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The Age of George III

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The Letters of Junius

Letter LXVIII: To Lord Chief Justice Mansfield; 21 January 1772

[261] I have undertaken to prove, that when, at the intercession of three of your countrymen, you bailed John Eyre, you did that "which by law you were not warranted to do;"and that a felon, under the circumstances "of being taken in the fact, with the stolen goods upon him, and making no defence, is not bailable"by the laws of England. Your learned advocates have interpreted this charge into a denial, that the court of king's bench, or the judges of that court, during the vacation, have any greater authority to bail for criminal offences than a justice of peace. With the instance before me, I am supposed to question your power of doing wrong, and to deny the existence of a power, at the same moment that I arraign the illegal exercise of it. But the opinions of such men, whether wilful in their malignity, or sincere in their ignorance, are unworthy of my notice. You, Lord Mansfield, did not understand me so; and I promise you, your cause requires an abler defence. I am now to make good my charge against you. However dull my argument, the subject of it is interesting. I shall be honoured with the attention of the public, and have a right to demand the attention of the legislature. Supported, as I am, by the [262] whole body of the criminal law of England, I have no doubt of establishing my charge. If, on your part, you shall have no plain substantial defence, but should endeavour to shelter yourself under the quirk and evasion of a practising lawyer, or under the mere insulting assertion of power without right, the reputation you pretend to is gone for ever; you stand degraded from the respect and authority of your office, and are no longer de jure, Lord chief justice of England.

This letter, my Lord, is addressed not so much to you, as to the public. Learned as you are, and quick in apprehension, few arguments are necessary to satisfy you, that you have done that, which, by law, you were not warranted to do. Your conscience already tells you, that you have sinned against knowledge; and that, whatever defence you make, contradicts your own internal conviction. But other men are willing enough to take the law upon trust. They rely upon your authority, because they are too indolent to search for information: or, conceiving that there is some mystery in the laws of their country, which lawyers are only qualified to explain, they distrust their judgment, and voluntarily renounce the right of thinking for themselves. With all the evidence of history before them, from Tresilian to Jefferies, from Jefferies to Mansfield, they will not believe it possible that a learned judge can act in direct contradiction to those laws, which he is supposed to make the study of his life, and which he has sworn to administer faithfully. Superstition is certainly not the characteristic of this age; yet some men are bigotted in politics who are infidels in religion. I do not despair of making them ashamed of their credulity.

The charge I brought against you is expressed in terms guarded and well considered. They do not deny the strict power of the judges of the court of king's bench to bail in cases not bailable by a justice of peace, nor replevisable by the common writ, or ex officio, by the sheriff. I well know the practice of the court, and by what legal rules it ought to be directed. But, far from meaning to soften or diminish the force of those terms I have made use of, I now go beyond them, and affirm,

  1. That the superior power of bailing for felony, claimed by the court of king's bench, is founded upon the opinion of lawyers, and the practice of the court; that the assent [263] of the legislature to this power is merely negative, and that it is not supported by any positive provision in any statute whatsoever. If it be, produce the statute.
  2. Admitting that the judges of the court of king's bench are vested with a discretionary power to examine and judge of circumstances and allegations which a justice of peace is not permitted to consider, I affirm that the judges, in the use and application of that discretionary power, are as strictly bound by the spirit, intent, and meaning, as the justice of peace is by the words of the legislature. Favourable circumstances, alleged before the judge, may justify a doubt, whether the prisoner be guilty or not; and where the guilt is doubtful, a presumption of innocence should in general be admitted. But, when any such probable circumstances are alleged, they alter the state and condition of the prisoner. He is no longer that all-but-convicted felon, whom the law intends, and who by law is not bailable at all. If no circumstances whatsoever are alleged in his favour; if no allegation whatsoever be made to lessen the force of that evidence which the law annexes to a positive charge of felony, and particularly to the fact of being taken with the maner; I then say, that the Lord chief justice of England has no more right to bail him than a justice of peace. The discretion of an English judge is not of mere will and pleasure; it is not arbitrary; it is not capricious; but, as that great lawyer (whose authority I wish you respected half as much as I do) truly says,* "Discretion, taken as it ought to be, is, discernere per legem quid sit justum. If it be not directed by the right line of the law, it is a crooked cord, and appeareth to be unlawful."If discretion were arbitrary in the judge, he might introduce whatever novelties he thought proper. But, says Lord Coke, "Novelties, without warrant of precedents, are not to be allowed: some certain rules are to be followed: Quic-quid judicis authoritati subjicitur, novitati non subjicitur."And this sound doctrine is applied to the star-chamber, a court confessedly arbitrary. If you will abide by the authority of this great man, you shall have all the advantage of his opinion, wherever it appears to favour you. Excepting the plain, express meaning of the legislature, to

    * 4 Inst. 41. 66.

[264] which all private opinions must give way, I desire no better judge between as than Lord Coke.

  1. I affirm that, according to the obvious, indisputable meaning of the legislature, repeatedly expressed, a person positively charged with feloniously stealing, and taken in flagrante delicto, with the stolen goods upon him, is not bailable. The law considers him as differing in nothing from a convict, but in the form of conviction; and (whatever a corrupt judge may do) will accept of no security, but the confinement of his body within four walls. I know it has been alleged, in your favour, that you have often bailed for murders, rapes, and other manifest crimes. Without questioning the fact, I shall not admit that you are to be justified by your own example. If that were a protection to you, where is the crime, that, as a judge, you might not now securely commit? But neither shall I suffer myself to be drawn aside from my present argument, nor you to profit by your own wrong. To prove the meaning and intent of the legislature, will require a minute and tedious deduction. To investigate a question of law, demands some labour and attention, though very little genius or sagacity. As a practical profession, the study of the law requires but a moderate portion of abilities. The learning of a pleader is usually upon a level with his integrity. The indiscriminate defence of right and wrong contracts the understanding, while it corrupts the heart. Subtilty is soon mistaken for wisdom, and impunity for virtue. If there be any instances upon record (as some there are undoubtedly, of genius and morality united in a lawyer) they are distinguished by their singularity, and operate as exceptions.

I must solicit the patience of my readers. This is no light matter; nor is it any more susceptible of ornament, than the conduct of Lord Mansfield is capable of aggravation.

As the law of bail, in charges of felony, has been exactly ascertained by acts of the legislature, it is at present of little consequence to inquire how it stood at common law before the statute of Westminster. And yet it is worth the reader's attention to observe, how nearly, in the ideas of our ancestors, the circumstance of being taken with the maner approached to the conviction* of the felon. It

* Blackstone, iv. 303

[265] "fixed the authoritative stamp of verisimilitude upon the accusation: and, by the common law, when a thief was taken with the maner, that is, with the things stolen upon him in manu, he might, so detected, flagrante delicto, be brought into court, arraigned, and tried, without indictment; as, by the Danish law, he might be taken and hanged on the spot, without accusation or trial."It will soon appear that our statute in law, in this behalf, though less summary in point of proceeding, is directed by the same spirit. In one instance, the very form is adhered to. In offences relating to the forest, if a man was taken with vert, or venison,* it was declared to be equivalent to indictment. To enable the reader to judge for himself, I shall state, in due order, the several statutes relative to bail in criminal cases, or as much of them as may be material to the point in question, omitting superfluous words. If I misrepresent, or do not quote with fidelity, it will not be difficult to detect me.

†The statute of Westminster the first, in 1275, sets forth, that "Forasmuch as sheriffs and others, who have taken and kept in prison persons detected of felony and incontinent, have let out by replevin such as were not replevisable, because they would gain of the one party, and grieve the other; and forasmuch as, before this time, it was not determined which persons were replevisable, and which not; it is provided, and by the king commanded, that such prisoners, &c. as be taken with the maner, &c. or for manifest offences, shall be in no wise replevisable by the common writ, nor without writ. Lord Coke,‡ in his exposition of the last part of this quotation, accurately distinguishes between replevy, by the common writ, or ex officio, and bail by the king's bench. The words of the statute certainly do not extend to the judges of that

* I Ed. III. cap. 8; and 7 Ric. II. cap. 4.
Videtur que le statute de mainprize n'est que le rehersai del comen ley."—Bro. Mainp. 61.
‡"There are three points to be considered in the construction of all remedial statutes; the old law, the mischief, and the remedy; that is, how the common law stood at the making of the act; what the mischief was for which the common law did not provide; and what remedy the parliament hath provided to cure this mischief. It is the business of the judges so to construe the act, as to suppress the mischief, and advance the remedy."— Blackstone. i. 37.

[266] court. But, besides that, the reader will soon find reason to think that the legislature, in their intention, made no difference between bailable and replevisable. Lord Coke himself, if he be understood to mean nothing but an exposition of the statute of Westminster, and not to state the law generally, does not adhere to his own distinction. In expounding the other offences, which, by this statute, and declared not replevisable, he constantly uses the words "not bailable". "That outlaws, for instance, are not bailable at all: that persons who have abjured the realm, are attainted upon their own confession, and therefore not bailable at all by law: that provers are not bailable: that notorious felons are not bailable." The reason why the superior courts were not named in the statute of Westminster, was plainly this: "because anciently most of the business touching bailment of prisoners for felony or misdemeanours, was performed by the sheriffs, or special bailiffs of liberties, either by writ, or virtute officii;"* consequently the superior courts had little or no opportunity to commit those abuses which the statute imputes to the sheriffs. With submission to Dr. Blackstone, I think he has fallen into a contradiction, which, in terms at least, appears irreconcileable. After enumerating several offences not bailable, he asserts, without any condition or limitation whatsoever.† All these are clearly not admissible to bail."Yet, in a few lines after, he says, "It is agreed that the court of king's bench may bail for any crime whatsoever, according to the circumstances of the case/' To his first proposition he should have added, "by sheriffs or justices;" otherwise the two propositions contradict each other: with this difference, however, that the first is absolute, the second limited by a consideration of circumstances. I say this, without the least intended disrespect to the learned author. His work is of public utility, and should not hastily be condemned.

The statute of 17 Richard II. cap. 10, 1393, sets forth, that, "Forasmuch as thieves notoriously defamed, and others taken with the maner, by their long abiding in prison, were delivered by charters and favourable inquests procured, to the great hinderance of the people, two men of law shall be assigned, in every commission of the peace

* 2 Hale, P. C. 128, 136.
Blackstone, iv. 296.

[267] to proceed to the deliverance of such felons,"&c. It seems, by this act, that there was a constant struggle between the legislature and the officers of justice. Not daring to admit felons taken with the maner to bail or mainprize, they evaded the law, by keeping the party in prison a long time, and then delivering him without due trial.

The statute of 1 Richard III. in 1483, sets forth that, "Forasmuch as divers persons have been daily arrested and imprisoned for suspicion of felony, sometime of malice, and sometime of a light suspicion, and so kept in prison without bail or mainprize; be it ordained, that every justice of peace shall have authority, by his discretion, to let such prisoners and persons so arrested to bail or mainprize."By this act, it appears that there had been abuses in matter of imprisonment, and that the legislature meant to
provide for the immediate enlargement of persons arrested on light suspicion of felony.

The statute of 3 Henry VII. in 1486, declares, that, under colour of the preceding act of Richard the Third, "Persons, such as were not mainpernable, were oftentimes let to bail or mainprize by justices of the peace, whereby many murderers and felons escaped; the king, &c. hath ordained, that the justices of the peace, or two of them at least (whereof one to be of the quorum) have authority to let any such prisoners or persons, mainpernable by the law, to bail or mainprize."

The statute of 1 and 2 of Philip and Mary, in 1554, sets forth, that, "Notwithstanding the preceding statute of Henry the Seventh, one justice of peace hath oftentimes, by sinister labour and means, set at large the greatest and notablest offenders, such as be not replevisable by the laws of this realm; and yet, the rather to hide their affections in that behalf, have assigned the cause of their apprehension to be but only for suspicion of felony, whereby the said offenders have escaped unpunished, and do daily, to the high displeasure of Almighty God, the great peril of the king and queen's true subjects, and encouragement of all thieves and evil-doers; for reformation whereof be it enacted, that no justice of peace shall let to bail or mainprize any such persons, which for any offence by them committed, be declared not to be replevised or bailed, or be forbidden to be replevised or bailed, by the statute of [268] Westminster the first, and furthermore, that any persons arrested for manslaughter or felony, being bailable by the law, shall not be let to bail or mainprize by any justices of peace, but in the form therein after prescribed."In the two preceding statutes, the words "bailable", "replevisable", and "mainpernable", are used synonymously,* or promiscuously, to express the same single intention of the legislature, viz. not to accept of any security but the body of the offender: and when the latter statute prescribes the form in which persons arrested on suspicion of felony (being bailable by the law) may be let to bail, it evidently supposes that there are some cases not bailable by the law. It may be thought, perhaps, that I attribute to the legislature an appearance of inaccuracy in the use of terms merely to serve my present purpose. But, in truth, it would make more forcibly for my argument, to presume, that the legislature were constantly aware of the strict legal distinction between bail and replevy, and that they always meant to adhere to it.† For if it be true that replevy is by the sheriffs, and bail by the higher courts at Westminster (which I think no lawyer will deny,) it follows, that when the legislature expressly says that any particular offence is by law not bailable, the superior courts are comprehended in the prohibition, and bound by it. Otherwise, unless there was a positive exception of the superior courts (which I affirm there never was in any statute relative to bail) the legislature would grossly contradict themselves, and the manifest intention of the law be evaded. It is an established rule, that, when the law is special, and reason of it general, it is to be generally understood; and though, by custom, a latitude be allowed to the court of king's bench, (to consider circumstances inductive of a doubt, whether the prisoner be guilty or innocent) if this latitude be taken as an arbitrary power to bail, when no circumstances whatsoever are alleged in favour of the prisoner, it is a power without right, and a daring violation of the whole English law of bail.

* 2 Hale, P. C. ii. 124.
Vide 2 Inst. 150,186, "The word replevisable never signifies bailable. Bailable is in a court of record, by the king's justices; but replevisable is by the sheriff."—Selden, State Trials, vii. 149.

[269] The act of the 31st of Charles the Second (commonly called the Habeas Corpus act) particularly declares, that it is not meant to extend to treason or felony, plainly and specially expressed in the warrant of commitment. The prisoner is therefore left to seek his Habeas Corpus at common law . and so far was the legislature from supposing that persons (committed for treason or felony, plainly and specially expressed in the warrant of commitment) could be let to bail by a single judge, or by the whole court, that this very act provides a remedy for such persons, in case they are not indicted in the course of the term or sessions subsequent to their commitment. The law neither suffers them to be enlarged before trial, nor to be imprisoned after the time in which they ought regularly to be tried. In this case the law says, "It shall and may be lawful to and for the judges of the court of king's bench, and justices of oyer and terminer, or general gaol delivery, and they are hereby required, upon motion made to them in open court, the last day of the term, session, or gaol delivery, either by the prisoner, or any one in his behalf, to set at liberty the prisoner upon bail, unless it appear to the judges and justices, upon oath made, that the witnesses for the king could not be produced the same term, sessions, or gaol delivery."Upon the whole of this article I observe, 1. That the provision made in the first part of it would be, in a great measure, useless and nugatory, if any single judge might have bailed the prisoner ex arbitrio during the vacation, or if the court might have bailed him immediately after the commencement of the term or sessions. 2. When the law says, "It shall and may be lawful"to bail for felony under particular circumstances, we must presume, that, before the passing of that act, it was not lawful to bail under those circumstances. The terms used by the legislature are enacting, not declaratory. 3. Notwithstanding the party may have been imprisoned during the greatest part of the vacation, and during the whole session, the court are expressly forbidden to bail him, from that session to the next, if oath be made that the witnesses for the king could not be produced that same term or sessions.

Having faithfully stated the several acts of parliament relative to bail in criminal cases, it may be useful to the [270] reader to take a short historical review of the law of bail, through its various gradations and improvements.

By the ancient common law, before and since the conquest, all felonies were bailable, till murder was excepted by statute; so that persons might be admitted to bail, before conviction, almost in every case. The statute of Westminster says, that before that time, it had not been determined which offences were replevisable, and which were not, whether by the common writ de homine replegiando, or ex officio by the sheriff. It is very remarkable, that the abuses arising from this unlimited power of replevy, dreadful as they were, and destructive to the peace of society, were not corrected or taken notice of by the legislature, until the commons of the kingdom had obtained a share in it by their representatives; but the house of commons had scarce begun to exist, when these formidable abuses were corrected by the statute of Westminster. It is highly probable, that the mischief had been severely felt by the people, although no remedy had been provided for it by the Norman kings or barons. "The* iniquity of the times was so great, as it even forced the subjects to forego that, which was in account a great liberty, to stop the cause of a growing mischief."The preamble to the statutes made by the first parliament of Edward the First, assigns the reason of calling it,† "because the people had been otherwise entreated than they ought to be, the peace less kept, the laws less used, and offenders less punished than they ought to be, by reason whereof the people feared less to offend;"and the first attempt to reform these various abuses was by contracting the power of replevying felons.

For above two centuries following, it does not appear that any alteration was made in the law of bail, except that being taken with vert or venison was declared to be equivalent to indictment. The legislature adhered firmly to the spirit of the statute of Westminster. The statute of the 27th of Edward the First directs the justices of assize to inquire and punish officers bailing such as were not bailable. As for the judges of the superior courts, it is probable, that in those days they thought themselves bound by the obvious intent and meaning of the legislature.

* Selden, by N. Bacon, 182.
† Parliamentary History, i. 82.

[271] They considered not so much to what particular persons the prohibition was addressed, as what the thing was which the legislature meant to prohibit; well knowing that in law, quando aliquid prohibetur, prohibetur et omne per quod devenitur ad illud. "When any thing is forbidden, all the means by which the same thing may be compassed or done are equally forbidden."

By the statute of Richard the Third, the power of bailing was a little enlarged; every justice of peace was authorised to bail for felony; but they were expressly confined to persons arrested on light suspicion; and even this power, so limited, was found to produce such inconveniences, that in three years after the legislature found it necessary to repeal it. Instead of trusting any longer to a single justice of peace, the act of 3 Henry VII. repeals the preceding act, and directs, "That no prisoner (of those who are mainpernable by the law) shall be let to bail or mainprize by less than two justices, whereof one to be of the quorum."

And so indispensably necessary was this provision thought for the administration of justice, and for the security and peace of society, that at this time an oath was proposed by the king, to be taken by the knights and esquires of his household, by the members of the house of commons, and by the peers spiritual and temporal, and accepted and sworn to quasi una voce by them all, which, among other engagements, binds them not to let any man to bail or mainprize, "knowing and deeming him to be a felon, upon your honour and worship. So help you God and all saints."*

In about half a century, however, even these provisions were found insufficient. The act of Henry the Seventh was evaded, and the legislature once more obliged to interpose. The act of 1 and 2 of Philip and Mary takes away entirely from the justices all power of bailing for offences declared not bailable by the statute of Westminster.

The illegal imprisonment of several persons,, who had refused to contribute to a loan exacted by Charles the First, and the delay of the habeas corpus, and subsequent refusal to bail them, constituted one of the first and most

* Parliamentary History, ii. 419.

[272] important grievances of that reign. Yet when the house of commons, which met in the year 1628, resolved upon measures of the most firm and strenuous resistance to the power of imprisonment, assumed by the king or privy council, and to the refusal to bail the party on the return of the habeas corpus, they did expressly, in all their resolutions, make an exception of commitments, where the cause of the restraint was expressed, and did by law justify the commitment. The reason of the distinction is, that whereas, when the cause of commitment is expressed, the crime is then known, and the offender must be brought to the ordinary trial: if, on the contrary, no cause of commitment be expressed, and the prisoner be thereupon remanded, it may operate to perpetual imprisonment. This contest with Charles the First produced the act of the 16th of that king: by which the court of king's bench are directed, within three days after the return to the habeas corpus, to examine and determine the legality of any commitment by the king or privy council, and to do what injustice shall appertain, in delivering, bailing, or remanding the prisoner. Now, it seems, it is unnecessary for the judge to do what appertains to justice. The same scandalous traffic, in which we have seen the privilege of parliament exerted or relaxed, to gratify the present humour, or to serve the immediate purpose of the crown, is introduced into the administration of justice. The magistrate, it seems, has now no rule to follow, but the dictates of personal enmity, national partiality, or perhaps the most prostituted corruption.

To complete this historical inquiry, it only remains to be observed, that the habeas corpus act of 31 of Charles the Second, so justly considered as another Magna Charta of the kingdom, "extends* only to the case of commitments for such criminal charge as can produce no inconvenience to public justice by a temporary enlargement of the prisoner."So careful were the legislature, at the very moment when they were providing for the liberty of the subject, not to furnish any colour or pretence for violating or evading the established law of bail in higher criminal offences. But the exception, stated in the body of the act, puts the matter out of all doubt. After directing

* Blackstone, iv. 137.

[273] the judges how they are to proceed to the discharge of the prisoner upon recognizance and surety, having regard to the quality of the prisoner and nature of the offence, it is expressly added, "unless it shall appear to the said Lord chancellor, &c. that the party so committed is detained for such matters or offences, for the which, by the law, the prisoner is not bailable."

When the laws, plain of themselves, are thus illustrated by facts, and their uniform meaning established by history, we do not want the authority of opinions, however respectable, to inform our judgment, or to confirm our belief. But I am determined that you shall have no escape. Authority of every sort shall be produced against you, from Jacob to Lord Coke, from the dictionary to the classic. In vain shall you appeal from those upright judges whom you disdain to imitate, to those whom you have made your example. With one voice they all condemn you.

"To be taken with the maner, is where a thief, having stolen any thing, is taken with the same about him; as it were in his hands, which is called flagrante delicto. Such a criminal is not bailable by law."— Jacob, under the word maner.

"Those who are taken with the maner are excluded by the statute of Westminster, from the benefit of a replevin."— Hawkins, P. C. ii. 98.

"Of such heinous offences, no one, who is notoriously guilty, seems to be bailable by the intent of this statute."— Ditto, ii. 99.

"The common practice and allowed general rule is, that bail is only then proper, where it stands indifferent whether the party were guilty or innocent."— Ditto, ditto.

"There is no doubt but that the bailing of a person, who is not bailable by law, is punishable either at common law, as a negligent escape, or as an offence against the several statutes relative to bail."—Ditto, 89.

"It cannot be doubted, but that neither the judges of this, nor of any other superior court of justice, are strictly within the purview of that statute; yet they will always, in their discretion, pay a due regard to it, and not admit a person to bail who is expressly declared by it irreplevisable, without some particular circumstance in his favour; and, therefore, it seems difficult to find an instance [274] where persons, attainted of felony, or notoriously guilty of treason, or manslaughter, &c. by their own confession, or otherwise, have been admitted to the benefit of bail, without some special motive to the court to grant it."— Ditto, 114.

"If it appears that any man hath injury or wrong by his imprisonment, we have power to deliver and discharge him; if otherwise, he is to be remanded by us to prison again."— Lord Ch. J. Hyde, State Trials, vii. 115.

"The statute of Westminster was especially for direction to the sheriffs and others; but to say courts of justice are excluded from this statute, I conceive it cannot be."—Attorney General Heath, Ditto, 132.

"The court, upon view of the return, judgeth of the sufficiency or insufficiency of it . If they think the prisoner in law to be bailable, he is committed to the marshal, and bailed; if not, he is remanded."Through the whole debate, the objection on the part of the prisoners was, that no cause of commitment was expressed in the warrant; but it was uniformly admitted, by their counsel, that if the cause of commitment had been expressed for treason or felony, the court would then have done right in remanding them.

The attorney-general having urged, before a committee of both houses, that, in Beckwith's case, and others, the Lords of the council sent a letter to the court of king's bench to bail; it was replied, by the managers of the house of commons, that this was of no moment: "for that either the prisoner was bailable by the law, or not bailable. If bailable by the law, then he was to be bailed without any such letter; if not bailable by the law, then plainly the judges could not have bailed him upon the letter, without breach of their oath, which is, that they are to do justice according to the law,"&c.—State Trials, vii. 175.

"So that in bailing upon such offences of the highest nature, a kind of discretion, rather than a constant law, hath been exercised, when it stands wholly indifferent, in the eye of the court, whether the prisoner be guilty or not."—Selden, St. Tr. vii. 230. 1.

"I deny that a man is always bailable when imprisonment is imposed upon him for custody."— Attorney General Heath, ditto, 238.

By these quotations from the State Trials, though otherwise [275] not of authority, it appears plainly, that in regard to bailable or not bailable, all parties agreed in admitting one proposition as incontrovertible.

"In relation to capital offences, there are especially these acts of parliament that are the common landmarks* touching offences bailable or not bailable."— Hale, ii. P. C. 127. The enumeration includes the several acts cited in this paper.

"Persons taken with the manouvre are not bailable, because it is furtum manifestum."—Hale, ii. P. C. 133.

"The writ of Habeas Corpus is of a high nature; for if persons be wrongfully committed, they are to be discharged upon this writ returned; or, if bailable, they are to bailed: if not bailable, they are to be committed."—Hale ii. P. C. 143. This doctrine of Lord chief justice Hale refers immediately to the superior courts from whence the writ issues. "After the return is filed, the court is either to discharge, or bail, or commit him, as the nature of the case requires."— Hale, ii. P. C. 146.

"If bail be granted otherwise than the law alloweth, the party that alloweth the same shall be fined, imprisoned, render damages, or forfeit his place, as the case shall require."—Selden, by N. Bacon, 182.

"This induces an absolute 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.—Blackstone, iii. 133.

"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.

"Appell de Mahem, &c. ideo ne fuit lesse a bailie, nient plus que in appell de robbery ou murder; quod nota, et que in robbery et murder le partie n'est baillable.—Bro. Mainprize, 67.

"The intendment of the law in bails is, quod stat indifferenter, whether he be guilty or no; but when he is convicted by verdict or confession, then he must be

* It has been the study of Lord Mansfield to remove landmarks.

[276] deemed in law to be guilty of the felony, and therefore not bailable at all."—Coke, ii. Inst. 188. iv. 178.

"Bail is quando stat indifferenter, and not when the offence is 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." Ditto, ditto.

"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 this statute, to deliver him: if it be doubtful, and under consideration, he may be bailed." — 2 Inst. 55.

It is unnecessary to load the reader with any farther quotations. If these authorities are not deemed sufficient to establish the doctrine maintained in this paper, it will be in vain to appeal to the evidence of law books, or 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 argument, I will not say that every minute part of it is absolutely 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 constitutes 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 [277] 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 any thing offered by the Scotch triumvirate that tended to invalidate the positive charge made against him by four credible witnesses upon oath? Was it even [278] 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 into 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 committed with impunity.

You bound a felon, notoriously worth £30,000 in the sum of £300. 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 an 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 [279] 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 unreasonably, 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 sergeant guilty of murder; and though the Kennedies 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 connexions. They had a sister: yet it was not her beauty, but the pliancy of her virtue, that recommended her to the king.

The holy author of our religion was seen in the company of sinners; but it was his gracious purpose to convert them from their sins. Another man, who, in the ceremonies of our faith, might give lessons to the great enemy of it, upon different principles, keeps much the same company. He advertises for patients, collects all the diseases of the heart, and turns a royal palace into an hospital for incurables. A man of honour has no ticket of admission at St. James's. They receive him like a virgin at the Magdalene's; "Go thou, and do likewise."

My charge against you is now made good. I shall, however, be ready to answer or to submit to fair objections. If, whenever this matter shall be agitated, you suffer the doors of the house of Lords to be shut, I now protest, that I shall consider you as having made no reply. From that moment, in the opinion of the world, you will stand self convicted. Whether your reply be quibbling and evasive, or liberal and in point, will be [280] matter for the judgment of your peers; but if, when every possible idea of disrespect to that noble house (in whose honour and justice the nation implicitly confides) is here most solemnly disclaimed, you should endeavour to represent this charge as a contempt of their authority, and move their Lordships to censure the publisher of this paper, I then affirm, that you support injustice by violence, that you are guilty of a heinous aggravation of your offence, and that you contribute your utmost influence to promote, on the part of the highest court of judicature, a positive denial of justice to the nation.

JUNIUS.

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