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may not require
And, first, to refuse or delay to bail any person bailable, is an Justices may offence against the liberty of the subject, in any magistrate by lay to bail; and the common law (d), as well as by the statute Westm. 1, 3 excessive, or ac. Edw. I.c. 15(4), and the Habeas Corpus Act 31 Car. II. c.2 (5). bail. And, lest the intention of the law should be frustrated by the justices requiring bail to a greater amount than the nature of the case demands, it is expressly declared by statute 1 W. and M. st. 2, c. 1, that excessive bail ought not to be required; though what bail shall be called excessive, must be left to the courts, on considering the circumstances of the case, to determine (6). And, on the other hand, if the magistrate takes insufficient bail, he is liable to be fined, if the criminal doth not oppear (e). Bail may be taken either in court or, in some particular cases, by the sheriff, coroner, or other magistrate ; but most usually by the justices of the peace. Regularly, in all offences either against the common *law or [*298] Act of Parliament, that are below felony, the offender ought to be admitted to bail, unless it be prohibited by some special Act of Parliament ($) (7). In order therefore more precisely to ascertain what offences are bailable,
(4) Repcaled by 7 Geo. IV. c. 64; be bailed as of right; Rer v. Dunn, see post, 298, note (8).
5 Burr. 2640. A commitment by a (5) And see 56 Geo. III. c. 100. justice of peace for a time certain, as
(6) It was formerly a general rule for fourteen days, under the Vagrant in the court of King's Bench to re- Act, is a commitment in execution, quire four bail in cases of felony; Rex and the party is not entitled to be v. Shaw, 6 D. & R. 154; but in one bailed; Rer v. Brooke, 2 T. R. 190. case, on a charge of rape, the accused Where the House of Lords had voted was held to bail by himself and three the defendant guilty of a breach of sureties; Rex v. Booth, 2 Ld. Ken. 170. privilege, and committed him to prison, And see now the statute 5 & 6 W. IV. the court of King's Bench refused to e. 33, § 3, set out post 298, latter part discharge him out of custody; Rer v. of note (8).
Flower, 8 T. R. 314. Where a man (7) By the 7 Geo. IV. e. 64, $ 3, was charged with felony before three every justice of the peace before whom magistrates, who, upon hearing eviany person shall be taken on charge dence, admitted him to bail, and afterof misdemeanor, or suspicion thereof, wards, upon hearing additional evishall take the examination, &c. in like dence, committed him to prison, the manner as in cases of felony. See $ 2 court of K. B. held that he was not of the same Act, ante, 296, note (3). entitled to a habeas corpus to be disa Persons committed for forcibly resist- charged out of custody; ex parte Allen, ing custom-house officers in the exe- 3 Ney, & Man. 35. cution of their duty, cannot demand to
The court of King's bench may bail for any crime.
Let us next see, who may not be admitted to bail, or, what offences are not bailable. And here I shall not consider any one of those cases in which bail is ousted by statute, from prisoners convicted of particular offences; for then such imprisonment without bail is part of their sentence and punishment. But, where the imprisonment is only for safe custody. before the conviction, and not for punishment afterwards, in such cases bail is ousted or taken away, wherever the offence is of a very enormous nature: for then the public is entitled to demand nothing less than the highest security that can be given, viz. the body of the accused; in order to ensure that justice shall be done upon him, if guilty. Such persons therefore, as the author of the Mirror observes (9), have no other sureties but the four walls, of the prison. By the ancient common law, before (h) and since (i) the Conquest, all felonies were bailable, till murder was excepted by statute : so that persons might be admitted to bail before conviction almost in every case. But the statute Westm. 1, 3 Edw. I c. 15, takes away the power of bailing in treason, and in divers instances of felony. The statutes 23 Hen. VI. c. 9, and 1 and 2 Ph. and Mar. c. 13, give further regulations in this matter (8): and upon the whole we may collect (k), that
(g) C. 2, $ 24.
(i) In omnibus placitis de felonia
terquam in placito de homicidio, ubi ad terrorem aliter stututum est. * (Glans, 1. 14, c. 1.)
(k) 2 Inst. 186; 2 Hal. P. C. 129.
(8) These statutes are all repealed by the 7 Geo. IV. c. 64; by § 1 of which, reciting “ that it is expedient to define under what circumstances per sons may be admitted to bail in cases of felony, and to make better provision for taking examinations, bailments, and recognizances, and returning them to the proper tribunals; and that the technical strictness of criminal proceedings may in many instances be relaxed, so as to ensure the punishment of the guilty, without depriving the accused of any just means of defence; and that the administration of justice
in England may in other respects be rendered more effectual :" it is enacted, “ that where any person shall be taken on a charge of felony, or suspicion of felony, before one or more justice or justices of the peace, and the charge shall be supported by positive and cre. dible evidence of the fact, or by such evidence as, if not explained or con. tradicted, shall, in the opinion of the justice or justices, raise a strong presumption of the guilt of the person charged, such person shall be committed to prison by such justice or justices, in the manner thereinafter men
. * See post 299,
no justice of the peace can bail, 1. Upon an accusation of treason: nor, 2. Of murder: nor, 3. In case of manslaughter, if the prisoner be clearly the slayer, and not barely suspected to be so; or if any indictment be found against him: nor, 4. Such as, being committed for felony, have broken prison ; because it not only carries a presumption of guilt, but is also superadding one felony to another: 5. Persons outlawed : 6. Such as have abjured the realm : 7. * Approvers, of whom we shall speak in a subsequent chapter, and persons by them accused: 8. Persons taken with the mainour, or in
tioned; but if there shall be only one the provision with respect to hearing
the fact of felony: 9. Persons charged with arson: 10. Excommunicated persons, taken by writ de excommunicato capiendo: all which are clearly not admissible to bail by the justices. Others are of a dubious nature, as, 11. Thieves openly defamed and known: 12. Persons charged with other felonies, or manifest and enormous offences, not being of good fame: and, 13. Accessaries to felony, that labour under the same want of reputation. These seem to be in the discretion of the justices, whether bailable or not. The last class are such as must be bailed upon offering sufficient surety; as, 14. Percons of good fame, charged with a bare suspicion of manslaughter, or other inferior homicide: 15. Such persons, being charged with petit larceny, or any felony not before specified: or, 16. With being accessary to any felony. Lastly, it is agreed that the court (l) of King's Bench, or any judge (m) thereof in time of vacation, may bail for any crime whatsoever, be it treason (n), murder (0), or any other offence, according to the circumstances of the case (9). And herein
(1) 2 Inst. 189; Latch. 12; Vangh. 157; Comb. III, 298; 1 Comyns Dig. 495.
(m) Skin. 683; Salk. 105; Stra. 911; I Comyns Dig. 497.
(n) In the reign of Queen Elizabeth it was the unanimous opinion of the judges, that no court could bail upon a commitment, for a charge of high treason by any of the Queen's privy council. (1 Anders. 298.)
(o) In omnibus placitis de felonia volet accusatus per plegios dimitti, pra
terquam, in placito de homicidio. (Glan.
14, c. I.) Sciendum tamen quod, in hoc placita, non solet accusatus per plegios dimitti, misi er regia potestatis bene. ficio (Ibid. c. 3. ) " In all charges of felons, the party may be released upon bail except in a charge of homi. cide. Wherein for the purposes of terror it is otherwise : but in such charges, it is to be observed, that it is not usual to bail the accused, except by the exercise of the royal prerogative. “
(0) But this power is to be exer. cised in the discretion of the court, and none can claim its benefits de jure. And it is not usual for this court to bail in cases of felony, unless when, in consequence of the defect of the commitment, and of the examination and depositions, it appears doubtful whether any offence has been committed. And, however defectively the mittimus may have been framed, yet, if from the de. position, the court can collect that a felony has been committed, they will not bail the prisoner, but remand him
upon a special rule; 1 Chit. Cr. L. 98, 9. Thus the court of King's Bench will not grant even a rule nisi to remove the depositions taken before a coroner, and to bail a party charged upon a coroner's inquisition with man. slaughter, without an affidavit of what took place before the coroner ; Rer v. Mills, 4 Nev, & Man. 6. So, the judges at the Central Criminal Court, (vide ante, 269, note (16), after postponement till the next session, on mo. tion for the prosecution, of the prescR tation of a bill for a capital offence,
the wisdom of the law is very manifest. To allow bail to be taken commonly for such enormous crimes, would greatly tend to elude the public justice: and yet there are cases, though they rarely happen, in which it would be hard and unjust to confine a man in prison, though accused even of the greatest offence. The law has therefore provided one court, and only one, which has a discretionary power of bailing in any case: except only, even to this high jurisdiction, and of course to all inferior ones, such persons as are committed by either House of Parliament, so long as the *session lasts; or [*300] such as are committed for contempts by any of the king's superior courts of justice (p).
Upon the whole, if the offence be not bailable, or the party Commitment cannot find bail, he is to be committed to the county gaol tion is for safe by the mittimus of the justice, or warrant under his hand prisoners so comand seal, containing the cause of his commitment: there to treated with the abide till delivered by_due course of law (9). But this im- ; prisonment, as has been said, is only for safe custody, and not for punishment (10): therefore, in this dubious interval
(p) Staundf. P. C. 73, b. (1) 2 Hal. P. C. 122.
mitted are to be
refused, on motion for the prisoner, to read over very long depositions, to enable them to decide whether they would admit him to bail, although the application was made on the ground that there was not sufficient time to prepare proper affidavits before the breaking up of the court; Rer v. Pal. mer, 6 C. & P. 654.
On bills found at that court for misdemeanors, forty-eight hours' notice of bail is necessary, unless the application is made on a Friday, with a view of detaining the party in custody over Sunday; Rer v. Carlile, 6 C. & P. 628. So, where a party, against whom a true bill for perjury had been found and the lord chief justice's warrant had is sued, had been arrested in Belgium and brought in custody to England, and there, being unable to find bail, had been committed by the lord chief justice for trial, the court refused to discharge her out of custody on motion; saying, that as the party was charged
with a serious misdemeanor on the oath
(10) Otherwise it must be for a time