The weekly clarion. [volume] (Jackson, Miss.) 1863-1882, 1870-11-17

ID VI
| the Grand Jury would be the evidence on
| which the Court would have. oiudge whetn-
| er the party arrested ought 20 De Daiieo.
They were to exercise their discretion ac-
cording to the nature and circumstances OF
| the offence aud Of the evideFge. and nsG2es
| n the Iatc. The usages or law were to De
| found in the common law and the practice
| If the courts" But he doubted extremely
whether the Court had the right To bail at
4 ter indictment for treason Mr.. Burr and
| Luther Martin asked for time To search for
| precedents. No authorities were produced
| nv them. and bail was denied.
/ In McLeod's case, Is Wend. Rep. the pris-
| oner was indicted for murder; bail was re-
| fused the Court declining to receive proof
f an alibi by the relator, at the time OF the
/ murder.
| Chief Justice Raymond, in Rex VS. Dali
| ton, Str. OIL, thought the indictment con-
| elusive.
State va Miller. Dew. n. C.. AL, Rufin,
j.. said: After indictment found Defend
ant is presumed guilty for most, If not all,
| purposes, except that of a fair and impartial
4 trial before jury. This presumption is 50
| strong. that ia . capital felony the party
can not bal6t Co. bail. : - $50
Hightlvs United states, ! Morris Iowa
| Rep, 407) J. commenting on the effect of an
| indictment under statute forbidding ball,
| in a capital case. "where the presumption is
great, or the proof evident" the Court said:
AN Indictment furnishes no presumption.
when upon trial. but so far as regards all
intermediate proceedings between the in
dictment and trial, it furnishes the very
strongest presumption of guilt. The find
| ing OF the Grand Jury is conclusive so far
AS to control proceedings up to the time of
trial. The humanity of our law requires,
before a person shall be punished as GRIM
| inal, he must be found guilty by two indie
pendent juries. The verdict of the first
raises full presumption of guilt up to the
time of trial before the second"
We will now examine the notifications
made by positive law in this State:
The 10th Art. of Habeas Corpus act. Code
366, directs the judge to proceed to enquire
Into the cause of imprisonment or detention
and may either discharge, bail, or remand,
as the law and the evidence may require.
The return shall not be conclusive as to
facts therein stated, but cridence may be re-
ceived to contradict the same.
The return in this case is, that the prison.
er is held to answer an indictment for muir
der. We have seen that at the common law
on such returns made to the Court OF Kings
Bench, or to al American Court of superior
common law jurisdiction, although their
right to bail, in any case, and for any of
fence. without regard TO the degree of the
crime, or the severity of the punishment.
was plenary. Yet the ''usage- of the law
had 40 shaped and regulated the discretion
of the courts, that, generally. bail was de-
MED after indictment for a felony, unless
some special motive was shown, though the
felony WAS not capitally punished; and that
bail must arise in point of time after indict-
| ment, such as the delay by the prosecution
to bring on the trial. the danger &c the life
of the accused by the imprisonment, etc,
| etc.
At common law the return of the Sheriff
on the writ would not be disputed, and the
Court looked to that to judge of the right
fulness of the detention.
By the 18th Art of our act, the return
NAV be disputed by evidence Again the
i,hn hafOrn whom nriSOnpr is hrnnOht Ch all
impartially proceed and dispose of the case
according TO the law and the evidence; and
may summon witnesses, &c.
The writ 'extends to all cases of illegal
confinement or detention whatever" Its
primary object is to deliver from illegal
confinement" Where the return shows, as
in this case, that the prisoner was arrested
by Bench Warrant, which commanded the
Sheriff to take and safely keep the rela-
tor" to answer an Indictment for murder,
the detention was perfectly legal. Where
the prisoner is in confinement charged by
Indictment with a capital felony, his petit
ton for the writ, instead of stating. as in this
case, that his imprisonment Is illegal and
without warrant of law. ought to claim that
he is entitled to be enlarged on bail, under
the section in the Bill of Rights; for no one
would pretend that the judge can discharge,
even on the clearest proof of innocence.
The practice of the courts and jud yes IN
der the HabPas Corpus act of Charles III. and
ofthe American courts and judges where
the common law was not modified, was TO
remand TO custody, where the return show
ed that the prisoner was under Indictment
for pital crime, and they would not hear
affldAVits or witnesses in exculp ation.
The Sth section of the Bill of Rights in
Produces material modification. 1t makes
bailable all crimes (Which the common law
did not, as a matter of righE,) except capt.
tai offenses where the proof is evident or
the presum ptiOG great
In Davis case, 6 How. Miss. Rep 800, it
was remarked by the Court. 1t is believed
that the clause of the Constitution was in
tended by it's trainers for the better security
of the citizen against an improper exercise
of discretion with which the common law
clothed the judges. and to take from them all
discretion whatever before convictinn--only
when it becomes necessary to discriminate
| between capital and minor off"nseS"--"leav-
ing the discretion after conviction as at com
mon law"
Under the Bill of Rights, bail before con-
viction is a matter of right (and not of dis
cretion) for all offenses- except those that
are capital, where the proof is evident or
presum ption great"
Perhaps the original of the section in our
Bill OF Rights. and in the Constitutions of
neariy all the States, is a clause in the Or
Territory northwest of the river Ohio.
| This ordinance was mainly prepared by
| Mr. jefferson, it is said. The words of the
ordinance are: "All persons shall be bail
| aDie. unless TOT caplJal OHenSes, where Tue
proof shall be evident or the presumption
great" As that Territory was formed into
States, this provision in the ordinance was.
| in terms or with slight notifications, incor-
porated into their COnstitutions-and for
many ' ears has held place in the Consti-
tuition or statutes of nearly all the States.
| In IS45 the Supreme Court of Iowa passed
on the effect of the ordinance. which had
been incorporated into her Constitution.
| 1t was commended In the case of Hight q
rlNn nd
menr for murder-that liberty be given
him to prove and satisfy the Court that the
| charge in the indictment was not based
| upon proof that was evident and presump-
ton great and therefore he should be let
| to bail" For the State it was cOntended
| that 1.-The Indictment furnishes such proof
| in presumption, and that evidence behind
| the Indictment ought not to be received"
Ii was held by the Court that the indictment
| was conclusive, that no evidence ought TO
| be received-and the application was over
ruled. The Chief Justice said: This is
no new provision, but is in express terms
| incorporated into the Constitution of at
| least half the States, and is the rule of action
| in all the rest. If the construction conten-
| 6ed for be correct, it is little remarkable
/ that no case can be found where a similar
application has been successfully made"
/ The Bill Of Rights. and the statue of ouT
State. are not broader or more liberal than
| in the other States. The right continues
until conviction.
Until the decision in Wray's case, 80 Miss
Rep. 673, the practice IN this State Is be-
/ Iieved not TO have been uniform. In some
Of the Circuits the judges held the indict
/ ment for capt. Al felony as raising conclu i
siveIy the s-pFesumption great" and declined
| to examine witnesses.
Since Wrays' case, the practice has become
uniform, and evidence aliunde the indie.'
| ment is received. and this has been consid.
Grafton as settled. On the hear
ing of the Habeas Corpus is the indict-
ment placed entirely out of consideration
Ii 50, it becomes question OF guilty. or no
guilty. ON the evidence. Yet it is quite Ger