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It gleams above the stormy tide,
Is Liberty, where men do stand
For justice and their native land,
Is LIBERTY, — where men do stand
For justice and their native land,
LXIV. - ON THE ACT OF HABEAS CORPUS.
In 1804, an act was passed by the British Parliament, by which it was enacted that a warrant from a court in Great Britain might be transmittel to Ireland, be indorsed and executed there by a Justice of the Peace, and the accused party transferred for trial to the court from which the warrant issued. Under this act Mr. Justice Johnson was arrested for libel, but a Habeas Corpus was issued, the cause was brought up in the Court of Exchequer, February 4th, 1805, before Chief Justice Lord Avonmore and the other Barons, and Curran made a speech in the prisoner's behalf, from which we take the following passages. The judgment of the court was given against the prisoner's release.
See in Index, ABSTRACT, AXE or AX, CHARTA (karta), DRAMA, EXTRAORDINARY, HABEAS CORPUS, LEGISLATIVE, MY, OFFENSE or OFFENCE, PRETENSE or PRETENCE, CI'mon, EPAMINON'DAS, FABRICIUS, LUCRECE, VIRGINIA, CURRAN.
Delivery. Among specimens of forensic eloquence this speech occupies a high rank. It should be read chiefly in a middle pitch, though in the third paragraph a low pitch may be properly introduced. From the tenth paragraph to the end, the reader, in order to impart the right effect, must be sensible to the rare beauty and charm of the language.
1. It has fallen to my lot, either fortunately 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 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 obedience to this writ, it is my duty to address you. Sorry am I that the task has not been confided to more adequate powers; but, feeble as mine are, they will, at least, not shrink from it. I move you, therefore, that Mr. Justice Jolinson be released from illegal imprisonment.
2. I cannot bút observe the sort of scenic preparation with which this sad drama is sought to be brought forward. I observe, too, the dead silence into which the public is frowned by authority for the occasion. 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. I am glad it is so, - I am glad of this factitious dumbness ; for if murmurs dared to become audible, my voice would be too feeble to drown them.
3. But when all is hushed, — when nature sleeps, the weakest voice is heard ; - the shepherd's whistle shoots across the listening darkness of the interminable heath, and gives notice that the wolf is upon his walk; and the same gloom and stillness 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 the felon savage shall be chased into the toil.
4. The abstract and general question for your consideration is this: My Lord Ellenborough has signed with his own hand a warrant which has been indorsed by Mr. Bell, an Irish Justice, for seizing the person of Mr. Justice Johnson, in Ireland, 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 Westminster, to take his trial for an alleged libel against the persons-intrusted with the government of Ireland.
5. The present arrest and detention are defended under the forty-fourth act of the King: are they warranted by that act ? That is the only question for you to decide. First, then, how stood the law before ? It would be a parade of useless learning to go further back than the statute of Charles, — the Habeas Corpus Act, which is so justly called the second Magna Charta of British liberty. What was the occasion of the law ? The arbitrary transportation of the subject beyond the realm ! that base and malignant war which the minions of power are forever ready to wage against all those who are honest and bold enough to despise, to expose, and to resist them !
6. Such is the oscitancy of man, that he lies torpid for ages under these aggressions, until at last some signal abuse — the violation of Lucrece, the death of Virginia, the oppression of William Tell — shakes him from his slumber. For years had it been the practice to transport offending persons out of the realm, under the pretext of punishment, or of safe custody. But of that flagrant abuse this statute has laid the axe to the root.
7. By this act you have a solemn legislative declaration, “ that it is incompatible with liberty to send any subject out of the realm, under pretense 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 ramparts 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 forever. Little did they foresee the future race of vermin that would work their way through those mounds, and let back the inundation.
8. The Habeas Corpus Act declares the transmission of all persons to be illegal, except only persons charged with capital crimes. But to support the construction
that takes in all possible offenses, of all possible degrees, you have been told, and upon the grave authority of nõtable cases, that the enacting part of a statute may go beyond its preamble. Can you, my Lords, bring your minds easily to believe that sùch a tissue of despotism and folly could have been the sober and deliberate intention of the legislature ?
9. I am not ignorant that this extraordinary 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 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.
10. But I cherish, too, the consolatory hope, that I shall be able to tell them that I had an old and learnëd 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 Rome ; who had fed the youthful vigor of his studious mind with the theoretic knowledge of their wisest philosophers and statesmen; and who had refined that theory into the quick and exquisite sensibility of moral instinct, by contem'plating the practice of their most illustrious examples, — by dwelling on the sweet-souled piety of Ci'mon, on the anticipated Christianity of Socrates, on the gallant and pathetic pātriotism of Epaminondas, on that pure austerity of Fabricius, whom to move from his integrity would have been more difficult than to have pushed the sun from his course.
11. 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 morning sun, and hides it from the view, and does so for a moment hide it, by involving the spectator, without even ap
proaching the face of the luminary. And this soothing hope I draw from the dearest and tenderest recollections of my life ; from the remembrance of those Attic nights and those refections of the gods which we have partaken with those admired and respected and beloved companions who have gone before us, - over whose ashes the most precious tears of Ireland have been shed.*
12. Yes, my good Lord, I see you do not forget them ; I see their sacred forms passing in sad review before your memory; I see your pained and softened fancy recalling those happy meetings, where the innocent enjoyment of social mirth became expanded into the nobler warmth of social virtue, and the horizon of the board became enlarged into the horizon of man; where the swelling heart conceived 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;
“We spent them not in toys, or lust, or wine;
But search of deep philosophy,
Wit, eloquence, and pocsy;
* Here, according to the original report, Lord Avonmore (who sat upon the bench, and who was “the old and learned friend” to whom Curran was alluding) could not refrain from bursting into tears. In the midst of Curran's legal argument, “this most beautiful episode," says Charles Phillips, “bloomed like a green spot amid the desert. Mr. Curran told me himself, that when the court rose, the tip-staff informed him he was wanted immediately in chamber by one of the judges of the Exchequer. He, of course, obeyed the judicial mandate; and the moment he entered, poor Lord Avonmore, whose cheeks were still wet with the tears extorted by this hearttouching appeal, clasped him to his bosom.” A coolness caused by political differences, which had for some time existed between them, gave place to s renewal of friendship, which was not again interrupted.