sessions of the peace or gaol delivery, as the case may require; and in case of his refusal, may commit him to gaol (a). And where goods above the value of £20 have been obtained by false pretences, the recognizances should be in double the value of the goods (b). A recognizance is an obligation of record, entered into before a magistrate duly authorized for that purpose, with condition to appear at the sessions or assizes (c). The party need not sign this recognizance, but the record thereof is afterwards made out on parchment, and subscribed by the justice before whom it is taken (d). But it is a matter of record as soon as taken and acknowledged, although not made up by the justice, and only entered in his book (e). Where the offence is supposed to have been committed within the county of a city or town corporate, the prosecutor has the option of prosecuting within that jurisdiction, or at the sessions of oyer and terminer for the county at large; but if he prefers the latter, then he must enter into a recognizance in £40 to pay the extra costs thereby occasioned, if the court should think proper (ƒ). In case of prosecutions for grand and petty larceny or other felony, the expences of the prosecutor, and, if poor, a remuneration for his loss of time, are provided for by the 25 Geo. 2. c. 36. s. 11. 18 Geo. 3. c. 19. s. 7. S8 Geo. 3. c. 70. s. 4. (g), the provisions of which acts will hereafter be more fully considered (h). OF THE RECOGNIZANCES TO PROSECUTE. of the recogni- When it appears from the examinations, that a person brought before the magistrate as a witness, may probably be able to give material evidence against the prisoner, he has, in the cases of manslaughter and felony, by the express provisions of the statutes 1 & 2 Ph. & M. c. 13. s. 5, and 2 & 3 Ph. & M. c. 10. s. 2, authority to bind such witness by recognizance or obligation [91] (a) 1 Hale, 586. 2 Hale, 52. 121, 3M. & S. 1. See form of recognizance, Burn, J. Examination and Recognizance. Williams, J. Recognizance, post. If more than one are to be bound, the recognizances should not be taken separately. Gibs. Duties of Man, vol. i. 416. (b) 30 Geo. 2. c. 24. s, 2, (c) Dick. Just. Recognizance. Toone, 368. (d) Dalt. Just. c. 176. Dick. Sess. 87. Dick. J. Recogni zance. (e) Dalt. J. c. 168. Burn, J. Recognizance. (f) 38 Geo. 3. c. 52. s. 12. (g) Cro. C. C. 12. to appear at the next general gaol delivery, to give evidence against the party indicted; and infants and married women, who cannot legally bind themselves, must procure others to be bound for them (a). And if the witness refuse to give such recognizance, the magistrate has power to commit him, this being virtually included in his commission, and by necessary consequence upon the above-mentioned statutes (b). This doctrine was confirmed in a late case, where a married woman refused to enter into a recognizance for her appearance at sessions, to give evidence against a felon, and the magistrate committed her, and the Court of King's Bench held that the commitment was legal (c). But a justice of the peace is not authorized by law to commit a witness, willing to enter into a recognizance for his appearance, to give evidence against an offender, merely because such witness is unable to find a surety to join him in such recognizance, nor ought the justice to require such surety: the party's own recognizance (at the peril of commitment) is all that ought to be required (d). The expence and loss iucurred by the witnesses, if poor, in afterwards attending to give evidence, is to be repaid them, according to the regulations contained in the statutes 27 Geo. 2. c. 3. s. 3. 18 Geo. S. c. 19. s. 8. and 58 Geo. 3. c. 70. (e), which will be fully considered hereafter. The statutes of Philip and Mary before-mentioned, enact that the justices who bail or commit for manslaughter or felony, shall certify the examination and recognizances at the next general gaol delivery to be holden within the limits of their commission. But notwithstanding the latter words "at the next gaol delivery," yet for petty larcenies and small felonies, the party accused may be tried at the quarter sessions, and the examinations and recognizances may be certified there (ƒ). And the examination and recognizances taken by justices in one county upon a backed (a) See form of recognizance, Burn, J. Examination. Id. Recognizance. Williams, J. Recognizance. Post, last vol. (b) 3 M. & S. 1. 1 Hale, 586. 2 Hale, 121. 282. Hawk. b. 2. c. 8. s. 58. Bac. Abr. Evidence, D. Dick. J. Recognizance. Dalt. J. c. 164. 168. Dick. Sess. 89. 91. See Coroners, similar jurisdiction and forms of warrants, &c.. Imp. Off. Coroners, 110, 111. (c) 3 M. & S. 1. (d) Per Graham, B. Bodmin Sum. Assizes, 1817. 1 Burn, J. 24th edit. 1013. (e) Cro. C. C. 18. Post, Chap. XIV. on Evidence. (f) Dalt. J. c. 164. Burn, J. Examination. THE EXAMINA- warrant, may be by them certified into another county, and there OF CERTIFYING read and given in evidence against the prisoner (a). Formerly the justice used personally to attend with the informations, in order to certify them, but now they are handed over by the clerk of the justices to the clerk of the peace or assizes. If by the non-appearance of the prosecutor or witness at the trial, his recognizance be broken, it becomes forfeited, and absolute, and being estreated (that is, taken out from among the other records) and sent up to the Exchequer (b), the party becomes an absolute debtor to the crown for the sum or penalty mentioned in the recognizance (c). As, however, the non-performance of the condition of the recognizance is frequently owing to mere inattention and ignorance, the 4 Geo. 3. c. 10, empowers the barons of the Exchequer to discharge any person, on petition, whom they shall think a fit subject for favor (d). The statute 38 Geo. 3. c. 52, provides for the forfeiture and estreating of recognizances, where the prosecutor does not proceed in pursuance of his notice, to try in the county at large, for an offence committed in any city or town corporate. Of estreating the recognizances, &c. The magistrate having heard the examinations, and ascertained Of bailing. that the party accused is not entitled to be completely discharged, is next to determine whether he shall bail or commit him. Bail is 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 prison (e). As more immediately connected (d) See post, as to estreating recognizances of bail; and Cro. C. C. 23 to 27. Instances, 3 Price, 261. 6 Ib. 102. 13 Ib. 299; but the great source of the general authority of the Exchequer to discharge estreated recognizances is a writ of privy seal, see form of it, 13 Price, 303. (e) As to bail in general in criminal cases, see 4 Bla. Com. ch. 22. Hawk. b. 2. c. 15. 2 Hale, c. 15. Burn, J. Bail. Bac. Ab. Bail in Criminal Cases. Com. Dig. Bail, F. 1, &c. OF BAILING. In what cases and who may bail. [94] with our present inquiries, we will first consider the power of justices of the peace, and the incidents of their authority: and then the jurisdiction of other magistrates to bail the supposed offender. With respect to the cases in which bail is allowable, it is ob servable that at common law no justice, or indeed any court, could bail a person in execution on a judgment or conviction for any offence; for then such imprisonment without bail, is part of the sentence and punishment, and this is the existing law (a). Nor will a court between conviction and judgment, bail the offender without the consent of the prosecutor (b). But when a party was arrested, before conviction, by the ancient common law, all felonies were bailable, till murder was excepted by statute (c); so that persons might be admitted to bail before conviction in almost every case (d). But the statute of Westminster, 3 Edw. 1. c. 15, takes away the power of justices of the peace to bail in treason, and in several instances of aggravated felony. This statute enacts that such "prisoners as before were outlawed, and they which have abjured the realm, provors, and such as be taken with the mainour, and those which have broken the king's prison, thieves openly defamed and known, and such as be appealed by provors, so long as the provors be living, if they be not of good name; and such as be taken for house-burning feloniously done, or for false money, or for counterfeiting the king's seal, or persons excommunicate, taken at the request of the bishop, or for manifest offences, or for treason touching the king himself, shall be in no wise replevisable by the common writ, nor without writ." "But such as be indicted of larceny by inquests taken before sheriffs or bailiffs, by their office, or of light suspicion or for petty larceny, that amounteth not above the value of 12d. if they were not guilty of some other larceny aforetime, or guilty of receipt of felons, or commandment or force, or of aid in felony done, or guilty of some other trespass, for which one ought not to lose life nor member, and a man appealed by a provor after the death of the provor (if he be no common thief nor defamed), (a) 8 T. R. 325. 4 Bla. Com. 298. 1 Wils. 299. (b) 4 Burr. 2545. 2539. (c) 6 Edw. 1. c. 9. Com. Dig、 Bail, F. 1. (d) 4 Bla. Com. 298. shall from henceforth be let out by sufficient surety, whereof the sheriff will be answerable, and that without giving aught of their goods. And if the sheriff or any other let any go at large, by surety that is not replevisable, if he be sheriff, a constable, or any other bailiff of fee, which hath keeping of prisons, and thereof be attainted, he shall lose his fee and office for ever.And if the under-sheriff, constable, or bailiff of such as have fee for keeping of prisons, do it contrary to the will of his lord, or any other bailiff being not of fee, they shall have three years imprisonment, and make fine at the king's pleasure. And if any withhold prisoners replevisable, after that they have offered sufficient surety, he shall pay a grievous amerciament to the king, and if he take any reward for the deliverance of such, he shall pay double to the prisoner, and also shall be in the great mercy of the king." The statutes 23 Hen. 6. c. 9, and the 1 & 2 Ph. & M. c. 13, contain further regulations upon this subject: and the latter statute extends the power of bailing to justices of the peace (a). The 24 Geo. 2. c. 55, enacts, that where a warrant has been backed, and the party accused has been taken out of the county where the supposed offence has been committed, any justice of the county where he was taken, may, if the offence be bailable, take bail; and the same provision is extended to Ireland, by 44 Geo. 3. c.92. s. 1; and the 45 Geo. 3. c. 92, and the 48 Geo. 3. c. 58. s. 2, enact, that where the offender escapes from one part of the United Kingdom to the other, he may be bailed by any judge or justice of that part of the United Kingdom where he was apprehended, unless the judge who granted the warrant has written the words "not bailable" on the back of the process. We may therefore consider the power of justices to bail under the three following heads: 1st, when they cannot bail,-2dly, when they have a discretionary power,-3dly, when they must bail. IN WHAT CASES AND WHO [95] 1st, When justices cannot bail. It may be collected from the When justices preceding observations, and from the statute 3 Edw. 1. c. 15, that cannot bail. justices of the peace cannot bail in the following instances. Treason, whether relating only to the coin, or more immediately (a) Burn, J, Bail, IV. |