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not refuse or de:

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 bailes and the common law (d), as well as by the statute Westm. 1, 3 excessive, or ac

cept insufficient 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 (f) (7). In order therefore more precisely to ascertain what offences are bailable,

(a) 2 Hawk. P. C. 90. (e) Ibid. 89.

(1) 2 Hal. P. C. 127.

(4) Repealed by 7 Geo.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 gencral 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; Rer v. Booth, 2 Ld. Ken. 170. privilege, and committed him to prison, And sce 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; Rex v. of note (8).

Flower, 8 T. R. 314. Where a man (7) By the 7 Geo. IV. c. 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 Nev. & 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 conricted 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 (g), 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 (h), that

(8) C. 2, $ 24.

terquam in placito de homicidio, ubi ad (1) 2 Inst. 189.

terrorem aliter stututum est. (Glanv. (i) In omnibus placitis de felonia 1. 14, c. 1.) solet accusatus per plugios dimitti, pra- (k) 2 Inst. 186; 2 Hal. P. C. 129.

(8) These statutes are all repealed in England may in other respects be by the 7 Geo. IV. c. 64; by § 1 of rendered more effectual :" it is enacted, which, reciting that it is expedient to " that where any person shall be taken define under what circumstances per- on a charge of felony, or suspicion of sons may be admitted to bail in cases felony, before one or more justice or of felony, and to make better provision justices of the peace, and the charge for taking examinations, bailments, and shall be supported by positive and crerecognizances, and returning them to dible evidence of the fact, or by such the proper tribunals; and that the evidence as, if not explained or contechnical strictness of criminal pro- tradicted, shall, in the opinion of the ceedings may in many instances be re- justice or justices, raise a strong prelaxed, so as to ensure the punishment sumption of the guilt of the person of the guilty, without depriving the charged, such person shall be comaccused of any just means of defence ; mitted to prison by such justico or jusand that the administration of justice tices, 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, [*299] 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
justice present, and the whole evidence evidence on behalf of the accused,
given before him shall be such as scems at least questionable, for it ap-
neither to raise a strong presumption pears difficult to imagine any case in
of guilt, nor to warrant the dismissal which it would not be conducive to the
of the charge, such justice shall order ends of justice for the magistrate to
the person charged to be detained in hear such evidence, if the prisoner ten-
custody, until he or she shall be taken dered it.
before two justices at the least; and By statute 5 & 6 W. IV. c. 38, $ 3,
where any person so taken, or any per- reciting that in many cases the taking
son in the first instance taken before bail for the appearance of persons
two justices, shall be charged with charged with felony may be safely ad-
felony, or on suspicion of felony, and mitted without endangering the ap-
the evidence given in support of the pearance of such persons to take their
charge shall, in their opinion, not be trial in due course of law, and that it is
such as to raise a strong presumption therefore expedient in such cases to
of the guilt of the person charged, and amend and extend the provisions in that
to require his or her committal, or such respect of an Act (7 Geo. IV. c. 64,
evidence shall be adduced on behalf of above cited); it is enacted, “ that it shall
the person charged, as shall in their be lawful for any two justices of the
opinion weaken the presumption of his peace, if they shall think fit, of whom one
or her guilt, but there shall notwith- or other shall have signed the warrant of
standing appear to them, in either of commitment, to admit any person or
such cases, to be sufficient ground for persons charged with felony, or against
judicial inquiry into his or her guilt, whom any warrant of commitment for
the person charged shall be admitted felony is signed, to bail, in the manner
to bail, by such two justices in the and according to the provisions di.
manner hereinafter mentioned ; pro- rected by the said recited Act ( 7 Geo.
vided always, that nothing therein con- IV. c. 64), in such sum or sums of
tained shall be construed to require money, and with such surety or sure-
any such justice or justices to hear ties as they shall think fit; and not-
evidence on behalf of any person so

withstanding such person or persons
charged, unless it shall appear to him shall have confessed the matter laid to
or them to be meet and conducive to his or their charge, or notwithstanding
the ends of justice to hear the same." such justices shall not think that such
It will be seen from this enactment, charge is groundless, or shall think
that one justice is not empowered to that the circumstances are such as to
take bail on a charge of felony, or raise a presumption of guilt.”
suspicion of felony. The propriety of

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. Persons 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 (1) of King's Bench, or any judge (m) thereof in time of vacation, may bail for any crime whatsoever, be it treason (n), murder c), or any other offence, according to the circumstances of the case (9). And herein

(1) 2 Inst. 189; Latch. 12; Vaugh. terquam, in placito de homicidio. (Glan. 157; Comb. 111, 298; 1 Comyns 1. 14, c. 1.) Sciendum tamen quod, in Dig. 495.

hoc placito, non solet accusatus per ple(m) Skin. 683; Salk. 105; Stra. ios dimitti, nisi er regia potestatis bene. 911; 1 Comyns Dig. 497.

ficio. (Ibid. c. 3.)—“ In all charges (n) In the reign of Queen Elizabeth of felony, the party may be released it was the unanimous opinion of the upon bail except in a charge of homijudges, that no court could bail upon a

cide. Wherein for the purposes of commitment, for a charge of high terror it is otherwise : but in such treason by any of the Queen's privy charges, it is to be observed, that it is council. (1 Anders. 298.)

not usual to bail the accused, except by (0) In omnibus placitis de felonia the exercise of the royal prerogative." solet accusatus per plegios dimitti, pre

(9) But this power is to be exer. upon a special rule; 1 Chit. Cr. L. cised in the discretion of the court, 98, 9. Thus the court of King's Bench and none can claim its benefits de jure. will not grant even a rule nisi to reAnd it is not usual for this court to move the depositions taken before a bail in cases of felony, unless when, in coroner, and to bail a party charged consequence of the defect of the com- upon a coroner's inquisition with man. mitment, and of the examination and slaughter, without an affidavit of what depositions, it appears doubtful whether took place before the coroner ; Rex v. any offence has been committed. And, Mills, 4 Nev. & Man. 6. So, the however defectively the mittimus may judges at the Central Criminal Court, have been framed, yet, if from the de- (vide ante, 269, note (16), after postpositions the court can collect that a ponement till the next session, on mofelony has been committed, they will tion for the prosecution, of the presennot bail the prisoner, but remand him 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 imprisonment, 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. (9) 2 Hal. P. C. 122.

utmost huma


refused, on motion for the prisoner, to with a serious misdemeanor on the oath read over very long depositions, to of a grand jury, and could not find bail, enable them to decide whether they it was the duty of the court to take care would admit him to bail, although the that she should be rendered amenable application was made on the ground to justice, which they could only do by that there was not sufficient time to continuing her in custody; and that prepare proper affidavits before the under such circumstances they would breaking up of the court; Rer v. Pal- not consider how or where the arrest mer, 6 C. & P. 654.

was made, or whether it was legal or On bills found at that court for mis. not; ex parte Susannah Scott, 4 M. demeanors, forty-eight hours' notice of & R. 361; 9 B. & C. 446; per Lord bail is necessary, unless the application Tenterden, C. J., and Parke, J.; abis made on a Friday, with a view of sente Bayley, J.; dissentiente Littledetaining the party in custody over dale, J. And see Rex v. Marks, 3 East, Sunday; Rex v. Carlile, 6 C. & P. 628. 157 ; ex parte Krans, 2 D. & R. 411; So, where a party, against whom a I B. & C. 258. true bill for perjury had been found and (10) Otherwise it must be for a time the lord chief justice's warrant tad is- certain ; for, where a defendant was sued, had been arrested in Belgium committed by two justices for a conand brought in custody to England, tempt towards them in their office, and there, being unable to find bail, “ until discharged by due course of law," had been committed by the lord chief the court of King's Bench held that justice for trial, the court refused to the commitment was bad; Rer v. James, discharge her out of custody on motion; 1 D. & R. 559; 5 B. & A. 894. saying, that as the party was charged

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