cedent nas not been for more than a century 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 judicial has no law to restrain it; in which the legislative has no rule to guide it, unless passion and prejudice, which reject all rule and law, can be called rules and laws; which puts the lives 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 arts as a mere mode of robbing an Irish subject, for the benefit of an English minion. Such was the act of the ninth of William III. not passed for the same odious and despicable purpose, but for a purpose equally arbitrary and unjust, the purpose of transferring the property of the country from persons professing one religion, into the hands of those professing 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 so brutally tyrannical in its operation, in as much as it gave a right to a traverse and a trial by jury, to every person claiming a right, and protected the rights of infants, until they should be of an age, and capable to assert those rights.

There were yet, Mr. Curran said, other reasons why that precedent of the regicides was not followed in Great Britain. A government that means honestly will appeal to the affection, not to the fears of the people. A state must be driven to the last gasp, when it is driven to seek protection in the abandonment of the law, in that melancholy avowal of its weakness and its fear.

Therefore it was not done in the rebellion of 1715, nor in that of 1745. He had hitherto, he said, abstained from adverting to the late transactions in Ireland; but he could not defraud his clients or their cause, of so pregnant an example. In this country penal laws had 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, 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 es caped! But, said he, 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 delicate subject, but let me presume to suggest 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 government; if the people shall have refuge in the mercy of the crown from the rigour of their own representatives.

But if, at the same moment, they shall see the convicted and the 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 unprotected infant, who could not have offended?-But I will not follow the idea; I will not see the inauspicious omen; I pray that heaven may avert it.

One topic more, said he, 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 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 Bull, "always poor and necessitous, and for ever accompanied by the infamy of their father, languishing in continued indigence, and finding their punishment in living, and their relief 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 till it ran, and hid its fountain. If, remembering the many noble qualities of his unfortunate father, his heart melted over the calamities of the child; if his heart swelled, if his eyes overflowed, if his too precipitate hand was stretched out by his pity, or his gratitude to the poor excommunicated sufferers, how could he justify the rebel tear, or the traitor ous 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 foundation 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 eternal justice.

And 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!!

SPEECH OF MR. CURRAN

IN BEHALF OF

MR. JOHN HEVEY, (PLAINTIFF,)

ON AN ACTION FOR AN ASSAULT, AND FALSE IMPRISONMENT

CHARLES HENRY SIRR, Esq. (DEFENDANT.)

COURT OF KING'S BENCH, MONDAY, MAY 17th, 1802.

MR. CURRAN then stated the case for the plaintiff, in substance nearly to the following effect:

He began by telling the jury, it was the most extraordinary action he had ever met with. It must have proceeded from the most unexampled impudence in the plaintiff, if he has brought it wantonly, or the most unparalleled miscreancy in the defendant, if it shall appear supported by proof. And the event must stamp the most condign and indelible disgrace on the guilty defendant, unless an unworthy verdict should shift the scandal upon another quarter. On the record, the action, he said, appeared short and simple; it was an action of trespass, vi et armis, for an assault, battery, and false imprisonment. But the facts that led to it, that explain its nature, and its enormity, and of course, that should measure the damages, were neither short nor simple; the novelty of them might surprise, the atrocity must shock their feelings, if they had feelings to be shocked :--but, he said, he did not mean to address himself to any of their proud feelings of liberty; the season for that was past. There was, indeed, he said, a time, when, in addressing a jury upon very inferior violations of human rights, he had felt his 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 he was not 389

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able to communicate the generous flame to their bosoms, he was not at least so cold as not to catch it from them. But that was a sympathy, which he was not now so foolish as to affect, either to inspire or to participate. He would not insult them by the bitter mockery of such an affectation; buried as they were, he did not wish to conjure up the shades of departed freedom to flutter round their tomb, to haunt 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 most important of all points, that is, the nature of the situation to which he is reduced; and to make him confound the licentiousness of words with the real possession of freedom. He meant not therefore, he said, to call for a haughty verdict, that might humble the insolence of oppression, or assert the fancied rights of independence. Far from it; he only asked for such a verdict, as might make some reparation for the most extreme and unmerited suffering, and might also tend to some probable mitigation of the public and general destiny. For this purpose, he said, he must carry back their 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 inauspicious products are accelerated without being matured. From being a town-major, a name scarcely legible in the list of public incumbrances, he became at once invested with all the real powers of the most absolute authority. The life and the liberty of every man seemed to be given up to his disposal. With this gentleman's extraordinary elevation began 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; he was then a citizen of wealth and credit, a brewer in the first line of that business. Unfortunately for 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