as the statutes of 1 and 2 Ph. and Mary, c. 13. and 2 and 8 Ph. and Mary, c. 10. which direct in what manner persons brought before a justice of peace for felony shall be examined by him in order to their being committed or bailed, seem clearly to suppose, that all such persons are to be brought before such justice for such purpose; and inasmuch as the statute of 31 Car. 2. commonly called the Habeas Corpus Act, seems to suppose, that all persons who are committed to prison are there detained by virtue of some warrant in writing, which seems to be intended of a commitment by some magistrate, and the constant tenor of the late books, practice, and opinions, are agreeable hereto : it is certainly most advisable at this day, for any private person who Dalt. c. 118. arrests another for felony, to cause him to be brought, as soon as conveniently he may, before some justice of peace, that he may be committed or bailed by him. Sect. 4. But it is certain, that the privy council (2) or any one or two of them, or a secretary of state, (3) may lawfully commit persons for treason, and for other offences against the state, as in all ages (4) they have done. (2) The two cases in Leonard (vide infra, Note 4) presuppose some power for this purpose, without saying what; and the case in Anderson plainly recognizes such a power in high treason. But as to the jurisdiction of privy counsellors in other offences, it does not appear to have been either claimed or exercised. The decisions, however, in the cases of the Queen v. Derby, Fortes. 141. (infra 4. 8.) and Rex v. Earbury, 8 Modern, 177. infra, 11. (even though it should be admitted that the practice which has subsisted since the revolution had been erroneous in its commencement), are established; and the court has no right to overturn them. Lord Camden, 11 State Trials, 323. (3) In Entick v. Carrington, C. B. Mich. 6 Geo. 3. upon a special verdict, respecting the validity of a secretary of state's warrant to seize persons and papers in the case of libels, Lord Camden inquired very critically into the source of this power to commit for libels and other state crimesBy the common law, says his Lordship, neither secretaries of state, nor privy counsellors, are conservators of the peace, nor has any statute ever conferred any such jurisdiction upon them. The office neither implies nor requires the autho rity of a magistrate; nor is it consistent with the wisdom or analogy of our law to give a power to commit without a power to examine upon oath, which to this day the secretary of state doth not presume to exercise. (Vide 5 Modern, 78.) The king is indeed the principal conservator of the realm; and the secretary appears by some means to have obtained this transfer of the royal authority to himself, but the common law of England knows of no such committing magistrate. 11 St. Tr. 317. 319. (4) 1. Howell was committed 28th, and Hellyard, 30 Eliz. by secretary Walsingham, privy counsellor, and it was determined that where the commitment is not by the whole council, the cause must be expressed in the warrant. 1 Leonard, 71. 2 Leonard, 175. Sed vide, 31 Car. 2. c. 2. and Lord Raym. 65.-2. In 34 Eliz. the judges remonstrate against the exercise of this power, and As declare that all prisoners may be discharged unless committed by the queen's command, or by her whole council, or by one or two of them for high treason. 1 And, 297.-3. Melvin was committed 4 Car. 1. by secretary Conway, for suspicion of high treason, but the Court thought the cause of the suspicion should have been expressed. Palm. 558.-4. Crofton was committed by the council, 14 Car. 2. for high treason generally. Vaughan, 142. 1 Sid. 78. 1 Keble, 305.-5. Fitzpatrick was committed by privy council, 7 Will. 3. for high treason in aiding an escape, and bailed for neglect of prosecution. 1 Salk. 103.-6. Yaxley was committed, 5 Will. and Mary, by the Earl of Nottingham, secretary of state, for refusing to declare if he was a jesuit. Carth. 291. Skinner, 369.-7. Kendal and Roe were committed, 7 Will. 3. by secretary Trumbal, for high treason in assisting the escape of Montgomery, and by Holt, C. J. held good, but the prisoners were bailed, 4 State Trials, 559. 5 Modern, 78. Skinner, 596. Holt, 144. Lord Raym. 61. 65. Comb. 343. 12 Modern, 82. 1 Salkeld, 347.-8. Derby was committed, 10 Anne, for publishing a libel (quere for felony, 11 State Trials, 311) called The Observator, and the Court held the warrant good and legal. Fortes. 140. 11 State Trials, 309.9. Sir W. Windham was committed, 4 Geo. 1. by secretary Stanhope, for high treason, and by Parker, C. J. held good.. Strange, 3. 3 Viner, 516. -10. Lord Scarsdale and Duplin, and Mr. Harvey of Comb, were committed, 2 Geo. 1, by Lord Townsend, secretary of state, for treasonable practices, and admitted to bail. 3 Viner, 534.-11. Doctor Earbury was arrested and committed by warrant from the secretary of state, for being the author of a seditious libel, and his papers seized, and he was continued on his recognizance, 7 Geo. 2. 8 Mod. 177. 11 State Trials, 309.-12. Florence Hensey was committed, 31 Geo. 2. by the Earl of Holderness, secretary of state, for high treason in adhering to the king's enemies. 1 Burr. 642.-13. Doctor Shebbear was committed, 31 Geo. 2. on two warrants from the secretary of Vide 11 and 12 As to the THIRD POINT, viz. To what prison such offenders are to be committed, I shall observe, 66 FIRST, That the prison ought to be in the realm of England. Sect. 5. As to the first of these particulars, it is enacted by 31 Car. 2. c. 12. "That no subject of this realm, being an inha"bitant or resiant of this kingdom of England, dominion of "Wales, or town of Berwick upon Tweed, shall or may be sent prisoner into Scotland, Ireland, Jersey, Guernsey, Tangier, or "into parts, garrisons, islands, or places beyond the seas, which "then were, or at any time hereafter should be, within or with❝out the dominions of his majesty, his heirs or successors; and "that every such imprisonment is by the said statute enacted " and adjudged to be illegal; and that every subject so impri"soned shall have an action of false imprisonment, &c. and recover treble costs, and no less damages than five hundred "pounds against the person making such warrant, who shall "also incur a præmunire." 66 Sect. 6. As to the second of the above-mentioned particulars, it is enacted by 14 Edw. 3. c. 10. as followeth: "In the right of "the gaols which were wont to be in ward of the sheriffs, and " annexed to their bailiwicks; it is assented and recorded, that "they shall be rejoined to the sheriffs, and the sheriffs shall have "the custody of the same gaols, as before this time they were "wont to have; and they shall put in such under-keepers for "whom they will answer." And this is confirmed by 19 Hen. 7. c. 10. Also it is recited by 5 Hen. 4. c. 10. "That divers constables of castles within the realm, being assigned justices of peace by the king's commission, had, by colour of such commission, used to take people to whom they bore evil will, and imprison them within the said castles, till they had made fine and ransom with the said constables for their deliverance." And thereupon it is repair gaols in enacted, "That none be imprisoned by any justice of the peace "but only in the common gaol; saving to lords and others which "have gaols their franchise in this case." their respec tive counties, where the same clause is enact ed. Sect. 7. And it (a) seems that the king's grant since this sta(a) See 1 And. tute to private persons to have the custody of prisoners committed by justices of peace, is void. And it is said that none can claim a prison as a franchise, unless he have also a gaol-delivery. Salkeld, 343. Forres, 31. 2 Ld. Raym. 767.879. 345. C. Eliz. 829, † And whereas vagrants and other criminals, offenders, and persons charged with small offences, are for such offences, or for state, for a libel. want rant from the Earl of Rochford, secretary of state, for high treason, and bailed by Lord Mansfield. Black. 1165. Vide the case of Entick v. Carrington, upon a special verdict, for apprehending the plaintiff under the warrant of a secretary of state, for a libel, 11 State Trials, 327. want of sureties, to be committed to the county gaol, it being adjudged by law that the justices of the peace cannot commit them to any other prison for safe custody, which by experience hath been found to be very prejudicial and expensive, it is therefore enacted by 6 Geo. 1. c. 19. "That it shall and may be law"ful to and for the justices of the peace within their respective "jurisdictions to commit such vagrants and other criminals, of"fenders, person and persons, either to the common gaol or "house of correction, as they in their judgment shall think proper." 66 1 2 Hale, 94. 115. Dalton, c. 118. Crom. 172, 179. (b) Dalton, Sect. 8. It seems to be (a) agreed, that if a person be arrested (a) Summary, in one county, for a crime done in it, and fly into another, and 93. be retaken there, he may be brought before a justice of the Hale, 580. county where the offence was done, and be committed by him to the gaol of such county. But it seems to be the stronger (b) opinion, that if one who hath committed an offence in one county, ' c. 118. fly into another before he be taken, and be pursued and arrested Crompton, 72. in such county, he ought to be brought before a justice of the Summary, 92, county, where he is taken, and be committed by him to the common gaol of the same county (c), whether it lie in such county or 13 E. 4. 8, 9. another; (d) unless there be some special reason to the contrary, Plowden, 37. as an apparent danger that the party may be rescued from such Keilwood, 45. prison by rebels, &c. And it seems to be laid down as a rule, by 2 Bulst. 264. some books, (e) that any offender may be committed to the gaol 31 E. 4. 7. (c) Keilw. 45. next to the place where he was taken, whether it lie in the same 31 E. 4. 5. county or not. (d) 11 Ed. 4. 93. 11 E. 4. 4, 5. Con. 4, 5. 7. (e) Keil. 45. 22 Edw. 4. 34. + By 23 Geo. 2. c. 26. s. 11. and 24 Geo. 2. c. 55. If an offender, against whom a warrant shall be issued by any justice of peace of one county, shall escape into another, he may be apprehended (by virtue of the warrant being indorsed by any justice of the county into which he shall so escape), and bailed in the county in which he is apprehended, if the offence be bailable; if not, or he cannot find bail, he shall be carried back into the county from which the warrant was granted, and be there committed or bailed. 20 Ed. 4. 6. Sect. 9. It is (f) said, that if a constable bring a felon to (f) Sum. 114. gaol, and the gaoler refuse to receive him, the town where he is 10 H. 4. 7. constable ought to keep him till the next gaol delivery. But (g) in Dalton, c. 118. other cases it seems, that regularly no one can justify the detaining B. F. Impria prisoner in custody out of the common gaol, unless there be son. 25. some particular reason for so doing; as if the party be so dan- (8) Hale, 123. gerously (h) sick that it would apparently hazard his life to send B. F. Imprison. him to the gaol, (i) or there be evident danger of a rescous from 21.27. rebels, &c. Yet constant practice seems to authorize a com- 2 Ed. 4. 8. mitment to a messenger; and it is (k) said, that it shall be in- (h) 2 Hale, 96. tended to have been made in order for the carrying of the party 119, 120. to gaol. (i) 2 Hale, 81. 11 Ed. 4. 4, 5. (k) Salkeld, 347. 5 Modern, 78 to 85. Skinner, 599. Sect. 10. As prisoners ought to be committed at first to the Prisoners not proper prison, so ought they not to be removed from thence, but by habeas 11 Ed. 4. 7. to be removed except corpus, &c. Magistrates must take exa minations in writing, &c. Viz. fine at the discretion of the 66 except in some special cases. And to this purpose it is enacted by 31 Car. 2. c. 2. s. 9. "That if any subject of this realm shall "be committed to any prison, or in custody of any officer or "officers whatsoever, for any criminal, or supposed criminal "matter; that the said person shall not be removed from the "said prison and custody, into the custody of any other officer "or officers, unless it be by habeas corpus, or some other legal "writ; or where the prisoner is delivered to the constable, or "other inferior officer, to carry such prisoner to some common gaol; or where any person is sent by order of any judge of assize, or justice of the peace, to any common workhouse, or "house of correction; or where the prisoner is removed from one prison or place to another, within the same county, or "ordered to a trial, or discharged by due course of law; or in case of sudden fire, or infection, or other necessity; upon pain "that he who makes out, signs or countersigns, or obeys or exe"cutes such warrant, shall forfeit to the party grieved one hun"dred pounds for the first offence, two hundred pounds for the second, &c." 66 As to the FOURTH POINT, viz. What ought to be done previous to the commitment of such offenders. 66 Sect. 11. It is enacted by 2 and 3 Ph. and Mary, c. 10. "That every justice or justices before whom any person shall be brought for manslaughter or felony, or for suspicion thereof, "before he or they shall commit or send such prisoner to ward, "shall take the examination of such prisoner, and information of "those that bring him, of the fact and circumstances thereof; " and the same, or as much thereof as shall be material to prove "the felony, shall put in writing within two days after the said "examination, and the same shall certify in such manner and "form, and at such time, as they should and ought to do, if "such prisoner, so committed or sent to ward, had been bailed, or let to mainprise; upon such pain as in 1 and 2 Ph. and Mary, c. 13. is limited and appointed for not taking or not certifying such examinations, &c.' justices of gaol. delivery. C. Eliz. 829, 830. 1 Hale, 586. 2 Hale, 120, 121, 66 And it is further enacted, "That the said justices shall have authority to bind all such by recognizance or obligation as do "declare any thing material to prove the said manslaughter or felony, to appear at the next general gaol delivery to be holden "within the county, city, or town corporate, where the trial of the said manslaughter or felony shall be, then and there to give " evidence against the party; and that the said justices shall certify the said bonds taken before them, in like manner as they ought to certify the bonds mentioned in the said former act, " &c." 66 Sect. 12. It seems that a justice of peace ought not to detain a prisoner by virtue of this statute, in order to examine him, any longer than is necessary for such purpose, for which it is said that the space of three days is a reasonable time. As to the FIFTH POINT, viz. What ought to be the form of a commitment, the following rules are to be observed. Sect. 591. Sect. 13. FIRST, It must be in writing, under the hand and 2 Inst. 52. seal of the person by whom it is made, and expressing his office, or authority, and the time and place at which it is made, and must be directed to the gaoler, or the keeper of the prison. Summary, 94. 2 Hale, 122. Dalton, c. 125. 1 Hale, 157. 577. 5 Burrow, 2686. Sect. 14. SECONDLY, It may be made either in the name of Dalton, c. 125. the king, and only tested by the person who makes it, or it may be made by such person in his own name. Sect. 15. THIRDLY, It may command the gaoler to keep the party in safe and close custody; (a) for if every gaoler be bound (b) by the law to keep his prisoner in such custody, surely it can be no fault in a mittimus to command him so to do. (a) Windham's case, Strange, 3. words were held where these admonitory to the officer, to put him in mind of his duty and punishment in case of an escape. (5) 8 Co. 100. 9 Co. 87. 5 Mod. 21. Dalton, c. 118. 2 Inst. 52. c. 10. Con. 1 Roll. 134. 73. Sect. 16. FOURTHLY, It ought to set forth the crime alleged (c) Sum. 94. against the party with convenient (c) certainty, whether the com- Dalton, c. 125. mitment be by the privy (d) council, or any other authority; 591. otherwise the officer (e) is not punishable, by reason of such mit- Strange, 934. timus, for suffering the party to escape; and the court before (d) 16 Car. 1. whom he is removed by habeas corpus, ought to discharge or bail C. Car. 133. him. And this doth not only hold where (f) no cause at all is 507. 579.593. expressed in the commitment, but also where it is so loosely set 2 Aud. 298. forth, that the court cannot adjudge whether it were a reasonable ground of imprisonment; as (g) where one was committed for 1 Leon. 71. manifold contumacy to the high commission court, or for (h) re- c. 15. s. 66 to fusing to answer before them to certain articles, or (2) for insolent vide Money v. behaviour and words spoken at the council table, &c. And it is Leach, 1 Black. holden by Sir (k) Edward Coke, in his Second Institute, that a 561. commitment for high treason, or felony in general, without shew- Summary, 109. ing the species of the offence, is not good: yet in (7) another part Infra, c. 17. of the same book, such general commitments seem to be allowed Palm. 558. by him to be good; and there are precedents of commitments (C. Car. for felony in general, in (m) good authors. And (n) it hath been Barkham & resolved, that commitments for high treason in general, are good. Lawson, Palm. (g) 1 Roll. 245. (h) 1 Roll. 220. 245. (i) C. Car. 133, 579. 2 Bulst. 139, 140. (k) 2 Inst. 591. 5 Modern, 85. 1 Burn, 155. (1) 2 Inst. 52. (m) 1 Hale, 595. 609. 2 Hale, 123. Crom. 233. Dalt. c. 125. But although it be not necessary to state, on a warrant of commitment on a charge of 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 bail the defendant. Rex v. Judd, 2 Term Rep. 255. (n) 1 Sid. 78. 1 And. 298. 1 Keble, 305. Palm. 558. Strange, 2. 10 Modern, 234. 1 Hale, 595. 2 Hale, 123. confirmed by Pratt, C. J. in Wilkes' case, 2 Wilson, 158. Sect. 17. FIFTHLY, It is safe to set forth, that the party is charged upon oath; but this is not necessary; for it hath been resolved, (5) that a commitment for treason, or for suspicion of it, without setting forth any particular accusation, or ground of the suspicion, is good. (5) This resolution was in the case of Sir W. Windham, 2 Geo. 1. who was committed by the secretary of state for high treason generally. Stra. 2. and 3 Viner's Abr. 515. at large. It is confirmed by Pratt, C. J. 3 Geo. 3. in Mr. Wilkes' case, committed by a similar warrant for a libel. 2 Wilson, 158. 11 State Trials, 304; and Mr. Sect. 507.579.593. 558. Justice Foster says, in cases wherein the justice of the peace hath jurisdiction, the legality of his warrant will never depend on the truth of the information whereon it is grounded. Curtis's case, 136. See also Dalton, c. 125. Crompt. 233. 2 Inst. 52. Palmer, 558. 1 Salkeld, 347. 5 Modern, 78. 10 Modern, 334. 1 Hale, 582. |