David J. (David Josiah) Brewer.

Crowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 4) online

. (page 27 of 39)
Online LibraryDavid J. (David Josiah) BrewerCrowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 4) → online text (page 27 of 39)
Font size
QR-code for this ebook

it declares such detention or removal illegal; it gives an action
against all persons concerned in the offense by contriving, writ-
ing, signing, countersigning such warrant, or advising or assist-
ing therein. That you may form a just estimate of the rights
which were to be secured, examine the means by which their
infringement was in future to be prevented and punished. The
injured party has a civil action against the offenders, but the
legislature recollected that the sneaking unprincipled humility of
a servile packed jury might do homage to ministerial power by
compensating the individual with nominal damages. The statute
does that, of which I remember no other instance. It leaves the
jury at liberty to give damages to any extent above five hundred
pounds, but expressly forbids them to find a verdict of damages
below it. Was this sufficient ? No. The offenders incur a prcsni-
unire. They are put out of the King's protection; they forfeit
their lands and goods; they are disabled from bearing any office
of trust or profit. Did the statute stop there ?

The Legislature saw, in their prospective wisdom, that the
profligate favorite, who had committed treason against the King
by the oppression of his subjects, might acquire such a dominion
over the mind of his master as by the exertion of prerogative to
interrupt the course of justice and prevent the punishment of his
crime. The king cannot pardon. Are bulwarks like these ever
constructed to repel the incursions of a contemptible enemy ?
Was it a trivial and ordinary occasion which raised this storm of
indignation in the Parliament of that day ? Is the ocean ever
lashed by the tempest to waft a feather or to drown a fly ?
Thus haughtily and jealously does this statute restrain the abuses
that may be committed against the liberty of the subject by the
judge, the jury, or the minister. One exception, and one excep-
tion only, does it contain: It excepts from its protection, by the
sixteenth section, persons who may have committed *any capital
offense ** in Scotland or in Ireland. If the principle of that ex-
ception were now open to discussion, sure I am that much might
be said against its policy. On the one side, you would have to
consider the mischief of letting this statute protect a capital
offender from punishment by prohibiting his transmission to that
jurisdiction where his crime was committed, and where alone he


could be tried. On the other, you would have to weigh the dan-
ger to be feared from the abuse of such a power, which, as the
Habeas Corpus Act stood, could not be resorted to in any ordinary
way, but was confined to the sole and exclusive exercise of the
advisers of the prerogative. You would have to consider whether
it was more likely that it would be used against the guilty or
the obnoxious; whether it was more likely to be used as an in-
strument of justice against the bad, or a pretext of oppression
against the good; and finally, whether you might not apply to
the subject the humane maxim of our law — that better it is that
one hundred guilty men should escape than that one innocent,
and, let me add, meritorious man should suffer. But our ances-
tors have considered the question; they have decided, and, until
we are better satisfied than I fear we can be, that we have not
degenerated from their virtue, it can scarcely become us to pass
any light or hasty condemnation upon their wisdom. In this
great statute then, my lords, you have the line of demarkation
between the prerogative and the people, as well as between the
criminal law and the subject, defined with all the exactness, and
guarded by every precaution that human prudence could devise.
Wretched must that legislature be whose acts you cannot trace
to the first unchangeable principles of rational prerogative, of
civil liberty, of equal justice! In this act you trace them all dis-
tinctly. By this act you have a solemn legislative declaration,
"that it is incompatible with liberty to send any subject out of
the realm, under pretense of any crime supposed or alleged to be
committed in a foreign jurisdiction, except that crime be capital.*
Such were the bulwarks which our ancestors drew about the
sacred temple of liberty — such the ramparts by which they
sought to bar out the ever-toiling ocean of arbitrary power, and
thought (generous credulity!) that they had barred it out from
their posterity forever. Little did they foresee the future race
of vermin that would work their way through those mounds and
let back the inundation; little did they foresee that their labors
were so like those frail and transient works that threatened for
a while the haughty crimes and battlements of Troy, but so soon
vanished before the force of the trident and the impulse of the
waters; or that they were still more like the forms which the in-
fant's finger traces upon the beach; the next breeze, the next
tide erases them, and confounds them with the barren undistin-
guished strand. The ill-omened bird that lights upon it sees


nothing to mark, to allure, or to deter, but finds all one oblit'
erated unvaried waste: —

Et sola secum sicca spatiatur arena.

Still do I hope that this sacred bequest of our ancestors will
have a more prosperous fortune, and be preserved by a more
religious and successful care, a polar star to the wisdom of the
legislator and the integrity of the judge.

As such will I suppose its principle not yet brought into dis-
grace; and as such, with your permission, will I still presume to
argue upon that principle.

So stood the law till the two acts of the twenty-third and
twenty-fourth of George II. which relate wholly to cases between
county and county in England. Next followed the act of the
thirteenth of his present Majesty, which was merely a regulation
between England and Scotland. And next came the act of the
forty-fourth of the present reign, upon which you are now called
on to decide, which, as between county and county, is an incor-
poration of the two acts of George II. ; and as between England,
Scotland, and Ireland, is nearly a transcript of the thirteenth of
the King.

Under the third and fourth sections of this last act the
learned counsel for the learned prosecutors (for really I think it
only candid to acquit the lord-lieutenant of the folly or the
shame of this business, and to suppose that he is as innocent of
the project from his temper as he must from his education be
ignorant of the subject) endeavor to justify this proceeding. The
construction of this act they broadly and expressly contend to be
this: Firstly, they assert that it extends not only to the higher
crimes, but to all offenses whatsoever; secondly, that it extends
not only to persons who may have committed offenses within any
given jurisdictions, and afterwards escaped or gone out of such
jurisdictions, but to all persons whether so escaping or going out
or not; thirdly, that it extends to constructive offenses, that is, to
offenses committed against the laws of certain jurisdictions, com-
mitted in places not within them, by persons that never put their
feet within them, but by construction of law committing them
within such jurisdiction, and of course triable therein; fourthly,
that it extends peculiarly to the case of libels against the per-
sons intrusted with the powers of government, or with offices in



the State; and fifthly, that it extends not only to offenses com-
mitted after the commencement of the act, but also to offenses at
any period, however remotely previous to the existence of the
statute; that is, that it is to have an ex post facto operation.
The learned prosecutors have been forced into the necessity of
supporting these last monstrous positions, because, upon the return
to the writ, and upon the affidavits, it appears, and has been ex-
pressly admitted in the argument — firstly, that the supposed libel
upon these noble and learned prosecutors relates to the unhappy
circumstances that took place in Ireland on the twenty-third of
July,' 1803, and of course must have been published subsequent
thereto; and, secondly, that Mr. Justice Johnson from the begin-
ning of 1802 to the present hour was never for a moment in
England, but was constantly resident in Ireland; so that his guilt,
whatever it may be, must arise from some act, of necessity com-
mitted in Ireland, and by no physical possibility committed or
capable of being committed in England: these are the positions
upon which a learned chancellor and a learned judge come for-
ward to support their cause and to stake their character, each in
the face of his country, and both in the face of the British Em-
pire: these are the positions, which, thank God, it belongs to my
nature to abhor, and to my education to despise, and which it is
this day my most prompt and melancholy duty to refute and to
resist — most prompt in obeying; most grieved at the occasion
that calls for such obedience.

We must now examine this act of the forty-fourth of the king,
and in doing so, I trtist you will seek some nobler assistance
than can be found in the principles or the practice of day-rules
or side-bar motions ; something more worthy a liberal and learned
court, acting under a religious sense of their duty to their King,
their country, and their God, than the feeble and pedantic aid of
a stunted verbal interpretation, straining upon its tiptoe to peep
over the syllable that stands between it and meaning. If your
object were merely to see if its words could be tortured into a
submission to a vindicate interpretation, you would have only to
indorse the construction that these learned prosecutors have put
upon it, and that with as much grave deliberation as Mr. Justice
Bell has vouchsafed to indorse the warrant which my Lord Ellen-
borough has thought fit to issue under its authority. You would
then have only to look at it, ut leguleius quidam cautus atqiit
actitus, prcBcentor,


Lord Avonmore — No, Mr. Curran, you forget; it is not prcB'
cetitor, it is leguleius quidam cautus atqiie acutus, prcBco actionuni^
cantor formarum, anceps syllabarum.

Mr. Curran — I thank you, my lord, for the assistance; and I
am the more grateful, because, when I consider the laudable and
successful eiforts that have been made of late to make science
domestic and familiar, and to emancipate her from the trammels
of scholarship, as well as the just suspicion under which the
harborers and abettors of those outlawed classics have fallen,
I see at what a risk you have ventured to help me out. And
yet see, my lord, if you are prudent in trusting yourself to the
honor of an accomplice. Think, should I be prosecuted for this
misprision of learning, if I could resist the temptation of escap-
ing by turning evidence against so notorious a delinquent as you,
my good lord, and so confessedly more criminal than myself, or
perhaps than any other man in the empire.

To examine this act then, my lords, we must revert to the
three English statutes of which it is a transcript. The first of
these is the twenty-third of George II. cap. 26, § 11.

So much of the title as relates to our present inquiry is ** for
the apprehending of persons in any county or place upon war-
rants granted by justices of the peace in any other county or
place. ^*

See now section two that contains the preamble and enaction
as to this subject: —

^*And whereas it frequently happens that persons, against whom
warrants are granted by justices of the peace for the several counties
within this kingdom, escape into other counties or places out of the
jurisdiction of the justices of the peace granting such warrants, and
thereby avoid being punished for the offenses wherewith they are
charged: For remedy whereof, be it enacted by the authority afore-
said, that from and after the twenty-fourth day of June, one thousand
seven hundred and fifty, in case any person against whom a legal
warrant shall be issued by any justice or justices of the peace for
any county, riding, division, city, liberty, town, or place within this
kingdom, shall escape or go into any other county, riding, division,
city, liberty, town, or place out of the jurisdiction of the justice or
justices granting such warrant as aforesaid, it shall and may be law-
ful for any justice of the peace of the county, riding, division, city,
liberty, town, or place, to which such person shall have gone or es-
caped, to indorse such warrant, upon application made to him for



that purpose, and to cause the person against whom the same shall
have been issued, to be apprehended and sent to the justice or jus-
tices who granted such warrant, or to some other justice or justices
of the county, riding, division, city, liberty, town, or place, from
whence such person shall have gone or escaped, to the end that he
or she may be dealt with according to law, any law or usage to the
contrary notwithstanding.*

This act was amended by the twenty-fourth of the same reign,
the title of which was: —

*An act for amending and making more effectual a clause in an
act passed in the last session of Parliament for the apprehending of
persons in any county or place upon warrants granted by justices of
the peace of any county or place."

It then recites the eleventh section of the twenty-third of
George II., and proceeds: —

"And whereas, such offender or offenders may reside or be in
some other county, riding, division, city, liberty, town, or place, out
of the jurisdictions of the justice or justices granting such warrant
as aforesaid, before the granting such warrant, and without escaping
or going out of the county, riding, division, city, liberty, town, or
place, after such warrant granted.'*

I shall reserve a more particular examination of these two
acts for that head of my argument that shall necessarily require
it. At present I shall only observe: Firstly, that they are mani-
festly prospective; secondly, that they operate only as between
county and county, in England; thirdly, that they clearly and
distinctly go to all offenders whatsoever, who may avoid trial and
punishment of their offenses by escaping from the jurisdiction in
which they were committed, and were, of course, triable and pun-
ishable; and fourthly, that provision is made for bailing the per-
sons so arrested in the place where taken, if the offenses charged
upon them were bailable by law.

In the thirteenth of his present Majesty, it was thought fit to
make a law with respect to criminals escaping from England to
Scotland, and vice versd: of that act the present statute of the
forty-fourth is a transcript. And upon this statute arises the first
question made by the prosecutors; namely, whether, like the acts
of the twenty-third and twenty-fourth of George II., which were
merely between county and county, it extended indiscriminately


to the lowest as well as the highest offenses, or whether the
thirteenth and forty-fourth, which go to kingdom and kingdom,
are not confined to some and to what particular species of of-
fenses. The preamble to these two statutes, so far as they bear
upon our present question, is contained in the third section of
the forty-fourth, the act now under consideration. And there is
not a word in it that is not most material. It says: —

« Whereas, it may frequently happen that felons and other male-
factors in Ireland may make their escape into Great Britain, and also,
that felons and other malefactors in Great Britain may make their
escape into Ireland, whereby their crimes remain unpunished. »

There being no sufficient provision by the laws now in force
in Great Britain and Ireland, respectively, for apprehending such
offenders and transmitting them into that part of the united
kingdom in which their offenses were committed it is enacted
<<for remedy whereof,* etc., that "if any person against whom a
warrant shall be issued by any justice of the peace in Ireland, for
any crime or offense against the laws of Ireland, shall escape, go
into, reside, or be in any place in England or Scotland, it shall
be lawful for any justice of the peace for the place, whither or
where such persons shall escape, etc., to indorse his name on
such warrant; which warrant so indorsed shall be a sufficient
authority to the person bringing it to execute the same, by ap-
prehending the person against whom it is granted, and to convey
him by the most direct way into Ireland, and before a justice
living near the place where he shall land, which justice shall
proceed with regard to him as if he had been legally appre-
hended in such county of Ireland.* The fourth section makes the
same provision for escapes from England or Scotland into Ireland.
The statute goes on and directs that the expenses of such re-
moval shall be repaid to the person defraying the same, by the
treasurer of the county in which the crime was committed, and
the treasurer is to be allowed for it in his accounts.

To support the construction that takes in all possible offenses
of all possible degrees, you have been told, and upon the grave
authority of notable cases, that the enacting part of a statute
may go beyond its preamble; that it cannot be restrained by the
preamble, and still less by the title; that here the enacting clause
was the words " any offense, * and that " any offense " must ex-
tend to every offense, and of course to the offense in question.


If the question had been of a lighter kind, yott might perhaps
have smiled at the parade of authorities produced to establish
what no lawyer ever thinks of denying. They would have acted
with more advantage to the justice of the country, though per-
haps not to the wishes of their clients, if they had reminded your
lordships, that, in the construction of statutes, the preamble, and
even the title itself, may give some assistance to the judge in de-
veloping its meaning and its extent; if they had reminded you
that remedial laws are to be construed liberally, and penal laws
with the utmost strictness and caution. And when they contend
that a supposed libel is within the letter of this law, they would
have done well to have added that it is a maxim that there may
be cases within the letter of a statute, which, notwithstanding,
the judge is bound to reject, from its operation being incom-
patible with its spirit. They would have done well in adding
that the judge is bound so to construe all laws as not infringe
upon any of the known rules of religion or morality, any of the
known rules of distributive justice, any of the established princi-
pies of the liberties and rights of the subject, and that it is no
more than a decent and becoming deference to the legislator to
assume as certain, that whatever words he may have used, he
could not possibly have meant anything that upon the face of
it was palpably absurd, immoral, or unjust. These are the prin-
ciples on which I am persuaded this court will always act,
because I know them to be the principles on which every court
of justice ought to act. And I abstain studiously from appealing
to any judicial decisions in support of them, because to fortify
them by precedent or authority would be to suppose them liable
to be called in question. There is another rule which I can
easily excuse the learned gentlemen from adverting to, and that
is, that when many statutes are made in pari materia, any one
of them is to be construed, not independently of the others, but
with a reference to the entire code of which it is only a com-
ponent part.

On these grounds, then, I say, the forty-fourth was not, and
could not, be intended to go to all offenses whatsoever.

First, because the acts of twenty-third and twenty-fourth of
George II. had already prescribed « all persons'^ by words of the
most general and comprehensive kind. If the framers of the
thirteenth and forty-fourth meant to carry these acts to the sania
length, they had the words of the former acts before their eyes,


and yet they have used very different words: a clear proof, in
my mind, that they meant to convey a very different meaning.
In these latter acts they use very singular words — "felons and
other malefactors.'* That these words are somewhat loose and
indefinite I make no difficulty of admitting, but will any man
that understands English deny that they describe offenses of a
higher and more enormous degree ? You are told that felon
does not necessarily mean a capital offender, because there are
felonies not capital, the name being derived from the forfeiture,
not of life, but of property. You are also told that malefactor
means generally an ill-doer, and, in that sense, that every offender
is a malefactor; but the thirteenth and forty-fourth states this
class to be felons and malefactors, for whose transmission from
kingdom to kingdom "no sufficient provision was made by the
laws now in force.** Now I think it is not unfair reasoning
to say that this act extends to a class of offenders whose trans-
mission was admitted to be not incompatible with the just liberty
of the subject of England; but for whose transmission the legis-
lature could not say there was no provision; but for whose trans-
mission it was clear that there was not a sufficient provision,
though there was some provision. If you can find any class so
circumstanced, that is, exclusively liable by law to be so trans-
mitted, the meaning of the words, " felons and other malefactors, *
becomes fixed, and must necessarily refer to such class.

Now that class is expressly described in the Habeas Corpus Act,
because it declares the transmission of all persons to be illegal,
except only persons charged with capital crimes; for their appre-
hension and transmission there was a provision, the viandatum
regis, that is, the discretionary exercise of the prerogative. That
power had therefore been used in cases of treason, as in Lundy's
case; so in the case of Lord San char; Carliel, the principal in
the murder of Turner, committed in London by the procurement
of Lord Sanchar, was arrested in Scotland, whither he had fled,
by the order of King James I., and brought back to England,
where he was executed for the crime, as was Lord Sanchar, the
accessory before the fact; but such interference of the preroga-
tive might be granted or withheld at pleasure, could be applied
for only with great difficulty and expense, and therefore might
well be called an insufficient provision. No provision for such a
purpose can be sufficient, unless, instead of depending on the
caprice of men in power, it can be resorted to in the ordinary


course of law. You have therefore, my lords, to elect between
two constructions: one which makes an adequate provision for
carrying- the exception in the sixteenth section of the Habeas
Corpus Act into effect; and the other, a complete and radical
repeal of that sacred security for the freedom of Englishmen.
But, further, the spirit and the letter of the Habeas Corpus law
is that the party interested shall, without a moment's delay, be
bailed, if the offense be bailable; but if misdemeanors are within
this act, then an English subject, arrested under an Irish war-
rant, cannot be bailed within any part of the realm of England,
but must be carried forward, in the custody of Irish bailiffs, to
the seashore of his country, where he is to be embarked in
such vessel as they think proper; and if it should be the good
pleasure of his guardians to let him land alive in any part of
Ireland, then, and not till then, may he apply to an Irish justice
to admit him to bail in a foreign country, where he is a perfect
stranger and where none but an idiot could expect to find any
man disposed to make himself responsible for his appearance.
Can you, my lords, bring your minds easily to believe that such
a tissue of despotism and folly could have been the sober and
deliberate intention of the legislature ? but further, under the
acts of George 11. , even from one county to the next, the war-
rant by the first justice must be authenticated upon oath, be-
fore it can be indorsed by the second; but, in this act, between,
perhaps, the remotest regions of different kingdoms, no authen-
tication is required; and upon the indorsement of, perhaps, a
forged warrant, which the English justice has no means of in-
quiring into, a British subject is to be marched through Eng-
land and carried over sea to Ireland, there to learn in the

Online LibraryDavid J. (David Josiah) BrewerCrowned masterpieces of eloquence, representing the advance of civilization, as collected in The world's best orations, from the earliest period to the present time (Volume 4) → online text (page 27 of 39)