LETTER LXVIII.

TO LORD CHIEF JUSTICE MANSFIELD.

Jan. 21. 1772.

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 whole body of the criminal law of England, I have no doubt of establishing my charge. If, on your part, you should 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 con

viction. 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 only are qualified to explain, they distrust their judgement, and voluntarily renounce the right of thinking for themselves. With all the evidence of history before them, from Tresillian to Jefferies, from Jeffe ries 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 have made 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,

I. 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 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.

II. 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. Tavourable circumstances, alledged 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 alledged, 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 alledged in his favour;—if no allegation whatsoever be made to lesson 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 saysh, "Discretion, taken as it ought to be, "is, discernere per legem quid sit justum. If it be not di"rected by the right line of the law, it is a 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, "Novel"ties, without warrants of precedents, are not to be al"lowed; 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 which all private opinions must give way, I desire no better judge between us than Lord Coke.

III. 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 alledged 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. Subtlety 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 or bail, in charges of felony, has been exactly ascertained by acts of the legislature, it is at present of little consequence to enquire 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 i It "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 thing stolen upon "him, in manu), he might, so detected flagrante delicto, be "brought into court, arraigned and tried, without in"dictment; as, by the Danish law, he might be taken "and hanged upon the spot, without accusation or trial." It will soon appear that our statute-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

X

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 m."--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 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, are 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 fe"lony or misdemeanors, was performed by the sheriffs, CC 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 enume