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CHAPTER XXII.: OF COMMITMENT AND BAIL. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF COMMITMENT AND BAIL.
**296]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;1 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;2 and to this end, by statute 2 & 3 Ph. and M. c. 10, he is to take in writing the examination of such prisoner and the information of those who bring him:3 which, Mr. Lambard observes,(a) was the first warrant given for the examination of a felon in the English law. For, at the common law, nemo tenebatur prodere seipsum: and his fault was not to be wrung out of himself, but rather to be discovered by other means and other men.4 If upon this inquiry it manifestly appears that either 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.5 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 offences of a *[*297capital 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.(b) What the nature of bail is hath been shown in the preceding book,(c) 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 gaol. 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 offence against the liberty of the subject in any magistrate, by the common law,(d) 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 justice’s requiring bail to a greater amount than the nature of the case demands, it is expressly declared, by statute 1 W. and M. st. 2, c. 1, that excessive bail ought not to be required; though what bail should 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 doth not appear.(e)6 Bail may be taken either in court, or in some particular cases by the sheriff,7 coroner, or other magistrate,8 but most usually by the justices of the peace.9 Regularly, in all offences, either against the common **298]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.(f) In order, therefore, more precisely to ascertain what offences are bailable,—
Let us next see who may not be admitted to bail, or what offences 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 offences; 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 offence 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 insure that justice shall be done upon him if guilty. Such persons therefore, as the author of the Mirror observes,(g) have no other sureties but the four walls of the prison. By the antient common law, before(h) and since(i) 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 divers instances of felony. The statutes 23 Hen. VI. c. 9 and 1 & 2 P. and M. c. 13 give further regulations in this matter;10 and upon the whole we may collect(k) that no justice 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. *[*299Approvers, 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: all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 11. Thieves openly defamed and known; 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and 13. Accessories to felony, that labour 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(l) of king’s bench (or any judge(m) thereof in time of vacation) may bail for any crime whatsoever, be it treason,(n) murder,(o) or any other offence, 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 offence. 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 *[*300session lasts; or such as are committed for contempts by any of the king’s superior courts of justice.(p)
Upon the whole, if the offence be not bailable, or the party cannot find bail, he is to be committed to the county gaol by the mittimus 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.(q)11 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 gaolers, who are frequently a merciless race of men, and, by being conversant in scenes of misery, steeled against any tender sensation. Yet the law (as formerly held) would not justify them in fettering a prisoner unless where he was unruly or had attempted to escape;(r) this being the humane language of our antient lawgivers:(s) “custodes pœnam sibi commissorum non augeant, nec eos torqueant; sed omni sævitia remota, pietateque adhibita, judicia debite exequantur.”
[1 ] In a late case, where it was stated the party behaved improperly in a church, it was held that though a constable might be justified in removing him from the church and detaining him till the service was over, yet he could not legally detain him afterwards to take him before a magistrate. 2 B. & C. 699.
A watchman should deliver the supposed offender over to a constable, or take him before a magistrate. Dalt, J., c. 104.
A private person may do the same as a watchman. In a late case it was held that a private person when he took a party endeavouring to commit a felony might detain him in order to take him before a magistrate. 1 R. & M. C. C. 93.—Chitty.
[2 ] A constable arresting a man on suspicion of felony is bound to take him before a magistrate as soon as he reasonably can; and he has no right to detain a prisoner three days without taking him before a magistrate, in order that evidence may be collected in support of a felony with which he is charged. Wright vs. Court, 6 D. & R. 623. And see 2 Hawk. P. C. 117.
It is the duty of the magistrate to take and complete the examination of all concerned, and to discharge or commit the individual suspected, as soon as the nature of the case will admit. Fost. 142, 143. But he is allowed a reasonable time for this purpose before he makes his final decisions. It seems to have been formerly considered that the law intends three days to be sufficient, and that a magistrate cannot justify the detainer of a party eighteen days under examination. Scavage vs. Tateham, Cro. Eliz. 829. 1 Hale, P. C. 585, 586. 2 id. 120, 121. 2 Hawk. P. C. c. 16, s. 12. 1 Chitt. C. L. 72. This point was considered in a very recent case,—Davis vs. Capper, King’s Bench, sittings in banc before Easter Term. 1829. That was an action against a magistrate for false imprisonment. The plaintiff had been brought before the defendant upon suspicion of felony, and was committed by him for further examination for fourteen days. The court, without giving judgment upon the whole case, which comprehended other questions, expressed a strong opinion that fourteen days was not a reasonable period for commitment for re-examination, and that a warrant for such commitment was bad for not setting forth full and satisfactory reasons for committing for so long a period; and they referred to the case of Scavage vs. Tateham (Cro. Eliz. 829) as justifying that opinion Ed. MS.—Chitty.
[3 ] The prisoner’s examination must not be upon oath: that of the witnesses must be 2 Hale, P. C. 52. 1 id. 585. 1 Phil. Ev. 106. Where magistrates first took the examination of witnesses, not on oath, in support of a conviction, and afterwards swore them to the truth of their evidence, the court of King’s Bench expressed their disapprobation of the practice. Rex vs. Kiddy, 4 D. & R. 734. The prisoner has no right to the assistance of an attorney when under examination on a charge of felony: the privilege, when allowed, is entirely a matter of discretion in the magistrate. Cox vs. Coleridge, 2 D. & R. 86. 1 B. & C. 37. 1 M. C. 142. See, however, an elaborate note on this important subject, Paley on Convictions, 2d ed. by Dowling, 28, et seq., where the propriety of that decision is considered.—Chitty.
[(a) ]Eirenarch. b. ii. c. 7. See page 357.
[4 ] But the statute of Philip and Mary was repealed, by statute 7 Geo. IV. c. 64, and other provisions introduced. And now the statute 11 & 12 Vict. c. 42, s. 17 provides that in all cases where any person shall appear or be brought before any justice or justices of the peace, charged with any indictable offence, whether committed in England or Wales, or upon the high seas, or on land beyond the sea, or whether such person appear voluntarily upon summons, or have been apprehended with or without warrant, or be in custody for the same or any other offence, such justice or justices, before he or they shall commit him to prison for trial or before admitting him to bail, shall in the presence of such accused person, who is at liberty to put questions to the witnesses, take the statement on oath or affirmation of the witnesses and reduce such statement to writing. And after such examination is completed, their depositions are to be read over to the accused, and the justices, or one of them, shall say to him these words, or words to the like effect:—“Having heard the evidence, do you wish to say any thing in answer to the charge? You are not obliged to say any thing unless you desire to do so; but whatever you say will be taken down in writing, and may be given in evidence against you upon the trial.” And if the accused then makes a statement, it is to be taken down accordingly. The place where the examination is taken is not to be deemed an open court, but such examination may be conducted privately; and (unlike cases of summary conviction) it is discretionary with the justices to allow the accused the assistance of an attorney or counsel.—Stewart.
[5 ]Recognizance to Prosecute.—Besides this commitment and bail, the magistrate should take the recognizance of the prosecutor to appear and prefer an indictment and give evidence at the next sessions of the peace, or general gaol-delivery, as the case may require, and in case of refusal may commit him to gaol. 1 Hale, 586. 2 Hale, 52, 121. 3 M. & S. 1. See further, Burn, J., Recognizance. Williams, J., Recognizance. 1 Chitt. C. L. 90.
Recognizance to give Evidence.—When it appears 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. and M. c. 13, s. 5 and 2 & 3 Ph. and M. c. 10, s. 2, authority to bind such witness by recognizance or obligation 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. 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. 3 M. & S. 1. 1 Hale, 586. 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. 3 M. & S. 1. 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. Per Graham, B., Bodmin Sum. Ass. 1817. 1 Burn, J., 24th ed. 1013.—Chitty.
[(b) ] Pott. Antiq. b. i. c. 18.
[(c) ] See book iii. page 200.
[(d) ] 2 Hawk. P. C. 90.
[(e) ] Ibid. 89.
[6 ] And even if the criminal does appear, yet if the bail were taken corruptly the magistrate would continue liable to an information or indictment. 2 T. R. 190.—Chitty.
[7 ]Sed quære if a sheriff has this power? It seems not. See 4 T. R. 505. 2 H. Bla. 418. Lamb. 15.—Chitty.
[8 ] The court of King’s Bench, or any judge thereof, in vacation, may at their discretion admit persons to bail in all cases whatsoever, (see 3 East, 163. 5 T. R. 169;) but none can claim this benefit de jure. 2 Hale, 129. As to when this court will bail, see 1 Chitt. C. L. 2d ed. 98, 99.—Chitty.
[9 ] The 24 Geo. II. 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. III. c. 92, s. 1; and the 45 Geo. III. c. 92 and the 48 Geo. III. 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.—Chitty.
[(f) ] 2 Hal. P. C. 127.
[(g) ] C. 2, 24.
[(h) ] 2 Inst. 189.
[(i) ]In omnibus placitis de felonia solet accusatus per plegios dimitti, præter quam in placito de homicidio, ubi ad terrorem aliter statutum est. Glanv. l. 14, c. 1.
[10 ] These statutes are all repealed, by the 7 Geo. IV. c. 64, by sect. 1 of which it is enacted “that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and credible evidence of the fact, or by such evidence as, if not explained or contradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner thereinafter mentioned; but if there shall be only one justice present, and the whole evidence given before him shall be such as neither to raise a strong presumption of guilt, nor to warrant the dismissal of the charge, such justice shall order the person charged to be detained in custody until he or she shall be taken before two justices at the least: and where any person so taken, or any person in the first instance taken before two justices, shall be charged with felony, or on suspicion of felony, and the evidence given in support of the charge shall in their opinion not be such as to raise a strong presumption of the guilt of the person charged and to require his or her committal, or such evidence shall be adduced on behalf of the person charged as shall in their opinion weaken the presumption of his or her guilt, but there shall notwithstanding appear to them in either of such cases to be sufficient ground for judicial inquiry into his or her guilt, the person charged shall be admitted to bail, by such two justices, in the manner thereinafter mentioned; provided always that nothing therein contained shall be construed to require any such justice or justices to hear evidence on behalf of any person so charged unless it shall appear to him or them to be meet and conducive to the ends of justice to hear the same.—Chitty.
[(k) ] 2 Inst. 186. 2 Hal. P. C. 129.
[(l) ] 2 Inst. 189. Latch. 12. Vaugh 157. Comb. 111, 298. 1 Comyns Dig. 495.
[(m) ] Skin. 683. Salk 105. Stra. 911. 1 Comyns Dig. 497.
[(n) ] 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.
[(o) ]In omnibus placitis de felonia solet accusatus per plegios dimitti. præterquam in placito de homicidio. Glanv. l. 14, c. 1. Sciendum tamen quod, in hoc placito, non solet accusatus per plegios dimitti, nisi ex regiæ potestatis beneficio. Ibid. c. 3.
[(p) ] Staundf P. C. 73, b.
[(q) ] 2 Hal. P. C. 122.
[11 ] This is not the form where the offence is bailable and the party cannot find bail: in that case it is to keep the prisoner in custody “for want of sureties, or until he shall be discharged by due course of law.” And where the commitment is in the nature of punishment, the time of imprisonment must be stated, and if it be until the party be discharged by due course of law it will be bad, (5 B. & A. 895;) but where in other respects the time of imprisonment is sufficiently stated, the unnecessary addition of the words “until he be discharged by due course of law” will not vitiate. 3 M. & S. 283 And as to the form of the mittimus in general, see 1 Chitt. C. L. 109 to 116, 2d ed.—Chitty.
[(r) ] 2 Inst. 381. 3 Inst. 34.
[(s) ] Flet. l. 1, c. 26.