Amendments V and VI
William Hawkins, Pleas of the Crown 2:CH. 25, §§ 99, 100; CH. 46, § 30 1721 ed.
I take it to be settled that no criminal prosecution is within the benefit of any of the statutes of Amendments; from whence it follows that no amendment can be admitted in any such prosecution, but such only as is allowed by the common law. And agreeably hereto I find it laid down as a principle in some books, that the body of an indictment removed into the King's Bench from any inferior court whatsoever, except only those of London, can in no case be amended. But it is said that the body of an indictment from London may be amended, because, by the city charter, a tenor of the record only can be removed from thence.
It seems to have been anciently the common practice, where an indictment appeared to be insufficient, either for its uncertainty or the want of proper legal words, not to put the defendant to answer it; but if it were found in the same county in which the court sat, to award process against the grand jury to come into court and amend it. And it seems to be the common practice at this day, while the grand jury who found a bill is before the court, to amend it, by their consent, in a matter of form, as the name or addition of the party.
. . . . .
As to . . . Whether a Defendant in criminal Cases have the Right to Process to bring in his Witnesses: I take it that in Prosecutions for Misdemeanors the Defendant may take out Subpoena's [sic] of Course, but that in Capital cases he hath no right by the Common law to any process against his witnesses without a special order of the court. But [after discussing 7 & 8 Will. 3, c. 3, § 7 (1695)] it seems that since the Statute of 1 Annae 9 . . . which ordains, That the witnesses for the prisoner shall be sworn, process may be taken out against them of course in any case whatsoever.
The Founders' Constitution
Volume 5, Amendments V and VI, Document 8
The University of Chicago Press