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of my life, hidden in the recesses of the cularly obliging. If this company should decpest obscurity, feeding my mind even think it adviseable for me to withdraw, ! with the visions and imaginations of such shall respectfully retire: if you think things, than to be placed on the most otherwise, I shall go directly to the Counsplendid throne of the universe, tantalized cil-house and to the 'Change, and, withwith a denial of the practice of all which out a moment's delay, begin my canvass, can make the greatest situation any other than the greatest curse. Gentlemen, I § 49. Speech of Joux Philpot CTRhave had my day. I can never sufficiently RAN, Esq. in defence of LADY PAMEexpress my gratitude to you for having LA FITZGERALD and her infant chilo set me in a place, wherein I could lend dren, at the bar of the House of the slightest help to great and laudable Commons in Ireland, designs. If I have had my share in any measure giving quiet to private property, Lord Edward Fitzgerald having died and private conscience ; if by my vote I in prison before trial, of the wound he have aided in securing to families the best received in resisting the person who appossession, peace; if I have joined in re- prehended him; a bill was brought into conciling Kings to their subjects, and sub- parliament to attaint him after his death; jects to their prince ; if I have assisted to Mr. Curran was heard at the bar of the loosen the foreign holdings of the citizen, house of commons, against the bill as and taught him to look for his protection counsel for the widow and infant children to the laws of his country, and for his of that nobleman, (the eldest of whom comfort to the goodwill of his country- was only four years old,) on wbich occamen; if I have thus taken my part with sion Mr. Curran delivered the following the best of men in the best of their actions, speech. Mr. Curran said, “ He rose in I can shut the book-I might wish to read support of a petition presented on behalf a page or two more-but this is enough of Lord Henry Fitzgerald, brother of the for my measure-I have not lived in deceased Lord Edward Fitzgerald, of vain.

Pamela, his widow, Edward, his only son And now, gentlemen, on this serious and heir, of the age of four years, Pamela day, when I come, as it were, to make his eldest daughter, of the age of two up my account with you, let me take to years, and Lucy his youngest child of the myself some degree of honest pride on age of three months; against the bill of the nature of the charges that are against attainder them before the committee. The

I do not here stand before you ac- bill of attainder (he said) had formed the cused of venality, or of neglect of duty. subject into two parts. It asserted the It is not said, that, in the long period of fact of the iate Lord Edward's treason, my service, I have, in a single instance, and secondly it purported to attaint him, sacrificed the slightest of your interests to and to vest his property in the crown; he my ambition, or to my fortune. It is not would follow the same order : as to the alleged, that to gratify any anger, or re- first bill, he could not but remark upon venge of my own, or of any party, I have the strange looseness of the allegation ; had a share in wronging or oppressing the bill stated that he had during his life, any description of men, or any one man and since the first of November last, comin any description. No! the charges mitted several acts of high treason. Withagainst me are all of one kind, that I have out stating what, or when, or where, or pushed the principles of general justice with whom; it then afiecied to state the and benevolence too far; further than a different species of treason, of which he cautious policy would warrant; and fur- had been guilty, namely, conspiring to ther than the opinions of many would go levy war and endeavouring to persuade along with me.-In every accident which the enemies of the king to invade the counmay happen through lise, in pain, in sor- try, the latter allegation was not attemptrow, in depression, and distress-1 will cd to be proved! the conspiring to levy, call to mind this accusation, and be com without actually levying was clearly forted.

high treason, and had been repeatedly so Gentlemen, I submit the whole to your deterinined before this previous and imjudgment. Mr. Mayor, I thank you for portant question, namely, the guilt of lord the trouble you have taken on this occa. Edward, (and without the full proof di sion. In your state of health it is parti- which no punishment can be jusi). He

me.

bad been asked by the committee, if he cept this, that he has sworn, and forebad any defence to go into? he was con- sworn, that he is a traitor, that he has founded by a question which he could received five hundred guincas to be an innot answer; but upon a very little reflec- former, and that his general reputation is Lion he saw in that very confusion the to be entirely unworthy of credit. most conclusive proof of the injustice of As to the papers, it was sufficient to the bill. For what (he said) can be more say, that no one of them, nor even all of flagrantly unjust, than to inquire into a them, were ever asserted to contain any fact, of the truth or falsehood of which positive proof against lored Edward ; that no human being can have knowledge, the utmost that could be deduced from save the informer who comes forward to them, was nothing more than doubt and assert it. Sir, (said he) I now answer conjecture; which, had lord Edward the question. I have no defensive evi- been living, might have been easily exdence. I have no case ! it is impossible plained-to explain which was now im1 should, I have often of late gone to the possible ; and upon which to found a sen. dungeon of the captive; but never have I tence of guilt would be contrary to every gone to the grave of the dead to receive rule of justice or humanity. instructions for his defence--nor in truth He would therefore pass to the second have I ever before been at the trial of a question : was this bill of attainder wardead man! I offer therefore no evidence ranted by the principles of reason ? the upon this inquiry. Against the perilous principles of forfeiture in the laws of treaexample of which, I do protest in behalf son, or the usage of parliament in bills of of the public, and against the cruelty and attainder? The subject was of necessity injustice of which I do protest in the very long, it had nothing to attract attenname of the dead futher, whose memory tion, but ---much to repel it. But he trustis sought to be dishonoured, and of his in- ed that the anxiety of the committee for fant orphans, whose bread is sought to be justice, notwithstanding any dulness either

aken away. Some observations, and but in the subject or the speaker, would sea few upon the assertions of Reynolds, I cure to him their attention. (Mr. Curran will make, (Mr. Curran then observed then went into a minute detail of the prinupon the credit of Reynolds by his own ciples of the law of forfeiture for high confession): I do believe himn in that in- treason.) The laws of the Persians, and stance, even though I have heard him as. Macedonians, exter:ded the punishment sert it upon his oath, by his own confes- of the traitor to the extinction of all his sion, an informer, and a bribed informer; kindred. That law subjected the property a man whom several respectable witnesses and life of every man to the most complihad sworn in a court of justice upon their cated despotism, because the loyalty of oths, not to be credible on his oath—a every individual of his kindred was a matman upon whose single testimony, no ter of wild caprice, as the will of the most jury ever did, nor ever ought to pro- arbitrary despot could be. bounce a verdict of guilty. A kind of This principle was never adopted in man to whom the law resorts with abhor- any period of our law; at the carliest Tence, and from necessity, in order to set times of the Sasons, the law of treason the criminal against the crime; but who acted directly only on the person of the is made use of by the law upon the same criminal, it iook away from hiin what he reason that the most noxious poisons are actually had to forfeit, his life and proTesorted to in medicine. If such the man, perty. But as to his children, the law look for a moment at his story; he con- disclaimed to affect them directly; they fines himself to mere conversation only, suffered, but they sufered by a necessary with a dead man. He ventures not to consequence of their father's punishment,

any ihird person, living or even which the law could not prevent, and dead! he ventures to state no act what- never directly intended. It took away

the ever done, he wishes indeed to asperse the inheritance, because the criminal at the conduct of lady Edward Fitzgerald, but time of taking it away, had absolute dohe well knows, that even were she in the minion over it, and might himself have country, she could not be adduced as a conveyed it away from bis family. This, witness to disprove him.

introduce

he said, was proved by the instances of See, therefore, if there can be conditional fees at the common law, and assertion to which credit can be given, ex- estatcs intail since the last statute De

any one

Donis. In the former case, the tenant a purchaser for the most valuable consis did not forfeit, until he had acquired an deration, his mother's marriage, of which absolute dominion over the estate by the he was the issue. Why therefore was performance of the condition. Neither posthumous attainder excluded from the in the latter case was the estate tail made protective law of treason? Why has it forfeitable, until the tenant intail had never since been enacted by a prospebecome enabled in two ways to obtain the tive law ? Clearly for this reason that absolute dominion by a common reco- in its own nature it is inhuman, impolitic, very, or by a fine.

Until then the issue and unjust. intail, though not only the children of But it is said, that this may be done by the tenant, but taking from bis estate by a bill of attainder, that the parliament is descent, could not be disivherited by his omnipotent, and therefore may do it, azyk crime. A decisive proof that even the that it is a proceeding familiar to our concarly law of treason never intended to cx- stitution. As to the first, it could not be tend the punishment of the traitor to his denied that the parliament was in the children as such, but even this direct power of the country, but an argument punishment upon the traitor himself was from the existence of a power to the ex. to take effect, oniy upon a condition suig. (rcise of it in any particular instance, is gested by the unalterable rules of natural ridiculous and absurd.

From such an justic«, namely a judgment proceeded argument it would follow, that it inust do upon conviction, against which he might whatever it is able to do; and that is have made his delence, or upon an out- must be stript of the best of all power, the lawry, where he refused to abide his power of abstaining from what is wrong. trial. In that case he was punished, be- Mr. Curran then endeavoured to shem cause during his lite the fact was triable, that such a bill ought notio pass ;- First, because during his life the punishment because every argument against ibi justice could act directly upon

his
person ;

be- or policy of a prospective was tenfold cause during his lite the estate was his to strong against a retrospective law. Beconvey, and therefore his to forfeit.

cause every er post facto law, was in itself But it be died without attainder, a fair an excrcise of despotical power; that when trial was impossible, because a fair de- it altered the law of property it was pefence was impossible, a direct punish- culiarly dangerous ; that when it punishment upon his person was impossible, be- cd the innocent for the guilty it was peco. cause he could not feel it, and a confisca- liarly unjust : that when it affected to do tion of his estate was equally impossible, that which the criminal law, as it then because it was then no longer bis, but was stood, could not do, it acted peculiarly then vested in his heir, to whom it be against the spirit of the constitution : longed by a title as good as that by which #l was to contract and restrain penal it had ever belonged to him in his life law by the strictest construction, and not time, namely the known law of the coun- to add to it by vindictive innovation. But try.

he said, he was warranted to go much As to a posthumous forfeiture of lands, farther upon the authority of the Britisha that appears to have been attempted by legislature itself, and to say that the prininquest after death. But so early as the ciple of forfeiture, even in the prospective eighth of Edward the third, the legality law, was altogether repugnant to the of such presentments was disallowed by spirit of the British constitution. the judges. And there is no lawyer at The statutes of Anne and George the this day, who can venture to deny that second have declared that after the death since the twenty-fifth and thirty-fourth of of the Pretender and of his sons, no such Edward the third, no estate of inherit- forfeiture ought or should exist

, in fa. ance can regularly he forfeited save his vour of that high authority, every philoattainder in the life of the party ; therefore sophical and theoretical writer, baron the law of the country being that unless Montesquieu, the marquis of Beccari

, the descent was intercepted by an actual and many others might be cited. Against attainder in the life time of the criminal, it, no one writer of credit or character, it became vested in the heir. The mo- that had come to his hands. Of the late ment it did descend, the heir became Mr. Yorke, he did not mean to speak scised by the title the most favoured in with disrespect, he was certainly a man of law. lie might perhaps be considered as learning and genius, but it must be ob

served he wrote for a party and for a pure in their excuse except that they were pose ; he wrote against a repeal of the made for the direct punishment of the aclaw of forfeiture more than for its princi- tual criminals, and whilst they were yet ple; of that principle he expressly de- living. The only other attainder that reclined entering into a direct defence, but mained possible to be added to this catafor extending that principle further than logue, was that of a bill like to the preit is already law, the slightest miscon- sent, which affects to try after the party's struction cannot be found in his treatise, death, when trial is impossible; to punish

But (said Mr. Curran) it is asserted to guilt when punishment was impossible : be the usage of the constitution in both to inflict punishment where crime is not countries ;---of bills of attainder, he said, even pretended. the instances were certainly many, and

To change the settled law of property, most numerous in the worst times, and to confiscate the widow's pittance! io rising above each other in violence and in- plunder the orphan's cradle ! and to viojustice. The most tolerable of these was, late the religion of the dead man's grave! that which attainted the man who fled for this too there was a precedent, but for from justice, which gave him a day to the honour of humanity, let it be rememappear, had he chosen to do so, and bered that an hundred and forty years had operated as a legislative outlawry, that elapsed, in which that precedent had not kind of act had been passed, though buť been thought worthy of imitation in Great rarely within the present century, there Britain ; be meant, (he said) the attain, have been niany acts of attainder when der of the regicides; upon the restoration the party was willing but not permitted four of them were included in that bill of to appear and take his trial. In these attainder, which was passed after their two kinds of bills of attainder, however, deaths. it is to be observed, that they do not any Mr. Curran then dwelt pretty much at violence to the common law, by the de- large, upon the circumstances of that peclaring of a new crime, or a new punish- riod.-A kiog restored, and by his nature ment, but only by creating a new juris- disposed to mercy; a ministry of uncom. diction and order of procceding. Of the mon wisdom, seeing that the salvation of same kind that has been mentioned, many the state could be secured only by mildinstances are to be found in the violent ness and conciliation. A bigotted, in. reigns of the Plantagenets and the Tudors, terested, and irritated faction in parliaand many of them revised by the wisdom ment; the public mind in the highest state of cooler and juster times. Of such un- of division and agitation. For what then happy monuments of human frailty lord is that? That act of attainder resorted to Coke said, auferat oblivio si non silen- as a precedent? Surely then it cannot be

as a precedent of that servile paroxism of I beg leave (said Mr. Curran) to differ simulated loyalty with which the same in that from the learned judge; I say let men, who a few days before had shouted the record upon which they are written after the wheels of the good protector, be indélible and immortal. I say, let the now raked into the grave of the treacherous memory that preserves then have a thou- usurper, and dragged his wretched carcass sand tongues to tell them; and when jus- through the streets : that servile and simutice even late and slow, shall have robbed lated loyalty, which affected to bow in their fellow principle of life, let them be obsequious admiration of the salutary interred in a monument of negative in- lenity which their vindictive folly was lastruction to posterity for ever.

bouring to frustrate : that servile and inA third kind of bill of attainder might terested hypocrisy which give a hollow be found, which for the first time disclosed and faithless support to the power of the the law, and attainted the criminal upon monarch utterly regardless alike of his it, such was the attainder of Strafford. character or his safety. A fourth which did not change the law That the example which this act of atas to the crime, but as to the evidence tainder held forth was never rejected, apupon which it was to be proved, such was pears from this, that it never has been the attainder of Sir John Fenwick. Of disclosed in Great Britain, al'hough that these two last species of attainder no law. country has since that time been agitated yer has ever spoken with respect. They by one revolution and vexed by two rewere the cruel effect of rancour and of bellions ! party spirit, nor could any thing be said

So

tium tegat.

So far from extending forfeiture or at- by the deadly ignominy inflicted on bis tainder beyond the existing law; the opi- father, and by the loss of his own inherinion of that wise and reflecting country tance. was gradually maturing into a dislike of How keenly did Hannibal pursue his the principle altogether; until at last by vengeance which he had sworn against the statutes of Anne and of George the Rome? Ilow much more enthusiastically second, she declares that no forfeiture or would he have pursued his purpose, had attainder for treason, should prejudice that oaih been taken upon a father's grate! any other than the actual offender, nor For the avenging of a father's sufferings ! work any injury to the heir or other per- for the avenging of what he would have son, after the death of a pretender to the called a father's wrongs. throne. W'by (said Mr. Curran) has If I am called upon, (said he,) to give Great Britain thus condemned the princi- more reasons, why this precedent has ple of forfeiture? Because she felt it to not been for more than a century and a be unjust, and because she found it to be half repeated, I will say that a bill of atineficctual.

tainder is the result of an unnatural union Here Mr. Curran went into many rea- of the legislative and judicial functions in son, to prove the impolicy of severe which the judicial has no law to restrain penal laws. They have ever been found it; in which the legislative has no rule to (he said) more to exasperate iban to re- guide it, unless the passion and prejudice strain ; where the infliction is beyond which reject all rule and law can be callthe crime, the guilt is lost in the horror ed rules and laws; which puts the lives of the punishment, the sufferer becomes and properties of men, completely at the an object of commiseration, and the in- mercy of an arbitrary and despotic power. justice of the state of public odium. It Such were the acts of posthumous aiwas well observed, that in England, the tainders in Ireland, in the reign of the highwayman never murdered because arbitrary Elizabeth, who used ihose acts there the offender was not condemned to as a mere mode of robbing an Irish subtorture ! but in France where the offender ject, for the benefit of an English minioni. was broken on the whecl, the traveller Such was the act of the ninth of William seldom or never escaped! what then is it the third, not passed for the same odious in England that sends the traveller home and despicable purpose, but for a puro with life, but the comparative milduess of pose equally arbitrary and unjust, the English law? What but the merciless purpose of transferring the property of the cruelty of the French law, that gives the country, from persons prosessing one reatrocious aggravation of murder to rob- ligion into the hands of those professing bery? The multiplication of penal laws another; a purpose manifested and arowlessens the value of life, and when you ed by the remarkable clause in that act, lessen the value of life, you lessen the fear which saves the inheritance to the heir of of death.

the traitor, provided that heir be a protestLook to the history of England upon ant! not so brutally tyrannical in its this subject with respect to treason; not- operations inasmuch as it gave a right to withstanding all its formidable array of traverse, and a trial by jury, to every perdeath, of Saxon forfeiture, and of feudal son claiming a right, and protected the corruption of blood, in what country do rights of infants, until they should be of you read of more trcasons or of more re- an age, and capable to assert these rights

. bellions ? And why? Because these ter- There were yet, (said Mr. Curran.) rurs do not restrain the traitor. Beyond reasons why that precedent of the regiall other delinquents he is likely to be a cides was not followed in Great Britain. person of that ardent, enthusiastic and A government that means honestly, will intrepid spirit that is roused into more de- appeal to the affections, not to the icars cisive and desperate daring by the pros- of the people. A state must be driven to pect of peril.

when it is driven to seek proMr. Yorke thinks the child of the trai- tection in the abandonment of the law, tor may be reclaimed to his loyalty by the in that melancholy avowal of its weakness restitution of his estate. Mr. Yorke might and its fear. have perhaps reasoned better if he had Therefore it was not done in the re looked to the still greater likelihood of bellion of 1715, nor in that of 1745 ; be making him a deadly cnemy to the state, had hitherto, (he said,) abstained frota

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