lations of Hamburgh or of Baden; we talk of the despotical and remorseless barbarian who tramples on the common privileges of the human being; who, in defiance of the most known and sacred rights, issues the brutal mandate of usurped authority; who brings his victim by force within the limits of a jurisdiction to which he never owed obedience, and there butchers him for a constructive offence. Does it not seem as if it were a contest whether we should be more scurrilous 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 rivality! My lords, the learned counsel for the prosecutors have asserted, that this act of the fortyfourth of the king extends to all offences, no matter how long or previously to it they may have been committed. The words are," That from and after the first day of August, 1804, if any person, &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 retrospective law; and having so construed it a manifestly er 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 effect only from and after the first of August, 1804:-Now, for eighteen months before that day, it is clear that Mr. Johnson could not be removed by any power existing from his country and his dwelling; but the moment the act took effect, it is made to operate upon an alleged offence, committed, if at all, confessedly eighteen months before. But another word as to the assertion, that it is not er 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 er post facto; but here he suffers the deportation, while the law is bound to suppose him perfectly innocent; and that only by way of process to make him amenable, not by way of punishment: and surely he cannot be so unreasonable as not to feel the force of the distinction. How naturally, too, we find similar outrages resort to similar justifications! Such exactly was the defence of the forcible entry into Baden. Had that been a brutal violence committed in perpetration of the murder of the unfortunate victim, perhaps very scrupulous moralists might find something in it to disapprove; but his imperial majesty was too delicately tender of the rights of individuals and of nations, to do any act so flagrant as that would be, if done in that point of view; but his imperial majesty only introduced a clause of ne omittas into his warrant, whereby the worshipful Bells and Medlicotts 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, what they themselves cannot look at without shame, and for which no legitimate reasoning can suggest either justification or excuse. Such are the principles of criminal justice, on which the first experiment is made in Ireland; but I venture to pledge myself to my fellow-subjects of Great Britain, that, if the experiment succeeds, they shall soon have the full benefit of that success. I venture to promise them, they shall soon have their full measure of this salutary system for making men "amenable," heaped and running over into their bosoms. There now remains, my lords, one, and only one topic of this odious subject, to call for observation. The offence here appears by the return and the affidavits to be a libel upon the Irish government, published by construction in Westminster. Of the constructive commission of a crime in one place by an agent, who, perhaps, at the moment of the act, is in another hemisphere, you have already heard enough:-Here, therefore, we will consider it simply as an alleged libel upon the Irish government; and whether, as such, it is a charge coming within the meaning of the statute, and for which a common justice of peace in one kingdom is empowered to grant a warrant for conveying the person accused for trial into the other. Your lordships will 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 matter of law, involving the smallest doubt or difficulty whatsoever. In treason, the overtact; 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 non! breach of the peace; and upon that ground it be triable somewhere. As to the first posi[254 tion, I say the law is directly against them. gentlemen for the prosecution thought it wise From a very early stage of the discussion, the for their clients to take a range into the facts much more at large than they appeared on the return to the writ, or even by the affi davits that have been made; and they have done this to take the opportunity of vating the guilt of the defendant, and at the aggrahave therefore not argued upon the libel ge same time of panegyrising their clients; they nerally as a libel, but they have thought it prudent to appear perfectly acquainted with the charges which it contains:-they have actions of the twenty-third of July, 1803, and therefore assumed, that it relates to the trans that the guilt of the defendant was, that he wards published in England; not by himself, wrote that letter in Ireland, which was afterbut by some other persons. Now, on these! facts, nothing can be clearer than that she is it here, and it was published in England, triable here. If it be a libel, and if he wrote most manifestly there must have been a pres cedent publication, not merely by construc tion of law, in Ireland, but a publication by actual fact; and for this plain reason, if you for a sion (and suppose the libel in his posses was, that Mr. Wilkes, in 1763, was allowed the privilege of parliament, which privilege does not extend to any breach of the peace. See then, my lords, what a task is imposed upon a justice of the peace, if he is to grant such a warrant upon such 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 ifI 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 construction, libellous or not. I trust, this Court will never be prevailed upon to sanction, by its decision, a construction that would give to such a set of men a power so incompatible with every privilege of liberty, or of law. To say it would give an irresistible power of destroying the liberty of the press in Ireland would, I am aware, be but a silly argument, where such a thing has long ceased to exist; but I have for that very reason a double interest now, as a subject of the empire, in that noble guardian of liberty in the sister 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 observe, no matter how honestly and justly, upon the conduct of Irish ministers, is liable to be torn from his family and dragged bither by an Irish bailiff, for a constructive libel against the Irish government, and upon the authority of an Irish warrant, no man can be such a fool as not to see the consequence. The inevitable consequence is this: that at this awful crisis, when the weal, not of this empire only, but of the whole civilized world, depends on the steady faith and 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 life-when every thing that has even a tendency to relax that sentiment is a symptom of death,-even at such a crisis may the rashness or folly of those entrusted with its management so act as to destroy its internal prosperity and repose, and lead it into the two-fold fatal error, of mistaking 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 will do here what they have done in the other court: they will assert, that this libel is not triable here; and they will argue, that so false and heinous a production surely ought to if he did in fact write it, Ireans scarcely conceive that it was not, unless heb wrote it perhaps by construction), there were no physical means of transmitting it to Eng here; because, if he put it into the post land that would not amount to a publication office, or gave it to a messenger to carry this ther, that would be complete evidence of pube session of the paper, in the hands of the witte lication against him; so would the mere poss evidence, if not accounted for or contradicted, ness who appeared and produced it, be perfect to charge him with the publication; 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 ad mitted, what every man knows to be the fact, before an Irish jury. The facts of that period that is, that they durst not bring the charges were too well understood, The Irish public d might have looked at such a prosecution witho the most incredulous detestation; and if theyis had been so indiscreet as to run the risk of d coming before an Irish jury, instead of tes futing the charges against them as a calumny, b they would have exposed themselves to thed peril of establishing the accusation, and of s raising the character of the man whom they had the heart to destroy, because he had darediat tlemen, I pray, suppose me so ungracious as to censure them. Let not the learned gen so much pain to their clients, is actually true; of to say, that this publication, which has givenss I cannot personally know it to be so, nor do bas say so, nor is this the place or the occasion to l tively to the question before you, which is say that it is so.. I mean only to speak sposi sz matter of law. But as the gentlemen themselves thought it meet to pronounce an eulogy on their clients, I thought it rather unseemly not to show that I attended to them: I have most respectfully done so; I do not contradict any praise of their virtues or their wisdom, and I only wish to add my very humble commendation of their prudence and discretion, in not bringing the trial of the present libel before a jury of this country. The learned counsel have not been contented with abusing this libel as a production perfectly known to them; but they have wandered into the regions of fancy. No doubt the other judges, to whom those pathetic flights of forensic sensibility were addressed, must have been strongly affected by them. The learned gentlemen have supposed a variety of possible cases. They have supposed cases of the foulest calumniators aspersing the most virtuous ministers. Whether such supposed cases have been suggested by fancy, or by fact, it is not for me to decide; but I beg leave to say, that it is as allowable to us as to them to put cases of supposition -Cur ego si fingere pauca 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 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 department, and under the supposed authority of high station, disseminating such doctrines as tend to root up the foundation of society-to destroy all confidence between man and man and to impress the great body of the people with a delusive and desperate opinion, that their religion could dissolve or condemn the sacred obligations that binds 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 folly shall inject their veins with fire, such a fever must be kindled as can be allayed only by keeping a stream of blood perpetually running from the other, and that the horrors of martial law must become the 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 exposing the conduct of such persons; by holding up the folly of such bigoted and blind enthusiasm to condign derision and contempt; and painfully would he feel that on such an occasion he must dismiss all forms and 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 little in his excuse. An inexperienced man, new to the world, and in the honeymoon of preferment, would run no small risk of having his head turned in Ireland. The people in our island are by nature penetrating, sagacious, artful and comic-' natio comoda 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 phantastical alacrity that makes dullness disposable to the purposes of humorous malice, or interested imposture. In Ireland, a new great man could get the freedom of a science as easily as of a corporation, and become a doctor, by construction, of the whole Encyclopædia; 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 be come public mischiefs, they lose all pretensions to excuse the very ambition of incapacity is a crime not to be forgiven; and however painful it may be to inflict punishment; it must be remembered, that mercy to the delinquent would be treason to the public. I can the more easily understand the painfulness of the 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 confident, that the paroxysms of passion that have produced these public discussions have been bitterly repented of. I think, also, that I should not act fairly if I did not acquit my learned opponents of all share whatsoever in this prosecution-they have too much good sense to have advised it; on the contrary, I can easily suppose Mr. Attorney-General sent for to give counsel and comfort to his patient; and after hearing no very concise detail of his griefs, his resentments and his misgivings, methinks I bear the answer that he gives, after a pause of sympathy and reflexion;-" 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 whele 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 English jury would never find him guilty. You will only confirm the charge against yourself; and be the victim of an impotent, abortive malice. If you should and more prosperous fortune for this afflicted country-that country of which Thave so often abandoned all hope, and which I have been so often determined to quit for ever. Sape vale dicto multa sum deinde locutus, Et quasi discedens oscula summa dabam, Indulgens animo, pes tardus erat. to live, it is an intimation from Providence that he has some duty to discharge, which it is mean and criminal to decline: bad I been guilty of that ignominious flight, and gone to pine in the obscurity of some distant retreat, even in that grave I should have been haunted by those passions by which my life had been agitated -Vivis quæ cura -Eadem sequitur tellure repostos, have dared to thieve them from my country. 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 folly of such a tyrannical proceeding, and will make a inerit 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 I am reclaimed from that infidel despair but then remember, my dear sir, that a man can-I am satisfied that while a man is suffered claim the privilege of being made ridiculous or hateful by no publications but his own. Vindictive critics have their rights, as well as bad authors. The thing is bad enough at best; but, if you go on, you will make it worse -it will be considered an attempt to degrade the Irish bench and the Irish bar-you are not aware what a nest of hornets you are disturbing. One inevitable consequence you 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 And if the transactions of this day had quiet. And in the mean time, console yourself reached me, I feel, how my heart would have with reflecting, that no man is laughed at for been agonized by the shame of the desertion, a long time-every day will procure some nor would my sufferings have been mitigated new ridicule that must supersede him."--by a sense of the feebleness of that aid, or the Such, I am satisfied, was the counsel given; smallness of that service which I could render -but I have no apprehension for my client, or withdraw. They would have been aggrabecause it was not taken. Even if it should vated by the consciousness that, however be his fate to be surrendered to his keepers-feeble or worthless they were, I should not to be torn from his family-to have his obsequies performed by torch light-to be carried to a foreign land, and to a strange tribunal, where no witness can attest his innocence, where no voice that he ever heard can be raised in his defence, where he must stand mute, not of his own malice, but the malice of his enemies-yes, even so, I see nothing for him to fear-that all gracious Being, that shields the feeble from the oppressor, will fill his heart with hope, and confidence, and courage; his sufferings will be his armour, and his weakness will be his strength: he will find himself in the hands of a brave, a just, and a generous nation-he will find that the bright examples of her Russells and her Sidneys have not 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 will be shed for him, and the second only for themselves—their hearts will melt in his acquittal; they will convey him kindly and fondly to their shore; and he will 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 a lingering 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 "This report contains the substance of against him, do I hail the flattering hope of final advantage to him, and not only of" Mr. Johnson's arguments both in the King'sfinal advantage to him but of better days" bench and Exchequer." Orig. Ed. '2 12 -VOL. XXIX, I have repented-I have staid and I am at once rebuked and rewarded by the happier hopes that I now entertain.In the anxious sympathy of the public in the anxious sympathy of my learned 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 satisfied they will never forget the great trust, of which they alone are now the remaining depositaries. While they continue to cultivate a sound and literate philosophy-a mild and tolerating christianity and to make both the sources of a just, and liberal, and constitutional jurisprudence, I see every thing for us to hope. Into their hands therefore, 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 accomplishment 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." Mr. William Johnson.*-My Lords'; As the counsel for the crown will be entitled to the reply, I should be precluded from any opportunity of addressing the Court upon this sub S not himself have done any act in England, ject, if I did not offer myself at this moment to its consideration. I feel that I have more than a common claim to be heard on this occasion. Certainly no man ever acted under the impulse of a more imperious duty, or had a more afflicting task to perform. In what I shall say, however, to the Court, I shall confine myself to a discussion of the legal questions now before it; and will endeavour not to entertain a thought, or utter an expression, connected with my own personal feelings. Your lordships will determine the question now before you upon the construction of this act, not from any opinion of what it ought to extend to, but from what, according to the established rules of interpretation, it does extend to. Even if it should be your opinion, that it would have been matter of prudent regulation, that the provisions of this act should embrace the present case; you will yet, if I show you that it is, at all events, a casus omissus, leave it as the act has done. You will be the more inclined to do so, if in the course of my observations I should show you, that to extend this act to the case now before you, would be to subvert the most acknowledged principles of justice, and the admitted common law rights of the meanest individual in society. You will not legislate; and particularly you will not do so to have your share in the common destruction of law and liberty. In the interpretation of a statute, levelling by the construction contended for the ancient bulwarks of our constitution, you will go for such a purpose as little way as possible. If I show you, that from the whole view of this act, the committing a crime by actual presence, and escaping or removing after such commission were alone in the contemplation of the legislature; and that the title, recitals, and provisions of this act regard these alone, you will not extend it to cases of the constructive commission of offences, neither within the title of this act, the recited mischief, nor the remedy provided by it. Your lordships must observe, that the only power you can exercise in this case is to discharge. You must either not intermeddle at all, or intermeddle to this extent. If the arrest be legal, though only on process, and for a misdemeanor, your authority is at an end. There have been times when such a proposition would have startled the constitutional feelings of a judge of the land: whether it be right, that such times should have passed away, is not for me to argue. Such is the present law; but whether it extends to the case before you that is, to the case of an offence bailable of common right, is one of the questions on which I mean to trouble you. Some crude and indigested opinions have been thrown out in the course of this discussion as if this Court could take bail in a case circumstanced like the present: it may, therefore, be necessary to examine this matter a little upon principle:-The present act embraces the three countries, England, Ireland, and Scotland. The legal jurisdictions of these countries are perfectly distinct; and in legal contemplation so are their laws. The principle of distinctness is as strong between the laws of England and Ireland, as between the laws of Scotland and either of the other countries; though the distinctness in point of fact may not be so great. Let us then, for the sake of argument, suppose that the warrant in this case had been issued in Scotland, for in sound reasoning it will make no difference, though it may strike common apprehension more: is there any tribunal in this country which can The application now before the Court on determine whether the warrant be or be not the part of the defendant, is to be discharged conformable to the law of that country? For from an illegal arrest. It depends upon a re-instance, what tribunal in this country has cent act of parliament, upon the construction of which you have no judicial decisions. The return to the Habeas Corpus which has been sued out by the defendant, states a warrant of the chief justice of England, grounded on an indictment found at Middlesex against the defendant, for the publication of a libel. This warrant has been endorsed by an Irish justice of the peace, under a presumed authority, given by the 44th of the present king, chap. 92. Under this endorsement the defendant has been arrested; and it now appears, by uncontroverted documents before the Court, that the gentleman applying for his discharge has been a continuing resident of this part of the United Kingdom, from a period before which it is absolutely impossible that the offence, with which he stands charged, could have been committed; and within which, he could judicial knowledge of the crimes of homesucken and sorning? yet these are capital offences by the law of Scotland. A tribunal which has not knowledge of the law can have none of the offence, and therefore cannot act upon it. In Wilkes's case, my lord Camden lays it down, that it is sufficient if the offence appear in the warrant on which a party is arrested; because THAT is the guide to the magistrate in taking or refusing bail. This is sufficient upon principle; and I will not trouble the court upon the practical absurdity which would follow, from any attempt to take bail in this country for offences committed in England or Scotland. They will shortly appear from a few simple questions:-To whom is the recog nizance to be returned? Of what court can it be made a record? By what process is the return of it to be enforced? If forfeited, |