[For a magistrate to refuse or delay to bail a person bailable, is an offence against the liberty of the subject by the common law (j), as well as by the statute of Westminster the first, 3 Edw. I. c. 15, and the Habeas Corpus Act, 31 Car. II. c. 2 (k). And lest the intention of the law in this matter should be frustrated by the justice requiring bail to a greater amount than the nature of the case demands, it was expressly declared by 1 W. & M. sess. 2, c. 2, 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 take insufficient bail, it is said that he is liable to be fined if the criminal doth not appear (1).]

Such, as the law now stands, is the power of the justices of the peace in bailing prisoners brought before them (m). It is to be understood, however, that in this matter the Queen's Bench Division of the High Court (or a judge thereof) exercises a paramount jurisdiction ;— such court having authority to bail, not only in cases where the charge is originally before them, but also in cases where it is brought before justices of the peace,

taining or attempting to obtain property by false pretences; receiving property stolen or obtained by false pretences; perjury or subornation of perjury; concealing the birth of a child by secret burying or otherwise; wilful and indecent exposure of the person; riot; assault in pursuance of a conspiracy to raise wages; assault upon a police officer in the execution of his duty, or upon any person acting in his aid; neglect or breach of duty as a peace officer; and any misdemeanor, for prosecution of which costs may be allowed out of the county rate. (Sect. 23.)

(j) Hawk. P. C. b. 2, c. 15,

s. 13. See Queen v. Badger, 4 Q. B. 468; Linford v. Fitzroy, 13 Q. B. 240.

(k) See also 56 Geo. 3, c. 100. (1) Hawk. P. C. b. 2, c. 15, s. 6; and see 7 Geo. 4, c. 64, ss. 5, 6; R. v. Saunders, 2 Cox's Cr. C. 249. (m) The court before which a prisoner is brought to plead, has also power to bail him. (4 Bl. Com. 297.) As to the power of bailing in the metropolitan police courts, see 2 & 3 Vict. c. 71, s. 36. See, also, 22 Vict. c. 33, enabling coroners to admit to bail persons charged with manslaughter, by the verdict of a coroner's jury.

and bail is there refused. [Nor is there any limit whatever to the power of the court in this particular (n) : which may bail for any crime whatsoever, be it treason (0), murder (p) or any other offence, according to the circumstances of the case.] It is not usual, however, either for a judge or for magistrates, to admit to bail in a case of felony, except under circumstances of a special and favourable kind (q).

Supposing no bail to be allowed, or none to be found. by the accused, he is then to be committed to prison by warrant of the examining magistrate, to be there safely kept until delivered by due course of law (r). [But this imprisonment is only for safe custody, and not for punishment; and therefore, in this dubious interval between the commitment and trial, a prisoner ought to be treated with the utmost humanity; and neither be loaded with needless fetters, nor subjected to other hardships than such as are absolutely requisite for the purposes of confinement.] It was accordingly expressly enacted by the 28 & 29 Vict. c. 126, s. 32, that criminal prisoners before trial, though they shall have the option of employment, shall not be compelled to perform any hard labour (s); and again by the 40 & 41 Vict. c. 21, s. 39, that there shall be in force

(n) 2 Inst. 189; Latch. 12; Vaug. 157; Comb. 111, 298; 1 Com. Dig. 493.

(0) In the reign of Queen Elizabeth, however, it was the unanimous opinion of the judges, that no court could bail a person committed on a charge of high treason, by any of the privy council. (1 Anders. 298.)

(p) Antiently felonious homicide seems to have been an exception. "In omnibus placitis de felonid solet accusatus per plegios dimitti, præterquam in placito de homicidio."

"Sciendum

(Glan. 1. 14, c. 1.)
tamen quod, in hoc placito, non solet
accusatus per plegios dimitti, nisi ex
regiæ potestatis beneficio." (Glan. 1.
14, c. 3.)

(9) See Barronet's case, 1 Dearsley's C. C. R. 51.

() 11 & 12 Vict. c. 42, s. 25. See 28 & 29 Vict. c. 126, s. 56.

(s) If the prisoner elect to be employed and shall be acquitted, or no indictment be found against him, a reasonable allowance may be made to him on account of such his earnings. (Sect. 33.)

in every place in which prisoners shall be confined for safe custody only, special rules regulating their confinement in such manner as to make it as little as possible oppressive, due regard only being had to their safe custody, to the necessity of preserving good order and good government in the place in which they are confined, and to the physical and moral well-being of the prisoners themselves. And, more particularly, such special rules are to be made in respect of the retention of books, papers or documents in the prisoner's possession at the time of his arrest; as to communications between him, and his solicitor or other friends; as to the arrangements with regard to his providing himself with diet, or being furnished with wholesome food; and as to his being protected from being called upon to perform unaccustomed tasks or offices.

Moreover, whether he is bailed or committed, the accused is entitled to demand, from the person having the custody of the same, copies of the examinations (or depositions) on which he shall have been bailed or committed, upon payment for them at a reasonable and prescribed rate (†). And the justice or justices are also empowered, in either case, to bind over by recognizance the prosecutor and witnesses to appear at the next assizes or sessions of the peace, at which the accused is to be tried, then and there to prosecute or to give evidence. And the several recognizances so taken, together with the written information (if any); the depositions; the statement of the accused; and the recognizance of bail (if any);-must be delivered to the proper officer at such assizes or sessions before or at the opening of the court, on the first day of its sitting (u).

(1) 11 & 12 Vict. c. 42, s. 27; 30 & 31 Vict. c. 35, s. 4. See Queen v. Lord Mayor of London, 5 Q. B. 555; R. v. Davies and others, 1 L. M. & P. 323.

(u) 11 & 12 Vict. c. 42, s. 20;

30 & 31 Vict. c. 35, s. 3. Under the provisions of 19 & 20 Vict. c. 16, where any person shall have been committed or held to bail for any felony or misdemeanor alleged to have been committed out of the

CHAPTER XIV.

OF THE SEVERAL MODES OF PROSECUTION.

THE next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation (a). And this may be either by presentment of a grand jury, or by indictment by them found, or by information.

I. A presentment, properly speaking, is the notice taken by a grand jury, of any matter or offence from their own knowledge or observation, without any bill of indictment laid before them at the suit of the Crown (b):-as the presentment by them 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 (c). The term "presentment," however, also includes inquisitions, and, in particular, an "inquisition of office," which is the inquest of a jury summoned by the proper officer to inquire of matters relating to the Crown, upon evidence laid before them. Most kinds of inquisitions [may be afterwards traversed and examined (d); as particularly the coroner's inquisition of the death of a man, when it finds any one guilty of homicide (e): for, in such cases, the offender so presented must be arraigned