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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

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county of Kerry, or Galway, or Derry, that he had been torn
from his family, his friends, his business, to the annihilation of
his credit, the ruin of his affairs, the destruction of his health,
in consequence of a mistake, or a practical joke, or an inhuman
or remorseless project of vindictive malice; and that he is then
at liberty to return if he be able; that he may have a good
action at lav/ against the worthy and responsible bailiff that
abused him, if he be foolish enough to look for him, or unfortu-
nate enough to find him. Can you, my lords, be brought seri-
ously to believe that such a construction would not be the
foulest aspersion upon the wisdom and lustice of the legis-
lature ?



2gg JOHN PHILPOT CURRAN

I said, my lords, that an Englishman may be taken upon the
indorsement of a forged warrant. Let me not be supposed such
a simpleton as to think the danger of forgery makes a shade
of difference in the subject. I know too well that calendar of
saints, the Irish justices; I am too much in the habit of prose-
cuting and defending them every term and every commission,
not to be able to guess at what price a customer might have
real warrants by the dozen; and, without much sagacity, we
might calculate the average expense of their indorsement at the
other side of the water. But, further yet, the act provides that
the expense of such transmission shall be paid at the end of
the journey by the place where the crime has been committed
— but, who is to supply the expenses by the way ? What sort of
prosecutors do you think the more likely to advance those ex-
penses, an angry minister, or a vindictive individual ? I can
easily see that such a construction would give a most effectual
method of getting rid of a troublesome political opponent, or a
rival in trade, or a rival in love, or of quickening the unduti-
ful lingering of an ancestor that felt not the maturity of his
heir; but I cannot bring myself to believe that a sober legis-
lature, when the common rights of humanity seem to be beaten
into their last entrenchment, and to make their last stand, I
trust in God a successful one, in the British Empire, would choose
exactly that awful crisis for destroying the most vital principles
of common justice and liberty, or of showing to these nations
that their treasure and their blood were to be wasted in strug-
gling for the noble privilege of holding the right of freedom,
of habitation, and of country, at the courtesy of every little irri-
table officer of state, or our worshipful Rivets and Bells and
Medlicots and their trusty and well-beloved cousins and catch-
poles.

But, my lords, even if the prosecutor should succeed, which
for the honor and character of Ireland I trust he cannot, in
wringing from the bench an admission that all offenses whatso-
ever are within this act, he will have only commenced his hon-
orable cause ; he ' will only have arrived at the vestibule of
atrocity. He has now to show that Mr. Johnson is within the
description of a malefactor, making his escape into Ireland,
whereby his offense may remain unpunished, and liable to be
arrested under a warrant indorsed in that place whither or where
such person shall escape, go into, reside, or be. For this inquiry



JOHN PHILPOT CURRAN 289

you must refer to the twenty-third and twenty-fourth George II.
The first of these, twenty-third, cap. 11, recites the mischief — <Uhat
persons against whom warrants are granted escape into other
counties, and thereby avoid being punished. '> The enacting part
then gives the remedy : ^^ The justice for the place into which
such person shall have gone or escaped shall indorse the original
warrant, and the person accused shall thereunder be sent to the
justice who granted it, to be by him dealt with, etc.'^

If words can be plain, these words are so; they extend to
persons actually committing crimes within a jurisdiction, and
actually escaping into some other after warrant granted, and
thereby avoiding trial. In this act there were found two defects:
Firstly, it did not comprehend persons changing their abode before
warrant issued, and whose removing, as not being a direct flight
from pursuit, could scarcely be called an escape; secondly, it did
not give the second justice a power to bail. And here you see
how essential to justice it was deemed that the person arrested
should be bailed on the spot and the moment of arrest, if the
charge were bailable.

Accordingly, the twenty-fourth of George II., cap. 55, was
made. After reciting the former act and the class of offenders
thereby described, namely, actual offenders actually escaping, it
recites that " whereas such offenders may reside or be in some
other county before the warrant granted, and without escaping
or going out of the county after such warrant granted,*^ it then
enacts, ^*that the justice for such place where such person shall
escape, go into, reside, or be, shall indorse, etc., and may bail if
bailable, or transmit,'^ etc.

Now the construction of these two acts taken together is
manifestly this; it takes in every person, who, being in any juris-
diction and committing an offense therein, escaping after warrant,
or without escaping after warrant, going into some other juris-
diction, and who shall there reside, that is permanently abide, or
shall be, that is permanently, so as to be called a resident.

Now here it is admitted that Mr. Johnson was not within the
realm of England, since the beginning of 1802, more than a year
before the offense existed; and therefore you are gravely called
upon to say that he is the person who made his escape from a
place where he never was, and into a place which he had never
left. To let in this wise and humane instruction, see what you
are called upon to do: the statute makes such persons liable to
4 — 19



290 JOHN PHILPOT CURRAN

arrest if they shall have done certain things, to wit, if they shall
escape, go into, reside, or be; but if the fact of simply being, i. e.^
existing in another jurisdiction, is sufficient to make them so lia-
ble, it follows, of course, that the only two verbs that imply doing
anything, that is, escape or go into, must be regarded as super-
fluous; that is, that the legislature had no idea whatsoever to be
conveyed by them when they used them, and therefore are alto-
gether expunged and rejected.

Such, my lords, are the strange and unnatural monsters that
may be produced by the union of malignity and folly. I cannot
but own that I feel an indignant, and, perhaps, ill-natured satis-
faction in reflecting that my own country cannot monopolize the
derision and detestation that such a production must attract. It
was originally conceived by the wisdom of the East; it has made
its escape and come into Ireland under the sanction of the first
criminal judge of the empire, where, I trust in God, we shall
have only to feel shame or anger at the insolence of the visit,
without the melancholy aggravation of such an execrable guest
continuing to reside or to be among us. On the contrary, I will
not dismiss the cheering expectation from my heart that your
decision, my lords, will show the British nation that a country
having as just and as proud an idea of liberty as herself is not
an unworthy ally in the great contest for the rights of human-
ity; is no unworthy associate in resisting the progress of barbarity
and military despotism, and in defending against its enemies that
great system of British freedom in which we have now a com-
mon interest, and under the ruins of which, if it should be over-
thrown, we must be buried in a common destruction.

I am not ignorant, my lords, that this extraordinary construc-
tion has received the sanction of another court, nor of the sur-
prise and dismay with which it smote upon the general heart of
the bar. I am aware that I may have the mortification of being
told in another country of that unhappy decision, and I foresee
in what confusion I shall hang down my head when I am told
it. But I cherish, too, the consolatory hope that I shall be able
to tell them that I had an old and learned friend whom I would
put above all the sweepings of their hall, who was of a different
opinion, who had derived his ideas of civil liberty from the pur-
est fountains of Athens and of Rome, who had fed the youthful
vigor of his studious mind with the theoretic knowledge of their
wisest philosophers and statesmen, and who had refined the the-



JOHN PHILPOT CURRAN 201

ory into the quick and exquisite sensibility of moral instinct, by
contemplating the practice of their most illustrious examples; by
dwelling on the sweet-souled piety of Cimon; on the anticipated
Christianity of Socrates; on the gallant and pathetic patriotism
of Epaminondas; on that pure austerity of Fabricius, whom to
move from his integrity would have been more difficult than
to have pushed the sun from his course. I would add that if he
had seemed to hesitate, it was but for a moment; that his hesita-
tion was like the passing cloud that floats across the morning
sun and hides it from the view, and does so for a moment hide
it by involving the spectator without even approaching the face
of the luminary; and this soothing hope I draw from the dearest
and tenderest recollections of my life, from the remembrance of
those Attic nights, and those refections of the gods which we
have spent with those admired and respected and beloved com-
panions who have gone before us; — over whose ashes the most
precious tears of Ireland have been shed; yes, my good lord, I
see you do not forget them; I see their sacred forms passing in
sad review before your memory; I see your pained and softened
fancy recalling those happy meetings, when the innocent enjoy-
ment of social mirth expanded into the nobler warmth of social
virtue; and the horizon of the board became enlarged into the
horizon of man; when the swelling heart conceived and com-
municated the pure and generous purpose, — when my slenderer
and younger taper imbibed its borrowed light from the more
matured and redundant fountain of yours. Yes, my lord, we can
remember those nights without any other regret than that they
can never more return, for —

^^We spent them not in toys, or lust, or wine;
But search of deep philosophy,
Wit, eloquence, and poesy,
Arts which I lov'd; for they, my friend, were thine.*

But, my lords, to return to a subject from which to have thus
far departed, I think, may not be wholly without excuse. The
express object of the forty-fourth was to send persons from
places where they were not triable by law, back to the places
that had jurisdiction to try them. And in those very words does
Mr. Justice Blackstone observe on the thirteenth of the King,
that it was made to prevent impunity by escape, by giving a
power of *^ sending back *^ such oflfenders as had so escaped.



202 JOHN PHILPOT CURRAN

This topic of argument would now naturally claim its place in
the present discussion. I mention it now that it might not be
supposed that I meant to pretermit so important a consideration.
And I only mention it, because it will connect itself with a sub-
sequent head of this inquiry in a manner more forcibly applica-
ble to the object; when, I think I may venture to say, it will
appear to demonstration, that if the offense charged upon the
defendant be triable at all, it is triable in Ireland and no where
else; and of course that the prosecutors are acting in direct vio-
lation of the statute, when they seek to transport him from a
place where he can be tried into another country that can have
no possible jurisdiction over him.

Let us now, my lords, examine the next position contended
for by those learned prosecutors. Having labored to prove that
the act applies not merely to capital crimes, but to all offenses
whatsoever; having labored to show that an act for preventing
impunity by escape extends to cases, not only where there was
no escape, but where escape in fact was physically impossible,
they proceed to put forward boldly a doctrine which no lawyer,
I do not hesitate to say it, in Westminster Hall would have the
folly or the temerity to advance; that is, that the defendant may,
by construction of law, be guilty of the offense in Westminster,
though he should never have passed within its limits till he was
sent thither to be tried. With what a fatal and inexorable uni-
formity do the tempers and characters of men domineer over
their actions and conduct! How clearly must an Englishman, if
by chance there be any now listening to us, discern the motives
and principles that dictated the odious persecutions of 1794 re-
assuming their operations; forgetting that public spirit by which
they were frustrated; unappalled by fear, undeterred by shame,
and returning again to the charge; the same wild and impious
nonsense of constructive criminality, the same execrable applica-
tion of the ill-understood rules of a vulgar, clerk-like, and illiter-
ate equity, to the sound and plain and guarded maxims of the
criminal law of England, — the purest, the noblest, the chastest
system of distributive justice that was ever venerated by the
wise or perverted by the foolish, or that the children of men in
any age or climate of the world have ever yet beheld; the same
instruments, the same movements, the same artists, the same doc-
trines, the same doctors, the same servile and infuriate contempt
of humanity, and persecution of freedom; the same shadows of



JOHN PHILPOT CURRAN



293



the varying hour that extend or contract their length, as the
beam of a rising or sinking sun plays upon the gnomon of self-
interest! How demonstratively does the same appetite for mice
authenticate the identity of the transformed princess that had
once been a cat.

But it seems as if the whole order and arrangement of the
moral and the physical world had been contrived for the instruc-
tion of man, and to warn him that he is not immortal. In every
age, in every country, do we see the natural rise, advancement,
and decline of virtue and of science. So it has been in Greece,
in Rome; so it must be, I fear, the fate of England. In science,
the point of its maturity and manhood is the commencement of
its old age; the race of writers and thinkers and reasoners
passes away and gives place to a succession of men that can
neither write, nor think, nor reason. The Hales, the Holts, and
the Somers shed a transient light upon mankind, but are soon
extinct and disappear, and give place to a superficial and over-
weening generation of laborious and strenuous idlers, — of silly
scholiasts, of wrangling mooters, of prosing garrulists, who explore
their darkling ascent upon the steps of science, by the balustrade
of cases and manuscripts, who calculate their depth by their
darkness, and fancy they are profound because they feel they are
perplexed. When the race of the Palladios is extinct, you may
expect to see a clumsy hod-man collected beneath the shade of
his shoulders,

avTjp ijuesre fieyaffTS
E^o^o<s av&piDnojv xeifaXrjv xac eupea? wjiou^,

affecting to fling a builder's glance upon the temple, on the pro-
portion of its pillars; and to pass a critic's judgment on the doc-
trine that should be preached within them.

Let it not, my lords, be considered amiss, that I take this up
rather as an English than an Irish question. It is not merely
because we have no Habeas Corpus law in existence (the anti-
quarian may read of it, though we do not enjoy it) ; it is not
merely because my mind refuses to itself the delusion of imagi-
nary freedom, and shrinks from the meanness of affecting an
indignant haughtiness of spirit that belongs not to our condition,
that I am disposed to argue it as an English question; but it is
because I am aware that we have now a community of interest
and of destiny that we never had before — because I am aware



^_ . JOHN PHILPOT CURRAN

that, blended as we now are, the liberty of man must fall where
it is highest, or rise where it is lowest, till it find its common
level in the common empire — and because, also, I wish that
Englishmen may see that we are conscious that nothing but
mutual benevolence and sympathy can support the common in-
terest that should bind us against the external or the intestine
foe; and that we are willing, whenever the common interest is
attacked, to make an honest and animated resistance, as in a
common cause, and with as cordial and tender anxiety for their
safety as for our own.

Let me now briefly, because no subject can be shorter or
plainer, consider the principle of local jurisdictions, and construct-
ive crimes.

A man is bound to obedience, and punishable for disobedience
of laws: Firstly, because, by living within their jurisdiction, he
avails himself of their protection; and this is no more than the
reciprocality of protection and allegiance on a narrower scale;
and, secondly, because, by so living within their jurisdiction, he
has the means of knowing them, and cannot be excused because
of his ignorance of them. I should be glad to know, upon the
authority of what manuscript, of what pocket-case, the soundness
of these principles can be disputed. I should be glad to know
upon what known principle of English law, a Chinese or a Lap-
lander can be kidnaped into England and arraigned for a crime
which he committed under the pole, to the injury of a country
which he had never seen — in violation of a law which he had
never known, and to which he could not owe obedience — and,
perhaps, for an act, the nonperformance of which he might have
forfeited his liberty or his life to the laws of that country which
he was bound to know and was bound to obey. Very differently
did our ancestors think of that subject. They thought it essen-
tial to justice that the jurisdiction of criminal law should be
local and defined; that no man should be triable but there, where
he was accused of having actually committed the offense; where
the character of the prosecutor, where his own character was
known, as well as the characters of the witnesses produced
against him; and where he had the authority of legal process to
enforce the attendance of witnesses for his defense. They were
too simple to know anything of the equity of criminal law.
Poor Bracton or Fleta would have stared if you had asked them:
^^What, gentlemen, do you mean to say that such a crime as this



JOHN PHILPOT CURRAN



295



shall escape from punishment ?'* Their answer would have been,
no doubt, very simple and very foolish. They would have said:
**We know there are many actions that we think bad actions,
which yet are not punishable, because not triable by law; and
that are not triable, because of the local limits of criminal juris-
dictions.'^ And, my lords, to show with what a religious scrupu-
losity the locality of jurisdictions was observed, you have an
instance in the most odious of all offenses, treason only excepted
— I mean the crime of willful murder. By the common law, if a
man in one county procured a murder to be committed which
was afterwards actually committed in another, such procurer could
not be tried in either jurisdiction, because the crime was not
completed in either. This defect was remedied by the act of
Edward VI. which made the author of the crime amenable to
justice. But in what jurisdiction did it make him amenable ? Was
it there where the murder was actually perpetrated ? By no
means, but there only where he had been guilty of the procure-
ment, and where alone his accessorial offense was completed.
And here you have the authority of Parliament for this abstract
position, that where a man living in one jurisdiction does an act,
in consequence of which a crime is committed within another ju-
risdiction, he is by law triable only where his own personal act
of procurement was committed, and not there where the procured
or projected crime actually took effect. In answer to these known
authorities of common law, has any statute, has a single decision
or even dictum of a court, been adduced ? Or, in an age when
the pastry cooks and snuff-shops have been defrauded of their
natural right to these compositions that may be useful without
being read, has even a single manuscript been offered to show
the researches of these learned prosecutors, or to support their
cause? No, my lords; there has not.

I said, my lords, that this was a fruit from the same tree that
produced the stupid and wicked prosecutions of 1794: let me not
be supposed to say it is a mere repetition of that attempt, with-
out any additional aggravation. In 1794, the design, and odious
enough it was, was confined to the doctrine of constructive guilt
but it did not venture upon the atrocious outrage of a substi
tuted jurisdiction; the Englishman was tried on English ground
where he was known, where he could procure his witnesses
where he had lived, and where he was accused of a crime
whether actual or constructive, but the locality of the trial de



2q6 JOHN PHILPOT CURRAN

feated the infernal malice of those prosecutions. The speeches
of half the natural day, where every juryman had bis hour, were
the knell of sleep, but they were not the knell of death. The
project was exposed, and the destined victims were saved. A
piece so damned could not safely be produced again on the same
stage. *: was thought wise, therefore, to let some little time pass,
and then to let its author produce it on some distant provincial
theatre for his own benefit, and at his own expense and hazard.
To drag an English judge from his bench, or an English mem-
ber of parliament from the Senate, and in the open day, in the
city of London, to strap him to the roof of a mail coach, or pack
him up in a wagon, or hand him over to an Irish bailiff, with a
rope tied about his leg, to be goaded forward like an ox, on his
way to Ireland, to be there tried for a constructive misdemeanor,
would be an experiment, perhaps, not very safe to be attempted.
These Merlins, therefore, thought it prudent to change the scene
of their sorcery.

Modo RomcE, modo ponit Athenis !

The people of England might, perhaps, enter into the feelings of
such an exhibition with an officiousness of sympathy, not alto-
gether for the benefit of the contrivers —

IVec natos coram populo Medea trucidet —

and it was thought wise to try the second production before
spectators whose necks were pliant, and whose hearts were
broken; where every man who dared to refuse his worship to
the golden calf would have the furnace before his eyes and think
that it was at once useless and dangerous to speak, and discreet,
at least, if it were not honest, to be silent. I cannot deny that it
was prudent to try an experiment, that, if successful, must reduce
an Englishman to a state of slavery more abject and forlorn
than that of the helots of Sparta, or the negroes of your planta-
tions — for see, my lords, the extent of the construction now
broadly and directly contended for at your bar. The King's peace
in Ireland, it seems, is distinct from his peace in England, and
both are distinct from his peace in Scotland; and, of course, the
same act ma}' be a crime against each distinct peace, and sever-
ally and successively punishable in each country — so much more
inveterate is the criminality of a constructive than of an actual
offense, So that the same man for the same act against laws



JOHN PHILPOT CURE.AN 297

that he never heard of may be punished in Ireland, be then sent
to England by virtue of the warrant of Mr. Justice Bell, indorsed
by my Lord Ellenborough, and, after having his health, his hopes,
and his property destroyed for his constructive offenses against
his Majesty's peace in Ireland, and his Majesty's peace in Eng-
land, he may find that his Majesty's peace in the Orkneys has,
after all, a vested remainder in his carcass; and, if it be the case
of a libel, for the full time and term of fourteen years from the
day of his conviction before the Scottish jurisdiction, to be fully
completed and determined. Is there, my lords, can there be a
man who hears me, that does not feel that such a construction
of such a law would put every individual in society under the
despotical dominion, would reduce him to be the despicable chat-
tel of those most likely to abuse their power, the profligate of
the higher, and the abandoned of the lower orders; to the re-
morseless malice of a vindictive minister, to the servile instru-
mentality of a trading justice ? Can any man who hears me
conceive any possible case of abduction, of rape, or of murder,



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 28 of 39)