BOOK 4, CHAPTER 22 Of Commitment and Bail

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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 is to take in writing the examination of such prisoner, and the information of those who bring him: which, Mr. Lambard observes,1 was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum [no one was obliged to betray himself]; and his fault was not to be wrung out of himself, but rather to be discovered by other means, and other men. If upon this inquiry it manifestly appears, either that no such crime was committed, or that the suspicion entertained of the prisoner was wholly groundless, in such cases only it is lawful totally to discharge him. Otherwise 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, and other offenses 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.2 What the nature of bail is, has been shown in the preceding book;3 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 jail. 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 offense against the liberty of the subject, in any magistrate, by the common law;4 as well as by the statute Westm. 1. 3 Edw. I. c. 15. and 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 statute 1 W. & M. 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 to be fined, if the criminal does not appear.5 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. Regularly, in all offenses either against the common law or act of parliament, that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some special act of parliament.6 In order therefore more precisely to ascertain what offenses are bailable.

LET us next see, who may not be admitted to bail, or, what offenses are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offenses; 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 offense 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 ensure that justice shall be done upon him, if guilty. Such persons therefore, as the author of the mirror observes,7 have no other sureties but the four walls of the prison. By the ancient common law, before8 and since9 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. But the statute Westm. 1. 3 Edw. I. c. 15. takes away the power of bailing in treason, and in diverse instances of felony. The statute 1 & 2 Ph. & Mar. c. 13. gives farther regulations in this matter: and upon the whole we may collect,10 that no justices of the peace can bail, 1. Upon an accusation of treason: nor, 2. Of murder: nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him: nor, 4. Such as, being committed for felony, have broken prison; because it not only carries a presumption of guilt, but is also superadding one felony to another: 5. Persons outlawed: 6. Such as have 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 [for taking an excommunicated person]: all which are clearly not admissible to bail. Others are of a dubious nature, as, 11. Thieves openly defamed and known: 12. Persons charged with other felonies, or manifest and enormous offenses, not being of good fame: and 13. Accessories to felony, that labor under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be 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. Lastly, it is agreed that the court of king’s bench (or any judge thereof in time of vacation) may bail for any crime whatsoever, be it treason,11 murder, or any other offense, according to the circumstances 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 offense. The law has therefore provided one court, and only one, which has 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 king’s superior courts of justice.

UPON the whole, if the offense be not bailable, or the party cannot find bail, he is to be committed to the county jail by the mittimus [commitment] of the justice, or warrant under his hand and seal, containing the cause of his commitment; there to abide till delivered by due course of law.12 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, or subjected to other hardships than such as are absolutely requisite for the purpose of confinement only: though what are so requisite, must too often be left to the discretion of the jailers; who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law will not justify them in fettering a prisoner, unless where he is unruly, or has attempted an escape:13 this being the humane language of our ancient lawgivers,14 “custodes poenam sibi commissorum non augeant, nec eos torqueant; sed omni saevitia remota, pietateque adhibita, judicia debite exequantur.” [“Let not jailers torture or add to the punishment of those entrusted to their keeping; but let the sentence of the law be duly yet mercifully executed.”]

NOTES

     1.    Eirenarch. b. 2. c. 7.

     2.    Pott. Antiq. b. 1. c. 18.

     3.    See Vol. III. pag. 290.

     4.    2 Hawk. P. C. 90.

     5.    2 Hawk. P. C. 89.

     6.    2 Hal. P. C. 127.

     7.    c. 2. § 24.

     8.    2 Inst. 189.

     9.    In omnibus placitis de felonia solet accusatus per plegios dimitti, praeterquam in placito de homicidio, ubi ad terrorem aliter statutum est. [In all pleas of felony the accused is usually discharged upon bail, except in the plea of murder, where, to deter others, it is otherwise decreed.] (Glanv. l. 14. c. 1.)

   10.    2 Inst. 186. 2 Hal. P. C. 129.

   11.    In the reign of queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment, for a charge of high treason, by any of the queen’s privy council. (1 Anders. 298.)

   12.    2 Hal. P. C. 122.

   13.    2 Inst. 381. 3 Inst. 34.

   14.    Flet. l. 1 . c. 26.

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