Blackstone's Commentaries on the Laws of England
Book the Fourth - Chapter the Twenty-Second : Of Commitment and Bail
CHAPTER THE TWENTY SECOND.
OF COMMITMENT AND BAIL.
WHEN a delinquent is arrefted by any of the means mentioned in the preceding chapter, he ought regularly to be carried before a juftice of the peace. And how he is there to be treated, I fhall next fhew, under the fecond head, of commitment and bail.
THE juftice, before whom fuch prifoner is brought, is bound immediately to examine the circumftances of the crime alleged : and to this end by ftatute 2 & 3 Ph. & M. c. 10. he is to take in writing the examination of fuch prifoner, and the information of thofe who bring him : which, Mr Lambard obferves
a, was the firft warrant given for the examination of a felon in the Englifh law. For, at the common law, nemo tenebatur prodere feipfum ; and his fault was not to be wrung out of himfelf, but rather to be difcovered by other means, and other men. If upon this enquiry it manifeftly appears, either that no fuch crime was committed, or that the fufpicion entertained of the prifoner was wholly groundlefs, in fuch cafes only it is lawful totally to difcharge him. Otherwife he muft either be committed to prifon, or give bail ; that is, put in fecurities for his appearance, to anfwer
{FS}
a Eirenarch. b. 2. c. 7.
{FE}
the
.P 294
PUBLIC WRONGS.
BOOK IV.
Ch. 22.
The charge againft him. This commitment therefore being only for fafe cuftody, wherever bail will anfwer the fame intention, it ought to be taken ; as in moft of the inferior crimes : but in felonies, and other offences of a capital nature, no bail can be a fecurity equivalent to the actual cuftody of the perfon. For what is there that a man may not be induced to forfeit, to fave his own life ? and what fatisfaction or indemnity is it to the public, to feize the effects of them who have bailed a murderer, if the murderer himfelf be fuffered to efcape with impunity ? Upon a principle fimilar to which, the Athenian magiftrates, when they took a folemn oath, never to keep a citizen in bonds that could give three fureties of the fame quality with himfelf, did it with an exception to fuch as had embezzled the public money, or been guilty of treafonable practifes
b. What the nature of bail is, hath been fhewn in the preceding book
c ; viz. a delivery, or bailment, of a perfon to his fureties, upon their giving (together with himfelf) fufficient fecurity for his appearance : he being fuppofed to continue in their friendly cuftody, inftead of going to gaol. In civil cafes we have feen that every defendant is bailable ; but in criminal matters it is otherwife. Let us therefore enquire, in what cafes the party accufed ought, or ought not, to be admitted to bail.
AND, firft, to refufe or delay to bail any perfon bailable, is an offence againft the liberty of the fubject, in any magiftrate, by the common law
d ; as well as by the ftatute Weftm. 1. 3 Edw. I. c. 15. and the habeas corpus act, 31 Car. II. c. 2. And left the intention of the law fhould be fruftrated by the juftices requiring bail to a greater amount than the nature of the cafe demands, it is expreffly declared by ftatute 1 W. & M. ft. 2. c. 1. that exceffive bail ought not to be required : though what bail fhall be called exceffive, muft be left to the courts, on confidering the circumftances of the cafe, to determine. And on the other hand, if the magiftrate takes infufficient bail, he is liable
{FS}
b Pott. Antiq. b. 1. c. 18.
c See Vol. III. pag. 290.
d 2 Hawk. P. C. 90.
{FE}
to.P 295
PUBLIC WRONGS.
BOOK IV.
Ch. 22.
to be fined, if the criminal doth not appear
e. Bail may be taken either in court, or in fome particular cafes by the fheriff, coroner, or other magiftrate ; but moft ufually by the juftices of the peace. Regularly, in all offences either againft the common law or act of parliament, that are below felony, the offender ought to be admitted to bail, unlefs it be prohibited by fome fpecial act of parliament
f. In order therefore more precifely to afcertain what offences are bailable.
LET us next fee, who may not be admitted to bail, or, what offences are not bailable. And here I fhall not confider any one of thofe cafes in which bail is oufted by ftatute, from prifoners convicted of particular offences ; for then fuch imprifonment without bail is part of their fentence and punifhment. But, where the imprifonment is only for fafe cuftody before the conviction, and not for punifhment afterwards, in fuch cafes bail is oufted or taken away, wherever the offence is of a very enormous nature : for then the public is entitled to demand nothing lefs than the higheft fecurity that can be given ; viz. the body of the accufed, in order to enfure that juftice fhall be done upon him, if guilty. Such perfons therefore, as the author of the mirror obferves
g, have no other fureties but the four walls of the prifon. By the antient common law, before
h and fince
i the conqueft, all felonies were bailable, till murder was excepted by ftatute : fo that perfons might be admitted to bail before conviction almoft in every cafe. But the ftatute Weftm. 1. 3 Edw. I. c. 15. takes away the power of bailing in treafon, and in divers inftances of felony. The ftatute 1 & 2 Ph. & Mar. c. 13. gives farther regulations in this matter : and upon the whole we may collect
k, that no juftices of the peace can bail, 1. Upon an accufation of treafon : nor, 2. Of murder : nor,
{FS}
e 2 Hawk. P. C. 89.
f 2 Hal. P. C. 127.
g c. 2.
§. 24.
h 2 Inft. 189.
i In omnibus placitis de felonia folet accufatus per plegios dimitti, practerquam in placito de homicidie, ubi ad terrorem aliter ftatutum eft. (Glanv. l. 14. c. 1.)
k 2 Inft. 186. 2 Hal. P. C. 129.
{FE}
3. In
.P 296
PUBLIC WRONGS.
BOOK IV.
Ch. 22.
3. In cafe of manflaughter, if the prifoner be clearly the flayer, and not barely fufpected to be fo ; or if any indictment be found againft him : nor, 4. Such as, being committed for felony, have broken prifon ; becaufe it not only carries a prefumption of guilt, but is alfo fuperadding one felony to another : 5. Perfons outlawed : 6. Such as have abjured the realm : 7. Approvers, of whom we fhall fpeak in a fubfequent chapter, and perfons by them accufed : 8. Perfons taken with the mainour, or in the fact of felony : 9. Perfons charged with arfon : 10. Excommunicated perfons, taken by writ de excommunicato capiendo : all which are clearly not admiffible to bail. Others are of a dubious nature, as, 11. Thieves openly defamed and known : 12. Perfons charged with other felonies, or manifeft and enormous offences, not being of good fame : and 13. Acceffories to felony, that labour under the fame want of reputation. Thefe feem to be in the diferetion of the juftices, whether bailable or not. The laft clafs are fuch as muft be bailed upon offering fufficient furety ; as, 14. Perfons of good fame, charged with a bare fufpicion of manflaughter, or other inferior homicide : 15. Such perfons, being charged with petit larciny or any felony, not before fpecified : or, 16. With being acceffory to any felony. Laftly, it is agreed that the court of king's bench (or any judge thereof in time of vacation) may bail for any crime whatfoever, be it treafon l, murder, or any other offence, according to the circumftances of the cafe. And herein the wifdom of the law is very manifeft. To allow bail to be taken commonly for fuch enormous crimes, would greatly tend to elude the public juftice : and yet there are cafes, though they rarely happen, in which it would be hard and unjuft to confine a man in prifon, though accufed even of the greateft offence. The law has therefore provided one court, and only one, which has a difcretionary power of bailing in any cafe : except only, even to this high jurifdiction, and of courfe to all inferior ones, fuch perfons as
{FS}
l 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 treafon, by any of the queen's privy council. (1 Anderf. 298.)
{FE}
are
.P 297
PUBLIC WRONGS.
BOOK IV.
Ch. 22.
are committed by either houfe of parliament, fo long as the feffion lafts ; or fuch as are committed for contempts by any of the king's fuperior courts of juftice.
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 juftice, or warrant under his hand and feal, containing the caufe of his commitment ; there to abide till delivered by due courfe of law m. But this imprifonment, as has been faid, is only for fafe cuftody, and not for punifhment : therefore, in this dubious interval between the commitment and trial, a prifoner ought to be ufed with the utmoft humanity ; and neither be loaded with needlefs fetters, or fubjected to other hardfhips than fuch as are abfolutely requifite for the purpofe of confinement only : though what are fo requifite, muft too often be left to the difcretion of the gaolers ; who are frequently a mercilefs race of men, and, by being converfant in fcenes of mifery, fteeled againft any tender fenfation. Yet the law will not juftify them in fettering a prifoner, unlefs where he is unruly, or has attempted an efcape n : this being the humane language of our antient lawgivers o, “ cuftodes poenam fibi commiffo rum non augeant, nec eos torqueant ; fed omni faevitia remota, pietateque adhibita, judicia debite exequantur.”
{FS}
m 2 Hal. P. C. 122.
n 2 Inft. 381. 3 Inft. 34.
o Flet. l. 1 . c. 26.
{FE}
O o
.P 298
PUBLIC WRONGS.
BOOK IV.
Ch. 23.
