Wilmington journal., 1873-08-01
The lord Gordon Case.

MINsEApoLn., MINI, July 2G.-The
following despatch was received from
Fort Garry, dated the Goth: Our citi
zens, through the Vaccinations Cf At
torney- General Clarke, have been sch
teuced to lie III British jail t.e await
the session of the Queens Bench i'll
October next. The following juds-
uent has been rendered " the Judge
on the question of bail The Queens
Viceroy ct al. This IS an application
on the part of the prisoner to be admit
ted to bail The law says it is disc"e-
tiOnary with the Judge before whom
the application is made to grant it or
not. Every one, L think, must un-
derstanl that the word discretion -
as here nsed does not imply that the
Judge may according to arbitrary will
admit one person to bail and under
similar circumstances withhold it from
another. Legal discretion, as defined
by Sir Edward Coke, is to discern ac-
cording to law. Let us apply this de-
nnitiOn to the case in point. 1t has
been abundantly established III the
evidence and admitted by at least two
prisoners, Hay and Keegan, that they.
with the active cooperation of Flctch
er and Blaiely, furcibly seized and con
fined against his will one Gordon, with
the intent to take him out of Canada.
Our statute declares this offence felo-
ny, the maximum punishment of which
is seven years in the penitentiary. The
accused have songht to Justify their ac-
.i0n by stating that they hold a power
of attorney from person III New York,
authorizing the capture of Gordon, and
tt,at having only acted under this Ow
er they had infringed no law that by
the common law bail might follow his
principal even into British dominiOns
and take and forcibiy carry him away
without n warrant. l do not subscribe
TO this doctrine, which, i'll my opinion.
ia most dangerous to our national III
dependence; bIit assuming this opinion
to be sound it would not meet the pre-
sent case, as the power of bail to take
it's principal is a personal right con-
fined to himself alone and cannot be
delegated to another. Nov with these
data tefOre us what remains ? First,
that the offence charged against the
prisoners is aRlOst serious one. Second,
that the evidence sustains the charge
and leaves little dOIbt as to the guilt
OF the prisoners. Third, the plea OF
justification is, i'll my opinion, llntena-
bie Let us, i'll conclusion, apply our
discretion to these facts, not forgetting
oHr definition that discretion in this
sense means to discover according to
law. 1t is laid down IN the books that
when tie offence charged is of serl~
ous nature and the proof of guilt strong,
the Judge ought to refuse bail. Under
the facts of the case and taking into
consideration all the circumstances
connected Herewith. l feel bound by
law and by precedent to refuse bail IN
the case of Hay, Keegan, Fletcher and
Blakely. Merriman's case is different.
In committing him for trial was, l
think, justified by law, but this being
an application to rule as Judge OF
the Queens Bench, and there being
doubts in my mind as to his guilt, l
think he ought to be admitted to bail
himself, to be bonili i'll the sum of $ss4,
Du for his appearance at the ensuing
term of the Court of the Queen
Eench.
(Signed) JAMES c. MCKENZIE,
Judge of the Court of Queens Bench