The American Judiciary by LLD Simeon E. Baldwin
page 241 of 388 (62%)
page 241 of 388 (62%)
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Such an inquiry has long been the English practice.
The hearing before the committing magistrate, if any contest is made, generally does not take place until some time after the arrest. Each party is apt to wish time to prepare for it. Meanwhile, the defendant can generally claim the privilege of release on bail, unless the crime be capital and the circumstances strongly point to his guilt. Here our practice differs from that of an English court of inquiry. While there bail must be allowed in case of misdemeanors and may be in case of felonies; the amount required is frequently so large as to be prohibitory.[Footnote: Maitland, "Justice and Police," 131.] The essence of bail is that the prisoner should enter into an obligation, together with one or more others of pecuniary responsibility as his sureties, to appear whenever he may be called for in the course of the pending proceeding, on pain of forfeiting a certain sum of money. All our Constitutions forbid the taking of excessive bail. The sum should be large enough to give a reasonable assurance that he will not allow it to be forfeited. In fixing the amount, which in each case is left to the good judgment of the officer before whom it is taken, special regard should be had to the gravity of the offense, the nature of the punishment in case of conviction, and the means of the defendant or his friends. If too large an amount is demanded, the defendant can get relief on a writ of _habeas corpus_ issued by some superior judge. This privilege of bail in most States extends to, or at the discretion of the court may be allowed at, any stage of a cause, |
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