not obeyed, and no just excuse is offered for the neglect or refusal, then the justice may issue under his hand and seal a warrant to arrest and bring the witness before him. Or this warrant may be issued in the first instance without a previous summons, if the justice be satisfied on oath that the witness will not otherwise attend.1 If the witness when so arrested, or when attending, shall refuse to be examined without giving any just excuse, the justice may, by warrant under his hand and seal, commit such witness to prison, there to remain for a period not exceeding seven days, unless in the meantime he consent to be examined.2 The length of the imprisonment is thus defined by statute. Moreover when a witness has given evidence before justices on a preliminary hearing, as to the guilt of a person who is charged with an indictable offence, a usual mode of compelling the attendance of such witness at the next stage of the proceeding is for the justices to require him to enter into a recognisance. This recognisance is a bond, whereby the recognisor declares that he owes to the queen a certain sum of money, if he fail to appear and give evidence at the time and place specified in the condition.3 This power of justices to bind over witnesses in criminal cases by recognisance was conferred by a statute of Philip and Mary, and is a useful part of the procedure. The power to compel the witnesses to enter into such a recognisance is thus expressly conferred on all justices of the peace, before whom a preliminary hearing of a charge for an indictable offence takes place.5 And it enables justices to bind the witnesses to appear, not only at quarter sessions and assizes, but also at a trial in the High Court. And coroners have the same power, when an indictment for murder or manslaughter follows on the verdict of the coroner's jury. And if the witness refuses to be bound over, that is to say, to enter into this recognisance, then he may be committed to the common gaol, or house of correction, where he is to remain till after the trial of the accused party, unless in the meantime he duly enter into the recognisance, or unless the accused party is not com C. 11 & 12 Vic. c. 42, § 16. 2 Ibid. 1 & 2 Ph. & M. c. 13; 2 & 3 Ph. & M. c. 10. 42, § 20. 6 R. v Eyre, L. R., 3 Q. B. 487. 3 Ibid., Sch. O. 1. 5 11 & 12 Vic. 7 7 Geo. IV. c. 64, § 4. Imitted for trial.1 Hale and others went the length of saying that such a power as this of binding over witnesses was inherent in the very office of justices of the peace, being necessarily implied in their commission as well as the statutes of Philip and Mary.2 The ground indeed put forward has been, that a witness must ex necessitate be kept in hand by some one for the purpose of trial.3 Married women are also required to enter into their own recognisance, and an expressed determination not to attend is sufficient to justify their committal until the trial. And an infant's recognisance, with or without sureties, is also obligatory.5 But in no case is it compulsory for a witness to find sureties to enter into such a recognisance, since a person, from no fault of his own, may be utterly unable to find sureties. Hence, a justice is not justified in committing a witness merely on the ground that he offers his own recognisance, but not the recognisance of any other persons as sureties. The way in which a recognisance is enforced, is by estreating it in the event of the recognisor not fulfilling the condition by attending at the time and place specified. This will not however be done until the recognisor has had an opportunity of showing cause or explaining the reason of his absence; and unless the judges of the court, before which the trial was to take place, authorise the estreat. The effect of estreating the recognisance is, that a writ is sent to the sheriff to levy the sum on the goods of the recognisor, and, if enough cannot be found, then to imprison him till the sum be paid." Where witnesses are compelled to attend before justices in the preliminary examinations of prisoners charged with indictable offences, though such witnesses cannot insist beforehand on expenses, except such as are absolutely necessary for travelling, they are afterwards reimbursed and paid a sum for trouble and loss of time on charges of felony, and most of the charges for misdemeanours; but this was only provided for by a very recent statute.8 Justices enforcing attendance of witnesses at petty sessions. & S. 1. 4 Ibid. 1 11 & 12 Vic. c. 42, § 20. 2 2 Hale, P. C. 282; Crompt. 125; Dalt. c. 168. 3 See Bennet v Watson, 3 M. 5 Ex p. Williams, 13 Price, 673; McClell. 493. 12 A. & E. 59. 7 22 & 23 Vic. c. 21, § 32. 6 Evans v Rees, 8 29 & 30 Vic. -The power of justices over witnesses is equally necessary to them in the exercise of their summary jurisdiction. When justices exercise their jurisdiction in petty sessions with reference to offences punished summarily, and with reference to orders made by them, they can summon witnesses to attend and direct their arrest and imprisonment in the same manner as on charges for indictable offences; with this difference, that a warrant to apprehend a witness will not be issued, unless it be shown that a reasonable sum for his costs and expenses had been tendered.1 Though the attendance of witnesses is enforceable in aid of nearly all the miscellaneous duties of justices in reference to convictions and orders, yet a few special subjects are dealt with under other statutes, as the Bastardy Acts, the Customs and Excise Acts, the Poor Removal Acts. In these instances similar powers are given, but the power to apprehend the witness by warrant is not given in all cases, and instead thereof he is merely liable to be fined a fixed sum.2 Protection of witness from arrest during compulsory attendance.- -As the attendance of a witness is a compulsory duty, the law endeavours to make that duty less irksome by throwing some protection around the witness when so engaged. This protection proved to be of no small consequence when the rule was, that persons could be arrested as a matter of course, and at any hour of the day, for debt; but, now that that rule is abolished, there is small occasion for the same indulgence. Nevertheless, sometimes this immunity of a witness may still be required in exceptional cases. The law was and still is, that a witness cannot be arrested on civil process of any kind while he is discharging his duty as a witness, that is to say, eundo, morando, redeundo; and whether he attend voluntarily or compulsorily, it makes no difference in respect of this protection.3 In 1 11 & 12 Vic. c. 43, § 7. If the witness is not within the county, or is in Scotland, Ireland, or the Channel Islands, the warrant, after being indorsed by the judge or justice of the jurisdiction within which he is found, may be executed. This applies to indictable offences also.—11 & 12 Vic. c. 42, §§ 11-16; lbid. c. 43, §§ 3, 7. 2 A fine of twenty pounds for refusing to give evidence is the utmost punishment by the Customs Act.-39 & 40 Vic. c. 36, § 228. A fine of ten pounds for not attending the Inclosure Commissioners. -8 & 9 Vic. 118, § 9. 3 Meekins v Smith, 1 H, Bl. 636. 3 ancient times a writ of protection was obtained to secure the witness from this molestation.1 But latterly the courts themselves assumed to take judicial cognisance of this immunity, which naturally arose out of the compulsory discharge of a public duty, and they on motion interfered at once to enforce due attention to so cardinal a rule of procedure. Thus a reasonable time was allowed for the return of the witness from the court to his home.2 And a slight deviation from the direct road was no reason for losing the privilege, for bailiffs were told by the court not to dodge their victim too closely. Accordingly, whenever a witness was unlawfully arrested in these circumstances, the court, when the suit was depending in a superior court, or the court out of which the process issued, would on application discharge him; or he might be released by a writ of habeas corpus. This privilege of the witness from being arrested was, however, never extended to protect him from criminal process, and thus practically was only a shield against creditors. And as a consequence of such a rule, considerable difficulty has existed in distinguishing what was criminal process. It was deemed however a privilege conferred for the advancement of justice, and therefore was not waived by the conduct of the party, and yet it was discretionary in the court to give effect to it. And no action could be brought against the sheriff or his officer for a mistake, even though they had knowledge of the circumstances: the only remedy against these being an attachment. 4 6 Compulsory office of sheriff-The office of sheriff, besides his other functions, is so closely connected with the administration of justice, that it is scarcely possible to try a cause, civil or criminal, or to execute a judgment and reap the fruits, unless he is ready to act. It is through him that all processes to arrest the person and seize the goods or the lands of a defaulting judgment debtor must go. He takes charge of prisoners, and summons jurors. to their duties. He is the right arm of the law, which 2 Randall 1 13 Rich. II. c. 16. Gurney, 3 B. & Ald. 255. Strong Dickenson, 1 M. & W. 491; Pitt v Coombes, 5 B. & Ad. 1078. 4 Ex p. Tillotson, 1 Stark. R. 470. 5 Re Douglas, 3 Q. B. 837. 6 Kimpton v L. & N. W. R. Co., 9 Exch. 766. 7 Anon. 1 Dowl. 158; Magnay v Burt, 5 Q. B. 393. is powerless, unless its decisions can be carried into effect through his officers. It is through him that for five hundred years the posse comitatus has been brought to aid in subduing tumults and in enforcement of all legal process, whenever numbers are required to overawe the unruly and compel submission.1 William the Conqueror, after a conspiracy in 1074, governed the provinces through sheriffs dependent on himself.2 And Magna Charta recognised the sheriff as an officer of the king,3 and from Henry II. to Magna Charta limits were put successively on his judicial powers. In 1259 he was selected from a list of four good men chosen in the county courts, and in 1262 the barons jealously guarded this right against the king; and under Edward I. it was contended that to elect to this office was an ancient popular right. At first one sheriff used to act for two counties in a few cases, but one was afterwards appointed for each.5 6 4 7 Qualification of sheriff-By statutes of early date it was settled, that none shall be a sheriff who has not sufficient land within the shire to answer the king and his people. And it was always, or at least at an early period, taken for granted, that this office was a necessity of civil government, and that each should take the burden of it in turn. Hence an act of parliament is required to exempt from the office; or some occupation incompatible with such service, as for example that of a practising solicitor or barrister.8 It was found indeed inconvenient, that he should act as a justice of the peace, for in many respects his office requires him to carry out their decisions; and he was prohibited by statute in 1553 from acting as such justice during his year of office.9 And this applies to general county as well as criminal business.10 But when he happens to be a militia officer, he is expressly excused by statute from acting as sheriff during the time the 2 1 Stubbs, C. H. 270. 12 Hallam, Const. H. 133. 3 Mag. Charta, c. 24. 4 2 Stubbs, Const. H. 86, 207. 5 8 Eliz. c. 16. c. 9; 5 Ed. III. 7 E. Shrewsbury's 8 M. Norwich 10 Ex p. Colville, 6 25 Ed. I. st. 3, c. 13; 2 Ed. III. c. 4; 4 Ed. III. 45 L. J., M. C. 108. |