intimated that they would be willing to hear an argument, and invited the counsel to proceed. The counsel observed they were not prepared for the argument; that if the court would indulge them until the first Saturday of the term, they would be then ready to argue it.
On which day Griffin appeared for the prisoner. He contended, 1st. That the court would look into the papers in order to decide whether they would bail or not.
*142He contended courts had the power, and it was their duty to look into the depositions in order to decide whether the prisoner should be bailed, and what amount of bail ; 1 Chit P- 193- 3 East. 157. 1 Leach, 270.
2d. Not only would the court look into the depositions, they will confine themselves to them. 1 Chit. p. 106. Q Str. 1138.
3d. That it made no difference whether the application to bail was befpre or after indictment ; and cited 2 Str. Dalton’s case. 1 Salk. p. 130.
And concluded by observing that these authorities went to show that no extrinsic matter would be allowed or received upon the motion. The depositions of third persons would not be received; and if the depositions could not be read, the'prisoner would be remediless. -
Maxwell replied that he thought, from the consequences that might be supposed to result from allowing the depositions to be read, would be sufficient answer to the argument of the counsel for the prisoner ; for it might appear by the papers, that the prisoner was not guilty, or if guilty, not in the same degree as charged in the indictment, and yet the proof before the grand jury might have been of the most positive and satisfactory nature : that it would often be impossible to obtain the nature and amount of that testimony by an inspection of the papers.
The court decided against the motion.
See this case, post.