522

pleaded, were depending at the time of such conviction, or not. 527. s. 13 It has been said, unless the Court call a man to judgment on a conviction of manslaughter, on an indictment of murder, he cannot demand clergy, and, therefore, cannot plead such conviction and clergy in bar to an appeal. 528.

s. 14

ib.

Wales may be pleaded to an indiciment for the same murder in England. An acquittal of a man as accessary no bar of a subsequent prosecution against him as accessary after the fact. ib. s. 11 But it is doubtful, whether the acquittal of a man as principal is a good bar against an indictment as accessary before the fact. ib. Whether a man can be found guilty as principal upon evidence which only proves him to have been an accessary before. ib. If not, the acquittal of him as principal no way acquits him as an accessary before; which opinion is strongly holden by Mr. Justice Foster. 523. (N) The acquittal of a man as accessary before or after is no bar to a prosecution against him as principal. ib. s. 12 An acquittal as accessary to one principal is no bar to an arraignment afterwards as accessary to another in the same fact. ib. s. 13 By 3 Hen. 7. c. 1. principals and accessaries in murder may be tried before the expiration of the year and day within which time an ap- An appeal lies against a person convicted until peal is allowed to be brought.

ib.

But it is now settled that such a conviction, and
the prayer of clergy, may be pleaded in bar to
an appeal for the same death, whether the
party were called to judgment or not.
But if the record is erroneous either in respect
of insufficiency in the indictment or appeal,
or for a mis-trial, &c. so that his life was not
in danger, the prisoner cannot plead such con-
viction and clergy thereon had, in bar of a
second indictment or appeal.

ib.

The form of the conclusion of a plea of autrefoits convict of manslaughter.

529. s. 16 Quare, if autrefoits convict of se defendendo on an indictment of murder may not be pleaded to an appeal of the same death. ib. s. 17

he is attainted.

ib.

But an acquittal on this trial within the time shall not bar the appeal.

Nor shall this statute extend to any other acquittal but on an indictment.

524. s. 15

And an acquittal on any other indictment or

BACKING.
See WARRANT.

BAIL.

ib.

appeal, except for death, may still be pleaded Bail and mainprise alike save a man from gaol, in bar to an appeal for the same crime. ib. How the record shall be produced in pleading autrefoils acquit. A prisoner shall be allowed a copy of his indict-Bail have a coercive power over the person of ment to enable him to plead autrefoits acquit. Not less than two bail should be taken for the principal, but mainpernors have not. 139

felony. ib, s. 4 On a habeas corpus for treason or felony, the king's bench always require four sureties, in a sum not less than £40, but higher in the discretion of the Court.

This plea is allowed, because the party ought not to be brought twice into danger of his life for the same crime. 526. s. 10 A conviction of felony may be pleaded to an indictment or appeal for the same felony. ib. If insufficient bail be taken, the principal may be forced into a new recognizance.

ib. They may be examined on oath respecting their sufficiency.

ib.

140

A conviction of manslaughter on an appeal may be pleaded to an indictment or appeal of the The number of bail must be mentioned in the same death. ib. notice. 139. (N. 1) But a conviction of manslaughter on an indict- But excessive bail ought not to be required. ib. ment cannot be pleaded to an appeal, unless

s. 5

the convict be admitted to, or has prayed his If the ends of justice are defeated by the nonclergy.

A conviction of one felony cannot be pleaded in bar of another felony. A person admitted to his clergy shall not thereby bar a subsequent prosecution for another To admit persons to bail not bailable by law, is felony not within the benefit of clergy. ib. s. 11| A person convicted of manslaughter on an indictment of murder, who hath prayed his clergy, though not actually admitted to it, may bar any subsequent appeal for the same death. ib. s. 12 But if a person be acquitted on such an indictment it is no bar to the subsequent appeal.

By statute Westminster 1. officers shall lose their fee and office for ever, and be imprisoned three years, &c. ib. s. 8 By 27 Edw. 1. c. 3. and 4 Edw. 3. c. 7. judges of assize shall enforce the stat. West. ib. s. 9, 10 527 By 1 and 2 Phil. & Mary, c. 13. justices of peace shall not admit to bail persons forbidden

It is not material whether the appeal in bar, whereof such conviction and clergy are

to

141. s. 11

term or sessions, be discharged on bail, unless it appear on oath the king's witnesses could not be produced. If not indicted or tried the second term or sessions, they shall be dis144. s. 21 charged. Prisoners may obtain hakeas corpus out of any ib. s. 22 of the courts at Westminster.

If the Chancellor or any of the judges in Vacation time, upon view of the warrant, or oath of its refusal, &c. shall deny the writ of habeas corpus, they shall severally forfeit 500l. ib.

ment of the term.

habeas

but shall

And such writs do not expire on the commence-
ib. (N. 7)
After assises proclaimed, no prisoner shall be
discharged there upon corpus,
be taken before the judge of assize. ib. s. 23
Judges not liable to penalty for refusing habeas
corpus in term time; because no judge is
liable to an action for what he does as judge.

145. s. 25

to be replevised by stat. West. on pain of being fined by the Judges of assize. Ignorance of the cause of commitment, or that the mittimus charged the offender on suspicion of felony only, is no excuse for improperly ib. s. 12 admitting him to bail. But denying, delaying, or obstructing bail, where it ought to be taken, is indictable; and the ofib. s. 13 fender is also liable to an action. It is incumbent on the offender to be prepared ib. s. 14 with his bail. By stat. West. if any withhold bail from persons replevisable, they shall be grievously amerced. ib. s. 15 By the Habeas Corpus Act, 31 Car. 2. c. 2. wherever any writ of habeas corpus is served at any prison, the gaoler within three days after (unless the commitment be for treason or felony, plainly and specially expressed in ib. s. 24 the warrant) and upon tender of the charges, &c. shall make a return of such writs, and bring up the body of his prisoner to the court Quare, if a sheriff or constable, as conservators of the peace, may take bail. from whence the writ issues, and certify the true causes of his commitment or detainer. The statutes empowering justices to take bail, ib. have taken away this power from the sheriff and constable. If the prison be above 20 and not exceeding 100 miles distant from the court, the return, &c. shall be within ten days, and if above 100 miles, then within twenty days. All such writs shall be marked per statutum tricesimo primo Caroli secundi regis, and signed ib. s. 17 by the person awarding it. Therefore if a writ be not signed, it need not be obeyed. 142. (N. 3) The writ de odio et atia is obsolete. In vacation, any of the judges, on view of the In what cases mainprize is yet in force. ib. s. 29 commitment, or ou oath or certificate that the In what cases homine replegiando and capias in withernam are proper and effectual remedies. warrant was refused, may grant a habeas corpus under the seal of the Court returnable immediate (other than to convicts or persons By stat. West. 1. outlaws, abjurors, provers, in execution), and on service thereof the ib. goaler shall make return, &c. as above. Within two days after the return, &c. the judge awarding the writ, or in his absence any other of the judges, may discharge the prisoner on bail, &c. unless it appear that he is detained upon a legal process out of a court of criminal law, or that he is not bailable.

142

143

If a prisoner is too infirm to be brought up, the
Court will order him to be attended. ib. (N. 6)
If a prisoner neglects for two whole terms to
he shall lose the right to
pray
a habeas corpus,
it in Vacation.

ib. To refuse obedience to this writ, &c. incurs a penalty of £100 for the first offence, £200 for the second and loss of office.

ib. s. 26 The sheriff in his torn, might have taken bail; for whosoever is judge of the offence, may bail the offender. But this power is lost by ib. s. 27 reason of 1 Edw. 4., c. 2.

Bail is grantable by sheriffs by virtue of the
writs de odio et alia, mainprize, and homine
ib. s. 28
replegiando.
ib. 146

ib.

house-burners, counterfeiters of the coin or seals, persons excommunicate, and traitors touching the king himself, shall be in no wise replevisable.

147. s. 32

But persons indicted for larceny, or of light suspicion, or for petty larceny (unless accused as accessaries), may be let out on surety by ib. the sheriff.

Those who are taken for the death of a man, were not replevisable by sheriffs, &c. at the common law. Nor can justices bail for manslaughter or even excusable homicide, though they may for light suspicion thereof; and even the superior courts are cautious how they 148. s. 33, 34 bail for homicide. ib. By 3 Hen. 7. c. 1. principals and accessaries acquitted of murder, may be recommitted or bailed at the discretion of the Court till the ib. year and day be passed. Persons imprisoned by the special command of the king or his privy council, were not repleib. s. 36 visable by the sheriff, &c. How far persons committed by command of the king's justices are replevisable by the sheriff under the stat. of West.

No privilege will excuse a peer from obeying
143. (N)|
this writ.
No person discharged by habeas corpus, shall be
again imprisoned for the same offence, other
than by legal process, &c. on pain of £500.

143

Prisoners committed for treason or felony plainly and specially expressed, praying in open court the first week of the next Term, or first day of the sessions, to be tried, who shall not be indicted the term or sessions after commitment, may, upon motion the last day of the

VOL. II.

149

Persons imprisoned for the forest, are excepted out of the writ de homine replegiando. ib. s. 38

Ꮓ Ꮓ

But

But by several statutes, no man shall be imprisoned for the forest, without indictment, unless taken with the mainour, or trespassing.

150

ib.

be any colour to presume their innocence, may also be bailed. 155, s. 50 Trespass not extending to life or member, except the offence be open and manifest, is bailable How such offenders may be bailed or main- by the statute. ib. s. 51 prised. ib. s. 39 The appellee of an approver is bailable. ib. s. 52 Persons outlawled, or who have abjured the Accessaries of good reputation are bailable till realm, those taken upon an excommunicato capiendo, approvers, and all persons convicted of felony, or other heinous crime, and also all those who, on examination, confess the guilt of felony, and are so charged in the warrant, are excluded from the benefit of replevin by the stat. of West. Bail is only proper where it stands indifferent whether the party be guilty or innocent of the charge. But when that indifferency is removed it would be absurd to bail. 151. s. 40 By several statutes, the bodies of prisoners convicted or in execution restrained from being

the principal be convicted. Persons notoriously guilty as accessaries of crimes excluded from clergy, are not bailable.

ib. s. 40

151 to 152

153

151

ib.

By 31 Car. 2. c. 2. no person charged as ac-
cessary
shall be removed or bailed by that act,
otherwise than he might have been before. 156
Where there are strong presumptions of guilt
against an accessary, he was not bailable be-
fore the statute, nor is now bailable by it. ib.
IN WHAT CASES JUSTICES OF PEACE MAY ADMIT
ib.

OFFENDERS TO BAIL.

Wherever justices have jurisdiction over the
offence, they may bail the offender indicted
before them, upon the like circumstances as
other courts may bail.
157. s. 54

ib.

bailed. The court of king's bench may bail a person upon an outlawry for felony. Justices of gaol-delivery may bail or convict of Two justices, one quorum, may bail persons inmanslaughter, and it is said, for any other felony. A person imprisioned by excommunicato capiendo, in a cause of which the spiritual court has no conusance, may be bailed on habeas corpus, or he may supersede the writ. Persons taken with the mainour, prison-breakers, persons appealed by provers, persons appre

ib.

dicted before the sessions; because any two such justices may try the offence. One justice of the peace may bail any offence, under the degree of felony, over which the sessions has jurisdiction; for such justice, being a judge of the court, retains the discretionary power of judging of the propriety of admitting such an offender to bail.

By

ib.

prison a person who has given another a dangerous wound, exercising his judgment on its probable mortality.

157

Rich. 3. c. 3. every justice of peace may let persons arrested or imprisoned for suspicion of felony to bail or mainprise, in like form as if they had been indicted at sessions,

hended upon hue and cty, notorious thieves, One justice of the peace may either bail or imdangerous and treasonable rioters, conspirators, rescuers, and persons guilty of misprision, præmunire, or maim, and such like notorious offences, seem not to be bailable by the stat. West. 151, 152. s. 41 But in offences under the degree of felony, bail seems to be left, in a great measure, to the discretion of the judge. 152 Persons apprehended for arson, for falsifying the coin or king's seal, or for treasons, are excluded from replevin by the stat. West. 151 The sheriff therefore cannot release such offenders even by homine replegiando.

By modern practice, sheriffs shall receive no one
into their custody, but by warrant from a
magistrate.
ib.
The king's bench not restrained by the stat.
West. from bailing in all cases.
Persons of good reputation indicted of larceny
before sheriffs in their torns, and lords in their
leets, are replevisable by virtue of the statute
of West.
154. s. 48
Persons not excepted by the statute, who being
of good repute are imprisoned upon light suspi-
cion, are also replevisable.
Persons imprisoned for petit larceny, if there

155. s. 49

ib. s. 55

But by 3 Hen. 7. c. 3. the 1 Rich. 3. c. 3. is
repealed, and power is given to two justices,
one to be of the quorum, to let persons main-
pernable by law to bail until the next session
or gaol-delivery, the recognizance of which
shall be certified to the said session, &c. 158
Also by 1 & 2 Ph. & Mary, c. 13. no justices of
the peace shall admit any persons to bail who
are declared irreprevisable by the statute of
Westminster.
ib. s. 57

158. s. 58

And two justices, one to be of the quorum, shall
not let to bail any person arrested for man-
slaughter or felony, or for suspicion thereof,
unless the same justices be present together
at the time of the bailment (except in open
sessions), and the same shall be certified to
the next goal delivery under their hands.
And previous to bailing such prisoner, the said
justices, or the one quorum, shall take his exa-
mination and the depositions of the witnesses
in writing, as far as may be necessary to prove
the felony, &c. and transmit the same to the
next gaol-delivery.
Justices of the peace are authorized to bind over

159. s. 59

necessary witnesses to appear and give evi-] dence against such prisoners at the gaol-delivery. 159. s. 60 Justices of peace and coroners in London, Middlesex, and other cities, have authority to let to bail felons and prisoners in the same man-The ner as before, and to bind over witnesses, &c. 159. s. 61

ib.

The justices of gaol-delivery shall punish jus-
tices of the peace for offending against the
above-recited act of Ph. & Mary.
Justices, as conservators of the peace, may bail
any offence only tending directly to a breach
of the peace.
ib. s. 62
One justice cannot bail a person for any other
crime than that which barely tends to a direct
breach of the peace, unless such power be
limited by some statute or the party have

ib.

ib.

famous case of Sir John Corbet stated, in which it was determined that the king's bench will not bail on a commitment by the privy council, in which warrant no other cause of imprisonment was contained, but that it was at the king's command. 162 to 164 This decision produced the PETITION OF Right; since which it is agreed that wherever any commitment by the privy council hath not expressed, with some convenient certainty, the crime alleged against the party, he ought to be bailed upon his habeas corpus. 164, 165 And by 16 Car. 1. c. 1. whoever shall be imprisoned by the command of the king or privy council shall have his habeas corpus, &c. &c. &c.

164

been indicted at sessions. No justice of the peace can bail a person imprisoned for treason against the king, arson, &c. or any crime declared not bailable by the The court of king's bench will not bail a pristat. West. (vide supra).

160. s. 63

ib. s. 63

soner committed by either house of parliament during the continuance of the sessions.

165. s. 73 Even if an excess of jurisdiction plainly and expressly appear, it seems questionable how far the Court would interpose.

enumerated.

ib.

166

But if such offender be only accused on light suspicion, the justice may take surety for his appearance. ib. And by virtue of 1 and 2 Ph. and Mary, c. 13. justices of the peace may bail any person imprisoned on a slight suspicion of a fact clearly The several cases of commitments by parliament appearing to be no higher offence than manslaughter, and à fortiori if it only amount to On a commitment by either house for a conmisadventure or self-defence. The justices at their peril must take care that the offence in truth amounted not to murder. ib. Justices of the peace ought in no case to bail any person guilty of any homicide, by his own confession or the notoriety of the fact. ib. The above-mentioned statutes (vide supra) only shew the manner of bailing by justices, and do not point out the persons bailable; for It which the stat. of West. must be observed.

ib. s. 64 Justices are not impowered to bail civil actions, persons taken on process of contempt, or rebellion out of chancery.

460

tempt, the court of king's bench has no jurisdiction: Lord Holt said the power extended only to commitments for contempt in the face of the house. 166 (N. 1) Modern opinions of the privilege of parliament to commit for contempts, and the impossibility of the courts to interpose to bail the pri

soner.

ib.

is agreed that the king's bench may bail a prisoner committed by either house for a contempt, after the dissolution or prorogation of the parliament. ib. s. 74 Whether the king's bench will bail a lord committed by the house of lords and pardoned. ib. s. 75 The dispute in the reign of James the First respecting the power of the king's bench to bail persons committed by the court of chancery. 167 A commitment by the court of chancery for disobedience to a decree is good without shewing what the decree was.

168

The king's bench may, in discretion, bail any
person deprived of his liberty by an inferior
court.
ib. s. 77
Instances in which the Court will exercise this
discretion.
ib.

Of the proceedings in the king's bench upon a

habeas corpus.

ib.

Neither the judges of the king's bench, nor of any other superior court of justice, are restrained from admitting any offenders to bail by the statute of Westminster; yet they will regard the rules prescribed by it, and not bail

ZZ 2

one

172. s.83

one thereby declared irreplevisable, without Persons bound body for body are at this day only some special circumstance. 170. s. 79 liable to fine, &c. Therefore, without special motive they will not WHAT SHALL FORFEIT A RECOGNIZANCE OF BAIL. bail persons convicted of felony, or notoriously guilty thereof.

ib. s. 80

the record. ib. Or where a person is convicted of felony against manifest evidence. ib.

ib. s. 84

ib.

ib.

173

ib. How far standing mute on the trial amounts to a The king's bench will bail a person for an erro- forfeiture neous description, who is taken on capias ut- A man's bail are his gaolers of his own chusing. lagatum. Or where a person outlawed alleges an error in Non-appearance to a second information, after a nolle prosequi entered on the first, and upon which a recognizance was taken, is a forfeiture. The recognizance in the above case shall not be forfeited by the non-appearance of the party the first day of every term after plea; as it ib. By 4 Geo. 3. c. 10. the barons of the exchequer, may be before he hath pleaded. upon affidavit and petition, may discharge persons liable to imprisonment upon estreated reNo discharge shall be so given where any other cognizances without any question. 173. s. 85 debt is due to the crown, than by such recog

171

Or where the prosecutor of an indictment hath
unreasonably delayed the prosecution, &c. ib.
Or where the prisoner in appeal hath pleaded
the excommunication of the plaintiff.
Or where the life of a prisoner is endangered by
his continuance in prison.
ib.
The fact of indisposition upon which the Court
will bail a prisoner must be immediate, and
not be self-created, or the result of an habitual
disease.
171. (N. 1)
The king's bench has power to bail in all cases
whatsoever, and will exercise their discretion
in all cases not capital; in capital cases where
innocence may be fairly presumed; and in If
every case where the charge is not alleged
with sufficient certainty.
170. (N. 3)
A variety of instances enumerated in which the If
court of king's bench have bailed prisoners. ib.
The king's bench will not look into the deposi-
tions before the coroner in order to bail for

murder.

ib. Cases in which the king's bench will not admit prisoners to bail. ib. IN WHAT CASES BAIL IS GRANTABLE BY THE OTHER COURTS OF WESTMINSTER-HALL. 171.

s. 81 The common pleas and exchequer at any time during term, and the Court of Chancery during term or vacation, may award a habeas corpus by the common law, &c.

nizance.

Nor

ib.

in any cases relating to frauds on the re

venue.

ib.

the party to an estreated recognizance takes his trial the next session, he may compound the forfeiture for a very small matter. ib. (N) the money be levied, the Court will order the prosecutor's costs to be paid, and the surplus to be restored. On an acquittal, the bail, on motion, shall be ib. (N) discharged, though the acquittal be not entered. ib. (N) Neither the defendant nor his bail can be called on their recognizance without notice, except on the day they were bound to appear. ¿5. (N) On non-appearance, the Court will not discharge the recognizance, even though the attorney general consents; but will respite it till next ib. (N)

term.

ib. A convict pardoned on condition of transporta-
tion, may surrender in discharge of his bail
by habeas corpus, &c.
ib. (N)

By the Habeas Corpus Act (vide supra,) any
of the said Courts in term time, and any
judge of either bench, or baron of the exche-But if the convict be actually on board the trans-
quer in vacation, may award a habeas corpus, port the Court will not award the habeas cor-
and thereupon bail the prisoner.
ib. pus.
The abovementioned clauses of the habeas corpus Whether a gaoler, &c. who bails a prisoner that
act extend not to treason or felony, plainly and is not bailable, is answerable for an escape, if
specially expressed in the warrant. ib. s. 82 he do not appear, &c.

173

192

No instance of such crimes having ever been In what manner offenders who are apprehended in a different county from that in which the offence was committed, shall be admitted to bail. 50.177

ib. s. 83

IN WHAT FORM BAIL IS TO BE TAKEN. The king's bench, in admitting to bail for felony, &c. take a several recognizance from each of the bail in a sum certain, and also in body for See CONSTABLE. CORONER. ARREST. ATTACHbody. Justices of peace may in discretion adopt the In what cases a bailiff is liable to attachment. same form.