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.

The justices so convened shall be attended by the clerk Number and of the peace, and any four or more of them, who will power of exact, having examined the witnesses, as well for, as amining court against the prisoner, in his presence, for summoning which witnesses, on behalf of the prisoner, subpoenas 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 couvict 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 coun ty, 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 remo. Criminal sent ved by the sheriff to the public jail, and delivered to the for further 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 en

trial.

ter 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 give a warrant for the deliverance of the prisoner, and the 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 entitled 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 Venire facias. 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 treeholders 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 bystandars being freeholders within this commonwealth, 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 fourth 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

Capias.

Copy of indictment and

panel.

Trial,counsel

Bail, if not

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 chal- Challenge lenge, 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 be not forthcoming immediately, or so soon as 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. 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 giving bail in such penalty as they shall think reasonable, to appear before them at a day to be tried. 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 Witness for shall have determined that a prisoner ought to be tried prisoner. in the general court, shall deliver subpoenas for summoning his witnesses, to him or any person on his behalf, requiring them, returnable at the same me as the witnesses for the coinmonwealth shall be bound to appear, which subpoenas, the officers, to whom they shall be directed, shall obey; and the clerk of the general court shall cause subpoenas 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 safeguard of prisoners in

Guards.

tried.

Present.

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 prements, how sentment 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 than thirty days after judgment shall have been given against the prisoner. Criminal All such expences as shall be incurred by the apprecharges, how hension, commitment, examination, and removal of paid.

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 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 audi

tors.

CHAP. LVIII.

An act directing the method of trying Slaves charged with treason or filony.

From Rev

Bills of 1779,
IV.

Court for trial of slaves.

Must be una

I. BE it enacted by the General Assembly, That the justices of every county shall be justices of oyer and terminer for trying slaves charged with treason or felony: Which trials shall be by five at the least without juries upon legal evidence at such times as the sheriffs shall appoint, not being less than five nor more than ten days after the offenders shall have been committed to jail. No slave shall be condemned in any such case unless all of the justices sitting upon his ormous, to her trial shall agree in opinion that the prisoner is convict. guilty. Provided always, That when judgment of death shall be passed upon any such offender there shall be thirty days at least between the time of passing judgment and the day of execution, except in cases of ecution. conspiracy, insurrection, or rebellion. The value of a slave condemned to die, who shall suffer accordingly, Value, how or before execution of the sentence perish, to be esti- estimated and paid mated by the justices triers, shall be paid by the public to the owner. One being detained in slavery, and Slave suing having commenced an action to assert his freedom, for freedom," shall be prosecuted and tried for any such crime in the how tried. same manner as a free man ought to be prosecuted and

Time between Ser. tence and ex

tried. No person having interest in a slave shall sit Who may sit upon the trial of such slave.

on 'rial.

CHAP. LIX.

An act for reforming the method of proceeding in writs of right.

I. BE it enacted by the General Assembly, That for trial of disputed titles to lands in a more simple mode than that which hath most commonly been used VOL. XII. T 2

From Rev. Bills of 1779, ch. CV.

Writs of right

mode of proc.eding in.