THE ESSAY.

IT may be objected, that this eſſay is ill-timed; as tending to influence the deter⯑mination of ſuits now pending; but the ob⯑jection is erroneous: The queſtions are not of law but of fact. The determinations lie with juries not with judges. The inquiries on the trials will be merely, whether the defendant be guilty or not guilty of the injury laid in the declaration, and if guilty, what damages the plaintiffs have ſuſtained. The arguing points of law is at all times legal, and the points herein diſcuſſed, are in every reſpect irrelevant to the merits of the iſſues which the juries are to try. Any man as amicus curiae may inform a judge on a point of law, but no man ſhall give information to a jury on a fact, unleſs he be a witneſs previouſly ſworn. Earl Mansfield ſome years ago pro⯑hibited the publication of evidence given [14] againſt priſoners on examinations before juſ⯑ſtices of the peace, becauſe the evidence being exparte, the publiſhing of it tended to create an influence againſt the priſoner, which might be injurious to him on trial; but no judge ever yet aſſerted that animadverting on matters of law was illegal, and yet in the caſe of general warrants, the preſs teemed with legal diſquiſitions.

The cauſes for promulging the law of the land, on the diſcretion of judges in granting fiats, and on bail, having originated in the ſuits carried on againſt Magee, the printer, it will be frequently neceſſary to advert to them. In doing this, however, it is not intended to ſtigmatize with invective, or ſe⯑vere imputations, the proſecutors or plain⯑tiffs. The law gives a remedy for every injury, and if they ſuffered, or imagined they ſuffered wrong, they had an unqueſ⯑tionable right to ſeek redreſs from the laws of their country.

Magee, conſidered as a private individual, is equally an object of indifference. This [15] eſſay neither takes into conſideration his guilt, nor his innocence, that is the pro⯑vince of a jury; but the proceedings againſt him, are of the moſt ſerious concern to the people; every individual, of whom are entitled to inquire, whether his own rights and liberties have been attacked in the perſon of his fellow citizen, under the ſanction of a proceſs, iſſuing from a court of law, which, by its inſtitution, is the guardian and protector of thoſe rights and liberties.

The honour of the laws of Ireland, its judges, and its profeſſors, is alſo materially involved in the ultimate deciſion upon theſe proceedings. The Engliſh bar have treated them with contempt and reprobation. It is at this day a common obſervation in Weſtminſter-Hall, that "Ireland will ſoon repent the loſs of writs of error and ap⯑peal to the courts of England." Muſt not the pride and ſenſibility of Iriſhmen, ſuffer to the quick from the fallacious ſlander, thus indiſcriminately thrown upon all the judges, and all the barriſters of this king⯑dom? [16] And muſt not theſe ſufferings be aggravated in the minds of thoſe who know, that unſullied purity, extenſive know⯑ledge and great ability, have ever been found at the Iriſh bar? That the bench is radiated by ſacred worth, ſpirit, and in⯑dependence? That the law is promulged by judges of inflexible integrity, united with intelligent minds, fortified by invin⯑cible virtue, and diſpiſing with equal con⯑tempt thoſe accommodating fears, which ſometimes give temporary popularity, and thoſe mean pliabilities, which bow and cringe with implicit obedience, to the in⯑fluence of every adminiſtration?

Under the torture of thoſe ſufferings, the writer of this eſſay with ſedulous at⯑tention, ſearched the records and repoſito⯑ries of the law, for precedent or princi⯑ple, upon which he could juſtify, excuſe, or even palliate thoſe proceedings, thus re⯑probated in England.

What was the conſequence?

[17]He found that the opinions of the Eng⯑liſh lawyers, ſo far as they reſpected ar⯑reſts by fiat, in caſes of libels, were well grounded; and, to his great ſatisfaction, he is now convinced that the Iriſh bar, and every independent member of the Iriſh houſe of commons, maintain the ſame doctrine, and have thereby vindicated the juriſprudence of their country, and the an⯑cient practice of their courts from wanton and raſh aſperſions.

Theſe extraordinary proceedings, thus uni⯑verſally condemned, of courſe appeared to him as raſh and alarming innovations on the indubitable rights of the people. They appeared to him as grievances, ſpringing from latent motives, and tending either to oppreſs private individuals, or to eſtabliſh precedents for the purpoſe of coercing the liberty of the preſs, an object that has been repeatedly attempted, and too often with ſucceſs, ſince Mr. Pitt has been placed at the head of the Britiſh adminiſtration, though no miniſter was ever ſupported by a more licentious abuſe of his opponents.

[18] The Caſe of MAGEE, is this,

He has been arreſted on fiats, or judges warrants, and held to ſpecial bail in ſeveral actions, brought againſt him for publiſhing libels on private individuals; and he has been held to bail in the following ſums—four thou⯑ſand pounds—eight hundred pounds—one thouſand pounds—and two thouſand pounds, making in the whole, the ſum of ſeven thou⯑ſand eight hundred pounds.

Now as each bondſman muſt ſwear him⯑ſelf, when juſtifying his bail, worth double the ſum for which he becomes bound, the bail demanded amounts to thirty-one thou⯑ſand two hundred pounds! and this unfor⯑tunate defendant is a private ſubject—the printer of a newſpaper!

Two queſtions reſult from this caſe:

FIRST—Were the arreſts legal?

[19]SECOND—If the arreſts were legal—was the ſpecial bail demanded of the defendant legal?

In anſwer to theſe queſtions it has been aſſerted—

That the right of granting a fiat is with⯑in the diſcretionary power of the judge: And,

That the quantum of bail demanded is within the ſame diſcretionary power.

It is therefore the purport of this eſſay to ſhew, that the charges exhibited againſt the de⯑fendant being for libels, and the objects of the imputed calumnies private individuals, the interference of a judge, by fiat, in ſuch caſes, is unprecedented, the ſpecial bail de⯑manded of the defendant exceſſive; that nei⯑ther of thoſe acts of the judge are within the rules of legal diſcretion, and that they are both contrary to the LAW OF THE LAND.

The granting of fiats, in any caſe, being diſcretionary, the firſt point to be diſcuſſed, [20] is the nature, and legal extent of that power.

LORD COKE defines diſcretion thus—It is, ſays that learned juriſt, to diſcern between right and wrong, ſhadows and ſubſtance, equity and colourable gloſſes, and not to do according to our will and private affections; and ſuch diſcretion is to be limitted and bounded.

2 Inſt. 56. Therefore, whoever hath power to act at diſcretion is bound by the rule of reaſon and law. 2 Inſt. 298. For juſtices muſt remember that it is legal diſcretion, in which, in favour of li⯑berty, great tenderneſs is to be uſed,—And though there be a latitude of diſcretion given to one, Hob. 158. yet he is circumſcribed that what he does be neceſſary and convenient, without which no liberty, no claim to juriſdiction can de⯑fend it.

For theſe reaſons when the law leaves any thing, to any perſon, to be done according to his diſcretion, 1 Lit. ab. 477. the law intends it muſt be done with ſound diſcretion and according to [21] law. And the COURT OF KING'S BENCH hath a power to redreſs things that are other⯑wiſe done, notwithſtanding that they are left to the diſcretion of thoſe who do them.

The ſuperintending power which the con⯑ſtitution thus repoſes in the court of king's bench, does not, however, authoriſe the judges of that court to exerciſe an uncontrol⯑led diſcretion over the perſonal liberty of the ſubject. The reſtrictive rules of legal diſcre⯑tion, are as binding on the chief-juſtice and his brethren, whether acting collectively, or individually as on any ſubordinate magiſ⯑trate; they are as ſtrictly binding on judges in courts of law, as principles and prece⯑dents are binding on the chancellor, or the barons of the exchequer in the courts of equity.

If diſcretion was not thus circumſcribed the ſubject, ſays Lord Coke, 1 Inſt. would feel it a crooked line, ruinous to the perſonal liberties of the people; 1 Black. 134. whoſe liberties or rights have never been abridged, by the laws of England, Mont. S. without ſufficient cauſe, L. b. 11. c. 5. and can [22] not ever be abridged, at the mere diſcretion of the magiſtrate, without explicit permiſ⯑ſion from the laws.

1 Black. 6. The reaſon of this doctrine is obvious. Civil liberty which is the very end and ſcope of the Engliſh conſtitution, rightly underſtood, conſiſts in the power of doing whatever the laws permit; which is only to be effected by a general conformity of all orders and degrees, to thoſe equitable rules of action, Inſt. 1. 3. 1. by which the meaneſt individual, is protected from the inſults and oppreſſion of the greateſt. If this was not the caſe there would be no liberty. For as Smith in his Commonwealth of England obſerves, ſpeaking of a court of equity, there is as much difference between the conſciences of men, or their diſcretion, as between the meaſure of their feet; and as one man may have a longer or ſhorter foot than another man, ſo may his conſcience or diſcretion be more contracted or extenſive.

If the perſonal liberty of the ſubject was not thus protected by the law; if the higheſt [23] magiſtrate, the KING himſelf, was not thus reſtricted in the exerciſe of diſcretion, weak, or corrupt judges, influenced by caprice, by reſentment, by party prejudice, or by obſti⯑nate ignorance might, under pretence of le⯑gal authority, exerciſe an arbitrary power. The fiat or warrant would attack the perſon of the deſtined victim—The demand of enormous bail would ſend him to priſon, where his ſufferings being unknown to the public, or if known, being ſoon forgotten, inevitable ruin, to himſelf and family, would be the conſequence. Impriſonment is the leaſt public, the leaſt ſtriking ſpecies of puniſhment. Arbitrary power of inflicting it, is the moſt dangerous engine that could be put into the hands of a man inclined to injure the rights of the people. Therefore, the common law has wiſely provided againſt it, by the writ of habeas corpus, which by a declaratory enacting and penal ſtatute, has been made one of the great bulwarks of the peoples' liberties.

Happy is it for the ſubjects of the Britiſh and Iriſh crowns, that judicial diſcretion is thus cir⯑cumſcribed [24] within the bounds of reaſon, and controled by the rules of law. Men of the moſt conſummate knowledge and unbiaſſed probity, are ſtill men. Be their judgments ever ſo acute, their hearts ever ſo uncorrupt, yet even too exquiſite a ſenſibility of nature may in ſome caſes miſguide the one and pervert the other. Affection and prejudice operate ſtrongly in perſons of lively ſenſati⯑ons and urge them often to be unjuſt in thoſe very inſtances wherein they flatter themſelves they are only generous. Rare are thoſe talents which conſtitute a great judicial character. It requires a ready and clear ap⯑prehenſion; a found, diſtinguiſhing and exact act judgment; a comprehenſive underſtand⯑ing; freedom and liberality of thought; ſa⯑gacity to inveſtigate the great principles of juſtice; and diſcernment to ſee where thoſe principles lead.—BACON was the wiſeſt chan⯑cellor ever ſat in a court of equity: JEF⯑FERIES was a moſt excellent lawyer; but the one was corrupt, and the other was cruel. Had theſe men been ignorant, would their oppreſſions have been leſs?

[25]Having ſhown the nature and legal ex⯑tent of diſcretionary power in judges the next point is,

Were the arreſts, in the ſeveral ſuits againſt Magee for publiſhing libels, legal?

The granting of a fiat, or judges warrant to hold a defendant to bail, is a truſt re⯑poſed in the judges, to be exerciſed only on extraordinary caſes of neceſſity; and in what ever caſe they are granted, the greateſt delicacy, circumſpection and precau⯑tion ſhould be attended to.

A fiat ſhould never be granted in any caſe, but on poſitive affidavit, ſtating ſpecial circumſtances of actual loſs, of mayhem, of battery, or that the defendant is going to quit the kingdom.2 Inſt. 186. If a perſon has dangerouſly wounded another, the juſtice ought to be very cautious how he takes bail, till the year and day be paſt; becauſe the defendant is liable to an indictment for murder, if the wounded party die within a year and day; and the ſame reaſon ſhews [26] the neceſſity of granting a warrant to appre⯑hend the delinquent; beſides in caſes of actions for mayhem, or violent battery, the wounds and the blows are poſſitive proofs of actual injury, and a breach of the peace. The aggreſſor is therefore held to bail not only to anſwer the damages, but to prevent his flight from juſtice.

When a fiat is applied for on a poſitive affidavit that the defendant is going to leave the kingdom, and the proof of ſuch fact is accompanied with the further proof of ſpe⯑cific damages, a fiat is neceſſary to render ſuch defendant ameanable to juſtice, and the conſequences of the ſuit. It is more expeditiouſly procured than the writ ne exeat regno, which may be granted, in any caſe, 2 Chanc. Caſ 245. where there is danger of ſubterfuge from the juſtice of the nation though of private concernment.

The law, or rather the diſcretionary power which ſhould rule, the conduct of the judge, in granting a ne exeat regno, applies ſtrictly [27] to the exerciſe of legal diſcretion in granting a fiat.

LORD CHIEF JUSTICE HOLT ſays, a ne exeat regno ought not to be granted, 2 Chanc. Caſ. 245. but upon great reaſon and examination, otherwiſe a homine replegiando may lie. Farr. 9.

In the application for the writ ne exeat regno, which is a prerogative or ſtate writ, no general averment, though upon oath will be held ſufficient.

The plaintiff applying for a ne exeat regno, Skinn. 136. is to make poſitive oath of his debt, and the writ is always marked for the ſum ſworn in the affidavit,Chanc. C. 115. in words at length and not in figures, and the plaintiff ſwears the defendant is going out of the kingdom, 7 Mod. 9. which if he ſhould do the debt may be loſt. The order is till anſwer, or further order, Ld. Ray. 696. and the party is obliged to give ſecurity before the court will diſcharge the writ, which ſecurity is taken by recognizance before a maſter, and is in the penalty of what is ſworn to be actually due and the ſheriff takes bail accordingly, Caſ. in B. R. 562. [28] when he arreſts the party thereon, S tiles 441. —442. the ſum ſwom to be due being conſtantly endorſed on the ne exeat regno as a guide for the ſheriff to take bail by.

From a comparative view of the writ of ne exeat regno with a judges fiat, it appears then, that in granting the latter, the judge ſhould conſider and ſtrictly adhere to the le⯑gal rules of diſcretion which are ſtrictly fol⯑lowed in granting the former.

The reaſons for granting a fiat ſhould be equally ſtrong. The facts ſtated in the affi⯑davit ſhould be equally ſpecific, and the ſitua⯑tion of the plaintiff, his credibility, and his cauſe of action, ſhould equally entitle him to this extraordinary interference and favour of the judge.

Thus in Hilary 1787, in the common pleas of England, an application was made to Mr. Juſtice Gould to hold a defendant to bail, on a breach of promiſe of marriage. The affidavit ſtated the cauſe of action, that de⯑fendant (a lady) was going to quit the king⯑dom, [29] and that plaintiff bad ſuffered five hun⯑dred pounds damages. The judge held this affidavit inſufficient, becauſe plaintiff did not ſpecifically ſtate the cauſe or cauſes by which the damages accrued, but gave him leave to amend. He then ſwore, that at the particu⯑lar requeſt of the defendant, he ſold his com⯑miſſion for five hundred pounds, and ſpent the money on her, ſhe having poſitively pro⯑miſed him marriage, and to purchaſe him a commiſſion of higher rank, and on this af⯑fidavit ſhe was held to bail.

No man will be ſo weak or ſo raſh as to aſſert that the ſame caution and preciſſion is not neceſſary in granting a warrant at the diſcretion of a judge, that the law requires in iſſuing a prerogative writ. The latter is a royal truſt repoſed in the king, F. N. B. 95. which the law does not preſume that he will abuſe,Lane 29. or make uſe of to the prejudice of his ſubjects. 2 Co. 17. C. 76. The former is a delegated truſt from the king to his repreſentative, 10 Co. 92. the judge, who is ſworn to execute it according to law, and who is reſponſible to parliament for his conduct.

[30]Having examined the nature and legal extent of diſcretionary power, the next ob⯑ject is,

Whether a defendant can be held to bail for publiſhing a libel? againſt a private in⯑dividual.

Magna Charta enacts, that no man ſhall be impriſoned but by judgment of his peers, or by the law of the land. The impriſonment of Magee has not been by the judgment of his peers. Has it been by the law of the land? The anſwer is, there is neither law nor practice to ſup⯑port ſuch a proceeding; for the diſcretion exerciſed, is not within the rules of " ſound reaſon, law, neceſſity, and convenience."

The definition of a libel ſhows, that it is not an offence, for which a defendant ſhould be held to bail, even on a crimi⯑nal action.

[31]A libel is a miſdemeanor. and is eſteem⯑ed as ſuch, not for being a breach of the peace, but for its direct tendency to a breach of the peace by provoking to fight. Now, the law of England never intended, that the ſubject ſhould be held to bail for any miſdemeanor, that did not amount to an actual breach of the peace; 6 Mod. 178. and formerly none could be taken up for a miſdemeanor till indictment found. Regina v. Tracy. 1 Haw. 130. Therefore, mere words of paſſion, as liar, knave, or raſ⯑cal, do not create a forfeiture of recogni⯑zance to keep the peace, for they do not challenge a man to break the peace, though they tend to it; from which the reaſonable concluſion is, that as ſlander does not in⯑cur a forfeiture of recognizance for keep⯑ing the peace, neither is it an offence that can juſtify a judge, in holding a defendant to bail.

It may be anſwered, that, though bail is not demandable in a criminal proſecution for a libel, againſt a private individual, yet the plaintiff may demand it in a civil ſuit.

[33]Thoſe who thus argue, are called upon to ſhew a precedent, for holding a defen⯑dant to bail on any action for a libel, ex⯑cept in caſes of ſcandalum magnatum, or ſlander of title. To make a plaintiff aſſeſſor of his owm damages, conceived perhaps in a moment of heat or reſentment would be, to eſtabliſh the groſſeſt miſchief. Damages can⯑not be aſcertained but by verdict of a jury on hearing evidence, and in many caſes ver⯑dicts have been ſet aſide for exceſs of da⯑mages. Perjury and oppreſſion would be among the conſequences. It would be de⯑ciding by anticipation on the quantum of damages, which the jury ſhould give, and on the oath of the plaintiff himſelf. It would be contrary to natural juſtice, and the liberty of the ſubject, by enabling an inhuman plaintiff to impriſon a poor friend⯑leſs defendant, upon an averment, for the ſpace of three terms, when upon trial it might appear that he was not guilty of the fact, or that what he publiſhed was not actionable. It would be uſeleſs as well as cruel, for thus puniſhing before conviction by fiat, when accompanied by exceſſive bail, [33] would be only a ſeverity known in thoſe countries, where private informers are encouraged to proſecute men obnoxious to the ſtate, and where torture precedes trial.

The following cauſes lately tried at Weſt⯑minſter, are ſo many proofs, that it is not the practice of the courts there, to grant warrants either in criminal or civil ſults brought upon libel.

Theſe cauſes were—

An information ex officio, by the Attorney General, againſt Lord George Gordon, for a libel againſt the Queen of France.

The King, on the proſecution of the Prince of Wales, againſt Walter. Indictment.

The King, on the proſecution of the Duke of York, againſt Walter. Indictment.

The King, on the proſecution of the Duke of Clarence, againſt Walter. Indict⯑ment.

[34] Doctor Walcot, againſt Walter. An ac⯑tion.

Lord Loughborough, againſt Walter. Two actions.

Right Hon. William Pitt, againſt Perryman. An action.

The Attorney General, againſt Perryman. Information ex officio.

The King on the proſecution of Mrs. Fitzherbert, againſt Doctor Withers. Indict⯑ment.

The Attorney General, againſt Almon. In⯑formation ex officio.

The Attorney General, againſt Stockdale. Information by order of the King on addreſs of the houſe of commons.

The libels in all the above cauſes, (except the laſt), were of the moſt atrocious nature. Among the proſecutors and plaintiffs are ſeen [35] the moſt illuſtrious characters. A queen, three princes, a lord chief juſtice and a doctor of laws. Walter and Withers were convicted and ſeverely puniſhed. Lord Loughborough and Mr. Pitt recovered da⯑mages. Perryman and Almon fled and were proceeded againſt by outlawry; yet, in none of theſe proſecutions and ſuits, which all ori⯑ginated within the laſt two years, was a de⯑fendant held to bail, or a fiat even demanded.

The above caſes are proofs ſufficient to ſhew that on proſecution and actions for libels, it is not the practice of the court of King's Bench of England to iſſue ſuch proceſs: and it follows that ſuch practice can not be legal here; for practice muſt be conſiſtent with law, and the common law of England, is by the aſſent and adoption of the people of Ireland, the common law of Ireland.

Can it be ſhewn that EARL MANSFIELD, a prerogative judge, who extended the law of libels to its utmoſt ſtretch, ever granted a fiat in the caſe of a libel? Certainly not; his lordſhip well knew it was not within [36] his judicial diſcretion; he well knew there was neither law nor practice to juſtify the iſſuing of ſuch a proceſs, in ſuch a caſe. To all thoſe therefore who argue in ſup⯑port of the legal authority to hold defen⯑dants to bail for publiſhing libels, may be applied Earl Cambden's requiſition to the noble lord above mentioned, who in arguing the writ of error brought on the judgment in the King's Bench on literary property ſaid—"Shew me a caſe."

But ſuppoſing a few caſes ſhould be ſhewn in ſupport of practice, does it follow that the fiats recently iſſued againſt Magee are legal? Practice, like cuſtom, if contrary to law cannot be ſanctified by repetition or continuance. General warrants were in practice from the revolution down to the 6th of the preſent king, when after being ſolemnly argued in the court of Common Pleas and King's Bench, they were de⯑clared illegal.

"The practice of a particular magiſtrate cannot controul the law. Communis error [37] is not in this caſe ſufficient to make law. This is the duty and therefore doubtleſs the inclination of the court to ſtop the miſchief as ſoon as it is com⯑plained of."—Caſe of General Warrants

Theſe were the words of Dunning a great conſtitutional lawyer, 3 Burr. 1762. and they made a proper impreſſion upon the court: for in the ſame caſe Lord Mansfield ſaid, "a uſage to grow into law ought to be a general uſage, Money et al verſus Leach. communiter uſitata et ap⯑probata; and which after a long con⯑tinuance it would be miſchievous to over⯑turn: 3 Burr. 1762. and, Mr. Juſtice Aſton added, "No degree of antiquity can give ſanction to a uſage bad in itſelf."

It may alſo be advanced, that if the judges had not authority to hold libellers to bail, juſtice would be evaded and delinquents eſcape with impunity. But is that the caſe? If the defendant flies, proceſs of outlawry iſſues againſt him, and the voluntary tranſportation of his perſon by flight is a ſeverer puniſhment in the eye of the [38] law, than any the judicial diſcretion of the court can inflict; reſtricted as it now is, by the benign prohibition of the bill of rights, which declares that by the common law of the land, which protects the ancient rights and liberties of the people,Stat. 1. W. & M. exceſſive bail ought not to be required,c. 2. Bollingb. abridgm. tit. Liber⯑ty. nor exceſſive fines im⯑poſed nor cruel and unuſual puniſh⯑ments inflicted.

The refuſing of bail where it ought to be granted, that is in the language of the old law, "to withold priſoners repleviable after they have offered ſufficient bail," 1 New ab. 228. is an offence at common law and by ſtatute puniſhable by grievous amercement; 2 Inſt. 191. Hal. p. c. 97. Stat. Weſt. 1. and de⯑manding bail, where it is not demandable, muſt of courſe appear an offence of equal magnitude, 3 Edw. 3. c. 15. as in each caſe the liberty of the ſubject is invaded. On this legal doctrine much might be ſaid—but delicacy forbids the argument;—the opinion of Dunning be⯑fore ſtated, pa. 36 will probably be followed—3 Burr. 17 [...]2."It is the duty and therefore doubtleſs the inclination of the court to ſtop the miſ⯑chief [39] (of fiats) as ſoon as it is complained of."

Magna Charta has been mentioned and ma⯑ny other old ſtatutes are equally applicable. By the 25. of Edward 3. Stat. 5. c. 4. it is enacted that none ſhall be taken by petition or ſug⯑geſtion to the king or his counſel unleſs it be by indictment of lawful people of the neighbourhood, or by proceſs made by origi⯑nal writ at the common law. 28 Ed. 3. c. 3. Clear it is that a fiat is not an original writ, and it is equally clear, 48 Ed. 3. c. 3. that an averment on oath, or general affidavit is merely a ſuggeſtion to the king or to his judge and re⯑preſentative, and of courſe, that to take or impriſon a man on ſuch affidavit is illegal. Theſe are old ſtatutes, but they are living ones: the law, though it ſleeps, ne⯑ver dies; and acquires reſpect and reverence from antiquity.

BISHOP'S CASE, though not ſtrictly in point, is not irrelevant to this argument.

[40]Biſhop was held to bail in the ſum of two thouſand pounds, and two ſureties of two thouſand pounds each. But mark the difference between the caſes of Biſhop and Magee. Magee has been held to bail before trial in large ſums, for publiſhing libels againſt obſcure individuals. 1 Strange 9. Biſhop was not held to bail till after conviction, on an in⯑formation, for publiſhing a ſeditious libel againſt the ſtate. Biſhop was not held to bail, on an averment or ſuggeſtion to a judge. Magee has been held to bail on looſe affidavits, to anſwer damages eſtimated by the plaintiffs themſelves. Biſhop was held to bail, to ſuffer the judgment of the court; he was committed after conviction of courſe, and being afterwards brought up, it was moved, he ſhould receive the judgment of the court, and be admitted to bail, be⯑ing in a very ill ſtate of health. The chief juſtice ſaid, the offence is ſo great, that an adequate puniſhment may endanger his life, and to leſſen the puniſhment will be an ill precedent; therefore bail him for the pre⯑ſent, [...] Strange [...]. and we will give judgment when he is better.

[41]This was adminiſtering juſtice in mercy.

In England it is enacted, Stat. 12 Geo. 1. c. 29. by a ſtatute to prevent frivolous and vexatious ſuits, "that in all caſes, where the cauſe of action ſhall amount to the ſum of ten pounds, affidavit ſhall be made, and filed of the cauſe of ac⯑tion, and the ſum or ſums ſpecified in ſuch affidavit, ſhall be endorſed on the back of ſuch writ or proceſs, for which ſum or ſums ſo endorſed, the ſheriff or other officer to whom ſuch writ or proceſs ſhall be di⯑rected, ſhall take bail, and for no more."

This ſtatute, though not of legal authori⯑ty in this country yet being founded upon reaſons and principles of the common law, may be fairly cited in argument, as may the caſes reſulting from it.

By theſe caſes, and ſeveral of anterior date, Barnes 100, 105, 109. it is now an eſtabliſhed rule, of the courts at Weſtminſter, Strange 1157, 1209, 1219, 1226. that where the affi⯑davit of the debt does not poſitively ſhew the cauſe of action, and ſpecify the ſum due, 1 Wilſ. 121, 231. the defendant ſhall be diſcharged on [42] common bail, 2. Burr. 625. where a great number of caſes are cited. which is no more than filing as ſureties the names of thoſe well-known non-entities, Meſſrs John Doe and Richard Roe. Indeed ſo tenacious was the old law of the perſonal liberty of the ſubject, 3 Burr. 1447. and ſo cautious was it to diſcourage litigation, that formerly, before a plaintiff could ob⯑tain a writ to hold a defendant to bail, he was obliged to put in two ſureties, that if he was nonſuit, or a verdict given againſt him, he would pay the defendant's coſts and damages▪ but this precaution has become obſolete, and John Doe and Richard Roe, who repreſent common bail in all caſes, are now alſo become the nominal and fic⯑titious pledges to proſecute.

Where damages are uncertain, common bail is always taken, and there are many caſes to this point.

In Reynoldſon v. Blades, Barnes 108. [for covenant broken, (in the treaſury) the court ſaid, where damages can be reduced to a cer⯑tainty, as in covenant for payment of money, or where a tenant covenants with [43] his landlord to pay a certain ſum for every acre of land he plows up, or the like, plaintiff is entitled to bail, otherwiſe not, for it is not reaſonable that defendant ſhould be held to bail for ſuch damages as plaintiff fancies he has ſuſtained, and is pleaſed to ſwear to!

In the above caſe it was alſo held, Barnes 67. that the old caſes, Fleetwood, v. Poictier, &c. are not to be followed.

Shaw brought an action of debt againſt Hawkins on a bond, Shaw a⯑gainſt Hawkins, Barnes notes 72. wherein defendant was held to bail on plaintiff's affidavit. Defen⯑dant moved for a common appearance, and that plaintiff might produce the bond to the court upon an affidavit, that, defen⯑dant had great reaſon to believe, that the whole ſum due was paid by one of his co-obligers, which would appear by endorſe⯑ment made on the ſaid bond when pro⯑duced. Plaintiff in anſwer made affidavit, that a hundred pounds and upwards re⯑mained due to him on the bond after all juſt allowances; that he had ſeen the [44] bond which was uncancelled, and in full force ſome few months before, but had miſlaid it, and being ſeverely afflicted with the gout, could not ſearch among his pa⯑pers himſelf, ſo that it could not be pro⯑cured. It was urged by the plaintiff, that no declaration being yet delivered, defen⯑dant is not intitled to oyer of the bond, but, after a declaration, with a profert in cur, he was intitled to oyer. The court held, that as the matter of bail is diſcre⯑tionary, and as the meaſure of the ſum, for which bail ought to be given, is with certainty only to be had from the bond it⯑ſelf, the bond ought to be produced, and for want of producing it, a common appear⯑ance was ordered.

Where the queſtion was, whether the condition of a bond not appearing upon record, bail ought to be required in a court of error. Spinks v. Bird. Barnes 72. 95. The court held that matter of bail, is properly examinable by affidavit, and the bonds being conditioned for per⯑formance of covenants, bail ought not to be required on a writ of error.

[45]Plaintiff made an affidavit, Le W [...] v. Tol⯑cher. that defen⯑dant had ſeized, and detained his ſhip to his damage, Barnes 79. and a capias ad reſpondendum was thereupon endorſed for all without a judge's order. 1 Com. Dig. 507. Rule for common appearance and ſuperſedeas was made abſolute; 1 Sider⯑fin 183. the da⯑mages in this caſe are uncertain, Compto [...] 29, [...] Bail. and plain⯑tiff was not intitled to bail without a judge's order. In debt, aſſumpſit, trover, covenant by aliam, bail is of courſe in treſpaſs, detinue, in ſpecial action on the caſe, or in covenant at diſcretion; for WORDS no bail, unleſs ſlander of title.

The foregoing caſes, will all apply as ſtrongly in elucidation of the ſubſequent part of this eſſay, as they have in ſup⯑porting the anterior argument.—But if there was not a caſe or ſtatute in point, the queſtion on fiats could be decided upon principles.

It is a principle that no man ſhall be impri⯑ſoned but by the judgment of his peers or the law of the land—Now the law of the land will not hold a man to bail for ſlanderous words—Magna Charta. [46] and where the law holds a man to bail, it muſt be for a ſum ſpecifically ſworn to, and the law of the land forbids that bail to be exceſſive. But if the proceedings in the ſuits againſt Magee, were net prohibited by any poſitive law, nor adjudged illegal by any precedents, yet they might be decided to be ſo upon principles, and the law of England would be a ſtrange ſcience indeed if it were decided upon precedent only. Prece⯑dents ſerve to illuſtrate principles and to give them a fixed certainty; but the com⯑mon law, which is every man's birth-right, is excluſive of poſſitive law enacted by ſtatute, and depends upon principles. Cowper. 39.

Having ſhewn, that in actions for ſlander, neither the law of the land, nor the prac⯑tice of the courts juſtify judges, in holding defendants to bail.

The next queſtion is:

Suppſiong a judge, or a court of juſtice, to poſſeſs diſcretionary power to hold a de⯑fendant to bail on proſecutions, or ſuits for [47] libels, was the bail in which Magee was held, within the rules of that diſcretion and authorized by the law of the land; or was it what the law terms exceſſive?

DALTON and BACON define bail, Dalt. 166. 1 New ab. 205. to be an undertaking of a man's friends, before certain perſons, for that purpoſe authorized, that he ſhall appear at a certain day, and place certain, and anſwer any legal charges exhibited againſt him.

This definition is grounded on that given by Bracton. Lib 3. Tract. 2. ca 8. mu. 8. 9. Bail, ballium (from the French bailler, which comes from the Greek, [...], and ſignifies to deliver into hands) is uſed in our common law, for freeing, or ſetting at liberty, one arreſted, or impriſoned, upon any action, either civil or criminal, on ſurety taken for his appearance, at a day and place certain.

The reaſon why it is called bail is, Impey's Practice in B. R. High-more on Bail. be⯑cauſe by this means in the caſe of civil actions, the party reſtrained, is delivered into the hands of thoſe, who bind them⯑ſelves [48] for his forth coming, in order to a ſafe keeping, or protection from priſon, and the end of bail in a civil action, is to ſa⯑tisfy the condemnation and coſts, or to render the defendant to priſon.

In all civil actions, whereon bail may be taken, See the caſes al⯑ready cited. there ſhall be a poſitive affidavit of the cauſe of action, and no averment of damages is ſufficient, though on oath, to hold a defendant to bail. If a judge, will however take upon him to exceed his judicial diſcretion, and hold a defendant to bail, upon an averment of damages, whereby he allows the plaintiff to aſſeſs his own ſatisfaction, which is clearly the exclu⯑ſive right of a jury, he ſhould take care, that the eſtimate of the plaintiff be not ſo high as to impriſon the defendant, but ſo low as not to prohibit what the law allows him, "protection from priſon;" for this would be tant amount to withholding of bail.

In criminal caſes, bail is not only the means of giving liberty to the priſoner, but [49] at the ſame time, ſecures the extent of the law to puniſh an offender, and as it is the undertaking of a man's friends, for the purpoſe of his appearing to take his trial, or be dealt with according to law.; therefore, bail de⯑manded at the diſcretion of the judge, ſhould always bear a relation to the defendant's ſituation in life, as well as to the offence charged upon him; for ſhould the bail be exceſſive, the defendant is precluded from that "undertaking of his friends," which the law allows, "to protect him from pri⯑ſon, and the judge does not act according to the rules of law and ſound reaſon, which are the guides to judicial diſcretion.

The law, by which bail is regulated in criminal and civil actions, appears clearly to be founded on the ſame principles, and to have the ſame great object in view, "the liberty of the ſubject." It never was intended that a man ſhould be impriſoned for damages, till thoſe damages were aſſeſſed by a jury, or for an offence till convicted by his country, unleſs that offence was of ſuch enormity and notoriety, that the four walls [50] of a priſon only could be conſidered certain ſecurity, for his perſon.

What is exceſſive bail, 1 New Ab. 226. Dalt. 14. 2. Hawk. p.c. 88. 89. Hal. p. c. 97. may eaſily be col⯑lected from the eſtabliſhed law of the land. It is ſaid, not to be uſual for the King's-Bench to bail a man on a habeas corpus, on a commitment for treaſon or felony, without four ſureties, and the ſum in which the ſureties are to be bound, ought never be leſs than forty pounds for a capital crime; and in all felonies there ſhould be two ſureties; but it may be higher in diſ⯑cretion, on conſideration of the ability and quality of the priſoner, and the nature of the offence.

Now it appears from the above authori⯑ties, that if bail is to be taken at all for a libel, which conſidered as an offence, is not a breach of the peace, but only a miſde⯑meanor, tending to a breach of it, that the leaſt bail, which the law allows in caſes of treaſon and felony, is the greateſt that the diſcretion of the court can legally demand [51] for ſuch a ſpecies of miſdemeanor, particu⯑larly where the libel is againſt a private individual, not againſt a peer, or againſt the ſtate.

The bail demanded from Magee in the different actions for ſlander has been ſtated at the enormous ſums of four thouſand pounds, one thouſand pounds, eight hun⯑dred pounds, and two thouſand pounds.

Let us ſee if ſuch demands be conſiſtent with the COMMON LAW.

Let us ſee if it be prohited by the STA⯑TUTE LAW.

Theſe two points may be examined to⯑gether.

The COMMON LAW lays it down, that juſtices muſt take care, 2 Hawk p. c. 89. that under pretence of demanding ſufficient ſurety, they do not make ſo exceſſive a demand, as in effect to amount to a denial of bail. And in ſupport [52] of this doctrine, a long ſtring of caſes might be produed, a few however will be ſuffi⯑cient, as the great principles of bail are to be found in the petition of rights, and the habeas corpus act. But it is to be ob⯑ſerved, that in thoſe caſes, even where the offences charged upon the defendant have been enormous, as actions for Mayhem, for violent and cruel batteries, Barnes Notes 76. 191. for malicious proſecutions, &c. no bail has been demand⯑ed, that bears the leaſt proportion to the ſmalleſt ſum demanded from Magee.

See the old acts cited in p. 36, 37. Stat. 1. Wm. and Mary c. 2. The STATUTE LAW, after recognizing the oppreſſions of a tyrannical government, prohibits the demand of exceſſive bail as a grievance; and it was one of thoſe com⯑plained of by the people, and provided againſt by the legiſlature at the revolution, in the ever memorable bill of rights.

If it be ſaid the bill of rights only re⯑ſpects criminal proſecutions; the anſwer is, it is a ſtatute declaratory of the common law, but if it was not, acts of parliament ſhall be taken with latitude, and extended [53] to caſes within the ſame reaſon, Barnes 89. and calling for the ſame remedy. The nature of the caſe, Raymer v. Bur⯑rough. and the intent of the legiſlature, are to be conſidered, ſo in the conſtruction of the Engliſh ſtatutes, the 11 and 12 of W. 3. Plowed. 366. Lord Zouch's caſe. and 12 Geo. 2. c. 40. the court of common pleas held both that as ſtatutes were made in favour of the liberty of the ſubject, Co. Litt. 24. b. 10 Co. 101. b. Beauſa⯑ges caſe. they may ſtand together. Now whatever reaſon can be ſhewn againſt demanding exceſſive bail on criminal proſecutions, Plowd. 147. acquires ſtrength when applied againſt ſuch a demand, Iſton v. Studd. by the fiat of a judge, in a civil ſuit, wherein the damages Plowd. 36. are undetermined, Platt v. the She⯑riffs of London. wherein the cauſe of action may be juſtified, or wherein no damages whatever may be given, Brooke tit. Parli⯑ament 20. but on the contrary a verdict may be found for the plaintiff. To prevent exceſſive bail is the reaſon on which the prohibitory ſtatutes were founded; Went⯑worth's Office of executors 67. civil ſuits were not ſpecified merely becauſe the grievance now complained of was not then known, Sir Tho⯑mas Jones 62. but they are with⯑in the principle of the ſtatutes, and of courſe within their prohibition and relief.Plomer v. Witch⯑cot.

[54]In England, the principles of theſe ſtatutes have been conſtantly kept alive. LORD MANS⯑FIELD, well knew, that the ſpirited people of that country, were more tenacious of the ſacred privileges of perſon, than of any other right or liberty the conſtitution gives them, and therefore his lordſhip always ſet his face againſt exceſſive bail, and againſt exceſſive damages.

When MR. LAURENS, the American, was brought before the court of King's-Bench, on a charge of high treaſon, his friends made a voluntary tender of one hundred thouſand pounds bail. Lord Mansfield refuſ⯑ed to receive ſuch bail, which he termed enormous, and conſidered unconſtitutional, and ordered the recognizance to be made out for ſuch a ſum, as was proportioned to the offence charged upon the priſoner, his rank, and ſituation in life.

The opinion of Mr Attorney General of Ireland (Wolfe) delivered in the houſe of commons, on Mr. Ponſonby's motion, co-in⯑cides with that of Lord Mansfield, in the [55] caſe of Mr. Laurens; That learned gentle⯑man, News pa⯑per report of the de⯑bate. then declared, "that he did not think a man's ability to give large bail was a juſtification for demanding it."—

In SIR THOMAS RUMBOLD'S caſe, Parl. Reg. of Eng. 1782. by De⯑brett. a bill was brought into the houſe of commons, by Mr. Henry Dundaſs, then lord advocate of Scotland, to reſtrain Sir Thomas from diſ⯑poſing of his property, by holding him to bail, in the ſum of one hundred and fifty thouſand pounds.

The Engliſh lawyers, were rouzed at this unconſtitutional requiſition of the Scotch ad⯑vocate.—

The ATTORNEY GENERAL ſaid, it was a hard caſe to impound a man's whole eſtate merely that he ſhould not fly from juſtice. See defi⯑nition of bail ante. The demanding of enormous bail he reprobated in the moſt pointed terms, as amounting in reality to abſolute impriſonment; becauſe no man under ſuch a rule of bail, could indemnify others to become ſecurity for him.

[56]The SOLICITOR GENERAL argued on the ſame points. He inſiſted that the demand was contrary to the practice of the courts below; and that to exact exceſſive bail was a breach of the conſtitution. The law condemned ſuch bail as being cruel, by inflicting pu⯑niſhment on the innocent—by impriſoning before conviction, men who could procure reaſonable bail to enlarge them till the day of trial.

MR. HASTINGS, impeached for high crimes and miſdemeanors, by the houſe of com⯑mons in the name of the people of Great Britain, was only held to ten thouſand pounds bail, though there could be no doubt of his capability to procure bail to any amount.

From what has been advanced then it is clear,

That the judicial diſcretion of judges, is circumſcribed and bound by the rules of law and ſound reaſon,

[57]That bail can not be demanded on acti⯑ons for ſlander, except in caſes of ſcanda⯑lum magnatum or ſlander of title,

That in all caſes where fiats are grant⯑able there muſt be a poſitive affidavit of the cauſe of action and of the ſpecific damages ſuffered by the defendant,

That the bail demanded in the caſe of Magee was exceſſive, and,

That in civil as well as in criminal ac⯑tions, a demand of EXCESSIVE BAIL is ILLEGAL.

N. B. The writer of this eſſay was not preſent, at the arguments in the court of King's-Bench, in any of the cauſes againſt Magee; nor was he in the houſe of com⯑mons, when the queſtion of fiats and bail came before the repreſentatives of the na⯑tion. Of the proceedings in the King's-Bench he has ſeen no report. Of the arguments in the houſe of commons, he has ſeen only a newſpaper account, which however, tho' [58] probably taken down with inaccuracy, and printed in haſte, diſplays great conſtitutional and legal abilities. To avail himſelf of other gentlemens genius and learning, the writer would have conſidered mean and un⯑fair; he has therefore, with every poſſible caution, avoided the introduction of any par⯑ticular obſervation or expreſſion uſed in the report he has ſeen by the advocates of the people, though in principles it will be found he thinks with them, and the ſtudy of theſe principles of courſe led him to the caſes by which they are illuſtrated.