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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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wag their tails to their masters and bark only at their enemies.
You are mistaken; they turn and devour those they are meant
to protect, and are harmless where they are intended to destroy.
I see gentlemen laugh; I see they are still very ignorant of
the nature of fear; it cannot last; neither while it does can it be
concealed. The feeble glimmering of a forced smile is a light
that makes the cheek look paler. Trust me, the times are too
humanized for such systems of government. Humanity will not



JOHN PHILPOT CURRAN -,37

execute them, but humanity will abhor them and those who wish
to rule by such means. This is not theory; the experiment has
been tried and proved. You hoped much, and, I doubt not,
meant well by those laws; but they have miserably failed you;
it is time to try milder methods. You have tried to force the
people; the rage of your penal laws was a storm that only drove
them in groups to shelter. Your convention law gave them that
organization which is justly an object of such alarm; and the
very proclamation seems to have given them arms. Before it is
too late, therefore, try the better force of reason, and conciliate
them by justice and humanity. The period of coercion in Ire-
land is gone, nor can it ever return until the people shall return
to the folly and to the natural weakness of disunion. Neither
let us talk of innovation; the progress of nature is no innova-
tion. The increase of people, with the growth of the mind, is
no innovation; it is no way alarming unless the growth of our
minds lag behind. If we think otherwise, and think it an in-
novation to depart from the folly of our infancy, we should come
here in our swaddling-clothes; we should not innovate upon the
dress, more than the understanding of the cradle. As to the sys-
tem of peace now proposed, you must take it on principles; they
are simply two — the abolition of religious disabilities and the
representation of the people. I am confident the effects would
be everything to be wished. The present alarming discontent
will vanish, the good will be separated from the evil-intentioned ;
the friends of mixed government in Ireland are many; every
sensible man must see that it gives all the enjoyment of rational
liberty if the people have their due place in the State, This
system would make us invincible against a foreign or domestic
enemy; it would make the empire strong at this important crisis;
it would restore us to liberty, industry, and peace, which I am
satisfied can never, by any other means, be restored. Instead,
therefore, of abusing the people, let us remember that there is
no physical strength but theirs, and conciliate them by justice
and reason. I am censured heavily for having acted for them in
the late prosecutions. I feel no shame at such a charge, except
that, at such a time as this, to defend the people should be held
out as an im|3Utation upon a king's counsel, when the people are
prosecuted by the State. I think every counsel is the property
of his fellow-subjects. If, indeed, because I wore his Majesty's
gown, I had decliB?d ray duty ct done it weakly or treachcr-



„^g JOHN PHILPOT CURRAN

ously; .if I had made that gown a mantle of hypocrisy, and be-
trayed my client or sacrificed him to any personal view, I might,
perhaps, have been thought wiser by those who have blamed
me; but I should have thought myself the basest villain upon
earth. The plan of peace, proposed by a reform, is the only
means that I and my friends can see left to save us. It is cer-
tainly a time for decision, and not for half measures, I agree
that unanimity is indispensable. The House seems pretty nearly
unanimous for force; I am sorry for it, for I bode the worst from
it. I will retire from a scene where I can do no good — where I
certainly would interrupt that unanimity. I cannot, however, go
without a parting entreaty that gentlemen will reflect on the
awful responsibility in which they stand to their country and to
their conscience, before they set the example to the people of
abandoning the Constitution and the law, and resorting to the
terrible expedient of force.



ON GOVERNMENT BY ATTACHMENT
(Delivered in the Irish Parliament, February 24th, 1785)

In 1784, Henry Reilly, Esq., Sheriff of the county of Dublin, summoned
his bailiwick to elect members to a national congress. For this he was at-
tached by the King's Bench on a Crown motion, and on the twenty-fourth
of February, 1785, the Right Hon. William Brownlow moved a vote of cen-
sure on the judges of that court for the attachment. Curran's speech on
the subject is still of interest in connection with contempt proceedings in
political cases.

I HOPE I may say a few words on this great subject without
disturbing the sleep of any right honorable member [the
Attorney-General John Fitzgibbon had fallen asleep on his
seat] and yet, perhaps, I ought rather to envy than blame the
tranquillity of the right honorable gentleman. I do not feel my-
self so happily tempered as to be lulled to repose by the storms
that shake the land. If they invite rest to any, that rest ought
not to be lavished on the guilty spirit. I never more strongly
felt the necessity of a perfect union with Britain, of standing or
falling with her in fortune and Constitution, than on this occa-
sion. She is the parent, the archetype of Irish liberty, which
she has preserved inviolate in its grand points, while among us
it has been violated and debased. I now call upon the house to



JOHN PHILPOT CURRAN



329



consider the trust reposed in them as the Great Inquest of the
people.

I respect judges highly. They ought to be respected, and
feel their dignity and freedom from reprehension while they do
what judges ought to do; but their stations should not screen
them when they pass the limit of their duty. Whether they
did or not is the question. This House is the judge of those
judges, and it would betray the people to tyranny and abdi-
cate their representation, if it does not act with probity and
firmness.

In their proceedings against Reilly, I think they have trans-
gressed the law, and made a precedent which, while it remains,
is subversive of the trial by jury and, of course, of liberty, I re-
gard the Constitution, I regard the judges, three of that court at
least, and for their sakes I shall endeavor to undo what they
have done.

The question is whether the court has really punished its own
officer for a real contempt, or whether it has abused that power,
for the illegal end of punishing a supposed offense against the
State, by a summary proceeding without a trial by jury.

The question is plain, whether as a point of Constitution or as
of law; but I shall first consider it in the former view. When
I feel the Constitution rocking over my head, my first anxiety is
to explore the foundation, to see if the great arches that support
the fabric have fallen in; but I find them firm on the solid and
massy principle of common law. The principle of legal liberty
is that offense and trial and punishment should be fixed; it is
sense, it is Magna Charta — a trial by jury as to fact, an appeal
to judges as to law.

I admit attachment an exception to the general rule as
founded in necessity for the support of courts, in administering
justice, by a summary control over their officers acting under
them; but the necessity that gave rise to it is also the limit.
If it were extended further, it would reach to all criminal cases
not capital; and in the room of a jury crimes would be created
by a judge, the party accused by him, found guilty by him, pun-
ished by the utter loss of his liberty and property for life, by
indefinite fine and imprisonment without remedy or appeal. If
he did not answer, he was guilty; even if he did, the court
might think, or say it thought, the answer evasive, and so convict
him for imputed prevarication



330 JOHN PHILPOT CURRAN

The power of attachment is wisely confined by the British
laws and practiced within that limit. The Crown lawyers have
not produced a single case where the King's Bench in England
have gone beyond it. They have ranged through the annals of
history; through every reign of folly and of blood; through the
proud domination of the Tudors, and the blockhead despotism
of the Stuarts, without finding a single case to support their
doctrine.

I consider the office of sheriff as judicial and ministerial.
Reilly's offense did not fall within any summary control, in
either capacity. It was not a judicial act, it was not colore officii.
An act colore officii must either be an act done by the actual ex-
ercise of an abused or of a usurped authority — neither of which
can it be called; for where the sheriff summons his county, he
does it by command, by authority, under pain of fine and im-
prisonment to those who disobey.

Was the appointment of a meeting any such active exertion
of authority ? Does any man suppose he was obliged to attend ?
that he would be fined if he refused to attend ? No. Did the
sheriff hold out any such colorable authority ? Clearly not. The
contrary: he explained the purpose of the intended meeting; he
stated at whose instance he appointed such meeting; and thereby
showed to every man in his senses that he was not affecting to
convene them by color of any compulsive authority.

If, then, there was any guilt in the sheriff's conduct, it was
not punishable by attachment. They who argue from its enor-
mity are guilty of a shabby attempt to mislead men from the
question, which is not whether he ought to be punished at all,
but whether he had been punished according to law.

You have heard no man adduce a single case to support their
assertion; but we have the uniform practice of the King's Bench
in England in our favor, the uniform practice, both there and
here, during these last years. Had they not meetings there and
here ? Did not the Crown receive petitions and addresses from
such assemblies ? Why, during that time, was there no motion
for an attachment in either kingdom ?

If an English attorney -general [had attempted such a daring
outrage on public liberty and law, he must have found some
friend to warn him not to debase the court, and make it appear
to all mankind as the odious engine of arbitrary power; not to
put it into so unnatural a situation as that of standing between



JOHN PHILPOT CURRAN



33^



the people and the Crown, or between the people and their rep-
resentatives.

I warn him not to bring public hatred on the Government,
by the adoption of an illegal prosecution. If he show himself
afraid of proceeding against offenders by the ordinary mode,
then offenders will be exalted by arbitrary persecution of them;
they will become suffering patriots, from being mere petty of-
fenders; their cries will become popular. Let him be warned
how he leads the court into an illegality, which the Commons
can never endure. No honest representative can sacrifice his
fame and his duty by voting in support of a proceeding subver-
sive of liberty, I should shrink from the reproach of the most
insignificant of my constituents if that constituent could say to
me: ^^When thou sawest the thief of the Constitution, thou con-
sentedst unto him. ^^

Such would be the caution suggested to an English attorney,
general; and, accordingly, we find no instance of his ever ventur-
ing on such a measure-
Without case, then, or precedent, or principle, what is the
support of such a conduct here ? — the distinction of a judge ?
And what is that distinction ? It is different in different men ;
it is different in the same man at different times; it is the folly
of a fool and the fear of a coward; it is the infamy of the
young and the dotage of age; in the best man it is very weak-
ness that human nature is subject to; and in the worst, it is
very vice. Will you, then, tell the people that you have chosen
this glorious distinction in the place of fixed laws, fixed offenses,
and fixed punishments, and in the place of that great barrier
between the prerogative and the people — trial by jury ?

But it is objected that the resolution is a censure on the
judges and a charge of corruption. I deny it and I appeal to
your own acts.

[Mr. Curran then called to the clerk, who read from the journals a vote of
censure passed upon Mr. Justice Robinson, for imposing a fine illegally in a
county, when on circuit, without view or evidence.]

Was your resolution founded on any corruption of that judge ?
No; you would, if so, have addressed to remove him. I called
for the resolution, therefore, not to charge him with guilt, — I am
persuaded he acted merely through error, — but to vindicate him,
to vindicate you, and to exhort you to be consistent. You



332



JOHN PHILPOT CURRAN



thought a much smaller violation of the law was deserving your
reprobation. Do not abandon yourselves and your country to
slavery, by suffering so much a grosser and more dangerous
transgression of the Constitution, to become a precedent forever.
In tenderness even to the judges, interpose. Their regret, which
I am sure they now feel, on reflection, cannot undo what they
have done; their hands cannot wash away what is written in
their records; but you may repair whatever has been injured, — if
your friend had unwillingly plunged a dagger into the breast of
a stranger, would you prove his innocence by letting the victim
bleed to death ? The Constitution has been wounded deeply, but,
I am persuaded, innocently; it is you only who, by neglecting to
interpose, can make the consequences fatal, and the wound ripen
into murder,

I would wish, I own, that the liberty of Ireland should be
supported by her own children; but if she be scorned and rejected
by them, when her all is at stake, I will implore the assistance
even of two strangers; I will call on the right honorable Secre-
tary to support the principles of the British Constitution. Let
him not render his administration odious to the people of Ire-
land by applying his influence in this House to the ruin of their
personal freedom. Let him not give a pretense to the enemies
of his friend in a sister country, to say that the son of the illus-
trious Chatham is disgracing the memory of his great father;
that the trophies of his Irish administration are the introduction
of an inquisition among us, and the extinction of a trial by jury;
let them not say that the pulse of the Constitution beats only in
the heart of the empire, but that it is dead in the extremities.

[Mr. Curraan concluded with declaring his hearty concurrence in the reso-
lution proposed.]

[The Attorney-General, [Fitzgibbon] ^in a speech of much personality, op-
posed Curran's motion.]

[Mr. Curran in reply:] —

I thank the right honorable gentleman for restoring me to
my good humor and for having, with great liberality and par-
liamentary decency, answered my arguments with personality.
Some expressions cannot heat me, when coming from per-
sons of a certain distinction. I shall not interrupt the right
honorable gentleman in the fifth repetition of his speech. I
shall prevent his arguments by telling him that he has not in one



JOHN PHILPOT CURRAN 233

instance alluded to Mr. Reilly. The right honorable gentleman
said I had declared the judges guilty, but I said no such thing.
I said, if any judge were to act in the manner I mentioned, it
would be an aggravation of his guilt. The right honorable gen-
tleman has said that the House of Commons had no right to in-
vestigate the conduct of judges; if so, I ask the learned sergeant
why he sits in that chair. I ask why the resolution has been
just read from the journals. The gentleman has called me a
babbler; I cannot think that was meant as a disgrace, because, in
another Parliament, before I had the honor of a seat in this
House, but when I was in the gallery, I heard a young lawyer
named Babbler. I do not recollect that there were sponsers at
the baptismal font; nor was there any occasion, as the infant had
promised and vowed so many things in his own name. Indeed,
I find it difficult to reply, for I am not accustomed to pronounce
panegyrics on myself; I do not know well how to do it; but
since I cannot tell you what I am, I shall tell you what I am
not: I am not a man whose respect in person and character de-
pends upon the importance of his office; I am not a young man
who thrusts himself into the foreground of a picture, which
ought to be occupied by a better figure; I am not a man who
replies with invective when sinking under the weight of argu-
ment; I am not a man who denied the necessity of a parlia-
mentary reform, at the time he proved the expediency of it, by
reviling his own constituents, the parish clerk, the sexton, and
the grave digger; and if there be any man who can apply what I
am not to himself, I leave him to think of it in the committee
and to contemplate it when he goes home.




BENJAMIN ROBBINS CURTIS

(1809- I 874)

\Tit most important question raised by the impeachment of
President Johnson, and, in fact, the only one which obviously
survives from that period, is of the extent to which a Presi-
dent of the United States has the right to condemn publicly the acts of
one of the co-ordinate departments of the Government. In defending
President Johnson, Judge Curtis denied the right of a Congress
holding itself aggrieved by a presidential criticism, to act as judge of its
own cause. It was probably this consideration more than any other
which prevented the President's conviction and removal.

Benjamin Robbins Curtis was born at Watertown, Massachusetts,
November 4th. 1809. He died at Newport, Rhode Island, September
15th, 1874. He became eminent as a lawyer and left a number of works
on American jurisprudence, among them a digest of the decisions of the
United States Supreme Court, of which from 185 1 to 1857 he was an
associate justice. He was a brother of George Ticknor Curtis, author
of 'History of the Constitution,' and other well-known works.

PRESIDENTIAL CRITICISMS OF CONGRESS— DEFENDING

ANDREW JOHNSON

(From the Speech of April 9th, 1868, in Behalf of the President at the

Impeachment Trial)

THE complaint is that the President made speeches against
Congress. The true statement here would be much more
restricted than that; for although in those speeches the
President used the word "Congress," undoubtedly he did not
mean the entire constitutional body organized under the Consti-
tution of the United States; he meant the dominant majority in
Congress. Everybody so understood it; everybody must so un-
derstand it. But the complaint is that he made speeches against
those who governed in Congress. Well, who are the grand jury
in this case? One of the parties spoken against. And who are
the tryers? The other party spoken against. One would think
there was some incongruity in this ; some reason for giving pause

334



BENJAMIN ROBBINS CURTIS 335

before taking any very great stride in that direction. The honor-
able House of Representatives sends its managers here to take
notice of what ? That the House of Representatives has erected
itself into a school of manners, selecting from its ranks those
gentlemen whom it deems most competent by precept and exam-
ple to teach decorum of speech; and they desire the judgment
of this body whether the President has not been guilty of inde-
corum, whether he has spoken properly, to use the phrase of the
honorable manager. Now, there used to be an old-fashioned no-
tion that although there might be a difference of taste about
oral speeches, and, no doubt, always has been and always will be
many such differences, there was one very important test in ref-
erence to them, and that is whether they are true or false; but
it seems that in this case that is no test at all. The honorable
manager, in opening the case, finding, I suppose, that it was nec-
essary, in some manner, to advert to that subject, has done it in
terms which I will read to you: —

*The words are not alleged to be either false or defamatory, be-
cause it is not within the power of any man, however high his offi-
cial position, in effect to slander the Congress of the United States,
in the ordinary sense of that word, so as to call on Congress to
answer as to the truth of the accusation.'^

Considering the nature of our Government, considering the
experience which we have gone through on this subject, that is
a pretty lofty claim. Why, if the Senate please, if you go back
to the time of the Plantagenets and seek for precedents there,
you will not find so lofty a claim as that. I beg leave to read
from two statutes, the first being 3 Edward I., cap. 34, and the
second 2 Richard II., cap. i. The statute, 3 Edward I., cap. 34,
after the preamble, enacts —

<< That from henceforth none be so hardy to tell or publish any
false news or tales, whereby discord or occasion of discord or slander
may grow between the King and his people, or the great men of the
realm; and he that doeth so shall be taken and kept in until he hath
brought him into court which was the first author of the tale.''

The statute 2 Richard II., cap. i, § 5, enacted with some altera-
tions the previous statute. It commenced thus: —

** Of devisors of false news and of horrible and false lies of prel-
ates, dukes, earls, barons, and other nobles and great men of the



236 BENJAMIN ROBBINS CURTIS

realm; and also of the chancellor, treasurer, clerk of the privy seal,
steward of the King's house, justices of the one bench or of the
other, and of other great officers of the realm. ^^

The great men of the realm in the time of Richard II. were
protected only against "horrible and false lies/* and when we
arrive in the course of our national experience during the war
with France and the administration of Mr. Adams to that at-
tempt to check, not free speech, but free writing, Senators will
find that, although it applied only to written libels, it contained
an express section that the truth might be given in evidence.
That was a law, as Senators know, making it penal by written
libels to excite the hatred or contempt of the people against
Congress, among other offenses; but the estimate of the elevation
of Congress, above the people was not so high but that it was
thought proper to allow a defense of the truth to be given in
evidence. I beg leave to read from this Sedition Act a part of
one section and make a reference to another to support the cor-
rectness of what I have said. It is found in Statutes at Large,
page 596: —

«That if any person shall write, print, utter, or publish, or shall
cause or procure to be written, printed, uttered, or published, or shall
knowingly and willingly assist or aid in writing, printing, uttering,
or publishing any false, scandalous, and malicious writing or writings
against the Government of the United States, or either house of the
Congress of the United States, or the President of the United States,
with intent to defame the said Government, or either house of the
said Congress, or the said President, or to bring them, or either or
any of them the hatred of the good people of the United States, or
to stir up sedition within the United States, or to excite any unlaw-
ful combinations therein,** etc.

Section three provides: —

«That if any person shall be prosecuted under this act for the
writing or publishing any libel aforesaid, it shall be lawful for the
defendant, upon the trial of the cause, to give in evidence in his de-
fense the truth of the matter contained in the publication charged as
a libel. And the jury who shall try the cause shall have a right to
determine the law and the fact, under the direction of the court, as
in other cases.*

In contrast with the views expressed here, I desire now to
read from the fourth volume of Mr. Madison's works, pages 542



BENJAMIN ROBBINS CURTIS ^^y^

and 547, passages which, in my judgment, are as masterly as
anything Mr. Madison ever wrote, upon the relations of the Con,
gress of the United States to the people of the United States, in
contrast with the relations of the Government of Great Britain
to the people of that island, and upon the necessity which the
nature of our Government lays us under to preserve freedom
of the press and freedom of speech : —

^^The essential difference between the British Government and thtj
American Constitution will place this subject in the clearest light.

<* In the British Government the danger of encroachments on the
rights of the people is understood to be confined to the Executive
Magistrate. The Representatives of the people in the Legislature are



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 32 of 39)