this head of crime from our consideration, and confine ourselves solely to the ordinary criminal process by which offenders are brought to justice.
In, general, the first step in a criminal prosecution, is to obtain a warrant for the apprehension of the accused party. In ordinary cases, a warrant is granted by any justice of the peace upon information, on the oath of some credible witness, of facts from which it appears that a crime has been committed, and that the person against whom the warrant is sought to be obtained, is probably the guilty party, and is a document under the hand and seal of the justice, directed generally to the constable or other peace-officer, requiring him to bring the accused, either generally before any justice of the county, or only before the justice who granted it. This is the practice in ordinary cases; but in extraordinary cases, the warrant may issue from the Lord Chief Justice, or the Privy Council, the Secretaries of State, or from any justice of the Court of Queen's Bench. These latter warrants are, we believe, all tested, or dated England, and extend over the whole kingdom. So far the proceedings have been all ex parte, one side only has been heard, one party only has appeared, and all that has been done, is to procure or compel the appearance of the other. The warrant is delivered to the officer, who is bound to obey the command which it contains. It would seem, however, that, as was done in a recent case in Ireland, it is sufficient if the appearance of the accused be virtually secured, even without the intervention of an actual arrest.
When the delinquent appears, in consequence of this process, before the authorities, they are bound immediately to examine into the circumstances of the alleged crime; and they are to take down in writing the examinations of the witnesses offered in support of the charge. If the evidence is defective, and grave suspicion should attach to the prisoner, he may be remanded, in order that fresh evidence may be procured; or the magistrate, if the case be surrounded with doubt and difficulty, may adjourn it for a reasonable time, in order to consider his final decision. The accused must also be examined, but not upon oath; and his examination also must be taken down in writing, and may be given in evidence against him at the trial; for although the maxim of the common law is "nemo tenebitur prodere seipsum," the legislature, as long ago as the year 1555, directed that, in cases of felony, the examination of the prisoner should be taken; which provision has recently been extended to misdemeanours also. Care must be taken that his examination should not even appear to have been taken on oath; for in a very recent case, in which all the examinations were contained upon one sheet of paper, and under one general heading—from which they all purported to have been taken upon oath, the prisoner's admission of his guilt contained in that examination, was excluded on the trial, and the rest of the evidence being slight, he was accordingly acquitted. Now, if upon the enquiry thus instituted, and thus conducted, it appears, either that no such crime was committed, or that the suspicion entertained against the accused is wholly groundless, or that, however positively accused, if the balance of testimony be strongly in favour of his innocence, it is the duty of the magistrate to discharge him. But if, on the other hand, the case seems to have been entirely made out, or even if it should appear probable, that the alleged crime has in fact been perpetrated by the defendant, he must either be committed to prison, there to he kept, in safe custody, until the sitting of the court before which the trial is to be heard; or, he may be allowed to give bail—that is, to put in securities for his appearance to answer the charge against him. In either of these alternatives, whether the accused be committed or held to bail, it is the duty of the magistrate to subscribe the examinations, and cause them to be delivered to the proper officer, at, or before, the opening of the court. Bail may be taken by two justices in cases of felony, and by one in cases of misdemeanour. In this stage of the proceedings, as the commitment is only for safe custody, whenever bail will answer the same intention, it ought to be taken, as in inferior crimes and misdemeanours; but in offences of a capital nature, such as the heinous crimes of treason, murder, and the like, no bail can be a security equivalent to the actual custody of the person. The nature of bail has been explained, by Mr Justice Blackstone, to be "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." To refuse, or even to delay bail to any person bailable, is an offence against the liberty of the subject, in any magistrate, by the common law. And the Court of Queen's Bench will grant a criminal information against the magistrate who improperly refuses bail in a case in which it ought to have been received. It is obviously of great importance, in order to ensure the appearance of the accused at the time and place of trial, that the sureties should be men of substance; reasonable notice of bail, in general twenty-four or forty-eight hours, may be ordered to be given to the prosecutor, in order that he may have time to examine into their sufficiency and responsibility. When the bail appear, evidence may be heard on oath, and they may themselves be examined on oath upon this point; if they do not appear to possess property to the amount required by the magistrates, they may be rejected, and others must be procured, or the defender must go to prison. Excessive bail must not be required; and, on the other hand, the magistrate, if he take insufficient bail, is liable to be fined, if the criminal do not appear to take his trial. When the securities are found, the bail enter into a recognizance, together with the accused, by which they acknowledge themselves bound to the Queen in the required sums, if the accused does not appear to take his trial, at the appointed time and place. This recognizance must be subscribed by the magistrates, and delivered with the examinations to the officer of the court in which the trial is to take place. With this, the preliminary proceedings close: the accused has had one opportunity of refuting the charge, or of clearing himself from the suspicion which has gathered round him; but as yet, there is no written accusation, no written statement of the offence which it is alleged he has committed. True, he has heard evidence—he has heard a charge made orally against him—but the law requires greater particularity than this before a man shall be put in peril upon a criminal accusation. The facts disclosed in the evidence before the magistrates must be put in a legal form; the offence must be clearly and accurately defined in writing, by which the accused may be informed what specific charge he is to answer, and from which he may be able to learn what liability he incurs; whether his life is put in peril, or whether he is in danger of transportation or of imprisonment, or merely of a pecuniary fine. This is done by means of the indictment. The indictment is a written accusation of one or more several persons, preferred to and presented upon oath by a grand jury. This written accusation, before being presented to the grand jury, is properly termed a "bill;" and, in ordinary cases, it is generally prepared by the clerk of the arraigns at the assizes, and by the clerk of the peace at the quarter sessions; but, in cases of difficulty, it is drawn by counsel. It consists of a formal technical statement of the offence, which is engrossed upon parchment, upon the back of which the names of the witnesses for the prosecution are indorsed. In England it is delivered to the crier of the court, by whom the witnesses are sworn to the truth of the evidence they are about to give before the grand jury. In the trial now pending in the Court of Queen's Bench in Ireland, a great question was raised as to whether a recent statute, which, on the ground of convenience, enabled grand juries in Ireland themselves to swear the witnesses, extended to trials before the Queen's Bench. This question was decided in the affirmative; therefore, in that country, the oath, in every case, must be administered by the grand jury themselves; whereas, in this country, the witnesses are sworn in court, and by the crier, as we have already mentioned. The grand jury, ever since the days of King Ethelred, must consist of twelve at least, and not more than twenty-three. In the superior courts they are generally drawn from the magistracy or superior classes of the community, being, as Mr Justice Blackstone expresses it, "usually gentlemen of the best figure in the county." They are duly sworn and instructed in the articles of their enquiry by the judge who presides upon the bench. They then withdraw, to sit and receive all bills which may be presented to them. When a bill is thus presented, the witnesses are generally called in the order in which their names appear upon the back of the bill. The grand jury is, at most, to hear evidence only on behalf of the prosecution; "for," says the learned commentator already quoted, "the finding of an indictment is only in the nature of an enquiry or accusation, which is afterwards to be tried and determined; and the grand jury are only to enquire upon their oaths, whether there be sufficient cause to call upon a party to answer it." They ought, however, to be fully persuaded of the truth of an indictment as far as the evidence goes, and not to rest satisfied with remote probabilities; for the form of