to be separated, and the two first are to be applied to the perfon, and the two laft to the place. Thus at the expence of a little law, a little grammar, and a little good fenfe, the perfon to be apprehended is the person who escapes or goes into, and the place he is to be apprehended is the place in which he hall refide or be. O! fapient and fagacious legislature, with what wifdom halt thou provided that a man shall not be taken where he is not to be found! With what timely providence haft thou pointed out to the conftable the precife line of his duty! You first defcribe the offender, and then you provide, that he fhall never be arrested but in the place where he shall be! The perfon who efcapes from England and goes into Ireland is the perfon within the act. But what do the words refide or be mean? O! they have nothing to do with the perfon, they only guard against the indifcretion of the conftable, who might otherwile arreft a man in one country while he was innocently employed in another! This may be good argument, but I fhall leave it to be difcovered by others, protesting, that to my humble judgment it is a cor. ftruction that paffeth all understanding. In refutation of the pofition that the enacting part of the flatute was to be controuled by the preamble, mr. attorney general quoted judge Buller when delivering the opini. on of the twelve judges of England. The cafe arose out of the 9. Geo. 1. It was for fending threatening letters, and the judges decided against the preamble, and in fupport of the enacting part. To the argument that the ftatute was profpective as to crime, and not to attach where the guilt was complete before the 1st of Auguft laft-mr. at torney general faid, that there was no crime created by the act; it only gave a new mode for apprehending an old offender. But was every new procefs for bringing in a delinquent to be called an ex poft facto law? As well might a contable newly created be called an ex pofl facto conftable.-The appellation could properly be given only to a law which, after the fact done, made that criminal which was before innocent; the diftinction was too plain to be milunderflood, mr. att. gen. now came to the last objection of the defendant's counfel, drawn from the words whereby their offences remain unpunished." It was urged on the part of the defendant, that he might be tried in ireland for the libel charged upon him. Mr. att. gen. contended, that no fuch argnment could ftand. The king's peace was diftinct in England and in Ireland, and a man could not be tried in the one place for an offence against the laws of the other Upon this point the union between the two countries did not make any alteration; the administration of justice being diftinct in both islands, and conviction in the one could not be pleaded in bar to an indictment in the other. But fuppofing the offence triable in either country, did it follow, that the criminal was to chufe his own judge? Because he refused to be tried where the accufation was made, muit juftice fubmiffively wait upon him where he may not have the fame means of vindicating herfelt? But, my lord, faid mr. att. general, to come to plain and manly language, if the author be in this land let him come forward; let him raife his head and be seen, and I will throw myself upon the juftice of an Irish jury and an Irith bench-I will not fhrink from the trial of fuch a queftion in my own country. Who is he who uses thefe arguments? He is fuppofed to be an Irishman, and a refident in this country. If fo, he knew the falfhood of his calumny at the moment he was accufing a member of this high court, which I have the honour to addrefs, of tarnishing his robes, and polluting the ermine which had been entruited to him as a facred depofite; and he preferred this accufation, not before the Irish public, where the integrity and character of the learned judge would have protected him from the coarfe flander of his affailant, but before the tribunal of another country where he could not have equal protection. This libeller, whoever he may be, dragged him to a diftant court, without notice of trial-without procefs to bring in his witneffes--without letting him fee the hand that held the acculation. Shall fach a man complain of being brought before the fame tribu, nal nal to purge his abomination? But let him avow himself; let him reft on the merits of his publication, and I will try him at home: yes! my lord, I feel it would be divine retribution, that as he tried an honest man where he was not known, he should, himself, be tried where he would not only have the charge of the accufer, but the whole weight of his own character to contend with. I fhould be influenced by more than ordinary zeal for his conviction if I wished him to labour under more accumulated preffure. His character is not unknown to the law. He must be a man unchafte in his manners, embarraffed in his fortunes, and profligate in his principles. The language may be my own, but the defcription is pretty accurately taken from lord Coke's report of the cafe de libellus famofis. I trust the eloquence of his advocate has hurried him beyond his own view of the fubject.-After fome further matter, the attorney general concluded his reply in the following words: Thus It has been alleged, that ani. madverfion upon public, fubjects is a public tight. Within certain bounda I admit it :-but no man is to make public difcuffion the pretence for putting forth private malice and refentment. The honeft feelings of individuals, are not to be made the fport of every idle calumniator who feeks his own repofe in the afflictions. of others. If he diffeminates poifon, He muft anfwer for the confequence, and may be afked Who fubjected the actions of honeft and honourable men to fuch a tribunal as thou art? Who made thee a ruler and a judge over us? After further meeting at confiderable Ceafe thy iniquitous inquifition.length the arguments of the oppofing Judge not left thou should be judged' counfel, mr. att. gen. proceeded if Such is the language of common fenfethere are imperfections in this act of Such is the language of the law. The parliament, they may be rectified, and flanderer fhould be delivered over to it will mortify the vanity of thofe who the punishment he deferves. have been fo loud in obferving upon will you fatisfy the law, and preferve the omiffion to provide bail, to tell the conftitution-and acting with an them, that the obfervation did not ori- even and unshaken hand, teach the boginate with them. I hope it may be dy of the people this falutary leffonremedied, but, certainly, it cannot that as the weakest man is strong when without confideration. As to the upheld by the law, fo the ftrongeft man empty declamation about the repeal of is weak when prefuming to refift it.' the habeas corpus act, it is idle and prepofterous. Every act which makes an arreft lawful which was not fo before, may as well be called a repeal of the. habeas corpus act. It never was the intention of that act to discharge a perfon who was lawfully arrested, and the liberty of having the cafes clearly and distinctly defined in which he may be liable to it. The defendant is not in cuftody under a warrant of commitment. Indicted for a crime in England, he will have the full benefit, in that country, of the habeas corpus act. He is offered the fame advantage here, but he difclaims the favour, and yet, in his progrefs to an English judge and an English jury, his fituation is compared to that of an unfortunate duke, who was hurried to Paris, and executed at midnight? It does not become counfel for the crown to anticipate his conviction, and Thurfday, 31 January. Judge Daly and the chief juftice were of opinion the prifoner could not be discharged.-Judge Day thought his cafe did not come within the ftatute, and that he ought to be discharged. The court then gave its opinion, feriatim, and its decifion was, that the prisoner's cafe came within the act of parliament, and that he was not entitled to be discharged. The defendant having obtained a writ of habeas corpus out of the court of exchequer, the question was there reargued, and decided upon as in the court of king's bench. By the fame procefs, it was then carried into the common pleas, and after being heard, the opinion of the court was deferred till the first day of next term, and the prifoner admitted to bail in the court of king's bench. (News, Births, &c. in our next.) |