liable to an attachment; (1) or, secondly, the justice or coroner, who takes the information of witnesses, may, at the time of taking it, or at any time before the trial, bind them over to Recognizance. appear, and, if they refuse to come or to be bound over, may commit them for a contempt. (2) This proceeding by recognizance is the ordinary and more effectual method. In prosecutions for misdemeanors the defendant has been, Subpoena for from the earliest times, allowed the writ of subpoena. But prisoner. prisoners have no right, by the common law, to this process in capital cases, without the special order of the court. (2) Formerly, in such cases, a prisoner was put upon his trial under a twofold disadvantage; he was unable to compel the attendance of witnesses, and, if they voluntarily attended, their evidence, not being given on oath, received less credit than the evidence on the part of the prosecution. (a) By stat. 7 W. 3, c. 3, s. 7, 7 W. 3, c. 3. all persons indicted for any high treason, whereby corruption of blood may ensue, shall have the like process of the Court, where they shall be tried, to compel their witnesses to appear for them, as is usually granted to compel witnesses to appear against them. And now, as the stat. 1 Ann. st. 1, c. 9, s. 3, 1 Ann. st. 1, enacts, that all witnesses, on behalf of a prisoner on a trial for c. 9. treason or felony, shall be sworn in the same manner as witnesses for the crown, and be liable to all the penalties of perjury, process of subpœna may be taken out by the prisoner in any case whatever. In order to provide for the appearance of witnesses, to answer in cases where warrants are not usually issued, and to give (1) Rex v. Ring, 8 T. R. 585. The subpoena in this case issued from the crown-office, requiring the witness to appear at the ensuing assizes in the country; and the Court of K. B. granted an attach ment. Disobedience to a subpoena (2) 4 Blac. Com. 359. 2 Hawk. (a) Many instances occur among the early State Trials, of witnesses refusing to come into Court to be examined on behalf of the accused; and there are some, in which witnesses have been peremptorily sent out of Court by the judge, and not allowed to give evidence. evidence in criminal prosecutions in any part of the United 45 G. 3, c. 92. Kingdom, it is enacted by a late act of parliament, stat. 45 G. 3, c. 92, s. 3, and s. 4, that the service of a writ of subpoena or other process, in any one of the parts of the United Kingdom, shall be as effectual to compel his appearance in any other of the parts of the same, as if the process had been served in that part where the person is required to appear. And if the person served does not appear, the Court, out of which the process issued, may transmit a certificate of the default in the manner specified by the act, and the Court, (1) to which the certificate is transmitted, may punish the person for his default, as if he had refused to appear to process issuing out of that Court; provided it appear, that a reasonable and sufficient sum of money, to defray the expenses of coming and attending to give evidence and of returning, was tendered to the person making default, at the time when the subpoena or other process was served upon him. Compensation. Costs in felo nies. 27 G. 2, c. 3. In civil proceedings, as we have seen, a witness is not obliged to attend or give evidence, unless his expenses are duly tendered; but, in criminal prosecutions, witnesses are bound to appear unconditionally. (2) On the other hand, it is reasonable and highly expedient, that, when they attend on behalf of the public, a fair compensation should be given them for their trouble and necessary expense. Formerly, however, the law provided no means for reimbursing them; a defect in our judicial administration, which was at length remedied by stat. 27 G. 2, c. 3, s. 3. This statute enacts, that "when any poor person shall appear on recognizance to give evidence against another accused of grand or petit larceny or other felony, the Court may, on the oath of such person, and on consideration of his circumstances, in open Court order the treasurer of the county or place, in which the offence shall have been committed, to pay such sum of money as to the Court shall seem reasonable, for his time, trouble, and expense." (1) This stat. is confined to cases where the witness making the default is out of the jurisdiction of the Court, to which the certificate is transmitted. Rex v. Brownell, 1 Ad. & E. 602. (2) 4 Hawk. b. 2, c. 46. s. 173. 2 Hale, P. C. 282. See also preambles of stat. 27 G. 2, c. 3, s. 3, and stat. 18 G. 3, c. 19, s. 7. As this statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpoena to give evidence, it was afterwards deemed reasonable by the legislature, that every person so appearing on recognizance or subpœna, should be allowed his reasonable expenses; and also, in case of poverty, a satisfaction for his trouble and loss of time. The stat. 18 G. 3, c. 19, s. 8, therefore enacted, "that 18 G. 3, c. 19. "where any person shall appear on recognizance or subpoena, to give evidence as to any grand or petit larceny or other felony, whether any bill or indictment be preferred or not to the grand jury, it shall be in the power of the Court, provided the person shall, in the opinion of the Court, have bona fide attended in obedience to such recognizance or subpœna) to order the treasurer of the county or division, in which the offence shall have been committed, to pay him such sum as to the Court shall seem reasonable, not exceeding the expenses, which it shall appear to the Court the said person was bond fide put unto by reason of the said recognizance and subpoena, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss. of time." 8. 4. The stat. 58 G. 3, c. 70, s. 4, provides, that, in cases of 58 G. 3, c. 70, felony, the Court, before whom a person shall be prosecuted or tried, shall be empowered (at the request of any person bound to prosecute, or subpoenaed to give evidence, and who shall appear to prosecute or give evidence, or who shall appear to the Court to have been active in the apprehension of a person accused of some one of the offences mentioned in several recited acts), to order the sheriff or treasurer of the county to pay to the prosecutor and witnesses, and to the person concerned in such apprehension, as well the costs, charges, and expenses, which the prosecutor shall be put to in preferring the indictment, as also such sum of money as to the Court shall seem reasonable and sufficient to reimburse them for their expenses in attending before the grand jury to prefer the indictment, and in carrying on the prosecution, and also to compensate them for the loss of time and trouble in the apprehen 7 G. 4, c. 64. Costs of indictment. sion and prosecution. (a) The 8th section further provides, that no person shall be entitled to any such costs or expenses for attending the Court, unless he shall have been bound by recognizance, or have previously received a subpoena to attend, or a written notice for that purpose from the prosecutor, his agent, or his attorney. The statute of 7 G. 4, c. 64, s. 22, enacts, that the Court before which any person shall be prosecuted or tried for any felony, shall be authorized and empowered, at the request of the prosecutor, or of any other person who shall appear on recognizance or subpœna, to prosecute or give evidence against any person accused of any felony, to order payment to the prosecutor of the costs and expenses, which such prosecutor shall incur in preferring the indictment, and also payment to the prosecutor and witnesses for the prosecution of such sum of money, as to the Court shall seem reasonable and sufficient to reimburse Of attendance. such prosecutor and witnesses for the expenses they shall have severally incurred in attending before the examining magistrate or magistrates and the grand jury, and in otherwise carrying on such prosecution, and also to compensate them for their trouble and loss of time therein; and although no bill of indictment be preferred, it shall still be lawful for the Court, when any person shall, in the opinion of the Court, boná fide have attended the Court in obedience to any such recognizance or subpoena, to order payment unto such person of such sum of money as to the Court shall seem reasonable and sufficient to reimburse such person for the expenses, which he or she shall have bona fide incurred by reason of attending before the examining magistrate or magistrates, and by reason of such recognizance or subpoena, and also to compensate such person for Before examin- trouble and loss of time; and the amount of expenses of attending magistrate. ing before the examining magistrate or magistrates, and the compensation for trouble and loss of time therein, shall be ascertained by the certificate of such magistrate or magistrates, granted before the trial or attendance in Court, if such magistrate or magistrates shall think fit to grant the same; and the (a) The opinion of the judges, on the construction of this section, is stated in the Crown Circ. Comp. p. 10, 9th edit. amount of all the other expenses and compensation shall be ascertained by the proper officer of the Court. demeanors. The act, last mentioned, gives authority also to the Court in Costs in miscertain cases of misdemeanor, to order the payment of the costs and expenses of prosecutions. This statute provides, that where any prosecutor or other person shall appear before any Court on recognizance or subpoena, to prosecute or give evidence against any person indicted of any assault with intent to commit felony, of any attempt to commit felony, of any riot, of any misdemeanor for receiving any stolen property, knowing the same to have been stolen; of any assault upon a peace officer in the execution of his duty, or upon any person acting in aid of such officer, of any neglect or breach of duty as a peace officer, or any assault committed in pursuance of any conspiracy to raise the rate of wages, of knowingly and designedly obtaining any property by false pretences, of wilful and indecent exposure of the person, of wilful and corrupt perjury, or of subornation of perjury; every such Court is hereby authorized and empowered to order payment of the costs and expenses of the prosecutor and witnesses for the prosecution, together with a compensation for their trouble and loss of time, in the same manner as Courts are hereinbefore authorized and empowered to order the same in cases of felony; and, although no bill of indictment be preferred, it shall be lawful for the Court, where any person shall have bond fide attended the Court, in obedience to any such recognizance, to order payment of the expenses of such person, together with a compensation for his or her trouble and loss of time, in the same manner as in cases of felony Provided, that in cases of misdemeanor the power of ordering the payment of expenses and compensation shall not extend to the attendance before the examining magistrate. The misdemeanor of concealing the birth of a child is brought within this statute by the recent act 1 Vict. c. 44. (1) It has been doubted, whether a witness may not lawfully Tender. refuse to obey a subpoena on a criminal prosecution, as well as (1) Provision is made for the expense of medical and other witnesses attending coroners' inquests by the stats. 6 & 7 W. 4, c. 89, and |