Page images

as steal, or kill with intent to steal, any sheep or other cattle specified in the latter of the said Acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II. c. 15, and 8 Geo. III. c. 15, persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds (20).

(20) The 4 W. & M. c. 8, § 2; 6 & 7 W. III. c. 17, $ 9; 5 Ann. c. 3), $1; 14 G. II. c. 6, § 2; and 15 G. II. c. 28, § 7, so far as they related to the rewards enumerated in the text, were repealed by 58 G. III. c. 70, which authorized the court, before which any felon should be tried, to order the county treasurer to pay to the prosecutor or witnesses who should appear to have been active in the apprehension of any person, and who should give evidence against any person accused of grand or petit larceny, &c., the costs of prosecuting and appearing before the grand jury; and also to compensate them for their loss of time and trouble in such apprehension. Where a person had travelled 300 miles, and incurred an expense of 171., in tracing and endeavouring to bring two horsestealers to justice, and had succeeded in apprehending them: held, by Park, J., that under this statute he was not en titled to any compensation for the money so expended; Rer v. Austen, D. & R. N. P. C. 24. But now by statute 7 G. IV. c. 64, $ 22, courts may order payment of the expenses of all prosecutions for felony, and allow persons attending on recognizances, where no bill is preferred, a reasonable sum to reimburse their expenses. By $ 23, courts may order payment of the expenses of any prosecution for misdemeanor, in cases of assault with intent to commit felony, of any attempt to commit felony, of any riot, of any misdemeanor for receiving any stolen property knowing the same to have been stolen, of any assault upon a peace. officer in the execution of his duty, or upon any person acting in aid of such

officer, of any neglect or breach of duty as a peace-officer, of any assault committed in pursuance of any conspiracy to raise the rate of wages, of knowingly and designedly obtaining any property by false pretences, of wilful and indecent exposure of the person, of wilful and corrupt perjury, or of subornation of perjury. By § 24, the order for payment is directed to be made out by the proper officer of the court, and paid by the county treasurer. Sect. 25 points out the mode for payment of these expenses in places not contributing to the county rate, such as liberties, franchises, cities, and towns, all of which are respectively rene dered chargeable. Sect. 26 empowers the justices at quarter sessions to regulate such costs and expenses. By $ 28, courts may order compensation to parties who have been active in the apprehension of certain offenders as therein described. Sect. 29 authorizes the sheriff to pay such order, who is to be reimbursed by the treasury. By $ 30, if any man is killed in attempting to apprehend any of the offenders mentioned in $ 28, the court may order compensation to his family. The above Act repeals the 4 W. & M. c. 8; 10 & 11 W. III. c. 23, § 1, 2; 5 Ann. c. 31, $ 1; 14 G. II. c. 6; 18 G. IIL. c. 19, $ 7 & 8; and 58 G. III. c. 70. See further as to costs and restitution of goods, post, 362. Where the prosecutor of an indictment for a misdemeanor found at sessions, removes it into K.B. by certiorari, he is not entitled to costs under 7 G. IV. c. 64, $ 23; Rer v. Richards, 8 B. & C. 420; 2 M. & R. 405.

The court of King's Bench will not

issue a mandamus to the treasurer of a sizes. Witnesses were called upon town or county, commanding him to subpænas from the clerk of assize. obey an order made by a judge of assize Held, that the witnesses were entitled for the payment of the costs of the pro- to an order for their costs under that secutor and witnesses in an indictment statute ; but, doubted, whether the profor a misdemeanor, under 7 G. IV. secutor was so entitle

secutor was so entitled; Id. ibid. c. 64, § 23; Rer v. Jeyes, 5 Nev. & In the case of an indictment removed Man. 101.

into K. B. by certiorari, the court has A party was bound over to prosecute no power to order the payment of costs at the sessions, in a case within 7 G.IV. incurred before the removal; Rex v. c. 64, $ 23, but prosecuted at the as- Pasman, 3 Ney. & Man. 730.


and bail.

Of commitment When a delinquent is arrested by any of the means men

tioned in the preceding chapter, he ought regularly to be carried before a justice of the peace (1): and how he is there to be treated, I shall next shew, under the second head, of com

mitment and bail. Duty of justices The justice, before whom such prisoner is brought, is ment; when bound immediately to examine the circumstances of the crime charge ; are alleged (2); and to this end by statute 2 and 3 Ph. and M.

before commit.

they may dis.

(1) A constable, arresting a man on suspicion of felony, is bound to take him before a magistrate as soon as he reasonably can: and he has no right to detain a prisoner three days without taking him before a magistrate, in order that evidence may be collected in support of a felony with which he is charged; nor has he a right to hand. cuff him, except he has attempted to escape, or except it is necessary in order to prevent his escaping; Wright v. Court, 6 D. & R. 623. And see 2 Hawk. P. C. 117.

(2) It is the duty of the magistrate to take and complete the examination of all concerned, and to discharge or commit the individual suspected, as soon as the nature of the case will admit; Fost. 142, 3. But he is allowed a reasonable time for this purpose, before he makes his final decision. It seems to have been formerly considered, that the law intends three days to be sufficient, and that a magistrate cannot justify the detainer of a party eighteen days under examination; Scavage v. Tateham, Cro. Eliz. 829; 1 Hale, P.C. 585, 6; 2 id. 120, 1 ; 2 Hawk. P. C. c. 16, s. 12; 1 Chit. Cr. L. 72. This

point was considered in a very recent case, Davis v. Capper, 10 B. & C. 28; 5 M. & R. 53. That was an action against a magistrate for false imprisonment. The plaintiff had been brought before the defendant upon suspicion of felony, and was committed by him for further examination for fourteen days. The court, without giving judgment upon the whole case, which comprehended other questions, expressed a strong opinion that fourteen days was not a reasonable period for commitment for re-examination, and that a warrant for such commitment was bad for not setting forth full and satisfactory reasons for committing for so long a period ; and they referred to the case of Scavage v. Tateham, Cro. Eliz. 829, as justifying that opinion. A dispute having arisen concerning goods deposited by A. with B. as a security, B. obtained from C., a police magistrate, a summons requiring A.'s appearance on a day named. Cpon the appearance before C., B. made oath to a written information, that he believed the goods to have been illegally pawned or disposed of by A. C. gave to the parties a further day, at which, after evidence

reasonable bail


c. 10, he is to take in writing the examination of such pri- bound to accept soner, and the information of those who bring him: which, where it is ad Mr. Lambard observes (a), was the first warrant given for the examination of a felon in the English law (3). For, at the common law nemo tenebatur prodere seipsum : and his fault

(a) Eirenarch, b. 2, c. 7. See page 357.

being gone into, C. committed A. for Examination. Where the prosecutrix re-examination on a charge of sus, in a case of felony is bed-ridden, and picion of having unlawfully disposed of there is no probability that she will ever the goods of B. It was held that the be able to leave her house, the judge charge was not so made as to give the will admit her deposition before the ma. magistrate jurisdiction over the matter, gistrate, the same as if she were dead; under $ 8 of the Pawnbroker's Act, Rer v. Hogg, 6 C. & P. 176. A. who 39 & 40 G. III. c. 99; Tate v. Cham. was a witness for the prosecution bers, 3 Nev. & Man. 523.

against B., on a charge of arson, had And it was doubted whether, in a first been examined by the magistrate case upon that statute, properly brought before any specific charge had been before a magistrate, the party can be made against any person, and his decommitted for re-examination; Id. ibid. position taken in writing. A. was

(3) The 2 & 3 P. & M. c. 10, is next accused of the offence, and his repealed by the 7 G. IV. c. 64; by statement as a prisoner was also taken $ 2 of which it is enacted, “that two down by the magistrate. After this, justices before they shall admit to bail, B. was charged with the offence, and and one or two justices before he or A. examined as a witness, when A.'s they shall commit any person arrested statement made at that time was taken for, or on suspicion of felony, shall take down, B. being then committed. Held, the examination of such person, and the that all these statements of A., so taken information upon oath of those who down, should have been returned to know the facts and circumstances of the judge, and not merely the statement the case, and shall put the same, or so made when B. was committed; Rer v. much thereof as shall be material, into Simons, id. 540. Depositions should writing, and the two justices shall cer. not be full of technical terms, but all tify such bailment in writing; and depositions should be taken in the preevery such justice shall have authority sence of the party accused, and taken to bind by recognizance all such per down in the exact natural language, sons as know or declare any thing ma and peculiar expressions used by the terial, touching any such felony or prosecutor or witnesses. This would suspicion of felony, to appear at the prevent the deponents' being unable to court at which the trial thereof is in- recollect what they had said. Many tended to be, there to prosecute or give depositions, on the contrary, are filled evidence against the party accused: up either with Latin words or law techand such justices shall subscribe all such nicalities, which, when read over to the examinations, informations, bailments, witnesscs, it was impossible they could and recognizances, and deliver, or cause understand. The defendant, in all such the same to be delivered to the proper cases, should be permitted to crossofficer of the court, before or at the examine the witnesses, and the depo. opening of the court." As to the cases sitions should be taken down in all in which depositions taken under the particulars completely and accurately, statute are evidence, see 2 Chit. Burn, as the evidence was actually given." VOL. IV.


[ocr errors]

was not to be wrung out of himself, but rather to be disco-
vered by other means, and other men. If upon this inquiry
it manifestly appears, either that no such crime was commit-
ted, or that the suspicion entertained of the prisoner was
wholly groundless, in such cases only it is lawful totally to
discharge him. Otherwise he must either be committed to
prison, or give bail; that is, put in securities for his appear-
ance, to answer the charge against him. · This commitment
therefore being only for safe custody, wherever bail will
answer the same intention, it ought to be taken ; as in most of
the inferior crimes: but in felonies, and other offences of a
*capital nature, no bail can be a security equivalent to the
actual custody of the person. For what is there that a man
may not be induced to forfeit, to save his own life? and what
satisfaction or indemnity is it to the public, to seize the effects
of them who have bailed a murderer, if the murderer himself
be suffered to escape with impunity? Upon a principle simi-
lar to which, the Athenian magistrates, when they took a so-
lemn oath, never to keep a citizen in bonds that could give
three sureties of the same quality with himself, did it with an
exception to such as had embezzled the public money, or
been guilty of treasonable practices (6). What the nature of
bail is, hath been shewn in the preceding book (c). viz. a deli-
very or bailment, of a person to his sureties, upon their
giving, together with himself, sufficient security for his ap-
pearance: he being supposed to continue in their friendly
custody, instead of going to gaol. In civil cases we have seen
that every defendant is bailable; but in criminal matters it is
otherwise. Let us therefore inquire, in what cases the party
accused ought, or ought not, to be admitted to bail.
(b) Pott. Antiq. b. 1, c. 18.

(c) See vol. III. page 290.

Per Garrow, B., 1 Chetw. Burn, 1005, note. The prisoner's examination must not be upon oath; that of the witnesses must be ; 2 Hale, P. C. 52; 1 id. 585; 1 Phil. Ev. 106. Where magistrates first took the examination of witnesses, not on oath, in support of a conviction, and afterwards swore them to the truth of their evidence, the court of King's Bench expressed their disapprobation of the practice; Rer v. Kiddy, 4 D. & R. 734; see ante, 283, note (3).

The prisoner has no right to the assistance of an attorney, when under examination on a charge of felony; the privilege, when allowed, is entirely a matter of discretion in the magistrate; Cor v. Coleridge, 2 D. & R. 86; 1 B. & C. 37; 1 M. C. 142. See, horever, an elaborate note on this im. portant subject, Paley on Convictions, 2d ed. by Dowling, 28 et seq., where the propriety of that decision is considered; and see ante 3, note (1).

« PreviousContinue »