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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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 29 of 39)
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that may not be perpetrated under the construction now shame-
lessly put forward ? Let us suppose a case : By this construc-
tion a person in England, by procuring a misdemeanor to be
committed in Ireland, is constructively guilty in Ireland, and, of
course, triable in Ireland — let us suppose that Mr. Justice Bell
receives, or says he receives, information that the lady of an
English nobleman wrote a letter to an Irish chambermaid, coun-
seling her to steal a row of pins from an Irish peddler, and that
the said row of pins was, in consequence of such advice and
counsel, actually stolen, against the Irish peace of our lord the
King; suppose my Lord Ellenborough, knowing the signature,
and reverencing the virtue of his tried and valued colleague,
indorses this warrant; is it not clear as the sun that this Eng-
lish lady may, in the dead of night, be taken out of her bed
and surrendered to the mercy of two or three Irish bailiffs, if
the captain that employed them should happen to be engaged
in any cotemporary adventure nearer to his heart, without the
possibility of any legal authority interposing to save her, to be
matronized in a journey by land and a voyage by sea, by such
modest and respectable guardians, to be dealt with during the
journey as her companions might think proper — and to be dealt
with after by the- worshipful correspondent of the noble and
learned lord, Mr. Justice Bell, according to law ? I can, without


much difficulty, my lords, imagine that after a year or two had
been spent in accounts current, in drawing and redrawing for
'.iiuman flesh, between our worthy Bells and Medlicots on this
side of the water, and their noble or their ignoble correspond-
ents on the other, that they might meet to settle their accounts,
and adjust their balances; I can conceive that the items might
not be wholly destitute of curiosity: — Brother B., I take credit
lor the body of an English patriot. Brother E., I set off
against it that of an Irish judge. Brother B., I charge you in
account with three English bishops. Brother E., I set off Mrs.
M'Lean and two of her chickens; petticoat against petticoat.
Brother B., I have sent you the body of a most intractable dis-
turber, a fellow that has had the impudence to give a threshing
to Bonaparte himself; I have sent you Sir Sidney — Dearest
brother E. But I see my learned opponents smile — I see their
meaning. I may be told that I am putting imaginary and ludi-
crous, bui. not probable, and therefore, not supposable cases.
But I answer, that reasoning would be worthy only of a slave,
and disgraceful to a freeman. I answer, that the condition and
essence of rational freedom is, not that the subject probably will
not be abused, but that no man in the State shall be clothed with
any discretionary power, under the color and pretext of which
he can dare to abuse him. As to probability I answer that in
the mind of man there is no more instigating temptation to the
most remorseless oppression than the rancor and malice of irri-
tated pride and wounded vanity. To the argument of improba-
bility, I answer, the very fact, the very question in debate, nor to
such answer can I see the possibility of any reply, save that the
prosecutors are so heartily sick of the point of view into which
they have put themselves by their prosecution, that they are not
likely again to make a similar experiment. But when I see any
man fearless of power, because it possibly, or probably, may not
be exercised upon him, I am astonished at his fortitude; I am as-
tonished at the tranquil courage of any man who can quietly see
that a loaded cannon is brought to bear upon him, and that a
fool is sitting at its touch-hole with a lighted match in his hand.
And yet, my lords, upon a little reflection, what is it, after what
we have seen, that should surprise us, however it may shock us ?
What have the last ten years of the world been employed in, but
in destroying the landmarks of rights and duties and obliga-
tions; in substituting sounds in the place of sense; in substituting


a vile and canting methodism in the place of social duty and
practical honor; in suffering virtue to evaporate into phrase, and
morality into hypocrisy and affectation ? We talk of the viola-
tions of Hamburg or of Baden; we talk of the despotical and
remorseless barbarian who tramples on the common privileges of
the human being; who, in defiance of the most known and sa-
cred rights, issues the brutal mandate of usurped authority; who
brings his victim by force within the limits of a jurisdiction to
which he never owed obedience, and there butchers him for a
constructive offense. Does it not seem as if it were a contest
whether we should be more scurrilous in invective, or more atro-
cious in imitation ? Into what a condition must we be sinking,
when we have the front to select as the subjects of our obloquy,
those very crimes which we have flung behind us in the race of
profligate rivality!

My lords, the learned counsel for the prosecutors have as-
serted that this act of the forty-fourth of the King extends to all
offenses, no matter how long or previously to it they may have
been committed. The words are : * That from and after the first
day of August, 1804, if any person, etc., shall escape, etc.** Now,
certainly nothing could be more convenient for the purpose of the
prosecutors than to dismiss, as they have done, the words, ^'escape
and go into,'* altogether. If those words could have been saved
from the ostracism of the prosecutors, they must have designated
some act of the offenders, upon the happening or doing of which
the operation of the statute might commence; but the tempo-
rary bar of these words they waive by the equity of their own
construction, and thereby make it a retrospective law; and having
so construed it a manifestly ex post facto law, they tell you it is
no such thing, because it creates no new offense, and only makes
the offender amenable who was not so before. The law pro-
fesses to take effect only from and after the first of August, 1804.
Now for eighteen months before that day, it is clear that Mr.
Johnson could not be removed, by any power existing, from his
country and his dwellings; but at the moment the act took effect,
it is made to operate upon an alleged offense, committed, if at
all, confessedly eighteen months before. But another word as to
the assertion that it is not ex post facto, because it creates no
new crime, but only makes the party amenable. The force of
that argument is precisely this: If this act inflicted deportation
on the defendant by way of punishment after his guilt had been


established by conviction, that would, no doubt, be tyrannical,
because ex post facto; but here he suffers the deportation, while
the law is bound to suppose him perfectly innocent; and that
only by way of process to make him amenable, not by way of
punishment: and surely he cannot be so unreasonable as not to
feel the force of the distinction.

How naturally, too, we find similar outrages resort to similar
justifications ! Such exactly was the defense of the forcible entry
into Baden. Had that been a brutal violence, committed in per-
petration of the murder of the unfortunate victim, perhaps very
scrupulous moralists might find something in it to disapprove;
but his imperial Majesty was too delicately tender of the rights
of individuals and of nations to do any act so flagrant as that
would be, if done in that point of view; but his imperial Majesty
only introduced a clause of ne omittas into his warrant, whereby
the worshipful Bells and Medlicots that executed it were author-
ized to disregard any supposed fantastical privilege of nations
that gave sanctuary to traitors; and he did that from the purest
motives; from as disinterested a love of justice as that of the
present prosecutors, and not at all in the way of an ex post facto
law, but merely as process to bring him in and make him amen-
able to the competent and unquestionable jurisdiction of the Bois
de Boulogne. Such are the wretched sophistries to which men
are obliged to have recourse, when their passions have led them
to do what no thinking man can regard without horror; what
they themselves cannot look at without shame; and for which no
legitimate reasoning can suggest either justification or excuse.
Such are the principles of criminal justice, on which the first ex-
periment is made in Ireland; but I venture to pledge myself to
my fellow-subjects of Great Britain, that if the experiment suc-
ceed, they shall soon have the full benefit of that success. I
venture to promise them, they shall soon have their full measure
of this salutary system for making men ** amenable,*^ heaped and
running over into their bosoms.

There now remains, my lords, one, and only one topic of this
odious subject, to call for observation. The offense here appears
by the return and the affidavits to be a libel upon the Irish
government, published by construction in Westminster. Of the
constructive commission of a crime in one place by an agent,
who, perhaps, at the moment of the act, is in another hemi-
sphere, you have already enough; here, therefore, we will con-


sider it simply as an alleged libel upon the Irish government;
and whether, as such, it is a charge coming within the meaning
of the statute, and for which a common justice of peace in one
kingdom is empowered to grant a warrant for conveying the
person accused for trial into the other. Your lordships will ob-
serve that in the whole catalogue of crimes for which a justice
of peace may grant a warrant, there is not one that imposes
upon him the necessity of deciding upon any matter of law, in-
volving the smallest doubt or difficulty whatsoever. In treason,
the overt act; in felony, whether capital or not, the act; in
misdemeanors, the simple act; the dullest justice can understand
what is a breach of the peace, and can describe it in his warrant.
It is no more than the description of a fact which the informer
has seen and sworn to. But no libel comes within such a class,
for it is decided over and over that a libel is no breach of the
peace: and upon that ground it was that Mr. Wilkes in 1763
was allowed the privilege of parliament, which privilege does not
extend to any breach of the peace.

See, then, my lords, what a task is imposed upon a justice of
the peace, if he be to grant such a warrant upon such a charge;
he no doubt may easily comprehend the allegation of the in-
former as to the fact of writing the supposed libel. In decid
ing whether the facts sworn amounted to a publication or not, I
should have great apprehension of his fallibility, but if he got
over those difficulties, I should much fear for his competency to
decide what given facts would amount to a constructive publica-
tion. But even if he did solve that question, a point on which,
if I were a justice, I should acknowledge myself most profoundly
ignorant, he would then have to proceed to a labor in which I
believe no man could expect him to succeed; that is, how far the
paper sworn to was, in point of legal construction, libellous or
not. I trust this court will never be prevailed upon to sanction,
by its decision, a construction that would give to such a set of
men a power so incompatible with every privilege of liberty or
of law. To say it would give an irresistible power of destroying
the liberty of the press in Ireland, would, I am aware, be but a
silly argument, where such a thing has long ceased to exist; but
I have for that very reason a double interest now, as a subject
of the empire, in that noble guardian of liberty in the sister na-
tion. When my own lamp is broken, I have a double interest
in the preservation of my neighbor's. But if every man in Eng-


land, who dares to observe, no matter how honestly and justly,
upon the conduct of Irish ministers, is liable to be torn from his
family, and dragged hither by an Irish bailiff, for a constructive
libel against the Irish government, and upon the authority of an
Irish warrant, no man can be such a fool as not to see the con-
sequence. The inevitable consequence is this: that at this awful
crisis, when the weal, not of this empire only, but of the whole
civilized world, depends on the steady faith and the consolidated
efforts of these two countries; when Ireland is become the right
arm of England; when everything that draws the common in-
terest and affection closer gives the hope of life; when every-
thing that has even a tendency to relax that sentiment is a
symptom of death, — even at such a crisis may the rashness or
folly of those intrusted with its management so act as to destroy
its internal prosperity and repose, and lead it into the twofold,
fatal error of mistaking its natural enemies for its friends, and
its natural friends for its natural enemies; without any man be-
ing found so romantically daring as to give notice of the ap-
proaching destruction.

My lords, I suppose the learned counsel will do here what
they have done in the other court; they will assert that this libel
is not triable here; and they will argue that so false and hein-
ous a production surely ought to be triable somewhere. As to
the first position, I say the law is directly against them. From
a very early stage of the discussion, the gentlemen for the prose-
cution thought it wise for their clients to take a range into the
facts much more at large than they appeared on the return to
the writ, or even by the affidavits that have been made; and they
have done this to take the opportunity of aggravating the guilt
of the defendant, and at the same time of panegyrizing their
clients; they have therefore not argued upon the libel generally
as a libel, but they thought it prudent to appear perfectly ac-
quainted with the charges which it contains; they have therefore
assumed that it relates to the transactions of the twenty-third of
July, 1803, and that the guilt of the defendant was that he wrote
that letter in Ireland, which was afterwards published in Eng-
land, not by himself but by some other persons. Now, on these
facts nothing can be clearer than that he is triable here. If it
be a libel, and if he wrote it here, and it was published in Eng-
land, most manifestly there must have been a precedent pub-
lication, not merely by construction of law, in Ireland, but a


publication by actual fact; and for this plain reason, if you for
a moment suppose the libel in his possession (and if he did in
fact write it, I can scarcely conceive that it was not, unless he
wrote it perhaps by construction), there were no physical means
of transmitting it to England that would not amount to a publi-
cation here ; because, if he put it into the post office, or gave it to
a messenger to carry thither, that would be complete evidence of
publication against him; so would the mere possession of the
paper in the hands of the witness who appeared and produced
it, be perfect evidence, if not accounted for or contradicted, to
charge him with the publication; so that really I am surprised
how gentlemen could be betrayed into positions so utterly with-
out foundation. They would have done just as usefully for their
clients if they had admitted, what every man knows to be the
fact, that is, that they durst not bring the charge before an Irish
jury. The facts of that period were too well understood. The
Irish public might have looked at such a prosecution with the
most incredulous detestation; and if they had been so indiscreet
as to run the risk of coming before an Irish jury, instead of re-
futing the charges against them as a calumny, they would have
exposed themselves to the peril of establishing the accusation,
and of raising the character of the man whom they had the
heart to destroy because he had dared to censure them. Let not
the learned gentlemen, I pray, suppose me so ungracious as to
say that this publication, which has given so much pain to their
clients, is actually true; I cannot personally know it to be so,
nor do I say so, nor is this the place or the occasion to say that
it is so. I mean only to speak positively to the question before
you which is matter of law. But as the gentlemen themselves
thought it meet to pronounce a eulogy on their clients, I thought
it rather unseemly not to show that I attended to them; I have
most respectfully done so; I do not contradict any praise of their
virtues or their wisdom, and I only wish to add my very humble
commendation of their prudence and discretion in not bringing
the trial of the present libel before a jury of this country.

The learned counsel have not been contented with abusing
this libel as a production perfectly known to them; but they
have wandered into the regions of fancy. No doubt the other
judges, to whom those pathetic flights of forensic sensibility were
addressed, must have been strongly affected by them. The learned
gentlemen have supposed a variety of possible cases. They have


supposed cases of the foulest calumniatcrs aspersing the most
virtuous ministers. Whether such supposed cases have been sug-
gested by fancy or by fact, it is not for me to decide; but I beg
leave to say that it is as allowable to us as to them to put cases
of supposition: —

Cur ego si finger e pauca

Possum, invidear?

Let me, then, my lords, put an imaginary case of a different
kind. Let me suppose that a great personage, intrusted with
the safety of the citadel (meaning and wishing perhaps well, but
misled by those lacquered vermin that swarm in every great
hall), leaves it so loosely guarded that nothing but the gracious
interposition of Providence has saved it from the enemy. Let
me suppose another great personage going out of his natural de-
partment, and, under the supposed authority of high station, dis-
seminating such doctrines as tend to root up the foundation of
society; to destroy all confidence between man and man; and
to impress the great body of the people with a delusive and des-
perate opinion, that their religion could dissolve or condemn the
sacred obligations that bind them to their country, and that their
rulers have no reliance upon their faith, and are resolved to shut
the gates of mercy against them.

Suppose a good and virtuous man saw that such doctrines
must necessarily torture the nation into such madness and despair,
as to render them unfit for any system of mild or moderate gov-
ernment; that if, on one side, bigotry or folly shall inject their
veins with fire, such a fever must be kindled as can be allayed
only by keeping a stream of blood perpetually running from the
other, and that the horrors of martial law must become the dire-
ful but inevitable consequence. In such a case, let me ask you
what would be his indispensable duty ? It would be to avert
such dreadful dangers by exposing the conduct of such persons,
by holding up the folly of such bigoted and blind enthusiasm to
condign derision and contempt, and painfully would he feel that
on such an occasion he must dismiss all forms and ceremojiies,
and that to do his duty with effect he must do it without mercy.
He should also foresee that a person so acting, when he returned
to those to whom he was responsible, would endeavor to justify
himself by defaming the country which he had abused — for
calumny is the natural defense of the oppressor; he should, there-


fore, so reduce his personal credit to its just standard, that his
assertions might find no more belief than they deserved. Were
such a person to be looked on as a mere private individual,
charity and good-nature might suggest not a little in his excuse.
An inexperienced man, new to the world, and in the honeymoon
of preferment, would run no small risk of having his head turned
in Ireland. The people in our island are by nature penetrating,
sagacious, artful, and comic — natio co-mceda est. In no country
under heaven would an ass be more likely to be hoodwinked, by
having his ears drawn over his eyes, and acquire that fantastical
alacrity that makes dullness disposable to the purpose of humor-
ous malice, or interested imposture. In Ireland, a new great
man could get the freedom of a science as easily as of a corpora-
tion, and become a doctc^, by construction, of the whole Ency-
clopaedia, and great allowance might be made under such circum-
stances for indiscretions and mistakes, as long as they related
only to himself; but the moment they become public mischiefs,
they lose all pretensions to excuse — the very ambition of inca-
pacity is a crime not to be forgiven, and however painful it may
be to inflict, it must be remembered that mercy to the delinquent
would be treason to the public.

I can the more easily understand the painfulness of the con-
flict between charity and duty, because at this moment I am
laboring under it myself; and I feel it the more acutely, because
I am confident that the paroxysms of passion that have produced
these public discussions have been bitterly repented of. I think,
also, that I should not act fairly if I did not acquit my learned
opponents of all share whatsoever in this prosecution — they have
too much good sense to have advised it; on the contrary, I can
easily suppose Mr. Attorney-General sent for to give counsel and
comfort to his patient; and after hearing no very concise detail
of his griefs, his resentments, and his misgivings, methinks I hear
the answer that he gives, after a pause of sympathy and reflec-
tion : *^ No, sir, don't proceed in such a business ; you will only
expose yourself to scorn in one country, and to detestation in the
other. You know you durst not try him here, where the whole
kingdom would be his witness. If you should attempt to try him
there, where he can have no witness, you will have both coun-
tries upon your back. An English jury would never find him
guilty. You will only confirm the charge against yourself; and
be the victim of an impotent, abortive malice. If you should

4 — 20


have any ulterior project against him, you will defeat that also;
for those that might otherwise concur in the design will be
shocked and ashamed- of the violence and folly of such a tyran-
nical proceeding, and will make a merit of protecting him and
of leaving you in the lurch. What you say of your own feelings,
I can easily conceive. You think you have been much exposed
by those letters; but then remember, my dear sir, that a man
can claim the privilege of being made ridiculous or hateful by
no publications but his own.

Vindictive critics have their rights, as well as bad authors.
The thing is bad enough at best; but if you go on, you will
make it worse — it will be considered an attempt to degrade the
Irish bench and the Irish bar; you are not aware what a nest of
hornets you are disturbing. One inevitable consequence you
don't foresee; you will certainly create the very thing in Ireland
that you are so afraid of — a newspaper; think of that, and keep
yourself quiet; and, in the meantime, console yourself with re-
ilecting that no man is laughed at for a long time: every day
will procure some new ridicule that must supersede him. ^^ Such,
I am satisfied, was the ."^Dunsel given; but I have no apprehen-
sion for my client, becausv'* it was not taken. Even if it should
be his fate to be surrenderv'd to his keepers, to be torn from
his family; to have his obseqnies performed by torch light; to
be carried to a foreign land, and to a strange tribunal, where no
witness can attest his innocence; where no voice that he ever
heard can be raised in his defense; where he must stand mute,
not of his own malice, but the malice of his enemies — yes, even
so, I see nothing for him to fear. That all gracious Being that
shields the feeble from the oppressor will fill his heart with
hope and confidence and courage; his sufferings will be his ar-
mor, and his weakness will be his strength; he will find himself
in the hands of a brave, a just, and a generous nation; he will
find that the bright examples of her Russels and her Sidneys
have not been lost to her children; they will behold him with
sympathy and respect, and his persecutors with shame and ab-
horrence; they will feel, too, that what is th^n his situation may
to-morrow be their own — but their first tear will be shed for
him, and the second only for themselves; their hearts will melt

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 29 of 39)