*CHAPTER VIII. [430 RIGHT TO BAIL. THE case being fully submitted, the court is to consider whether they will discharge, bail or remand the prisoner. If the prisoner is entitled to an unqualified discharge he is set free at once; if not, he must be bailed or remanded. If the offence be bailable and he offers sufficient surety he must be let to bail; and "excessive bail shall not be required." Section I. BAILABLE OFFENCES. II. INQUIRY BEFORE INDICTMENT. SECTION I. BAILABLE OFFENCES. By the ancient common law all felonies were bailable; and though the power of inferior courts has been somewhat limited by statute in England, the Court of King's Bench or any judge thereof in vacation may, in the plenitude of that power which *they enjoy at common [431 law, in their discretion admit persons to bail in all cases whatsoever, though committed by justices of the peace or others, for crimes in which inferior jurisdictions would not venture to interfere. They may bail for high treason, murder, manslaughter, forgery, rapes, libels and for all felonies and offences whatever. The only exception to their discretionary authority is where the commitment is for a contempt or in execution, for then such imprisonment without bail is part of the sentence and punishment.' But this power is to be exercised in the discretion of the court, and none can claim its benefits, de jure. Accordingly, unless it were doubtful whether the prisoner was guilty or not, they refused to bail except in very special cases. "Bail is only proper where it stands indifferent whether the party be guilty or innocent of the accusation against him, as it often does before his trial; but where that indifferency is removed, it would, generally speaking, be absurd to bail him." In the United States the right of bail has been thought worthy of constitutional protection. In the federal Constitution and in the constitutions of nearly all the states it is provided that "excessive bail shall not be required,” and in most of the states the power of discretionary denial is strictly limited. The provisions relating to bailable offences are not precisely alike in the several states. Maine. "All persons, before conviction, shall be bailable, except for capital offences, where the proof is evident or the presumption great. 432] *Rhode Island. "All persons imprisoned ought to be bailed by sufficient surety, unless for offences punishable by death or imprisonment for life, when the proof of guilt is evident or the presumption great." Connecticut. "All prisoners shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident or the presumption great." New Jersey. "All persons shall, before conviction, be bailable by sufficient sureties, except for capital offences, when the proof is evident or presumption great." Pennsylvania. "All persons shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or presumption great." Delaware. "All prisoners shall be bailable by sufficient 11 Chitty Cr. Law, pp. 93, 98. 2 2 Hale, 129. 3 Hawkins, B. 2, ch. 15, sec. 40. sureties, unless for capital offences, when proof is positive or the presumption great." Florida. "All persons shall be bailable by sufficient securities, unless in capital cases, where the proof is evident or the presumption strong." Alabama. "All persons shall, before conviction, be bailable by sufficient securities, except for capital offences, when the proof is evident or the presumption great." Mississippi. "All prisoners shall, before conviction, be bailable by sufficient securities, except for capital offences, where the proof is evident or the presumption great. North Carolina. "All prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great." Louisiana. "All prisoners shall be bailable by sufficient sureties, unless for capital offences, where the proof is evident or presumption great."1 Tennessee. "All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or the presumption great.” *Vermont. "All prisoners, unless in execution or [433 committed for capital offences, when the proof is evident or presumption great, shall be bailable by sufficient sureties." Kentucky. "All prisoners shall be bailable by sufficient securities, unless for capital offences, when the proof is evident or presumption great." Indiana. "Offences, other than murder and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or the presumption strong." Illinois. "All persons shall be bailable by sufficient 1 The provision of the present constitution of Louisiana is, "All persons shall be bailable by sufficient securities, unless for capital offences, where the proof is evident or the presumption great, or unless after conviction, for any crime or offence punishable with death or imprisonment at hard labor." sureties, unless for capital offences, where the proof is evident or the presumption great." Michigan. "All persons shall, before conviction, be bailable by sufficient sureties, except for murder and treason, when the proof is evident or the presumption great." Missouri. "All persons shall be bailable by sufficient sureties, except for capital offences, when the proof is evident or the presumption great.' Arkansas. "All prisoners shall be bailable by sufficient securities, unless in capital offences, where the proof is evident or the presumption great." Texas. "All prisoners shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or the presumption great; but this provision shall not be so construed as to prohibit bail after indictment found upon an examination of the evidence by a judge of the Supreme or District Court, upon the return of the writ of habeas corpus, returnable in the county where the offence is committed." Iowa. "All persons shall, before conviction, be bailable by sufficient sureties, except for capital offences, where the proof is evident or the presumption great.” Wisconsin. "All persons shall, before conviction, be bailable by sufficient sureties, except for capital offences, when the proof is evident or the presumption great." 434] *California. "All persons shall be bailable by sufficient sureties, unless for capital offences, when the proof is evident or the presumption great." Ohio. "All persons shall be bailable by sufficient sureties, except for capital offences, where the proof is evident or the presumption great.” 1 In Ex parte Perry, 19 Wis. 711, it was held that since the abolition of capital punishment in that state, persons charged with murder, were in all cases bailable. 2 MINNESOTA. All persons shall, before conviction, be bailable by sufficient sureties, except for capital offences, when the proof is evident or the presumption great. The same provision is contained in the new constitution of South Carolina. In Ohio, California, Texas, Arkansas, Illinois, Indiana, Kentucky, Tennessee, Louisiana, North Carolina, Florida, Delaware, Pennsylvania' and Rhode Island the right to bail in the unexcepted cases is unlimited; in all the rest it is limited by the "conviction." In Indiana the right to bail in the excepted cases, is expressly prohibited; in all the rest if prohibited, it is by implication only. In Alabama it has been denied that there is an implied prohibition. In Ex parte Croom and May,' the court in speaking of this section in their Bill of Rights say: "It is believed that the history of the legislation of the state, both before and since the adoption of the Constitution, and the numerous decisions of this court upon similar statutes as well as the spirit of other portions of the Constitution, very satisfactorily show that the above clause in the Bill of Rights, was not designed to deny to the legislature the power to pass laws providing for bail in capital cases, when the proof was evident or the presumption great. "At common law, all cases were bailable; but it was competent for the legislature in the absence of a constitutional inhibition, to deprive the citizen of this right, or so to modify it as to render it valueless. The clause was designed not to place a perpetual restriction upon the common law right of the citizen, in the matter of bail, but on the contrary to secure by the fundamental law of the state, *and to place this right in the [435 given cases, beyond the power of either legislative or judicial interposition, creating however, no restriction upon the legislature as to the excepted cases, when the 'proof is evident or the presumption great.' 999 OREGON. Offences, except murder and treason, shall be bailable by sufficient sureties. Murder or treason shall not be bailable when the proof is evident or presumption strong. In KANSAS and NEVADA and NEBRASKA the provision is the same as in Ошо. 1 Williamson v. Lewis, 39 Penn. S. 1. 2 19 Ala. 561. |