The general rule is to set the case for hearing—a “preliminary hearing” in a day or two, or a week possibly. You must therefore wait until this time comes. What are you going to do? Must you go to jail until they get ready to have the hearing? No, you are entitled to bail; that is, you are entitled to be discharged upon a bond fixed by the magistrate, commissioner, or judge. There are usually only two offenses which are not, as the saying is, bailable—murder and treason. Usually [pg 131] where murder or treason is charged, the person is not admitted to bail. He is locked up in a cell to await trial; but as a general rule, when a person is arrested his bail is fixed—that is, the amount of the bond which he must file in order to be discharged pending the trial. For instance, if it were a charge of stealing a bicycle, the court might fix the bail at $500 or $1000. That would mean that if he would file a bond, with sureties, conditioned that in case he did not appear for hearing—that he should run away, for instance—the sureties would pay into the court the amount of the bond. Mostly any person of fair standing in a community can secure some friends who will sign such a bond, so that he may have his liberty until the trial.
But the framers of the Constitution, again anxious about the liberties of the people, provided:
“Excessive bail shall not be required.”[74]
There were many instances in the olden days where bail was purposely fixed so high—so far beyond all reason in view of the nature of the offense that the party could not furnish the bail, the purpose being to compel the party to remain in prison. Our Constitution guarantees to every individual that the amount of bail fixed shall be reasonable in view of the nature of the offense and if it is not reasonable, the person arrested may have the matter brought before the court, who will make full inquiry, and reduce the amount of the bail if found to be too large.
All through these guaranties of the Constitution, all through these provisions guarding the sacred rights of every person, you will see that the effort is that justice shall be done, not injustice; that right shall prevail, not wrong. That no one shall be kept in prison, deprived of his liberty, unless absolutely necessary in the interest of justice.
Then after a trial, if a person is found guilty, the Constitution [pg 132] again guards the rights even of the guilty, by providing:
“Excessive fines (shall not be) imposed, nor cruel and unusual punishments inflicted.”[75]
When this constitutional guaranty was written persons then living could recall without doubt the barbarous punishments which had been imposed in civilized countries even for light offenses. Common hanging was not regarded as sufficient punishment. “Hanged, drawn and quartered” was often heard in the courts of countries which had been left behind. It was nothing uncommon to see persons upon the roadside in England left hanging to the gibbet for long periods of time where the people could see them as a warning. It was not uncommon in those times to have a penalty of death imposed for the offense of stealing.
It is almost impossible to read of the punishments of the olden days, even under decrees of courts, without a shudder. Therefore, every one in America should be filled with gratitude that in the adoption of our Constitution these excessive cruelties were forever ended.
We have in this country the death penalty only for the most grave offenses, and it is seldom imposed. Imprisonment is generally regarded as just and sufficient. I might spend an hour if we had time, telling you something of the horrible dungeons which served as prisons in the olden days, into which God's sunlight seldom entered; of the chains the prisoners had to wear; of the starvation; yes, and of the lash—inhumanities which one can scarcely conceive, and which can never disgrace the civilization of America.