Excerpt from Reports of Cases Argued and Determined in the English Courts of Common Law, Vol. 72: With Tables of the Cases and Principal Matters

Lord campbell, C. J. - I am clearly of opinion that no ground has been laid before us on which we should interfere. For obvious reasons, I shall say as little as possible of the circumstances of this particular case: but, after what has been urged in support of the application, I must make some observations. These two gentlemen are foreigners but, having come to this country, they are in precisely the same posi tion as if they were native subjects; and they must meet with the same measure of justice that would be given to native subjects, even of the highest rank. I feel certain that, if the highest subject had been com mitted for wilful murder m a duel, and had admitted that he was an accessary before the fact, it would at any time have been in vain for him to have made an application to be 'bailed. We are, in exercising our discretion, to consider, as is pointed out in Regina 0. Scaife, the seriousness of the charge and the nature of the evidence. But 18 it to be supposed that this Court will try, by a preliminary mquiry on afiidavits, whether a duel was fair or not? To do so might tn many cases be most prejudicial to the interests of the prisoner himself. I think we can look only to the nature of the charge, which is in this case a capital offence, and to the evidence, which in this case is a confession. On this evidence, if not altered, the verdict must be Guilty. I hope that the circumstances may prove such that execution of the sentence II5 *may be avoided; but sentence of death must be awarded, on such a verdict. We do not inquire into the circumstances which would be material if we were called upon to act as advisers of the Crown, on the question whether the sentence should be mitigated. Such is not our duty at present; but we are called on to interfere by admitting these prisoners to bail. No instance has been brought before us in which any such step as we are now asked to take has been taken by this Court or by any Judge. The statement in the Annual Register of the case of Mr. Allen is far too loose to enable us to act upon it. It does not appear clear that he was hailed at all; or, if he was, it may have been done by a justice of the peace in violation of his duty. The Irish case mentioned has no analogy to the present. There the verdict of the coroner's jury, on which the prisoners were charged, was contrary to all the evidence, which showed clearly that no crime had been com mitted; and the prisoners did not confess their guilt, as is done here, but denied it. The prisoners must abide their trial. They will on that trial have every privilege given to foreigners; but, if, on their trial, they are convicted, sentence of death must be passed upon them, and they must make their application to the mercy of the Crown.

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