186. 189. 2 Hale, 129. 148. Summary, 104. Salkeld, 61. (b) 3 Bulst. 113. Skinner, 683. court of King's Bench to one excluded by the above-mentioned statute of Westminster the first, from the common benefit of a replevin by the sheriff. Sect. 80. It cannot be doubted, but that, notwithstanding (a) 2 Inst. 185, neither (a) the judges of this nor of any other superior court of justice are strictly within the purview of that statute, yet (b) they will always, in their discretion, pay a due regard to the rules prescribed by it, and not admit a person to bail who is expressly declared by it to be irreplevisable, without some particular circumstance in his favour. And therefore it seems difficult to find an instance where persons attainted (c) of felony, or but convicted thereof by verdict general or (d) special, or notoriously (e) S. P. C. 74, 75. guilty of treason or manslaughter, &c. by their own confession or otherwise; have been admitted to the benefit of bail (3), without some special motive to induce the court to grant it: as where (f) a person taken by a capias utlagatum, on an appeal of felony, by the name of J. S. gentleman, pleads that his name is J. S. yeoman, and not gentleman, and so he is not the same person who was outlawed, in which case the court in discretion may bail him; for until the plea is determined, it appears not whether he were the person intended, or not: or where (g) a person outlawed alleges an error in the record, in which case also the court, ex gratia, may bail him, especially if the error be apparent: or where a man is convicted (h) of felony, upon evi 5 Mod. 454, 455. Kelynge, 90. (d) Dyer, 179. 1 Bulst. 87, 88. (e) 1 Roll. 268. Raym. 381. 3 Bulst. 113, 114. 5 Mod. 455. Vide sup. sect. 33. 1 Salkeld, 103. (f) 5 H. 7. 10. 2 Inst. 188. Summary, 101. S. P. C. 74. (g) 19 H. 6. 2. S. P. C. 74. 2 Inst. 188. 1 Sid. 316. (h) Crom. 154. (3) The court of King's Bench has power to bail in all cases whatsoever, Lord Mansfield, Cowper, 333; and the judges will in general exercise it in favour of a prisoner in every case not capital; in capital cases, where there is any circumstance to induce the court to suppose he may be innocent; and in every case where the charge is not alleged with sufficient certainty. 1 Bac. Abr. 222. notes. The court, therefore, will bail a person committed for high treason generally, if four Terms have elapsed and no prosecution commenced. Strange, 5. Or for treason done upon the high seas. Holt, 83. So also a man and his wife committed for felony, if the assizes have intervened and they have endeavoured to bring on the trial. Andr. 64. So also a person convicted upon an appeal of murder, subject to an argument on a plea in abatement, (three years having elapsed without either side bringing it on) provided the appellant will actually consent. Strange, 403. So also a person who was convicted of keeping an alehouse, &c. he having brought a certiorari. Strange, 531. So a person convicted on an indictment of murder, and afterwards in custody on an appeal, unless the judge certifies a dissatisfaction at the verdict. Strange, 854. So also a person appealed of murder who has not been indicted, provided there is any delay on the part of the appellant. Strange, 856. 859. So also a person committed for manslaughter, if it appear to be no more upon the depositions before the coroner. Strange, 911. 1242. So also in murder and pardon pleaded and allowed, the defendant shall not give even bail to answer the appeal though the heir is beyond sea, for this dence is not within 3 Hen. 7. Strange, 1203. So also in rape both principal and accessary will be bailed, if it appear they do not mean to abscond. 4 Burr. 2179. And the court is bound ex debito justitiæ to bail an accomplice intitled to the king's pardon. Cowper, 334. And although it be not necessary to state in a warrant of commitment for felony that the act was done feloniously, yet unless it sufficiently appear to the court that a felony has been committed, they are bound to admit the prisoners to bail, Rex v. Judd, 2 Term Rep. 255. But this court will not look into the coroner's depositions to bail a gaoler committed for murder. Strange, 851. Nor will they bail an appellee for murder unless circumstances of delay appear on the part of the appellant. Strange, 854. Nor a person charged with a highway robbery, if the prosecutor attend and swear he is the man, notwithstanding a number of affidavits are produced to the contrary. Strange, 1138. Nor for assisting in the running of contraband goods, &c. Bunb. 143. Nor will the court order, at the instance of the prisoner, a medical man to attend the person wounded by the prisoner, in order to state his situation for the purpose of bail. Strange, 547. Nor will they bail after an indictment of murder upon an affidavit of the fact. 1 Salkeld, 104. Skinner, 683. See also Rex v. Homer, Caldecot, 295. that upon application to bail for felony, the court requests to see the depositions; and will thence, if they see just cause, without regarding the regularity or irregularity of the commitment, discharge, bail, or detain the prisoner. 454, 455. dence by which it plainly appears to the court that he is not guilty of it; in which case even the justices of gaol-delivery may bail him or where (a) it appears to the court that the prosecu- (a) 5 Modern, tor of an indictment. or the plaintiff in an appeal, hath unreason- 1 Sid. 78. ably delayed his prosecution; as where two nihils are returned 1 Bulst. 85. upon two writs of scire facias awarded against a plaintiff in an Palmer, 558, appeal removed by certiorari into the King's Bench, and the pri- 559. 1 Keble, 305, soner hath lain a long time under confinement: or where (b) the 306. defendant in an appeal hath pleaded an excommunication in dis- 48 Ed. 3. 22. ability of the plaintiff; in which case it is apparent that the Ass. 12. plaintiff cannot proceed at present; and if the defendant should B. Mainp. 48. be kept in prison till the plaintiff be absolved, he might be a 73. prisoner for life: or where (c) it appears to the court, that the defendant may be in danger of losing his life, either by famine (4) or a dangerous distemper, &c. if he continue longer in prison. As to the SECOND POINT, viz. In what cases bail is grantable by the other courts of Westminster-hall; I shall consider, First, How far it is grantable by such courts to persons com mitted for causes under the degree of treason or felony. Secondly, How far it is grantable to persons committed for treason or felony. As to the FIRST POINT, viz. How far bail is grantable by the said courts to persons committed for causes under the degree of treason or felony. 13 Ed. 4. 8. S. P. C. 72. Co. Lit. 289. 4 Inst. 290. 2 Andr. 197. Sect. 81. It seems (d) that the courts of Common Pleas (d) 2 Inst. 53. and Exchequer, at any time during term, and the court of 55.615. Chancery, either in term or vacation, may award a habeas 2 Hale, 147. corpus by the common law, for any person committed for any Vaughan, 154, such cause, and thereupon discharge him, if it shall clearly 155, 156, 157. appear by the return, that the commitment was against law Dalison, 81. (as being made by one who had no jurisdiction of the cause, 3 Leonard, 18. or for a matter for which by law no man ought to be punished), 2 Jones, 13, 14. or bail him, if it shall be doubtful whether the commitment were 2 Modern, 198. legal or not, &c. However, it is certain at this day, that by 306. force of the habeas corpus act, par. 3 and 10. set forth more at large sect. 17 and 22. any of the said courts, in term-time, and any judge of either bench, or baron of the Exchequer, being of the degree of the coif, in the vacation, may award a habeas corpus for any prisoner whatsoever who is bailable by the intent of that act, and thereupon bail him. As to the SECOND POINT, viz. How far bail is grantable by the said courts to persons committed for treason or felony. 17. Sect. 82. It is observable, that the above-mentioned clauses of the said habeas corpus act extend not to persons committed for treason or felony, plainly and specially expressed in the warrant of commitment. Neither do I find any printed case, wherein persons committed for such crimes have been bailed either by 2 Jones, 14. (4) The fact of indisposition, upon which the court will bail, must be a present indisposition, arising from the confinement, and not from any the See Vaughan, 156, 157. constitutional or family distemper, or from the act of the prisoner. 10 Modern, 334. Vide also Strange, 49. 543. Holt, 85. Cowper, 333. the courts of Common Pleas or Exchequer. However it is cerRegister, 271. tain, that in some cases persons committed for felony are bailable by the court of Chancery. But our law-books being generally silent in relation to these matters, I shall refer the reader for the more accurate knowledge of them to observation and experience. 2 Hale, 126, 127. (a) 1 Bulst. 45. Con. (d) 4 Inst. 178. 1 Bulst. 45. 21 H. 7. 20. Con. 1 Sid. 210. As to the SEVENTH GENERAL POINT of this chapter, viz. In what form bail is to be taken. Sect. 83. It seems to be the practice of the court of King's Bench in admitting a person to bail, who is actually (a) present in court, upon an indictment or appeal (b) of felony, or other crime, punishable with loss (c) of member, to take (d) a several recognizance to the king in a certain sum from each of the bail, that the prisoner shall appear at a certain day, &c. and also, that the bail shall be liable for the default of such appearance, &c. body for body. And it seems (e) to be left to the discretion of justices of peace, in admitting any person to bail for felony, to take the recognizance either in a certain sum, or else body for body. But (f) where a person is bailed by the court of King's Bench, before the return of a capias awarded against him for felony, or (as it seems to be implied in the book cited in the margin that he may be) in any court for a crime of an inferior nature, it seems, that the recognizance ought to be only in a certain sum of money, and not body for body. However it is certain (g) at this day, that persons bound body for body, are not Con. F. Mainp. liable, on the forfeiture of the recognizance, to such punishment to which the principal is to be adjudged, if found guilty, but only to be fined, &c. seems contrary: S. P. C. 65. 12. 1 Black. 648. Strange, 911. (h) Dalt. c. 127. 4 Inst. 178. 2 Hale, 126. As to the EIGHTH GENERAL POINT of this chapter, viz. What shall forfeit the recognizance. 66 Sect. 84. If on a bailment for felony, the usual (h) form, “ ad "standum recto de feloniâ prædictâ et ad respondendum domino regi," be made use of, and at the trial the party stand obstinately mute, it may reasonably be argued, that in strictness the (i) S. P. C. 77. recognizance is forfeited, for (i) that the expressions above-mentioned seem to import at least thus much, that the prisoner shall make some answer; and at the common law, before the statute (k) 2 Inst. 150. (k) of Marlebridge, c. 28. if a person under bail had insisted on his privilege as a clerk, and refused to answer to the crime alleged against him, his sureties were to be amerced; and though the said statute has in that case excused the bail, yet an obstinate refusal to answer in other cases, may perhaps remain as it (1) Dalt. c. 127. was at the common law. Mr. Dalton (1) indeed seems to be of Vide 4 Bur. 75. another opinion, because the words above-mentioned are always used of course; but it seems strange, that words should be looked on as idle and insignificant because they are most usual and proper. However, if late practice and experience have been agreeable to the above-mentioned opinion of Dalton, as I apprehend they have, they will certainly be of great force to maintain it; and indeed it must be confessed, that if a man's bail, who are his gaolers of his own choosing, do as effectually secure his appearance, and put him as much under the power of the court as if he N. B. A feme covert cannot be bound by recognizance, because it can not be estreated. Styles, 369. had had been in the custody of the proper officer, they seem to have answered the end of the law, and to have done all that can be reasonably required of them: But howsoever the law may stand in relation to this case, it is certain, that if persons be bound by recognizance, that J. S. shall appear in the King's Bench the first day of such a term, to answer to such an information against him, and not depart till he shall be discharged by the court, and afterwards the attorney-general enter a nolle prosequi as to that Queen v. Redinformation, and exhibit another, on which the defendant is con- path, Easter, victed, and refuses to appear in court after personal notice, the 11 Ann. recognizance is forfeited; for being express that the party shall Fort. 358. not depart till he be discharged by the court, it cannot be satisfied unless he be forthcoming, and ready to answer to any other information exhibited against him while he continues not dis- 1 Burrow, 10. charged, as much as to that which he was particularly bound to 54. 398. 431. answer to. But in such case it seems, that the recognizance 4 Burrow, shall not be forfeited by the party's not appearing in court the 3119. 2126. first day of every term, after he hath pleaded to the information, as it may be before he hath pleaded. Sect. 85. But it is recited by 4 Geo. 3. c. 10. that many recognizances have been estreated into the court of Exchequer against persons for not appearing as parties or witnesses, or for not prosecuting indictments, or for otherwise not performing the conditions of such recognizances, many of which neglects have happened from the inattention of ignorant people; whereupon it is enacted, "That it shall be lawful for the barons of the Exche"quer, upon affidavit and petition to be presented to them, by or on the behalf of the person or persons imprisoned or liable "to be imprisoned on the forfeiture of any such recognizances, "to discharge such person or persons, by order from the said 66 66 10 Mod. 152. 3 Burrow, 1461. quietus, vide barons, without any quietus (a) to be sued out for that purpose, (a) For the form "for which order no more than one pound and one shilling shall and method of "be taken by the officer appointed to give out the same.-Pro- obtaining a "vided that no discharge shall be given on such petition where Cro. Cir. Com. any debt is due to the crown, other than by the recognizances 61, 62. "so prayed to be discharged; nor in any cases of defrauding 66 "his majesty's revenue by contraband trade, or assaulting the "officers of the customs or excise in the execution of their duty, 66 or any person or persons lawfully assisting them therein.” (5) (5) On a recognizance estreated for not being punctually complied with, if the party take his trial the next session, he may compound for a very small matter in the court of Exchequer, because the effect, though not the exact form, of the recognizance is complied with. 10 Modern, 278.-And if the money be levied, the court will order the prosecutor's costs to be paid, and the surplus returned. 4 Burrow, 2118. Recognizances in cases of felony are to be certi fied to the general gaol-delivery. 1 and 2 Phil. & Mary, c. 13.-If a defendant indicted for perjury be acquitted, the bail shall be discharged from their recognizance, on motion, though the acquittal is not entered on record, for the acquittal appears on the postea. 1 Wilson, 315.-Neither the defendant nor CHAP. his bail can be called upon their recognizance without notice, except on the day on which the defendant is bound to appear. B. R. H. 237. And if the defendant do not appear upon that day, the court will not discharge the recognizance, although the attorney-general consent to it, but they will respite it till the next term. 11 Modern, 200. For the judges of oyer and terminer are the proper judges whether recognizances ought to be estreated or spared. 10 Modern, 278.-On conviction, if the offender be pardoned on condition of transportation, yet he may be surrendered in discharge of bail, Strange, 1217, by writ of habeas corpus on the crown side. But if he be actually on board the transport, the court will not issue the writ. 4 Burrow, 2034. 2 Hale, 123, 124. 1 Burrow, 460. 7 Ed. 4. 20. CHAP. XVI. OF COMMITMENTS. AND now I am to consider in what cases, and in what manner, offenders are to be committed. For the better understanding whereof I shall examine, 1. What kind of offenders are to be committed. 2. By whom. 3. To what prison. 4. What is to be done previous to their commitment. 3. What ought to be the form of it. 6. At whose charges they are to be sent to prison. 7. To what court the commitment to be certified. 8. By what means the party may be discharged from such commitment. As to the FIRST POINT, viz. What kind of offenders are to be committed. Sect. 1. There is no doubt but that persons apprehended for offences which are not bailable, and also all persons who neglect to offer bail for offences which are bailable, must be committed. (1) Sect. 2. And it is said, that wheresoever a justice of peace is impowered by any statute to bind a person over, or to cause him. to do a certain thing, and such person being in his presence shall refuse to be bound, or to do such thing, the justice may commit him to the gaol, to remain there till he shall comply. 'As to the SECOND POINT, viz. By whom such persons are to be committed. Sect. 3. It seems to be agreed by all the old (a) books, that wheresoever a constable, or private person, may justify the ar(a) 10 H. 4.7. resting another for a felony or treason, he may also justify the sending or bringing him to THE COMMON GAOL; and that every private person has as much authority in cases of this kind as the sheriff or any other officer, and may justify such imprisonment by his (b) own authority, but not by the command of another. But (c) inasmuch as it is certain, that a person lawfully making such an arrest may justify bringing the party to the constable, in (b) 5 H.7. 4,5. order to be carried by him before a justice of peace, inasmuch 3 Ed. 4. 26. 27. 5 H. 7. 4, 5. 11 Ed. 4. 4. 2 Hale, 81. F. F. Impris. 8. (c) 9 Ed. 4. 26, 27. 10 Ed. 4. 17. Summary, 91. 112. 2 Hale, 120. 1 Burn's Just. 369. (1) A prisoner in the custody of the king's messenger, on a warrant from the secretary of state, who is brought into the king's bench by habeas corpus to be bailed, but has not his bail ready, cannot be committed to the same custody he came in; he must as be committed to the custody of the marshal, which will prevent the necessity of suing out a new habeas corpus, as he may be brought up from the prison of the court, by a rule of court, whenever he should be prepared to give bail. 1 Burrow, 460. |