he could not have been convicted.-A R. N. having been obtained, 2 Haw. B. 2. c. 8. § 58. and c. 16. § 2. were cited to show that justices may commit those who refuse to be bound, if it appear that they can give material evidence. After argument, Ld. Ellenborough C. J. said, that the law intended that the witness should be forthcoming at all events, and it is a lenient mode which the statute provided to permit the witness to go at large upon his own recognizance. However, that is only one mode of accomplishing the end, which is, the due appearance of the witness; therefore, when that mode as well as the end is frustrated, as far as it can be, by the witness's refusal, it seems but reasonable that the justice should be warranted in committing, which is the only means left of securing the end.- Le Blanc J. said, the justice is not to commit by way of punishment, but in order that crimes may not go unpunished; he is to secure the appearance of the witness, who is to establish the delinquency, after he shall have been examined before him on oath. The statute has provided that the magistrate shall bind him by recognizance. If he had done more than was necessary to secure her appearance, it would have been bad; but in this instance he has done no more than was necessary for that purpose.—Dampier J. said, The power of commitment is absolutely necessary to the existence of the stat. of Ph. & M., for unless there were such a power, every person would of course refuse to enter into a recognizance, and the magistrate could not compel him; and then, if he could further avoid being served with a subpoena, the party delinquent might escape unpunished. This consideration, coupled with Ld. Hale's judgment, founded on the practice, seems to me sufficient to establish the power. Rule absolute. But a justice of the peace is not authorised 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. So held per Graham B., Bodmin Sum. Ass. 1817. MS. At Somersetshire Sum. Ass. 1817, it appeared that two poor women, witnesses in trifling cases, had been imprisoned nine months on account of the prevalence of a malignant fever in Ilchester gaol, which prevented the prisoners from being sent for trial in the spring to Taunton gaol. The practice of committing witnesses unable to find sureties for their appearance is clearly repugnant to every principle of the English law. And at the Sum. Ass. 1821, for the same county, Mr. Baron Graham, in his charge to the grand jury, expressed in the strongest terms his disapprobation, at finding that a boy of only eleven years of age had been sent to gaol and kept there till the assizes, for want of sureties to appear as a witness to give evidence against a man committed upon a charge of felony. He had not expected to meet with such an instance in this country in the present enlightened age; it resembled the barbarous practice of days long since gone by. When witnesses had given their depositions, it was the duty of magistrates to bind them over to appear at the assizes or sessions to give evidence against the prisoner; and per Illegality of committal of a witness for want of sureties to appear to give evidence. Custody of depositions. Parul evidence of, when lost or destroyed. Recognizance to prosecute. 44 G. 3. c. 102. Habeas corpus for witnesses. An attorney has no right to be present at examination of persons charged with felony. haps, in some cases, they might be justified in requiring sureties from the witness. But if a poor man or woman, not resident at or near the place, should be a necessary witness, it was too much to require sureties, and in default thereof to commit them: the magistrate's duty was to bind them over to appear on their own recognizance, and not to ask impossibilities. But to send an innocent child, only eleven years old, to gaol for three months, because he could not obtain two responsible persons to be bound for his appearance to give evidence, was most unjustifiable; it was inflicting upon him, considering his tender age, by an imprisonment of three summer months, a greater punishment than the culprit himself would, if convicted, receive. In Italy, it was true, this practice prevailed of old; but what was the consequence? When assassinations and the most atrocious crimes were openly committed in their streets, persons present and eye-witnesses, instead of preventing or appearing against the criminals, ran away and hid themselves, because in that country the witnesses were sent to prison together with the accused, to secure their attendance at the trials. He could not refrain from making these animadversions on this practice, which he trusted would never again occur. In an action for maliciously, and without probable cause, charging plaintiff with an assault before a magistrate, the magis trate proved that the depositions taken before him were reduced into writing, and that he delivered them at the court of quarter sessions to the clerk of the peace, or his deputy. The clerk of the peace stated that a bill of indictment for the assault was preferred, and that the grand jury returned ignoramus, and that it was usual, in such case, to throw away or destroy the depositions; that he had searched among his papers, and could not find them. Held, that parol evidence of their contents was admissible, and that it was not necessary to call the deputy clerk of the peace to shew that the original depositions were not in his possession, inasmuch as it was his duty,, if he had received them, to have delivered them to his principal; and not being in his custody, it was to be presumed that they were lost or destroyed. Freeman v. Arkell, M. 4 G. 4., 2 B. & C. 494. The parties grieved ought to be bound, not only to give evidence, but also to prefer a bill of indictment against the prisoner. Dalt. c. 164. By stat. 44 G. 3. c. 102., any judge of the superior courts in England or Ireland, and of great session in Wales, and the county palatine of Chester, may award writs of habeas for bringing prisoners before courts of record to be examined as witnesses. See antè, tit. Bail, fix. corpus, An attorney has no right to be present during the investigation of a charge of felony before a magistrate. R. v. Borron, esq. H. 60 G. 3. & 1 G. 4., 3 B. & A. 432. Cox, gent. one, &c. v. Coleridge, esq. and another, M. 1822, 1 B. & C. 37. A prisoner when examined before magistrates on a charge of felony is not entitled as of right to have a person skilled in the law present as an advocate on his behalf, it being a preliminary investigation only, and not conclusive upon him. See tit. Justices of the Peace, § 5. A. The Examination of a Person charged with Felony. County of THE examination of A. O., of of -, labourer, taken before me, J. P. esquire, one of his majesty's to wit. justices of the peace, acting in and for the said county [or, in the case of bail, taken before us two of his majesty's justices of the peace acting in and for the said county, one of us being of the quorum], the in the year day of of our Lord one thousand eight hundred and day of spoon of the value of ten shillings, the Upon his examination now taken before me [or, us] saith ind} A. O. It is recommended that the justice, or his clerk, do take the examinations of persons accused in the first person, and in the identical words and expressions used by the prisoner. See antè, p. 199. and 1 Phill. Ev. 106. B. The Examination of a Witness against a Person charged with Felony. County of THE examination of A. I., of — to wit. day of •, yeoman, taken on oath this " in the pre the peace acting in and for the said county of day of in the said instant, one silver spoon of the value of ten shillings, the property of the said A. I. This deponent saith, On the day of the present month of A. B. I (a) saw the silver spoon now produced in the possession of (a) See antè, the prisoner A. O. [or, as the case may be]. Taken and sworn before me the day and year above mentioned. The plain and obvious meaning of the words spoken by the witness ought to be taken down, and not merely the result of the evidence. Vide 1 Phill. Ev. 106. C. Recognizance to prefer a Bill of Indictment, and give Evidence. County of BE it remembered, that on the 9 in the A.I., of day of year of the reign of to wit. , in the said county, yeoman, personally came before me, H. C., doctor of laws, one of the justices of our said lord the king assigned to keep the peace in the said county, and acknowledged himself to owe to our said lord the king the sum of· -, of good and lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, if he the said A. I. shall fail in the condition indorsed. H. C. C. D. E. The condition of the within-written recognizance is such, that whereas one A. O., late of- -, was this present day brought before the justice within mentioned by the within-bounden A. I., and was by him charged with the felonious taking and carrying away of the goods of him the said A. I., and thereupon was committed by the said justice to the common gaol in and for the said county; if, therefore, he the said A. I. shall and do, at the next general quarter sessions of the peace [or, gaol delivery] to be holden in and for the said county, prefer, or cause to be preferred, one bill of indictment of the said felony against the said A. O., and shall then also give evidence there concerning the same, as well to the jurors that shall then inquire of the said felony, as also to them that shall pass upon the trial of the said A. O., that then the said recognizance to be void, or else to stand in full force for the king. D. Recognizance to give Evidence. County of BE it remembered, that on the to wit. B in the A. W., of day of year of the reign of in the said county, yeo man, did come before me, H. C., doctor of laws, one of the justices of our said lord the king assigned to keep the peace in the said county, and did acknowledge himself to owe to our said lord the king the sum of ten pounds of lawful money of Great Britain, to be made and levied of his goods and chattels, lands and tenements, to the use of our said lord the king, his heirs and successors, if he the said A. W. shall fail in the condition hereon indorsed [or, underwritten, as the case may be]. The condition of the within-written [or, above-written] recognizance is such, that if the within [or, above-bounden] A. W. shall personally appear at the next general quarter sessions of the peace, [or, gaol delivery] to be holden at in and for the said county, and then and there give such evidence as he knoweth, upon a bill of indictment to be exhibited by A. I., of to the grand jury, against A. O. late of feloniously stealing -, yeoman, labourer, for the property of the said A. I.; and in case the said bill be found a true bill, then, if the said A. W. shall then and there give evidence to the jurors that shall pass on the trial of the said A. O., upon the said bill of indictment, and not depart thence without leave of the court; then this recognizance to be void, or else remain in its full force. E. Summons of a Witness. WHEREAS information hath been made before me, J. P. esquire, , at the hour of in the the day, to testify his knowledge concerning the premises. you not. Given under my hand and seal, the year of the reign of — day of noon of the same Herein fail day of — Exchequer Bills. See Larceny, Execution. WHERE a person attainted hath been at large after his attainder, Question of and afterwards is brought into court and demanded why identity after execution should not be awarded against him, if he deny that he attainder. is the same person, it shall immediately be tried by a jury returned for that purpose. 2 Haw. c. 51. § 3. — Vid. Ratcliff's case, Fost. 40, 41. 1 Bla. R. 3. S. C.; but see Lord Kenyon's observations in this case in Duberley v. Gunning, Peake's C. N. P. 98. The court may command execution to be done, without any writ. 2 Haw. c. 51. § 4. In fixed and stated judgments, the law makes no distinction between a peer and a commoner, or between a common and ordinary case, and one attended with extraordinary circumstances; for which reason it was adjudged in Felton's case, who murdered the duke of Buckingham, that the court could not order his hand to be cut off, nor make it part of the sentence that his body should be hanged in chains, but that the body after execution, being at the king's disposal, might be hung in chains, or otherwise ordered, as the king should think fit. 2 Haw. c. 48. § 2. No writ necessary for execution. No change of punishment legal. An execution cannot be lawfully executed by any but the pro- Proper officers per officer. 2 Haw. c. 51. §6. 2 Hale, 411. It must be done pursuant to the judgment, and cannot be altered by the king, as from beheading to hanging. Hale's Sum. 272. 2 Hale, 411. But the king may pardon part of the execution; as in treason he may pardon all but the beheading. Hale's Sum. 272. 2 Hale, 412. He may alleviate, but not aggravate, punishment beyond the intention of the law. Fost. 269. It is clear that if a man, condemned to be hanged, come to life after he be hanged, he ought to be hanged again; for the judgment was not executed till he was dead. 2 Haw. c. 51. §7. For execution in cases of Murder, see Homicide, s. v. alone can The king cannot change punishment. He may pardon, but cannot aggravate it. Person restored from hanging must be reexecuted. Extortion. [Stats. 3 Ed. 1. c. 26.-31 El. c. 5. — 55 G. 3. c. 50.] IT is said that extortion, in a large sense, signifies any oppression Definition. under colour of right; but that in a strict sense it signifies the 3 Ed. 1. c. 26, taking of money, by any officer, by colour of his office, either where none at all is due, or not so much is due, or where it is not yet due. 1 Haw. c. 68. § 1. And by stat. 3 Ed. 1. c. 26. (which is only in affirmance of the common law), No sheriff, nor other the king's officer, shall take any reward to do his office, but shall be paid of that which they take of the king; and he that so doth shall yield twice as much, and shall be punished at the king's pleasure. No sheriff nor other the king's officer.] Under these words, the All public law beginning with the sheriffs, are understood escheators, coro- officers. ners, bailiffs, gaolers, and other inferior officers of the king, whose offices were instituted before the making of this act, which do |