of this improper practice; and the attention of the legislature having been called thereto, the Act 5 & 6 Vict., c. 38,(a) was passed, by which Justices in Quarter Sessions are restrained from trying cases of Treason: Murder:

Capital Felony or any other felony, which when committed by a person not prepreviously convicted of felony, is punishable by transportation beyond the seas for life:

Or any of the following offences; (that is to say), 1. Misprison of Treason:

2. Offences against the Queen's Title, Prerogative, Person, or Government, or against either house of Parliament:

3. Offences subject to the penalties of præ

munire:

4. Blasphemy, and offences against religion;
5. Administering or taking unlawful oaths:
6. Perjury and subornation of perjury:
7. Making or suborning any other person to
make a false oath, affirmation, or decla-
ration, punishable as perjury, or as a
misdemeanor:

8. Forgery:

9. Unlawfully and maliciously setting fire to crops of corn, grain, or pulse, or to any part of a wood, coppice, or plantation of trees, or to any heath, gorse, furze, or fern: 10. Bigamy, and offences against the laws relating to marriage :

11. Abduction of women and girls :

12. Endeavouring to conceal the birth of a child:

(a) This Act has not been adopted in this Colony. Its provisions are inserted in order to shew the distinction between the class of cases now usually transmitted for trial at the Courts of Quarter Sessions in England; and it is thought advisable that the Magistrates in this Colony should observe the same distinction.

13. Offences against any provision of the laws
relating to bankrupts and insolvents:
14. Composing, printing, or publishing, blas-
phemous, seditious, or defamatory libels:
15. Bribery:

16. Unlawful combinations and conspiracies,
except conspiracies to commit an offence,
which such Justices or Recorder respec-
tively, have or has jurisdiction to try
when committed by one person :

17. Stealing or fraudulently taking or injuring
or destroying records, or documents be-
longing to any Court of Law or Equity,
or relating to any proceeding therein :
18. Stealing or fraudulently destroying or con-
cealing wills or testamentary papers, or
any document or written instrument
being or containing evidence of the title.
to any real estate, or any interest in lands,
tenements, or heriditaments:

bound over by e

When it is determined to commit the prisoner Prosecutors and for trial, the prosecutor and witnesses must be witnesses to be bound over in proper recognizances (form in Act cognizances." No. 1, Schedule O. 1. p.p. 63, 64) to appear and give evidence thereon at the trial. The recognizance should particularly specify the profession, art, mystery, or trade of the person entering into it, together with his christian and surname, and the township, district, or place of his residence; and if his residence is in a city, town, or borough, it should also specify the name of the street, and the number (if any) of the house in which he resides, and whether he is the owner or tenant thereof, or only a lodger therein. (a)

for which they

With respect to the sum in which the prosecu- As to the amount tor and witnesses are to be bound by such recog- should be bound. nizances, this is left entirely to the discretion of the Magistrates. As a guide to the Magistrates of this Colony, amongst whom very different opinions upon this point obtain, it may be useful

(a) 11 & 12 Vict., c. 42, s. 20.

Mode of taking recognizance.

to state the usual practice in England. The prosecutor is there generally bound in the sum of £40 to appear and indict as well as give evidence; but if he be a man of considerable property, and appear, in any degree, an unwilling prosecutor, it would be prudent, if the case be one of importance, to bind him in a much larger sum, to insure his attendance; and it is entirely left to the descretion of the Magistrate. It is also usual in England, to bind over each witness in the sum of £10 to appear and give evidence; but where a witness is in good circumstances, more especially if he should be an unwilling witness, it would be expedient to increase the amount to become forfeited in case of his making default in his recognizance.(a)

On taking the recognizances, the clerk should enter the names and descriptions of the prosecutor and witnesses in a book kept for that purpose, with a proper heading, shewing the nature of the offence, &c., together with the sums for which they are respectively bound; which should be signed by the Magistrate, by way of minute of the recognizances taken; the formal record being Prosecutor's re- subsequently made out for signature by the Magistrate. Having so entered the names of the persons to be bound, the clerk should repeat the following form to the prosecutor:

cognizance.

"You, A. B., acknowledge to owe to our "Sovereign Lady the Queen, the sum

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of £40, to be made and levied of your "goods and chattels, lands and tenements, to the Queen's use, in case you "shall make default in the condition of this recognizance; which is that "" you shall appear at the next Sessions of the Supreme Criminal Court (or "Circuit Court, or Quarter Sessions, as the case may be) to be holden at (a) It is usual at the Sydney Police Office to take a recognizance both from the prosecutor and witnesses in the sum of forty pounds each.

be bound.

To which the prosecutor should answer "I am." May be commitIt may here be observed, that if the prosecutor ted if he refuse to hesitate to become bound, upon being required so to do by the Magistrate, he may be committed to gaol until he conform, or until the trial can be had.(a)

given.

It is directed by statute that every person be- Notice of recog coming bound in a recognizance before a Justice nizance to be of the Peace, must have a notice of such recognizance, with the particulars thereof, signed by such Justice, given to him at the time he becomes bound:(b) a form of which notice will be found in Schedule O 2, to Act No. 1, p. 64.

The several witnesses for the prosecution should be bound over in the same manner as the prosecutor; but instead of repeating the form of recognizance to each witness separately, it may be put as follows:

66

cognizance.

"You, A. B., C. D., and E. F., severally Witnesses' re-
acknowledge to owe to our Sovereign
Lady the Queen the sum of Ten Pounds
each, to be made and levied upon your
respective goods and chattels, lands
" and tenements, to the Queen's use, in
case any or either of you shall make

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66

default in the condition of this recog"nizance; which is, that you, and each of you, shall appear at the next Ses"sions of the Supreme Criminal Court, (or Circuit Court, or Quarter Ses"sions, as the case may be,) to be holden

(a) 2 Hawk. c. 8, s. 58, 4 Chit. Burn's Just. 121. (b) 11 & 12 Vict., c. 42, s. 20.

"at

May be commit

to be sworn.

of at the hour of ten o'clock "in the Forenoon, and then and there "give such evidence as you respectively "know, upon an indictment to be then "and there preferred against the pri66 soner, G. H., for the offence now charged against him, and not depart "without leave of the Court. Are you

severally content to be bound?" (a) The witnesses having assented to this recognizance, should each have a notice thereof delivered to him as before mentioned.

Should any witness refuse to enter into or ted if they refuse acknowledge the recognizance, the Magistrate may commit him(b) by warrant (form in Act No. 1, Schedule P. 1, p. 64) to the gaol of the place where the accused person is to be tried, to be imprisoned until after the trial, unless he in the meanwhile enters into the required recognizance. But if from any cause the Magistrate should not commit the accused person or hold him to bail, for the offence charged against him, he should issue an order for the liberation of the witness, in the form to Act No. 1, Schedule P 2, p. 65.

Where witnesses are minors or

married women.

If any of the witnesses should be minors or married women, it is customary to require the father or husband, or some other competent person, to become bound for them. And if such minors or married women are unable or unwilling to find sureties for their appearance at the trial, it seems to be the duty of Magistrates to commit them, and thus ensure their attendance. It has, however, been sometimes doubted whether a Magistrate can do more than require a witness's own recognizance under pain of imprisonment, although it would be merely a formal farce to take the recognizance of a married woman; and it is manifest that if Magistrates have not this (a) In practice in this Colony, only one recognizance is taken from the prosecutor and witnesses. (b) 11 & 12 Vict., c. 42, s. 20.