* understood that the prosecution is to be by indictment, and not information. And for all crimes within the cognizance of the Sessions of the Peace, the justices may grant their warrant against offenders, and either commit them, or bind them over to appear, as the case may require.† The latter is done by recognizance after the manner following, or in similar substance. County of.. (to wit.) ...... Be it remembered that on the ... { day of Recognizance day of ................. in the year of our Lord to prosecute, A. B. of... in the county of........ labourer, &c. (or as the proper addition is) came personally before me W. D. Esquire, one of his Majesty's justices of the peace, in and for the county of........ aforesaid, and acknowledged himself to be indebted to our said Sovereign Lord the King in the sum of ........ of good and lawful money of Great Britain, to be levied of his goods and chattels, lands and tenements, by way of recognizance to his said Majesty's use, upon condition that if the above bounden A. B. shall personally appear at the next general (or general quarter) session of the peace to be holden in and for the said county at.... .... and then and there prefer a bill of indictment against C. D. late of........ butcher, (or as the proper addition is) and shall then and there give evidence concerning, (or in the case of a witness only, shall give evidence concerning) the same to the Jurors, who shall enquire thereof on the part of our said Lord the King, and not depart without leave of the court, then this recognizance to be void, otherwise to remain in full force. Taken and acknowledged before me the day and year aforesaid. Be it remembered that on the Recognizance {day of... in the year of our Lord Bronzance A. B. late of ... in the county of County of... * Dalt. c. 191.-4 Term R. 115. + 1 Hale, p. 6. 108. 110.-4 Black. Com. 290.-To the extent in which it is here laid down, this doctrine had been doubted, and the power of Magistrates out of Session to issue warrants against, and to demand bail from, any offenders, except for treasons, felonies, breaches of the peace, or misbehaviour directly tending thereto, questioned.-The doubt, however, seems to have been set at rest in 1817, and the power of justices out of Sessions as here recognized, established.—See 3 Dick, Pract. Expos. titles, BAIL, & LIBEL. pear and answer to indictment. Recognizance, how to be attested. In matter of record. To be certified to the next session. and severally and respectively acknowledged themselves to be indebted to our Sovereign Lord in the manner and form following, that is to say, the said A. B. in the sum of twenty pounds of good and lawful money of Great Britain, and the said C. D. the elder, and C. D. the younger, in the respective sums of ten pounds each, of like good and lawful monies, to be respectively levied of their goods and chattels, lands and tenements, to the use of our said Sovereign Lord the King, his heirs and successors, if the said A. B. shall make default in the performance of the condition under-written. Now the condition of this recognizance is such that if the above bound A. B. do and shall personally appear before the Justices of our said Sovereign Lord the King, assigned to keep the peace in and for the said county of . and also to hear and determine divers felonies, trespasses, aud other misdemeanors within the said county committed, at the next General (or General Quarter) Session of the peace to be holden in and for the said county of ........ at ... in the same, then and there to answer our said Sovereign Lord the King for and concerning the felonious taking and stealing a certain (mentioning the article) the property of X. Y. wherewith the said A. B. stands charged on suspicion before (the Justice who committed the offender), and do and receive what by the court then and there shall be enjoined him, and shall not depart without the court without leave or license; then the above written recognizance shall be void and of none effect, otherwise to remain in full force. Taken and acknowledged as above written before us W. D. To which recognizances the justices are to subscribe their names respectively; but the persons bound need not set their names to it, for it is witnessed only by the record, and not by the party's seal.* And a recognizance taken by a justice of peace is a matter of record, so soon as it is taken and acknowledged, although it be not made up, but only entered in his books.† "And every justice that shall take any recognizance for the keeping of the peace, shall certify the same to the next session, that the party bound may be called; and if he make default, the same default shall be recorded, and the recognizance, with the record of the default, be sent and certified into the Chancery, King's Bench, or Exchequer."‡ * 2 Black. Com. 341. + Dalt. 168. 3 Hen. 7. c. 1. The condition which is expressed in the recognizance (to prefer an indictment, or to give evidence on an indictment, or to plead to an indictment), made applicable to the persons respectively who are to be bound, being the principal variation in the form as applied to the different parties, viz. the prosecutor, the witnesses, and the offender, the foregoing precedents mutatis mutandis, are those by which they are brought before the court, remarking by the way only that the recognizance of the prosecutor is usually (though not necessarily) without pledges, and that the recognizance for bail in manslaughter, felony, and suspicion thereof, must be taken before two justices except in Middlesex, London, and other great cities and towns corporate. * fenders to be brought by fore the session previous It is not necessary, however, and in some offences would Not all ofbe positively irregular (as ex. gr. in perjury, although under the stat.) † to bring the party charged before the warrant besession under a Justice's warrant, previous to a bill of indictment having been found. The manner of proceeding to indictment. in this respect must necessarily depend much on discretion, and the nature of the offence. For all treasons, homicides, and other felonies, actual breaches of the peace, and acts having a direct tendency thereto, it is usual, as it is right and reasonable, to secure the person of the offender for trial by means of the warrant of a justice; so perhaps in instances of great public enormity, and of great personal injury, even though they do not come strictly within the above description; and also where the offender has no fixed or permanent residence, and there may be a strong probable reason for presuming that he designs to elude justice by absenting himself; under all these and similar circumstances, an immediate detention of the offender's person may be no less suggested by discretion, than sanctioned by practice. But in cases of conspiracy, libel, extortion, and other misde * 1 & 2 Ph. & Mar. c. 13. + It is laid down, indeed, by Dalton, that a Justice may bind over a party accused of perjury to the sessions for trial, but such a proceeding is contrary to all practice.-Dalt. c. 70. + See Note, ante, p. 73. 1 Witnesses. Warrant for. meanors, wherein there is no actual breach of the public peace; or wherein, if there be a tendency to such breach, it is only indirect or remote; the usual and the more discreet practice is to prefer an indictment before a grand jury, and if found, to make that the foundation of all ulterior proceedings. * Having considered then how prosecutors and offenders are brought before the court, it only remains to notice the processes by which witnesses are compelled to attend. When any offender is brought before a justice by warrant, or otherwise, for felony, or breach of the peace, beside the informant, and any witnesses who may happen to be voluntarily present, (and whom it has already been seen it is the duty of the examining justice to bind by recognizance to appear at the session) there may be others known to him, whose testimony may be necessary, or at least useful, on the occasion.† These the justice may issue his warrant to bring before him, to be examined touching the matter in question, in the following or the like form: ‡ but it is more common, in the first instance, especially if they be respectable persons, to make it only a summons, which may be done either by a notice addressed to the person whose presence is desired, or by substituting the word summon for that of cause, in the precedent here presented. § County of.... To the Constable of ... Whereas oath hath been made before me, W. D. Esquire, one of his Majesty's Justices of the Peace in and for the said county, * In which case a process, denominated a Bench-warrant issues, for which, see the next chapter. + See Practical Expos. title EXAMINATION. Dalt, c. 164. § If the offence be neither a felony, nor a breach of the peace, there may be considerable doubt respecting the power of a justice to grant a warrant for the production of testimony. The 2 & 3 P. & M. extends only to examination for manslaughter and felony; and no direct authority seems to be given by any subsequent statute, and necessity cannot be pleaded for extending the power beyond the preservation of the public peace. For all other offences the subpoena of the clerk of the peace, previous to trial, appears amply sufficient to provide against failure of justice. ...... by P. Q. of...... that the said P. Q. was lately robbed (or other If his evidence be found by the justice on examination Contumacy. to be material, he must then be bound by recognizance, like the rest, to attend at the session of the peace, and give it to the court and juries there, in like form, varied only according to the circumstances of the offence; and if he refuse to enter into such recognizance, the justice may commit him to gaol; wherein, if he obstinately continue till the session, he may be brought up to the court by writ of habeas corpus ad testificandum. † Lord Preston, being committed by the court of quarter session for contempt in refusing to be sworn to give evidence to the grand jury, on an indictment of high treason, he was brought by habeas corpus into the Court of King's Bench; and Holt, Chief Justice, said, it was a great contempt, and that had he been there, he would have fined him, and committed him till he paid the fine; but being otherwise, he was bailed. ‡ The process to bring before the grand jury or court such Subpoena. witnesses as have not been bound by recognizance to appear, whether on the part of the prosecution, or for the defendant, is by subpoena; which, whatever might have been the law in former times, § is now to be obtained in all cases whatsoever; for the assizes, from the crown office; for the sessions, from the clerk of the peace, or from the crown office. And the service of a subpoena issued out 1 Hale's H. 586.-Bennet & Uxor v. Watson, 3 M. & S. R. 1. +31 Car. 2. c. 2.-44 Geo. 3. c. 102. § 2 Hawk. 46. Salk. 278. 2 Wm. 3. c. 3.-1 An. c. 9; 4 Black. Com. 359.-Hawk. b. 2. c. 46. |