
    CONSTITUTIONAL COURT, COLUMBIA,
    DEC., 1812.
    State v. Moses Hill.
    , After a bill of indictment found for capital felony, the indictee inay be admitted to bail, at the discretion of the Court of General Sessions, and that court may hear and consider affidavits, tending to shew that the prosecution was instituted from malice or mistake.
    The judges of the Court of General Sessions, like the Court of King’s Bench, have the power at common law, which is not taken away by the statute, of bailing in all cases.
    This case is stated in the following opinion of Judge Beevaed.
    Argued by S, Faeeow, and Ceeswell, for the prisoner; and by Mr. Solicitor Taylor, for the State.
    For the prisoner, it was contended, that the judges of the Court of General Sessions have a discretionary power to bail in every case, as the Judges of the King’s Bench in England have, except in cases of commitment by Parliament for contempt. 4 Bl. Com. 398. 2 Hawk. 176. Cowp. 333. And that the judge ought to have considered and decided on the affidavits produced.
    For the State, it was insisted, that after a bill of indictment found by the grand jury, in a capital case, the court has no power to bail, unless in extreme cases, where the life of the prisoner is in danger from disease, &c. And that no affidavits could be properly received and considered by the court, which would contradict the finding of the jury.
    Beevaed, J. This is a motion to reverse the decision of Mr. Justice Bax, in the Court of General Sessions held for the district of Laurens, and to order the defendant .to be liberated upon bail.
    A Rill of indictment was found by the grand jury against the defendant, for inveigling, enticing, &c., a negro slave to leave his master, contrary to the act of assembly, which declares such offence to be capitally criminal; and the State not being ready to proceed in the prosecution, a motion was made on the part of the defendant, to admit him to bail, founded on several affidavits .tending to shew that the prosecution was instituted from malice, or mistake ; and that the inveigling of the slave was not felonious, or fraudulent, but in consequence of a fair claim of property: but the judge refused to hear the affidavits read, after being informed of their import, under an impression that after a bill of indictment found, the court had no power to bail the indictee, in a capital case, under any cir-cumsiances, appearing by affidavits, which go to contradict the finding of the jury. The appeal is from this decision. *
    It has been argued, — 1st, that after a bill of indictment found for a capital felony, the indictee cannot, under any circumstances, be legally bailed; and 2d, that even if a Court of General Sessions .has fhe’¡power to bail in such case, yet under the circumstances stated to the court, as the reasons for bailing the. prisoner, in this case, the court had no discretionary power to bail, and, therefore, was not bound to hear and consider the affidavits offered on that occasion.
    I am clearly of opinion, — 1st, that the court had the power to bail; and 2d,' that the court ought to have heard and considered the affidavits which were offered; and ought to have decided on the merits of the application after hearing and considering the afS-davits.
    1. If any credit is due to the oracles of the English law, Coke and Hale, (to whom may'be added Hawkins and Blackstone,) there is no doubt but the Court of King’s Bench, in «England, has the power of bailing in all cases whatsoever; and there is as little doubt that otir Courts of General Sessions have the same power. The Court of King’s Bench had the power at common law, and it is not taken away by any statute. This is clearly laid down by Lord Coke in his comment on thé stat. Westm. prim. 3 Ed. 1 c. 15. 2 Inst. 185, 186. See 3 Vin. Abr. 508, 445. This statute forbids bailing in certain cases, by the sheriff, justices of peace, and others, virtute officii, or by force of the common writ tie Jiomine re-plegiando, or de manucaptione, but it extends not to the Court of King’s Bench, which may bail in any case, even in high treason, or murder, and as well after a bill found as before. 2 Inst. 183. 2 Hal. Hist. P. C. 129, 131. 2 Hawk. 176. 4 Inst. 71. Skin. 163. Balstr. 85. 3 Vin. Abr. 510. 4 Bl. Co. 398. No court ought to bail after the party has been convicted, for the intendment of law in bail, is quod stat indiffierentor, whether the accused is guilty or not. 2 Inst. 187, 188.
    2. The court ought to have considered and decided on the merits of the case, as contained in the affidavits. It seems to me strange to say, that the court had no discretionary power in this particular instance, because the affidavits went to contradict the finding of the jury. This is a distinction I have not met within any of my researches on this subject, in "any book of authority, or any other. The objects of most consequence, in exercising the power of bailing, I apprehend, are, to promote the ends of public justice, and secure the liberty of the citizen. A man against whom a bill of indictment may be found for a capital offence, may perchance be clearly innocent: and if his innocency can be made manifest by affidavits submitted to the court, I see no reason why they ought not to be received, and allowed their proper weight. I admit that the discretionary power of the court may be abused: but it may as as' well be abused in any other instance as in this. It is no con-elusive argument against the proper use of it, that it may be abused. Lord Holt refused to bail after an indictment for murder, although the evidence, upon reading it, did not seem sufficient, as it might discourage the prosecution. 1 Salk. 104. This caution was, no doubt, very proper, and the example may be worthy of imitation ; but it does not prove that he was not authorized to bail, but the contrary. It proves, too, that affidavits were submitted, and con-aidered by him, touching the innocence and guilt of the party indicted. This appears to have been a common practice. It was done in Farrington’s case, 2 Jon. 222, where the indictment was for murder, which being removed into the King’s Bench, the pri.. soner, after pleading not guilty, was bailed, the court being satis, fied, by several affidavits, that there was good reason for it. So in Barney’s case, 5 Mod. 323, and in the case of Lord Mohun, Skin. 683, which were also cases of murder after bills found ; and in many others which might be mentioned.
    I think the motion ought to be granted.
    Dec. 3d, 1812.
    Colcock, J., was of opinion the court had power to bail.
    Nott, J., was of the same opinion.
    Smith, J., contra.
    
    The court had no power to bail after bill found.
   Geimke, J.,

of the same opinion, except in extraordinary cases, where there is a contagious distemper in the prison, &c.

Brevaed, Nott, and Colcock, Js.,

were of opinion the court ought to exercise a discretion in considering and deciding on affidavits produced, although they may tend to controvert the finding of the jury : but Nott, and Colcock, Js., were of opinion that the judge had done so in this case. He refused to héar the affidavits read.  