2 Hal. P. C. 110. Salk. 176. 85. 1 Hal. P. C. 580. 2 Hawk. P. C. 82. 1 W. Bl. 555. should be granted; as also to prove the cause and probability of suspecting the party against whom the warrant is prayed. This warrant ought to be under the hand and seal of the justice, should set forth the time and place of making, and the cause for which it is made, and should be directed to the constable or other peace officer (or it may be to any private person by name), requiring him to bring the party either generally before any justice of the peace for the county, or only before the justice who granted it; the warrant in the latter 2 Hawk. P. C. case being called a special warrant. A general warrant to apprehend all persons suspected, without naming or particu larly describing any persons in special, is illegal and void for its uncertainty; for it is the duty of the magistrate, and ought not to be left to the officer to judge of the ground of suspicion. And a warrant to apprehend all persons, guilty of a crime therein specified, is no legal warrant; for the point upon which its authority rests, is a fact to be decided on a subsequent trial; namely, whether the person apprehended thereon be really guilty or not. But a warrant properly penned, even though the magistrate who issues it should exceed his jurisdiction, will, by 24 Geo. 2, c. 44, indemnify the officer who executes the same ministerially. And when a warrant is received by the officer, he is bound to execute it, so far as the jurisdiction of the magistrate and himself extends. A warrant from the chief, or other justice of the queen's bench, extends all over the kingdom; but the warrant of a justice of the peace in one county, that is, Yorkshire, must be backed, that is, signed by the justice of the peace in another, as Middlesex, before it can be executed there, pursuant to 23 Geo. 2, c. 26. By officers without war rant, as jus. coroners, and watchmen. 1 Hal. P. C. 86. Arrests by officers, without warrant, may be executed by a justice of the peace; who may himself apprehend, or cause to tices, sheriffs, be apprehended, by word only, any person committing a felony or breach of the peace in his presence. The sheriff, and the coroner may apprehend any felon within the county without warrant. The constable, may without warrant arrest any one for a breach of the peace, committed in his view, and carry him before a justice of the peace. And in case of felony actually committed, or a dangerous wounding whereby felony is likely to ensue, he may upon probable suspicion arrest the felon: and for that purpose is authorized, as upon a justice's warrant, to break open doors, and even to kill the felon, if he cannot otherwise be taken; and if he or his assistants be killed in attempting such arrests, it is murder in all concerned. Watchmen, either those appointed by 13 Edw. 1, c. 24, or such 2 Hal. P. C. 88.96. as are mere assistants to the constable, may, virtute officii, arrest all offenders, and particularly night-walkers, and commit them 2 Hal. P. C. to custody until morning. Any private person, and a fortiori a peace officer, that is present when any felony is committed, is bound by law to arrest the felon; on pain of fine and imprisonment, if he escapes through the negligence of the standers by. And they may justify breaking open doors in following such felon; and if they kill him, provided he cannot otherwise be taken, it is justifiable: though if they are killed in endeavouring to make such arrest it is murder. Upon probable suspicion also, a person may arrest the felon or other person so suspected. But he cannot justify breaking open doors to do it: and if either party kill the other in the attempt, it is manslaughter, and no more. Hue and cry may be raised either by precept of a justice of the peace, or by a peace officer, or even a private man, who knows of a felony. Anciently, the parish was liable to be amerced, if after a felony committed therein the felon escaped; an institution which prevailed with the Anglo Saxons (a), and in many of the eastern countries, and was partly introduced even into the Mogul empire, about the beginning of the seventeenth century; and hence arose the liability of the hundred to answer for all robberies therein committed, but which is now abolished, except in cases of damage done by rioters acting feloniously (b). 98. By a private person without Hawk. P. C. a warrant. 2 74. 2 Hal. P. C.77. 30 Geo. 2, c. 24. 2 Hal. P. C. 100. 104. CHAPTER XXII. OF COMMITMENT AND BAIL. WHEN a delinquent is arrested by any of the means before mentioned, he ought to be taken before a justice of the peace; who is bound immediately to examine the circumstances of the crime alleged. And to this end he is to take in writing the examination of such prisoner, and the information of those who bring him. If upon this inquiry it manifestly appears either that no such crime was committed, or that the suspicion entertained of the (a) See ante, note (i), p. 15. Of commitment and bail. Duty of justices before commit ment; when they may dis charge; are bound to ac cept bail where admissible. (6) The black act, 9 Geo. 1, c. 22, was repealed by 7 & 8 Geo. 4, c. 27, and see as to remedies against the hundred, 7 & 8 Geo. 4, c. 31; see ante, note (d), p. 561. 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 appearance, 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 of a capital nature, no bail can be a security equal to the actual custody of the person (a). Upon a similar principle, the (a) By 7 Geo. 4, c. 64, after stating that it is expedient to define under what circumstances persons may be admitted to bail in cases of felony, and to make better provision for taking examinations, bailments, and recognizances, and returning the same to the proper tribunals. And that the technical strictness of criminal proceedings might, in in many instances, be relaxed, so as to ensure the punishment of the guilty without depriving the accused of any just means of defence. It is enacted, that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence, as, if not explained or contradicted, shall in the opinion of the justice or justices raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner therein provided; but if there shall be only one justice present, and the whole evidence given before him, shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged, to be detained in custody until he or she shall be taken before two justices at the least; and where any person so taken, or any person taken in the first instance before two justices of the peace, shall be charged with felony, or on suspicion of felony, and the evidence given in the support of the charge, shall, in their opinion not be such as to raise a strong presumption of the guilt of the person charged, and to require his or her committal, or such evidence shall be adduced on behalf of the person charged, as shall in their opinion weaken the presumption of his or her guilt, but there shall notwithstanding appear to them in either of such cases to be sufficient ground for judicial inquiry into his or her guilt, the person charged shall be admitted to bail by such two justices in the manner thereinafter mentioned. But nothing in the act shall be construed to require any such justice or justices to hear evidence on behalf of any person so charged, unless it shall appear to him or them to be meet and conducive to the ends of justice. By s. 2, before any person charged with felony, &r., shall be bailed or committed, the justices shall take down in writing the examination, and bind witnesses to appear at the trial; and the examinations are to be delivered to the court. By s. 3, every justice before whom any person shall be taken on a charge of misdemeanor or suspicion thereof, shall take the examination of the person charged, and the information upon oath of those who shall know the facts and circumstances of the case, and shall put the same, or as much thereof as shall be material into writing, before he shall commit to prison or require bail from the person so charged; and in every case of bailment shall certify the bailment in writing; and shall have authority to bind all persons by recognizance to appear to prosecute or give evidence against the party accused, in like manner, as in cases of felony; and shall subscribe all examinations, informations, bailments and recognizances, and deliver, or cause the same to be delivered to the proper officer of the court in which the trial is to be, before or at the opening of the court in like manner, as in cases of felony. By s. 4, upon inquisitions whereby any person shall be indicted for manslaughter or murder, or as an accessary to murder, the coroner is to take the evidence in writing, and may b. 1, c. 18. Athenian magistrates, when they took a solemn oath, never to Pott. Antiq. 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. To refuse or delay to bail any person bailable, is an offence against the liberty of the subject, in any magistrate by the common law, as well as by the Habeas Corpus Act, 31 Car. 2, c. 2; and by 1 W. & M. st. 2, c. 1, excessive bail is not to be required; though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case, to determine. And on the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal 2 Hawk. P. C. does not Bail appear. be taken either in court or, may in some particular cases, by the sheriff, coroner, or other magistrate; but most usually by the justices of the peace. By the ancient 2 Inst. 189. common law, before and since the conquest, all felonies were Glanv. 1. 14. bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case. Upon the whole we may collect that no justice of the peace can bail, upon any accusation of treason, or murder; 129. but that in all other cases bail are admissible (b). 90. c. 1. 2 Inst. 186. 2 Hal. P. C. 2 Inst. 189. Latch. 12. The court of queen's bench or any judge thereof in time of vacation may bail for any crime whatsoever, be it treason, murder (c) or any other offence according to the circumstances 298. Vaugh. 157. bind by recognizance all persons knowing anything of the offence, to appear at the next court of oyer and terminer and general gaol delivery, to prosecute or give evidence, and the coroner must certify and subscribe the evidence, recognizance, and inquisition, and deliver the same to the proper officer of the court, in which the trial is to be before or at the opening of the court. By 5 & 6 Wm. 4, c. 33, s. 3, after stating that in many cases the taking of bail for the appearance of persons charged with felony, may be safely admitted without endangering the appearance of such persons to take their trial in due course of law, and it is therefore expedient in such cases to amend and extend the provisions of 7 Geo. 4, c. 64, it is enacted, that it shall be lawful for any two justices of the peace, if they shall think fit, of whom one or other shall have signed the warrant of commitment, to admit any person or persons charged with felony, or against whom any warrant for commitment for felony is signed, to bail in the manner and according to the provisions of 7 Geo. 4, c. 64, in such sum or sums of money, and with such surety or sureties as they shall think fit, and notwithstanding such person or persons shall have confessed the matter laid to his or their charge, or notwithstanding such justices shall not think that such charge is groundless, or shall think that the circumstances are such as to raise a presumption of guilt. (b) See now the provisions on this subject, 7 Geo. 4, c. 64, and 5 & 6 Wm. 4, c. 33, ante, note (a) to this chapter. (c) In omnibus placitus de felonia solet accusatus per plegios dimitti, præterquam, in placito de homicidio. Sciendum tamen quod, in hoc placito, non solet accusatus per 495, 497. Skin. 683. 1 Comyn's Dig. of the case, except only such persons as are committed by either house of parliament, so long as the session lasts; or such as are committed for contempts by any of the queen's superior courts of justice. Salk. 105. 2 Hal. P. C. 122. If the offence be not bailable, or the party cannot find bail, he is to be committed to the county goal by the mittimus of the justice, or warrant under his hand and seal, containing the cause of his commitment, there to abide till delivered by due course of law. But this imprisonment is only for safe custody, and not for punishment. CHAPTER XXIII Of the several modes of prosecution. Presentment, by grand jury; by coroner's jury; and by the sheriff's tourn. Lamb. Eire Inst. 739. OF THE SEVERAL MODES OF PROSECUTION. THE next step towards the punishment of the offenders is their prosecution, or the manner of their formal accusation; and this is either upon a previous finding of the fact by an inquest or grand jury, or without such previous finding. The former way is either by presentment, or indictment. A presentment, generally taken, is a very comprehensive term; including not only presentments properly so called, but also inquisitions of office, and indictments by a grand jury. A presentment, properly speaking, is the notice taken by a grand jury of any offence from their own knowledge or obnarch. 1. 4, c. 5. servation, without any bill of indictment laid before them, at the suit of the queen; as the presentment of a nuisance, a libel, and the like; upon which the officer of the court must afterwards frame an indictment before the party presented can be put to answer it. An inquisition of office is the act of a jury summoned by the proper officer, to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied, and therefore the inquest or jury ought to hear all that can be alleged on both sides. Of this nature are all inquisitions of felo de se; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offences in the sheriff's tourn, or court leet, whereupon the presiding officer may set a fine. Other inquisitions may be after plegios dimitti, nisi ex regiæ potestatis beneficio; Glanv. l. 14, c. 1 and 3; Orig. note to Bl. Com. p. 299. In all pleas of felony the accused is usually discharged upon bail, except in the plea of murder. But it should be known that in this plea it is not usual to dismiss the accused on bail, unless by virtue of the power of the crown. |