Year: 1877

have oyerruled the motion Of the attorney
for the Commonwealth to either retain
Mayo in custody or bail him until the case
could be brought to the attention OF a
higher court for review. 1t was said that
Mr.. Daniel based his opinion upon the
fact that there is special statute in relation
to appeals in such cases.


1t is due to Judge Minor to say that IL
any application was made to him to bold
Mayo to bail / did not hear it. should
most certainly have resisted it to the bitter
end, and, as think shall presently show,
with every reason to believe that should
have been successful. 1t is true that before
the Judge went upon the bench, or any one
had any reason to believe what his decision
would be, desultory discussion took place
in the clerks office between the Common
wealth's attorney, myself and the Judge as
TO his right to retain the prisoner IN Gus.
tody in case be should announce it as his
opinion that be was illegally restrained OF
his liberty, but heard nothing whatever
about bail; and after the Judge, upon the
bench, announced his opinion and ordered
the prisoners discharge, I heard nothing
more even OF an application to retain the
prisoner in custody.


But would it have been proper for the
JudkC w HuNC uCIu INV IAiSohSa w b"tAs
even supposing the motion had been made
The statute regulating the writ Of ha6eGs
corpus, Virginia Code, 1879, chapter 153
(the special statute to which Mr.. Daniel is
said to have referred), provides, section 6,
that the Judge before whom the petitioner
is brought, after hearing the matter both
upon the return and any other evidence,
shall either discharge, or remand, or admit
him to bail, as may be proper. Under our
statute the writ Of hd6edS c0rpuS'i made
10 perform two functions, in certain sense
inconsistent with each other. This writ, as
it existed in the time of magma ckdrtd, was
designed as the great pCerogative writ
to which any subject might resort. upon
making complaint that he was restrained
of his liberty without authority OF law
Now, after that, when it came to be re-
sorted to by persons held in custody to
await trial upon accusation of crime as
means of securing bail, it was necessarily
made to perform function not contem-
plated Dy its trainers, since the man who is
held for trial upon charge OF crime is not
held without authority Of law, but by vir-
tue OF mandate Of the law. However. q
little inconsistent though it be, it is yet Of
so great convenience that our Legislature
has provided that it may be equally resorted
to BY one who claims that he ought to be
discharged out and out without conditions,
and one who, admitting that he has no right
to be discharged additionally, claims yet
right to be let to bail.


These remarks will enable the reader to
see the exact force Of section II OF the same
chapter. That section is as follows :
"When the prisoner is remanded the exc
cution of the judgment shaR not be sus-
pended by the writ of error, or suspended
for the purpose Of applying for one; but
when he is ordered to be discharged, and
the execution of the judgment is suspended
for the purpose Of applying for writ OF
error, the court or Judge making such sus-
pending order may, in their discretion, adj
NIT the prisoner to bail until the expiration
OF the time allowed for applying for the writ
of error; or in case the writ OF error
be allowed, until the decision of the
Court OF Appeals thereon is duly certi-
fed" This is the statute to which Mr..
Daniel referred. 1t obviously means
that when one accused OF crime comes up
on hGbeGS corpus, applying for bail, if the
Judge thinks that be should be bailed, and
orders his discharge on bail, the Common
wealth may have writ OF error to that or
der; but il she take one, that the prisoner
shall be entitled to 60 at large upon bail
during the time that she is prosecuting her
writ Of error-that is, II, when the order is
made directing the prisoners discharge on
bail, the Commonwealth asks to have the
execution of the order suspended until she
can make application for writ Of error; the
order shall not be suspended so far as to re-
NIT the prisoner to custody; but in the
mean time, while application is being made
for review OF the order, the prisoner shall
go at large on bail, though the order may
be suspended SO far as every other matter is
concerned. This must be the case in which
the statute authorizes the Judge to hold the
prisoner to bail when he thinks he ought
to be discharged.


It is impossible that the Legislature could
have intended to say that when prisoner
is in custody, as the Judge thinks, in utter
defiance OF law, that he should yet hold him
in custody while the Commonwealth prose-
cutes lazy writ of error to his Judgment.


TX the prisoner were poor man, unable
to give bail, it might amount to this that he
would be incarcerated in dungeon for an
indefinite time, although the Judge believed
implicitly that there was not q shadow of law.
for holding him. IT this could, by any posi-
bility, be held to be what the statute means,
vet It is to- be observed that the statute is
not mandatory. It provides that the Judge
may, IN his discretion. hold the prisoner to
bail. And it seems incredible that an up
right Judge could keep o prisoner in GUS
tody WhGan he believed TO be held without
authority Of law when the matter in dispute
was sum OF money less than one hundred
dollars, and the Commonwealth could still
pursue the prisoners estate with her exc
sutien, outstanding his discharge.


Therefore, bad understood the motion
o bold Mayo to bail to have been made /
should yet have resisted it, and / believe
Every impartial reader will say cessfully.


WILLIAA j.. royal.


a SCGGEsTIoN 10 gHE RICHMoiD PAPEgs.
Would il not be well for the Richmond pa-
pers to urge the proprietors OF the hotels OF
hat city 20 lower their rates for tho benefit
u delegates who VIII attend The C0pyen-
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