dices incident to the infirm state of the human mind, his lordship said it was a weakness so universal and so interwoven in the nature of man, that judges can no more boast of being entirely exempt from them than other men. It was however their peculiar duty to guard against any impressions by which justice might eventually be perverted, and the sub

not the plaintiff, gave the first insult--so that every ground of justification, on these three heads, appears false and fallacious. But even suppose he was a magistrate of the city, and was insulted in the execution of his office, no magistrate could by law, commit him to a Bastile or an Inquisition, without bail or mainprize. A magistrate would be bound to commit him to a public prison, on aject injured. It was equally incumbent on legal committal, and bail him when required -It is the unquestionable right of British or Irish subjects, to be committed with justice, confined with humanity, and bailed according to law. Here my client was committed with out reason-confined with severity-and detained without bail-every principle and practice of the law was broken in his person -and every principle of discreet policy and constitutional protection, violated by his imprisonment.

My learned friend, Mr. Fletcher, has thought proper to state, with a great deal of talent and ingenuity, many facts not proved in the case; and he has humourously told you, that probably a paragraph will appear in the newspaper, that on such a day, a remarkable trial was had in the Court of King's Bench, wherein Mr. Hevey was plaintiff, and Major Sirr, a most meritorious gentleman, was defendant, when the counsel for the plaintiff, made a most eloquent statement, the jury without hesitation, found a verdict for the defendant, and fully justified the major for his active and useful services. But I am rather of a different opinion from that of the learned counsel; for I rather think it may appear in the newspapers of tomorrow, that on this trial, the jury on hearing decisive evidence of a most wanton and illegal imprisonment by defendant; and a plain and true statement of facts, by plaintiff's counsel, notwithstanding the great exertion of defendant's counsel, who most candidly used every art of sophistry in reasoning, and equivocation in fact, to mislead the jury and puzzle themselves; the jury considering, that the life, character, and property of every man was involved in the question, instantly brought in their verdict for the plaintiff, with 5,000l. damages, being the full amount of the damages laid in the plaintiff's declaration; and thereby evinced the detestation of an honest and respectable jury, to every outrage against society, and a determination to prevent such conduct in public officers in future. -This I think is the more likely paragraph of the two, and is certainly most essential to the safety and honour of the gentlemen of the jury. I doubt not that you will take all these impressive facts into your consideration, as guardians of the society and peace of your country; and that you will have a pride in finding such a verdict, as will show the world, that we live yet in a land of liberty and freedom.

Lord Kilwarden charged the jury to the following effect:-Commenting on the preju

juries to exert the utmost vigilance and care of which they are capable, to keep their judgments free from any bias of which they might be susceptible from the zeal or abilities of counsel, whose duty it was to take advantage of any casual occurrence, which they might conceive led to establish the cause of their respective clients. Much eloquent declamation had been expended by gentlemen on both sides, on tyranny, on the coercion of the government, on the decadence of our freedom, on the wisdom of the constitution, and the liberty of the people. To these the merits of major Sirr as a public officer, and the supposed delinquency of the plaintiff on a former occasion, had been superadded. It was however the duty of the jury to discharge every idea of this nature from their consideration, and confine themselves to that narrow point within which the case will certainly be found to rest, when deprived of all those extraneous circumstances in which it had been involved. The case is a very simple one between two private individuals, John Hevey and Charles Henry Sirr; as such alone were they to consider it; and try what reparation should be made to the plaintiff for the injury he alleges to have sustained, if they shall believe from the course of the evidence before them that he had sustained

any.

The first object of their consideration, must be to examine into the facts respecting the conduct of major Sirr to the plaintiff, at the Commercial coffee-house, and fairly discriminate between the caption of the plaintiff, and the act of confining him in the Provost. It was used in argument by counsel, that any man has authority to apprehend a suspected felon, and make him account for himself. That principle cannot be controverted; hut it stands only with this reservation, that the person doing so must act at his own peril, and abide all legal consequences if he cannot substantiate his charge. However, although an indifferent man, that is one not invested with magisterial authority, might apprehend a suspected felon, yet he has no authority to convey him to prison without a magistrate's committal; therefore major' Sirr not being a magistrate for the city of Dublin, stands certainly reprehensible in law for the particular fact of false imprisonment, as far as the evidence goes. The next question for the consideration of the jury, his lordship said, must arise from the intention and motives by which major Sirr was actuated in his conduct to the plaintiff. If any evidence occurred to sup

safety alone; so that if major Sirr instigated as he believed, by a momentary irritation, had stretched his authority in making the caption, and committing the plaintiff, so soon as his emotions had subsided, he should have run with impetuosity to liberate him. But instead of that he temporized, and as appeared to his lordship, trifled with the plaintiff in the message he sent him, respecting an order to major Sandys for his release, with the latter's answer about his detention on a general officer's warrant, which warrant, Sirr, his lordship conceived, must have had cognisance of, before he sent Hevey an ambiguous or fallacious message.

port one part of Mr. Curran's statement, which was, that the defendant was instigated by a malicious and vindictive spirit, in consequence of the depositions which the plaintiff made, to discredit the oath of M'Cann on the trial of Maguire, his lordship asserted, that as to the quantum of damages, he would no more hesitate at 5,000l. at which they were laid, than he should at five-pence; but as no attempt even had been made to support that allegation by any species of evidence, the jury must avoid taking the principle imputed to major Sirr into consideration, and examine into motives as well as facts, by a fair deduction from testimony alone. It appeared to his lordship that major Sirr was merely actu ated by a sudden impulse of passion in seizing on Hevey, in consequence of the abusive language received from him; nor did he perceive any violent aggression on the part of Sirr to provoke such language. Whatever opinion he might have entertained of the conduct or loyalty of the plaintiff, it was evidently not his purpose at that time publicly to upbraid him with it, by a conversation held in a confidential manner, and in a low voice with the witness Hall. His lordship did not offer this observation in vindication of the general conduct of the defendant, but merely to exculpate him as he conceived he merited, from the charge of malice or revenge of which no evidence had been adduced. At the same time it was to be regretted, that major Sirr, who was certainly a very active instrument in tranquillizing the country, while in a state of alarming perturbation, should not have had sufficient discretion and command of mind during the exercise of a temporary authority, which nothing but necessity alone could warrant, to exert that authority with mildness, even with reluctance under the in-appreciate damages for the plaintiff, accordfluence of public duty, and for the public good alone, without any regard to personal feelings or irritated passions.

The occasions which, under Providence, seldom occur, to compel governments to transcend the fixed boundaries of the subject's freedom, under our happy constitution, are still of that momentous and awful description, as to call for acts of military coercion; and to these seasonable acts have we been indebted for the restoration of those very laws which in times of tranquillity, are so forcible and energetic in prohibiting the wanton intrusion of military power. It is in fact to the principle which so many have been pleased to call tyranny, that we are indebted for the preservation of that liberty, which in necessary instances must have been violated, in order to perpetuate its effects, and render the happiness of a people permanent. Every man invested with a temporary authority beyond the laws, should therefore be made acquainted with the necessity which prompted it, and regulate his conduct by a firm undeviating regard to that duty which necessity imposes, from considerations of the public VOL. XXVIII.

It was strongly urged by the defendant's counsel, that Hevey carried about him the stigma and suspicion annexed to the character of a condemned criminal, in consequence of the sentence of a court-martial, before whom he was tried in Kilkenny; and that under these circumstances the conduct of the defendant towards him could be vindicated and supported. To such argument lord Cornwallis's pardon is a direct and unquestionable reply. That pardon had effectually wiped out the stain of the plaintiff's former delinquency, notwithstanding the weighty recognizances under which he stood for the preservation of the peace; nor should his former errors have been visited on him in any point of coercion, or even imputation, until he was guilty of some act by which those recognizances might have become forfeited.

The next and only question for the consideration of the jury which his lordship urged, regarded the principle of liberal or nominal damages. If with his lordship the jury could perceive no trait of malice or revenge in the conduct of Sirr, it was merely their duty to

ing to the inconvenience he was subject to, or the injury he had actually sustained. If on the other hand, they found reason to believe, that the plaintiff in resisting those interrogatories which major Sirr had put to him, immediately after conveying him to the Provost, respecting a protection or some authority for being at large, had a view to provoke confinement, in order to lay a foundation for these proceedings; it should then be their duty to give none but damages merely nominal. These were the observations which occurred as necessary for his lordship to deliver, which he recommended to the jury to weigh and compare, with perhaps many more cogent ones of their own; at the same time not forgetting to discharge their minds from every species of intemperate feeling or indignation, which different relations and comments on the same occurrence, might possibly have contributed to excite in them.

The jury retired, and shortly returned with a verdict for the plaintiff, 150l. damages, with costs.

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648. Proceedings on the Trial of an Indictment against JOSEPH WALL, Esq., sometime Governor of Goree in Africa, for the Murder of BENJAMIN ARMSTRONG; tried before the Court holden under a Special Commission at the Sessions House in the Old Bailey on the 20th day of January: 42 GEORGE III. A. D. 1802.*

Sessions House, Old Bailey, January 20, 1802. for this offence, to withdraw himself from

garrison was of course anxious that their account with him might be settled; and as the period of his departure drew so near, it will be given you in evidence, that a considerable number of the soldiers who had demands of this kind had resorted to the house where the paymaster lived, in order to obtain the payment of them.-For what reason governor Wall mixed himself in the consideration of these short allowances,-what personal reasons he might have, to interpose himself between these men and the application for a settlement and adjustment of the claims made by them on this account,-I am not apprised; at least I shall not suggest any to you.

The circumstances of the case now before us you will recollect arose in the year 1782; -the 10th of July 1782, is the time when that death was occasioned, which is imputed to the prisoner at the bar as murder. The prisoner returned to this country in the month of August, 1782; he was apprehended for this offence in the month of March, 1784, under a warrant from the privy council. You will bear in mind, gentlemen, that most of the persons who, in respect of their local and official situations, were the most material witnesses to establish his innocence-if innocent-The application was made, as I have stated, he be-were living, and within the reach of process from the criminal courts of this country, and might have been then brought forward to establish his vindication, if by such evidence he felt that he could have been vindicated from the charge now under your consideration.

In the year 1782, this gentleman had a garrison under his command, as I have stated, in which there were the several officers, whose names and whose commissions I have already mentioned:-I believe, the whole military force under his command consisted of at least one hundred and forty or one hundred and fifty men;-the garrison had been, for some time prior to the period at which be announced, in public orders, that he was about to depart from the garrison (and which departure was so announced as immediately about to take place, on the 11th of July), put under short allowance in point of provisions. That measure was, I presume, adopted from fair and proper reasons of prudence and probable necessity. The men who had been put under such short allowance, and who were thus restricted, in point of supply, in the articles of usual and necessary consumption, with a view to general convenience and the eventual safety of the garrison, and in order merely that the existing stock of provisions might last out till a farther supply might arrive, were at all times very properly allowed some compensation of a pecuniary kind, on account of their reduced allowance in point of actual provisions.-The gentleman at the bar had announced his departure, as I stated before, for the 11th of July; there was also about to depart, at the same time with bim, for England, a person of the name of Deering, the paymaster of the garrison. In the hands of that person were, of course, these stoppages; and these stoppages were usually commuted with the men, and compensation made to them on account thereof either in money or in that which was, for the purpose of supplying their immediate necessities, equivalent to money, that is to say, in articles of convenient barter and truck at that place. When ensign Deering the paymaster, upon whom the garrison had demands for their short provisions, was so about to depart, the

by those persons in considerable numbers ;they resorted to the house of Mr. Deering, and were desirous of having satisfaction for their pay, before he should leave the island, which was to be on the day following. After that period, a vast ocean would separate them from their debtor, and considering the precariousness of human life, and particularly in that unhealthy settlement,-if they did not press their demand at that period, it is possible they might not be in a situation afterwards to urge it with any beneficial effect to themselves.

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Upon their coming, in a considerable number,-as you will have it in evidence,-towards the house of the paymaster, and when in doing so they passed by the governor's house (who lived in the way to the paymaster's), and were going on to the paymaster's, it appears that governor Wall came out, and with language of some anger, reprehended the men for resorting to the house of the paymaster upon this occasion, and ordered them, with some menaces of punishment, to go away; the men, as it is stated to me, and as I shall lay it before you in evidence, retired dutifully upon that admonition. About an hour and a half afterwards, several persons camewhether they were the same who came before I know not-but one of them was the deceased Armstrong, whose death, and the causes of whose death, are alone now in question before you,-I say alone, for I would wish and desire you, to lay out of your consideration any circumstances which point at the supposed death of any other person; if you happened to be in court, and heard any indictments read, upon any former occasion, which were applicable to the deaths of any other persons, I request you to lay that matter wholly out of your attention; for we are to confine our attention merely to the circumstances and cause of the death of Armstrong, and no other circumstances will be gone into, but such as are immediately connected in point of fact with the death of that person. If, indeed, subsequent transactions, connecting and inseparably mixing themselves with matters which respect the deaths of other persons, should necessarily, in point of fact, make a part of our proof in respect to the