2. When the law says, It shall and may be lawful to bail for felony under particular circumstances, we must presume, that, before the passing of that act, it was not lawful to bail under those circumstances. The terms used by the legislature are enacting, not declaratory.—3. Notwithstanding the party may have been imprisoned during the greatest part of the vacation, and during the whole session, the court are expressly forbidden to bail him, from that session to the next, if oath be made that the witnesses for the King could not be produced that same term or sessions.
Having faithfully stated the several acts of parliament relative to bail in criminal cases, it may be useful to the reader to take a short historical review of the law of bail, through its various gradations and improvements.
By the ancient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail, before conviction, almost in every case. The statute of Westminster says, that before that
