SPEECH OF MR. CURRAN, IN DEFENCE OF LADY PAMELA FITZGERALD, AND HER INFANT CHILDREN, AT THE BAR OF THE HOUSE OF COMMONS IN IRELAND. LORD EDWARD FITZGERALD having died in prison, before trial, of the wound he received in resisting the person who apprehended him, a bill was brought into parliament to attaint him after his death. Mr. Curran was heard at the bar of the House of Commons against the bill, as counsel for the widow and infant children of that nobleman, (the eldest of whom was only four years old,) on which occasion Mr. Curran delivered the following speech. MR. CURRAN.-Mr. Curran said, he rose 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 then before the committee. The bill of attainder, he said, had formed the division of the subject into two parts. It asserted the fact of the late lord Edward's treason; and, secondly, it purported to attaint him, and to vest his property in the crown. He would follow the same order. As to the first bill, he could not but remark upon the strange looseness of the allegation: the bill stated that he had, during his life, and since the first of November last, committed several acts of high treason, without stating what, or when, or where, or with whom it then affected to state the different species of treason of which he had been guilty, namely, conspiring to levy war, and endeavouring to persuade 2 c : 201 the enemies of the king to invade the country; the latter allegation was not attempted to be proved! the conspiring, without actually levying war, was clearly no high treason, and had been repeatedly so determined. Upon this previous and important question, namely the guilt of lord Edward, (and without the full proof of which no punishment can be just,) he had been asked by the committee, if he had any defence to go into? he was confounded by a question which he could not answer; but upon a very little reflection, he saw in that very confusion the most conclusive proof of the injustice of the bill. For what, he said, 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, said he, 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 instructions 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. [Mr. Curran then observed upon the credit of Reynolds by his own confession.] I do verily believe him in that instance, even though I have heard him assert it upon his oath, by his own confession, an informer, and a bribed informer ;—a man whom even respectable witnesses had sworn 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 upon the same reasons that the most noxious poisons are resorted to in medicine. If such the man, look for a moment at his story; he confines himself to mere conversation only, with a dead man. He ventures not to introduce any third person, living or even dead! he ventures to state no act whatever done; 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 foresworn; that he is a traitor; that he has received five hundred guineas to be an informer, and that his general reputation is to be unworthy of credit. As to the papers, it was 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 was nothing more than doubt or conjecture, which, had lord Edward been living, might have been easily explained, to explain which was now impossible, and upon which to found a sentence of guilt would be contrary to every rule of justice or humanity. He would therefore pass to the second question. Was this bill of attainder warranted by the principles of reason? the principles of forfeiture in the law of treason? or the usage of parliament in bills of attainder? The subject was of necessity very long; it had nothing to attract attention, but much to repel it. But he trusted the anxiety of the committee for justice, notwithstanding any dullness either in the subject or in the speaker, would secure to him their attention. Mr. Curran then went into a minute detail of the principles of the law of forfeiture for high treason. The laws of the Persians, and Macedonians, extended the punishment of the traitor to the extinction of all his kindred. That law subjected the property and life of every man to the most complicated despotism, because the loyalty of every individual of his kindred was 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 life and property. But as to his children, the law disclaimed to affect them directly; they suffered, but they suffered by a 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 family This, he said, was proved by the instances of additional 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 was the estate tail made forfeitable, until the tenant in tail had 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. 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, was to take effect only upon a condition suggested by the unalterable rules of natural justice, namely, a judgment 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 was punished, because during his life the fact was triable; because during his life the punishment could act directly upon his person; because during his life the estate was his to convey, and therefore his to forfeit. But if he died without attainder, a fair trial was impossible, because a fair defence was impossible; a direct punishment upon his person was impossible, because he could not feel it; and a confiscation of his estate was equally impossible, because it was then no longer his, but was then vested in his heir, to whom it belonged by a title as good as that by which it had ever be. longed to him in his life time, 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 eighth of Edward the third, 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 twenty-fifth and thirtyfourth of Edward the third, no estate of inheritance can regularly be forfeited save by attainder in the life of the party; therefore the law of the country being, that unless the descent was interrupted by an actual attainder in the life time of the criminal, it became 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 there was posthumous attainder excluded from the protective law of treason? Why has it never since been enacted by a prospective law? clearly for this reason! that in its own nature it is inhuman, impolitic, and unjust. But it is said, this may be done by a bill of attainder; that the parliament is omnipotent, and therefora may do it; and that it is a proceeding familiar to our constitution. As to the first, it could not be denied that the parliament was in the 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. Mr. Curran then endeavoured to show that such a bill ought not to pass: first, because every argument against the justice or the policy of a prospective, was tenfold strong against a retrospective law. Because every ex post facto law was in itself an exercise of despotical power; that when it altered the law of property it was peculiarly dangerous; that when it punished the innocent for the guilty it was peculiarly unjust; that when it affected to do that which the criminal, as it then stood, could not do, it acted peculiarly against the spirit of the constitution, which was to contract and restrain penal law by the strictest construction, and not to add to it by vindictive innovation. But, he said, he was warranted to go much farther upon the authority of the British legislature itself, and to say, that the principle of forfeiture, even in the prospective law, was 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 ought nor should exist. In favour of that high authority, every philosophical and theoretic writer, baron Montesquieu, the marquis Beccaria, and many others might be cited. Against it, no one writer of credit or character, that had come to his hands. Of the late Mr. Yorke he did not mean to speak with disrespect; 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 repeal of the law of forfeiture more than for |