This induces an absol..te necessity of expressing upon every commitment the reason for which it is made, that the court, upon a habeas corpus, may examine into its validity, and, according to the circumstances of the case, may discharge, admit to bail, or remand the prisoner." stone, iii. 133.

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Black

Marriot was committed for forging indorsements upon bank bills, and, upon a habeas corpus, was bailed, because the crime was only a great misdemeanor; for, though the forging the bills be felony, yet forging the indorsement is not." Salkeld, i. 104.

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Appell de mahem, &c., ideo ne fuit lesse a baille, nient plus que in appell de robbery ou murder; quod nota, et que in robry et murder le partie n'est baillable."-Bro. Mainprise, 67.

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The intendment of the law in bails is quod stat indif ferenter, whether he be guilty or no; but when he is convict by verdict or confession, then he must be deemed in law to be guilty of the felony, and therefore not bailable at all.”Coke ii. Inst. 188-iv. 178.

is

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Bail is quando stat indifferenter, and not wher the offence open and manifest."-2 Inst. 189.

"In this case non stat indifferenter, whether he be guilty or no, being taken with the maner, that is with the thing stolen, as it were in his hand."-Ibid.

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If it appeareth that this imprisonment be just and lawful, he shall be remanded to the former gaoler; but, if it shall appear to the court that he was imprisoned against the law of the land, they ought by force of the statute to deliver him; if it be doubtful and under consideration, he may be vailed."-2 Inst. 55.

It is unnecessary to load the reader with any further quotations. If these authorities are not deemed sufficient to esta blish the doctrine maintained in this paper, it will be in vain to appeal to the evidence of law books or to the opinions of judges. They are not the authorities by which Lord Mansfield will abide. He assumes an arbitrary power of doing right, and, if he does wrong, it lies only between God and his conscience.

Now, my Lord, although I have great faith in the preceding argurien', I will not say that every minute part of it

is alsolately invulnerable. I am too well acquainted with the practice of a certain court directed by your example, as it is governed by your authority, to think there ever yet was an argument, however conformable to law and reason, in which a cunning quibbling attorney might not discover a flaw. But, taking the whole of it together, I affirm that it consti tutes a mass of demonstration than which nothing more complete or satisfactory can be offered to the human mind. How an evasive indirect reply will stand with your reputation, or how far it will answer in point of defence at the bar of the House of Lords, is worth your consideration. If, after all that has been said, it should still be maintained that the Court of King's Bench, in bailing felons, are exempted from all legal rules whatsoever, and that the judge has no direction to pursue but his private affections or mere unquestionable will and pleasure, it will follow plainly that the distinction between bailable and not bailable uniformly expressed by the legislature, current through all our law books and admitted by all our great lawyers without exception, is in one sense a nugatory, in another a pernicious distinction. It is nugatory, as it supposes a difference in the bailable quality of offences, when, in effect, the distinction refers only to the rank of the magistrate. It is pernicious, as it implies a rule of law which yet the judge is not bound to pay the least regard to, and impresses an idea upon the minds of the people that the judge is wiser and greater than the law.

It remains only to apply the law thus stated to the fact in question. By an authentic copy of the mittimus, it appears that John Eyre was committed for felony plainly and specially expressed in the warrant of commitment. He was charged before Alderman Halifax, by the oath of Thomas Fielding, William Holder, William Payne, and William Nash for feloniously stealing eleven quires of writing-paper, value six shillings, the property of Thomas Beach, &c. By the examinations upon oath of the four persons mentioned in the mittimus, it was proved that large quantities of paper had been missed, and that eleven quires (previously marked, from a suspicion that Eyre was the thief,) were found upon him. Many other quires of paper marked in the same manner were found at his lodgings; and, after he had been some time in Wood Street Compter, a key was found in his

room there, which appeared to be a key to the closet at Guildhall, from whence the paper was stolen. When asked what he had to say in his defence, his only answer was, “I hope you will bail me." Mr. Holder, the clerk, replied, "That is impossible. There never was an instance of it when the stolen goods were found upon the thief." The lord mayor was then applied to, and refused to bail him. Of all these circumstances it was your duty to have informed yourself minutely. The fact was remarkable, and the chief magistrate of the city of London was known to have refused to bail the offender. To justify your compliance with the solicitations of your three countrymen, it should be proved that such allegations were offered to you in behalf of their associate as honestly and bona fide reduced it to a matter of doubt and indifference whether the prisoner was innocent or guilty Was anything offered by the Scotch triumvirate that tended to invalidate the positive charge made against him by four credible witnesses upon oath? Was it even insinuated to you, either by himself or his bail, that no felony was committed, or that he was not the felon; that the stolen goods were not found upon him, or that he was only the receiver, not knowing them to be stolen? Or, in short, did they attempt to produce any evidence of his insanity? To all these questions I answer for you, without the least fear of contradiction, positively NO. From the moment he was arrested he never entertained any hope of acquittal; therefore thought of nothing but obtaining bail, that he might have time to settle his affairs, convey his fortune to another country, and spend the remainder of his life in comfort and affluence abroad. In this prudential scheme of future happiness the Lord Chief Justice of England most readily and heartily concurred. At sight of so much virtue in distress your natural benevolence took the alarm. Such a man as Mr. Eyre, struggling with adversity, must always be an interesting scene to Lord Mansfield. Or was it that liberal anxiety by which your whole life has been distinguished to enlarge the liberty of the subject? My Lord, we did not want this new instance of the liberality of your principles. We already knew what kind of subjects they were for whose liberty you were anxious. At all events the public are much indebted to you for fixing a price at which felony may be

commia.ed with impunity. You bound a felon, notoriously worth thirty thousand pounds, in the sum of three hundred. With your natural turn to equity, and knowing as you are in the doctrine of precedents, you undoubtedly meant to settle the proportion between the fortune of the felon and the fine by which he may compound for his felony. The ratio now upon record, and transmitted to posterity under the auspices of Lord Mansfield, is exactly one to a hundred. My Lord, without intending it, you have laid a cruel restraint upon the genius of your countrymen. In the warmest indulgence of their passions they have an eye to the expense, and, if their other virtues fail us, we have a resource in their economy.

By taking so trifling a security from John Eyre, you invited and manifestly exhorted him to escape. Although in bailable cases, it be usual to take four securities, you left him in the custody of three Scotchmen, whom he might have easily satisfied for conniving at his retreat. That he did not make use of the opportunity you industriously gave him, neither justifies your conduct, nor can it be any way accounted for, but by his excessive and monstrous avarice. Any other man, but this bosom friend of three Scotchmen, would gladly have sacrificed a few hundred pounds, rather than submit to the infamy of pleading guilty in open court. It is possible,

indeed, that he might have flattered himself, and not un reasonably, with the hopes of a pardon. That he would have been pardoned seems more than probable if I had not directed the public attention to the leading step you took in favour of him. In the present gentle reign, we well know what use has been made of the lenity of the court and of the mercy of the crown. The Lord Chief Justice of England accepts of the hundredth part of the property of a felon taken in the fact, as a recognizance for his appearance. Your brother Smythe browbeats a jury, and forces them to alter their verdict, by which they had found a Scotch serjeant guilty of murder; and though the Kennedys were convicted of a most deliberate and atrocious murder, they still had a claim to the royal mercy. They were saved by the chastity of their con

*The case of the Kennedys is stated in note, ante, p. 302. That of John Taylor is as follows:-He was a serjeant in the first, or royal Scots regiment of foot, and was tried at the Guildford summer assizes in the year 1770, for the murder of James Smith, the master of the Wheatsheaf,

nexions. They had a sister;—yet it was not her beauty, but the pliancy of her virtue that recommended her to the king.

near Westminster Bridge. It appeared upon the trial, that the deceased had uttered some aggravating expressions against the Scots; in consequence of which, the prisoner being suddenly thrown off his guard, drew his sword and stabbed him. The jury, after deliberating a considerable time, brought in a verdict of guilty, on which Mr. Baron Smythe expressed his surprise, adding, that he had told them it was only manslaughter, and desired that a special verdict should be drawn up, which the intimidated jury signed. On this Mr. Jasper Smith, a near relation of the deceased, addressed the court in the following words :-"My Lord, I am the nearest of kin to the unfortunate man who was murdered. I always thought, my Lord, when a verdict was once given it was unalterable, but by the present method of proceeding, there need not have been any jury at all. It is as plain a murder as can be, and I am persuaded your Lordship thinks so." To this speech no reply was given. The decision of the judge, in the above case, occasioned some severe animadversions on his conduct, and several queries were addressed to him upon the subject, which were repeatedly inserted in the Public Advertiser, so as to become extremely conspicuous. This account, however, extracted from that paper, does not seem to contain the whole train of the circumstances which preceded this unfortunate catastrophe, for when Taylor was brought to the bar of the King's Bench, February 8, 1771, Lord Mansfield, who read the minutes of the evidence as taken down by Baron Smythe, who presided at the trial, observed, that it appeared that the pri soner had been three times assaulted by Smith, the deceased, collared and violently thrown backward upon a bench without any provocation, turned out of the house, and called by the most opprobrious names; and further, that when out in the street, he was pursued and attacked by two men, before he offered to draw his sword; from which circumstances the court was unanimously of opinion that he had only been guilty of manslaughter, and sentenced him to be burnt in the hand, which was performed accordingly, behind the bar. Mr. Dunning, also, a strong oppositionist, defended Mr. Baron Smythe's conduct in respect to the trial alluded to by Junius, in a speech spoken on a motion made by Mr. Serjeant Glynn, December 6, 1770, "for an inquiry into the administration of criminal justice, and the proceedings of the judges in Westminster Hall, particularly in cases relating to the liberty of the press and the constitutional power and duty of juries." Mr. Dunning's words are as follow:-"It is not that the characters of the judges are not traduced by groundless accusations and scandalous aspersions. These are grievances which every one sees, and every one laments. Judge Smythe, for example, has, to my knowledge, been very injuriously treated. His conduct in trying the Scotch serjeant at Guildford, for which he has been so much abused in print, and now arraigned in Parliament, was, in my opinion, very fair and honourable. I was consulted on the affair as an

advocate, and I must say that I perfectly coincided with him in sentiment, Had I been in his place, I must have fallen under the same odium, for my conscience would not have allowed me to use any other language but that of Baron Smythe."