have omitted some of them is very possible, for the document is very discursive, and hardly any of its propositions are distinctly enunciated. That it is the manifestation of a foregone conclusion, that its writers cane to their work with their determination already formed, we think must be evident.

That Judge Loring has violated no law of Massachusetts; that he had no reason to suppose that his acting as a commissioner in the Burns case would be offensive to the people of Massachusetts; that, in fact, it was not; that this persecution is owing not to such acting, but to his decision; that his conduct during the trial was distinguished by humanity, firmness and conscientiousness; that he has neglected no duty of his office as judge of probate; that no complaint has been preferred against him for any shortcoming in that office; that he is, in fact, in every way deserving of the confidence of the community; these are facts which we fully believe, and which, we think, can only be denied by men whose moral vision is distorted by party prejudices. We fear that this violation of the judiciary department, this cruel injustice to the individual man, will be consummated, as has already been indicated by the votes of the House of Representatives, and the Senate. Be it so.

Non si male nunc et olim
Sic erit.

The party that made the attack on the judiciary in 1843, by reducing the salaries of the judges of the Supreme Court, never had much reason to boast of their success. In the very next year, probably from this very act, they were in a hopeless minority, and saw their work undone.

We think it obvious that the course which is now pursued against Judge Loring by the opponents of the United States law of 1850, is a very impolitic one, so far as the real interests of fugitives from labor is concerned. Whatever be the character of that law, - nay, the more unjust and oppressive its character, it is for the interest of all except those who may wish to make political capital by agitation, that its application should be left in pure hands. The law of 1850 has been pronounced constitutional by the Supreme Court of Massachusetts and the Circuit Court for this district, and its enforcement is inev

itable until it is repealed. Whenever cases may be presented under it, any commissioner who consents to act, may be compelled, if he is a man of any pretension to character, and is not prepared to oppose these decisions, to send back a fugitive.

As long as the law remains in force, men will be found who will act as commissioners, and exercise jurisdiction. under it. The bar of this Commonwealth, and especially of the county of Suffolk, is not so select as it once was. There are as many good and true men at it as ever, but there are more of an inferior moral standard than there used to be. Now if every man who acts as a magistrate to enforce the law of 1850 is to be persecuted as Judge Loring has been, it is very easy to see that the commissioners must soon be a class by themselves, to whom the mere profits of the office will be a sufficient inducement to brave public opinion, and who will have a direct interest in every case in pronouncing against the fugitive, and with very little principle to deter them from pursuing that interest. When there is a law of such a nature on the statute book, that to pronounce decrees under it in favor of the claimant may be supposed to be the sure way to political favor at the South, and with the general government, and is also doubly more advantageous to the magistrate in a pecuniary point of view, it is all-important to have very pure and honest and strong men to administer it, lest they fall into temptation. The existing commissioners are, we believe, all of them men of entirely irreproachable private character. So far as we know, they are, every one of them, men whose whispered word would (excepting the accidents of life) be considered as good security as their sealed bond. Now if such men are driven out by party rancor from the offices which they hold, it is manifest that the vacated offices must be filled by descending to a lower level, and employing others of an inferior character. We have already been told of one case, and are informed that many. others have occurred, where the commissioners have been applied to act under this law in a covert and unfair manner, and that they have refused so to act. This is no merit in them. But men might be in office who would not be so scrupulous, and whatever odious features there may be in the law might be aggravated by the mode of its administration. While the

office of commissioner is filled by such persons as the present incumbents, there is no danger of this kind. We

hope they will continue so to be filled while the law remains in force.

In writing this article, we wish most expressly to disclaim expressing any feeling or opinion in favor of the United States law of 1850. We have been dealing only with the question of the violation of the judiciary department in Massachusetts. That while the constitution and Union endure, the South, under that constitution, are entitled to some law or some means to enable them to reclaim their fugitive slaves cannot be questioned. That the people of any one State are ready to give up the constitution and the Union on this issue we cannot, we are unwilling to, believe. But we do most sincerely dislike and object to the most odious provisions of this law. We would do as little in obedience to it as is possibly consistent with our duty as citizens, and as persons who, in various capacities, have sworn to obey the laws of the United States. We would strive and hope for its repeal or modification.

But Massachusetts will come to this work with an ill grace, if she come with the stigma upon her of having violated the integrity of her judiciary to serve the purposes of a party.

NOTES TO LEADING CRIMINAL CASES.

REES PRICE v. ROBERT B. SEELEY AND OTHERS.1

MAY 11, 1843.

Arrest by Private Person― Justification - Breach of the Peace. A private person is not justified in arres ing, or giving in charge of a policeman, without a warrant, a party who has been engaged in an affray, unless the affray is still continuing, or there is reasonable ground for apprehending that he intends to renew it.

A pea, justifying an arrest for an affray without warrant, ought to contain a direct averment that there was an affray or a breach of the peace continuing at the time of the arrest, or a well-founded apprehension of its renewal.

A plea of justification to an action of trespass for assault and false imprisonment, after stating that defendants were in lawful possession of a yard, and were there erecting a wall by their servants; that plaintiff entered the yard, and upon the wall, and made a great noise, disturbance, and affray, ill-treated defendants, threw down their servants so employed. and obstructed the erection of the wall, in breach of the peace; then averring a requisition by defendants to plaintiff to depart, and his refusal and continuance; whereupon defendants and their servants gently removed him, and he violently resisted, and assaulted one of defendants in so

1 House of Lords, 10 Clark and Finnelly, 28.

doing, proceeded thus: That plaintiff then and immediately afterwards, and just before the said time when, &c., with force, &c., again broke and entered the yard and got upon the wall, and again made a great no:se, disturbance, and affray therein, and threatened to assault, insulted, and ill-treated and showed fight to defendants, and then again forcibly obstructed the further erection of the said wall, and threw down part thereof, &c., in breach of the peace; whereupon defendants, having view of the offences and misconduct of plaintiff last aforesaid, in order to prevent such breach of the peace &c., then and there gave charge of the plaintiff to a police constable, who then saw the misconduct of plaintiff to take him before a justice, and the policeman took him before a justice. Held, that these were sufficiently positive averments of a continuing breach of the peace from the commencement until the plaintiff was given in charge, or amounted to a necessary implication of a well-founded apprehension that it would be renewed.

THIS was a writ of error on a judgment of the Exchequer Chamber, which affirmed a judgment of the Court of Queen's Bench, under the following circumstances:

In Easter term, 1839, the plaintiff in error brought an action against the defendants in error, in the court of Queen's Bench: the declaration contained two counts, the first stating an assault, battery, and false imprisonment of the plaintiff by the defendants; and the second stating an assault and battery.

The defendants severed in their pleas: the said R. B. Seeley and five other defendants, pleaded,

1st. Not guilty to the whole declaration.

2dly. As to the second count, a justification (on which no question arose.)

3dly. As to the first count also, a justification, stating that four of them, with other persons, being trustees under an Act of 10 Geo. 4, for taking down and rebuilding St. Dunstan's church, were, as such trustees, lawfully possessed of a certain close or yard, with the appurtenances, situate and adjoining to Clifford's Inn, in the city of London, in which close certain persons, with the authority of the said trustees, were, before and at the said times when, &c., constructing a wall, by Thomas Winney and Thomas Lee, their servants in that behalf; and the said trustees being so possessed, and the said servants being so employed, the plaintiff, just before any of the said times when, &c., in the said first count mentioned, came into the said close or yard, and upon the said wall so constructing, as aforesaid, "and then and there with force and arms made a great noise, disturbance, and affray therein and thereon, and insulted, threatened, abused, and ill-treated the said last-mentioned defendants so being such trustees as afore

said, and also the said George Colk, one of these defendants, in the said close or yard respectively; and then with force and arms assaulted and pushed about and threw down the said T. Winney and T. Lee, being such servants employed in constructing the said wall as aforesaid, and then greatly disturbed and disquieted the said trustees in their peaceable and quiet possession of the said respective close or yard, and forcibly hindered and obstructed the erection of the said wall there, in breach of the peace of our lady the Queen; whereupon the last-mentioned defendants, R. B. Seeley, &c., being such trustees as aforesaid, requested the said plaintiff to cease his said noise, violence, hindrance, and disturbance, and to depart from and out of the said close or yard and wall respectively; which the plaintiff then wholly refused to do, and continued his said noise, violence, hindrance, and disturbance. The last-mentioned defendants, so being such trustees as aforesaid, then and just before the said times when, &c., in defence of the possession of their said close or yard and wall, and the said George Colk, Cyrus Elliman, and Thomas Eaves, as their servants in that behalf and by their command, and the defendants did gently lay their hands on the plaintiff, in order to remove, and did then remove the plaintiff from and out of the said close or yard of the said trustees, and off the said wall, as they lawfully might for the cause aforesaid; the plaintiff with force and arms violently resisted the said removal, and assaulted, beat, and ill-treated the said T. Eaves in so doing, in further breach of the Queen's peace: And the said defendants further say, that the plaintiff then immediately afterwards, and just before the said times when, &c., with force and arms, &c., again broke and entered the said close or yard, and got upon and over the said wall, and again made a great noise, disturbance, and affray therein and thereon, and threatened to assault, and insulted, and abused, and ill-treated, and showed fight to the defendants, being such trustees as aforesaid, and the said servants, in the said close or yard; and then again forcibly obstructed and hindered the further construction of the said wall thereon, and forcibly kicked and threw down a part of the same already built, and greatly disturbed and disquieted the said trustees in the peaceable and quiet possession of the said close or yard, in breach of the peace of our lady the Queen; whereupon the last-mentioned defendants, being such trustees as aforesaid, and having view of the said offences and misconduct of the plaintiff last aforesaid,