-The proceeding by information is avoided, and that of indictment chosen, because a rule for an information could not be obtained without an affidavit of the falsehood of the charges published, which the prosecutors would not do, because they could not do so with safety. The particular place is chosen, and the trial transferred to it, because an acquittal there will, in a pecuniary view, be a more severe punishment, from the enormous expense (if witnesses could be had at any expense), of defending, than any fine would probably amount to even if the indictment were submitted to.

Because no expense whatsoever can give the defendant any certainty of having any witness to attend, inasmuch as the prosecutor has purposely chosen a place for trial where the defendant cannot have compulsory process for the attendance of any witness, although a law has been passed for the purpose of bringing him thither,

Because the present is a case, of all others, where such a circumstance will produce the highest degree of oppression; inasmuch as the charge is attempted to be supported on evidence of similitude of hand-writing, of pápers in the possession of the prosecutor himself, and of which the defendant can have no knowledge until the moment of trial, in a place beyond sea, and where there is perhaps not one person resident acquainted with his hand-writing; and even if he had, in such a case, a trial where his hand-writing was known, as such evidence is matter of belief and conjecture merely, his method must be, to summon as many persons into court as he could get to attend, who were acquainted with his hand-writing, in order, upon the view at the time, to be enabled to have those who could form a belief or opinion upon the fact-it being notorious, that there are many people who have seen a hand-writing, yet, upon a particular writing, which they had not seen before being produced, have not been able to form such a belief as the law requires.

Because it is notorious that the prosecutors have procured witnesses (most probably at the public expense, and without compulsory process), to go from Dublin (all residents there) to London, to give evidence there; and that the fact, as against the defendant, must be testified by them.w.bal!

Because it is notorious, that all the above is contrivance to elude a fair trial, and not ne cessary to the attainment of justice; inasmuch as it is notorious, that the publication, which is the only fact arising in London, arose as much in Dublin-the paper having been sold,

and being daily now selling in the shops in Dublin; which fact is as much a publication" as the publication in London, and could equally be given in evidence on a trial against the supposed writer.

Because, by a trial in London, if the defendant should be convicted, he would be deprived of the full benefit of giving the truth of the facts, and other circumstances, in evidence, in mitigation of his sentence-the Court, in such last-mentioned case, determining as a jury, upon the credit they give to the witnesses, from knowledge of their character, and from knowledge of the defendant's himself, and from their own knowledge of facts which they may happen to have.

Because, even if the case were doubtful, the' liberty of the subject should be preserved :though the defendant does not apprehend it to be doubtful; because, in order to remand the defendant, the Court must determine, that in a case against a supposed writer of a libel, when he was at the time of the alleged writing and publication in Dublin and not elsewhere, and when the papers appeared to have been written in Dublin, and where the witnesses to prove the writing on the one side, and to disprove it on the other, are all residents in Dublin, and where the publication was in Dublin (as well as in London and elsewhere), and where all the facts happened previous to the passing of the act, the legislature had it in their contemplation, that such a case should he sent for trial to London, a place nearly 400 miles distance from Dublin, beyond the seas, beyond the jurisdiction of the code of laws within which the above facts happened, and to a place where no process can compel the attendance of a single witness resident in Dublin aforesaid; an intention so monstrous, that it never can be enforced, while the act, by any possibility, can aduiit of any other construction,

The argument then commenced by the counsel for Mr. Justice Johnson.

The attorney general replied on Tuesday the 22nd

A difference of opinion subsisting among the judges, the matter was adjourned into the Court of King's-bench.

It was reported that the division was as follows: there were eight judges assembled:

Three were of opinion that Mr. Justice Johnson should be remanded; three that ho should be discharged; two declined to give any opinion.-Orig. Ed.

The same doctrine is expressly holden, in Marriot's case, 1 Salk, 104. He was charged with as high an offence, short of felony, as well can be imagined; with forging the endorsement of an exchequer bill, which is a part of the public securities, and which should be protected by every magistrate.

The return in the present case is attempted to be justified by statute 44th Geo. 3rd. I contend that this case does not come within the statute; and what I have already said, tends to fortify the arguments which I shall use to show that it does not. That statute has various objects in view, and whether you consider it, on reading its title, or its preamble in the third or fourth sections (wherein, or in two of them at least, it recites the mischief meant to be remedied), or the enacting part of it, you will be of opinion, that this case does not come within it.

It is entitled, "An Act to render more easy the apprehending and bringing to trial, offenders escaping," &c. &c. The preamble in the first section is, "that persons against whom warrants are granted escape, &c." The object, beyond all controversy, was, to bring offenders to justice, who escaped. Whether they resided or not in the place where they are arrested, is another consideration: but I rely, and shall urge it upon every clause, that the object was to bring offenders to justice, who shall have escaped.

The first section relates to this island merely, and is calculated to enable the magistracy of the country to follow offenders from the counties, where they had committed offences, into those where they should be found; and if the offence were capital, to transmit from thence to the county where they were to be tried; and if bailable, to bail upon the spot, if one of the minora crimina, and it is carefully guarded in this part, that a person charged with a lower degree of crime, should not be treated as a felon.

Mr. Justice Daly.-Your argument is, that there must be an escape?

Mr. Macartney-I rely upon that; and through every section, it appears to have been the intention of the legislature.

where he committed the crime, to the county where he is found, and may be transmitted for trial; it embraces every crime, the greater and the lesser; it empowers the magistrate to pursue any offender, high or low, to any part of the island, and it is carefully guarded that nothing more shall be done than is essential to the public peace-that he who may be guilty of an assault shall not be punished as a felon; and through every stage of the fifth section, the liberty of the subject is pro tected. The endorsing magistrate, i. e. the magistrate of the county where the culprit is found, is enabled, upon affidavit that the warrant produced is the warrant of the magistrate whose name is signed to it, to endorse the warrant and thus legalize the arrest. If the offence be bailable, bail is to be taken, and a recognizance, which is to be transmitted.. together with the affidavit or confession, &c. to the proper county; and in case of for...... feiture, the recognizance shall be recovered, &c.

In this case, it is remarkable that no such affidavit is made.

Mr. Justice Day.-Then the magistrate endorses it at his peril.

Mr. Macartney. He may so; but by the act of parliament he should have an affidavit, that the warrant was actually the warrant of the magistrate who is stated to have issued it.

Mr. Justice Day.-Then you argue, that there is no evidence, that this is lord Ellen-> borough's warrant.

Mr. Justice Daly.-Suppose it were sorial felony, by procuring a murder in Eng. land, without leaving Ireland?

Mr. W. Johnson. He could not be tried at all, as the law stands.

Mr. Justice Day.-There is an act of parliament as I apprehend, which regulates that. The judgment in one country may be used in the other, though the accessorial party could not be tried, but in Ireland.

Mr. W. Johnson.-Not even there, as I

shall show.

Mr. Macartney-I admit, that the first section is intended to reach offenders of every description within this island. It authorizes,

The sentiments of Mr. Justice Blackstone (3 Comm. 135) are more emphatical than any thing I can convey to the Court. After having enumerated the various labeasoud Corpus laws, and the acts of parliament mads.c

Mr. Macartney.—The first section extends to all cases, but the third section extends only to capital offences.

Mr. Justice Day.-What then did it do with regard to England?

Mr. Macartney.-The_same thing which was done with regard to Ireland.

Mr. Justice Day.-Then you might draw your pen across the fourth section.

in England, to preserve the liberty of the subject from the encroachment of the crown, he refers to a case which drew great public attention-Jenkes's case, who was committed by the king and council for a turbulent speech at Guildhall; he says, "new shifts and devices were made use of to prevent his enlargement by law"-"The oppression of an obscure individual gave birth to the famous Habeas Corpus act, 31 Car. 2, c. 2, which is frequently considered as another Magna Charta of the kingdom." He then goes on through the provisions of that statute-it is not ne cessary for me to mention more than that the isles of Jersey and Guernsey are brought within it, which were not before, and it contains these very remarkable words," that no inhabitant of England" (and the case I put was that of an inhabitant), "shall be sent prisoner to Scotland, Ireland, &c. on pain, that the party committing shall forfeit 5001. with treble costs, shall be disabled to bear any office of trust or profit, shall incur the penalties of pramunire, and shall be incapable of the king's pardon."

I can conceive no penalty more severe than this, which is inflicted by this second Magna Charta for a violation of the liberty of the subject. But if you construe the 44th, Geo. 3rd, so extensively as that a man found in England an inhabitant there, may be transmitted to Ireland, you repeal that act.

Mr. Justice Daly.-Then the only question is, how far the act of the 44th of the king goes-for so far it repeals the former.

Mr. Macartney-I contend it meant to go no farther than the exceptions in the former statute, treason and felony. If a man committed treason in Ireland after the passing of that act, he might be taken up, though he had gone to reside in England, and he might be sent into Ireland ;-treason and felony are the only exceptions in the act, and even with regard to this exception, in a case of the highest degree of criminality, it was a doubt in England whether a man, who had committed an offence of that nature could be transmitted 2 Ventr. 314, Lundy's caseColonel Lundy stood charged with having been appointed governor of Londonderry, and Intending to betray the city to James. He fled into Scotland, where he was apprehended and transmitted to London; the question was, whether he could be transmitted to Ireland for trial, and upon a meeting of the judges (which shows how great the doubt was) they were of opinion that he could be transmitted, because he was within the exception. Mr. Justice Day.The question was, whether he could be tried by martial law, because after the act, he could have been transmitted, being charged with a capital offence.

Mr. Justice Daly.-I wish to understand another argument you say that the act 44 Geo. 3rd did not extend to any case except those which were excepted in the Habeas Corpus act, mais

Mr. Macartney.-No such thing-I shall come to that presently. A case (while my lord Hale was chief justice of the King'sbench) was cited in colonel Lundy's case, of a man who had committed murder in Barbadoes, was taken in England, and was sent over to be tried at Barbadoes; BUT IT WAS! BEFORE THE HABEAS CORPUS ACT.

But upon the question of transmittal, a case was cited at your lordship's house, Kimberley's case, 2 Stra. 848. He had committed a capital offence in Cork, and was taken in England, and a question arose, whether he could be transmitted; and being brought before the judges, it was held he could, being within the exception, and he was transmitted and executed.

Then I come to the case of a person escap ing from England into Ireland. The words of the act are, " for remedy of the like inconvenience by the escape into Ireland of persons guilty of crimes" (still retaining the emphatical word escape- but guilty is a strange word, because my idea was, that a man accused was considered as innocent till convicted); “be it enacted, that after 1st of August, 1804" (still prospective), &c. (states the clause).

It is under this fourth section, that the present arrest is to be justified. I contend, that it relates only to the higher order of crimes, and does not embrace the lower order,

that it is prospective, and relates only to crimes to be committed thereafter,

Mr. Justice Daly.-It seems as if it did not relate to crimes, but only to the mode of proceeding against the criminal,

Mr. Macartney. So it was argued by the.. attorney-general. 1. But I contend, that it can only apply to persons, who committed offences in England and escaped into Ireland; and from that ground I cannot be removed,

In the construction of this act, which never dis has been construed, and is doubtful, because the judges of the land have differed in opinione upon it, it is out of the power of human wis dom to give a different interpretation to the third and fourth sections. If you shall be of lis opinion, that a man charged with an offence in Great Britain, though not escaping from it,su but because he happens to be or reside in Ire land may be transmitted to England it is ú utterly impossible, but that the decision must be the same way upon the other section, and that a person residing or being in England or Scotland, may be transmitted here into Ireland for trial.

My argument is, that the statute embraces b only the higher order of crimes and is pros