h

The Queen's Bench 'division,' or any judge thereof in time of vacation, may however bail for any crime whatsoever, be it treason, murder, or any other offence, according to the circumstance of the case. And herein the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law therefore provided one court, which always had a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, 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 superior courts of justice.

Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the common gaol or house of correction' by the warrant of the justice, under his hand and seal, containing the cause of his commitment: there to abide till delivered by due course of law, or until he finds bail, if the justice consents, and so certifies by indorsement on the warrant.” But this imprisonment, as has been said, is only for safe custody, and not for punishment: therefore, in this dubious interval between the commitment and trial, a prisoner ought to be used with the utmost humanity, and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purpose of confinement only;k this being the humane language of our ancient lawgivers, "custodes pænam sibi "commissorum non augeant, nec eos torqueant; sed omni sævitiâ "remotâ, pietateque adhibitâ, judicia debite exequantur." 1

Whether held to bail or committed to prison, in order to trial,m the accused person is entitled to have furnished to him, on demand, copies of the depositions" on which he is held to bail or committed; and in either case the prosecutor and witnesses for the prosecution and for the accused may be bound over in recog

nizances to appear at the trial in order to prosecute or give evidence. The original information, if any; the depositions; any recognizances so taken by the justices; the statement, if any, made by the accused; and his recognizances, if he has been released on bail, must all be delivered to the proper officer on or before the first day of the assizes or sessions to which the accused is sent for trial.'0

• 11 & 12 Vict. c. 42, s. 20; 30 & 31 Vict. c. 35.

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CHAPTER XXIII.

OF THE SEVERAL MODES OF PROSECUTION.

THE next step towards the punishment of 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.

I. 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 observation, without any bill of indictment laid before them at the suit of the crown; 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. Such inquisitions may be afterwards traversed and examined; as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide, for in such cases. the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely.

II. An indictment is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, to inquire, present, do, and

execute all those things which, on the part of the sovereign, shall then and there be commanded them. The qualifications required in grand jurors at the sessions of the peace are the same as those of the petit jurors. Grand jurors at the assizes' ought to be freeholders, but to what amount is uncertain: which seems to be casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and uncertain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three;" that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described so early as the laws of King Ethelred. "And the twelve senior "thanes go out, and the reeve with them, and swear on the relic "that is given them in hand, that they will accuse no innocent 'man, nor conceal any guilty one." In the time of King Richard I., according to Hovenden, the process of electing the grand jury ordained by that prince was as follows: four knights were to be taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district. This number was probably found too large and inconvenient; but the traces of this institution 'long remained; for till it was made unnecessary by the statute 6 Geo. IV. c. 50, s. 13,' some of the jury must have been summoned out of every hundred.

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This grand jury, 'having chosen their foreman, are next' instructed in the articles of their inquiry by a charge from the judge who presides upon the bench. They then withdraw to sit and receive indictments, which are preferred to them in the name of the queen, but at the suit of any private prosecutor; and they are only to hear evidence on behalf of the prosecution; for the finding of an indictment is only in the nature of an inquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to inquire upon their oaths whether there be suf ficient cause to call upon the party to answer it. A grand jury, however, ought to be thoroughly persuaded of the truth of an b Rex v. March, 6 A. & E. 236.

a 6 Geo. IV. c. 50.

1 Thorpe, p. 295.

indictment so far as their evidence goes; and not to rest satisfied merely with remote probabilities: a doctrine that might be applied to very oppressive purposes. And they cannot receive any indictment for perjury or subornation of perjury, for conspiracy or obtaining money or property by false pretences, for keeping a gambling or disorderly house, or for an indecent assault, unless the person preferring the charge shall have been previously bound over to prosecute by a magistrate, which, however, the magistrate has no discretion but to do, or the prosecution itself is directed by one of the judges of the superior courts of law at Westminster, or the attorney or solicitor general, or sanctioned by the court before which it is preferred.'

The grand jury are sworn to inquire, only for the body of the county, pro corpore comitatus: and therefore they cannot regularly inquire of a fact done out of that county for which they are sworn, unless particularly enabled by act of parliament. And to so high a nicety was this matter anciently carried, that where a man was wounded in one county, and died in another, the offender was at common law indictable in neither, because no complete act of felony was done in any one of them. But by statute 2 & 3 Edw. VI. c. 24, he was made indictable in the county where the party died; and by the statute 7 Geo. IV. c. 64, s. 12, any offence committed on or within five hundred yards of the boundary of two or more counties, or begun in one and completed in another, may be inquired of, tried, and punished in any of the said counties.' And by the statute 24 & 25 Vict. c. 100, s. 10, re-enacting and extending' 2 Geo. II. c. 21, if the stroke or poisoning be in England, and the death upon the sea or out of England, or vice versâ, the offenders and their accessories may be indicted in the county where either the death, poisoning, or stroke shall happen. And so in some other cases: as particularly, where treason is committed out of the realm, it may be inquired of in any county within the realm, as the crown shall direct, in pursuance of statutes 26 Hen. VIII. c. 13; 35 Hen. VIII. c. 2; and 5 & 6 Edw. VI. c. 11. Felonies committed out of the realm, as burning or destroying the royal ships, magazines, or stores, may by statute 12 Geo. III. c. 24, be inquired of and tried in any county of England, or in the place where the offence is committed. Crimes

d 22 & 23 Vict. c. 17, entitled, 'An Act to prevent vexatious indictments for

certain misdemeanors.' Amended by 30 & 31 Vict. c. 35.