used in giving notice. It is sufficient if the party is made acquainted that the officer does not come press as a mere trespasser, but claims to act under a proper authority, provided the officer had in fact a legal warrant. Foster, 137. press the affray in the first case, or to apprehend the affrayers in either case. Sect. 9. SEVENTHLY, Wherever a (a) person is lawfully arrested, for any cause, and afterwards escapes, and shelters him in a house. 66 (a) 6 Mod. 173, 174. 211. Skinner, 8. Salkeld, 79. 1 Hale, 459. Ld. Raym. Sect. 10. Also it is enacted by S and 4 Jac. 1. s. 35. "That 2 Roll. 138. upon any lawful writ, warrant, or process awarded to any "sheriff or other officer, for the taking of any popish recusant, "standing excommunicated for such recusancy, it shall be law"ful, if need be, to break open any house." 1028. Forster, 320. Sect. 11. But it hath been resolved, that where justices of peace are, by virtue of a statute, authorised to require persons to come before them, to take certain oaths prescribed by such statute, the officer cannot lawfully break open the doors of the persons who shall be named in any warrant made in pursuance of such statute, in order to be brought before the justices to take such oath, because such warrant is not grounded on a precedent offence; neither doth it appear, that the party either is or will be guilty of any: But it seems clear, that if an officer enter into Palm. 52, 53. any house to serve any such warrant, and the doors of the house Cro. Jac. 555. Foster, 319. be locked upon him, being in such house, he or his friends may justify breaking them open, in order to regain his liberty; for that even in the execution of civil process, the law allows of the breaking open doors in the like circumstances. СНАР. CHAP. XV. OF BAIL. AND now I am to consider in what manner, and in what cases, offenders are to be bailed. As to which it is to be observed, that wherever a person is brought before a justice of peace upon an accusation of treason or felony, he must be either bailed or committed, unless it manifestly appear that no such crime was committed, or that the cause for which alone the party was suspected, was totally groundless; in which cases only it is lawful to discharge him without bail. For the better understanding of the nature of bail, I shall consider the following points. 1. The nature of bail and mainprize in general. 2. What shall be said to be sufficient bail. 3. The offence of taking insufficient bail. 4. The offence of granting it where it ought to be denied. 5. The offence of denying, delaying, or obstructing it where it ought to be granted. 6. In what cases it is grantable. 7. In what form it is to be taken. 8. What shall forfeit his recognizance. And FIRST, As to the nature of bail and mainprize in general, I shall endeavour to shew, First, In what respects they agree; and, Secondly, In what they differ. Sect. 2. As to the first particular, it seems that the words "bail" and "mainprize," are often used promiscuously in our (a) law-books and (b) acts of parliament, as signifying one and the same thing. And it is (c) certain, that bail and mainprize agree in this notion, that they save a man from imprisonment in the common gaol, by his friends undertaking for him before certain persons for that purpose authorised, that he shall appear at a certain day, and answer the crime with which he is charged, and be justified by law. Sect. 3. As to the second particular, the chief, if not the (d) only difference between bail and mainprize seems to be this, that a man's mainpernors are (e) barely his sureties, and cannot justify the detaining or imprisoning of him themselves, in order to secure his appearance; but that a man's bail are looked upon as his (ƒ) gaolers of his own choosing, and that the (g) person Con. 4. H. 6. 8. pl. 21. 32 H. 6. 4. bailed pl. 3. (f) 1 Hale, 325. 2 Hale, 35. 124, 125. 21 H. 7. 33. pl. 26. 22 H. 6. 59. pl. 13. 39 H. bailed is in the eye of the law, for many purposes, esteemed to be as much in the prison of the court by which he is bailed, as if he were in the actual custody of the proper gaoler. But I do not find this point clearly settled in relation to any other court (a) F. Mainp. besides the King's Bench, as hath been more fully shewn ch. 6. 12, 13. sect. 4. However it seems certain, in every bailment, that if Dalton, c. 114. B. Mainp. 99. the party bailed be (a) suspected by his bail as likely to deceive 6 Modern, 231. them, he may be detained by them, and enforced to appear 247. according to the condition of the recognizance, or may be (b) 2 Hale, 127. (b) Summary, brought by them before the justice of peace, by whom he shall 96. be committed, unless he find new sureties. As to the SECOND POINT, viz. What shall be said to be sufficient bail. Dalton, c. 114. 10 Coke, 101. 2 Stra. 854. Sect. 4. It seems to be (c) agreed, that no person ought in (c) 2 Hale, 121. any case to be bailed for felony by less than two sureties; and Summary, 97. it is (d) said to be the practice of the King's Bench, not to admit Dalton, c. 114. any person to bail upon a habeas corpus on a commitment for (a) Sty. Reg. treason or felony without four sureties. (1) Also (e) it seems to 110. have been anciently an established rule, that none under the (e) Dalton, c. degree of subsidy-men should be admitted to bail any person 70 and 114. for a capital crime: But the manner of granting taxes by way Summary, 97. of subsidy having been of late for many years disused, this rule at present seems to be of little use. But the only sure way of proceeding in this case, is to take care that every one of the bail be of ability sufficient to answer the sum in which they are bound, which (f) ought never to be less than forty pounds for a (ƒ) Dalton, c. capital crime, but may be as much higher as the justices in dis- 114. cretion shall think fit to require, upon consideration of the ability Summary, 97. and quality of the prisoner, and the nature of the offence. And if it shall seem doubtful, whether the persons who offer themselves to be sureties, be able to answer such sum, it is (g) said, (g) Dalt. c. that the person who is to take the bail, may examine them their oaths concerning their sufficiency. And if a person who has power to take bail be so far imposed upon as to suffer a prisoner to be bailed by insufficient persons, it is said, that either he, or any other person who hath power to bail him, may require the party to find better sureties, and to enter into a new recognizance with them, and may commit him on his refusal, for that insufficient sureties are as no sureties. on Sect. 5. But justices must take care, that under pretence of demanding sufficient surety, they do not make so excessive a demand, as in effect amounts to a denial of bail; for this is looked on as a great grievance, and is complained of as such by 1 Will. and Mary, sess. 2. by which it is declared, "that exces"sive bail ought not to be required." As to the THIRD POINT, viz. The offence of taking insufficient bail. Sect. 6. It seems clear, that wherever a sheriff, in pursuance (1) In felony four persons are required for bail; but for any inferior offence two are sufficient. In both cases the number of the bail must be men of 114. Summary, 96. 114. tioned in the notice, otherwise the Court will reject the whole. Lord Mansfield, Rex v. Bolton, Mich. 23 Geo. 3. M. S. Leach. |