Phenix gazette. [volume] (Alexandria [D.C.]) 1825-1833, 1826-11-06
ISAAC B. DEsHA.

The following is the opinion of Judo. y
OF Kentucky, at the late Term Of the r. ''o"n
Circuit Court. admitting Isaac n .','i'0n
bail: "esha to
This is motiop founded upon =.
OF Isaac B Dosha. in custody, under Petition
murder. The petition contains ,m 'narse Of
propositions, Isl to discharge the prso u.SaA;i
soiutely 2nd, upon failure Of the frs, 'tgI ao-
miited to bail. 's !" bead,
IN considering the first branch Of this ,,r
the MIND Is necessarily brought TO -, Yst
one OF the most important questions ,ba, upon /
er agitaled this country, to wit: The co" "lse''
tlonallty or unconstitu,ionality of s .GI'p'
act Its Importance would seem IN b. SSIa'!ve
ened from further consideration ,b,, ,, height
now called upon to ACT, was one ofths court
Of the legislature who passed this law pe aa'
consideration vanishes, when it is kno MY .SlS
this court had nc, other agency in the na,, VS..
Of that law, than answering the clerk w HTsa'Se
led upon to vote; believing with Others ~ e'!,
then did, that applications for Change Of, "
ue were matter, in course Of ,bras w. -,
every individual had right to exnec, , ala'
would ask it; but as. this court is oftb., ~,
Der at the present day, who believe, tho,
legislative act should be annulled by nd
unless upon mature delberation it Is .eco 80
ed to be palpab!y unconsti,utional and ss ,Lo..
is no time afforded for that mature ,lerbo,a,;'
being the. last evening Of the last day Of tbas.'
guar term of the court, an opinion unon -,
branch of the subject, will MOI, a, This time a.
submitted -
The proposition involves an inquiry into Il.
propriety OF admitting the prisoner 10 bail.
To this end various authorities have been ci,s
by the counsel for the accused-the GROWN l,,,.
of England, practice in the court Of Kin,
bench, &c. &c. all tending mainly to es,abIi,i
a discretion with which Courts OF Criminal IT,
rIsdlcton are vested in such cases, toae,ts,
with the peculiar attitude which this case r,s
scnts in relation to the health of the prison,r
expenses upon government, sc. In opaosi,ior
TO which, the counsel for the commonwealth.
sponded, with reference 10 severa! authorizes.
but those which seem 10 be most importan,n
the present inquiry, are to be found in the 9Th
section Of the constitution of Kentucky, and q
Criminal Revised Code, page l56.
In determining this question, it is only nece
sary TO inquire-lst. whether this section Of
the constitution interdlcts the extension Of bail
in capital cases where the prisoncrk lie would
be endangered by confinement. 1t is believed
that fair and liberal Interpretation Of this sec
ton, will lead TO this result, that this clause is
in atfirmance Of the common law; and the fra
mers of the constitution only intended TO limit
particular class Of offences, which should no,
in themselves, authorize bail; but leaving the
common law as it had existed since the days OF
Edward |. in relation TO peculiar cases thai
might arise, where the life of the prisonei
would be endangered by confinement Wills, Ia
boring under disease. The common law, al
ways in accordance with common sense, has
settled this humane doctrine, that criminals L,
boring under dangerous illness, even after ST.
:ence, have been respited and enlarged. Opp
sed to this doctrine, only one authority has beer
referred to, which is in Toulmin and Blair.
criminal revised Code, the substance Of whicl
is that bail shall not be allowed in cases whers
the prisoner labors under disease, if it be occa
stoned by his own act. This holds good in al
cases of slight injury, and those which have the
appearance of being inflicted by the prisoner,
in order to procure his enlargement But IN
case like the present, where the injury is great
where the physicians who attend the prison
err state his life would be jeopardsed by
handing him to Jail; and when il is recollectsc
that the reason the law gives for enIaTgings
prisoner laboring under disease, allhoughm
der sentence of death, is, that it will not sufC
death to be inflicted upon the prisoner, eI"F
in that forms prescIibed and appropriated Oin
offence. When il is also recollected, that th.
prisoner stands now as if no trial had ever tai
en- place, & that imprisonment is no part oflh'
punishment imposed by law in this case, butte
insure his attendance at the trial-When III
in proof that the prisoner has had various op
portunities Of escape, and that he has IN no ID
stance manifested the slightest disposition tos-
vail himself of it-When il is further recoIett
ed, that from the peculiar character OF lux
wound, as described by the testimony, 1t "o'I
be impossible for the prisoner 10 avoid detetuoa
under an attempt to escape-When II IS III
that rational doubt rests upon The mind OIL.
court, whether or not the law is constitution
under which the prisoner is held in cusoay
and particularly that portion OF the 9th 'ec'0''
which declares that no number Of contNHa''@
shall produce discharge; inasmuch as 1t seems
impose greater liability or punishment '"S.
that law which existed when the offence W.
committed, which declares tict Jhe priS9N'"
NOT tried, at or before the third term after ms El%'
inotion before the Justices he shall t0's'e/ oe q
charged from the crime. When, thefeloFe'
peculiar circumstances are consiaereu' Up