no hue and cry is sufficient, unless made with both horsemen and footmen. And by statute 8 Geo. II. c. 16. the constable or like officer, refusing or neglecting to make hue and cry, forfeits 51.; and the whole vill or district is still in strictness liable to be amerced, according to the law of Alfred, if any felony be committed therein, and the felon escapes. An institution which hath long prevailed in many of the eastern countries, and hath in part been introduced even into the Mogul empire, about the beginning of the last century; which is said to have effectually delivered that vast territory from the plague of robbers, by making, in some places, the villages, in others, the officers of justice responsible for all the robberies committed within their respective districts". Hue and cry may be raised either by precept of a justice of the

w Mod. Un. Hist. vi. 383. vii. 156.

* 2 Hal. P. C. 100-104.

Gazette, describing as well as he can the felons, the time and place of the robbery, and the goods robbed. He must also, within the same time, be examined on oath before some justice of the peace of the county, and inhabiting within or near to the hundred, as to his knowledge of the robbers, and if he admits that he knows them, or any of them, he must enter into a recognisance before the justice of the peace to prosecute them for the robbery. He must also, before he commences the action, go before certain specified officers of the court in which he means to sue, or before the sheriff of the county, and enter into a bond to the hundred constable in the penal sum of 100%., with two sufficient sureties conditioned for the payment of costs, in case of judgment passing against him.

3d, No person can recover more than 2007. unless there were two persons at least in company together at the time of the robbery, to attest the truth of the fact. The party himself, however, is, from the necessity of the case, a competent witness to prove his own loss.

Lastly, although the action is in form against the inhabitants generally of the hundred, and formerly both the process might have been served, and execution levied on any inhabitant thereof, who was to be indemnified by a taxation of the hundred; the party is now bound to serve his process in the commencement on the hundred constable, who must appear and defend for the hundred. And when the sheriff receives the writ of execution, he is not to levy either on any particular inhabitant, or on the hundred constable, but to produce the same to two justices of the peace residing within or near the hundred, who are to make an assessment on all places within the hundred for the damages and costs of the party recovering, and also the necessary expences of the defence; and to allow time for this operation, the sheriff has sixty days given him before he can be called upon to return the writ. Upon this subject, and others connected with it, I refer the student to the notes on Pinkney v. the Inhabitants of East Hundred, and Leigh v. Chapman, 2 Saund. p. 374. & 423, ed. 1824.

upon

peace, or by a peace-officer, or by any private man that knows of a felony. The party raising it must acquaint the constable of the vill with all the circumstances which he knows of the felony, and the person of the felon; and therethe constable is to search his own town, and raise all the neighbouring vills, and make pursuit with horse and foot; and in the prosecution of such hue and cry the constable and his attendants have the same powers, protection, and indemnification, as if acting under a warrant of a justice of the peace. But if a man wantonly or maliciously raises an hue and cry, without cause, he shall be severely punished as a disturber of the public peace".

In order to encourage farther the apprehending of certain felons, rewards and immunities are bestowed on such as bring them to justice, by divers acts of parliament. The statute 4 & 5 W. & M. c. 8. enacts, that such as apprehend a high- [ 295 wayman, and prosecute him to conviction, shall receive a reward of 401. from the public; to be paid to them (or, if killed in the endeavour to take him, their executors,) by the sheriff of the county; besides the horse, furniture, arms, money, and other goods taken upon the person of such robber; with a reservation of the right of any person from whom the same may have been stolen: to which the statute 8 Geo. II. c. 16. superadds 10l. to be paid by the hundred indemnified by such taking. By statutes 6 & 7 W. III. c. 17. and 15 Geo. II. c. 28. persons apprehending and convicting any offender against those statutes, respecting the coinage, shall (in case the offence be treason or felony) receive a reward of forty pounds; or ten pounds, if it only amount to counterfeiting the copper coin. By statute 10 & 11 W. III. c. 23. any person apprehending and prosecuting to conviction a felon guilty of burglary, house-breaking, horse-stealing, or private larciny to the value of 5s. from any shop, warehouse, coach-house, or stable, shall be excused from all parish offices. And by statute 5 Ann. c. 31. any person so apprehending and prosecuting a burglar, or felonious housebreaker, (or, if killed in the attempt, his executors,) shall be entitled to a reward of 40l." By statute 6 Geo. I. c. 23. y 2 Hawk. P. C. c. 12. § 5. The statutes 4 & 5 W, & M. c. 8. (together with 3 Geo. I. c. 15. § 4.,

6 & 7 W. III. c. 17. and 5 Ann. c.31.

persons discovering, apprehending, and prosecuting to conviction, any person taking reward for helping others to their stolen goods, shall be entitled to forty pounds. By statute 14 Geo. II. c. 6. explained by 15 Geo. II. c. 34. any person apprehending and prosecuting to conviction such as steal, or kill with an intent to steal, any sheep or other cattle specified in the latter of the said acts, shall for every such conviction receive a reward of ten pounds. Lastly, by statute 16 Geo. II. c. 15. and 8 Geo. III. c. 15. persons discovering, apprehending, and convicting felons and others being found at large during the term for which they are ordered to be transported, shall receive a reward of twenty pounds. (6)

which directs the method of reimbursing palatine of Durham, by stat. 14 Geo. III. the sheriff's) are extended to the county

c. 46.

(6) This system of rewards, under which it is to be feared that some melancholy abuses had been practised, has been almost entirely done away with by a recent statute, the 58 G. 5. c. 70. This statute recites the clauses in 4 W.& M. c. 8., 6 & 7 W. 3. c. 17., 10 & 11 W.3. c. 23., 5 Anne, c.31., 14G.2. c. 6., and 15G.2. c. 28. and then in general repeals them, so far as relates to the granting pecuniary rewards to the party apprehending or convicting, but saves to him the right to the horse, furniture, arms, &c. given by the first of the above-named statutes, and saves also the pecuniary rewards to the executors of persons killed in the endeavour to apprehend. It renders also the certificate of exemption from parish offices, granted by the 10 & 11W.3. c. 23. (commonly called a Tyburn Ticket) no longer transferable. In the room of this system, it substitutes a power in the court in all cases of felony to order the sheriff or treasurer of the county in which the offence shall have been committed, to pay to the prosecutor and witnesses, bound by recognisance, or attending under subpoena or notice, and also to all persons appearing to have been active in the apprehension, both their costs and expences, and a reasonable compensation for their trouble and loss of time.

It is only to be lamented that this act does not extend to cases of misdemesnor, in which very often considerable hardships occur to poor prosecutors, and witnesses bound over to attend at a distance from their homes, and at a great expence and loss of time.

CHAPTER THE TWENTY-SECOND.

OF COMMITMENT AND BAIL.

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 shew, 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, 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. (1) If upon this inquiry it a Eirenarch. b. 2. c. 7. See pag. 357.

(1) The st. 2 & 3 Ph. & M. c. 10. is an extension of the 1 & 2 Ph. & M. c.13. The first of these relates to the examination of the prisoner and the witnesses against him, in cases where the justices proceed to bail him; the latter, to cases in which they commit him. The provisions are nearly the same; but it is not to be understood, as might be inferred from the text, that these statutes warrant the wringing out the prisoner's offence from himself; on the contrary, he is perfectly at liberty to say nothing, and answer no questions: if he is disposed to speak, a humane and prudent magistrate will feel it to be his duty to caution him against saying any thing which may prejudice himself. After this warning, and a distinct intimation, where inducements have been previously held out to him to confess, that such confession will avail him nothing in remission of punishment, whatever the prisoner says

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. (2) 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 offences of a capital [297] 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. What the nature of bail is, hath been shewn in the preceding book, 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 b Pott. Antiq. b. 1. c.18.

See Vol. III. page 290.

is evidence against himself upon his trial. His examination must not be upon oath, a rule arising from the extreme anxiety of the courts to ascertain that it is purely voluntary. The information of the witnesses must be upon oath, the prisoner is entitled to cross-examine them; but neither party has a right to legal assistance before the magistrate, though there are few cases in which it would be refused to either. The information of the witnesses may be read upon the trial as evidence, if it be shewn that they are dead, unable to travel, or kept out of the way by the prisoner. 2 Hawk. P.C. c. 46. s. 3-10. 1 B. & C.37.

(2) This sentence is warranted by the authorities of Crompton, Lambard, Dalton, Hale, and Hawkins, who leave little or no discretion in the justice where the charge against the prisoner is positive; but these authorities were questioned in a recent case (1 B. & C. 43.), and the opinion seems now to be, that the justice is to exercise a somewhat more liberal discretion, and not to commit or detain a party on bail, however positively accused, if the balance of testimony be strongly in favour of his innocence.