103. A Bill Directing the Method of Proceeding against, and Trying Free Persons Charged with Certain Crimes
Be it enacted by the General Assembly, that any free person, brought before a Justice of the Peace of a county, and, by the testimony of another free person, charged with treason, or felony, done in such county,1 shall be committed to jail, by warrant of such Justice, who shall by his precept, order the sheriff to summon the other Justices to meet, in the court-house, at an appointed time, not more than ten, nor less than five days after the commitment; and shall take the recognizance of witnesses, to appear before the said Justices, at that time and place. If the offence shall have been done in another county, the Justice shall, by his warrant, cause the prisoner to be put into the custody of a constable,2 to be by him conveyed to the next constable, and so from constable to constable,3 every one of which constables, whilst he shall officiate in execution of this act, may impress so many men, horses, and boats, as shall be necessary for the safe-guard and conveyance of the prisoner, into such other county, and there brought before some Justice thereof, who shall proceed in like manner as if the offender had been brought before him in the first instance.4 The Justices, so convened, shall be attended by the clerk of the peace, and any four, or more of them, who will act, having examined the witnesses, as well for, as against the prisoner, in his presence, for summoning which witnesses, on behalf of the prisoner, subpœnas shall be delivered to him, or any other for him, desiring them, by the clerk of the peace, and heard his defence, if, in their opinion, the evidence be not sufficient to convict him, shall enlarge him. If it seem to them, that the evidence is sufficient to convict the prisoner, but that the offence is cognizable by the court of the county, they shall take the recognizance of the prisoner, with surety, in such sum as they think proper, to appear before such court, at the next session, in which there will be a grand jury for the same county, or, if he do not give such surety, shall remand him to jail, there to remain until such session, or until he shall enter into the recognizance, with surety before any one of the said Justices, who shall return it to the clerk of the peace. If they shall think the offence cognizable by the General Court only, remanding the prisoner to jail, from whence he shall, by mittimus of two of them, be removed by the sheriff to the public jail, and delivered to the keeper thereof, or, if they think him bailable, admitting him to bail, the Justices shall take the recognizance of the witnesses to appear before the General Court, on the first day of the next term, and, causing the examinations of the witnesses to be taken in writing, shall order them, together with the recognizances, both of the prisoner, if there be any, and of the witnesses, to be transmitted by the clerk of the peace to the clerk of the General Court; and the two Justices, who give the mittimus, when there shall be one, may, by their warrant, empower the sheriff to impress so many men, horses, and boats, in all places he shall pass through, as shall be necessary for the safeguard and conveyance of the prisoner; to which warrant all persons shall yield obedience, and in execution whereof the officer shall proceed as the law directs, in other cases, wherein impressments are authorised. If the Justices shall be of opinion, that the prisoner may be bailed, and shall enter that opinion in their proceedings, and also the sums of money in which he and his bail ought to be bound, he may be bailed, either by them, or by any Justice of the same county, or by any Judge of the General Court, who shall transmit the recognizance to the clerk of the General Court, and grant a warrant for the deliverance of the prisoner; and that warrant being put into the hands of the officer in whose custody the prisoner shall be, he shall thereupon be delivered, if he be detained for no other cause. Any two Judges of the General Court, when it is not sitting, may admit to bail a prisoner, whom they shall think intitled thereto, and grant a warrant for his deliverance, notwithstanding the Justices before whom the examination was, shall have been of a different opinion. When the Justices shall have determined, that a prisoner ought to be tried for an offence, in the General Court, the clerk of the peace shall issue a writ of venire facias, to be directed to the sheriff, commanding him to cause twelve good and lawful men, freeholders of his county, of the neighbourhood of the place where the fact shall have been committed, to come before the Justices of the General Court, at the time the witnesses shall be bound to appear there; which writ shall be executed by the said sheriff; and the freeholders, summoned by virtue thereof, or such of them as appear, and be not challenged, together with so many other good and lawful men of the by-standers5 as will make the number twelve, or, if the whole array be challenged, twelve of such bystanders, shall be a lawful jury for the trial of the prisoner. After any man shall be indicted of treason, or felony, if he be not already in custody, the sheriff shall be commanded to attach his body, by writ, or by precept, which is called a capias, and if he return, that the body is not found, another writ or precept of capias shall be immediately made, returnable forthwith, in which the sheriff shall be also commanded to seize his chattels, and safely to keep them; and if he return, that the body is not found, and the indictee cometh not, an exigent shall be awarded, and the chattels shall be forfeited; but if he come, and yield himself, or he be taken, before the return of the second capias, the goods and chattels shall be saved. And in all trials for such offences, the prisoner shall have a copy of the indictment, and of the panel of the jurors, who are to try him, whensoever he shall require it before trial or sentence. And when any of the panel shall be challenged by the Attorney for the commonwealth, he shall assign the cause of his challenge, which shall be enquired of according to law. When the grand jury shall have presented, to the General Court, any bill of indictment against one charged with treason, or felony, the court shall cause the offender, if he be6 forth-coming, immediately, or so soon as conveniently7 may be, to be arraigned and tried the same term, unless they see good cause to adjourn the trial to the next, and shall allow him counsel to assist him at his trial, if he desire it. Written examinations of witnesses, taken by virtue of commissions, which may be issued by the clerk of the peace, or the clerk of the General Court, on behalf of the commonwealth, or the person charged with treason, or felony, may be read in evidence upon his trial, in the like cases as the examinations, taken by such commissions, may be read on trial of an issue between party and party in the General Court.8 When any prisoner, committed for treason or felony, and applying to the General Court, by petition, or motion, the first day of the term, shall desire to be brought to his trial before the end thereof, and shall not be indicted in that term, unless it appear, by affidavit, that the witnesses against him cannot be produced in time, the court shall set him at liberty, upon his given bail, in such penalty as they shall think reasonable, to appear before them at a day, to be appointed, of the succeeding term; and he, and every other person, charged with such crime, who shall not be indicted before, or at the second term after he shall have been committed, unless the attendance of the witnesses against him appears to have been prevented by himself, shall be discharged from his imprisonment, if he be detained for that cause only; and if he be not tried at or before the third term, after his examination before the Justices, shall be forever discharged of the crime. The clerk of the peace, when the Justices of his county shall have determined that a prisoner ought to be tried in the General Court, shall deliver subpœnas for summoning his witnesses, to him, or any person on his behalf, requiring them, returnable at the same time as the witnesses for the commonwealth shall be bound to appear; which subpœnas the officers to whom they shall be directed shall obey; and the clerk of the General Court shall cause subpœnas, for the same purpose, and at the like request, to be delivered to the prisoner, or his agent; and the witnesses for the prisoner shall be examined, upon oath, in the same manner as other witnesses. The keeper of the public jail, by warrant of any two Justices of his county, may impress so many men to attend him for the safe-guard of prisoners in his custody, and during such time as shall be mentioned in the warrant, so as no one of them be compelled to attend more than one day in a week; the charge whereof shall be defrayed by the public. In a presentment to the county court, if the penalty of the offence exceed not thirty shillings, or three hundred pounds of tobacco, or, to the General Court, if the penalty exceed not five pounds of current money, or one thousand pounds of tobacco, no information thereupon shall be filed, but a summons shall be issued against the defendant to answer the presentment, and, such summons having been served upon him, or a copy thereof having been left at the place of his usual abode, where the prosecution shall be in the county court, at least ten days before the return day, if he do not appear, judgment shall be entered against him for the penalty; and if he do appear, the court shall, in a summary way, without a jury, hear and determine the matter of the presentment, in the form in which it shall have been made, and give judgment thereupon, according to law, and the very right of the cause, disregarding any exception that may or might be taken to the form of the presentment. Execution of a sentence of death shall not be done in less time than thirty days after judgment shall have been given against the prisoner. All such expences as shall be incurred by the apprehension, committment, examination, and removal of offenders, triable in the General Court only, shall be defrayed by the county wherein the matter shall have been transacted, and reimbursed by the public. The clerk of the General Court shall enter in books, to be kept for that particular purpose, the names of jurors, attending for the trials of prisoners, and the names of witnesses, appearing on behalf of the commonwealth, against them, with accounts of the days they shall have attended, and certify such entries to the Board of Auditors.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 75–7. MS (ViU); clerk’s copy. Text of Act as adopted in 1786 is in Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 340–4.
Bill presented by Madison 31 Oct. 1785, read twice, and on 14 Dec. postponed to next session; it was brought up again on 1 Nov., passed by the House on 27 Nov., amended by the Senate, and on 19 Dec. the Senate amendments were agreed to by the House (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 62, 102, 107, 150). Except as noted below, the text of the Act as adopted agrees with that of the Bill as proposed by the Committee of Revisors. Enforcement of Act was suspended until 1 July 1787 (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends xii, 410–11).
1. The Act adds here and at other corresponding points in the text: “or corporation.”
2. The Act reads “sheriff” for “constable” at this and corresponding points in the text.
3. Instead of the words “to be by him … to constable” the Act has the following: “to be by him conveyed to the county or corporation where the offence was committed.”
4. The Act includes at this point a clause allowing the sheriff “the same fee per mile for such service as is allowed to sheriffs for removing criminals from a county to the public jail, to be levied and paid by the county wherein the service was performed, and repaid by the public.”
5. The Act adds the following at this point: “being freeholders within this commonwealth.”
6. The Act reads: “not forthcoming”; MS (ViU) agrees with Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends in giving the correct reading.
7. The word “conveniently” is not in the Act.
8. This sentence is not in the Act.