found that there is probable caufe to fufpect, that he is guilty of the crime laid to his charge, fuch court fhall recognize with fufficient furety fuch perfon, if the offence be bailable, to appear before the next court, that has jurifdiction of the offence, and for want of fufficient bail, to commit him to goal for the purpose aforefaid. But if the offence be of fuch a nature, as not to be bailable by law, then fuch offender must be committed to goal, to remain there till the feffion of the court that has power to try him. In the enquiry to be made by fingle minifters of justice, refpecting crimes, of which they have not ultimate jurifdiction, they have no power to examine the perfon accufed, respecting the facts charged against him, (tho juftices of the peace have fometimes done it through ignorance,) for we have not by statute introduced the practice of contravening the general maxim of the common law, that no one is bound to betray himself, and for that purpofe, fubjected the perfon accused to a perfonal examination, by which he may be entangled and perhaps convicted. Such examination is authorised in England by ftatute. But here the only enquiry which fuch fingle minifter of juftice can make, must be of the proper and legal witneffes, and the accufed has an opportunity of obviating their testimony, by adducing witneffes on his part and then upon fuch hearing, the authority has only power to decide whether there be that degree of proof, that probable fufpicion and prefumption of the guilt of the offender, that he ought to be fubjected to a trial before a court, having competent and conclufive jurifdiction. They ought in fuch cafes, to be equally cautious not to exercife their power of deciding on the profecution, as tho they had full and final cognizance and not to recognize perfons to higher courts, upon flight prefumptions and remote probabilities of guilt. Single minifters of juftice, nay in fome meafure be compared to grandjuries at common law, in handing forward profecutions. Single grandjurors must rest for their knowledge upon partial information, as they hold no regular enquiry. When a perfon is apprehended in confequence of a complaint made in this manner, it is reafonable that fome enquiry fhould be made, before he hould be holden to bail, or committed to goal, for the purpose of being fubjected to final trial. As this enquiry is made by affiftants and juftices of the peace, for this purpofe, it is proper that they fhould adopt the fame principles of judging, when they recognize a perfon to appear before a court of competent jurifdiction, as grand jurors when they find bills of indictment, When a warrant is iffued by the clerk of a court, by order of the court, upon the information of the attorney for the ftate, or prefentment of fome grandjuror, exhibited to them in feffion, and the offender is brought before the court, he has the fame privilege of bail, as in other cafes. In refpect of bail, our law determines that no man's perfon fhall be restrained, or imprifoned by any authority whatever, before the law has fentenced him thereto, if he can or will give fufficient fecurity, bail, or mainprife, for his appearance and good behaviour in the mean time, unless it be for capital crimes, contempts in open court, or in fuch cafes where fome exprefs law allows or or ders it. The confequence of this law is, that all offences are bailable, which are not capital. By express ftatute, the court having final jurifdiction, may bail in cafes of treafon. This law does not extend to cafes where imprifonment is inflicted, as a punifiment on the conviction of a crime. Courts ought not to require exceflive and unreasonable bail, but to proportion it according to the nature and aggravation of the offence. When a perfon fails to appear before court, or abide final judgment according to the tenor of his recognizance, it is forfeited, and on a fuit commenced thereon, the courts have a difcretionary power to chancer the bond to fuch fum as they judge reasonable, according to the circumstances of the safe. ARRAIGNME CHAPTER TWENTY-SECOND. OF ARRAIGNMENT. RRAIGNMENT is the calling the prifoner to the bar of the court, to answer the matter charged in the indictment or informaion. Arraignment is not necellary in all criminal profecutions, where where the punishment is fuch that it cannot be inflicted unless the prifoner be prefent, as in all capital cafes, or where corporal pun. Ashment must be inflicted, the prifoner must appear at the bar of the court, and plead and be arraigned in perfon: but where the crime admits of no corporal punishment, and nothing but a fine or pecuniary forfeiture is incurred, then he may appear and plead by atLorney. A perfon indicted or informed against, being in custody of the court, or being bailed and appearing for trial, upon motion of the attorney for the ftare, or without, if they think proper, the court direct the fheriff to fet him at the bar. The sheriff then puts the prifoner at the bar of the court, and by the humanity of our practice without fhackles or irons. The chief juftice then, before the prifoner is called upon to plead, afks the prifoner if he defires counsel, which if requested, is always granted, as a matter of course. On his naming counsel, the court will appoint or atfign them. If from any caufe, the prifoner decline to request or name counfel, and a trial is had, especially in the cafe of minors, the court will affign proper counfel. When counfel are affigned, the court will enquire of them, whether they have advifed with the prisoner, so that he is ready to plead, and if not, will allow them proper time for that purpofe. But it is ufually the cafe that the prifoner has previoufly employed and confulted counfel, and of courfe is prepared to plead. The prifoner is called upon by the clerk of the court by name, to hold up his hand but this is not abfolutely neceflary, for any art by which he acknowledges himself to be the perfon, will be fufficient, but if he dould by any act, wilfully refuse to acknowledge himself to be the perfon, the court may proceed on the arraignment. The clerk of the court reads to him the indictment or information, and then addreffes him in these words. "To this indistment, or information, what is your plea, guilty, or not guiltyOn this, the prifoner if he wishes to have a fair trial, may plead feveral pleas, which will be confidered in the next chapter; or he may confefs the truth of the whole indictment or information by pleading guilty, which faves a trial, and the court have nothing to da do but to render judgment according to law, or he may ftand mute and refuse to plead. • A prifoner is faid to stand mute, when being arraigned, he refufes to make any anfwer, or makes anfwers foreign to the purpofe, and not allowable, and will not anfwer otherwise, or having pleaded not guilty, refuses to put himself on the country for trial. If he fays nothing, the court are officially bound to empannel a jury, to enquire whether he ftands obftinately mute, or whether he be really dumb. If the latter is the cafe, the trial may be, as if he had pleaded not guilty, but whether on fuch a conviction, the peron could be executed is undetermined. By the common law, if a perfon is obftinately mute, in cafe of treafon, or petty larceny, or misdemefnors, it is in judgment of law, equivalent to conviction; but for other crimes, as murder, robbery, and the like, if he obftinately flood mute, he was fubjected to the dreadful fentence of penance, to be preffed and starved to death. In this ftate, if a prifoner fhould wilfully and obftinately stand mute, it would be deemed equivalent to the plea of not guilty, and the court would accordingly proceed to trial. By the common law, an acceffary cannot be arraigned, till the principal is convicted for it is an abfurdity to try a perfon as acceffory to a crime, when it never has been proved that the crime was committed and the principal may afterwards upon trial prove his innocence. In theft it is provided by flatute, that the concealer of the fact, and the receiver of ftolen goods, knowing them to be fuch, may be proceeded against as principal, tho the principal has not been tried. WHEN CHAPTER TWENTY-THIRD. OF PLEADINGS. HEN the prifoner is arraigned, and afked, what is his plea he has the privilege of five different pleas. 1. To the Jurifdiction. 2. In Abatement. 3. Demurrer. fine of not guilty. 4. In Bar and 5. General 1. A plea to the jurifdiction may be given, where a perfon is Eee . Hawk. P. C. 327. 4 Black. Com. 324. profecuted profecuted before fome court, that has not cognizance of the of fence as the indictment of a perfon before a court of common pleas for murder. The ftatute law has defined, and limitted the jurif diction of every court, and if a perfon is called upon to answer before a court that has not legal power to try him, he may take an exception to the jurifdiction, without anfwering to the offence. 2. A plea in abatement is principally offered for misnomer, or calling the prifoner by a wrong name, or mifdefcribing him. But this anfwers him little purpofc, for in his plea he muft give his true name, and defcription, and an information may be made cor.formable to it, or a new indictment prefented. So for, as certain defects in the information or procefs, which would be abateable in civil fuits, a plea in abatement might be offered. 3. Demurrer, as in civil cafes, is an acknowledgment of the truth of the facts charged in the indictment or information: but then the prifoner infifts that they do not amount to the crime alledged, or that fome material requifite in the indictment is omitted. We have already pointed out the requifites to conftitute good indictments and informations, and when they are defective in any fuch refpects, advantage may be taken of it on demurrer. If the technical words are omitted, as tratorioutly, in an indictment for treason, murdered with malice aforethought, in an indictment for murder, and the like, or if from the facts ftated, it appears that they do not amount to the crime charged, as an information for ftealing a dog, it will be ill on demurrer. In cafes of demurrer, where the offence is not capital, if the point be judged against the prifoner, he shall have judgment rendered against him without further trial. But in capital cafes, tho the point be judged againft him, he shall have liberty of trial by jury. Demurrers in criminal profecutions are rarely given, as the perfon may generally take the fame adva tage on the general ilue, or under a motion in arrest. 4. Pleas in bar, go to the merit of the profecution, and give a reafon why the prifoner ought not to anfwer, or put himself on trial for the crine alledged. A perfon may plead in bar to a profecution, a former acquittal, and aifu a former conviction: ba it must be on a profecution for the identical wit and crime. For 4 Black. Com. 335. the |