ten ; on this point it was not, in his opinion, a sufficient authority. All the other cases on this question, clearly establish this, "that no subject can be arrested but by due process of law," which must be evidenced by information on ath.-This led him to the second question, and he might venture to say, the only question in this case, namely, whether, on the matter disclosed on the Defendant's plea, the Plaintiff can have or maintain his action against him. It has been relied on, on the part of the Defendant, that he truly alleged, as Chief-Justice, sufficient matter to shew that he acted in his judicial capacity; and, therefore, that he is not answerable in any action; and farther, that no action what ever can be maintained against him for an act done by him as Judge. This principle on behalf of Judges is of great importance; that it should be so, it is so essentially ne cessary to the impartial administration of justice, that the persons

administering it should be free from fear or apprehension in discharging their duty. It is calcu→ lated not only for the benefit of Judges, but for the advantage of the Public. It protects their rights, while it ensures the impartial administration of justice.--He proceeded and said, there was no question made at the Bar, that for any act done by a Judge, sitting in Court, he was not responsible in an action to the party. But this was not the entire of the case of Floyd and Barker. That case not only exempts judicial acts done by Judges, sitting in Court, but also acts done out of Court. -This embraces the entire of the present case, and brings it within its authority.

Lord Norbury followed on the same side.

The Demurrer, therefore, of the Lord-Chief-Justice being deemed admissible by three Judges out of the four, the Plaintiffs were nonsuited.

We have laid before our Readers the principal arguments adduced on either side in this most important discussion, which appears to involve the dearest right of the subject, his personal liberty, as well as to affect the principle of the law of the laud, and the existence of our boasted Constitution. Upon such a subject, it is assuredly to be regretted that the first authorities should be found to disagree, since it gives a license to opinion, which, notwithstanding the decision of the Court, cannot fail to be indulged. The matter in debate was, whether a Lord-Chief-Justice had a right, that is, a constitutional power, vested in him, to issue his warrant, and thereby imprison any individual at pleasure; or whether he must, by necessity, not only have an information on oath tendered to him to guarantee his interference, but also that he is bound to express that obligation in the warrant for ap prehension. It will be seen that the arguments of Mr. Justice Flet cher went clearly to embrace the latter point;-he says, the Chief Justice has put in his plea of justification as to the issue of the warrant only; that he had a right as Lord-Chief-Justice to issue such warrant, virtute officii: he stood forward against the Plaintiff on such ground only; as, in his plea before the Court, no mention was made of any other cause for the warrant than the power he held, by virtue of his office:- -here was 66 no information-no accusation— -no suspicion-no fact-no averment of any thing to induce the arrest," but the will and the power of the Lord-Chief-Justice alone, which was set up as the point of justification. It will be here understood, that Mr. Justice

-.

Fletcher was speaking of the document before them, namely, the Demurrer of the Lord-Chief-Justice; this was the substance on which he was called to decide, and he looked to no other: - it was not what was actually contained in the warrant, nor its consequent propriety: but simply this, whether a Lord-Chief-Justice could justify the imprisonment of an individual without the forms of law, or whether he did not do it at his peril. There was no qualification in the plea of the Chief-Justice;-it did not say, the warrant was thus empowered, that it bore upon the face of it the ground on which he acted: no; it stated, that, by virtue of his office, he might do such an act, which the law denied to be done by others; his Counsel had said, "that however the act of issuing the warrant, and the consequent arrest, might appear to be illegal, yet that the Chief-Justice, by virtue of his office, was exempt from an action at law, and that this exemption was a sufficient bar."-Now, in regard to the judgement of the Court, we have no hesitation to concur in its decision, because it did appear, ac cording to the observations of Mr. Justice Mayne, that the warrant contained the proper requisites for the purpose, stating the reasons why the Lord-Chief Justice took upon himself to order the arrest of the parties on this ground, therefore, we certainly agree in the judgement of the Court; the Lord-Chief-Justice had done no wrong in issuing the warrant so constituted: but we contend, in unison with M Justice Fletcher, that, when any Lord-Chief-Justice comes forward to contend for the right of imprisoning individuals merely by virtue of his office, he mistakes the object and compass of his commission, overrates his power, and misconceives and misinterprets the intent and meaning of the law of the land.-A Judge thus acting, so far from claiming a privilege from his high trust and office, becomes, from that very cause, the more reprehensible, his trust and office, shall both condemn him! It is not because he is held to be independent, and accountable to none for his decisions, that it is intended to be understood he should be held independent of the Law :-no, the Law is the boundary of the Judge as much as it is of other men; uay, it is doubly binding on those to whom the sanctity of justice is committed.-It shall not be, because we submit the interpretation and administration of the Law to certain characters, that thereby we must submit to its subversion. The impeccability of Judges attaches only to their freedom of decision, that they should not pronounce their judgement in fear; but even such judgements are bound to be according to law, within the strict rule of right; there is no claim of privilege to commit oppression.-What greater species of tyranny can he conceived than the dominion of an arbitrary Judge? Truly did Mr. Justice Fletcher remark, that, if the power of imprisonment by warrant be assumed by a Lord-Chief-Justice, merely because of the Letters Patent of a Judge of the Court of King's Bench, it may equally be assumed by all and every one who bears the King's Cominission even down to the lowest Minister of Justice. No man's liberty would be secure, if such a Patent could confer such power. Therefore it is that we conceive the opinion of Mr. Justice Fletcher as entitled to the highest conside ration, as well for its legal equity as its constitutional spirit; nor is its force or efficacy, in our minds, at all diminished by the opinions of his Brother-Judges, or their decision in this cause. It will, however, be understood, that we do not arraign that decision, because we consider

the warrant to have been provided with the necessary requisites to render it valid; it is only that we join His Lordship in the principle, that without such requisites, that is, without the specification of information on oath, averment, or declaration of suspicion, a Judge's warrant has no power to commit to prison, or to inflict any privation on any individual whatever; and that, were it once admitted to be otherwise, a most destructive innovation would be encouraged, which might lead to the worst of consequences, detrimental to the rights and liberties of the people, and the total subversion of the law of the land.

SENTENCE FOR LIBEL.

---

In a former Number we entered at length into the investigation of the alleged Libel attributed to the Editor and Printer of "The Exa"miner," and endeavoured to shew, with all deference to the verdict of a Jury, that the practice or rule of Courts, in the matter of Libel, which refuses the evidence of Truth, cannot be consonant to the in tent and meaning of law, because directly contrary to reason and right, on which all Law is or ought to be dependant. But it is not alone to the treatment of the case that we would object, the treatment after conviction forms no inconsiderable latitude for reprehension. In the punishment of other offences, there appears, as most assuredly there ought to do, a prevailing principle of mercy; as few cases are found to demand the extent of severity which the law has fixed to the offence :-but in the case of Libel, there appears to be no prescribed boundary, all resting with those with whom there seems to exist a more particular abhorrence of the offence; which is in no way lessened by the doubt or hesitation of a Jury, nor any shade of difference admitted whether a Verdict had been obtained reluctantly or not; the Verdict once given, there is little hope of lenity; indeed, every offence is rated as the worst, till the next appears to displace it; and thus the punishments may go on increasing till they become past endurance. The sentence upon the Messrs. Hunts is assuredly most severe, which "was, "that they should be each fined 500l. and imprisoned Two Years: John Hunt in the Prison of Cold-Bath-fields, and Leigh Hunt in that of Horsemonger-lane: at the expiration of which imprisonment, to find security for five years, themselves in 500l. and two sureties in 2501. each."-A sentence, to which, in comparison with the nature of the offence, and the condition of men's minds and situations of life, that of a Common Felon is infinitely preferable, who, though under condemnation, is made to endure a few months privation, and then ⚫ set at large without security or farther impediment. One good bas, however, been obtained from the over-strained use of this severitv, which is, that, by its infliction in the cases of those who were sent into banishment to distant jails, a spirit of remonstrance, was justly kin dled, which has had the salutary effect of preventing such an abuse of power in future. Men will no more be sent to solitary dungeons, in prisons under the control of arbitrary individuals, who make the law of the land as well as the right of the subject subservient to their law of convenience; and the Court of King's Bench will rest content with the ordinary power ascribed to it by the Constitution.

FOREIGN INTELLIGENCE.