of this law ought not to be dispensed with. Jacob's Case, Leach's Cr. L. 286. And this has been repeatedly laid down bythe judges; and in Fearshire's case, which was an indictment for a misdemeanor ; Lord Mansfield said, That it was the indispensible duty of every justice of peace, to take all charges, of whatsoever nature, kind, or complexion they may be, in writing. Leach's Cr. L. 446. And the justices, shall have power to bind by recognizance, all such as do declare any thing material, to prove the offence, to appear at the next general gaol delivery, to be holden within the county, where the trial shall be; then and there to give evidence against the party, and shall certify such recognizance, in like manner; and if they offend in any thing herein, they shall be fined by the justices of gaol delivery. 1 & 2 Phil. & Mar. c. 13. s. 5. The justice may cause the witnesses to be brought before him by his warrant (IV) for that purpose. Dalton, c. 164. And if the prosecutor or witnesses refuse to be bound over, the justice, for such refusal, may cominit them to gaol. 1 Hale's Hist. 586. But, having taken such examination, information, and recognizance, it hath been generally thought adviseable, for the justices to proceed no farther in relation to the felony, though within their commission, unless it be petit larceny only. 2 Hawk. c. 8. s. 33. And by 2 & 3 Phil. & Mar. c. 10, In like manner, where the person is not bailed, but committed to ward, the justice or To the constable of Whereas oath hath been made before me J P, esquire, one of his majesty's justices of the peace in and for the said county, by PR of- that he the said P R was lately robbed at and that he hath good cause to believe that W W of is a material witness to prove by whom the said robbery was committed: These are therefore to require you to cause the said W W forthwith to come before me, to give such information and evidence as he knoweth concerning the said offence, that such further proceedings may be had therein as to the law doth appertain. Given under my hand and seal in the said county, the at day of justices who commit him, shall, before such commitment, take the like examination and information, and shall put the same in writing, within two days after the said examination, and shall in like manner bind over the witnesses, and certify the whole as above. s. 2. And in order to take such examination, if, by some reasonRemanding for able occasion, the justice cannot, at the return of the warrant, further exami take the examination, he may by word of mouth command the nation. constable, or any other person, to detain in custody the prisoner till the next day, and then to bring him before the justice for further examination; and this detainer is justifiable by the constable or any other person, without shewing the particular cause for which he was to be examined, or any warrant in writing. 1 Hale's Hist. 585. 2 Hale's Hist. 123. But, the time of detainer must be reasonable, therefore a justice cannot justify the detainer of such person sixteen or twenty days, in order to such further examination. Hist. 586. 1 Hale's And, in the case of Scavage and Tateham, it was adjudged, Discharging that the time of detainer must not exceed three days. Cro. prisoners. Eliz. 829. And, if a prisoner be brought before a justice of peace, expressly charged with felony, by the oath of the party, the jus tice cannot discharge him, but must bail or commit him. 2 Hale's Hist. 121. But if he be charged with suspicion only of felony, yet if there be no felony at all proved to be committed, or if the fact charged as a felony, be in truth no felony in point of law, the justice of peace may discharge him; as if a man be charged with felony, for stealing a parcel of the freehold, or for carrying away, what was delivered to him, and such like, for which, though there may be cause to proceed civilly against him, or to bind him over as for a trespass, the justice may discharge him as to felony, because it is not felony. 2 Hale's Hist. 121. Yet if a man be killed by another, though it be by misadventure or se defendendo (which is not properly felony), or in making an assault upon a minister of justice, in the execution of his office (which is not at all felony), yet the justice ought not to discharge him, for he must undergo his trial for it; and there fore he must be committed, or at least bailed. 2 Hale's Hist. 121. And the like is to be done, where any felony hath been committed, and one is brought before a justice and charged, under circumstances, upon suspicion thereof, though it shall appear to the justice that the prisoner is not guilty thereof; for it is not fit, that a man once arrested and charged with felony (or suspicion thereof) should be delivered, upon any man's discretion, without further trial. Dalton, c. 164. Cromp. 34. Lamb. 229. END OF THE FIRST VOLUME. 1 |