xcluded on the trial, and the rest
of the evidence being slight, he was accordingly acquitted. Now, if
upon the enquiry thus instituted, and thus conducted, it appears,
either that no such crime was committed, or that the suspicion
entertained against the accused is wholly groundless, or that, however
positively accused, if the balance of testimony be strongly in favour
of his innocence, it is the duty of the magistrate to discharge him.
But if, on the other hand, the case seems to have been entirely made
out, or even if it should appear probable, that the alleged crime has
in fact been perpetrated by the defendant, he must either be committed
to prison, there to be kept, in safe custody, until the sitting of the
court before which the trial is to be heard; or, he may be allowed to
give bail--that is, to put in securities for his appearance to answer
the charge against him. In either of these alternatives, whether the
accused be committed or held to bail, it is the duty of the magistrate
to subscribe the examinations, and cause them to be delivered to the
proper officer, at, or before, the opening of the court. Bail may be
taken by two justices in cases of felony, and by one in cases of
misdemeanour. In this stage of the proceedings, as the commitment is
only for safe custody, whenever bail will answer the same intention,
it ought to be taken, as in inferior crimes and misdemeanours; but in
offences of a capital nature, such as the heinous crimes of treason,
murder, and the like, no bail can be a security equivalent to the
actual custody of the person. The nature of bail has been explained,
by Mr Justice Blackstone, to be "a delivery or bailment of a person to
his sureties, upon their giving, together with himself, sufficient
security for his appearance: he being supposed to continue in their
friendly custody, instead of going to gaol." To refuse, or even to
delay bail to any person bailable, is an offence against the liberty
of the subject, in any magistrate, by the common law. And the Court of
Queen's Bench will grant a criminal information against the magistrate
who improperly refuses bail in a case in which it ought to have been
received. It is obviously of great importance, in order to ensure the
appearance of the accused at the time and place of trial, that the
sureties should be men of substance; reasonable notice of bail, in
general twenty-four or forty-eight hours, may be ordered to be given
to the prosecutor, i