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T 
 
 ■- ^ '^- - J ■ -J 
 
 lUJiiM P-hlll ,l-'0'i' e'DRRfiN 
 
SPEECHES 
 
 JOHN PHILPOT CURRAN, 
 
 WHILE AT THE BAR. 
 
 EDITED BV 
 
 JAMES A. L. WHITTIER, 
 
 COUNSELOR AT LAW 
 
 CHICAGO 
 CALLAGHAN & COMPANY. 
 1872. 
 
Entered, according to Act of Congress, In the year 1873, by 
 
 CAUUAGHAN & COMPANT, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 YTI!;ii3V114y 
 
CONTENTS. 
 
 Page 
 Memoir, 1 
 
 __Sta±einAni.Jil-±lLa_C!aHCL nf Eo-jin «__Kiru^ilJan _ . 15- - 
 
 ERRATUM. 
 
 Memoir, p. 10, 1. 18, for Johnson read Robinson. 
 
 oiiaLCiiicim \JJL uuc »^iinc vjj. mio uxxuilh j^cidnAcip 
 
 Mr. Curran's Speech for the Defendants, 176 
 
 Statement of the case of Peter Pinnerty, Publisher of " The 
 
 Press," 304 
 
 Mr. Curran's Speech for the Defense, 311 
 
 Statement of the Case of Patrick Finney, 358 
 
 Mr. Curran's Speech for the Defendant, 363 
 
 Statement of the Case of Henry Sheares, 395 
 
 Mr. Curran's Speech for the Defense on the Demurrer to the 
 
 Indictment, 300 
 
 Statement of the Testimony in the Case of Henry Sheares, . 316 
 
 Mr. Curran's Summing-up for the Defense, 333 
 
, YTIi'SiHVIMti 
 
CONTENTS. 
 
 Page 
 
 Memoib, 1 
 
 Statement of the Case of Egan v. Kindillan, .... 15 
 
 Mr. Curran's Speech for the Defendant, . ... 15 
 
 Statement of the Case of A. H. Rowan, 26 
 
 Mr. Curran's Speech for the Defendant, 27 
 
 Mr. Curran's Speech on the Motion to set aside the Verdict in 
 
 the Case of A. H. Rowan, 88 
 
 Statement of the Case of the Drogheda Defenders, . . . 105 
 
 Mr. Curran's Speech for the Defendants, ... . 108 
 
 Statement of the Case of Doctor Drennan, 121 
 
 Mr. Curran's Speech for the Defendant, 125 
 
 Statement of the Case of the Northern Star, .... 142 
 
 Mr. Curran's Speech for the Defense, 147 
 
 Statement of the Case of the Rev. William Jackson, . . . 151 
 
 Mr. Curran's Speech for the Defendant, 154 
 
 Statement of the Case of the Dublin Defenders, .... 175 
 
 Mr. Curran's Speech for the Defendants, ... . 176 
 Statement of the case of Peter Finnerty, Publisher of " The 
 
 Press," 304 
 
 Mr. Curran's Speech for the Defense 211 
 
 Statement of the Case of Patrick Finney, 258 
 
 Mr. Curran's Speech for the Defendant, 262 
 
 Statement of the Case of Henry Sheares, 295 
 
 Mr. Curran's Speech for the Defense on the Demurrer to the 
 
 Indictment, 300 
 
 Statement of the Testimony in the Case of Henry Sheares, . 316 
 
 Mr. Curran's Summing-up for the Defense, 323 
 
CONTENTS. 
 
 Statement of the Case of Oliver Bond, . 
 Mr. Curran's Speecli for the Defendant, 
 Statement of the Case of Lady ;^amela Fitzgerald and her 
 
 Children, . . . . . 
 Mr. Curran's Speech' in Support of the Petition, . 
 Statement of the Case of Napper Tandy, 
 Mr. Curran's Speech for the Defendant, 
 Statement of the Case of Sir Henry Hayes, 
 Mr. Curran's Speech for the Prosecution, 
 Statement of the Case of Hevey i). Major Sirr, 
 Mr. Curran's Speech for the Plaintiff, . 
 Statement of the Case of Owen Kirwan, 
 Mr. Curran's Speech for the Defense, . 
 Statement of the Case of John Costly, . 
 Mr. Curran's Speech for the Prosecution, 
 Statement of the Case of Massy 11. Headfort, 
 Mr. Curran's Speech for the Plaintiff, 
 Statement of the Case of Judge Johnson, 
 Mr. Curran's first Speech for the Defendant, 
 Mr. Curran's second Speech for the Defendant, . 
 
 Page 
 854 
 355 
 
 384 
 385 
 403 
 404 
 417 
 420 
 451 
 451 
 475 
 477 
 503 
 503 
 515 
 517 
 544 
 547 
 551 
 
MEMOIR. 
 
 Born in the year 1750, his birth-day being the 24th of 
 July, his birth-place, Newmarket, of parents belonging to 
 the middle class of Irish land-holders, there was little in the 
 early youth of John Philpot Cueean either remarkable 
 or singular. A playful boy, easily made a dupe by reason 
 of his unthinking credulity, affording thus amusement to 
 his companions, his amiable qualities attracted for him 
 the attention and soon the regard of the parish clergyman, 
 through whose aid his education was rendered more 
 complete than that of other youth of his rank, so that, after 
 the usual preparatory studies , he was entered as a sizar of 
 Trinity College, Dublin, it being understood by all the 
 parties concerned, that he should enter on the ministry 
 of the Church in due season. 
 
 But having, on the occasion of excusing himself to the 
 governing body of the University for a flagrant violatio]i 
 of the college laws, evinced great readiness in presenting 
 the side of the case most favorable to himself, he was' led 
 to consider whether or not his interests would be ad- 
 vanced by pursuing the studies pertaining to the law, and 
 soon decided so to do. It must not be understood that 
 Curran was an inattentive student. Such was not the case. 
 While he was full of boyish energy, and by no means averse 
 to a participation in the sometimes rude divertisements of 
 his associates, he was of good standing in his classical 
 studies and of fair rank in others. "He studied", says his 
 son and biographer, "the classical writings of antiquity 
 •with great ardor, and with eminent success. Nor did his 
 enthusiastic admiration of them ever after subside. Amidst 
 the distractions of business and ambition he was all his 
 
 1 
 
2 MEMOIR. 
 
 life returning with fresh delight to their perusal ; and in 
 the last journey that he ever took, Horace and Virgil were 
 his travelling companions." 
 
 Curran, like many another eminent man, was fond of 
 attributing much of his success to the influence, the ex- 
 ample and the teachings of his mother. And it is plea- 
 sant to know that she lived long enough to be a witness 
 of his triumphs, and to share in the fruits of his labors. 
 She was never, however, fully reconciled to his choice of a 
 profession, and on one occasion, when congratulated upon 
 his success, replied — "Oh, yes, it was very fine, but it 
 breaks my heart to think what a noble preacher was lost 
 to the church when John disappointed us all, and insisted 
 on becoming a lawyer." And in her later years, when her 
 friends, to gratify and console her, used to remind her that 
 she had lived to see her favorite child one of the judges 
 of the land, she would still reply — "Don't speak to me of 
 judges. John was fit for anything ; and had he but followed 
 our advice, it might hereafter be written upon my tomb 
 that I had died the mother of a bishop." 
 
 His collegiate studies being ended, in pursuance of his 
 design to fit himself for legal practice, Curran, in the spring 
 of 1773, repaired to London, where he became a student of 
 law in the Middle Temple. Many letters written by him 
 at this interesting period have been preserved, and one 
 we copy as being very characteristic. It was addressed to 
 one of his earliest friends, then a resident of his native 
 town of Newmarket. 
 
 "London, 31 chandos street, July 10, 1773. 
 
 "I would have taken a last farewell of my dear Henry 
 from Dublin, if I had not wi-itten so shortly before I left 
 it; and indeed I was not sorry for being exempt from a 
 task for which a thousand causes conspired to make me 
 at that juncture unqualified. It was not without regret 
 that I could leave a country, which my birth, education, 
 
MBMOm, 3 
 
 and connections, had rendered dear to me, and venture 
 alone, almost a child of fortune, into a land of strangers. 
 In such moments of despondence, when fancy plays the 
 self tormentor, she commonly acquits herself to a miracle, 
 and will not fail to collect in a single group the most hide- 
 ous forms of anticipated misfortune. I considered myself, 
 l)esides, as resigning for ever the little indulgencies that 
 youth and inexperience may claim for their errors, and 
 passing to a period of life in which the best can scarce 
 escape the rigid severity of censure; nor could the little 
 trivial vanity of taking the reins of my own conduct alle- 
 viate the pain of so dear-bought a transition from depen- 
 dence to liberty. Full of these reflections as I passed the 
 gate, I could not but turn and take a last lingering look of 
 poor Alma Mater; it was the scene of many a boyishfoUy, 
 and of many an happy hour. I should have felt more con- 
 fusion at part of the retrospect, had I not been relieved 
 by a recollection of the valuable friendships I had formed 
 there. Though I am far from thinking such a circumstance 
 can justify a passed misconduct, yet I cannot call that 
 time totally a blank in which one has acquired the greatest 
 blessing of humanity. It was with a melancholy kind of 
 exultation I counted over the number of those I loved 
 there, while my heart gave a sigh to each name in the cata- 
 logue ; nay, even the feUows, whom I never loved, I for- 
 gave at that moment; the parting tear blotted out every 
 injury, and I gave them as hearty a benediction as if they 
 had deserved it; as for my general acquaintance (for I 
 could not but go the round) , I packed their respective 
 little sighs into one great, sigh as I turned round on my 
 heel. My old friend and handmaid Betty, perceiving me in 
 motion, got her hip under the strong-box, with my seven 
 shirts, which she had rested against the rails during the 
 delay, and screwed up her face into a most rueful carica- 
 ture, that might provoke a laugh at another time ; while 
 
4 MEMOIE, 
 
 her young son Denny, grasping his waistband in one hand 
 and a basket of sea-provisions in the other, took the lead 
 in the procession, and so we journeyed on to George's- 
 Quay, where the ship was just ready to sail. "When I en- 
 tered I found my fellow passengers seated round a large 
 table in the cabin; we were fourteen in number. A young 
 Highland lord had taken the head of the table and the 
 conversation, and with a modesty peculiar to himself, gave 
 a history of his travels, and his intimate connections with 
 the princes of the empire. An old, debauched of&cer was 
 complaining of the gout, while a woman who sat next to 
 him, (good Heaven! what a tongue), gave a long detail of 
 what her father suffered from that disorder. To do them 
 all justice, they exerted themselves most zealously for the 
 common entertainment. As for my part, I had nothing to 
 say; nor, if I had, was any one at leisure to listen to me; 
 so I took possession of what the captain called a bed, 
 wondering, with Partridge, 'how they could play so many 
 different tunes at the same time without putting each Other 
 out!' I was expecting that the sea-sickness would soon give 
 those restless mouths different employment, but in that 
 I was disappointed; the sea was so calm that one only was 
 sick during the passage, and it was not my good fortune 
 that the lot should fall on that devil who never ceased 
 chattering. There was no cure but patience ; accordingly 
 I never stii'red from my tabernacle (unless to visit my 
 basket) till we arrived at Park-gate. There, after the usual 
 pillage at the custom-house, I laid my box down on the 
 beach, seated myself upon it, and, casting my eyes westward 
 over the Welsh mountains towards Ireland, I began to 
 reflect on the impossibility of getting back without the 
 precarious assistance of others. "Poor Jack" ! thought I, 
 "thou wast never till now so far from home but thou 
 mightest return on thine own legs. Here now must thou 
 remain, for where here canst thou expect the assistance 
 
MEMOIR. 5 
 
 of a friend?" Whimsical as the idea was, it had power to 
 affect me ; until, at length, I was awaked from this reverie 
 by a figure which- approached me with the utmost affabi- 
 lity; methought his looks seemed to say, 'why is thy spirit 
 troubled?' He pressed me to go into his house, and to 'eat 
 of his bread' and to 'drink of his drink! ' There was so much 
 good-natured solicitude in the invitation 'twas irresistible. 
 I rose, therefore, and followed him, ashamed of my un- 
 charitable despondence. "Surely", thought I, "there is 
 still humanity left amongst us", as I raised my eyes to the 
 golden letters over his door, that offered entertainment and 
 repose to the wearied traveller. Here I resolved to stay 
 for the night, and agreed for a place i in his coach next 
 morning to Chester; but finding my loquacious fellow-pas- 
 senger had agreed for one in the same vehicle, I retracted 
 my bargain, and agreed for my box only. I perceived, 
 however, when I arose next morning, that my box was not 
 sent, though the coach was gone. I was thinking how 
 I should remedy this unlucky disappointment, when my 
 friendly host told me that he could furnish me with a 
 chaise! Confusion light upon him! what a stroke was this! 
 It was not the few paltry shillings that vexed me, but to 
 have my philanthropy till that moment running cheerily 
 through my veins, and to have the current turned back sud- 
 denly by the detection of his knavery. Verily, Yorick, even 
 thy gentle spirit, so meekly accustomed to bear and for- 
 bear, would have been roused on such an occasion. I paid 
 hastily for my entertainment, and shaking the dust from 
 my feet at his gate, 1 marched with my box on my shoul- 
 der to a waggoner's at the other end of the town, where I 
 entered it for London, and sallied forth toward Chester on 
 foot. I was so nettled at being the dupe of my own cre- 
 dulity, that I was almost tempted to pass an excommuni- 
 cation on all mankind, and resolved never more to trust 
 my own skill in physiognomy. Wrapt up in my speculations, 
 
6 MBMOIK. 
 
 I never perceived at what a rate I was striding away, 
 till I found myself in the suburbs of Chester quite out of 
 breath, and completely covered with dust and dirt. From 
 Chester I set out that evening in the stage: I slept about 
 four hours the next day at Coventry, and the following 
 evening at five o'clock, was in view of near a hundred and 
 twenty spires, that are scattered from one side of the hori- 
 zon to the other, and seem almost bewildered in the mist 
 thatperpetually covers this prodigious capital. 'T would be 
 impossible for description to give any idea of the various 
 objects that fill a stranger, on his first arrival, with sur- 
 prise and astonishment. The magnificence of the churches, 
 hospitals, and other public buildings which everywhere 
 present themselves, would alone be ample subject of ad- 
 miration to a spectator, though he were not distracted by 
 the gaudy display of wealth and dissipation continually 
 shifting before his eyes in the most extravagant forms of 
 pride and ostentation, or by a hurry of business that might 
 make you think this the source from which life and motion 
 are conveyed to the world beside. There are many places 
 here not unworthy of particular inspection, but as my ill- 
 ness prevented me from seeing them on my first arrival, 
 I shall suspend my curiosity till some future time, as I am 
 determined to apply to reading this vacation with the 
 utmost diligence, in order to attend the courts next winter 
 with more advantage. If I should happen to visit Ireland 
 next summer, I shall spend a week before I go in seeing 
 the curiosities here, (the king, and queen, and the lions); 
 and, if I continue in my present mood, you will see a 
 strange alteration in your poor friend. That cursed fever 
 brought me down so much, and my spirits are so reduced 
 that, faith! I don't remember to have laughed these six 
 weeks. Indeed, I never thought solitude could lean so 
 heavily on me as I find it does : I rise, most commonly, in 
 the morning between five and six, and read as much as my 
 
MEMOIE. 7 
 
 eyes will permit me till dinner time; I then go out and 
 dine, and from that till bed-time I mope about my lodg- 
 ings and the park. For Heaven's sake send me some 
 news or other (for, surely, Newmarket cannot be barren in 
 such things) that will teach me once more to laugh. I 
 never received a single line from anyone since I came here. 
 Tell me if you know anything about Keller: I wrote twice 
 to that gentleman, Avithout being favored with any answer. 
 You will give my best respects to Mrs. Aldworth and her 
 family; to Doctor Creagh's: and don't forget my good 
 friends Peter and Will Oonnel. Yours sincerely 
 
 J. P. C." 
 
 "P. S. I will cover this blank edge with entreating you 
 to write closer than you commonly' do when you sit down 
 to answer this, and don't make me pay ten pence for a 
 half-pennyworth of white paper." 
 
 His course of study and manner of amusing himself in 
 London, he thus describes : — "I have made some additions 
 to my wardrobe, and purchased a fiddle, which I had till 
 then denied myself. Do not think however from my men- 
 tioning these indulgences, that I have diminished my hours 
 of reading. All I have done by the change, is, employing 
 the time that must otherwise be vacant, in amusement in- 
 stead of solitude. I still continue to read ten hours every 
 day — seven at law, and three at history and the general 
 principles of politics; and that I may have time enough I 
 rise at half-past four. I have contrived a machine after 
 the manner of an hour-glass, which perhaps you may be 
 curious to know, which wakens me regularly at that hour. 
 Exactly over my head I have suspended two vessels of 
 tin, one above the other. When I go to bed, which is al- 
 ways at ten, I pour a bottle of water into the upper vessel, 
 in the bottom of which is a hole of such a size as to let 
 the water pass through so as to make the inferior reservoir 
 overflow in six hours and a half. I have had no small 
 
8 MBMOIE. 
 
 trouble in proportioning these vessels ; and I was still more 
 puzzled for a while, how to confine my head so as to re- 
 ceive the drop, but I have at length succeeded." 
 
 In addition to these labors, productive in due season of 
 most satisfactory results, he was a regular attendant on 
 the exercises of the debating clubs which the students of 
 law formed among themselves, and his experience as an 
 amateur debater is similar to that of most other young 
 orators — great diffidence at first, overcome by a single 
 effort, and subsequent facility in public speaking. 
 
 In some of the published sketches of Mr. Curran's life 
 it has been stated, that when at the Temple, and after- 
 wards while struggling into notice at the bar, he derived 
 part of his subsistence from contributions to literary works ; 
 but for this there is no foundation. During the first year 
 of his residence in London his means were supplied partly 
 by his relatives in Ireland, and partly by some of his more 
 affluent companions, who considered his talents a suffi- 
 cient security for their advances. 
 
 At Michaelmas term, 1775, Curran was called to the 
 Irish bar, and became one of a remarkable coterie of coun- 
 sellors, who brought to their daily business a degree of en- 
 thusiasm, and did their daily work with a freedom from 
 considerations of custom, precedent Or formaUty, very con- 
 genial to his nature. The latitude of ornament and di- 
 gression, once so usual at that bar, had never been kno^vn, 
 and would hardly have been tolerated in any other coun- 
 try. Yet, as has been remarked, all this was listened to 
 in Ireland with favor and admiration, though the influence 
 of impassioned oratory and fervid appeals to the feelings 
 or the fancy had little effect upon the decisions of the 
 bench. "The advocate might have excited the smiles or 
 tears of his auditors, but no legal concessions followed. 
 The judges who showed the most indulgence and sensi- 
 bility to these episodes of fancy, were ever the most 
 
MEMOIE, 9 
 
 conscientious in preserving the sacred stability of law. Into 
 the counsel's mirth or tenderness, no matter how digres- 
 sive, they entered for the moment, more pleased than 
 otherwise with irregularities that gratified their taste and 
 relieved their labor; but with them the triumph of elo- 
 quence was evanescent, — the oration over, they resumed 
 their gravity and firmness, and proved by their ultimate 
 decision that if they relaxed for an instant it was from 
 urbanity, and not from any oblivion of the paramount 
 duties of their station." 
 
 In some instances, it is true, where the case on trial had 
 a political aspect, the judges forgot to be impartial, and 
 allowed their prejudices to lead them into displays of 
 feeling towards counsel, not alway screditable to them- 
 selves or productive of satisfactory results. This was es- 
 pecially true in the early part of Curran's career, but he 
 made himself respected and feared ere long, and was freed 
 from unpleasantnesses of this kind. 
 
 It is related of him that, in one of his first cases, argued 
 before a certain Judge Robinson, who had won an unen- 
 viable notoriety as an anonymous pamphleteer, he said, 
 "That he had never met the law as laid down by his lord- 
 ship in any book in Ms library." — "That may be, sir," 
 said the Judge contemptuously, "but I suspect that your 
 library is very small." The young barrister, roused by this 
 sne§r at his circumstances, replied, that true it was his 
 library might be small, but he thanked Heaven that among 
 his books there were none of the "wretched publications 
 of the frantic pamphleteers of the day. I find it more in- 
 structive, my Lord, to study good works than to compose 
 bad ones ; my books may be few, but the title pages give 
 me the writers' names; my shelf is not disgraced by any of 
 such rank absurdity, that their very authors are ashamed 
 to own them." He was here interrupted by the Judge, 
 who said, "Sir, you are forgetting the respect which you 
 
10 MEMOIR. 
 
 owe to the dignity of the judicial character." "Dignity!" 
 exclaimed Curran ; "my Lord, upon that point I shall cite 
 you a case from a book of some authority, with which you 
 are, perhaps, not unacquainted. A poor Scotchman,* upon 
 his arrival in London, thinking himself insulted by a stran- 
 ger, and imagining that he was the stronger man, resolved 
 to resent the affront, and, taking off his coat, delivered it 
 to a bystander to hold; but, having lost the battle, he 
 turned to resume his garment, when he discovered that he 
 had unfortunately lost that also ; that the trustee of his 
 habiliments had decamped during the affray. So, my Lord, 
 when the person who is invested with the dignity of the 
 judgment-seat lays it aside for a moment to enter into a 
 disgraceful personal contest, it is in vain, whenhe is worsted 
 in the encounter, that he seeks to resume it — ^itis in vain 
 that he endeavors to shelter himself behind an authority 
 which he has abandoned." 
 
 Judge Johnson. "If you say another word, sir, I'll 
 commit you." 
 
 Curran. "If your Lordship should do so, we shall, both 
 of us, have the consolation of reflecting that I am not the 
 worst thing your Lordship has committed." 
 
 The Judge did not commit him ; but he was understood 
 to have solicited the bench to interfere, and make an 
 example of the advocate, by depriving him of his gown, 
 and to have received so little encouragement, that he 
 thought it prudent to proceed no farther in the affair.' 
 
 Curran had probably the usual early experience of 
 lawyers getting into practice, but within five years had 
 an opportunity at once to show his mettle and rise into 
 great popularity by his speech in the case of Kcale v. Bi- 
 nesuile, never fully reported, in which the plaintiff, a poor 
 parish priest, brought an action against a wealthy noble- 
 
 • The Sootcliman alluded to is Strap, in Smollett's Eoderiok 
 Eandom. 
 
MBMOm. 11 
 
 man, to recover damages for a peculiarly aggravated as- 
 sault committed by the defendaut. On the one side was 
 justice represented by a poor man, and on the other pride 
 of place, great wealth, high social position, and unbounded 
 influence. Curran's speech was equal to the occasion, and 
 he was successful in winning a verdict, and of establishing 
 liimself as an advocate of remarkable power, and in gaining 
 the affections of the people, so that popular applause he 
 ever after had to his heart's content. And the fact that he 
 was obliged to fight a duel with one of the relatives of the 
 defendant, on account of language he had used during the 
 trial, and that he acquitted himself bravely, did not lessen 
 either his reputation or popularity. 
 
 The celerity of his ascent to distinction in his profession, 
 and in the public estimation, may be inferred from his 
 entrance into the Irish Parliament within seven years from 
 his call to the bar, and his receiving a silk gown about the 
 same time. He entered upon the performance of his legis- 
 lative duties at a period now historical; when his country 
 was full of disturbances and revolts; the revolution of 1782 
 scarcely quelled; the government not in unison Avith the 
 people; the people distrusting and disobeying the govern- 
 ment. He early identified himself with the reform or liberal 
 party, and became almost at once a leader of it. While 
 his parliamentary efforts do not equal those at the bar, 
 they are vigorous and effective, and had weight at all times. 
 
 In 1786, when in full practice at the bar, he spoke of 
 himself as follows, in a familiar letter: 
 
 "Patterson, Chief- Justice of the Common Pleas, has been 
 given over many days, but still holds out. My good friend 
 Carleton succeeds him. Had he got this promotion some 
 time ago, it might have been of use to me, for I know he 
 has a friendship for me; but at present his partiality can 
 add little to whatever advantage I can derive from his 
 leaving about four thousand a year at the bar. 
 
1 2 MEMOIE. 
 
 "I understand they have been puffing me off to you from 
 this (Dublin). I have been, indeed, very much employed 
 this term, and I find I have a merit imputed to me of 
 changing a determination which the Chancellor had form- 
 ed against Burroughs a few days ago. He has really been 
 uncommonly kind and polite to me. This, I believe, is the 
 first time I ever became my own panegyrist, therefore excuse 
 it: I should scarcely mention it for any vanity of mine, 
 if it were not of some little value to others; tot it up there- 
 fore on the table of pence, not on the scale of vain glory." 
 
 He was now able to purchase land near his native town 
 of Newmarket, and erected thereon a residence suited to 
 his fortunes, where he exercised a generous hospitality. 
 "It may not be a dignified circumstance in his history," 
 says his biographer, "yet it must be mentioned, that his 
 arrival at Newmarket was always considered there as a 
 most important event. Gibbon somewhere observes, that 
 one of the liveliest pleasures which the pride of man can 
 enjoy, is to reappear in a more splendid condition among 
 those who had known him in his obscurity. If Mr. Currau 
 had been proud, he might have enjoyed this pleasure to 
 the full. Upon the occasion of every return to the scene 
 of his childhood, visits and congratulations upon his in- 
 creasing fame poured in upon 'the counselloi?' from every 
 side. 'His visitors' (according to his own description,) 
 'were of each sex and of every rank, and their greetings 
 were of as many kinds. Some were delivered in English, 
 some in Irish, and some in a language that was a sort of 
 compromise between the two — some were communicated 
 verbally — some by letter or by deputy, the absentees 
 being just at that moment 'in trouble', which generally 
 meant, having been lately committed for some, 'uninten- 
 tional' misdemeanor, from the consequences of which who 
 could extricate them so successfully as 'the counsellor?' 
 —some came in prose, — some in all the pomp of verse; 
 
MEMOIB. 13 
 
 for Mr. O'Connor, the roving bard (of whom Mr. Curran 
 used to say, that if his imagination could have carried him 
 as far as his legs did, he would have been the most aston- 
 ishing poet of the age) was never absent; at whatever stage 
 of their poetical circuit he and his itinerant muse might 
 be, the moment certain intelligence reached them that the 
 master of the Priory had arrived, they instantly took a 
 short cut across the country, and laid their periodical 
 offerings at the feet of him whose high fortune they had 
 of course been the first to predict! 
 
 "All these petty honors gratified his heart, if not his 
 pride, and he never fastidiously rejected them. Those who 
 came from the mere ambition of a personal interview he 
 sent away glorying in their reception, and delighted with 
 his condescension and urbanity ; to those who seemed in- 
 clined 'to carry away anything rather than an appetite', he 
 gave a dinner. The village disturber of the peace had once 
 more the promise that his rescue should be effected at the 
 ensuing assizes, while the needy laureate seldom failed to 
 receive the 'croivn', which he had 'long preferred to the 
 freshest bays'." 
 
 In the prefatory notes to the speeches which follow, 
 will be found such allusions to his professional career as 
 are necessary for a good understanding of his position and 
 his achievements, and the completion of this memoir does 
 not require further allusion to this part of his life. These 
 speeches commend themselves to the reader's attention, 
 by their clearness, vivacity, wealth of language and illustra- 
 tion, the spirit of ardent patriotism, evinced in them, 
 and especially to the legal reader by reason of the un- 
 shrinking devotion to the interests of his clients which is 
 always manifest; — the more honorable too in memory of 
 the fact that so many of his speeches were in defence of 
 political prisoners, and virtual arraignments of the existing 
 government, the dispenser aUke of patronage and power. 
 
14 MEMOIR. 
 
 In the year 1806, on the death of Pitt, Fox and the 
 Whigs assumed the control of the English government, and 
 Curran, who deserved much of the new Administration, and 
 in fact had for seventeen years been promised one of the 
 best places in its gift, was given the Mastership of the 
 Rolls for Ireland, a position for which he was by no means 
 fitted. He would have preferred the Attorney-Generalship, 
 but it was given to another. For eight years he performed 
 the duties of his office feeling daily an increasing dislike 
 to them, and his judgments are none of them remarkable. 
 His was not what may be termed a judicial mind. He 
 needed the incentive of the advocate, the ardor of the 
 orator, to bring out his noblest qualities, and his decisions 
 are not remembered, nor his judgeship often alluded to. 
 
 He resigned this official position in 1814, on account of 
 impaired health, and the short remainder of his Ufe was 
 spent in London, Paris and Dublin, but he rarely visited 
 the latter place, and his love of country increased by ab- 
 sence. He bitterly felt the injustice that was done her 
 by the government, and one of his latest desires was, to be 
 buried in her soil. Stricken by paralysis, in the summer of 
 1817, receiving but little relief from a journey to Italy, he 
 died in London on the 14th of October in the same year. 
 
 No one among the many who deserve well of Ireland for 
 the love they bore her and the good deeds they did in 
 defence of her honor, has greater claims than CuiTan, and 
 in the warm hearts of her generous people he is remem- 
 bered and will be. 
 
 And when, in due season, her history is impartially 
 written, his labors will be recognised as those of an ardent 
 patriot, a great advocate, and a whole souled Irishman. 
 
EG-AlSr V. KINDILLAN. 
 
 Mr. Chables Phillips, from whose "Recollections of Cueean'' 
 this speech is taken, gives the following account of the case in 
 which it was made. The date is not given. 
 
 "The case of "Egan against Kindillan" for seduction, was 
 tried before Lord Avonmore. It was a case of a very singular 
 nature. Miss Egan was a young lady of some accomplishments, 
 and great personal beauty. Mr. Kindillan was then a dashing 
 young officer in a dragoon regiment, nearly related to the late 
 LordBelvidere. Thereader will find the principal circumstances 
 of the trial detailed indignantly in Mr. Curean's speech; but it 
 is necessary to apprize him that Kindillan was first vindictively 
 prosecuted for the offence in a criminal court, and escaped 
 through the great exertions and genius of his immortal advo- 
 cate, who, however, in the civil action, was only able to mitigate 
 the damages down to ^500. After the plaintiff had gone 
 through his case, Mr. Cdhban proceeded: — " 
 
 My lords, and gentlemen of the jury — ^I am in 
 this case counsel for the defendant. Every action 
 to be tried by a jury, must be founded in prin- 
 ciples of law; of that, however, the court only can 
 determine, and upon the judgment of the court, 
 you, gentlemen, may repose with great confidence. 
 The foundation of this action is built upon this 
 principle of law, and this only, that the plaintiff 
 suffered special damage by losing the service of 
 his daughter, who has been taken away from him: 
 for you, gentlemen, wiU err egregiously, and the 
 
16 ME. cubean's speech on the 
 
 cpurt will tell you so, if you imagine that the law 
 has given any retribution by way of damages for 
 all the agony which the father may suffer from 
 the seduction of his child. However, I do not 
 mean to make hght of the feelings of a parent; he 
 would be a strange character, and httle deserving 
 the attention of a court, who could act in that 
 manner; to see his grey hairs brought with ca- 
 lamity to the grave, and yet hold him out as a sub- 
 ject of levity or contempt. I do no such thing; 
 but I tell you soberly and quietly, that, whatever 
 his feelings may be, it is a kind of misery for 
 which the law does , not provide any remedy. No 
 action Hes for debauching or seducing a daughter, 
 but only for the loss of her service; at the same 
 time, over and over again, that the only ground is 
 the special circumstance of the loss of her ser- 
 vice — at the same time, gentlemen, I agree unpli- 
 citly in the idea of letting the case go at large to 
 you. In every injury wliich one man sustains from 
 another, it is right to let all circumstances, which 
 either aggravate or diroinish the -sleight of it, go 
 to the jury. This case has been stated in evidence 
 by two persons. Miss Egan has told, I think, the 
 most extraordinary story — 
 
 Lord Chief Baron — The most artless story I ever heard. 
 
 Mr. Curran — I do not allude to her credit; I 
 only say I never heard so extraordinary a story, 
 because I never heard of an instance of a vounQ- 
 woman, decently bred, arrived at eighteen, goino' 
 
CASE OF EGAN V. KINDILLAN. 17 
 
 away with a man, after a single conversation;' 
 having no previous acquaintance — no express 
 promise; abandoning her father's house, protec- 
 tion, and care, after two conversations, in which 
 there was not one word of marriage; without a 
 previous opportunity of engagement: without a 
 possibility of engaging her affections or seducing 
 her from her father, she embraces the first oppor- 
 tunity which was given to her; therefore, indeed, 
 I am astonished. I said, gentlemen, the case ought 
 rightly to go before you — I tell you why — circum- 
 stances which compose the enormity of an offence 
 of this kind can be judged by you. If you receive 
 a man into your house, give him access to any 
 female in yoiu" family, and he converts that privi- 
 lege to abuse her virtue, I know nothing of greater 
 enormity. If you admit a man to your house and 
 your table, and he avails himself of that confidence 
 to abuse the virtue of your daughter or your wife, 
 I know of no length to which the just indignation 
 of a jury might not be carried. But if there be no 
 such criminality on the part of the defendant? if 
 he was rather the follower than the mover of the 
 transaction? His conduct may be palHated, it can- 
 not be condemned. Look at this case, even as 
 stated by the witness herself Who was the sedu- 
 cer? Mr. Kindillan! Wliere was the single act to 
 inspire her with a single hope, that he intended 
 to marry her? Why steal away from her father's 
 house — why go to a pubHc inn, at a common 
 
18 ME. ctjrran's speech on the 
 
 seaport, even at that age, and with that degree of 
 understanding you see her possess? She confesses 
 she suspected there was no design of marriage; 
 that at Aungier-street he spent a night with her, 
 and no design of marriage; they cohabited week 
 after week, and no conversation of marriage till 
 they leave their mother country, and arrive at the 
 Isle of Man — and then from whom does it move? 
 ■not from her who might have talked even with a 
 degree of pride, if she thought he took her away 
 from her father: — "You have robbed me of a 
 father, under the promise of becoming my hus- 
 band — give me that protector!" No: you find it 
 moving from him, from Ms apprehension of her 
 dissatisfaction. If you can beheve that, what Mnd 
 of education must she have received? She throws 
 herself into the arms of the first officer she ever 
 saw; flies into a hackney-coach, and goes to another 
 country, and never talks of marriage till she arrives 
 there. To talk of the loss of a father is a very in- 
 vidious subject; every father must feel an argument 
 of that kind. But it is not because that one man 
 suffers, another must pay. It is in proportion to 
 his own guilt that he must be punished, and there- 
 fore it is that the law denies the right of the father 
 to receive compensation. It is an injury which can 
 rarely arise, when the father has discharged the 
 precedent part of his duty. It is wise, therefore, 
 that the law should refuse its sanction to an action 
 of that sort, because it calls upon the father to 
 
CASE OF EGAN V. KINDILLAN. 19 
 
 guard against that event, for wMcli lie knows lie 
 can have no reparation. It guards more against 
 the injury by discountenancing the neglect which 
 may give it birth; it refuses a compensation to 
 reward his own breach of duty. Only see what 
 would be the consequence if the law gave its sanc- 
 tion to an action of this sort. This man is in the 
 army. I am not here to preach about morals; I 
 am talking to men who may regret that human 
 nature is not more perfect than it is, but who must 
 take men as they are. This man goes to a watering- 
 place ; he sees this young woman, full of giddiness 
 and levity — no vice possibly, but certainly not 
 excusable in any female; see how she conducts 
 herself. "Have you considered the proposal?" 
 "No," says she, "our acquaintance is too short;" — 
 but the second conversation, and she is gone. How 
 would any of you, gentlemen, think of your child, 
 if she picked up a young buck whom she never saw 
 before? what would your wife say, if she was told 
 her daughter had picked up a man she did not 
 know? But you know mankind — youknow the 
 world. What would you think of a woman, unmar- 
 ried, who held a conversation on these terms? If 
 at Philipsborough you addressed a young woman, 
 with whom not a word of marriage passed, and yet 
 she accompanied you without hesitation, — would 
 you suppose her a girl of family and education, or 
 would you not rather suppose her to be one of 
 those unfortunate, uneducated creatures, with 
 
 2* 
 
20 MB. cueean's speech on the 
 
 whom a conversation very different from that of 
 marriage takes place? This, then, is the situation 
 of the defendant; he yields, more seduced than 
 seducing. It is upon this the father calls to you 
 for damages! For an injury committed — by whom? 
 from what cause? From the indiscreet behaviour, 
 the defective education, and neglected mind of his 
 daughter. He can have no feehng, or he would 
 not have exposed both her and himself; or, if he 
 have any feehngs, they are such as can be gratified 
 by you, gentlemen of the jury — they are such as 
 can be calmed by money! He can find more enjoy- 
 ment in pecuniary compensation, than in other 
 species of retribution! I speak harshly — I am 
 obhged to do so; I feel it. It is to be decided by 
 you with hberality and justice between such a 
 father and the defendant. I am stating these 
 things, supposing you beheve her. Her story is 
 weU delivered — it would be extraordinary if it 
 were not, when it has been so often repeated. The 
 defendant was tried for his hfe, and twelve men 
 upon their oaths acquitted him of the charge, 
 though the fact was sworn to by her. Her suf- 
 ferings and her beauty may make an impression 
 upon your minds; but, gentlemen, you are not 
 come here to pity, but to give a verdict; not from 
 passion, but which may be the cahn result of 
 deliberation between party and party. There is a 
 kind of false determination of mind, which makes 
 dupes of judicial men upon cases which involve 
 
CASE OF BGAN V. KINDILLAN. 21 
 
 more sentiment than speculation. If you can feel 
 any such, sensation in your minds, glowing and 
 heating to a degree of violence in which reason 
 may be consumed, let me entreat you to guard 
 against its faUing upon the head which ought not 
 to suffer. We are not to determine by zeal, but 
 judge by discretion. It is not her tears, her heav- 
 ings, her sighs, that must influence your sentence. 
 She has been brought up a second time by her 
 father, and exhibited before you, the unhappy 
 object of vice and of wantonness. She has thus 
 been exhibited by that father, whose feehngs are 
 represented as so tender — an exhibition which 
 ought to have been avoided by a sincere parent. 
 But let me expose the silly trap, that you may 
 not be the dupes of such artifice. It was a simple 
 case: it could have been proved without her tes- 
 timony; the leaving her father's house could have 
 been proved by many; and of the finding her in 
 the defendant's possession there was. sufficient ev- 
 idence, and the service could be proved as well 
 by any person as herself. But the circumstances 
 are proper for consideration: give me leave to say, 
 there are no circumstances more proper for con- 
 sideration than the motives of the man who brings 
 the action. Wbat his conduct was, appears by her 
 own evidence; she goes away with a man — ^he is 
 seized and called upon to marry her, under the 
 terror of a prosecution for his hfe, a species of 
 inducement such as never was heard of. Let it not 
 
22 ME. cueean's speech on the 
 
 be told, that a case of this kind, — ^that the uiisoli« 
 cited elopement of a young, unfortunate woman 
 yielding to criminal desires, going off with an 
 officer upon a first acquaintance, is an example to 
 be held up by a court and jury, or to be sanctioned 
 by a verdict; that a loose girl, coming back from 
 the cloyed appetite of her paramour, should make 
 welcome her return to her father's house by the 
 golden showers of compensation. If you wish to 
 hold up examples to justify elopements of your 
 children, establish it by your verdict! and be an- 
 swerable for the consequence; you will resolve 
 yourselves into a fund for unportioned wantons, 
 whose fathers will draw upon you for fortimes; 
 you wiU estabhsh an example. I am not ashamed 
 to be warm — I do not seU my warmth though I 
 may my talents; but give me leave to tell you that 
 an example of this kind, where no abuse of con- 
 fidence can be pleaded, no treachery alleged, would 
 go thus far, that every miserable .female who 
 parades about your streets, in order to make a 
 miserable hvelihood by the prostitution of her 
 person, will come forward under the imposing 
 character of a witness, because there is scarce any 
 of them who has not a father that may bring an 
 action. Let me warn you against another case: 
 you will establish an example by which the needy 
 father is encouraged, first, to force the man into 
 marriage under the apprehension of a prosecution, 
 or afterwards to compel him from the dread of a 
 
CASE OF EGAN V. KTNDILLAN. 23 
 
 verdict, unless you think that the man could be 
 reconciled to marry a girl he is tired of, and who 
 has added perjury to the rest of her conduct. It 
 is hard to talk of perjury; but how mil they an- 
 swer for the verdict of twelve ' honest men upon 
 their oaths? Impeach her credit, because she is 
 swearing this day to the fact, in opposition to the 
 verdict of twelve men; she swore to it upon the 
 prosecution, because of terror from her father, 
 expecting to receive death from his hands, unless 
 she warded it off by perjury. Have you not heard 
 her swear that he forced her into the King's Bench 
 with a knife in his hand? After he has failed to 
 affect the hfe of the defendant, he makes a des- 
 perate attempt at his property, through the means 
 of a jury — ^is this a case for a jury? She goes off 
 unsolicited, she seeks the opportunity, and yet Mr. 
 KindiUan is to be the victim! A young man who 
 meets a woman, goes to a tavern, and indulges his 
 appetites at the expense of the peace, quietness, 
 and happiness of a family, you may wish to see 
 reformed; but be he whose son he may, he cannot 
 be punished in this way for such conduct. WOl 
 you lay your hands on your hearts and say, whether 
 the defendant has been more to blame than Miss 
 Egan herself? She has suffered much — ^her ev- 
 idence shows it; at first from her terror of her 
 father, now in preserving her consistency, to see 
 her exposed as she was on the table. But has the 
 defendant suffered nothing? Is it suffering nothing 
 
24 ME. cxtrean's speech on the 
 
 to be put in fear of his life? to have the horrors 
 of a prison to encounter? Is it nothing, what he 
 must have suffered in point of property? He comes 
 now, to resist this last attempt, after all the others, 
 to drive him, by robbing him of his property, to 
 marry the daughter. Would you, gentlemen, advise 
 your sons to marry under such circumstances? I 
 put it boldly to you — answer it, and your answer 
 will be your verdict. After ten weeks' voluntary 
 cohabitation, would you advise him to marry? or 
 would you ensure a reasonable prospect of con- 
 jugal fidelity afterwards? Let me not take up your 
 time; we will call witnesses to discredit what she 
 has sworn; let me say in excuse for her, for what 
 she said upon her oath, that she came forward 
 under the terror of her father's power. Certain it 
 is, that a sense of female honour should not have 
 had more influence upon her when in the other 
 court, where she was vindicating herself, than here 
 where she comes to put money into her father's 
 pocket. The consequence of large damages is this: 
 you wiU encourage every man to neglect the educa- 
 tion of his child; making a fortune by dropping a 
 seed of immorality in the mind of the female, 
 which may ripen into that tree of enormity, that 
 will be cut doAvn, not to be cast into the fire, but 
 for the father's benefit. A gml of eighteen, whose 
 father forced her upon this table, whose sufferings 
 have been brought upon her by the leprosy of her 
 morals, is not to be coimtenanced. If you ^\ish to 
 
CASE OF EGAN V. KINDILLAJT. 25 
 
 point out the path to matrimony tkrougli dishon- 
 our, and you think it better that your daughter 
 should be led to the altar from the brothel, than 
 from the parent's arms, you may estabhsh that by 
 your verdict. If you think it better to let the luifor- 
 tunate author of her own misery benefit by the 
 example she may hold up, you will do it by such 
 a Terdict as your understanding, not your passion, 
 dictates. 
 
HAMILTON EOWAK 
 
 29 Wj January, 1794, 
 
 The Government proclamation, in the Autumn of '92, against 
 the Volunteers who had assumed French forms, was answered 
 by the United Irishmen, in an address, written hy Dr. Drennan, 
 and signed by E,owan, as secretary. For this. Rowan and 
 Drennan were prosecuted. Rowan wanted Thomas Addis 
 Emmet, and the Hon. Simon Butler, members of the society, 
 to defend him; but they preferred Cctekan. 
 
 To the information Mr. Rowan pleaded issue — Not Guilty; 
 and the court appointed "Wednesday, the 29th day of January, 
 1794, for the trial of the said issue. 
 
 The Attorney-General (Arthur "Wolfe) stated the case. The 
 following passage from his statement describes the proclamation 
 and meeting: — 
 
 "The troops are summoned to meet, the guards are summoned 
 to assemble, and the first battalion of National Guards were to 
 have paraded, clothed like Frenchmen. The night before, the 
 Lord Lieutenant had summoned the council of the kingdom; 
 upon that night a proclamation issued, stating that there 
 were intentions to assemble men in arms, with seditious signs, 
 and apprehending danger from their so assembling. It prohib- 
 ited their meeting. The proclamation issued on a Saturday 
 night, and it produced that satisfaction which all good men 
 desirous of order seek to enjoy; and they felt once more the 
 pleasurable assurance that they had a government. Appalled by 
 this proclamation, the corps did not meet on the Sth December, 
 as it was intended, though some few were seen dressed in the 
 National, Guard uniform, paradirg the streets, with a mob, 
 crowding at their heels; but, however, nothing followed." 
 
TEIAI; OF A. H. BO WAN. 27 
 
 "A few days after — I am not aware of the particular day — 
 but a few days after the issuing the proclamation, the society 
 assembled. The proclamation was upon the 7 th, the address I 
 speak of was published the 16th of December; the meeting, 
 therefore, must have been between the 7th and the 16th of 
 December. The society, I say, assembled, and they agreed 
 upon a certain address to the Yolunteers of Ireland, and 
 Dr. Drennan is there stated to have been in the chair and the 
 traverser secretary. At that meeting the address to the Volun- 
 teers was agreed upon, which is the libel charged against Mr. 
 Eowan , as being guilty of publishing it. Under that address, 
 this was to be done. The Volunteers of Dublin were to be 
 called into action, and those papers were to be dispersed among 
 them. For that purpose, the several Volunteer corps at that 
 time existing in Dublin were summoned to assemble in a house 
 in Cope-street, belonging to Purdon, a fencing-master, upon 
 the 1 6th of December. Accordingly upon that day, the several 
 corps of Volunteers did go with side-arms to this fencing-school 
 in Cope-street. The traverser was, I believe, at the head of 
 one of these corps; another very celebrated name was at the 
 head of another of them, James Napper Tandy. Who was 
 at the head of the others I am not. able to inform you. But 
 in the afternoon of the 16th of December, several Volunteers, 
 with uniforms and side-arms, assembled in the fencing-school. 
 In this fencing-school, gentlemen, there was a gallery, and 
 into that gallery there was such public access, that what 
 passed below may be said to have passed in the face of the 
 world." 
 
 Witnesses were examined, who fully connected Rowan with 
 the document, and then Cdkkan thus sjioke for the defence: — 
 
 GrENTLEMEN of the jurj, when I consider the 
 period at which this prosecution is brought forward; 
 when I behold the extraordinary safe -guard of 
 armed soldiers resorted to, no doubt for the 
 
28 ME. cueean's speech on the 
 
 preservation of peace and order;* when I catch, as 
 I cannot but do, the throb of pubhc anxiety which 
 beats from one end to the other of this hall; when 
 I reflect on what may be the fate of a man of the 
 most beloved personal character, ofoneof themost 
 respectable families of our country — himself the 
 only individual of that family — I may almost say 
 of that country — who can look to that possible 
 fate with unconcern? Feeling, as I do, all these 
 impressions, it is in the honest simphcity of my 
 heart I speak, when I say, that I never rose in a 
 court of justice with so much embarrassment as 
 upon this occasion. 
 
 If, gentlemen, I could entertain a hope of finding 
 refuge for the disconcertion of my mind in the 
 perfect composure of yours — if I could suppose 
 that those awful vicissitudes of himaan events, 
 which have been stated or alluded to, could leave 
 your judgment undisturbed, and your hearts at 
 ease, I know I should form a most erroneous opinion 
 of your character. I entertain no such chimerical 
 hope — I form no such unworthy opinion. I expect 
 not that your hearts can be more at ease than my 
 own — I have no right to expect it; but I have a 
 right to call upon you, in the name of your country, 
 in the name of the living Grod, of whose eternal 
 justice you are now administering that portion 
 
 * A few moments before Mr. Curran entered into his client's 
 defence, a guard A\as brought into the Court-House by the Sheriff 
 (Gifford). 
 
TRIAL OF A. H. ROWAN. 29 
 
 wMcli dwells with us on this side of the grave, to 
 discharge your breasts, as far as you are able, of 
 every bias of prejudice or passion, that if my chent 
 be guUty of the offence charged upon him, you 
 may give tranquHhty to the pubHc, by a firm ver- 
 dict of conviction; or, if he be innocent, by as firm 
 a verdict of acquittal; and that you wiU do tMs 
 in defiance of the paltry artifices and senseless 
 clamours that have been resorted to, in order to 
 bring him to his trial with anticipated conviction. 
 And, gentlemen, I feel an additional necessity in 
 thus conjuring you to be upon your guard, from 
 the able and imposing statement which you have 
 just heard on the part of the prosecution. I know 
 well the virtues and talents of the excellent person 
 who conducts that prosecution;* I know how much 
 he would disdain to impose on you by the trap- 
 pings of office; but I also know how easily we 
 mistake the lodgment which character and elo- 
 quence can make upon our feelings, for those 
 impressions that reason, and fact, and proof, only 
 ought to work upon our understandings. 
 
 Perhaps, gentlemen, I shall act not unwisely in 
 waiving any further observation of this sort, and 
 giving your minds an opportunity of growing cool 
 and resuming themselves, by coming to a cahn and 
 uncoloured statement of mere facts, premising only 
 to you, that I have it in strictest injunction from 
 my client, to defend him upon facts and evidence 
 
 * The late Lord Kil warden, then Attorney- General Wolfe. 
 
30 ME. cubean's speech on the 
 
 only, and to avail myself of no technical artifice or 
 subtlety that could withdraw his cause from the 
 test of that inquiry which it is your province to 
 exercise, and to which only he wishes, to be ia- 
 debted for an acquittal. 
 
 In the month of December, 1792, Mr. Rowan 
 was arrested on an information, charging him with 
 the offence for which he is now on his trial. He 
 was taken before an honourable personage now 
 on that bench, and admitted to bail.* 
 
 He remained a considerable time in this city, 
 soliciting the present prosecution, and offering 
 himself to a fair trial by a jury of his country. But 
 it was not then thought fit to yield to that solicita- 
 tion; nor has it now been thought proper to pro- 
 secute him in the ordinary way, by sending up a 
 bill of indictment to a grand jury. 
 
 I do not mean by this to say that informations 
 ex-officio are always oppressive or unjust ;-|- but I 
 cannot but observe to you, that when a petty jury 
 is called upon to try a charge not previously found 
 by the grand inquest, and supported by the naked 
 assertion only of the King's prosecutor, that the 
 accusation labours under a weakness of probabihty 
 which it is difficult to assist. If the charge had no 
 cause of dreading the light — if it was likely to 
 find the sanction of a grand jury — it is not easy 
 
 * The Honourable Justice Downes, afterwards Lord Downes, and 
 Chief Justice of the King's Bench. 
 t M'Nally notes that in Curran's private opinion they ■were. 
 
TBIAL OF A. H. EOWAN. 31 
 
 to account why it deserted the more usual, the 
 more popular, and the more constitutional mode, 
 and preferred to come forward in the ungracious 
 form of an ex-officio ioformation. 
 
 If such a biU had been sent up and found, Mr. 
 Rowan would have been tried at the next com- 
 mission; but a speedy trial was not the wish of his 
 prosecutors. An information was filed, and when 
 he expected to be tried upon it, an error, it seems, 
 was discovered in the record. Mr. Eowan offered 
 to waive it, or consent to any amendment desired. 
 No, that proposal could not be accepted: a trial 
 must have followed. That information, therefore, 
 was' withdrawn, and a new one filed; that is, m 
 fact, a third prosecution was instituted upon the 
 same charge. This last was filed on the 18th day 
 of last July. 
 
 Gentlemen, these facts cannot fail of a due im- 
 pression upon you. You wiU find a material part 
 of your inquiry must be, whether Mr. B-owan is 
 pursued as a criminal, or hunted down as a victim. 
 It is not, therefore, by insinuation or circuity, but 
 it is boldly and directly that I assert, that oppres- 
 sion has been intended and practised upon him, 
 and by those facts which I have stated, I am war- 
 ranted in the assertion. 
 
 His demand, his entreaty to be tried, was refused, 
 and why? A hue and cry was to be raised against 
 him; the sword was to be suspended over his head; 
 some time was necessary for the puMic mind to 
 
32 ME. cueean's speech on the 
 
 become heated by the circulation of artful clamours 
 of anarchy and rebellion: these same clamours 
 which, with more probabihty, but not more success, 
 had been circulated before through England and 
 Scotland. In this country the causes and the swift- 
 ness of their progress were as obvious as their 
 foUy has since become, to every man of the smallest 
 observation. I have been stopped myself with — 
 "Good God, sir, have you heard the news?" "No, 
 sir, what?" "Why one French emissary was seen 
 travelling through Connaught in a post chaise, and 
 scattering from the window, as he passed, httle 
 doses of pohtical poison, made up in square bits of 
 paper; another was actually surprised in the fact 
 of seducing our good people from their allegiance, 
 by discourses upon the indivisibihty of French 
 robbery and massacre, which he preached in 
 the French language, to a congregation of Irish 
 peasants." 
 
 Such are the bugbears and spectres to be raised 
 to warrant the sacrifice of whatever Uttle pubhc 
 spirit may remain amongst us. But time has 
 also detected the imposture of these "Cock-lane 
 apparitions;" and you cannot now, with your ej-es 
 open, give a verdict, without asking your con- 
 sciences this question: — Is this a fair and honest 
 prosecution? is it brought forward -with the single 
 view of vindicating public justice, and promoting 
 public good? And here let me remind you, that 
 you are not convened to try the guilt of libel, 
 
TRIAL OF A. H. BOWAN. 33 
 
 affecting the personal character of any private 
 man. I know no case in which a jury ought to 
 be more severe, than where personal calumny is 
 conveyed through a vehicle which ought to be con- 
 secrated to public information. Neither, on the 
 other hand, can I conceive any case in which the 
 firmness and the caution of a jury should be more 
 exerted, than when a subject is prosecuted for a 
 Hbel on the state. The pecuharity of the British 
 constitution (to which, in its fullest extent, we 
 have an undoubted right, however distant we may 
 be from the actual enjoyment), and in which it 
 surpasses every known government in Europe, is 
 this, that its only professed object is the general 
 good, and its only foundation the general wiU: 
 hence the people have a right, acknowledged from 
 time immemorial, fortified by a pHe of statutes, 
 and authenticated by a revolution that speaks 
 louder than them all, to see whether abuses have 
 been committed, and whether their properties and 
 their liberties have been attended to as they ought 
 to be. 
 
 This is a kind of subject by which I feel myself 
 overawed when I approach it; there are certain 
 fundamental principles which nothing but necessity 
 should expose to public examination; they are 
 pillars, the depth of whose foundation you cannot 
 explore, without endangering their strength; but 
 let it be recollected, that the discussion of such 
 subjects should not be condemned in me, nor visited 
 
34 MR. cukean's speech on the 
 
 upon my client: tlie blame, if any there be, should 
 rest only with those who have forced them into 
 discussion. I say, therefore, it is the right of the 
 people to keep an eternal watch upon the conduct 
 of their rulers ; and in order to that, the freedom 
 of the press has been cherished by the law of Eng- 
 land. In private defamation, let it never be tol- 
 erated; in wicked and wanton aspersion upon a 
 good and honest administration, let it never be 
 supported. Not that a good government can be 
 exposed to danger by groundless accusation, but 
 because a bad government is sure to find, in the 
 detected falsehood of a licentious press, a security 
 and a credit, which it could never otherwise 
 obtain. 
 
 I said a good government cannot be endangered; 
 I say so again; for whether it be good or bad, it 
 can never depend upon assertion: the question is 
 decided by simple inspection; to try the tree, look 
 at its fruit: to judge of the government, look at 
 the people. What is the fruit of a good govern- 
 ment? the virtue and happiness of the people. Do 
 four millions of people in this country gather those 
 fcuits from that government, to whose injured 
 purity, to whose spotless virtue and violated 
 honour this seditious and atrocious libeller is to be 
 immolated upon the altar of the constitution? To 
 you, gentlemen of the jury, who are bound by the 
 most sacred obhgation to your country, and your 
 Grod, to speak nothing but the truth, I put the 
 
TEIAL OF A, H. EOWAN. 35 
 
 question — do the people of this »country gather 
 those fruits? — are they orderly, industrious, reh- 
 gious, and contented? — do you find them free from 
 bigotry and ignorance, those inseparable concom- 
 itants of systematic oppression? Or, to try them 
 by a test as unerring as any of the former, are they 
 united? The period has now elapsed in which 
 considerations of this extent would have been 
 deemed improper to a jury: happily for these coun- 
 tries, the legislature of each has lately changed, 
 or, perhaps to speak more properly, revived and 
 restored the law respecting trials of this kind* 
 For the space of thirty or forty years, a usage 
 had prevailed in Westminster haU, by which the 
 judges assumed to themselves the decision of the 
 question, whether hbel or not; but the learned 
 counsel for the prosecution is now obhged to admit 
 that this is a question for the jury only to decide* 
 YouwillnaturaUy listen with respect to the opinion 
 of the court, but you will receive it as a matter of 
 advice, not as a matter of law; and you wiU give 
 it credit, not from any adventitious circumstances 
 of authority, but merely so far as it meets the con- 
 currence of your own understandings. 
 
 Give me leave now to state the charge, as it 
 stands upon the record: it is, "that Mr. Eowan,. 
 being a person of a wicked and turbulent dispos- 
 ition, and maliciously designing and intending to 
 
 * Erskine and Fox procured this amendment, or restoration of 
 the law of libel. 
 
 3* 
 
36 ME. CimEAN's SPEECH ON THE 
 
 excite and diflfuse among the subjects of this realm 
 of Ireland, discontents, jealousies, and suspicions 
 of our Lord the King and his government, and 
 disaffection and disloyalty to the person and 
 government of our said Lord the King, and to 
 raise very dangerous seditions and tumults within 
 this kingdom of Ireland, and to draw the govern- 
 ment of this kingdom iato great scandal, infamy, 
 and disgrace, and to incite the subjects of our 
 said Lord the King, to attempt, by force and 
 violence, and with arms, to make alterations in 
 the government, state, and constitution of this 
 kingdom, and to incite his Majesty's said subjects 
 to tumult and anarchy, and to overturn the 
 estabhshed constitution of this kingdom, and to 
 overawe and intimidate the legislature of this 
 kingdom by an armed force;" did "maliciously 
 and seditiously" pubhsh the paper in question. 
 
 G-entlemen, without any observation of mine, 
 you must see that this information contauis a 
 direct charge upon Mr. Rowan; namely, that he 
 did, with the intents set forth in the information, 
 pubhsh this paper; so that here you have, in fact, 
 two or three questions for your decision. First, the 
 matter of fact of the publication; namely, did Mr. 
 Rowan pubhsh that paper? If Mr. Rowan did not 
 in fact pubhsh that paper, you have no longer 
 any question on which to employ your minds: if 
 you thmk that he was in fact the pubhsher, then, 
 and not till then, arises the great and important 
 
TEIAIi OF A. H. BOWAN. 37 
 
 subject to ■wMch your judgments must be directed. 
 And that comes shortly and simply to this. Is 
 the paper a libel? and did he publish it with the 
 intent charged in the information? For, whatever 
 you may think of the abstract question, whether 
 the paper be libellous or not, and of which paper 
 it has not even been insinuated that he is the 
 author, there can be no ground for a verdict 
 against him, unless you also are persuaded that 
 what he did was done with a criminal design. 
 
 I wish, gentlemen, to simplify, and not to per- 
 plex; I therefore say again, if these three circum- 
 stances conspire, that he pubhshed it, that it 
 was a Hbel, and that it was pubhshed with the 
 purposes alleged in the information, you ought 
 unquestionably to find him guilty: if, on the other 
 hand, you do not find that all these circumstances 
 concurred; if you cannot upon your oaths say that 
 he pubhshed it: if it be not in your opinion a hbel; 
 and if he did not publish it with the intention 
 alleged: I say, upon the failure of any one of these 
 points, my chent is entitled, in justice, and upon 
 your oaths, to a verdict of acquittal. 
 ' Gentlemen, Mr. Attorney -General has thought 
 proper to direct your attention to the state and 
 circumstances of pubhc affairs at the time of this 
 transaction; let me also make a few retrospective 
 observations on a period at which he has but 
 shghtly glanced; I speak of the events which took 
 place before the close of the American war. 
 
38 ME. oukean's speech on the 
 
 You know, gentlemen, that France had espoused 
 the cause of America, and we became thereby 
 engaged m a war with that nation. 
 
 "Heu nescia mens hominum futuri!" 
 
 Little did that ill-fated monarch know that he 
 was forming the first causes of those disastrous 
 events, that were to end in the subversion of his 
 throne, in the slaughter of his family, and the 
 deluging of his country with the blood of his 
 people. You cannot but remember that, at a 
 time when we had scarcely a regular soldier for 
 our defence, when the old and young were alarmed 
 and terrified with apprehensions of descent upon 
 our coasts, that Providence seemed to have worked 
 a sort of miracle in our favour. You saw a band 
 of armed men come forth at the great call of nature, 
 of honour, and their country. You saw men of the 
 greatest wealth and rank; you saw every class of 
 the community give up its members, and send 
 them armed into the field, to protect the pubhc 
 and private tranquiQity of Ireland. It is impossible 
 for any man to turn back to that period, without 
 reviving those sentiments of tenderness and grati- 
 tude, which then beat in the public bosom; to 
 recollect amidst what applause, what tears, what 
 prayers, what benedictions, they walked forth 
 amongst spectators, agitated by the mingled sen- 
 sations of terror and of reliance, of danger and of 
 protection, imploring the blessings of heaven upon 
 their heads, and its conquest upon their swords. 
 
TBIAIi OP A. H. ROWAN. 39 
 
 That illustrious, and adored, and abused body of 
 men, stood forward and assumed the title, which 
 I trust the ingratitude of their country wUl never 
 blot from its history, — "The Yolunteees of 
 Ireland." 
 
 Give me leave now, with great respect, to put 
 this question to you: — ^Do you think the assembling 
 of that glorious band of patriots was an insurrec- 
 tion? Do you think the invitation to that assem- 
 bling would have been sedition? They came under 
 no commission but the call of their country; 
 unauthorized and unsanctioned, except by pubHc 
 emergency and pubKc danger. I ask, was that 
 meeting insurrection or not? I put another ques- 
 tion: — ^If any man then had published a call on 
 that body, and stated that war was declared against 
 the state; that the regular troops were withdrawn; 
 that our coasts were hovered round by the ships 
 of the enemy; that the moment was approaching, 
 when the unprotected feebleness of age and sex, 
 when the sanctity of habitation, would be disre- 
 garded and profaned by the brutal ferocity of a 
 rude invader; if any man had then said to them — 
 "Leave your industry for a while, that you may 
 return to it again, and come forth in arms for the 
 public defence:" I put the question boldly to you 
 (it is not the case of the Volunteers of that day; 
 it is the case of my client at this hour, which I put 
 to you), would that caU have been then pronounced 
 in a court of justice, or by a jury on their oaths, a 
 
40 MB. cubban's speech on the 
 
 criminal and seditious invitation to insurrection? 
 If it would not have been so then, upon what prin- 
 ciple can it be so now? What is the force and 
 perfection of the law? It is, the permanency of the 
 law; it is, that whenever the fact is the same, the 
 law is also the same; it is, that the letter remains 
 written, monumented and recorded, to pronounce 
 the same decision, upon the same facts, whenever 
 they shaU arise. I will not affect to conceal it: 
 you know there has been artful, ungrateful, and 
 blasphemous clamour raised against these illus- 
 trious characters, the saviours of the king of Ireland. 
 Having mentioned this, let me read a few words of 
 the paper alleged to be criminal: "You first took 
 up arms to protect your country from foreign 
 enemies, and from domestic disturbance. For the 
 same purposes, it now becomes necessary that you 
 should resume them." 
 
 I should be the last man in the world to impute 
 any want of candour to the right honourable gen- 
 tleman, who has stated the case on behalf of the 
 prosecution; but he has certainly fallen into a 
 mistake, which, if not explained, might be highly 
 injurious to my cHent. He supposed that this 
 pubhcation was not addressed to those ancient 
 volunteers, but to new combinations of them, 
 formed upon new principles, and actuated by 
 different motives. You have the words to which 
 this construction is imputed upon the record; the 
 meaning of his mind can be collected only from 
 
TEIAL OF A. H. EOWAN. 41 
 
 those words wMch lie has made use of to convey it. 
 The guilt imputable to him can only be inferred 
 from the meaning ascribable to those words. Let 
 his meaning then be fairly collected by resorting 
 to them. Is there a foundation to suppose that 
 this address was directed to any such body of 
 men as has been called a banditti (with what jus- 
 tice it is unnecessary to inquire), and not to the 
 old Volunteers? 
 
 As to the sneer at the words citizen soldiers, I 
 should feel that I was treating a very respected 
 friend with an insidious and unmerited kindness, 
 if I affected to expose it by any gravity of refuta- 
 tion. I may, however, be permitted to observe, 
 that those who are supposed to have disgraced 
 this expression by adopting it, have taken it from 
 the idea of the British constitution, "that no m'an 
 in becoming a soldier ceases to be a citizen." 
 Would to Grod, all enemies as they are, that that 
 unfortunate people had borrowed more from that 
 sacred source of liberty and virtue; and would to 
 Grod, for the sake of humanity, that they had pre- 
 served even the httle they did borrow! If ever 
 there could be an objection to that appellation, it 
 must have been strongest when it was first assumed.* 
 To that period the writer manifestly alludes; he 
 addresses "those who first took up arms." "You 
 
 * In the resolutions and addresses of the old Volunteers, at and 
 prior to 1783, the terms citizen soldiers and citizen soldiery, were no 
 uncommon appellations. 
 
42 MK. CURBAOSr's SPEECH ON THE 
 
 first took up arms to protect your country from 
 foreign enemies and from domestic disturbance. 
 For the same purposes, it now becomes necessary 
 tbat you should resume them." Is this apphcable 
 to those who had never taken up arms before? 
 "A proclamation", says this paper, "has been issued 
 in England for embodying the militia, and a pro- 
 clamation has been issued by the Lord Lieutenant 
 and Council of Ireland, for repressing aU seditious 
 associations. In consequence of both these pro- 
 clamations, it is reasonable to apprehend danger 
 from abroad, and danger at home." Grod help us 
 from the situation of Europe at that time; we were 
 threatened with too probable danger from abroad, 
 and I am afraid it was not without foundation we 
 were told of our having something to dread at home. 
 'I find much abuse has been lavished on the 
 disrespect with which the proclamation is treated, 
 in that part of the paper alleged to be a libel. To 
 that my answer for my client is short: I do conceive 
 it competent to a British subject, if he thinks that 
 a proclamation has issued for the pui-pose of raising 
 false terrors; I hold it to be not only the privilege, 
 but the duty of a citizen, to set his countrymen 
 right, with respect to such misrepresented danger; 
 and until a proclamation in this country shall have 
 the force of law, the reason and grounds of it are 
 surely at least questionable by the people. Nay, 
 I will go farther; if an actual law had passed, 
 receiving the sanction of the three estates, if it be 
 
TBIAIi OP A. H. EOWAN. 43 
 
 exceptionable in any matter, it is warrantable to 
 any man in the community to state, in a becoming 
 manner, his ideas upon it. And I should be at a 
 loss to know, if the positive laws of Great Britain 
 are thus questionable, upon what grounds the pro- 
 clamation of an Irish govermnent should not be 
 open to the animadversion of Irish subjects. 
 
 "Whatever be the motive, or from whatever 
 quarter it arises," says this paper, "alarm has 
 arisen?' G-entlemen, do you not know that to be 
 fact? It has been stated by the Attorney-General, 
 and most truly, that the most gloomy apprehen- 
 sions were entertained by the whole country. 
 "You, Volunteers of Ireland, are therefore sum- 
 moned to arms, at the instance of government, as 
 well as by the responsibility attached to your 
 character, and the permanent obhgations of your 
 institution." I am free to confess, if any man, 
 assuming the liberties of a British subject to 
 question public topics, should, under the mask of 
 that privilege, publish a proclamation, inviting the 
 profligate and seditious, those in want, and those 
 in despair, to rise up in arms to overawe the legis- 
 lature — to rob us of whatever portion of the bless- 
 ing of a free government we possess; I know of 
 no offence involving greater enormity. But that, 
 gentlemen, is the question you are to try. If my 
 chent acted with an honest mind and fair intention, 
 and having, as he believed, the authority of gov- 
 ernment to support him in the idea that danger 
 
44 ME. cxiriian's speech on the 
 
 ■was to be apprehended, did apply to that body 
 of so known and so revered a character, calling 
 upon them by their former honour, the principles 
 of their glorious institution, and the great stake 
 they possessed in their country: if he interposed, 
 not upon a fictitious pretext, but a real belief of 
 actual and imminent danger, and that their arming 
 at that critical moment -was necessary to the safety 
 oftheir country, his intention was not only innocent, 
 but highly meritorious. It is a question, gentlemen, 
 upon which you only can decide; it is for you to 
 say, whether it was criminal in the defendant to 
 be misled, and whether he is to fall a sacrifice to 
 the prosecution of that government by which he 
 was so deceived. I say again, gentlemen, you can 
 look only to his own words as the interpreters of 
 his meaning; and to the state and circumstances of 
 his country, as he was made to beheve them, as 
 the clue to his intention. The case, then, gentlemen, 
 is shortly and simply this; a man of the first family, 
 and fortune, and character, and property among 
 you reads a proclamation, stating the country to 
 be in danger from abroad, and at home; and, thus 
 alarmed, thus, upon the authority of the prosecutor, 
 alarmed, applies to that august body, before whose 
 awful presence sedition must vanish, and insurrec- 
 tion disappear. You must surrender, I hesitate 
 not to say, your oaths to unfounded assertion, if 
 you can submit to say, that such an act, of such a 
 man, so warranted, is a wicked and seditious libel. 
 
TEIAIi OF A. H. EOWAN. 45 
 
 If he was a dupe, let me ask you, who was the 
 impostor? I blush and shrink with shame and 
 detestation from that meanness of dupery and 
 servile complaisance, which could make that dupe 
 a victim to the accusation of an impostor. 
 
 You perceive, gentlemen, that I am going into 
 the merits of this pubHcation before I apply myself 
 to the question which is first in order of time, 
 namely, whether the pubhcation, in point of fact, 
 is to be ascribed to Mr. Eowan or not. I have 
 been unintentionally led into this violation of 
 order. I should effect no purpose of either 
 brevity or clearness, by returning to the more 
 methodical course of observation. I have been 
 naturally drawn from it by the superior importance 
 of the topic I am upon, namely, the merit of the 
 publication in question. 
 
 This pubHcation, if ascribed at aU to Mr. Eowan, 
 contains four distinct subjects: the first, the invita- 
 tion to the volunteers to arm: upon that I have 
 already observed; but those that remain are surely 
 of much importance, and, no doubt, are prosecuted, 
 as equally criminal. The paper next states the 
 necessity of a reform in parliament: it states, 
 thirdly, the necessity of an emancipation of the 
 OathoUc inhabitants of Ireland; and, as necessary 
 to the the achievement of all these objects, does, 
 fourthly, state the necessity of a general delegated 
 convention of the people. 
 
 It has been alleged, that Mr. Eowan intended 
 
46 ME. cukean's speech on the 
 
 by this publication, to excite the subjects of this 
 country to effect an alteration in the form of your 
 constitution. And here, gentlemen, perhaps you 
 may not be unwilling to follow a httle farther 
 than Mr. Attorney-Greneral has done, the idea of 
 a late prosecution in Great Britain, upon the subject 
 of a public libel. It is with pecuhar fondness I 
 look to that country for sohd principles of constitu- 
 tional hberty and judicial example. You have been 
 pressed in no small degree with the manner in 
 which this publication marks the different orders 
 of our constitution, and comments upon them. 
 Let me show you what boldness of animadversion 
 of such topics is thought justifiable in the British 
 nation, and by a British jury. I have in my hand 
 the report of ' the trial of the printers of the 
 Morning Chronicle, for a supposed Hbel against the 
 state, and of their acquittal; let me read to you 
 some passages from that publication, which a jury 
 of Enghshmen were in vain called upon to brand 
 with the name of libel: — 
 
 "Claiming it as our indefeasible right to asso- 
 ciate together, in a peaceable and friendly manner, 
 for the communication of thoughts, the formation 
 of opinions, and to promote the general happiness, 
 we think it unnecessary to offer any apology for 
 inviting you to join us in this manly and benevolent 
 pursuit; the necessity of the inhabitants of every 
 community endeavouring to procure a true know- 
 ledge of their rights, their duties, and their interests, 
 
TEIAL OP A. H. BOWAN. 47 
 
 ■will not be denied, except by those wto are the 
 slaves of prejudice, or interested in the continua- 
 tion of abuses. As men ^u^ho wish to aspire to the 
 title of freemen, we totally deny the wisdom and 
 the humanity of the advice, to approach the defects 
 of government with 'pious awe and trembhng soli- 
 citude.' What better doctrine could the pope or 
 the tyrants of Europe desire? We think, therefore, 
 that the cause of truth and justice can never be 
 hurt by temperate and honest discussions; and 
 that cause which will not bear such a scrutiny, 
 must be ' systematically or practically bad. We 
 are sensible that those who are not friends to the 
 general good, have attempted to inflame the pubhc 
 mind with the cry of 'Danger,' whenever men have 
 associated for discussing the principles of gov- 
 ernment; and we have httle doubt but such 
 conduct will be pursued in this place; we would 
 therefore caution every honest man, who has really 
 the welfare of the nation at heart, to avoid being 
 led aAvay by the prostituted clamours of those who 
 live on the sources of corruption. We pity the 
 fears of the timorous, and we are totally imconcerned 
 respecting the false alarms of the venal. 
 
 "We view with concern the frequency of wars. 
 We are persuaded that the interests of the poor 
 can never be promoted by accession of territory, 
 when bought at the expense of their labour and 
 blood; and we must say, in the language of a celeb- 
 rated author, 'We, who are only the people, but 
 
48 ME. cxjuran's speech on the 
 
 who pay for wars witli our substance and our blood, 
 will not cease to tell kings,' or governments, 'that 
 to them alone wars are profitable; that the true 
 and just conquests are those which each makes at 
 home, by comforting the peasantry, by promoting 
 agriculture and manufactures, by multiplying men 
 and the other productions of nature; that then it 
 is that kings may call themselves the image of 
 God, whose will is perpetually directed to the 
 creation of new beings. If they continue to make 
 us fight, and kill one another in uniform, we wiU 
 continue to write and speak, until nations shall be 
 cured of this folly. 
 
 "We are certain our present heavy burdens are 
 owing, in a great measure, to cruel and impohtic 
 wars, and therefore we will do aU on our part, as 
 peaceable citizens, who have the good of the com- 
 munity at heart to enlighten each other, and 
 protest against them. 
 
 "The present state of the representation of the 
 people calls for the particular attention of every 
 man who has humanity sufficient to feel for the 
 honour and happiness of his country, to the defects 
 and corruptions of which we are inclined to at- 
 tribute unnecessary wars, &c. We think it a 
 deplorable case when the poor must support a 
 corruption which is calculated to oppress them; 
 when the labourer must give his money to afford 
 the means of preventing him having a voice in its 
 disposal; when the lower classes may say — 'We 
 
TRIAL OF A. H. EOWAN. 49 
 
 give you our money, for wMch. we have toiled and 
 sweat, and wticli would save our families from 
 cold and hunger; but we think it more- hard that 
 there is nobody whom we have delegated, to see 
 that it is not improperly and wickedly spent; we 
 have none to watch over our interests; the rich 
 only are represented.' An equal and uncorrupt 
 representation would, we are persuaded, save us 
 from heavy expenses, and dehver us from many 
 oppressions; we will therefore do our duty to 
 procure this reform, which appears to us of the 
 utmost importance. 
 
 "In short, we see, with the most hvely concern, 
 an army of placemen, pensioners, &c., fighting in 
 the cause of corruption and prejudice, and spread- 
 ing the contagion far and wide. 
 
 "We see, with equal sensibility, the present 
 outcry against reforms, and a proclamation (tending 
 to cramp the liberty of the press, and discredit 
 the true friends of the people), receiving the sup- 
 port of numbers of our countrymen. 
 
 "We see burdens multiphed, the lower classes 
 sinking into poverty, disgrace, and excesses, and 
 the means of those shocking abuses increased for 
 the purpose of revenue. 
 
 "We ask ourselves, 'Are we in England?' Have 
 our forefathers fought, bled, and conquered for 
 liberty? And did they not think that the fruits of 
 their patriotism would be more abundant in peace^ 
 plenty, and happiness? 
 
50 MR. oubean's speech on the 
 
 "Is the condition of the poor never to be 
 improved? 
 
 "Great Britain must have arrived at the highest 
 degree of national happiness and prosperity, and 
 our situation must be too good to be mended, or 
 the present outcry against reform and improve- 
 ments is inhuman and criminal. But we hope 
 our condition wiU be speedUy improved, and to 
 obtain so desirable a good, is the object of our 
 present association: an union founded on principles 
 of benevolence and humanity; disclaiming all con- 
 nexion with riots and disorder, but firm in our 
 purpose, and warm in our affections for Hberty. 
 
 "Lastly, we invite the friends of freedom 
 throughout Great Britain to form similar societies, 
 and to act with unanimity and firmness, till the 
 people be too wise to be imposed upon; and their 
 influence in the government be commensurate 
 with their dignity and importance. Then shall we 
 he free and happy." 
 
 Such, gentlemen, is the language which a sub- 
 ject of Great Britain thinks himself warranted to 
 hold, and upon such language has the corrob- 
 orating sanction of a British jury been stamped 
 by a verdict of acquittal. Such was the honest 
 and manly freedom of pubhcation; in a country, 
 too, where the complaint of abuses has not half 
 the foundation it has here. I said I loved to look 
 to England for principles of judicial example; I 
 cannot but say to you that it depends on your 
 
TRIAL or A. H. EOWAN. 51 
 
 spirit, whetlier I shall look to it hereafter "with 
 sympathy or with shame. Be pleased, now, 
 gentlemen, to consider whether the statement of 
 the imperfection in yom- representation has been 
 made with a desire of inflaming an attack upon 
 the public tranquillity, or with an honest purpose 
 of procuring a remedy for an actually existing 
 grievance. 
 
 It is impossible not to revert to the situation of 
 the times; and let me remind you, that whatever 
 observations of this kind I am compelled thus to 
 make in a court of justice, the uttering of them in 
 this place is not imputable to my chent, but to the 
 necessity of defence imposed upon him by this 
 extraordinary prosecution. 
 
 Grentlemen, the representation of our people is 
 the vital principle of their pohtical existence; 
 without it they are dead, or they Uve only to 
 servitude; without it there are two estates acting 
 upon and against the third, instead of acting in co- 
 operation with it; vnthout it, if the people are 
 oppressed by their judges, where is the tribunal 
 to which their judges can be amenable? without 
 it, if they are trampled upon and plundered by 
 a minister, where is the tribunal to which the 
 offender shall be amenable? without it, where is 
 the ear to hear, or the heart to feel, or the hand 
 to redress their sufferings? Shall they be found, 
 let me ask you, in the accursed bands of imps and 
 minions that bask in their disgrace^ and fatten 
 
52 MB. cukean's speech on the 
 
 upon their spoils, and flourisli upon their ruin? 
 But let me not put this to you as a merely spec- 
 ulative question. It is a plain question of fact: 
 rely upon it, physical man is everywhere the same; 
 it is only the various operations of moral causes 
 that gives variety to the social or individual char- 
 acter and condition. How otherwise happens it 
 that modem slavery looks quietly at the despot, 
 on the very spot where Leonidas expired? The 
 answer is, Sparta has not changed her chmate, but 
 she has lost that government, which her hberty 
 could not survive. 
 
 I call you, therefore, to the plain question of 
 fact. This paper recommends a reform in par- 
 liament: I put that question to your consciences; 
 do you think it needs that reform? I put it boldly 
 and fairly to you, do you think the people of 
 Ireland are represented as they ought to be? Do 
 you hesitate for an answer? If you do, let me 
 remind you, that until the last year, three milhons 
 of your countrymen have, by the express letter of 
 the law, been excluded from the reaHty of actual, 
 and even from the phantom of virtual representa- 
 tion. Shall we then be told that this is only the 
 affirmation of a wicked and seditious incendiary? 
 If you do not feel the mockery of such a charge, 
 look at your country; in what state do you find 
 it? Is it in a state of tranquilhty and general 
 satisfaction. These are traces by which good are 
 ever to be distinguished from bad governments, 
 
TEIAIi OF A. H. EOWAN. 53 
 
 •without any very minute inquiry or speculative 
 refinement. Do you feel that a veneration for the 
 law, a pious and humble attachment to the constitu- 
 tion, form the political morahty of the people? Do 
 you find that comfort and competency among your 
 people, which are always to be found where a 
 government is mild and moderate, where taxes are 
 imposed by a body who have an interest in treating 
 the poorer orders with compassion, and preventing 
 the weight of taxation from pressing sore upon 
 them? 
 
 G-entlemen, I mean not to impeach the state of 
 your representation; I am not saying that it is 
 defective, or that it ought to be altered or amended; 
 nor is this a place for me to say, whether I think 
 that three millions of the inhabitants of a country 
 whose whole number is but four, ought to be ad- 
 mitted to any efficient situation in the state. It 
 may be said, and truly, that these are not questions 
 for either of us directly to decide, but you cannot 
 refuse them some passing consideration at least; 
 when you remember that on this subject the real 
 question for your decision is, whether the allegation 
 of a defect in your constitution is so utterly un- 
 founded and false, that you can ascribe it only to 
 the maHce and perverseness of a wicked mind, and . 
 not to the innocent mistake of an ordinary under- 
 standing; whether it may not be mistake; whether 
 it can be only sedition. 
 
 And here, gentlemen, I own I cannot but regret. 
 
54 ME. cueean's speech on the 
 
 that one of oilr countrymen should be criminally 
 pursued, for asserting the necessity of a reform, at 
 the very moment when that necessity seems ad- 
 mitted by the parhament itself; that this unhappy 
 reform shaU, at the same moment, be a subject of 
 legislative discussion and criminal prosecution. Far 
 am I from imputing any sinister design to the 
 virtue or wisdom of our government; but who can 
 avoid feeling the deplorable impression that must 
 be made on the public mind, when the demand for 
 that reform is answered by a criminal information! 
 I am the more forcibly impressed by this con- 
 sideration, when I consider, that when this informa- 
 tion was first put on the file, the subject was 
 transiently mentioned in the House of Commons. 
 Some circumstances retarded the progress of the 
 inquiry there, and the progress of the information 
 was equally retarded here. On the first day of 
 this session, you all know, that subject was again 
 brought forward in the House of Commons, and, 
 as if they had slept together, this prosecution was 
 also revived in the Court of King's Bench, and 
 that before a jury taken from a panel partly 
 composed of those very members of parhament, 
 who, in the House of Commons, must debate upon 
 this subject as a measure of pubUc advantage, 
 which they are here called upon to consider as a 
 public crime.* 
 
 * The names of several members of parliament were included in 
 tlie panel. 
 
TEIAIi or A, H. BO WAN. 55 
 
 This paper, gentlemen, insists upon the necessity 
 of emancipating the Catholics of Ireland, and that 
 is charged as part of the hbel. If they had waited 
 another year, if they had kept this prosecution 
 impending for another year, how much would 
 remain for a jury to decide upon, I should be at 
 a loss to discover. It seems as if the progress of 
 public information was eating away the ground of 
 the prosecution. Since the commencement of the 
 prosecution, this part of the libel has unluckily 
 received the sanction of the legislature. In that 
 interval our Cathohc brethren have obtained that 
 admission, which, it seems, it was a libel to propose; 
 in what way to account for this, I am reaUy at a 
 loss. Have any alarms been occasioned by the 
 emancipation of our Catholic brethren? has the 
 bigoted mahgnity of any individuals been crushed? 
 or has the stability of the government, or that of 
 the country been weakened; or is one million of 
 subjects stronger than four mUhons? Do you think 
 that the benefit they received should be poisoned 
 by the sting of vengeance? If you think so, you 
 must say to them — "You have demanded eman- 
 cipation, and you have got it; but we abhor your 
 persons, we are outraged at your success, and we 
 will stigmatize by a criminal prosecution the adviser 
 of that rehef which you have obtained from the 
 voice of your country." I ask you, do you think, 
 as honest men, anxious for the pubhc tranquillity, 
 conscious that there are wounds not yet completely 
 
56 ME. cueean's speech on the 
 
 cicatrized, that you ought to speak this language 
 at this time, to men who are too much disposed 
 to think that in this very emancipation they have 
 been saved from their own parHament by the 
 humanity of their sovereign? Or do you wish to 
 prepare them for the revocation of these impro- 
 vident concessions? Do you think it wise or humane 
 at this moment to insult them, by sticking up in 
 a pillory the man who dared to stand forth as 
 their advocate? I put it to your oaths; do you 
 think that a blessing of that kind, that a victory 
 obtained by justice over bigotry and oppression, 
 should have a stigma cast upon it by an ignominious 
 sentence upon men bold and honest enough to 
 propose that measure ? to propose the redeeming 
 of rehgion from the abuses of the church, the 
 reclaiming of three millions of men from bondage, 
 and giving liberty to all who had a right to demand 
 it ; giving, I say, in the so much censured words of 
 this paper, giving "xjniveesal emancipation!" I 
 speak in the spirit of the British law, which makes 
 hberty commensurate with, and inseparable from 
 British soU; which proclaims even to the stranger 
 and sojourner, the moment he sets his foot upon 
 British earth, that the ground on which he treads 
 is holy, and consecrated by the genius of UNiVEESAii 
 emancipation. No matter in what language his doom 
 may have been pronounced; no matter what com- 
 plexion incompatible with freedom, an Indian or an 
 African sun may have burnt upon him; no matter 
 
TEIAIi OP A. H. EOWAN. 57 
 
 in wliat disastrous battle Ms liberty may have been 
 cloven down; no matter witli what solemnities lie 
 may have been devoted upon the altar of slavery; 
 the first moment he touches the sacred soil of 
 Britain, the altar and the god sink together in 
 the dust; his soul walks abroad in her own ma- 
 jesty; his body swells beyond the measure of his 
 chains, that burst from around him; and he stands 
 redeemed, regenerated, and disenthralled, by the 
 irresistible genius of ukivebsal emancipation. 
 
 A sudden burst of applause from the court and hall, which 
 was repeated for a considerable length of time, interrupted 
 Mr. Cdbhak. Silence being at length restored, he proceeded: — 
 
 Gentlemen, I am not such a fool as to ascribe 
 any efiusion of this sort to any merit of mine. It 
 is the mighty theme, and not the inconsiderable 
 advocate, that can excite interest in the hearer. 
 What you hear is but the testimony which nature 
 bears to her own character; it is the effusion of 
 her gratitude to that Power which stamped that 
 character upon her. 
 
 And permit me to say, that if my cHent had 
 occasion to defend his cause by any mad or 
 drunken appeals to extravagance or licentious- 
 ness, I trust in Grod I stand in that situation 
 that, humble as I am, he would not have resorted 
 to me to be his advocate. I was not recom- 
 mended to his choice by any connexion of prin- 
 ciple or party, or even private friendship; and 
 saying this, I cannot but add, that I consider not 
 
58 ME. cueran's speech osr the 
 
 to be acquainted witli such, a man as Mr. Eowan, 
 a want of personal good fortune. But upon this 
 great subject of reform and emancipation, there is 
 a latitude and boldness of remark, justifiable in the 
 people, and necessary to the defence of Mr. Rowan, 
 for which the habits of professional studies, and 
 technical adherence to established forms, have ren- 
 dered me unfit. It is, however, my duty, standing 
 here as his advocate, to make some few observations 
 'to you which I conceive to be material. 
 
 Gentlemen, you are sitting in a country which 
 has a right to the British constitution, and which 
 is bound by an indissoluble union with the British 
 nation. If you were now even at Hberty to debate 
 upon that subject; if you even were not, by the 
 most solemn compacts, founded upon the authority 
 of your ancestors and of yourselves, bound to that 
 alliance, and had an election now to make; in the 
 present unhappy state of Em-ope, if you had been 
 heretofore a stranger to Grreat Britain, you would 
 now say — ^We will enter into society and union 
 with you: — 
 
 "TTna salus ambotus erit, commune periculum." 
 
 But to accomplish that union, let me tell you, 
 you must learn to become like the English people. 
 It is vain to say you wiU protect their freedom, if 
 you abandon your own. The pillar whose base has 
 no foundation, can give no support to the dome 
 under which its head is placed; and if you profess 
 to give England that assistance which you refuse 
 
TRIAL OP A. H. EOWAN. 59 
 
 to yourselves, she will laugh at your folly, and 
 despise your meanness and insincerity. Let us 
 follow this a little further — ^I know you will 
 interpret what I say with the candour in which it 
 is spoken. England is marked by a natural avarice 
 of freedom, which she is studious to engross and 
 accumulate, but most unwilling to impart; whether 
 from any necessity of her policy, or from her 
 weakness, or from her pride, I will not presimae 
 to say, but so is the fact; you need not look to 
 ourselves. 
 
 In order to confirm this observation, I would 
 appeal to what fell from the learned counsel for 
 the crown, — "that notwithstanding the alUance 
 subsisting for t-vf o centuries past between the two 
 countries, the date of liberty in one goes no further 
 back than the year 1782." 
 
 If it required additional confirmation, I should 
 state the case of the invaded American, and the 
 subjugated Indian, to prove that the policy of 
 England has ever been, to govern her connexions 
 more as colonies than as allies; and it must be 
 owing to the great spirit indeed of Ireland, if she 
 shall continue free. Rely upon it, she will ever 
 have to hold her course against an adverse current; 
 rely upon it, if the popular spring does not con- 
 tinue strong and elastic, a short interval of debili- 
 tated nerve and broken force will send you down 
 the stream again, and re-consign you to the con- 
 dition of a province. 
 
60 ME. cubean's speech on the 
 
 If sucIl should become tte fate of your constitu- 
 tion, ask yourselves what must be the motive of 
 your government? It is easier to govern a province 
 by a faction, tlian to govern a co-ordinate country 
 by co-ordinate means. I do not say it is now, but 
 it wUl always be thought easiest by the managers 
 of the day, to govern the Irish nation by the agency 
 of such a faction, as long as this country shall be 
 found wUling to let her connexion with Great 
 Britain be preserved only by her own degradation. 
 In such a precarious and wretched state of things, 
 if it shall ever be found to exist, the true friend of 
 Irish liberty and British connexion will see, that 
 the only means of saving both must be, as Lord 
 Chatham expressed it, "the infusion of new health 
 and blood into the constitution." He will see how 
 deep a stake each country has in the liberty of the 
 other; he wUl see what a bulwark he adds to the 
 common cause, by giving England a co-ordinate 
 and interested ally, instead of an oppressed, enfee- 
 bled, and suspected dependant; he will see how 
 grossly the credulity of Britain is abused by those 
 who make her beheve that her interest is promoted 
 by our depression; he will see the desperate preci- 
 pice to which she approaches by such conduct; and 
 with an animated and generous piety, he will 
 labour to avert her danger. 
 
 But, gentlemen of the jury, what is hkely to be 
 his fate? The interest of the sovereign must be for 
 ever the interest of his people, because his interest 
 
TRIAIi OF A. H. EOWAN. 61 
 
 lives beyond his life: it must live in his fame; it 
 must live in the tenderness of his sohcitude for an 
 unborn posterity; it must live in that heart-attach- 
 ing bond, by which millions of men have united 
 the destinies of themselves and their children with 
 his, and call him by the endearing appellation of 
 Idng and father of his people. 
 
 But what can be the interest of such a gov- 
 ernment as I have described? Not the interest of 
 the king — not the interest of the people; but the 
 sordid interest of the hour; the interest in deceiving 
 the one, and in oppressing and defaming the other; 
 the interest of unpunished rapine and unmerited 
 favour: that odious and abj ect interest, that prompts 
 them to extinguish public spirit in ptmishment or 
 in bribe, and to pursue every man, even to death, 
 who has sense to see, and firmness enough to 
 abhor and to oppose them. What, therefore, I say, 
 will be the fate of the man who embarks in an 
 enterprise of so much difficulty and danger? I will 
 not answer it. Upon that hazard has my client put 
 every thing that can be dear to man, his fame, his 
 fortune, his person, his hberty, and his children; 
 but with what event your verdict only can answer, 
 and to that I refer your country. 
 
 There is a fourth point remaining. Says this 
 paper, — 'Tor both these purposes, it appears 
 necessary that provincial conventions should as- 
 semble, preparatory to the convention of the Pro- 
 testant people. The delegates of the Catholic body 
 
62 ME. cueean's speech on the 
 
 are not justified in conmiumcating with individuals, 
 or even bodies, of inferior authority; and therefore 
 an assembly of a similar nature and organization 
 is necessary to estabhsh an intercourse of sentiment, 
 an uniformity of conduct, an united cause, and an 
 united nation. If a convention on the one part 
 does not soon follow, and is not soon connected 
 with that on the other, the common cause will 
 split into the partial interests; the people wiU relax 
 into inattention and inertness ; the union of affection 
 and exertion will dissolve; and, too probably, some 
 local insurrection, instigated by the malignity of 
 our common enemy, may commit the character, 
 and risk the tranquilhty of the island, which can 
 be obviated only by the influence of an assembly 
 arising from, and assimilated with the people, and 
 whose spirit may be, as it were, knit with the soul 
 of the nation. Unless the sense of the Protestant 
 people be, on their part, as fairly collected and 
 as judiciously directed; unless individual exer- 
 tion consolidates into collective strength; unless 
 the particles unite into one mass, we may perhaps 
 serve some person or some party for a little, but 
 the pubhc not at all. The nation is neither insolent, 
 nor rebellious, nor seditious; while it knows its 
 rights, it is unwilling to manifest its powers; it 
 would rather supphcate the administration to anti- 
 cipate revolution by well-timed reform, and to save 
 their country to themselves." 
 
 Gentlemen, it is with something more than 
 
TRIAL OP A. H. EOWAN. 63 
 
 common reverence, it is with, a species of terror 
 that I am obliged to tread tMs ground. But what 
 is the idea, put in the strongest point of view? We 
 are willing not to manifest our powers, but to sup- 
 plicate administration to anticipate revolution, that 
 the legislature may save the country, in mercy to 
 itself. 
 
 Let me suggest to you, gentlemen, that there 
 are some circumstances, which have happened ia 
 the history of this country, that may better serve 
 as a comment upon this part of the case, than any 
 I can make. I am not bound to defend Mr. Rowan, 
 as to the truth or wisdom of the opinions he may 
 have formed. But if he did really conceive the 
 situation of the country such, as that the not 
 redressing her grievances might lead to a convul- 
 sion; and of such an opinion not even Mr. Eowan 
 is answerable here for the wisdom, much less shall 
 I insinuate any idea of my own upon so awful a 
 subject; but if he did so conceive the fact to be, 
 and acted from the fair and honest suggestion of 
 a mind anxious for the pubHc good, I must confess, 
 gentlemen, I do not know in what part of the 
 British constitution to find the principle of his 
 criminaHty. 
 
 But, be pleased further to consider, that he 
 cannot be understood to put the fact on which he 
 argues on the authority of his assertion. The con- 
 dition of Ireland was as open to the observation 
 of every other man, as to that of Mr. Rowan. What 
 
64 ME. cueean's speech on the 
 
 then, does this part of the pubhcation amount to? 
 In my mind, simply to this: 
 
 "The nature of oppression in all countries is 
 such, that although it may be borne to a certain 
 degree, it cannot be borne beyond that degree. 
 You find that exemplified in Great Britain; you 
 find the people of England patient to a certain 
 point, but patient no longer. That infatuated 
 monarch, James 11., experienced this. The time 
 did come, when the measure of popular sufferings 
 and popular patience was full — when a single di'op 
 was sufficient to make the waters of bitterness to 
 overflow. I think this measure in Ireland is brimful 
 at present ; I think the state of the representation 
 of the people in parliament is a grievance ; I think 
 the utter exclusion of three millions of people is a 
 grievance of that kind, that the people are not 
 likely long to endure, and the continuation of which 
 may plunge the country into that state of despair, 
 which wrongs, exasperated by perseverance, never 
 fail to produce." But to whom is even this lan- 
 guage addressed? Not to the body of the people on 
 whose temper and moderation, if once excited, per- 
 haps not much confidence could be placed; but to 
 that authoritative body, whose infiuence and power 
 would have restrained the excesses of the irritable 
 and tumultuous, and for that purpose expressly 
 does this publication address the Volunteers. 
 
 "We are told that we are in danger. I call upon 
 you, the great constitutional saviours of Ireland, 
 
TEIAL OF A. H. BOWAN. 65 
 
 to defend the country to whicli you tave given 
 political existence, and to use wliatever sanction 
 your great name, your sacred character, and the 
 weight you have in the conununity, must give you, 
 to repress wicked designs, if any there are. We 
 feel ourselves strong — the people are always strong; 
 the pubhc chains can only be rivetted by the pubUc 
 hands. Look to those devoted regions of southern 
 despotism: behold the expiring victim on his knees, 
 presenting the javehn, reeking with his blood, to 
 the ferocious monster who returns it into his heart. 
 Call not that monster the tyrant; he is no more 
 than the executioner of that inhuman tyranny, 
 which the people practise upon themselves, and of 
 which he is only reserved to be a later victim 
 than the wretch he has sent before. Look to a 
 nearer country, where the sanguinary characters 
 are more legible — whence you almost hear the 
 groans of death and torture. Do you ascribe the- 
 rapine and murder in France to the few names 
 that we are execrating here? or do you not see- 
 that it is the frenzy of an infuriated multitude, 
 abusing its own strength, and practising those 
 hideous abominations upon itself? Against the 
 violence of this strength, let your virtue and 
 influence be our safeguard." 
 
 What criminality, gentlemen of the jury, cani 
 you find in this? What, at any time; but I ask you,, 
 pecuharly at this momentous period, what guilt 
 you can find in it? My chent saw the scene of 
 
66 ME. curean's speech on the 
 
 horror and blood which covers almost the face of 
 Europe: he feared that causes, which he thought 
 similar, might produce similar effects; and he seeks 
 to avert those dangers, by calling the united virtue 
 and tried moderation of the country into a state 
 of strength and vigilance. Yet this is the conduct 
 which the prosecution of this day seeks to punish 
 and stigmatize ; and this is the language for which . 
 this paper is reprobated to-day, as tending to turn 
 the hearts of the people against their sovereign, 
 and inviting them to overturn the constitution. 
 
 Let us now, gentlemen, consider the concluding 
 part of this pubhcation. It recommends a meeting 
 of the people, to dehberate on constitutional 
 methods of redressing grievances. Upon this sub- 
 ject I am incHned to suspect that I have in my 
 youth taken up crude ideas, not founded, perhaps, 
 in law; but I did imagine that, when the bill of 
 rights restored the right of petitioning for the 
 redress of grievances, it was understood that the 
 people might boldly state among themselves that 
 grievances did exist; I did imagine it was under- 
 stood that people might lawfully assemble them- 
 selves in such manner as they might deem most 
 orderly and decorous. I thought I had collected 
 it from the greatest luminaries of the law. The 
 power of petitioning seemed to me to imply the 
 right of assembhng for the purpose of deliberation. 
 The law requiring a petition to be presented by a 
 limited number, seemed to me to admit that the 
 
TEIAL OF A. H. ROWAN. 67 
 
 petition miglit be prepared by any number wbatever, 
 provided,in doing so, they did not commit any breach 
 or violation of the public peace. I know that there 
 has been a law passed in the Irish parhament of 
 last year, which may bring my former opinion into 
 a merited want of authority. The law declares that 
 no body of men may delegate a power to any 
 smaller number, to act, think, or petition for them. 
 If that law had not passed, I should have thought 
 that the assembling by a delegate convention was 
 recommended, in order to avoid the tumult and 
 disorder of a promiscuous assembly of the whole 
 mass of the people. I should have conceived, before 
 that act, that any law to abridge the orderly 
 appointment of the few, to consult for the interest 
 of the many, and thus force the many to consult 
 by themselves, or not at aU, would, in fact, be a 
 law not to restrain but to promote insurrection. 
 But that law has spoken, and my error must stand 
 corrected. 
 
 Of this, however, let me remind you: you are to 
 try this part of the pubHcation by what the law 
 was then, not by what it is now. How was it under- 
 stood untU last session of parliament. You had, 
 both in England and Ireland, for the last ten years, 
 these delegated meetings. The Volunteers of Ire- 
 land, in 1783, met by delegation: they framed a 
 plan of parliamentary reform; they presented it to 
 the representative wisdom of the nation. It was 
 not received; but no man ever dreamed that it 
 
 5* 
 
68 ME. cuekan's speech on the 
 
 was not the undoubted rigM of the subject to 
 assemble in that manner. They assembled by- 
 delegation at Dungannon; and to show the idea 
 then entertained of the legaHty of their pubhc 
 conduct, that same body of Volunteers was thanked 
 by both houses of parhament, and their delegates 
 most graciously received at the throne. The other 
 day you had delegated representatives of the 
 Catholics of Ireland, pubhcly elected by the mem- 
 bers of that persuasion, and sitting in convention 
 in the heart of your capital, carrying on an actual 
 treaty with the existing government, and under 
 the eye of your own parhament, which was then 
 assembled; you have seen the delegates from that 
 convention carry the complaints of their grievances 
 to the foot of the throne, from whence they brought 
 back to that convention the auspicious tidings of 
 that redress which they had been refused at home- 
 Such, gentlemen, have been the means of popular 
 communication and discussion, which, until the last 
 session, have been deemed legal in this country, 
 as, happily for the sister kingdom, they are yet 
 considered there. 
 
 I do not complain of this act as any infraction 
 of popular liberty; I should not think it becoming 
 in me to express any complaint against a law, when 
 once become such. I observe only, that one mode 
 of popular dehberation is thereby taken utterly 
 away, and you are reduced to a situation in which 
 you never stood before. You are hving in a 
 
TEIAIi OF A. H. EOWAN. 69 
 
 country, wliere tlie constitution is rightly stated 
 to be only ten years old — wliere tlie people have 
 not the ordinary rudiments of education. It is a 
 melancholy story, that the lower orders of the 
 people here have less means of being enhghtened 
 than the same class of people in any other country. 
 If there be no means left by which pubhc measures 
 can be canvassed, what wiU be the consequence? 
 Where the press is free, and discussion imrestrained, 
 the mind, by the collision of intercourse, gets rid 
 of its own asperities; a sort of insensible perspira- 
 tion takes place in the body politic, by which those 
 acrimonies, which would otherwise fester and 
 inflame, are quietly dissolved and dissipated. But 
 now, if any aggregate assembly shall meet, they 
 are censured ; if a printer pubhshes their resolutions, 
 he is punished: rightly, to be sure, in both cases, 
 for it has been lately done. If the people say, let 
 us not create tumult, but meet in delegation, they 
 cannot do it; if they are anxious to promote 
 parhamentary reform in that way, they cannot do 
 it ; the law of the last session has for the iirst time 
 declared such meetings to be a crime. 
 
 "What then remains? The liberty of the press 
 only — that sacred palladium, which no influence, 
 no power, no minister, no government, which 
 nothing, but the depravity, or folly, or corruption 
 of a jury, can ever destroy. And what calamities 
 are the people saved from, by having public 
 communication left open to them? I will tell you. 
 
70 ME. cuekan's speech on OrHE 
 
 gentlemen, what they are saved from, and wliat tlie 
 government is saved from; I will tell you also to 
 wliat both are exposed by shutting up that com- 
 munication. In one case, sedition speaks aloud and 
 walks abroad: the demagogue goes forth — the 
 pubhc eye is upon him — he frets his busy hour 
 upon the stage ; but soon either weariness, or bribe, 
 or punishment, or disappointment, bears him down, 
 or drives him off, and he appears no more. In the 
 other case, how does the work of sedition go forward? 
 Mght after night the muffled rebel steals forth in 
 the dark, and casts another and another brand 
 upon the pile, to which, when the hour of fatal 
 maturity shall arrive, he wiU apply the torch. If 
 you doubt of the horrid consequence of suppressing 
 the effusion even of individual discontent, look to 
 those enslaved countries where the protection of 
 despotism is supposed to be secured by such 
 restraints. Even the person of the despot there is 
 never in safety. Neither the fears of the despot, 
 nor the machinations of the slave, have any slumber 
 — the one anticipating the moment of peril, the 
 other watching the opportunity of aggression. The 
 fatal crisis is equally a surprise upon both: the 
 decisive instant is precipitated without -jvarning — 
 by folly on the one side, or by frenzy on the other; 
 and there is no notice of the treason, till the traitor 
 acts. In those unfortunate countries — one cannot 
 read it without horror — there are officers, whose 
 province it is, to have the water which is to be 
 
TRIAL OP A. H. ROWAN. 71 
 
 drunk by their rulers, sealed up in bottles, lest 
 some wretched miscreant should throw poison 
 into the draught. 
 
 But, gentlemen, if you wish for a nearer and 
 more interesting example, you have it in the history 
 of your own revolution. You have it at that 
 memorable period, when the monarch found a 
 servile acquiescence in the ministers of his folly — 
 when the liberty of the press was trodden under 
 foot — when venal sheriffs returned packed juries, 
 to carry into effect those fatal conspiracies of the 
 few against the many — when the devoted benches 
 of pubhc justice were filled by some of those found- 
 lings of fortune, who, overwhelmed in the torrent 
 of corruption at an early period, lay at the bottom, 
 like drowned bodies, while soundness or sanity 
 remained in theni; but, at length, becoming buoyant 
 by putrefaction, they rose as they rotted, and floated 
 to the surface of the polluted stream, where they 
 were drifted along, the objects of terror, and conta- 
 gion, and abomination.* 
 
 In that awful moment of a nation's travail, of 
 
 * "It may not be ungratifying to hear the manner in which this 
 passage was suggested to the speaker's mind. A day or two before 
 Mr. Rowan's trial, one of Mr, Curran's friends showed him a letter 
 that he had received from Bengal, in which the writer, after men- 
 tioning the Hindoo custom of throwing the dead into the Ganges, 
 added, that he was then upon the banks of that river, and that, as 
 he wrote, he could see several bodies floating down its stream. The 
 orator, shortly after, while describing a corrupted bench, recollected 
 this fact, and applied it as above." — Life of Curran, hy his Son, vol. 
 i., p. 316. 
 
72 ME. cueban's speech on the 
 
 the last gasp of tyranny, and the first breath of 
 freedom, how pregnant is the example ! The press 
 extinguished, the people enslaved, and the prince 
 undone. As the advocate of society, therefore — 
 of peace — of domestic liberty — and the lasting 
 imion of the two countries — I conjure you to 
 guard the liberty of the press, that great sentinel 
 of the state, that grand detector of pubhc im- 
 posture; guard it, because, when it sinks, there 
 sinks with it, in one common grave, the hberty of 
 the subject, and the security of the crown. 
 
 Gentlemen, I am glad that this question has not 
 been brought forward earlier; I rejoice, for the 
 sake of the court, of the jury, and of the pubhc 
 repose, that this question has not been brought 
 forward till now. In Grreat Britain, analagous cir- 
 cumstances have taken place. At the commence- 
 ment of that unfortunate war which has deluged 
 Europe with blood, the spirit of the Enghsh people 
 was tremblingly ahve to the terror of French prin- 
 ciples; at that moment of general paroxysm, to 
 accuse was to convict. The danger looked larger 
 to the public eye, from the misty region through 
 which it was surveyed. "We measure inaccessible 
 heights by the shadows which they project, where 
 the lowness and the distance of the light form the 
 length of the shade. 
 
 There is a sort of aspiring and adventm-ous cred- 
 uhty, which diwdains assenting to obvious truths, 
 and delights in catching at the improbabiUty of 
 
TRIAL OF A. H. BOWAiT. 73 
 
 circumstances, as its best ground of faith. To wtat 
 other cause, gentlemen, can you ascribe, that in the 
 wise, the reflecting, and the pliilosophic nation of 
 Grreat Britain, a printer has been gravely found 
 guilty of a hbel, for publishing those resolutions 
 to which the present minister of that kingdom had 
 actually subscribed his name? To what other cause 
 can you ascribe, what in my mind is stiU more 
 astonishing, in such a country as Scotland — a 
 nation cast in the happy medium between the 
 spiritless acquiescence of submissive poverty, and 
 the sturdy creduhty of pampered wealth — cool 
 and ardent — adventurous and persevering — ^wing- 
 ing her eagle flight against the blaze of every 
 science, with an eye that never winks, and a wing 
 that never tires — crowned, as she is, with the spoils 
 of every art, and decked with the wreath of every 
 muse, from the deep and scrutinizing researches of 
 her Hume, to the sweet and simple, but not less 
 sublime and pathetic, morahty of her Burns — ^how, 
 from the bosom of a country like that, genius, and 
 character, and talents, should be banished to a 
 distant barbarous soil, condemned to pine under 
 the horrid communion of vulgar vice and base- 
 born profligacy, for twice the period that ordinary 
 calculation gives to the continuance of human hfe ? * 
 
 * Alluding to Scotland, where sentence of transportation for 
 fourteen years, had been passed upon Mr. Muir, Mr. Palmer, and 
 others. Becently public monuments have been erected to these 
 patriots in Edinburgh and Loudon. 
 
74 MR. ctjeean's speech on the 
 
 But I will not further press an idea that is so 
 painful to me, and I am sure must be painful to 
 you. I will only say, you have now an example, 
 of which neither England nor Scotland had the 
 advantage; you have the example of the panic, the 
 infatuation, and the contrition of both. It is now 
 for you to decide, whether you wiU profit by their 
 experience of idle panic and idle regret; or whether 
 you meanly prefer to palliate a servile imitation of 
 their frailty, by a paltry affectation of their repen- 
 tance. It is now for you to show, that you are not 
 carried away by the same hectic delusions, to acts, 
 of which no tears can wash away the fatal con- 
 sequences, or the indelible reproach. 
 
 Gentlemen, I have been warning you by in- 
 stances of public intellect suspended or obscured; 
 let me rather excite you by the example of that 
 intellect recovered and restored. In that case which 
 Mr. Attorney-Greneral has cited himself — ^I mean 
 that of the tiial of Lambert, in England — is there 
 a topic of invective against constituted authorities, 
 is there a topic of abuse against every department 
 of British government, that you do not find in the 
 most glowmg and unqualified terms in that pubhca- 
 tion, for which the printer of it was prosecuted, 
 and acquitted by an English jury? See, too, what 
 a difference there is between the case of a man 
 publishing his own opinion of facts, thinking that 
 he is bound by duty to hazard the promulgation 
 of them, and without the remotest hope of any 
 
TEIAL OF A. H. EOWAN. 75 
 
 personal advantage, and that of a man wlio makes 
 publication Ms trade. And saying this, let me not 
 be misunderstood. It is not my pro\dnce to enter 
 into any abstract defence of the opinions of any 
 man upon pubKc subjects. I do not affirmatively 
 state to you that these grievances, which this paper 
 supposes, do in fact, exist; yet I cannot but say, 
 that the movers of this prosecution have forced 
 this question upon you. Their motives and their 
 merits, Hke those of aU accusers, are put in issue 
 before you; and I need not tell you how strongly 
 the motive and merits of any informer ought to 
 influence the fate of his accusation. 
 
 I agree most implicitly with Mr. Attorney-Gen- 
 eral, that nothing can be more criminal than an 
 attempt to work a change in the government by 
 armed force; and I entreat that the court will not 
 suffer any expression of mine to be considered as 
 giving encouragement or defence to any design to 
 excite disaffection, to overawe or to overturn the 
 government. But I put my client's case upon 
 another ground: if he was led into an opinion of 
 grievances, where there were none, if he thought 
 there ought to be a reform, where none was neces- 
 sary, he is answerable only for his intention. He 
 can be answerable to you in the same way only 
 that he is answerable to that God, before whom 
 the accuser, the accused, and the judge, must 
 appear together; that is, not for the clearness of 
 his understanding, but for the purity of his heart. 
 
76 MB. cueran's speech on the 
 
 Gentlemen, Mr. Attorney-General lias said, that 
 Mr. Eowan did by this pubhcation (supposing it to 
 be his) reconunend, under the name of equahty, a 
 general indiscriminate assumption of pubhc rule, 
 by every the meanest person in the state. Low as 
 we are in point of pubhc information, there is not, 
 I beheve, any man, who thinks for a moment, that 
 does not know that aU which the great body of 
 the people of any country can have from any 
 govermnent, is a fair encouragement to their in- 
 dustry, and protection for the fruits of their labour. 
 And there is scarcely any man, I beheve, who does 
 not know, that if a people could become so silly 
 as to abandon their stations in society, under 
 pretence of governing themselves, they would 
 become the dupes and the victims of their own 
 foUy. But does this pubhcation recommend any 
 such infatuated abandonment, or any such des- 
 perate assumption? I will read the words which 
 relate to that subject — "By hberty, we never under- 
 stood unlimited freedom; nor by equahty, the 
 levelhng of property, or the destruction ol subor- 
 dination." I ask you, with what justice, upon what 
 principle of common sense, you can charge a man 
 with the pubhcation of sentiments the very reverse 
 of what his words avow, and that, when there is 
 no collateral evidence, where there is no foundation 
 whatever, save those very words, by which his 
 meaning can be ascertained? Or, if you do adopt 
 an arbitrary principle, of imputing to him your 
 
TEIAL OP A. H. EOWAN. 77 
 
 meaning, instead of his own, what publication can 
 be guiltless or safe? It is a sort of accusation that 
 I am ashamed and sorry to see introduced in a 
 court acting on the principles of the British con- 
 stitution. 
 
 In the bitterness of reproach it was said, "Out 
 of thine own mouth will I condemn thee." Prom 
 the severity of justice I demand no more. See if, 
 in the words that have been spoken, you can find 
 matter to acquit or to condemn — "By Hberty, we 
 never understood unhmited freedom; nor by equal- 
 ity, the levelling of property, or the destruction of 
 subordination. This is a calumny invented by that 
 faction, or that gang, which misrepresents the Bang 
 to the people, and the people to the King — traduces 
 one half of the nation, to cajole the other — and, 
 by keeping up distrust and division, wishes to 
 continue the proud arbitrator of the fortune and 
 fate of Ireland. Here you find that meaning, dis- 
 claimed as a calunmy, which is artfuUy imputed 
 as a crime. 
 
 I say, therefore, gentlemen of the jury, as to the 
 four parts into which the publication must be di- 
 vided, I answer thus. It calls upon the Volunteers. 
 Consider the time, the danger — the authority of 
 the prosecutors themselves for beheving that danger 
 to exist — the high character, the known modera- 
 tion, the approved loyalty of that venerable institu- 
 tion — the similarity of the circumstances between 
 the period at which they were summoned to take 
 
78 ME. cueean's speech on the 
 
 arms, and that in wMcli they have been called upon 
 to reassume them. Upon this simple ground, gen- 
 tlemen, you will decide, whether this part of the 
 pubhcation was Ubellous and criminal, or not. 
 
 As to reform, I could wish to have said nothing 
 upon it; I believe I have said enough. If Mr. Eowan, 
 in disclosing that opinion, thought the state 
 required it, he acted hke an honest man. For the 
 rectitude of the opinion he was not answerable; 
 he discharged his duty in telling the country that 
 he thought so. 
 
 As to the emancipation of the Catholics, I cannot 
 but say that Mr. Attorney-G-eneral did very wisely 
 in keeping clear of that subject. Yet, gentlemen, 
 I need not tell you how important a figure it was 
 intended to make upon the scene; though, from 
 unlucky accidents, it has become necessary to ex- 
 punge it during the rehearsal.* 
 
 Of the concluding part of this publication, the 
 convention which it recommends, I have spoken 
 already. I wish not to trouble you with saying 
 more upon it. I feel that I have already trespassed 
 much upon your patience. In truth, upon a sub- 
 ject embracing such a variety of topics, a rigid 
 observance either of conciseness or arrangement 
 could, perhaps, scarcely be expected. It is, however, 
 with pleasure I feel I am drawing to a close, and 
 that only one question remains, to which I would 
 beg your attention. 
 
 * Eeferring to the Emancipation Act of 1793. 
 
TRIAL OF A, H. KOWAN. 79 
 
 Whatever, gentlemen, may be your opinion of 
 the meaning of this pubHcation, there yet remains 
 a great point for you to decide upon: namely, 
 whether, in point of fact, this pubHcation be imput- 
 able to Mr. Rowan, or not? — whether he did 
 pubhsh it, or not? Two witnesses are called to 
 that fact — one of the name of Lyster, and the 
 other of the name of Morton. You must have ob- 
 served that Morton gave no evidence upon which 
 that paper could have even been read; he produced 
 no paper — he identified no paper — ^he said that he 
 got some paper, but that he had given it away. 
 So that, in point of law, there was no evidence 
 given by him, on which it could have gone to a 
 jury; and, therefore, it turns entirely upon the 
 evidence of the other witness. He has stated that 
 he went to a pubhc meeting, in a place where there 
 was a gallery crowded with spectators, and that 
 he there got a printed paper, the same which has 
 been read to you. I know you are well acquainted 
 with the fact, that the credit of every witness must 
 be considered by, and rest with the jury. They 
 are the sovereign judges of that; and I will not 
 insult your feehngs by insisting on the caution 
 with which you should watch the testimony of a 
 witness that seeks t6 affect the liberty, or property, 
 or character, of your fellow-citizens. Under what 
 circumstances does this evidence come before you. 
 The witness says he has got a commission in the 
 army, by the interest of a lady, from a person then 
 
80 ME. cueban's speech on the 
 
 higli in administration. He told you that lie made 
 a memorandum upon tlie back of that paper, it 
 being his general custom, when he got such papers, 
 to make an indorsement upon them — that he did 
 this from mere fancy — that he had no intention of 
 giving any evidence on the subjec'f>— he "took it 
 with no such view." There is something whimsical 
 enough in this curious story. Put his credit upon 
 the positive evidence adduced to his character. 
 Who he is I know not — ^I know not the man; but 
 his credit is impeached. Mr. Blake was called; he 
 s^id he knew him. I asked him, "Do you think, 
 sir, that Mr. Lyster is or is not a man deserving 
 credit upon his oath?" If you find a verdict of 
 conviction, it can be only upon the credit of Mr. 
 Lyster. What said Mr. Blake; Did he tell you 
 that he considered him a man to be beheved upon 
 his oath? He did not attempt to say that he did. 
 The best he could say was, that he "would hes- 
 itate." Do you beheve Blake ? Have you the same 
 opinion of Lyster's testimony that Mr. Blake has? 
 Do you know Lyster? If you do know him, and 
 know that he is credible, your knowledge should 
 not be shaken by the doubts of any man. But if 
 you do not know him, you must take his credit 
 from an unimpeached witness, swearing that he 
 would hesitate to believe him. In my mind, there 
 is a circumstance of the strongest nature that 
 came out from Lyster on the table. I am aware 
 that a most respectable man, if impeached by 
 
TEIAL OF A. H. EOWAN. 81 
 
 surprise, may not be prepared to repel a wanton 
 calumny by contrary testimony. But was Lyster 
 unapprized of this attack upon him? -What said 
 he? "I knew that you had Blake to examine 
 against me — you have brought him here for that 
 purpose." He knew the very witness that was to 
 be produced against him — he knew that his credit 
 was impeached — and yet he produced no person 
 to support that credit. What said Mr. Smyth? 
 "From my knowledge of him, I would not beheve 
 him upon his oath." 
 
 Mr. Attorney-General — I beg pardon, but I must set Mr. 
 CuEKAN right. Mr. Lyster said he had heard Blake would be 
 here, but not in time to prepare himself. 
 
 Mr. CuBRAN — But what said Mrs. Hatchell? 
 Was the production of that witness a surprise 
 upon Mr. Lyster? Her cross-examination shows 
 the fact to be the contrary. The learned counsel, 
 you see, was perfectly apprized of a chain of pri- 
 vate circumstances, to which he pointed his ques- 
 tions. This lady's daughter was married to the 
 elder brother of the witness Lyster. Did he know 
 these circumstances by inspiration? No; they could; 
 come only from Lyster himself I insist, therefore,, 
 that the gentleman knew his character was to be 
 impeached; his counsel knew it, and not a single 
 witness has been produced to support it. Then 
 consider, gentlemen, upon what ground can you 
 find a verdict of conviction against my client, when 
 the only witness produced to the fact of pubhcation. 
 
82 ME. curean's speech on the 
 
 is impeaclied, without even an attempt to defend Ms 
 character? Many hundreds, he said, were at that 
 meeting. Why not produce one of them, to swear to 
 the fact of such a meeting? One he has ventured to 
 name; but he was certainly very safe in naming a 
 person, who, he has told you, is not ui the kingdom, 
 and could not, therefore, be called to confront him. 
 Gentlemen, let me suggest another observation 
 or two, if stni you have any doubt as to the guilt 
 or umocence of the defendant. Grive me leave to 
 suggest to you what circumstances you ought to 
 consider, ia order to found your verdict. You 
 should consider the character of the person accu- 
 sed; and in this your task is easy. I will venture to 
 say, there is not a man in this nation more known 
 than the gentleman who is the subject of this pro- 
 secution; not only by the part he has taken in 
 public concerns, and which he has taken in com- 
 mon with many, but still more so, by that extra- 
 ordinary sympathy for human afEhction, which, I 
 am sorry to think, he shares with so small a 
 number. There is not a day that you hear the 
 cries of your starving manufacturers in your 
 streets, that you do not also see the advocate of 
 their sufferings — that you do not see his honest 
 and manly figure, with uncovered head, sohciting 
 for their rehef — searching the frozen heart of 
 charity for every string that can be touched by com- 
 passion, and urging the force of every argument 
 and every motive, save that which his modesty 
 
TRIAL OF A. H. EOWAN. 83 
 
 suppresses, the authority of his own generous ex- 
 ample. Or if you see him not there, you may trace 
 his steps to the private abode of disease, and 
 famine, and despair — ^the messenger of heaven, 
 bringing with him food, and medicine, and con- 
 solation. Are these the materials of which you 
 suppose anarchy and public rapine to be formed? 
 Is this the man on whom to fasten the abomiaable 
 charge of goading on a frantic populace to mutiny 
 and bloodshed? Is this the man hkely to apostatize 
 from every principle that can bind him to the 
 state — his birth, his property, his education, his 
 character, and his children? Let me tell you, gen- 
 tlemen of the jury, if you agree with his pro- 
 secutors, in thinking that there ought to be a 
 sacrifice of such a man on such an occasion — and 
 upon the credit of such evidence you are to convict 
 him — ^never did you, never can you give a sentence, 
 consigning any man to public punishment, with 
 less danger to his person or to his fame: for where 
 could the hireling be found to fling contumely or 
 ingratitude at his head, whose private distresses 
 he had not endeavoured to alleviate, or whose 
 pubhc condition he had not laboured to improve? 
 I cannot, however, avoid reverting to a circum- 
 stance that distinguishes the case of Mr. Eowan 
 from that of the late sacrifice in a neighbouring 
 kingdom.* 
 
 ♦ Scotland, from -whence Messrs. Muir, Palmer, and others were 
 transported for sedition, 
 
 6* 
 
84 ME. cueean's speech on the 
 
 The severer law of that country, it seems — and 
 happy for them that it should — enables them to 
 remove from their sight the victim of their infatua- 
 tion. The more merciful spirit of our law deprives 
 you of that consolation; his sufferings must remain 
 for ever before our eyes, a continual call upon 
 your shame and yoiu" remorse. But those suffer- 
 ings wiU. do more; they wiU not rest satisfied with 
 your unavailing contrition — they will challenge 
 the great and paramount inquest of society — ^the 
 man will be weighed against the charge, the wit- 
 ness, and the sentence — and impartial justice wOl 
 demand, why has an Irish jury done this deed? 
 The moment he ceases to be regarded as a crim- 
 inal, he becomes of necessity an accuser; and let 
 me ask you, what can your most zealous defenders 
 be prepared to answer to such a charge? When 
 your sentence shall have sent him forth to that 
 stage which guilt alone can render infamous, let 
 me teU you, he will not be like a httle statue upon 
 a mighty pedestal, diminishing by elevation; but 
 he will stand a striking and imposing object upon 
 a monument, which, if it does not (and it cannot) 
 record the atrocity of his crime, must record the 
 atrocity of his conviction. 
 
 Upon this subject, therefore, credit me when I 
 say, that I am stiU more anxious for you than I 
 can possibly be for him. I cannot but feel the 
 pecuharity of your situation. Not the jury of his 
 own choice, which the law of England allows, but 
 
TEIAI, OP A. H. EOWAN. 85 
 
 wMcli ours refuses; collected in that box by a 
 person certainly no friend to Mr. Eowan* — cer- 
 tainly not very deeply interested in giving him a 
 very impartial jury. Feeling this, as I am persuaded 
 you do, you cannot be surprised, however you 
 may be distressed, at the mournful presage with 
 which an anxious pubhc is led to fear the worst 
 from your possible determination. But I will not, 
 for the justice and honour of our common country, 
 suffer my mind to be borne away by such mel- 
 ancholy anticipation. I wiU not rehnquish the 
 confidence that this day will be the period of his 
 sufferings; and, however mercilessly he has been 
 hitherto pursued, that your verdict wiU send him 
 home to the arms of his family, and the wishes of 
 his country. But if, which heaven forbid! it hath 
 still been unfortunately determined, that because 
 he has not bent to power and authority, because 
 he would not bow down before the golden calf, 
 and worship it, he is to be bound and cast into 
 the furnace; I do trust to God, that there is a 
 redeeming spirit in the constitution, which will be 
 seen to walk with the sufferer through the flames, 
 and to preserve him unhurt by the conflagration. 
 
 Upon leaving the court, ITr. Cueran was drawn home by the 
 populace, who took the horses from his carriage. 
 
 At the close of Cukean's speech t;jtiere was another shout of 
 admiration and sympathy, which Lord Clonmel with difficulty 
 stopped. The Attorney-General (most irregularly) spoke in 
 
 * Gifford, the Sheriflf. 
 
86 MK. cueean's speech on the 
 
 defence of Hs own character, against the charge of oppressive 
 delay, and then Prime -Sergeant the Hon. James Fitzgerald 
 replied to Oueean. Lord Olonmel (Chief Justice) charged the 
 jury violently against Eowan. In this charge he used the fol- 
 lowing words, omitted in the editione of the trials, but given 
 in Curran's Memoirs, hy his Son^ vol. i., p. 347 : — 
 
 "One hundred and fifty Volunteers, or United Irishmen, and 
 not one comes forward! Many of them would have been proud 
 to assist him (the traverser). Their silence speaks a thousand 
 times more strongly than any cavilling upon this man's credit — 
 the silence of such a number is a volume of evidence in support 
 of the prosecution" 
 
 Justice (afterwards Lord) Downes also charged, and the 
 Jury, in ten minutes, found a verdict of Guilty. The following 
 scene then occurred: — 
 
 "Lord Clonmel — Do the Counsel for the defendant desire 
 four days' time to move in arrest of judgment? 
 
 "Mr. Cdeean — The only instructions I have from my client 
 are to disclaim any application of that kind; he does not wish 
 to take advantage of errors in the record, if any there be; but 
 is now ready to attend to receive what sentence the court may 
 be pleased to pronounce. 
 
 "Lord Olonmel — (After conferring with the other judges) — 
 We will not pronounce judgment till four days. Mr. Sheriff, 
 take care of your prisoner. 
 
 "The Counsel for Mr. Eowan here objected, that he was not 
 a prisoner — he had not been in custody; he had not given bail 
 upon this information; he was bound in no recognizance; was 
 served with no process; he had appeared to the information by 
 attorney; he pleaded by attorney; the issue was tried after the 
 manner of a civil action, a word merely of the record being 
 read, and the defendant was not given in charge to the jury, 
 as the practice is, where he appears in custody. Mr. Rowan 
 attended the trial, it is true, but the court had no judicial 
 cognizance of him; the information could have been tried in 
 
TEIAL OP A. H. EOWAN. 87 
 
 Hs absence; lie attended as a common auditor, and the witness 
 being called upon to point him out at the desire of the bench, 
 might have been a satisfaction to them to see that the witnesses 
 were speaking of the same person, but it was altogether unprece- 
 dented in such cases as the present. Mr. Eowah was ready for 
 sentence; he claims no indulgence, does not insist upon the 
 four-day rule; but if the court, for their own accommodation, 
 choose to defer the sentence for four days, they have no legal 
 authority for sending Mr. Rowan to prison, until sentence 
 is pronounced, or the usual and accustomed process issued 
 against him. 
 
 "Lord Clonmel — If the Attorney-General consents, I have 
 no objection. 
 
 "The Attorney-Greneral had left the court, and the Solicitor 
 for the Crown remained silent. 
 
 "Lord Clonmel — The defendant is a convict, as such he is a 
 prisoner; the law must have its course. Adjourn the court. 
 
 "Accordingly the court was adjourned. 
 
 "Mr. Rowan was conveyed to the New Prison, attended by 
 both the Sheriffs, and a formidable array of horse and foot 
 guards." — Mac Nevin's State Trials, p. 122, 
 
 February. Zrd, 1794. 
 Affidavits were read in court, to prove that one of the jury 
 was avowedly hostile. 
 
 February ith, 1794. 
 The Recorder applied to set aside the verdict given in the 
 case of Archibald Hamilton Rowan, Esq. The application was 
 grounded upon different affidavits sworn in court, charging, 
 1st — One of the jurors with a declaration against Mr. Rowan, 
 previous to trial. 2ndly— Partiality in one of the high sheriffs. 
 3rdly — That John Lyster, the principal evidence, was not to 
 be believed upon his oath; he, as the affidavits stated, having 
 been guilty of perjury. And 4thly— upon which the learned 
 gentleman rested his case — the misdirection of the court. 
 
88 ME. ctjeean's speech on the 
 
 After much discussion, Mr. Ctieean followed on the same side, 
 and said: — 
 
 It was an early idea, that a verdict in a criminal 
 case could not be set 'aside inconsuUo rege; but the 
 law had stood otherwise, without a doubt to im- 
 peach its principle, for the last two reigns. Com- 
 mon sense would say, that the discretion of the 
 court should go at least as far in criminal as in 
 civil cases, and very often to go no further would 
 be to stop far short of what was right, as in those 
 great questions where the prosecution may be con- 
 sidered either as an attempt to extinguish Hberty, 
 or as a necessary measure for the purpose of 
 repressing the virulence of pubhc licentiousness 
 and dangerous faction; where there can be no 
 alternative between guilt or martyrdom; where 
 the party prosecuted must either be considered 
 as a culprit sinking beneath the punishment of his 
 own crimes, or a victim sacrificed to the vices of 
 others. But when it clearly appears that the party 
 has fallen a prey to persecuting combination, there 
 remains but one melancholy question — how far 
 did that combination reach? 
 
 There have been two cases lately decided in 
 this very court ; the King and Pentland, where the 
 motion was made and refused; and the King and 
 Bowen, where it was granted; both of which show, 
 that captious sophistry and technical pedantry 
 have here, as well as in England, given way to 
 liberal and rational inquiry; and that the court 
 
TEIAI) OF A. H. EOWAN. 89 
 
 will not now, in their discretion, refuse a motion 
 of this kind, unless they can, at the same time, lay 
 their hands upon their hearts, and say, they beheve 
 in their consciences, that justice has been done: 
 such was the manly language of one of your lord- 
 ships [Mr. Justice Downes], and such the opinion 
 of the court on a former occasion. 
 
 He then cited 7 Modern 57, as referred to in Bacon tit. Trial, 
 to show, that where there was good ground of challenge to a 
 juror, not known at the trial, it was sufficient cause for setting 
 aside the verdict. 
 
 In England they have a particular act of par- 
 liament, entitling the party to strike a special jury 
 to try the fact, and then he has time between the 
 striking and the trial to question the propriety of 
 that jury; here my chent had no information, till 
 the instant of trial, who his jurors were to be. 
 
 There are certain indulgences granted at times, 
 perhaps by the connivance of humanity, which 
 men who are not entitled to demand them in an 
 open court, obtain, nevertheless, by sidelong means; 
 and perhaps the httle breach which affords that 
 hght to the mind of the man accused, is a circum- 
 stance concerning which the court would feel pain, 
 even if called upon to say, that it should in all 
 cases be prevented; but to overturn principles and 
 authorities, for the purpose of oppressing the sub- 
 ject, is what this court will never do. 
 
 The first of the affidavits I shall consider, is that 
 of the traverser. I do not recollect whether it 
 
90 ME. curran's speech on the 
 
 states the sheriff, in avowed terms, to be an emiss- 
 ary or a hireling agent of the castle, therefore 
 I do not state it from the affidavit; but he swears 
 that he does believe that he did labour to bring 
 into the box a jury full of prejudices, and of the 
 blackest impressions; instead of having, as they 
 ought, fair and impartial minds, and souls like 
 white paper. 
 
 This sheriff now stands in court; he might have 
 denied it, if he would, he had an opportunity of 
 answering it ; but he has left it an undenied asser- 
 tion—he was not certainly obliged to answer it; 
 for no man is bound to convict himself. But there 
 is a part of that charge which amounts at least to 
 this: — "Your heart was poisoned against me, and 
 you collected those to be my judges, who, if they 
 could not be under the dominion of bad disposi- 
 tions, might be, at least, the dupes of good." The 
 most favourable thing that can be said is this, you 
 sought to bring against me honest prejudices, but 
 you brought against me wicked ones. The very 
 general charge that he sought for persons who, 
 he knew, were most likely to bring prejudices with 
 them into the jury box, is a part of the affidavit 
 that it was incumbent on him to answer if he could. 
 
 I do not contend, that what is charged in the 
 affidavit would have been a ground of principal 
 challenge to the array; but I hold it to be the 
 better opinion, that a challenge to the array for 
 favour does well lie in the mouth of the defendant. 
 
TRIAL or A. H. BOWAIf. 91 
 
 The ancient notion was, you shall not challenge 
 the array for favour, where the King is a party; 
 the King only can challenge for favour; for the 
 priaciple was, that every man ought to be favour- 
 able to the crown; but, thank God, the advance- 
 ment of legal knowledge, and the growing under- 
 standing of the age, have dissipated such illiberal 
 and mischievous conceptions. 
 
 But I am putting too much stress upon such 
 technical, discarded, and antiquated scruples. The 
 true question has been already stated from the 
 authority of Mr. Justice Downes, and that ques- 
 tion is — "Has justice been done?" 
 
 It is a matter upon which scarce any under- 
 standing would condescend to hesitate, whether a 
 man had been fairly tried, whose triors had been 
 collected together by an avowed enemy, whose 
 conduct had been such as to leave no doubt that 
 he had purposely brought prejudiced men into 
 the box. 
 
 In every country where freedom obtains, there 
 must subsist parties. In this country, and Great 
 Britain, I trust there never wUl be a time when 
 there shall not be men found zealous for the actual 
 government of the day. So, on the other hand, I 
 trust there will never be a time, when there wiU 
 not be found men zealous and enthusiastic in the 
 cause of popular freedom, and of the pubhc rights. 
 If, therefore, a person in public office suffers his 
 own prejudices, however honestly anxious he may 
 
92 jiE. cxjeean's speech on the 
 
 be for a prosecution carried on by those to whom 
 be is attached, to influence him so far as to choose 
 men, to his knowledge devoted to the principles 
 he espouses, it is an error which a High Court of 
 Judicature, seeking to do right justice, wiU not 
 fail to correct. 
 
 A sheriff, in such a case, might not have per- 
 ceived the partiality of his conduct, because he was 
 surveying through the medium of prejudice and 
 habitual corruption; but it is impossible to think 
 that this sheriff meant to be impartial; it is an 
 interpretation more favourable than his conduct 
 wUl allow of; if he deserves any credit at all, it is 
 for not answering the charge made against him; 
 at the same time, that, by not answering it, he has 
 left imimpeached the credit of the charge itself. 
 
 The sheriff here tendered some form of an affidavit, which 
 the court would not allow to be sworn or read, for the same 
 reason, that those sworn and tendered by the defendant's 
 counsel, had been before refused. Mr. Cubeajt, however, con- 
 sented to its being sworn and read, which the Attorney-General 
 declined, being unacquainted with the contents, and unin- 
 Btructed as to its tendency; it, therefore, was not sworn. 
 
 Mr. OuEEAN proceeded — ^Is this, then, the way 
 to meet a fair application to the court, to see 
 whether justice has been done between the sub- 
 ject and the crown? I offer it again, let the affida- 
 vit be read. And let me remind the court, that 
 the great reason for sending a cause back to a 
 jury is, that new light must be shed upon it; and 
 
TEIAIi or A. H. KOWAN. 93 
 
 how must your lordships feel, when you see that 
 indulgence granted to the conscience of the jury 
 denied to the court? 
 
 Mr. Attorney- General — I am concerned that any lawyer 
 should make a proposition in the manner Mr. Cukean has 
 done; he proposes to have an affidavit read, provided we con- 
 sent that others, which the court have already refused, should 
 be now read.* I did not hear it offered; but is it to be presumed 
 that I will consent to have an affidavit read, about which I 
 know nothing? Yesterday, without any communication with a 
 human being, I did say, that I conceived it unnecessary to 
 answer any of the affidavits, thinking that they were not suffi- 
 cient to ground the application made to the court. And it is 
 presumed I am so mad as to consent to the reading of affidavits 
 which I have not seen. 
 
 Some altercation here took place, when Lord Clonmel, Chief 
 Justice, interposed, and said, that the counsel had certainly a 
 right to argue it on the ground that the sheriff was biassed, 
 and did return a jury prejudiced against the traverser. 
 
 Mr. CuREAN was about to observe upon the expression of one 
 of the jury, sworn to in another affidavit, "that there would be 
 no safety in the country, until the defendant was either hanged 
 or banished," when it was asked by the court, whether the time 
 of its coming to the knowledge of the traverser, that the sheriff 
 was biassed, was stated in his affidavit? 
 
 Mr. CuBEAKT — ^He was in prison, and could not 
 have the attendance of those counsel whose assist- 
 ance he had in court; and, besides, from the natiu-e 
 of the circumstances, it was impossible he could 
 
 * Mr. Attorney-Q-eneral, it may be proper to observe, mistook 
 Mr. Curran's proposal, which was an unqualified offer to have 
 Mr. Grifford's affidavit read. 
 
94 MR. cubkan's speech on the 
 
 have been sufficiently apprized of its consequences, 
 for lie saw not that panel till the day of the trial, 
 when he could not have had time to make any 
 inquiry into the characters, dispositions, or con- 
 nexions of the jury. 
 
 If triors had been appointed to determine the 
 issue, favourable or not, what would have been 
 their fiinding? Could they say upon their oaths, 
 that he was not unfavourable to that party against 
 whom he could make such a declaration? 
 
 Favour is not cause of principal challenge, which, 
 if put upon a pleading, would conclude the party. 
 Favour is that which makes the man, in vulgar 
 parlance, unfit to try the question. And as to the 
 time these facts came to his knowledge, he has 
 sworn that he was utterly ignorant of them at the 
 time of his coming into court to take his trial. 
 
 I will not glance at the character of any absent 
 noble person, high in office; but let it be remem- 
 bered, that it is a government prosecution, and 
 that the witness has, from a low and handicap 
 situation, scraped himself into preferment, per- 
 haps — for I will put the best construction upon 
 it — ^by offering himself as a man honestly anxious 
 for the welfare of his country; in short, it is too 
 obvious to require any comment, what the nature 
 of the whole transaction has been, that he got his 
 commission as a compensation j^o tabore inipen- 
 dendo, and came afterwards into court, to pay 
 down the stipulated purchase. 
 
TEIAL OP A. H. ROWAN. 95 
 
 Had this then been an unbiassed jury, was there 
 not something in all these circumstances, that 
 might have afforded more dehberation than that 
 of one minute per man, for only so long was the 
 jury out? and, had this been a fair witness, would 
 he have lain down under a charge which, if true, 
 ought not only to damn this verdict, but his char- 
 acter for ever? What would a corps of brother- 
 officers think of a person, charged upon oath with 
 the commission of two wilful perjuries, and that 
 charge remaining undenied? Here is an undenied 
 charge, in point of fact; and although I do not 
 call upon the court to say, that this is a guilty 
 and abominable person, yet surely the suspicion is 
 strongly so, and must be considered. This was at 
 least a verdict where the evidence went to the 
 jury, under shghter blemishes than it will if my 
 chent has the advantage of another trial; for then 
 he will put it out of the .power of man to doubt, 
 that this witness has been perjured — this witness, 
 who has had notice both here and at the trial, of 
 the aspersions on his character, and yet has not 
 called a human being to say that he entertaiaed a 
 contrary opinion of him. 
 
 Was he known anywhere? Did he crawl unob- 
 served to the castle? Was it without the aid or 
 knowledge of any body that that gaudy plumage 
 grew on him, in which he appeared in court? If 
 he was known for any thing else than what he is 
 stated to be, it was, upon that day, almost a 
 
96 MB. cueean's speech on the 
 
 physical impossibility, in a court-house, which almost 
 contained the country, not to have found some per- 
 son, to give some sort of testimony, respecting his 
 general character. For though no man is bound 
 to be ready at aU times to answer particular char- 
 ges, yet every man is supposed to come with his 
 pubhc attestation of common and general probity. 
 But he has left that character, upon the merits of 
 which my cHent is convicted, unsupported, even 
 by his own poor corporal swearing. You are called 
 upon, then, to say, whether, upon the evidence of 
 a being of this kind, such a man as that is to be 
 convicted, and sentenced to punishment, in a 
 country where humanity is the leading feature 
 even of the criminal law. 
 
 I have now to deal with the evidence of the 
 second witness. A man coming to support the 
 credit of another collaterally, is himself particu- 
 larly pledged; then, what was his testimony? He 
 did not know whether Mr. Grifford was concerned 
 in the newspaper! And now, you have the silence 
 of Gilford himself, in not answering Mr. Eowan's 
 affidavit, to contradict that. And next, he did 
 not know whether his own cousua-german Avas the 
 relation of their common uncle! I call upon you, 
 my lords, in the name of sacred justice and your 
 country to declare whether the melancholy scenes 
 and murderous plots of the Meal-tub and the Rye- 
 house are to be acted over again; and Avhether 
 every Titus Gates that can be found is to be called 
 
.TEIAL OP A. H. EOWAN. 97 
 
 'into your, courts, as the common voucliee of base 
 and perjured accusation. 
 
 I also conceive,: my lords, that the direction of 
 the court was not agreeable to the law of Ireland. 
 The defence of my client was rested upon this; 
 that there was no evidence of the fact of pubhca- 
 tion; up on the incredibility of the fact; and the 
 circumstances of discredit in the character of the 
 witness: yet the court made this observation: 
 "Grentlemen, it scarcely lies in the mouth of Mr. 
 Rowan to build a defence upon objections of this 
 kind to the . characters of witnesses, because the 
 fact was public; there were many there; the room 
 was crowded below, the gallery was crowded 
 above; and the pubhcity of the fact enabled him to 
 produce a number of witnesses to falsify the asser- 
 tion of the prosecutor, if, in fact, it could be falsi- 
 fied!" Is that the principle of criminal law? Is it a 
 pa.rt of the British law, that the fate of the accused 
 shall abide, not the positive estabhshment of guilt 
 by the prosecutor, but the negative proof of inno- 
 cence by himself? Why has it been said in foolish old 
 books, that the law supposes the innocence of every 
 man, tiU the contrary is proved? How has it hap- 
 pened that that language has been admired for its 
 humanity, and not laughed at for its absurdity, in 
 which the prayers of the court are addressed' to 
 heaven, for the safe deUverance of the man accused? 
 How comes it that so much public time is wasted in 
 going into evidence of guilt, if the bare accusation 
 
98 ME. ctjeean's speech on the 
 
 of a man did call upon him to go into evidence of 
 his innocence? The force of the observation is this. 
 Mr. Eowan impeaches the credit of a witness, -who 
 has sworn that he saw him present, and doing cer- 
 tain acts, at a certain meeting; but it is asked, has 
 he substantiated that discredit, by calling aU the 
 persons who were present to prove his absence 
 from that meeting, which is only stated to have 
 existed by a witness whom he alleges to have per- 
 jured himself? I call upon the example of judicial 
 character; upon the faith of that high office, which 
 is never so dignified as when it sees its errors and 
 corrects them, to say, that the court was for a 
 moment led away, so as to argue from the most 
 seductive of all sophisms, that of the pet'itio 2)rm cipii. 
 See what meaning is to be gathered from such 
 •words: we say the whole that this man has sworn, 
 is a consummate lie; show it to be so, says the 
 court, by admitting a part of it to be true. It is a 
 false swearing; it is a conspiracy of two witnesses 
 against this defendant; well, then, it Hes upon him 
 to rebut their testimony, by proving a great deal 
 of it to be true! Is conjecture, then, in criminal 
 cases, to stand in the place of truth and demon- 
 stration? "Why were not some of those (I will strip 
 the case of the honour of names wliich I respect), 
 but why were not some of those, who laiew that 
 these two persons were to be brought forward, 
 and that there were to be objections to their 
 credit, if, as it is stated, it happened in the presence 
 
TEIAL OE A. H. EOWAN. 99 
 
 of a public crowd, rushing in from motives of 
 curiosity, why were not numbers called on to 
 establish that fact? On the contrary, the court 
 have said to this effect: Mr. Eowan, you say you 
 were not there; produce any of those persons with 
 whom you were there, to swear you were not 
 there! You say it was a perjury; if so, produce 
 the people, that he has perjured himself in swear- 
 ing to have been there! But as to your oajvti being 
 there, you can easily show the contrary of that, 
 by producing some man that you saw there! You 
 say you were not there? Yes. There were one 
 hundred and fifty persons there: now produce any 
 one of those to swear they saw you there! 
 
 It is impossible for the human mind to suppose 
 a case, in which infatuation must have prevailed 
 in a more progressive degree, than when a jury 
 are thus, in fact, directed to receive no refutation 
 nor proof of the perjury of the witness, but only 
 of his truth. We will permit you to deny the 
 charge, by establishing the fact: we will permit 
 you to prove that they swore falsely to yoixr being 
 there, by producing another witness to prove to a 
 certainty that you were there. 
 
 Mr. OuBBAN was here interrupted by Lord Chief Justice 
 Clonmel. 
 
 Lord Clonmel — The reasoning of the court was strong upon 
 that point: this is a transaction stated by the witness to have 
 happened in open day, in a crowded assembly, in the capital, 
 amidst a number of persons dressed in the uniform of Hamilton 
 Eowan. There has been nothing suddenly brought forward 
 
 7* 
 
100 ■ MB. cuhean's speech on "the 
 
 to surprise the traverser; yet what has he done? Did he offer, 
 as in the common course, to prove an alibi? It is stated to be 
 at such a day, the witness swears at such an hour; the place is 
 sworn to have been full of people, of Mr. Eowan's friends; but 
 if there was even a partial assembly, it would be easy still to 
 produce some one of those persons who were present, to say, 
 that the fact did not happen which has been sworn to ; or if you 
 say Mr. Eowan was not there, it is easier still to prove it, by 
 showing where he was; as thus: I breakfasted with him, I dined 
 with him, I supped with him; he was with me, he was not at 
 Purdon's; disprove that assertion, by proving an affirmation 
 inconsistent with it. 
 
 Mr. CuEBAN — ^I beg leave to remind the court 
 of what fell from it. "He may caU," said the com-t, 
 "any of those persons; he has not produced one 
 of them*" upon this, I think, a most material point 
 doeshang. , "He might have called them, for they 
 "were aU of his own party." 
 
 Lord Clonmel — That is, if there were such persons there; or 
 if there was no meeting at all, he might have proved that. 
 
 Mr. CuEEAN' — There was no such idea put to 
 the jury, as whether there was a meeting or not: 
 it was said they were all of his party, he might 
 have produced them; and the non-production of 
 them was a "volume of evidence" upon that point. 
 No refinement can avoid this conclusion, that even 
 as your lordship now states the charge, the fate 
 of the man must depend upon proving the negative. 
 
 Until the credit of the witness was estabhshed, 
 he could not be called upon to bring any contrary 
 evidence. What does the duty of every counsel 
 
teial.op:a.,h;eowan. . 101 
 
 dictate to. Mm, < if. the. case is .not made out by his 
 adversary .or, prosecutor?, Let it rest; the court is 
 bound.to. tell, the. jury so, and the jury are bound 
 to ; find ' him .not . guilty, t. It is a most unshaken 
 maxim, that nemo'.teneturprodere seipsum. And it 
 would indeed. be,. a very inquisitorial exercise of 
 power, to. call upon a. man to run the risk of con- 
 firming .the. charge, under the penalty of being 
 convicted by nil dicit. Surely, at the criminal side 
 ofthis court,' as yet, there has been no such judg- 
 ment pronounced. It is only when the party stands 
 mute ..from mahce, that such extremes can be 
 resorted: to. I never before heard an intimation 
 from, any judge to a jury, that bad evidence, Kable 
 to any , and . every exception, ought to receive a 
 sanction from the silence of the party. The sub- 
 stance of the charge was neither more nor less 
 than this: that the falsehood of the evidence shall 
 receive support and credit from the silence of the 
 man accused. "With anxiety for the honour and 
 rehgion of the law, I demand it of you, must not 
 the jury have understood that this silence was 
 evidence to go to them? is the meaning contained 
 in the expression, "a volume of evidence," only 
 insinuation? I do not know where any man could 
 be safe; I do not know what any man could do to 
 screen himself from prosecution; I know not how 
 he could be sure, even when he was at his prayers 
 before the throne of heaven, that he was not pass- 
 ing that moment of his hfe, on which he was to 
 
102 MB, cuhean's speech on the 
 
 be charged with the commission of some crime, 
 to be expiated to society by the forfeiture of his 
 liberty or of his hfe; I do not know what shall 
 become of the subject, if a jury are to be told that 
 the silence of the man charged is a "volume of 
 evidence" that he is guilty of the crime: where is 
 it written? I know there is a place where vulgar 
 frenzy cries out, that the public instrument must 
 be drenched in blood; where defence is gagged, 
 and the devoted wretch must perish. But even 
 there, the victim of such tyranny is not made to 
 fill, by voluntary silence, the defects of his accusa- 
 tion; for his tongue is tied, and therefore no advan- 
 tage is taken of him by construction; it cannot be 
 there said that his not speaking is a volume of 
 evidence to prove his guilt. 
 
 But to avoid all misunderstanding, see what is 
 the force of my objection: is it, that the charge of 
 the court cannot receive a practicable interpreta- 
 tion, that may not terrify men's minds with ideas 
 such as I have presented? No; I am saying no 
 such thing: I have lived too long, and observed 
 too much, not to know, that every word in a 
 phrase is one of the feet upon which it runs, and 
 how the shortening or lengthening of one of those 
 feet will alter the progress or direction of its 
 motion. I am not arguing that the charge of the 
 court caimot by any possibility be reconciled to 
 the principles of law; I am agitating a more im- 
 portant question; I am putting it to the conscience 
 
TBIAIi OP A. H. EOWAN. , 103 
 
 of the court, whether a jury may not have prob- 
 ably collected the same meaning from it which I 
 have af&xed to it; and whether there ought not to 
 have been a volume of explanation, to do away 
 the fatal consequences of such mistake. 
 
 On what sort of a case am I now speaking; on 
 one of that kiud with which it is known the pubhc 
 heart has been beating for many months; which, 
 from a single being in. society, has scarcely received 
 a cool or tranquU examination. I am making that 
 sort of application which the expansion of liberal 
 reason and the decay of technical bigotry have 
 made a favoured appHcation. 
 
 In earUer times, it might have been thought 
 sacrilege to have meddled with a verdict once 
 pronounced; since then, the true principles of 
 justice have been better understood; so that now, 
 the whole wisdom of the whole court will have an 
 opportunity of looking over that verdict, and set- 
 ting right the mistake which has occasioned it. 
 
 Mr. CuKBAN made other observations, as well in corrol)oration 
 of his own remarks, as in answer to the opposite counsel, of 
 which it is impossible to give an exact detail, and concluded: — 
 
 You are standing on the scanty isthmus that 
 divides the great ocean of duration, on one side of 
 the past, on the other of the future; a ground that, 
 while you yet hear me, is washed from beneath our 
 feet. Let me remind you, my lords, whUe your 
 determination is yet in your power, "Dwn versatur 
 adhuc intra penetralia Vestce," that on that ocean 
 
104 ME. CUEEAif's SPEECH ON THE 
 
 of future you must set your judgment afloat.: Arid 
 future ages will assume the same autliority wMcli 
 you tave assumed; posterity feelthe same; emo- 
 tions whicli you have felt, when your Little hearts 
 have beaten, and your infant eyes have overflowed, 
 at reading the , sad history of the sufferings of a 
 Russell or a Sidney. 
 
 Similar applause followed this speecli. On the 5th the crown 
 counsel argued at much length against the application, and on 
 the 7th Clonmel and Boyd gave judgment against it; and then 
 Boyd sentenced Rowan to a fine of SSOO, and two years' im- 
 prisonment, from the 29th of January, 1794, and to find security, 
 himself in Sg2,000, and two sureties in ^1,000 each. Kowan 
 escaped, and went to Prance.* 
 
 • See Mac Nevin's State Trials, Madden's United Irislimen, and 
 Eowan's Autobiography, edited ty Dr. Drummond. 
 
DRGGHEDA DEFENDERS. 
 
 SPEiNe Assizes, DsoaHBDA, Apkil 23Kr, 1794, 
 
 ■ The Lords' Committee of 1793 thus describes the Defen- 
 ders: — . _ • , 
 
 "The people at this time called Defenders are very different 
 from those who originally assumed that appellation, and are 
 all, as far as, the Committee could discover,' of the Koman 
 Catholic persuasion; in general poor ignorant .labouring men, 
 sworn to secrecy, and impressed with an opinion that they are 
 assisting . the , Catholic cause;., in other., respects they do not 
 appear to have any distinct particular object in view, but they 
 talk of being relieved from hearth-money, tithes, county cesses, 
 and of lowering their rents. They first appeared in the county 
 of Louth in considerable bodies in April last; several of them 
 were armed; they assembled mostly in the night, and forced 
 into the houses of Protestants, and took from them their arms. 
 The disorders soon spread through , the , counties of Meath, 
 Cavan, Monaghan, and other parts adjacent; at first they took 
 nothing but arms, but afterwards they plundered the houses 
 of every thing they could find." i , 
 
 Premising that the Protestants were the rich class in these 
 districts, we feel no difficulty in recognizing the same griev- 
 ances and consequent outrages which have existed in Munster 
 from the beginning of the last century to this day; but the 
 Secret Committee tried to connect them with Catholic gen- 
 tlemen, and the crown prosecutors tried to trace them to 
 United Irish organization,* and French gold. 
 
 * See Mac Kevin's State Trials and Madden's United Irishmen. 
 
106 ME. cueean's speech on the 
 
 On Monday, the 21st of April 1794, Eoger Hamill, James 
 Bird, Casimir Delahoyde, Patrick Kenny, Matthew Read, 
 Bartholome-w "Walsh, and Patrick Tiernan were put to the 
 Bar and arraigned, before the Honourable Mr. Justice Downes, 
 one of the Judges of his Majesty's Court of King's Bench, upon 
 the following indictment. 
 
 County of the town of ] The Jurors for our Lord the King, 
 
 Drogheda, to wit. > upon their oath say and present that 
 
 I Patrick Kenny, of Drogheda, yeoman, 
 
 Matthew Read of the same, yeoman, Bartholomew Walsh of 
 the same, yeoman, Patrick Tiernan, of Turfeckan, in the county 
 of Louth, yeoman, Roger Hamill, James Bird and Casimir 
 Delahoyde, all of Drogheda, in the county of the town of 
 Drogheda, merchants, being wicked, seditious, and evil-minded 
 persons, and of wicked and turbulent dispositions, and contriv- 
 ing, designing, and intending unlawfully, unjustly, maliciously, 
 turbulently and seditiously, the peace of our said Lord the 
 King and the common tranquillity of this his realm of Ireland 
 to disquiet, molest, and disturb, and, as far as in them lay, to 
 stir up, cause, incite and procure sedition, insurrection, and 
 reljellion within this realm, and to bring the government of 
 our said Lord the King within this realm into manifest danger, 
 on the 14th day of December, in the thirty-third year of the 
 reign of our sovereign Lord George the Third, King of Great 
 Britain and soforth, at Drogheda, in the county of the town 
 of Drogheda, and on divers other days and times, as well before 
 as after, with force and arms their aforesaid wicked, malignant, 
 and seditious purposes and designs to fulfil and effect, did then 
 and there together with divers other wicked, seditious, and 
 ill-minded persons to the jurors of our Lord the King at present 
 unknown, meet, assemble, agree, conspire, confederate and treat 
 of and about the accomplishing and effecting of their aforesaid 
 malignant and seditious purposes and designs, and of, for, and 
 about causing, procuring, inciting and effecting an insurrection 
 and rebellion within the realm of Ireland; and for, about, and 
 
TEIAL OF THE DEOGHEDA DEFENDEES. 107 
 
 concerning the raising, providing, and procuring of arms and 
 armed men to be ready and prepared in different places within 
 this realm, their aforesaid wicked, malignant, seditious, and 
 rebellious designs and purposes to effect, accomplish and fulfil, 
 in contempt of the laws of this realm, to the evil example of 
 all others in the like case offending, and contrary to the peace 
 of our said Lord the King, his crown and dignity. 
 
 And the jurors of our Lord the king, do further present and 
 say, that the said Patrick Kenny, Matthew Read, Bartholomew 
 "Walsh, and Patrick Tiernan, James Bird, Roger Hamill, and 
 Casimir Delahoyde, being such wicked, ill-minded, and seditious 
 persons as aforesaid, and wickedly, factiously, and seditiously, 
 contriving and intending the peace of our said Lord the King, 
 and the common tranquillity of this his realm of Ireland to 
 molest, disquiet, and disturb, and to cause and incite a wicked 
 rebellion within this realm, and the laws and government of 
 our said Lord the King to bring into danger, on the sqid 1 4th 
 day of December, in the said thirty-third year of the reign of 
 our said Lord the King, and at divers other days and times, 
 as well before as after, at Drogheda aforesaid, in the county of 
 the said town of Drogheda aforesaid, with force and arms, did 
 then and there wickedly, factiously, seditiously and contemp- 
 tuously meet, associate, consult, conspire, confederate and 
 agree together, and to and with divers other wicked and ill- 
 disposed persons to the jurors aforesaid at present unknown, 
 of, for, concerning, and about the raising, causing, and levying 
 of insurrection, rebellion, and war against our said Lord the 
 King, within this his realm of Ireland; and of, for, concerning, 
 and about the procuring and providing of arms and armed 
 men, to be prepared within this realm, their aforesaid wicked, 
 malignant, and diabolical designs and purposes aforesaid to 
 accomplish and effect; in contempt of the laws of this realm, 
 and to the evil example of all others in the like case offending, 
 and contrary to the peace of our said Lord the King, his crown 
 and dignity. 
 
108 ME. cubban's speech on the 
 
 To this indictment the accused traversed, and the court' 
 ordered their trial for the following day. , ' ' . 
 
 On "Wednesday, the 2 3rd of April, 1794, the several traversers 
 before mentioned were again put to the bar, in order of trial, i 
 
 After several witnesses were examined, Odbean said: — , 
 
 Being counsel for the. traversers, Mr. Bird, Mr. 
 Hamill, and Mr. Delahoyde, now on trial, I find it 
 necessary, without proceeding further, to offer to 
 your lordships and this very respectable jury, some 
 general observations on the extraordinary case of 
 my chents, and the singular preposterousness of 
 the charges in this accusation, as laid before you 
 in evidence. 
 
 It is an accusation, that, of its nature, must in- 
 volve a black degree of enormity in any country.' 
 It implies a criminal intention, that if carried into 
 effect must loosen every bond of society, and plunge 
 that country which should unhappily be the theatre 
 of such atrocity, into, the most inconceivable state 
 of calamity and wretchedness, no matter how rich 
 and prosperous might be its previous condition. 
 The existence of a state is like the existence of 
 life in man; and to take existence from the poh- 
 tical body is similar to taking the hfe of an indivi- 
 dual; with this difference, that the consequence of 
 the one is so vastly superior to that of the other, 
 that to determine the proportionate criminahty, 
 would be as visionary as impossible. 
 
 The charge against my clients is, that they are 
 enemies to their country and its government; that 
 
TRIAL OF THE DEOGHBDA BEFENDEES, 109 
 
 'they are adverse to its settlement, its peace, and 
 its prosperity: that they have formed plans to 
 spread general discontent, confusion and divisions, 
 for the purpose of destroying the advantages 
 derived to the nation from a state of weU-ordered 
 tranquillity; and that, for carrying such an ab- 
 ominable project' into execution, they . have em- 
 ployed for their agents, the greatest miscreants 
 in society! 
 
 It is that sort of guUt that, at countenancing 
 "which, every man of character and sensibility must 
 recoil. But it is for you, gentlemen, to consider, 
 that an offence of such great enormity is not hghtly 
 to be beheved, and requires to be proved by the 
 strongest evidence. ' ' 
 
 It is not my intention at present to enter into 
 any very minute observations on the evidence 
 which has been this day laid before you; if that 
 shall be necessary, one of the learned gentlemen 
 here will do so. ' 
 
 There are few general circumstances upon which 
 to observe, from the facts related in evidence. The 
 state of the. country, for some time past, and parti- 
 cularly the state of that body of your fellow-sub- 
 jects against whom suspicion and calumny seem to 
 have been . directed, are circumstances that must 
 here be observed upon, and cannot fail of exciting 
 in your minds some of the tenderestfeehngs. 
 
 In last year's parhament,' one of the most glorious 
 triumphs that ever : this country witnessed,' was 
 
110 MB. CUBBAn's speech ON THE 
 
 obtained by that body, over tbe blackest prejudice 
 and injustice, exasperated by imaginary wrongs. 
 That fatal disunion, from which for centuries great 
 individual calamity and pubhc disquietude had 
 arisen, had the axe laid to its root by the senate 
 of the nation. And there was no good man in the 
 community, that did not look to the consequences 
 of it to be the security of the peace, industry, and 
 happiness of the country, and an exemption from 
 the calamities of the nations around us. Upon 
 such a great occasion, there must necessarily be 
 diversity of opinions; but I am sorry to say, that 
 prejudices are not yet removed from persons of a 
 lower description. 
 
 There was, at that time, an obloquy thrown out 
 against the Committee of our CathoHc brethren 
 sitting at Dublin; but I speak in the presence of 
 a Protestant jury and a Protestant judge, and I 
 say that in history there is no example of any such 
 proceeding being carried on with more decorous 
 tranquillity and strictly legal propriety. Their 
 orderly, decent, and respectful perseverance was 
 crowned with that success, which, it was imagined, 
 would confer happiness on themselves, and on those 
 that were to come after them. It was expected 
 the disturbances which had been occasioned by a 
 ruinous system of law would be done away; and 
 that there would be a coalition of all parties, 
 formed into one united phalanx, and feehng that 
 their country could never be prosperous and happy, 
 
TEIAL OF THE DROGHEDA DEFENDERS. Ill 
 
 "witliout a general participation of freedom to all 
 its people. 
 
 A privileged order in a state may, in some sort, 
 be compared to a solitary individual separated 
 from the society, and unaided by the reciprocal 
 converse, affections or support of his feUow-men. 
 It is like a tree standing singly on a high hill, and 
 exposed to the rude concussions of every varying 
 blast, devoid of fruit or foliage. If you plant trees 
 around it to shade it from the inclemency of the 
 blighting tempest, and secure to it its adequate 
 supply of sun and moisture, it quickly assumes aU 
 the luxuriance of vegetation, and proudly rears 
 its head aloft, fortified against the noxious gales 
 which agitate and wither the unprotected bram- 
 bles lying without the verge of the plantation. 
 
 Upon this principle acted the dying man whose 
 family had been disturbed by domestic contentions. 
 Upon his death-bed he calls his children around 
 him; he orders a bundle of twigs to be brought; 
 he has them untied; he gives to each of them a 
 single twig; he orders them to be broken — and it 
 is done with facility. He next orders the twigs to 
 be united in a bundle, and orders each of them to 
 try their strength upon it. They shrink from the 
 task as impossible. Thus, my children, continued 
 the old man, it is union alone that can render you 
 secure against the attempts of your enemies, and 
 preserve you in that state of happiness which I 
 wish you to enjoy. 
 
112 MR. cueban's speech on the 
 
 ■ Sucli. should be tlie effects of the liberty con- 
 ferred by the act of the last session of parhament; 
 ,,and such I'beheve they would be, if not for the 
 misconceptions of a lower description of people, 
 who may. have imagined that a more respectable 
 .order of persons had the same passions and dis- 
 positions as . themselves. I cannot attribute the 
 accusation altogether to the irregular proceedings 
 going forward for. some time in this part of the 
 . country, but rather to vague charges, which I have 
 read with concern, brought against a description 
 of persons, the calamities of whose ancestors must 
 have pecuharly influenced to a demeanour directly 
 the contrary. 
 
 However ruinous .the charges against the ia- 
 dividuals may be, 'that alone does not terminate 
 the mischief These reports will go abroad — they 
 .will be carried to the seat of government; and it 
 is impossible to say what impressions may be made 
 there to the disadvantage of a great portion of our 
 countrymen. But' would to God the powers ia 
 England were present this day, to hear the charges 
 made agaiast a respectable body of persons, and 
 the manner ia which they have been attempted to 
 be proved. 
 
 It belongs to me to speak only of three persons — 
 Mr. Bird, Mr. HamiU, and Mr. Delahoyde. It is not 
 the unhoused villain and profligate vagabond upon 
 whom you sit in judgment. It is the opulent and 
 respectable merchant — ^the man who owes every 
 
TRIAL OF THE DEOGHEDA DEFENDERS. 113 
 
 tMng to his public character. This is the descrip- 
 tion of men to be tried. 
 
 It cannot possibly be imagined, that the plan 
 had been formed to excite previous prejudices ia 
 their favour. If it was, the manner of their arrest 
 and subsequent treatment shows them to have been 
 much disappointed. Mr. Bird was taken out of 
 his bed at eleven o'clock at night, and brought to 
 the capital under a mihtary guard, after a very 
 uncomfortable imprisonment of one night iu the 
 Town-house. He was not indulged in the common 
 decencies of imprisonment — nof suffered to enjoy 
 the visits of his friends! — an indulgence permitted 
 to the most flagitious criminals however low the 
 description. Pen and ink were denied him; and 
 he was brought to the capital, and there lodged 
 among the vilest malefactors. He applied to the 
 court of King's Bench to be admitted to bail, 
 fancying from his character he would be admitted. 
 That was denied him. From this, it might be 
 imagined that there was some respectable witness 
 or prosecutor of character to criminate him. You 
 have all seen and heard them. 
 
 I certainly consider, that when crimes of this 
 kind are committed, it must be necessary that 
 some of the parties concerned should turn ap- 
 prover. I am well aware, that to shut out such 
 from examination, would be to stop public justice ; 
 but yet, I did imagine, that in the present case 
 some respectable witness would come forward to 
 
114 MB. cueean's speech on the 
 
 disclose the turpitude of the offence. To support the 
 enormous charges in the indictment, one Murphy- 
 has been produced. But, as gentlemen who are 
 chosen to decide on a matter, upon the issue of 
 ■which the safety of a great part of the population 
 of Ireland depends, I ask you, is there safety for 
 the hfe of any man, if the testimony of such a 
 witness has weight in a court of justice ? Upon 
 his examination he declared to the learned judge, 
 that he had been examined before at Dundalk, 
 and ackaowledged that there the jury showed no 
 respect to his evidence, and, therefore, he did not 
 wish to be examined. On the evidence of a man 
 having such apprehensions of himself, a jury should 
 decide with extreme caution. The man to be be- 
 lieved by a respectable jury against respectable 
 persons, is Murphy, confessedly a robber by cha- 
 racter, tried twice in another county upon charges 
 of a flagitious nature, and discharged out of court 
 by proclamation. If you believe him, you must 
 credit the testimony of a man who acknowledges 
 himself to have fired shots into the house of Mr. 
 M'Olintock, with an intent to commit murder. 
 
 When the prosecutor lodged these examinations, 
 it appears, he was in gaol, in actual custody. It is 
 now for you to consider, whether, in your unbiassed 
 judgment, the story hangs well together. Mr. Bird 
 and Mr. Hamill, it is well known, exerted them- 
 selves much in forwarding the cause of the Roman 
 Catholics. You are told these gentlemen formed 
 
teiaij of the deogheda defenders. 115 
 
 committees in ale-houses — that they there as- 
 sociated with the vilest miscreants, to assassinate 
 the Protestants of the land, at a time when the 
 object they had in view was going on prosperously 
 in the legislature of the nation! Is it hkely that, 
 at such a period, they would form a plot for the 
 extermination of their Protestant fellow-subjects? 
 Such a supposition is contrary to common sense. 
 Is it Ukely, that a country reduced to such an 
 unhappy state, that manufacturers are in a state 
 of requisition for the fabrication of arms, should 
 be considered an ehgible market for their purchase? 
 It is to me pecuUarly nauseous to take up much 
 of your time in describing the character of a wretch 
 like Murphy; I shall, therefore, proceed to the 
 matter most worthy of your consideration. Some 
 of the jury who sit here to-day sat in this court 
 yesterday. They must have heard the observations 
 made by the learned judge who presided. "If (said 
 the learned judge) a witness forswears himself in 
 any material circumstance, making a substantive 
 part of the accusation upon which the prosecution 
 is grounded, the rest of his evidence, although it 
 may be true, should be discredited." I speak this 
 in the recollection of several gentlemen present. 
 If I have stated it wrong, I am sure they wiU set 
 me right. Grentlemen, I now call upon you to put 
 this principle in practice. Murphy swore in his 
 examinations that he saw money distributed at the 
 committee upon several times and occasions, and 
 
 8* 
 
116 MR. cueean's speech on the 
 
 that all the persons charged gave the examinant 
 money at several times. Does not all this appear 
 from his own evidence to be false? 
 
 Grentlemen, upon such an occasion as this, there 
 is no man but may be drawn beyond the line of 
 cahn discussion.- For that reason, I have studiously 
 endeavoured to argue the subject coolly, and, 
 therefore, to come to a cool examination of facts. 
 Did Murphy, in his examination, swear he got 
 money from all the traversers at the bar, and did 
 he, on the table, swear he got money but from 
 one? And is there any jury that wiU be so base 
 as to found a conviction upon such evidence? I am 
 well aware, gentlemen, that nothing is more strongly 
 corroborative of the truth of an evidence, thanhttle 
 accidental deviation in immaterial circumstances. 
 The present must appear to you, however, quite a 
 contrary case. 
 
 What has he said of arms? In his examination 
 it is stated that he saw a box of arms landed at 
 Aimagassin, and distributed. What has he said 
 himself on the table? That he did not see them 
 distributed, but laid against a wall. Is this no 
 material circumstance in the prosecution? If you 
 ask is it material, I teU you it is. It is a part of 
 the charge, for procuring and distributing arms 
 for the abohtion of the Protestant government. 
 I speak in the presence of the court, and in the 
 presence of a right honourable gentleman, my per- 
 sonal respect for whom prevents me from saying 
 
TRIAL or THE DEOGHEDA DEFEHDEBS. 117 
 
 ■what he knows I think of his conduct. The pro- 
 curing of arms for the purpose specified is a 
 circumstance highly material to the prosecution; 
 it amounts to an act of High Treason. I mention 
 this, to show, upon that fact, you have certaia 
 evidence of perjury. You have better evidence of 
 the fact, than if he had been indicted for perjury — 
 you have the man confronted by his own oath. 
 When a man swears two ways upon the same facty 
 it is physically impossible that he should not be 
 perjured. 
 
 There is another person brought forward, as a 
 witness in this prosecution, whose state in society 
 it is difficult to ascertain. He was indicted — ^tried — 
 convicted — pardoned — enlisted — deserted — re- 
 taken — ^brought to gaol — and becomes an approver! 
 If, gentlemen, you apply the same rule to this man, 
 you are to consider has he also perjured himself in 
 a material fact. G-entlemen, it is for you to exercise 
 your judgment in this affair. I had not the in- 
 formations. It was impossible for me to know any 
 thing about Tiernan — impossible for me to be 
 acquainted with the fact of his having lodged an 
 information against him, as he denied it on the 
 table. In the information read by his lordship, the 
 examinant says, he knew the place of Tiernan's 
 abode — that he has been acquainted with him in- 
 timately for six years — and saw him frequently at 
 the Defenders' committees, in company with the 
 traversers. What is his evidence now? Directly 
 
118 ME. ctirban's speech on the 
 
 the reverse. You have teard Tn'm swear that lie 
 never saw Tiernan at any of the meetings. You 
 have heard more — ^you have heard him swear that 
 he never swore so. His lordship asked him, could 
 he have sworn to that effect and forgotten it? 
 He swears positively not. Here is a direct and 
 irreconcUeable contradiction between his examin- 
 ation, sworn before a magistrate, and his testimony 
 on this table. And here, gentlemen, you must be 
 convinced that it is impossible he could be for- 
 sworn in so material a fact, if not intentionally. You 
 must see clearly that he is deliberately forsworn. 
 
 Indeed, if it was not known by imfortunate ex- 
 perience, and particularly in many recent instances, 
 it could scarcely be conceived that such abomin- 
 able turpitude could find place in any human being. 
 It could scarcely be conceived, that any being, 
 endued with a rational and immortal soul, would 
 dehberately come forward to forswear himself in 
 a court of justice, and, in the face of heaven, to 
 "bear false witness against his neighbour," under 
 such circumstances, as if credited, must cause the 
 Hfe of the accused to be forfeited. Such acts can 
 only proceed from minds the most obdurate. If 
 you see this done in the present case, you must 
 consider it a crime against a great body of your 
 feUow-subjects, and tending directly to disunite 
 the people. It must be of high consideration to you, 
 that when you acquit, you will be able to say, you 
 do not merely acquit because you cannot condemn; 
 
TRIAL OP THE DEOGHEDA DEEENDEES. 119 
 
 but you acquit from a secondary motive, of dis- 
 countenancing the persecution of any particular 
 description of people. 
 
 The gentlemen here to-day at your bar are 
 merchants — men, whose most valuable property 
 is the integrity of their characters. They have 
 correspondents in foreign countries — ia Great 
 Britain, for instance. What effect, then, must it 
 have, when read in foreign newspapers, that such 
 and such men were taken up, to be tried for rebel- 
 lion against the laws of the country where they 
 Uve? How wiU any merchant in England be able 
 to discover, whether they may not reaUy be guilty 
 of the crime against society with which they are 
 charged? 
 
 I know, from recent experience, that an ac- 
 quittal, however honourable, does not wipe off the 
 aspersion which such charges cast on men's cha- 
 racters. I have particularly experienced it in a 
 neighbouring county. I have there been asked, 
 did not I think Fay had a lucky escape! I am 
 aware, gentlemen, you must have a conviction that 
 what has been brought forward in evidence is false; 
 but where allegations of this sort are made, it is 
 proper to try them in the most pubhc manner. I 
 know your characters, and I think you will not 
 content yourselves with a mere acquittal. It should 
 not be alone; it should be accompanied by some- 
 thing calculated"to do away the unjust imputations 
 upon the characters of the accused. If, however, 
 
120 TEIAIi OF THE DEOGHEDA DEFENDERS. 
 
 you consider further evidence necessary, or feel 
 any dissatisfaction upon your minds, we can pro- 
 duce two or three witnesses. 
 
 CnKKAN examined several witnesses, the Attorney-General 
 replied, the judge charged, and the jury, in a few minutes, 
 returned a verdict of Not Guilty. 
 
 The following slip from the back of this Report may be 
 interesting: — 
 
 "On Wednesday, the 23rd of April, 1794, came on also the 
 trial of James Skelton, Esq., M.D., of the town of Drogheda, 
 on an Indictment for having, on the 30th day of January, in 
 the 33rd year of his Majesty's reign, taken an unlawful oath, 
 to be a true Defender, not being compelled thereto by any 
 necessity. 
 
 "To this indictment Mr. Skelton pleaded the general issue- 
 Not Guilty. 
 
 "No evidence being produced on behalf of the crown, 
 
 "Mr. CuEBAN said — As I understand the learned counsel on 
 behalf of the crown do not mean to bring forward any evidence 
 on the present trial, I must consider that circumstance to be 
 an unanswerable justification of the gentleman accused. 
 
 "Mr. M'Cartney — My lord, we have reasons for not bringing 
 them forward. 
 
 "Mr. Skelton was then acq^uitted, and discharged." 
 
DOOTOE DEENFAIT. 
 
 June 25th, 1794, 
 
 William Dbennan, Esq., M.D., was one of the aHest writers 
 and truest patriots during the long struggle for Irish indepen- 
 dence. One of his earliest works was Orellana, or the Letters 
 of an Irish Helot, published in 1779, advocating a free consti- 
 tution, and written with a passionate vigour, which greatly 
 aided the cause, and made the writer famous. He was an inti- 
 mate of Tone's, who speaks highly of his powers and resolve, — 
 was an early member of the United Irish Society, — and, as we 
 have seen in the introduction to Curran's defence of Eowan, 
 was the writer of the famous counter-proclamation, beginning 
 "Citizen Soldiers!" He was chairman of the meeting (of which 
 Eowan was secretary), at which that document was passed, and 
 was indicted for a seditious libel for having published it. The 
 indictment was found by the City of Dubhn Grand Jury in 
 Easter Term, 1794, and contained nine counts, but only two 
 were relied on. viz., the 2nd count, charging him with publish- 
 ing the libel in "The Hibernian Journal, or Chronicle of 
 Liberty," on the 17th of December, 1793, and the 8th count, 
 charging publication generally. 
 
 To this indictment, Dr. Drennan was in the same term called 
 upon to plead. 
 
 The Hon. Mr. Butler, and Mr. Emmet, applied to the court 
 for four days' time to plead, and a copy of the indictment. 
 
 The Attorney-General, on behalf of the crown, opposed the 
 motion for time to plead, which he insisted was never allowed 
 in case of an indictment. As to the copy of the indictment, if 
 Dr. Drennan had, as his counsel contended, a right to it, he 
 
122 MR. cueban's speech on the 
 
 ■would obtain it, of course, without any such application as this 
 now made. 
 
 The court was of opinion with the Attorney-General; and 
 Dr. Drennan, having been arraigned, traversed the indictment. 
 
 The 25th of June (in Trinity term) was appointed for the 
 trial. 
 
 Wednesday/, June 25, 1794. 
 
 The court sat at half-past ten. Mr. Justice Boyd, having 
 been taken ill, did not preside. 
 
 Dr. Drennan appeared in court with his bail. 
 
 The High Sheriffs returned the venire facias, with a panel 
 thereto annexed. The panel having been called over, and 
 twenty-six gentlemen having answered to their names, the 
 Clerk of the Crown proceeded to swear the jury. 
 
 Sir John Trail, Knight, was called. 
 
 Mr. CuKBAN — My lord, I understand that this gentleman has 
 declared an opinion on the subject of this prosecution. 
 
 Eight Hon. Attorney-General — I wonder to see these things 
 practised again. I thought they would be ashamed of such 
 artifices. I am sure the learned gentleman has been instructed 
 to do this. These things are intended to go abroad, and have 
 an effect on the public mind. If this is a cause of challenge — 
 if it is law, that this is cause of challenge — let it be made; let 
 us have the opinion of the court upon it. 
 
 Mr. CuRKAN — My lord, I stand upon nothing but the rule of 
 law. If what I said be fact, surely he is not a proper juror to 
 try the cause. If he has a preconceived opinion on the subject, 
 I would put the question in the mode which the law warr.Tnts, 
 by swearing the juror. It is true, he is not bound to answer 
 anything to his prejudice; but it cannot be to his prejudice to 
 say that he has formed an opinion. Forming an opinion is not 
 a culpable matter in our law; I, therefore, desire to have him 
 Bworn. 
 
 The Attorney-General — The gentleman has a right to chal- 
 lenge if he has good ground. 
 
TRIAL 01" DOCTOE DEENNA2J. 123 
 
 Mr. CuBRAN — I move, my lord, that Sir John Trail may be 
 sworn to answer. 
 
 Lord Clonmel — It cannot be done; it is not a legal practice. 
 Mr. Justice Downes — I looked into the books on this point 
 on a former occasion. It is laid down expressly, in Hawkins, 
 that this ought not to be done. 
 
 Mr. CuERAN — I cannot support the objection by any other 
 evidence than the gentleman's own. 
 
 Attorney-General — Surely you might by your informer's 
 testimony.* 
 
 Sir John Trail was sworn. 
 Robert Alexander, merchant, sworn. 
 Mark White, merchant, sworn. 
 William Lindsay, merchant, sworn. 
 Benjamin Woodward, merchant, sworn. 
 Mark Bloxham, merchant, sworn. 
 Peter Roe, merchant, sworn. 
 William Beeby, merchant, sworn. 
 Jeffrey Foot, merchant, sworn. 
 James Hamilton, merchant, sworn. 
 William Little, merchant, sworn. 
 William Galway, merchant, sworn. 
 The indictment was then read by the Clerk of the Crown, 
 and Dr. Drennan given in charge to the jury. 
 
 The several counts were deliberately read, and the diiferent 
 copies of the libel scrupulously and accurately compared with 
 the record by the traverser's counsel. No variance however 
 appeared. 
 
 Mr. Euxton opened the indictment. 
 
 The Attorney-Greneral stated the case for the prosecution, 
 and called five witnesses to prove that Drennan was chairman 
 of the meeting at which the address was passed, and that it 
 was published by his (Drennan's) direction. The chief witness 
 
 * Trail proved the propriety of the challenge by his audacious 
 speech at the close of the trial. 
 
124 ME. cueran's speech on the 
 
 was William Paulet Carey, printer and publisher of tLo 
 "National Evening Star.'' The Prime-Sergeant examined him 
 in a series of leading questions, to which Curran objected, and 
 got favourable decisions, after the questions were answered. 
 Curran cross-examined him at great length, making him con- 
 tradict himself, and fail in his evidence of the identity of the 
 document read by Drennan and that in the indictment. It 
 appeared that the address was printed in a hand-bill by one 
 M'Allister, but this could not be got. However, Carey acknow- 
 ledged that he was a United Irishman; that after the address, 
 he had in the society proposed taking up arms, but had been 
 resisted by Dr. Drennan, and that being under prosecution, the 
 society had failed to support him, for which reason he was 
 hostile to its members, and especially to Dr. Drennan. . 
 
 "Mr. Thomas M'Donnell was also examined, to prove the 
 printing in the "Hibernian Journal," but broke down under 
 the direct examination. 
 
 The first witness for the defence was Thomas Traynor, who 
 answered Mr. Fletcher as follows: — 
 
 Do you know Mr. William Paulet Carey? I do. 
 
 What are you. Sir? I am a merchant, and live in Poolbeg- 
 Btreet. 
 
 Had you ever any conversation with Carey respecting the 
 traverser? I had; I was mentioning to some person that I 
 thought Carey was much aggrieved; and that I would set on 
 foot a subscription for his relief — 
 
 How long since is this? This was about the 1st of April last; 
 I did not know Carey before; he waited on me next day; he 
 told me he was much obliged to me for my intention — that he 
 had been much aggrieved by the United Society of Irishmen — 
 but that if they would pay his bail, he would quit the king- 
 dom; he added, that he did not like either to turn informer 
 against Drennan or lose his liberty, and that a few guineas 
 would be of infinite service to him. 
 
 Did he threaten the traverser at all? He said that if he did 
 
TEIAL or DOCTOR DEENNAN. 125 
 
 leave the kingdom, he would give Drennan a flailing before he 
 west; said I, "Drennan is a delicate little man, and a stroke 
 from a strong man would kill him;" he answered that, "By 
 Jesus, he would think it no crime to assassinate such a villain, 
 who had ruined his peace for ever, and made a motion to expel 
 him from the United Society of Irishmen, just at the time they 
 should have supported him;" some time after this I heard 
 Dr. Drennan was taken up. 
 
 Did you see Carey at any time after? He never came near 
 me since. 
 
 Attorney-General — You may go down. Mr. Traynor; I shall 
 not cross-examine you. 
 
 After some other evidence for the defence, Cubean spoke as 
 follows: — 
 
 Mt Lord, and Gentlemen of the Jury — I am of 
 counsel for Doctor Drennan, the traverser; and, 
 gentlemen, I do not, for the sake of my client, 
 regret that my state of health prevents me tres- 
 passing long on your time, or that of the court; 
 for my heart teUs me, that if he is reduced to stand 
 in need of any effort from talent, that it is impos- 
 sible, under the circumstances of the case, that he 
 can hope for any assistance from an advocate, 
 where, if there is any danger of conviction, it must 
 arise from what passes in the minds of the jury, and 
 not from any thing which has passed iu this court. 
 
 It may be a loss to the traverser that he is not 
 aided by the personal exertions of those who are 
 connected with him by habits of hfe and unifor- 
 mity of pursuits. Such a person I am not; to him 
 I am a perfect stranger. I never, to my knowledge, 
 exchanged a word with him, save once in the public 
 
126 ME. cubean's speech on the 
 
 street. I never was under the same roof with, him 
 that I know of; and the reason why I yielded to 
 an ordinary application to become his counsel, 
 was, because I had been personally defamed for 
 acting as counsel in the defence of another, who 
 was charged with the same libel. I felt that my 
 character in the world, little as it may be, was 
 owing aU to my professional talents; and I feel 
 that, if a barrister can act so mean and despicable 
 a part as to decline, from personal apprehension, 
 the defence of any man accused, he does not deserve 
 to be heard in any court of justice. 
 
 I will state shortly what I conceive the question 
 to be, and the evidence brought in support of the 
 charge. 
 
 The indictment is, that Dr. Drennan, the tra- 
 verser, did publish the libel, and that he did print 
 and pubHsh the paper, with the base and seditious 
 intentions there stated. To this he has pleaded 
 not guilty ; and one question to be tried is, did he 
 in point of fact, publish the paper? The next, upon 
 which I shall trouble you but very Uttle, is as to 
 the nature of the paper — ^whether it is a seditious 
 libel or not? 
 
 The law of libels in this country and in Great 
 Britain has lately, (by the perseverance and exer- 
 tions of two men — Mr. Fox and Mr. Erskine — 
 being at last crowned with success), undergone 
 a most fortunate change. 
 
 There is said, gentlemen, to be an instinct in 
 
TEIAL OF DOCTOE DEENNAIT. 127 
 
 animals, wMcli directs them to those medicines 
 wMcli relieve their disorders; and it seems as if, 
 in the public malady of the three kingdoms, this 
 only medicine had been discovered, and carried 
 into effect by this law. 
 
 For part of the court which I address, I have 
 infinite regard and esteem. To extend that profes- 
 sion would, perhaps, be as presumptuous, as it 
 would flatter my vanity; but let me not by this 
 be understood to profess any contrary feehng. I 
 merely disavow the arrogance of affecting to feel, 
 where I have no claim to any interest. 
 
 But, gentlemen, the law has taken the power of 
 decision in those cases from the court, and vested 
 it in you. And you are not only to inquire into 
 the fact of publication, but into the question of 
 "libel or not." Upon the latter question I have 
 said I would make a few observations; but I will 
 be frank with you, and wiU say, that if you have 
 any disposition to believe the fact of publication, 
 I would advise the traverser to prepare with a 
 fatal facility to receive your opinion, that the 
 paper is whatever the prosecutors please to call 
 it. For, if you beheve it, it must be from some 
 perversion of mind — some gangrene of principle, 
 with which I disdain to hold parlance or communi- 
 cation; and this I say, from a proud conviction, 
 that there will be no law in this country, when 
 such monstrous facts are swallowed by juries, and 
 the country disgraced by such convictions. 
 
128 MB. cueban's speech on the 
 
 As to the liberty of the press, I have heard and 
 I have read of some things relative to it lately, at 
 which I am truly astonished. I have heard, that 
 an English Attorney-General could say, "that the 
 gmlt or innocence of a man depends on the can- 
 dour with which he writes." I feel that this must 
 have been an imposition, I cannot beheve that it 
 could have been said. The liberty of the press does 
 not consist in reasoning right — in candour — or in 
 weighing the preponderancy of arguments, as a 
 grocer weighs his wares; it is founded in the prin- 
 ciple, that government is established for the hap- 
 piness of the people — that the people have a kind 
 of superintendant, or inquisitorial power, to watch 
 over government, that they may be satisfied that 
 the object is truly sought. The liberty of the press 
 is not for expressing merely argument, but to con- 
 vey the feehngs of personal discontent against the 
 government, that the passions of the governors 
 may be checked; and if any one is bold enough to 
 tell them they over-bound their duty, they may 
 be tortured into rectitude, by being held up as 
 objects of odium, abomination, horror, or ridicule. 
 
 I you confine the liberty of the press to fair 
 argument — if you condemn, as libellous, every 
 publication, where invective may be a little too 
 warm — where it may go beyond the enormity, or 
 the complaint beyond the grievance — you de- 
 stroy it. 
 
 Every man knows what is a pubHc crime; the 
 
TEIAIi OP DOCTOK DEENNAN. 129 
 
 maliciously pointing out grievances so as to disturb 
 the quiet of the country: such a crime wiU never 
 find protection from a court or a jury. If the 
 traverser did intend "to diffuse among the sub- 
 jects of this realm, discontents, jealousies, and 
 suspicions of our sovereign lord the king, and his 
 government; disaffections and disloyalties to his 
 person and government; and to raise very danger- 
 ous seditions and tumults within this kingdom," 
 &c., he ought to be found guilty — if he did not, 
 he is entitled to acquittal. Having said this, I dis- 
 miss the subject; because, I trust in Grod, so fatal 
 an example to the liberties of this country, as a con- 
 demnation upon such evidence, wiU never be given. 
 What has Carey sworn? — that he was at a 
 meetingon the 14th of December; thatDr.Drennan 
 was there; that the question was put on an address; 
 that he himself was desired to publish that address; 
 that the manuscript could not be given him, but 
 that he should take it from the Dublin Journal* 
 of the next Monday; that he sent for that paper; 
 a great deal of his evidence went to proving the 
 Star, but that was not read, and is out of the 
 question. The question is therefore narrowed to 
 the publication in the Dublin Journal; is there 
 any evidence that this was the paper read in the 
 
 * "It is evident that Mr. Carran meant the Hibernian Journal, 
 hut these were certainly his words." The foregoing note appears 
 in the pamphlet report, which' is plainly hostile to Drennan and 
 his counsel throughout. 
 
 9 
 
130 MB. cueban's speech on the 
 
 society? No. What is it? — Carey has told you — 
 indeed lie told you the impossibility of his swear- 
 ing it; I read the address ia the paper — ^he could 
 not swear even to the substance, he could not teU 
 that it was the same. Coiling and twining about 
 me, as you saw that wretched man, he could not 
 prove this; therefore, all the evidence on this part 
 comes to this, that Dr. Drennan did produce some 
 address in that meeting, but of what it contained 
 you have no evidence before you. And, as to the 
 pubhcation in the Hibernian, the evidence is so 
 vague, that it can give no aid whatever to the 
 former proof; so that the evidence stops at the 
 meeting in Back-lane. 
 
 I asked Carey what address he was desired to 
 publish — he answered, that agreed to by the so- 
 ciety; what proof have you that he did so? — ^it 
 will be ingeniously endeavoured to impress upon" 
 your minds, that a general power to pubHsh was 
 given by the traverser to Carey, and that he thereby 
 made himself personally hable for Carey's acts. 
 
 The consequence of such a doctrine as that a 
 man could commit himself for any future pubhca- 
 tion, made without his privity, would be so wild 
 and desperate, that it is unnecessary to do more 
 than offer it to you in its true hght. 
 
 But Carey has pinned the authority to a parti- 
 cular publication of the particular paper read in 
 the society. "What question are you trying? are you 
 trying the traverser for every possible publication 
 
TBIAL OF DOCTOR DEENNAIT. 131 
 
 ■wMcL. might have been sent to M'DonneU's paper? 
 do you live in a country where such unhmited 
 power is given to informers? Suppose Oarey to 
 have taken from M'DonneU's paper a hbel which 
 Dr. Drennan never saw — ^he is, by this doctrine, 
 responsible — is it not too ridiculous; and does it 
 not come to this, that Carey was tied down to 
 publish that particular paper read in the society, 
 and no other; has he said then that it was the 
 same paper which appeared in the Dublin Journal? 
 where is the evidence that it was the same paper, 
 and where is the guilt of Dr. Drennan? 
 
 But, it will be said, by his declaration of an 
 intent to pubhsh it, he made himself answerable. 
 Did he give it to M'Donnell to be published by 
 him? or, to take a previous question, did M'DonneU 
 pubhsh it himself? Has he said so? No such thing. 
 But, what did he tell you? — ^that any other printer 
 might have pubhshed the paper produced, if he 
 had had the materials; but it is highly probable 
 that he printed it. "What! is a man to be sent for 
 two years to gaol, because you believe it highly 
 probable that M'Donnell published this paper? Are 
 you prepared by any impression whatsoever, so far 
 to humble your minds, as to swear that M'Donnell 
 did pubhsh this very paper, though the man him- 
 self cannot say so? Where is your honesty, or 
 where is your common sense, if they can be flat- 
 tened down into a verdict founded on nothing but 
 your own credulity? 
 
 9* 
 
132 ME. cueran's speech on the 
 
 If Dr. Drennan had given the paper to M'Doimell 
 the acts of the printer might derive credit from 
 the original author; as it is, see how far this would 
 be carrying constructive authority. "What, my lord, 
 is the act of the third person? — ^Is it the law, that 
 the act of a printer, with the witness Lestrange, 
 should affect the traverser, who knew nothing of 
 the transaction? The argument is, that the dehvery 
 by M'DonneU to Lestrange was, no doubt, a publi- 
 cation by the traverser; but I say that nothing he 
 does or says can affect Dr. Drennan. 
 
 Suppose I were charged with committing murder, 
 and that I had employed the crier of the court for 
 the purpose; if he did the fact by my directions, 
 he is gmlty; but no confession of his can be evidence 
 against me. So the publication of M'DonneU, with 
 the authority of Dr. Drennan, might be evidence; 
 but no declaration of M'DonneU's can be evidence. 
 The argument is, that M'DonneU admitted the 
 fact, by giving the paper to the stamp officer; but 
 was this admission on oath? Is what he said to a 
 petty officer of stamps to be evidence against my 
 chent? But M'DonneU does not recoUect this 
 transaction — he does not, on his oath, confirm the 
 statement by Lestrange — and yet you are desired 
 to take Lestrange's evidence of what M'DonneU 
 did. If you do, purposes may, indeed, be answered; 
 and we have heard that there are many prosecu- 
 tions in ]petto — many persons over whom the arm 
 of the law is only suspended. 
 
TEIAL OF DOCTOB DEBNNAN. 133 
 
 This may be policy, to keep the abandoned in- 
 former haunting the slmnbers of the innocent man; 
 but it is for you to consider, is such a time as this 
 proper for it. In the present melancholy of the 
 public miad, how far will it heal the grief which 
 afflicts society? Or, will it not rather answer the 
 immediate and selfish objects of those whom a 
 small gale may waft to that point, where the recol- 
 lection of the country and its situation will never 
 assail their ears? 
 
 But of the probability of this evidence how shall 
 I speak? What does it depend on? The integrity 
 of the man who swears it. Do you think, gentlemen, 
 that in every case an oath is a sufficient measure 
 to weigh down life and hberty? — ^where a mis- 
 creant swears guilt against a man, must you con- 
 vict him? 
 
 The declaration that the paper would appear 
 in the Hibernian Journal stands on the single 
 evidence of Carey. "Was he consistent with himself? 
 K he did not appear to you upon that table a 
 perjured man, believe every word he said. This 
 man was under two prosecutions for this and 
 another libel; this charge is to rest as well on his 
 memory as his credit. He received a summons, 
 signed by the Lord Chief Justice of Ireland ! ! Do 
 you beheve, gentlemen, that Lord Clonmel's name 
 was to it? Examine Mr. Kemmis. 
 
 * What is the answer ? That he thought it was — 
 he could not answer — he was sure it was. And 
 
134 ME. curban's speech on the 
 
 this man, wlio comes to tell of words spoken two 
 years ago, makes this silly mistake about the Chief 
 Justice's name. Again, "Who are you?" "I was 
 under prosecution" — "I was a member of the 
 society" — "I do not know whether I would have 
 prosecuted or not, if they had kept their word." 
 Three different things he swore as to my lord's 
 name: — he did recollect; next, he did not; and, 
 last of all, he could not teU. Does he not appear 
 that kind of man, on whose evidence no m^an ought 
 to be convicted? Scarce ever have I known a con- 
 viction on the mere evidence of an informer. But 
 see what motives this man has: under prosecution 
 for the same crime, he has not only his own safety 
 to consult, but the most avowed and rancorous 
 malice to Doctor Drennan. He swore he had none. 
 Did you not hear of his declaration of vengeance? 
 A gentleman comes and swears that he said he 
 thought it no crime to assassinate Drennan, for a 
 refusal to support him under a criminal pro- 
 secution — to support the man who proposed to 
 the society to arm against the government. 
 
 I asked him why he proposed this? Merely to 
 try character. "Was he himself sincere? He was! — 
 he was perfectly sincere; and yet it was a mere 
 fetch to try character! 
 
 As to the influence of his situation on his evidence, 
 what did he say? — he was not sure of a pardon, 
 but he hoped for one. If you give credit to this 
 man, you make a fine harvest for informers; a fine 
 
TEIAL OF DOCTOR DEElOfAN. 135 
 
 opportunity you give to every ruffian in society; 
 and you may go home in the comfortable con- 
 viction, that it is far from impossible that the next 
 attack shall be on yourselves; and if your wives 
 are superstitious, or your children undutiful, you 
 may have them going to fortune-tellers to inquire 
 "when Mr. Carey shall be unmuzzled against you." 
 
 So far as Bell's testimony was appealed to, he 
 contradicted Carey. He did not believe that the 
 words of the address stood any part of the paper 
 read, and no human being has given evidence of 
 the general substance. BeU. contradicted him again; 
 for he said there were no orders made to print it 
 in any paper. And what did Wright say? That it 
 was after the pubhcation in the Hibernian Journal 
 that Carey complained to him of having been 
 neglected, and asked should he publish the paper. 
 "How shall I publish it?" says he; "the Evening 
 Post is nonsense." Says "Wright, "take it from the 
 Hibernian Journal." Here is the positive oath of 
 this unimpeached witness contradicting Carey's 
 evidence. Unfortunate, perjured man, he makes a 
 complaint that he received no instructions; he 
 complains of the whole society. Gentlemen, do 
 you beheve Wright ? 
 
 But there is a way in which you may get out 
 of this. It will be said, "God forbid that a man 
 should not perjure himself in one or two httle 
 points, and teU truth in the whole;" an old woman 
 may say, that oaths are but wind — ^he might tell 
 
136 MR. cubean's speech on the 
 
 truth, at other times. Did you ever, gentlemen, 
 hear of a point in which a perjured witness might 
 be believed? Yes, there is one — when he says he 
 is perjured. The principle is as strong in our hearts, 
 as if it had been written by the finger of that Grod 
 who said, "thou shalt not bear false witness." The 
 law of the country has said that the man once 
 convicted of false swearing shall not a second time 
 contaminate the walls of a court of justice; and it 
 is the very essence of a jury, that if a man appears 
 (though not yet marked out by the law as a 
 perjurer) to have soUed his nature by the dehberate 
 commission of this crime, that moment his credit 
 shall cease with the jury — ^his evidence shall be 
 blotted from their minds, and leave no trace but 
 horror and indignation. 
 
 I feel the hardship of their situation, when grave 
 and learned men are brought forward to support 
 such a prosecution. I have great respect for them — 
 for some of them I have had it from my boyish 
 days — but this respect does not prevent my saying, 
 that, as officers of state, their private worth is not 
 to, weigh with you. It is for their credit to deceive 
 you. They have no power to control a prosecution — 
 if one is commanded, they must carry it on; and 
 when they talk of their character, what do they 
 say? — "If the evidence is insufficient, take a httle 
 of our dignity to eke it out." What their feelings 
 are is nothing to you, gentlemen; they may have 
 feehngs of another kind to compensate for them. 
 
TEIAL OF DOCTOR DBBNNAil. 137 
 
 But wMle I lament this, I will show that your 
 sympathy is not called forth for nothing. Why do 
 we hear such expressions as these — "I speak under 
 the authority of a former jury?" Has that verdict 
 been given in evidence? No. Could it govern you 
 if it had? No. Here you see the necessity of an 
 appeal to official dignity. We heard of clubs formed 
 in this city; we had no evidence of them that then- 
 object was to separate the countries. Does this 
 appear? To pull the king' from his throne; what 
 can I say, but "how does this appear." Not a word 
 of it has been proved; and here let me mention 
 the impolicy of such expressions, and say that the 
 frequent recital of such circumstances will rather 
 reconcile profligate minds to them than deter them. 
 
 As to the Society of United Irishmen, I have 
 had the misfortune, from my strong reprobation 
 of their conduct, to incur much contumelious 
 animadversion. But where is their desperate pur- 
 pose to be found? Is it in the rejection of Carey's 
 proposal to arm? Does this show their design to 
 pull the king from the throne, or to separate the 
 countries? But it comes down to the horrible 
 blasphemy of revihng the police. To make their 
 case more hideous and more aggravated, you are 
 told of their blaspheming the sanctified pohce — 
 the holy, prudent, and economical police. 
 
 Did they suppose that they were addressing the 
 liquorish loyalty of a guzzling corporation? Or do 
 you suppose, gentlemen, that there is a collation 
 
138 MB. cueean's speech on the 
 
 of custards prepared for you when you leave tlie 
 jury-box, when they wished to excite your com- 
 passion for the abused pohce? But it is said, that 
 they not only attack existing estabhshments, but 
 sully the character of the unborn mihtia, that they 
 hurl their shafts against what was to be raised the 
 next year. "So, G^oss«j:)," says the flatterer to Timon. 
 "What," says he, "I did not know you had children." 
 "Nay, but I will marry, shortly, and my first child 
 shall be called Timon, and then we shall be gossips." 
 So this wizard, Drennan, found out that a militia 
 was to be raised the next year, and he not only 
 abused the corporation but the poHce and the 
 mihtia. 
 
 Do they think you are such buzzards — such 
 bhnd creatures — do they think you are only fit to 
 go to school — or rather to go where one part would 
 be punished, for no other reason, than its exact 
 similarity to the other? 
 
 I protest I have been eighteen years at this bar, 
 and never, until this last year, have I seen such 
 witnesses supporting charges of this kind with 
 such abandoned profligacy. In one case, where 
 men were on trial for their lives, I felt myself in- 
 voluntarily shrinking under your lordships' pro- 
 tection, from the miscreant who leaped upon the 
 table, and announced himself a witness. I had 
 hoped the practice would have remained in those 
 distant parts of the country where it began; 
 but I was disappointed. I have seen it parading 
 
TEIAL 0¥ DOCTOE DEENNAN. 139 
 
 tlirougli the capital, and I feel that the night of 
 unenlightened wretchedness is fast approaching, 
 when a man shall be judged before he is tried — 
 when the advocate shall be libelled for discharging 
 his duty to his client; that night of human nature, 
 when a man shall be hunted down, not because he 
 is a criminal, but because he is obnoxious. 
 
 Punish a man in the situation of Dr. Drennan, 
 and what do you do? what wiU become of the 
 hberty of the press? you will have the newspapers 
 filled Avith the drowsy adulations of some persons 
 who want benefices, or commissions in the revenue, 
 or commissions in the army; here and there, indeed, 
 you may chance to see a paragraph of this kind: — 
 
 "Yesterday came on to be tried, for the publication 
 of a seditious libel, Dr. William Drennan. The great 
 law-officer of the crown stated the case in the most 
 candid and temperate manner. During his speech 
 every man in court was in an agony of horror; the 
 gentlemen of the jury — many of them from the rota- 
 tion office, were all staunch whigs, and friends to 
 government. Mr. Carey came on the table, and 
 declared that he had no malice against the traverser, 
 and most honourably denied the assertion in his next 
 breath. It was proved, much to his honour, tJtat he 
 had declared his intention to assassinate the traverser. 
 The jury listened with great attention. Mr. Curran, 
 with his usual ability, defended the traverser;" — for 
 he must have been ably defended. "Dr. Wright 
 was produced, a bloody minded United Irishman — 
 
140 MB. ctjekan's speech on the 
 
 he declared, he could not say hut that Dr. Drennan 
 was the author of the libel; and that the types were 
 very like each other in the face. An able speech was 
 made in reply by his Majesty's Prime- Sergeant. He 
 said, with the utmost propriety, that the jury knew 
 little of him, if they supposed him to prosecute without 
 a perfect conviction of the traverser's guilt; that Mr. 
 Currants great abilities had been spent in jests on the 
 subject; that the perjuries were mere little inconsisten- 
 cies, the gentleman having much on his mind. He 
 made many pertinent observations on the aspersions 
 thrown out on the corporation of Dublin. 
 
 "Here Mr. Cur ran interposed, and assured him 
 he intended no such aspersions. The Prime- Sergeant 
 declared he thought he had heard them. That, as to 
 the Police, they were a most honourable body of men; 
 that a number of looking-glasses, and other articles 
 of furniture, were highly necessary for them; and 
 as to the militia, the attack on that was abominable, 
 for that it was shameful to asperse a body intended 
 to be raised by government next year. 
 
 "The Jury — a most worshipful, worthy jury, 
 retired for a few minutes, and returned mth a 
 verdict of GurLTX, much to the satisfaction of the 
 public." 
 
 To tMs sort of language will you reduce tlie 
 freedom of public discussion, by a conviction of 
 the traverser: and if the liberty of the press is 
 destroyed for a supposed abuse, this is the kind 
 of discussion you will have. 
 
TEIAL OP DOCTOR DEENNAK. 141 
 
 The Prime-Sergeant replied angrily. Lord Clonmel charged 
 strongly, that the document was a libel, but with some fairness 
 as to Carey's contradictions, and the doubt thereby thrown on 
 the fact of Drennan's having ordered the publication. Justices 
 Downes and Chamberlain concurred with Earl Clonmel, and 
 at 1 o'clock at night the jury retired. At a quarter past 1 1 
 they came into court, and (the judges being absent) in reply to 
 the officer, the foreman. Sir John Trail, said the verdict was 
 Not Guilty. A burst of applause followed, whereon the foreman 
 retired, and returned and gave in to one of the judges the ver- 
 dict, with the following comment: — 
 
 "My lords, as I consider this a trial of the first importance to 
 the peace of the country, and the happiness of society, I must 
 conceive such indecent conduct as we have experienced, to 
 bespeak a spreading pernicious spirit, which, by an exertion of 
 power, ought to be suppressed. For my own part, timidity has 
 no influence on my mind — I act without fear-pl despise the 
 resentment, and disregard the approbation of an unruly and 
 seditious rabble; and I can assure them, they have no cause 
 for exultation in meeting favour from the jury; for they regret 
 at seeing a criminal they cannot reach, and guilt which they 
 cannot punish." 
 
 The other counts were then severally put to the jury, and a 
 verdict of Not Guilty, received upon alL 
 
NOETHERN STAR. 
 
 2ifh May, 1794, 
 
 The following introduction that can be given to Cueban's 
 very short speech in this case is that prefixed to the pamphlet 
 report of the trial: — 
 
 "The measures which government have taken against the 
 proprietors of the Northern Staf having excited a considerable 
 share of public curiosity, and it being of importance that the 
 nature and extent of proceedings by information, on the part 
 of the crown, should be generally known, a brief narrative of 
 the prosecution, previous to the following trial, cannot but be 
 interesting. 
 
 "The alarming circumstances with which this business com- 
 menced are worthy of particular notice. The following account 
 of the AKEEST is, therefore, copied from the Northern Star of 
 January 2, 1793: — 
 
 "Tor several days past, rumours prevailed that government 
 meditated an attack on the proprietors of this paper. The 
 reports gained considerable ground on Sunday last; and on the 
 evening of that day a troop of light dragoons, which had been 
 stationed at Banbridge, arrived here, in consequence of an 
 express from this town. At the same time, all the out com- 
 panies belonging to the regiment quartered here were ordered 
 in with all possible dispatch. 
 
 "'These menacing appearances, in a time of perfect peace, 
 and without any previous tumult or disturbance whatever to 
 give the faintest colour of propriety to, or necessity for, such 
 
TEIAIi OF THE NORTHEEN STAR. 143 
 
 a measure, induced in tlie proprietors a doubt, whether some 
 very extraordinary act of arbitrary power was not intended 
 against them, the more especially as a general officer had been 
 sent here to take the command of the troops in this part of 
 the kingdom. 
 
 "'Under these impressions, one of the proprietors wrote a 
 letter to the sovereign of this town early on Monday morning, 
 of which the following is a copy: — 
 
 "'Belfast, December 31, 1792. 
 
 "'Mr. SovEEEiGN — It is affirmed that a troop of light horse 
 came to this town last night, and that more are on their way, 
 in consequence of an application from you, as chief magistrate, 
 demanding aid in the execution of certain warrants or orders 
 against individual inhabitants of the town; and it is farther 
 said, that you have represented the town to be in such a state, 
 that said orders could not be executed without the protection 
 of a strong military force. 
 
 "'Now, sir, as an inhabitant of Belfast, anxious to maintain 
 the high character of the town — as a Volunteer, who has, in 
 conjunction with my companions, manifested an ardent desire 
 to support the civil magistrate in the due execution of the 
 law — but above all, as a proprietor of a newspaper, which is 
 said to be one object of attack on the present occasion — I call 
 upon you to do away so foul a calumny on the town, over the 
 peace of which you preside; I call upon you to avow the fact, 
 that the civil power of Belfast is capable of supporting the 
 magistrate in the legal execution of his office; and in my latter 
 capacity, I will add, that the printer of the paper I allude to, 
 will instantly and cheerfully submit to and obey any legal 
 summons, order, or arrest. But any proceeding against him 
 contrary to the law of the land will be resisted, and he will 
 throw himself in such a case for protection on his fellow- 
 citizens, who have declared that they will maintain law, peace, 
 and order, equally against "a mob or a monarch, a riot or a 
 proclamation." 
 
144 ME. cuhean's speech, on the 
 
 "'Candour— a regard to your character — but more parti- 
 cularly to tlie peace and character of the town of Belfast, 
 demand of me this communication. 
 
 '"I am, Sir, yours truly, &c. 
 
 "'To the Rev. W. Bristow, Sovereign of Belfast. 
 
 "'Just as this letter was dispatching to the chief magistrate, 
 he called on the gentleman who wrote it — told him there was 
 an order or warrant in town, for the purpose of holding the 
 proprietors to bail, for a certain publication in the Northern 
 Star, of the 5th of December last; and that he would earnestly 
 recommend a peaceable obedience to the law, in order that the 
 matter, might come fairly to issue. It was replied, that if the 
 order was in the nature of a judge's warrant or any other legal 
 proceeding, it would meet a prompt obedience. The sovereign 
 said that the order was strictly legal, and by no means a pro- 
 ceeding of an extraordinary nature. 
 
 "'On reading the letter, the sovereign most solemnly declared, 
 that the calling in the troops was not a measure of his, and 
 even done without his knowledge — that the officer from the 
 King's Bench was instructed not to use force — and, farther, 
 that he (the sovereign) was determined not to use military aid 
 on any such occasion. 
 
 "'It was then stated, that, as the proprietors were numerous, 
 and all, less or more, engaged in mercantile pursuits, it would 
 be at once a cruel and unnecessary exercise of power to hurry 
 them away eighty-two miles, from their homes and their busi- 
 ness, to enter into a recognizance in Dublin; that thej- were 
 now ready to do so before the chief magistrate, or would sur- 
 render at due time, before the justices of the King's Bench, 
 previous to the time of trial. 
 
 "'The sovereign, struck with the force of these remarks, took 
 some time to consider, and, finally, agreed to write to govern- 
 ment, requesting power might be sent to him, and such other 
 magistrates as might be thought proper, to take bail of the 
 proprietors in Belfast, they, at the same time, pledging 
 
TEIAIi OP THE NOBTHEEN STAR. 145 
 
 themselves to appear in Dublin, for the purpose of giving 
 security, in case this application should prove fruitless. 
 
 " 'After the business was thus arranged, the officer who had 
 the warrant was admitted, and received the voluntary submis- 
 sion of the proprietors, in the presence of the sovereign.' 
 
 "The application from the chief magistrate having been 
 refused by government, the proprietors repaired to Dublin, and 
 entered into recognizances on the 7th of January, before Lord 
 Chief Justice Clonmel, themselves in 4100, and two sureties in 
 S50 each. "When before his lordship, it was entreated that the 
 proprietors might be informed what the publication was for 
 which they had been arrested? His lordship said it was for a 
 publication inserted in the Northern Staroi the 5th of December, 
 but did not recollect precisely of what nature is was. Counsel 
 then asked his lordship for a copy of the warrant, which was 
 refused. 
 
 "Next term the King's Attorney-General filed six informa- 
 tions against the proprietors, for having inserted so many 
 seditious publications, including one inserted on the 5th of 
 December. The assizes shortly after succeeded; but Mr. At- 
 torney-General did not think proper to come to trial on any 
 of the informations. During the next term (Easter) no step 
 whatever was taken; but early in Trinity Term, a seventh 
 information was filed, for publishing the resolutions of the 
 town of Belfast in the preceding December. 
 
 "During this term, the Court of King's Bench was moved, 
 on the part of the defendants, that their recognizances should 
 be vacated, inasmuch as the Attorney-General had proceeded 
 by information, instead of indictment; that he had not come to 
 a trial, although an assizes had intervened; and that the recog- 
 nizances only related to the execution and warrant on which 
 they had been bound over. This application was refused; 
 
 "On the 19th of July, the proprietors' agent was served 
 with notice of trial on trvo out of the seven informations, at the 
 ensuing assizes for the county of Antrim, the publication of 
 
 10 
 
146 ME. cueean's speech on the 
 
 the 5th of December not being one. In consequence of this 
 notice, the proprietors prepared for their trial, engaged a 
 respectable bar, gave out their briefs, and had Mr. Curran 
 retained, to come down specially on the occasion from Dublin; 
 but on the 3rd of August (only five days before the assizes), 
 they were informed that the crown lawyers did not think fit to 
 proceed. 
 
 "In Michaelmas Term, 1793, the Attorney-General came into 
 court and moved, as a matter of right, for a trial at bar, on the 
 4th of February, 1794. To this motion the court acceded. The 
 Attorney-General did not give any reason why the sheriff, 
 jury, and defendants should be taken to Dublin, to try a cause 
 which originated in the county of Antrim. 
 
 "A motion, on behalf of the proprietors, during this term, 
 had the eifect of obtaining an order to the crown solicitor, that 
 he would give notice what information he meant to proceed upon. 
 
 "On the 1 st of February last, the Court of King's Bench (on 
 an application on behalf of the defendants) ordered the trial 
 to stand for the 19th of May, at bar, the Attorney-General 
 refusing to permit it to be tried at Carrickfergus, the last 
 assizes. 
 
 "On the 19th of May, the jury were called; but the cause 
 was ordered to stand over for Friday, owing to a civil action, 
 which was then pending in the court; and on Friday, after 
 some slight opposition on the part of the defendants, it was for 
 the same reason farther postponed until Wednesday, the 28th, 
 when it proceeded, as is hereafter related. 
 
 "And thus has- terminated a prosecution upon one out of the 
 seven informations filed, which has been attended (from the 
 peculiar manner in which it has been carried on) with an ex- 
 pense, perhaps exceeding that of any criminal prosecution upon 
 record; the fees alone for obtaining copies of the informations, 
 stamps and fees of office, and license for Mr. Curran to plead 
 against the crown, have been little short of one hchdeed 
 pounds!!!" 
 
TEIAL or THE NORTHERN STAR, 147 
 
 On "Wednesday, the 28th of May, 1794, this cause came on to 
 be tried at the bar of the court of King's Bench, before Lord 
 Chief Justice Clonmel and Mr. Justice Downes. 
 
 The Attorney-General stated the case, and called evidence 
 to prove proprietorship and publication. An argument arose 
 out of the evidence as to the proof of proprietorship, on which, 
 in reply to the crown, Cderan said: — 
 
 I regret tliat we are come to such, an era in 
 criminal justice, that four gentlemen of high 
 distinction should be gravely hstened to, in arguing 
 whether there was a shadow of evidence to go to 
 a jury against twelve of the Bang's subjects, to 
 charge them with a very heinous crime. I insist 
 that, according to the ordinary practice, where a 
 number of parties are included in a criminal charge^ 
 those against whom there is no evidence should be 
 sent to the jury with directions to acqiiit them, 
 that those who are to be tried may have the be- 
 nefit of their evidence, if it should be necessary. 
 The counsel for the crown have set out upon er- 
 roneous principles; they seem to take the question 
 to be, whether these people are proprietors or not. 
 There is no law of this country by which every 
 man entitled to share the profits of a certain trade 
 shall be criminally responsible for the exercise of 
 that trade by his agent. If several people employ 
 a ship, and the navigator of it shall commit piracy 
 or treason upon the high seas, shall those who are 
 entitled to share the profits be criminally re- 
 sponsible? Is that the principle of Irish law? K 
 not, it is absurd to say that this question depends 
 
 10* 
 
148 ME. cxtrean's speech on the 
 
 upon tlie proprietorship of the parties, or has any- 
 thing to do with it. There is no rule of law better 
 estabhshed than that distinction between being 
 criminally and civUly responsible for the acts of 
 an agent. If a servant of his own head commit a 
 criminal act, his master certainly will not be in- 
 volved in the crime, however he might be if it was 
 fuUy proved to be by his express command, for 
 then the employer would be involved in the guilt. 
 But the bare act is not prima facie evidence to 
 charge the master; nothing short of evidence of 
 commandment can do that. Otherwise there could 
 be no safety in society, and every man here might, 
 for what he never knew, be answerable for as 
 many crimes as he had servants. By intendment 
 of law, the master is only supposed to give autho- 
 rity for that which is lawful; unless there is some 
 privity or commandment shown, there is no evi- 
 dence of gmlt in the master. I should be ashamed 
 to insist further from the very elementary prin- 
 ciples of a study in which I have been employed 
 for seventeen years. Evidence that these men 
 whose names have crowded the information, are 
 proprietors of a newspaper, is not evidence that 
 they are guilty of a deed not done by themselves. 
 The act of parhament itself makes a clear distinction 
 between the printer and proprietor, and the pro- 
 prietors come under a clause or designation different 
 from the publisher or printer. This irresistibly 
 shows the fallacy attempted to be imposed upon the 
 
TEIAIi OF THE NOETHEEN STAE. 149 
 
 court. The stating a man's name and residence 
 and other collateral circumstances, is not for the 
 purpose of making him be considered as printer 
 or pubhsher, but to let in certain hghts which 
 may be advantageous to the public, or any in- 
 dividual who shall be aggrieved. 
 
 This affidavit, made pursuant to the act of par- 
 liament, states Eabb to be the sole printer; and 
 yet it is offered in evidence, to show that others 
 were the printers or pubhshers: it is true these 
 gentlemen have not made an affidavit to the con- 
 trary, although it might have been a wise thing for 
 them to have made a purgative and preventative 
 affidavit every day as to the case cited: I meant to 
 have quoted it in our favour, as directly estabUshing 
 the principle, that their barely being entitled to 
 receive a portion of the profits, or being pro- 
 prietors, is not evidence of their being printers or 
 pubhshers, but that there must be evidence of the 
 act charged to be criminal being done by the party 
 himself or by his immediate commandment. In 
 Topham's case there was evidence of buying a 
 paper at the office when he was sole proprietor, 
 there was besides an affidavit, of payment for the 
 stamps used, in printing this very paper; there it 
 was clearly done with his privity, under his control; 
 here it is clear that there has been no evidence 
 given of personal interference so as to amount to 
 such authority or command as would render any 
 of the parties criminally liable. 
 
150 TRIAL OF THE NORTHERN STAR. 
 
 After other counsel were heard, the jury, under direction of 
 the court, found a verdict of acquittal for all the proprietors 
 except John Eahb, the actual printer. The case was then pro- 
 ceeded with against him. Mr. Dobbs defended him on the 
 ground that the publication was not a libel. Clonmel and 
 Downes charged against the prisoner, and the jury, "after fivo 
 minutes consideration, brought in their verdict — Guilty." 
 
EEV. WILLIAM JACKSON. 
 
 April 23rd, 1795, 
 
 Mr. W. H. Ctjekan, in the Memoirs of his Father, thus descrihea 
 Jackson: — 
 
 "Mr. Jackson was a clergyman of the Estahhshed Church; 
 he was a native of Ireland, but he had for several years resided 
 out of that country. He spent a part of his life in the family 
 of the noted Duchess of Kingston, and is said to have been the 
 person who conducted that lady's controversy with the cele- 
 brated Foote. At the period of the French Eevolution he 
 passed over to Paris, where he formed political connexions 
 with the constituted authorities. From France he returned to 
 London, in 1794, for the purpose of procuring information as 
 to the practicability of an invasion of England, and was thence 
 to proceed to Ireland on a similar mission. Upon his arrival in 
 London, he renewed an intimacy with a person named Cockayne, 
 who had formerly been his friend and confidential attorney. 
 The extent of his communications, in the first instance, to 
 Cockayne, did not exactly appear. The latter, however, was 
 prevailed upon to write the directions of several of Jackson's 
 letters, containing treasonable matters, to his correspondents 
 abroad; but in a little time, either suspecting or repenting that 
 he had been furnishing evidence of treason against himself, he 
 revealed to the British minister, Mr. Pitt, all that he knew or 
 conjectured relative to Jackson's objects. By the desire of 
 Mr. Pitt, Cockayne accompanied Jackson to Ireland, to watch 
 and defeat his designs; and as soon as the evidence of his treason 
 was mature, announced himself as a witness for the crown. 
 Mr. Jackson was accordingly arrested, and committed to stand 
 his trial for high treason. 
 
152 MB. CUEEAIl's SPEECH ON THE 
 
 "Mr. Jackson was committed to prison in April, 1794, but 
 his trial was delayed, by successive adjournments, till the same 
 month in the following year. In the interval, he wrote and 
 published a refutation of Paine's Age of Eeason, probably in 
 the hope that it might be accepted as an atonement. He 
 was convicted, and brought up for judgment on the 30th of 
 April, 1795." 
 
 He was indicted for treason in the Summer of 1794; but, 
 sometimes for the crown, and at others for the prisoner, the 
 trial was postponed till the 23rd of April, 1795. 
 
 The Attorney-General led the prosecution. His chief wit- 
 ness was Cockayne, an English attorney. Among the papers 
 proved was this remarkable View of Ireland, by Tone: — 
 
 "The situation of Ireland and England is fundamentally 
 different in this : the government of England is national — that 
 of Ireland, provincial. The interest of the first is the same 
 with that of the people; of the last, directly opposite. The 
 people of Ireland are divided into three sects — the Established 
 Church, the Dissenters, and the Catholics. The first — infinitely 
 the smallest portion — have engrossed, besides the whole church 
 patronage, all the profits and honours of the country exclu- 
 sively, and a very great share of the landed property. They 
 are, of course, aristocrats, adverse to any change, and decided 
 enemies of the French Revolution. The Dissenters — who are 
 much more numerous— are the most enlightened body of the 
 nation; they are steady Republicans, devoted to liberty, and, 
 through all the stages of the French Revolution, have been 
 enthusiastically attached to it. The Catholics — the great body 
 of the people — are in the lowest degree of ignorance, and are 
 ready for any change, because no change can make them worse. 
 The whole peasantry of Ireland, the most oppressed and 
 wretched in Europe, may be said to be Catholic. They have 
 within these two years received a certain degree of informa- 
 tion, and manifested a proportionate degree of discontent, by 
 various insurrections, &c. They are a bold, hardy race, and 
 
TRIAL OF THE REV. WILLIAM JACKSOIT. 153 
 
 make excellent soldiers. There is nowhere a higher spirit of 
 aristocracy than in all the privileged orders, the clergy and 
 gentry of Ireland, down to the very lowest; to countervail 
 which, there appears now a spirit rising in the people which 
 never existed before, but which is spreading most rapidly, as 
 appears by the Defenders, as they are called, and other in- 
 surgents. If the people of Ireland be 4,500,000, as it seems 
 probable they are, the Established Church may be reckoned at 
 450,000; the Dissenters at 900,000; the Catholics at 3,150,000. 
 The prejudices in England are adverse to the French nation 
 under whatever form of government. It seems idle to suppose 
 the present rancour against the Erench is owing merely to 
 their being Kepublicans ; it has been cherished by the manners 
 of four centuries, and aggravated by continual wars. It is 
 morally certain that any invasion of England would unite all 
 ranks in opposition to the invaders. In Ireland — a conquered, 
 oppressed, and insulted country- — the name of England and 
 her power is universally odious, save with those who have an 
 interest in maintaining it; a body, however, only formidable 
 from situation and property, but which the first convulsion 
 would level in the dust. On the contrary, the great bulk of the 
 people of Ireland would be ready to throw off the yoke in this 
 country, if they saw any force sufficiently strong to resort to 
 for defence until arrangements could be made: the Dissenters 
 are enemies to the English power from reason and from reflec- 
 tion; the Catholics, from a hatred of the English name. In a 
 word, the prejudices of one country are directly adverse to the 
 other — directly favourable to an invasion. The government of 
 Ireland is only to be looked upon as a government of force; 
 the moment a superior force appears, it would tumble at once, 
 as being founded neither in the interests nor in the affections 
 of the people. It may be said, the people of Ireland show no 
 political exertion. In the first place, public spirit is completely 
 depressed by the recent persecutions of several. The conven- 
 tion act, the gunpowder, &c., &c., declarations of government, 
 
154 ME. ciirean's speech on the 
 
 parliamentary unanimity, or declarations of grand juries — all 
 proceeding from aristocrats, whose interest is adverse to that 
 of the people, and who think such conduct necessary for their 
 security — are no ohstacles; the weight of such men falls in the 
 general welfare, and their own tenantry and dependants would 
 desert and turn against them. The people have no way of ex- 
 pressing their discontent civiliter, which is, at the same time, 
 greatly aggravated by those measures; and they are, on the 
 other hand, in that semi-barharous state, which is, of all others, 
 the best adapted for making war. The spirit of Ireland cannot, 
 therefore, be calculated from newspaper publications, county 
 meetings &c., at which the gentry only meet and speak for 
 themselves. They are so situated that they have but one way 
 left to make their sentiments known, and that is by war. The 
 church establishment and tithes are very severe grievances, 
 and have been the cause of numberless local insurrections. In 
 a word, from reason, reflection, interest, prejudice, the spirit 
 of change, the misery of the great bulk of the nation, and, 
 above all, the hatred of the English name, resulting from the 
 tyranny of near seven centuries, there seems little doubt but 
 an invasion and sufficient force would be supported by the 
 people. There is scarce any army in the country, and the 
 militia, the bulk of whom are Catholics, would, to a moral 
 certainty, refuse to act, if they saw such a force as they could 
 look to for support." 
 CuEBAN said: — 
 
 My lords, and gentlemen of the jury! I am sure 
 the attention of the court must be a good deal 
 fatigued. I am sure, gentlemen of the jury, that 
 your minds must of necessity be fatigued also. 
 Whether counsel be fatigued or not, is matter very 
 little worth the observation that may be made 
 Upon it. I am glad that it is not necessary for me 
 to add a great deal to the labour, either of the 
 
TEIAIi OP THE EBV. WILLIAM JACKSON. 155 
 
 court, or the jury. Of the court I must have 
 some knowledge — of the jury, I certainly am not 
 ignorant. I know it is as unnecessary for me to say 
 much, or, perhaps, anything, to inform the court, 
 as it would be ridiculous to affect to lecture a jury 
 of the description I have the honour to address. 
 I know I address a court, anxious to expound 
 fairly and impartially the law of the country, 
 without any apprehension of the consequences and 
 effect of any prosecution. In the jury I am looking 
 to now, I know I address twelve sensible and re- 
 spectable men of my country, who are as con- 
 scious as I am of the great obligation to which 
 they have pledged themselves by their oath, to 
 decide upon the question fairly, without listening 
 to passion, or being swayed by prejudice — ^without 
 thinking of anything except the charge which 
 has been made, and the evidence which has been 
 brought in support of that charge. They know, 
 as well as I do, that the great object of a jury is 
 to protect the country against crimes, and to pro- 
 tect individuals against all accusation that is not 
 founded in truth. They will remember — I know 
 they will remember, that the great object of their 
 duty is, according to the expression of a late 
 venerated judge, in another country, that they 
 are to come into the box with their minds Uke 
 white paper, upon which prejudice, or passion, 
 or bias, or talk, or hope, or fear, has not been 
 able to scrawl any thing; that you, gentlemen! 
 
156 MR. CUBBAij's SPEECH ON THE 
 
 come into the box, standing indifferent as you 
 stand unsworn. 
 
 In the little, gentlemen, that I shall take the 
 liberty of addressing to you, I shall rest the fate 
 of it upon its intrinsic weight. I shall not leave 
 the case in concealment. If there be no ground 
 on which the evidence can be impeached, I wiU 
 venture to say I will neither bark at it, nor scold 
 it, in heu of giving it an answer. Whatever ob- 
 jection I have to make, shall be addressed to your 
 reason. I will not say they are great, or conclusive, 
 or unanswerable objections. I shall submit them 
 to you nakedly as they appear to me. If they have 
 weight, you will give it to them. If they have not, 
 a great promise, on my part, will not give anti- 
 cipated weight to that whose debihty will appear 
 when it comes to be examined. 
 
 Gentlemen, you are empannelled to try a charge. 
 It consists of two offences, particularly described 
 in the indictment. The first question is, what is 
 the allegation? In the first branch, the prisoner 
 is indicted upon a statute, which inflicts the pains 
 and penalties of high treason upon any man who 
 shall compass or imagine the King's death. The 
 nature of the offence, if you required any comment 
 on it, has been learnedly, and, I must add, candidly 
 commented upon by Mr. Attorney -General in 
 stating the case. The second part is, that the 
 prisoner did adhere to the King's enemies. By the 
 law of this country, there are particular rules, 
 
TBIAL or THE BEV. WILLIAM JACKSON. 157 
 
 applicable to cases of prosecutions for high treason, 
 contradistinguished from all the other branches of 
 the criminal law. The nature of the offence called 
 for this pecuharity of regulation. There is no 
 species of charge to which innocent men may more 
 easily be made victims, than that of offences against 
 the state, and therefore it was necessary to give 
 an additional protection to the subject. There is 
 an honest impulse in the natural and laudable 
 loyalty of every man, that warms his passions 
 strongly against the person who endeavours to 
 disturb the pubHc quiet and security; it was neces- 
 sary, therefore, to guard the subject against the 
 most dangerous of all abuses — the abuse of a 
 virtue, by extraordinary vigilance. There was 
 another reason: There is no charge which is so 
 vague and indefinite, and yet would be more likely 
 to succeed, than charging a man as an enemy to 
 the state. There is no case in which the venahty 
 of a base informer could have greater expectation 
 of a base reward. Therefore, gentlemen, it was 
 necessary to guard persons accused from the over 
 hasty virtue of a jury on the one hand, and on the 
 other from being made the sacrifice of the base 
 and rank prostitution of a depraved iaformer. How 
 has the law done this? By pointing out in terms, 
 these rules and orders that shall guide the court, 
 and bind the jury in the verdict they shall give. 
 The man shall be a traitor, if he commits the 
 crime, but it must be a crime of which he should 
 
158 ME. CIIREAJ!f's SPEECH ON THE 
 
 be proveably attaint, by overt acts. And in order 
 that there be an opportunity of investigation and 
 defence, the features of the overt acts should be 
 stated of pubKc record in the very body of the in- 
 dictment. Justly do I hear it observed, that there 
 cannot be devised a fairer mode of accusation and 
 trial than this is. Gentlemen, I have stated to you 
 how the foundation of it stands in both countries, 
 touching the mode of accusation and trial. I have 
 to add to you, that in Great Britain it has been 
 found necessary still further to increase the sanction 
 of the jury, and the safety of the prisoner, by an 
 express statute in King "WiUiam's time. By that 
 law it is now settled in that great country, that no 
 man shall be indicted or convicted, except upon 
 the evidence of two witnesses, and it describes 
 what sort of evidence that shall be; either two 
 witnesses swearing directly to the same overt 
 act laid in the indictment, or two witnesses, one 
 swearing to one overt act, and the other to another 
 overt act of the same species of treason. So that, 
 in that country, no man can be foimd guilty, except 
 upon the evidence of two distinct credible wit- 
 nesses — credible in their testimony, distinct in 
 their persons, and concurring in the evidence of 
 acts of one and the same class of treason; for it 
 must be to the same identical treason, sworn to 
 by both witnesses ; or one witness deposing to one 
 act of treason, and the other to another act of the 
 same class of treason. That is the settled law of 
 
TEIAL OF THE KEY. "WILLIAM JACKSON. 159 
 
 the neighbouring kingdom, and I state it emphati- 
 cally to you to be the settled law; because far am 
 I from thinking, that we have not the blessing of 
 hving under the same sanction of law — far am I 
 from imagining that the breath which cannot even 
 taint the character of a man in England, shall here 
 blow him from the earth — ^that the proof, which 
 in England would not wound the man, shall here 
 deprive Tiim of his life — that though the people in 
 England would laugh at the accusation, yet here 
 it shall cause the accused to perish under it. Sure 
 I am that in a country where so few instances of a 
 foul accusation of this sort have occurred, the judges 
 of the court will need little argument to give effect 
 to every thing urged to show that the law is the 
 same in Ireland as in England. 
 
 Lord Clonmel — Do you mean to argue that the statute of 
 William is in force in Ireland? 
 
 Mr. CuBBAN. — 'No, my lord; not that the statute 
 of Wilham is in force — ^but I mean to argue, that 
 the necessity of two witnesses in the case of treason 
 is as strong here as in England. It is the opinion 
 of Lord Coke, founded upon a number of autho- 
 rities ; the opinion of Lord Coke, referring to a 
 judicial confirmation of what he says; the opinion 
 of Lord Coke controverted, if it can be said to be 
 controverted, by the modest and diffident dissent 
 of Sir Michael Foster. It is laid down by Lord 
 Coke, that he conceives it to be the estabhshed 
 law, that two witnesses are necessary to convict: 
 
160 ME. CUEEAiit's SPEECH ON THE 
 
 3 Inst. 26. "It seemetli that by the ancient com- 
 mon law, one accuser or witness was not sufficient 
 to convict any person of high treason — and that 
 two witnesses be required, appeareth by our books, 
 and I remember no authority in our books to the 
 contrary." I know of no judicial determination in 
 our books to the contrary of what Lord Coke here 
 states: the common law is gromided upon the 
 principles of reason. I consider the statutes of 
 Edward VI., and William III., as statutes which 
 had become necessary from the abuses occasioned 
 by a departure from the common law. After the 
 statute of Edward VI., expressly declaring the 
 necessity of two witnesses, the courts had fallen 
 into perhaps a weU-intentioned departure from 
 the meaning of the statute of Edward VI., so far 
 that the place of two witnesses was suppHed ia 
 evidence by any thing that the court thought a 
 material additional circumstance in the case; and 
 to the time of WUliam III., such a departure 
 had prevailed, and this was thought sufficient to 
 discharge every thing respecting the obligations 
 of the statute. It became necessary, therefore, to 
 enact, and by that enactment to do away the abuse 
 of the principle of the common law, by expressly 
 declaring that no man should be indicted or con- 
 victed except by two witnesses to one overt act, 
 or one witness to one act, and a second to another 
 act of high treason of the same species. And there 
 seems to me to be a sound distinction between the 
 
TRIAL OF THE EEV. WILLIAM; JACKSON-. 161 
 
 case of Hgli treason, and of any other crime. It 
 is the only crime whicli every subject is sworn 
 against committing : it is the only crime which any 
 subject is sworn to abstain from. In every other 
 case the subject is left to the fear of punishment 
 which he may feel, or to the dictates of his con- 
 science to guard himself against transgressing 
 the law; but treason is a breach of his oath of 
 allegiance, and is so far hke the case of perjury: 
 and, therefore, in the case of treason no man should 
 be convicted by the testimony of a single witness, 
 because it amounts to no more than oath against 
 oath : so that it is only reasonable there shoidd be 
 another to turn the scale ; and therefore it is that 
 I conceive Lord Coke well warranted in laying 
 down this rule, a rule deduced from general justice, 
 and even from the law of God himself Gentlemen, 
 what I am now stating, I offer to the court as 
 matter of law. 
 
 But what were these witnesses? Witnesses in 
 all cases beyond exception in their personal circum- 
 stances, and in their personal credit. Therefore it 
 is the law, that no man shall be found guilty of 
 any offence that is not legally proved upon him 
 by the sworn testimony of credible witnesses. 
 Gentlemen, I have submitted my humble ideas of 
 the law — I have stated the charge which the 
 prisoner is called upon to answer: let me now state 
 the overt acts, which in this particular case are 
 
 necessary to be proved. The first is, that the 
 
 11 
 
162 ME. cueean's speech on the 
 
 prisoner did traitorously come to, and land in, 
 Ireland, to procure information concerning the 
 subjects of Ireland, and to send tliat information 
 to the persons exercising the government in France, 
 to aid them in carrying on the war against the 
 King. I do not recollect that Cockayne said one 
 single word of the prisoner's coming here for such 
 a purpose. The second overt act is, that the pri- 
 soner did traitorously intend to raise and levy war; 
 and incite persons to invade Ireland with arms 
 and men; that he did incite Theobald Wolfe Tone 
 to go beyond seas to incite France to invade this 
 kingdom; that he did endeavour to procure per- 
 sons to go to France; and that he agreed with 
 other persons, that they should be sent to France 
 for the same purpose. Having stated these overt 
 acts which are laid in the indictment, you will be 
 pleased to recollect the evidence given by Cockayne. 
 Cockayne did not say that the prisoner came over 
 here for any such purpose as the overt act at- 
 tributes to him. Then, as to the overt act, of 
 endeavouring to procure persons to go to France 
 for the purpose of giving information to the enemy; 
 the witness said he met Mr. M'Nally; he had known 
 him in England; Jackson was a clergyman; he had 
 known him also. Cockayne had professional busi- 
 ness with Mr. M'Nally. Mr. M'NaUy paid them a 
 courtesy which any decent person would have been 
 entitled to. They dined at his house, and met three 
 or four persons there; they talked of the politics of 
 
TRIAL OF THE REV. WILLIAM JACKSON. 163 
 
 Ireland; of the dissatisfaction of the people ; but not 
 a syllable of what is stated in the indictment; not one 
 word of any conspiracy; Cockayne did not pretend 
 to be able to give any account of any specific conver- 
 sation. He went to Newgate ; Eowan was then in 
 confinement; he sometimes went by himself; some- 
 times met Tone, sometimes Jackson; he gave you an 
 account of encouragement; what was it? Was there 
 any thing to support this indictment? Let me 
 remind you that you are to found your verdict on 
 what the witness says and you believe, and not on 
 what learned counsel may be instructed to state. 
 Then what does the witness say? He admits that 
 he did not hear all the conversation. The crying 
 injustice must strike you, of making a man answer- 
 able for a part of a conversation, where the witness 
 did not hear it all; but take it as he has stated it, 
 unquahfied and unconstrued: how high was he 
 wrought up by it ? He heard talk of somebody to 
 go to France; he was to carry papers; he heard 
 an expression of instructions to the French. What 
 French — ^what instructions ? It might be to French 
 manufacturers ; it might be to French traitors ; it 
 might be to the French King; it might be to the 
 French convention. Do I mean to say that there 
 was nothing by which a credulous or reasonable 
 man might not have his suspicion raised, or that 
 there was nothing in three or four men huddhng 
 themselves together in Newgate, and talking of an 
 
 invasion? No ; but my reasoning is this — that your 
 
 11* 
 
164 MB. ctiriian's speech on the 
 
 verdict is to be founded on evidence of positive 
 guilt established at the hazard of the personal 
 punishment of the witness; you are not to pick up 
 the conjectures either of his mahgnity or creduhty. 
 I say that this man stands in defiance of your ver- 
 dict, because it will be affected by nothing but 
 that irresistible evidence on which alone it ought 
 to be founded. But what was the fact which Tone 
 was to do, or any other person? It was an Olegal 
 one. By a late act, an Enghsh subject going to 
 France is liable to six months' imprisonment. By 
 a clause in the same statute the crime of sohciting 
 a person to go is also punishable. The encouraging 
 any person to go to that country was, therefore, 
 exposing him to danger, but whether it was a 
 motive of trade, or smuggling, or idle adventure, 
 is not the question for you. It is whether the in- 
 tention was to convey an incitement to the French 
 to make a descent on this kingdom, and endeavour 
 to subvert the constitution of it. You have a 
 simple question before you — has even the prose- 
 cutor sworn tjiat he endeavoured to do so? I think 
 not. The next overt act charged is, that he did 
 compose and write a letter in order to be sent to 
 William Stone, in which he traitorously desired 
 Stone to disclose to certain persons in France the 
 scheme and intention of Jackson, to send a person 
 to inform them of the state of Ireland, for the 
 purpose of giving support and effect to a hostile 
 invasion of this country. You have heard these 
 
TEIAL or THE BEV. WILLIAM JACKSON. 165 
 
 letters read. You must of necessity look on them 
 in one or two important and distinct points of view. 
 The first, perhaps, that wiU naturally strike you 
 is, what are these letters? Do they sustain the 
 allegations of the overt act? Are they letters 
 requiring Stone to inform the Convention of this 
 country being in such a state as to encourage an 
 invasion? Does that paper support this allegation? 
 God help us! gentlemen of the jury. I know not 
 in what state the property or life of any man will 
 be if they are always to be at the mercy, and to 
 depend on the possibility of his explaining either 
 the real or pretended circumstances on which he 
 corresponds with persons abroad. The letters are 
 written apparently upon mercantile subjects — he 
 talks of manufactures of a firm, of prices changed, 
 of different famihes, .of differences among them, of 
 overtures to be accepted of, of disputes hkely to 
 be settled by means of common mediation ; what 
 is the evidence on which you can be supported in 
 saying that manufactures mean treason — that 
 Nicholas means the war minister of France — the 
 sister-in-law Ireland — that "the firm has been 
 changed," means Danton has been guillotined, but 
 that makes no alteration in the state of the house, 
 meaning the circumstances of the revolution — that 
 the change of prices and manufactures means any 
 thing else necessary to give consistency to the 
 charge of treason. Give me leave to say that this 
 ludicrous and barbarous consequence would follow 
 
166 ME. cijeean's speech on the 
 
 from a rule of this sort, the idlest letter might be 
 strained to any purpose. The simplicity of our 
 law is, that a man's guilt should be proved by the 
 evidence of witnesses on their oaths, which shaU 
 not be supplied by fancy, nor elicited by the 
 ingenuity of any person making suggestions to 
 the wretched credulity of a jury that should be 
 weak enough to adopt them. I come now to this. 
 A letter produced imports on the face of it to be 
 a letter of business, concerning manufactures — • 
 another concerning family differences. In which 
 way are they to be understood? I say with con- 
 fidence, better it should be to let twenty men, that 
 might have a criminal purpose in writing letters 
 of this kind, escape, than fall into the dreadful 
 alternative of making one man a victim to a charge 
 of this kind not supported by such proof as could 
 bring conviction on the mind of a rational jury. 
 I do not think it necessary to state to you 
 minutely the rest of these allegations of the overt 
 acts. The charge against the prisoner is supported, 
 and this is perhaps the clearest way of calling your 
 attention to the evidence, either by the positive 
 evidence of Cockayne as to these facts, or by the 
 written evidence which stands also on his testimony 
 alone. Touching actual conspiracy he said nothing: 
 somebody was to go to Prance — he knew not for 
 what — he had an idea on his mind for what it 
 was — but never from any communication with 
 Jackson. There have been other letters read in 
 
TEIAL OF THE EEV. "WILLIAM: JACKSOK, 167 
 
 evidence. Two of them contained duplicates of a 
 sort of representation of the supposed state of 
 Ireland. Cockayne says that he got the packet 
 from Jackson, that he himself wrote the directions; 
 one addressed to Amsterdam, the other to Ham- 
 burgh. They were read, and they contain asser- 
 tions, whether true or false I do not thinlc material, 
 of the state of this country: — if material at all, 
 material only in their falsehood. The pubhc are 
 satisfied that these allegations are false. It is 
 known to every man in this country, and must be 
 known with great satisfaction by every honest 
 man, that it is iiot in that state that could induce 
 any but the most adventurous and wicked folly to 
 try an experiment upon it. It is unnecessary for 
 me to comment on the opinions contained in that 
 paper; there is a matter more material, and calling 
 more loudly for your attention. It is stated to be 
 written with the purpose of inviting the persons 
 governing in France to try a descent upon Ireland. 
 This paper is evidence to support that charge; you 
 have heard it read. On what public subject have 
 you ever heard six men speak, and aU to agree? 
 Might not a stranger, in a fit of despondency, 
 imagine that an invasion might have a fatal effect 
 on this country? It is not impossible but if ten 
 men were to make a landing some mischief might 
 happen. Then, again, what do I mean to argue ? 
 Is it that this letter bears no marks of the design 
 imputed to it ? No such thing. It is a letter that 
 
168 MB. cubean's speech on the 
 
 the most innocent man might write, but it is also 
 such a one as a guilty man might write, but unless 
 there was clear evidence of his guilt, he would bo 
 entitled to your verdict of acquittal. Though it was 
 not expressly avowed, yet I cannot help thinldng 
 that it was meant to lay some little emphasis on 
 certain names which I have met with in the news- 
 papers — I am sure I have met the name of Laignelot 
 in the debates of the convention — I have met the 
 names of Home Tooke and Stone in the Enghsh 
 papers. I have read that Home Tooke was tried 
 for high treason and acquitted — that Stone made 
 his escape into Switzerland. I believe it is said 
 that there is a person of that name in confinement 
 in England at present. But let me tell you, you 
 are not to draw any inferences from circumstances 
 of this kind against the prisoner : let me tell you, 
 it is the guilt of the man, and not the sound of 
 names, by which his fate is to be decided. 
 
 Other papers have been read. One seems to 
 contain some form of addresses. A letter said to 
 come from Stone has been read to you. The letter 
 to Beresford, said to be written by Jackson, has 
 also been read to you. I have stated the material 
 parts of the evidence. I have endeavoured to sub- 
 mit my poor idea of the rule by which you ought 
 to be guided. I see only one remaining topic to 
 trouble you upon ; it appears to me to be a topic 
 of the utmost importance. And, gentlemen, it is 
 this. Who is the man that has been examiaed to 
 
TEIAIi OF THE EEV. "WILLIAM JACKSON. 169 
 
 support this cliarge ? One witness ! I beseech you 
 to have that engraven on your minds. The charge, 
 in all its parts, stands only on the evidence of 
 Cockayne; there is no other evidence of any con- 
 versation, there is not a material letter read in 
 this case that does not rest upon Cockayne's evi- 
 dence, and that I am warranted in this assertion 
 you will see to a demonstration when I remind 
 the court that he was the only witness, as I re- 
 collect, called to prove the hand-writing of Jackson. 
 On his testimony alone must depend the fact of 
 their being his hand-writing, of the inuendoes 
 imputed to them, or the purpose with which they 
 were sent. 
 
 Grentlemen, I am scarcely justified in having 
 trespassed so long on your patience. It is a narrow 
 case. It is a case of a man charged with the highest 
 and most penal offence known by our law, and 
 charged by one witness only. And let me ask who 
 that witness is. A man, stating that he comes 
 from another country, armed with a pardon for 
 treasons committed in Ireland, but not in Eng- 
 land whence he comes. What ! were you never on 
 a jury before? Did you ever hear of a man for- 
 feiting his hfe on the unsupported evidence of a 
 single witness, and he an accomphce by his own 
 confession? What! his character made the subject 
 of testimony and support! — take his own vile evi- 
 dence for his character. He was the foul traitor 
 of his own cUent. What do you think now of his 
 
170 ME. cueran's speech on the 
 
 character ? He was a spy upon Ms friend. He was 
 the man that yielded to the tie of three oaths of 
 allegiance, to watch the steps of his client for the 
 bribe of government, with a pardon for the treasons 
 he might commit; and he had impressed on his 
 mind the conviction that he was liable to be ex- 
 ecuted as a traitor. Was he aware of his crime? — 
 his pardon speaks it. Was he aware of the tur- 
 pitude of his character? — he came with the cure; 
 he brought his witness in his pocket. To what? 
 To do away an offence which he did not venture 
 to deny, that he had incautiously sworn that which 
 was false in fact, though the jury did not choose 
 to give it the name of wilful and corrupt perjury. 
 Gracious God! Is it, then, on the evidence of a man 
 of this kind, with his pardon in his pocket, and his 
 bribe — not yet in his pocket — ^that you can venture 
 to convict the prisoner. He was to be taken care of. 
 How so ? Jackson owed him a debt — "I was to do 
 the honourable business of a spy and informer, and 
 to be paid for it in the common way; it was com- 
 mon acreable work — treason and conspiracy; I was 
 to he paid for it by the sheet." Do you find men 
 doing these things in common life? I have now 
 stated the circumstances by which, in my opinion, 
 the credit of Cockayne ought to be reduced to 
 nothing in your eyes. But I do not rest here. 
 Papers were found in the chamber of Mr. Jackson; 
 the door was open — and, by the bye, that careless- 
 ness was not evidence of any conscious guilt ; the 
 
TRIAL or THE EEV. "WILLIAM JACKSON. 171 
 
 papers "were seized. That there "were some be- 
 longing to Jackson is clear, because he expressed 
 an anxiety about some that are confessed not to 
 have any relation to the subject of this day's trial. 
 I asked Cockayne, if he had any papers in Jack- 
 son's room the night before he "was arrested? He 
 said not. I asked him, if he had told any person 
 that he had? He said not. Gentlemen, the only 
 "witness I shall call, "wUl be one to sho"w you that 
 he has in that sworn falsely. And let me here 
 make one observation to you, the strength and 
 good sense of "which has been repeated an hundred 
 times, and, therefore, rests on better authority 
 than mine. Where a "witness S"wears glibly to a 
 number of circumstances, "where it is impossible 
 to produce contradictory proof, and is found to 
 fan in one, it shall overthro"w all the others. And 
 see ho"W strongly the observation appKes here: he 
 s"wore to a conversation "with Jackson as to what 
 he said and did, well knowing that Jackson could 
 not be a witness to disprove that, unless the good 
 sense of the jury should save his life, and enable 
 him to become, in his turn, a prosecutor for the 
 perjury. If on a point of this kind this man should 
 be found to have forsworn himself, it cannot 
 occasion any other sentiment but this, that if you 
 have felt yourselves disposed to give any thing 
 like credit to his evidence where he has sworn to 
 facts which he must have known, it is the key- 
 stone of the arch in his testimony, and if you can 
 
172 ME. ctieean's speech on the 
 
 pluck it from its place, tlie remainder of the pile 
 ■will faU in ruins about Ms head. 
 
 I will produce that witness — ^but, before I sit 
 down, permit me, gentlemen of the jury, to remind 
 you, that if every word which Cockayne has here 
 sworn were sworn in "Westminster-Hall, the judges 
 would immediately have said — There is not any 
 thing for the jury to decide upon; the evidence of 
 the indictment rests on him alone; there is no 
 second witness. So does the transaction of the 
 letters, for De Joncourt's testimony could not 
 have satisfied the statute; it was not evidence to 
 the same overt act as affecting Jackson personally, 
 nor was it evidence of any distinct overt act; it was 
 merely that species of evidence, the abuse of which 
 had been the cause of introducing the statute of 
 Wilham; a mere collateral concomitant evidence. 
 The overt act was writing and putting into the 
 post-office; that was sworn to by Cockayne, and 
 if he deserved credit, would go so far as to prove 
 the fact by one witness. See what the idea of the 
 statute is; it is that it must be an overt act brought 
 home to the prisoner by each of the two witnesses 
 swearing to it. If De Joncourt's evidence stood 
 single, it could not have brought any thing home 
 to Jackson. Cockayne swore the superscription 
 was his writing; he put the letters into the office. 
 De Joncourt said nothing but that he found in 
 the office a letter which he produced, and which 
 Cockayne said was the one he had put into it. 
 
TRIAL OF THE KEV. WILLIAM JACKSON. 173 
 
 This observation appears to collect additional 
 strength from this circumstance. Why did they 
 not produce Tone? It is said they could not. 
 I say they could. It was as eas,y to pardon him 
 as to pardon Cockayne. But whether he was 
 guilty or not, is no objection. Shall it be said 
 that the argument turns about and affects Jack- 
 son as much as it does the prosecutor? I think 
 certainly not. Jackson, I beUeve it has appeared 
 in the course of the evidence, and is matter of 
 judicial knowledge to the court, has lain in prison 
 for twelve months past, from the moment of his 
 trial. If he is conscious that the charge is false, 
 it is impossible for him to prove that falsehood; 
 he was so circumstanced as that he could not 
 procure the attendance of witnesses; a stranger 
 in the country, he could not tell whether some of 
 the persons named were in existence or not. 
 
 I have before apologized to you for trespassing 
 upon your patience, and I have again trespassed 
 — let me not repeat it. I shall only take the 
 Uberty of reminding you, that if you have any 
 doubt, in a criminal case doubt should be ac- 
 quittal; that you are trying a case which if tried 
 in England would preclude the jury from the 
 possibility of finding a verdict of condemnation. 
 It is for you to put it into the poAver of mankind 
 to say, that that which should pass harmlessly 
 over the head of a man in Great Britain shall 
 blast him here; — whether hfe is more valuable in 
 
174 TEIAL or THE BEV. WILLIAJil JACKSON, 
 
 that country than in this, or whether a verdict 
 may more easily be obtained here in a case tend- 
 ing to establish pains and penalties of this severe 
 nature. 
 
 The trial lasted till four o'clock in the morning, when Jack- 
 son was found Guilty. He was brought up for judgment on the 
 30th of April, but he died in the dock, of arsenic which he had 
 taken. It is noticeable that the rule of allowing one witness to 
 convict for treason in Ireland, as established by this case, 
 enabled the government to obtain their convictions in '98. 
 
DUBLIN DEFENDERS. 
 
 December 22nd, 1795. 
 
 TEIAL OF JAMES WELDON, FOB, HIGH TREASON, 
 Before the Court holden under a Commission of Oyer and Ter- 
 miner, and general Gaol delivery, in and for the County of 
 the City of Dublin, in Ireland, on Monday, December list, 
 and Tuesday, December 22nd. 36 Geo. III., a. d. 1795. 
 
 Commission. — Monday, December 14th, 1795. 
 In the latter end of the month of August, 1795, several per- 
 sons were taken into custody in the city of Dublin, upon 
 charges of High Treason, and in the ensuing commission of 
 Oyer and Terminer held in October, bills of indictment were 
 preferred against them, and others not then in custody, which 
 were returned by the grand jury to be true bills. 
 
 The prisoners in custody were then brought to the bar 
 of the court, for the purpose of having counsel and agents 
 assigned. 
 
 In the interval between the October commission and the 
 December, a person of the name of James Weldon was appre- 
 hended upon a charge of High Treason, and he, together with 
 such as had been previously in custody, were served with copies 
 of the indictments and the captions thereof, five days before 
 the first day of this commission. 
 
 This day the prisoners who had been in custody at the last 
 commission were severally arraigned, and pleaded Not Guilty. 
 On the 21st of December several arguments took place as to 
 the jury, and on the 22nd the trial came on. The Attorney- 
 General stated the case, and examined many witnesses, but 
 especially one William Lawler, a gilder. The crown examina- 
 tion was leading and unfair throughout. Curb an said: — 
 
1 ( 6 ME. cueean's speech on the 
 
 Mt lords, and gentlemen of the jury, I am of 
 counsel in one of those cases in wlucli the humanity 
 of our law is, very fortunately, joined with the 
 authority and wisdom of the court in alliance with 
 me for the purposes of legal protection. Gentle- 
 men, I cannot, however, but regret, that that sort 
 of laudable and amiable anxiety for the pubKc 
 tranquillity, which glows warmest in the breasts 
 of the best men, has, perhaps, induced Mr. Attor- 
 ney-General to state some facts to the court and 
 the jury, of which no evidence was attempted to 
 be given. And I make the observation only for 
 this purpose, to remind you, gentlemen, that the 
 statement of counsel is not evidence — ^to remind 
 you, that you are to give a verdict, upon this 
 solemn and momentous occasion, founded simply 
 upon the evidence which has been given to you; 
 for such is the oath you have taken. Gentlemen, 
 I make the observation, not only in order to call 
 upon you to discharge any impressions not sup- 
 ported by testimony, but to remind you also oi 
 another incontrovertible maxim, not only of the 
 humane law of England, but of eternal justice 
 upon which that is founded — that the more horrid 
 and atrocious the nature of any crime charged 
 upon any man is, the more clear and invincible 
 should be the evidence upon which he is conAdcted. 
 The charge here is a charge of the most enormous 
 criminality that the law of any country can Iniow 
 — no less than the atrocious and diabohcal purpose 
 
TEIAL OP THE DUBLIN DEPENDEES. 177 
 
 of offering mortal and fatal violence to the person 
 of the Sovereign, who ought to be sacred. The 
 prisoner is charged with entertaining the guilty- 
 purpose of destroying all order, and all society, 
 for the well-being of which the person of the King 
 is held sacred. Therefore, gentlemen, I presume 
 to tell you, that in proportion as the crime is atro- 
 cious and horrible, in the same proportion ought 
 the evidence to convict be clear and irresistible. 
 Let me, therefore, endeavour to discharge the duty 
 I owe to the unfortunate man at the bar (for un- 
 fortunate I consider him, whether he be convicted 
 or acquitted), by drawing your attention to a con- 
 sideration of the facts charged, and comparing it 
 with the evidence adduced to support it. 
 
 The charge, gentlemen, is of two Idnds — two 
 species of treason founded upon the statute 25 
 Edward III. One is, compassing the King's death; 
 the other is a distinct treason — that of adhering 
 to the King's enemies. In both cases, the crimi- 
 nahty must be clearly established, under the words 
 of the statute, by having the guilty man convicted 
 of the offence, by provable evidence of overt acts. 
 Even in the case, and it is the only one, where by 
 law the unagination shall complete the crime, there 
 that guilt must be proved, and can be provable 
 only by outward acts, made use of by the criminal, 
 for the effectuation of his guilty purpose. The 
 overt acts stated here are, that he associated with 
 traitors unknown, with the design of assisting the 
 
 12 
 
178 ME. cueean's speech on the 
 
 French, at war with our government, and there- 
 fore a public enemy. 2ndly, consulting with others, 
 for the purpose of assisting the French. Srdly, 
 consulting with other traitors to subvert the go- 
 vernment. 4thly, associating with Defenders to 
 subvert the Protestant religion. 5thly, enlisting a 
 person stated in the indictment to assist the French, 
 and administering an oath to him for that purpose. 
 6thly, enlisting him to adhere to the French. 7thly, 
 corrupting Lawler to become a Defender. 8thly, 
 enlisting him by administering an oath, for similar 
 purposes. In order to warrant a verdict convicting 
 the prisoner, there must be clear and convincing 
 evidence of some one of these overt acts, as they 
 are laid. The law requires that there should be 
 stated upon record such an act as in point of law 
 will amount to an overt act of the treason charged, 
 as matter of evidence, and the evidence adduced 
 must correspond with the fact charged. The uni- 
 form rule which extends to every case applies to 
 this, that whether the fact charged be sustained 
 by evidence is for the conscience and the oath of 
 the jury, according to the degree of credit they 
 give to the testimony of it. In treason, the overt 
 act must sustain the crime, and the evidence must 
 go to support the overt act so stated. If this case 
 were tried at the other side of the water, it does 
 not strike me that the very irrelevant evidence 
 given by Mr. Carleton could have supplied what 
 the law requires — the concurring testimony of 
 
TEIAL OF THE DXJBLIN DEFENDERS. 179 
 
 two witnesses. I cannot be considered, indeed I 
 should be sorry, to put any sort of comparison 
 between the person of Mr. Carleton and the first 
 witness who was called upon the table. Grentlemen 
 of the jury, you have an important province indeed 
 — the hfe or death of a man — to decide upon. 
 But previous to that, you must consider what 
 degree of credit ought to be given to a man under 
 the circumstances of that witness produced against 
 the prisoner. It does appear to me, that his evi- 
 dence merits smaU consideration in poiat of credi- 
 bility. But even if he were as deserving of behef 
 as the witness that followed, and that his evidence 
 were as credible as the other's was immaterial, I 
 shall yet rely confidently, that every word, if be- 
 heved, does leave the accusation unsupported. 
 Grentlemen, I wiU not afiront the idea which ought 
 to be entertained of you, by warning you not to 
 be led away by those phantoms which have been 
 created by prejudice, and applied to adorn the 
 idle tales drunk down by folly, and belched up by 
 malignity. You are sensible that you are dischar- 
 ging the greatest duty that law and religion can 
 repose in you, and I am satisfied you will discard 
 your passions, and that your verdict will be founded, 
 not upon passion or prejudice, but upon your oaths 
 and upon justice. Consider what the evidence in 
 point of fact is — Lawler was brought by Brady 
 and Kennedy to Weldon, the prisoner, in Barrack- 
 street; what Brady said to him before, if it had 
 
 12* 
 
180 ME. oubean's speech on the 
 
 been of moment in itself, I do not conceive can 
 possibly be extended to him, who did not assent 
 to the words, and was not present when they were 
 uttered. Lawler was carried to the prisoner at the 
 bar tjo be sworn; and here give me leave to remind 
 you. what was the evidence — ^to remind you that 
 the expressions proved do not bear that illegal im- 
 po ;t which real or affected loyalty would attach 
 to them, and therefore you will discharge all that 
 Cint of enthusiasm from your minds. I wish that 
 1 were so circumstanced as to be entitled to an 
 inswer, when I ask Mr. Attorney-General, what 
 is the meaning of the word Defender? I wish I 
 were at Uberty to appeal to the sober understand- 
 mg of any man, for the meaning of that tremendous 
 word. I am not entitled to put the question to the 
 counsel or the court — ^but I am entitled to call 
 upon the wise and grave consideration of the court 
 to say whether the zeal of pubhc accusation has 
 affixed any definite meaning to the word ? I would 
 be glad to know, whether that expression, which 
 is annexed to the title of the highest magistrate, 
 marking his highest obUgation, and styHng him 
 the Deeendee of the religion of the country, in 
 common parlance acquired any new combination, 
 carrying with it a crime, when apphed to any 
 other man in the community? Let me warn you, 
 therefore, against that sort of fallacious lexico- 
 graphy which forms new words, that undergomg 
 the examination of political slander or intemperate 
 
TEIAIi or THE DUBLIN DEPENDEES. 181 
 
 zeal, are considered as having a known acceptation. 
 What is the word? A word that should be dis- 
 caided, when it is sought to affix to it another 
 meaning than that which it bears in the cases 
 where it is used. Let me remind you that a De- 
 fender, or any other term used to denote any 
 confraternity, club, or society, Kke any other word, 
 is arbitrary, but the meaning should be exphcit. 
 And therefore with regard to this trial, you are to 
 reject the word, as having no meaning, unless, from 
 the evidence, you find it has in the mind of the 
 party a definite explication; for observe that the 
 witness, such as he is — such as he was, with aU 
 ids zeal for the furtherance of justice, which he 
 was once ready to violate by the massacre of his 
 feUow-subjects — with all his anxiety for his sove- 
 reign's safety, whom he was once ready to assas- 
 sinate, he, I say, has not told you, that either 
 Brady or Kennedy, or any other person, said what 
 the principles were that denoted a Defender. But 
 I will not rest the case of my client upon that 
 ground. No ; it would be a foohsh kiad of defence, 
 because words might be used as a cloak, and there- 
 fore might be colourably introduced. You, gentle- 
 men, are then to consider what this oath, this 
 nonsensical oath, which so far as it is intelligible is 
 jimocent, and so far as it is nonsense, can prove 
 nothiog; you are to consider, whether innocent 
 and nonsensical as it may appear, it was yet a 
 cover and a bond for treasonable association. It 
 
182 MB. cueban's spjeech on the 
 
 is not in my recollection, that any evidence was 
 given, that the oath was conceived in artfully equi- 
 vocal expressions, for forming, under the sanction 
 of loyal language, a treasonable association. Is one 
 of the parties laughing, evidence that it vyas trea- 
 sonable, or the bond of a criminal confederation? 
 It is not. Is it treasonable to say, "that were the 
 King's head off to-morrow, the allegiance to him 
 would be at an end?" It is not. The expressions 
 may bring a man into disrepute — ^to lead the mtud 
 of a jury into a suspicion of the morahty of the 
 man who used them — but nothing more. It may 
 be asked, why should there be any thing insidious? 
 Why but to cover a treasonable purpose, are aU 
 these suspicious circumstances? It is not for me, 
 nor is it the prisoner's duty, to account for them 
 in defending himself against this charge, because 
 circumstances are not to render innocence doubt- 
 ful; but it is full proof establishing the guilt and 
 the treason indubitably which the law requires. 
 Therefore I submit that even if the evidence could 
 be behoved, it does not support the overt acts. 
 "Was there a word of violating the person of the 
 King? Any affected misrepresentation or any abuse 
 of government? Have you heard a word stated of 
 the King not being an amiable King? Any words 
 contumehously uttered respecting his person — 
 disrespectful of his government — expressive of any 
 public grievance to be removed, or good to be 
 attained? Not a word of such a subject — nothing 
 
TRIAL OF THE DUBLIN DEFENDERS. 183 
 
 of the kind is proved by tMs solitary witness, in 
 all Ms accuracy of detail. 
 
 Was there any proposition of assisting the 
 French, in case they invaded this kingdom? To 
 enpport that charge a nonsensical catechism is 
 produced. There it is asked, "Where did the cock 
 crow when all the world heard him?" What kind 
 of old women's stories are these to make an im- 
 pression upon your minds? Well, but what does 
 that mean? Why, can you be at a loss? It means 
 to — kill the King! Look at the record — ^it charges 
 the persons with compassing the King's death, and 
 the question about the crowing of a cock is the 
 evidence against them. 
 
 Gentlemen, you all know, for you are not of or- 
 dinary description, that the statute of Edward lEL 
 was made to reduce vague and wandering treasons 
 — to abohsh the doctrine of constructive treason, 
 and to mark out some limited boundaries, clear 
 to a court and jury. If a man has been guilty of 
 disrespect in point of expression to the govern- 
 ment or the crown, the law has ascertained his 
 guilt and announced the punishment. But all the 
 dreadful uncertainty intended to be guarded against 
 by the statute, and which before the passing of the 
 statute had prevailed in case of treason, and which 
 had shed upon the scaffold some of the best blood 
 in England, would again run in upon us, if a 
 man were to suffer an ignominious death under 
 such circumstances as the present, — if equivocal 
 
184 ME. CUEEAif's SPEECH ON THE 
 
 expressions should be taken as decisive proof, or 
 if dubious words were to receive a meaning from 
 the zeal of a witness, or the heat, passion, or pre- 
 judice of a jwcj. The true rule by which to ascer- 
 tain what evidence should be deemed sufficient 
 against a prisoner is, that no man should be con- 
 victed of any crime except upon the evidence of 
 a man subject to an indictment for perjury, where 
 the evidence is such as if false, the falsehood of it 
 may be so proved as to convict the witness of per- 
 jury. But what indictment could be supported 
 for a laugh, a shrug, or a wink? Was there any 
 conversation about killing theKiug? No: but there 
 was a laugh — ^there was an oath to which we were 
 sworn — and then — ^there was a wink; by which I 
 imderstood, we were swearing one thing, and 
 meant another. Why, gentlemen, there can be no 
 safety to the honour, the property, or the Hfe of a 
 man, in a country where such evidence as this 
 shall be deemed sufficient to convict a prisoner. 
 There is nothing necessary to sweep a man from 
 society, but to find a miscreant of sufficient enor- 
 mity, and the unfortunate accused is drifted down 
 the torrent of the credulity of a well-intending jury. 
 See how material this is; Weldon was present at 
 only one conversation with the witness. It is not 
 pretended by the counsel for the crown, that the 
 guilt as to any personal evidence against Weldon 
 does not stand upon the first conversation. Was 
 there a word upon that conversation of adhering 
 
TRIAL OF THE DUBLIN DEPENDEES. 185 
 
 to the King's enemies? It was stated in the case, 
 and certainly made a strong impression, that 
 Lawler was enlisted, in order to assist the French. 
 I heard no such evidence given. The signs of what 
 he called Defenders were communicated" to him; 
 the oath which he took was read, and he was told 
 there would be a subsequent meeting, of which 
 the witness should receive notice from Brady. 
 
 Gentlemen, before I quit that meeting at Barrack- 
 street, let me put this soberly to you. What is the 
 evidence upon which the court can leave it to you 
 to determine that there is equivocation in the oath? 
 It must be in this way : you are to consider words 
 in the sense in which they are spoken, and in 
 writings words are to be taken in their common 
 meaning. "Words have sometimes a technical sense 
 for the purposes of certainty: they may also be 
 made the signs of arbitrary ideas, and therefore 
 I admit a treasonable meaning may be a.ttached 
 to words which, in their ordinary signification, are 
 innocent. But where is the evidence, or what has 
 the witness said to make you beheve, that these 
 words in the oath were used in any other than in 
 the common, ordinary acceptation? Not a word, 
 as I have heard. "Weldon can be affected only 
 personally, either, first, upon acts by himself, or 
 by "other acts brought home to him from the 
 general circumstances of the case. I am con- 
 sidering it in that two-fold way, and I submit, 
 that if it stood upon the evidence respecting the 
 
186 MB. curean's speech on the 
 
 conduct of the prisoner at Barrack-street alone, 
 there could not be a doubt as to his acquittal. It 
 is necessary, therefore, that I should take some 
 further notice of the subsequent part of the evi- 
 dence. The witness stated, that Weldon informed 
 him, that there would be another meeting, of which 
 he, the witness, should have notice. He met Brady 
 and Kennedy: they told him there was a meeting 
 at Plunket-street; and 'here give me leave to remind 
 the court, that there is no evidence that there was 
 any guilty purpose in agitation to be matured at 
 any future meeting- — no proposal of any criminal 
 design. There ought to be evidence to show a 
 connexion between the prisoner and the subsequent 
 meetiag, as held under his authority. It is of great 
 moment to recollect, that before any meeting "Wel- 
 don had left town, and, in the mention of any 
 meeting to be held, let it be remembered he did 
 not state any particular subject, as comprehending 
 the object of the meeting. What happened? There 
 certainly was a meeting at Plunket-street; but there 
 was not a word of assisting the French — of sub- 
 verting the religion — of massacring the Pro- 
 testants — of any criminal design whatever. There 
 was not any consultation upon any such design. I 
 make this distinction, and rely upon it, that where 
 consultations are overt acts of this or that species 
 of treason, it must be a consultation by the mem- 
 bers composing that meeting; because it would be 
 the most ridiculous nonsense, that a conversation 
 
TRIAL OF THE DUBLIN DEFENDERS. 187 
 
 addressed from one individual to another, not 
 applied to the meeting, should be called a consul- 
 tation: but, in truth, there is no BAddence of any- 
 thing respecting the Prench, except in Stoney- 
 batter. There, for the first time, the witness says 
 he heard any mention of the French. Here, gentle- 
 men of the jury, let me beseech you to consider 
 what the force of the evidence is. Supposing that 
 what one man said there to another about assist- 
 ing the Trench, to have been criminal, shall Weldon, 
 who was then for a week a hundred mUes from the 
 scene, be criminally affected by what was criminally 
 done at Stoney-batter? It is not only that he shall 
 be criminally affected by what was criminally done, 
 but even to the shedding of his blood, shall he be 
 affected by what any individual said, who casually 
 attended that meeting! Have you any feehng of 
 the precipice to which you are hurried, when called 
 upon to extend this evidence in such a manner? — 
 without any one person being present with whom 
 the prisoner had any previous confederation! You 
 will be very cautious, indeed, how you establish 
 such a precedent. How did Weldon connect him.- 
 self with any other meeting? Why, he said, there 
 will be another meeting, you shall have notice — it 
 would be going a great way to affect him in conse- 
 quence of that. I lay down the law with confidence, 
 and I say there is no doctrine in it so well ascertained 
 and established, as that a man is to be criminally 
 affected only by his own acts — the man to be 
 
188 MB, curban's speech on the 
 
 charged must be charged with overt acts of his 
 own. There is no law — no security — no reason in 
 that country where a man can be mowed down 
 by foohshly crediting the evidence, not of acts of 
 his own, but of the acts of others, constructively 
 applied to him, who did not attend the meetiag, 
 nor was even aware of it. If a man was to be ex- 
 posed to the penalties of treason hatched and 
 perpetrated in his absence, every member of society 
 becomes liable to be cut off by mere suspicion. 
 I say, no man could go to his bed with an expec- 
 tation of sleeping in it again if he were hable to 
 be called upon to answer a charge of suspicious 
 words, spoken when he was a hundred miles off, by 
 miscreants with whom he had no connexion. Grood 
 Grod! gentlemen, only take asunder the evidence 
 upon which you are called upon to take away the 
 life of this man: — "You, Weldon, are chargeable, 
 and shall answer with your blood, for what was 
 done at Stoney-batter." "Why, that is very hard, 
 gentlemen, for I was not there — I was an hundred 
 nules off." "Yes, but you were there in contempla- 
 tion of law, consulting about the abominable crimes 
 of compassing the King's death, and adhering to 
 his enemies." "How, gentlemen, could I be there? — 
 I knew not that there was any such meeting — 
 I was not present at it." "Aye, but you were there 
 in contemplation of law, because you told Lawler, 
 that Brady would inform him, when there would 
 be a meeting in Thomas-street; and because you 
 
TRIAL OF THE DUBLIN DBPBNDBES. 189 
 
 told him so, you shall be answerable with your 
 life for what is done, at any meeting, at any dis- 
 tance of time, at any place, by strangers whom 
 you have never seen or heard of. You have written 
 your name, you have indorsed the treasonable pur- 
 pose, and through whatever number of persons it 
 may pass, the growing interest of your crime is 
 accumulating against you, and you must pay it 
 with your blood, when it is demanded of you." 
 
 Grentlemen, before we shall have learned to shed 
 blood in sport — ^while death and slaughter are yet 
 not matter of pastime among us, let us consider 
 maturely, before we establish a rule of justice of 
 this kind. Terrible rules, as we have seen them to 
 be, when weighed upon the day of retribution. I 
 confess it is new to me. Whatever doctrines I have 
 learned, I have endeavoured to learn them from 
 the good sense and humanity of the English law; 
 I have been taught, that no man's life shall be 
 sacrificed to the ingenuity of a scholium, and that 
 even he who has heedlessly dropped the seed of 
 guilt, should not answer for it with his blood, when 
 it has grown, under the culture of other hands, 
 from folly to crime, and from crime to treason; he 
 shall not be called upon to answer for the wicked 
 faults of casual and accidental folly. No, gentle- 
 men; I say it with confidence, the act which makes 
 a man guilty must be his own; or if it be by parti- 
 cipation it must be by actual participation, not by 
 construction; a construction which leads to an 
 
190 ME. cueran's speech on the 
 
 endless confounding of persons and things. If I 
 do an act myself, I am answerable for it: if I do 
 it by another, I am answerable also. If I strike 
 the blow, I am answerable: if I send an assassin, 
 and he strikes the blow, it is stiU my act, and I 
 ought to be dharged with the criminahty of it. 
 But if I go into a society of men, into a club, or 
 play-house, and a crime be there committed, there 
 is no principle of law which shall bring home to 
 me the guilty conduct of those men which they 
 may pursue at any distance of time. What pro- 
 tection can a miserable man have from my dis- 
 charging perhaps the ineffectual office of my duty 
 to him, if the rule laid down, that every word he 
 said, or was said by a man with whom he ever had 
 a conversation, shall affect him at any distance of 
 time? Consider what wiU be the consequence of 
 establishing the precedent, that a man shall always 
 be responsible for the act of the society to which 
 he has once belonged. Suppose a man heedlessly 
 brought into an association where criminal pur- 
 poses are going forward — suppose there was, what 
 has been stated, a society of men calling themselves 
 Defenders, and answering in fact to the very singu- 
 lar picture drawn of them. Will you give it abroad, 
 that if a man once belongs to a criminal confed- 
 eracy, his case is desperate — his retreat is cut off — 
 that every man once present at a meeting to sub- 
 vert the government, shall be answerable for every 
 thing done at any distance of time by this flagitious 
 
TEIAL OP THE DUBLIN DEFENDEES. 191 
 
 association? "V\niat is the law in this respect? As 
 in the association there is peril, so in the moment 
 of retreat there is safety. What could this man 
 have done? He quitted the city — he went to another 
 part of the kingdom, when the treasonable acts 
 were committed; yes, but he was virtually among 
 them! What constitutes a man virtually present, 
 when he is physically absent? What is the principle 
 of law by which he shall be tried? It can alone be 
 tried by that, by which the mandate or authority 
 of any man is brought home to him. By previously 
 suggesting the crime, by which he becomes an 
 accessary before the fact, and therefore a principal 
 in treason; for by suggesting the crime he proves 
 the concurrence of his will with that of the party 
 committing the crime. This is a maxim of law: 
 that which in ordinary felonies makes a man an 
 accessary, in treason wiU constitute liim a princi- 
 pal, because in treason there are no accessaries. 
 Suppose a meeting held for one purpose, and a 
 totally distinct crime is committed, are those who 
 were at the first meeting accessaries? Certainly 
 not; because they must be procurers of the fact 
 done. To make a man a principal, he must be 
 quodammodo aiding and assisting — that is not 
 proved. What, then, is the accessorial guilt? Did 
 the prisoner write to the others? Does he appear 
 to be the leader of any fraternity — the conductor 
 of any treasonable meeting? No such thing. I say 
 when he quitted Dublin he had no intention of 
 
192 ME. cueean's speech on tut. 
 
 giving aid or countenance to any meeting; the 
 connexion between him and the societies ceased, 
 and there is no evidence that he had any know- 
 ledge of any of their subsequent acts. Unless there 
 be positive evidence against him, you ought to con- 
 sider him out of the sphere of any association. 
 But stiU you make him answerable for what was 
 done. If you do that, you estabhsh a rule unknown 
 to the sense or humanity of the law; making him 
 answerable for what was done, not by himself but 
 by other persons. 
 
 Gentlemen, I feel that counsel, anxious as they 
 ought to be, may be led further than they intend; 
 — in point of time I have pressed further than I 
 foresaw upon the patience of the jury and the 
 court. I say the object of this part of the trial is 
 whether the guilt of any thing which happened in 
 that society be in point of law brought home to 
 the prisoner? I have endeavoured to submit that 
 the charge ought to be clear, and the evidence 
 explicit, and that though the meetings at which 
 Lawler attended were guilty, yet the prisoner, 
 being absent, was not affected by their criminal- 
 ity. Give me leave now, with deference, to con- 
 sider the case in another point of view. I say then, 
 from what has appeared in evidence, the meetings 
 themselves cannot in the estimation of the law be 
 guUty. If these meetings are not provably guilty 
 of treason, there can be no retroactive guilt upon 
 the prisoner, even if the communication between 
 
TEIAI; OF THE DrfBLIN BEPENDEES. 193 
 
 them and him were proved. If there be no direct 
 and original guilt— if they do not that, which,, if 
 done by him, would amount to an overt act of 
 treason, a fortiori, it cannot extend to him. There- 
 fore, let me suppose, that the prisoner was at the 
 time present at these meetings. Be pleased to 
 examine this, whether if he were, the evidence 
 given would amount to the proof required. I con- 
 ceive that nothing can be more clear than the 
 distinction between mere casual, indiscreet lan- 
 guage, and language conveying a deliberated and 
 debated purpose. To give evidence of overt acts, 
 the evidence must be clear and direct. How is 
 Hensay's case?* A species of evidence was ad- 
 duced, which it was impossible for any man to 
 deny — actual proof of correspondence found in 
 his own writing and possession. How was it in 
 Lord Preston's case?f Evidence equally clear of 
 a purpose acted upon — going to another country 
 for that treasonable purpose. In every case of 
 which we read memorials in the law, the act is 
 such, that no man could say it is not an overt act 
 of the means used by the party in effectuation of 
 his guilty intent. But I said, that a deliberate pur- 
 pose, expressed and acted upon, is different from 
 a casual, indiscreet expression. Suppose now, that 
 the meeting were aU indicted for compassing the 
 King's death, and that the overt act charged is, 
 
 * 19 HoweU's state Trials, 1341. 
 t 12 Howell's State Trials, 646. 
 
 13 
 
194 MR. ctjrran's speech on the 
 
 that they consulted about giving aid to the King's 
 enemies, actually at war; the guilt of all is the 
 guilt of each — there is no distinction between 
 them. If that meeting held that consultation, they 
 are aU guilty of that species of high treason. But 
 if the evidence were, that at that meeting which 
 consisted of as many as are now here, one indivi- 
 dual turned about to another, and said, "we must 
 get arms to assist the Trench, when they come 
 here." Would any reasonable man say, that was 
 a consultation to adhere to the King's enemies? — a 
 mere casual expression, not answered by any one — 
 not addressed to the body. Can it be sustained for 
 a moment in a court of justice, that it was a con- 
 sultation to effect the death of the King, or adhere 
 to his enemies? No, gentlemen, this is not matter 
 of any deep or profound learning — it is familiar 
 to the plainest understanding. The foohsh lan- 
 guage of one servant in your hall is not evidence to 
 affect all the other servants in your house — it is 
 not the guUt of the rest. I am aware it may be 
 the guilt of the rest; it may become such. But I 
 rely upon this; I address it to you with the con- 
 fidence that my own conviction inspires, that your 
 lordships will state to the jury, that a consultation 
 upon a subject is a reciprocation of sentiment upon 
 the same subject. Every man understands the 
 meaning of a consultation; there is no servant 
 that cannot understand it. If a man said to 
 another, "we will conspire to kUl the King," no 
 
TKIAL OF THE DUBLIN DEFENDERS. 195 
 
 lacquey could mistake it. But what is a consulta- 
 tion? Why such as a child could not mistake if it 
 passed before him. One saying to another, "We 
 are here together, private friends — we are at war 
 - — the French may land, and if they do, we wlQ 
 assist them." To make that a consultation there 
 must be an assent to the same thought; upon that 
 assent, the guilt of the consultation is founded. Is 
 that proved by a casual expression of one man, 
 without the man to whom it was directed making 
 any answer, and when, in fact, every other man 
 but the person using the expression was attending 
 for another purpose? But if there be any force in 
 what I have said, as applied to any man attending 
 there, how much more forcible will it appear, when 
 applied to a man who was an hundred miles distant 
 from the place of meeting. If the law be clear, 
 there is no treason in hearing treasonable designs 
 and not consenting thereto (though it be another 
 offence), unless he goes there, knowing beforehand 
 what the meeting was to be. Here, gentlemen, 
 see how careful the law is, and how far it is from 
 being unprovided as to different cases of this kind. 
 If a man go to a meeting, knowing that the ob- 
 ject is to hatch a crime, he shall be joined in the 
 guilt. If he go there and takes a part, without 
 knowing previously, he is involved; though that 
 has been doubted. Foster says, "this is proper to 
 be left to the jury, though a party do or say 
 nothing as to the consultation." If, for instance, a 
 
 13* 
 
196 ME. chrkan's speech on the 
 
 man, knowing of a design to imprison the King, 
 go to a meeting to consult for that purpose, his 
 going there is an obvious proof of his assent and 
 encouragement. This is the law, as laid down by 
 one of the most enlightened writers in any science. 
 Compare that doctrine with what Mr. Attorney- 
 General wishes to inculcate, when he seeks to con- 
 vict the prisoner. There was a meeting in Barrack- 
 street, and it was treason, because they laughed. 
 As Sancho said, they all talked of me, because 
 they laughed. But, then, there is a catechism. 
 Aye, what say you to that? The cock crew in 
 France; — what say you to that? Wliy, I say, it 
 might be foohsh, it might be indecent to talk in 
 this manner. But what is the charge? — that he 
 consulted to kill the King. Where was it he did 
 that? — at Cork! But did he not assist? No; he 
 was not there. But he did assist, because he com- 
 municated signs, and thus you collect the guilt of 
 the party, as the coroner upon an inquest of 
 murder, who thought a man standing by was 
 guilty. Why? — because three drops of blood fell 
 from his nose. This was thought to be in^'incible 
 proof of his guilt. It reminds me also of an old 
 woman who undertook to prove that a ghost had 
 appeared. "How do you laiow there was a ghost 
 in the room?" "Oh! I'U prove to you there must 
 have been a ghost — for the very moment I went 
 in, 1 fainted flat on the floor!" So, says Mr. Attor- 
 ney-General, "Oh, I'll convince you, gentlemen, he 
 
TEIAL OF THE DUBLDSr DErENDEBS. 197 
 
 designed to kill the King, for he laughed." Wel- 
 don was cliargeable with all the guUt of the meet- 
 ing — he laughed when the paper was read, and 
 said, "When the King's head was off, there was an 
 end ■ of the allegiance." In answer to that, I state 
 the humane good sense of the law, that, in the 
 case of the life of a traitor, it is tender in propor- 
 tion to the abomination of the crime ; for the law 
 of England, while it suspended the sword of justice 
 over the head of the guilty man, threw its protec- 
 tion around the innocent, to save his loyalty from 
 the danger of such evidence. It did more — ^it 
 threw its protection around him whose innocence 
 might be doubted, but who was not proved to be 
 guilty. The mild and lenient policy of the law 
 discharges a man from the necessity of proving 
 his innocence, because otherwise it would look as 
 if the jury were empannelled to condemn upon 
 accusation, without evidence in support of it, but 
 merely because he did not prove himself innocent. 
 Therefore, gentlemen, I come round again to state 
 what the law is. In order to make a general as- 
 sembling and consultation evidence of overt acts, 
 there must be that assembhng; and the guilt must 
 be marked by that consultation, in order to charge 
 any man, who was present and did not say any- 
 thing concurring, with the guilt of that consulta- 
 tion. It is necessary that he should have notice 
 that the guilty purpose was to be debated upon — 
 that the meeting was convened for that purpose. 
 
198 ME. ctirean's speech on the 
 
 But let me recal your attention to tliis, and you 
 will feel it bearing strongly upon tliat case. The 
 silence of a man at such a meeting is not criminal 
 to the degree here charged. Then suppose his 
 disclaimer necessary — suppose the law considered 
 every man as abetting what he did not disavow — ■ 
 remember that the wretch now sought to be 
 affected by his silence at a meeting, was one 
 hundred miles distant from it. There might have 
 been a purpose from which his soul had recoHed. 
 Is this then evidence upon which to convict the 
 prisoner? There is no statement of any particular 
 purpose — no summons to confer upon any parti- 
 cular purpose — no authority given to any meeting 
 by a deputy named; and let me remind you, that 
 at the last meeting, if there were the gossipiugs 
 and communications you have heard, there was 
 not any one man present who attended the first 
 meeting, nor is there any evidence to show that 
 the prisoner had ever spoken to any one man who 
 attended the last meeting, upon any occasion; and 
 yet the monstrous absurdity contended for is, that 
 although Weldon proposed no subject for discus- 
 sion — although he proposed no meeting — although 
 he did not know that any purpose was to be car- 
 ried into effect, because he was then one hundred 
 miles off, he is still to suffer for the fooHsh babble 
 of one individual to another. You are to put aU 
 proceedings together, and out of the tissue of this 
 talk, hearsay, and conjecture, you are to collect 
 
TEIAI; OF THE DUBLIN DEFENDERS. 199 
 
 the materials of a verdict, by which you directly 
 swear that the man is guilty of compassing the 
 King's death. But suppose a man were to suggest 
 a treasonable meeting-— that the meeting takes 
 place, and he does not go — the first proposal may 
 amount to an evidence of treason, if it went far 
 enough, and amounted to an incitement. But sup- 
 pose the meeting held be a distinct one from that 
 which was suggested, and the party does not attend, 
 it appears to me, that the act of that meeting can- 
 not be considered as his overt act. The previous 
 incitement must be clearly established by evidence, 
 and I rely upon it, that the subsequent acts of that 
 meeting, to which I am supposing he did not go — 
 particularly if it be a meeting at which many others 
 were present who were not at the first — I rely 
 upon it, I say, that no declaration of any man 
 (and more decidedly, if it be by a man not privy 
 to the origiaal declaration), can be evidence upon 
 which a jury can attach guilt to the party. It 
 is nothing more than misfeasance, which is cer- 
 tainly criminal, but not to the extent of this 
 charge. To affect any man by subsequent debate, 
 it must be with notice of the purpose, and if the 
 meeting be dictated by himself it is only in that 
 point he can be guilty; because if you propose 
 a meeting for one purpose, you shall not be 
 affected by any other — no matter what the meet- 
 ing is — however treasonable or bad. Unless you 
 knew before for what purpose they assembled, 
 
200 ME. cueban's speech on the 
 
 you cannot be guilty virtually by what they have 
 done. 
 
 Gentlemen, I do not see that any thing further 
 occurs to me upon the law of the case, that I have 
 not endeavoured in some way to submit to you. 
 Perhaps I have been going back somewhat irre- 
 gularly. G-entlemen, there remains only one, and 
 that a very narrow subject of observation. I said 
 that the evidence upon which the hfe, and the 
 property of a man should be decided and ex- 
 tinguished, ought to be of itself evidence of a 
 most cogent and impressive nature. G-entlemen, 
 does it appear to you that the witness whom you 
 saw upon the table comes under that description? 
 Has he sworn truly? If he has, what has he told 
 you? As soon as he discovered the extent of the 
 guilt he quitted the fraternity. Do you behove 
 that? Hart told him that all the Protestants were 
 to be massacred. "I did not hke," said he, "the 
 notion of massacring aiiL." Here is the picture 
 he draws of himself — he an accomphce in the 
 guilt. I did not ask him — "Have you been pro- 
 mised a pardon?" I did not ask him — "Are you 
 coming to swear by the acre?" — but I appeal to 
 the picture he drew of himself upon the table. 
 "What worked his contrition? Is it the massacre of 
 one wretch? He was unappaUed at the idea of 
 dipping his hands, and lapping the blood of yart 
 of the Protestant body — it was only heaps of 
 festering dead that nauseated his appetite, and 
 
TBIAL OP THE DUBLIN DEPENDBES. 201 
 
 worked his repentance and conversion. Is your 
 verdict to be founded upon the unsupported evi- 
 dence of a wretch of that kind? His. stomach stood 
 a partial massacre — it was only an universal deluge ^ 
 of blood that made him a convert to humanity! 
 And he is now, the honest, disinterested, and loyal 
 witness in a court of justice! "What said he further? 
 "As soon as I found from Hart, their schemes, I 
 went to Mr. Cowan." You saw, gentlemen, that 
 he felt my motive in asking the question. "You 
 abandoned them as soon as you found their crimi- • 
 nahty?" Because, had he answered otherwise, he 
 would have destroyed his credit; but as it is, he 
 has thrown his credit, and the foundation of it, 
 overboard. If Lawler be innocent, Weldon must 
 be so. He saw that, and, therefore, he said he 
 thought it no crime to kill the King. Therefore, 
 gentlemen, my conscience told me, that if he felt 
 no remorse at plunging a dagger into the heart of 
 his King, he would feel no trembling hesitation at 
 plunging a dagger into the breast of an individual 
 subject, by perjured testimony. Those workings 
 of the heart which agitate the feehngs at the un- 
 timely fate of a fellow-creature touch not him, and 
 he could behold with dehght the perishing of that 
 man who had a knowledge of Ms guilt. He has no 
 compunction, and he betrays no reluctance at 
 drinking deep in the torrent of human blood, 
 provided it leaves a remnant of the class. What 
 stipulation can you make between a wretch of 
 
202 MB. ctjrean's speech on the 
 
 that kind and the sacred obligation of an oath? 
 You are to swear upon his oath; a verdict is not 
 to be founded, upon your own loyalty — not upon 
 what you have seen or heard spoken disrespect- 
 fully of the government or the King. Your honest, 
 pure, and constitutional verdict can be founded 
 only upon that sympathy that you feel between 
 your own hearts and the credibility of the witness. 
 It is a question for you. Will you hazard that 
 oath upon the conscience of such a man? A man 
 influenced by hope and agitated with fear — an- 
 xious for life and afraid to die, that you may safely 
 say, "We have heard a witness, he stated facts 
 which we could not beheve; he is a wretch, for he 
 thought it no crime to murder his Eling; and a 
 partial massacre appeared to him to be merito- 
 rious!" Is it upon the testimony of that nefarious 
 miscreant — the ready traitor — the prompt mur- 
 derer — I retract not the expression, if I did, it 
 would be to put in its place a word of more em- 
 phatic and combined reprobation; is it upon that 
 evidence, I say, you will pronounce a verdict, estab- 
 hshing the most aggravated degree of criminality 
 known to our law, upon the person of that man, 
 supposed by the law to be innocent, until his guilt 
 be proved? I know not whether the man be a 
 good subject or a bad one: it is not necessary for 
 me to know nor for you to inquire; but I exhort 
 you finally to remember, that in Great Britain, so 
 anxious has the law been to guard against the 
 
TRIAL OF THE DUBLIN DEPENDEES. 203 
 
 perfidiousness of such men, that no less than two 
 concurrent witnesses are necessary there in cases 
 of treason, I call not upon you to adopt that 
 law; but to show you the principle, that there 
 should be strong evidence satisfying the mind of 
 a jury. I commit the decision of this case to your 
 consciences, not to your humanity — I commit it 
 to your determination upon the sound principles 
 of justice aud law. 
 
 After Mr. Cueean had sat down, he rose again, and said he 
 had closed without stating any evidence, from a conviction that 
 it would be unnecessary; and added — "It is desired to produce 
 some evidence which I will not oppose in a case of life. There 
 is evidence to show that Lawler is not credible." 
 
 CuEBAN examined witnesses to this effect, but Weldon was 
 found GuiLTT, and though Leary, another prisoner, was acquit- 
 ted, under precisely similar facts, Weldon was hanged. 
 
FOE PETER PINNERTT. 
 
 PUBLISKBB 01' 
 
 ' "THE PRESS." 
 
 [libel.] 
 
 December 22nd, 1797. 
 
 The Government and the United Irislimen were now face to 
 face, the former armed with a full code of coercion and a large 
 army and unscrupulous agents to support it — the latter with 
 a good cause, the organization given hy Tone, and the prospect 
 of Prench aid. Each party tried to strengthen itself by con- 
 ciliation and intimidation. Among the instruments were spies 
 "the battalion of testimony'' (Bird, Newell, O'Brien, &c.), free 
 quarters, prosecutions, bribery, patronage, and calumny. 
 
 One of the best auxiliaries summoned by the United Irishmen 
 was "The Press" newspaper. 
 
 The first number of it was published in Dublin, on Thursday, 
 the 2 8th of September, 1797, and was thence continued on Tues- 
 days, Thursdays, and Saturdays, until Tuesday, the 13th of 
 March, 1798, when the 69th and last number was seized by the 
 government. It was not, like the Northern Star, a chronicle of 
 French politics. It was a propagandist organ of Liberal and 
 National opinions, filled with essays, letters, and addresses of 
 great ability. Arthur O'Connor mainly originated it, and he, 
 Thomas Emmet, Drennan, Sampson, &c., wrote it. 
 
 Government naturally longed to crush such a paper, as it had 
 done the Northern Star, but I'aw force was premature for Dubhn, 
 so they waited for a libel, and, as they gave plenty of provoca- 
 tion, they waited not long. They found one, which irritated 
 them deeply, while it gave them a good opening, in a letter 
 
teiaij of "the pbess." 205 
 
 published on Thursday, the 26th of October, 1797, addressed to 
 the Lord Lieutenant, signed "Marcus." Most of the letter is set 
 out in the indictment; so are the legal facts which were the text 
 of it, but it is right to say something more of them. 
 
 William Orr was a Presbyterian farmer, resident at Farran- 
 shane, in the County of Antrim — a man of pious, gentle, and 
 gallant character; a tall, athletic, and hearty fellow, too, and 
 popular exceedingly. Ho was arrested in 1796, under the In- 
 surrection Act (passed in the February of that year), for having, 
 in April, 1796, administered the United Irish oath to Hugh 
 "Wheatly, a private in the Fifeshire Fencibles. He was indicted 
 at Carrickfergus, on the 17th April, 1707, and tried on Satur- 
 day, ICth of September, 1797, before Chief Baron Lord Yelver- 
 ton. The chief witness was "Wheatly, who deposed that Orr 
 acted as chairman or Secretary of a Baronial Committee in 
 Antrim, where Wheatly was induced to go, and was there 
 forced to take the oath. Lindsay, a private in the same corps, 
 swore that he saw the oath administered, but did not hear it. 
 Curran and Sampson, Orr's counsel, contended that this was a 
 case for a prosecution for high-treason, but Yelverton decided 
 otherwise, and charged for a conviction. The jury retired at 
 seven at night, and came into court at six o'clock on Sunday 
 morning, and after much confusion (from conscience or intoxi- 
 cation) gave in a verdict of Guilty, with a recommendation to 
 mercy, which Yelverton sent by express to the Castle. On 
 Monday, the 1 8th, Curran moved for a new trial, on the affida- 
 vit of two of the jurors, stating the drunkenness of some of 
 the jurors, and the intimidation used to one of the deponents. 
 He had an affidavit from a third juror, swearing that he was 
 deceived into the verdict, but Orr was sentenced to be hanged 
 on the 7th of October. Orr declared at the close of the trial 
 that he was innocent. Various attempts were made to save him. 
 His brother James signed a declaration of his guilt and a prayer 
 for mercy, in William's name, and got it backed by the gentry; 
 but William disclaimed it. It was also sworn by a Presbyterian 
 
206 MR. cueean's speech on the 
 
 clergyman that "Wheatly had confessed himself guilty of murder, 
 perjury, and other crimes. In consequence of all this, Orr was 
 thrice respited, and judging from the conciliatory and beseech- 
 ing tone of The Press (No. 5), Government seems to have had 
 an opportunity of making themselves popular, and weakening 
 the United Irishmen by a just leniency. Theypreferred the harsh 
 course, and on Saturday, the 1 4th of October, Orr was hanged, 
 outside Carrickfergus, amid a mass of troops. He distributed 
 a written paper, declaring his innocence, and died calmly and 
 nobly. He left five children and a wife, about again to be a 
 mother. 
 
 Indignation was nigh universal. Medals with "Remember 
 Orr!" were circulated; his name became a watchword (and con- 
 tinued so, as Sheares' proclamation proves) ; " The Ministers in 
 Orr's place" was a toast even in England, and Fox spoke of him 
 as a martyr. That he was a United Irishman is clear; but that 
 he gave Wheatly the oath, or was therefore guilty in law, is not 
 probable. Guilty or not, his execution for such a crime, on such 
 evidence, and after such a verdict, was a murder! So it was 
 treated in the letter of "Marcus." The author was a Mr. Deanc 
 Swift, a frequent contributor to "The Press.'' 
 
 On Tuesday, the 3 1 st of October, Peter Finnerty was arrested, 
 at 62, Abbey-street, {The Press office), for this publication, 
 under a Judge's warrant, and on Friday, the 22nd of December, 
 was tried before Justice Downes at the Commission Court. The 
 indictment stated, 
 
 "That at a general assizes and general gaol delivery, holden 
 at Carrickfergus, in and for the county of Antrim, on the 17th 
 day of April, in the thirty-seventh year of the King, before the 
 Honourable Mathias Finucane, one of the judges of his Majes- 
 ty's court of Common Pleas in Ireland, and the Honourable 
 Denis George, one of the barons of his Majesty's Court of Ex- 
 chequer in Ireland, Justices and Commissioners assigned to 
 deliver the gaol of our said Lord the King, in and for the county 
 of Antrim, of the several prisoners and malefactors therein, one 
 
TRIAL OF "THE PRESS." 207 
 
 William Orr, late of Farranshane, in said county of Antrim, 
 yeoman, was in lawful manner indicted for feloniously adminis- 
 tering a certain oath and engagement, upon a book, to one 
 Hugh Wheatly; which oath and engagement imported to bind 
 the said Hugh Wheatly, who then and there took the same, to 
 be of an association, brotherhood, and society, formed for sedi- 
 tious purposes; and also for feloniously causing, procuring, and 
 inducing said Hugh Wheatly, to take an oath of said import 
 last mentioned; and also for feloniously administering to said 
 Hugh Wheatly another oath, importing to bind said Hugh 
 Wheatly not to inform or give evidence against any brother, 
 associate, or confederate, of a certain society then and there 
 formed; and also for feloniously causing, procuring, and sedu- 
 cing said Hugh Wheatly to take an oath of said import last 
 mentioned. And afterwards at Carrickfergus aforesaid, before 
 the Eight Honourable Barry Lord Yelverton, Lord Chief Baron 
 of his Majesty's Court of Exchequer in Ireland, and the Hon- 
 ourable Tankerville Chamberlain, one of his Majesty's Justices 
 of his Court of Chief Pleas in Ireland, at a general assizes, &c., 
 on the 16th day of September, in the 37th year of the King, 
 said William Orr, by the verdict of a certain jury of said county 
 of Antrim, between our said Lord the King and said William 
 Orr, taken of and for the felony aforesaid in due manner, was 
 tried, convicted, and attainted, and for the same was duly ex- 
 ecuted: and that he, the said Peter Pinnerty, well knowing the 
 premises, but being a wicked and ill-disposed person, and of 
 unquiet conversation and disposition, and devising and intend- 
 ing to molest and disturb the peace and public tranquillity of 
 this kingdom of Ireland; and to bring and draw the trial afore- 
 said, and the verdict thereon, for our said Lord the King against 
 this William Orr given, and the due course of law in that be- 
 half had, as aforesaid, into hatred, contempt, and scandal, with 
 all the liege subjects of our said Lord the King to believe that 
 the trial aforesaid was unduly had, and that the said William 
 Orr did undeservedly die in manner aforesaid; and that his 
 
208 MB. cueean's speech on the 
 
 Excellency John Jefiferys, Earl Camden, the Lord Lieutenant of 
 this kingdom, after the conviction aforesaid, ought to have ex- 
 tended to the said "William Orr, his Majesty's gracious pardon 
 of the felonies aforesaid; and that in not so extending such par- 
 don, he, the said Lord Lieutenant, had acted inhumanlj', wick- 
 edly, and unjustly, and in a manner unworthy of the trust 
 which had been committed to him by our said Lord the King 
 in that behalf; and that the said Lord Lieutenant in his govern- 
 ment of this kingdom, had acted unjustly, cruelly, and oppres- 
 sively, to his Majesty's subjects therein: And the said Peter 
 Einnerty, to fulfil and bring to efi^ect his most wicked and de- 
 testable devices and intentions aforesaid, on the 26th of Oc- 
 tober, in the 3 7th year of theKing, at Mountrath-street aforesaid, 
 city of Dublin aforesaid, falsely, wickedly, maliciously, and se- 
 ditiously did print and publish, and cause and procure to be 
 printed and published, in a certain newspaper entitled 'The 
 Press,' a certain false, wicked, malicious and seditious libel, of 
 and concerning the said trial, conviction, attainder, and execu- 
 tion of the said William Orr, as aforesaid, and of and con- 
 cerning the said Lord Lieutenant and his government of this 
 kingdom, and his Majesty's Ministers employed by him in his 
 government of this kingdom, according to the tenor and effect 
 following, to wit: — 
 
 "'The death of Mr. Orr, (meaning the execution of the said 
 William Orr) the nation has pronounced one of the most san- 
 guinary and savage acts that had disgraced the laws. In per- 
 jury, did you not hear, my Lord (meaning the said Lord Lieute- 
 nant,) the verdict (meaning the verdict aforesaid) was given? 
 Perjury accompanied with terror, as terror has marked every 
 step of your government (meaning the government of this king- 
 dom aforesaid, by the said Lord Lieutenant.) Vengeance and 
 desolation were to fall on those who would not plunge them- 
 selves in blood. These were not strong enough: against the ex- 
 press law of the land, not only was drinlc introduced to the jury 
 (meaning the jury aforesaid), but drunkenness itself, beastly 
 
TEIAL OF "THE PEESS." 2U9 
 
 and criminal drunkenness, was employed to procure the murder 
 of a better man (meaning the said execution of the said William 
 Orr) than any that now surrounds you (meaning the said Lord 
 Lieutenant).' 
 
 "And in another part thereof, according to the tenor and 
 effect following, to wit : — 
 
 " 'Repentance, which is a slow virtue, hastened, however, to 
 declare the innocence of the victim (meaning the said William 
 Orr); the mischief (meaning the said conviction of the said 
 William Orr) which perjury had done, truth now stept forward 
 to repair. Neither was she too late, had humanity formed any 
 part of your counsels (meaning the counsels of the said Lord 
 Lieutenant). Stung with remorse, on the return of reason, part 
 of his jury (meaning the jury aforesaid) solemnly and soberly 
 made oath that their verdict (meaning the verdict afore- 
 said) had been given under the unhappy influence of intimida- 
 tion and drink; and in the most serious affidavit that ever was 
 made, by acknowledging their crime, endeavoured to atone to 
 Grod and to their country, for the sin into which they had been 
 seduced.' 
 
 "And in another part thereof, according to the tenor and 
 effect following, to wit: — 
 
 " 'And though the innocence of the accused (meaning the said 
 William Orr) had even remained doubtful, it was your duty 
 (meaning the duty of the said Lord Lieutenant), my Lord, and 
 you (meaning the said Lord Lieutenant) had no exemption from 
 that duty, to have interposed your arm, and saved him (mean- 
 ing the said William Orr) from the death (meaning the execu- 
 tion aforesaid) that perjury, drunkenness, and reward, had 
 preiDared for him (meaning the said William Orr.) Let not the 
 nation be told that you (meaning the Lord Lieutenant) are a 
 passive instrument in the hands of others; if passive you be, 
 then is your office a shadow indeed. If an active instrument, 
 as you ought to be, you (meaning the said Lord Lieutenant) 
 did not perform the duty which the laws required of you; you 
 
 14 
 
210 ME. cueean's speech on the 
 
 (meaning the said Lord Lieutenant) did not exercise the pre- 
 rogative of mercy; that mercy which the constitution had 
 entrusted to you (meaning the said Lord Liep.tenant) for the 
 safety of the subject, by guarding him from the oppression of 
 wicked men. Innocent it appears he (meaning the said "William 
 Orr) was; his blood (mfeaningthebloodof the said William Orr) 
 has been shed, and the precedent indeed is awful.' 
 
 "And in another part thereof, according to the tenor and 
 effect following, to wit: — 
 
 " 'But suppose the evidence of Wheatly had been true, what 
 was the offence of Mr. Orr (meaning the said WilUam Orr)? 
 Not that he had taken an oath of blood and extermination, for 
 then he had not suffered ; but that he (meaning the said William 
 Orr) had taken an oath of charity and of union, of humanity 
 and of peace, he (meaning the said William Orr) has suffered. 
 Shall we then be told that your government (meaning the 
 government of this kingdom aforesaid, by the said Lord Lieute- 
 nant) will conciliate public opinion, or that the people will not 
 continue to look for a better?' 
 
 "And in another part thereof, according to the tenor and 
 effect following, that is to say; — 
 
 " 'Is it to be wondered that a successor of Lord Ktzwilliam 
 should sign the death-warrant of Mr. Orr (meaning the said 
 William Orr)? Mr. Pitt had learned that a merciful Lord 
 Lieutenant was unsuited to a government of violence. It was 
 no compliment to the native clemency of a Camden, that he 
 sent you (meaning the said Lord Lieutenant) into Ireland, and 
 what has been our portion under the change, but massacre and 
 rape, military murders, desolation and terror.' 
 
 "And in another part thereof, according to the tenor and 
 effect here following, that is to say: — 
 
 " 'Feasting in your castle, in the midst of your myrmidons 
 and bishops, you (meaning the said Lord Lieutenant) have little 
 concerned yourself about the expelled and miserable cottager, 
 whose dwelling, at the moment of your mirth, was in flames, 
 
TRIAL or "THE PRESS." 211 
 
 his wife and his daughter then under the violation of some com- 
 missioned ravager, his son agonizing on the bayonet, and his 
 helpless infants crying in vain for mercy. These are lamenta- 
 tions which stain not the house of carousal. Under intoxicated 
 counsels (meaning the counsels of the said Lord Lieutenant), 
 the constitution has reeled to its centre, justice is not only blind 
 drunk, but deaf, like Festus, to the words of soberness and 
 truth.' 
 
 " 'And in another part thereof, according to the tenor and 
 effect here following, to wit: — 
 
 " 'Let, however, the awful execution of Mr. Orr (meaning the 
 execution aforesaid of the said William Orr) be a lesson to all 
 unthinking juries, and let them cease to flatter themselves that 
 the soberest recommendation of theirs, and of the presiding 
 judge, can stop the course of carnage, which sanguinary, and I 
 do not fear to say, unconstitutional laws have ordered to be 
 loosed. Let them remember, that, like Macbeth, the servants 
 of the crown have waded so far in blood, that they find it easier 
 to go on than to go back.' 
 
 "In contempt, &c. and against the peace, &c." 
 
 The Attorney-General stated the case, and produced wit- 
 nesses, who proved printing and publication. Mr. Fletcher 
 opened the defence, and called Lord Yelverton and Mr. E. 
 Cooke (Chief Clerk in the Secretary's office) to prove the truth 
 of the libel; but the evidence was soon stopped, as illegal. 
 CuEKAN spoke as follows: — 
 
 Never did I feel myself so sunk under the im- 
 portance of any cause. To speak to a question of 
 this kind, at any time, would require the greatest 
 talent and the most mature dehberation; but to be 
 obliged, without either of those advantages, to 
 speak to a subject that has so deeply shaken the 
 feelings of this already irritated and agitated 
 
 14* 
 
212 MB. cueean's speech on the 
 
 nation, is a task that fills me with embarrassment 
 and dismay. 
 
 Neither my learned colleague nor myself received 
 any instruction orhcense until after the jury were 
 actually sworn, and we both of us came here imder 
 an idea that we should not take any part in the 
 trial. This circumstance I mention, not as an idle 
 apology for an effort that cannot be the subject of 
 either praise or censure, but as a call upon you, 
 gentlemen of the jury, to supply the defects of my 
 efforts, by a double exertion of your attention. 
 
 Perhaps I ought to regret that I cannot begin 
 with any comphment, that may recommend me or 
 my chent personally to your favour. A more art- 
 ful advocate would probably begin his address to 
 you by comphments on your patriotism, and by 
 fehcitating his chent upon the happy selection of 
 his jury, and upon that unsuspected impartiahty ia 
 which, if he was innocent, he must be safe. You 
 must be conscious, gentlemen, that such idle ver- 
 biage as that, could not convey either my senti- 
 ments, ormychent's, upon that subject. You know, 
 and we know, upon what occasion you are come, 
 and by whom you have been chosen; you are come 
 to try an accusation professedly brought forward 
 by the state, chosen by a sheriff who is appointed 
 by our accuser. 
 
 The Attorney-General, interrupting Mr. CtrEBAU', said tho 
 sheriff was elected by the city, and that the observation was 
 therefore unfounded. 
 
TBIAL OP "THE PRESS." 213 
 
 Be it SO [continued Mr. Curean]: I will not now 
 stop to inquire whose property the city may be 
 considered to be: but the learned gentleman seems 
 to forget, that the election by that city, to whom- 
 soever it may belong, is absolutely void without 
 the approbation of that very Lord Lieutenant, who 
 is the prosecutor in this case. I do therefore re- 
 peat, gentlemen, that not a man of you has been 
 called to that box by the voice of my chent; that 
 he has had no power to object to a single man 
 among you, though the crown has; and that you 
 yourselves must feel under what influence you are 
 chosen, or for what qualifications you are particu- 
 larly selected. At a moment when this wretched 
 land is shaken to its centre by the dreadful con- 
 flicts of the different branches of the community; 
 between those who call themselves the partizans 
 of liberty, and those that call themselves the par- 
 tizans of power; between the advocates of infliction 
 and the advocates of suffering; upon such a ques- 
 tion as the present, and at such a season, can any 
 man be at a loss to guess to what class of character 
 and opinion, a friend to either party would resort, 
 for that jury, which was to decide between both? 
 I trust, gentlemen, you know me too well to sup- 
 pose that I could be capable of treating you with 
 any personal disrespect; I am speaking to you in 
 the honest confidence of your fellow-citizen. When 
 I allude to those unworthy imputations of supposed 
 bias, or passion, or partiality, that may have marked 
 
214 MR. curean's speech on the 
 
 you out for your present situation, I do so, in order 
 to warn you of the ground on whicli you stand, of 
 the point of awful responsibility in which you are 
 placed, to your conscience, and to your country; 
 and to remind you, that if you have been put into 
 that box from any unworthy reliance on your com- 
 plaisance or your servility, you have it inyour power, 
 before you leave it, to refute and to punish so vile ' 
 an expectation, by the integrity of your verdict; 
 to remind you, too, that you have it in your power 
 to show to as many Irishmen as yet hnger in this 
 country, that aU law and justice have not taken 
 their flight with our prosperity and peace; that 
 the sanctity of an oath, and the honesty of a juror 
 are not yet dead amongst us; and that if our courts 
 of justice are superseded by so many strange and 
 terrible tribunals, it is not because they are deficient 
 either in wisdom or virtue. 
 
 Gentlemen, it is necessary that you should have 
 a clear idea, first, of the law by which this question 
 is to be 'decided; secondly, of the nature and 
 object of the prosecution. As to the first, it is 
 my duty to inform you, that the law respecting 
 libels has been much changed of late. Hereto- 
 fore, in consequence of some decisions of the 
 judges in "Westminster - hall, the jury was con- 
 ceived to have no province but that of finding 
 the truth of the inuendos, and the fact of pubH- 
 cation; but the libellous nature of that pubhca- 
 tion, as well as the guilt or innocence of the 
 
TEIAIi OF "THE PEESS." 215 
 
 publication, were considered as exclusively be- 
 longing to the court. 
 
 In a system like that of law, which reasons logi- 
 cally, no one erroneous principle can be introduced 
 without producing every other that can be dedu- 
 cible from it. If in the premises of any argument 
 you admit one erroneous proposition, nothing but 
 bad reasoning can save the conclusions from false- 
 hood. So it has been with this encroachment of 
 the court upon the province of the jury with respect 
 to libels. The moment the court assumed as a 
 principle that they, the court, were to decide upon 
 every thing but the publication; that is, that they 
 were to decide upon the question of hbel or no 
 libel, and upon the guilt or innocence of the inten- 
 tion, which must form the essence of every crime, 
 the guilt or innocence must of necessity have ceased 
 to be material. 
 
 You see, gentlemen, clearly, that the question 
 of intention is a mere question of fact. 
 
 Now the moment the court determined that the 
 jury was not to try that question, it followed of 
 necessity that it was not to be tried at all; for the 
 court cannot try a question of fact. When the 
 court said that it was not triable, there was no way 
 of fortifying that extraordinary proposition, except 
 by asserting that it was not material. The same 
 erroneous reasoning carried them another step, 
 still more mischievous and unjust: if the intention 
 had been material, it must have been decided upon 
 
216 ME. cxjuean's speech on the 
 
 as a mere fact, under all its circumstances. Of these 
 circumstances, the meanest understanding can see 
 that the leading one must be the truth or the false- 
 hood of the pubHcation; but having decided the 
 intention to be immaterial, it followed that the 
 truth must be equally immaterial, and under the 
 law so distorted, any man in England who published 
 the most undeniable truth, and with the purest 
 intention, might be punished for a crime in the most 
 ignominious manner, without imposing on the pro- 
 secutor the necessity of proving his guilt, or his 
 getting any opportunity of showing his mnocence. 
 I am not in the habit of speaking of legal in- 
 stitutions with disrespect; but I am warranted in 
 condemningthat usurpation upon the right of juries, 
 by the authority of that statute, by which your 
 jurisdiction is restored. For that restitution of 
 justice, the British subject is indebted to the splen- 
 did exertions of Mr. Fox and Mr. Erskine, those 
 distinguished supporters of the constitution and of 
 the law; and I am happy to say to you, that though 
 we can claim no share in the glory they have so 
 justly acquired, we have the full benefit of their 
 success; for you are now sitting under a similar act 
 passed in this country, which makes it your duty 
 and right to decide on the entire question upon the 
 broadest grounds, and under all its circumstances, 
 and, of course, to determine by your verdict, whether 
 this publication be a false and scandalous libel; 
 false in fact, and published with the seditious 
 
TEIAi OF "THE PEESS." 217 
 
 purpose alleged, of bringing the government into 
 scandal, and instigating the people to insurrection. 
 
 Having stated to you, gentlemen, the great and 
 exclusive extent of your jurisdiction, I shall beg 
 leave to suggest to you a distinction that will strike 
 you at first sight ; and that is, the distinction between 
 public animadversions upon the character of private 
 individuals, and those which are written upon mea- 
 sures of government, and the persons who conduct 
 them. 
 
 The former may be called persona], and the latter 
 political pubhcations. No two things can be more 
 different in their nature, nor in the point of view 
 in which they are to be looked on by a jury. The 
 criminahty of a mere personal libel consists in this, 
 that it tends to a breach of the peace; it tends to 
 all the vindictive paroxysms of exasperated vanity, 
 or to the deeper or more deadly vengeance of irri- 
 tated pride. The truth is, few men see at once 
 that they cannot be hurt so much as they think 
 by the mere battery of a newspaper. They do not 
 reflect that every character has a natural station, 
 from which it cannot be effectually degraded, and 
 beyond which it cannot be raised by the bawling 
 of a news-hawker. If it is wantonly aspersed, it is 
 but for a season, and that a short one, when it 
 emerges, like the moon from a passing cloud, to 
 its original brightness. It is right, however, that 
 the law, and that you, should hold the strictest 
 hand over this kind of public animadversion, that 
 
218 ME. ctteean's speech on the 
 
 forces Immility and innocence from their retreat 
 into the glare of pubhc view; that wounds and 
 terrifies, that destroys the cordiahty and the peace 
 of domestic life, and that, without eradicating a 
 single vice, or single folly, plants a thousand 
 thorns in the human heart. 
 
 In cases of that kind, I perfectly agree with the 
 law as stated from the bench; in such cases, I hesi- 
 tate not to think, that the truth of a charge ought 
 not to justify its publication. If a private man is 
 charged with a crime, he ought to be prosecuted 
 in a court of justice, where he may be punished, 
 if it is true, and the accuser, if it is false. But far 
 differently do I deem of the freedom of pohtical 
 publication. The salutary restraint of the former 
 species, which I talked of, is found in the general 
 law of all societies whatever; but the more enlarged 
 freedom of the press, for which I contend, in poh- 
 tical publication, I conceive to be founded in the 
 peculiar nature of the British constitution, and to 
 follow directly from the contract on which the 
 British government hath been placed by the Revo- 
 lution. By the British constitution, the power of 
 the state is a trust, committed by the people, upon 
 certain conditions; by the violation of which, it 
 may be abdicated by those who hold, and resumed 
 by those who conferred it. The real security, there- 
 fore, of the British sceptre, is, the sentiment and 
 opinion of the people, and it is, consequently, their 
 duty to observe the conduct of the government; 
 
TEIAIi OP "THE PEESS." 219 
 
 and it is the privilege of every man to give tliem 
 full and just information upon that important sub- 
 ject. Hence the liberty of the press is inseparably 
 twined with the liberty of the people. 
 
 The press is the great public monitor: its duty 
 is that of the historian and the witness, that "nil 
 falsi audeat, nil veri non aucleat dicer e;" that its 
 horizon shaU extend to the farthest verge and 
 limit of truth; that it shall speak truth to the king 
 in the hearing of the people, and to the people in 
 the hearing of the king; that it shall not perplex 
 either the one or the other with false alarm, lest 
 it lose its characteristic veracity, and become an 
 unheeded warner of real danger; lest it should 
 vainly warn them of that sin, of which the inevi- 
 table consequence is death. This, gentlemen, is the 
 great privilege upon which you are to decide ; and 
 I have detained you the longer, because of the late 
 change of the law, and because of some obser- 
 vations that have been made, which I shaU find it 
 necessary to compare with the principles I have 
 now laid down. 
 
 And now, gentlemen, let us come to the imme- 
 diate subject of the trial, as it is brought before 
 you, by the charge ia the indictment, to which it 
 ought to have been confined; and also, as it is 
 presented to you by the statement of the learned 
 counsel who has taken a much wider range than 
 the mere limits of the accusation, and has endea- 
 voured to force upon your consideration extraneous 
 
220 ME. cubean's speech on the 
 
 and irrelevant facts, for reasons wMcli it is not my 
 duty to explain. 
 
 The indictment states simply that Mr. Finnerty 
 has published a false and scandalous libel upon 
 the Lord Lieutenant of Ireland, tending to bring 
 his government into disrepute, and to alienate the 
 affections of the people; and one would have ex- 
 pected, that, without stating any other matter, the 
 counsel for the crown would have gone directly 
 to the proof of this allegation; but he has not done 
 so; he has gone to a most extraordinary length, 
 indeed, of preliminary observation, and an allusion 
 to facts, and sometimes an assertion of facts, at 
 which, I own, I was astonished, until I saw the 
 drift of these allusions and assertions. Whether 
 you have been fairly dealt with by him, or are 
 now honestly with by me, you must be judges. 
 
 He has been pleased to say, that this prosecution 
 is brought against this letter signed "Marcus," 
 merely as a part of what he calls a system of 
 attack upon the government, by the paper called 
 " The Press." As to this, I wUl only ask you whether 
 you are fairly dealt with? whether it is fair treat- 
 ment to men upon their oaths, to insinuate to them, 
 that the general character of a newspaper (and 
 that general character founded merely upon the 
 assertion of the prosecutor), is to have any in- 
 fluence upon their minds, when they are to judge 
 of a particular publication? I will only ask you, 
 what men you must be supposed to be, when it is 
 
TEIAL OP "THE PRESS." 221 
 
 tliouglit, that even in a court of justice, and with 
 the eyes of the nation upon you, you can be the 
 dupes of that trite and exploded expedient, so 
 scandalous of late in this country, of raising a vul- 
 gar and mercenary cry against whatever man, or 
 whatever principle, it is thought necessary to put 
 down; and I shall, therefore, merely leave it to 
 your own pride to suggest upon what foundation 
 it could be hoped, that a senseless clamour of that 
 kind could be echoed back by the yeU of a jury 
 upon their oaths. I trust you see that this has 
 nothing to do with the question. 
 
 G-entlemen of the jury, other matters have been 
 mentioned, which I must repeat for the same pur- 
 pose; that of showing you that they have nothing 
 to do with the question. The learned counsel has 
 been pleased to say, that he comes forward in this 
 prosecution as the real advocate for the hberty of 
 the press, and to protect a mild and a merciful 
 government from its hcentiousness; and he has 
 been pleased to add, that the constitution can 
 never be lost while its freedom remains, and that 
 its hcentiousness alone can destroy that freedom. 
 As to that, gentlemen, he might as well have said, 
 that there is only one mortal disease of which a 
 man can die: I can die the death inflicted by 
 tyranny; and when he comes forward to extinguish 
 this paper, in the ruin of the printer, by a state 
 prosecution, in order to prevent its dying of hcen- 
 tiousness, you must judge how candidly he is 
 
222 ME. ctjrean's speech on the 
 
 treating you, botli in tte fact and in the reasoning. 
 Is it in Ireland, gentlemen, that we are told licen- 
 tiousness is the only disease that can be mortal to 
 the press? Has he heard of nothing else that has 
 been fatal to the freedom of publication? I know- 
 not whether the printer of the Northern Star may 
 have heard of such things in his captivity; but I 
 know that his wife and children are well apprized 
 that a press may be destroyed in the open day, 
 not by its own licentiousness, but by the hcen- 
 tiousness of a military force. 
 
 As to the sincerity of the declaration, that the 
 state has prosecuted, in order to assert the freedom 
 of the press, it starts a train of thought, — of melan- 
 choly retrospect and direful prospect, — to which 
 I did not think the learned counsel would have 
 wished you to commit your minds. It leads you 
 naturally to reflect at what times, from what mo- 
 tives, and with what consequences, the government 
 has displayed its patriotism, by prosecutions of 
 this sort. As to the motives, does history give 
 you a single instance in wlaich the state has been 
 provoked to these conflicts, except by the fear of 
 truth and by the love of vengeance? Have you 
 ever seen the rulers of any country bring forward 
 a prosecution from motives of fihal piety, for Hbels 
 upon their departed ancestors? Do you read that 
 Elizabeth directed any of those state prosecutions 
 against Ubels which the divines of her times had 
 written against her Cathohc sister, or against the 
 
TEIAL OP "THE PRESS." 223 
 
 other libels which the same gentlemen had written 
 against her Protestant father? No, gentlemen, we 
 read of no such thing; but we know she did bring 
 forward a prosecution from motives of personal 
 resentment; and we know that a jury was found 
 time-serving and mean enough to give a verdict 
 which she was ashamed to carry into effect. 
 
 I said the learned counsel drew you back to the 
 times that have been marked by these miserable 
 conflicts. I see you turn your thoughts to the 
 reign of the second James. I see you turn your 
 eyes to those pages of governmental abandonment, 
 of popular degradation, of expiring liberty, of mer- 
 ciless and sanguinary persecution; to that miserable 
 period, in which the fallen and abject state of man 
 might have been almost an argument in the mouth 
 of the atheist and the blasphemer, against the 
 existence of an all-just and an all-wise First Cause; 
 if the glorious era of the Revolution that followed 
 it had not refuted the impious inference, by show- 
 ing that if a man descends, it is not in his own 
 proper motion; that it is with labour and with 
 pain; that he can continue to sink only until, by 
 the force and pressure of the descent, the spring 
 of his inunortal faculties acquires that recuperative 
 energy and effort that hurries him as many miles 
 aloft; that he sinks but to rise again. It is at that 
 period that the state seeks for shelter in the de- 
 struction of the press; it is in a period like that, 
 that the tyrant prepares for an attack upon the 
 
224 MR. cubran's speech on the 
 
 people, by destroying the liberty of tbe press; by 
 taking away that shield of wisdom and of virtue, 
 behind which the people are invulnerable; in whose 
 pure and polished convex, ere the lifted blow has 
 fallen, he beholds his own image, and is turned 
 into stone. It is at those periods that the honest 
 man dares not speak, because truth is too dread- 
 ful to be told; it is then humanity has no ears, be- 
 cause humanity has no tongue. It is then the proud 
 man scorns to speak, but, hke a physician baffled 
 by the wayward excesses of a dying patient, retires 
 indignantly from the bed of an unhappy wretch, 
 whose ear is too fastidious to bear the sound of 
 wholesome advice, whose palate is too debauched 
 to bear the salutary bitter of the medicine that 
 might redeem him; and therefore leaves him to 
 the felonious piety of the slaves that talk to him 
 of life, and strip him before he is cold. 
 
 I do not care, gentlemen, to exhaust too much 
 of your attention, by following this subject through 
 the last century with much minuteness; but the 
 facts are too recent in your mind not to show you, 
 that the liberty of the press and the liberty of the 
 people sink and rise together; that the liberty of 
 speaking and the liberty of acting have shared 
 exactly the same fate. You must have observed 
 in England, that their fate has been the same in 
 the successive vicissitudes of their late depression; 
 and sorry I am to add, that this country has ex- 
 hibited a melancholy proof of their inseparable 
 
TBIAIi OF "THE PEESS." 225 
 
 destiny, ttrougli the various and fitful stages of 
 deterioration, down to the period of their final ex- 
 tinction, when the constitution has given place to 
 the sword, and the only printer in Ireland who 
 dares to speak for the people is now in the dock. 
 
 Gentlemen, the learned counsel has made the 
 real subject of this prosecution so small a part of 
 his statement, and has led you into so wide a 
 range — certainly as necessary to the object, as in- 
 applicable to the subject of this prosecution — that 
 I trust you will think me excusable in having some- 
 what followed his example. Grlad am I to find that 
 I have the authority of the same example for com- 
 ing at last to the subject of this trial. I agree 
 with the learned counsel that the charge made 
 against the Lord Lieutenant of Ireland is that of 
 having grossly and inhumanly abused the royal 
 prerogative of mercy, of which the King is only 
 the trustee for the benefit of the people. The facts 
 are not controverted. It has been asserted that 
 their truth or falsehood is indifferent, and they are 
 shortly these, as they appear in this pubhcation. 
 
 "William Orr was indicted for having adminis- 
 tered the oath of a United Irishman. Every man 
 now knows what the oath is: that it is simply an 
 engagement, first, to promote a brotherhood of 
 affection among men of aU rehgious distinctions; 
 secondly, to labour for the attainment of a parlia- 
 mentary reform; and thirdly, an obhgation of se- 
 crecy, wliich was added to it when the convention 
 
 15 
 
226 ME. curean's speech on the 
 
 law made it criminal and pnnisliable to meet by 
 any public delegation for that purpose. 
 
 After remaining upwards of a year in gaol, Mr. 
 Orr was brought to his trial; was prosecuted by 
 the state; was sworn against by a common informer 
 of the name of Wheatly, who himself had taken 
 the obligation; and was convicted under the In- 
 surrection Act, which makes the administering such 
 an obhgation felony of death. The jury recom- 
 mended Mr. Orr to mercy, and the judge, with a hu- 
 manity becoming his character, transmitted the 
 recommendation to the noble prosecutor in this 
 case. Three of the jurors made solemn affidavit 
 in court, that hquor had been conveyed into their 
 box; that they were brutally threatened by some 
 of their feUow-jurors with criminal prosecution if 
 they did not find the prisoner guilty; and that 
 under the impression of those threats, and worn 
 down by watching and intoxication, they had given 
 a verdict of guilty against him, though they be- 
 lieved him in their consciences to be innocent. That 
 further inquiries were made, which ended in a dis- 
 covery of the infamous life and character of the 
 informer; that a respite was therefore sent once, 
 and twice, and thrice, to give time, as Mr. Attor- 
 ney-General has stated, for his Excellency to con- 
 sider whether mercy cotdd be extended to him 
 or not; and that with a knowledge of all these 
 circumstances, his Excellency did finally deter- 
 mine that mercy should not be extended to him; 
 
.TRIAL or "THE PRESS," 227 
 
 and that lie was accordingly executed upon that 
 verdict. 
 
 Of this pubHcation, which the indictment charges 
 to be false and seditious, Mr. Attorney-Greneral is 
 pleased to say, that the design of it is to bring the 
 courts of justice into contempt. As to this point 
 of fact, gentlemen, I beg to set you right. 
 
 To the administration of justice, so far as it re- 
 lates to the judges, this publication has not even 
 an allusion in any part mentioned in this indict- 
 ment; it relates to a department of justice that 
 cannot begin until the duty of the judge closes. 
 Sorry should I be, that, with respect to this un- 
 fortunate man, any censure should be flung on those 
 judges who presided at his trial, with the mildness 
 and temper that became them upon so awful an 
 occasion as the trial of hfe and death. Sure am I, 
 that if they had been charged with inhumanity or 
 injustice, and if they had condescended at all to 
 prosecute the reviler, they would not have come 
 forward in the face of the public to say, as has been 
 said this day, that it was immaterial whether the 
 charge was true or not. Sure I am, their first object 
 would have been to show that it was false, and 
 readily should I have been an eye-witness of the 
 fact, to have discharged the debt of ancient friend- 
 ship, of private respect, and of public duty, and 
 upon my oath to have repelled the falsehood of 
 such an imputation. 
 
 Upon this subject, gentlemen, the presence of 
 
 15* 
 
228 MB. cueean's speech on jhe 
 
 those venerable judges restrains what I might 
 otherwise have said, nor should I have named them 
 at all, if I had not been forced to do so, and merely 
 to undeceive you, if you have been made to beheve 
 their characters to have any community of cause 
 whatever with the Lord Lieutenant of L-eland. To 
 him alone it is confined, and against him the charge 
 is made, as strongly, I suppose, as the writer could 
 find words to express it, that the Viceroy of Ireland 
 has cruelly abused the prerogative of royal mercy, 
 in suffering a man under such circumstances to 
 perish like a common malefactor. For this Mr. 
 Attorney -General calls for your conviction as a 
 false and scandalous hbel; and after stating him- 
 self every fact that I have repeated to you, either 
 from his statement, or from the evidence, he teUs 
 you that you ought to find it false and scandalous, 
 though he almost in words admits that it is not 
 false, and has resisted the admission of the evidence 
 by which we offered to prove every word of it to 
 be true. 
 
 And here, gentlemen, give me leave to remind 
 you of the parties before you. 
 
 The traverser is a printer, who follows that pro- 
 fession for bread, and who, at a time of great pubhc 
 misery and terror, when the people are restrained 
 by law from debating under any delegated form; 
 when the few constituents that we have are pre- 
 vented by force from meeting in their own persons, 
 to deliberate or to petition; when every other 
 
TEIAIi OF "THE PBESS." 229 
 
 paper in Ireland is put down by force, or purchased 
 by the administration (though here, gentlemen, 
 perhaps I ought to beg your pardon for stating 
 without authority; I recollect when we attempted 
 to examine as to the number of newspapers in the 
 pay of the castle, that the evidence was objected 
 to); at a season hke this, Mr.Finnerty has had the 
 courage, perhaps the folly, to print the publication 
 in question, for no motive under heaven of malice 
 or vengeance, but in the mere duty which he owes 
 to his family, and to the public. 
 
 His prosecutor is the King's minister in Ireland; 
 in that character does the learned gentleman mean 
 to say, that his conduct is not a fair subject of 
 public observation? "Where does he find his au- 
 thority for that in the law or practice of the sister 
 country? Have the virtues, or the exalted station, 
 or the general love of his people preserved the 
 sacred person even of the royal master of the pro- 
 secutor, from the asperity and intemperance of 
 public censure, unfounded as it ever must be, with 
 any personal respect to his Majesty, in justice or 
 truth? Have the gigantic abilities of Mr. Pitt, have 
 the more gigantic talents of his great antagonist, 
 Mr. Fox, protected either of them from the insolent 
 familiarity, and for aught we know, the injustice 
 with which writers have treated thom? What lati- 
 tude of itivective has the King's minister escaped 
 upon the subject of the present war? Is there an 
 epithet of contumely, or of reproach, that hatred 
 
230 ME. cijeean's speech on the 
 
 or that fancy could suggest, that is not publicly 
 lavished upon them? Do you not find the words, 
 advocate of despotism, robber of the pubhc trea- 
 sure, murderer of the King's subjects, debaucher 
 of the public morality, degrader of the constitution, 
 tarnisher of the British empire, by frequency of 
 use lose all meaning whatsoever, and dwindle into 
 terms, not of any pecuhar reproach, but of ordinary 
 appellation? 
 
 And why, gentlemen, is this permitted in that 
 country? I'll tell you why; because in that country 
 they are yet wise enough to see that the measures 
 of the state are the proper subject for the freedom 
 of the press ; that the principles relating to personal 
 slander do not apply to rulers or to ministers ; that 
 to publish an attack upon a public minister, without 
 any regard to truth, but merely because of its 
 tendency to a breach of the peace, would be ridi- 
 culous in the extreme. What breach of the peace, 
 gentlemen, I pray you, is such a case? Is it the 
 tendency of such pubhcations to provoke Mr. Pitt 
 or Mr. Dundas to break the head of the writer, if 
 they should happen to meet him? No, gentlemen; 
 in that country this freedom is exercised, because 
 the people feel it to be their right; and it is wisely 
 suffered to pass by the state, from a consciousness 
 that it would be vain to oppose it; a consciousness 
 confirmed by the event of every incautious experi- 
 ment. It is suffered to pass from a conviction, tliat, 
 in a court of justice at least, the bulwarks of the 
 
TBIAIi OF "THE PRESS." 231 
 
 constitution will not be surrendered to the state; 
 and that the intended victim, whether clothed in 
 the humble guise of honest industry, or decked in 
 the honours of genius, and virtue, and philosophy, 
 whether a Hardy or aTooke, will find certain pro- 
 tection in the honesty and spirit of anEnghsh jury. 
 But, gentlemen, I suppose Mr. Attorney-General 
 will scarcely wish to carry his doctrine altogether 
 so far. Indeed, I remember, he declared himself a 
 most zealous advocate for the liberty of the press. 
 I may, therefore, even according to him, presume 
 to make some observations on the conduct of the 
 existing government. I should wish to know how 
 far he supposes it to extend; is it to the composition 
 of lampoons and madrigals, to be sung down the 
 grates by ragged ballad-mongers to kitchen maids 
 and footmen? I will not suppose that he means to 
 confine it to the ebullitions of Billingsgate, to those 
 cataracts of ribaldry and scurrility, that are daily 
 spouting upon the miseries of our wretched fellow- 
 sufferers, and the unavailing efforts of those who 
 have vainly laboured in their cause. I will not sup- 
 pose that he confines it to the poetic license of a 
 birth day ode; the Laureat would not use such 
 language! In which case I do not entirely agree 
 with him, that the truth or the falsehood is as 
 perfectly immaterial to the law, as it is to the 
 Laureat; as perfectly unrestrained by the law of 
 the land, as it is by any law of decency or shame, 
 of modesty or decorum. 
 
232 ME. curran's speech on the 
 
 But as to tlie privilege of censure or blame, I am 
 sorry that tlie learned gentlemen has not favoured 
 you with his notion of the hberty of the press. 
 
 Suppose an Irish Viceroy acts a very little ab- 
 surdly, may the press venture to be respectfully 
 comical upon that absurdity? The learned counsel 
 does not, at 'east in terms, give a negative to that. 
 But let me treat you honestly, and go further, to a 
 more material point; suppose an Irish Viceroy does 
 an act that brings scandal upon his master, that 
 fills the mind of a reasonable man with the fear of 
 approaching despotism; that leaves no hope to the 
 people of preserving themselves and their children 
 from chains, but in common confederacy for com- 
 mon safety. What is that honest man in that case 
 to do? 
 
 I am sorry the right honourable advocate for the 
 liberty of the press has not told you his opinion, at 
 least in any express words. I will therefore venture 
 to "give you my far humbler thoughts upon the 
 subject. 
 
 I think an honest man ought to tell the people 
 frankly and boldly of their peril; and I must say I 
 can imagine no villany greater than that of his 
 holding a traitorous silence at such a crisis, except 
 the villany and baseness of prosecuting him, or of 
 finding him guilty for such an honest discharge of 
 his public duty. And I found myself on the knoAvn 
 principle of the revolution of England, namely, 
 that the crown itself may be abdicated by certain 
 
TEIAL OF "THE PEESS." 233 
 
 abuses of the trust reposed; and that there are 
 possible excesses of arbitrary power, which it is 
 not only the right, but the bounden duty, of every 
 honest man to resist, at the risk of his fortune and 
 his life. 
 
 Now, gentlemen, if this reasoning be admitted, 
 and it cannot be denied; if there be any possible 
 event in which the people are obliged to look only 
 to themselves, and are justified in doing so ; can you 
 be so absurd as to say, that it is lawful for the 
 people to act upon it when it unfortunately does 
 arrive, but that it is criminal in any man to teU them 
 that the miserable event has actually arrived, or is 
 imminently approaching? Far am I, gentlemen, 
 from insinuating that (extreme as it is) our misery 
 has been matured into any deplorable crisis of this 
 kind, from which I pray that the Almighty God 
 may for ever preserve us! But I am putting my 
 principles upon the strongest ground, and most 
 favourable to my opponents, namely, that it never 
 can be criminal to say any thing of government 
 but what is false; and I put this in the extreme, in 
 order to demonstrate to you, a fortiori, that the 
 privilege of speaking truth to the people, which 
 holds in the last extremity, must also obtain in 
 every stage of inferior importance ; and that, how- 
 ever a court may have decided, before the late act, 
 that the truth was immaterial in case of libel, since 
 that act, no honest jury can be governed by such 
 principle. 
 
234 ME. cueran's speech on the 
 
 Be pleased now, gentlemen, to consider the 
 grounds upon wMch. this publication is called a 
 libel, and criminal. 
 
 Mr. Attorney-General teUs you it tends to excite 
 sedition and insurrection. Let me again remind 
 you, that the truth of this charge is not denied by 
 the noble prosecutor. What is it then that tends 
 to excite sedition and insurrection? "The act that 
 is charged upon the prosecutor, and is not attempted 
 to be denied?" And, gracious Grod! gentlemen of 
 the jury, is the public statement of the King's re- 
 presentative this, "I have done a deed that must 
 fill the mind of every feeling or thinking man with 
 horror and indignation; that must alienate every 
 man that knows it from the King's government, 
 and endanger the separation of this distracted 
 empire: the traverser has had the guilt of pub- 
 hshing this fact, which I myself acknowledge, and 
 I pray you to find him guilty?" Is this the case 
 which the Lord Lieutenant of Ireland brings for- 
 ward? Is this the principle for which he ventures, 
 at a dreadful crisis like the present, to contend in 
 a court of justice ? Is this the picture which he 
 wishes to hold out of himself to the justice and 
 humanity of his own countrymen? Is this the his- 
 tory which he wishes to be read by the poor 
 Irishmen of the South and of the North, by the 
 sister nation, and the common enemy? 
 
 With the profoundest respect, permit me humbly 
 to defend his Excellency, even against his own 
 
TEIAIi OF "THE PEESS." 235 
 
 opinion. The guilt of this pubhcation he is pleased 
 to think consists in this, that it tends to insurrec- 
 tion. Upon what can such a fear be supported? 
 After the multitudes that have perished in this 
 unhappy nation within the last three years, un- 
 happiness which has been borne with a patience 
 not paralleled in the history of nations, can any 
 man suppose that the fate of a single iadividual 
 could lead to resistance or insurrection? 
 
 But suppose that it might, what then ought to 
 be the conduct of an honest man? Should it not 
 be to apprize the government of the country and 
 the Viceroy, — you will drive the people to mad- 
 ness, if you persevere in such bloody councils; you 
 wiU alienate the Irish nation; you will distract the 
 common force; and you will invite the common 
 enemy? Should not an honest man say to the 
 people, — the measure of your affliction is great, 
 but you need not resort for remedy to any des- 
 perate expedients. If the King's minister is defect- 
 ive in humanity or wisdom, his royal master, your 
 beloved sovereign, is abounding in both. At such 
 a moment, can you be so senseless as not to feel, 
 that any one of you ought to hold such language; 
 or is it possible you could be so infatuated, as to 
 punish the man who was honest enough to hold 
 it? — or is it possible that you could bring your- 
 selves to say to your country, that at such a season, 
 the press ought to sleep upon its post, or to act 
 like the perfidious watchman on his round, that 
 
236 ME. cueean's speech on the 
 
 sees the villain wrencHng the door, or the flames 
 bursting from the windows, while the inhabitant is 
 wrapt in sleep, and cries out that "'tis past five 
 o'clock, the morning is fair, and all well?" 
 
 On this part of the case I shall only put one 
 question to you. I do not affect to say it is similar 
 in all its points; I do not affect to compare the 
 humble fortunes of Mr. Orr with the sainted names 
 of EusseU or Sidney ; still less am I willing to find 
 any hkeness between the present period and the 
 year 1688. But I will put a question to you, com- 
 pletely parallel in principle: When that unhappy 
 and misguided monarch had shed the sacred blood, 
 which their noble hearts had matm'ed into a fit 
 cement of revolution, if any honest Enghshman had 
 been brought to trial for daring to proclaim to the 
 world his abhorrence of such a deed, what would 
 you have thought of the English jury that could 
 have said, — we know in our hearts what he said 
 was true and honest, but we will say, upon our 
 oaths, that it was false and criminal; and we wiU, 
 by, that base subserviency, add another item to the 
 catalogue of pubHc wrongs, and another argument 
 for the necessity of an appeal to heaven for re- 
 dress ? 
 
 Gentlemen, I am perfectly aware that what I 
 say may be easily misconstrued; but if you listen 
 to me, with the same fairness that I address you, I 
 cannot be misunderstood. When I show you the 
 full extent of your political rights and remedies; 
 
TRIAL OF "THE PRESS." 237 
 
 when I answer those slanderers of Britisli liberty, 
 wto degrade the monarch into a despot, who per- 
 vert the steadfastness of law into the waywardness 
 of will ; when I show you the inestimable stores of 
 pohtical wealth, so dearly acquired by our ancestors, 
 and so solemnly bequeathed; and when I show you 
 how much of that precious inheritance has yet sur- 
 vived all the prodigahty of their posterity, I am 
 far from saying that I stand in need of it all upon 
 the present occasion. No, gentlemen, far am I in- 
 deed from such a sentiment. No man more deeply 
 than myself deplores the present melancholy state 
 of our unhappy country. Neither does any man 
 more fervently wish for the return of peace and 
 tranquilHty, through the natural channels of mercy 
 and of justice. I have seen too much of force and 
 of violence to hope much good from the continu- 
 ance of them on the one side, or the retaliation of 
 them on another. I have of late seen too much of 
 pohtical rebuilding, not to have observed, that to 
 demolish is not the shortest way to repair. It is 
 with pain and anguish that I should search for the 
 miserable right of breaking ancient ties, or going 
 in quest of new relations, or untried adventures. 
 No, gentlemen; the case of my chent rests not 
 upon these sad privileges of despair. I trust, that 
 as to the fact, namely, the intention of exciting 
 insurrection, you must see it cannot be found in 
 this pubhcation; that it is the mere idle, unsup- 
 ported imputation of mahce, or panic, or falsehood. 
 
238 ME. cuhean's speech on the 
 
 And that as to the law, so far has he been from 
 transgressing the limits of the constitution, that 
 whole regions he between him and those limits, 
 which he has not trod, and which I pray to heaven 
 it may never be necessary for any of us to tread. 
 
 Gentlemen, Mr. Attorney - Gleneral has been 
 pleased to open another battery upon this pubh- 
 cation, which I do trust I shall silence, unless I 
 flatter myself too much in supposing that hitherto 
 my resistance has not been utterly unsuccessful. 
 
 He abuses it for the foul and insolent familiarity 
 of its address. I do clearly understand his idea; 
 he considers the freedom of the press to be the 
 license of offering that paltry adulation which no 
 man ought to stoop to utter or to hear; he sup- 
 poses the freedom of the press ought to be hke 
 the freedom of a king's jester, who, instead of re- 
 proving the faults of which majesty ought to be 
 ashamed, is base and cunning enough, under the 
 mask of servile and adulatory censure, to stroke 
 down and pamper those Adces of which it is foohsh 
 enough to be vain. He would not have the press 
 presume to tell the Viceroy, that the prerogative 
 of mercy is a trust for the benefit of the subject, 
 and not a gaudy feather stuck into the diadem to 
 shake in the vsdnd, and by the wa-\dng of the gor- 
 geous plumage to amuse the vanity of the wearer. 
 He would not have it to say to him, that the dis- 
 cretion of the crown as to mercy, is hke the dis- 
 cretion of a court of justice as to law; and that ia 
 
TEIAL OF "THE PEESS." 239 
 
 tHe one case, as well as the other, wherever the 
 propriety of the exercise of it appears, it is equally 
 a matter of right. He would have the press aU 
 fierceness to the people, and aU sycophancy to 
 power; he would consider the mad and frenetic 
 outrages of authority, like the awful and inscrutable 
 dispensations of Providence, and say to the un- 
 feeling and despotic spoiler, in the blasphemed and 
 insulted language of religious resignation, "the 
 Lord hath given, and the Lord hath taken away, 
 blessed be the name of the Lord." 
 
 But let me condense the generality of the learned 
 gentleman's invective into questions that you can 
 conceive. Does he mean that the air of this publi- 
 cation is rustic and uncourtly? Does he mean, 
 that when "Marcus" presumed to ascend the steps 
 of the castle, and to address the Viceroy, he did 
 not turn out his toes as he ought to have done? 
 But, gentlemen, you are not a jury of dancing- 
 masters: or does the learned gentleman mean that 
 the language is coarse and vulgar? If this be his 
 complaint, my chent has but a- poor advocate. 
 
 I do not pretend to be a mighty grammarian, 
 or a formidable critic; but I would beg leave to 
 suggest to you, in serious humility, that a free 
 press can be supported only by the ardour of men 
 who feel the prompting sting of real or supposed 
 capacity; who write from the enthusiasm of virtue, 
 or the ambition of praise, and over whom, if you 
 exercise the rigour of a grammatical censorship, 
 
240 ME. cueean's speech on the 
 
 you will inspire tliem with as mean an opinion of 
 your integrity as of your wisdom, and inevitably 
 drive them from their post; and if you do, rely 
 upon it, you will reduce the spirit of pubhcation, 
 and with it the press of this country, to what it 
 for a long interval has been, the register of births, 
 and fairs, and funerals, and the general abuse of 
 the people and their friends. 
 
 Grentlemen, in order to bring this charge of in- 
 solence and vulgarity to the test, let me ask you, 
 whether you know of any language which could 
 have adequately described the idea of mercy denied, 
 where it ought to have been granted; or of any 
 phrase vigorous enough to convey the indignation 
 which an honest man would have felt upon such 
 a subject? 
 
 Let me beg of you for a moment to suppose 
 that any one of you had been the writer of this 
 very severe expostulation with the Viceroy, and 
 that you had been the witness of the whole pro- 
 gress of tliis never-to-be-forgotten catastrophe. 
 
 Let me suppose that you had known the charge 
 upon which Mr. Orr was apprehended — the charge 
 of abjuring that bigotry which had torn and dis- 
 graced his country — of pledging himself to restore 
 the people of his country to their place in the 
 constitution — and of binding himself never to be 
 the betrayer of his fellow-labourers in that enter- 
 prise; that you had seen him upon that charge 
 removed from his industry, and confined in a gaol; 
 
TRIAL OF "THE PRESS." 241 
 
 ttat through the slow and hngering progress of 
 twelve tedious months you had seen him. confined 
 in a dungeon, shut out from the common use of 
 air and of his own limbs; that day after day you 
 had marked the unhappy captive cheered by no 
 sound but the cries of his family, or the cHnking 
 of chains; that you had seen him at last brought 
 to his trial; that you had seen the vile and per- 
 jured informer deposing against his hfe; that you 
 had seen the drunken, and worn-out, and terrified 
 jury give in a verdict of death; that you had seen 
 the same jury, when their returning sobriety had 
 brought back their conscience, prostrate them- 
 selves before the humanity of the bench, and pray 
 that the mercy of the crown might save their 
 characters from the reproach of an involuntary 
 crime, their consciences from the torture of eternal 
 self-condemnation, and their souls from the in- 
 dehble stain of innocent blood. 
 
 Let me suppose that you had seen the respite 
 given, and that contrite and honest recommenda- 
 tion transmitted to that seat where mercy was 
 presumed to dwell — that new and before unheard- 
 of crimes are discovered against the informer — 
 that the royal mercy seems to relent, and that a 
 new respite is sent to the prisoner — that time is 
 taken, as the learned counsel for the crown has 
 expressed it, to see whether mercy could be ex- 
 tended or not! — that after that period of lingering 
 dehberation passed, a third respite is transmitted 
 
 16 
 
242 MB. cueran's speech on the 
 
 ■ — that the unhappy captive himself feels the cheer- 
 ing hope of being restored to a family that he had 
 adored, to a character that he had never stained, 
 and to a country that he had ever loved — that you 
 had seen his wife and children upon their knees, 
 giving those tears to gratitude, which their locked 
 and frozen hearts could not give to anguish and 
 despair, and imploring the blessings of Eternal 
 Providence upon his head, who had graciously 
 spared the father, and restored him to his children 
 — that you had seen the olive branch sent into 
 his httle ark, but no sign that the waters had 
 subsided. 
 
 «Alas! 
 Nor wife, nor oMldren more stall lie teliold — > 
 Nor friends, nor sacred home !" 
 
 No seraph mercy unbars his dungeon, and leads 
 him forth to light and life; but the minister of 
 death hurries him to the scene of suffering and of 
 shame, where, unmoved by the hostUe array of 
 artillery and armed men collected together, to 
 secure, or to insult, or to disturb him, he dies with 
 a solemn declaration of his innocence, and utters 
 his last breath in a prayer for the hberty of his 
 country. 
 
 Let me now ask you, if any of you had addressed 
 the public ear upon so foul and monstrous a sub- 
 ject, in what language would you have conveyed 
 the feehngs of horror and indignation? Would 
 you have stooped to the meanness of quahfied 
 
TBIAL OF "THE PRESS." 243 
 
 complaint? — ^would you have checked your feel- 
 ings to search, for courtly and gaudy language? — 
 would you have been mean enough — but I entreat 
 your forgiveness — ^I do not think meanly of you. 
 Had I thought so meanly of you, I could not suffer 
 my mind to commune with you as it has done; 
 had I thought you that base and vile instrument, 
 attuned by hope and by fear into discord and 
 falsehood, from whose vulgar string no groan of 
 suffering could vibrate, no voice of integrity or 
 honour could speak, let me honestly teU you, I 
 should have scorned to ihng my hand across it — ^I 
 should have left it to a fitter minstrel. If I do not, 
 therefore, grossly err in my opinion of you, I could 
 use no language upon such a subject as this, that 
 must not lag behind the rapidity of your feelings, 
 and that would not disgrace those feehngs, if it 
 attempted to describe them. 
 
 Gentlemen, I am not unconscious that the learned 
 counsel for the crown seemed to address you with 
 a confidence of a very different kind: he seemed 
 to expect from you a kind and respectful sym- 
 pathy with the feelings of the Castle, and with the 
 griefs of chided authority. Perhaps, gentlemen, he 
 may know you better than I do. If he does, he 
 has spoken to you as he ought; he has been right 
 in telling you, that if the reprobation of this writer 
 is weak, it is because his genius could not make it 
 stronger; he has been right in telhng you, that 
 his language has not been braided and festooned 
 
 16* 
 
244 ME. cueean's speech on the 
 
 as elegantly as it miglit — that the has not pinched 
 the miserable plaits of his phraseology, nor placed 
 his patches and feathers with that correctness of 
 m illin ery which became so exalted, a person. 
 
 If you agree with him, gentlemen of the jury — - 
 if you think that the man who ventures, at the 
 hazard of his own hfe, to rescue from the deep, 
 the drowning honour of his country, you must not 
 presume upon the guilty famiUarity of plucking it 
 up by the locks. I have no more to say; do a 
 courteous thing. Upright and honest jurors, find 
 a civil and obliging verdict against the printer! 
 And when you have done so, march through the 
 ranks of your feUow-citizens to your own homes, 
 and bear their looks as you pass along. Retire to 
 the bosom of your families and your children, and 
 when you are presiding over the morahty of the 
 parental board, teU those infants, who are to be 
 the future men of Ireland, the history of this day. 
 Form their young minds by your precepts, and 
 confirm those precepts by your own example — 
 teach them how discreetly allegiance may be per- 
 jured on the table, or loyalty be forsworn in the 
 jury-box; and when you have done so, teU them 
 the story of Orr — tell them of his captivity, of his 
 children, of his crime, of his hopes, of his disap- 
 pointments, of his courage, and of his death; and 
 when you find your little hearers hanging from 
 your lips — when you see their eyes overflow with 
 sympathy and sorrow — and their young hearts 
 
TEIAIi OP "THE PEESS." 245 
 
 bursting with tlie pangs of anticipated orphanage 
 • — ^tell them that you had the boldness and the 
 justice to stigmatize the monster who had dared 
 to pubhsh the transaction! 
 
 Gentlemen, I believe I told you before, that the 
 conduct of the Viceroy was a small part, indeed, 
 of the subject of this trial. K the vindication of 
 his mere personal character had been, as it ought 
 to have been, the sole object of this prosecution, 
 I should have felt the most respectful regret at 
 seeing a person of his high consideration come 
 forward in a court of public justice, in one and 
 the same breath to admit the truth, and to demand 
 the punishment of a publication Kke the present, 
 to prevent the chance he might have had of such 
 an accusation being disbelieved, and, by a prose- 
 cution hke this, to give to the passing stricture of 
 a newspaper that life and body, and action and 
 reality, to prove it to all mankind, and make the 
 record of it indelible. Even as it is, I do own I 
 leel the utmost concern that his name should have 
 been soiled, by being mixed in a question of which 
 it is the mere pretext and scape-goat. 
 
 Mr. Attorney-General was too wise to state to 
 you the real question, or the object which he 
 wished to be answered by your verdict. Do you 
 remember that he was pleased to say that this 
 publication was a base and foul misrepresentation 
 of the virtue and wisdom of the govermnent, and 
 a false and audacious statement to the world, that 
 
246 MB. oueean's speech on the 
 
 tte King's government in Ireland was base enough 
 to pay informers for taking away the lives of the 
 people? When I heard this statement to-day, I 
 doubted whether you were aware of its tendency 
 or not. It is now necessary that I should explain 
 it to you more at large. 
 
 You cannot be ignorant of the great conflict 
 between prerogative and privilege which hath con- 
 vulsed the country for the last fifteen years; when 
 I say privilege, you, cannot suppose that I mean 
 the privilege of the House of Commons, — I mean 
 the privileges of the people. 
 
 You are no strangers to the various modes by 
 which the people laboured to approach their ob- 
 ject. Delegations, conventions, remonstrances, reso- 
 lutions, petitions to the parliament, petitions to 
 the throne. 
 
 It might not be decorous in this place to state 
 to you, with any sharpness, the various modes of 
 resistance that were employed on the other side; 
 but you, all of you, seem old enough to remember 
 the variety of acts of parHament that have been 
 made, by which the people were deprived, session 
 after session, of what they had supposed to be the 
 known and established fundamentals of the con- 
 stitution, the right of public debate, the right of 
 public petition, the right of bail, the right of trial, 
 the right of arms for self-defence; until the last, 
 even the relics of popular privilege became super- 
 seded by a military force; the press extinguished; 
 
TEIAL OF "THE PEES8," 247 
 
 and tlie state found its last entrenckment in the 
 grave of tlie constitution. As little can you be 
 strangers to the tremendous confederations of 
 hundreds of thousands of your countrymen, of the 
 nature and objects of which such a variety of 
 opinions have been propagated and entertained. 
 
 The writer of this letter presumed to censure 
 the recal of Lord Fitzwilliam, as weU as the mea- 
 sures of the present Viceroy. Into this subject I 
 do not enter; but you cannot yourselves forget 
 that the conciliatory measures of the former noble 
 lord had produced an almost miraculous unanimity 
 in this country; and much do I regret, and sure I 
 am that it is not without pain you can reflect, how 
 unfortunately the conduct of his successor has 
 terminated. His intentions might have been the 
 best ; I neither know them nor condemn them, but 
 their terrible effects you cannot be bhnd to. Every 
 new act of coercion has been followed by some 
 new symptom of discontent, and every new attack 
 provoked some new paroxysm of resentment, or 
 some new combination of resistance. 
 
 In this deplorable state of affairs — convulsed 
 and distracted within, and menaced by a most 
 formidable enemy from without — it was thought 
 that public safety might be found in union and 
 conciliation; and repeated apphcations were made 
 to the parhament of this kingdom, for a calm in- 
 quiry into the complaints of the people. These 
 apphcations were made in vain. 
 
248 MB. cueean's speech on the 
 
 Impressed by tte same motives, Mr. Fox brought 
 the same subject before the Commons of England, 
 and ventured to ascribe the perilous state of Ireland 
 to the severity of its government. Even his stupen- 
 dous abilities, excited by the liveliest sympathy 
 with our sufferings, and animated by the most 
 ardent zeal to restore the strength with the union 
 of the empire, were repeatedly exerted without 
 success. The fact of discontent was denied — ^the 
 fact of coercion was denied — and the consequence 
 was, the coercion became more implacable, and 
 the discontent more threatening and irreconcilable, 
 
 A similar application was made in the beginning 
 of this session in the Lords of Great Britain, by 
 our illustrious countryman,* of whom I do not 
 wonder that my learned friend should have ob- 
 served, how much virtue can fling pedigree into 
 the shade; or how much the transient honour of 
 a body inherited from man, is obscured by the 
 lustre of an intellect derived from Grod. He, after 
 being an eye-witness of this country, presented the 
 miserable picture of what he had seen; and, to the 
 astonishment of every man in Ireland, the existence 
 of those facts was ventured to be denied; the con- 
 duct of the Viceroy was justified and applauded; 
 and the necessity of continuing that conduct was 
 insisted upon, as the only means of preserving the 
 constitution, the peace, and the prosperity of Ire- 
 land. The moment the learned counsel had talked 
 
 ' Lord Moira. 
 
TEIAJj OP "THE PEESS." 249 
 
 of this publication as a false statement of the con- 
 duct of the' government, and the condition of the 
 people, no man could be at a loss to see that the 
 awful question, which had been dismissed from 
 the Commons of Ireland, and from the Lords and 
 Commons of Great Britain, is now brought forward 
 to be tried by a side wind, and, in a collateral way, 
 by a criminal prosecution. 
 
 The learned counsel has asserted that the paper 
 which he prosecutes is only part of a system formed 
 to misrepresent the state of Ireland and the con- 
 duct of its government. Do you not, therefore, 
 discover that his object is to procure a verdict to 
 sanction the parhaments of both countries in refus- 
 ing an inquiry into your grievances? Let me ask 
 you, then, are you prepared to say, upon your 
 oath, that those measures of coercion, which are 
 daily practised, are absolutely necessary, and ought 
 to be continued? It*is not upon Finnerty you are 
 sitting in judgment; but you are sitting in judg- 
 ment upon the lives and liberties of the inhabitants 
 of more than half of Ireland. You are to say that 
 it is a foul proceeding to condemn the government 
 of Ireland; that it is a foul act, founded in foul 
 motives, and originating in falsehood and sedition; 
 that it is an attack upon a government, under 
 which the people are prosperous and happy; that 
 justice is administered with mercy; that the state- 
 ments made in Great Britain are false — are the 
 effusions of party or of discontent; that all is 
 
250 ME. cueean's speech on the 
 
 mildness and tranquillity; that there are no burn- 
 ings — no transportations; that you never travel by 
 the light of conflagrations; that the gaols are not 
 crowded month after month, from which prisoners 
 are taken out, not for trial, but for embarkation! 
 These are the questions upon which, I say, you 
 must virtually decide. It is in vain that the counsel 
 for the crown may teU you that I am misrepresent- 
 ing the case — that I am endeavouring to raise false 
 fears, and to take advantage of your passions — ■ 
 that the question is, whether this paper be a libel 
 or not — and that the circumstances of the country 
 have nothing to do with it. Such assertions must 
 be vain. The statement of the counsel for the 
 crown has forced the introduction of those im- 
 portant topics; and I appeal to your own hearts 
 whether the country is misrepresented, and whether 
 the government is misrepresented. 
 
 I tell you, therefore, gentlemen of the jury, it is 
 not with respect to Mr. Orr, or Mr. Finnerty, that 
 your verdict is now sought. You are called upon, 
 on your oaths, to say, that the government is wise 
 and merciful — the people prosperous and happy; 
 that military law ought to be continued; that the 
 constitution could not with safety be restored to 
 Ireland; and that the statements of a contrary im- 
 port by your advocates, in either country, are 
 hbellous and false. 
 
 I tell you these are the questions; and I ask 
 you, if you can have the front to give the expected • 
 
TEIAL OF "THE PBESS." 251 
 
 answer in the face of a community who know the 
 country as well as you do? Let me ask you, how 
 you could reconcile with such a verdict, the gaols, 
 the tenders, the gibbets, the conflagrations, the 
 murders, the proclamations that we hear of every 
 day in the streets, and see every day in the country? 
 "What are the prosecutions of the learned counsel 
 himself, circuit after circuit? Merciful God! what 
 is the state of Ireland, and where shall you find 
 the wretched inhabitant of this land! You may 
 find him, perhaps, in a gaol, the only place of 
 security — I had almost said of ordinary habita- 
 tion! If you do not find him there, you may see 
 him flying with his family from the flames of his 
 own dwelhng — hghted to his dungeon by the con- 
 flagration of his hovel; or you may find his bones 
 bleaching on the green fields of his country; or 
 you may find him tossing on the surface of the 
 ocean, and mingling his groans with those tempests, 
 less savage than his persecutors, that drift him to 
 a returnless distance from his family and his home, 
 without charge, or trial, or sentence. Is this a 
 foul misrepresentation? Or can you, with these 
 facts ringing in your ears, and staring in your 
 face, say, upon your oaths, they do not exist? You 
 are called upon, in defiance of shame, of truth, of 
 honour, to deny the sufferings under which you 
 groan, and to flatter the persecution that tramples 
 you under foot. 
 
 Gentlemen, "I am not accustomed to speak of 
 
252 ME. cueban's speech on the 
 
 circumstances of tbis kind; and thougli familiarized 
 as I have been to them, when I come to speak of 
 them, my power fails me — ^my voice dies within 
 me. I am not able to call upon you. It is now I 
 ought to have strength — it is now I ought to have 
 energy and voice. But I have none; I am hke the 
 unfortunate state of the country — ^perhaps, like 
 you. This is the time in which I ought to speak, 
 if I can, or be dumb for ever; in which, if you do 
 not speak as you ought, you ought to be dumb for 
 ever. 
 
 But the learned gentleman is further pleased to 
 say, that the traverser has charged the govern- 
 ment with the encouragement of informers. This, 
 gentlemen, is another small fact that you are to 
 deny at the hazard of your souls, and upon the 
 solemnity of your oaths. You are upon your oaths 
 to say to the sister country, that the government 
 of Ireland uses no such abominable instruments of 
 destruction as informers. Let me ask you honestly, 
 what do you feel, when in my hearing, when in the 
 face of this audience, you are called upon to give 
 a verdict that every man of us, and every man of 
 you know, by the testimony of your own eyes, to 
 be utterly and absolutely false? I speak not now 
 of the public proclamation for informers, Avith a 
 promise of secrecy, and of extravagant reward; I 
 speak not of the fate of those horrid wretches who 
 have been so often transferred from the table to 
 the dock, and from the dock to the pillory; I speak 
 
TBIAIi OF "THE PEESS." 253 
 
 of what your own eyes have seen, day after day, 
 during the course of this commission, from the box 
 where you are now sitting; the number of horrid 
 miscreants, who acknowledged, upon their oaths, 
 that they had come from the seat of government 
 — from the very chambers of the Castle — where 
 they had been worked upon, by the fear of death 
 and the hope of compensation, to give evidence 
 against their fellows; that the mild, the whole- 
 some, and merciful councils of this government 
 are holden over these catacombs of living death, 
 where the wretch that is buried a man, lies tiU 
 his heart has time to fester and dissolve, and is 
 then dug up a witness! 
 
 Is this a picture created by a hag-ridden fancy, 
 or is it fact? Have you not seen him, after his 
 resurrection from that region of death and corrup- 
 tion, make his appearance upon the table, the hv- 
 ing image of life and of death, and the supreme 
 arbiter of both? Have you not marked when he 
 entered, how the stormy wave of the multitude 
 retired at his approach? Have you not seen how 
 the human heart bowed to the supremacy of his 
 power, in the undissembled homage of deferential 
 horror? how his glance, like the hghtning of heaven, 
 seemed to rive the body of the accused, and mark 
 it for the grave, while his voice warned the devoted 
 wretch of woe and death — a death which no ia- 
 nocence can escape, no art elude, no force resist, 
 no antidote prevent. There was an antidote — a 
 
254 MB. cubean's speech on the 
 
 juror's oath! — but even that adamantine chain, 
 that bound the integrity of man to the throne of 
 eternal justice, is solved and molten in the breath 
 that issues from the informer's mouth; conscience 
 swings from her moorings, and the appalled and 
 affrighted juror consults his own safety in the sur- 
 render of the victim: — 
 
 "Et quae sibi quisque timebat, , / 
 
 TJnius in miseri exitium conversa tulere." 
 
 Informers are worshipped in the temple of justice, 
 even as the devil has been worshipped by Pagans 
 and savages — even so in this wicked country, is 
 the informer an object of judicial idolatry — even 
 so is he soothed by the music of human groans — 
 even so is he placated and incensed by the fumes 
 and by the blood of human sacrifices. 
 
 Gentlemen, I feel I must have tired your pa- 
 tience; but I have been forced into this length by 
 the prosecutor, who has thought fit to introduce 
 those extraordinary topics, and to bring a question 
 of mere politics to trial, under the form of a crimi- 
 nal prosecution. I cannot say I am surprised 
 that this has been done, or that you should be 
 solicited by the same inducements, and from the 
 same motives, as if your verdict was a vote of ap- 
 probation. I do not wonder that the government 
 of Ireland should stand appalled at the state to 
 which we are reduced. I wonder not that they 
 should start at the public voice, and labour to 
 stifle or contradict it. I wonder not that at this 
 
TKIAL OP "THE PRESS." 255 
 
 arduous crisis, when the very existence of the em- 
 pire is at stake, and when its strongest and most 
 precious Hmb is not girt with the sword for battle, 
 but pressed by the tourniquet for amputation ; when 
 they find the coldness of death already begun in 
 those extremities where it never ends; that they 
 are terrified at what they have done, and wish to 
 say to the surviving parties of that empire, "they 
 cannot say that we did it." I wonder not that they 
 should consider their conduct as no immaterial 
 question for a court of criminal jurisdiction, and 
 wish anxiously, as on an inquest of blood, for the 
 kind acquittal of a friendly jury. 
 
 I wonder not that they should wish to close the 
 chasm they have opened, by flinging you into the 
 abyss. But trust me, my countrymen, you might 
 perish in it, but you could not close it; trust me, 
 if it is yet possible to close it, it can be done only 
 by truth and honour; trust me, that such an effect 
 could no more be wrought by the sacrifice of a 
 jury, than by the sacrifice of Orr. 
 
 As a state measure, the one would be as unwise 
 and unavailing as the other; but whUe you are yet 
 upon the brink, while you are yet visible, let me, 
 before we part, remind you once more of your 
 awful situation. 
 
 You are upon a great forward ground, with the 
 people at your back, and the government in your 
 front. You have neither the disadvantages nor 
 the excuses of jurors a century ago. No, thank 
 
256 ME. cueban's speech on the 
 
 Grod! never was there a stronger characteristic 
 distinction between those times, upon which no 
 man can reflect, without horror, and the present. 
 You have seen this trial conducted with mildness 
 and patience by the court. We have now no 
 Jefferies, with scurvy and vulgar conceits, to brow- 
 beat the prisoner and perplex his counsel. Such 
 has been the improvement of manners, and so cahn 
 the confidence of integrity, that during the defence 
 of accused persons, the judges sit quietly, and show 
 themselves worthy of their situation, by bearing, 
 with a mild and merciful patience, the little extra- 
 vagancies of the bar, as you should bear with the 
 Httle extravagancies of the press. Let me then 
 turn your eyes to that pattern of mildness in the 
 bench. The press is your advocate; bear with its 
 excess — bear with every thing but its bad inten- 
 tion. If it come as a villanous slanderer, treat it 
 as such; but if it endeavour to raise the honour 
 and glory of your country, remember that you 
 reduce its power to a nonentity, if you stop its 
 animadversions upon pubhc measures. You should 
 not check the efforts of genius, nor damp the ar- 
 dour of patriotism. In vain wiU you desire the bird 
 to soar, if you meanly or madly steal from if its 
 plumage. Beware lest, under the pretence of bear- 
 ing down the hcentiousness of the press, you ex- 
 tinguish it altogether. Beware how you rival the 
 venal ferocity of those miscreants, who rob a printer 
 of the means of bread, and claim from deluded 
 
TEIAIi OP "THE PRESS." 257 
 
 royalty the reward of integrity and allegiance. 
 Let me, therefore, remind you, that though the 
 day may soon come when our ashes shall be scat- 
 tered before the winds of heaven, the memory of 
 what you do cannot die; it will carry down to your 
 posterity your honour or your shame. In the pre- 
 sence and in the name of that ever hving Grod, I 
 do therefore conjure you to reflect, that you have 
 your characters, your consciences, that you have 
 also the character, perhaps the ultimate destiny 
 of your country, in your hands. In that awful 
 name, I do conjure you to have mercy upon your 
 country and yourselves, and so judge now, as you 
 will hereafter be judged; and I do now submit the 
 fate of my chent, and of that country which we 
 have yet in common, to your disposal. 
 
 After a short absence, the jury returned "Guilty" on the issue 
 paper. 
 
 On the following day, the 23rd of December, Mr. Finnerty 
 was brought up for judgment. Mr. Finnerty stated that he had 
 been taken out of prison to Alderman Alexander's office, and 
 there threatened with public whipping, if he did not give up 
 the author of the libel. He boldly defended the latter, but was 
 respectful to the JBenoh. Judge Downes sentenced him to two 
 years' imprisonment from the day of his arrest, to stand in the 
 pillory for an hour, pay a fine of ^20, and at the expiration of 
 his imprisonment to give security, himself in 1^500, and two 
 bailsmen in £250 each, for his good behaviour. On the 30th of 
 December, Mr. Finnerty did actually stand in the pillory, and 
 the rest of the sentence was also carried out. 
 
 17 
 
FOE PATRICK FINNEY, 
 
 [high TEBASON.J 
 
 January, 16th, 1798. 
 
 On the 31st of May, 1797, Patrick Finney -was arrested at 
 Tuite's public house, in Thomas-street. He was indicted for 
 High Treason, at the Commission held in Dublin, in July, 1797; 
 and on Tuesday, the 16th of January, 1798, was brought to 
 trial. The indictment was in substance as follows; — 
 
 The first count of the indictment charged — "That Patrick 
 Pinney, yeoman, on the 30th day of April, in the 37th year of 
 the King, and divers other days, at the city of Dublin, being a 
 false traitor, did compass and imagine the death of our said Lord 
 the King, and did traitorously and feloniously intend our said 
 Lord the King to kill, murder, and put to death." 
 
 The overt acts laid were as follows: — "I. Adhering to the 
 persons exercising the powers of government in France, in case 
 they should invade, or cause to be invaded this kingdom of 
 Ireland, they being enemies to the King, and at war. 2. That 
 the conspirators aforesaid did meet, &c., confer, consult, and 
 deliberate, about adhering to the persons exercising the powers 
 of government in Prance. 3. Adhering to the persons exercising 
 the powers of government in Prance. 4. Conspiring that one 
 or more persons should be sent into Prance, to excite an in- 
 vasion of Ireland. 5. Conspiring that one or more persons should 
 be sent into Prance, to excite an invasion of this kingdom, and 
 to make war therein; and for that purpose did ask, levy, and 
 receive, &c., from other traitors, money, to wit, from each 3^20, 
 to defray the expenses of the persons to be sent. 6, That 
 
TBIAL OP FINISTEY — ^HIGH TREASON, 1798, 259 
 
 conspiring, &c., they did send into France four persons unknown, 
 to excite the persons exercising the powers of government in 
 Prance to invade this kingdom, and make war therein. 7. Con- 
 spiring to send, and sending, four persons into Prance, to per- 
 suade invasion, and to aid them in invading, and raising, and 
 making war; and Pinney, then and there, demanding and re- 
 ceiving money, viz. ^20 to defray the charges of said persons. 
 
 8. That said Patrick Pinney became a United Irishman for the 
 purpose of assisting the persons exercising the powers of govern- 
 ment in Prance, and being met to the number of forty-eight 
 other traitors, did divide into four splits, each of which con- 
 tained twelve traitors, and each split did then choose one to be 
 secretary, to consult on behalf thereof with other splits, under 
 the denomination of baronial meetings, for the purpose of ad- 
 hering and making war, in case of an invasion of Ireland from 
 Prance, and then and there conspiring an attack upon the Castle 
 of Dublin, &c., and to deprive his Majesty of the stores and 
 ammunition therein; and said Pinney, to facilitate such attack, 
 did advise and commend other traitors to view White's Court, 
 &c., and give their opinion to their several splits, so that their 
 secretaries might report the same to their baronial meetings. 
 
 9. Adhering to the persons exercising the powers of government 
 in Prance, &c., and with forty-eight other conspirators, divided 
 into four splits, each containing twelve, each split choosing a 
 secretary to confer for the purpose of adhering to the enemy 
 in case of invasion, and confederating and agreeing that a 
 violent attack should be made on the ordnance stores, &c. 
 lo; Consulting, &c., to procure an invasion. 11. Consulting to 
 raise insurrection, rebellion, and war, in case of invasion of 
 Ireland or Great Britain, from Prance. 12. Conspiring to assist 
 the persons exercising the powers of government in Prance, in 
 case of their invading this realm with ships and arms.'' 
 
 There was a second count, for "adhering to the King's enemies 
 within the realm;'' and in support of this count, the overt acts 
 laid were exactly the same as those above recited. 
 
 17*. 
 
260 MR. cueban's speech on the 
 
 The Attorney-General (Wolfe) stated the case, describing 
 the TJnited Irish organization, and alleging their communication 
 with Prance. He introduced the charge against the prisoner 
 and the chief witness — the eminent informer, Jemmy O'Brien, 
 in these words : — 
 
 "A man of the name of James O'Brien, upon the 25th of 
 April, 1797, was passing through Thomas-street, in this city; 
 he met a man who was his acquaintance, named Hyland, standing 
 at the door of one Blake, who kept a public house. The prisoner 
 at the bar, then, as I believe, a stranger to O'Brien, was standing 
 at the door; Hyland asked O'Brien was he up? — which is, I 
 presume, a technical expression to signify that a man is a 
 member of the society. They tried O'Brien by the signs, whether 
 he was, or not. They told him that no man's life was safe if he 
 was not up; and, particularly the prisoner at the bar, told 
 O'Brien his life would not be safe, if he were not up : they de- 
 sired O'Brien to go into the house, in a room of which eight 
 people were sitting. There, after some discourse, O'Brien was 
 sworn to secrecy, and afterwards he was sworn to that oath 
 which is called the oath of the United Irishmen. They talked 
 much of their strength — of the number of men and arms pro- 
 vided in various parts of the kingdom, so great as to render 
 the attainment of their object certain; and after much other 
 discourse, which it is unnecessary to state, they adjourned their 
 meeting to the house of one Coghran, in Newmarket on the 
 Coombe, to be held the next Sunday, the 30th of April; they 
 agreed that the pass-word to gain admittance at Coghran's 
 should be "Mr. Green." And it appears (for the trade is at- 
 tended with some profit) that O'Brien was called upon to pay, 
 and did pay the prisoner one shilling for swearing him. 
 
 "As soon as O'Brien left the house, and escaped the danger 
 he imagined he was in, he went to Mr. Higgins, a magistrate 
 of the Queen's county, to whom he was known, then in Dublin, 
 and disclosed to him what had passed. Mr. Higgins told O'Brien 
 he was right to reveal the matter, and brought him to Lord 
 
TEIAL OP riNNEY — HIGH TBBASON, 1798. 261 
 
 Portarlington, who brought him to one of the committee-rooms 
 of the House of Lords, where he was examined hy one of the 
 Lord Lieutenant's secretaries. It was then thought expedient, 
 that attention should be paid to this society, seeing its danger- 
 ous tendency, in order to counteract the designs entertained. 
 O'Brien, conceiving that he might be in some danger from a 
 society formed upon such principles, was advised to enlist in 
 one of the regiments of dragoons then quartered in Dublin, and 
 to attend the society, to learn their designs. With this view, 
 O'Brien attended at Coghran's house, in New-market, and was 
 admitted on giving the pass-word, "Mr. Green." He there found 
 the prisoner at the bar, with forty others assembled; he was 
 desired to pay sixpence to the funds of the society; he said he 
 had not then sixpence; they told him he was to return in the 
 evening, and that it made no difference, whether he then paid, 
 or brought it in the evening. Finney informed him and the 
 society that the money collected was to constitute a fund for 
 the purpose of the society; that upon that day there was to be 
 a collection from the United societies in Dublin, sixpence from 
 each man, and that there was to be collected that evening from 
 the various societies, 10,000 sixpences; and he further informed 
 them (for he was an active man at that meeting) that there was 
 to be a great funeral, that of one Ryan, a mill-wright, whose 
 corpse lay at Pimlioo, which was to be attended by all the so- 
 cieties in Dublin; that after the funeral, that particular society 
 was again to assemble at the same place, Coghran's." 
 
 Various other meetings were stated in a very moderate speech, 
 and O'Brien swore firmly to the facts. Cukran cross-examined 
 the man calmly, and tempted him into confidential insolence. 
 The ruffian described his career as the hanger on of an excise 
 officer, drinking and extorting in public houses; he candidly 
 avowed not only that he had practised coining, but he identi- 
 fied a receipt for coining, which he had, in a missionary spirit, 
 given to another person; he admitted that, when told that Mr. 
 Roberts of Stradbally would give evidence against his character, 
 
262 ME. oueean's speech on the 
 
 he (having a sword and pistol in his hands,) had said he "would 
 settle him." Tor this he made a trivial explanation. Peter 
 Clarke swore that on the 31st of May, Finney gave him a copy 
 of the United Irish test, and Lord Portarlington swore that 
 O'Brien told him of one or two of the early meetings. Ourran 
 was to have opened the defence; but a principal witness being 
 absent, a chaise was despatched for him, and Mr. Mac Nally set 
 to speak against time." The court had then to adjourn for 
 twenty minutes' rest. Then Cttrean, after examining some 
 persons of the middle class to prove O'Brien's infamy of cha- 
 racter, and one to Finney's general loyalty, spoke as follows: — 
 
 My Lords, and G-entlemen of the Jury. In the 
 early part of this trial, I thought I should have 
 had to address you on the most important occa- 
 sion possible, on this side of the grave, a man 
 labouring for life, on the casual strength of an ex- 
 hausted, and, at best, a feeble advocate. But, gen- 
 tlemen, do not imagiae that I rise under any such 
 impressions; do not imagine that I approach you 
 sinking under the hopeless difficulties of my cause. 
 I am not now soliciting your indulgence to the 
 inadequacy of my powers, or artfully enhsting your 
 passions at the side of my chent. No, gentlemen; 
 but I rise with what of law, of conscience, of justice, 
 and of constitution, there exists within this realm, 
 at my back, and, standing in front of that great 
 and powerful alliance, I demand a verdict of ac- 
 quittal for my client! What is the opposition of 
 
 ■* Mr. M'Nally has marked, on his copy of the speech, that he 
 spoke for an hour and three quarters, and that the speech was 
 reported by "Leonard M'Nally, jun." 
 
TEIAL OF FIKNEY — ^HIGH TREASON, 1798. 263 
 
 evidence? It is a tissue which requires no strength 
 to break through; it vanishes at the touch, and is 
 sundered into tatters. 
 
 The right honourable gentleman who stated the 
 case in the first stage of this trial, has been so 
 kind as to express a rehance, that the counsel for 
 the prisoner would address the jury with the same 
 candour which he exemphfied on the part of the 
 crown; readily and confidently do I accept the 
 compHment, the raore particularly, as in my cause 
 I feel no temptation to reject it. Life can present 
 no situation wherein the humble powers of man are 
 so awfully and so divinely excited, as in defence 
 of a fellow-creature placed in the circumstances 
 of my cUent; and if any labours can pecuharly 
 attract the gracious and approving eye of heaven, 
 it is when God looks down on a human being as- 
 sailed by human turpitude, and strugghng with 
 practices against which the Deity has placed his 
 special canon, when he said "Thou shalt not bear 
 false witness against thy neighbour; thou shalt do 
 no murder." 
 
 Gentlemen, let me desire you again and again 
 to consider all the circumstances of this man's case, 
 abstracted from the influence of prejudice and 
 habit; and if aught of passion assumes -dominion 
 over you, let it be of that honest, generous nature 
 that good men must feel when they see an inno- 
 cent man depending on their verdict for his hfe; 
 to this passion I feel myself iasensibly yielding; 
 
264 ME. cuhean's speech on the 
 
 but unclouded, though not imwarmed, I shall, I 
 trust, proceed in my great duty. 
 
 Wishing to state my chent's case with aU pos- 
 sible succinctness which the nature of the charge 
 admits, I am glad my learned colleague has ac- 
 quitted himself on this head already to such an 
 extent, and with such ability, that any thing I can 
 say wiU chance to be superfluous: in truth, that 
 honesty of heart, and integrity of principle, for 
 which all must give him credit, uniting with a 
 sound judgment and sympathetic heart, have given 
 to his statement all the advantages it could have 
 derived from these quahties. 
 
 He has truly said that "the declaratory act, the 
 25th of Edward HI., is that on which all charges 
 of high treason are founded; and I trust the obser- 
 vation will be deeply engraven on your hearts. It 
 is an act made to save the subject from the vague 
 and wandering uncertainty of the law. It is an 
 act which leaves it no longer doubtful whether a 
 man shall incur conviction by his own conduct, or 
 the sagacity of crown construction: whether he 
 shall sink beneath his own guilt, or the cruel and 
 barbarous refinement of crown prosecution. It has 
 been most aptly called the blessed act; and oh! may 
 the great Grod of justice and of mercy give repose 
 and eternal blessing to the souls of those honest 
 men by whom it was enacted! By this law, no man 
 shall be convicted of high treason, but on proveable 
 evidence; the overt acts of treason, as explaiued 
 
TRIAL OF FINNEY — ^HIGH TREASON, 1798. 265 
 
 in this law, shall be stated clearly and distinctly 
 in the charge; and the proof of these acts shall be 
 equally clear and distinct, in order that no man's 
 life may depend on a partial or wicked allegation. 
 It does every thing for the prisoner which he could 
 do himself, it does every thing but utter the ver- 
 dict, which alone remains with you, and which, I 
 trust, you wiU give in the same pure, honest, saving 
 spirit, in which that act was formed. Grentlemen, 
 I would call it an omnipotent act, if it could pos- 
 sibly appal the informer from our courts of justice; 
 but law cannot do it, rehgion cannot do it, the 
 feehngs of human nature frozen in the depraved 
 heart of the wretched informer, cannot be thawed! 
 Law cannot prevent the envenomed arrow from 
 being pointed at the intended victim; but it has 
 given him a shield in the integrity of a jury! Every 
 thing is so clear in this act, that all must under- 
 stand : the several acts of treason must be recited, 
 and proveable conviction must follow. What is 
 proveable conviction? Are you at a loss to know? 
 Do you think if a man comes on the table, and 
 says, "By virtue of my oath, I know a conspiracy 
 against the state, and such and such persons are 
 engaged in it," do you think that his mere allega- 
 tion shall justify you in a verdict of conviction? 
 A witness coming on this table, of whatsoever 
 description, whether the noble Lord wo has been 
 examined, or the honourable Judges on the bench, 
 or Mr. James O'Brien, who shall declare upon oath 
 
266 ME. cuhran's speech on the 
 
 that a man bouglit powder, ball, and arms, intend- 
 ing to kill another, this is not pro veable conviction; 
 the unlawful intention must be shown by cogency 
 of evidence, and the credit of the witness must 
 stand strong and unimpeached. The law means not 
 that infamous assertion or dirty ribaldry is to 
 overthrow the character of a man; 'even in these 
 imputations, flung against the victim, there is for- 
 tunately something detergent, that cleanses the 
 character it was destined to befoul. 
 
 In stating the law, gentlemen, I have told you 
 that the overt acts must be laid and proved by 
 positive testimony of untainted witnesses; and in 
 so saying, I have only spoken the language of 
 the most illustrious writers on the law of England. 
 
 I should, perhaps, apologize to you for detain- 
 ing your attention so long on these particular 
 points, but that in the present disturbed state of 
 the public mind , and in the abandonment of prin- 
 ciple which it but too frequently produces, I think 
 I cannot too strongly impress you with the purity 
 of legal distinction, so that your souls shall not be 
 harrowed with those torturing regrets which the 
 return of reason would bring along with it, were 
 you, on the present occasion, for a moment to re- 
 sign it to the subjection of your passions; for these, 
 though sometimes amiable in their impetuosity, 
 can never be dignified and just, but under the 
 control of reason. 
 
 The charge against the prisoner is two -fold: 
 
TRIAL or PINNBT — ^HIGH TEEASOK, 1798. 267 
 
 compassing and imagining the King's death., and 
 adhering to the King's enemies. To be accurate 
 on this head is not less my intention than it is my 
 interest; for if I fall into errors, they wiU not es- 
 cape the learned counsel who is to come after me, 
 and whose detections wiU not fail to be made ia 
 the correct spirit of Crown prosecution. 
 
 Grentlemen, there are no fewer than thirteen overt 
 acts, as described, necessary to support the indict- 
 ment; these, however, it is not necessary to reca- 
 pitulate. The learned counsel for the Crown has 
 been perfectly candid and correct in saying, that 
 if any of them support either species of treason 
 charged in the indictment , it will be sufficient to 
 attach the guilt. I do not complain that on the 
 part of the Crown it was not found expedient to 
 point out which act or acts went to support the 
 indictment; neither will I complain, gentlemen, if 
 you fix your attention particularly on the circum- 
 stances. 
 
 Mr. Attorney -General has been pleased to make 
 an observation which drew a remark from my 
 colleague with which I fully agree , that the atro- 
 city of a charge should make no impression on you. 
 It was the judgment of candour and hberahty, and 
 should be yours ; nor though you should more than 
 answer the high opinion I entertain of you, and 
 though your hearts betray not the consoling con- 
 fidence which your looks inspire, yet do not disdain 
 to increase your stock of candour and liberahty, 
 
268 MB. cuEEAi;r's speech on the 
 
 from whatsoever source it flows; though, the abun- 
 dance of my chent's innocence may render Jiim 
 independent of its exertions, your country wants 
 it all. You are not to suffer impressions of loyalty, 
 or an enthusiastic love for the sacred person of the 
 King, to give your judgments the smallest bias. 
 You are to decide from the evidence which you 
 have heard ; and if the atrocity of the charge were 
 to have any influence with you, it should be that 
 of renderiag you more incredulous to the possi- 
 bility of is truth. 
 
 I confess I cannot conceive a greater crime 
 against civilized society, be the form of goverment 
 what it may, whether monarchical, republican, or, 
 I had almost said, despotic, than attempting to 
 destroy the hfe of the person holding the executive 
 authority; the counsel for the Crown cannot feel 
 a greater abhorrence against it than I do; and 
 happy am I, at this moment, that I can do justice 
 to my principles, and the feelings of my heart, 
 without endangering the defence of my chent, and 
 that defence is, that your hearts would not feel 
 more reluctant to the perpetration of the crimes 
 with which he is charged, than the man who there 
 stands at the bar of his country, waitmg untfl you 
 shaU clear him from the foul and unmerited im- 
 putation, until your verdict, sounding hfe and 
 honour to his senses, shall rescue him from the 
 dreadful fascination of the informer's eye. 
 
 The overt acts in the charge against the prisoner 
 
TEIAL OF PLtraBY — HIGH TEBASON, 1798. 269 
 
 are many, and all apparently of tlie same nature, 
 but they, notwithstanding, admit of a very material 
 distinction. This want of candour I attribute to 
 the base imposition of the prosecutor on those who 
 brought him forward. 
 
 You find at the bottom of the charge a founda- 
 tion-stone attempted to be laid by O'Brien, — the 
 dehberations of a society of United Irishmen, and 
 on this are laid all the overt acts. I said the dis- 
 tinction was of moment, because it is endeavoured 
 to be held forth to the public, to all Europe, that, 
 at a time like this, of peril and of danger, there 
 are, in one province alone; one hundred and eleven 
 thousand of your countrymen combined for the 
 purpose of destroying the King , and the tranquil- 
 lity of the country, which so much depends on 
 him, an assertion which you should consider of 
 again and again, before you give it any other exist- 
 ence than it derives from the attainting breath of 
 the informer. If nothing should induce that con- 
 sideration but the name of Irishman, the honours 
 of which you share, a name so foully, and as I 
 shall demonstrate, so falsely aspersed, if you can 
 say that one fact of O'Brien's testimony deserves 
 belief, all that can from thence be inferred is, that 
 a great combination of mind and will exists on 
 some public subject. 
 
 What says the written evidence on that subject? 
 
 What are the obligations imposed by the test- 
 oath of the society of United Irishmen? Is it unjust 
 
270 ME. CUBEAI^'S SPBECH ON THE 
 
 to get rid of religious diflferences and distinctions? 
 Would to God it were possible! Is it an offence 
 against the state, to promote a full, free, and ad- 
 equate representation of all the people of Ireland 
 in parliament? If it be, the text is full of its own 
 comment, it needs no comment of mine. As to the 
 last clause, obhging to secrecy: Now, gentlemen 
 of the jury , in the hearing of the court, I submit 
 to the opposite counsel this question. I will make 
 my adversary my arbiter. Taking the test- oath 
 as thus written, is there any thing of treason in it? 
 However objectionable it may be, it certainly is 
 not treasonable. 
 
 I admit there may be a colourable combination 
 of words to conceal a reaUy bad design; but to 
 what evils would it not expose society, if, in this 
 case, to suppose were to decide. A high legal au- 
 thority thus speaks on thife subject: "Strong, indeed, 
 must the evidence be which goes to prove that any 
 man can mean, by words, any thing more than 
 what is conveyed in their ordinary acceptation." 
 If the test of any particular community were an 
 open one — if, like the London Corresponding 
 Society, it was to be openly pubhshed, then, indeed, 
 there might be a reason for not using words in 
 their common application; but, subject to no pubhc 
 discussion, at least not intended to be so, why should 
 the proceedings of those men, or the obhgation 
 by which they are connected, be expressed in the 
 phraseology of studied concealment? If men meet 
 
TEIAL or PINNBT HIGH TBBASON, 1798. 271 
 
 in secret, to talk over how best the French can 
 invade this country, to what purpose is it that they 
 take an engagement differentia meaning? Oonxmon 
 sense rejects the idea! 
 
 Grentlemen, having stated these distinctions, I 
 am led to the remaining divisions of the subject 
 you are to consider. I admit, that because a man 
 merely takes this obligation of union, it cannot 
 prevent his becoming a traitor if he pleases; but 
 the question for you to decide on would then be, 
 whether every man who takes it must necessarily 
 be a traitor? 
 
 Independent of that engagement, have any super- 
 added facts been proved against the prisoner? 
 What is the evidence of O'Brien? What has he 
 stated? Here, gentlemen, let me claim the benefits 
 of that great privilege which distinguishes trial 
 by jury in this country from aU the world. Twelve 
 men, not emerging from the must and cobwebs of 
 a study, abstracted from human nature, or only 
 acquainted with its extravagancies; but twelve 
 men, conversant with life, and practised in those 
 feelings which mark the common and necessary 
 intercourse between man and man, such are you, 
 gentlemen. 
 
 How, then, does Mr. O'Brien's tale hangtogether ? 
 Look to its commencement. He walks along 
 Thomas -street, in the open day (a street not the 
 least populous in this city), and is accosted by a 
 man who, without any preface, teUs him he'll be 
 
272 ME. cxjeran's speech on the 
 
 murdered before tie goes halftla.Q street, unless he 
 becomes a United Irishman! Do you think this is 
 a probable story? Suppose any of you, gentlemen, 
 be a United Irishman, or a Freemason, or a Friendly 
 Brother, and that you meet me walking innocently 
 along, just like Mr. O'Brien, and meaning no harm, 
 ■would you say, "Stop, Mr. Curran, don't go further, 
 you'U be murdered before you go half the street, 
 if you do not become a United Irishman, a Free- 
 mason, or a Friendly Brother." Did you ever hear 
 so coaxing an invitation to felony as this? "Sweet 
 Mr. James O'Brien! come in and save your precious 
 life — come in and take an oath, or you'll be mur- 
 dered before you go half the street! Do, sweetest, 
 dearest Mr. James O'Brien, come in, and do not 
 risk your valuable existence." What a loss had he 
 been to his King, whom he loves so marvellously! 
 Well, what does poor Mr. O'Brien do? Poor, dear 
 man, he stands petrified with the magnitude of his 
 danger, — all his members refuse their of&ce, — ^ho 
 can neither run from the danger, nor call out for 
 assistance; his tongue cleaves to his mouth, and 
 his feet incorporate with the paving-stones; it is in 
 vain that his expressive eye silently implores pro- 
 tection of the passenger; he yields at length, as 
 men have done, and resignedly submits to his fate. 
 He then enters the house, and being led into a 
 room, a parcel of men make faces at him; but mark 
 the metamorphosis; well may it be said, that 
 "miracles will never cease;" he who feared to 
 
TEIAL OF FINNEY — HIGH TREASON, 1798. 273 
 
 resist in open air, and in the face of the pubKc, 
 becomes a Iravo when pent up in a room, and 
 environed by sixteen men, and one is obliged to 
 bar the door, while another swears him, which, 
 after some resistance, is accordingly done, and 
 poor Mr. O'Brien becomes a United Irishman, for 
 no earthly purpose whatever, but merely to save 
 his sweet life. 
 
 But this is not all, — the piU, so bitter to the 
 percipiency of his loyal palate, must be washed 
 down; and, lest he should throw it off his stomach, 
 he is filled up to the neck with beef and whiskey. 
 What further did they do? 
 
 Mr. O'Brien, thus persecuted, abused and terri- 
 fied, would have gone and lodged his sorrows ia 
 the sympathetic bosom of the Major; but to prevent 
 him even this Kttle solace, they made him drimk. 
 The next evening they used him in the hke bar- 
 barous manner; so that he was not only sworn 
 against his will, but, — ^poor man, — ^he was made 
 drunk, against his inclination. Thus was he be- 
 sieged with united beefsteaks and whiskey; and 
 against such potent assailants not even Mr. O'Brien 
 could prevail. 
 
 Whether all this whiskey that he has been /orcecZ 
 to drink has produced the effect or not, Mr. O'Brien's 
 loyalty is better than his memory. In the spirit 
 of loyalty he became prophetic, and told Lord 
 Portarhngton the circumstances relative to the 
 intended attack on the ordnance stores fuU three 
 
 18 
 
274 ME. cueean's speech on the 
 
 weeks before he had obtained the information 
 through moral agency. Oh! honest James O'Brien, 
 honest James O'Brien! Let others vainly argue on 
 logical truth and ethical falsehood; but if I can 
 once fasten him to the ring of perjury, I wiU bait 
 him at it, until his testimony shaU fail of pro- 
 ducing a verdict, although human nature were as 
 vile and monstrous in you as she is in him! He has 
 made a mistake! but surely no man's life is safe if 
 such evidence were admissible; what argument can 
 be founded on his testimony, when he swears he 
 has perjured himself, and that any thing he says 
 must be false? I must not beheve him at all, and 
 by a paradoxical conclusion, suppose, against "the 
 damnation" of his own testimony, that he is an 
 honest man! 
 
 Strongly as I feel my interest keep pace with 
 that of my client, I would not defend him at the 
 expense of truth; I seek not to make the witness 
 worse than he is: whatever he may be, God Al- 
 mighty convert his mind! May his reprobation, — 
 but I beg his pardon, — let your verdict stamp that 
 currency on his credit; it will have more force than 
 any casual remarks of mine. How this contradic- 
 tion in Mr. O'Brien's evidence occurred, I am at 
 no loss to understand. He started from the be- 
 ginning with an intention of informing against 
 some person, no matter against whom; and whether 
 he ever saw the prisoner at the time he gave the 
 information to Lord Portarlington, is a question; 
 
TEIAL OP FINNEY — ^HIGH TREASON, 1798. 275 
 
 but none, that lie fabricated the story for the pur- 
 pose of imposing on the honest zeal of the law 
 officers of the crown. 
 
 Having now glanced at a part of this man's 
 evidence, I do not mean to part with him entirely; 
 I shall have occasion to visit him again; but before 
 I do, let me, gentlemen, once more impress upon 
 your minds the observation which my colleague 
 appHed to the laws of high treason, that if they 
 are not explained on the statute-book, they are ex- 
 plained on the hearts of aU honest men; and, as 
 St. Paul says, "though they know not the law, 
 they obey the statutes thereof" The essence of 
 the charge submitted to your consideration tends 
 to the dissolution of the coimexion between Ire- 
 land and Great Britain. 
 
 I own it is with much warmth and self-gratula- 
 tion that I feel this calumny answered by the 
 attachment of every good man to the British con- 
 stitution. I feel, — ^I embrace its principles; and 
 when I look on you, the proudest benefit of that 
 constitution, I am reheved from the fears of advoc- 
 acy, since I place my client under the influence 
 of its sacred shade. This is not the idle sycophancy 
 of words. It is not crying "Lord! Lord!" but doing 
 "the wiU of my Father who is in heaven." If my 
 cHent were to be tried by a jury of Ludgate-hiU 
 shop-keepers, he would, ere now, be in his lodging. 
 The law of England would not suffer a man to be 
 crueUy butchered in a court of justice. The law 
 
 18* 
 
276 MR. cueean's speech on the 
 
 of England recognizes the possibility of villains 
 thirsting for the blood of their fellow-creatures; 
 and the people of Ireland have no cause to be in- 
 credulous of the fact. 
 
 In that country, St. Paul's is not more public 
 than the charge made against the poorest creature 
 that crawls upon the soil of England. There must 
 be two witnesses to convict the prisoner of high 
 treason. The prisoner must have a copy of the 
 jurors' names, by whom he may eventually be tried; 
 he must have a list of the witnesses that are to be 
 produced against him, that they may not, vam- 
 pire hke, come crawhng out of the grave to drink 
 his blood; but that, by having a List of their names 
 and places of abode, he may inquire into their 
 characters and modes of life, that, if they are in- 
 famous, he may be enabled to defend himself 
 against the attacks of their perjury, and their 
 subornation. There must, I say, be two witnesses, 
 that the jury may be satisfied, if they beheve the 
 evidence, that the prisoner is guilty; and if there 
 be but one witness, the jury shall not be troubled 
 with the idle foUy of listening to the prisoner's 
 defence. If there be but one witness, there is the 
 less possibiHty of contradicting him; he the less 
 fears any detection of his murderous tale, having 
 only infernal communication between him and the 
 author of all evil; and when on the table, which 
 he makes the altar of his sacrifice, however com- 
 mon men may be affected at sight of the innocent 
 
TBIAIi OF FINNEY — HIGH TEEASON, 1798. 277 
 
 victim, it cannot be supposed that the prompter 
 of Ms perjury wUl instigate him to retribution: 
 this is the law in England, and God forbid that 
 Irishmen should so differ, in the estimation of the 
 law, from Enghshmen, that their blood is not 
 equally worth preserving. I do not, gentlemen, 
 apply any part of this observation to you; you 
 are Irishmen yourselves, and I know you wiU act 
 proudly and honestly. The law of England renders 
 two witnesses necessary, and one witness insuffi- 
 cient, to take away the life of a man on a charge 
 of high treason. This is founded on the principle 
 of common sense, and common justice; for, unless 
 the subject were guarded by this wise prevention, 
 every wretch who could so pervert the powers of 
 invention, as to trump up a tale of treason and 
 conspiracy, would have it in his power to defraud 
 the Crown into the most abominable and affficting 
 acts of cruelty and oppression. 
 
 Gentlemen of the jury, though from the evidence 
 which has been adduced against the prisoner, they 
 have lost their value, yet had they been necessary, 
 I must tell you, that my client came forward under 
 a disadvantage of great magnitude, the absence of 
 two witnesses very material to his defence; I am 
 not now at liberty to say, what I am instructed 
 would have been proved by May, and Mr. Roberts. 
 
 But, you will ask, why is not Mr. Roberts here? 
 Recollect the admission of O'Brien, that he threat- 
 ened to settle him, and you will cease to wonder 
 
278 MB. cubban's speech on the 
 
 at Ms absence, when, if lie came, the dagger was in 
 preparation to be plunged into his heart. I said 
 Mr. Koberts was absent, I correct myself; no! in 
 effect he is here: I appeal to the heart of that ob- 
 durate man (O'Brien), what would have been his 
 (Roberts's) testimony, if he had dared to venture a 
 personal evidence on this trial? Gracious Grod! is 
 a tyranny of this kind to be borne with, where 
 law is said to exist? Shall the horrors which sur- 
 round the informer, the ferocity of his countenance, 
 and the terrors of his voice, cast such a wide and 
 appalling influence, that none dare approach and 
 save the victim, which he marks for ignominy and 
 death! 
 
 Now, gentlemen, be pleased to look to the rest 
 of O'Brien's testimony : he teUs you there are one 
 hundred and eleven thousand men in one province, 
 added to ten thousand of the inhabitants of the 
 metropolis, ready to assist the object of an inva- 
 sion! Grentlemen, are you prepared to say that the 
 kingdom of Ireland has been so forsaken by all 
 principles of humanity and of loyalty, that there 
 are now no less than 111,000 men sworn by the 
 most solemn of all engagements, and connected in 
 a deadly combination to destroy the constitution 
 of the country, and to invite the common enemy, 
 the French, to invade it — are you prepared to say 
 this by your verdict? When you know not the 
 intentions or the means of that Avatchfnl and in- 
 satiable enemy, do you think it would be wise by 
 
TEIAL or FINNEY — ^HIGH TBEASON, 1798. 279 
 
 yoixr verdict of guilty, to say, on the single testi- 
 mony of a common informer, that you do beheve 
 upon your oaths that there is a body consisting of 
 no less a number than 111,000 men ready to assist 
 the French, if they should make an attempt upon 
 this country, and ready to fly to their standard 
 "whenever they think proper to invade it? This is 
 another point of view in which to examine tliis 
 case. You know the distress and convulsion of the 
 .pubhc mind for a considerable length of time; 
 cautiously will I abstain from making observations 
 that could refresh the pubhc memory, situated as 
 I am, in a court of justice. But, gentlemen, this is 
 the first, the only trial for high treason, in which 
 an informer gives his notions of the propriety or 
 impropriety of pubhc measures; I remember none 
 — except the trial of that unfortunate wanderer, 
 that unhappy fugitive, for so I may call him, 
 Jackson, a native of this country — guilty he was, 
 but neither his guilt nor innocence had any affinity 
 with any other system. But this is the first trial 
 that has been brought forward for high treason, 
 except that, where such matters have been dis- 
 closed; and gentlemen, are you prepared to think 
 weU of the burden of embarking your character, 
 high and respectable, on the evidence of an aban- 
 doned, and I will show you, a perjured and common 
 informer, in declaring you are ready to off'er up to 
 death 111,000 men, one by one, by the sentence 
 of a court of justice? Are you ready to meet it? 
 
280 ME. cubkan's speech on the 
 
 Do not suppose I am base or mean enough to say 
 anything to intimidate you, when I talk to you of 
 such an event; but if you were prepared for such 
 a scene, what would be your private reflections 
 were you to do any such thing? Therefore I put 
 the question fairly to you — have you made up 
 your minds to teU the pubhc, that as soon as James 
 O'Brien shall choose to come forward again, to 
 make the same charge against 111,000 other men, 
 you are ready to see so many men, so many of your 
 fellow-subjects and fellow-citizens, drop one by 
 one into the grave, dug for them by his testimony? 
 
 Do not think I am speaking disrespectfully of 
 you when I say, that while an O'Brien may be 
 found, it may be the' lot of the proudest among 
 you to be in the dock instead of the jury-box. If 
 you were standing there, how would you feel if 
 you found that the evidence of such a wretch 
 would be admitted as sufficient to attaint your 
 hfe, and send you to an ignominious death? Re- 
 member, I do beseech you, that great mandate of 
 your rehgion — "Do thou unto aU men as you would 
 they should do unto you." 
 
 Give me leave to put another point to you — 
 what is the reason that you deliberate — that you 
 condescend to hsten to me with such attention? 
 Why are you so anxious, if, even from me, any 
 thing should fall tending to enlighten you on the 
 present awful occasion? It is, because, bound by 
 the sacred obligations of an oath, your heart wiU 
 
TEIAL or FINNEY HIGH TREASON, 1798. 281 
 
 not allow you to forfeit it. Have you any doubt 
 that it is tlie object of O'Brien to take down the 
 prisoner for the reward that follows? Have you 
 not seen with what more than instinctive keenness 
 this blood-hound has pursued his victim? how he 
 has kept him in view from place to place, untU he 
 hunts him through the avenues of the court to 
 where the unhappy man stands now, hopeless of 
 all succour but that which your verdict shall afford. 
 I have heard of assassination by sword, by pistol, 
 and by dagger; but here is a wretch who would 
 dip the Evangelists in blood; if he thinks he has 
 not sworn his victim to death, he is ready to swear, 
 without mercy and without end: but oh! do not, 
 I conjure you, suffer him to take an oath; the hand 
 of the murderer should not pollute the purity of 
 the gospel: if he will swear, let it be on the knife, 
 the proper symbol of his profession! 
 
 Gentlemen, I am again reminded of that tissue 
 of abominable slander and calumny with which 
 O'Brien has endeavoured to load so great a portion 
 of the adult part of your country. Is it possible 
 you can beheve the report of that wretch, that no 
 less than 111,000 men are ready to destroy and 
 overturn the government? I do not beheve the 
 abominable slander. I may have been too quick in 
 condemning this man; and I know the argument 
 which will be used, and to a certain degree, it is 
 not without sense — that you cannot always expect 
 witnesses of the most unblemished character, and 
 
282 MR. cubean's speech on the 
 
 such tMngs would never be brought to light if 
 witnesses like O'Brien were rejected altogether. 
 The argument is of some force; but does it hold 
 here? or are you to beheve it as a truth, because 
 the fact is sworn to by an abominable and perjured 
 witness? No; the law of England, the so-often- 
 mentioned principle upon which that important 
 statute is framed, denies the admission. An English 
 judge would be bound to teU you, and the learned 
 judges present will tell you, that a single accom- 
 plice is not to be believed without strong corrobora- 
 tive confirmation — ^I do not know where a contrary 
 principle was entertained; ifsuch has been the case, 
 I never heard of it. O'Brien stated himself to have 
 been involved in the guUt of the prisoner, in taking 
 the obligation which was forced on him, and which 
 he was afterwards obhged to wash down ; but may 
 not the whole description given by him be false? 
 May he not have fabricated that story, and come 
 forward as an informer in a transaction that never 
 happened, from the expectation of pay and profit? 
 How does he stand? He stands divested of a single 
 witness to support his character or the truth of 
 his assertions, when numbers were necessary for 
 each. You would be most helpless and unfortunate 
 men, if everything said by the witness laid you 
 under a necessity of beheving it. Therefore he 
 must be supported either by collateral or confirma- 
 tory evidence. Has he been supported by any 
 collateral evidence, confirming what was sworn 
 
TEIAL OP FINNEY — ^HIGH TEBASON, 1798. 283 
 
 this day? No. Two witnesses have been examined, 
 they are not additional witnesses to the overt acts ; 
 but if either of them should carry any conviction 
 to your minds, you must be satisfied that the evi- 
 dence given by O'Brien is false. I will not pollute 
 the respectable and honourable character of Lord 
 Portarlington, by mentioning it with the false and 
 perjured O'Brien. Does -his lordship tell you a 
 single word but what O'Brien said to him? Be- 
 cause, if his lordship told all here that O'Brien 
 told to him, O'Brien has done the same too; and 
 though he has told Lord Portarlington every word 
 which he has sworn on the table, yet still the evid- 
 ence given by his lordship cannot be corrobora- 
 tive, because the probabihty is that he told a false- 
 hood; you must take that evidence by comparison. 
 And what did he tell Lord Portarlington ? or, rather, 
 what has Lord Portarlington told you ? That O'Brien 
 did state to him the project of robbing the ordnance 
 some time before he could possibly have known it 
 himself. And it is material that he swore on the 
 table that he did not know of the plot tiU his third 
 meeting with the societies; and Lord Portarlington 
 swears that he told it to him on the first inter- 
 view with him: there the contradiction of O'Brien 
 by Lord Portarlington is material; and the testi- 
 mony of Lord Portarlington may be put out of 
 the case, except so far as it contradicts that of 
 O'Brien. 
 
 Mr. Justice Chamberlais — It is material, Mr. Cukean, that 
 
284 MB. cueean's speech on the 
 
 Lord Portarlington did not swear positively it was at the first 
 interview, but that he was inclined to believe it was so. 
 
 Mr. CuRRAN — Your lordship will recollect that 
 he said O'Brien did not say anythirig of conse- 
 quence at any of the other interviews; but I put 
 his lordship out of the question, so far as he does 
 not contradict O'Brien, and he does so. If I am 
 stating anything through mistake, I would wish 
 to be set right; but Lord Portarlington said he 
 did not recollect anything of importance at any 
 subsequent meeting; and as far as he goes, he does 
 beyond contradiction estabHsh the false swearing 
 of O'Brien. I am strictly right in stating the con- 
 tradiction: so far as it can be compared with the 
 testimony of O'Brien, it does weaken it; and, there- 
 fore, I will leave it there, and put Lord Portarhngton 
 out of the question — ^that is, as if he had not been 
 examined at all, but where he differs from the evid- 
 ence given by O'Brien. 
 
 As to the witness Clarke, after all he has sworn, 
 you cannot but be satisfied he has not said a single 
 word materially against the prisoner; he has not 
 given any confirmatory evidence in support of any 
 one overt act laid in the indictment. You have 
 them upon your minds — he has not said one word 
 as to the various meetings — levying money, or 
 sending persons to France; and, therefore, I do 
 warn you against giving it that attention for which 
 it has been introduced. He does not make a second 
 witness. Gentlemen, in alluding to the e^ddence of 
 
TEIAL OP FINNEY — HIGH TREASON, 1798. 285 
 
 Lord Portarlington, which. I have already men- 
 tioned, I was bound to ' make some observations. 
 On the evidence of Clarke I am also obhged to do 
 the same, because he has endeavoured to prejudice 
 your minds by an endeavour to give a sHding evid- 
 ence of what does not by any means come within 
 this case; that is, a malignant endeavour to impute 
 a horrid transaction — the murder of a man of the 
 name of Thompson — to the prisoner at the bar; 
 but I do conjure you to consider what motives 
 there can be for insinuations of this sort, and why 
 such a transaction, so remote from the case before 
 you, should be endeavoured to be impressed on 
 your minds. Grentlemen, I am not bhnking the 
 question; I come boldly up to it; and I ask you, 
 in the presence of the court and of your God, is 
 there one word of evidence that bears the shadow 
 of such a charge, as the murder of that unfortunate 
 man, to the prisoner at the bar? Is there one word 
 to show how he died — whether by force, or by any 
 other means? Is there a word how he came to his 
 end? Is there a word to bring a shadow of suspi- 
 cion that can be attached to the prisoner? Grentle- 
 men, my client has been deprived of the benefit of 
 a witness. May, (you have heard of it,) who, had the 
 trial been postponed, might have been able to at- 
 tend ; we have not been able to examine him, but you 
 may guess what he would have said — he would have 
 discredited the informer O'Brien. The evidence 
 of O'Brien ought to be supported by collateral 
 
286 MB. cueean's speech on the 
 
 circumstances. It is not; and though Roberts is 
 not here, yet you may conjecture what he would 
 have said. But, gentlemen, I have examined five 
 witnesses, and it does seem as if there had been 
 some providential interference carried onin bringing 
 five witnesses to contradict O'Brien in his testimony, 
 as to direct matters of fact, if his testimony could 
 be put in competition with direct positive evidence. 
 O'Brien said, he knew nothing of ordering back any 
 money to Margaret Moore ; he denied that fact. The 
 woman was examined — ^what did she say on the 
 table in the presence of O'Brien? That "an order 
 was made, and the money refunded, after the magis- 
 trate had abused him for his conduct." What 
 would you think of your servant, if you found him 
 committing such perjury — would you beheve him? 
 What do you think of this fact? O'Brien denies he 
 knew anything of the money being refunded! What 
 does Mrs. Moore say? That after the magistrate 
 had abused him for his conduct, the money was 
 refunded, and that "she and O'Brien walked down 
 stairs together!" Is this an accidental trip, a little 
 stumble of conscience, or, is it not downright, 
 wilful perjury? What said Mr. Clarke? I laid the 
 foundation of the evidence by asking O'Brien, did 
 you ever pass for a revenue officer? I call gentle- 
 men, on your knowledge of the human character, 
 and of human life, what was the conduct of the 
 man? Was it what you would have acted, if you 
 had been called on in a court of justice? Did he 
 
TEIAIi OP FINNET — HIGH TEEASON, 1798. 287 
 
 answer me candidly? Do you remember his manner? 
 "Not, sir, that I remember; it could not be when 
 I was sober." "Did you do it at aU?" What was 
 the answer — "I might, sir, have done it; but I 
 must have been drunk. I never did anything dis- 
 honest." Why did he answer thus? Because he 
 did imagine he would have been opposed in his 
 testimony, he not only added perjury to his preva- 
 rication, but he added robbery to both. There are 
 thousands of your fellow-subjects waiting to know, 
 if the fact charged upon the nation of 111,000 men 
 ready to assist the common enemy be true ; if upon 
 the evidence of an abandoned wretch, a common 
 cheat, a robber, and a perjurer, you wiU convict 
 the prisoner at the bar. As to his being a coiner, 
 I will not pass that felony in payment among his 
 other crimes, but I will offer it by itself: I will offer 
 it as an emblem of his conscience, copper-washed 
 — ^I will offer it by itself. 
 
 What has O'Brien said? "I never remember that 
 I did pretend to be a revenue officer; but I re- 
 member there was a man said something about 
 whiskey; and I remember, I threatened to com- 
 plain, and he was a little frightened — and he gave 
 me three and three pence!" I asked him, "Did his 
 wife give you anything?" "There was three and 
 three pence between them." "Who gave you the 
 money?" "It was all I got from both of. them!" 
 G-entlemen, would you let him into your house as 
 a servant? Suppose one of you wanted a servant, 
 
288 ME. cueean's speech on the 
 
 and went to the other to get one; and suppose that 
 you heard that he personated a revenue officer; 
 that he had threatened to become an mformer 
 against persons not haAdng licences, in order to 
 extort money to compromise the actions, would 
 you take him as a servant? If you would not take 
 him as servant in exchange for his wages, would 
 you take his perjuries in exchange for the life of a 
 fellow-subject? Let me ask you, how would you 
 show your faces to the public, and justify a barter 
 of that kind, if you were to estabhsh and send 
 abroad his assignats of perjury to pass current as 
 the price of human blood? How could you bear 
 the tyranny your consciences would exercise over 
 you; the dagger that would turn upon your heart's 
 blood, if in the moment of madness you could suffer 
 by your verdict the sword of justice to fall on the 
 head of a victim committed to your sworn human- 
 ity, to be massacred in your presence by the per- 
 jured and abominable evidence that has been oflfered! 
 But does it stop there? Has perjury rested there? 
 — 'No. "What said the honest-looking, unlettered 
 mind of the poor farmer? What said Cavanagh? 
 "I keep a public-house, — O'Brien came to me, and 
 pretended he was a revenue of&cer; — I knew not 
 but it might be so; — he told me he was so — he 
 examined the little beer I had, and my cask of 
 porter." And, gentlemen, what did the villain do? 
 While he was dipping his abandoned tongue in per- 
 jury and in blood, he robbed the wretched man of 
 
TEIAL OF PENNEY — ^HIGH TREASON, 1798. 289 
 
 two guineas. Where is lie now? Do you wonder 
 lie is afraid of my eye? that lie has buried himself 
 in the crowd? that he has shrunk into the whole 
 of the multitude, when the witness endeavoured to 
 disentangle him and his evidence ? Do you not feel 
 that he was appalled with horror by that more 
 piercing and penetrating eye that looks upon him, 
 and upon me, and upon us all? The chords of his 
 heart bore testimony by its flight, and proved that 
 he fled for the same. But does it rest there? No. 
 Witness upon witness appeared for the prisoner, 
 to whom, I dare say, you wiU give that credit you 
 must deny to O'Brien. In the presence of Grod 
 they swore, that they "would not believe him upon 
 his oath, in the smallest matter." Do you know 
 him, gentlemen of the jury? Are you acquainted 
 with James O'Brien? If you do, let him come for- 
 ward from that crowd where he has hid himself, 
 and claim you by a look. Have you been fellow 
 companions? If you have I dare say you will re- 
 cognize him. Have I done with him yet? No; 
 while there is a thread of his villany together, I will 
 tatter it, lest you should be caught with it. Did he 
 dare to say to the soUcitor for the crown, to the 
 counsel that are prosecuting the prisoner, that 
 "there is some one witness on the surface of the 
 globe that will say, he behoves I am not a viflain; 
 but I am a man that deserves some credit on my 
 oath in a court of justice?" Did he venture to call 
 one human being to that fact? But why did they 
 
 19 
 
290 MR. cueran's speech on the 
 
 not venture to examine the prisoner's witnesses, as 
 to the reasons of their disbehef? What, if I was 
 bold enough to say to any of you, gentlemen, that 
 I did not think you deserved credit on your oath, 
 would not the first question you would ask be the 
 reason for that opiaion? Did he venture to ask 
 that question? No. I think the trial has been fairly 
 and humanely carried on. Mrs. Moore was ex- 
 amined; she underwent cross-examination — the 
 object was to impeach her credit. I offered to 
 examine to her character; no — I would not be 
 suffered to do it; they were right in the point of 
 law. Grentlemen, let me ask you another question; 
 — Is the character of O'Brien such, that you think 
 he did not know that any human creature was to 
 attack it? Did you not see him coihng himself in 
 the scaly circles of his perjury, making anticipated 
 battle against the attack, that he knew would be 
 made, and spitting his venom against the man that 
 might have given such evidence of his infamous 
 character if he had dared to appear? 
 
 Gentlemen, do you feel now that I was mahci- 
 ously aspersing the character of O'Brien? What 
 language is strong enough to describe the mixture 
 of swindling and imposition which, in the face of 
 justice, this wretch has been guilty of? Taking on 
 himself the situation of one of the Ivmg's officers, 
 to rob the King's subjects of the King's monej"; 
 but that is not enough for him — in the vileness and 
 turpitude of his character he afterwards wants to 
 
TEIAIj of FINNEY — HIGH TEBASON, 1798. 291 
 
 rob them of their lives by perjury. Do I speak 
 truly to you, gentlemen, when I have shown you 
 the witness in his real colours — ^when I have shown 
 you his habitual fellowship with baseness and fraud? 
 He gave a recipe for forging money. "Why did you 
 give it to him?" "He was an inquisitive man, and 
 I gave it as a matter of course." "But why did 
 you do it?" "It was a light, easy way of getting 
 money — I gave it as a humbug." He gave a recipe 
 for forging the coin of the country, because it was 
 a hght, easy way of getting money! Has it, gentle- 
 men, ever happened to you in the ordinary passages 
 of life, to have met with such a constellation of 
 atrocities and horrors, and that in a single man? 
 What do you say to Clarke? Except his perjury, 
 he has scarcely ground to turn on. What was his 
 cross-examination? "Pray, sir, were you in court 
 yesterday?" "No, sir, I was not." "Why?" "Mr. 
 Kemmis sent me word not to come." There hap- 
 pened to be several persons who saw him in court: 
 one of them swore it — the rest were ready. Call 
 up "httle Skirmish" again.* "Pray, Skirmish, why 
 did you say you were not in court yesterday, when 
 you were? "Why, it was a Httle bit of a mistake, 
 not being a lawyer. It being a matter of law, I 
 was mistaken." "How did it happen you were 
 mistaken?" "I was puzzled by the hard questions 
 that Mr. M'NaUy asked me." What was the hard 
 question he was asked? "Were you in court yester- 
 
 * "Little Skirmisla," a character in The Deserter. 
 
 19* 
 
292 ME. cueean's speech on the 
 
 day?" "No; Mr. Kemmis sent me word I need not 
 come?" Canyon, gentlemen of the jury, suppose 
 that any simple, well-meaning man would commit 
 such a gross and abominable perjury? I do not 
 think he is a credible man; that is, that he swore 
 truer than Lord PortarKngton did, because his 
 lordship stands on a siugle testimony; he may be 
 true, because- he has sworn on both sides; he has 
 sworn positively that he was not in the court yester- 
 day; and he has sworn positively he was! so that, 
 wherever the truth is, he is found in it; let the 
 ground be clean or dirty, he is in the midst of it. 
 There is no person but deserves some httle degree 
 of credit; if the soul was as black as night, it would 
 burn to something in hell. But let me not appear 
 to avoid the question by any seeming levity upon 
 it. O'Brien stands blackened by the unimpeached 
 proofs of five positive perjuries. If he was indicted 
 on any one of them, he could not appear to give 
 evidence in a court of justice; and I do call upon 
 you, gentlemen of the jury, to refuse him on his 
 oath that credit which never ought to be squan- 
 edred on the evidence of an abandoned and self- 
 convicted perjurer. 
 
 The charge is not merely against the prisoner 
 at the bar; it takes in the entire character of your 
 country. It is the first question of the kind for 
 ages brought forward in this nation to public view, 
 after an expiration of years. It is the great experi- 
 ment of the informers of Ireland, to see with what 
 
TEIAIi OE FINNEY — ^HIGH TEBASON, 1798. 293 
 
 success they may make tMs traffic of human blood. 
 Fifteen men are now in gaol, depending on the 
 fate of the unfortunate prisoner, and on the same 
 blasted and perjured evidence of O'Brien. I have 
 stated at large the case, and the situation of my 
 chent; I make no apology for wasting your time; 
 I regret I have not been more able to do my duty; 
 it would insult you if I were to express any such 
 feehng to you. I have only to apologize to my 
 chent for delaying his acquittal. I have blackened 
 the character of O'Brien in every point of view; 
 and, though he anticipated the attack that would 
 be made on it, yet he could not procure one human 
 being even base enough to depose that he was to 
 be believed on his oath. 
 
 The character of the prisoner has been given. 
 Am I warranted in saying, that I am now defend- 
 ing an innocent and unfortunate fellow-subject, on 
 the grounds of eternal justice and immutable law? 
 and on that eternal law I do call upon you to acquit 
 my chent. I call upon you for your justice! Great 
 is the reward, and sweet is the recollection in the 
 hour of trial, and in the day of dissolution, when 
 casualties of hfe are pressing close upon your 
 heart, and when, in the agonies of death, you look 
 back to the justifiable and honourable transactions 
 of your life. At the awful foot of eternal justice I 
 do, therefore, invite you to acquit my chent; and 
 may Grod, of his infinite mercy, grant you that great 
 compensation which is a reward more lasting than 
 
294 TRTAt OF rmNET — ^high teeasost, 1798. 
 
 that perishable crown we read of, which the an- 
 cients gave to htm who saved the h£e of a fellow- 
 citizen in battle. In the name of public justice! I do 
 implore you to interpose between the perjurer and 
 his intended victim; and, if ever you are assailed 
 by the villany of an informer, may you find refuge 
 in the recollection of that example, which, when 
 jurors, you set to those that might be called to 
 pass judgment upon your lives ; to repel at the hu- 
 man tribunal the intended effects of hireling per- 
 jury, and premeditated murder! If it should be the 
 fate of any of you to count the tedious moments 
 of captivity, in sorrow and in pain, pining in the 
 damps and gloom of a dungeon, recollect there is 
 another more awful tribunal than any on earth, 
 which we must all approach, and before which the 
 best of us will have occasion to look back to what 
 little good he has done on this side the grave; I do 
 pray, that Eternal Justice may record the deed 
 you have done, and give to you the full benefit of 
 your claims to an eternal reward, a requital in 
 mercy upon your souls! 
 
 After a reply from the Solicitor-General (Toler), Justice 
 Chamlierlain andBaron Smith charged, inclining to the prisoner, 
 and in a quarter of an hour the jury returned a verdict of Not 
 Guilt?/. On the 19th, fifteen other persons, who had been in- 
 dicted on the same charge, were formally tried and acquitted, 
 and, on taking the oath of allegiance, and filing recognizances 
 for good behaviour, were discharged. So ended the first of the 
 9S trials. 
 
HBNEY SHEAEBS. 
 
 [high treason.] 
 
 SPECIAL COMMISSION, DUBLIN. 
 
 ith and 12fh July, 1798. 
 
 The TJnited Irish So ciety was formed in 1791, for the achieve- 
 ment of Catholic Emancipation and Parliamentary Eeform, and 
 was increased in 1792-3, retaining its original objects. In 1794, 
 the views of Tone and Neilson, who both desired an independ- 
 ent republic, spread; but the formal objects were unchanged, 
 when, on the 10th of May, 1795,* the organization of Ulster 
 was completed. The recal of Lord Eitzwilliam, and the conse- 
 quent disappointment of the Eoman Catholics — the accumula- 
 tion of coercive laws — the prospect of French alliance, and the 
 natural progress of a quarrel, rapidly spread the influence, and 
 altered the whole character of the Society. The Test of the 
 Society was mademore decisive, and less constitutional. In the 
 Autumn of 1796 the organization was made military in Ulster. 
 Twelve neighbours formed a society, whose secretary was called 
 "a petty officer''; the petty officers of five societies elected one 
 of themselves into the lower baronial, as representative and 
 captain of sixty; the members of ten lower baronials sent a 
 delegate to the upper baronial. This last delegate was, there- 
 fore, colonel of a battalion of six hundred men. Towards the 
 middle of 1797, this system spread to Leinster. Each baronial 
 sent a delegate to a county committee, and the provincial 
 
 * Neilson's Evidence — Beport of Secret Committee, Appendix, 
 No. 31. 
 
296 ME. cubean's speech on the 
 
 committee consisted of two or three delegates from each of the 
 counties. The provincial committee ballotted for five members 
 of an executive; the secretary alone examined the ballot, and 
 reported it to the persons elected, but not to the electors. 
 
 Though so far back as May, 1796, the then Executive had 
 formally communicated with France, through Lord Edward 
 Fitzgerald, it was not tUl 19th February, 1798, that it was 
 resolved — "That they would not be diverted from their pur- 
 pose by anything which could be done in parliament." 
 
 The Executive consisted then of Dr. MaoNevin, Arthur 
 O'Connor, Thomas Addis Emmet, Richard M'Oormick, Oliver 
 Bond, and Lord Edward. 
 
 In the Winter of 1796-7, the coming of the French was urged 
 as a reason for immediate insurrection; but it did not prevail. 
 In May, 1797, the order for the execution of the four soldiers 
 of the Monaghan Militia, at Blaris Mor, was regarded by the 
 Militias as a sufficient motive for action; but not so thought 
 the Executive. 
 
 In the Summer of 1 797, the Militia regiments sent a deputa- 
 tion, offering to seize the Castle. The Northern leaders were 
 for an outbreak; so was Lord Edward. Still nothing was done. 
 And again, in the beginning of '98, the people, subjected to free 
 quarters, whipping, burnings, and transportation, pressed for 
 insurrection; and Lord Edward was disposed to it. Emmet 
 wanted to wait for French aid (though no man was more adverse 
 to, or took more precautions against, French authority in Ire- 
 land;) and thus they were, when Reynolds of Kilkea betrayed 
 them to the Government for money. 
 
 Arthur O'Connor was arrested at Maidstone, in the act of 
 embarking for France; and, on the r2th of March, a meeting of 
 Leinster delegates, including Oliver Bond, M'Canu, &c., &., 
 were arrested at Oliver Bond's woollen warehouse, in Bridge- 
 street. MaoNevin, Thomas Emmet, and Sampson, were in the 
 warrant with Bond; but not being punctual at the meeting, were 
 not taken for some days. 
 
1798. 297 
 
 A warrant had, at the same time, been issued against Lord 
 Edward; but he escaped, and lay concealed. The places of 
 MacNevin, Emmet, and O'Connor were filled. John Sheares 
 was one of the New Directory. But Reynolds, though sus- 
 pected, retained his intimacy. On the 19th of May, just four 
 days before the rising was to take place, Lord Edward was 
 arrested, and on the 21st, the two Sheares were also taken. 
 Thus the insurrection began, without its designers to lead it, 
 and without time to replace them. 
 
 On the night of the 2 3rd May, the stopping of the mail-coaches 
 was the signal for insurrection. Next day the peasantry of 
 Kildare, Wicklow, and parts of Meath rose. They were gene- 
 rally met and defeated; but they succeeded at Prosperous, and 
 partially in other places. On the 26th| the Meath people were 
 defeated at Tara. On the 27 th, the "Wexford men won the 
 battle of Oulard — the next day, stormed Enniscorthy — on the 
 30th, got Wexford town by capitulation, and immediately 
 swept the county. On the 5th June, the insurgents stormed 
 Boss, got drunk in the town, and were driven out with much 
 execution; and, on the 9th, another of their masses failed in 
 an attack on Arklow The Wexford insurrection began thence- 
 forth to decline. On the 21st of .June, the battle of Vinegar 
 Hill was gained by General Lake. Meantime, the Antrim 
 rising had been stopped by a battle in that town, on the 7th 
 of June; and the success of that of Down, at Saintfield, on the 
 10th June was over-Lalanced by the total defeat of Munroe 
 and his Presbyterians at iiallinahinch, on the i '2th. Kildare 
 and Wicklow continued apartizan war: and a column of Wex- 
 ford fugitives forced their way to theBoyne, and there, utterly 
 worn out, were cut to pieces. This was on the 13th of July, 
 the morning when the Sheares were convicted. On the 17th 
 July, Lord Gastlereagh announced the final defeat of the 
 Rebellion.* 
 
 * If it is added that the French, under Humbert, entered Killala 
 Bay on the 22nd of August — carried Castlebar on the 27th of 
 
298 MR. curkan's speech on the 
 
 Perhaps the reader will forgive these dates, as he may tetter 
 appreciate, by means of them, the moral atmosphere wherein 
 these next speeches of Curran were spoken. 
 
 Henry and John Sheares were the sons of a Cork banker. 
 The elder was a man of fine person — vain and weak face, and 
 vainer and weaker mind — some eloquence and warmth, and 
 showy manners. In '98, he was forty-five years old, and was 
 married to a second wife, by whom he had a large family. 
 John was thirty-two — a man of firmness, feeling, and ready 
 intellect. He was, at the time of his death, engaged to a Miss 
 Steele. 
 
 Henry's property was ^1,200 a-year, which he encumbered; 
 John's S3,U00, on which he lived, after lending his brother 
 money. Miss Steele says he bought "nothing but books." They 
 resided in Baggot-street (now No. 130), and there Henry was 
 arrested. John was arrested at Surgeon Lawless's, in French- 
 street. They had been United Irishmen from 1793, and John was 
 a frequent chairman, and apparently a man of weight in "The 
 Union." He contributed to '■'■The Press" — was peculiarly active 
 with his brother in pushing the organization in Cork — and 
 became, as we have seen, one of the Executive, after the arrests 
 at Bond's, in March, '9S, 
 
 Strange to say, it was not till the 1 0th of May that they first 
 met their betrayer; but he was a skilful and zealous artist, 
 and in eleven days he contrived to win their intimacy, share 
 their hospitality, gain their secrets, and hand them to the 
 executioner! Unrivalled Armstrong! 
 
 This John Warneford Armstrong was a man of good family, 
 afid a Captain in the King's County Militia, then stationed at 
 Loughlinstown Camp, between Dublin and Bi'ay. On the 10th 
 May, he went to the shop of Byrne, a bookseller, in Grrafton- 
 
 August — and surrendered, at Ballinamuck, on the 8th September; 
 and that Hardy's flotilla was taken on the 11th October, with 
 Tone, who died on the 19th of November, the reader will have 
 a short chronology of the "Rebellion of '98." 
 
TBIAL OP HENET SHBAEES, 1798. 299 
 
 street, and a member of the United Irish Society. He was in 
 the habit of buying there the books current among the Repub- 
 licans, and Byrne (a feeble, but not treacherous, man) intro- 
 duced him to Henry Sheares.* Henry declined communication, 
 and went away; but John (who had before noticed Arm- 
 strong in the shop) soon came in, was introduced, and plunged 
 headlong into communication with Armstrong. Frequent inter- 
 views followed. The means of taking the Castle, Island-bridge 
 Barracks, and Lehaunstown (Loughlinstown) Camp, were 
 constant topics. On the 20th (Sunday), he dinedatBaggot-street, 
 on John's invitation, and with the earnest approval of Lord 
 Castlereagh; was informed by John, onthepartof theBxeoutive, 
 that he was to command the King's County force, and discussed 
 many raw, but important, projects. Armstrong had formed the 
 acquaintance to get them in his clutches; they were so, and on 
 the 21st of May they were taken. 
 
 On the 26th of June, Chief Justice Lord Carleton, Baron 
 George, and Justices Crookshank, Chamberlain, and Daly, 
 opened the Special Commission. After the Grand Juries for 
 Dublin City and County were sworn, they were addressed by 
 Lord Carleton; and then numerous prisoners were arraigned. 
 True bills were found against Samuel Neilson, Michael Byrne, 
 Henry and John Sheares, John M'Cann, and Oliver Bond. The 
 Court assigned f Mr. Ourran and Mr. M'Nally to John Sheares; 
 Mr. Plunket, for Henry Sheares; and Mr. Armstrong Fitzgerald, 
 as agents for both; and then adjourned to the 4th July. 
 
 On the 4th July, Lord Carleton, Barons Smith and George, 
 and Justices Crookshank and Daly, sat; and Henry and John 
 
 * At Armstrong's request, says the brief; at Byrne's own desire, 
 said Captain Armstrong, in a conversation with Dr. Madden, 
 which will appear in the Third, and most interesting, Series of 
 "The United Irishmen." 
 
 f The right to have counsel assigned, and to get a copy of 
 the indictment, was conceded to prisoners hy the 5th George III., 
 an act introduced by the father of the Sheares, when a member 
 of the Irish Parliament. 
 
300 ME. cueran's speech on the 
 
 Sheares being put to the bar, their indictment for High Treason 
 ■was read by the Clerk of the Crown. The first count stated 
 sixteen overt acts. The second count was for associating as 
 United Irishmen, &c. 
 
 Mr. M'Nally objected, after some delay, that JohnDecluzeau, 
 one of the grand jurors who found the bills, was an alien, not 
 naturalized, and filed a plea in court. The Crown replied, and 
 CuBEAN supported the plea as follows: — 
 
 My lords, we have looked over tMs replication, 
 and we find that the gentlemen concerned for the 
 crown have thought proper to plead in three ways. 
 The subject matter of our plea in abatement came 
 very recently to our knowledge. To suppose that 
 an ahen had been upon the grand jury finding a 
 bill of indictment involving the duty of allegiance 
 was a rare thing; the suspicion of it came late to 
 our knowledge. It would have been our duty to 
 be prepared, had we known it in time; but as we 
 did not, and as it is a plea of great novelty, we 
 hope the court will not think it unreasonable to 
 give us time till to-morrow to answer this pleading. 
 
 The court over-ruled the application 
 
 Mr. CuEEAN — My lords, before we rejoin, it may 
 be prudent to consider, whether this replication 
 should not be quashed. There are three distinct 
 matters in the rephcation, and they are repugnant 
 to one another. One is, that the juror is not an 
 alien; the second and third contain averments that 
 he is an alien. Clearly, in civil cases, a party can- 
 not plead double matter, without the leave of the 
 court; even the statute which gives that benefit, 
 
TEIAL OF HENEY SHEAEE8, 1798. 301 
 
 does not admit it without a special motion, in 
 order that the court may see whether the pleas 
 can stand together. But even that holds only in 
 civil cases, and by the authority of an act of par- 
 liament. Therefore, your lordships will consider, 
 whether a replication of this kind, consisting of 
 three parts, contradictory and repugnant, ought 
 to be answered. 
 
 Lord Carleton — In civil cases, certainly, the right of pleading 
 double arises from the act of parliament. As to the objection 
 you now make, you must availyourself of it in some other way. 
 We will not quash the replication upon motion. 
 
 A rejoinder and demurrer of insufficiency were then filed on 
 the part of the prisoners. 
 
 Mr. OuEEAN — My lords, it is my duty to suggest 
 such reasons as occur to me in support of the de- 
 murrer filed here on the part of the prisoners. My 
 lords, the law of this country has declared that in 
 order to the conviction of any man, not only of 
 any charge of the higher species of criminal offen- 
 ces, but of any criminal charge whatsoever, he 
 must be convicted upon the finding of two juries; 
 first, of the grand jury, who determine upon the 
 guUt in one point of view; and, secondly, by the 
 corroborative finding of thepetty jury, who establish 
 that guilt in a more direct manner; and it is the 
 law of this country, that the jurors who shall so 
 find, whether upon the grand, or whether upon 
 the petty inquest, shall be proU et legates homines 
 omni exceptione majores. They must be open to no 
 
302 MB. citrban's speech on the 
 
 legal objection of personal incompetence. They 
 must be capable of having freehold property; and, 
 in order to have freehold property, they must not 
 be open to the objection of being born under the 
 jurisdiction of a foreign prince, or owing allegiance 
 to any foreign power. Because the law of this 
 country, and, indeed, the law of every country in 
 Europe, has thought it an indispensable precaution, 
 to trust no man with the weight or influence which 
 territorial possession may give him, contrary to 
 that allegiance which ought to flow from every 
 man having property in the country. 
 
 This observation is emphaticaUy forcible in every 
 branch of the crimuial law ; but in the law of treason, 
 it has a degree of force and cogency that fails in 
 every inferior class of offence, because the very 
 point to be inquired into in treason, is the nature 
 of allegiance. 
 
 The general nature of allegiance may be pretty 
 clear to every man. Every man, however unlearned 
 he may be, can easily acquire such a notion of al- 
 legiance, whether natural and born with hhn, or 
 whether it be temporary, and contracted by emigra- 
 tion into another country, he may acquire a vague, 
 untechnical idea of allegiance, for his immediate 
 personal conduct. 
 
 But I am warranted in saying, that the constitu- 
 tion does not suppose, that any foreigner has any 
 direct idea of allegiance, but what he owes to his 
 original prince. The constitution supposes, and 
 
TEIAIi OP HENBY SHEABES, 1798. 303 
 
 takes for granted, that no foreigner lias such, an 
 idea of our peculiar and precise allegiance, as qua- 
 lifies him to act as a juror, where that is the ques- 
 tion to be inquired into; and I found myself upon 
 this known principle, that though the benignity of 
 the Enghsh law has in many cases, where strangers 
 are tried, given a jury half composed of foreigners 
 and half natives, that benefit is denied to any man 
 accused of treason, for the reason I have stated; 
 because, says Sir W. Blackstone, "ahens are very 
 improper judges of the breach of allegiance." A 
 foreigner is a most improper judge of what the 
 allegiance is which binds an English subject to his 
 constitution. And, therefore, upon that idea of 
 utter incompetency in a stranger, is every foreigner 
 directly removed and repelled from the possibihty 
 of exercising a function that he is supposed utterly 
 unable to discharge. 
 
 If one Frenchman shall be suffered to find a bill 
 of indictment' between our Lord the King and his 
 subjects, by a parity of reasoning, may twenty- 
 three men of the same descent be put into the 
 box, with authority to find a biU of indictment. 
 By the same reason that the court may communi- 
 cate with one man, whose language they do not 
 know, may they communicate with twenty-three 
 natives of twenty-three different countries and 
 languages. 
 
 How far do I mean to carry this? Thus far: that 
 every statute, or means by which allegiance may 
 
304 MR. cuhean's speech on the 
 
 be shaken off, and any kind of benefit or privilege 
 conferred upon an emigrating foreigner, is for ever 
 to be considered by a court of justice with relation 
 to that natural incompetency to perform certain 
 trusts, which is taken for granted, and established 
 by the law of England. I urge it with this idea, 
 that whether the privilege is conferred by letters 
 patent, making the foreigner a denizen, or whether 
 by act of parliament, making him as a native sub- 
 ject, the letters patent, or act of parhament, should 
 be construed secundum subjectam materiam; and a 
 court of justice will take care, that no privilege be 
 supposed to be granted, incompatible with the 
 original situation of the party to whom, or the 
 constitution of the country in which, it is con- 
 ferred. 
 
 Therefore, my lords, my chents have pleaded, 
 that the bill of indictment to which they have been 
 called upon to answer, has been found, among 
 others, by a foreigner, born under a foreign allegi- 
 ance, and incapable of exercising the right of a 
 juror, upon the grand, or the petty inquest. That 
 is the substance of the plea in abatement. The 
 counsel for the crown have replied, and we have 
 demurred to the second and third parts of the 
 replication. 
 
 My lords, I take it to be a rule of law, not now 
 to be questioned, that there is a distinction in our 
 statute laws; some are of a pubhc, some of a pri- 
 vate nature. 
 
TEIAL OF HENEY SHBAEES, 1798. 305 
 
 That part of the legislative edict which is con- 
 sidered as of a public nature, is supposed to be 
 recorded in the breasts of the King's judges. As 
 the King's judges, you are the depositories and 
 the records of the public law of the country. 
 
 But wherever a private indulgence is granted, 
 or a mere personal privilege conferred, the King's 
 judges are not the depositories of such laws, though 
 enacted with the same publicity; you are not the 
 repositories of deeds or titles which give men fran- 
 chises or estates, nor of those statutes which ease 
 a man of a disability, or grant him a privilege. 
 "With regard to the individual to whom they relate, 
 they are mere private acts, muniments, or deeds, 
 call them by what name you please; they are to 
 be shown as private deeds, to such courts as it 
 may be thought necessary to bring them forward. 
 Therefore, if there be any act of parhament, by 
 which a man is enabled to say he has shaken off 
 the disabihty which prevented him from inter- 
 meddling in the political or judicial arrangement 
 of the country; if he says he is no longer to be 
 considered as an ahen, he must show that act 
 specially to the court in his pleading. The parti- 
 cular authority, whether by letters of denization,. 
 or act of parhament, must be set forth, that the 
 court may judge of them, that if it be by act of 
 parliament, the court may see whether he comes 
 within the provisions of the act. This replication, 
 does no such thing. 
 
 20 
 
306 MR. cueean's speech on the 
 
 The second and the third parts were mtended 
 to be founded upon the statute of Charles II., and 
 also, I suppose, upon the subsequent statute, made 
 to give it perpetuity, with certain additional re- 
 quisites. The statute of Charles recites, that the 
 kingdom was wasted by the unfortunate troubles 
 of that time; and that trade had decreased, for 
 want of merchants. After thus stating generally 
 the grievances which had afflicted the trade and 
 population of the country, and the necessity of 
 encouraging emigration from abroad, it goes on 
 and says, that strangers may be induced to trans- 
 port themselves and families, to replenish the 
 country, if they may be made partakers of the 
 advantages and free exercise of their trades, without 
 inteiTuption and disturbance. 
 
 The grievance was the scarcity of men; the re- 
 medy was the encouragement of foreigners to 
 transport themselves ; and the encouragement given 
 was such a degree of protection as was necessary 
 to the full exercise of their trades, in dealing, buy- 
 ing, and selling, and enjoying the fullest extent of 
 personal security. Therefore, it enacts, that aU 
 foreigners, of the Protestant religion, and all mer- 
 chants, &c., who shall, witliin the term of seven 
 years, transport themselves to this country, shall 
 be deemed and reputed natural-born subjects, and 
 may implead and be impleaded, and prosecute and 
 defend suits. 
 
 The intention was, to give them protection for 
 
TRIAi OP HENBY SHEARES, 1798, 307 
 
 the purposes for whicli they were encouraged to 
 come here; and, therefore, the statute, instead of 
 saying generally they shall be subjects to all 
 intents and purposes, specifically enumerates the 
 privileges they shall enjoy. If the legislature in- 
 tended to make them subjects to all intents and 
 purposes, it had nothing more to do than say so. 
 But not having meant any such thing, the statute 
 is confined to the enumeration of the mere hospi- 
 table rights and privileges to be granted to such 
 foreigners as come here for special purposes. It 
 states, that he may implead, and shall be answered 
 unto, that he may prosecute and defend suits. Why 
 go on and teU a man, who is to all intents and pur- 
 poses a natural-born subject, that he may implead 
 and bring actions? I say, it is to all intents and 
 purposes absurd and preposterous. If all privileges 
 be granted in the first instance, why mention par- 
 ticular parts afterwards? A man would be esteemed 
 absurd, who by his grant gave a thing under a 
 general description, and afterwards granted the 
 particular parts. What would be thought of a 
 man who gave another his horse, and then said 
 to the grantee, "I also give you liberty to ride 
 him when and where you please?" 
 
 What was the case here? The government of 
 Ireland said, we want men of skUl and industry, 
 we invite you to come over, our intention is, that 
 if you be Protestants, you shall be protected: but 
 you are not to be judges, or legislators, or kings, 
 
 20* 
 
308 ME. cueean's speech on the 
 
 "We make an act of parliament, giving you protec- 
 tion and encouragement to follow the trades for 
 your knowledge in which we invite you; you are 
 to exercise your trade as a natural-born subject. 
 How? "With full power to make a bargain and en- 
 force it: we invest you with the same power, and 
 you shall have the same benefit, as if you were 
 appealing to your own natural form of pubhc jus- 
 tice; you shall be here as a Frenchman in Paris, 
 buying and seUing the commodities appertaining 
 to your trade. 
 
 Look at another clause in the act of parhament, 
 which is said to make a legislator of this man, or 
 a juror, to pass upon the hfe and death of a fellow- 
 subject, no, not a feUow-subject, but a stranger. 
 It says, "you may purchase an estate, and you 
 may enjoy it, without being a trustee for the 
 crown." "Why was that necessary, if he were a 
 subject to allintents and purposes? 
 
 This statute had continuance for the period of 
 seven years only: that is, it hmited the time in 
 which a foreigner might avail himself of its benefits 
 to seven years. The statute 4 George I. revives it, 
 and makes it perpetual. I trust I may say, that 
 whenever an act of parliament is made, giving 
 perpetuity to a former act, no greater force or 
 operation can be given to the latter, than would 
 have been given to the former, had it been declared 
 perpetual at the time of its enactment. An act of 
 that kind is merely to cure the defect of continuance; 
 
TEIAIi or HENRY SHBAUES, 1798. 309 
 
 therefore, it does no more than is necessary to 
 that end. Then how will it stand? Thus: that any 
 man, who, within seven years after the passing 
 of the act of Charles 11. performs the requisites 
 there mentioned, shall have the privileges thereby 
 granted for ever thereafter. The court would as- 
 sume the office of legislation, not of construction, 
 if they iaferred or supplied by intendment, a longer 
 period than seven years; there is nothing in the 
 subsequent act, changing the term of seven years 
 limited in the former; it is not competent to a 
 court of justice to alter or extend the operation 
 of a statute by the introduction of clauses not to 
 be found in it. It is the business of the legislature 
 to enact laws, of the court to expound them. 
 
 It is worthy of observation, my lords, that this 
 subsequent statute has annexed certain explicit 
 conditions to be performed by the person who is 
 to take the benefit of the preceding act; for it is 
 provided, that no person shall have the benefit of 
 the former act, unless he take the several oaths 
 appointed to be taken by the latter; among which, 
 is the oath against the Pretender, which is not 
 stated in the replication. 
 
 There is a circumstance in the latter act, which, 
 with regard to the argument, is extremely strong, 
 to show, that the legislature did not indend to 
 grant the universal franchise and privilege to aU 
 intents and purposes. It revives every part of the 
 former, save that part exempting aliens from the 
 
310 ME. cueean's speech on the 
 
 payment of excise. "Will it be contended, that an 
 alien should be considered as a natural-born sub- 
 ject to all intents and purposes, and yet be exempt 
 from the payment of excise? It is absurd, and im- 
 possible. 
 
 Put it in another point of view. What is an act 
 of naturalization? It is an encroachment upon the 
 common law rights, which every man born in this 
 country has in it; those rights are encroached upon 
 and taken away by a stranger. The statute there- 
 fore should be construed with the rigour of a penal 
 law. The court, to be sure, will see, that the 
 stranger has the full benefit intended for him by 
 the statute; but they will not give him any privi- 
 lege inconsistent with the rights of the natural- 
 born subj ects, or incompatible with the fundamental 
 principles of the constitution into which he is ad- 
 mitted; and I found myself upon this, that after 
 declaring that he shall be considered as a natural- 
 born subject, the act states such privileges only as 
 are necessary to the exercise of trade and the 
 enjoyment of property. 
 
 Therefore, it comes back to the observation just 
 now made. Is not any man pleading a statute of 
 naturalization, by which he claims to be considered 
 as a natural-born subject, bound to set forth a 
 compliance with all the requisites pointed out by 
 that statute? He is made a native to a certain ex- 
 tent, upon complying with certain conditions; ia 
 he not bomid to state that compliance? Here he 
 
TEIAL OF HENEY SHEAEES, 1798. 311 
 
 has not stated them. But I go farther; I say, that 
 every condition mentioned in the statute of Charles 
 should be set forth in the second part of the repK- 
 cation; that he came with an intent of settling; 
 that he brought his family and his stock; that he 
 took the oaths before the proper magistrates; and, 
 after a minute statement of every fact, he should 
 state the additional oath required by the statute 
 George I. 
 
 But, my lords, a great question remains behind 
 to be decided upon. I know of ho case upon it. I 
 do not pretend to say, that the uidustry of other 
 men may not have discovered a case. But I would 
 not be surprised, if no such case could be found; 
 if since the history of the administration of justice 
 in all its forms in England, a stranger had not 
 been found intruding himself into its concerns; if 
 through the entire history of our courts of justice, 
 an instance was not to be found, of the folly of a 
 stranger interfering upon so awful a subject as 
 the breach of allegiance between a subject and 
 his king. 
 
 My lords, I beg leave upon this part to say, that 
 it would be a most formidable thing, if a court of 
 justice would pronounce a determination big with 
 danger, if they said that an ahen may find a biU of 
 indictment involving the doctrine of allegiance. It 
 is permitting him to intermeddle in a business of 
 which he cannot be supposed to have any know- 
 ledge. Shall a subject of the Irish crown be charged 
 
312 MB. cueean's speech on the 
 
 with a breach, of his allegiance upon the saying 
 of a Grerman, an Italian, a Frenchman, or a Spani- 
 ard? Can any man suppose any thing more mon- 
 strous or absurd, than that of a stranger being 
 competent to form an opinion upon the subject? 
 I would not form a supposition upon it. At a time 
 when the generals, the admirals, and the captains 
 of France are endeavouring to pour their armies 
 upon us, shall we permit their petty detachments 
 to attack us injudicial hostility? Shall we sit inac- 
 tive and see their skirmishers take off our fellow- 
 subjects by explosions in a jury room? 
 
 When did this man come into the country? Is 
 the raft upon which he floated now in court? "What 
 has he said upon the back of the bUl? "What un- 
 derstanding had he of it? If he can write more than 
 his own name, and had wrote ignoramus upon the 
 back of the indictment, he might have written 
 truly; he might say, he knew nothing of the matter. 
 
 He says he is naturalized; I am glad of it; you 
 are welcome to Ireland, sir; you shall have aU the 
 privileges of a stranger, independent of the invita- 
 tion by which you came; if you sell, you shall re- 
 cover the price of your wares, you shall enforce 
 the contract; if you purchase an estate, you shall 
 transmit it to your children, if you have any, if not, 
 your devisee shall have it. But you must know, 
 that in this constitution, there are laws binding 
 upon the court as strongly as upon you: the statute 
 itself which confers the privileges you enjoy, makes 
 
TBIAIi or HENEY SHEAEES, 1798, 313 
 
 yoiiincapableof discliargmg offices. "WTiy? Because 
 they go to the fundamentals of the constitution, 
 and belong only to those men who have an interest 
 in that constitution transmitted to them from their 
 ancestors. 
 
 Therefore, my lords, the foreigner must be con- 
 tent ; he shall be kept apart from the judicial func- 
 tions; in the extensive words of the act of parlia- 
 ment, he shall be kept from "all places of trust 
 whatsoever." If the act had been silent in that 
 part, the court would notwithstanding be bound 
 to say, that it did not confer the power of filhng 
 the high departments of the state. The alien would 
 still be incapable of sitting in either house of par- 
 liament, he would be incapable of advising with the 
 king, or holding any place of constitutional trust 
 whatever. What! shall it be said, there is no trust 
 in the office of a grand juror? I do not speak or 
 think lightly of the sacred office confided to your 
 lordships, of administering justice between the 
 crown and the subject, or between subject and sub- 
 ject: I do not compare the office of a grand juror 
 to that. But, in the name of God, with regard to 
 the issues of life and death, with regard to the con- 
 sequences of imputed or established criminahty, 
 what difference is there, in the importance of the 
 constitution, between the juror who brings in a ver- 
 dict, and the judge who pronounces upon that ver- 
 dict the sentence of the law? Shall it be said, that 
 the former is no place of trust? "What is the place 
 
314 MR. cueban's speech on the 
 
 of trust meant by the statute? It is not merely 
 giving a thing to another, or depositing for safe 
 custody, it means constitutional trust, the trust 'of 
 executing given departments, in which the highest 
 confidence must be reposed in the man appointed 
 to perform them. It means not the trust of 
 keeping a paltry chattel, it means the awful trust 
 of keeping the secrets of the state, and of the 
 king. 
 
 Look at the weight of the obhgation imposed 
 upon the juror; look at the enormous extent of the 
 danger, if he violate or disregard it. At a time 
 like the present, a time of war, what! is the trust 
 to be confided to the conscience of a Frenchman? 
 But I am speaking for the lives of my chents, and 
 I do not choose, even here, to state the terms of 
 the trust, lest I might furnish as many hints of 
 mischief, as I am anxious to furnish arguments of 
 defence. But shall a Frencliman, at this moment, 
 be entrusted with those secrets upon which your 
 sitting upon that bench may eventually depend? 
 What is the inquiry to be made? Having been a 
 pedlar in the country, is he to have the selhng of 
 the country, if he be inclined to do so? Is he to 
 have confided to him the secrets of the state ? He 
 may remember to have had a first allegiance, that 
 he has sworn to it: he might find civilians to aid 
 his perfidious logic, and to teU liim, that a secret 
 communicated to him by the humanity of the coun- 
 try which received him, might be disclosed to the 
 
TEIAL OP HEimY SHEAEES, 1798. 315 
 
 older and better matured allegiance sworn to a 
 former power! He might give up the perfidious 
 use of his conscience to the integrity of the older 
 title. Shall the power of calling upon an Irishman 
 to take his trial before an Irish judge, before "the 
 country," be left to the broken speech, the lingua 
 franca, of a stranger coming among you and say- 
 ing, "I was naturahzed by act of parliament, and 
 I cannot carry on my trade, without deaUng in the 
 blood of your citizens?" 
 
 He holds up your statute as his protection, and 
 flings it against your liberty, claiming the right of 
 exercising a judicial function, feehng at the same 
 time the honest love for an older title to allegiance. 
 It is a love which every man ought to feel, and 
 which every subject of 'this country would feel if 
 he left this country to-morrow, and were to spend 
 his last hour among the Hottentots of Africa. I 
 do trust in God, there is not a man wo hears me, 
 who does not feel that he would carry wit^ him 
 to the remotest part of the globe the old ties which 
 bound him to his original friends, his country, and 
 his king: I do, as the advocate of my clients, of 
 my country — as the advocate for you, my lords, 
 whose elevation prevents you from the possibility 
 of being advocates for yourselves, — for your chil- 
 dren, stand up and rely upon it, that this act of 
 parliament has been confined to a limited opera- 
 tion; it was enacted for a limited purpose, and will 
 not allow this meddling stranger to pass upon the 
 
316 ME. ourban's speech on the 
 
 life, fame, or fortune of the gentlemen at tlie bar, 
 — of me, their advocate, — of you, their judges, — 
 or of any man in the nation. It is an intrusion not 
 to be borne. 
 
 My lords, you deny him no advantage that stran- 
 gers ought to have. By extending the statute, you 
 take away a right from a native of the country, 
 and you transfer one to an intermeddling stranger. 
 I do not mean to use him with disrespect; he may 
 be a respectable and worthy man; but whatever 
 he may be, I do, with humble reliance upon the 
 justice of the court, deprecate the idea of commu- 
 nicating to him that high, awful, and tremendous 
 privilege, of passing upon life, of expounding the 
 law in cases of treason; it being a fundamental 
 maxim that strangers wUl, most improperly, be 
 called upon to judge of breaches of allegiance be- 
 tween a subject and his sovereign. 
 
 The objection being over-ruled, the court adjourned. 
 
 On Thursday, the 12th July, at nine o'clock, the trial camo 
 on. Mr. Webber opened, and the Attorney -General (Toler) 
 stated, the case. Alderman Alexander proved that he found in 
 John's open desk, in Baggot-street, the following paper. (The 
 •words in italics were interlined; those between crotchets wero 
 struck across with a pen): — ■ 
 
 "Irishmen, 
 
 [Your country is free; all those monsters who usurped its 
 government to oppress its people are in our hands, except such 
 as have] 
 
 "Your country is free and you are about to be avenged 
 [already] that vile government which has so long and so cruelly 
 
TRIAL OP HENHY SHBAEE3, 1798, 317 
 
 oppressed you is no more; some of its most atrocious monsters 
 have already paid the forfeit of their lives, and the rest are in 
 our hands [waiting their fate.] The national flag, the sacred 
 green, is at this moment flying over the ruins of despotism, and 
 that capital which a few hours past [was the scene] witnessed 
 the debauchery, [the machinations] plots and crimes of your 
 tyrants, is now the citadel of triumphant patriotism and virtue. 
 Arise, then, united sons of Ireland; arise like a great and 
 powerful people, determined to [live] he free or die; arm your- 
 selves by every means in your power, and rush like lions on 
 your foes; consider, that [in disarming your enemy] for every 
 enemy you disarm, you arm a friend, and thus become doubly 
 powerful; in the cause of liberty, inaction is cowardice, and the 
 coward shall forfeit the property he has not the courage to 
 protect. Let his arms be seized and transferred to those gallant 
 [patriots] spirits who want, and will use them; yes, Irishmen, 
 we swear by that eternal justice, in whose cause you fight, 
 that the brave patriot who survives the present glorious 
 struggle, and the family of him who has fallen, or shall fall 
 hereafter in it, shall receive from the hands of a grateful nation 
 an ample recompense out of [those funds] that property which 
 the crimes of our enemies [shall] have forfeited into its hands, 
 and his name [too] shall be inscribed on the national record of 
 Irish revolution, as a glorious example to all posterity; but we 
 likewise swear to punish robbery with death and infamy. 
 
 "We also swear that we will never sheathe the sword until 
 every [person] being in the country is restored to those equal 
 rights which the God of nature has given to all men ; until an 
 order of things shall be established, in which no superiority 
 shall be acknowledged among the citizens of Erin, but that 
 [which] of virtue and talent [shall entitle to]. 
 
 "[As for those degenerate wretches who turn their swords 
 against their native country, the national vengeance awaits 
 them. Let them find no quarter unless they shall prove their 
 repentance by speedily deserting, exchanging from the standard 
 
318 ME. cueean's speech on the 
 
 of slavery, for that of freedom, under which their former errors 
 may he buried, and they may share the glory and advantages 
 that are due to the patriot hands of Ireland.] 
 
 "Many of the military feel the love of liberty glow within 
 their breasts, and have [already to] joined the national standard; 
 receive [those] with open arms, such as shall follow so glorious 
 an example, they can render signal service to the cause of 
 freedom, and shall be rewarded according to their deserts: but 
 for the wretch who turns his sword against his native countiy, 
 let the national vengeance be visited on him, let him find no 
 quarter, two other crimes demand — 
 
 "Rouse all the energies of your souls ; call forth all the merit 
 and abilities which a vicious government consigned to obscurity, 
 und under the conduct of your chosen leaders march with a 
 steady step to victory; heed not the glare of [a mercenary] 
 hired soldiery, or aristocratic yeomanry, they cannot stand the 
 vigorous shock of freemen, [close with them man to man, and 
 let them see what vigour the cause of freedom can.] Their 
 trappings and their arms will soon be yours, and the detested 
 government of England to which we vow eternal hatred, shall 
 learn that the treasures [she, it] they exhaust on [their mer- 
 cenary] its accoutred slaves for the purpose of butchering 
 Irishmen, shall but further enable us to turn their swords on. 
 its devoted head. 
 
 "Attack them in every direction by day and by night; avail 
 yourselves of the natural advantages of your country, which 
 are innumerable, and with rvhich you are better acquainted than 
 they; where you cannot oppose them in full force, constantly 
 harass their rear and their flanks; cut off their provisions and 
 magazines, and prevent them as much as possible from uniting 
 their forces; let whatever moments you cannot [pass in] devote 
 to fighting for your country, be [devoted to] passed in learning 
 how to fight for it, or preparing the means of war; for war, war 
 alone must occupy every mind, and every hand in Ireland, until 
 its long oppressed soil be purged of all its enemies. 
 
TRIAL OP HENET SHEAKES, 1798. 319 
 
 "Vengeance, Irishmen, vengeance on your oppressors. Re- 
 member what thousands of your dearest friends have perished 
 by their '[murders, cruel plots] merciless order i; remember their 
 burnings, their rackings, their torturings, their military mas- 
 sacres, and their legal murders. Remember ORE,." 
 
 The briefs in this case are still in existence. The present 
 owner of them was, in '98, an apprentice to Mr. A. Fitzgerald, 
 agent for the defence, and was employed to write down the 
 defence, from John Sheares' dictation. These briefs (for the 
 4th and 1 2th July) possess, therefore, unusual interest. They 
 are clear, masculine, and sagacious. In them John Sheares 
 plainly enough tells his counsel to save his brother at his 
 expense. 
 
 The back is torn off the brief for the 4th, which contains 
 the main case for the defence; but the "additional brief, on 
 behalf of the Prisoners," is directed to "George Ponsonby, 
 Esq.,'' and "with you, J. P. Curran, Wm. 0. Plunket, Leonard 
 MaoNallyi" yet formally Curran only spoke for Henry Sheares. 
 
 The brief must have struck dismay into the counsel's heart. 
 Covered in the usual language of advocacy, it disclosed that, 
 on the 10th of May, John had undertaken to find out what 
 United Men were in Armstrong's regiment; that Armstrong 
 entreated secrecy; that the two brothers were called on in 
 Baggot-street, at four o'clock, on the same day, by Armstrong, 
 and there discussed with him the taking of Lehaunstown. On the 
 evening ofthe 11th, and twice on the 12th, they met. On Sunday, 
 Armstrong dined with them, and John wrote down many names 
 of officers and men, including Captain Crofton, Lieutenant 
 Wilkinson, &c., who could be relied on. A return ofthe number 
 of organized and of armed men in the different counties was 
 also on the same paper. This paper was found on John's person 
 when he was arrested. It seems to have greatly alarmed him 
 and his agent. It was not only proved, but A. Kearney swore 
 that he and John Sheares were at a meeting in Werburgh- 
 street, where the calculations were made. 
 
320 MK. CUEEAN'S speech 03Sr THE 
 
 Armstrong may for a moment have doutted which to sell 
 himself to — the United Irish, or the Castle; for he expressed 
 great anxiety about his commission in case of a revolution, and 
 "to which the prisoner John replied, that it was more probable 
 they would make him Colonel, as Colonel Lestrange was a 
 violent man against them." So it ran first in the brief, but 
 was altered to, "that they ought rather make him Colonel, as 
 Sir Laurence Parsons had resigned." 
 
 He had a bargainer's eye on every one — even on Parsons, his 
 patron and benefactor; for he asked John Sheares, if Sir 
 Laurence was "united," and that he'd like to talk to him on the 
 subject. 
 
 Here is Armstrong at home with the family on Sunday night, 
 whom he crunched like a shark next day: — 
 
 "During dinner, and until the females withdrew, the most 
 perfect picture of domestic happiness, that could soften the 
 most obdurate heart, was presented in the family then collected 
 together. It consisted of the prisoners' mother and sister, and 
 the wife and three young children of the prisoner Henry, on all 
 of whom he doats with the tenderest aifection. Yet could not 
 this scene move the prosecutor from his purposed treachery! 
 On the contrary, he was very lively, and seemed to enjoy the 
 ruin he meditated. When the wine had circulated pretty freely, 
 the prosecutor again renewed.the political theme — spoke in the 
 harshest terms of the government, and particularly of tho 
 Chancellor, Speaker, and some others, whom he termed the 
 prime movers of all the cruelties, military and civil, that wero 
 inflicted on the people. Among many other instances which he 
 cited to inflame the passions of the prisoners, he mentioned one 
 that deserves notice. He said he was on guard one night at 
 the Castle, when a guard was demanded of him to quell some 
 tumult in the Liberties; that the orders expressly given by 
 Major Sirr to him were, to desire the officer who was to com- 
 mand the party going on that service, to he sure to shed Mood 
 enough— to spare neither man, woman, nor child — and, at his 
 
TEIAL OP HENrvY SIIEAEES, 1798. 321 
 
 peril, to take no prisoners; that he did, accordingly, give those 
 orders, and that the officer entirely disobeyed them, and brought 
 back some prisoners," for which he was violently abused by 
 Major Sirr."- 
 
 In nothing does John's superiority appear more than in his 
 self-sacrificing care for his brother. Surely this is a clear 
 direction to his counsel to save Henry at any rate: — 
 
 "It is suggested to counsel that as the only means by which 
 any of the overt acts, committed exclusively by the said John, 
 can attach upon the said Henry, arise from the alleged conver- 
 sation, &c., of both the prisoners, in presence of the prosecutor, 
 for the purpose of overturningtho government, &c., the entire 
 force of the prisoners' defence should be directed to show, in 
 the first instance, that at these interviews nothing occurred 
 but conversations started by the prosecutor himself, and after- 
 wards distorted by him into criminal consultations; and, 
 secondly, that whatever consultations can be suspected to have 
 passed between the prosecutor and J ohn, Henry had no concern 
 in — none of the overt acts laid in the indictment having been 
 committed in his presence, nor with liis concurrence or know- 
 ledge. Possessed of complete domestic happiness, he felt it a 
 dvity he owed his family and self, to avoid engaging in any 
 political controversy, by which he had already so severely 
 injured them. The same motives actuated the said John to 
 preserve to the said Henry the full advantage of this prudent 
 resolution, though more addicted, from nature and situation, 
 to indulge his own political propensities; he endeavoured to 
 avert from the said Henry any inconvenience or injury that 
 might result from his (the said John's) conduct. But the 
 artifice of the prosecutor baffled him, and apparently connected 
 both in this transaction. Yet when it is considered, that at 
 the first introduction between the prosecutor and the prisoner 
 Henry, which certainly was entirely unsought for by the latter, 
 QO political conversation whatsoever took place; that he, Henry,, 
 vvas never present when any of the names of officers or sergeants 
 
 21 
 
322 ME. ctjeran's speech on the 
 
 were written or produced; that at two of the meetings between 
 the prosecutor and John, Henry was absent ; that in no instance 
 did Henry take upon him any part, or promise to do any act, 
 nor to procure any of the information sought for; that no 
 writing, or other document whatsoever, was found in Ms posses- 
 sion; that though John, his brother, lived in his house, their 
 papers were wholly distinct, and those of each secret and un- 
 known to the other; that it can in no instance be shown that 
 Henry associated with any individual suspected of being con- 
 cerned in this rebellion." 
 
 In reference to the proclamation, after many palliations and 
 speaking of it as a rude and hypothetical ''scroll," as it surely 
 was, the brief (or rather John Sheares) says: — 
 
 "But what the real object of it was cannot appear, but by 
 explanation and evidence of the writer's opinions, relative to 
 points mentioned therein. (The justification of his opinions 
 on some of these points is considered by the prisoner, in whose 
 desk these papers were found, of more importance than his 
 personal safcsty.)" 
 
 Poor fellow! every one's testimony, man's and woman's, goes 
 to show that he was the more humane, as he was the braver 
 and the more earnest, of the brothers. 
 
 There is one other fact about Armstrong, better told in the 
 brief than in any narrative: — 
 
 "When taken to the guard-room at the Castle, another 
 instance occurred of the prisoner John's total unconsciousness 
 that any intercourse he had had with the prosecutor was of a 
 criminal nature. While there in custody, the prosecutor 
 entered — expressed his surprise and concern at seeing the 
 prisoner there — inquired if there was any danger of prisoner, 
 or if the government had any charge against him — offered his 
 services in the most friendly manner. Prisoner, instead of 
 suspecting or fearing him, as he naturally would have done, if 
 conscious he could injure him, felt and expressed himself as 
 highly grateful for such friendly attention. Said all he feared 
 
1798. 323 
 
 was that a certain paper had heen found in his desk; that if it 
 was, he would certainly be committed; recommended to the 
 prosecutor to withdraw immediately from the room, lest any 
 injurious suspicion might attach upon him, if seen in conversa- 
 tion with the prisoner; (prisoner thought that prosecutor's 
 anxiety for him made him forget his former caution relative to 
 their acquaintance;) prisoner requested prosecutor that he 
 would call upon his family and pacify their fears, which he 
 promised to do, and departed." 
 
 Toler's* speech was as sanguinary and confused as possible. 
 
 Armstrong was examined by Saurin , and swore to the facts 
 we have stated (he had no occasion for perjury); and his cross- 
 examination only proved him blood-thirsty, an Atheist, and a 
 traitor. 
 
 Application was made for adjournment, but in vain. Mr. 
 Gr. Ponsonby opened for Henry, and Mr. Plunket for John 
 Sheares. Mr. M'Nally pressed some law points with little effect. 
 Three witnesses were examined, to prove Captain Armstrong 
 an Atheist; two that he was an avowed Republican and rebel. 
 Several witnesses were examined to the character of the 
 Sheares. 
 
 It was then twelve at night — the trial had begun at nine; 
 and, worn with fifteen hours of anxiety, in a crowded court, in 
 the midst of the summer, Cukran rose and said: — 
 
 My Lord, before I address you or the Jury, I 
 would wish to make one preliminary observation; 
 it may be an observation only, it may b'e a request: 
 for myself, I am indifferent, but I feel I am now 
 unequal to the duty — I am sinking under the weight 
 of it. We aU know the character of the jury; the 
 interval of their separation must be short, if it 
 
 * He had been made Attorney, and Stewart Solicitor-General 
 on the 10th of July. 
 
 21* 
 
324 ME. cueean'b speech on the 
 
 should be deemed necessary to separate them. I 
 protest I have sunk under this trial. If I must go 
 on, the court must bear with me, the jury may also 
 bear with me: I will go on, until I sink. But after 
 a sitting of sixteen hours, with only twenty mi- 
 nutes' interval, in these times, I should hope it 
 would not be thought an obtrusive request to hope 
 for a few hours' interval for repose, or rather for 
 recollection. 
 
 Lord Cfarleton — What say you, Mr. Attomey-Greneral? 
 
 Mr. Attorney-General — My lords, I feel such public incon- 
 venience fromadjourningcasesof this kind, that I cannot consent. 
 The counsel for the prisoners cannot be more exhausted than 
 those for the prosecution. If they do not choose to speak to the 
 evidence, we shall give up our right to speak, and leave the 
 matter to the court altogether. They have had two speeches 
 already [Mr. Ponsonby had spoken], and leaving them unreplied 
 to is a great concession. 
 
 Lord Carleton — We would be glad to accommodate as much 
 as possible. I am as much exhausted as any other; but we 
 think it better to go on. 
 
 Mr. CuEEAN — Gentlemen of the jury, it seems 
 that much has been conceded to us. God help us! 
 I do not know what has been conceded to me, if 
 so insignificant a person may have extorted the re- 
 mark. Perhaps it is a concession that I rise in 
 such a state of mind and body, of collapse and de- 
 privation, as to feel but a little spark of indigna- 
 tion raised by the remark, that much has been 
 conceded to the counsel for the prisoner; much 
 has been conceded to the prisoners! Almighty and 
 
TRIAL OP HENRY SHE ARES, 1798. 325 
 
 merciful God, who lookest down upon us, what are 
 the times to which we are reserved, when we are 
 told, that much has been conceded to prisoners 
 who are put upon their trial at a moment Hke this, 
 of more darkness and night of the human intellect, 
 than a darkness of the natural period of twenty- 
 four hours; that public convenience cannot spare 
 a respite of a few hours to those who are accused 
 for their lives, and that much has been conceded 
 to the advocate, almost exhausted in the poor re- 
 mark which he has endeavoured to make upon it. 
 
 My countrymen, I do pray you, by the awful 
 duty which you owe your country, by that sacred 
 duty which you owe your character (and I know 
 how you feel it), I do obtest you, by the Almighty 
 Grod, to have mercy upon my client, to save him, 
 not from guilt, but from the baseness of his ac- 
 cuser, and the pressure of the treatment under which 
 I am sinking. 
 
 With what spirit did you leave your habitations 
 this day? with what state of mind and heart did 
 you come here from your families? with what sen- 
 timents did you leave your children, to do an act 
 of great public importance, to pledge yourselves 
 at the throne of eternal justice, by the awful and 
 solemn obligation of an oath, to do perfect, cool, 
 impartial and steady justice, between the accuser 
 and the accused? Have you come abroad under 
 the idea, that public fury is clamorous for blood? 
 that you are put there under the mere formality 
 
326 ME. cueean's speech on the 
 
 or memorial of death, and ought to gratify that 
 fury with the blood for ^Thich it seems to thirst? 
 If you are, I have known some of you, more than 
 one, or two, or three in some of those situations, 
 where the human heart speaks its honest sentiments. 
 I think I ought to know you well, you ought to 
 know me, and there are some of you who ought 
 to listen to what so obscure an individual may say, 
 not altogether without some degree of personal con- 
 fidence and respect. I will not solicit your atten- 
 tion by paying the greatest compliment which man 
 can pay to man; but I say, I hold you in regard as 
 being worthy of it; I will speak such language as 
 I would not stoop to hold, if I did not think you 
 worthy of it. 
 
 Gentlemen, I will not be afraid of beginning with 
 what some may think I should avoid, the disastrous 
 picture which you must have met upon your way 
 to this court. A more artful advocate might endea- 
 vour to play with you, in supposing you to possess 
 a degree of pity and, of feeling beyond that of any 
 other human, being. But I, gentlemen, am not 
 afraid of beginning by warning you against those 
 prejudices which all must possess; by speaking 
 strongly against them; by striking upon the string, 
 if not strong enough to snap it, will wake it into 
 vibration. Unless you make an exertion beyond 
 the power almost of men to make, you are not fit 
 to try this cause. You may preside at such an ex- 
 ecution as the witness would extol himself for — at 
 
TUIAL OF HENRT SHEAEES, 1798. 327 
 
 the sentence flowing from a very short inquiry into 
 reason; but you are not fit to discharge the awful 
 trust of honest men, coming into the box, indiffer- 
 ent as they stand unsworn, to pronounce a verdict 
 of death and infamy, or of existence and of honour. 
 You have only the interval between this and pro- 
 nouncing your verdict to reflect, and the other in- 
 terval when you are resigning up your last breath, 
 between your verdict and your grave, when you 
 may lament that you did not as you ought. 
 
 Do you think I want to flatter your passions? 
 I would scorn myself for it. I want to address your 
 reason, to call upon your consciences, to remind 
 you of your oaths, and the consequence of that 
 verdict, which, upon the law and the fact, you must 
 give between the accuser and the accused. Part of 
 what I shall say must of necessity be addressed to 
 the court, for it is matter of law; but upon this sub- 
 ject, every observation in point of law is so inse- 
 parably blended with the fact, that I cannot pretend 
 to say that I can discharge your attention, gentle- 
 men, even when I address the court. On the con- 
 trary, I shaU the more desire your attention, not 
 so much that you may understand what I shall 
 Day, as what the court shall say. 
 
 Gentlemen, this indictment is founded upon the 
 statute 25th Edward III. 
 
 The statute itself begins with a melancholy ob- 
 servation on the proneness to deterioration which 
 has been found in countries unfortunately to take 
 
328 ME. currant's speech on the 
 
 place in their criminal law, particularly in tlie law 
 respecting Hgli treason. The statute begins with 
 reciting, that in the uncertainty of adjudications, 
 it became difficult to know what was treason, and 
 what was not; and to remove further difficulty, it 
 professes to declare aU species of treason that 
 should thereafter be so considered; and by thus 
 regulating the law, to secure the state and the con- 
 stitution, and the persons of those interested in the 
 executive departments of the government, from 
 the common acts of violence that might be used to 
 their destruction. 
 
 The three first clauses of the statute seem to have 
 gone a great way indeed upon the subject; because 
 the object of the provisions was to protect the 
 person, and I beg of you to understand what I 
 mean by person, I mean the natural person; I mean 
 no figure of speech, not the monarch in the ab- 
 stract, but the natural man. The first clause was 
 made without the smallest relation to the execu- 
 tive power, but solely to the natural body and 
 person. The words are, "when a man doth compass 
 or imagine the death of the King, or of our lady 
 his Queen, or their eldest son and heir, and thereof 
 be, upon sufficient proof, attainted of open deed 
 by men of Ms condition, he shall be a traitor." 
 This I say relates only to the natural person of the 
 King. The son and heir of the King is mentioned 
 in the same manner, but he has no power; and, 
 therefore, a compassing his death must mean the 
 
TBIAL OP HEimY SHEAEES, 1798. 329 
 
 death of his natural person, and so must it be in 
 the case of the King. To conceive the purpose of 
 destroying a common subject, was once a felony 
 of death, and that was expressed in the same lan- 
 guage, compassing and imagining the death of the 
 subject. It was thought right to dismiss that severe 
 rigour of the law in the case of the subject, but it 
 was thought right to continue it in the case of the 
 King, in contradistincton to all the subjects within 
 the realm. 
 
 The statute, after describing the persons, de- 
 scribes whatshaU be evidence of thathigh and abom- 
 inable guilt; it must appear by open deed; the 
 intention of the guilty heart must be proved by 
 evidence of the open deed committed towards the 
 accomplishment of the design. Perhaps in the 
 hurry of speaking, perhaps from the mistakes of 
 reporters, sometimes from one, and sometimes from 
 the other, judges are too often made to say, that 
 such or such an overt act is, if proved to have 
 been committed, ground upon which the jury must 
 find the party guilty of the accusation. I must 
 deny the position, not only in the reason of the 
 thing, but am fortified by the ablest writers upon 
 the law of treason. In the reason of the thing, be- 
 cause the design entertained, and act done, are 
 matters for the jury. Whether a party compassed 
 the King's death or not, is matter for the jury: 
 and, therefore, if a certain fact be proved, it is non- 
 sense to say, that such a conclusion must follow; 
 
330 ME. cueean's speech on the 
 
 because a conclusion of law would then be pro- 
 nounced by the jury, not by the court. I am war- 
 ranted in this by the writers cited by Mr. Justice 
 Foster; and, therefore, gentlemen, upon the first 
 count in the indictment, you are to decide a plain 
 matter of fact, 1st, whether the prisoner did com- 
 pass and imagine the death of the King? and whe- 
 ther there be any act proved, or apparent means 
 taken, which he resorted to for the perpetration 
 of the crime? 
 
 Upon this subject, many observations have al- 
 ready been made before me. I will take the hberty 
 of making one, I do not know whether it has been _ 
 made before. Even in a case where the overt act 
 stated has of its own nature gone to the person of 
 the King, still it is left to the jury to decide, whe- 
 ther it was done with the criminal purpose alleged, 
 or not. In Russell's case, there was an overt act 
 of a conspiracy to seize the guards; the natural 
 consequence threatened from an act of gross vio- 
 lence so immediately approaching the King's per- 
 son, might fairly be said to affect his life; but still 
 it was left to the jury to decide, whether that was 
 done for the purpose of compassing the King's 
 death. 
 
 I mention this, because I think it a strong an- 
 swer to those kind of expressions, which in bad 
 times fall from the mouths of prosecutors, neither 
 law nor poetry, but sometimes half metaphysical. 
 Laws may be enacted in the spirit of sound policy, 
 
TEIAL or HENEY SHEAEES, 1798. 331 
 
 and supported by superior reason; but wben only 
 half considered, and their provisions half enumer- 
 ated, they become the plague of the government, 
 and the grave of principle. It is that kind of re- 
 finement and cant which overwhelmed the law of 
 treason, and brought it to a metaphysical death; 
 the laws are made to pass through a contorted un- 
 derstanding, vibratory and confused, and, therefore, 
 after a small interval from the first enactment of 
 any law in Great Britain, the dreams of fancy get 
 around, and the law is lost in the mass of absurd 
 comment. Hence it was that the statute gave its 
 awful declarations to those glossaries ; so that if any 
 case arise, apparently within the statute, they were 
 not to indulge themselves in conjecture, but refer 
 to the standard, and abide by the law as marked 
 out for them. Therefore, I say, that the issue for 
 the jury here is to decide in the words of the sta- 
 tute, whether the prisoners did compass the death 
 of the King; and whether they can say, upon their 
 oaths, that there is any overt act proved in evid- 
 ence, manifesting an intention of injury to the 
 natural person of the King? 
 
 I know that the semblance of authority may be 
 used to contradict me: if any man can reconcile 
 himself to the miserable toil of poring over the re- 
 cords of guilt, he will find them marked, not in 
 black, but in red, the blood of the unfortunate, 
 leaving the marks of folly, barbarity, and tyranny. 
 But I am glad that men who in some situations 
 
332 MK. oueean's speech on the 
 
 appear not to have had the pulse of honest com- 
 passion, have made sober reflections in the hour of 
 pohtical disgrace. Such has been the fate of Lord 
 Coke, who, in the triumph of insolence and power, 
 pursued a conduct which, in the hour of calm re- 
 treat, he regretted in the language of sorrow and 
 disappointment. He then held a language which I 
 willingly repeat, "that a conspiracy to levy war, 
 was no act of compassing the murder of the King." 
 There he spoke the language of law and of good 
 sense; for a man shall not be charged with one 
 crime, and convicted of another. It is a narrow and 
 a cruel policy, to niake a conspiracy to levy war 
 an act of compassing the King's death; because it 
 is a separate and distinct offence; because it is 
 calhng upon the honest affections of the heart, and 
 creating those pathetical effusions, which confound 
 all distinct principles of law, a grievance not to be 
 borne in a state where the laws ought to be certain. 
 This reasoning is founded upon the momentary 
 supposition that the evidence is true; for you are 
 to recollect the quarter from whence it comes; 
 there has been an attempt by precipitate confession, 
 to transfer guilt to innocence, in order to escape 
 the punishment of the law. Here, gentlemen, there 
 is evidence of levying war, which act, it is said, 
 tends to the death of the King: that is a con- 
 structive treason, calculated as a trap for the loyalty 
 of a jury; therefore you should setboundstoproceed- 
 ings of that kind; for it is an abuse of the hiAV, to 
 
TRIAL OP HENEY SHEAEES, 1798. 333 
 
 make one class of offence, sufficiently punished 
 already, evidence of another. Every court, and 
 every jury, should set themselves against crimes, 
 when they come to determine upon distinct and 
 specified guilt: they are not to encourage a confu- 
 sion of crimes, by disregarding the distinction of 
 punishments; nor show the effusion of their loyalty, 
 by an effusion of blood. 
 
 I cannot but say that when cases of this kind 
 havebeen under judgment inWestminster-hall, there 
 was some kind of natural reason to excuse this' 
 confusion in the reports — the propriety of making 
 the person of the King secure. A war immediately 
 adjoining the precincts of the palace, a riot in 
 London, might endanger the life of the King; but 
 can the same law prevail in every part of the 
 British empire? It may be an overt act of com- 
 passing the King's death to levy war in Great 
 Britain; but can it be so in Jamaica, in the Bahama 
 isles, or in Corsica, when it was aimexed to the 
 British empire? Suppose at that time a man had 
 been indicted there for compassing the King's death, 
 and the evidence was, that he intended to transfer 
 the dominion of the island to the Grenoese, or the 
 French; what would you say, if you were told that 
 was an act by which he intended to murder the 
 King? By seizing Corsica, he was to murder the 
 King? How can there be any immediate attempt 
 upon the King's life, by such a proceeding ? It is not 
 possible, and therefore no such consequence can 
 
334 MR. curean's speech on the 
 
 be probably inferred; and, therefore, I call upon 
 you to listen to the court with respect, but I also 
 call upon you to listen to common sense, and con- 
 sider, whether the conspiring to raise war can in 
 this coimtry be an overt act of compassing the 
 King's death in this country? I will go further: if 
 the statute of Edward III. had been conceived to 
 make a conspiracy to levy war an overt act of 
 compassing the King's death, it would be unne- 
 cessary to make it penal by any subsequent statute; 
 "and yet subsequent statutes were enacted for that 
 purpose; which I consider an unanswerable argu- 
 ment, that it was not considered as coming within 
 the purview of the clause against compassing the 
 King's death. 
 
 Now, gentlemen, you will be pleased to consider 
 what was the evidence brought forward to support 
 this indictment. I do not think it necessary to ex- 
 haust your attention by stating at large the evid- 
 ence given by Captain Armstrong. He gives an 
 account which we shall have occasion to examine, 
 with regard to its credibility. He stated his intro- 
 duction, first to Mr. Henry Sheares, afterwards to 
 his brother; and he stated a conversation which 
 you do not forget, so strange has it been! But in 
 the whole course of his evidence, so far from making 
 any observation, or saying a word in connexion 
 with the power at war with the King, he expressly 
 said, that the insurrection, by whomsoever pre- 
 pared, or by what infatuation encouraged, was to 
 
TRIAL OF HENRY SHEAEES, 1798. 335 
 
 be a home exertion, independent of any foreign 
 interference whatever. And, therefore, I am war- 
 ranted in saying, that such an insurrection does not 
 come within the first clause of the statute; It can- 
 not come within the second, of adhering to the 
 King's enemies; because that means his foreign 
 enemies ; and here, so far from any intercourse with 
 them, they were totally disregarded. 
 
 Adhering to the King's enemies means co-oper- 
 ating with them, sending them provisions, or in- 
 telligence, or supplying them with arms. But I 
 venture to say, that there has not been any one 
 case deciding that any act can be an adherence to 
 a foreign enemy, which was not calculated for the 
 advantage of that enemy. In the case of Jackson, 
 Hensey, and Lord Preston, the parties had gone 
 as far as they could in giving assistance. So it was 
 in Quigley's. But, in addition to this, I must repeat, 
 that it is utterly unnecessary the law should be 
 otherwise; for levying war is, of itself, a crime; 
 therefore it is unnecessary, by a strained construc- 
 tion, to say, that levying war, or conspiring to levy 
 war, should come within any other clause equally 
 penal, but not so descriptive. 
 
 But, gentlemen, suppose I am mistaken in both 
 points of my argument; suppose the prisoners (if 
 the evidence were true) did compass the King's 
 death, and adhere to the King's enemies ; what are 
 you to found your verdict upon? Upon your oaths; 
 what are they to be founded upon? Upon the oath 
 
336 MR. curran's speech on the 
 
 of the witness: and what is that founded upon? 
 Upon this, and this only, that he does beheve that 
 there is an eternal Glod, an intelligent supreme 
 existence, capable of inflicting eternal punishment 
 for offences, or conferring eternal compensation, 
 upon nian, after he has passed the boundary of the 
 grave! But where the witness beheves he is pos- 
 sessed of a perishing soul, arid that there is nothing 
 upon which punishment or reward can be exerted, 
 he proceeds regardless of the number of his offen- 
 ces, and undisturbed by the terrors of exhausted 
 fancy, which might save you from the fear that 
 your verdict is founded upon perjury. I suppose 
 he imagines that the body is actuated by some 
 kind of animal machinery. I know not in what 
 language to describe his notions. Suppose his opin- 
 ion of the beautiful system framed by the Almighty 
 hand to be, that it is all folly and blindness, com- 
 pared to the manner in which he considers liimself 
 to have been created; or his abominable heart con- 
 ceives its ideas; or his tongue communicates his 
 notions. Suppose him, I say, to think so; what is 
 perjury to him? He needs no creed, if he thinks 
 his miserable body can take eternal refuge in the 
 grave, and the last puff of his nostrils can send his 
 soul into annihilation! He laughs at the idea of 
 eternal justice, and tells you that the grave, into 
 which he sinks as a log, forms an entrenchment 
 against the throne of God, and the vengeance of 
 exasperated justice! 
 
TEiAL OP hbnuy shbaees, 1798. 337 
 
 Do you not feel, my fellow-countrymen, a sort 
 of anticipated consolation, in reflecting, that Reli- 
 gions—which gave us comfort in our early days, 
 enabled us to sustain the stroke of affliction, and 
 endeared us to one another, — when we see our 
 friends sinking into the earth, fills us with the ex- 
 pectation that we rise again; that we but sleep for 
 a while, to wake for ever? But what kind of com- 
 munion can you hold, what interchange expect, 
 what confidence place, in that abject slave, that 
 condemned, despaired of wretch, Mdio acts under the 
 idea that he is only the folly of a moment, that he 
 cannot step beyond the threshold of the grave, 
 that that which is an object of terror to the best, 
 and of hope to the confiding, is to him contempt, 
 or despair? 
 
 Bear with me, my countrymen; I feel my heart 
 run away with me — the worst men only can be 
 cool. What is the law of this country ? If the wit- 
 ness does not believe in God, or a future state, you 
 cannot swear him. What swear him upon? Is it 
 upon the book, or the leaf? You might as well, 
 swear him by a bramble, or a coin. The ceremony 
 of kissing is only the external symbol, by which 
 man seals himself to the precept, and says, "May 
 Grod so help me, as I swear the truth." He is then 
 attached to the divinity, upon the condition of 
 telling truth; and he expects mercy from heaven, 
 as he performs his undertaking. But the infidel! — 
 By what can you catch his soul, or by what can 
 
 22 
 
338 MB. curean's speech on the 
 
 you hold it? You repulse him from giving evidence; 
 for he has no conscience, no hope to cheer him, no 
 punishment to dread! 
 
 What is the evidence touching that unfortunate 
 young man? What said his own relation Mr. Sher- 
 ^vington? He had tall<;ed to him freely, had knowTi 
 him long. What kind of character did he give of 
 him? Paine was his creed and his philosophy. He 
 had drawn his maxims of poHtics from the vulgar 
 and furious anarchy broached by Mr. Paine. His 
 ideas of religion were adopted from the vulgar 
 maxims of the same man, the scandal of inquiry, 
 the blasphemer of his God as of his King. He bears 
 testimony against himself, that he submitted to the 
 undertaking of reading both his abominable tracts, 
 that abominable abomination of all abominations, 
 Paine's "Age of Reason," professing to teach man- 
 kind, by acknowledging that he did not learn himself! 
 working upon debauched and narrow understand- 
 ings. Why not swear the witness upon the vulgar 
 maxims of that base fellow, that wretched outlaw 
 and fugitive from his country and his God? Is it 
 not lamentable to see a man labouring under an in- 
 curable disease, and fond of his own blotches? 
 
 "Do you wish" says he, "to know my sentiments 
 with regard to politics? I have learned them from 
 Paine! I do not love a King, and if no other exe- 
 cutioner could be found, I would myself plunge a 
 dagger into the heart of George HI., because he is 
 a King, and because he is my King. I swear by 
 
TKIAL OF HENBY SHEARES, 1798. 339 
 
 tlie sacred missal of Paine, I would think it a meri- 
 torious thing to plunge a dagger into his heart, to 
 whom I had devoted a soul, which Mr. Paine says 
 I have not to lend." Is this the casual effusion of 
 a giddy young man, not considering the meaning 
 of what he said? If it were said among a parcel of 
 boarding-school misses, where he might think he 
 was giving specimens of his courage by nobly deny- 
 ing religion, there might be some excuse. There is 
 a latitixde assumed upon some such occasions. A 
 little blasphemy and a little obscenity passes for 
 wit in some companies. But recoUect it was not 
 to a little miss whom he wished to astonish that 
 he mentioned these sentiments; but a kinsman, a 
 man of boiling loyalty. I confess I did not approve 
 of his conduct in the abstract, talking of running 
 a man through the body; but I admired the honest 
 boldness of the soldier who expressed his indigna- 
 tion in such warm language. If Mr. Shervington 
 swore true. Captain Armstrong must be a forsworn 
 witness; it comes to that simple point. You cannot 
 put it upon other ground. I put it to your good 
 sense, I am not playing with your understandings, 
 I am putting foot to foot, and credit to credit. 
 One or the other of the two must be perjured; which 
 of them is it? If you disbelieve Captain Arm- 
 strong, can you find a verdict of blood upon his 
 evidence? 
 
 Gentlemen, I go further: I know your horror of 
 crime — your warmth of loyalty. They are among 
 
 22* 
 
340 MR. cubean's speech ok the 
 
 the reasons why I respect and regard you. I ask 
 you, then, will you reject such a witness? or would 
 you dismiss the friend you regarded, or the child 
 you loved, upon the evidence of such a witness? 
 Suppose him to tell his own story: — "I went to 
 your friend, or your child — ^I addressed myself in 
 the garb of friendship — ^in the smile of confidence, 
 I courted confidence, in order to betray it — ^I tra- 
 duced you, spoke all the evil I could against you, 
 to inflame him — ^I told him, your father does not 
 love you." If he went to you, and told you all this 
 — ^that he inflamed your child, and abused you to 
 your friend, and said, "I come now to increase it, 
 by the horror of superadded cruelty," would you 
 dismiss from your love and affection the child or 
 the friend you had loved for years? You would 
 not prejudge them. You would examine the con- 
 sistency of the man's story — ^you would hsten to 
 it with doubt, and receive it with hesitation. 
 
 Says Captain Armstrong — "Byrne was my book- 
 seller; from him I bought my little study of blas- 
 phemy and obscenity, with which I amused myself" 
 "Shall I introduce Mr. Sheares to you?" — not say- 
 ing which. What is done then? He thought it was 
 not right till he saw Captain Clibborn. Has he 
 stated any reason why he supposed Mr. Sheares 
 had any wish at all to be introduced to him? — any 
 reason for supposing that Byrne's principles were 
 of that kind? — or any reason, why he imagined 
 the intercourse was to lead to anything improper? 
 
TRIAL OF HENBY SHBAEES, 1798. 341 
 
 It is most material that, lie says, he never spoke 
 to Byrne upon pohtical subjects; therefore, he 
 knew nothing of Byrne's principles, nor Byrne of 
 his. But the proposal was made, and he was so 
 alarmed, that he would not give an answer till he 
 saw his Captain. ,Is not this incredible? 
 
 There is one circumstance which made an im- 
 pression upon my mind: that he assumed the part 
 of a pubhc informer, and, in the first instance, 
 came to the field with pledgets and bandages; he 
 was scarcely off the table, when a witness came to 
 his credit. It is the first time that I saw a witness 
 taking fright at his own credit, and sending up a 
 person to justify his character. 
 
 Consider how he has fortified it: he told it all 
 to Captain Clibborn! He saw him every evening 
 when he returned hke a bee, with his thighs loaded 
 with evidence. What is the defence? That the 
 witness is unworthy of belief. My clients say, 
 their lives are not to be touched by such a man; 
 he is found to be an informer — he marks the 
 victim! You know the world too well, not to know 
 that every falsehood is reduced to a certain degree 
 of malleability by an alloy of truth. Such stories 
 as these are not pure and simple falsehoods: look 
 at your Oateses, your Bedloes, and Dugdales! 
 
 I am disposed to believe, shocking as it is, that 
 this witness had the heart, when he was surrounded 
 by the httle progeny of my chent — when he was 
 sitting in the mansion in which he was hospitably 
 
342 ME. cueean's speech on the 
 
 entertained — when he saw the old mother sup- 
 ported by the piety of her son, and the children 
 basking in the parental fondness of the father — 
 that he saw the scene, and smiled at it; contem- 
 plated the havoc he was to make, consigning them 
 to the storms of a miserable world, without having 
 an anchorage in the kindness of a father! Can such 
 horror exist, and not waken the rooted vengeance 
 of an eternal God? But it cannot reach this man 
 beyond the grave. Therefore, I uphold him here. 
 I can imagine it, gentlemen, because, when the 
 mind becomes destitute of the principles of mo- 
 rality and religion, all within the miserable being 
 is left a black and desolate waste, never cheered 
 by the rays of tenderness and humanity. When 
 the belief of eternal justice is gone from the soul 
 of man, horror and execution may set up their 
 abode. I can believe that the witness — with what 
 view, I cannot say — with what hope, I cannot con- 
 jecture — you may — did meditate the consigning 
 of these two men to death, their children to beg- 
 gary and reproach, abusing the hospitality with 
 which he was received, that he might afterwards 
 come here and crown his work, having obtained 
 the little spark of truth by which his mass of false- 
 hood was to be animated. 
 
 I have talked of the inconsistency of the story. 
 Do you believe it, gentlemen? The case of my 
 client is, that the witness is perjured; and you are 
 appealed to, in the name of that ever-living God, 
 
TEIAL OP HENEX SHEABES, 1798. 343 
 
 whom you revere, but whom he despiseth, to con- 
 sider, that there is something to save him from 
 the baseness of such an accuser. 
 
 But I go back to the testimony; I may wander 
 from it', but it is my duty to stay with it. Says 
 he: "Byrne makes an important apphcation — ^Iwas 
 not accustomed to it; I never spoke to him, and 
 yet he, with whom I had no connexion, in- 
 troduces me to Sheares — this is a true brother." 
 You see, gentlemen, I state this truly — he never 
 talked to Byrne about politics. How could Byrne 
 know his principles? By inspiration? He was to 
 know the edition of the man, as he knew the edi- 
 tion of books. "You may repose all confidence." 
 I ask not is this true; but I say it can be no- 
 thing else than false. I do not ask you to say it 
 is doubtful; it is a case of blood, of life or death; 
 and you are to add to the terrors of a painful 
 death, the desolation of a family — overwhelming 
 the aged with sorrow, and the young with in- 
 famy. Gentlemen, I should disdain to reason 
 with you; I am pinning your minds down to 
 one point, to show you to demonstration that 
 nothing can save your minds from the evidence 
 of such perjury; not because you may think it 
 may be false, but because it is impossible it can 
 be true. I put into one of the scales of justice 
 that execrable perjury, and I put into the other, 
 the life, the fame, the fortune, the children of my 
 cHent. Let not the balance tremble as you hold 
 
344 ME. cueean's speech on tele 
 
 it; and, as you hold it now, so may the balance of 
 eternal justice be held for you. 
 
 But is it upon his inconsistency only I call upon 
 you to reject him? I call in aid the evidence of his 
 own kinsmen, Mr. Sherrington, and Mr. Drought; 
 the evidence of Mr. Bride and Mr. Graydon. Before 
 you can believe Armstrong, you must beheve that 
 aU those are perjured. What are his temptations 
 to perjury? The hope of bribery and reward. And 
 he did go up with his sheets of paper in his hand: 
 here is one, it speaks treason — here is another, the 
 accused grows paler — here is a third, it opens 
 another vein. Had Shervington any temptation 
 of that kind? No; let not the honest and genuine 
 soldier lose the credit of it. He has paid a great 
 comphment to the proud integrity of the King, 
 his master, when he did venture, at a time like 
 this, to give evidence, "I would not have come for 
 one hundred guineas." I could not refuse the 
 effusion of my heart, and exclaiming, may the 
 blessings of God pour upon you, and may you 
 never want a hundred guineas! 
 
 There is another circumstance. I thuik I saw 
 it strike your attention, my lords; it was the horrid 
 tale of the three servants whom he met upon the 
 road. They had no connexion with the rebels; if 
 they had, they were open to a summary proceed- 
 ing. He hangs up one, shoots a second, and ad- 
 ministers torture to the body of the third, in order 
 to make liim give evidence. Why, my lords, did you. 
 
thial op henby shbaees, 1798. 345 
 
 feel nothing stir witlun you? Our adjudications 
 had condemned the application of torture for the 
 extraction of evidence. When a wild and furious 
 assassin had made a deadly attempt upon a hfe 
 of much pubUc consequence, it was proposed to 
 put him to the torture, in order to discover his 
 accomphces. I scarcely know whether to admire 
 most the awful and impressive lesson given by 
 Felton, or the doctrine stated by the judges of the 
 land. "No," said he, "put me not to the torture; 
 for in the extravagance of my pain, I may be 
 brought to accuse yourselves." "What say the 
 judges? "It is not allowable by the law and consti- 
 tution of England to inflict torture upon any man, 
 or to extract evidence under the coercion of per- 
 sonal sufferings." Apply that to this case : if the 
 unfortunate man did himself dread the application 
 of such an engine for the extraction of evidence, 
 let it be an excuse for his degradation that he 
 sought to avoid the pain of body by pubhc infamy. 
 But there is another observation more applicable: — 
 Says Mr. Drought, "Had you no feeling, or do you 
 think you will escape future vengeance?" "Oh, sir, 
 I thought you knew my ideas too well to talk in 
 that way." Merciful Grod! Do you think it is upon 
 the evidence of such a man that you ought to 
 consign a feUow-subject to death? He who would 
 hang up a miserable peasant, to gratify caprice^ 
 could laugh at remonstrance, and say, "You know 
 my ideas of futurity." 
 
346 ME. cubkan's speech on the 
 
 If he thought so little of miirdering a fellow- 
 creature, without trial and without ceremony, what 
 kind of compunction can he feel within himself, 
 when you are made the instruments of his savage 
 barbarity? He kills a miserable wretch, looking, 
 perhaps, for bread for his children, and who falls, 
 unaccused, uncondemned. What compunction can 
 he feel at sacrificing other victims, when he con- 
 siders death as eternal sleep, and the darkness of 
 annihilation. These victuns are at this moment 
 led out to pubHc execution; he has marked them 
 for the grave — he will not bewail the object of his 
 own work: they are passing through the vale of 
 death, while he is dozing over the expectancy of 
 annihilation. 
 
 Gentlemen, I am too weak to follow the line of 
 observation I had marked out; but I trust I am 
 warranted in saying, that if you weigh the evidence, 
 the balance will be in favour of the prisoners.. 
 
 But there is another topic, or two, to which I 
 must sohcit your attention. If I had been stronger, 
 in a common case, I would not have said so much; 
 weak as I am here, I mmst say more. 
 
 It may be said that the parole evidence may be put 
 out of the case; attribute the conduct of Armstrong 
 to folly, or passion, or whatever else you please, 
 you may safely repose upon the written evidence. 
 This calls for an observation or two. As to Mr. 
 Henry Sheares, that written evidence, even if the 
 hand-writing were fully proved, does not apply to 
 
TEIAL OP HENRY SHEAEES, 1798. 347 
 
 Mm. I do not say it was not admissible. The 
 writings of Sidney fomid in Ms closet were read, 
 justly, according to some; but I do not wish to 
 consider that now. But I say, the evidence of Mr. 
 Dwyer has not satisfactorily established the hand- 
 writing of John. I do not say it is not proved 
 to a certain extent; but it is proved in the very 
 slightest manner that you ever saw paper proved: 
 it is barely evidence to go to you; and the witness 
 might be mistaken. 
 
 ' An unpubhshed writing cannot be an overt act 
 of treason; so it is laid down expressly by Hale and 
 Foster. A number of cases have occurred, and 
 decisions have been pronounced, asserting that 
 writings are not overt acts, for want.of publication; 
 but if they plainly relate to an overt act proved, 
 they may be left to the jury for their consideration. 
 But here it has no reference to the overt act laid; 
 it could not be intended for publication until after 
 the unfortunate event of revolution had taken 
 place; and, therefore, it could not be designed to 
 create insurrection. Gentlemen, I am not counsel 
 for Mr. John Sheares, but I would be guilty of 
 cruelty, if I did not make another observation. 
 This might be an idle composition, or the transla- 
 tion of idle absurdity from the papers of another 
 country. The manner in which it was found leads 
 me to think that the more probable. A writing 
 designed for such an event as charged, would 
 hardly be left in a writing-box, unlocked, in a room 
 
348 ME. cueean's speech on the 
 
 near the hall-door. The manner of its finding also 
 shows two things; that Henry Sheares knew no- 
 thing of it, for he had an opportunity of destroying 
 it, as Alderman Alexander said he had; and further, 
 that he could not have imagined his brother had 
 such a design; and it is impossible, if the paper 
 had been designed for such purposes, that it would 
 not be communicated to him. 
 
 There is a point to which I will beseech the 
 attention of your lordships. I know your humanity, 
 and it will not be applied merely because I am 
 exhausted or fatigued. You have only one mtness 
 to any-ovept act of treason. There is no decision 
 upon the point in this country. Jackson's case 
 was the first; Lord Clonmel made allusion to the 
 point; but a jury ought not to find guilty upon the 
 testimony of a single witness. It is the opinion of 
 Foster, that by the common law one witness, if 
 beheved, was sufficient. Lord Coke's opinion is, 
 that two were necessary: they are great names; 
 no man looks upon the works of Foster with more 
 veneration than myself, and I would not compare 
 him with the depreciated credit of Coke; I would 
 rather leave Lord Coke to the character which 
 Foster gives him; that he was one of the ablest 
 lawyers, independent of some particulars, that ever 
 existed in England. In the wild extravagance, heat, 
 and cruel reign of the Tudors, such doctrines of 
 treason had gone abroad as drenched the kingdom 
 with blood. By the construction of crown lawyers, 
 
TEIAL OP IIENET SHEAEES, 1798. 349 
 
 and tlie sliameful complaisance of juries, many 
 sacrifices had been made, and, therefore, it was 
 necessary to prune away these excesses, by the 
 statute of Edward VI., and, therefore, there is every 
 reason to imagine, from the history of the times, that 
 Lord Coke was right in saying, not by new statute, 
 but by the common law, confirmed and redeemed 
 by declaratory acts, the trials were regiilated. 
 
 A law of Philip and Mary was afterwards enacted; 
 some think it was a repeal of the statute of Edward 
 VI. — some think not. I mention this diversity of 
 opinions, with this view, that in this country, upon 
 a new point of that kind, the weight of criminal 
 prosecution will turn the scale in favour of the 
 prisoner, and that the court wiU be of opinion that 
 the statute 7th "Wm. III. did not enact any new 
 thing, unknown to the common law, but redeemed 
 it from abuse. What was the state of England? 
 The King had been declared to have abdicated the 
 throne; prosecutions, temporizing juries, and the 
 arbitrary construction of judges, condemned to the 
 scaffold those who were to protect the crown, men 
 who knew that, after the destruction of the cottage, 
 the palace was endangered. It was not, then, the 
 enactment of any thing new; it was founded on 
 the caution of the times, and derived from the 
 maxims of the constitution. I know the peevishness 
 with which Burnet observed upon that statute; he 
 is reprehended in a modest manner by Foster; but 
 what says Blackstone, of great authority, of the 
 
350 ME, cueran's speech on the 
 
 clearest head, and the profoundest reading? He 
 agrees with Montesquieu, the French philosopher: — 
 
 "In cases of treason, there is the accused's oath 
 of allegiance to counterpoise the information of a 
 single witness ; and that may perhaps be one reason, 
 why the law requires a double testimony to convict 
 him: though the principal reason undoubtedly is, 
 to secure the subject from being sacrificed to 
 fictitious conspiracies, which have been the engines 
 of profligate and crafty politicians in all ages."* 
 
 Gentlemen, I do not pretend to say that you 
 are bound by an English act of parliament. You 
 may condemn upon the testimony of a single wit- 
 ness. You, to be sure, are too proud to listen to 
 the wisdom of an EngHsh law! Illustrious inde- 
 pendents! You may murder under the semblance 
 of judicial forms, because you are proud of your 
 blessed independence! You pronounce that to be 
 legally done which would be murder in England, 
 because you are proud! You may imbrue your 
 hands in blood, because you are too proud to be 
 bound by a foreign act of parhament; and. when 
 you are to look for what is to save you from the 
 abuse of arbitrary power, you will not avail your- 
 self of it, because it is a foreign act of parliament! 
 Is that the independence of an Irish jury? Do I 
 see the heart of any Englishman move, when I say 
 to him, "Thou servile Briton, you cannot condemn 
 upon the perjury of a single witness, because you 
 
 * 4, Blaokstone's Commentaries, 358, 
 
TBIAL or HENEY SHEABES, 1798, 351 
 
 are held in by the cogency of an act of par- 
 liament." 
 
 If power seeks to make victims by judicial means, 
 an act of parliament would save you from the per- 
 jury of abominable malice. Talk not of proud 
 slavery to law, but lament that you are bound by 
 the integrity and irresistible strength of right rea- 
 son; and, at the next step, bewail that the all- 
 powerful author of nature has bound himself in the 
 illustrious servitude of his attributes, which prevent 
 him from thinking what is not true, or doing what 
 is not just. Gro, then, and enjoy your independence. 
 At the other side of the water, your verdict upon 
 the testimony of a single witness would be murder. 
 But here you can murder without reproach, be- 
 cause there is no act of parhament to bind you to 
 the ties of social life, and save the accused from 
 the breath of a perjured informer. In England, a 
 jury could not pronounce conviction upon the tes- 
 timony of the purest man, if he stood alone; and 
 yet, what comparison can that case bear with a 
 blighted and marred informer, where every word 
 is proved to be perjury, and every word turns back 
 upon his soul? 
 
 I am reasoning for your country and your chil- 
 dren. Let me not reason in vain. I am not playing 
 the advocate; you know I am not — your conscience 
 tells you I am not. I put this case to the Bench: 
 The statute 7 Henry III. does not bind this country 
 by its legislative cogency; and will you declare 
 
352 ME. CUBBAlj'S SPEECH ON THE 
 
 positively, and without doubt, that it is not common 
 law, the enactment of a new one? Will you say it 
 has no weight to influence the conduct of a jury, 
 from the authority of a great and exalted nation 
 — the only nation in Europe where liberty has 
 seated herself? Do not imagine, that the man who 
 praises liberty is singing an idle song; for a moment, 
 it may be the song of a bird in his cage — ^I know 
 it may. But you are now standing upon an awful 
 isthmus, a little neck of land, where liberty has 
 found a seat. Look about you — look at the state 
 of the country — the tribunals that dire necessity 
 has introduced. Look at this dawn of law, admit- 
 ting the functions of a jury; I feel a comfort — me- 
 thinks I sf e the venerable forms of Hold and Hale 
 looking down upon us, attesting its continuance. 
 Is it your opinion that bloody verdicts are necessary 
 — ^that blood enough has not been shed — ^that the 
 bonds of society are not to be drawn close again, 
 nor the scattered fragments of our strength bound 
 together, to make them of force, but they are to 
 be left in that scattered state, in which every little 
 child may break them to pieces? You will do more 
 towards tranquillizing the country, by a verdict of 
 mercy. Guard yourselves against the sanguinary 
 excesses of prejudice or revenge; and, though you 
 think there is a great call of public justice, let no 
 unmerited victim fall. 
 
 Gentlemen, I have tired you — I durst not relax. 
 The danger of my client is from the hectic of the 
 
TEIAL or HENEY SHEAEES, 1798. 353 
 
 moment, wMcli you have fortitude, I trust, to with- 
 stand. In that belief, I leave htm to you; and as 
 you deal justice and mercy, so may you find it; 
 and I hope that the happy compensation of an 
 honest discharge of your duty may not be deferred 
 till a future existence, which this* witness does not 
 expect, but that you may speedily enjoy the bene- 
 fits you will have conferred upon your country. 
 
 A verdict of Gruilty was returned, and the brothers were 
 executed the next day. 
 
 * Armstrong, 
 
 23 
 
FOE OLIVER BOND. 
 
 [high treason.] 
 
 SPECIAL COMMISSION, GEEBN-STEEET. 
 
 24:th July, 1798, 
 
 TiiEEE days after the Sheares died, John M'Cann was tried, 
 defended by Curran, convicted, and hanged. On the 20th, 
 Byrne was tried, and similarly defended, with a like fate. 
 Curran's speeches are not reported. 
 
 On the 23rd of July, Oliver Bond, a woollen-draper, of 
 Bridge-street, and a shrewd, kind man, was put to the bar. 
 The officer of the court charged the prisoner as follows: — ■ 
 "Mr. Oliver Bond, you stand indicted, for, that not having 
 the fear of God before your eyes, nor the duty of your alle- 
 giance considering, but being moved and seduced by the instiga- 
 tion of the devil, you did, with other false traitors, conspire 
 and meet together, and contriving and imagining with all your 
 strength this kingdom to disturb, and to overturn by force of 
 arms, &c., the government of this kingdom, on the 20th day of 
 May, in the thirty-eighth year of the reign of the present King, 
 in the parish of St. Michael the Archangel, did conspire and 
 meet together about the means of overturning the government; 
 and his Majesty of and from his royal state, power, and govern- 
 ment of this country to deprive and put; and that you, Oliver 
 Bond, with other false traitors, did meet together, and make 
 resolutions to procure arms and ammunition, for the purpose 
 of arming men to wage war against our Sovereign Lord the 
 King; and did conspire to overturn by force the lawful govern- 
 ment of this kingdom, and to change by force the government 
 
1798. 355 
 
 thereof; and did assemble and meet together to raise a rehellion 
 in this kingdom; to procure arms to aid and assist in said 
 rebellion; and that you, Oliver Bond, did aid and cause Thomas 
 Reynolds to be a colonel in the county of Kildare, to aid and 
 assist in the said rebellion; and did administer unlawful oaths 
 to said Thomas Reynolds, and to certain other persons, to be 
 tJnited Irishmen, for the purpose of overturning by force the 
 government of this kingdom: and that you, the said Oliver 
 Bond, did collect sums of money to furnish arms and ammuni- 
 tion to the persons in said rebellion, against the duty of your 
 allegiance, contrary to his Majesty's peace, his crown, and 
 dignity, and contrary to the form of the statute in that case 
 made and provided. And whereas a public war, both by land 
 and sea, is and hath been carried on by persons exercising the 
 powers of government in France, that you, the said Oliver 
 Bond, not having the fear of God before your eyes, did aid and 
 assist the French and men of France to invade this kingdom, 
 to overturn by force the government of this kingdom, and to 
 compass and imagine the death of the King, and so forth. On 
 this indictment, you, Oliver Bond, have been this day arraigned, 
 and have pleaded not guilty, and for trial have put yourself on 
 God and your country." 
 
 The principal witness was Thomas Reynolds, of Kilkea 
 Castle, in the County Kildare. He had been a silk-mercer in 
 Dublin, and was "united" at an early period. In 1797, he was 
 Treasurer, and a Colonel, of Kildare. Soon after he became 
 one of the Leinster Delegates. 
 
 There is nothing peculiar in the indictment, nor did any 
 facts additional to what have been stated in Sheares' case 
 appear. 
 
 OuEEAisr spoke as follows: — 
 
 My lords, and gentlemen of the jury, I am comisel 
 for the prisoner at the bar, and it is my duty to 
 lay his case before you. It is a duty that at any 
 
 23* 
 
356 MB. curran's speech on the 
 
 time would be a painful one to me, but at present 
 peculiarly so; having, in the course of this long trial, 
 experienced great fatigue both of mind and of body 
 —a fatigue I have felt in common with the learned 
 judges who preside on the bench, and vfith my 
 brethren of the bar; I feel, as an advocate, for my 
 client, the duty of the awful obligation that has 
 devolved on me. I do not mean, gentlemen of the 
 jury, to dilate on my own personal fatigues; for I 
 am not in the habit of considering my personal Ul 
 state of health, or the anxiety of my nodnd, in dis- 
 charging my duty to clients in such awful situa- 
 tions as in the present momentous crisis; I have 
 not been in the habit, gentlemen of the jury, to 
 expatiate to you on personal ill health. In address- 
 ing myself to jurors on any common subject, I have 
 been in the habit of addressing myself to the inter- 
 position of the Court, or to the good-natured con- 
 sideration of the jury, on behalf of my client. I 
 have mentioned, indeed, my own enfeebled worn- 
 out body, and my worn-out state of mind, not out 
 of any paltry respect to myself, nor to draw your 
 attention to myself, but to induce you to reflect 
 upon this, that in the weakness of the advocate, 
 the case of my client, the prisoner at the bar, is 
 not implicated; for his case is so strong in support 
 of his innocence, that it is not to be w^eakened by 
 the imbecility or the fatigue of the advocate. 
 
 Gentlemen of the jury, I lament that this case 
 has not been brought forward in a simple, and in 
 
TEIAL OP OLIVEE, BOND, 1798. 357 
 
 llie usual way, mthout any extraneous matter being 
 introduced into it, as I think in justice, and as I 
 think in humanity, it ought to have been. I lament 
 that any little artifices should be employed upon 
 so great and solemn a case as this, more especially 
 in desperate times, and upon a more than ordinary 
 occasion; and that some allegations of criminahty 
 have been introduced, as to persons and things, 
 that ought not, in my opinion, to have been ad- 
 verted to in a case like this. 
 
 "What, for instance, has this case to do with the 
 motion made by Lord Moira, in the House of Lords 
 in Ireland, in February last, or the accidental con- 
 versations with Lord Edward Fitzgerald ? If you 
 have a feeling for virtue, I trust that Lord Moira 
 will be revered as a character that adds a dignity 
 to the peerage. "What made that noble character 
 forego his great fortune, quit his extensive demesnes 
 and the tranquillity of the philosophic mind, but 
 the great and glorious endeavour to do service to 
 his country? I must repeat, he is an honour to 
 the Irish peerage. Let me ask, why was the 
 name of Lord Moira, or Lord Wycombe (who 
 happened to dine at Duke Giffard's), introduced 
 into this trial? what has that motion which Lord 
 Moira introduced into the House of Lords to do 
 with the trial of Mr. Oliver Bond on a charge of 
 high treason ? 
 
 Gentlemen, much pains have been taken to warm 
 you, and then you are entreated to be cool; when 
 
358 ME. cxjeean's speech on the 
 
 the fire has been kindled, it has been spoken to, 
 and prayed to be extinguished. What is that? 
 
 This question was occasioned by a clash of arms among the 
 military that thronged the court. Some of those who were 
 nearest to the advocate appeared, from their looks and gestures, 
 about to offer him personal violence, upon which, fixing his eye 
 sternly upon them, he exclaimed — 
 
 You may assassinate, but you shall not intimi- 
 date me. 
 
 Here Mr. Cukean was again interrupted by the tumult of 
 the auditors; it was the third time that he had been obliged to 
 sit down. On rising, he continued: — 
 
 I have very little, scarely any, hope of being 
 able to discharge my duty to my unfortunate chent 
 — perhaps most unfortunate in having me for his 
 advocate. I know not whether to impute these 
 inhuman interruptions to mere accident; but I 
 greatly fear they have been excited by prejudice. 
 
 The Court said they would punish any person who dared to 
 interrupt the counsel for the prisoner: — "Pray, Mr. CnRKAN, 
 proceed in stating your case; we will take care, with the bless- 
 ing of God, that you shall not be interrupted." 
 
 You have been cautioned, gentlemen, against 
 prejudice. I also urge the caution, and not with 
 less sincerity. But what is the prejudice against 
 which I would have you armed? I will tell you: it 
 is that pre-occupation of mind that tries the accused 
 before he is judicially heard — that draws those 
 conclusions from passion which should be founded 
 on proof — and that suffers the temper of the mind 
 
TRIAL OP OLIVEE BOND, 1798. 359 
 
 to be dissolved and debased in the heat of the 
 season. It is not against the senseless clamour of 
 the crowd, feeling impatient that the idle discussion 
 of fact delays the execution, that I warn you. No ; 
 you are too proud, too humane, to hasten the holi- 
 day of blood. It is not against any such disgrace- 
 ful feehngs that I warn you. I wish to recall 
 your recollections to your own minds, to guard you 
 against the prejudice of elevated and honest under- 
 standings — against the prejudice of your virtues. 
 I shall lay before you the case of my client, to 
 controvert the evidence given on the part of the 
 prosecution, and shall offer to your consideration 
 some observations in point of law, under the judi- 
 cial control of the Court. I will strip my client's 
 case from the extraneous matter that has been at- 
 tempted to be fastened on it. I feel myself, gen- 
 tlemen, warmed, when I speak to you in favour of 
 my client's innocency, and to bring his innocency 
 home to your judgments. I know the honesty and 
 rectitude of your characters, and I know my client 
 has nothing to fear from your understandings. 
 
 It is my duty to state to you, we have evidence 
 to prove that the witness on the part of the pro- 
 secution is undeserving of credit; and it is my duty 
 to examine into the moral character of the witness 
 that has been produced. It is of the utmost concern 
 you should do this, as your verdict is to decide on 
 the life or death, the fame or dishonour of the pri- 
 soner at the bar. "With respect to prosecutions 
 
360 WB. cxirean's speech on the 
 
 brought forward by the state, I have ever been of 
 opinion that the decision is to be by the jury; and 
 that as to any matter of law, the jury do derive 
 information from the court: for jurors have, by the 
 constitution, a fixed and permanent power to de- 
 cide on matter of fact ; while the letter of the law 
 the Sovereign leaves to be expounded by the mouth 
 of the Bang's judges. Some censure upon past 
 occasions has fallen on former judges, for a breach 
 of this doctrine. 
 
 Upon a former occasion I differed in opinion 
 from the learned judge who then presided, as to 
 what I construed to be the law of high treason, 
 touching the compassing or imagining the death 
 of the King. I am not ashamed of the opinion I 
 entertained. As a point of law, I never shall be 
 ashamed of it. I am extremely sorry I should differ 
 from the bench on a point of law; but judges have 
 had different opinions upon the same subject. 
 
 Where an overt act is laid, of compassing and 
 imagining the death of the King, it does not mean, 
 in construction of law, the natural dissolution of 
 the King; but where there was not the fact acted 
 upon, but confined merely to the intention a man 
 had, such intention must, according to Lord Coke 
 and Sir M. Foster, be proved by two witnesses. In 
 England, the statute of Edward III. provides against 
 the event of the death of the Eang by any person 
 levying war, whereby his life might become endan- 
 gered; and the proof of such overt act must be 
 
TEIAIi OP OLIVEE BOND, 1798. 361 
 
 substantiated by tAvo witnesses; licw it comes not 
 to be settled and required in Ireland, is not ac- 
 counted for. 
 
 Before tte statute of Edward III., the law rela- 
 tive to high treason was undefined, which tended 
 to oppress andharass the people ; for, by the common 
 law of England, it was formerly a matter of doubt 
 whether it was necessary to have two witnesses to 
 prove an overt act of high treason. Lord Coke 
 says, that in England there must be two witnesses 
 to prove an overt act; it seems he was afterwards 
 of a contrary opinion. In the reign of Wilham III. 
 a statute passed, and by that statute in England 
 there must be two witnesses. When that statute 
 came to be enacted here, the clause relative to 
 there being two witnesses to an overt act of high 
 treason was not made the law in Ireland; but why 
 it was not required in Ireland is not explained. By 
 the Enghsh act of William III., the overt act must 
 be proved by two witnesses in England, but it does 
 not say in Ireland. 
 
 Surely, as the common law of England and the 
 common law of Ireland are the same, the con- 
 sciences of an Irish jury ought to be fully satisfied 
 by the testimony of two witnesses to an overt act. 
 On this point, however, some of the Irish judges 
 are of opinion, that two witnesses are not, in Ire- 
 land, required to substantiate an overt act, there- 
 fore their opinion must be acquiesced in. 
 
 It has been insinuated, and with artful applications 
 
362 MR. cueean's speech on the 
 
 to your feelings of national independence, that 
 I have advanced, on a former occasion, the doc- 
 trine that you should be bound in your decisions 
 by an English act of parliament, the statute of 
 "William III. Reject the unfounded accusation; 
 nor believe thad I assail your independence, because 
 I instruct your judgment and excite your justice. 
 No ; the statute of Wilham III. does not bind you, 
 but it instructs you upon a point which before was 
 enveloped m doubt. The morality and wisdom 
 of Confucius, of Plato, of Socrates, or of Tully, do 
 not bind you, but they may elevate and illumine 
 you; and in the same way have British acts of 
 parKament reclaimed you from barbarism. By the 
 statute of "Wm. III., two witnesses are necessary, 
 in cases of high treason, to a just and equal trial 
 between the Sovereign and the subject; and Sir 
 Wm. Blackstone, one of the wisest and best autho- 
 rities on the laws of England, states two witnesses 
 to be but a necessary defence of the subject against 
 the profligacy of ministers. In this opinion he 
 fortifies himself with that of Baron Montesquieu, 
 who says, that where one witness is sufficient to 
 decide between the subject and the state, the con- 
 sequences are fatal to liberty; and a people so 
 circumstanced cannot long maintain their inde- 
 pendence. The oath of allegiance, which every 
 subject is supposed to have taken, stands upon the 
 part of the accused against the oath of his accuser; 
 and no principle can be more wise or just than 
 
TBIAL OF OLIVER BOND, 1798. 363 
 
 tliat a third oath, is necessary to turn the balance. 
 Neither does this principle merely apply to the 
 evidence of a common and impeached informer, 
 such, as you have heard this day, but to that of 
 any one witness, however high and respectable his 
 character. 
 
 And now, gentlemen of the jury, let me state to 
 you, in the clearest point of view, the defence of 
 the prisoner at the bar, and see what has been the 
 nature of the evidence adduced. The prisoner at 
 the bar is accused of compassing or imagining the 
 death of the King, and of adhering to the King's 
 enemies; the evidence against him is parole and 
 written evidence. 
 
 Gentlemen of the jury, I will venture to observe 
 to you, that as to the written evidence, if suffered 
 to go before you by the court, it is only as evidence 
 at large; but as to the credibihty of it, that is for 
 you to decide upon. 
 
 Mr. Reynolds, in his parole testimony, has sworn 
 that he was made a United Irishman by the pri- 
 soner at the bar. Mr. Reynolds says, he was sworn 
 to what he considered to be the objects of that 
 society; he stated them to you; but whether true 
 or false, is for you to determine, by the credit you 
 may give to his testimony. This is the third time Mr. 
 Reynolds has appeared in a court of justice, to pro- 
 secute prisoners. He says, the objects of the United 
 Irishmen are to overturn the present government, 
 and to establish a republican form of government 
 
364 MR. curban's speech on the 
 
 is its stead, and to comfort and abet the Frencli, 
 on their invading this kingdom, should such an 
 event take place. You have heard his testimony; 
 let me ask, do you think him incapable of being 
 a villain? do you think him to be a villain? You 
 observed with what kind of pride he gave his 
 testimony; do you beHeve his evidence, by the 
 solemn oath that you have taken? or do you be- 
 lieve it was a blasted perjury? Can you give credit 
 to any man of a blasted character? 
 
 It has been the misfortune of many former 
 jurors to have given their verdict founded upon 
 the evidence of a perjured witness, and on their 
 death-bed they repented of their creduhty, in con- 
 victing a man upon false testimony. The history 
 of former ages is replete with such conduct, as may 
 be seen in the state trials. In the case of Lord 
 Kimbolton and Titus Gates, the then jurors con- 
 victed that nobleman; but some time after his 
 death, the jurors discovered they had given im- 
 phcit credit to a witness unworthy of it; and the 
 lawyers of those times might have said, "I thank 
 Grod, they have done the deed." Does not the 
 history of human infirmity give many instances of 
 this kind? 
 
 Gentlemen, let me bring you more immediately 
 to the case before you. 
 
 Had we no evidence against Eeynolds, but his 
 own solitary evidence, then, I say, from the whole 
 of his evidence, you cannot establish the guilt of 
 
TEIAL OF OLIVER BOND, 1798. 3G5 
 
 the prisoner at the bar; take the whole of his evid- 
 ence into your consideration, and it will appear 
 he is unworthy of credit. He told you he got 
 information from M'Cann on the Sunday morning 
 that the meeting was to be on Monday morning, 
 at ten o'clock. Reynolds goes immediately to 
 Mr. Cope, and gives him that information. On 
 Sunday afternoon, he goes to Lord Edward 
 Fitzgerald, and shows him the orders issued by 
 Captain Saurin to the lawyers' corps: then, said 
 Lord Edward, I fear government intend to arrest 
 me; I will go to France, and hasten them to invade 
 this country; government has no information of the 
 meeting of the provincial delegates at Bond's. No, 
 no, says Reynolds that is impossible. Reynolds wrote 
 to Bond, that he could not attend the meeting, as 
 his wife was iU; Reynolds did not go to the meet- 
 ing. Bond was arrested on the Monday morning; 
 on Monday evening, at eight at night, Reynolds goes 
 to Lord Edward, in Aungier-street, meets him, and 
 goes again to him the next night; and Lord Edward 
 conversed with Reynolds aboiit his (Lord Edward's) 
 going to France. Reynolds then went to KUdare; 
 he gave the most solemn assurances to the dele- 
 gates at a meeting there, that he never gave infor- 
 mation of the meeting at Bond's. 
 
 Now see how many oaths Rejmolds has taken. 
 He admits he took two of the oaths of the obliga- 
 tions to the society of United Irishmen. He told 
 you Lord Edward advised him to accept the 
 
366 ME. curean's speech on the 
 
 appointment of colonel in theEaldare United Irisli- 
 men's army; and yet lie says he afterwards went 
 to Bond's, and Bond advised him to be a colonel. 
 It appears in evidence, that Reynolds was treasurer: 
 he took two more oaths, one as colonel, and one 
 as treasurer, and he took the oath of allegiance 
 also, and he took oath to the truth of his testimony, 
 at the two former trials, and at this. On which 
 do you give him credit? Gentlemen, in order to 
 narrow the question under your consideration, I 
 may observe that what Reynolds said, relative 
 to Lord Edward's conversation, is totally out of 
 this case: it can have no weight at all on the trial 
 of Mr. Bond for high treason, in the finding of your 
 verdict. How, or in what manner, is the prisoner 
 at the bar to be affected by it? I submit to yorn" 
 lordship, that the declaration of Lord Edward to 
 Reynolds, when Bond was not present, is not 
 attachable to the prisoner. 
 
 Mr. Reynolds has given you a long account of 
 a conversation he had with Mr. Cope, relative to 
 the proceedings of the society of United Irishmen; 
 and Mr. Cope said, if such a man could be fomid, 
 as described by Mr. Reynolds, who would come 
 forward and give information, he would deserve 
 the epithet of saviour of his country. Thus, by 
 Reynolds' evidence, it would seem that Mr. Cope 
 was the little pony of repentance to bear away the 
 gigantic crimes of the colossus Reynolds. But 
 remember, said Mr. Reynolds, though I give 
 
TRIAL OP OLIVER BOND, 1798. 367 
 
 informatioB, I won't sacrifice my morality; I won't 
 come forward to prosecute any United Irishman. 
 No, no ; like a bashful girl, higgling about the price of 
 her virginity, I am determined, says Keynolds, to 
 preserve my character; I will give the communica- 
 tions, but do not think I will descend to be an 
 informer, I will acquaint you of every thing against 
 the United Irishmen, but I must preserve my credit; 
 I tell you the design of the United Irishmen is to 
 overturn the constitution, I will lead you to the 
 threshold of discovery, but I Avon't name any price 
 for reward. "Pray don't mention it at aU," says 
 Mr. Cope, "a man would deserve a thousand or 
 fifteen hundred a year, and a seat in parliament, or 
 any thing, if he could give the information you 
 mention." No siich thing is required, no such thing, 
 says Reynolds, you mistake me; I will have nothing 
 in the world, but merely a compensation for losses, 
 do you think I would take a bribe? I ask only of 
 you to give me leave to draw a little bit of a note 
 on you for five hundred guineas only by way of 
 indemnity; that is all; merely for indemnity of losses 
 I have sustained, or am liable to sustain. 
 
 Gentlemen of the jury, don't you see the vast 
 distinction between a bribe and gratification? What 
 says Foigard?* Consider my conscience; do you 
 think I would take a bribe? it would grieve my 
 conscience, if I was to take a bribe. To be a 
 member of parhament, and declare for the ayes 
 
 * A ruffian in one of the vile comedies of that time. 
 
368 ME. cueean's speech on the 
 
 or the noes, I -will accept o£ no bribe. I wiU only- 
 take a little indemnity for claret that may be spilt; 
 for a Httle furniture that may be destroyed; for a 
 little wear and tear; for boots and for shoes, for 
 plate destroyed, for defraying the expenses of some 
 pleasurable jaunts, when out of this country: for 
 if I become a public informer against the United 
 Irishmen, and should continue here for some time, 
 I may chance at some time to be kOled by some 
 of them, for I have sworn to be true to them, al- 
 though I also took the oath of allegiance to be true 
 to my Sovereign. I have taken aU sorts of oaths: 
 if I frequent the company of those who are loyal 
 to the King, they wiU despise the man who broke 
 his oath of allegiance; and between the loyaHst and 
 the United Irishman I may chance to be kUled. 
 
 As I am in the habit of Hving in the world, says 
 Mr. Reynolds to Mr. Cope, you will give me leave 
 to draw a bit of paper on you, only for three 
 hundred guineas at present. It wiU operate hke a 
 bandage to a sore leg; though it won't cure the 
 sore, or the rottenness of the bone, it may hide it 
 from the public view. I will, says Mr. Eeynolds, 
 be newly baptised, for a draft of three hundred 
 guineas; and become a pubhc informer for a further 
 bit of paper, only for another two hundred guineas; 
 yet I trust you wiU excuse me, I wiU not positively 
 take any more. 
 
 He might, I imagine, be compared to a bashful 
 girl, and say, "What! shall the brutal arms of man 
 
TEIAL or OLIVEE BOND, 1798. 369 
 
 attack a country maid?' and when her gown short- 
 ens, and her apron bursts asunder, and she shrinks 
 at the view of public prostitution, shall she not 
 stipulate for full wages? Perhaps he practised upon 
 her virtue, when the innocent dupe thought she 
 was gaining his affections. Do you think that 
 Reynolds would touch a bribe, and become an in- 
 former? No, no; he said he would be no informer. 
 But did he not consent to do a little business in 
 private, and did he not get money for it? Perhaps, 
 he said, I thought to be no viUain^I would not 
 have the world to think me a villain. I c^n con- 
 fide in myself; why should I mind what the world 
 says of me, though it should call me villain? Even 
 though I should become the talk of all the porter- 
 houses — though I should become the talk of all 
 the tea-tables — yet perjury is not brought home 
 to me; no — no human being has knowledge of 
 what is rankhng within. Has it not been said I 
 was an honest man, to come upon the pubhc board 
 as a public informer? They called me an honest 
 man, and a worthy, a respectable informer; and 
 thus my character is at bay. 
 
 Mr. Eeynolds was, unfortunately, a United Irish- 
 man. He told you there was a provincial meeting 
 of delegates; but he has not ventured to tell you 
 where the provincial committee met — he has simply 
 said, there was a provincial committee. The meet- 
 ing, he says, was on a question of great concern. I 
 have doubts upon it; it is not stated to me what 
 
 24 
 
370 MR. cueean's speech on the 
 
 these important consultations were about. Froiii 
 M'Oann he heard that a baronial meeting was to 
 be at Bond's, on the 12th of March, and that there 
 was material business to transact. He desired 
 Reynolds to attend. That is alt that Eeynolds 
 heard from M'Cann. M'Canh is now no more, and 
 this part of the case is in doubt and obscurity, 
 For my part, I am not satisfied that any thing 
 criminal passed at the meeting at Bond's, on the 
 12th of March. No man can say so on the evidence 
 produced: they do not say it — they only suppose 
 there was. If the jury were to judge by their own 
 present view, I do not think they would, or could, 
 come justly to a verdict of condemnation. 
 
 The question is not, whether there was any 
 meeting at Bond's, but what was the object of that 
 meeting? Bond was in the warehouse, in the custody 
 of the guard; afterwards he came up to the room 
 with Mr. Swan. At Bond's there was a meeting 
 of the United Irishmen; and though Bond was not 
 taken in that room, yet Bond's charge is mixed 
 with the guilt of that meeting. 
 
 The overt act in the indictment is, of conspiring 
 to levy war, &c. It is material to observe, in this 
 part of the case, it is a bare conspiracy to levy 
 war. That is not, as I conceive, high treason. The 
 bare intention does not amount to compassing or 
 imagining the death of the King; it is not adhering 
 to the King's enemies. Under certain circum- 
 stances, compassing the death of the King is not 
 
TRIAIi OF OLIVEE, BOND, 1798. 371 
 
 liigh treason. This is the great hinge, as I ap- 
 prehend, in this case. 
 
 Grentlemen, what was the evidence given? That 
 there was a meeting, for a dangerous purpose. 
 M'Cann said, there was to be a meeting of the 
 delegates at Bond's on the 12th of March; he did 
 not tell Reynolds the purport of that meeting. 
 Therefore, gentlemen, my objection is, was that a 
 provincial meeting? It rests on the hearsay of 
 other witnesses. It was M'Cann told Reynolds, 
 "You must be at the Convention, on the 12th of 
 March, to compass the death of the King, and 
 overtiirn the government." But Bond did not tell 
 him any such thing: Bond only said, M'Cann was 
 able to give information of what was going forward 
 at that meeting. But Bond knew nothing about it. 
 
 Admitting a meeting was held in Bond's house 
 for a guilty purpose, yet Bond might be perfectly 
 innocent; he was not in the room tiU Mr. Swan 
 came. There was to be a watch-word — "Is M'Cann 
 here? From thence, it would seem, it was a meet- 
 ing at M'Oann's suggestion. Mr. Bond probably 
 did not know the motive why he gave the use of 
 the room, for there was not one word of conversa- 
 tion between Bond and Reynolds. Reynolds says 
 M'Cann told him. the watch- word; M'Cann did not 
 get the watch-word from Bond, the prisoner at the 
 bar. The watch- word was, "Is M'Cann here?" It 
 was for the admission of no person that M'Cann 
 did not know; it had no relation to Mr. Bond. 
 
 24* 
 
372 ME. cubran's speech on the 
 
 Has this no weight with you, gentlemen of the 
 jury? Do you feel anxious to investigate the truth? 
 If you believe Eeynolds, the meeting was for the 
 worst purpose. But was it with the knowledge of 
 Bond? — for Bond said to Eeynolds, "I can give 
 you no information; go to M'Cann, he can inform 
 you." Upon the evidence, therefore, of Eeynolds 
 -rests this man's life; for the written evidence found 
 in the room cannot, in my apprehension, affect 
 Bond, if you be, as no doubt you wiU be, of opinion. 
 Bond was not in the room where the papers were 
 found. There is not any evidence of the conversa- 
 tion before Mr. Swan came; and he found on the 
 table a paper written on, and the ink not dry, "I, 
 A. B., was duly elected." It was not found upon 
 the prisoner at the bar: the papers found might 
 affect the persons in the room; but, at the time of 
 the seizure of the papers. Bond was in the ware- 
 house, in custody of Sergeant Dugan, and was not 
 brought up stairs until after the arrest. The papers 
 found upon Bond might be read in evidence against 
 him, but I conceive not those found in the room. 
 What was the intention of mentioning the letter 
 from Eeynolds, found on the prisoner at the bar? 
 It was stated, but not read in cAddence, merely to 
 apologize for Eeynolds' not attending the meeting 
 on the 12th of March. Eeynolds says he got it 
 again, and burnt it. Eeynolds did not pretend to 
 state to you that he knew from Bond what the 
 object of the meeting was; and it is material to 
 
TEIAIi OP OLIVER BOND, 1798. 373 
 
 observe that Bond's name w^as not found entered, 
 ia the list of the persons who made returns, and 
 attended the meeting, 
 
 I know that Eeynolds has laboured to establish 
 a connexion between the prisoner and the meeting 
 held at his house. But how does he manage it? 
 He brings forward asserted conversations with 
 persons who cannot confront him — with M'Cann, 
 whom he has sent to the grave — and with Lord 
 Edward Fitzgerald, whose premature death leaves 
 his guilt a matter upon which justice dares not to 
 pronounce. He has never told you that he has 
 spoken to any of these in the presence of the pri- 
 soner. Are you then prepared, in a case of hfe and 
 death — of honour and of infamy — to credit a vile 
 informer, the perjurer of an hundred oaths — a 
 wretch whom pride, honour, or religion could not 
 bind? The forsaken prostitute of every vice calls 
 upon you, with one breath, to blast the memory of 
 the dead, and to blight the character of the living. 
 Do you think Reynolds to be a villain? It is true 
 he dresses like a gentleman; and the confident ex- 
 pression of his countenance, and the tones of his 
 voice, savour strong of growing authority. He 
 measures his value by the coffins of his victims; 
 and, in the field of evidence, appreciates his fame 
 as the Indian warrior does in fight — by the number 
 of scalps with which he can swell his triumphs. 
 He calls upon you, by the solemn league of eternal 
 justice, to accredit the purity of a conscience washed 
 
374 ME. ctjeean's speech on the 
 
 in Ms own atrocities. He has promised and betrayed 
 — he has sworn and forsworn; and, whether his soul 
 shall go to heaven or to hell, he seems altogether 
 indifferent, for he tells you that he has established 
 an interest in both. He has told you that he has 
 pledged himself to treason and to allegiance, and 
 that both oaths has he contemned and broken.* 
 At this time, when reason is affrighted from her 
 seat, and giddy prejudice takes the reins — when 
 the wheels of society are set in conflagration by the 
 rapidity of their own motion — at such a time does 
 he call upon a jury to credit a testimony blasted 
 by his own accusation. Vile, however, as this exe- 
 crable informer must feel himself, history, alas! 
 holds out too much encouragement to his hopes; 
 for, however base, and however perjured, IrecoUect 
 
 * The following is the list of Eeynold's oaths:— > 
 
 Q. (By Mr. Curran) — Can you just tott up the different oatlis 
 that you took upon either side? A. I -will give the particulars. - 
 
 Q. Ko; you may mention the gross? A. No; I will mentio;i 
 the particulars. I took an oath of secrecy iu the county meet'« 
 ing— an oath to my captains, as colonel. After this I took an 
 oath, it has been said— I do not deny it, nor do I say I took 
 it, I was so alarmed, hut I would have taken one if required — 
 when the United Irishmen were designing to kill me, I took an 
 oath before a, county member, that I had not betrayed the meet- 
 ing at Bond's. After this I took an oath of allegiance. 
 
 0. Had you ever taken an oath of allegiance before? A. After 
 this, I took an oath before the Privy Council. I took two, at 
 different times, upon giving informations respecting these trials. 
 I have taken three since — one upon each of the trials; and, be- 
 fore I took any of them, I had taken the oath of allegiance. 
 
 If to these we add his oaths on the trials, we may get St 
 glimpse of the conscience whose strength slew so many. 
 
TEIAL OF OLIVEB BOND, 1798. 375 
 
 few instances, in cases between the subject and the 
 crown, where informers have not cut keen, and 
 rode a while triumphant on pubhc prejudice. I know 
 of few instances wherein the edge of his testimony 
 has not been fatal, or only blunted by the extent 
 of its execution, and retiring from the pubhc view 
 beneath a heap of its own carnage. 
 
 Bond has been resident in this city twenty years; 
 in your walks of life, gentlemen of the jury, you 
 never heard anything to his prejudice before this 
 charge. I know my duty to my client, and must 
 tell you, if you have had prejudices, I know you 
 will discard them. I am not paying you any com- 
 phment — ^I have spoken under the feehngs of an 
 Irishman. 
 
 During the course of these trials, I have endea- 
 voured to speak to your understandings. I have 
 not ventured to entreat you on behalf of my client, 
 because I am sure you will give your justice and 
 your merits free operation in your minds and con- 
 sciences at this trial. I am sure you will try the 
 cause fairly, and admit every circumstance into 
 your reflections'. In a case between the crown and 
 the prisoner, I have not ventured to address you 
 on the public feehngs. At this important crisis, 
 you will preserve the subject for the sake of the 
 law, and preserve the law for the sake of the crown. 
 You are to decide by your sober and deliberate 
 understandings, and hold the balance equal between 
 the crown and the subject. 
 
376 ME. CIiaBAN's SPEECH ON THE 
 
 You tave been emphatically called upon to se- 
 CTire the state by a condemnation of the prisoner. 
 I am less interested in the condition and poHtical 
 happiness of this country than you are, for pro- 
 bably I shall be a shorter while in it. I have, then, 
 the greater claim on your attention and your con- 
 fidence, when I caution you against the greatest 
 and most fatal revolution — that of putting the 
 sceptre into the hands of the informer. These are, 
 probably, the last words I shall ever speak to you; 
 but these last are directed to your salvation, and 
 that of your posterity. I tell you that the reign of 
 the informer is the suppression of the law. My old 
 friends, I tell you, that, if you surrender yourselves 
 to the mean and disgraceful instrumentahty of 
 your own condemnation, you will mark yourselves 
 fit objects of martial law — you will give an attesta- 
 tion to the British minister that you are fit for, 
 and have not expectation of any other than, martial 
 law — and your hberties will be flown, never, never 
 to return! Your country will be desolated, or only 
 become the gaol of the living; until the informer, 
 fatigued with slaughtei-, and gorged with blood, 
 shall slumber over the sceptre of perjury. No pen 
 shall be found to undertake the disgusting office 
 of your historian; and some future age shall ask — 
 What became of Ireland? Do you not see that the 
 legal carnage which takes place day after day has 
 already depraved the feelings of your wretched 
 population, which seems impatient and clamorous 
 
TRIAL OP OLIVER BOND, 1798. 377 
 
 for the amusement of an execution? It remains witli 
 you — in your determination it lies — ^whether tliat 
 population shall be alone composed of four species 
 of men: the informer, to accuse — ^the jury, to find 
 guilty — the judge, to condemn — and the prisoner, 
 to suffer. It regardeth not me what impressions 
 your verdict shall make on the fate of this country; 
 but you it much regardeth. The observations I 
 have offered — the "warning I have held forth — ^I 
 bequeath you with all the solemnity of a dying 
 bequest; and, oh! may the acquittal of your ac- 
 cused fellow-citizen, who takes refuge in your ver- 
 dict from the vampire who seeks to suck his blood, 
 be a blessed and happy promise of speedy peace, 
 confidence, and security, to this wretched, distracted, 
 and self-devouring country! 
 
 By the common law, no subject can be deprived 
 of hfe, but by a trial of his fellow-subjects; but, in 
 times when rebelhon prevails in any country, men 
 may suffer without the semblance of a trial by 
 their equals. From the earliest period of history 
 down to the present time, there have been seen, in 
 some parts of the earth, instances where jurors 
 have done little more than record the opinions 
 given to them by the then judges; but that is the 
 last scene of departing liberty. 
 
 I have read that, in the period of the rebelhon, 
 in the last century, in England, jurors on trials, by 
 the common law of the land, have been swayed in 
 their determination by the unsupported evidence 
 
378 ME. oueban's speech on the 
 
 of an informer; and after-times have proved their 
 verdict was ill-founded, the innocency of the con- 
 victed persons afterwards appearing.' 
 
 Trials on charges of high tt'eason are of the 
 utmost moment to the country, not merely in re- 
 spect of any individual, but of the necessity there 
 is that the public should know the blessings of 
 trial by jury, and that the jurors should solely de- 
 termine on their verdict by the evidence, and ma- 
 turely weigh the credit of the witnesses against any 
 prisoner. At several of these trials of late date 
 some of you have been present, and you know that 
 the object of the court and the jurors is to inves- 
 tigate the truth from the evidence produced. The 
 jurors are sworn to try, and to bring in a true 
 verdict according to the evidence. 
 
 One witness has been examined on this trial, 
 who, I think, does not deserve credit; but it is you 
 who are the sole judges whom you will give credit 
 to. Though you know this witness has given evid- 
 ence on two former trials, and though the then 
 jury did give credit to his testimony; yet you are 
 not to determine on your verdict, on the faith or 
 precedent of any former jurors, but you are to be 
 solely guided by your own consciences. You wiU 
 observe we have had here two witnesses to impeach 
 the character of Mr. Reynolds, that were not pro- 
 duced on the former trials; and you will no doubt 
 throw out of your minds whatever did not come 
 tliis day before you in evidence, on the part of the 
 
TEIAL OF OLIVER BOND, 1798. 379 
 
 prosecution, and recollect that -wliicli will come 
 before you on the part of the prisoner's defence. 
 -You will find your verdict flowing from conscious 
 integrity, and from the feehngs of honourable minds, 
 notwithstanding the evidence of the witness Rey- 
 nolds, who has been examined upon the table, and 
 whose testimony I need not repeat to you. Perhaps 
 you may be inclined to think he is a perjured wit- 
 ness; perhaps you will not believe the story he has 
 told against the prisoner at the bar, and of his own 
 turpitude. You will do well to consider it was 
 through a perjured witness that a Eussel and a 
 Sydney were convicted in the reign of James II. 
 If juries are not circumspect to determine only by 
 the evidence adduced before them, and not from 
 any extraneous matter, nor from the sHghtest breath 
 of prejudice, then what will become of our boasted 
 trial by jury; then what will become of our boasted 
 constitution of Ireland? In former times, when 
 jurors decided contrary to evidence, it created 
 great effusion of blood. Let me ask, will you, gen- 
 tlemen, give a verdict through infirmity of body, or 
 through misrepresentation, or through ignorance? 
 You, by your verdict, will give an answer to this. 
 Gentlemen of the jury, you will weigh in your 
 minds, that many, inhuman executions did take 
 place in former times, though the then accused 
 underwent the solemnity of a trial. The verdicts 
 of those jurors are not in a state of annihilation, 
 for they remain on the page of history, as a beacon 
 
380 ME. CimEAN's SPEECH ON THE 
 
 to future jurors, The judges before whom the 
 then accused were tried, have long since paid the 
 debt of nature ; they cannot now be called to ac- 
 count, why they shrunk from their duty, 
 
 I call upon you, gentlemen of the jury, to be 
 firm in the exercise of the solemn duty you are 
 now engaged in. Should you be of opinion to 
 bring in a verdict of condemnation against my 
 unfortunate chent, for myself I ought to care no- 
 thing, what impressions may actuate your minds to 
 find such verdict; it is not for me, it is for you, to 
 consider what kind of men you condemn to die, 
 and before you write his bloody sentence, to weigh 
 maturely whether the charge against the prisoner 
 is fully proved. If you should, on the evidence 
 you have heard, condemn the prisoner to death, 
 and afterwards repent it, I shall not live among 
 you to trace any proof of your future repentance." 
 
 I said I rose to teU you what evidence we had 
 to produce on behalf of my chent, the prisoner at 
 the bar. "We shall lay evidence before you, from 
 which you can infer that the witness produced 
 this day was a perjured man. "We have only to 
 show to you, as honest men, that the witness is 
 not deserving of credit on his oath, we have no- 
 thing more to offer on behalf of my chent, the pri- 
 soner at the bar. It is your province to dehberate 
 m your consciences on the evidence you will hear, 
 whether you will believe the witness you have 
 heard, on his oath, or not. And now I ask you, 
 
TEIAL or OLIVEE. BOND, 1798. 381 
 
 will you, upon the evidence you have heard, take 
 away the life of the prisoner at the bar, separate 
 him from his wife and from his Httle children for 
 ever? 
 
 I told you I was to state to you the evidence 
 which we had to bring forward on behalf of my 
 unfortunate client. I tell you it is to discredit the 
 testimony of Mr. Eeynolds. When you have heard 
 our evidence to this point, I cannot suppose you 
 will give your verdict to doom to death the unhappy 
 and unfortunate prisoner at the bar, and entail 
 infamy upon his posterity. We will also produce 
 respectable witnesses to the hitherto unimpeached 
 character of the prisoner at the bar, and prove 
 that he was a man of fair, honest character. You, 
 gentlemen of the jury, have yourselves known him 
 a number of years in this city; let me ask you, do 
 you not know that the prisoner at the bar has 
 always borne the character of a man of integrity, 
 and of honest fame? and, gentlemen of the jury, I 
 call upon you to answer my question by your 
 verdict. 
 
 I feel myself impressed with the idea in my bosom, 
 that you will give your verdict of acquittal of the 
 prisoner at the bar; and that, by your verdict, you 
 wiU declare on your oaths, that you do not believe 
 one syllable that Mr. Eeynolds has told you. Let 
 me entreat you to put in one scale, the base, the at- 
 tainted, the unfounded, the perjured witness; and 
 in the opposite scale, let me advise you to put the 
 
382 ME. cueean's speech on the 
 
 testimony of the respectable mtnesses produced 
 against Mr. Eeynolds, and the witnesses to the 
 prisoner's hitherto unimpeached character; and 
 you "will hold the balance with justice, tempered 
 with mercy, so as your consciences in future will 
 approve. 
 
 Let me depart from the scene of beholding human 
 misery, should the Hfe of my client by your verdict 
 be forfeited! 
 
 Should he live, by your verdict of acquittal, he 
 would rank as the kindest father, and protector 
 of his httle children; as the best of husbands and 
 of friends ; and ever maintain that irreproachable 
 character he has hitherto sustained in private life. 
 Should our witnesses exculpate the prisoner from 
 the crimes charged on him, to the extent charged 
 in the indictment, I pray to Grod to give you the 
 judgment and understanding to acquit him. Do 
 not imagine I have made use of any arguments to 
 mislead your consciences, or to distress your feel- 
 ings: no, but if you conceive a doubt on your minds, 
 that the prisoner is innocent of the crime of high 
 treason, I pray to God to give you firmness of mind 
 to acquit him. I now leave yoTi, gentlemen of the 
 jury, to the free exercise of your OAvn judgments 
 in the verdict you may give. I have not by way 
 of supplication addressed you in argument; I do 
 not wish to distress your feehngs by supphcations; 
 it would be most unbefitting to your candour and 
 understanding; you are bound by your oaths to 
 
TEIAI; OF OLIVEE. BOND, 1798. 383 
 
 find a true verdict according to the evidence; and 
 you do not deserve tte station of jurors, in -which 
 the constitution has placed you, if you do not 
 discharge the trust the consitution has vested in 
 you, to give your verdict freely and indifferently, 
 according to your consciences. 
 
 Mr. Bond was found Guilty, but died of apoplexy in prison, 
 during the negotiation which followed hia convictioD. 
 
FOR LADY PAMELA FITZGERALD Al^J) 
 HER CHILDREN. 
 
 [against attaindee bill.] 
 
 BAR OF THE IRISH COMMONS. 
 
 rCf COMMITTEE. 
 August 20th, 1798. 
 
 Soon after the death of Lord Edward Eitzgerald his brother 
 Henry wrote to Lord Lieutenant Camden a letter ending 
 thus; — "One word more, and I have done, as I alone am an- 
 swerable for this letter. Perhaps you will still take compassion 
 on his wife and three babes, the eldest not four years old. The 
 opportunity that I oifer is to protect their estate for them from 
 violence and plunder. You can do it if you please." 
 
 The appeal was vain, and on the 27th of July, a bill was intro- 
 duced into the Commons, to attaint Lord Edward Fitzgerald, 
 Cornelius Grogan, and Bagenal Harvey. It was read a second 
 time on the 9th of August, and, on the same day. Lord Caulfield 
 presented Lady Pamela Fitzgerald's petition against it. On 
 the 1 3th Arthur Moore, in a sound and feeling speech, moved 
 a clause to exempt the heirs from attaint. Barrington and 
 Plunket supported him, but the motion was lost. On the 14th 
 the case was gone into against Harvey, and, on the 1 Sth, wit- 
 nesses were heard at the bar for the bill, the principal one 
 being Reynolds of Kilkea. He proved the same facts as on 
 Bond's trial, with some special ones as to Lord Edward. There 
 »-'as no doubt of the facts or the evidence. 
 
CASE OF LADY PAMELA FITZGERALD. 385 
 
 On the 20th Cukban was heard against the bill, and spoke as 
 follows : — , , . , . V . V V ' ' • . 
 
 I appear in support of a petition presented on 
 behalf of Lord Henry Fitzgerald, brother of the 
 deceased Lord Edward Fitzgerald: of Pamela, his 
 widow; Edward, his only son and heir, an infant 
 of the age of four years; Pamela, his eldest 
 daughter, of the age of two years ; and Lucy, his 
 youngest child, of the age of three months, against 
 the bill of attainder now before the committee. 
 
 The bill of attainder has formed the division of 
 the subject into two parts. It asserts the fact of 
 the late Lord Edward's treason, and, secondly, it 
 purports to attaint him, and to vest his property 
 in the crown. I shall follow the same order. i 
 
 As to the first part of the bUl, I must remark 
 upon the strange looseness of its allegation. The 
 bill states that he had, during his Hfe, and since 
 the 1st of November last, committed several acts 
 of high treason, without stating what, or when, or 
 where, or with whom: it then affects to state the 
 different species of treason of which he had been 
 guilty; namely, conspiring to levy war, and endea- 
 vouring to persuade the enemies of the King to 
 invade the country. The latter allegation they 
 did not attempt to prove. The conspiring, without 
 actually levying war, is clearly no high treason, 
 and has been repeatedly so determined. 
 
 Upon this previous and important question, 
 namely, the guilt of Lord Edward (without the full 
 
 25 
 
386 ME. cueean's speech on the 
 
 proof ofwMchnopunislimentcanbejust),Iwas asked 
 by the committee, if I had any defence to go into? 
 
 I was confomided by a question which I could 
 not answer; but upon a very Httle reflection, I saw 
 in that very confusion the most conclusive proof 
 of the mjustice of the bill. For what can be more 
 flagrantly unjust, than to inquire into a fact of the 
 truth or falsehood of which no human being can 
 have knowledge, save the informer who comes 
 forward to assert it. 
 
 Sir, I now answer the question. 
 
 I have no defensive evidence! I have no case! it 
 is impossible I should: I have often of late gone 
 to the dungeon of the captive, but never have I 
 gone to the grave of the dead, to receive instruc- 
 tions for his defence, nor in truth have I ever before 
 been at the trial of a dead man ! I offer, therefore, 
 no evidence upon this inquiry: against the perilous 
 example of which I do protest on behalf of the 
 public, and against the cruelty and injustice of 
 which I do protest in the name of the dead father, 
 whose memory is sought to be dishonoured; and 
 of his infant orphans, whose bread is sought to be 
 taken away. 
 
 Some observations, and but a few, upon the 
 assertions of Reynolds , I will make. I do verily 
 believe him in this instance, even though I have 
 heard him assert it upon his oath. By his own 
 confession he is an informer — a bribed informer: 
 a man whom seven respectable witnesses have sworn 
 
CASE OP LADX PAMELA FITZGERALD. 387 
 
 in a court of justice, upon their oaths, not to be 
 credible on his oath; a man upon whose single 
 testimony no jury ever did, nor ever ought, to 
 pronounce a verdict of guilty; a kind of man to 
 whom the law resorts with abhorrence, and from 
 necessity, in order to set the criminal against the 
 crime; but who is made use of by the law for the 
 same reason that the most noxious poisons are 
 resorted to in medicine. 
 
 If such be the man, look for a moment at his 
 story; he confines himself to mere conversation 
 only, with a dead man! He ventures not to in- 
 troduce any third person, hving or even dead! he 
 wishes, indeed, to asperse the conduct of Lady 
 Edward Fitzgerald; but he well knew that, even 
 were she in the country, she could not be adduced 
 as a witness to disprove him. See, therefore, if 
 there be any one assertion to which credit can be 
 given, except this, that he has sworn and forsworn, 
 that he is a traitor; that he has received five hun- 
 dred guineas to be an informer; and that his gene- 
 ral reputation is, to be utterly unworthy of credit. 
 
 As to the papers, it is sufficient to say, that no one 
 of them, nor even all of them, were even asserted 
 to contain any positive proof against Lord Edward; 
 that the utmost that could be deduced from them 
 is nothing more than doubt or conjecture, which, 
 had Lord Edward been Hving, might have been 
 easily explained, to explain which is now impos- 
 sible, and upon v^iich to found a sentence of guUt 
 
 25* 
 
388 ME. ctjeean's speech on the 
 
 would be contrary to every rule of justice or 
 humanity? 
 
 Is this bill of attainderwarrantedby the principles 
 of reason, the principles of forfeiture in the law of 
 treason, or the usage of parhament in bills of 
 attainder? The subject is, of necessity, very long; 
 it has nothing to attract attention, but much to 
 repel it. But I trust that the anxiety of the com- 
 mittee for justice, nothwithstanding any dulness 
 either in the subject or in the speaker, will secure 
 to me their attention. 
 
 Mr. CtTBRAN then went into a minute detail of the principles 
 of the law of forfeiture for high treason, of which no report 
 appears to exist. 
 
 The laws of the Persians and Macedonians ex- 
 tended the punishment of a traitor to the extinc- 
 tion of all his kindred. The law subjected the 
 property and life of every man to the most com- 
 plicated despotism, because the loyalty of every 
 individual of his kindred was as much a matter of 
 wild caprice, as the will of the most arbitrary 
 despot could be. 
 
 This principle was never adopted in any period 
 of our law. At the earliest times of the Saxons, 
 the law of treason acted directly only on the person 
 of the criminal; it took away from him what he 
 actually had to forfeit, his hfe and property. But 
 as to his children, the law disclaimed to affect them 
 directly; they suffered, but they suffered by a 
 
CASE OF LADT PAMELA FITZGERAIiD. 389 
 
 necessary consequence of their father's punishment, 
 which the law could not prevent, and never directly- 
 intended. It took away the inheritance, because 
 the criminal, at the time of taking it away, had 
 absolute dominion over it, and might himself have 
 conveyed it away from his famUy. This is proved 
 by the instances of conditional fees at the common 
 law, and estates tail since the statute de Donis. In 
 the former case the tenant did not forfeit until he 
 had acquired an absolute dominion over the estate 
 by the performance of the condition. Neither in 
 the latter case is the estate tail made forfeitable, 
 until the tenant in tail has become enabled in two 
 ways to obtain the absolute dominion, by a common 
 recovery, or by a fine. Until then the issue in tail, 
 though not only the children of the tenant, but 
 taking from him his estate by descent, could not 
 be disinherited by his crime. Here is a decisive 
 proof, that even the early law of treason never 
 intended to extend the punishment of the traitor 
 to his children as such; but even this direct 
 punishment upon the traitor himself, is to take 
 effect only upon a condition suggested by the un- 
 alterable rules of natural justice, namely, a judg- 
 ment founded upon conviction, against which he 
 might have made his defence ; or upon an outlawry, 
 where he refused to abide his trial. In that case 
 he is punished, because during his life the fact was 
 triable; because during his life the punishment 
 could act directly upon his person; because during 
 
390 MR. curean's speech on the 
 
 Ms life the estate was Ms to convey, and therefore 
 Ms to forfeit. 
 
 But if lie died without attainder, a fair trial was 
 impossible, because a fair defence was impossible; 
 a direct punishment upon his person was impos- 
 sible, because he could not feel it; and a confisca- 
 tion of Ms estate was equally impossible, because 
 it was then no longer his, but was vested in Ms 
 heir, to whom it belonged by a title as good as 
 that by wMch it had ever belonged to him in Ms 
 lifetime, namely, the known law of the country. 
 
 As to a posthumous forfeiture of lands, that 
 appears to have been attempted by inquest after 
 death. But so early as the 8th of Edward III., the 
 legality of such presentments was disallowed by 
 the judges. And there is no lawyer at this day who 
 can venture to deny that, since the 25th and 3.4th 
 of Edward III., no estate of inheritance can regu- 
 larly be forfeited, save by attainder in the Hfe of 
 the party; therefore, the law of the country being 
 that, unless the descent is interrupted by an actual 
 attainder in the hfetime of the criminal, it becomes 
 vested in the heir, the moment it did descend, the 
 heir became seized by a title the most favoured 
 in law. He might, perhaps, have been considered 
 as a purchaser for the most valuable consideration, 
 his mother's marriage, of which he was the issue. 
 Why, then, was posthumous attainder excluded 
 from the protective law of treason? Wliy has it 
 never since been enacted by a prospective law? 
 
CASE OF LADY PAMELA FITZGEEALD. 391 
 
 Clearly for this reason, that in its owti nature it is 
 inhuman, impolitic, and unjust. 
 
 But, it is said, this may be done by a bill of at- 
 tainder; that the parliament is omnipotent, and, 
 therefore, may do it; and that it is a proceeding 
 familiar to our constitution. As to the first, it 
 cannot be denied that the parliament is the highest 
 power of the country, but an argument from the 
 existence of a power to the exercise of it in any 
 particular instance, is ridiculous and absurd. From 
 such an argument it would follow, that it must do 
 whatever it is able to do; and that it must be 
 stripped of the best of all power — the power of 
 abstaining from what is wrong. 
 
 Such a bill ought not to pass. First, because 
 every argument against the justice or the policy 
 of a prospective, is tenfold strong against a retro- 
 spective law; because every ex post facto law is 
 in itself an exercise of despotic power. When it 
 alters the law of property, it is peculiarly danger- 
 ous; when it punishes the innocent for the guilty, 
 it is peculiarly unjust; when it affects to do that 
 which the criminal law, as it now stands, could 
 not do, it acts peculiarly against the spirit of the 
 constitution; which is to contract and restrain penal 
 law by the strictest construction, and not to add 
 to it by vindictive innovation. But, I am warranted 
 to go much further, upon the authority of the 
 British legislature itself, and to say, that the prin- 
 ciple of forfeiture, even in the prospective law, is 
 
392 ME. ctjeran's speech on the 
 
 altogether repugnant to the spirit of the British 
 constitution. 
 
 The statutes of Anne and of George the Second 
 have declared that, after the death of the Pretender 
 and of his sons, no such forfeiture should or ought 
 to exist. In favour of that high authority, every 
 philosophical and theoretic -writer, Baron Mon- 
 tesquieu, the Marquis Beccaria, and many others, 
 might be cited; against it, no one writer of credit 
 or character that has come to my hands. Of the 
 late Mr. Yorke I do not mean to speak v?ith dis- 
 respect; he was certainly a man of learning and 
 genius; but it must be observed, he wrote for a 
 party and for a purpose; he wrote against the re- 
 peal of the law of forfeiture, more than for its 
 principle; of that principle he expressly decHnes 
 entering into a direct defence. But for the extend- 
 ing of that principle farther than it is already law, 
 the slightest insinuation cannot be found in his 
 treatise. 
 
 But it is asserted to be the usage of the con- 
 stitution in both countries. 
 
 Of bills of attainder, the instances are certainly 
 many, and most numerous in the worst times, and 
 rising above each other in violence and injustice. 
 The most tolerable of them was that Avhich at- 
 tainted the man who fled from justice, which gave 
 him a day to appear, had he chosen to do so, and 
 operated as a legislative outlawry. That kind of 
 act has been passed, though but rarely, within the 
 
CASE OP LADY PAMELA PITZGEEALD. 393 
 
 present century. There have been many acts of 
 attainder when the party was willing but not per- 
 mitted to appear and take his trial. In these two 
 kinds of bills of attainder, however, it is to be ob- 
 served, that they do not any violence to the common 
 law, by the declaring of a new crime or a new 
 punishment, but only by creating a new jurisdic- 
 tion, and a new order of proceedings. 
 
 Of the second kind that has been mentioned, 
 many instances are to be found in the violent reigns 
 of the Plantagenets and Tudors, and many of them 
 revised by the wisdom of cooler and juster times. 
 Of such unhappy monuments of human frailty, 
 Lord Coke said, "■auferat dblivio, si non silentium 
 tegat." I beg leave to differ in that from the learned 
 judge : I say, let the record upon which they are 
 written be indehble and immortal: I say, let the 
 memory that preserves them have a thousand 
 tongues to tell them; and when justice, even late 
 and slow, shall have robbed their fellow principle 
 of life, let them be interred in a monument of ne- 
 gative instruction to posterity for ever. 
 
 A third kind of bill of attainder might be found, 
 which for the first time declared the law, and at- 
 tainted the criminal upon it: such was the attainder 
 of Strafford. A fourth, which did not change the 
 law as to the crime, but as to the evidence upon 
 which it was to be proved; such was the attainder 
 of Sir John Fenwick. 
 
 Of these two last species of attainder, no lawyer 
 
394 ME. CUEEAl^r's SPEECH ON THE 
 
 has ever spoken with respect; they were the cruel 
 effect of the rancour and injustice of party spirit; 
 nor could any thing be said in their excuse, except 
 that they were made for the direct punishment of 
 the actual criminals, and whilst they were yet 
 hving. 
 
 The only other attainder that remains possible 
 to be added to this catalogue, is that of a bill like 
 the present, which affects to try after a party's 
 death, when trial is impossible; to punish guilt, 
 when punishment is impossible; to inflict punish- 
 ment where crime is not even pretended; change 
 the settled law of property; to confiscate the widow's 
 pittance! to plunder the orphan's cradle! and to 
 violate the religion of the dead man's grave ! 
 
 For this, too, there was a precedent: but for the 
 honour of humanity let it be remembered, that an 
 hundred and forty years have elapsed in which 
 that precedent has not been thought worthy of 
 imitation in Great Britain. I mean the attainder 
 of the regicides. Upon the Restoration, four of 
 them were included in that bill of attainder, which 
 was passed after their death. 
 
 But, what were the circumstances of that period? 
 
 A king restored, and by his nature disposed to 
 mercy, a ministry of uncommon wisdom, feeling 
 that the salvation of the state could be secured 
 only by mildness and concihation; a bigoted, irri- 
 tated, andinterestedfactionin parliament; the public 
 mind in the highest state of division and agitation. 
 
CASE OF LADY PAMELA FITZGEEAIiD. 395 
 
 For what, then, is that act of attainder resorted 
 to as a precedent? Surely it cannot be as a pre- 
 cedent of that servile paroxysm of simulated loy- 
 alty, with which the same men, who a few days 
 before had shouted after the wheels of the good 
 Protector, now raked out the grave of the trai- 
 torous usurper, and dragged his wretched carcase 
 through the streets; that servile and simulated 
 loyalty, which affected to bow in obsequious ad- 
 miration of the salutary lenity which their vindic- 
 tive folly was labouring to frustrate: that servile 
 and interested hypocrisy, which gave a hollow and 
 faithless support to the power of the monarch, 
 utterly regardless alike of his character or his 
 safety. 
 
 That the example, which this act of attainder 
 held forth, was never respected, appears from this, 
 that it never has been followed in Great Britain, 
 although that country has since that time been 
 agitated by one revolution, and vexed by two re- 
 belhons. So far from extending forfeiture or at- 
 tainder beyond the existing law, the opinion of that 
 wise and reflecting country was gradually matur- 
 ing into a dislike of the principle altogether; until, 
 at last, by the statutes of Anne and Greorge II., she 
 declared that no forfeiture or attainder for trea- 
 son should prejudice any other than the actual 
 offender, nor work any injury to the heir or other 
 person, after the death of the pretenders to the 
 throne. Why has Grreat Britain thus condemned 
 
396 MR. cueean's speech on the 
 
 the principle of forfeiture? Because she felt it to 
 be unjust, and because she found it to be in- 
 effectual. 
 
 Need I prove the impolicy of severe penal laws? 
 They have ever been found more to exasperate 
 than to restrain. "When the infliction is beyond the 
 crime, the horror of the guilt is lost in the horror 
 of the punishment; the sufferer becomes an object 
 of commiseration; and the injustice of the state, 
 of pubhc odium. It was well observed that, in 
 England, the highwayman never murdered, because 
 there the offender was not condemned to torture! 
 But, in France, where the offender was broken on 
 the wheel, the traveller seldom or never escaped!* 
 What, then, is it in England that sends the traveller 
 home with life, but the comparative mildness of 
 English law? "What, but the merciless cruelty of 
 the French law, that gives the atrocious aggrava- 
 tion of murder to robbery? The multiphcation of 
 penal laws lessens the value of Hfe, and when you 
 lessen the value of hfe, you lessen the fear of death. 
 
 Look to the history of England upon this sub- 
 ject with respect to treason. Notwithstanding all 
 its formidable array of death, of Saxon forfeiture, 
 and of feudal corruption of blood; in what country 
 do you read of more treasons or of more rebellions? 
 And why? Because these terrors do not restrain 
 the traitor. Beyond all other delinquents, he is 
 hkely to be a person of that ardent, enthusiastic, and 
 
 ■* Beccaria on Crimes and Punishments. 
 
CASE OF LADY PAMELA FITZGERALD. 397 
 
 intrepid spirit that is roused into more decisive 
 and desperate daring by the prospect of peril. 
 
 Mr. Yorke thinks the child of the traitor may 
 be reclaimed to his loyalty by the restitution of 
 his estate. Mr. Yorke, perhaps, might have reasoned 
 better if he had looked to the stiU greater like- 
 lihood of making him a deadly enemy to the state 
 by the ignominy inflicted on his father, and by the 
 loss of his owninheritance.How keenly did Hannibal 
 pursue his vengeance which he had sworn against 
 Eome? How much more enthusiastically would he 
 have pursued his purpose, had that oath been taken 
 upon a father's grave, for the avenging of a father's 
 sufferings, for the avenging of a father's wrongs! 
 
 If I am called upon to give more reasons why 
 this precedent has not been for more than a cen- 
 tury and a half repeated, I will say, that a bill of 
 attainder is the result of an unnatural union of the 
 legislative and judicial functions; in which the ju- 
 dicial has no law to restrain it; in which the legis- 
 lative has no rule to guide it, unless passion and 
 prejudice, which reject all rule and law, be called 
 rule and law. It puts the Kves and properties of 
 men completely at the mercy of an arbitrary and 
 despotic power. 
 
 Such were the acts of posthumous attainder in 
 Ireland, in the reign of the arbitrary Elizabeth, who 
 used these acts as a mere mode of robbing an Irish 
 subject,forthebenefitofanEnghshminion. Such was 
 the act of the 9th WiILiamin.,notpassedfor the same 
 
398 ME. cueean's speech on the 
 
 odious and despicable purpose, but for a purpose 
 equally arbitrary and unjust — ^the purpose of trans- 
 ferring the property of the country from persons 
 professing one religion into the hands of those pro- 
 fessing another — a purpose manifested and avowed 
 by the remarkable clause in that act, which saves 
 the inheritance to the heir of the traitor, provided 
 that heir be a Protestant! Nor was it so brutally 
 tyrannical in its operation, inasmuch as it gave a 
 right to traverse and a trial by jury to every per- 
 son claiming a right; and protected the rights of 
 infants, until they should be of age, and capable to 
 assert those rights. 
 
 There are yet other reasons why that precedent 
 of the regicides wa,s not followed in Great Britain. 
 A government that means honestly will appeal to 
 the affections, not to the fears of the people. A 
 state must be at the last gasp, when it is driven to 
 seek protection in the abandonment of the law — 
 that melancholy avowal of its weakness and its 
 fear. Therefore, it was not done in the rebellion 
 of 171.5, nor in that of 1745. 
 
 I have hitherto abstained from adverting to the 
 late transactions of Ireland: but I could not de- 
 fraud my clients, or their cause, of so pregnant an 
 example. 
 
 In this country, penal laws have been tried 
 beyond any example of any former times. What 
 was the event? The race between penalty and crime 
 was continued, each growing fiercer in the conflict, 
 
CASE OP LADY PAMELA PITZaEEALD, 399 
 
 until the penalty could go no further, and the 
 fugitive turned upon the breathless pursuer. 
 
 From what a scene of wretchedness and horror 
 have we escaped! 
 
 But I do not wish to annoy you by the stench 
 of those unburied and unrotted examples of the 
 havoc and the' impotence of penal law pushed to 
 its extravagance. I am more pleased to turn your 
 attention to the happy consequences of temperate, 
 conciliatory government — of equal law. Compare 
 the latter with the former, and let your wisdom 
 decide between the tempest and the calm. I know 
 it is a dehcate subject, but let me presume to sug- 
 gest what must be the impression upon this grieved 
 and anxious country, if the rigour of the parliament 
 shall seem at war with the mildness of the govern- 
 ment, if the people shall have refuge in the mercy 
 of the crown from the rigour of their own represen- 
 tatives. Biit if, at the same moment, they shall 
 see the convicted and attainted secured in their 
 lives and in their property by the wise lenity of 
 the crown, while the parliament is visiting shame, 
 and misery, and want, upon the cradle of the un- 
 protected infant, who could not have offended — 
 but I will not follow the idea, I wiU not see the 
 inauspicious omen; I pray that heaven may avert it. 
 
 One topic more you will permit me to add. 
 Every act of the sort ought to have a practical 
 morality flowing from its principle. If loyalty and 
 justice require that these infants should be deprived 
 
400 MB. CUEEAU'S SPEECH ON THE 
 
 of bread, must it not be a violation of that principle 
 to give them food or shelter? Must not every loyal 
 and just man wish to see them, in the words of the 
 famous Golden BuU, "always poor and necessitous, 
 and for ever accompanied by the infamy of their 
 father, languishing in continued indigence, and find- 
 ing their punishment in living, and their rehef in 
 dying?" If the widowed mother should carry the 
 orphan heir of her unfortunate husband to the gate 
 of any man who might feel himself touched with the 
 sad vicissitudes of human affairs, who might feel a 
 compassionate reverence for the noble blood that 
 flowed in his veins, nobler than the royalty that 
 first ennobled it, that like a rich stream rose tiU it 
 ran and hid its fountain; — if, remembering the 
 many noble quahties of his unfortunate father, his 
 heart melted over the calamities of the cliild; if 
 his heart swelled, if his eyes overflowed, if his too 
 precipitate hand were stretched out by his pity or 
 his gratitude to the poor excommunicated sufferers, 
 how could he justify the rebel tear, or the trai- 
 torous humanity? 
 
 I shall trespass no longer upon the patience for 
 which I am grateful: one word only, and I have 
 done; and that is, once more earnestly and solemnly 
 to conjure you to reflect, that the fact, I mean the 
 fact of guilt or innocence, which must be the founda- 
 tion of this bill, is not now, after the death of the 
 party, capable of being tried, consistently with the 
 liberty of a free people, or the unalterable rules of 
 
CASE OF LADY PAMELA FITZGERALD. 401 
 
 eternal justice; and that, as to the forfeiture and 
 the ignominy which it enacts, that only can be 
 punishment which lights upon guilt, and that can 
 be only vengeance which breaks upon innocence! 
 
 Thoiigh great exertions were made to stop the bill, it reached 
 the Lords, and passed in September. 
 
 A final effort was now made by Lady Edward's friends. A 
 memorial was presented to the King, setting out the reasons, 
 from the constitution, from justice, and from clemency, for 
 stopping this bill. The names to the Memorial are "Richmond" 
 (the Duke), "W. Ogilvie" (Lord Edward's step-father), "Henry 
 Fitzgerald," "Charles James Fox," "Henry Edward Fox," 
 "Holland." This document, and many letters written by the 
 Duchess of Leinster to the Royal Family, will be found in the 
 appendix to Moore's touching and simple narrative of "The 
 Life and Death of Lord Edward Fitzgerald." This, too, was 
 for the time unsuccessful, and the bill received the Royal assent 
 in October; but the execution of the attainder was delayed, and 
 the estate was sold in Chancery for a mortgage, and bought 
 for £\ 0,500, by Mr. Ogilvie, who cleared the property, and 
 restored it to Lady Edward. She went to France, and married 
 there imprudently. She separated from her second husband, 
 and after living long in retirement at Toulouse, died in poor 
 lodgings in the Rue Richepanse, Paris, in November, 1831. An 
 application for the reversal of the attainder was made in 1 "99 ; 
 Government agreed to bring it forward in the United Parlia- 
 ment; but it did not pass till 1S19, 
 
 26 
 
NAPPER TANDY. 
 
 [foe not SimEENDEEING ON A CHAKGE OP HIGH 
 
 TREASON, UNDER AN ATTAINDEE, ACT.j 
 
 COUET OF KING'S BENCH. 
 
 May l^th, 1800. 
 
 James Nappbr Tandy was a Dublin merchant, of respectable 
 i'amily, and much civic influence. In 1773 — 4, he became a 
 Common Councilman, and a member of the Trinity Guild.* 
 He commanded the Volunteer Artillery, and had his guns cast 
 with "Free Trade or else — " on them. He was Secretary to 
 the first Dublin meeting of the United Irish Society, held on 
 November 9th, 1791, at "The Eagle," in Eustace-street, and 
 there Tone's Declaration and Test (which had been first agreed 
 to in Belfast on October 14th, 1791) were adopted.-{- His sig- 
 nature is to two other documents of theirs. 
 
 At the meeting of the Dublin Volunteers, at Pardon's, in 
 Cope-street, and of which so much appears in Rowan's case, 
 Tandy was busy distributing Drennan's "Citizen Soldiers" pro- 
 clamation; and during the discussions which followed on it in 
 Parliament, Toler spoke insolently of Tandy. For this Tandy 
 challenged him; 4: but Toler would not fight, and complained 
 to the House of Commons. The Speaker issued his warrant 
 
 ♦ He then resided in Dorset-street. 
 
 ■j- See the proceedings of the "Society of United Irishmen of 
 Dublin,'' published in Dublin, by the Society, in 1794, with this 
 motto, "Let the Nation stand." 
 
 t See his letter to Rowan on the subject in Drummond's Life 
 of Rowan, page 164. 
 
TEIAIi OF NAPPEE TANDY, 1800. 403 
 
 against Tandy, who was arrested at his house in Chancery- 
 lane; hut he escaped through a window. The Privy Council 
 issued a proclamation, offering £bO reward for Tandy's arrest, 
 and Tandy brought actions against the Lord Lieutenant (West- 
 moreland) and the Privy Councillors who signed the proclama- 
 tion; but after long discussions, in which Simon Butler and 
 Thomas Addis Emmet most ably supported Tandy's case, the 
 subpoenas were quashed.* In February, 1793, Tandy and Rowan 
 were prosecuted as Defenders. Tandy fled to America. Francis 
 Graham, a magistrate, was prosecuted for having suborned 
 Corbally, a tailor, to swear this charge against them; but 
 Graham was acquitted, and on his acquittal prosecuted and 
 convicted Corbally for perjury. •]• 
 
 Thus he lived in perpetual turmoil, and enjoyed it. He was 
 employed by the United Irish in the French negotiation, and 
 for this left America in '98, and having been marked out by 
 the Secret Committee, he was the first of fifty-one persons* 
 included in an attainder act (38th George III., c. 80), by which 
 it was declared that, unless the persons named in it surrendered 
 on or before the 1st December, 1798, they would be held con- 
 vict traitors, and suffer death, confiscation of goods, and cor- 
 ruption of blood accordingly. He tried to join Humbert's 
 Expedition in the Autumn of that year, but missed doing so, 
 and after being part' of a day on the Donegal coast, sailed 
 Bafely to Norway. On the 24th of November, he and Harvey 
 Morris § (Montmorenci), Corbet, and Blackwall, were arrested 
 by English agents in Hamburgh, and brought to Ireland. A 
 
 * The proceedings are in the "United Irish" volume, referred 
 to in the last note but one. 
 
 f These cases exist in pamphlet reports, and are highly in- 
 teresting. 
 
 t Among the 51, were "Wolfe Tone, Lewins, Surgeon Lawless, 
 M'Cormick, Michael Beynolds, and several Presbyterian clergymen. 
 
 § Of Knookalton, in the county Tipperary. He hecame a G-eneral 
 tfficer in the French Service.— /See O'Connor's "Military Memoirs 
 c/" the Irish Nation." 
 
 26* 
 
404 ME. cubean's speech on the 
 
 habeas corpus was issued; but it was not until the 10th of 
 February that the parties were brought from Kilmainham to 
 the King's Bench. On that day they were arraigned, and on 
 the 1 2th pleaded specially that they had been arrested within 
 the time allowed by the act of parliament. Issue was joined on 
 the facts, and after delays, allowed to the prisoners to procure 
 the attendance of Sir James Crawford (British envoy at Ham- 
 burgh at the time of the arrest) the trial of both Tandy and 
 Morris took place on the 19th of May, 1800, before Lord Kil- 
 warden. Mr. Eidgeway opened the prisoner's plea, and Cdebah 
 supported it as follows: — 
 
 My Lords, and you, Gentlemen of the Jury, I am 
 in this case of counsel for Mr. Tandy, the prisoner 
 at the bar, I could have wished it had been the 
 pleasure of the gentlemen who conduct this business 
 on the part of the crown, to have gone on first. 
 The subject itself is of a very novel nature in this 
 country; but certainly it is the right of the crown, 
 and which the gentlemen have thought proper to 
 foUow, to call on the counsel for the prisoner to 
 begin; and, therefore, it is my duty, my lords, to 
 submit to you, and to explain, under the direction 
 of the court, to you, gentlemen of the jury, what 
 the nature of the question is that you are sworn 
 to try. 
 
 An act of parliament was passed in this country, 
 which began to be a law on the 6th of October, 
 1798. On that day it received the royal assent. 
 By that law it is stated, that the prisoner at the 
 bar had been guilty of acts of treason of many 
 different kinds; and it is enacted, that he shall 
 
TRIAL OF NAPPBB, TANDY, 1800. 405 
 
 stand attainted of Mgli treason, except lie should, 
 on or before the 1st day of December following, 
 surrender himself to one of the judges of this court, 
 or to one of his Majesty's justices of the peace, for 
 the purpose of becoming amenable to that law 
 from which he was supposed to have fled, in order 
 to abide his trial for any crime that might be al- 
 leged against him. 
 
 It was a law not passed for the purpose of ab- 
 solutely pronouncing any judgment whatsoever 
 against him, but for the purpose of compelhng him 
 to come in and take his trial; and nothing can show 
 more strongly that that act of Parliament has not 
 established any thing touching the fact of the 
 prisoner's guilt; because it would be absurd, in one 
 and the same breath, to pronounce that he was 
 guilty of high treason, and then call upon him to 
 come in and abide his trial; and the title of the 
 act speaks that it is an act not pronouncing sen- 
 tence against the prisoner, but that it is an act in 
 order to compel him to come forward. 
 
 This act creates a parhamentary attainder, not 
 founded on the establishment of the prisoner's 
 guilt of treason, but on his contumacious avoidance 
 of trial, by standing out against a trial by law. I 
 make this observation to you, gentlemen of the 
 jury, in order that you may, in the first instance, 
 discharge from your minds any actual belief of any 
 criminality in the prisoner at the bar; and that for 
 two reasons: first, because a well-founded conviction 
 
406 ME. cueean's speech on the 
 
 of his guilt, on the authority of this statute, 
 might have some impression on the minds of men 
 sitting in judgment on the prisoner; but for a more 
 material reason, I wish to put it from your minds, 
 because his guilt or innocence has nothing to do 
 with the issue you are sworn to try. 
 
 Gentlemen, the issue you are called to try is not 
 the guilt or the innocence of the prisoner; it is 
 therefore necessary you should understand exactly 
 what it is. 
 
 The prisoner was called on to show cause why 
 he should not suffer death, pursuant to the enacting 
 clause of the statute, and he has put in a plea in 
 which he states that, before the time for surrender 
 had expired, namely, on the 24th of November, 1798, 
 seven days before the day he had for surrendering 
 had expired, he was, by order of his Majesty, ar- 
 rested, and made a prisoner, in the town of Ham- 
 burgh; and, in consequence of such arrest, it became 
 impossible for him to surrender himself, and become 
 amenable to justice within the time prescribed; and 
 the counsel for the crown have rested the case 
 on the denial, in point of fact, of this allegation; 
 and, therefore, the question that you are to try is 
 simplified to this — " I was arrested," says the pri- 
 soner, "whereby it became impossible for me to 
 surrender" — to which the counsel for the crown 
 reply — "You were not arrested at the time alleged 
 by you, whereby it would have become impossible 
 for you to surrender." This I conceive to be the 
 
TEIAL or NAPPEE TANDY, 1800. 407 
 
 issue, in point of fact, joined between the parties, 
 and on whicli it is my duty to explain the evidence 
 that will be offered. 
 
 Mr. Tandy is a subject of this country, and has 
 never been in it from the time this Act of Parha- 
 ment passed until he was brought into it after his 
 arrest, on the 24th of November, 1798. On that 
 day he was in the town of Hamburgh. He had 
 seven days, in which time it was practicable for 
 him to arrive in this country, and surrender himself, 
 according to the requisitions of the act of attainder. 
 Every thing that could be of value to man, was at 
 stake, and called on him to make that surrender. 
 If he did not surrender, his life was forfeited — if 
 he did not surrender, his fortune was confiscated — 
 if he did not surrender, the blood of his family was 
 corrupted; and he could leave them no inheritance, 
 but the disgrace of having suffered as a traitor. 
 
 Your common sense, gentlemen, will show you 
 that, where a man is to forfeit his life, unless he 
 comphes with the conditions of an Act of Parha- 
 ment — your common sense, your common humanity 
 must show you, that a man ought to be suffered 
 to perform the conditions on which his life depends. 
 It can require no argument to impress upon your 
 minds, that to call on a man to surrender himself 
 on pain of death, and by force to prevent him from 
 surrendering, goes to an atrocity of oppression 
 that no human mind can contemplate without 
 horror. 
 
408 ME. cubean's speech on the 
 
 But it seems that the prisoner at tlie bar was a 
 man of too much consequence to the repose of all 
 civilized nations, to the great moral system — ^I 
 might almost say, to the great physical system of 
 the universe, to be permitted to act in comphance 
 with the statute that called upon him to surrender 
 himself upon pain of death. The wisdom of the 
 entire Continent was called upon to exercise its 
 mediation on this most momentous circumstance. 
 The diplomatic wisdom of Germany was all put into 
 action on the subject. The englightened humanity- 
 of the North was called on to lend its aid. Gen- 
 tlemen, you know as well as I the princely virtues 
 and imperial qualifications, the consummate wisdom 
 and sagacity of our steadfast friend and ally, the 
 Emperor of all the Russias; you must feel the awe 
 with which he ought to be mentioned; his sacred 
 person has become embodied in the criminal law 
 of England, and it has become almost a misprision 
 to deem of him or speak of him but with reverence. 
 I feel that reverence for him; and I deem of him 
 and conceive him to be a constellation of all virtue, 
 compared with whose radiance the Ursa-major 
 twinkles only as the glow-worm. 
 
 And, gentlemen, what was the result of the 
 exercise of this combination of wisdom? That 
 James Napper Tandy ought to be got rid of in 
 the ordinary way. They felt an honest and a proper 
 indignation that a little community hke Ham- 
 burgh should embezzle that carcase which was the 
 
TEIAI; OF NAPPEB TANDY, 1800. 409 
 
 property of a mild and merciful government; they 
 felt a proper indignation that the senate of Ham- 
 burgh, under the present sublime system, should 
 defraud the mercy of the government of the blood 
 of the prisoner, cheat the gibbet of his bones, or 
 deprive the good and loyal ravens of this country 
 of his flesh; and, accordingly, by an order issued to 
 these miserable inhabitants of the town of Ham- 
 burgh, who were made to feel that common honesty 
 and common humanity can only be sustained by a 
 strength not to be resisted, they were obliged to 
 break the ties of justice andhospitahty — to trample 
 on the privileges that every stranger claims; they 
 were obhged to suffer the prisoner to be trampled 
 on, and meanly, and cruelly, and pitiably to give 
 up this unfortunate man to the disposal of those 
 who could demand him at such a price. 
 
 If a surrender, in fact, had been necessary on 
 the part of the prisoner, certainly a very material 
 object was achieved by arresting him: because they 
 thereby made it impossible for him to avail himself 
 of the opportunity. They made it impossible for 
 him to avail himself of the surrender, if the reflec- 
 tion of his mind led him to it. If a sense of the 
 duty he owed his family led him to a wish, or to 
 an intention, of avaihng himself of the remaining 
 time he had to surrender, they determined he 
 should not take advantage of it. He had been guilty 
 of what the law deems a crime, that is, of flying 
 from justice, though it does not go to the extent 
 
410 ME. cueean's speech on the 
 
 of working a corruption of blood; but by this act 
 of power, by tMs act of tyrannic force, be was 
 prevented from doing that which every court of 
 justice must intend he was willing to do — which the 
 law intends he would have done — ^which the law 
 gave him time to do — which the law sujjposes ho 
 might have done the last hour, as well as the first. 
 He was on his passage to this country: that would 
 not have taken up a third part of the time that 
 was yet to elapse; but by seizing on him in the 
 manner that he was arrested, it became impossible 
 for him to surrender himself, or become amenable 
 to justice. 
 
 The prisoner, when he was arrested, was treated 
 in a manner that made it impossible for hun to do 
 any act that might have been considered as tant- 
 amount to a surrender. He was confined in a 
 dungeon, little larger than a grave: he was loaded 
 with irons; he was chained by an iron that com- 
 municated from his arm to his leg; and that so 
 short, as to grind into his flesh. In such a state of 
 restriction did he remain for fifteen days; in such 
 a situation did he lie in a common vault; food was 
 cut into shapeless lumps, and fiung to him by his 
 filthy attendants as he lay on the ground, as if he 
 had been a beast; he had no bed to lie on, not even 
 straw to coil himself up in, if he could have slept. 
 In that situation he remained in a foreign country 
 for fifteen days of his long imprisonment; and he 
 is now called to show good cause why he should 
 
TBIAIi or KAPPBE TANDY, 1800. 411 
 
 not suffer deatli, because lie did not surrender 
 himself and become amenable to the law. He was 
 debarred all communication whatsoever: if he at- 
 tempted to speak to the sentinels that guarded 
 him, they could not understand him; he did make 
 such kind of indications of his misery and his 
 sufferings as could be conveyed by signs, but he 
 made them in vain ; and he is now; called on to 
 show good cause, wherefore he did contumaciously 
 and traitorously refuse to surrender himself, and 
 become amenable to the law. 
 
 Gentlemen of the jury, I am stating facts that 
 happened in a foreign country; avlU you expect that 
 I should produce witnesses to lay those aboniinable 
 offences before you in evidence? It was not in the 
 power of the prisoner at the bar to procure wit- 
 nesses; he was not of importance enough to call on 
 the armed civilization of Europe, or on the armed 
 barbarity of Europe, to compel the inhabitants of 
 the town where he was imprisoned, to attend at 
 the bar of this court to give evidence for the preser- 
 vation of his Hfe; but though such interposition could 
 not be obtained to preserve hi^ life, it could be 
 procured for the purposes of blood. 
 
 And this is an additional reason why the rights 
 of neutral states should be respected; because, if 
 an individual, claiming those privileges, be torn 
 from that sanctuary, he comes without the benefit 
 of the testimony of those that could save his hfe. 
 It is a maxim of law that no man shall lose any 
 
412 ME. cueran's speech on the 
 
 thing, mucL. less Ms life, by the non-performance 
 of a condition, if that non-performance have arisen 
 by the act of God, or of the party who is to avaU 
 himself of the condition, that the itnpossibiUty so 
 imposed shall be an excuse for the non-performance 
 of the condition; that is the defence the prisoner 
 relies upon here. ""Why did you not surrender, and 
 become amenable to justice? Because I was in 
 chains." "Why did you not come over to Ireland? 
 Because I was in prison, in a grave, in the town of 
 Hamburgh." "Why did you not do something, tant- 
 amount to a surrender? Because I was unprac- 
 tised in the language of the strangers, who could 
 not be my protectors, because they were also my 
 fellow-sufferers." 
 
 But he may push this reasoning much farther: 
 the statute was made for the express purpose of* 
 making him amenable. When the crown seized him 
 at Hamburgh, it thereby made him amenable, and 
 so satisfied the law. It could not seize him for 
 execution as an attainted person, for the time 
 had not arrived at which the attainder could attach. 
 The King, therefore, seized him as a man liable to 
 be tried, and yet he calls upon him to suffer death, 
 because he did not make himself amenable by 
 voluntary surrender; that is, because he did not 
 do that which the King was pleased to do for him, 
 by a seizure, which made it at once unnecessary 
 and impossible for him to do so by any volun- 
 tary act. 
 
TEIAL OF NAPPEB TANDY, 1800. 413 
 
 Sucli is the barbarity and folly that must ever 
 arise, when force and power assume the functions 
 of reason and justice. 
 
 As to his intention after the arrest it is clearly 
 out of the question. The idea of intention is not 
 apphcable to an impossible act. To give existence 
 to intention, the act must be possible, and the 
 agent must be free. Gentlemen, this, and this 
 only, is the subject on which you are to give a 
 verdict. I do think it is highly honourable to the 
 gentleman who has come over to this country, to 
 give the prisoner at the bar the benefit of his 
 evidence; no process could have compelled him; 
 the inhabitants of foreign countries are beyond 
 the reach of process to bi-ing witnesses to give 
 evidence. But we have a witness, and that of the 
 highest respectabUityj who was himself at Ham- 
 burgh at the time Mr. Tandy was arrested, in an 
 official situation. "We wUl call Sir J. Crawford, 
 who was then the King's representative in the 
 town of Hamburgh. "We will show you by his evid- 
 ence the facts that I have stated; that before the 
 time allowed to the prisoner to surrender had 
 elapsed. Sir J. Crawford did, in his official situa- 
 tion, and by orders from his own government, 
 cause the person of Mr. Tandy to be arrested in 
 Hamburgh. Far am I from suspecting, or insinu- 
 ating against Sir James Crawford, that any of the 
 cruelties that were practised on that abused and 
 helpless community, or on my abused cHent, were 
 
414 ME. cueean's speech on the 
 
 committed at his instance or personal sanction; 
 certain am I that no such fact could be possible. 
 
 I told you before, gentlemen, that the principal 
 question you had to try was, the fact on which 
 the parties had joined issue: the force and arrest 
 alleged by the prisoner; and the denial of that 
 force by the counsel for the crown. There is one 
 consideration that I think necessary to give some 
 attention to. What you may think of the probable 
 guilt or innocence of the prisoner, is not within 
 the question that you are to decide; but if you 
 should have any opinion of that sort , the verdict 
 given in favour of the prisoner can be no preclu- 
 sion to pubhc justice, if after your verdict they 
 still call for his life; the utmost that can follow 
 from a verdict in his favour would be, that he wiU. 
 be considered as a person who has surrendered to 
 justice, and must abide his trial for any crime that 
 may be charged against him. There are various 
 ways of getting rid of him, if it be necessary to the 
 repose of the world that he should die. 
 
 I have said, if he has committed any crime he 
 is amenable to justice, and in the hands of the 
 law; he may be proceeded against before a jury, 
 or he may be proceeded against in another and 
 more summary manner; it may so happen that you 
 may not be called upon to dispose finally of his 
 life or of his character. 
 
 "Whatever verdict a jury can pronounce upon 
 him can be of no final avail. There was, indeed, 
 
TEIAL OF NAPPEE TANDY, 1800. 415 
 
 a time when a jury was the shield of Hberty and 
 life: there was a time when I never rose to ad- 
 dress it without a certain sentiment of confidence 
 and pride; but that time is past. I have now no 
 heart to make any appeal to your indignation, 
 your justice, or your humanity. I sink under the 
 consciousness that you are nothing. With us the 
 trial by jury has given place to shorter, and, no 
 doubt, better modes of disposing of life. Even in 
 the sister nation, a verdict can merely prevent the 
 duty of the hangman; but it never can purge the 
 stain which the first malignity of accusation, how- 
 ever falsified by proof, stamps indehbly on the 
 character of an "acquitted felon." To speak 
 proudly of it to you would be a cruel mockery of 
 your condition; but let me be at least a supplicant 
 with you for its memory. Do not, I beseech you, 
 by a vile instrumentahty, cast any disgrace upon 
 its memory. 
 
 I know you are called out to-day to fill up the 
 ceremonial of a gaudy pageant, and that to-mor- 
 row you will be flung back again among the un- 
 used and useless lumber of the constitution: but 
 trust me, the good old trial by jury wiU come 
 round again; trust me, gentlemen, in the revolution 
 of the great wheel of human affairs, though it is 
 now at the bottom, it will re-ascend to the station 
 it has lost, and once more assume its former dig- 
 nity and respect; trust me, that mankind wiU 
 become tired of resisting the spirit of innovation, 
 
416 TRIAL OP NAPPBE TANDY, 1800, 
 
 by subverting every ancient and established pria" 
 ciple, and by trampUng upon every right of in- 
 dividuals and of nations. Man, destined to the 
 grave, nothing that appertains to him is exempt 
 from the stroke of death — his life fleeth as a dream, 
 his liberty passeth as a shadow. So, too, of his 
 slavery; it is not immortal; the chain that grinds 
 him is gnawed by rust, or it is rent by fury, or by 
 accident, and the wretch is astonished at the in- 
 trusions of freedom, unannounced even by the 
 harbinger of hope. Let me, therefore, conjure you, 
 by the memory of the past, and the hope of the 
 future, to respect the fallen condition of the good 
 old trial by jury, and cast no infamy upon it. If 
 it be necessary to the repose of the world that 
 the prisoner should die, there are many ways of 
 kilhng him — we know there are; it is not ne- 
 cessary that you should be stained with his blood. 
 The strange and stUl more unheard-of proceedings 
 against the prisoner at the bar, have made the 
 business of this day a subject of more attention 
 to all Europe, than is generally excited by the 
 fate or the suffering of any individual. Let me, 
 therefore, advise you seriouly to reflect upon your 
 situation, before you give a verdict of meanness 
 and of blood, that must stamp the character of 
 folly and barbarity upon this abeady disgraced 
 and degraded country. 
 
AGAINST SIR HENRY HAYES. 
 
 [abduction op miss pike.] 
 
 COEK SPEING ASSIZES. 
 
 April 13th, 1801. 
 
 Sib Henry Bko-wn Hates, Knight, was the son of Mr. Attwell 
 Hayes, a wealthy citizen of Cork. At the time of the occurrence 
 for which Curran prosecuted him, Sir Henry was a widower, 
 with several children, and, being a man of address and fortune, 
 was popular in Cork. It is said that his expenses had exceeded 
 his means, and that he was induced to the abduction of Miss 
 Pike to retrieve his afifairs. The attempt at such an offence 
 was then a capital felony under the statute law. 
 
 Mary Pike was the only child of Mr. Samuel Pike, a Cork 
 banker, of a respectable Quaker family, who had died some 
 time before, leaving her a fortune of over i^'20,000. Her mother 
 was in weak health, resident in the city of Cork, and main- 
 taining her connexion with the Society of Friends, which Miss 
 Pike and many of her relatives had abandoned. 
 
 In 1797, Miss Pike, then twenty-one years old, resided with 
 a relation, Mr. Cooper Penrose, at a beautiful demesne, called 
 Wood-hill, near Cork. Sir Henry Hayes rode there on Sunday, 
 the 2nd July, 1797, and, professing a desire to see the place, it 
 was shown to him by Mr. Penrose, and he was finally (though 
 previously unknown) asked to dinner by Mr. Penrose, and then 
 met Miss Pike for the first time. 
 
 Sir Henry was captivated or content with this acquaintance. 
 He wrote to Dr. Gibbings, Mrs. Pike's physician; and having 
 learned Dr. Gibbings' hand-writing from the reply, this letter, 
 in close imitation of that writing, was sent to "Wood-hill: — 
 
 27 
 
418 ME. curean's speech on the 
 
 "to coopek pbneose, esq. 
 
 "Dear Sir, — Our friend, Mrs. Pike, is taken suddenly ill; 
 she wishes to see Miss Pike. We ■would recommend dispatch, 
 as we think she has not many hours to live. 
 
 "Yours, &c., Robert Gibbings." 
 
 This document reached Mr. Penrose after midnight of July 
 the 22nd, and, as soon as possible. Miss Pike, accompanied by 
 Miss Penrose, and a Mrs. Eichard Pike, set off in Mr. Penrose's 
 carriage. The night was wet and stormy. They had not gone 
 far when their carriage was stopped by armed men, Miss Pike's 
 name ascertained, and her person identified by a muffled man. 
 The traces of their carriage were then cut; and Miss Pike, 
 placed in a chaise with a lady, who seems to have been a sister 
 of Sir Henry's, was driven off, under a mounted escort, to 
 Mount-Vernon. She was carried from the gate up the steep 
 avenue by the muffled man. Her treatment, then, Miss Pike 
 thus describes in her evidence: — 
 
 Q. How did you get into the house? A. He took me in his 
 arms into the parlour. 
 
 "What happened after you got into the house; were there 
 lights in the parlour? There was a snuff of a candle just 
 going out. 
 
 Miss Pike, be so good as to tell what happened after you 
 got into the parlour; did any other persons make their ap- 
 pearance? Yes, two women. 
 
 Did you see any body else in the hoxise that night, but Sir 
 Henry and the two women? I did not, until the next morning. 
 
 Did you see any other persons in that house at any time 
 after? Yes, a man in priest's habits. 
 
 "Was it that night or next morning? It was next morning. 
 
 At break of day, was it? Yes. 
 
 Did anything particular happen then? Before that, I was 
 forced up stairs. 
 
 By whom? By Sir Henry Hayes and his sister. 
 
TBIAL OF SIB, HENBY HAYES. 419 
 
 After you were forced up stairs, did anything particular 
 happen? Before that, there was a kind of ceremony read, and 
 they forced a ring on my finger; before I was taken up stairs, 
 there was a kind of ceremony of marriage, anda man appeared 
 dressed in the habit of a clergyman. 
 
 Court — You said something about a ring? A ring was at- 
 tempted to be forced on my finger, which I threw away. 
 
 After you were forced up stairs, and after this kind of a 
 ceremony of marriage was performed, did anything particular 
 happen above stairs? I was locked into a room. 
 
 What sort of a room? A small room with two windows. 
 
 What happened after that; do you recollect anything more? 
 There was tea brought up, and after that Sir Henry Hayes 
 came up. 
 
 After tea was brought up, and after Sir Henry came up 
 stairs, did anything happen? 
 
 Court — It is now about four years ago; and, therefore, men- 
 tion only what you remember. 
 
 I remember his father coming up. 
 
 It was after that? Before my uncle came to take me home. 
 
 Court — Was the room furnished or unfurnished? There was 
 a bed and a table in it. 
 
 Do you recollect anything that passed after Sir Henry's 
 coming up; and if you do, state it to the Court? I recoUect 
 perfectly his coming in and out, and behaving in the rudest 
 manner, and saying I was his wife. 
 
 Were you restored shortly after? About eight o'clock next 
 morning. 
 
 Was or was not any part of that transaction between you 
 and Sir Henry Hayes with your consent or against it? Against 
 it entirely. • 
 
 Did you write anything while at Mount-Vernon? Yes; I 
 wrote a notej directed to my uncle. 
 
 How did you come to write that letter? I was anxious to get 
 to my friends, and repeatedly asked for pen and ink. 
 
 27* 
 
420 ' MB,, cueean's speech on the 
 
 It was at length brought to you? Yes; and as well as I can 
 recollect, I wrote to my uncle, to let him know where I was. 
 
 Sir Henry Hayes absconded. Grovernment offered SSIOOO for 
 his apprehension, and Miss Pike's relatives offered another 
 reward — both in vain. He was outlawed, but returned to Cork, 
 and lived there without concealment, and Miss Pike went to 
 reside in Bath. About two years after, Hayes wrote to her a 
 polite letter, offering to stand his trial at the next assizes. 
 Upon this the outlawry was reversed by consent, and an appli- 
 cation to remove the venue to Dublin city having failed, the 
 case came on at the Spring assizes of Cork, on the 13th day of 
 April, 1801, before Mr. Justice Day. 
 
 There were two indictments, one for the abduction, another 
 for procuring it, but on coming into court the Crown quashed 
 the second indictment. The sustained indictment had two 
 counts, one for abduction, with intent to marry, the other 
 charging a still baser purpose. 
 
 The trial excited great interest, and Sir Henry came into 
 court, attended by numerous and influential friends. 
 
 Witnesses having been ordered ovjt of court, Curkan spoke 
 as follows: — 
 
 My Lord and G-entlemen of tte Jury — It is my 
 duty, as one of the counsel in tliis prosecution, to 
 state to your lordsMp, and to you, gentlemen of 
 the jury, such facts as I am instructed wiU be estab- 
 Ushed by evidence, in order that you may be in- 
 formed of the nature of the offence charged by the 
 indictment, and be rendered capable of understand- 
 ing that evidence, which, without some previous 
 statement, might appear irrelevant or obscure. 
 And I shall make a few such observations, in point 
 of law, on the evidence we propose to adduce, with 
 respect to the manner in which it will support the 
 
TEIAL OF SIB HENBY HAYES. 421 
 
 ctarge, if you shall believe it to be true, as may 
 assist you in performing that awful duty which 
 you are now called upon to discharge. In doing 
 so, I cannot forget upon what very different ground 
 from that of the learned counsel for the prisoner, 
 I find myself placed. It is the privilege, it is the 
 obligation, of those who have to defend a client 
 on a trial for his life, to exert every force, and to 
 caU forth every resource, that zeal, and genius, and 
 sagacity can suggest. It is an indulgence in favour 
 of life — it has the sanction of usage — it has the 
 permission of humanity; and the man who should 
 Linger one single step behind the most advanced 
 hmit of that privilege, and sh'ould fail to exercise 
 every talent that heaven had given him, in that de- 
 fence, would be guilty of a mean desertion of his 
 duty, and an abandonment of his client. 
 
 ' Far different is the situation of him who is con- 
 cerned for the crown. Cautiously should he use his 
 privileges — scrupulously should he keep within the 
 duties of accusation. His task is to lay fairly the 
 nature of the case before the court and the jury. 
 Should he endeavour to gain a verdict otherwise 
 than by evidence, he were unworthy of speaking 
 in a court of justice. If I heard a counsel for the 
 crown state anything that I did not think founded 
 in law, I should say to myself, "Grod grant that 
 the man who has stated this may be an ignorant 
 man, because his ignorance can be his only justifica- 
 tion." It shall, therefore, be my endeavour, so to 
 
422 ME. cubean's speech on the 
 
 lay the matters of fact and of law before you, as 
 shall enable you clearly to comprehend them, and, 
 finally, by your verdict, to do complete justice be- 
 tween the prisoner and the pubhc. 
 
 My Lord, and Grentlemen of the Jury, this is an 
 indictment, found by the grand jury against the 
 prisoner at the bar, for having feloniously carried 
 away Mary Pike, with intent against her wiU to 
 marry her; there is another charge also, that he 
 did feloniously carry her away with intent to de- 
 file her. 
 
 There was a former statute made on this subject, 
 enacting the pimishment of death against any man 
 that should, by violence, carry away a female, and 
 actually marry or defile her. But it was found that 
 young creatures, the victims of this sort of crime, 
 for their natural timidity, and the awful impression 
 made upon them in an assembly Kke the present, 
 were often unequal to the task of prosecution, and 
 that offences against that statute often passed un- 
 punished, because the natural dehcacy and modesty 
 of the sex shrunk from the revolting details that 
 were unavoidable on such trials. It, therefore, be- 
 came necessary to enact a new law upon the sub- 
 ject, making the taking away with intent to marry 
 or defile, although, in fact, no such marriage or de- 
 filement had taken place, felony of death. Thus 
 was suppressed the necessity of all those shocking, 
 but necessary, details, that were otherwise required. 
 
 Of the enormity of the crime, I trust I need say 
 
TBIAL OF SIB HENBY HAYES. 423 
 
 but little. I trust in Grod there could not be found 
 in this great city twelve men, to whom it could be 
 necessary to expatiate on the hideous enormity of 
 such an offence. It goes to sap the foundation of 
 all civil society; it goes to check the working of 
 that natural affection, which heaven has planted in 
 the breast of the parent for the child. In fact, 
 gentlemen of the jury, if crimes like this shall be 
 encouraged and multiplied by impunity, why should 
 you defraud your own gratifications of the fruits 
 of your industry? — why lay up the acquisitions of 
 self-denying toil, as an advancement for your child? 
 • — why check your own appetites to give her all? — 
 why labour to adorn her person or her mind with 
 useless, with fatal accomplishments ? You are only 
 decking her with temptations for lust and rapine; 
 you are refining her heart, only to make her feel more 
 profoundly the agony of violation and of dishonour. 
 Why, then, labour to multiply the inducements of 
 the ravisher? — why labour to augment and to per- 
 petuate the sufferings of the victim? Instead of 
 telhng you my opinion of the enormity of this 
 crime, I will tell you that of the legislature upon 
 it: — the legislature has deemed it a crime deserv- 
 ing the punishment of death. 
 
 I will now state to you the facts as I am in- 
 structed they wiU appear to you in evidence. 
 
 The prisoner at the bar, (and considering his 
 education, his age, his rank, and situation in so- 
 ciety, I do regret, from my soul, that he is there,) 
 
42 4 MB. cxjeean's speech on the 
 
 married many years ago; his wife died, leaving him 
 the surviving parent of, I believe, many children. 
 Miss Mary Pike is the only child of a person, whom, 
 I suppose, you all knew — Mr. Samuel Pike, of this 
 city. He had devoted along hfe to a very persever- 
 ing and successful industry, and died advanced in 
 years, leaving this his only child entitled to all the 
 fruits of his laborious and persevering application. 
 The property she is entitled to, I understand, is 
 very great, indeed. At the time of the transaction, 
 to which your attention must be called, she was 
 hving in the house, and under the protection, of 
 an imiversaUy respected member of society, Mr. 
 Cooper Penrose. From the moment her mind was 
 susceptible of it, no expense was spared to give her 
 every accomplishment that she was capable of re- 
 ceiving ; and in the house of her own father, while 
 he Hved, and in the house of Mr. Penrose, when 
 she came under his protection, her mind was form- 
 ed to the most correct principles of modesty, 
 and deUcacy, and decorum, with those additional 
 characteristics, humility and reserve, that belong 
 to that most respectable sect of which her father 
 was a member. The prisoner at the bar, it seems, 
 had heard of her, and had heard of her property; for 
 it is a material circumstance in this case, that he 
 never by any accident had seen her, even for a mo- 
 ment, until he went to see and identifj' her person, 
 and mark her out the victim of his projected crime. 
 He was not induced by the common motives 
 
TEIAIi OP Sm HENRY HATES. 425 
 
 that influence young men — ^by any individual at- 
 tachment to the mind or the person of the lady. 
 It will appear, that his first approach to her was 
 meanly and perfidiously contrived, with the single 
 purpose of identifying her person, in order that he 
 might feloniously steal it, as the title-deed of her 
 estate. 
 
 Some time before the 22nd of July, in the year 
 1797, he rode down to the residence of Mr. Pen- 
 rose. Mr. Penrose has a country-house, built in a 
 very beautiful situation, and which attracts the cu- 
 riosity of strangers, who frequently go to see it. 
 
 The prisoner at the bar went into the grounds 
 as one of these, and seemed to observe every thing 
 with great attention. Mr. Penrose immediately 
 came out to him, and conducted him to whatever 
 objects he supposed might gratify his curiosity. 
 He affected to be much entertained; he fingered 
 about the grounds until the hour of Mr. Penrose's 
 dinner approached. Mr. Penrose, quite a stranger 
 to the prisoner at the bar, was not, I suppose, very 
 anxious to invite a perfect stranger in among his 
 family, more desirous, probably, of enjoying the 
 fittle exclusive confidential intercourse of that fa- 
 mily. However, with that good nature which any 
 man of his cordial and honest turn of mind will 
 feel it his duty to exercise, he did invite Sir Henry 
 Hayes to dinner. .The invitation was accepted of; 
 and thus the first step towards the crime he me- 
 ditated, was an abuse of the sacred duty which the 
 
426 ME. CUBEA]Sf's SPEECH ON THE 
 
 hospitality of his host imposed upon him, as a man, 
 and as a gentleman. He placed himself at the 
 friendly and unsuspecting board, in order to the 
 accomplishment of his design, by the most unfeel- 
 ing and unextenuated violation of the rights of the 
 host, whom he made his dupe — of the lady, whom 
 he marked as his victim — and of the law, which 
 he determined to trample upon, and disgrace by 
 the commission of a felony of death. There, when 
 the eye of the prisoner could escape from the 
 smiles that were lavished upon him — those honest 
 smiles of respect and cordiahty, that come only 
 from the heart — it was to search the room, to find 
 out who probably was the person that he had come 
 to identify. He made his observation, and tookhisde- 
 parture ; but it was not a departure for the last time. 
 Mrs. Pike, the widow, mother of the prosecutrix, 
 was then in Cork, in a dangerous state of health. 
 In order to get Miss Pike out of the hands of her 
 protector, a stratagem was adopted. Dr. Gribbings 
 was the attending physician upon her mother; it 
 does not appear that the prisoner knew Dr. Gib- 
 bings' handwriting: it was necessary that a letter 
 should be sent, as if from Dr. Gribbings; but to do 
 so with effect, it was necessary that a letter should 
 be written to Mr. Penrose in a hand-writing, bear- 
 ing such a similitude to the doctor's, as might pass 
 for genuine. To qualify himself for this, the pri- 
 soner at the bar made some pretext for sending a 
 written message to Dr. Gribbings, wliich procured, 
 
TEIAL OF Sm HENET HAYES. 427 
 
 in return, a written answer from the doctor. Thus 
 was lie furnished with the form of the hand-writing 
 of Dr. Gibbings, which he intended to counterfeit; 
 and, accordingly, there was written, on the 22nd 
 day of July, 1797, a letter, so hke the character 
 of Dr. Gribbings, that he himself, on a shght glance, 
 would be apt to take it for his own. It was in these 
 words: — "Dear Sir, — Our friend, Mrs. Pike, is 
 taken suddenly Ul; she wishes to see Miss Pike; we 
 would recommend despatch, as we think that she 
 has not many hours to live. Your's, Robert Gib- 
 bings." Addressed "to Mr. Cooper Penrose." The 
 first step to the crime was a flagrant breach of 
 hospitality, and the second, towards the completion, 
 was the inhuman fraud of practising upon the piety 
 of the child, to decoy her into the trap of the 
 ravisher, to seduce her to destruction by the angelic 
 impulses of that feehng that attaches her to the 
 parent — that sends her after the hour of midnight, 
 from the house of her protector, to pay the last 
 duty, and to receive the parting benediction. Such 
 was the intention with which the prosecutrix, of a 
 rainy night, between one and two o'clock in the 
 morning, rose from her bed; such was her inten- 
 tion; it was not her destination; it was not to visit 
 the sick bed of a parent; it was not to carry a 
 daughter's duty of consolation to her dying mother; 
 it was not for that she came abroad; it was that 
 she might fall into the hands of preconcerted 
 villany; that she should fall into that trap, which 
 
428 ME. cueban's speech on the 
 
 was laid for her, with, the intention to despoil hei? 
 of every thing that makes human existence worth 
 the having, by any female who has any feehng of 
 delicacy or honour. 
 
 I should state to you, that she left the house of 
 Mr. Penrose, in his carriage, attended by two female 
 relations, one of them his daughter; and when they 
 had advanced about halfway to Cork, the carriage 
 was suddenly met by four or five men. They or- 
 dered the coachman to stop. One of them was 
 dressed in a great coat, and armed with pistols, 
 and Ibad the lower pai-t of his face concealed, by 
 tying a handkerchief round it. 
 
 The ladies, as you mdj suppose, were exceedingly 
 terrified at such a circumstance as this. They asked, 
 as well as extreme terror would permit, what they 
 sought for; they were answered, "they must be 
 searched." On looking about, they observed another 
 chaise, stationed near the place where they were 
 detained. It will appear to you, that Miss Pike was 
 taken forcibly out of the carriage from her friends; 
 that she was placed in the other chaise which I 
 have mentioned; in which she found, shame to tell 
 it — she found a woman. The traces of Mr. Pen- 
 rose's chaise were then cut: and the ladies that 
 came in it left, of course, to find their way as well 
 as they could, and return in the dark. 
 
 The carriage, into which the prosecutrix was put, 
 drove off towards Cork; the female that was with 
 her will appear to you to have been the sister of 
 
TRIAL OF SIR HENRY HAYES. 429 
 
 the prisoner. Happy! happy for her! that death 
 has taken her away from being the companion of 
 his trial, and of his pmiishment, as she was the ac- 
 complice of his guilt: but she is dead. The carriage 
 drove on to the seat, belonging to the prisoner at 
 the bar, called Mount- Vernon, in the liberties of 
 the city; at the bottom of his avenue, which it 
 seems is a steep ascent, and of considerable length, 
 the horses refused to go on; upon which the pri- 
 soner rode up to the chaise, dismounted from his 
 horse, which he gave to one of his attendants, 
 opened the door, took the prosecutrix out, and 
 csCrried her, strugghng in his arms, the whole length 
 of the avenue, to his house. When he arrived there, 
 he carried her up stairs, where she saw a man, 
 attired in somewhat like the dress of a priest; and 
 she was then told that she was brought there to 
 marry the prisoner at the bar. In what frame of 
 mind the miserable wretch must have been, any 
 man that has feelings; must picture to himself. 
 She had quitted the innocent and respectable pro- 
 tection of her friends and family, and found herself 
 — good Grod! where? — in the power of an inexor- 
 able ravisher, and surrounded by his accomplices: 
 she looked in every mean and guUty countenance; 
 she saw the base unfeeKng accomplices induced by 
 bribe, and armed for present force, bound and 
 pledged by the community of guilt and danger, by 
 the felon's necessity, to the future perjury of self- 
 defence. 
 
430 ME. cueean's speech on the 
 
 Thus situated, what was she to look to for assis- 
 tance? What was she to do? Was she to implore 
 the unfeehng heart of the prisoner? As well might 
 she have invoked her buried father, to burst the 
 cerements of the grave, and rise to the protection 
 of his forlorn and miserable child. There, whatever 
 sort of ceremony they thought right to perform, 
 took place; something was muttered in a language 
 which she partly did not hear, and partly could 
 not understand; she was then his wife — she was 
 then Lady Hayes. 
 
 A letter was then to be written to apprize her 
 miserable relations of their new affinity. A pen 
 was put into her hand, and she consented to write, 
 in hopes that it might lead to her dehverance ; but 
 when the sa'd scroll was finished, and the subscrip- 
 tion only remained, neither entreaties nor menaces 
 could prevail upon her, desolate and forlorn as she 
 was, to write the odious name of theravisher. She 
 subscribed herself by the surname of her departed 
 father; as if she thought there was some mysterious 
 virtue in the name of her family, to which she could 
 chng in that hour of terror, as a refuge from law- 
 less force and unmerited sufferiag. 
 
 A ceremony of marriage had taken place: a ring 
 was forced upon her finger; she tore it off, and 
 indignantly dashed it from her ; she was then forced 
 into an adjoining chamber, and the prisoner bru- 
 tally endeavoured to push her towards the bed. 
 
 My lord, and gentlemen of the jury, you will 
 
TEIAL OF SIE HENET HATES. 431 
 
 soon see this young lady. You will see that what- 
 ever grace or proportion her person possesses, it 
 does not seem formed for much power of resis- 
 tance, or of self-defence. But there is a last effort 
 of sinking modesty, that can rally more than the 
 powers of nature to the heart, and send them to 
 every fibre of the frame, where they can achieve 
 more than mere vulgar strength can do upon any 
 ordinary occasion: that effort she did make, and 
 made it with effect; and in that instance, innocence 
 was crowned with success. 
 
 Baffled and frustrated in his purposes of force, 
 he sought to soften, to conciHate. "And do you 
 not know me?" said he. "Don't you know who I 
 am?" "Yes," answered she, "I do know you; I do 
 now remember you did go to my cousin's, as you 
 say you did. I remember your mean intrusion, you 
 are Sir Henry Hayes." How naturally do the parties 
 support their characters! The criminal puts his 
 questions under the consciousness of guilt, as if 
 under the forecast of his present situation. The 
 innocent victim of that guilt regards him already 
 as his prosecutrix; she recognizes him, but it is 
 only to identify him as a malefactor, and to disclaim 
 him as a husband. 
 
 Grentlemen, she remained in this captivity, until 
 her friends got intelligence of her situation. Jus- 
 tice was applied to. A party went to the house 
 of the prisoner, for the purpose of enlarging her. 
 The prisoner at the bar had fled. His sister, his 
 
432 MB. curban's speech on the 
 
 accomplice, had fled. They left behind them Miss 
 Pike, who was taken back by her relations. In- 
 formations were lodged immediately. The prisoner 
 absconded. It would be base and scandalous to 
 suffer a crime of that kind to pass with impunity, 
 without doing every thing that could be done to 
 bring the offender to justice. Government was 
 apprized of it. Grovernment felt as it ought. There 
 was offered, by proclamation, a reward to a con- 
 siderable amount for taking the prisoner. The 
 family of Miss Pike did as they ought. They 
 offered a considerable additional sum, as the 
 reward for his apprehension. For some time he 
 kept in concealment; the rewards were offered in 
 vain; the process of the law went on; an indict- 
 ment, to the honour of this city, to the honour of 
 the national character, was found; they proceeded 
 to the outlawry of the prisoner. 
 
 What I have stated hitherto reflects honour 
 upon all persons concerned, except the unhappy 
 man at the bar, and his accomplices; but what I 
 am about to relate, is a circumstance that no man 
 of feeling or humanity can listen to without in- 
 dignation. Notwithstanding that outlawry; not- 
 withstanding the publicly offered rewards, to the 
 amount of near one thousand pounds, for the ap- 
 prehension of the prisoner at the bar, (would to 
 Grod the story could not be told in a foreign 
 country! would to God it were not in the power 
 of those so ready to defame us, to adduce such a 
 
TEIAIi OP SIR HENEY HATES. 433 
 
 circumstance in corroboration of their charge!) 
 for near two years did the prisoner live in public, 
 almost in the heart of your city; reading in every 
 newspaper, over his tea, the miserable proclama- 
 tion of impotent public justice, of the laws defied 
 and trampled upon. The second city in the nation 
 was made the hiding-place — no ! no ! not the hiding- 
 place, where guilt hid its head — but the recep- 
 tacle where it walked abroad, unappalled, and 
 threw your degraded city into the odious predi- 
 cament of being a sort of public accessory and 
 accomplice in his crime, by giving it that hideous 
 appearance of protection and impunity. Here he 
 stayed, basking in the favour of a numerous 
 kindred and acquaintance, in a widely - extend- 
 ed city. 
 
 Sad reverse! It was not for guilt to fly! It was 
 for guilt to stand, and bay at public justice! It 
 ■v^ras only for innocence to betake itself to flight! 
 It was not the ravisher that fled. It was the help- 
 less female, the object of this crime, the victim of 
 his felony! It was hers to feel that she could de- 
 spair of even personal protection in that country 
 which harboured and cherished the delinquent! It 
 was she who was hunted, a poor fugitive from 
 her family and her home; and was forced to fling 
 herself at the feet of a foreign nation, a supphant 
 for personal protection. She fled to England, 
 where she remained for two years. 
 
 A few months ago, previous to the last term, a 
 
 28 
 
434 MK. cueban's speech on the 
 
 letter was written and sent to Miss Pike, tlie pro- 
 secutrix, by the prisoner. The purport of it was, 
 to state to her, that his conduct to her had been 
 honourable and dehcate, and asserting, that any 
 lady, possessed of the smallest particle of humanity, 
 could not be so sanguinary as to wish for the 
 blood of an individual, however guilty; intimating 
 a threat, that her conduct upon this occasion 
 would mark her fate through life; desiring her to 
 withdraw her advertisements, saying, he would 
 abide his trial at the assizes of Cork; boasting his 
 influence in the city in which he lived, thanking 
 Grod he stands as high as any man in the regards 
 of rich and poor, of which the inef&cacy of her 
 present and former rewards must convince her. 
 
 He thought, I suppose, that an interval of two 
 years, during which he had been an outlaw, and 
 had resided among his friends, had brought the 
 public mind to such a state of honourable sym- 
 pathy in his favour, as would leave any form of 
 trial perfectly safe. After this he thought proper 
 to appear, and the outlawry was reversed without 
 opposition by counsel for the prosecution; because 
 their object was not to take advantage of any 
 judgment of outlawry upon which he might be 
 executed; but to admit him to plead to the charge, 
 and take his trial by a jury of his country. He 
 pleaded to that indictment in the court above, 
 and accordingly he now stands at the bar of this 
 court for the purpose of trial. 
 
TRIAL OF Sm HENBT HATES. 435 
 
 The publicity of Ms living in this city, of his 
 going to festivals and entertaiaments, during the 
 course of two years, did impress the minds of the 
 friends of this unhappy lady with such a despair 
 of obtaining public justice that they did struggle 
 hard, not, as it is said, to try the offence by a 
 foreign jury; but to try the offence at a distant 
 place, in the capital where the authority of the 
 court might keep pubhc justice in some sort of 
 countenance. That application was refused: and 
 justly did you, my lord, and the learned judges, 
 your brethren, ground yourselves upon the reason 
 which you gave. "We will not," said you, "give a 
 judicial sanction to a reproach of such a scandalous 
 atrocity upon any county in the land, much less 
 upon the second city in it." "I do remember," 
 said one of you, "a case, which happened not 
 twenty years since. A similar crime was com- 
 mitted on two young women of the name of 
 Kennedy; it was actually necessary to guard them 
 through two counties with a military force as 
 they went to prosecute; that mean and odious 
 bias, that the dregs of every community wUl feel 
 by natural sympathy with every thing base, was 
 in favour of the prisoners. Every means were used 
 to try and baffle justice, by practising upon the 
 modesty and constancy of the prosecutrixes, and 
 their friends; but the infatuated populace, that 
 had assembled together to celebrate the triumph 
 of an acquittal, were the unwilling spectators of 
 
 28* 
 
436 ME. cueean's speech on the 
 
 the vindication of tlie law. The court recollected 
 that particular respect is due to the female who 
 nobly comes forward to vindicate the law, and 
 give protection to her sex. The jury remembered 
 what they owed to their oaths, to their families, 
 to their country. They felt as became the fathers 
 of famihes, and foresaw what the hideous con- 
 sequence would be of impunity, in a case of mani- 
 fest guilt. They pronounced that verdict which 
 saved their characters; and the offenders were 
 executed." 
 
 I am glad that the Court of King's Bench did 
 not yield to the despair which had taken place in 
 the minds of those who were anxious to bring the 
 prosecution forward. I am glad the prisoner 
 was sent to this bar, in order that you may de- 
 cide upon it. 
 
 I have stated to you, gentlemen of the jury, the 
 facts that I conceive material; I have stated that 
 it was necessary, and my duty, as counsel for the 
 crown, to give you an exact idea of the nature of 
 the offence, of the evidence, and of the law; that 
 you may be enabled to combine the whole case 
 together, and to pronounce such a verdict as shall 
 fairly decide the question, which you are sworn 
 to try, between the public and the prisoner. Any 
 thing I say, either as to the fact, or as to the law, 
 ought not to attract any thing more than bare 
 attention for a single moment; it should make no 
 impression upon your behef, unless confirmed by 
 
TEIAL OF Sm HENEY HAYES. 437 
 
 credible evidence. I am merely stating facts from 
 instruction; but I am not a witness. 
 
 I am also obliged, as I told you, to make 
 observations as to the law, but that is wholly 
 submitted to the court; to which it is your duty, 
 as well as mine, to bow with all becoming de- 
 ference and respect. 
 
 My lord, the prisoner is indicted as a principal 
 offender, upon the statute; and, therefore, it is 
 necessary that the jury shall understand what 
 kind of evidence is necessary to sustain that 
 charge. Formerly there was a distinction taken 
 by courts of justice between two species of prin- 
 cipals; the one, a principal at the doing of the 
 very act; the other, a principal in the second 
 degree, who was then considered as an accessory 
 at the fact: a distinction in point of law, which, 
 as Mr. Justice Forster observes, was a great in- 
 convenience in the course and order of proceed- 
 ing against accomplices in felony; tending, as it 
 plainly did, to the total obstruction of justice in 
 many cases, and to great delay in others; and 
 which induced the judges, from a principle of 
 true political justice, to come into the rule now 
 established: "That all persons present, aiding and 
 abetting, are principals." 
 
 I now proceed to show what kind of presence 
 it is that will make a man concurring in the 
 crime, in judgment of the law, "present, aiding, 
 and assisting:" which to explain, I shall read the 
 
438 MB. cueran's speech on the 
 
 words of the last-mentioned writer, as follows: 
 "When the law requireth the presence of the ac- 
 complice at the perpetration of the fact, in order 
 to render him a principal, it doth not require a 
 strict, actual, immediate presence; such a presence 
 as would make him an eye or ear witness of what 
 passeth." And I may thus exemplify this case: 
 "Several persons set out together, or in small 
 parties, upon one common design, be it murder, 
 or other felony; or for any other purpose, imlaw- 
 ful in itself; and each taketh the part assigned 
 him: one to commit the fact, others to watch at 
 proper stations, to prevent a surprise, or favour, 
 if need be, the escape of those who are more 
 immediately engaged; they are aU (provided the 
 fact be committed,) in the eye of the law, present 
 at it. For it was made a common cause with 
 them; each man operated in his station, at one 
 and the same instant, towards the same common 
 end: and the part each man took, tended to give 
 countenance, encouragement, and protection, to 
 the whole gang, and to ensure the success of their 
 common enterprise." 
 
 If the prisoner at the bar formed a design of 
 doing the illegal act with which he is charged, 
 namely, running away with Miss Pike, ixx order to 
 marry or defile her; if he projected the perpe- 
 tration of it by dividing his accomplices in such 
 manner, as that each might contribute his part to 
 its success; that it was made a common cause; that 
 
TEIAL OF SIR HENET HAYES. 439 
 
 what each man did, tended to secure the success 
 of the common enterprise; then every person so 
 acting, although not an eye or ear witness of what 
 was done, yet in the eye of the law is guilty. He 
 is a principal, and punishable as such. 
 
 Suppose, that some should guard at Mr. Penrose's 
 bounds; others guard at different stations on the 
 road; others guard at the bridge; others remain at 
 the house at Mount- Vernon. In that case, I should 
 not hesitate to say, in point of law, that the man 
 stationed at the back door of Mr. Penrose's house 
 (supposing her to be taken out by violence,) the 
 men guarding on the road, and at the bridge; nay, 
 the priest that waited at Mount-Vernon to cele- 
 brate the marriage, were all a combination of one 
 common power; acting each man in his station, to 
 produce -the intended effect; and, as such, were all 
 equally principals in the offence. 
 
 But, in the present case, it is not necessary to 
 argue upon a constructive presence; for here is an 
 actual presence. If what I have stated should be 
 supported by the witnesses, there is full ground to 
 convince the jury, that Sir Henry Hayes was the 
 person in disguise, who put her into his carriage, 
 when taken out of Mr. Penrose's; particularly when 
 the circumstance is considered, that he went to the 
 house in order to identify her person, for that 
 knowledge of her person would have been useless, 
 unless he had been present at the first taking 
 of her. 
 
440 ME. cueban's speech on the 
 
 If the jury believe lie was there 'at such first 
 taking, he was actually present and guUty. But, 
 supposing the jury to doubt, strange as the doubt 
 must be, yet if there shall be evidence to satisfy 
 them that the prisoner, at the bottom of the hill 
 leading to his house, took her out of his carriage, 
 and led her to the house, that is, as to him, a taking 
 and carrying away, clearly within the statute. 
 There cannot be the least doubt, that every step 
 the chaise proceeded from Mr. Penrose's to Mount- 
 Vernon, that every man who joined the cavalcade, 
 and became an assistant in the project, became a 
 principal in the entire transaction, and guilty of 
 carrying her away, contrary to the statute. 
 
 In further illustration, suppose this case. A 
 highwayman stops a traveller, and proceeds to rob 
 him; and another comes up to the assistance of 
 that robber; there is not the least doubt, that the 
 man who joins in the robbery a little later, is 
 equally guilty with the former in the eye of the 
 law. This is applicable to the present case. 
 
 Thus I have stated the nature of the case, and 
 what I conceive to be the law touching that case. 
 I know not what kind of defence may be set up. 
 There are some defences which, if they can be 
 established clearly, must acquit the prisoner. If he 
 did not do this, if she was not taken away, or if 
 Sir Henry took no share in the transaction, there 
 can be no doubt in the case. It will be for your 
 consciences to say, whether this be a mere tale of 
 
TRIAL OF Sm HENBT HAYES. 441 
 
 the imagination, unsupported by truth, and uncor- 
 roborated by evidence. It is material, however, to 
 state to you that, as soon as guilt is once established 
 in the eye of the law, nothing that the party can 
 do can have any sort of retrospect so as to purge 
 that criminahty, if once completed. It is out of the 
 power of the expiring victim of a death-blow to 
 give any release or acquittal to his murderer; it is 
 out of the power of any human creature, upon 
 whom an illegal offence has been committed, by 
 any act of forgiveness to purge that original guilt; 
 and, therefore, the semblance of a marriage is 
 entirely out of the case. 
 
 In the case of the Misses Kennedy, the young 
 ladies had been obliged to submit to a marriage, and 
 cohabitation for a length of time; yet the offenders 
 were most justly convicted, and suffered death. 
 
 It is, therefore, necessary for you to keep your 
 minds and understandings so fixed upon the 
 material potats of the charge, as that, in the course 
 of the examination, no sidelong view of the subject 
 may mislead or divert your attention. 
 
 The point before you is, whether the crime was 
 once committed; and if so, nothing happening after 
 can make any sort of difference upon the subject. 
 It has been my most anxious wish to abstain, as 
 far as was consistent with my duty, from every the 
 remotest expression of contumely or disrespect to 
 the unhappy prisoner at the bar; or to say or to 
 do anything that might unhinge his mind or 
 
442 ME. cueean's speech on the 
 
 distract his recollection, so as to disable Mm from 
 giving his whole undisturbed reflection to the con- 
 sideration of his defence; but it is also a sacred 
 duty, which every man placed in my situation owes 
 to public justice, to take care, under the affecta- 
 tion of false humanity, not to suffocate that charge 
 which it is his duty to unfold, nor to frustrate the 
 force of that evidence which it is his duty to de- 
 velop. Painful must it be to the counsel, to the 
 jury, and the court, who are bound by their 
 respective duties to prosecute, to convict, and to 
 pronounce, and to draw down the stroke of public 
 justice, even upon the guilty head; but despicable 
 would they all be, if, instead of surrendering the 
 criminal to the law, they could abandon the laAV 
 to the criminal; if, instead of having mercy upon 
 outraged justice and injured innocence, they should 
 squander their disgraceful sympathy upon guilt 
 alone. Justice may weep; but she must strike 
 where she ought not to spare. We, too, may 
 lament; but, when we mourn over crimes, let us 
 take care that there be no crimes of our own upon 
 which our tears should be shed. 
 
 Gentlemen, you cannot be surprised that I hold 
 this language to you. Had this case no reference 
 to any country but our own, the extraordinary 
 circumstances attending it, which are known to 
 the whole nation, would well warrant much more 
 than I have said. But you cannot iorget that the 
 eyes of another country also are upon you: another 
 
TEIAL OP SIR HENEY HATES. 443 
 
 country, which is now the source of your legisla- 
 tion. You are not ignorant what sort of character 
 is given of us there; by what sort of men, and 
 from what kind of motive. Alas! we have no power 
 of contradicting the cruel calumnies that are there 
 heaped upon us, in defiance of notorious truth, and 
 of common mercy and humanity; but, when we 
 are there charged with being a barbarous race of 
 savages, with whom no measures can be held, upon 
 whose devoted heads legislation can only pour 
 down laws of fire, we can easUy, by our own mis- 
 conduct, furnish proof that to a much less willing 
 belief may corroborate their base evidence, and 
 turn their falsehood into truth. 
 
 Once more, and for the last time, let me say to 
 you, you have heard the charge. Believe nothing 
 upon my statement. Hear and weigh the evidence. 
 If you doubt its truth, acquit without hesitation. 
 By the laws of every country, because by those of 
 eternal justice, doubt and acquittal are synonymous 
 terms. If, on the other hand, the guilt of the pri- 
 soner shall unhappily be clearly proved, remember 
 what you owe to your fame, your conscience, and 
 your country. I shall trouble you no further, but 
 shall call evidence in support of the indictment; 
 and I have not a doubt, that there wiU be such a 
 verdict given, whether of conviction or acquittal, 
 as may hereafter be spoken of, without kiadhng 
 any shame in yourselves, or your country. 
 
 Before the witnesses were called Mr. Cubkan objected to any 
 
444 MB. cubean's speech on the 
 
 person but the prisoner being suffered to stand at the bar. 
 Prisoner's counsel declared they were not anxious about it, 
 but mentioned the case of Mr. Home Tooke, where the Court 
 allowed him to be attended by his counsel. The Court said, 
 the prisoner here should have that indulgence, when he came 
 to his defence; but, for the present, all other persons, save his 
 attorney, and one of his counsel, were ordered to withdraw 
 from the bar. 
 
 Miss Pike proved the facts stated before, but her cross- 
 examination by Mr. Quin contained some inconsistencies: — 
 
 Q. Can you swear, that, at that time, you knew any one of 
 the persons who took and carried you away from that part of 
 the Glanmire Eoad, where you were stopped? A. No, I cannot. 
 
 Your uncle mentioned something as you went along of the 
 necessity of giving immediate informations— did he not? I 
 said before he did. 
 
 When did you give the informations? The Monday morning 
 following. 
 
 Do you recollect what day of the week it happened? I 
 believe Saturday. 
 
 And you gave informations on Monday? I did. 
 
 "Where did you swear them? At my aunt's. 
 
 Who drew them out ? Indeed I do not know who wrote them. 
 
 Do you recollect whether you swore in the informations, 
 that Sir Henry took, and carried you away on the Glanmire 
 Road? I believe I did not. 
 
 Was there any interposition used with you to induce you to 
 come into court this morning? No, there \v:ii? not. 
 
 Did any jierson describe the dress or person of Sir Henry 
 to you before you came into court? No, sir. 
 
 Will you now say upon your oath, that if, at the time you 
 came into court and sat upon the table, you were asked the 
 question, that you could have said positively you knew Sir 
 Henry Hayes? No, I could not, because he might have been 
 very much disguised. 
 
TEIAIi 01? SIR HENBY HAYES. 445 
 
 Mr. and Miss Penrose, Dr. Griblsings, and Mr. Richard Pike 
 proved the other facts. Mr. Quin spoke for the prisoner, but 
 declined to call witnesses, and pressed for an acquittal in law, 
 from the insufficiency of the evidence under the statute of ab- 
 duction. CuBBAN shortly replied, as follows: — 
 
 It is the undoubted privilege of the crown to 
 reply in all criminal cases, not only to a point of 
 law, but if tbe prisoner's counsel speak to evidence, 
 the crown is warranted to reply. I might by law 
 have prevented such speaking altogether; but I 
 will never oppose such indulgence to a prisoner. 
 The evidence adduced upon the part of the crown 
 has not been attempted to be denied by a single 
 witness, and, therefore, I think it would be absurd 
 to go about to establish the credibility of testimony 
 uncontroverted, even by the prisoner. I feel myself, 
 therefore, only called upon to answer the objections 
 in point of law. Much has been said about that 
 indictment which was quashed; the observations 
 on that, as far as they go, are a complete answer 
 to themselves. It is undoubted law, that if a man 
 be indicted as a principal, and acquitted, and after- 
 wards indicted as an accessory before the fact, 
 that the former acquittal is a conclusive plea in 
 bar. The law is clearly settled in that case, and 
 an acquittal upon the present indictment would be 
 a complete bar to any prosecution upon the second; 
 therefore it was, that the second indictment was 
 quashed. "We sent up that indictment in fact, be- 
 cause we did not, with precise exactness, know 
 
446 MR. cxjeean's speech on the 
 
 how the evidence would turn out upon the trial 
 The second indictment was a mere charge of an 
 accessorial offence; but feeling that, to bring for- 
 ward the real merits of the case, we should go upon 
 the first indictment, we thought it would be an act 
 of unwarrantable vexation not to apprize the pri- 
 soner, the court, and the jury, that that was the 
 only charge against him. And therefore it is, that 
 that indictment should be dimissed entirely from 
 the subject. The argument contended for is, that 
 the evidence adduced does not support the indict- 
 ment; to that, and that alone, it is necessary for 
 me to reply: the only question is, whether there is 
 sufficient evidence to maintain the indictment. 
 [Eeads the indictment.] On this a question of law 
 occurs. What is a taking and carrying away? I 
 see no possibility that the jury can disbelieve that 
 the man who took her out of Mr. Penrose's car- 
 riage was the prisoner at the bar, who went before 
 to identify her. He could not make use of that 
 knowledge of her person on that occasion, if he 
 was not there; he should have shown that he was 
 then in some other place, but to do so was not 
 attempted. Observe upon the latter part of the 
 transaction, on the carriage proceeding with her in 
 it to the passage leading to Mount- Vernon, that 
 there a man, dressed as the lady describes, aht from 
 his horse ; but there has been strong evidence that 
 he did not come from the house; took the hand- 
 kerchief from his face, took her in his arms, and 
 
TRIAL OF Sm HENEY HAYES. 447 
 
 carried her in his arms from the foot of the hill to 
 Moiint-Vernon house, and where that marriage 
 was absolutely solemnized. Upon this part of the 
 question there does, to be sure, arise a question — 
 Was that a taking and carrying away within the 
 statute? I do admit that the taking and carrying 
 away are essential; but it is not being the first 
 taker that is necessary within the act of parlia- 
 ment: for if ten different persons had rescued her 
 from one another, and another had taken her into 
 the place, where, &c., he would be guilty, because 
 he had taken her, and carried her away. The 
 question, therefore, is. Was there a taking within 
 the act or not? Mr. Quin has argued from two 
 cases, that he supposes similar to the present; the 
 one was burglary, the other was murder. They 
 differ materially in this from the present, that they 
 are things done at one moment of time, and, in the 
 present case, a continuance of the force is a con- 
 tinuance of the taking; upon the statute of Henry 
 VII. there must be an actual marriage in order to 
 constitute the offence; but in England, as well as 
 here, there must be a previous taking and carrying 
 away; therefore, what is there considered as such, 
 must be, in this country, a taking and carrying 
 away. 2 Hawkins, 315. Also, if a woman be taken 
 away by force in one county, and carried into an- 
 other, and there married, the offender may be 
 indicted, and tried in the second county upon the 
 statute of Henry VII., because it is a continuation 
 
448 ME. oubean's speech on the 
 
 of force, and of such kind as amounts to forcibly 
 taking within the statute; and so it is, if the pri- 
 soner at the bar had taken her by force in an ad- 
 joining county, and brought her into this. 
 
 You have an unquestionable authority, and a 
 most respectable one, stating that a continuance 
 of force in the county where the indictment is laid, 
 is a sufficient taking and carrying away within the 
 statute. 
 
 Suppose a man hires a gang of people to seize 
 a woman in Dublin, and bring her down by force; 
 in the last stage, he goes and takes her in his arms, 
 and carries her into his house; wiU any one say, 
 that because he had not seized her in the first 
 instance himself, that his seizing her by force, in 
 the last stage, is not a taking within the statute? 
 
 The simple question to be decided upon is this, 
 in point of law, whether the taking her out of that 
 chaise, in which she was brought to the avenue of 
 the prisoner, was a sufficient taking, and whether 
 the carrying her up to liis house, was such a car- 
 rying away, as, added to the taking, brought the 
 present case within the statute. 
 
 To support this, I shall cite the case of the King 
 and Lapyard, an indictment on which the facts 
 were, — "That Mrs. Hobart, coming out of the play- 
 house, had an attempt made by the prisoner to 
 snatch her ear-ring from her ear; it appeared that 
 the snatch at it was so violent, that it tore through 
 her ear. When she went home, she found not only 
 
TRIAL OP SIR HENRY HAYES. 449 
 
 that the ear-ring had not been taken away by the 
 prisoner, but actually found it sticking in the curls 
 of her hair." It was necessary, then, that there 
 should be a taking, and also a carrying away; and 
 the question was, whether the facts did amount to 
 that taking and carrying away. The judge gave 
 in to the doubt proposed by the prisoner's counsel. 
 I shall mention two cases, one where a man turned 
 a cart from a horizontal to a perpendicular posi- 
 tion to get at the goods; the other case was, where 
 a person removed a parcel into the head of a waggon 
 in order to steal it, which had been before in the 
 tail of it, and in each case there was judged a suffi- 
 cient taking and carrying away. A man lodged at 
 an inn, and in the morning took the sheets out of 
 his bed, and carried them into the stable, and 
 another stole them. The jury found the prisoner 
 guilty; but judgment was respited, and the case 
 submitted to the consideration of the twelve judges, 
 who were of opinion, that he was guilty of the 
 charge of felony laid in the indictment. Compare 
 these to the present case. Miss Pike was taken by 
 force out of the chaise; she was carried by force 
 up the avenue; she was taken by force into a room. 
 "What would become of the law, if miserable subter- 
 fuges of this kind could have any effect? The cir- 
 cumstances of this case make it ridiculous to sup- 
 pose that the conduct of the prisoner was from 
 any motive of hospitality, as has been insinuated, 
 for she stated other facts inconsistent with such a 
 
 29 
 
450 TRLAX or SIK HENRY HATES. 
 
 defence. Every fact, if the jury believed the pro- 
 secution, ■was by force, and against her consent. 
 Let me remind the jury that such an idea as this 
 ought not to go abroad, that a gang may be hired 
 by a man, to force away a woman, and that that 
 man, meeting her in the last stage of the transac- 
 tion, shall completely commit a felony against the 
 statute, with impunity. 
 
 The judge charged fairly, and after an hour's deliberation 
 the jury found the prisoner Guilty, but recommended him to 
 mercy. The law point on the insufficiency of the evidence was 
 referred to the twelve judges, and decided against Sir Henry, 
 but the recommendation to mercy was acceded toj and he was 
 transported. 
 
HEVEY V. MAJOE SIRR. 
 
 KING'S BENCH. 
 May nth, 1802. 
 
 As an illustration of the government of Ireland at the time of 
 the trial, and for some years before, this case is most interesting, 
 and Cobean's speech equal to the occasion. 
 
 Hevey was a brewer in Dublin, and in '98 acted as a yeoman 
 in the Roebuck cavalry. Happening to be in court during a 
 trial, and seeing a rascal whom he had once employed, on the 
 table, he said what he thought of him, and was then obliged 
 to give evidence against the witness's character, and the pri- 
 soner was acquitted. For this he was seized on by Major Sirr 
 and his gang, forced into prison, obliged to give up a valuable 
 mare to Sandys, a comrade of Sirr's, was then hurried to Kil- 
 kenny, tried by Court-martial, and sentenced to be hanged. 
 Lord Cornwallis saw the report of the trial, and released 
 Hevey. In September, 1801, Major Sirr met Hevey in the 
 Commercial Buildings, threatened him, and when Hevey defied 
 him, Sirr thrust the unfortunate man into the provost prison 
 in the Castle, till he signed a submission. For this the action 
 was brought. 
 
 Lord Kilwarden (Arthur Wolfe) and a special jury tried the 
 case. Cdeean opened for the plaintiff: — 
 
 This is the most extraordinary action I have ever 
 met with. It must proceed from the most un- 
 exampled impudence in the plaintiff, if he has 
 brought it -wantonly, or the most unparalled mis- 
 creancy in the defendant, if it shall appear sup- 
 ported by proof. The event must stamp the most 
 
 29* 
 
452 ME. cueean's speech on the 
 
 condign and indelible disgrace on the guilty de- 
 fendant, unless an unworthy verdict should shift 
 the scandal upon another quarter. 
 
 On the record the action appears short and 
 simple. It is an action of trespass, vi et armis, for 
 an assault, battery, and false imprisonnaent. But 
 the facts that led to it, that explain its nature, and 
 its enormity, and, of course, that should measure 
 the damages, are neither short nor simple. The 
 novelty of them may surprise, the atrocity must 
 shock your feehngs, if you have feehngs to be 
 shocked. But I do not mean to address myself to 
 any of your proud feehngs of liberty — the season 
 for that is past. There was, indeed, a time when, 
 in addressing a jury upon very inferior violations 
 of human rights, I have felt my bosom glow and 
 swell with the noble and elevating consciousness 
 of being a free-man, speaking to free-men, and in 
 a free country; where, if I was not able to com- 
 municate the generous flame to their bosoms, I was 
 not at least so cold as not to catch it from them. 
 But that is a sympathy which I am not now so 
 foolish as to affect either to inspire, or to parti- 
 cipate. I shall not insult you by the bitter mockery 
 of such an affectation; buried as they are, I do not 
 wish to conjure up the shades of departed freedom 
 to flutter round their tomb, to taunt or to reproach 
 them. Where freedom is no more, it is a mischievous 
 profanation to use her language; because it tends 
 to deceive the man who is no longer free, upon the 
 
CASE OP HEVET V. MAJOR SIRR. 453 
 
 most impoi-tant of all points — that is, the nature 
 of the situation to which he is reduced; and to make 
 him confound the Hcentiousness of words with the 
 real possession of freedom. I mean not, therefore, 
 to call for a haughty verdict, that might humble 
 the insolence of oppression, or assert the fancied 
 rights of independence. Far from it; I only ask 
 for such a verdict as may make some reparation 
 for the most extreme and unmerited suffering, and 
 may also tend to some probable mitigation of the 
 public and general destiny. For this purpose I 
 must carry back your attention to the melancholy 
 period of 1798. It was at that sad crisis that the 
 defendant, from an obscure individual, started into 
 notice and consequence. It is in the hot-bed of 
 public calamity that such portentous and inauspi- 
 cious products are accelerated without being ma- 
 tured. From being a town-major, a name scarcely 
 legible in the list of public incumbrances, he be- 
 came at once invested with all the real powers of 
 the most absolute authority. The life and the lib- 
 erty of every man seemed to be given up to his 
 disposal. With this gentleman's extraordinary 
 elevation begins the story of the sufferings and 
 ruin of the plaintiff. 
 
 It seems, a man of the name of M'Guire was 
 prosecuted for some offence against the state. Mr. 
 Hevey, the plaintiff, by accident was in court; hg 
 was then a citizen of wealth and credit, a brewer, 
 in the first Hne of that business. Unfortunately for 
 
454 MB. curean's speech ok the 
 
 him, he had heretofore employed the witness for 
 the prosecution, and found him a man of infamous 
 character. Unfortunately for himself, he mentioned 
 this circumstance in court. The counsel for the 
 prisoner insisted on his being sworn: he was so. 
 The jury were convinced that no credit was due 
 to the witness for the crown, and the prisoner was 
 accordingly acquitted. In a day or two after. Major 
 Sirr met the plaintiff in the street, asked how he 
 dared to interfere in his business, and swore, "By 
 Grod, he would teach him how to meddle with his 
 people." 
 
 Gentlemen, there are two classes of prophets, 
 one that derive their predictions from real or fan- 
 cied inspiration, and are sometimes mistaken; and 
 another who prophecy what they are determined 
 to bring about themselves. Of this second, and by 
 far the most aiithentic class, Avas the Major; for 
 heaven, you see, has no monopoly of prediction. 
 
 On the following evening, poorHevey was dogged 
 in the dark into some lonely alley; there he was 
 seized, he knew not by whom, nor by what author- 
 ity — and became in a moment to his family and 
 his friends, as if he had never been. He was carried 
 away in equal ignorance of his crime and of his 
 destiny, whether to be tortured, or hanged, or 
 transported. His ci'ime he soon learned; it was 
 the treason which he had committed against the 
 majesty of Major Sirr. He was immediately con- 
 ducted to a new place of imprisonment in the 
 
CASE OF HEVEY V. MAJOB SIBB. 455 
 
 Castle-yard, called the Provost. Of this mansion 
 of misery, of which you have since heard so much, 
 Major Sandys was, and I believe yet is, the keeper 
 -^a gentleman of whomr I know how dangerous it 
 is to speak, and of whom every prudent man will 
 think and talk with all due reverence. He seemed 
 a twin star of the defendant, — equal in honour, 
 in confidence; — equal also (for who could be 
 superior?) in probity and humanity. To this 
 gentleman was my client consigned, and in his 
 custody he remained about seven weeks, unthought 
 of by the world as if he had never existed. The 
 oblivion of the buried is as profound as the obhvion 
 of the dead; his family may have mourned his ab- 
 sence or his probable death; but why should I 
 mention so paltry a circumstance? The fears or the 
 sorrows of the wretched give no interruption to 
 the general progress of things. The sun rose and 
 the sun set, just as it did before — the business of 
 the government, the business of the castle, of the 
 feast, or the torture went on with their usual exact- 
 ness and tranquillity. 
 
 At last Mr. Hevey was discovered among the 
 Dweepings of the prison, and was to be disposed o£ 
 He Avas at last honoured with the personal notice 
 of Major Sandys. "Hevey (says the Major), I have 
 ceen you ride, I think, a smart sort of a mare ; you 
 can't use her here ; you had better give me an order 
 for her." The plaintiff, you may well suppose, by 
 this time had a tolerable idea of his situation; he 
 
456 MB. cueean's speech on the 
 
 thougM lie might have much to fear from a refusal, 
 and something to hope from comphance; at all 
 events, he saw it would be a means of apprizing 
 his family that he was not dead; — he instantly gave 
 the order required. The Major graciously accejated 
 it, saying, "Your courtesy will not cost you much: 
 you are to be sent down to-morrow to Kilkenny, 
 to be tried for your life; you will most certainly 
 be hanged ; and you can scarcely think that your 
 journey to the other world will be performed on 
 horseback." The humane and honourable Major 
 was equally a prophet with his compeer. The 
 plaintiff on the next day took leave of his prison, 
 as he supposed for the last time, and was sent 
 under a guard to Kilkenny, then the head-quarters 
 of Sir Charles Asgil, there to be tried by a court- 
 martial for such crime as might chance to be alleged 
 against him. 
 
 In any other country the scene that took place 
 on that occasion might excite no httle horror and 
 astonishment; but with us, these sensations have 
 become extinguished by frequency of repetition. 
 I am instructed that a proclamation was sent forth, 
 offering a reward to any man who would come 
 forward and give any evidence against the traitor 
 Hevey. An unhappy wretch who had been shortly 
 before condemned to die, and was then lying ready 
 for execution, was allured by the proposal. His 
 integrity was not firm enough to hesitate long 
 between the alternative proposed; pardon, favour. 
 
CASE OF HEVEY V. MAJOE, SIBE. 457 
 
 and reward, witla perjury on one side — the rope 
 and the gibbet on the other. His loyalty decided 
 the question against his soul. He was examined, 
 and Hevey was appointed by the sentence of a 
 mild, and no doubt enlightened court-martial, to 
 take the place of the witness, and succeed to the 
 vacant halter. 
 
 Hevey, you may suppose, now thought his labours 
 at an end ; but he was mistaken; his hour was not 
 yet come. You, probably, gentlemen, or you, my 
 lords, are accounting for his escape, by the for- 
 tunate recollection of some early circumstances 
 that might have smote upon the sensibility of Sir 
 Charles Asgil, and made him believe that he was 
 in debt to Providence for the life of one innocent, 
 though convicted victim. But it was not so; his 
 escape was purely accidental. 
 
 The proceedings upon this trial happened to meet 
 the eye of Lord CornwaUis. The freaks of fortune 
 are not always cruel; in the bitterness of her jocu- 
 larity, you see she can adorn the miscreancy of the 
 slave in the trappings of power, and rank, and 
 wealth. But her playfulness is not always inhuman; 
 she will sometimes in her gambols, fling oil upon 
 the wounds of the sufferer; she wlU sometimes save 
 the captive from the dungeon and the grave, were 
 it only that she might afterwards re-consign him 
 to his destiny, by the reprisal of capricious cruelty 
 upon fantastic commiseration. Lord CornwaUis 
 read the transmiss of Hevey's condemnation; his 
 
458 ME. cueean's speech on the 
 
 heart recoiled from the detail o£ stupidity and 
 barbarity; he dashed his pen across the odious 
 record, and ordered that Hevey should be forth- 
 with Hberated. I cannot but highly honor him for 
 his conduct in this instance; nor, when I recollect 
 his pecuhar situation at that disastrous period, can 
 I much blame him for not having acted towards 
 that court with the same vigour and indignation 
 which he hath since shown with respect to those 
 abominable jurisdictions. 
 
 Hevey was now a man again — he shook the dust 
 off his feet against his prison gate; his heart beat 
 the response to the anticipated embrace of his 
 family and his friends, and he returned to Dubhn. 
 On his arrival here, one of the first persons he met 
 with, was his old friend. Major Sandys. In the 
 eye of poor Hevey, justice and humanity had shorn 
 the Major of his beams — he no longer regarded 
 him with respect or terror. He demanded his 
 mare; observing, that though he might have 
 travelled to heaven on foot, he thought it more 
 comfortable to perform his eartlily journeys on 
 horseback. "Ungrateful villain," says the Major; 
 "is this the gratitude you show to his Majesty and 
 to me, for our clemency to you? You shan't get 
 possession of the beast, which you have forfeited 
 by your treason; nor can I suppose, that a noble 
 animal that had been honoured with conveying the 
 weight of duty and allegiance, could condescend 
 to load her loyal loins with the vile burden of a 
 
CASE OP HEVBY V. MAJOR SIRE. 459 
 
 convicted traitor." As to the Major, I am not 
 surprised that he spoke and acted as he did. He 
 was no doubt astonished at the impudence and 
 novelty of one calhng the privileges of official 
 plunder into question. Hardened by numberless 
 instances of that mode of unpunished acquisition, 
 he had erected the frequency of impunity into a 
 sort of "warrant of spoil and rapine. 
 
 One of these instances I feel I am now bringing 
 to the memory of your lordship. A learned and 
 respected brother barrister* had a silver cup; the 
 Major heard that for many years it had borne an 
 inscription of "Erin go hragli," which meant "Ire- 
 land for ever." The Major considered this per- 
 severance in guilt for such a length of years, as a 
 forfeiture of the delinquent vessel. My poor friend 
 was accordingly robbed of his cup. But upon 
 writing to the then Attorney -General, that ex- 
 cellent offictr felt the outrage, as it was his nature 
 to feel everything that was barbarous or base; and 
 the Major's sideboard was condemned to the grief 
 of restitution. 
 
 And here, let me say, in my own defence, that 
 this is the only occasion upon which I have ever 
 mentioned this circumstance with the least ap- 
 pearance of lightness. I have often told the story 
 in a way that it would not become me to tell it 
 here. I have told it in the spirit of those feelings 
 which were excited at seeing that one man could 
 
 I * Mr. M'Nally. 
 
460 ME. cuekan's speech on the 
 
 be sober and humane at a crisis when so many 
 tbonsands were drunk and barbarous. And pro- 
 bably my statement was not stinted by the recollec- 
 tion that I held that person in pecuhar respect and 
 regard. But little does it signify, whether acts of 
 moderation and humanity are blazoned by grati- 
 tude, by flattery or by friendship; they are recorded 
 in the heart from which they sprung; and in the 
 hour of adverse vicissitude, if it should ever come, 
 sweet is the odour of their memory, and precious 
 is the balm of their consolation. 
 ' But to return: Hevey brought an action for his 
 mare. The Major, not choosing to come into court, 
 and thereby suggest the probable success of a 
 thousand actions, restored the property, and paid 
 the Costs of the suit to the attorney of Mr. Hevey. 
 It may perhaps strike you, my lord, as if I were 
 stating what was not relevant to the action. It is 
 materially pertinent; I am stating a system of con- 
 certed vengeance and oppression. These two men 
 acted in concert; they were Archer and AimweU.* 
 You master at Litchfield, and I at Coventry. You 
 are plunderer in the gaol, and I tyrant in the street. 
 And in our respective situations Ave will co-operate 
 in the common cause of robbery and vengeance. 
 And I state this, because I see Major Sandys in 
 court: and because I feel I can prove the fact 
 beyond the possibility of denial. If he does not 
 dare to appear, so called upon, as 1 have called 
 
 • Two characters in the "Beaux Stratagem.'' 
 
CASE OF- HEVEY V. MAJOR SIRE. 461 
 
 upon him, I prove it by his not daring to appear. 
 If he does venture to come forward, I will prove 
 it by his own oath,, or if he ventures to deny a 
 syllable that I have stated, I will prove it by irre- 
 fragable evidence that his denial was false and 
 perjured. Thus far, gentlemen, we have traced the 
 plaintiff through the strange vicissitudes of bar- 
 barous imprisonment, of atrocious condemnation, 
 and of accidental dehverance. 
 
 Here Mr. Cobran described the feelings of the plaintiff and 
 of his family upon his restoration; his difficulties on his return, 
 his struggle against the aspersions on his character, his re- 
 newed industry, his gradual success, the implacable malignity of 
 Sirr and of Sandys, and the immediate cause of the present 
 action.* 
 
 Three years had elapsed since the deliverance 
 of my client; the public atmosphere had cleared — 
 the private destiny of Hevey seemed to have 
 brightened — ^but the malice of his enemies had not 
 been appeased. On the 8th of September last, 
 Mr. Hevey was sitting in a public coffee-house; 
 Major Sirr was there. Mr. Hevey was informed 
 that the Major had at that moment said, that he 
 (Hevey) ought to have been hanged. The plaintiff 
 was fired at the charge, he fixed his eye on Sirr, 
 and asked, if he had dared to say so? Sirr declared 
 that he had, and had said it truly. Hevey answered 
 that he was a slanderous scoundrel. At the in- 
 stant, Sirr rushed upon him, and, assisted by three 
 
 * So in the Report. 
 
462 MR. cuhkan's speech -ok the 
 
 or four of his satellites, wlio liad attended him in 
 disguise, secured him, and sent him to the castle 
 guard, desiring that a receipt might be given for 
 the villain. He was sent thither. The officer of 
 the guard chanced to be an Enghshman, but lately 
 arrived in Ireland; he said to the baihffs, — If this 
 were in England, I should think this gentleman 
 entitled to bail, but I don't know the laws of this 
 country: however, you had better loosen those 
 irons on his wrists, or I think they may kill him. 
 
 Major Sirr, the defendant, soon arrived, went 
 into his office, and returned with an order which 
 he had written, and by virtue of which Mr. Hevey 
 was conveyed to the custody of his old friend and 
 gaoler. Major Sandys. Here he was flung into a 
 room of about thirteen feet by twelve — it was 
 called the hospital of the provost. It was occupied 
 by six beds, in which were to lie fourteen or 
 fifteen miserable wretches, some of them sinking 
 under contagious diseases. On his first entrance, 
 the light that was admitted by the opening of the 
 door, disclosed to him a view of the sad fellow- 
 sufferers, for whose loathsome society he was once 
 more to exchange the cheerful haunts of men, the 
 use of open air, and of his own limbs; and where 
 he was condemned to expiate the disloyal hatred 
 and contempt which he had dared to show to the 
 overweening and felonious arrogance of slaves in 
 office, and minions in authority; here he passed 
 the first night, without bed or food. 
 
CA8B OF HEVEY V. MAJOB SIRR. 463 
 
 The next morning his humane keeper, the 
 Major, appeared. The plaintiff demanded "why- 
 he was so imprisoned;" complained of himger, 
 and asked for the goal allowance. Major Sandys 
 replied with a torrent of abuse, which he con- 
 cluded by saying, — "Your crime is your insolence 
 to Major Sirr; however, he disdains to trample 
 upon you — you may appease him by proper and 
 contrite submission; but unless you do so, you 
 shall rot where you are. I tell j^ou this, that if 
 government will not protect us, by Grod we wiU 
 not protect them. You wUl probably (for I know 
 your insolent and ungrateful hardiness,) attempt 
 to get out by a Habeas Corpus; but in that yon 
 will find yourself mistaken, as such a rascal de- 
 serves." 
 
 Hevey was insolent enough to issue a Habeas 
 Corpus, and a return was made upon it — "that 
 Hevey was in custody under warrant from G-ene- 
 ral Craig, on a charge of treason." That this 
 return was a gross falsehood, fabricated by Sirr, 
 I am instructed to assert. Let him prove the 
 truth of it if he can. The Judge before whom 
 this return was brought, felt that he had no 
 authority to hberate the unhappy prisoner; and 
 thus, by a most inhuman and mahcious he, my 
 client was again remanded to the horrid mansion 
 of pestilence and famine. 
 
 Mr. CuBKAN proceeded to describe the feelings of Mr. Hevey — 
 the despair of his friends— the ruin of his affairs — the insolence 
 
464 ME. cueean's speech on the 
 
 of Sandys — his offer to set him at large, on condition of making 
 an abject submission to Sirr — the indignant rejection of Hevey 
 — the supplication of his father and sister, rather to submit to 
 an enemy, however base and odious, than perish in such a 
 situation; the repugnance of Hevey — the repetition of kind 
 remonstrances; and the final submission of Hevey to their 
 entreaties — his signing a submission dictated by Sandys, and 
 his enlargement from confinement. 
 
 Thus was he kicked from his goal into the 
 common mass of his fellow-slaves, by yielding to 
 the tender entreaties of the kindred that loved 
 him, to sign, what was in fact, a release of his 
 claim to the common rights of a human creature, 
 by humbling himself to the brutal arrogance of a 
 pampered slave. But he did suffer the dignity of 
 his nature to be subdued by its kindness: he has 
 been enlarged, and he has brought the present 
 action. 
 
 As to the facts I have stated, I shall make a 
 few observations. It might be said for the de- 
 fendant, that much of what was stated may not 
 appear in proof To that I answer, that I would 
 not have so stated, if I had not seen Major 
 Sandys in court. I therefore put the facts against 
 him in a way which I thought the most likely to 
 rouse him to a defence of his own character, if he 
 dared to be examined as a witness. I have, I trust, 
 made him feel, that he has no way of escaping 
 universal detestation, but by denying those charges, 
 if false. And if they are not denied, being thus 
 publicly asserted, my entire case is admitted — hia 
 
CASE or HEVET V. MAJOR SIEK. 465 
 
 original oppression in the provost is admitted — 
 his robbery of the cup is admitted — his robbery 
 of the mare is admitted — the He so audaciously 
 forged on the Habeas Corpus is admitted — the 
 extortion of the infamous apology is admitted. 
 Again, I challenge this worthy compeer of the 
 worthy Major to make his election between prov- 
 ing his guilt by his own corporal oath, or by the 
 more credible modesty of his silence. 
 
 I have now given you a mere sketch of this 
 extraordinary history. No country, governed by 
 aaay settled laws, or treated with common huma- 
 nity, could furnish any occurrences of such un- 
 paralleled atrocity; and if the author of Caleb 
 Williams,* or of the Simple Story,f were to read 
 the tale of this man's sufferings, it might, I think, 
 humble the vanity of their talents (if they are 
 not too proud to be vain) , when they saw how a 
 much morp fruitful source of incident could be 
 found in the infernal workings of the heart of a 
 malignant slave, than in the richest copiousness 
 of the most fertile and creative imagination. But 
 it is the destiny of Ireland to be the scene of 
 such horrors, and to be stung by such reptiles to 
 madness and to death. 
 
 And now I feel a sort of melancholy pleasure, 
 in getting nearly rid of this odious and nauseous 
 subject. It remains for me only to make a few 
 observations as to the damages you ought to give, 
 
 * Godwin, f Mrs. Inchbald. 
 
 30 
 
466 ME. cuekan's speech on the 
 
 if you believe the case of the plaintiff to be as I 
 have stated. I told you before, that neither pride 
 nor spirit belong to our situation; I should be 
 sorry to influence you into any apish affectation 
 of the port or stature of freedom or inde- 
 pendence. 
 
 But my advice to you is, to give the full amount 
 of the damages laid in the declaration; and I will 
 tell you why I give you that advice; I think no 
 damages could be excessive, either as a com- 
 pensation for the injury of the plaintiff, or as a 
 punishment for the savage barbarity of the de- 
 fendant; but my reasons for giving you this 
 advice lie much deeper than such considerations; 
 they spring from a view of our present most 
 forlorn and disastrous situation. You are now in 
 the hands of another country; that country has 
 no means of knowing your real condition, except 
 by information that she may accidentally derive 
 from transactions of a public nature. No printer 
 would dare to publish the thousand instances of 
 atrocity which we have witnessed, as hideous as 
 the present, nor any one of them, unless he did it 
 in some sort of confidence, that he could scarcely 
 be made a public sacrifice by brutal force, for 
 publishing what was openly proved in a court of 
 justice. 
 
 Mr. CuRKAN here made some pointed observations on tho 
 etate of a country where the freedom of thepressis extinguished, 
 and where anotlier nation , by whose indolent mercy, or whose 
 
CASE OP HBVEY V. MAJOB SUUX. 467 
 
 instigated fury, it may be spared or sacrificed, can know nothing 
 of the extent of its sufferings, or its delinquency, but by casual 
 hearsay. 
 
 I know that those philosophers have been 
 abused, who think that men are born in a state 
 of war. I confess I go further, and firmly think 
 they cannot be reclaimed to a state of peace. 
 When I see the conduct of man to man I believe 
 it. When I see the list of offences in OA^ery cri- 
 minal code in Europe — when I compare the enor- 
 mity of their crimes with the still greater enor- 
 mity of their punishments, I retain no doubt ujjon 
 the subject. 
 
 But if I could hesitate as to men in the same 
 community, I have no doubt of the inextinguish- 
 able malignity that will for ever inflame nation 
 against nation. Well was it said, that a "nation 
 has no heart." Towards each other, nations are 
 uniformly envious, vindictive, oppressive, and im- 
 just. What did Spain feel for the murders or 
 robberies of the West? nothing. And yet, at that 
 time, she prided herself as much as England ever 
 did on the elevation of her sentiment, and the 
 refinement of her morahty. Yet what an odious 
 spectacle did she exhibit! her bosom burning with 
 all the fury of rapine and tyranny; her mouth full 
 of the pious praises of the hving God, and her 
 hands red with the blood of his innocent and dsr 
 voted creatures. When I advise you, therefore, to 
 mark your feehng of the case before you, do not 
 
 30* 
 
468 ME. cueean's speech on the 
 
 think I mean ttat you could make any general 
 impression on the morahty or tenderness of the 
 country whose property Ave are become. I am 
 not so foohsh as tO hope any such effect; prac- 
 tical justice and humanity are virtues that re- 
 quire laborious acts, and mortifying privations; 
 expect not, therefore, to find them, — appeal not 
 to them. 
 
 But there are principles and feelings substituted 
 in their place, a stupid preference and admiration 
 of self, an affectation of humanity, and a fondness 
 for unmerited praise ; these you may find, for they 
 cost nothing, and upon them you may produce 
 some effect. When outrages of this kind are held 
 up to the w^orld, as done under the sanction of 
 their authority, they must become odious to man- 
 kind, unless they let fall some reprobation on the 
 immediate instruments and abettors of such deeds. 
 An Irish Lord Lieutenant will shrink from the 
 imputation of countenancing them. Great Britain 
 will see that it cannot be her interest to encourage 
 such an infernal spirit of subaltern barbarity, 
 that reduces man to a condition lower than that 
 of the beast of the field. They will be ashamed of 
 employing such instruments as the present de- 
 fendant. When the government of Ireland lately 
 gave up the celebrated O'Brien* to the hands of 
 the executioner, I have no little reason to believe 
 that they suffered as they deserved on the oc« 
 
 • Sea ante, Curran's defence of Finney. 
 
CASE OF HEVEY V. MAJOR SIBR. 469 
 
 casion. I have no doubt but that your verdict 
 this day, if you act as you ought to do, will pro- 
 duce a similar effect. And as to England, I cannot 
 too often inculcate upon you that she knows no- 
 thing of our situation. When torture was the 
 daily and ordinary system of the executive govern- 
 ment, it was denied in London, with a profligacy 
 of effrontery equal to the barbarity with which it 
 was exhibited in Dublin; and if the facts that 
 shall appear to-day should be stated on the other 
 side of the water, I make no doubt that very near 
 one hundred worthy persons would be ready to 
 deny their existence upon their honour, or, if ne- 
 cessary, upon their oaths. 
 
 I cannot but observe also to you, that the real 
 state of one country is more forcibly impressed 
 on the attention of another by a verdict on such 
 a subject as this, than it could be by any general 
 description. "When you endeavour to convey an 
 idea of a great number of barbarians practising a 
 great variety of cruelties upon an incalculable 
 multitude of sufferers, nothing defined or specific 
 finds its way to the heart; nor is any sentiment 
 excited, save that of a general, erratic, unappro- 
 priated, commiseration. 
 
 If, for instance, you wished to convey to the 
 mind of an English matron the horrors of that 
 direful period, when, in defiance of the remon- 
 strance of the ever-to-be-lamented Abercromby, 
 our poor people were surrendered to the licentious 
 
470 MB. curran's speech on the 
 
 Brutality of the soldiery, by the authority of the 
 state, you would vainly endeavour to give her a 
 general picture of lust, and rapine, and murder, 
 and conflagration. By endeavouring to comprehend 
 every thing, you would convey nothing. 
 
 "When the father of poetry* wishes to pourtray 
 the movements of contending armies, and an em- 
 battled field, he exemplifies only, he does not 
 describe; he does not venture to describe the per- 
 plexed and promiscuous conflicts of adverse hosts, 
 but by the acts and fates of a few individuals he 
 conveys a notion of the vicissitudes of the fight, 
 and the fortunes of the day. 
 
 So should your story to her keep clear of gene- 
 ralities; instead of exhibiting the picture of an 
 entire province, select a single ol)ject; and even 
 in that single object do not release the imagina- 
 tion of your hearer from its task, by giving more 
 than an outline. Take a cottage; place the af- 
 frighted mother of her orphan daughter at the 
 door, the paleness of death upon her face, and 
 more than its agonies in her heart; her aching 
 eye, her anxious ear struggling through the mist 
 of closing day, to catch the approaches of desola- 
 tion and dishonour. The ruffian gang arrives; the 
 feast of plunder begins ; the cup of madness 
 kindles in its circulation. The wandering glances 
 of the ravisher become concentrated upon the 
 shrinking and devoted victim. You need not 
 
 * Homer. 
 
CASE OF HEVEY V. MA JOE SIEE. ,471 
 
 dilate, you need not expatiate; the unpolluted 
 mother, to whom you tell the story of horror, 
 beseeches you not to proceed; she presses her 
 child to her heart, she drowns it in her tears; her 
 fancy catches more than an angel's tongue could 
 describe; at a single view she takes in the whole 
 miserable succession of force, of profanation, of 
 despair, of death. 
 
 So it is in the question before us. If any man 
 shall hear of this day's transaction, he cannot be 
 so foolish as to suppose that we have been con- 
 fined to a single character, like those now brought 
 before you. No, gentlemen; far from it; he will 
 have too much common sense not to know that 
 outrages like this are never solitary; that where 
 the public calamity generates imps like these, 
 their number is as the sands of the sea, and their 
 fury as insatiable as its waves. 
 
 I am therefore anxious that our masters should 
 have one authenticated example of the treatment 
 which our unhappy country suffers under the 
 sanction of their authority; it will put a strong 
 question to their humanity, if they have any — to 
 their prudence, if their pride wiU let them listen 
 to it; or, at least, to that anxiety for reputation, 
 to that pretension to the imaginary virtues of 
 mildness and mercy, which even countries the 
 most divested of them are so ready to assert their 
 claim to, and so credulously disposed to beUeve 
 that claim allowed. 
 
472 ME. cubean's speech on the 
 
 There are some considerations respecting your- 
 .selves, and the defendant, to -wliich I should wish 
 to say a word. You may, perhaps, think your 
 persons unsafe, if you find a verdict against so 
 considerable a person. I know his power, as well 
 as you do — I know he might send you to the 
 Provost, as he has done the plaintiff, and forge a 
 return on any writ you might issue for your de- 
 liverance — I know there is no spot on the devoted 
 nation (except that on which we now are), where 
 the story of oppression can be told or heard; but 
 I think you can have no well-founded apprehen- 
 sions. There is a time when cruelty and oppression 
 become satiated and fatigued; in that satiety at 
 least you will find yourselves secure. But there 
 is still a better security for you — the gratitude of 
 the worthy defendant. If anything could add to 
 his honours and his credit, and his claims, it would 
 be your verdict for the plaintiff; for in what in- 
 stance have you ever seen any man so effectually 
 accredited and recommended, as by the pubhc 
 execration? — what a man, for instance, might not 
 O'Brien have been, if the envy of the gibbet had 
 not arrested the career of his honours and pre- 
 ferments! 
 
 In every point of view, therefore, I recommend 
 to you to find, and to find liberally, for the plaintiff; 
 I have founded my advice upon the real circum- 
 stances of your situation; I have not endeavoured 
 to stimulate you into any sUly hectic of fancied 
 
CASE 03? HEVEY V. MAJOB SIRE. 473 
 
 liberty. I do not call upon you to expose yourselves 
 by the affectation of vindicating tbe cause of free- 
 dom and humanity; much less do I wish to exliibit 
 ourselves to those, whose property we are, as in- 
 dignant or contumacious under their authority. 
 Far from it; they are unquestionably the pro- 
 prietors of us; they are entitled of right to drive 
 us, and to work us; but we may be permitted 
 modestly to suggest, that for their own sakes, and 
 for their own interest, a line of moderation may 
 be drawn — that there are excesses of infliction that 
 human nature cannot bear. 
 
 With respect to her western negroes. Great 
 Britain has had the wisdom and humanity to feel 
 the justice of this observation, and in some degree 
 to act upon it; and I have too high an opinion of 
 that great and philosophic nation, not to hope that 
 she might think us not undeser^ang of equal 
 mildness — provided it did not interfere with her 
 just authority over us. It would, I should even 
 think, be for her credit, that having the honour of 
 so illustrious a rider, we should be kept in some 
 sort of condition, somewhat bordering upon spirit, 
 which cannot be maintained, if she suffers us to be 
 utterly broken down by the malicious wantonness 
 of her grooms and jockeys. 
 
 This cause is of no inconsiderable expectation; 
 and in whatever light you regard it, — whether 
 with respect to the two countries or to Ireland 
 singly, or to the parties concerned, or to your 
 
474 CASE OP HEVEY V. MAJOR SIEE. 
 
 own sense of character and public duty, or to 
 the natural consequences that must flow from 
 the event, you ought to consider it with the 
 most profound attention before you agree upon 
 your verdict. 
 
FOE OWEN KIKWAH. 
 
 [high treason.] 
 SPECIAL COMMISSION, GREEN-STEEET. 
 
 Tliursday, 1st Septemher, 1803. 
 
 The failure of the risings and invasions of 1 798 brol^e the faith 
 of some, the principles of others, and the hopes of many; but the 
 causes of discontent increased. The horrid revenge which fol- 
 lowed the defeat of the rebels — the treachery of Government to 
 the United Irish leaders in 179S, and to the Catholics in 1801 — 
 and the extinction of the Constitution of'82, were added to the 
 political slavery of the Catholics, and the desperate poverty of 
 thepeople. Therevivalofthe war after theshort peace of Amiens, 
 and the alienation from England caused by the first blight of 
 the Union, increased the strength and hopes of revolution. 
 
 Robert Emmet and his associates accumulated pikes, guns, 
 cartridges, materials for street defences, and considerable camp 
 equipage, in different stores in Dublin, the principal of them 
 being in Mass-lane. He had arranged for the arrival in Dublin 
 of bodies of peasantry from the neighbouring counties, and the 
 commencement of the insurrection there on the 23rd July, 
 1803; while Thomas Eussell was to head another movement 
 in the county Down. Government were in possession of much 
 vague information; yet so conceited and absolute was Mr. Se- 
 cretary Marsden (then the real governor of Ireland), that he 
 allowed the Lord Lieutenant to go to the Lodge in the Plicenix- 
 Park, late on the 23rd, without an additional guard, and left 
 the public functionaries, military and civil, without distinct in- 
 sitructions. The night was unusually dark for the time of the 
 
47 G MB. cueean's speech on the 
 
 year, and, favoured liy it, a mob assemMed about nine o'clock, 
 and at ten (the hour agreed on), a number of them received 
 arms from the depot in ITass-lane. A signal rocket was then 
 fired — Emmet and some of his friends turned out, and a rush 
 was made towards the Castle. The mob acted like a mob — got 
 confused, violent, and alarmed — paused and wavered — butchered 
 Colonel Brown, Lord Kilwarden, and some others, who could 
 not fight — and ran from the fire of a few small bodies of troops 
 who were first hurried against them. The leaders, in disgust, 
 abandoned them ; the insurrection was over long before morn- 
 ing. All that remained was for Government to proclaim, try, 
 hang, and oppress. They did all vigorously. 
 
 A Special Commission was issued, and it opened its sittings 
 on the 31st of August, the Judges being Lord Norbury, Mr. 
 Justice Finucane, and Barons George .and Daly. Nineteen 
 persons were tried before the Commission: — one, Walter Clare, 
 was respited; another, Joseph Doran, was acquitted; the rest, 
 including Robert Emmet, were hanged. Eussell shared the 
 same fate in Downpatrick. 
 
 Curran, aided by Ponsonby and M'Nally, was counsel for 
 several of the prisonei-s; but his only speech was for Owen 
 Kirwan. 
 
 Kirwan was tried on the 1st day of September. He was a 
 tailor and clothes dealer, resident at 64, Plunket-street, Dublin, 
 and exercised no influence in the insurrection. 
 
 The Attorney- General (O'Grady,* afterwards Viscount 
 Guillamore), stated the case. 
 
 The witnesses called were Edward Wilson and Mr. Douglas, 
 who proved the scene in Thomas-street; Lieutenant Coltman, 
 who proved the taking of arms, stores, and especially rockets, 
 
 * He was appointed Attorney- Genei-al June the 7th, 1803. John 
 Stewart, made Attorney-General on the 6th of December, 1800, 
 came between Toler and O'Grady. James M'Clelland was Soli- 
 citor-General during tliese trials, and continued so till November, 
 when Plunket succeeded him. 
 
TEIAIj op OWEN KIEWAN, 1803. 477 
 
 in Mass-lane; Thomas Rice, who proved Emmet's proclama- 
 tions; Benjamin Adams, who swore that, on the firing of the 
 signal rocket, he saw Kirwan turn out from his shop, with a 
 pike on his shoulder, at the head of several men; and Joseph 
 Adams, who confirmed Benjamin's evidence. 
 
 CuRKAN then, hopeless it would seem of saving the prisoner, 
 but anxious to serve the country, spoke as follows: — 
 
 It has become my duty to state to the court and 
 jury the defence of the prisoner at the bar. I was 
 chosen for that very unpleasant task, without my 
 concurrence or knowledge; but as soon ^s I was 
 apprised of it, I accepted it without hesitation. To 
 assist a human being, labouring under the most 
 awful of all situations — trembling in the dreadful 
 alternative of honourable life or ignominious death 
 — is what no man, worthy of the name, could refuse 
 to man; but it would be peculiarly base in any 
 person who had the honour of wearing the King's 
 gown, to leave the King's subject undefended, un- 
 til a sentence pronounced upon him had shown, 
 that neither in fact nor in law could any defence 
 avail him. 
 
 I cannot, however, but confess, that I feel no 
 small consolation when I compare my present with 
 my former situation upon similar occasions. In 
 those sad times to which I allude, it was frequently 
 my fate to come forward to the spot where I now 
 stand, with a body sinking under infirmity and 
 disease, and a mind broken with the consciousness 
 of public calamity, created and exasperated by 
 pubhc folly. It has pleased heaven that I should 
 
478 MB. cubean's sPEEon on the 
 
 live to survive both those afflictions, and I am grate- 
 ful to its mercy. 
 
 I now come here through a composed and quiet 
 city — I read no expression in any face, save such 
 as marks the ordinary feelings of social hfe, or 
 the varioLis characters of civil occupation — I see 
 no frightful spectacle of infuriated power or suffer- 
 ing humanity — I see no tortures — I hear no shrieks 
 — I no longer see the human heart charred in the 
 flame of its own wild and paltry passions, black and 
 bloodless, capable only of catching and communi- 
 cating that destructive fire by which it devours, 
 and is itself devoured. 
 
 I no longer behold the ravages of that odious 
 bigotry by which we were deformed, and degraded, 
 and disgraced — a bigotry against which no honest 
 man should ever miss an opportunity of putting 
 his countrymen, of all sects and of all descriptions, 
 upon their guard. It is the accursed and pro- 
 miscuous progeny of servile hypocrisy — of remorse- 
 less lust of power — of insatiate thirst of gain, 
 labouring for the destruction of man. under the 
 specious pretences of religion. Her banner stolen 
 from the altar of God, and her allies congregated 
 from the abysses of hell, she acts by votaries, to 
 be restrained by no compi;nctions of humanity, for 
 they are dead to mercy — to be reclaimed by no 
 voice of reason, for refiitation is the bread on which 
 their folly feeds: they are outlawed alike from 
 their species and their Creator — the object of their 
 
TEIAL OP OWEN KIEWAN, 1803. 479 
 
 crime is social life, and the wages of tlieir sin is 
 social death. 
 
 Though it may happen that a guilty individual 
 should escape from the law that he has broken, 
 it cannot be so with nations — their guilt is too 
 unwieldy for such escape. They may rest assured 
 that Providence has, in the natural connexion 
 between causes and their effects, established a 
 system of retributive justice, by which the crim.es 
 of nations are sooner or later avenged by their 
 own inevitable consequences. But that hateful 
 bigotry, that baneful discord, which fired the heart 
 of man, and steeled it against his brother, has fled 
 at last, and, I trust, for ever. Even in this melan- 
 choly place, I feel myself restored and re-created, 
 by breathing the mild atmosphere of justice, mercy, 
 and humanity — I feel I am addressing the parental 
 authority of tlie law — ^I feel I am addressing a 
 jury of my countrymen, my fellow-subjects, and 
 my fellow-Christians, against whom my heart is 
 waging no ill-concealed hostility — from whom 
 my face is disguising no latent sentiment of re- 
 pugnance or disgust. I have not now to touch 
 the chords of an angry passion in those that 
 hear me, nor have I the terror of thinking, that 
 if those chords cannot be snapt by the stroke, 
 they will be only provoked into a more instigated 
 vibration. Whatever I address to the Court in 
 point of law, or to the jury in point of fact, will 
 be heard not only with patience, but with an 
 
480 ME. cueean's speech on the 
 
 anxious desire to supply what may be defective 
 in the defence. 
 
 This happy change in the minds and feehngs of 
 all men is the natural consequence of that system 
 of mildness and good temper which has been 
 recently adopted, and which I strongly exhort you, 
 gentlemen of the jury, to imitate, and to improve 
 upon, that you may thereby demonstrate to our- 
 selves, to Great Britain, and to the enemy, that we 
 are not that assemblage of fiends which we have 
 been alleged to be, unworthy of the ordinary privi- 
 lege of regular justice or the lenient treatment of 
 a merciful government. 
 
 It is of the utmost importance to be on your 
 guard against the wicked and mischievous represen- 
 tation of the circumstances which call you noAV 
 together; you ought not to take from any un- 
 authenticated report those facts which you can 
 have directly from sworn evidence. 
 
 I have heard much of the dreadful extent of the 
 conspiracy agamst this country — of the narrow 
 escape of the government. You now see the fact 
 as it is. By the judicious adoption of a mild and 
 conciliatory system of conduct, what was six years 
 ago a formidable rebellion, has now dwindled down 
 to a drunken riotous insurrection, disgraced, cer- 
 tainly, by some odious atrocities; its objects, 
 whatever they were, were, no doubt, highly crimi- 
 nal, but as an attack upon the state, of the most 
 contemptible insignificance. I do not wonder that 
 
TEIAL or OWEN IQEWAN, 1803. 481 
 
 the patrons of burning and torture should be vexed 
 that their favourite instruments were not employed 
 in recruiting for the rebellion. I have no doubt 
 that had they been so employed, the effect would 
 have followed; and that an odious, drunken insur- 
 rection would have been easily swelled into a for- 
 midable rebelhon. Nor is it strange that persons 
 so mortified should vent themselves in wanton, 
 exaggerated misrepresentation, and in unmerited 
 censure — in slandering the nation in the person of 
 the Viceroy, and the Viceroy in the character of 
 the nation — and that they should do so, without 
 considering that they were weakening the common 
 resources against the common danger, by making 
 the different parts of the empire odious to each 
 other, and by holding out to the enemy, and falsely 
 holding out, that we were too much absorbed in 
 civil discord to be capable of effectual resistance. 
 In making this observation, my wish is merely 
 to refute a slander upon my country. I have no 
 pretension to be the vindicator of the Lord Lieute- 
 nant of Ireland, whose person I do not know that 
 I have ever seen. At the same time, when I am so 
 necessarily forced upon the subject, I feel no dis- 
 position to conceal the respect and satisfaction 
 with which I see the King's representative comport 
 himself as he does, at a crisis of no Httle anxiety, 
 though of no considerable danger, if we may be- 
 lieve the evidence we have heard. I think it was a 
 proof of his Excellency's firmness and good sense, 
 
 31 
 
482 ME. cueean's speech on the 
 
 not to discredit his own opinion of Ms confidence 
 in the pubhc safety, by an ostentations display of 
 unnecessary open preparation; and I think he did 
 himself equal honour by preserving his usual temper, 
 and not suffering himself to be exasperated by the 
 event, when it did happen, into the adoption of any 
 violent or precipitate measures. 
 
 Perhaps, I may even be excused if I confess that 
 I was not wholly free from some professional vanity, 
 when I saw that the descendant of a great lawyer* 
 was capable of remembering, what, without the 
 memory of such an example, he perhaps might not 
 have done, that even in the moment of peril, the 
 law is the best safeguard of the constitution. At 
 all events, I feel, that a man, who at all times has 
 so freely censured the extravagancies of power and 
 force, as I have done, is justified, if not bound, by 
 ■consistency of character, to give the fair attesta- 
 tion of his opinion to the exercise of wisdom and 
 humanity, wherever he finds them, whether in a 
 friend or in a stranger. 
 
 I hope, that these preliminary observations are 
 not wantonly and irrelevantly delaying you from 
 the question which you are to try, and wliich I am 
 ready to enter into; but there still remains a cir- 
 cumstance to be observed upon for a moment be- 
 fore you proceed to the real subject of your inquiry, 
 the guilt or innocence of the prisoner, the fact 
 that has been so impressively stated — the never 
 
 * Lord Hardwicke, 
 
TEIAL OP OWEN KIEWAN, 1803. 483 
 
 to be too much lamented fate of that excellent, 
 man, Lord Kilwarden, whose character was as 
 marked by the most scrupulous anxiety for justice 
 as by the mildest and tenderest feelings of huma- 
 nity. 
 
 Let us not wantonly slander the character of 
 the nation, by giving any countenance to the 
 notion, that the horror of such a crime could be 
 extended farther than the actual perpetrators of 
 the deed. The general indignation, the tears that 
 were shed at the sad news of his fate, show that 
 we are not that nest of demons on whom any 
 general stigma could attach from such an event; 
 the wicked wretch himself, perhaps, has cut oif 
 the very man, through whose humanity he might 
 have escaped the consequences of other crimes; 
 and, by a hideous aggravation of his guilt, has 
 given another motive to Providence to trace the 
 murderer's steps , and secure the certainty of his 
 punishment. But on this occasion, the jury should 
 put it out of their minds, and think nothing of 
 that valuable man, save his last advice, "That no 
 person should perish but by the just sentence of 
 the law;" and that advice I hope you will honour, 
 not by idle praise, but by strict observance. 
 
 As to the evidence, give me leave to advert to 
 one circumstance which ought to be removed from 
 your minds; it was adverted to before, and I do 
 not believe it was resisted by the officers of the 
 crown: it occurred in the former case. No act of 
 
 31* 
 
484 ME. cueban's speech on the 
 
 parliament or commission under the great seal can 
 be evidence in such a case as this. 
 
 Mr. Attorney-General— My lord, I hope Mr. Curean will ex- 
 cuse me for interrupting him. No allusion was made to the 
 act of parliament or the commission in this case; and although 
 I did advert to them in the former, no attempt was made to 
 rely upon them as evidence. 
 
 Mr. CuBEAN — I mentioned the circumstance in 
 the confidence that it would be given up as not 
 applicable in evidence, and the learned gentleman 
 will please to recollect, that he referred to the first 
 statement made by him, and even to the verdict 
 found yesterday, and therefore it is right upon my 
 part to take notice of that which might make an 
 impression upon the jury. 
 
 Lord Norhury — This much we must say, that no notice has 
 been taken by the Bench of any act of parliament or any other 
 document but what has been proved in evidence before us. 
 
 Mr. CuEEAN — If I had not been interrupted by 
 the anxiety of the Attorney -General, I should 
 have added, that as the statute, if offered, would 
 not be evidence, much less was the statement 
 evidence. He also suggested that notoriety would 
 be evidence; but however that may be with re- 
 spect to a grand jury, it can have no influence 
 with a petit jury. It may as well be said, that the 
 notoriety of a man having committed a crime is 
 evidence of his guUt. Notoriety is at best another 
 name for reputation, which cannot even by law 
 be given in evidence in any crimmal case, and 
 
TRIAL OF OWEN KIBWAN, 1803. 485 
 
 whicli, a fortiori, could not sustain a verdict of 
 conviction. 
 
 Mr. Justice Pinuoane — Public war is always taken from 
 notoriety. 
 
 Mr. CuBEAN- — But I do not think, that insur- 
 rection can take its character of innocence or guilt 
 from notoriety. And I will add to the jury what 
 I am certain will meet the acquiescence of the 
 Bench, that though the jury should leave their 
 homes without any doubt of the fact, yet it is 
 their duty to forget the notoriety, and, attending 
 to their oaths, to decide according to the evidence, 
 the probability of such a conspiracy at the present 
 time. 
 
 It is clear from the evidence that it could not 
 be imputed to any particular sect, or party, or 
 faction; because no sect or faction could fail, had 
 they acted in it, of engaging one hundred times 
 the number of deluded instruments in their design. 
 
 We may then fairly ask, is it likely that the 
 country at large, setting even apart all moral tie 
 of duty, or allegiance, or the difficulty, or the 
 danger, could see any motive of interest to re- 
 commend to them the measure of separating from 
 England, or fraternizing with France? Is there 
 any description of men in Ireland who could 
 expect any advantage from such a change? And 
 this reasoning is more pertinent to the question, 
 because politics are not now, as heretofore, a 
 dead science, in dead language;, they have now 
 
486 ME. cueran's speech on the , 
 
 feecome the subject of the day, vernacular and 
 universal: and tlie repose wliicli the late system 
 of Irish government gave the people for reflec- 
 tion, has enabled them to consider their own con- 
 dition, and what they, or any other country, could 
 have to hope from France, or rather from its 
 present master. I scorn to allude to that person- 
 age, merely to scold or to revile him: unbecom- 
 ing obloquy may show that we do not love the 
 object, but certainly not that we do not fear him. 
 Buonaparte, a stranger, an usurper, getting pos- 
 session of a numerous, proud, volatile, and capri- 
 cious people; getting that possession by military 
 force, able to hold it only by force, to secure his 
 poAver, found, or thought he found, it necessary 
 to abohsh aU religious estabhshments, as well as 
 all shadow of freedom. He has completely sub- 
 jugated all the adjoining nations. Now, it is clear 
 that there are but two modes of holding states, 
 or the members of the same state, together; 
 namely, community of interest, or predominance 
 of force. The former is the natural bond of the 
 British empire; their interest, their hopes, their 
 dangers, can be no other than one and the same, 
 if they are not stupidly bHnd to their owoi situa- 
 tion; and stupidly bhnd indeed must they be, and 
 justly must they incur the inevitable consequences 
 of that blindness and stupidity, if they have not 
 fortitude and magnanimity enough to lay aside 
 those mean and narrow jealousies which have 
 
TRIAL OF OWEN KIBWAN, 1803. 487 
 
 Litherto prevented that community of interest and 
 unity of effort, by which alone we can stand, and 
 without which we must fall together. 
 
 But force only can hold the acquisitions of the 
 French Consul. What community of interest can 
 he have with the different nations that he has 
 subdued and plundered? Clearly none. Can he 
 venture to establish any regular and protected 
 system of religion among them? Wherever he 
 erected an altar, he would set up a monument of 
 condemnation and reproach upon those wild and 
 fantastic speculations which he is pleased to 
 dignify with the name of philosophy, but which 
 other men, perhaps, because they are endowed 
 with a less aspiring intellect, conceive to be a 
 desperate anarchical atheism, giving to every man 
 a dispensing power for the gratification of his 
 passions, teaching him that he may be a rebel to 
 his conscience with advantage, and to his God, 
 with impunity. 
 
 Just as soon would the government of Britain 
 venture to display the crescent in its churches, as 
 an honorary member of all faiths show any reve- 
 rence to the cross in his dominions. 
 
 Apply the same reasoning to Hberty: can he 
 venture to give any reasonable portion of it to 
 his subjects at home, or his vassals abroad? The 
 answer is obvious: sustained merely by military 
 force, his unavoidable pohcy is to make the army 
 everything, and the people nothing. If he ventured 
 
488 ME. curban's speech on the 
 
 to elevate his soldiers into citizens, and Lis 
 wretched subjects into freemen, he would form a 
 confederacy of mutual interest between both, 
 against which he could not exist a moment. 
 
 If he relaxed in hke manner with Holland, or 
 Belgium, or Switzerland, or Italy, and withdrew 
 his armies from them, he would excite and make 
 them capable of instant revolt. There is one 
 circumstance which just leaves it possible for him 
 not to chain them down still more rigorously than 
 he has done, and that is, the facihty with which 
 he can pour military reinforcements upon them, 
 in case of necessity. But destitute as he is of a 
 marine, he could look to no such resource with 
 respect to any insular acquisition; and of course 
 he should guard against the possibiUty of danger, 
 by so complete and merciless a thraldom as 
 would make an effort of resistance physically 
 impossible. 
 
 Perhaps, my lords, and gentlemen, I may be' 
 thought the apologist, instead of the reviler of 
 the ruler of France. I affect not either character 
 — I am searching for the motives of his conduct, 
 and not for the topics of his justification. I do 
 not affect to trace those motives to any depravity 
 of heart or of mind, which accident may have 
 occasioned for a season, and which reflection or 
 compunction may extinguish or aUay, and thereby 
 make him a completely different man, with respect 
 to France and to the -SNOrld; I am acting more 
 
TEIAL OF OWEN KIRWAN, 1803. 489 
 
 fairly and more usefully by my country, when I 
 show, that his conduct must be so swayed by the 
 permanent pressure of his situation, by the con- 
 trol of an unchangeable and inexorable necessity, 
 that he cannot dare to relax or relent, without 
 becoming the certain victim of his own humanity 
 or contrition. 
 
 I may be asked,, are these merely my own spe- 
 culations, or have others in Ireland adopted 
 them? I answer freely, non mens hie sermo est. It 
 is, to my own knowledge, the result of serious 
 reflection in numbers of our countrymen. In the 
 storm of arbitrary sway, in the distraction of 
 torture and suffering, the human mind had lost its 
 poise and its tone, and was incapable of sober 
 reflection; but, by removing those terrors from it, 
 by -holding an even hand between aU parties, by 
 disdaining the patronage of any sect, or faction, 
 the people of Ireland were left at liberty to con- 
 sider her real situation and interest; and happily 
 for herself, I trust in God, she has availed herself 
 of the opportunity. 
 
 With respect to the higher orders, even of 
 those who thought they had some cause to com- 
 plain, I know this to be the fact; they are not so 
 bhnd as not to see the difference between being 
 proud, and jealous, and punctilious in any claim 
 of privilege or right between themselves and their 
 fellow-subjects, and the mad and desperate depra- 
 vity of seeking the redress of any dissatisfaction 
 
490 MR. cueean's speech on the 
 
 that tliey might feel, by an appeal to force, or by 
 the dreadful recourse to treason and to blood. 
 
 As to the humbler orders of our people, for 
 whom I confess I feel the greatest sympathy, be- 
 cause there are more of them to be undone, and 
 because, from want of education, they must be 
 more liable to delusion; I am satisfied the toj)ics to 
 which I have adverted, apply with still greater 
 force to them, than to those who are raised above 
 them. 
 
 I have not the same opportunity of knowing 
 their actual opinions; but if their opinions be 
 other than I think they ought to be, would to 
 Grod they were present in this place, or that I 
 had the opportunity of going into their cottages 
 — and they well know I should not disdain to 
 visit them — and to speak to them the language 
 of affection and candour on the subject; I should 
 have httle difficulty in showing to their quick and 
 apprehensive minds, how easy it is, when the 
 heart is incensed, to confound the evils which are 
 inseparable from the destiny of imperfect man, 
 with those which arise from the faults or errors 
 of his political situation. I would put a few 
 questions to their candid and unadulterated sense. 
 I would ask them, — ^Do you think that you have 
 made no advance to civil prosperity within the 
 last twenty years? Are your opinions of modern 
 and subjugated France the same that you enter- 
 tained of popular and revolutionary France fourteen 
 
TEIAIi OP OWEN KIEWAN, 1803. 491 
 
 years ago? Have you any hope, that if the First 
 Consul got possession of your island, he would 
 treat you half so weU as he does those countries 
 at his door, whom he must respect more than he 
 can respect or regard you? 
 
 And do you know how he treats those unhappy 
 nations? You know that in Ireland there is little 
 personal wealth to plunder, that there are few 
 churches to rob. Can you then doubt that he 
 would reward his rapacious generals and soldiers 
 by parcelling out the soil of the island among 
 them, and by dividing you into lots of serfs, to 
 till the respective lands to which you belong, or 
 sending you as graziers to enjoy the rocks of 
 Malta and Gibraltar? Can you suppose that the 
 perfidy and treason of surrendering your country 
 to an invader, would, to your new master, be any 
 pledge of your new allegiance? Can you suppose 
 that while a single French soldier was willing to 
 accept an acre of Irish ground, that he would 
 leave that acre in the possession of a man, who 
 had shown himself so wickedly and so stupidly 
 dead to the suggestions of the most obvious inte- 
 rest, and to the ties of the most imperious moral 
 obligations? 
 
 To what do you look forward with respect to 
 the aggrandizement of your sect? Are you Pro- 
 testants? he has abolished Protestantism with 
 Christianity. Are you Cathohcs? do you think he 
 wiU raise yoii to the level of the Pope? Perhaps, 
 
492 ME. cueean's speech on the 
 
 and I think, he would not; but, if he did, could 
 you hope more privilege than he has left his 
 Holiness? And what privilege has he left him? he 
 has reduced his religion to be a mendicant for 
 contemptuous toleration, and he has reduced his 
 person to beggary and to rags. 
 
 Let me ask you a further question. Do you 
 think he would feel any kind-hearted sympathy 
 for you? Answer yourselves by asking, what 
 sympathy does he feel for Frenchmen, whom he 
 is ready by thousands to bury in the ocean, in the 
 barbarous gambling of his wild ambition? What 
 sympathy, then, could bind him to you? He is not 
 your countryman. The scene of your birth and 
 your childhood is not endeared to his heart, by 
 the reflection, that it was also the scene of his: he 
 is not your fellow -Christian; he is not, therefore, 
 bound to you by any similarity of duty in the 
 world, or by any union of hope beyond the grave. 
 What, then, could you suppose the object of his 
 visit, or the consequence of his success? Can you 
 be so foolish as not to see, that he would use 
 you as slaves, while he held you; and that when 
 he grew weary, which he soon would become, of 
 such a worthless and precarious possession, he 
 would carry you to market in some treaty of 
 peace, barter you for some more valuable con- 
 cession, and surrender you to expiate, by your 
 punishment and degradation, the advantage you 
 had given him by your follies and your crimes. 
 
TRIAL or OWEN KIEWAN, 1803. 493 
 
 There is another topic on which a few words 
 might be addressed to the deluded peasant of this 
 country: he might be asked, — ^What could you 
 hope from the momentary success of any effort 
 to subvert the government by mere intestine con- 
 vulsion? Could you look forward to the hope of 
 liberty or property? Where are the characters, 
 the capacities, and the motives of those that have 
 embarked in those chimerical projects? you see 
 them. a despicable gang of needy adventurers; 
 desperate from guUt and poverty; uncountenanced 
 by a single individual of probity or name; ready 
 to use you as the instruments, and equally ready 
 to abandon you by treachery or flight, as the 
 victims of their crimes. For a short interval, 
 murder and rapine might have their sway; but 
 do not be such fools as to think, that though 
 robbing might make a few persons poor, it could 
 make many rich. 
 
 Do not be so siUy as to confound the destruc- 
 tion of property with the partition of wealth. 
 Small must be your share of the spoil, and short 
 your enjoyment of it. Soon, trust me, very soon, 
 would such a state of things be terminated by the 
 very atrocities of its authors. Soon would you 
 find yourselves subdued, ruined, and degraded. 
 If you looked back, it would be to character de- 
 stroyed, to hope extinguished. If you looked for- 
 ward, you could see only the dire necessity you 
 had imposed upon your governors, of acting towards 
 
494 MR. curran's speech on the 
 
 you with no feelings but those of abhorrence 
 and self-preservation, of ruling you by a system 
 of coercion, of which alone you would be worthy, 
 and of loading you with taxes (that is, selhng the 
 food and raiment which your honest labour might 
 earn for your family,) to defray the expense 
 of that force, by which only you could be re- 
 strained. 
 
 Say not, gentlemen, that I am inexcusably vain 
 when I say, would to God that I had an opportu- 
 nity of speaking this plain, and, I trust, not 
 absurd, language to the humblest orders of my 
 countrymen. When I see what sort of missionaries 
 can preach the doctrines of villainy and folly with 
 success, I cannot think it very vain to suppose, 
 that they would listen with some attention and 
 some respect to a man who was addressing plain 
 sense to their minds, whose whole life ought to 
 be a pledge for his sincerity and affection, who 
 had never in a single instance deceived, or de- 
 serted, or betrayed them, who had never been 
 seduced to an abandonment of their just rights, 
 or a connivance at any of their excesses, that 
 could threaten an injury to their character or their 
 condition. 
 
 But perhaps I have trespassed too much upon 
 your patience, by what may appear a digression 
 from the question. The motive of my doing so, I 
 perceive by your indulgent hearing, you perfectly 
 comprehend. But I do not consider what I have 
 
TBIAI; OP OWEN KIRWAN, 1803. 495 
 
 said as a mere irrelevant digression, with respect 
 to the immediate cause before you. The reasoning 
 comes to this: the present state of this country 
 shows, that nothing could be so stupidly and per- 
 versely wicked as a project of separation, or of 
 French connexion; and, of course, nothing more 
 improbable than the adoption of such a senseless 
 project. If it be then so senseless, and therefore 
 so improbable, how strong ought the evidence to 
 be on which you would be warranted in attesting 
 on your oaths, to England and to France, so 
 odious an imputation on the good sense and 
 loyalty of your country. Let me revert again to 
 the evidence which you have heard to support so 
 incredible a charge. I have already observed on 
 the contemptible smallness of the number, a few 
 drunken peasants, assembled in the outlets; there, 
 in the fury of intoxication, they committed such 
 atrocities as no man can be disposed to defend or 
 to extenuate; and having done so, they flee before 
 a few peace-of&cers, aided by the gallantry of Mr. 
 Justice Drury, who, even if he did retreat, as has 
 been insinuated, has at least the merit of having 
 no wish to shed the blood of his fellow-Christians, 
 and is certainly entitled to the praise of preserv- 
 ing the hfe of a most valuable citizen and loyal 
 subject. 
 
 In this whole transaction, no attempt, however 
 feeble or ill directed, is made on any place belong- 
 ing to or connected with the government. They 
 
496 ME. cubean's speech on the 
 
 never even approach the barrack, the castle, the 
 magazines. No leader whatsoever appears ; no- 
 thing that I can see to call for your verdict, ex- 
 cept the finding the bill, and the uncorroborated 
 statement of the Attorney-General. In that state- 
 ment, too, I must beg leave to guard you against 
 mistake in one or two particulars. As to what he 
 said of my Lord Kilwarden, it was not unnatural 
 to feel as he seemed to do at the recollection, or 
 to have stated that sad event as a fact that took 
 place on that occasion, but I am satisfied he did 
 not state it with the least intention of agitating 
 your passions, or of letting it have the smallest 
 influence on your judgment. 
 
 In your inquiry into a charge of treason, you 
 are to determine upon evidence; and what is there 
 in this case to connect the prisoner with the 
 general plan or the depot which was found? I do 
 not say that the account of these matters was not 
 admissible evidence; but I say, that the existence 
 of these things without a design, or proof of a 
 design, without connexion with the prisoner, can- 
 not affect his, life; for you cannot found a verdict 
 upon construction or suspicion. 
 
 The testimony. of Adams seemed to have been 
 brought forward as evidence of greater cogency. 
 He saw the prisoner go out with a bag half full, 
 and return with it empty. I am at a loss to con- 
 jecture what they would wish you to suppose was 
 contained in it: — but men are seen at his house; 
 
TEIAL or OWEN KIBWAN, 1803. 497 
 
 does it follow that lie was connected with the 
 transactions in Thomas-street? The elder Adams 
 does not appear to have stated any thing material 
 but his own fears. The proclamation may be evid- 
 ence of a treasonable conspiracy existing; but it 
 is no evidence against the prisoner, unless he be 
 clearly connected with it; and in truth when I see 
 the evidence on which you are to decide, reduced 
 to what is legal or admissible, I do not wonder 
 that Mr. Attorney -General himself should, upon 
 the first trial, have treated this doughty rebellion 
 with the laughter and contempt it deserved. 
 
 Where now is this providential escape of the 
 government and the castle? why, simply in this, 
 that nobody attacked either the one or the other, 
 and that there were no persons that could have 
 attacked either. It seems not unlike the escape 
 which a young man had of being shot through 
 the head at the battle of Dettingen, by the provi- 
 dential interference by which he was sent twenty 
 miles off on a foraging party, only ten days be- 
 fore the battle. 
 
 I wish from my heart that there may be now 
 present some worthy gentlemen, who may transmit 
 to Paris a faithful account of what has this day 
 passed. 
 
 If so, I think some loyal absentee may possibly 
 find an account of it in the Publiciste or the Moni- 
 teur, and perhaps somewhat in this way: "On the 
 23rd of July last, a most splendid rebeUion 
 
 32 
 
498 im. cueean's speech on the 
 
 displayed her standard in the metropolis of Ireland, 
 in a part of the city, which, in their language, is 
 called the Pocldle. The band of heroes that came 
 forth at the call of patriotism, capable of bearing 
 arms, at the lowest calculation must have amounted 
 to little less than two hundred persons. The re- 
 bellion advanced with a most intrepid step, till 
 she came to the site of the old Four Courts and 
 Tholsel. There she espied a decayed pillory, on 
 which she mounted, in order to reconnoitre, but 
 she found to her great mortification, that the 
 rebels had staid behind. She therefore judged it 
 right to make her escape, which she effected in a 
 masterly manner down Dirty Lane; the rebels at 
 the same time retiring in some disorder from the 
 •Pocldle, being hard pressed by the poles and 
 lanterns of the watchmen, and being additionally 
 galled by Mr. Justice Drury, who came to a most 
 unerring aim on their rear, on which he played 
 without any intermission, with a spy-glass from 
 his dining-room window. Raro antecedejitem sce- 
 lestum deserait ])aina pede claiido. 
 
 "It is clearly ascertained that she did not appear 
 in her own clothes, for she threw away her regi- 
 mental jacket before she fled, Avhich has been 
 picked up, and is now to be seen at Mr. Carleton's, 
 at sixpence a head for grown persons , and three- 
 pence for a nurse and child. It was thought at 
 first to be the work of an Irish artist, who might 
 have taken measuie in the absence of the wearer; 
 
TEIAL OP OWEN KIBWANj 1803. 499 
 
 but by a bill and receipt found in one of tlie 
 pockets, it appears to have been made by tbe ac- 
 tual body-tailor of her August Highness the Consort 
 of the First Consul. At present it is but poorly 
 ornamented, but is said that the Irish Volunteers 
 have entered into a subscription to trim it, if it 
 shall be ever worn again." 
 
 Happy, most happy, is it for those islands, that 
 those rumours which are so maliciously invented 
 and circulated, to destroy our confidence in each 
 other, to invite attack, and dispirit resistance, turn 
 out, upon inquiry, to be so ludicrous and con- 
 temptible, that we cannot speak of them without 
 laughter, or without wonder that they did not rather 
 form the materials of a farce in a puppet-show, than 
 of a grave prosecution in a court of justice. 
 
 There is still, gentlemen, another topic material 
 to rexnind you of; this is the first trial for treason 
 that has occurred since the union of these islands. 
 No effectual union can be achieved by the mere 
 letter of a statute. Do not imagine that bigotry 
 can blend with liberality, or barbarism with civili- 
 zation. If you wish to be really united with Great 
 Britain, teach her to respect you, and do so by • 
 showing her that you are fit objects of wholesome 
 laws — by showing that you are as capable of rising 
 to a proud equality with her in the exercise of 
 social duties and civil virtues, as every part of the 
 globe has proved you to be in her fleets and her 
 armies; show her that you can try this cause as 
 
 32* 
 
500 MB. cueban's speech on the 
 
 she would try it; that you have too much sense 
 and humanity to be borne away in your verdict 
 by despicable panic, or brutal fury; show her, that 
 in prosecutions by the state, you can even go a 
 step beyond her, and that you can discover and 
 act upon those eternal principles of justice, which 
 it has been found necessary in that country to, 
 enforce by the coercion of law: you cannot but 
 feel that I allude to their statute which requires 
 two witnesses in treason. 
 
 Our statute does not contain that provision; but 
 if it were wise to enact it there as a law, it cannot 
 be other than wise to adopt it here as a principle; 
 unless you think it discreet to hold it out as your 
 opinion, that the life of man is not so valuable 
 here, and ought not to be as secure, as in the other 
 part of the empire; unless you wish to prove your 
 capability of equal rights and equal liberty with 
 Britain, by consigning to the scaffold your miser- 
 able feUow-subject, who if tried in England on the 
 same charge and the same evidence, would by law 
 be entitled to a verdict of acquittal. 
 
 I trust you will not so blemish yourselves — ^I 
 trust you wiU not be satisfied even with a cold 
 imitation of her justice, but on this occasion you 
 will give her an example of magnanimity, by rising 
 superior to the passion or the panic of the moment. 
 
 If in any ordinary case, in any ordinary time, 
 you have any reasonable doubt of guilt, you are 
 bound by every principle of law and justice to 
 
TBIAIi OF OWEN KIRWAK, 1803. 501 
 
 acquit. But I would advise you, at a time like 
 this, rather to be lavish than parsimonious in the 
 application of that principle; even though you had 
 the strongest suspicion of his culpability, I would 
 advise you to acquit; yoii would show your con- 
 fidence in your own strength, that you felt your 
 situation too high to be affected in the smallest 
 degree by the fate of so insignificant an individual. 
 Turn to the miserable prisoner himself — tainted 
 and blemished as he possibly may be, even him you 
 may retrieve to his country and his duty, by a 
 salutary effort of seasonable magnanimity. You 
 will inspire him with reverence for that institution 
 which knows when to spare, as well as when to 
 inflict; and which, instead of sacrificing him to a 
 strong suspicion of his criminality, is determined, 
 not by the belief, but by the possibility of his in- 
 nocence, and dismisses him with indignation and 
 contemptuous mercy. 
 
 An attempt was made to prove that Kirwan slept at home on 
 the 23rd; and witnesses were also examined to prove his general 
 loyalty. Baron George then charged, and in five minutes after, 
 the jury found a verdict of Guilty. He was sentenced on the 
 2nd of September, and hanged in Thomas-street, on the 3rd. 
 
AGAINST ENSIGN JOHN COSTLEY. 
 
 [CONSPIBACY TO MURDEE.] 
 
 SESSIONS-HOUSE, GEEEN-STEEET. 
 
 February 23rd, 1804, 
 
 The following speech is chiefly valuable, as illustrating tho 
 placid and just manner in which so vehement an advocate as 
 CoRRAN could discharge his duty as prosecutor. 
 
 Costley was an ensign in the Eoscommon Militia. 
 
 He was arraigned before Baron George and Mr. Justice Day 
 at Green-st. , Dublin, on the 21st of Eebruary, 1804, on an 
 indictment, charging him and Charles Frazer Erizell with hav- 
 ing conspired to murder the Eev. William Ledwich, parish 
 priest of Eathfarnham, in the county Dublin. Other indict- 
 ments charged burglary in the house of Catherine Byrne, with 
 intent to murder. There was one count for a common assault. 
 
 On Thursday, the 23rd, the trial came on, and Ccirban stated 
 the case for the crown as follows: — 
 
 My Lords, and Gentlemen of the Jury, I am 
 concerned in this cause as counsel for the crown 
 — that is, as counsel for the law and for the pubhc 
 peace, by putting the charge, that has been found 
 by the indictment, into a course of sober, humane, 
 firm, and dispassionate inquiry, before you. Gen- 
 tlemen of the Jury , to enable you to fulfil to the 
 public the awful, heavy, aud severe duty of finding 
 the prisoner at the bar guilty, if he be guilty, and 
 
TRIAL OF JOHN COSTLET, 1804. 503 
 
 that a-wful, solemn, and equally bounden duty you 
 owe to the prisoner himself, to acquit him, if he 
 shall appear to be innocent of the charges brought 
 against him. 
 
 It becomes my duty at present, and painful is 
 that duty, and painful must it be to every man 
 who acts as counsel for the crown against the life 
 of a fellow-subject, painful must it be in proportion 
 to the sad conviction that he feels in his mind that 
 the prosecution must be successful. 
 
 It is my duty, gentlemen of the jury, to apprize 
 you of the nature of the charge , as well as to ap- 
 prize you of the circumstances that will be given 
 in evidence to support that charge, that you may 
 understand, in some previous degree, the law by 
 which you are to be directed, and that you should 
 have some previous knowledge of the nature of 
 the evidence that shall be adduced for the purpose 
 of substantiating that charge. 
 
 The prisoner has been given in charge to the 
 jury on an indictment stating, that he, with others, 
 did conspire to kill and murder William Ledwich, 
 who is prosecutor in this cause. That offence is 
 made capital by the statute laws of the country; 
 and, gentlemen, I would be glad to guard you 
 against a mistake, that in common parlance arises 
 on this subject. A conspiracy to kill and murder 
 does not owe its criminality to the length of time 
 it may occupyin its progress, from its first con- 
 ception to its ultimate adoption — a conspiracy niay 
 
504 ME. cueeae's speech on the 
 
 be formed the very instant before the step is taken 
 to put it into effect. If a number of people meet 
 accidentally in the street, and conspire together to 
 kill and murder at the moment, it is as essentially 
 the crime of conspiracy as if it had been intended 
 for a year before, and hatched for that year to the 
 moment of its accompHshment. 
 
 On the charge of burglary alleged against the 
 prisoner at the bar, it becomes requisite to be 
 equally clear and explicit, that you may com- 
 prehend how essential it is, that two circumstances 
 shall go to compose this species of crime, which 
 is also made capital, and consequently hable to the 
 punishment of death. It becomes necessary before 
 you can decide on a verdict of guilt on this indict- 
 ment, that two circumstances shall be proved to 
 your satisfaction. The first of these is, the break- 
 ing open of the dwelling or habitation of any of 
 his Majesty's subjects any time after night-fall; 
 and the next essential ingredient is, that such 
 breaking must have been effected with design or 
 intent to commit a felony. These distinct and 
 separate facts you must combine in proof before 
 the charge of burglary can be sustained; so far, 
 that should you be satisfied that a breaking iuto 
 a dwelling or habitation at a late hour of the night 
 was accomphshed, it becomes necessary, in addi- 
 tion, that you should have as strong and forcible 
 a conviction on your minds, that such brealdng 
 into the house or dweUing was designed and 
 
TEIAL OF JOHN COSTLEY, 1804. 505 
 
 perpetrated with the intent to commit a felony, be- 
 fore you can venture to bring in a verdict of guilty. 
 As to the burglary charged against the prisoner 
 at the bar, you will perceive that the indictment 
 lays the breaking into the habitation of the prose- 
 cutor, with intent to kill and murder him; an act, 
 which, if perpetrated, would constitute a capital 
 felony in itself, and the intention of which, con- 
 nected with the fact of breaking into the house, 
 forms an indictment on grounds sufficiently firm 
 to form the capital crime of burglary. 
 
 It may be equally necessary to hint to you, gen- 
 tlemen of the jury, that the statute which makes 
 burglary a capital offence, does not lay down a 
 distinct species of felony, the commission of which 
 must previously occupy the intention — it does not 
 discriminate between the intention of committing 
 a murder and committing a robbery; so that, on 
 this principle, if you shall reconcile it to your minds 
 in the course of the evidence which shall be ad- 
 duced, that the prisoner at the bar broke into the 
 habitation alluded to, with intent to murder, the 
 crime of burglary is effectually constituted; and 
 you are bound, by the sacred oath you have taken, 
 to bring in a sentence of conviction. But if the 
 evidence shall not appear to you sufficiently strong 
 to reconcile your consciences to the belief, that 
 the prisoner at the bar, let the fact of his breaking 
 open the house be ever so incontrovertible, did 
 form the design or intention to commit the murder 
 
506 ME. cueean's speech on the 
 
 alleged, then, gentlemen of the jury, your under- 
 standings will suggest to you, that it becomes an 
 imperious duty on you to bring in a verdict of 
 acquittal. 
 
 I feel it is my duty to make these preliminary 
 observations by which you might at least be directed 
 to that more minute and precise exposition of the 
 law, which you will have the satisfaction of hear- 
 ing from the court. I also feel, that the man who 
 stands up in a court of justice , owes to the jury 
 whom he addresses, the duty of elucidating any 
 matter of law suggested by the nature of the case 
 in which he becomes an advocate, and a studied 
 anxiety not to aggravate or strain its circumstances 
 beyond a fair and liberal construction of that law. 
 I repeat, gentlemen, that I feel it becomes a duty 
 equally awful and imperious on his conscience, to 
 view the object of explanation in all its points and 
 bearings, with uniform and impartial investigation. 
 The more momentous and important the object of 
 inquiry becomes, the more ardent must his anxiet) 
 be not to mislead; and that delicacy, which the 
 advocate must feel in a predicament of this nature, 
 becomes a principle to govern the consciences 
 and the oaths of persons delegated to expound the 
 law in more exalted situations. 
 
 I have hitherto stated two material charges 
 against the prisoner at the bar, in which your 
 judgments will be exercised. Those of a less 
 important or inferior nature, I do not think it 
 
TEIAL OP JOHN COSTLEY, 1804, 507 
 
 equally necessary to dilate upon; and -will there- 
 fore proceed to state the particular circumstances 
 that attended this extraordinary and unfortunate 
 transaction. 
 
 I understand, gentlemen of the jury, it will 
 appear in evidence before you, that on the night 
 of the 3rd of the present month of February, 
 about the hour of ten o'clock, this attempt was 
 made on the Eev. "William Ledwich, a Roman 
 Catholic clergyman of the parish of Eathfarnham, 
 where he has resided for more than twenty-five 
 years, an edifying and respected pattern of inno- 
 cence of heart, mildness of manners, of exemplary 
 piety, and conduct the most inoffensive and irre- 
 proachable. 
 
 As this venerated and innocent man was prepar- 
 ing to seek that undisturbed and calm repose, 
 which he should look for, after a conscientious and 
 precise discharge of the functions and duties of 
 the preceding day, he heard a tumultuous noise 
 under the window of the chamber in which he was 
 about to sleep. He natvirally went to the window, 
 which he raised, to see what created the unusual 
 disturbance with which he was annoyed from below, 
 when he recollected a voice, and immediately ask- 
 ed, Is not that Mr. Frizell? He also knew the 
 prisoner by his voice, and asked, "Is not that 
 Ensign Costley?" They answered to their names, 
 and ordered him to come down. Astonished at 
 this kind of proceeding, he asked for what he 
 
508 ME. cuhban's speech on the 
 
 should come doAvn? The reply was, that he must 
 go to the guard-house. Mr. Ledwich began to 
 expostulate. "You know, Mr. FrizeU, that I am an 
 infirm man, and that I am to be at all times found 
 on any occasion for me. I entreat of you not to 
 disturb me this night, and you shall find me punc- 
 tual in attendance at your guard-house on to- 
 morrow." The party below were still vociferous, 
 urging that he must come to the guard-house. This 
 infirm gentleman then put his head out of the 
 window, to try the effect of further entreaty, on 
 which a stroke of a drawn sword was made at him, 
 which fortunately missed his head, but made a 
 deep cut in the window-frame from which he looked 
 out. On this he retired to his room, unconscious 
 how to act, but at length yielded to the half ad- 
 vice, and half persuasions of a fellow-lodger, who 
 was roused by the tumult in the street, and 
 in suspense what opinion to give, as to the most 
 effectual mode for Mr. Ledwich to adopt, in 
 order to save his life. At length he made his 
 way through a back door, and secured a retreat 
 over Lord Ely's park wall, glassed at the top, the 
 sense of peril giving to his feeble bodily powers 
 that concentrated effort which a hard struggle for 
 life will often produce. Having clambered to the 
 top of this wall, he precipitated himself at the other 
 side to a dangerous and most extraordinary depth. 
 Here, it becomes requisite, gentlemen of the jury, 
 to animadvert, but to do it with candour, and not 
 
TEIAL OP JOHN COSTLEY, 1804. 509 
 
 ■with a view to stimulate your indignation, on a 
 military officer, wearing his Majesty's garb, en- 
 trusted with an armed force, for the important 
 purpose of defending his fellow-subjects, and pre- 
 serving the public peace, degrading that com- 
 mission, and disgracing the honour of those forces 
 under his command, by converting the arms given 
 to them for protection into vile instruments of 
 annoyance, seeking by their means to take away 
 a life it was his duty to preserve. Nor is the aggra- 
 vation of this horrible outrage small, when offered 
 against a man advanced in years, infirm in health, 
 a priest in orders, preaching the same faith with 
 others, upon the same authorized system of social 
 duty on this side of the grave, in order to realize 
 those hopes in the next world, given to Christians 
 to entertain by that wise Redeemer, whose last 
 charge, on leaving this earth, tended most sub- 
 limely and emphatically to enforce the obligation 
 of mutual affection between man and man, and 
 whose last awful and divine command was, that 
 we should love one another. 
 
 It is not my custom, however, to say any thing 
 that might embitter the voice of accusation. I 
 know the unhappy circumstances under which the 
 young man at the bar labours; and I have endea- 
 voured, in the conduct of this prosecution, to take 
 off the pressure of that peculiar predicament under 
 which he unfortunately stands. But I cannot per- 
 mit a relaxation of duty so flagrant, from any 
 
510 ME. cueean's speech on the 
 
 individual consideration, let the object of that 
 consideration be what it may. 
 
 When I perceive those violent struggles to distort 
 and tear asunder aU the social ties which bind man 
 to man — not by the wantonness of aggravating 
 description, or offering of cruel taunts at the pri- 
 soner's situation — but by some system of conduct 
 operating as a remote but sure cause of so lament- 
 able an effect, I should think myself indeed an 
 unworthy and unfeeling co-operator in the conduct 
 every honest mind must reprobate, and an accessory 
 to the consequences which flow from it, were I, 
 from the affectation of false feelings of humanity, 
 to sink parts of that detail, which it becomes my 
 duty to disclose. 
 
 I understood that the conduct attributable, and 
 perhaps justly so, to certain parties labouring 
 under the present accusation, might have indicated 
 something hke an excuse under the unhappy pre- 
 text of intoxication. If any of you, gentlemen of 
 the jury, have permitted an opinion to get hold of 
 your understanding, that a voluntary privation of 
 reason amounts to an extenuation of a crime com- 
 mitted, permit me to remove so egregious a mistake 
 from your minds. It is the law of this country, 
 touching the subject of intoxication as apology for 
 crimes, that so far from contributing any excuse 
 or apology for the perpetration of crimes, such 
 state of mind is considered as a high aggravation 
 of any offence committed under its influence. This 
 
TELA.L OF JOHN COSTLEY, 1804. 511 
 
 being the law of the land, you are bound most 
 solemnly on your oaths strictly to abide by it — in 
 deciding by the same law, which unequivocally 
 says, that intoxication is no excuse for or palliation 
 of guilt. I am afraid that circumstances will come 
 out in evidence of complicated aggravation in the 
 offence charged against the prisoner at the bar. 
 It will appear that he ordered a party of the 
 military under his command to fire into the win- 
 dows of the prosecutor's bed-chamber, and that 
 some of the bullets were found lodged in the walls 
 of his apartment, while others passed through the 
 curtains of his bed. It will also appear that other 
 shots took effect in an adjacent apartment, where 
 other lodgers were asleep. If it shall be suggested 
 as a defence of the prisoner's conduct, that he 
 acted, or thought he acted, under the orders of a 
 magistrate, it is a weak pretext and a gross mis- 
 take, to suppose that the company even of a real 
 magistrate, which it appears that Mr. Frizell, 
 however qualified, is not, could give a man sanc- 
 tion to break into a habitation in order to commit 
 a murder. On the contrary it is a most hideous 
 aggravation of such offence. The system of our 
 laws uniting a degree of wisdom and a principle 
 of equity not to be equalled, or perhaps found, in 
 the laws of any other country in the world, divides 
 the criminal code into different branches, and on 
 that principle it is left to the judge to expound 
 the law, while the jury are confined to the 
 
512 ME. CUERAn's speech OS THE 
 
 investigation of facts, on which alone they must de- 
 cide. There may be cases where a higher authority 
 interferes, — cases for which a wise provision is also 
 made by appealing to a branch of the judicial 
 authority, invested with a power to turn off from 
 a culprit, the bitter edge of the law. A portion of 
 that power is delegated in the first instance to 
 persons who soften the rigour of the law, by the 
 emotions peculiar to kind and sympathetic hearts 
 liberally imbued with the finer feehngs of humanity. 
 The judges of the land are therefore wisely per- 
 mitted to exercise those principles of social affec- 
 tions and compassion towards proper objects, which 
 will ultimately terminate with a higher power, who 
 is bound to administer justice in mercy. 
 
 Gentlemen of the Jury, I have endeavoured to 
 state to you those principles and maxims of the 
 criminal laws of your country, by which you 
 cannot fail to perceive the boundaries which the 
 sound policy of our general law has affixed to 
 each department. Finding the facts against the 
 prisoner at the bar, according to the evidence 
 which shall be laid before you, will not preclude 
 him from mercy, should he be conceived a proper 
 subject for it, a consideration which you, as honest 
 and humane men, must feel a superior gratifica- 
 tion in contemplating. But, on the other hand, 
 reflect that it is not because you suspect a culprit, 
 that you must find him guilty; for the wise pohcy 
 of the law itself has it, that the more hideous are 
 
TEIAL OP JOHN COSTLET, 1804. 513 
 
 the circumstances of the offence, so mucli the 
 more shall christian charity induce you to be 
 incredulous as to its perpetration. And, on that 
 principle, the practice of the courts is grounded, 
 which requires that solemn and pathetic appeal 
 to God, from the officer, praying to send the 
 culprit a good deliverance. Therefore, unless a 
 true conviction shall remove ■ all rational doubt 
 from your minds before you take upon you to 
 pass a verdict on the life or Uberty of your fellow- 
 creature, it will be, as I before have stated, your 
 bounden duty unreservedly to acquit. But if con- 
 viction shall supersede all doubt, and clear up aU 
 embarrassment, you are equally bound to consider 
 that pardon and mercy to the culprit are lodged 
 in other breasts than yours. I shall conclude, 
 gentlemen of the jury, with only one observation, 
 that is, in your discussion of the several charges 
 exhibited against the prisoner at the bar, you will 
 not permit anything I have said, or any statement 
 of the evidence I have laid before you, to make 
 an exclusive impression on you. 
 
 The Rev. "William Ledwich proved that on the 3rd of Feb- 
 ruary he was lodging at Catherine Byrne's house at ilathfarn- 
 ham, that about ten o'clock on that night Frizell and Costley, 
 with a party of their yeomen came to* the house, and endea- 
 voured to force him away to the guard-house; that he resisted, 
 ■was struck at with a sword, and finally escaped over Lord Ely's 
 wall at the back of the house. Other witnesses proved the 
 prisoner and his party fired into the house, and also broke the 
 doors and windows to force their way in. 
 
 33 
 
514 TRIAL OP JOHN COSTLEY, 1804. 
 
 Mr. Egan opened the defence, using the cross-examination of 
 the prosecutor's witnesses, to prove that Costley was only drunk 
 and intemperate, and had got into a riot, and called Lord Erris 
 and Colonel Caulfield to testify to his character. After a reply 
 from Mr. M'Nally and a charge from Judge Day, the jury acquit- 
 ted the prisoner on all the charges, except the assault. On that 
 he was found Guilty, and for it he was sentenced to two years' 
 imprisonment, and a trifling fine, 
 
MASSY V. HBADFOET. 
 
 [foe. ceiminal conversation.] 
 
 ENNIS SUMMER ASSIZES. 
 
 Juli/ 27th, 1804, 
 
 The Rev. Charles Massy, second son of Sir Hugh Massy^ 
 Bart., was a clergyman, deriving a large income from church 
 livings. In March, 1796, he married, against his father's wish, 
 a Miss Rosslewin, then eighteen years of age, and of remarlcable 
 beauty. By her he had one son. He was residing, in 1 803, at 
 Doonas, on the Clare bank of the Shannon, about five miles above 
 Limerick. The Marquis of Headfort, with his regiment of 
 Meath Militia, was then quartered in Limerick, his lordship 
 residing in the Earl of Limerick's house. Mr. Massy, when at 
 one time a rector in Meath, had known the dowager Lady 
 Bective and the Headfort family; so, when his wife became 
 acquainted with Lord Headfort in Limerick, he very naturally 
 asked the Marquis to Doonas — his wife was rather fond of 
 society and display, but, then. Lord Headfort was fifty years old. 
 
 The result of the visit was, that on a Sunday morning after 
 the Christmas of 1803, while Mr. Massy was performing service 
 in his church, Mrs. Massy eloped with Lord Headfort, and for 
 this the action was brought. Damages were laid at €40,000, and 
 the case was tried at the Clare Summer Assizes before Baron 
 Smith and a special jury. 
 
 An immense bar was employed for the plaintiff; they were — . 
 John Philpot Curran, Bartholomew Hoare, Henry Deane Grady, 
 Thomas Carey, John White, Amory Hawksworth, William 
 O'Regan, Thomas Lloyd, William M'Mahon, andGeorgeBennet, 
 Esqrs.; agent, Anthony Hogan, Esq. The Counsel for the 
 
 33* 
 
516 ME. cuekan's speech on tiie 
 
 defence were George Ponsonty, Thomas Quin, Thomas Groold, 
 John Francks, Charles Burton, Richard Pennefather, Esqrs.; 
 agent, James Simms, Esq. 
 
 Mr. George Bennet opened the pleadings. Mr. Hoare stated 
 the case, describing Lord Headfort as "this hoary veteran in 
 whom, like Etna, the snow above did not quench the flames 
 below." His speech throughout is masculine, original, and to 
 the point; while his Cornish plunderer has been cited as an 
 instance of the highest eloquence. Here it is: — 
 
 "The noble lord proceeded to the completion of his diabolical 
 project, not with the rash precipitancy of youth, but with the 
 most cool and deliberate consideration. The Cornish plunderer, 
 intent on spoil, callous to every touch of humanity, shrouded 
 in darkness, holds out false lights to the tempest-tossed vessel, 
 and lures her and her pilot to that shore upon which she must 
 be lost for ever, the rock unseen, the ruffian invisible, and 
 nothing apparent but the treacherous signal of secarity and 
 repose; so this prop of the throne, this pillar of the state, this 
 stay of religion, the ornament of the peerage, this common pro- 
 tector of the people's privileges and of the crown's prerogatives, 
 descends from these high grounds of character to muffle himself 
 in the gloom of his own base and dark designs, to play before 
 the eyes of the deluded wife and the deceived husband the 
 falsest lights of love to the one, and of friendly and hospitable 
 regards to the other, until she is at length dashed upon that 
 hard bosom, where her honour and happiness are wrecked and 
 lost for ever; the agonized husband beholds the ruin with those 
 sensations of misery and of horror which you can better feel 
 than I describe; she, upon whom he had embarked all his hopes 
 and all his happiness in this life, the treasure of all his earthly 
 felicities, the rich fund of all his hoarded joys, sunk before his 
 eyes into an abyss of infamy, or if any fragment escape, escaping 
 to solace, to gratify, to enrich her vile destroyer." 
 
 Five witnesses proved the marriage and elopement, the hap- 
 piness of Mr. Massy's home, and the fortune of Lord Headfort. 
 
CASE OP MASSY V. HEADFOET. 517 
 
 Mr. Quin opened the defence, not denying the fact, but the 
 injury. He alleged that Mrs. Massy's character was so light 
 that it was gross folly or worse of her husband, to have thrown 
 her into Lord Headfort's way. To prove this he examined 
 Colonel Pepper, Captain Charleton, and Mr. George Evans 
 Bruce.* Mr. Ponsonby followed on the same side, with great 
 skill, and then Gueban said: — 
 
 Nevee so clearly as in the present instance have 
 I observed that safeguard of justice, which Pro- 
 vidence hath placed in the nature of man. Such 
 is the imperious dominion with which truth and 
 reason wave their sceptre over the human intellect, 
 that no solicitations, however artful, no talent, 
 however commanding, can reduce it from its alle- 
 giance. In proportion to the humility of our sub- 
 mission to its rule, do we rise into some faint 
 emulation of that ineffable and presiding divinity, 
 whose characteristic attribute it is, to be coerced 
 and bound by the inexorable laws of its own 
 nature, so as to be all -wise and all -just from ne- 
 cessity, rather than election. You have seen it in 
 the learned advocate,! who has preceded me, 
 most peculiarly and strikingly illustrated. You 
 have seen even his great talents, perhaps the first 
 in any country, languishing under a cause too 
 weak to carry him, and too heavy to be carried 
 by him. He was forced to dismiss his natural 
 
 * struck at for (amongst other things), his evidence in this 
 case, hy Harry Deane Grady in the "Nosegay," a once celebrated, 
 hut now happily forgotten satire. 
 
 f Mr. Ponsonby. 
 
518 ME. cueban's speech on the 
 
 candour and sincerity, and having no merits in 
 his case, to substitute the dignity of his own 
 manner, the resources of his own ingenuity, against 
 the overwhelming difficulties with which he was 
 surrounded. "Wretched chent! unhappy advocate! 
 what a combination do you form! But such is the 
 condition of guilt, its commission mean and tre- 
 mulous, its defence artificial and insincere, its 
 prosecution candid and simple, its condemnation 
 dignified and austere. Such has been the defend- 
 ant's guilt, such his defence, such shall be my 
 address, and such, I trust, your verdict. 
 
 The learned counsel has told you, that this un- 
 fortunate woman is not to be estimated at forty 
 thousand pounds. Fatal and unquestionable is the 
 truth of this assertion. Alas! gentlemen, she is no 
 longer worth any thing — faded, fallen, degraded, 
 and disgraced, she is worth less than nothing! 
 But it is for the honour, the hope, the expecta- 
 tion, the tenderness, and the comforts that have 
 been blasted by the defendant, and have fled for 
 ever, that you are to remunerate the plaintiff, by 
 the punishment of the defendant. It is not her 
 present value which you are to weigh, but it is 
 her value at that time, when she sat basking in a 
 husband's love, with the blessing of heaven on her 
 head, and its purity in her heart: when she sat 
 amongst her family, and administered the morality 
 of the parental board: estimate that past value, 
 compare it with its present deplorable diminution, 
 
CASE OF MASSY V. HEADrOET, ■ 519 
 
 and it may lead you to form some judgment of 
 the severity of the injury, and the req[uisite extent 
 of the compensation. 
 
 The learned counsel has told you, you ought to 
 be cautious, because your verdict cannot be set 
 aside for excess. The assertion is just; but has he 
 treated you fairly by its application? His cause 
 would not allow him to be fair — for, why is the 
 rule adopted in this single action? Because this 
 being peculiarly an injury to the most susceptible 
 of all human feelings — it leaves the injury of the 
 husband to be ascertained by the sensibihty of 
 the jury, and does not presume to measure the 
 justice of their determination by the cold and 
 chilly exercise of his own discretion. 
 
 In any other action it is easy to calculate. If a 
 tradesman's arm is cut off, you can measure the 
 loss which he has sustained; but the wound of 
 feeling, and the agony of the heart cannot be 
 judged by any standard with which I am 
 acquainted. And you are unfairly dealt with, 
 when you are called on to appreciate the present 
 suffering of the husband, by the present guilt, 
 delinquency, and degradation of his wife. As well 
 might you, if called on to give compensation to a 
 man for the murder of his dearest friend, find the 
 measure of his injury, by weighing the ashes of 
 the dead. But it is not, gentlemen of the jury, by 
 weighing the ashes of the dead, that you would 
 estimate the loss of the survivor. 
 
520 MB. curean's speech on the 
 
 The learned counsel has referred you to other 
 cases, and other countries, for instances of mo- 
 derate verdicts. I can refer you to some authentic 
 instances of just ones. In the next country, 
 £l 5,000 against a subaltern officer. In Travers 
 andM'Carthy, £5,000 against a servant. In Tighe 
 against Jones, £lO,000 against a man not worth 
 a shilling. 
 
 "What then ought to be the rule, where rank, 
 and power, and wealth, and station, have com- 
 bined to render the example of his crime more 
 dangerous — to make his guilt more odious — to 
 make the injury to the plaintiff more giievous, be- 
 cause more conspicuous? I affect no levelling fami- 
 liarity, when I speak of persons in the higher ranks 
 of society — distinctions of orders are necessary, and 
 I always feel disposed to treat them with respect 
 — but when it is my duty to speak of the crimes 
 by which they are degraded, I am not so fastidious 
 as to shrink from their contact, Avhen to touch 
 them is essential to their dissection. In this action, 
 the condition, the conduct, and the circumstances 
 of the party, are justly and pecuharly the objects 
 of your consideration. 
 
 Who are the parties? 
 
 The plaintiff, young, amiable, of family, and 
 education. Of the generous disinterestedness of 
 his heart you can form an opinion even from the 
 evidence of the defendant, that he declined an 
 alliance, which would have added to his fortune 
 
CASE OP MASSY V. HEADPOET. 521 
 
 and consideration, and whicli he rejected for an 
 unportioned union with his present wife. She, too, 
 at that time, was young, beautiful and accom- 
 plished; and felt her affection for her husband 
 increase in proportion as she remembered the 
 ardour of his love, and the sincerity of his 
 sacrifice. 
 
 Look now to the defendant! — I blush to name 
 him ! I blush to name a rank which he has 
 tarnished — and a patent that he has worse than 
 cancelled. High in the army — high in the state — 
 the hereditary councillor of the kuig — of wealth 
 incalculable: — and to this last I advert with an 
 indignant and contemptuous satisfaction, because, 
 as the only instrument of his guilt and shame, it 
 will be the means of his punishment, and the 
 source of compensation for his guilt. 
 
 But let me call your attention, distinctly, to the 
 questions you have to consider. The first is the 
 fact of guilt. Is this noble lord guilty? His counsel 
 knew too well how they would have mortified his 
 vanity, had they given the smallest reason to doubt 
 the splendour of his achievement. Against any 
 such humiliating suspicion he had taken the most 
 studious precaution by the publicity of the exploit. 
 And here, in this court, and before you, and in 
 the face of the country, has he the unparalleled 
 effrontery of disdaining to resort even to a profes- 
 sion of innocence. 
 
 His guilt established, your next question is, the 
 
522 ME. cueean's speech on the 
 
 damages you should give. You have been told, 
 that the amount of damages should depend on 
 circumstances. You will consider these circum- 
 stances, whether of aggravation or mitigation. 
 
 His learned counsel contend, that the plaintiff 
 has been the author of his own suffering, and 
 ought to receive no compensation for the ill con- 
 sequences of his own conduct. In what part of 
 evidence do you find any foundation for that as- 
 sertion? He indulged her, it seems, in dress — 
 generous and attached, he probably indulged her 
 in that point beyond his means; and the defendant 
 now impudently calls on you to find an excuse for 
 the adulterer in the fondness and hberality of the 
 husband. 
 
 But you have been told, that the husband con- 
 nived. Odious and impudent aggravation of injury, 
 to add calumny to insult, and outrage to dishonour. 
 From whom, but a man hackneyed in the paths of 
 shame and vice — from whom, but from a man hav- 
 ing no compunctions in his own breast to restrain 
 him, could you except such brutal disregard for 
 the feelings of others; from whom, but from the 
 cold-blooded veteran seducer — from what, but 
 from the exhausted mind, the habitual community 
 with shame — from what, but the habitual con- 
 tempt of virtue and of man, could you have 
 expected the arrogance, the barbarity, and folly 
 of so foul, because so false an imputation? He 
 should have reflected, and have blushed, before he 
 
CASE OF MASSY V. HEADFOET. 523 
 
 suffered so vile a topic of defence to have passed 
 his lips. 
 
 But ere you condemn him, let him have the 
 benefit of the excuse, if the excuse be true. 
 
 You must have observed how his counsel flut- 
 tered and vibrated, between what they call con- 
 nivance and injudicious confidence; and how, in 
 affecting to distinguish, they have confounded 
 them both together. 
 
 If the plaintiff has connived, I freely say to you, 
 do not reward the wretch who has prostituted his 
 wife, and surrendered his own honour; do not com- 
 pensate the pander of his own shame, and the 
 willing instrument of his own infamy. But as there 
 is no sum so low to which that defence, if true, 
 ought not to reduce your verdict, so neither is any 
 so high to which such a charge ought not to in- 
 flame it, if the charge be false. 
 
 Where is the single fact in this case on which 
 the remotest suspicion of connivance can be hung? 
 Odiously has the defendant endeavoured to make 
 the softest and most amiable feehngs of the heart 
 the pretext of his slanderous imputations. An an- 
 cient and respectable prelate, the husband of his 
 wife's sister, is chained down to the bed of sick- 
 ness, perhaps to the bed of death; in that distress- 
 ing situation, my client suffered that wife to be 
 the bearer of consolation to the bosom of her 
 sister; he had not the heart to refuse her, and the 
 softness of his nature is now charged on him as a 
 
524 ME. cueean's speech on the 
 
 crime. He is now insolently told, that he connived 
 at his dishonour, and that he ought to have fore- 
 seen, that the mansion of sickness and sorrow 
 would have been made the scene of assignation 
 and of guilt. On tliis charge of connivance I wiU. 
 not further weary you or exhaust myself; I will 
 add nothing more, than that it is as false as it is 
 impudent, that in the evidence it has not a colour 
 of support; and that by your verdict you should 
 mark it with reprobation. 
 
 The other subject, namely, that he was indis- 
 creet in his confidence, does, I think, call for some 
 discussion, for I trust you see that I affect not 
 any address to your passions, by which you may 
 be led away from the subject — I presume merely 
 to separate the parts of this affecting case, and to 
 lay them item by item before you, with coldness 
 of detail and not with any colouring or display of 
 fiction or of fancy. Honourable to himself was his 
 unsuspecting confidence, but fatal must we admit 
 it to have been, when we look to the abuse com- 
 mitted upon it. But where was the guilt of this 
 indiscretion? He did admit this noble lord to pass 
 his threshold as his guest. Now the charge wliich 
 this noble lord builds on this indiscretion is, "Thou 
 fool! thou hadst confidence in my honour, and that 
 was a guilty indiscretion: thou simpleton! thou 
 thoughtest that an admitted and cherished guest 
 would have respected the laws of honour and 
 hospitality, and thy indiscretion was guilt: thou 
 
CASE OF MASSY V. HEADFOET. 525 
 
 though test that he would have shrunk from the 
 meanness and barbarity of requiting kindness with 
 treachery, and thy indiscretion was guilt." 
 
 Grentlemen, what horrid alternative in the treat- 
 ment of wives would such reasoning recommend? 
 Are they to be immured by worse than eastern 
 barbarity? Are their principles to be depraved, 
 their passions sublimated, every finer motive of 
 action extinguished by the inevitable consequences 
 of thus treating them like slaves? Or is a liberal and 
 generous confidence in them to be the passport of 
 the adulterer, and the justification of his crimes? 
 
 Honourably, but fatally for his own repose, he 
 was neither jealous, suspicious nor cruel. He treated 
 the defendant with the confidence of a friend, and 
 his wife with the tenderness of a husband. He did 
 leave to the noble Marquis the physical possibility 
 of committing against him the greatest crime which 
 can be perpetrated against a being of an amiable 
 heart and refined education. In the middle of the 
 day, at the moment of divine worship, when the 
 miserable husband was on his knees, directing the 
 prayers and thanksgiving of his congregation to 
 their God, that moment did the remorseless 
 adulterer choose to carry off the deluded victim 
 from her husband, from her child, from her cha- 
 racter, from her happiness, as if not content to 
 leave his crime confined to its miserable aggrava- 
 tions, unless he gave it a cast and colour of facti- 
 tious sacrilege and impiety. 
 
526 ME. cueean's speech on the 
 
 Oh ! how happy had it been when he arrived at 
 the bank of the river with the ill-fated fugitive, 
 ere yet he had committed her to that boat, of 
 which, hke the fabled bark of Styx, the exile was 
 eternal, how happy at that moment, so teeming 
 with misery and with shame, if you, my lord, had 
 met him, and could have accosted him in the 
 character of that good genius which had aban- 
 doned him. How impressively might you have 
 pleaded the cause of the father, of the child, of the 
 mother, and even of the worthless defendant him- 
 self You would have said: "Is this the requital 
 that you are about to make for respect and kind- 
 ness, and confidence in your honour? Can you 
 deliberately expose this young man, in the bloom 
 of hfe, with all his hopes before him — can you 
 expose him, a wretched outcast from, society, to 
 the scorn of a merciless world? Can you set him 
 adrift upon the tempestuous ocean of his own 
 passions, at this early season, when they are most 
 headstrong; and can you cut him out from the 
 moorings of those domestic obligations by whose 
 cable he might ride at safety from their tur- 
 bulence? Think of, if you can conceive it, what a 
 powerful influence arises from the sense of home, 
 from the sacred religion of the heart in quelling 
 the passions, in reclaiming the wanderings, in cor- 
 recting the discords of the human heart ; do not 
 cruelly take from him the protection of these 
 attachments. 
 
CASE OF MASSY V. HEADFORT. 527 
 
 "But if you have no pity for the father, have 
 mercy at least upon his innocent and helpless child; 
 do not condemn him to an education scandalous 
 or neglected; do not strike him into that most 
 dreadful of all human conditions, the orphanage 
 that springs not from the grave, that falls not from 
 the hand of Providence, or from the stroke of death, 
 but comes before its time, anticipated and inflicted 
 by the remorseless cruelty of parental guilt." 
 
 For the poor victim herself, not yet immolated, 
 while yet balancing upon the pivot of her destiny, 
 your heart could not be cold, nor your tongue be 
 wordless. You would have said to him: "Pause, 
 my lord, while there is yet a moment for reflection. 
 What are your motives, what your views, what your 
 prospects from what you are about to do? You 
 are a manied man, the husband of the most ami- 
 able and respectable of women; you cannot look 
 to the chance of marrying this wretched fugitive; 
 between you and such an event there are two 
 sepulchres to pass. What are your inducements? 
 Is it love, think you? No, do not give that name to 
 any attraction you can find in the faded refuse of 
 a violated bed. Love is a noble and generous 
 passion; it can be founded only on a pure and 
 ardent friendship, on an exalted respect — on an 
 imphcit confidence in its object. Search your heart, 
 examine your judgment, do you find the semblance 
 of any one of these sentiments to bind you to her? 
 What could degrade a mind to which nature or 
 
528 MB. curean's speech on the 
 
 education had given port, or stature, or character, 
 into a friendship for her? Could you repose upon 
 her faith? Look in her face, my lord; she is at this 
 moment giving you the violation of the most sacred 
 of human obligations as the pledge of her fidelity. 
 She is giving you the most irrefragable proof, that 
 as she is deserting her husband for you, so she 
 would without a scruple abandon you for another. 
 Do you anticipate any pleasure you might feel in 
 the possible event of your becoming the parents 
 of a common child? She is at this moment proving 
 to you that she is as dead to the sense of parental 
 as of conjugal obligation; and that she would 
 abandon your offspring to-morrow, with the same 
 facility with which she now deserts her own. Look 
 then at her conduct, as it is, as the world must 
 behold it, blackened by every aggravation that 
 can make it either odious or contemptible, and 
 unrelieved by a single circumstance of mitigation, 
 that could palliate its guilt, or retrieve it from 
 abhorrence. 
 
 "Mean, however, and degraded as this woman 
 must be, she will still (if you take her with you,) 
 have strong and heavy claims upon you. The force 
 of such claims does certainly depend upon circum- 
 stances; before, therefore, you expose her fate to 
 the dreadful risk of your caprice or ingratitude, in 
 mercy to her, weigh well the confidence she can 
 pla,ce in your future justice and honour: at that 
 future time, nuich nearer than you think, by what 
 
CASE OF MASSY V. HEADFOBT. 529 
 
 topics can her cause be pleaded to a sated appetite, 
 to a heart that repels her, to a just judgment in 
 which she never could have been valued or re- 
 spected? Here is not the case of an unmarried 
 woman, with whom a pure and generous friend- 
 ship may insensibly have ripened into a more 
 serious attachment, until at last her heart became 
 too deeply pledged to be reassumed. If so circum- 
 stanced, without any husband to betray, or child 
 to desert, or motive to restrain, except what re- 
 lated solely to herself, her anxiety for your happi- 
 ness made her overlook every other consideration, 
 and commit her history to your honour; in such 
 a case, the strongest and the highest that man's 
 imagination can suppose, in which you at least 
 could see nothing but the most noble and dis- 
 interested sacrifice; in which you could find no- 
 thing but what clajmed from you the most kind 
 and exalted sentiment of tenderness, and devo- 
 tion, and respect; and in which the most fastidious 
 rigour would find so much more subject for 
 sympathy than blame; let me ask you, could you 
 even in that case, answer for your own justice and 
 gratitude? 
 
 "I do not allude to the long and pitiful cata- 
 logue of paltry adventures, in which it seems your 
 time has been employed; the coarse and vulgar- 
 succession of casual connexions, joyless, loveless, 
 and unendeared: but do you not find upon your 
 memory some trace of an engagement of the 
 
 34 
 
530 ME. cueean's speech on the 
 
 character I have sketched? Has not your sense o£ 
 what you would owe in such a case, and to such 
 a woman, been at least once put to the test of 
 experiment? Has it not once, at least, happened 
 that such a woman, with all the resolution of 
 strong faith, flung her youth, her hope, her beauty, 
 her talent, upon your bosom, weighed you against 
 the world, which she found but a feather in the 
 scale, and took you as an equivalent? How did you 
 then acquit yourself? Did you prove yourself 
 worthy of the sacred trust reposed in you? Did 
 your spirit so associate with hers, as to leave her 
 no room to regret the splendid and disinterested 
 sacrifice she had made? Did her soul find a pUlow 
 in the tenderness of yours, and support in its 
 firmness? Did you preserve her high in her own 
 consciousness, proud in your admiration and 
 friendship, and happy in yqur affection? You 
 might have so acted; and the man that was 
 worthy of her would have perished rather than 
 not so act, as to make her delighted with having 
 confided so sacred a triist to his honour. Did you 
 60 act? Did she feel that, however precious to 
 your heart, she was still more exalted and ho- 
 noured in your reverence and respect? Or did she 
 find you coarse and paltry, fluttering and un- 
 purposed, unfeeling, and migrateful? You found 
 her a fair and blushing flower, its beauty and its 
 fragrance bathed in the dew of heaven. Did you 
 flo tenderly transplant it, as to preserve that 
 
CASE OF MASSY V. HEADPOET. 531 
 
 beauty and fragrance unimpaired? Or did you so 
 rudely cut it, as to interrupt its nutriment, to waste 
 its sweetness, to blast its beauty, to bow its faded 
 and sickly head? And did you at last fling it like 
 *a loathsome weed away?' If then to such a woman, 
 so clothed with every title that could ennoble, and 
 exalt, and endear her to the heart of man, you would 
 be cruelly and capriciously deficient, how can a 
 wretched fugitive like this, in every point her con- 
 trast, hope to find you just? Send her then away. 
 Send her back to her home , to her child, to her 
 husband, to herself." 
 
 Alas! there was no one to hold such language 
 to this noble defendant; he did not hold it to him- 
 self. Bnt he paraded his despicable prize in his 
 own carriage, with his own retinue, his own ser- 
 vants; this veteran Paris hawked his enamoured 
 Helen from this western quarter of the island to 
 a sea-port in the eastern, crowned with the accla- 
 mations of a senseless and grinning rabble, glorying 
 and delighted, no doubt, in the leering and scoffing 
 admiration of grooms, and ostlers, and waiters, as 
 he passed. 
 
 In this odious contempt of every personal feel- 
 ing, of public opinion, of common humanity, did he 
 parade this woman to the sea-port, whence he trans- 
 ported his precious cargo to a country, where her 
 example may be less mischievous than in her own; 
 where I agree with my learned colleague in heartily 
 wishing he may remain with her for ever. We are 
 
 34* 
 
532 MR. cueean's speech on the 
 
 too poor, too simple, too unadvanced a country, 
 for the example of such achievements. When the 
 relaxation of morals is the natural growth and con- 
 sequence of the great progress of arts and wealth, 
 it is accompanied by a refinement that makes it 
 less gross than shocking; but for such palliations 
 we are at least a century too young. I advise you, 
 therefore, most earnestly to rebuke this budding 
 mischief, by letting the wholesome vigour and 
 chastisement of a liberal verdict speak what you 
 think of its enormity. 
 
 In every point of view in which I can look at 
 the subject, I see you are called upon to give a 
 verdict of bold, and just, and indignant, and ex- 
 emplary compensation. The injury of the plaintiff 
 demands it from your justice; the delinquency of 
 the defendant provokes it by its enormity. The 
 rank on which he has relied for impunity calls upon 
 you to tell him, that crime does not ascend to the 
 rank of the perpetrator, but the perpetrator sinks 
 from his rank, and descends to the level of his 
 dehnquency. The style and mode of his defence 
 is a gross aggravation of his conduct, and a gross 
 insult upon you. 
 
 Look upon the different subjects of liis defence 
 as you ought, and let him profit by them as he 
 deserves. Vainly presumptuous upon his rank, he 
 wishes to overawe you by that despicable con- 
 sideration. He next resorts to a cruel aspersion 
 upon the character of the unhappy plaintiff, whom 
 
CASE OF MASST V. HEADFORT. 533 
 
 lie had already wounded beyond the possibility of 
 reparation: he has ventured to charge him with 
 connivance. As to that, I will only say, gentlemen 
 of the jury, do not give this vain boaster a pre- 
 text for saying, that if her husband connived in the 
 offence, the jury also connived in the reparation. 
 
 But he has pressed another curious topic upon 
 you. After the plaintiff had cause to suspect his 
 designs, and the likelihood of their being fatally 
 successful, he did not then act precisely as he ought. 
 Gracious God! what an argument for him to dare 
 to advance! It is saying this to him: — "I abused 
 your confidence, your hospitality, I laid a base plan 
 for the seduction of the wife of your bosom; I 
 succeeded at last, so as to throw in upon you that 
 most dreadful of all suspicions to a man fondly 
 attached, proud of his wife's honour, and trem- 
 blingly alive to his own; that you were possibly a 
 dupe to the confidence in the wife, as much as in 
 the guest. In this so pitiable distress, which I 
 myself had studiously and deliberately contrived 
 for you, between hope and fear, and doubt and 
 love, and jealousy and shame; one moment shrink- 
 ing from the cruelty of your suspicion; the next, 
 fired with indignation at the facility and credulity 
 of your acquittal; in this labyrinth of doubt, in this 
 frenzy of suffering, you were not collected and 
 composed; you did not act as you might have done, 
 if I had not worked you to madness.: and upon that 
 very madness which I have inflijted upon you, 
 
534 ME. cueban's speech on the 
 
 tip on the very completion of my guilt, and of youi? 
 misery , I will build my defence. You will not act 
 critically right, and therefore are unworthy of 
 compensation." 
 
 Gentlemen, can you be dead to the remorseless 
 atrocity of such a defence! And shall not your 
 honest verdict mark it as it deserves. 
 
 But let me go a little further; let me ask you, 
 for I confess I have no distinct idea — What should 
 be the conduct of a husband so placed, and who 
 is to act critically right? Shall he lock her up, or 
 turn her out, or enlarge or abridge her liberty of 
 acting as she pleases? Oh, dreadful Areopagus of 
 the tea-table! how formidable thy inquests, how 
 tremendous thy condemnations! In the first case, 
 he is brutal and barbarous ; an odious eastern despot. 
 In the next; what! turn an innocent woman out of 
 his house, without evidence or proof, but merely 
 because he is vile and mean enough to suspect the 
 wife of his bosom, and the mother of his child! 
 Between these extremes, what intermediate degree 
 is he to adopt? I put this question to you — Do 
 you at this moment, uninfluenced by any passion 
 as you now are, but cool and collected, and un- 
 interested as you must be, do you see clearly this 
 proper and exact line, which the plaintiff should 
 have pursued? I much question if you do. But if 
 you did or could, must you not say, that he was 
 the last anan from whom you should expect the 
 coolness to discover, or the steadiness to pursue 
 
CASE OF MASSY V. HEADFORT. 535 
 
 it? And yet this is the outrageous and insolent 
 defence that is put forward to you. My miserable 
 client, when his brain was on fire, and every fiend 
 of hell was let loose upon his heart, should then, it 
 seems, have placed himself before his mirror; he 
 should have taught the stream of agony to flow 
 decorously down his forehead; he should have com- 
 posed his features to harmony; he should have 
 writhed with grace, and groaned in melody. 
 
 But look farther to this noble defendant, and 
 his honourable defence. The wretched woman is 
 to be successively the victim of seduction, and of 
 slander. She, it seems, received mai'ked atten- 
 tions. Here, I confess, I felt myself not a little 
 at a loss. The witnesses could not describe what 
 these marked attentions were, or are. They con- 
 sisted, not, if you believe the witness that swore 
 to them, in any personal approach, or contact 
 whatsoever, nor in any unwarrantable topics of 
 discourse. Of what materials, then, were they 
 composed? Why, it seems a gentleman had the 
 insolence at table to propose to her a glass of 
 wine; and she, oh, most abandoned lady! instead 
 of flying like an angry parrot at his head, and 
 besmirchmg and bescratching him for his inso- 
 lence, tamely and basely replies, "Port, sk, if you 
 please." 
 
 But, gentlemen, why do I advert to this folly, 
 this nonsense? Not surely to vindicate from cen- 
 sure the most innocent and the most delightful 
 
536 MB. curean's speech on the 
 
 intercourse of social kindness, or harmless and 
 cheerful courtesy, "where virtue is, these are most 
 virtuous." But I am soliciting your attention, and 
 your feeling, to the mean and odious aggravation, 
 to the unblushing and remorseless barbarity, of 
 falsely aspersing the wretched woman he had 
 undone. 
 
 One good he has done, he has disclosed to you 
 the point in which he can feel; for how imperious 
 must that avarice be, which could resort to so 
 vile an expedient of frugality? Yes, I will say, 
 that, with the common feehngs of a man, he would 
 have rather siiffered his thirty thousand a year to 
 go as compensation to the plaintiff, than have 
 saved a shilling of it by so vile an expedient of 
 economy. He would rather have starved with her 
 in a gaol, he would rather have sunk with her into 
 the ocean, than have so vilified her — than have 
 80 degraded himself 
 
 But it seems, gentlemen, and, hadeed you have 
 been told, that long as the course of liis gallantries 
 has been, and he has grown grey in the service, 
 it is the first time he has been called upon for 
 damages. To how many might it have been fortu- 
 nate, if he had not that impunity to boast? Your 
 verdict will, I trust, put an end to that encourage- 
 ment to guilt, that is built upon impunity. 
 
 The devil, it seems, has saved the noble Marquis 
 harmless in the past; but your verdict will tell 
 him the term of that indemnity is expired — that 
 
CASE OF MASST V. HBADFORT, 537 
 
 Ms old friend and banker has no more effects in 
 tis hands — and that if he draws any more upon 
 him, he must pay his own bills himself. You wUl 
 do much good by doing so: you may not enlighten 
 his conscience, nor touch his heart; but his fruga- 
 hty will understand the hint. It will adopt the 
 prudence of age, and deter him from pursuits, in 
 which, though he may be insensible of shame, he 
 will not be regardless of expense. You will do 
 more — you will not only punish him in his tender 
 point, but you will weaken him in his strong one, 
 his money. "We have heard much of this noble 
 Lord's wealth, and much of his exploits, but not 
 much of his accomplishments or his wit; I know 
 not that his verses have soared even to the "poet's 
 corner." I have heard it said, that an ass laden 
 with gold could find his way through the gate of 
 the strongest city. But, gentlemen, lighten the 
 load upon his back, and you will completely cur- 
 tail the mischievous faculty of a grave animal, 
 whose momentum lies, not in his agility, but his 
 weight; not in the quantity of his motion, but the 
 quantity of his matter. 
 
 There is another ground on which you are called 
 upon to give most liberal damages, and that has 
 been laid by the unfeeling vanity of the defendant. 
 This business has been marked by the most elabo- 
 rate publicity. It is very clear that he has been 
 allured by the glory of the chase, and not the value 
 of the game. The poor object of his pursuit could 
 
538 ME. cukkan's speech on the 
 
 be of no value to him, or he could not have so 
 wantonly, and cruelly, and unnecessarily abused 
 her. He might easily have kept this unhappy 
 intercourse an unsuspected secret. Even if he 
 wished for elopement, he might easily have so 
 contrived it, that the place of her retreat would 
 be profoundly undiscoverable. 
 
 Yet, though even the expense, a point so tender 
 to his delicate sensibility, of concealing, could not 
 be one-fortieth of the cost of publishing her, his 
 vanity decided him in favour of glory and pub- 
 hcity. By that election, he has, in fact, put forward 
 the Irish nation, and its character, so often and so 
 variously calumniated, upon its trial before the 
 tribunal of the empire; and your verdict will this 
 day decide whether an Irish jury can feel with 
 justice and spirit upon a subject that involves con- 
 jugal affection and comfort, domestic honour and 
 repose, the certainty of issue, the weight of pubhc 
 opinion, the gilded and presumptuous criminahty 
 of overweening rank and station. 
 
 I doubt not but he is at this moment reclined 
 on a silken sofa, anticipating that submissive and 
 modest verdict, by which you wiU lean gently on 
 his errors; and expecting from your patriotism, no 
 doubt, that you will think again, and again, before 
 you condemn any great portion of the immense 
 revenue of a great absentee, to be detained in the 
 nation that produced it, instead of being trans- 
 mitted, as it ought, to be expended in the splendour 
 
CASE OP MASSY V. HEADPOET. 539 
 
 of another country. He is now probably waiting 
 for the arrival of the report of this day, which I 
 understand a famous note-taker has been sent 
 hither to collect. Let not the gentleman be dis- 
 turbed. 
 
 Gentlemen, let me assure you, it is more, much 
 more the trial of you, than of the noble Marquis, 
 of which this imported recorder is at this moment 
 collecting materials. His noble employer is now 
 expecting a report to the following effect: — "Such 
 a day came on to be tried at Ennis, by a special 
 jury, the cause of Charles Massy against the most 
 noble the Marquis of Headfort. It appeared that 
 the plaintiff's wife was young, beautiful, and cap- 
 tivatmg; the plaintiff himself, a person fond of this 
 beautiful creature to distraction, and both doating 
 on their child. But the noble Marquis approached 
 her; the plume of glory nodded on his head. Not 
 the goddess Minerva, but the goddess Venus, had 
 lighted up his casque with 'the fire that never 
 tires, such as many a lady gay had been dazzled 
 with before.' At the first advance she trembled; 
 at the second, slT<e struck to the redoubted son of 
 Mars, and pupil of Venus. The jury saw it was 
 not his fault (it was an Irish jury) ; they felt com- 
 passion for the tenderness of the mother's heart, 
 and for the warmth of the lover's passion. The 
 jury saw on the one side, a young, entertaining 
 gallant; on the other, a beauteous creature, of 
 charms irresistible. They recollected that Jupiter 
 
540 ME. CimEAN's SPEECH ON THE 
 
 had been always successful in his amours, although 
 Vulcan had not always escaped some awkward 
 accidents. The jury was composed of fathers, 
 brothers, husbands, but they had not the vulgar 
 jealousy, that views little things of that sort with 
 rigour; and, wishing to assimilate their country in 
 every respect to England, now that they are united 
 to it, they, like English gentlemen, returned to 
 their box, with a verdict of 6d. damages, and 6d. 
 costs." 
 
 Let this be sent to England. I promise you, 
 your odious secret will not be kept better than 
 that of the wretched Mrs. Massy. There is not a 
 bawdy chronicle in London, in which the epitaph 
 which you would have written on yourselves wiU 
 not be published; and our enemies will dehght in 
 the spectacle of our precocious depravity, in seeing 
 that we can be rotten before we are ripe. I do not 
 supjjose it; I do not, cannot, will not believe it; I 
 will not harrow up myself .with the anticipated 
 apprehension. 
 
 There is another consideration, gentlemen, which 
 I think most imperiously demands even a vindictive 
 award of exemplary damages — and that is, the 
 breach of hospitahty. 
 
 To us peculiarly does it belong to avenge the 
 violation of its altar. The hospitality of other 
 countries is a matter of necessity or convention — 
 in savage nations, of the first: in polished, of the 
 latter: but the hospitality of an Irishman is not 
 
CASE or MASSY V. HEADPOBT. 541 
 
 tlie running account of posted and ledgered cour- 
 tesies, as in other countries; it springs like all his 
 quahties, his faults, his virtues, directly from his 
 heart. The heart of an Irishman is by nature bold, 
 and he confides; it is tender, and he loves; it is 
 generous, and he gives; it is social, and he is hos- 
 pitable. This sacrilegious intruder has profaned 
 the religion of that sacred altar so elevated in our 
 worship, so precious to our devotion: and it is our 
 privilege to avenge the crime. You must either 
 pull down the altar, and abohsh the worship; or 
 you must preserve its sanctity undebased. There 
 is no alternative between the universal exclusion 
 of all mankind from your threshold, and the most 
 rigorous punishment of him who is admitted and 
 betrays. This defendant has been so trusted, has 
 so betrayed, and you ought to make him a most 
 signal example. 
 
 Gentlemen, I am the more disposed to feel the 
 strongest indignation and abhorrence at this odious 
 conduct of the defendant, when I consider the 
 deplorable condition to which he has reduced the 
 plaintiff, and perhaps the still more deplorable one 
 that the plaintiff has in prospect before him. What 
 a progress has he to travel through, before he can 
 attain the peace and tranquillity which he has lost? 
 How like the wounds of the body are those of the 
 mind! how burning the fever! how painful the sup- 
 puration! how slow, how hesitating, how relapsing 
 the process to convalescence! Through what a 
 
542 ME, cueean's speech on the 
 
 variety of suffering, what new scenes and changes 
 must my unhappy chent pass, ere he can re-attain, 
 should he ever re-attain, that health of soul of 
 which he has been despoiled by the cold and de- 
 liberate machinations of this practised and gilded 
 seducer? 
 
 If, instead of drawing upon his incalculable wealth 
 for a scanty retribution, you were to stop the pro- 
 gress of his despicable achievements, by reducing 
 him to actual poverty, you could not even so punish 
 him beyond the scope of his offence, nor reprise 
 the plaintiff beyond the measure of his suffermg. 
 Let me remind you, that in this action, the law not 
 only empowers you, but that its policy commands 
 you to consider the public example, as well as the 
 amount of your verdict. I confess I am most 
 anxious that you should acquit yourselves worthily 
 upon this important occasion. I am addressing 
 you as fathers, husbands, brothers. I am anxious 
 that a feeling of those high relations should enter 
 into, and give dignity to your verdict. 
 
 But I confess, I feel a ten-fold sohcitude when 
 I remember that I am addressing you as my coun- 
 trymen, as Irishmen, whose characters as jurors, 
 as gentlemen, must find either honour or degrada- 
 tion in the result of your decision. Small as must 
 be the distributive share of that national estima- 
 tion, that can belong to so unimportant an indivi- 
 dual as myself, yet I do OAvn I am tremblingly 
 sohcitous for its fate. Perhaps it appears of more 
 
CASE OF MASSY V. HEADFOET. 543 
 
 value to me, because it is embarked on tbe same 
 bottom with yours; perhaps the community of 
 peril, of common safety, or common wreck, gives 
 a consequence to my share of the risk, which I 
 could not be vain enough to give it, if it were not 
 raised to it by that mutuality. But why stoop to 
 think at all of myself, when I know that you, 
 gentlemen of the jury — when I know that our 
 country itself are my clients on this day, and must 
 abide the alternative of honour or of infamy, as 
 you shall decide. But I will not despond, I wUl 
 not dare to despond. I have every trust, and hope, 
 and confidence in you. And to that hope I wiU 
 add my most fervent prayer to the God of all 
 truth and justice, so to raise, and enlighten, and 
 fortify your minds, that you may so decide, as to 
 preserve to yourselves while you live, the most 
 delightful of all recollections — that of acting justly; 
 and to transmit to your children the most precious 
 of all inheritances — the memory of your virtue. 
 
 Baron Smith charged, and after a trial of twelve hours' du- 
 ration, the jury at midnight found for the plaintiff, ^10,000 
 damages, with costs. 
 
FOE JUDGE JOHNSOK 
 
 [habeas corpus.] 
 COTJET OP EXCHEQUER. 
 
 EEEOEB CHIEF BAKON LORD AVONMOEE AND THE OTHEK BAEONS. 
 
 February ith, 1805. 
 
 EoBEET Johnson was called to the Irish Bar in Michaelmas 
 Term, 1776, and ob'tained an early reputation for ability. In 
 June, 1800, he was made one of the Justices of the Court of 
 Common Pleas in Ireland. 
 
 On the 5th of November, 1803, a letter, signed "Juverna," 
 was published in Cobbett's Political Register. It was written 
 in a bold and bitter style, and having narrated the story of the 
 Trojan Horse, applied it to Lord Hardwicke's rule in Ireland. 
 In that and subsequent papers Lord Hardwicke was described 
 as "a very eminent breeder of sheep in Cambridgeshire;" Lord 
 Chancellor Kedesdale is called "a very able and strong-built 
 Chancery pleader from Lincoln's Inn;" Mr. Secretary Marsdeh 
 appears as "a corrupt, unprincipled, rapaoiousplunderer, preying 
 upon the property of the state;" and Justice Osborne as "the 
 most corrupt instrument of a debased and degraded government, 
 lending himself as a screen to conceal them from the disgrace 
 their actions would naturally bring upon them." 
 
 These are the strongest passages, and the ones that were 
 relied on in the prosecution. 
 
 Cobbett was prosecuted for these publications, as libelling 
 Lords Hardwicke and Redesdale, Mr. Marsden, and Judge 
 Osborne; he- was tried at Westminster, before Lord Ellen- 
 borough, on the 4th of May, 1804. The Attorney-General 
 prosecuted; Mr. Adam defended Cobbett, and called Lord Minto, 
 
TEIAL OP JUDGE JOHNSON. 5 -15 
 
 Charles Yorke, Windham, Lord Henry Stewart, &c., to swear 
 to Cobbett's ultra loyalty; but in ten minutes the jury found 
 him guilty of the libel. 
 
 In one of the "Juverna" articles (that published on the 1 0th 
 of December), Plunket, then Solicitor-General for Ireland, was 
 attacked on many grounds, but especially for his speech in 
 reply on Emmet's trial. "Juverna'' represents Emmet as de- 
 scribing Plunket thus: "That viper, whom my father nourished! 
 He it was from whose lips I first imbibed those principles and 
 doctrines which now by their effects drag me to my grave, and 
 he it is who is now brought forward as my prosecutor, and who, 
 by an unheard-of exercise of the prerogative, has wantonly 
 lashed with a speech to evidence the dying son of his former 
 friend, when that son had produced no evidence, had made no 
 defence; but, on the contrary, had acknowledged the charge, 
 and submitted to his fate.'' 
 
 For publishing this libel, Plunket brought a civil action 
 against Cobbett; the case was heard by Lord Ellenborough on 
 the 20th of May, 1804. Erskine opened for the plaintiff; Adam 
 defended Cobbett ably, quoting Plunket's words on the nullity 
 of the Union; but the jury, after twenty minutes' deliberation, 
 found a verdict for the plaintiff, and S500 damages. 
 
 These verdicts were not enforced. Cobbett gave up the 
 manuscript of the libellous articles, alleging that they were 
 written by Mr. Justice Johnson. The offended parties believed 
 the statement, and it was resolved to ruin Johnson. 
 
 For this purpose a vast machinery was resorted to. 
 
 On the 20th of July, J80J, an act was passed, entitled, "an 
 act to render more easy the apprehending and bringing to trial 
 offenders escaping from one part of the united kingdom to the 
 other, and also from one county to another," by which, amongst 
 other things, it was enacted, that a warrant from a court in 
 Great Britain might be transmitted to Ireland, be endorsed and 
 executed there by a Justice of the Peace, and the accused party 
 transferred for trial to the court'from which the warrant issued. 
 
 35 
 
546 ME. cueean's speech on the 
 
 That all the persons concerned in pushing this act knew its 
 ohject it would be wrong to say; but it was brought in by 
 Perceval, Lord Eedesdale's brother-in-law, and by Charles 
 Yorke, the brother of Lord Hardwicke, and was mainly and 
 speedily used against Johnson — a case for strong suspicion, 
 at least, against the Irish Government. 
 
 The act was soon used. Bills were found against Johnson 
 for Libel by the Middlesex Grand Jury, and on the 24th of 
 November, 1804, a warrant was issued against him from the 
 King's Bench at "Westminster, founded on a charge of libel; 
 this warrant was endorsed by Robert Bell, Esq., J. P. for the 
 county Dublin, and under it the Judge was conditionally 
 arrested at his house at Milltown, on the 17th, and absolutely 
 on the 18th of January, 1805. Johnson procured delay,* a 
 Habeas Corpus was at once issued, and on the 19th of January 
 he was brought before the Chief Justice and six other Judges, 
 at the Chief's house, and the case immediately gone into. 
 Johnson was ill and sought delay, but O'Grady, (the Attorney- 
 General) refused it, and Johnson read a statement showing 
 that he had sought to go to Bath for his health (then very 
 feeble) and had obtained leave, though warned that he would 
 be held to bail, and that the whole proceeding was a tyrannical 
 and illegal contrivance. Counsel argued the case, the Attorney- 
 General replied on the 22nd, and an eighth judge having come 
 in that day, their lordships divided, three for and three against 
 allowing the cause shown on the writ of Habeas Corpus, and 
 two were neuter. The question, therefore, went into the King's 
 Bench, and was there argued, on the 26th, 28th, and 29tli of 
 January, by Ourran, M'Cartney, William Johnson, for the judge, 
 and by Arthur Browne (the Prime-Sergeant) and the Attorney- 
 General O'Grady, for the crown. Justice Day decided for 
 release. Chief Justice Downes and Justice Daly against it. 
 
 * The fact that he was communicated with on the 17th, negatives 
 the charge against government, of having tried to kidnap him — 
 expeditiiin they were hound uiider the act to use. 
 
TEIAL OF JUDGE JOHNSON. 547 
 
 ' Cdeean's speech contains nothing of argument additional to 
 the speech he afterwards made in the Exchequer, on the same 
 subject; nor has it any pretensions to brilliant eloquence, except, 
 perhaps, in the concluding passage, which is as follows: — 
 
 But suppose him arrived in London. What de- 
 fence can he make there? Yes, I think there is 
 one; there is an inborn enthusiasm for hberty — an 
 innate love of freedom — a hatred of oppression 
 and tyranny, that would redeem the victim and 
 secure him from the attack of the oppressor. But 
 give such a power to a prosecutor, as the construc- 
 tion put upon this statute would give, and there 
 is not a man in England , from the Archbishop of 
 Canterbury to the lowest mechanic , who may not 
 be brought here under colour of this statute, and 
 vice versa, and tried upon trivial accusations without 
 the possibility of giving bail. The minister going 
 to the House of Commons may be arrested upon 
 the information of an Irish chairman, and a warrant 
 granted by a trading justice. Mr. Pitt is brought 
 over here in vinculis. What to do? — to see whether 
 he should be bailed or not. I remember Mr. Fox 
 was here during the life-time of this country: in 
 the same way he might be brought over. It may 
 facilitate the intercourse between the islands — any 
 man may travel at the public expense. Suppose 
 I gave an Irishman in London a small assault in 
 trust; when the vacation arrives, he knocks at the 
 door of a trading justice, and tells him he wants a 
 warrant against the counsellor. „ What counsellor?" 
 
 35* 
 
548 ME. curean's speech on the 
 
 "Oh, sure every body knows tte counsellor." 
 "WeU, friend, and what is your name?" "Thady 
 O'Flanagan, please your honour." "What country- 
 man are you?" "An Englishman, by construction." 
 "Yery weU, I'll draw upon my correspondent in 
 Ireland for the body of the counsellor." 
 
 What! my lords, is there no apprehension of an 
 outrage of that kind? There is nothing against it 
 but the great expense. The two warrants cannot 
 be obtained for less than five shilUngs of our money. 
 But the expense of journey must be defrayed by 
 the public; and can it be supposed that the legis- 
 lature intended, that the public money should be 
 thus drawn upon at the good wUl of every petty 
 prosecutor, either to gratify his mahce or supply 
 his necessities? 
 
 Lord Chief Justice Downes — Give me leave to ast, whether 
 this mischief might not arise in the case of an unfounded charge 
 of felony? 
 
 Mr. CuEEAN — No, my lord; accusers are not so 
 easily found in such cases. The atrocity of the 
 charge deters the party from making it. I have 
 witnessed many trials, and I seldom knew a false 
 charge of a capital crime; but there are a thousand 
 instances of false charges of petty misdemeanors. 
 
 I shall add to that head of observation, that this is 
 a state prosecution. Yet it must be proceeded upon 
 as every common case between subject and sub- 
 ject. But if anything can impress this particular 
 case more upon the Court than any other, it is the 
 
TEIAL OF JUDGE JOHNSON. 549 
 
 circumstance that it is a prosecution by the state 
 for a libel; see then what a power is put into the 
 hands of a minister, or the rival of a minister. An 
 experiment must first be made in the province, 
 remote from the seat of government, where it may 
 be supposed to pass stib silentio. They would not 
 venture to try it in London, to give up an in- 
 habitant of England to an Irish catchpole, and send 
 him upon a voyage to Ireland to know whether he 
 should be bailed or not. It would appal the EngUsh 
 nation to have such an artillery opened upon them; 
 it would be to stand before a loaded cannon, whUe 
 a child with a lighted torch was sitting at the 
 touch-hole. If my client must undertake this voyage, 
 let the messenger perform the obsequies by night, 
 and take him to the water-edge in the dark, that 
 his countrymen may not see his last look upon his 
 native shore, which he is never to see again. Let 
 not his wife or children witness his departure. He 
 is to be taken to a place, where his innocence can- 
 not appear, for there is no process to produce the 
 witness who can attest it. 
 
 My lords, this is an odious experiment: It is of 
 late that this perplexed doctrine of constructions 
 has been revived; it flourished before science had 
 attained its full maturity, and when there was 
 nothing but commentators, and scholiasts, and con- 
 structors. Are acknowledged principles to be ex- 
 plained away by some godfather, producing his 
 adopted manuscript — "nuUus Hber homo capiatur, 
 
550 MR. cueean's speech on the 
 
 vel imprisonetur, nisi per legale judicium parium 
 suorum, vel per legem terrse." A manuscript is 
 produced — it came into the hands of a grand- 
 father's executor — by which it appears, that lex 
 terrce is for the common people, hut judiciuyn parium 
 means something more; it means the judgment of 
 the upper house — the judgment of the peers. This 
 exposes the freedom of the subject, and his dearest 
 rights, to the uncertainties of caprice and the 
 vagaries of speculation. It is admitted there are 
 real hardships imposed by this statute ; but it is 
 suggested it may be amended. Perhaps it may — 
 perhaps it may not. But under the construction 
 contended for by the prosecuter, they are despe- 
 rate and formidable. If you see one construction 
 which is destructive of former rights, and another 
 which is sanative of those rights, I hope you wiU 
 adopt the latter. I hope that you will not think 
 this a doubtful case — that it wiU be miderstood 
 abroad that it is not — that the prosecutor ^Yil\ be 
 pleased with his failure — that he will feel a gratify- 
 ing consciousness at going out of court mercifully 
 triumphant. If there be any latent motive against 
 the accused, it will be defeated by persisting in 
 the present measure; they will exhibit him as a 
 persecuted man, rousing and arming every principle 
 of the human heart to pity and protect him. If 
 they have any object, they will lose it by an odious 
 and abominable prosecution. But grieved should 
 T be to look to the compunction of humanity, or 
 
TRIAL OP JUDGE JOHNSOK. 551 
 
 aAVdit the satiated vengeance of the prosecutor, 
 instead of the honourable and upright justice of 
 the Court, which is to pass sentence one way or 
 the other. 
 
 Therefore, I leave my client with you. He has 
 fled to the temple of justice — he has fallen upon 
 its steps. I trust in Divine Providence, that he will 
 find there a sanctuary, and that your lordships will 
 order him to be discharged from the custody in 
 which he is now detained. 
 
 Pending this, another writ had been issued from the Exche- 
 quer. Under it Johnson was brought up on the 4 th of February, 
 before Barry Viscount Yelverton, Barons George, (Wilham) 
 Smith, and M'Clelland. Mr. Peter Burrowes shortly and argu- 
 mentatively moved the release of Judge Johnson, and then 
 CuKRAN rose and said: — 
 
 My Lords, it has fallen to my lot, either fortu- 
 nately or unfortunately, as the event may be, to rise 
 as counsel for my client, on this most important 
 and momentous occasion. I appear before you, 
 my lords, in consequence of a writ issued by his 
 Majesty, commanding that cause be shown to this 
 his court, why his subject has been deprived of 
 his liberty; and upon the cause shown in obe- 
 dience to this writ, it is my duty to address you 
 on the most awful question — if awfulness is to be 
 judged by consequences and events — on which 
 you have ever been called upon to decide. Sorry 
 am I that the task has not been confided to more 
 adequate powers; but, feeble as mine are, they 
 
552 ME. curban's speech on' the 
 
 will, at least, not shrink from it. I move you, 
 therefore, that Mr. Justice Johnson be released 
 from illegal imprisonment. 
 
 I cannot but observe the sort of scenic pre- 
 paration with which this sad drama is sought to 
 be brought forward. In part, I approve it; in 
 ,part, it excites my disgust and indignation. I am 
 glad to find that the Attorney- General and the 
 Solicitor- General, the natural and official prose- 
 cutors for the state, do not appear; and I infer 
 from their absence, that his Excellency the Lord 
 Lieutenant disclaims any personal concern in this 
 execrable transaction. I think it does him much 
 honour; it is a conduct that equally accords with 
 the dignity of his character and the feelings of 
 his heart. To his private virtues, whenever he is 
 left to their influence, I willingly concur in giving 
 the most unqualified tribute of respect. And I do 
 firmly believe, it is with no small regret that he 
 suffers his name to be even formally made use of, 
 in avowing for a return of one of the judges of 
 the land, with as much indifference and noncha- 
 lance, as if he were a beast of the plough. 
 
 I observe, too the dead silence into which the 
 public is frowned by authority for the sad occa- 
 sion. No man dares to mutter, no newspaper 
 dares to whisper, that such a question is afloat. 
 It seems an inquiry among the tombs, or rather 
 in the shades beyond them. 
 
 "Ibant sola sub nocte per umbram." 
 
TEIAL OF JUDGE JOHNSON. 553 
 
 I am glad it is so — I am glad of this factitious 
 dumbness: for if murmurs dared to become au- 
 dible, my voice would be too feeble to drown 
 them. But when all is hushed, when nature 
 sleeps — 
 
 "Cum quies mortalibus segris" — 
 
 the weakest voice is heard — the shepherd's whistle 
 shoots across the hstening darkness of the in- 
 terminable heath, and gives notice that the wolf 
 is upon his walk; and the same gloom and still- 
 ness that tempt the monster to come abroad, 
 facilitate the communication of the warning to 
 beware. Yes, through that silence the voice shall 
 be heard; yes, through that silence the shepherd 
 shall be put upon his guard; yes, through that 
 silence shall the felon savage be chased into the 
 toil. Yes, my lords, I feel myself impressed and 
 cheered by the composed and dignified attention 
 with which I see you are disposed to hear me on 
 the most important question that has ever been 
 subjected to your consideration-^-the most im- 
 portant to the dearest rights of the human being 
 — ^the most deeply interesting and animating that 
 can beat in his heart, or burn upon his tongue. 
 
 Oh! how recreating is it to feel that occasions 
 may arise, in which the soul of man may resume 
 her pretensions — in which she hears the voice of 
 nature whisper to her, "os homini svblime dedi coe- 
 lumque tueri" — in which even I can look up with 
 calm security to the court, and down with the 
 
554 iaB. cueean's speech on the 
 
 most profound contempt upon the reptile I mean 
 to tread upon ! I say, reptile ; because, when the 
 proudest man in society becomes so much the 
 dupe of his childish malice, as to wish to inflict on 
 the object of his vengeance the poison of his sting, 
 to do a reptile's work, he must shrink into a rep- 
 tile's dimension ; and, so shrunk, the only way to 
 assail him is to tread upon him. 
 
 But to the subject. This writ of habeas corpus 
 has had a return. That return states, that Lord 
 Ellenborough, Chief Justice of England, issued a 
 warrant, reciting the foundation of this dismal 
 transaction, that one of the clerks of the crown 
 office had certified to him, that an indictment had 
 been found at Westminster, charging the Honour- 
 able Eobert Johnson, late of Westminster, one of 
 the Justices of his Majesty's Court of Common 
 Pleas in Ireland, with the publication of certain 
 slanderous liliels against the government of that 
 country; against the person of his Excellency Lord 
 Hardwicke, Lord Lieutenant of that country ; 
 against the person of Lord Redesdale, the Chan- 
 cellor of Ireland; and against the person of Mr, 
 Justice Osborne, one of the Justices of the Court 
 of King's Bench in Ireland. One of the clerks of 
 the crown-office, it seems, certified all this to his 
 lordship. How many of those there are, or who 
 they are, or which of them so certified, we cannot 
 presume to guess, because the learned and noble 
 lord is silent as to those circumstances. We are 
 
TKIAL OP JITDGE JOHNSON. 555 
 
 only informed that one of tliem made that impor- 
 tant communication to his lordship. 
 
 It puts me in mind of the information given to 
 one of Fielding's justices : "Did not," says his wor- 
 ship's wife, "the man with the valet make his 
 fidavy that you was a vagram?" I suppose it was 
 some such petty-bag officer who gave Lord Ellen- 
 borough to understand that Mr. Justice Johnson 
 was indicted. 
 
 And being thus given to understand and be 
 informed, he issued his warrant to a gentleman, no 
 doubt of great respectability, a Mr. Wilhams, his 
 tipstaff, to take the body of Mr. Justice Johnson, 
 and bring him before a magistrate, for the purpose 
 of giving bail to appear Avithin the first eight days 
 of this term, so that there might be a trial within 
 the sittings after ; and if, by the blessing of God, 
 he should be convicted, then to appear on the 
 return of the postea, to be dealt with according 
 to law. 
 
 Perhaps it may be a question for you to decide, 
 whether that warrant, such as it may be, is not 
 now absolutely spent ; and if not, how a man can 
 contrive to be hereafter in England on a day that 
 is past ? And high as the opinion may be in Eng- 
 land of Irish understanding, it will be something 
 beyond even Irish exactness, to bind him to appear 
 in England, not a fortnight hence, but a fortnight 
 ago. I wish, my lords, we had the art of giving 
 time this retrograde motion. If possessed of the 
 
556 ME. curran's speech on the 
 
 secret, we might possibly be disposed to improve 
 it from fortnights into years. 
 
 There is something not incurious in the juxta- 
 position of signatures. The warrant is signed by 
 the Chief Justice of all England. In music, the 
 ear is reconciled to strong transitions of key, by a 
 preparatory resolution of the intervening discords; 
 but here, alas ! there is nothing to break the fall : 
 the august title of BUenborough is followed by the 
 unadorned name of brother Bell, the sponsor ol 
 his lordship's warrant. Let' me not, however, be 
 suffered to deem lightly of the compeer of the 
 noble and learned lord. Mr. Justice Bell ought to 
 be a lawyer; I remember him myself long a crier,* 
 and I know his credit with the state ; he has had 
 a noli prosequi. I see not, therefore, why it may 
 not be fairly said, ^'fortuiiafi umbo!" It appears 
 by this return, that Mr. Justice Bell endorses this 
 bill of lading to another consignee, Mr. Medlicot, 
 a most respectable gentleman; he describes him- 
 self upon the warrant, and he gives a delightful 
 specimen of the administration of justice, and the 
 calendar of saints in office; he describes himself a 
 justice and a peace-officer, that is, a magistrate and 
 a catchpole. So he may receive informations as a 
 justice; if he can write, he may draw them as a 
 clerk ; if not, he can execute the warrant as a bai- 
 Hff ; and, if it be a capital offence, you may see the 
 
 * This gentleman was formerly crier to tlie late Baron Hamilton, 
 ■when the Baron went circuit as a Judge. 
 
TRIAL OP JUDGE JOHNSON. 557 
 
 culprit, the justice, the clerk, the baUiff, and the 
 hangman, together in the same cart ; and, though 
 he may not write, he may "ride and tie." What a 
 pity that their journey should not be further con- 
 tinued together! That, as they had been "lovely 
 in their lives, so in their deaths they might not be 
 divided!" I find, my lords, I have undesignedly 
 raised a laugh: never did I less feel merriment. 
 Let not me be condemned — let not the laugh be 
 mistaken. Never was Mr. Hume more just than 
 when he says, that "in many things the extremes 
 are nearer to one another than the means." Few 
 are those events that are produced by vice and 
 folly, that fire the heart with indignation, that do 
 not also shtike the sides vsdth laughter. So, when 
 the two famous moralists of old beheld the sad 
 spectacle of life, the one burst into laughter, the 
 other melted into tears ; they were each of them 
 right, and equally right. 
 
 "Si credas utrique 
 "Res sunt humanse flebile ludibrlum.'' 
 
 But these are the bitter ireful laughs of honest 
 indignation — or they are laughs of hectic melan- 
 choly despair. 
 
 It is stated to you, my lords, that these two jus- 
 tices, if justices they are to be called, went to the 
 house of the defendant. I am speaking to judges, 
 but I disdain the paltry insult it would be to them, 
 were I to appeal to any wretched sympathy of 
 situation. I feel I am above it, I know the bench 
 
558 ME. cubean's speech on the 
 
 is above it. But I know, too, that there are ranks, 
 and degrees, and decorums to be observed, and, if 
 I had a harsh communication to make to a vener- 
 able judge, and a similar one to his crier, I should 
 certainly address them in very different language 
 indeed. A judge of the land, a man not young, of 
 infirm health, has the sanctuary of his habitation 
 broken open by these two persons, who set out 
 with him for the coast, to drag him from his 
 country, to hurry him to a strange land by the 
 "most direct way," till the King's writ stopped the 
 malefactors, and left the subject of the king a waif 
 dropped in the pursuit. 
 
 Is it for nothing, my lords, I say this? Is it 
 without intention, I state the facts in this way? 
 It is with every intention. It is the duty of the 
 public advocate not so to put forward the object 
 of public attention, as that the skeleton only shall 
 appear, without flesh, or feature, or complexion, 
 I mean every thing that ought to be meant in a 
 court of justice. I mean not only that this exe- 
 crable attempt shall be intelligible to the court as 
 a matter of law, but shall be understood by the 
 world as an act of state. If advocates had always 
 the honesty and the courage, upon occasions lilie 
 this, to despise all personal considerations, and to 
 think of no consequence but what may result to the 
 public from the faithful discharge of their sacred 
 trust, these frenetic projects of poAver, these atro- 
 cious aggressions on the liberty and happiness of 
 
TRIAL OP JUDGE JOHNSON. 559 
 
 men, ■would not be so often attempted ; for, though 
 a certain class of delinquents may be screened from 
 punishment, they cannot be protected from hatred 
 and derision. 
 
 The great tribunal of reputation will pass its 
 inexorable sentence upon their crimes, their follies, 
 or their incompetency; they will sink themselves 
 under the consciousness of their situation; they 
 will feel the operation of an acid so neutralizing 
 the malignity of their natures, as to make them at 
 least harmless, if it cannot make them honest. Nor 
 is there any thing of risk in the conduct I recom- 
 mend. If the fire be hot, or the window cold, turn 
 not your back to either ; turn your face. So, if 
 you are obliged to arraign the acts of those in high 
 stations, approach them not in malice, nor favour, 
 nor fear. Remember, that it is the condition of 
 guilt to tremble, and of honesty to be bold; re- 
 member, that your false fear can only give them 
 false courage ; that while you nobly avow the cause 
 of truth, you will find her shield an impenetrable 
 protection ; and that no attack can be either 
 hazardous or inefficient, if it be just and resolute. 
 If Nathan had not fortified himself in the boldness 
 and directness of his charge, he might have been 
 hanged for the malice of his parable. 
 
 It is, my lords, in this temper of mind — befitting 
 every advocate who is worthy of the name, deeply 
 and modestly sensible of his duty, and proud of 
 his privilege, equally exalted above the meanness 
 
560 MB. curean's speech on the 
 
 of temporizing or of offending, most averse from 
 the unnecessary infliction of pain upon any man or 
 men whatsoever — that I now address you on a 
 question, the most vitally connected with the Hberty 
 and well-being of every man within the limits of 
 the British empire ; which being decided one way, 
 he may be a freeman; which being decided the 
 other, he must be a slave. 
 
 It is not the Irish nation only that is involved in 
 this question ; every member of the three realms 
 is equally embarked: and would to God aU Eng- 
 land could listen to what passes here this day! 
 They would regard us with more sympathy and 
 respect, when the proudest Briton saw that his 
 liberty was defended in what he would call a pro- 
 vincial court, and by a provincial advocate. 
 
 The abstract and general question for your con- 
 sideration is this. My Lord Ellenborough has 
 signed with his own hand a warrant, which has 
 been endorsed by Mr. Bell, an Irish Justice, for 
 seizing the person of Mr. Justice Johnson, in Ire- 
 land, for conveying his person by the most direct 
 way, in such manner as these bailiffs may choose, 
 across the sea, and afterwards to the city of West- 
 minster, to take his trial for an alleged libel against 
 the persons entrusted with the government of Ire- 
 land, and to take that trial in a country ^yhere the 
 supposed offender did not live at the time of the 
 supposed offence, nor, since a period of at least 
 eighteen months previous thereto, has ever resided ; 
 
TEIAIi OP JUDGE JOHNSON. 561 
 
 where the subject of his accusation is perfectly 
 unknown; where the conduct of his prosecutors, 
 which has been the subject of the supposed Hbel, 
 is equally unknown; where he has not the power 
 of compelhng the attendance of a single witness 
 for his defence. 
 
 Under that warrant, he has been dragged from 
 his family ; ui^der that warrant, he was on his way 
 to the water's edge; his transportation has been 
 interrupted by the writ before you, and upon the 
 return of that writ arises the question upon which 
 you are to decide the legality or illegality of so 
 transporting him for the purpose of trial. I am 
 well aware, my lords, of the limits of the present 
 discussion ; if the law were clear in favour of the 
 prosecutors, a most momentous question might 
 arisp — how far they may be dehnquents, in daring 
 to avail themselves of such a law for such a pur- 
 pose? But I am aware that such is not the pre- 
 sent question ; I am aware that this is no court of 
 impeachment ; and, therefore, that your inquiry is, 
 not whether such a power hath been criminally 
 used, but whether it doth in fact exist? 
 
 The arrest of the defendant has been justified 
 by the advocates of the crown, under the forty- 
 fourth of his present Majesty. I have had the 
 curiosity to inquire into the history of that act, and 
 I find that in the month of May, 1804, the brother- 
 in-law of one of the present prosecutors obtained 
 leave to bring in a bill, to "render more easy the 
 
 36 
 
562 MR. cueean's speech on the 
 
 apprehending and bringing to trial offenders es- 
 caping from one part of the United Kingdom to 
 another, and also from one county to another:" 
 that bill was brought in; it travelled in the caravan 
 of legislation unheeded and unnoticed, retarded by 
 no difficulties of discussion or debate, and in due 
 fulness of season it passed into a law, which was 
 to commence from and after the 1st of August, 1804. 
 This act, like a young Hercules, began its ex- 
 ploits in the cradle. In the November following, 
 the present warrant was issued, under its supposed 
 authority. Let me not be understood to say that 
 the act has been slided through an unsuspecting- 
 legislature, under any particular influence, or for 
 any particular purpose: that any such man could 
 be found, or any such influence exist, or any such 
 lethargy prevail, would not, perhaps, be decent to 
 suppose. Still less do I question the legislative 
 authority of parliament. We all know that a par- 
 liament may attaint itself; and that its omnipotence 
 may equally extend in the same way to the whole 
 body of the people. We know also that most un- 
 just and cruel acts of attainder have been obtamed 
 by corrupt men in bad times ; and if I could bring 
 myself to say, which I do not, that this act was 
 contrived for the mere purpose of destroying an 
 obnoxious individual, I should not hesitate to call 
 it the most odious species of attainder that could be 
 found upon the records of legislative degradation; 
 because, for the simple purpose of extinguisliing 
 
TEIAL OP JUDGE JOHNSON. 563 
 
 an individual, it -would sweep the liberty of every 
 being in the state into the vortex of general and 
 undistinguished destruction. 
 
 But these are points of view upon which the 
 minds of the people of Ireland and England may 
 dwell with terror, or indignation, or apathy, ac- 
 cording as they may be fitted for liberty or for 
 chains: but they are not points for the court; and 
 so I pass them by. The present arrest and deten- 
 tion are defended under the forty-fourth of the 
 King: are they warranted by that act? That is 
 the only question for you to decide; and you will 
 arrive at that decision in the usual course, by in- 
 quiring, first, how the law stood before upon the 
 subject; next, what the imperfection or grievance 
 of that law was; and, thirdly, what is the remedy 
 intended to be apphed by the act in question? 
 
 First, then, how stood the law before? Upon 
 this part, it would be a parade of useless learning 
 to go farther back than the statute of Charles, the 
 Habeas Corpus Act, which is so justly called the 
 second Magna Charta of British Hberty: what was 
 the occasion of the law? the arbitrary transporta- 
 tion of the subject beyond the realm; that base 
 and malignant war, which the odious and despi- 
 cable minions of power are for ever ready to wage 
 against all those who are honest and bold enough 
 to despise, to expose, and to resist them. 
 
 Such is the oscitancy of man, that he lies torpid 
 for ages under these aggressions, until at last some 
 
 35* 
 
564 MK. CUEEAn's speech OS THE 
 
 signal abuse — the violation of Lucrece, the death 
 of Virginia, the oppression of William Tell — shakes 
 him from his slumber. For years had those drunken 
 gambols of power been played in England; for 
 years had the waters of bitterness been rising to 
 the brim; at last, a single drop caused them to 
 overflow, — the oppression of a single individual 
 raised the people of England from their sleep. 
 And what does that great statute do? It defines 
 and asserts the right, it points out the abuse, and 
 it endeavours to secure the right, and to guard 
 against the abuse, by giving redress to the sufferer, 
 and by punishing the offender. 
 
 For years had it been the practice to transport 
 obnoxious persons out of the realm into distant 
 parts, under the pretext of punishment, or of safe 
 custody. Well might they have been said, to be 
 sent "to that undiscovered country, from whose 
 bourne no traveller returns;" for of these wretched 
 travellers, how few ever did return? 
 
 But of that flagrant abuse, this statute has laid 
 the axe to the root. It prohibits the abuse; it de- 
 clares such detention or removal illegal; it gives 
 an action against aU persons concerned in the 
 offence, by contriving, writing, signing, counter- 
 signing, such warrant, or advising or assisting 
 therein. 
 
 That you may form a just estimate of the rights 
 which were to be secured, examine the means by 
 which the infringement was in future to be 
 
TRIAL OF JUDGE JOHNSON. 565 
 
 prevented and punished. The injured party has a 
 civil action against the offenders; but the legisla- 
 tiire 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 j:>raemMmVe. 
 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 favourite, 
 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 ; 
 if, therefore, the guilty minister of sucll abuse 
 should attempt to pour poison into the sovereign's 
 ear, and talk to him of mercy, this statute dashes 
 the phial from his hand — it takes away the prero- 
 gative of pardon. Are bulwarks like these ever 
 constructed to repel the incursions of a contemp- 
 tible enemy ? "Was it a trivial and ordinary occasion 
 which raised this storm of indignation in the par- 
 liament of that day? Is the ocean ever lashed 
 
566 MK. curran's speech on the 
 
 by tlie tempest, to waft a featter, or to drown 
 a fly? 
 
 Thus haughtily and jealously does the 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 exception only, does it 
 contain: it excepts from its protection, by the 
 sixteenth section, persons who may have committed 
 any capital offence in Scotland or Ireland. If the 
 principle of that exception were now open to dis- 
 cussion, 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 danger 
 to be feared from the abuse of such a power, which, 
 as' the Habeas Corpus Act stood, could not be re- 
 sorted to in any ordinary way, but Avas 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 Avas 
 more likely to be used as an instrument 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 
 
TEIAL OF JUDGE JOHNSON. 567 
 
 sliould escape, than that one innocent, and, let me 
 add, meritorious man, should suffer. But our an- 
 cestors 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 demarcation 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 pru- 
 dence could devise. Wretched must that legisla- 
 ture 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 distinctly. 
 
 By this act you have a solemn legislative decla- 
 ration, "that it is incompatible with liberty to send 
 any subject out of the realm, under pretence 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 placed 
 about the sacred temple of liberty, such the ram- 
 parts 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 for ever. Little did they 
 foresee the future race of vermin that would work 
 their way through those mounds, and let back the 
 
568 ME. cuekan's speech on the 
 
 inundation; little did they foresee that their labours 
 were so hke 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 infant's finger traces upon the beach, 
 the next breeze, the next tide, erases them, and 
 confounds them with the barren undistinguished 
 strand. The iU-omened bird that lights upon it, 
 sees nothing to mark, to allure, or to deter, but 
 finds all one obliterated unvaried waste : — 
 
 "Et sola secum sicca spatiatur arena." 
 
 Still do I hope that this sacred bequest of our an- 
 cestors wUl 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 disgrace : and as such, with your 
 permission, will I still presume to argue upon that 
 principle. 
 
 So stood the law, tiU the two acts of the twenty- 
 tliird and twenty -fourth of George II. which relates 
 wholly to cases between county and county in 
 England. Next followed the act of the thu-teenth 
 of his present Majesty, which was merely a regu- 
 lation 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, 
 
TBIAIi OF JUDGE JOHNSON. 569 
 
 ■which, as between county and county, is an 
 incorporation 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 section of this last 
 act, the learned counsel for the learned prosecutors 
 (for really I think it candid to acquit the Lord 
 Lieutenant of the folly or the shame of this busi- 
 ness, and to suppose that he is as innocent of the 
 project, from his temper, as he must, from his edu- 
 cation, be ignorant of the subject) endeavour to 
 justify this proceedmg. 
 
 The construction of this act they broadly and 
 expressly contend to be this: — First, they assert 
 that it extends not only to the higher crimes, but 
 to all offences whatsoever. Secondly, that it ex- 
 tends not only to persons who may have committed 
 offences within any given jurisdictions, and after- 
 wards escaped or gone out of such jurisdictions, 
 but to all persons, whether so escaping or going 
 out, or not. Thirdly, that it extends to construc- 
 tive offences, that is, to offences committed against 
 the laws of certain jurisdictions, committed in places 
 not within them, by persons that never put their 
 feet within them, but, by construction of law, com- 
 mitting them within such jurisdiction, and of course 
 triable therein. Fourthly, that it extends pecu- 
 liarly to the case of libels against the persons en- 
 trusted with the powers of government, or with 
 offices in the state. And, fifthly, that it extends 
 
570 MB. cuekan's speech on the 
 
 not only to offences committed after the com- 
 mencement of the act, but also to offences 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 of the writ, and 
 upon the affidavits, it appears, and has been ex- 
 pressly admitted in the argument: First, that the 
 supposed libel upon those noble and learned pro- 
 secutors relates to the unhappy circumstances that 
 took place in Ireland, on the twenty-third of July, 
 1803, and of course must have been pubhshed 
 subsequent thereto. And, secondly, that j\Ir. Justice 
 Johnson, from the beginning of 1802 to the present 
 hour, was never for a moment in England, but was 
 constantly a resident in Ireland ; so that his guilt, 
 whatever it be, must arise from some act, of neces- 
 sity committed in Ireland, and by no physical 
 possibility committed, or capable of being com- 
 mitted, in England. 
 
 These are the positions upon which a learned 
 chancellor and a learned judge come forward to 
 suppoit their cause, and to stake their character, 
 each in the face of his country, and both in the 
 face of the British empire ; 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 
 
TEIAIi 01" JUDGE JOHNSON. 571 
 
 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 trust 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 hberal 
 and learned court, acting under a rehgious 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 tip-toe to 
 peep over the syllable that stands between it and 
 meaning. If your object was merely to see if its 
 words could be tortured into a submission to a 
 vindictive interpretation, you would have only to 
 endorse the construction that these learned prose- 
 cutors have put upon it, and that with as much 
 grave dehberation as Mr. Justice Bell has vouch- 
 safed to endorse the warrant, which my Lord 
 EUenborough has thought fit to issue under its 
 authority. You would then have only to look at 
 it, "ut leguleius quidam cautits atque acutus, prae- 
 centor." 
 
 Lord Avonmore — No, Mr. Curran, you forget; it is noiprae- 
 centor; it is, ^'■leguleius quidam cautus atque acutus, prceco 
 actionum cantor formarum, auceps syllabarum.'' 
 
 Mr. CuEEAN. — I thank you, my lord, for the 
 assistance; and I am the more grateful, because, 
 when I consider the laudable and successful efforts 
 
572 MB. cueean's speech on the 
 
 tliat 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 harbourers 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 honour of an accomplice. Think, 
 should I be prosecuted for this misprision of learn- 
 ing, if I could resist the temptation of escaping, 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 23rd of 
 Geo. II., cap. 26, sec. 11. 
 
 So much of the title as relates to our present 
 inquiry is, "for the apprehending of persons in any 
 other county or place upon warrants granted by 
 justices of the peace in any other county or place." 
 
 See now sect. 11, that contains the preamble 
 and enactment as to this subject: — 
 
 "And, whereas, it frequently happens that per- 
 sons, against whom warrants are granted hy jus- 
 tices 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 
 
TRIAL OF JUDGE JOHNSON. 573 
 
 punisted for the offences wherewith they are 
 charged : for remedy whereof, be it enacted by 
 the authority aforesaid, that from and after the 
 24th day of June, 1750, in case any person against 
 whom legal warrant shall be issued by any justice 
 or justices of the peace for any county, riding, divi- 
 sion, city, liberty, town, or place, within this king- 
 dom, 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 
 lawful for any justice of the peace of the county, 
 riding, division, city, liberty, town, or place, to 
 which such person shall have gone or escaped, to 
 endorse 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 some other 
 justice or justices of the county, riding, divi- 
 sion, 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 notwith- 
 standing." 
 
 This act was amended by the 24th 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 appre- 
 hending of person in any county or place, upon 
 
574 ME. cueean's speech on the 
 
 warrants granted by justices of the peace of any 
 county or place." 
 
 It then recites the 11th section of the 23d of 
 G-eorge II., 9.nd proceeds, "And whereas such 
 offender or offenders may reside or be in some 
 other county, riding, division, city, hberty, 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 arg-ument which 
 will necessarily require it. At present I shall only 
 observe — First, that they are manifestly prospec- 
 tive ; 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 of- 
 fences by escaping from the jurisdiction in which 
 they were committed, and were of course triable 
 and punishable; and. Fourthly, that provision is 
 made for bailing the persons so arrested in the 
 place where taken, if the offences charged upon 
 them were bailable by law. 
 
 In the 1 3th of his present Maj esty, it was thought 
 fit to make a law with respect to criminals escap- 
 ing from England to Scotland, and vice 7'ersd; of 
 that act, the present statute of the 44th is a tran- 
 script. And upon this statute arises the first 
 
TEIAL OF JUDGE JOHNSON. 575 
 
 question made by the prosecutors ; namely, whe- 
 tlier, like the acts of the 23rd and 24th of Greorge 
 II. which were merely between county and county, 
 it extended indiscriminately to the lowest as well 
 as the highest offences? or whether the 13th and 
 44th, which go to kingdom and kingdom, are not 
 confined to some and to what particular species of 
 offences ? The preamble to these two statutes, so 
 far as they bear upon our present question, is con- 
 tained in the third section of the 44th, 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 malefactors in Ireland, may 
 make their escape into Great Britain, and also 
 that felons and other malefactors in Grreat Britain 
 may make their escape into Ireland, whereby their 
 crimes remam unpunished." There being no suffi- 
 cient provision by the laws now in force in Grreat 
 Britain and Ireland respectively, for apprehending 
 such offenders, and transmitting them into that 
 part of the United Kingdom in which their offences 
 were committed. "For remedy whereof, &c., and 
 if any person against whom a 'warrant shall be 
 issued by any justice of the peace in Ireland for 
 any crime or offence against the laws of Ireland, 
 shaU 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, &c., to endorse his name 
 
576 ME. cuekan's speech on the 
 
 on sucli warrant ; which warrant so endorsed shall 
 be a sufficient authority to the person bringing it 
 to execute the same, by apprehending the person 
 against whom it is granted, and to convey him by 
 the most direct way into Ireland, and before a jus- 
 tice living near the place where he shall land, which 
 justice shall proceed with regard to him as if he 
 had been legally apprehended 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 removal shall be repaid to the person de- 
 fraying the same, by the treasurer of the county in 
 which the crime was commiitted, and the treasurer 
 is to be allowed for it in his accounts. 
 
 To support the construction that takes in all 
 possible offences 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 has the words "any of- 
 fence," and that "any offence" must extend to 
 every offence, and of course to the offence in ques- 
 tion. If the question had been of the lighter kind, 
 you might perhaps have smiled at the parade of 
 authorities produced to estabhsh what no lawyer 
 ever thinks of denying. The learned gentlemen 
 would have acted with more advantage to the 
 
TKIAi OF JUDGE JOHNSON. 577 
 
 justice of the country, thougli perhaps not to the 
 wishes of their chents, if they had reminded your 
 lordships, that in the construction of a statute, the 
 preamble and even the title itself may give some 
 assistance to the judge in developing its meaning 
 and its extent ; if they had reminded you, that re- 
 medial laws are to be construed liberally, and penal 
 laws with the utmost strictness and caution. 
 
 And when they contended 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, as being incompatible with its 
 spirit. 
 
 They would have done well in adding, that the 
 judge is bound so to construe aU laws, as not to 
 infringe upon any of the known rules of religion 
 or morality, any of the known rules of distributive 
 justice, any of the established principles 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 principles on which I am per- 
 suaded 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 
 
 37 
 
578 ME. cubran's speech on the 
 
 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 ad- 
 verting to, and that is, that when many statutes 
 are made in jmri 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 component part. 
 
 On these grounds', then, I say the 44th was not, 
 and could not be intended to go to aU offences 
 whatsoever. 
 
 First, because the acts of 23d and 24th Gleorge 11. 
 had already described "all persons" by words of 
 the most general and comprehensive kind. If the 
 framers of the 13th and 44th meant to carry these 
 acts to the same 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 dif- 
 ficulty of admitting; hut will any man who under- 
 stands English deny, that they describe offences 
 of a higher and most enormous degree? You are* 
 told, that felon does not ncQessarily mean a capital 
 offender, because there are felonies not capital, 
 
TEIAL OF JUDGE JOHNSON. 579 
 
 the name being derived from the forfeiture, not of 
 life, but of property. You are also told that male- 
 factor means generally an iU-doer, and in that 
 sense, that every offender is a malefactor; but the 
 13th and 44th state 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 
 transmission was admitted to be not incompatible 
 with the just liberty of the subject of England; 
 but for whose transmission the legislature could 
 not say there was no provision: but for whose 
 transmission it was clear that there was not a 
 sufficient provision, though there was some provi- 
 sion. If you can find any class so circumstanced, 
 that is exclusively hable 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 trans- 
 mission of all persons to be illegal, except only 
 persons charged with capital crimes; for then- ap- 
 prehension and transmission there was a provision, 
 the mandatim regis; that is, the discretionary exer- 
 cise of the prerogative. That power had, therefore, 
 been used in cases of treason, as in Lundy's case. 
 So inthecase of Lord Sanquhar; CarUel,theprincipal 
 
 37* 
 
580 ME. curran's speech on the 
 
 in the murder of Turner, committed in London by 
 the procurement of Lord Sanquhar, 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 Sanquhar, the accessory before the fact. But 
 such interference of the prerogative might be 
 granted or withheld at pleasure, could be apphed 
 for only with great difficulty and expense, and 
 therefore might well be called an insufficient pro- 
 vision. No provision for such a purpose can be 
 sufficient, unless, instead of depending on the ca- 
 price 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 16th 
 section of the Habeas Corpus Act into effect; and 
 the other, a complete and radical repeal of that 
 sacred security for the freedom of Enghshmen. 
 
 But further, the spirit and the letter of the 
 Habeas Corpus law is, that the party arrested 
 shall, without a moment's delay, be bailed, if the 
 offence be bailable; but if misdemeanours are 
 within this act, then an English subject arrested 
 under an Irish warrant, cannot be bailed within 
 any part of the realm of England, but must be 
 carried forward in the custody of L-ish baihffs, to 
 the sea-shore of his country, where he is to be em- 
 barked in such vessel as they think proper; and. 
 
TRIAL OF JUDGE JOHNSON. 581 
 
 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 
 Greorge II., even from one county to the next, the 
 warrant by the first justice must be authenticated 
 upon oath, before it can be endorsed by the second; 
 but in this act, between, perhaps, the remotest re- 
 gions of different kingdoms, no authentication is 
 required ; and, upon the endorsement of, perhaps, 
 a forged warrant, which the Enghsh justice has no 
 means of inquiring into, a British subject is to be 
 marched through England, and carried over sea to 
 Ireland, there to learn in the county of Kerry, or 
 Galway, or Derry, that he has 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 pro- 
 ject of vindictive malice ; and that he is then at 
 liberty to return, if he be able ; that he may have 
 a good action at law against the worthy and re- 
 sponsible bailiff that abused him, if he is foolish 
 
582 ME., cueban's speech on the 
 
 enough to look for him, or unfortunate 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 
 justice of the legislature ? 
 
 I said, my lords, that an Englishman may be 
 taken upon the endorsement of a forged warrant. 
 Let me not be supposed to be such a simpleton as 
 to think that 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 prosecuting .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 endorsement at the other side of the water. 
 But fui fcher 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 expenses, — an 
 angry minister or a vindictive individual? 
 
 I can easily see that such a construction would 
 furnish a most effectual methou of getting rid of a 
 troublesome political opponent; or a rival in trade; 
 or a rival in love ; or of quickening the undutiful 
 lingering of an ancestor that felt not the maturity 
 of his heir ; but I cannot bring myself to believe, 
 
TKIAL OF JUDGE JOHNSON. 583 
 
 that a sober legislature, when the common rights 
 of humanity seem to be beaten into their last en- 
 trenchment, and to make their last stand, — I trust 
 in God, a successful one, — in the British empire, 
 ■would choose exactly that awful crisis for destroy- 
 ing 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 struggling for the noble privilege of holding the 
 right of freedom, of habitation, and of country, at 
 the courtesy of every little irritable officer of state, 
 or of our worshipful Rivets, and Bells, and Medh- 
 cots, and their trusty and well-beloved cousins and 
 catchpoles. 
 
 But, my lords, even if the prosecutor should 
 succeed, which for the honour and character of 
 Ireland I trust he cannot, in wringing from the 
 bench an admission that all offences whatsoever 
 are within this act, he will have only commenced 
 his honourable 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 liis escape into Ireland, whereby 
 his offence may remain unpunished, and liable to 
 be arrested under a warrant endorsed in that place 
 whither or where such person escape, go into, re- 
 side, or be. For this inquiry you must refer to the 
 23d and 24th of George II. The first of these, 
 23d, cap. 11, recites the mischief, "that persons 
 agamst whom warrants are granted, escape into 
 
584 MB, ctjbean's speech on the 
 
 other countries, 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 endorse the original 
 warrant, and the person accused shall thereunder 
 be sent to the justice who granted it, to be by him 
 dealt Avith," &c. 
 
 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 : first, 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 at the moment of arrest, if the charge was 
 bailable. 
 
 Accordingly, the 24th of George II., cap. 55, was 
 made : after reciting the former act, and the class 
 of offenders thereby' described, namety, actual of- 
 fenders 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 afrer such a 
 warrant granted;" it then enacts, "that the justice 
 for such place where such person shall escape, go 
 
TEIAL OF JUDGE JOHNSON, 585 
 
 into, reside, or be, shall endorse, &c. and naay bail, 
 if bailable, or transmit," &c. 
 
 Now the construction of these two acts taken 
 together is manifestly this : it takes in every person, 
 who being in any jurisdiction, and committing an 
 offence therein, escaping after warrant, or without 
 escaping after warrant, going into some other 
 jurisdiction, 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 reahn of England since the begin- 
 ning of 1802, more than a year before the offence 
 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 
 v\hich he had never left. To let in this wise and 
 humane construction, see what you are called upon 
 to do; the statute makes such persons liable to 
 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 
 liable, it follows of course, that the only two verbs 
 that imply doing any thing, that is escape or go into, 
 must be regarded as superfluous ; that is, that the 
 legislature had no idea whatsoever to be conveyed 
 by them when they used them, and, therefore, are 
 to be altogether expunged and rejected. 
 
 Such, my lords, are the strange and unnatural 
 
586 KB. cueean's speech on the 
 
 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 satisfaction, 
 in reflecting that my own country cannot mono- 
 polize the derision and detestation that such a pro- 
 duction 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 ; here, I trust in 
 God, we shall haye 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 coimtry, 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 humanity; 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 Ave have now 
 a common interest, and under the ruins of which, 
 if it should be overthrown, we must be buried m a 
 common destruction. 
 
 I am not ignorant, my lords, that this extraor- 
 dinary construction has received, the sanction of 
 another court, nor of the surprise and dismay with 
 which it smote upon the general heart of the bar. 
 I am aware that I may have the mortification of 
 
TEIAL OF JUDGE JOHNSON. 587 
 
 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 purest fountains of Athens and of Kome; 
 who had fed the youthful vigour of his studious 
 mind with the theoretic knowledge of their wisest 
 philosophers ahd statesmen ; and who had refined 
 that theory into the quick and exquisite sensibility 
 of moral instinct, by contemplating the practice of 
 their most illustrious examples; — by dwelling on 
 the svfeet-souled piety of Cimon — on the antici- 
 pated Christianity of Socrates; — on the gallant and 
 pathetic patriotism of Epaminondas ; — on that pure 
 austerity of Fabricius, whom to move from his in- 
 tegrity 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 hesitation was 
 like the passing cloud that floats across the morn- 
 ing 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 hfe; from the 
 remembrance of those attic nights and those 
 
588 ME. cueban's speech on the 
 
 refections of the gods which we have partaken 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. 
 
 Here Lord Avonmore could not refrain from bursting into 
 tears. 
 
 Yes, my good lord, I see you do not forget them; 
 I see their sacred forms passing in sad review be- 
 fore your memory ; I see your pained and softened 
 fancy recalling those happy meetings, where the 
 innocent enjoyment of social mirth became ex- 
 panded into the nobler warmth of social virtue, 
 and the horizon of the board became enlarged into 
 the horizon of man ; where the swelling heart con- 
 ceived and communicated the pure and generous 
 purpose, where 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." "^^ 
 
 * Lord Avonmore, in whose breast political resentment was 
 easily subdued, by the same noble tenderness of feeling wbicli 
 distinguished Pox, upon a more celebrated occasion, could not 
 withstand this appeal to his heart. At this period there was a 
 suspension of intercourse between him and Mr. Curran ; but the 
 moment the court rose, his lordship sent for hiS friend, and 
 
TRIAL OF JUDGE JOHNSON. 589 
 
 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 
 44th 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 
 13th of the Eang, that it was made to prevent im- 
 punity by escape, by giving a power of "sending 
 back" such offenders as had so escaped. 
 
 This topic of argument would now naturally 
 claim its place in the present discussion. I men- 
 tion 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 subsequent head of this inquiry in a manner 
 more forcibly applicable to the object; when I 
 think I may venture to say it will appear to de- 
 monstration, that if the offence charged upon the 
 defendant be triable at aU, it is triable in Ireland, 
 and no where else ; and, of course, that the prose- 
 cutors are acting in direct violation of the statute, 
 when they seek to transport him from a place 
 where he can be tried, into another country which 
 can have no possible jurisdiction over him. 
 
 Let us now, my lords, examine the next position 
 contended for by these learned prosecutors. Hav- 
 
 threw himself into his arms, declaring that unworthy artifices 
 had been used to separate them, and that they should never 
 succeed in future.— Zi/i" of Curran by his Son, Vol. i., p. 148, note. 
 
590 MB, cxirean's speech on the 
 
 ing laboured to prove that tlie act applies not 
 merely to capital crimes, but to all offences what- 
 soever; having laboured to show that an act for 
 preventing impunity by escajje extends to cases 
 not only Avhere there was no escape, but where 
 escape in fact was physically impossible, they pro- 
 ceeded 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 ad- 
 vance: that is, that the defendant may, by con- 
 struction of law, be guilty of an offence in West- 
 minster, though he should never have passed within 
 its limits, till he was sent thither to be tried. 
 
 With what a fatal and inexorable uniformity 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 dic- 
 tated 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 ap- 
 plication of the ill-understood rules of a vulgar, 
 clerk-like, and illiterate 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 vene- 
 rated by the wise, or perverted by the foohsh, or 
 
TEIAL OP JUDGE JOHNSOK. 591 
 
 that the cMldren of men in any age or climate of 
 the world have ever yet beheld — the same instru- 
 ments, the same movements, the same artists, the 
 same doctrines, the same doctors, the same servile 
 and infuriated contempt of humanity, and persecu- 
 tion of freedom ! — the same shadows of 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 been 
 once a cat. 
 
 But it seems as if the whole order and arrange- 
 ment of the moral and the physical world had been 
 contrived for the instruction of man, and to warn 
 him that he is not unmortal. 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 ma- 
 turity and manhood is the commencement of its 
 old age; the race of writers, and thinkers, and 
 reasoners, passes away, and gives place to a suc- 
 cession of men who can neither write, nor think, 
 nor reason. The Hales, the Holts, and the So- 
 merses, shed a transient hght upon mankind, but 
 are soon extinct and disappear, and give place 
 to a superficial and overweening generation of 
 laborious and strenuous idlers, of sUly scholiasts, 
 of wrangling mooters, of prosing garruhsts, who 
 
592 MB. cubean's speech on the 
 
 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 PaUadios is 
 extinct, you may expect to see a clumsy hod-man 
 collected beneath the shade of his shoulders — 
 
 E^o^^oi avOpmiicuv -/.ecpaXr,'; v.at eupea? u)[j.8c" — 
 
 affecting to fling a builder's glance upon the temple, 
 on the proportion of its pillars; and to pass a 
 critic's judgment on the doctrine that should be 
 preached within them. 
 
 Let it not, my lords, be considered amiss, that 
 I take this up as an English rather than an Irish 
 question. It is not merely because we have no 
 habeas corpus law in existence (the antiquarian 
 may read of it, though we do not enjoy it); it is 
 not merely because my mind refuses itself to the 
 delusion of imaginary 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, that, blended as 
 we now are, the liberty of man must fall where it 
 is highest, or rise where it is lowest, till it finds its 
 common level in the common empire — and be- 
 cause, also, I wish that Englishmen may see, that 
 
TBIAL or JUDGE JOHNSON. 593 
 
 we are conscious that nothing but mutual bene- 
 volence and sympathy can support the common 
 interest that should bind us against the external 
 or the intestine foe — and that we are willing, 
 whenever that 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 constructive crimes. 
 
 A man is bound to • obedience, and punishable 
 for disobedience of laws: — first, because, by living 
 within their jurisdiction, he avails himself of their 
 protection — and this is no more than the recipro- 
 city of protection, and allegiance on a, narrower 
 scale; and, secondly, because, by so Hving within 
 their jurisdiction, he has the means of knowing 
 them, and cannot be excused because of his igno- 
 rance of them. 
 
 I should be glad to know upon the authority of 
 what manuscript, of what pocket-case, the sound- 
 ness of these principles can be disputed? I should 
 be glad to know upon what known principle of 
 English law a Chinese, or a Laplander, can be kid- 
 napped 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 
 
 38 
 
594 MR. curean's speech on the 
 
 act, the non-performance of "which, might have 
 forfeited his liberty or his hfe 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 essential 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 offence; 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 pro- 
 cess to enforce the attendance of witnesses for his 
 defence. They were too simple to know any thing 
 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 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 which are not triable, be- 
 cause of the local limits of criminal jurisdictions." 
 
 And, my lords, to show with what a rehgious 
 scrupulosity the locality of jurisdictions was ob- 
 served, you have an instance in the most odious 
 of all offences, treason only excepted — I mean the 
 crime of wilful murder. By the common law, if a 
 
TEIAL or JUDGE JOHNSON. 595 
 
 man in one county procured a murder to be com' 
 mitted, which was afterwards actually committed 
 in another, such procuror could not be tried in 
 either jurisdiction, because the crime was not com- 
 pleted 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 jurisdic- 
 tion 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 procurement, and where alone his accessorial 
 offence 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 juris- 
 diction, 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 in which the pastry-cooks 
 and snuff-shops have been defrauded of their natural 
 right to those compositions that may be useful 
 without being read, has even a single manuscript 
 been offered to show th^ 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 
 
596 ME. cueean's speech on 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, without 
 any additional aggravation. In 1794, the design 
 — and odious enough it was — was confined to the 
 doctrine of constructive guilt; but it did not ven- 
 ture upon the atrocious outrage of a substituted 
 jurisdiction. The Enghshman was tried on English 
 ground where he "Was known, where he could pro- 
 cure his witnesses, where he had lived, and where 
 he was accused of a crime, whether actual or con- 
 structive; but the locality of the trial defeated the 
 infernal malice of these prosecutions. The speeches 
 of half the natural day, where every juryman had 
 his 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 agaiu on 
 the same stage. It was thought wise, therefore, 
 to let some httle time pass, and then to let its 
 author produce it on some other distant, provin- 
 cial theatre, for his own benefit, and at his own 
 expense and hazard. 
 
 To drag an English judge from liis bench, or an 
 English Member 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 waggon, or hand him over to an Irish bai- 
 liff, with a rope tied about his leg, to be goaded 
 forward like an ox, on his way to Ireland, to be 
 
TEIAL OF JUDGE JOHNSON. 597 
 
 tliere 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 RomsB, modo ponit Athenis !" 
 The people of England might, perhaps, enter into 
 the feehngs of such an exhibition with an officious- 
 ness of sympathy not altogether for the benefit of 
 the contrivers: — 
 
 "Nee coram populo natos Medea trucidet" — 
 and it was thought wise to try the second produc- 
 tion before spectators whose necks were phant, 
 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 was not honest, 
 to be silent. I cannot deny that it was prudent 
 to try an experiment, which if successful, must 
 reduce an Enghshman to a state of slavery, more 
 abject and forlorn than that of the helots of Sparta, 
 or the negroes of your plantations. 
 
 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 may be a crime against each distinct 
 peace, and severally and successively punishable 
 in each country — so much more inveterate is the 
 
598' ME. cubban's speech on the 
 
 criminality of a constructive than of an actual 
 offence. 
 
 So that the same man for the same act, against, 
 laws that he never heard of, may be punished in 
 Ireland, be then sent to England, by virtue of the 
 warrant of Mr. Justice Bell, endorsed by my Lord 
 EUenborough; and after having his health, his 
 hopes, and his property destroyed, for his construc- 
 tive offences against his Majesty's peace in Ireland, 
 and his Majesty's peace in England, 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 be- 
 fore 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 construc- 
 tion of such a law would put every individual in 
 society under the despotical dominion, would reduce 
 him to be the despicable chattel, of those most 
 hkely to abuse their power, the profligate of the 
 higher, and the abandoned of the lower orders; to 
 the remorseless malice of a vindictive minister; to 
 the servile instrumentality of a trading justice? 
 Can any man who hears me, conceive any possible 
 case of abduction, of rape, or of murder, that may 
 not be perpetrated, under the construction now 
 shamelessly put forward. 
 
 Let us suppose a case: — By this construction a 
 
TEIAL OF JUDGE JOHNSOK. 599 
 
 person in England, by procuring a misdemeanour 
 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, 
 counselling her to steal a row of pins from an 
 Irish pedlar, 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 EUenborough, knowing 
 the signature, and reverencing the virtue of his 
 tried and valued colleague, endorses this warrant; 
 is it not clear as the sun, that this EngUsh lady 
 may, in the dead of the night, be taken out of her 
 bed and surrendered to the mercy of two or three 
 Irish bailiffs, if the captain who employed them 
 should happen to be engaged in any contemporary 
 adventure nearer to his heart, without the possi- 
 bility 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 afterward by the worshipful correspon- 
 dent 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 re-drawing for human 
 
600 ME. cukean's speech on the 
 
 flesh, between our worthy Bells and Medlicots on 
 this side of the water, and their noble or their ig- 
 noble correspondents 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 for 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 petti- 
 coat — Brother B. I have sent you the body of a 
 most intractable disturber, 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 ludicrous, but not probable, 
 and therefore, not supposable cases. But I answer, 
 that 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 colour 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 rancour 
 and mahce of irritated pride and wounded vanity. 
 
TEIAL OF JUDGE JOHNSON. 601 
 
 To the argument of improbability, I adduce in 
 answer, the very fact, the very question in debate; 
 nor to such answer can I see the possibihty 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 aston- 
 ished at the tranquil courage of any man who 
 can quietly see that a loaded cannon is brought to 
 bear on 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 land-marks of rights, and duties, 
 and obligations ; in substituting sounds in the place 
 of sense ; in substituting a vile and canting method- 
 ism in the place of social duty and practical ho- 
 nour; in suffering virtue to evaporate into phrase, 
 and morality into hypocrisy and affectation? We 
 talk of the violations of Hamburgh or of Baden; 
 we talk of the despotic and remorseless barbarian, 
 who tramples on the common privileges of the 
 human being ; who, in defiance of the most known 
 and sacred rights, issues the brutal mandate of 
 usurped authority ; who brings his victim by force 
 
602 ME. cueean's speech on the 
 
 within the limits of a jurisdiction to which he 
 never owed obedience, and there butchers him for 
 a consti-uctive offence. Does it not seem as if it 
 were a contest whether we should be more scur- 
 rilous in invective, or more atrocious 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 rivalry ! 
 
 My lords, the learned counsel for the prosecutors 
 have asserted that this act of the 44th of the King 
 extends to all offences, no matter how long or pre- 
 viously to it they may have been committed. The 
 words are, "That from and after the 1st day of 
 August, 1804, if any person, &c. shall escape, &c." 
 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 temporary 
 bar of these words they wave by the equity of 
 their own construction, and thereby make it a re- 
 trospective 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 offence, and 
 only makes the offender amenable who was not so 
 before. The law professes to take eff'ect only from 
 
TEIAL OP JUDGE JOHNSON. 603 
 
 and after the 1st 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 dwelling; but 
 the moment the act took effect, it is made to ope- 
 rate upon an alleged offence, committed, if at all, 
 confessedly eighteen months before. 
 
 But another word as to the assertion, that it is 
 not e,x 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 unreason- 
 able as not to feel the force of the distinction. 
 
 How naturally, too, we find similar outrages 
 resort to similar justifications ! Such exactly was 
 the defence of the forcible entry into Baden. Had 
 that been a brutal violence committed in perpetra- 
 tion of the murder of the unfortunate victim, per- 
 haps very scrupulous moralists might find some- 
 thing in it to disapprove of; 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 
 
604 MR. cueean's speech on the 
 
 his Imperial Majesty only introduced a clause of 
 ne omittas into his warrant, whereby the worship- 
 ful Bells and Medlicots that executed it were 
 authorised 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 amenable 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, v/liat they themselves can- 
 not look at without shame ; and for which no 
 legitimate reason can suggest either justification 
 or excuse. Such are the principles of criminal 
 justice on which the first experiment is made in 
 Ireland; but I venture to pledge myself to my 
 fellow-subjects of Great Britain, that if the experi- 
 ment succeeds, they shall soon have the full benefit 
 of that success. I venture to promise them, they 
 shaU 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 offence here appears by the return and the 
 affidavits, to be a libel upon the Irish government, 
 
TEIAL OP JUDGE JOHNSON. 605 
 
 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 hemisphere, you have already 
 heard enough. Here, therefore, we will consider 
 it simply as an illegal hbel upon the Irish govern- 
 ment ; 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 em- 
 powered to grant a warrant for conveying the 
 person accused for trial into the other. 
 
 Your lordships will observe, 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 mat- 
 ter of "law, involving 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 par- 
 liament, 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 is to grant such a 
 
606 MB. curean's speech on the 
 
 warrant upon sucli a charge: he, no doubt, may easily 
 comprehend the allegation of the informer, as to 
 the fact of writing the supposed libel; in deciding 
 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 
 publication. 
 
 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 labour, in which I believe no 
 man could expect him to succeed ; that is, how far 
 the paper sworn to was, in point of legal construc- 
 tion, 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 
 hberty or of law. To say it would give an irre- 
 sistible power of destroying the hberty of the press 
 in Ireland, would, I am well 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 hberty in the sister nation. 
 When my own lamp is broken, I have a double 
 interest in the preservation of my neighbour's. 
 
 But if every man in England, who dares to ob- 
 serve, no matter how honestly and justly, upon the 
 
TEIAL OF JUDGE JOHNSON. 607 
 
 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 govern- 
 ment, 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 em- 
 pire only, but of the whole civilized world, depends 
 on the steady faith and consolidated efforts of 
 these two countries, when Ireland is become the 
 right arm of England, when every thing that draws 
 the common interest and affection closer gives the 
 hope of hfe, 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 
 foUy of those entrusted with its management, so 
 act as to destroy its internal prosperity and repose, 
 and lead it into the two-fold fatal error, of mis- 
 taking its natural enemies for its friends, and its 
 natural friends for its natural enemies; without 
 any man being found so romantically daring, as to 
 give notice of the approaching destruction. 
 
 My lords, I suppose the learned counsel wiU 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 heinous a pro- 
 duction 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 
 
608 MR. curban's speech on the 
 
 gentlemen for the prosecution thought it wise for 
 their chents 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 defend- 
 ant, and at the same time of panegyrising their 
 clients; they have, therefore, not argued upon the 
 hbel generally as a libel, but they have thought it 
 prudent to appear perfectly acquainted with the 
 charges which it contains: they have, therefore, 
 assumed, that it relates to the transactions of the 
 23rd of July, 1803 ; and that the guilt of the defend- 
 ant was, that he wrote that letter in Ireland, 
 which was afterwards published in England, 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 England, most manifestly there 
 must have been a precedent publication, not merely 
 by construction of law, in Ireland, but a publica- 
 tion by actual fact. And for this plain reason, if 
 you for a moment suppose the libel in his posses- 
 sion (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 publication here. Because, if he put it into 
 the post-offifce, or gave it to a messenger to carry 
 
TEIAL OF JUDGE JOHNSOK. 609 
 
 thither, that would be complete evidence of pubH- 
 cation against him. 
 
 So would the mere possession of the paper, in 
 the hands of the witness who appeared and pro- 
 duced it, be perfect evidence, if not accounted for, 
 or contradicted, to charge him with the pubHca- 
 tion; so that really I am surprised how gentlemen 
 could be betrayed into positions so utterly without 
 foundation. 
 
 They would have acted 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 jm-y. The facts 
 of that period were too well understood. The 
 Irish pubhc might have looked at such a prose- 
 cution 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 refuting 
 the charges against them as a calumny, they would 
 have exposed themselves to. the peril of estabhsh- 
 ing the accusation, and of raising the character of 
 the man whom they had the heart to destroy, be- 
 cause he had dared to censure them. 
 
 Let not the learned gentlemen, I pray, suppose 
 me so ungracious as to say, that this pubhcation, 
 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, -vyhich is- 
 
 39 
 
610 ME. cueban's speech on the 
 
 matter of law. But as tlie gentlemen themselves 
 thought it meet to pronounce an eulogy on their 
 chents, I ttought 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 hbel 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 calumniators aspersing the 
 most virtuous ministers. Whether such supposed 
 cases have been suggested by fancy or by fact, 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 fingere pauca 
 Possum, invidear?" 
 
 Let me, then, my lords, put an imaginary case 
 of a different kind: let me suppose that a great 
 personage, entrusted with the safety of the citadel 
 (meaning and wishing perhaps well, but misled by 
 those lacquered vermin that swarm in every great 
 
TBIAL OP JUDGE JOHNSON. , 611 
 
 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 depart- 
 ment, and under the supposed authority of high 
 station, disseminating such doctrines as tend to 
 root up the foundation of society, to destroy aU 
 confidence between man and man, and to impress 
 the great body of the people with a delusive and 
 desperate opinion, that their rehgion could dissolve 
 or condemn the sacred obligations that bind them 
 to their country, 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 government: 
 that if on one side bigotry or foUy 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 direful 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 ex- 
 posing the conduct of such persons, by holding up 
 the folly of such bigoted and bhnd enthusiasm to 
 condign derision and contempt; and painfully would 
 he feel that on such an occasion he must dismiss 
 
 39* 
 
612 ME. cueban's speech on the 
 
 all forms and ceremonies; 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 endeavour to justify himself by defaming 
 the country which he had abused, for calumny is 
 the natural defence of the oppressor: he should 
 therefore 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 httle 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 comosda est." 
 In no country under heaven would an ass be more 
 likely to be hood- winked, by having his ears drawn 
 over his eyes, and acquire that fantastical alacrity 
 that makes dullness disposable to the purposes oj 
 humourous mahce, or interested imposture. 
 
 In Ireland, a new great man could get the free- 
 dom of a science as easily as of a corporation, and 
 become a doctor, by construction, of the whole 
 Encyclopsedia; and great allowance might be made 
 under such circumstances for indiscretions and 
 mistakes, as long as they related only to himself; 
 but the moment they become pubhc miscliiefs, 
 
TEIAIi OP JUDGE JOHNSON. 613 
 
 tHey lose all pretensions to excuse; the very am- 
 bition of incapacity is a crime not to be forgiven; 
 and however painful it may be to inflict punish- 
 ment, it must be remembered, that mercy to the 
 dehnquent would be treason to the pubUc. 
 
 I can the more easily understand the painfulness 
 of the conflict between charity and duty, because' 
 at this moment I am labouring under it myself; 
 and I feel it the more acutely, because I am con- 
 fident, that the paroxysms of passion that have 
 produced these public discussions have been bit- 
 terly repented of. I think, also, that I should not 
 act fairly if I did not acquit my learned opponents 
 of aU 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 mis- 
 givings, methmks I hear the answer that he gives, 
 after a pause of sympathy and reflection: "No, sir, 
 do not 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 countries upon your back. An Enghsh jury 
 would never find him guilty. You will only con- 
 firm the charge against yourself, and be the victim 
 
614 ME. cueban's speech on the 
 
 of an impotent abortive malice. If you should 
 have any ulterior project against him, you will 
 defeat that also; for they who might otherwise 
 concur in the design, will be shocked and ashamed 
 of the violence and foUy of such a tyrannical pro- 
 ceeding, 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 pubhcation 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 wiU make it worse. It wiU 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 do not 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 reflect- 
 ing, 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 counsel given; but 
 I have no apprehension for my client, because it 
 was not taken. 
 
 Even if it should be his fate to be surrendered 
 to his keepers — to be torn from his family — to 
 
TRIAL OP JUDGE JOHNSON. 615 
 
 have his obsequies performed by torch-Kgh.t — ^to 
 be carried to a foreign land, and to a strange tri- 
 bunal, where no witness can attest his innocence 
 — where no voice that he ever heard can be raised 
 in his defence — where he must stand mute, not of 
 his own malice, but the malice of his enemies — 
 yes, even so, I see nothing for htm to fear. That 
 all-gracious Being that shields the feeble from the 
 oppressor wdl fill his heart with hope, and con- 
 fidence, and courage: his sufferings will be his 
 armour, and his weakness wOl be his strength. He 
 will find himself in the hands of a brave, a just, 
 and a generous nation; he wiU find that the bright 
 examples of her EusseUs and her Sidneys have nof 
 been lost to her children. They will behold him 
 with sympathy and respect, and his persecutors 
 with shame and abhorrence. They will feel, too, 
 that what is then his situation, may to-morrow be 
 their own; but their first tear wHl be shed for him, 
 and the second only for themselves — their hearts 
 wiU melt in his acquittal. They will convey him 
 kindly and fondly to their shore; and he wHl return 
 in triumph to his country — to the threshold of his 
 sacred home — and to the weeping welcome of his 
 delighted family. He will find that the darkness 
 of a dreary and hngering night hath at length 
 passed away, and that joy cometh in the morning. 
 No, my lords, I have no fear for the ultimate 
 safety of my client. Even in these very acts of 
 brutal violence that have been committed against 
 
616 MB. cubean's speech on the 
 
 him, do I hail the flattering hope of final advan- 
 tage to him, and not only of final advantage to 
 him, but of better days and more prosperous for- 
 tune for his afflicted country — that country, of 
 which I have so often abandoned all hope, and 
 which I have been so often determined to quit for 
 ever. 
 
 "SsBpe vale dioto multa sum deinde locutus, 
 Et quasi discedens oscula summa dabam, 
 Indulgens animo, pes tardus erat." 
 
 But I am reclaimed from that infidel despair. 
 I am satisfied that while a man is sufi'ered to five, 
 it is an intimation from Providence that he has 
 some duty to discharge, which it is mean and 
 criminal to dechne. Had I been guilty of that 
 ignominious .flight, and gone to pine in the ob- 
 scurity of some distant retreat, even in that grave 
 I should have been haunted by those passions by 
 which my life had been agitated — 
 
 "vivis quss cura 
 
 Eadem sequitur tellure repostos." 
 
 And if the transactions of this day had reached 
 me, I feel how my heart would have been agonized 
 by the shame of the desertion: nor would my 
 sufferings have been mitigated by a sense of the 
 feebleness of that aid, or the smallness of that 
 service which I could render or withdraw. They 
 would have been aggravated by the consciousness 
 that, however feeble or worthless they were, I 
 should not have dared to thieve them from my 
 
TEIAL or JUDGE JOHNSON. 617 
 
 country. I have repented — ^I have stayed — and I 
 am at once rebuked and rewarded by the happier 
 hopes that I now entertain. 
 
 In the anxious sympathy of the pubHc — ^in the 
 anxious sympathy of my learjied brethren — do I 
 catch the happy presage of a brighter fate for 
 Ireland. They see, that within these sacred walls 
 the cause of liberty and of man may be pleaded 
 with boldness and heard with favour. I am satis- 
 fied they wUl never forget the great trust, of which 
 they alone are now the remaining depositories. 
 While they continue to cultivate a sound and 
 literate philosophy — a mild and tolerating Chris- 
 tianity — and to make both the sources of a just, 
 and hberal, and constitutional jurisprudence, I see 
 everything for us to hope. Into their hand^, there- 
 fore, with the most affectionate confidence in their 
 virtue, do I commit these precious hopes. Even I 
 may live long enough yet to see the approaching 
 completion, if not the perfect accomphshment of 
 them. Pleased shall I then resign the scene to 
 fitter actors; pleased shall I lay down my wearied 
 head to rest, and say: — "Lord, now lettest thou 
 thy servant depart in peace, according to thy 
 word, for mine eyes have seen thy salvation." 
 
 On the 7th of February, the judgment of the Court was given 
 against the release. 
 
 Mr. James Fitzgerald brought the case before the English 
 Commons, on the 8th of February, without effect. On the 27th 
 of May, a biU was brought into the English Commons, to amend 
 
618 TEIAIi OF JUDGE JOHNSON. 
 
 the act of the former year, and enahling parties arrested to 
 give bail, and granting suhpoenas for witnesses in Ireland. 
 When this bill reached the Lords, Johnson petitioned against 
 it, and was heard by counsel; but it passed. 
 
 Pursuant to the decision of the Irish Courts, Judge Johnson 
 was, therefore, removed J;o England; and having there pleaded 
 specially to the indictment, the non-jurisdiction of the Court 
 under the act, the Crown demurred, and on the 1st of July his 
 plea was quashed. 
 
 On the 23rd of November, 1805, the trial took place before 
 the full Court of King's Bench, in Westminster, and a special 
 jury. Erskine, Garrow, &c., were with the law officers of the 
 Crown. Cobbett swore to the documents, and four Irish 
 officials swore that they were in Johnson's writing. After an 
 argument on non-proof of publication in Middlesex, Mr. Adams 
 spoke for the defence, and called Sir Henry Jebb, Dr. Hodg- 
 kinson (S. P. T. C. D.), Mr. Archdall, Mr. John Gifford, and 
 Mr. Cassidy, to prove the handwriting not Judge Johnson's. 
 After a quarter of an hour's deliberation, the jury found a 
 verdict of Guilty. A nolle prosequi was entered on this by 
 the Whig Government in Trinity Term, 1806, and Johnson 
 retired upon his pension.