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In Four Books / by Sir William Blackstone

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In Four Books / by Sir William Blackstone 299 Prosecutions for Crime. [Book IV. 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 discre tionary power of bailing in any case: except only, even to this high jurisdic tion, and of course to all inferior ones, such persons as are committed by either house of so as the ^session lasts; or such as are com- r*<tnnl parliament, long *■ J mitted 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) 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 bo used with the utmost humanity; and neither be loaded with needless fetters, nor 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 ancient lawgivers: («) "custodes poenam sibi commissorum non augeant, nec eos torqueant ; sed omni tcevitia remota, pietateque adhibita,judicia debite exequantur." CHAPTER XXIII. OF THE SEVERAL MODES OF PROSECUTION. The next step towards the punishment of offenders is their prosecution, or the manner of their formal accusation. (1) And this is either upon a previous finding of the fact by an inquest or grand jury; or without such previous find ing. The former way is either by presentment or indictment. X A presentment, generally taken, is a very comprehensive term; including not only presentments, properly so called, but also inquisitions of office and indictments by a grand jury. A presentment, properly speaking, is the notice (n) In the reign of Queen Elizabeth It was the unanimous opinion of the judges, that no court could bail upon a commitment lor a charge of high treason, by any of the queen's privy council. 1 Anders. 898. dimitti, (o) In omnibus placitis de felonia tolet accusatus per plegioa prceterquam in placito dmKomi- cirlio. (Olan. 1.14,o. 1.) Sciendum tamen Quod, in hoc placito non tolet aeoumatut per plegiot dimitti, nisi ex regice pottstatis beneftcio. (Ibid. c. !.) (p) StaundfTP. 0. 78,6. (j) 2 Hal. P. C. 128. (r) 2 Inst. 881. 8 Inst. 81. («) Flet. i. 1. c. 28. (1) It is a requirement of constitutional law that a person accused of crime shall be en titled to a speedy trial, and this has been said to mean a trial so soon after indictment u the prosecution can, by a fair exercise of reasonable diligence, prepare for trial, regard be ing had to the terms of court. U. 8. v. Fox, 3 Montana, 512. By the Habetu Corpus Act, 31 Car. II. c. 2, § 7, a person committed for treason or felony must be indicted at the next term or sessions', and if not indicted and tried in the second term or sessions, he shall be du> charged from confinement, unless the delay arises from the impossibility of reaching wit nessea for the prosecution. Similar provisions are found in the statutes of the American States, and there are general statutes limiting the time within which prosecutions for crimi nal offenses shall be instituted. 462 Chap. 23.] Prosecutions foe Ceime. 301 taken by a grand jury of any offence from their own knowledge or observation, . (a) without any bill of indictment laid before them at the suit of the king: as the presentment 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. An inquisition of office is the act of a jury sum moned by the proper officer to inquire of matters relating to the crown, upon evidence laid before them. Some of these are in themselves convictions, and cannot afterwards be traversed or denied; and therefore the inquest or jury, ought to hear all that can be alleged on both sides. Of this nature are all in quisitions of fdodese; of flight in persons accused of felony; of deodands, and the like; and presentments of petty offences in the sheriffs tourn or court- leet, whereupon the presiding officer may set a fine. (2) Other inquisitions may be afterwards traversed and examined: as particularly the coroner's ♦inquisition of the death of a man, when it finds any one guilty of *■r*o0oi* homicide; (3) for in such cases the offender so presented must be arraigned upon this inquisition, and may dispute the truth of it; which brings it to a kind of indictment, the most usual and effectual means of prosecution, and into which we will therefore inquire a little more minutely. H. An indictment (c) is a written accusation of one or more persons of a crime or misdemeanor, preferred to, and presented upon oath by, a grand jury. To this end the sheriff of every county is bound to return to every session of the peace, and every commission of oyer and terminer, and of general gaol delivery, twenty-four good and lawful men of the county, some out of every hundred, to inquire, present, do, and execute all those things which, on the them, part of our lord the king, shall then and there be commanded (d) They ought to be freeholders, (4) but to what amount is uncertain: (e) which seems to Toe casus omissus, and as proper to be supplied by the legislature as the qualifications of the petit jury, which were formerly equally vague and un certain, but are now settled by several acts of parliament. However, they are usually gentlemen of the best figure in the county. As many as appear upon this panel are sworn upon the grand jury, to the amount of twelve at the least, and not more than twenty-three; that twelve may be a majority. Which number, as well as the constitution itself, we find exactly described, so " early as the laws of king Ethelred. (/") Exeant seniores duodecim thani, et praifectus cum eis, et jurent super sanctuarium quod eis in manus datur, quod nolint ullum innocentem accusare, nec aliquem noxium celare." In the time (a) Lamb. EirenarcK. I f. c 5 (6) 8 Intt. 789. (c) See Appendix, { L (d) 2 HaL P. a 154 («) Ibid. 186. (/) WUk. LL. Anal Sax. 117. (2) Mr. Justice Coleridge points out an inaccuracy here. He shows that inquisitions of felo oU u may be traversed by the executors or administrators of the deceased. Toomes v. Etherington, 1 Saund. R, 808, n. 1, ed. 1824; that inquisition is not taken of the flight of persons accused of felony distinct from the felony; that the finding as to deodands is not so conclusive but that the court may interfere to diminish the value: Fost., 266; and that, as to presentments of petty offenses in the tourn or leet, Lord Mansfield has said that it cannot be true that they are not traversable anywhere: Cowp., 469; and the law seems to be that, before the fine is estreated and paid, though not afterwards, the presentment may be removed by certiorari into the court of king's beneh, and traversed there. Rex v. Hea- ton, 2 T. R, 184. (3) That the finding of a coroner's jury is in itself an indictment upon which a trial may be had without the intervention of a grand jury, see R. v. Ingham, 9 Cox, 508. The old doctrine was that one might be put on trial for crime without indictment when a verdict had in a civil action involved finding one guilty of crime. As if in trespass the jury found the defendant stole the goods. 2 Hawk. P. C., c. 25, § 6; Com. Dig. Indictment, C. Or in slander for calling one a thief, and the jury found a justification made out. Bac. Abr. Indictment, B. 5. But no such proceeding is known to modern English law. Capital or other infamous crimes against the United States are only to be tried on indict ment. Const. U. S., Amendment 5. In a majority of the states there are similar constitu tional provisions, but in some the grand jury is abolished, and an information filed by n public prosecutor is substituted for an indictment (4) It is not essential that they be freeholders. Russ. and R, 177. 463 302 Prosecutions foe Ceime. [Book IV. of King Richard the First (according to Hoveden) the process of electing the grand jury ordained by that prince, was as follows: four knights were to he taken from the county at large, who chose two more out of every hundred; which two associated to themselves ten other principal freemen, and those twelve were to answer concerning all particulars relating to their own district.
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