I think it unnecessary in the present stage of the action, to give an opinion, whether the proceedings of the court martial have been conformable to law. Let it be supposed that the plaintiff has shewn cause of action. That is putting the matter on the most favourable footing for him. The general rule is, that in actions of trespass, bail is not demandable, because there is no standard by which the damages can be measured. But there are exceptions to this rule. One is, where the defendant is about to depart out of the jurisdiction of the court. Another is, where there has been a violent battery, in which the plaintiff may sometimes swear to damages to a certain amount, and it may be evident from a view of the wounds, that considerable damage must have been sustained. There are other cases where it is presumable that large damages will be given, because the subject may have been discussed in an action against others for a similar trespass. Such was the case of a court martial of which Sir Chaloner Ogle was president, (cited by the plaintiff’s counsel) whose proceedings had been proved to be unjust, arbitrary and oppressive. The case before us comes within none of these exceptions. The court martial was not convened by the defendants through a wanton spirit of mischief, but in obedience to the orders of the governor of the *305commonwealth; nor in the..course of their proceedings has the plaintiff been treated by them" with contumely, insolence or oppression. On the contrary, nothing offensive has been shewn in the conduct of the president of the court or the judge advocate; and the marshal behaved with great kindness, in suffering his deputy to attend the plaintiff to the Iiouses of his friends, in order to borrow money to pay the fine. One of these friends offered money, which the plaintiff refused, and went to jail by advice of counsel, in order to lay a foundation for damages in this action. I pass no censure on the plaintiff for choosing to go to jail, he had a right so to do; and it is highly important to the citizens of this Commonwealth to have it judicially decided, whether the acts of this court martial are warranted by law. But I see nothing in this case, wrhich should take it out of the general rule with regard to special bail. It is impossible to say what damages a jury may think proper to give. Where national liberty is invaded, high damages are sometimes given by way of example, though the plaintiff has suffered very little injury; on the other hand, a jury might think the rights of the nation sufficiently vindicated by small damages for the first offence, against persons who had conducted themselves with mildness and decency in a doubtful case, where they were called upon to act by superior authority. It is not for me to anticipate the verdict, nor do I think it prudent to say, until the cause comes toa hearing, any thing which may have a bearing against either party with respect to damages. I am of opinion, that there is no reason, why the Court should in this instancé depart from the general rule, which permits an appearance without bail in actions of trespass. But I desire it to be understood, that my opinion would be different, should a case be presented, where the members of a court martial had conducted themselves insolently, rudely or oppressively towards those, who by their religious principles are known to be conscientiously opposed to the bearing of arms. Qn such persons the law itself operates with sufficient rigour, and should not be aggravated by unnecessary severity. No case of that kind has yet occurred, and I sincerely hope none ever may.

I cannot reconcile my mind to the exercise of the powers of courts martial over private citizens, or militia men, who have not mustered or been in actual service, consistently with the provisions of the constitution of the United States, or of this Commonwealth. Nor can I see in the act of congress -of 28th February 1795, any authority delegated to such courts martial, to compel such persons to appear before them, to answer for a supposed delinquency, by the instrumentality of an armed force. '

At the same time, that I feel it to be my duty thus publicly to avow my sentiments, I cannot avoid saying, that I can discover no tincture of wanton oppression in this instance by the military tribunal. The expressions of the file of men who were sent to apprehend the plaintiff in his lodgings, were in my idea highly reprehensible; and if such conduct had been authorized by the orders of the court martial, I should have no hesitation as to the holding of the defendants to bail. The case before us presents a question of great importance to the fights of the citizens, but unattended with any circumstances of aggravation fairly imputable to the defendants. The plaintiff intimidated by the acts of the guard, surrendered himself to the court martial. It is our duty to decide on the motion according to the known rules of law, applicable to the circumstances of the particular case. In matters of mere tort, bail is not of course, but may be directed by the special order of a judge, or' of the whole Court. In the exercise of an impartial legal discretion, they will either order or refuse bail, according to their view of the individual wrong which is the subject of the suit. When the injury complained of is not gross or enormous, the circumstance of the defendants having; expressed no intention to leave the government, to whose laws the plaintiff has appealed, will always have great weight.

Judging by these rules, I concur in opinion, that the defendants should be discharged on common bail.

Discharged on common bail.