CHAPTER XXII.

OF COMMITMENT AND BAIL.

WHEN a delinquent is arrested by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a justice of the peace: and how he is there to be treated, I shall next show, under the second head, of commitment and bail.

The justice before whom such prisoner is brought, is bound immediately to examine the circumstances of the crime alleged : and to this end, by statute 2 & 3 Ph. & M. c. 10, he was directed to take in writing the examination of such prisoner, and the information of those who bring him: which, Mr. Lambard observes,a was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men.

'The statute of Philip and Mary was repealed by the statute 7 Geo. IV. c. 64, and other provisions introduced; but the course of proceeding before the justices is now regulated by the statutes mentioned in the preceding chapter; and although these proceedings are commonly spoken of as the examination of the accused, in point of fact there is no examination at all in the sense above referred to.'

'Whether, then, the person charged with any offence appears voluntarily upon summons, or has been apprehended with or without warrant, or is already in custody for the same or any other offence, the justice, before committing him to prison for trial, or admitting him to bail, is in his presence to take the statements on oath, or affirmation, of those who know the facts of the case, for which purpose the attendance of witnesses may, as we have already seen, be compelled. The accused person has a right to put questions to the witnesses, and is in general allowed the assistance of an attorney or counsel; but this is in the discretion of the magis

a Eirenarch. b. 2, c. 7.

b 11 & 12 Vict. c. 42; 30 & 31 Vict. c. 35.

trate, for the place where the examination takes place is not an open court; and the public may be excluded, if it appears that such a course will conduce to the ends of justice.

The statements of the witnesses being put into writing, are next to be read over to and signed by them, and also by the magistrate, and are then termed the depositions.

'If, from the absence of witnesses, or other reasonable cause, it becomes necessary or advisable to adjourn the examination, this may be done, the accused person, if in custody, being remanded to prison by warrant of the magistrate, for such time as he thinks reasonable, not exceeding eight clear days; though, if the remand be for a period not exceeding three days, the detention of the prisoner may be verbally ordered for that period. The accused person may, however, be allowed to go at large, upon his entering into a recognizance, with or without sureties, at the discretion of the magistrate, conditioned for his appearance at the time to which the examination shall have been adjourned.'

'After the examination of the witnesses for the prosecution has been completed, the depositions are to be read over to the accused, and he is then to be asked, whether, having heard the evidence, he wishes to say anything in answer to the charge, being warned at the same time that he is not obliged to do so, but that whatever he does say will be taken down in writing, and may be given in evidence against him upon the trial. If it appear that some inducement or threat has previously been held out to him, the magistrate should further give him clearly to understand, that he has nothing to hope from any promise of favour held out, and nothing to fear from any threat made to him, as an inducement to make any admission or confession of his guilt; but that whatever he shall then say may be given in evidence, notwithstanding any such promise or threat.'

C

'Whatever he then says in answer, is to be taken down in writing, and after being read over to him, to be signed by the magistrate, and transmitted with the depositions to the court by which he is to be tried.'

'The magistrate is also to demand of the accused whether he desires to call any witnesses, and if he desires to do so, the magistrate must take their statements in writing as to the facts and

Reg. v. Sansome, 1 Den. C. C. 545; Reg. v. Bond, 3 Car. & Kir. 337.

circumstances of the case, or as to anything tending to prove the innocence of the accused.' a

If, upon inquiry in the manner above pointed out, the justice or justices then present are of opinion that the evidence is not sufficient to put the accused party upon his trial, he may forthwith, if in custody, be discharged.' Otherwise or if the evidence given raise a strong or probable presumption of his guilt,' 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 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 similar to which the Athenian magistrates, when they took a solemn 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. What the nature of bail is, has been shown in the preceding volume of these commentaries, viz., a delivery, or bailment, of a person to his sureties, upon their giving, together with himself, sufficient security for his appearance: 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.

And, first, 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. II. c. 2. And, lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by

d 30 & 31 Vict. c. 35.

Pott. Antiq. b. 1, c. 18.

f 2 Hawk. P. C. 90. This duty being

judicial, no action can be sustained against him except on proof of malice; Linford v. Fitzroy, 13 Q. B. 240.

statute 1 Will. & Mary, st. 2, c. 1, that excessive bail ought 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, it is said,' to be fined, if the criminal does not appear. Bail may be taken either in court, or in some particular cases by the sheriff, coroner, or other magistrate; but most usually by the justices of the peace.

Formerly, in all offences either against the common law or act of parliament, that were below felony, the offender ought to have been admitted to bail, unless it were prohibited by some special act of parliament. Before, then, stating what offences are bailable under the existing law,' let us see who might not be admitted to bail, or what offences were not bailable as the law formerly stood.'

6

And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature: for then the public is entitled to demand nothing less than the highest security that can be given, viz., the body of the accused, in order to insure that justice shall be done upon him, if guilty. Such persons, therefore, have no other sureties but the four walls of the prison.

By the ancient common law, before and since the Conquest, all felonies were bailable, till murder was excepted by statute: so that persons might be admitted to bail before conviction almost in every case. The statute Westm. 1, 3 Edw. I. c. 15, took away the power of bailing in treason, and in divers instances of felony. And the statutes 23 Hen. VI. c. 9, and 1 & 2 Ph. & M. c. 13, gave farther regulations in this matter; and upon the whole we may collect, that 'as the law thus stood' no justice of the peace could bail, 1. Upon an accusation of treason: nor, 2. Of murder: nor, 3. In case of manslaughter, if the prisoner were clearly the slayer, and not barely suspected to be so; or if any indictment were found against him: nor, 4. Such as, having been committed for felony, broke prison; because it not only carried a presumption of guilt, but was also superadding one felony to another: 5. Persons

outlawed: 6. Such as had abjured the realm: 7. Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused: 8. Persons taken with the mainour, or in the fact of felony 9. Persons charged with arson: 10. Excommunicated persons, taken by writ de excommunicato capiendo: all which were clearly not admissible to bail by the justices. Others were of a dubious nature, as, 11. Thieves openly defamed and known: 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and, 13. Accessories to felony, that laboured under the same want of reputation. These seem to have been in the discretion of the justices, whether bailable or not. The last class comprised such as must have been bailed upon offering sufficient surety; as, 14. Persons of good fame, charged with a bare suspicion of manslaughter, or other inferior homicide: 15. Such persons, being charged with petit larceny, or any felony not before specified: or, 16. With being accessory to any felony.

'Persons accused of felonies were, however, made bailable by the statute 7 Geo. IV. c. 64, s. 1, when the evidence before the justices did not raise a strong presumption of guilt; and this power to take bail was extended to all cases of felony, whatever the nature of the proof might be, by the statute 5 & 6 Will. IV. c. 33, s. 3. But both acts of parliament have been so far repealed by the statute 11 & 12 Vict. c. 42, s. 23, that any person, who appears or is brought before a justice of the peace, charged with any felony, treason excepted, or with any assault with intent to commit felony, or with any attempt to commit felony,—or with obtaining or attempting to obtain property by false pretences, or with receiving property stolen or obtained by false pretences,-or with perjury or subornation of perjury, or with concealing the birth of a child by secret burying or otherwise,-—or with wilful and indecent exposure of the person, or with riot, or with assault, in pursuance of a conspiracy to raise wages,—or upon a peace-officer in the execution of his duty, or upon any person acting in his aid,—or with neglect or breach of duty as a peaceofficer,—or with any misdemeanor for the prosecution of which the costs may be allowed out of the county rate, may in the discretion of the justices be admitted to bail.'

'For all other indictable misdemeanors the accused is entitled as a matter of right to be bailed; but no justice of the peace can admit any person to bail for treason, unless by order of one of the secretaries of state.'