An address to the Whig Club: with an essay on the judicial discretion of judges, on fiats and on bail

Table of contents

- [halftitle]

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- AN ADDRESS TO THE WHIG CLUB.

- THE ESSAY.

AN ADDRESS TO THE WHIG CLUB, &c.

AN ADDRESS TO THE WHIG CLUB: WITH AN ESSAY ON THE JUDICIAL DISCRETION OF JUDGES, ON FIATS AND ON BAIL.

"And they do claim, demand, and insist upon all and singular the premises, as their undoubted rights and liberties, and that no declarations, judgments, doings, or proceedings, to the prejudice of the people in any of the said premises, ought in any wise to be drawn hereafter into consequence or example."
BILL OF RIGHTS.

DUBLIN: PRINTED FOR J. MOORE, NO. 45, COLLEGE-GREEN.

MDCCXC.

AN ADDRESS TO THE WHIG CLUB.

IN your integrity and abilities the people confide for protection, justice, and redress. Upon the principles on which you have associated, they rest their hopes. They expect from your virtue, spirit, and perseverance, not only the preservation of their rights, lately rescued from an usurped and foreign controul, but the perfection of their further claims, by removing that corruption which has contaminated every department of the State; which has tainted even the most subordinate offices, which has encreased and is encreasing under the dictates of the British Minister, for the evident purpose of repelling the generous energies of liberty.

Next to the law of religion, the law of the land should be the principal study with a free people. A knowledge of the one being as essential to their temporal interests as a knowledge of the other is to their eternal happiness. Wilful ignorance will neither excuse the soul before the tribunal of the creator, nor the person before the judgment seat of the constitution. To diffuse legal information is the purpose of this essay: it is not written to acquire fame— It is written to meet the approbation of the understanding, not to amuse the fancy, and you will attend to it, from respect; to the subject on which it treats.

It is not in ornaments that the merit of an argument consists. In viewing a portrait, the figure and features are the principal objects of contemplation; nor can the most elegant drapery, or beautiful colouring please the minds eye, where the artist deviates from nature and truth. The intent will excuse in your minds, the blemishes of the performance. The opinions, if not expressed, are conceived in the ardor of patriotism; in disinterested love for a community, where the writer received that life, which he thinks can only be well spent in its service.

The writer should consider himself pusillanimous, and contemptible indeed, if in the present contest between the friends of his country, and the purchased dependants of the British minister, he withheld the little contribution of knowledge, that his studies have afforded him. This is an aera, where every honest hand, every honest heart, and every honest head, should unite their exertions, and with "a long pull, a strong pull, and a pull all together," level to the earth that rotten fabric, where despotism holds private counsel with corruption, for the treacherous purpose of sapping, and overturning the noblest constitution that wisdom ever framed, or freedom ever defended.

The authority delegated by the people to their representatives in parliament, has now reverted to its original possessors. This then is the time, they should be informed how that trust has been executed, that they may know who has deserved their approbation, who has merited their censure and resentment.

Measures militating with the liberty of the subject, have been carried into effect by venal majorities. Every proposition brought forward to diminish undue influence, to establish oecomy, to secure the revenue, to vindicate the law, and to ease the people, have been negatived by the same correct power. Oppression has experienced impunity, the injured have been denied redress, and the authority of law and sound reason, has been trampled upon by the aggregate force of numbers. This then is the time when constitutional knowledge should be deseminated through the land, when the principles of legislation and law should be made known to the people at large.

This is the time when men, who regard the interests of their country, who are not equally insensible to the value of their own honour, and the good of posterity, following the glorious example of your association, should with all their powers, promote the spirit of liberty, till every heart pervaded by that divine essence, which expands the understanding, and elates the mind, even of the meanest peasant, vibrates with ardour and pants to spring forth the guardian of those principles, which emanate from the bosom of God!—The protector of those laws, which are derived from the immutable decrees of the eternal code, laid down by providence, and delivered to man at the creation!

The moment has scarcely passed since the people of Ireland demanded and acquired the restitution of their rights, with arms in their hands.—They have laid down their arms, and their rights are again invaded. Where then are they to find protection? They can only insure it by a strict and firm adherence to those resolutions, which you have formed for their political creed. Let the people zealously support the doctrines you have promulged; let them not tamely sit down satisfied with the melancholy privilege of complaint; let them prove by their spirit in the face of heaven and of the world, that by whatever right Englishmen possess freedom, by the same right, Irishmen, and all mankind may claim it.

The greatest and most distinguishing property of mankind is the immortality of his soul; and we find the strongest evidence of that immortality in the freedom of his mind, which includes the right of declaring all our thoughts! In this free-will, derived from God, originated the liberty of the press, that sacred medium through which every freeman, who possesses the blessing, has a right to declare his opinions on public men, and on public measures. Every unnecessary restraint of the press, being then a restraint of the free will of man, is an act of tyranny. By suppressing the exercise of intellectual liberty, slavery has been established—by giving it fair scope freedom has been restored. The histories of nations are illustrations of this position, and recent proofs are to be found in the fears of Spain and Portugal—in the spirit of America and France—in the revolutions of Great Baitain and Ireland.

Then let the press exert her powers. Notwithstanding the restraints lately laid on her natural vigour, she still retains sufficient strength to drag before the people those pusillanimous, corrupt, and abdicating culprits, who, deserting from the standard of freedom, have enlisted with prostituted mercenaries, and war against common sense, and the law of the land.

The press still retains sufficient ability to hunt from their lurking places, and scourge into shame and repentance, those adulating and degenerate monsters, who point out to every alien plunderer, the secret springs, the honey, and the treasures of the land; who have entered into conspiracies with strangers, against its legal owners, and who have stripped the laborious peasant, and the industrious manufacturer, of their fruits and earnings.

This is the moment to bring about political reformation, for extirpating venality—and the press is the most effectual means: Was the constitution subverted, and tyranny seated on her throne, surrounded by her sycophants, her parasites, her informers, her guards, her assassins, and her executioners, a free press would restore the one and overturn the other.

THE ESSAY.

IT may be objected, that this essay is ill-timed; as tending to influence the determination of suits now pending; but the objection 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 prohibited the publication of evidence given against prisoners on examinations before jusstices 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 severe imputations, the prosecutors or plaintiffs. The law gives a remedy for every injury, and if they suffered, or imagined they suffered wrong, they had an unquestionable right to seek redress from the laws of their country.

Magee, considered as a private individual, is equally an object of indifference. This essay neither takes into consideration his guilt, nor his innocence, that is the province 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 appeal 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 kingdom? And must not these sufferings be aggravated in the minds of those who know, that unsullied purity, extensive knowledge and great ability, have ever been found at the Irish bar? That the bench is radiated by sacred worth, spirit, and independence? That the law is promulged by judges of inflexible integrity, united with intelligent minds, fortified by invincible virtue, and dispising with equal contempt those accommodating fears, which sometimes give temporary popularity, and those mean pliabilities, which bow and cringe with implicit obedience, to the influence of every administration?

Under the torture of those sufferings, the writer of this essay with sedulous attention, searched the records and repositories of the law, for precedent or principle, upon which he could justify, excuse, or even palliate those proceedings, thus reprobated in England.

What was the consequence?

He found that the opinions of the English lawyers, so far as they respected arrests 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 ancient practice of their courts from wanton and rash aspersions.

These extraordinary proceedings, thus universally 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.

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 thousand pounds—eight hundred pounds—one thousand pounds—and two thousand pounds, making in the whole, the sum of seven thousand eight hundred pounds.

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

Two questions result from this case:

FIRST—Were the arrests legal?

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 within 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 defendant 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 demanded of the defendant excessive; that neither 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, 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 liberty, 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 defend 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 law. And the COURT OF KING'S BENCH hath a power to redress things that are otherwise done, notwithstanding that they are left to the discretion of those who do them.

The superintending power which the constitution thus reposes in the court of king's bench, does not, however, authorise the judges of that court to exercise an uncontrolled discretion over the personal liberty of the subject. The restrictive rules of legal discretion, are as binding on the chief-justice and his brethren, whether acting collectively, or individually as on any subordinate magistrate; they are as strictly binding on judges in courts of law, as principles and precedents 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 not ever be abridged, at the mere discretion of the magistrate, without explicit permission 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 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 obstinate ignorance might, under pretence of legal 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 circumscribed 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 sensations 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 apprehension; a found, distinguishing and exact act judgment; a comprehensive understanding; freedom and liberality of thought; sagacity to investigate the great principles of justice; and discernment to see where those principles lead.—BACON was the wisest chancellor ever sat in a court of equity: JEFFERIES 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?

Having shown the nature and legal extent 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 reposed 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 precaution 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 the necessity of granting a warrant to apprehend 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 specific 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 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.

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 legal rules of discretion which are strictly followed in granting the former.

The reasons for granting a fiat should be equally strong. The facts stated in the affidavit should be equally specific, and the situation 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 defendant (a lady) was going to quit the kingdom, and that plaintiff bad suffered five hundred 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 particular request of the defendant, he sold his commission for five hundred pounds, and spent the money on her, she having positively promised him marriage, and to purchase him a commission of higher rank, and on this affidavit 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.

Having examined the nature and legal extent of discretionary power, the next object is,

Whether a defendant can be held to bail for publishing a libel? against a private individual.

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 support 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 criminal action.

A libel is a misdemeanor. and is esteemed 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 rascal, do not create a forfeiture of recognizance 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 incur a forfeiture of recognizance for keeping 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.

Those who thus argue, are called upon to shew a precedent, for holding a defendant to bail on any action for a libel, except 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 cannot be ascertained but by verdict of a jury on hearing evidence, and in many cases verdicts have been set aside for excess of damages. Perjury and oppression would be among the consequences. It would be deciding 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 friendless 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, 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 Westminster, 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. Indictment.

Doctor Walcot, against Walter. An action.

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. Indictment.

The Attorney General, against Almon. Information 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 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 damages. Perryman and Almon fled and were proceeded against by outlawry; yet, in none of these prosecutions and suits, which all originated within the last two years, was a defendant 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 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 support of the legal authority to hold defendants 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 declared illegal.

"The practice of a particular magistrate cannot controul the law. Communis error 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 complained 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 approbata; and which after a long continuance it would be mischievous to overturn:
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 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. Liberty.

nor excessive fines imposed nor cruel and unusual punishments 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 demanding 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 before 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 mischief (of fiats) as soon as it is complained of."

Magna Charta has been mentioned and many 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 suggestion to the king or his counsel unless it be by indictment of lawful people of the neighbourhood, or by process made by original 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 representative, 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, never dies; and acquires respect and reverence from antiquity.

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

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 information, 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, being 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 present,

•

Strange •. and we will give judgment when he is better.

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 action, 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 directed, shall take bail, and for no more."

This statute, though not of legal authority 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 affidavit 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 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 obtain 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 fictitious 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 certainty, as in covenant for payment of money, or where a tenant covenants with 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 against Hawkins, Barnes notes 72.

wherein defendant was held to bail on plaintiff's affidavit. Defendant moved for a common appearance, and that plaintiff might produce the bond to the court upon an affidavit, that, defendant had great reason to believe, that the whole sum due was paid by one of his co-obligers, which would appear by endorsement made on the said bond when produced. Plaintiff in answer made affidavit, that a hundred pounds and upwards remained due to him on the bond after all just allowances; that he had seen the 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 papers himself, so that it could not be procured. It was urged by the plaintiff, that no declaration being yet delivered, defendant 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 discretionary, and as the measure of the sum, for which bail ought to be given, is with certainty only to be had from the bond itself, the bond ought to be produced, and for want of producing it, a common appearance 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 performance of covenants, bail ought not to be required on a writ of error.

Plaintiff made an affidavit,
Le W
•••

v. Tolcher. that defendant 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 Siderfin 183.

the damages in this case are uncertain,
Compto
•

29, 〈◊〉 Bail. and plaintiff 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 supporting 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 imprisoned 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.

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. Precedents serve to illustrate principles and to give them a fixed certainty; but the common 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 practice 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 defendant to bail on prosecutions, or suits for 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, 〈 in non-Latin alphabet 〉, 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.

because by this means in the case of civil actions, the party restrained, is delivered into the hands of those, who bind themselves 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 satisfy the condemnation and costs, or to render the defendant to prison.

In all civil actions, whereon bail may be taken,
See the cases already 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 exclusive 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 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 demanded 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 prison, 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 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 collected 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 discretion, on consideration of the ability and quality of the prisoner, and the nature of the offence.

Now it appears from the above authorities, 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 misdemeanor, 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 for such a species of misdemeanor, particularly 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 hundred 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 STATUTE LAW.

These two points may be examined together.

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 of this doctrine, a long string of cases might be produed, a few however will be sufficient, 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 observed, 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 demanded, 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 complained 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 respects 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 to cases within the same reason,
Barnes 89.

and calling for the same remedy. The nature of the case,
Raymer v. Burrough.

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. Beausages 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 Sheriffs of London.

wherein the cause of action may be justified, or wherein no damages whatever may be given,
Brooke tit. Parliament 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;
Wentworth's Office of executors 67.

civil suits were not specified merely because the grievance now complained of was not then known,
Sir Thomas Jones 62.

but they are within the principle of the statutes, and of course within their prohibition and relief.
Plomer v. Witchcot.

In England, the principles of these statutes have been constantly kept alive. LORD MANSFIELD, 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 refused 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-incides with that of Lord Mansfield, in the case of Mr. Laurens; That learned gentleman,
News paper report of the debate.

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 Debrett.

a bill was brought into the house of commons, by Mr. Henry Dundass, then lord advocate of Scotland, to restrain Sir Thomas from disposing 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 advocate.—

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 definition 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.

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 punishment 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 commons 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,

That bail can not be demanded on actions for slander, except in cases of scandalum magnatum or slander of title,

That in all cases where fiats are grantable 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 actions, 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 commons, when the question of fiats and bail came before the representatives of the nation. 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' 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 unfair; he has therefore, with every possible caution, avoided the introduction of any particular 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.

FINIS.

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An address to the Whig Club: with an essay on the judicial discretion of judges, on fiats and on bail

MacNally, Leonard, 1752-1820.

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http://ota.ox.ac.uk/id/4711

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1106017102

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9781106017109

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K070174.000

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CW3304395835

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— An address to the Whig Club: with an essay on the judicial discretion of judges, on fiats and on bail, MacNally, Leonard, 1752-1820.. 58p. ; 8⁰. Dublin :: printed for J. Moore,. 1790.. [Anonymous. By Leonard MacNally.] [With a half-title.] [Also issued as part of 'A collection of tracts on the doctrine of fiats', Dublin, 1791.] [Reproduction of original from the British Library.] [English Short Title Catalog, ESTCT86133.] [Electronic data. Farmington Hills, Mich. : Thomson Gale, 2003. Page image (PNG). Digitized image of the microfilm version produced in Woodbridge, CT by Research Publications, 1982-2002 (later known as Primary Source Microfilm, an imprint of the Gale Group).]

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