FOR TRIAL. of law for perjury committed in a judicial proceed- COMMITMENT ing (1). But in the ordinary case such a warrant would be illegal. The Lords of Justiciary grant war-Lords of Justi rant in this form, as they do so only on the Lord ciary, Advocate's motion, in whom they repose confidence as a superior official, and as they never conduct the investigations preliminary to trial (2). In case of or Privy Council imminent or actual invasion, rebellion, or insurrection, ment. the Privy Council, or any five of them, may order commitments (3). ordering commit Double served on A double of the warrant under the hand of the officer who bears it, or of the prison-keeper, must be prisoner. served upon the accused before or immediately upon imprisonment. Where it is subjoined to the peti But a tion, it is usual to serve a double of both. BAIL BAILABLE. committal in Generally speaking, all offences not capital are WHAT OFFENCES bailable, and the privilege extends to every commit- Competent on ment for trial (5), including cases where the commit- non-capital cases. ment is direct, as in the case of a person committed for perjury in the course of a judicial proceeding (6). In determining whether the crime is capital, the letter question if of the law is to be taken, and the crime is to be determined judged of, not by the mere name in the information or warrant, but by consideration of the facts set Bail refused forth (7). Until it can be determined whether the wound uncertain. 1 Murdo Mackay and others, H.C., Feb. 21st 1831; Bell's Notes 157. 2 Hume ii. 80.-Alison ii. 130. Alison ii. 160, 161. 6 Hume ii. 89-Alison ii. 163.Ker v. Orr and Fulton. Nov. 22d 1744; M. 7419. 7 Hume ii. 88, 89, and case of Connocher there.-Alison ii. 161, 162, 163. offence capital strictly. while effect of BAILABLE. Certain noncapital offences not bailable. WHAT OFFENCES crime is capital or not (as in the case of a wound which may prove fatal), bail should be refused (1). The offences which are not bailable, though not capital, are serious forgeries and thefts, high crimes and offences. under the Post Office Act, and treason-felony (2). Supreme Court Bail may allow bail in non-bailable cases. In post-office cases sheriffs have power. Lord Advocate's consent. may be allowed by the Supreme Court in their discretion, though not otherwise competent (3); but the Court may fix the amount arbitrarily, without regard to the ordinary legal rates (4). In Post Office offences the same power is given to Sheriffs and their substitutes (5). The Lord Advocate may consent to 1 Hume ii. 90, and case of Corse there. Allison ii. 163. 2 The following direction to Procurators-fiscal was issued from the Crown Office in 1854:- "Some "instances having recently oc"curred of accused persons being "admitted to bail without consent "of the Lord Advocate, where, "from the nature of the charge, "such consent ought to have been "first obtained, his Lordship thinks "it proper to direct the Procura66 tors-Fiscal to bear in mind that "in the following cases, viz., Mur"der, Assaults under 10th Geo. IV., "cap. 38, Robbery, Rape, Wilful "Fire-Raising, Cattle and Horse Stealing, Sheep Stealing of more "than one Sheep, Furtum Grave, "Three Acts of Theft, Theft aggra"vated by two previous convic tions, Theft aggravated by habit "and repute, Theft by House"breaking, Incest and Unnatural "Crimes, Forgeries which were "capital previous to the 2d and 3d "Will. IV.; i.e., Forgeries of "Obligatory Writings, such as "Bills, Bonds, Bank Cheques, "Promissory Notes, Deeds, &c."The High Crime and Offence "under the Post-office Act, 7th "Will. IV., and 1st Vict., cap. 36, "and all Crimes made capital by "any Statute now in force, it is "not in the power of any Magis"trate to admit to bail without "consent of the Lord Advocate; "and the Procurators-Fiscal will "take care (so far as within their "power) that bail is not accepted "in any of the above cases without communication with Crown "counsel." To these must be added the offence of treason-felony, under the Act 11 Vict, c. 12, § 9. 3 Hume ii. 90, 91, and cases of Fulton Monro: Henry: Collie: and Smith and others there. This is specially provided as to forgery cases by 5 and 6 Will. IV. c. 73, § 2 and as to Post-office offences by 7 Will. IV. and 1 Vict. c. 36, § 38.William H. Thomson. H.C July. 10th and 15th, and August 17th 1871; 2 Couper 103 and 43 S. J. 561 and 8 S.L.R. 654 (Lord Justice-Clerk Moncreiff's opinion). 4 Hume ii. 90, case of Fulton there.-ii. 91, case of Symmons in note 1. This is specially provided as to forgery and Post-office offences: see previous note. 5 Act 7 Will. IV. and 1 Vict. c. 36, § 38. bail in cases not legally bailable, but he may fix it at WHAT OFFENCES a sum beyond the ordinary legal rates (1). BAILABLE. CATION FOR BAIL. incarceration. magistrate, or to try offence. Applications for bail may be made before or after MODE OF APPLIimprisonment (2), and to the committing magistrate, Before or after or to the Commissioners of Justiciary, or to any judge, To committing provided he can try the offence (3). The application judge competent must be in writing, or it cannot be founded on in after Application in proceedings (4). It offers to find caution for six months, writing. to appear and answer the charge, and is accompanied by a copy of the warrant of commitment, this not being a rigorous solemnity, but, of course, absolutely necessary, if the judge applied to did not grant the warrant of commitment, and does not know the circumstances (5). A peer may apply to the Lords of Justiciary or the Application of Sheriff of the county where he is imprisoned, and the peer. caution in his case is to answer the charge in any competent court, within twelve months in Parliament, or the Court of the Lord High Steward, and within six months if before a Scotch Court (6). of bail. If bail be improperly refused, relief may be had in Improper refusal the Supreme Court (7). If bail be improperly accepted, the bail-bond is still valid, and the sum in it may be forfeited on the failure of the accused to appear (8). Bail is limited to £1200 for a nobleman, £600 for AMOUNT OF BAIL. a landed gentleman, £300 for a gentleman, or burgess, or householder, and £60 for other persons (9). treason cases double bail may be exacted (10). 3 Dow's Appeals 160. In The 5 Hume ii. 94.-Alison ii. 169. 7 Hume ii. 90, case of Grimm 8 Jean M'Arthur or Kirk, Stir- 9 Act 39 Geo. III. c. 49.-Hume within 24 hours. Not liable for orders liberation. AMOUNT OF BAIL. judge must modify the sum within twenty-four hours Judge must fix of the application, but is not liable for delay or error in judgment in refusing bail, except at common law error in refusing. where he acts in flagrant violation of justice (1). The Bail found, judge bail being found, and instruments taken on the delivery Not answerable of the caution, the judge must order liberation, unless any question be raised as to the sufficiency of the bail, in which case he is not answerable for delay caused by Prosecutor can enquiry, unless it be undue (2). When bail has been modified the prosecutor cannot raise any question afterwards as to the sufficiency of the amount (3). for delay in investigating sufficiency. not object bail too small. RIGHT OF AC CUSED TO EARLY tor to fix diet in 60 days. Specialty in treason. Bail-bonds must specify the domicile at which the accused may be cited (4). PREVENTION OF UNDUE DELAY IN Every person committed to prison for crime may at once apply for intimation to his accusers calling upon Call on prosecu- them within the next sixty days to fix a diet for trial (5). The only limitation of this privilege is in cases of treason, where it cannot be exercised till forty days after commitment (6). The application must be to a judicatory competent to try the offence (7). In a Supreme Court offence intimation to the Lord Advocate must be applied for (8), and it would appear that no intimation to the Lord Advocate is valid, unless made on the precept of that What if commit- Court (9). If the commitment has been by the Court at instance Supreme Court, at the Lord Advocate's instance, then, how trifling soever the crime, the application for inti ment by Supreme of Lord Advocate? 1 Hume ii. 97.-Alison ii. 171, 2 Hume ii. 96.-Alison ii. 179. 4 Act 31 and 32 Vict. c. 95, § 5 Act 1701 c. 6. 6 Hume ii. 99.-ii. 104.-Alison ii. 184. 7 Hume ii. 100, case of Spittal in note 1.-Alison ii. 185, 186. 8 Jas. Fegen or Brannan, Jan. 29th 1838; Bell's Notes 162.-John Coutts and others, H.C., Oct. 30th 1845; 2 Broun 521. 9 Burnett 355, case of Rankin there. mation must be made to that Court (1). But in RIGHT OF ACany CUSED TO EARLY other case cognisable by an inferior judge, it is sufficient TRIAL. to apply to him and to ask for intimation to the Procurator-Fiscal (2). And this suffices though the Lord Advocate afterwards try the case in the Supreme Court (3). Where a private party appears by the warrant to be Intimation to concerned, intimation must be made to him also (4). private party. FAILURE TO MENT. accused may de where party not On a written (5) petition being presented with the RESULT OF double of the warrant under the prison-keeper's hand, SERVE INDICTthe judge must within twenty-four hours give out letters or precept for intimation (6). If no libel be on 61st day served within sixty days after, and in addition to, the mand liberation. day of intimation (7), the accused is entitled to liberation, and cannot afterwards be reincarcerated, except under "Last Criminal Letters." It may be doubted Does Act apply whether the right to be liberated belongs to one who in prison at was not in prison when he asked for intimation, the Act saying, "in custody in order to trial" (8). where the accused has obtained intimation, his subsequently dismissed from prison, cannot preclude him from the benefit of the act as regards freedom from reincarceration except upon Last Criminal Letters (9). A prisoner admitted to bail at his own request cannot claim the benefit of the law (10). application? But Liberating after being intimation does not stop operation of Act. WHERE LIBEL Where a libel is served within the sixty days, the PROCEDURE statute ordains that the prosecutor "shall insist in “libel,” and the judge shall put the same to a trial, 1 Hume ii. 105.-Alison ii. 186, 187. 2 Hume ii. 105, 106.-Alison ii. 187. 3 Hume ii. 105.-Alison ii. 187. 4 Hume ii. 106, and case of Cameron there.-Alison ii. 187. 5 Hume ii. 104.-Alison ii. 186. 6 Hume ii. 99, 100.-Alison ii. 183. 7 Hume ii. 100, note a.- -ii. 107, case of Mackintosh in note 2.Alison ii. 187, 188.-John or Alex. the SERVED. Campbell, July 13th 1822; Shaw 74. 8 Hume ii. 104 and case of Ridley in note 2.-Alison ii. 203.--See Chas. Macdonald, June 18th 1832; 4 S. J. 521, and 5 Deas and Anderson 377, and J. Shaw 381 note, and Bell's Notes 160. 9 Case of Macdonald in previous note. 10 David Balfour, H.C., July 20th 1850; John Shaw 377. Charge brought to sentence with in 40 days in Supreme Court, or 30 in others. |