as an instrument of justice against the bad, or a pretext of oppression against the good; and finally, whether you might not apply to the subject the humane maxim of our law-that better it is that one hundred guilty men should escape, than that one innocent, and, let me add, meritorious man, should suffer. But our ancestors have considered the question; they have decided; and, until we are better satisfied than I fear we can be, that we have not degenerated from their virtue, it can scarcely become us to pass any light or hasty condemnation upon their wisdom. In this great statute, then, my lords, you have the line of demarcation between the prerogative and the people, as well as between the criminal law and the subject, defined with all the exactness, and guarded by every precaution that human prudence could devise. Wretched must that legislature be, whose acts you cannot trace to the first unchangeable principles of rational prerogative, of civil liberty, of equal justice! In this act you trace them all distinctly. By this act you have a solemn legislative declaration, "that it is incompatible with liberty to send any subject out of the realm, under pretence 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 drew 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 for ever. Little did they foresee the future race of vermin that would work their way through those mounds, and let back the inundation; little did they foresee that their labours were so like those frail and transient works that threatened for a while the haughty crimes and battlements of Troy, but so soon vanished before the force of the trident and the impulse of the waters; or that they were still more like the forms which the infant's finger traces upon the beach; the next breeze, the next tide erases.

them, and confounds them with the barren undistinguished strand. The ill-omened bird that lights upon it, sees nothing to mark, to allure, or to deter, but finds all one obliterated unvaried waste,

Et sola secum sicca spatiatur arena.

Still do I hope that this sacred bequest of our ancestors will have a more prosperous fortune, and be preserved by a more religious and successful care, a polar star to the wisdom of the legislator, and the integrity of the judge.

As such will I suppose its principle not yet brought into disgrace; and as such with your permission will I still presume to argue upon that principle.

So stood the law till the two acts of the twentythird and twenty-fourth of George II. which relate wholly to cases between county and county in England. Next followed the act of the thirteenth of his present majesty, which was merely a regulation between England and Scotland. And next came the act of the forty-fourth of the present reign, upon which you are now called on to decide, which as between county and county is an incorporation of the two acts of George II. and as between England Scotland, and Ireland, is nearly a transcript of the thirteenth of the king.

Under the third and fourth section of this last act, the learned counsel for the learned prosecutors (for, really, I think it only candid to acquit the lord lieutenant of the folly or the shame of this business, and to suppose that he is as innocent of the project from his temper, as he must from his education be ignorant of the subject) endeavour to justify this proceeding. The construction of this act they, broadly and expressly, contend to be this:-first, they assert that it extends not only to the higher crimes, but to all offences whatsoever:-secondly, that it extends not only to persons who may have committed offences -within any given jurisdictions, and afterwards escaped or gone out of such jurisdictions, but to all persons, whether so escaping or going out or not:-thirdly, that it extends to constructive offences, that is, to of

fences committed against the laws of certain jurisdic tions, committed in places not within them, by persons that never put their feet within them, but by construction of law committing them within such jurisdictions, and, of course, triable therein :-fourthly, that it extends peculiarly to the case of libels against the persons entrusted with the powers of government, or with offices in the state :-and, fifthly, that it extends not only to offences committed after the commencement of the act, but also to offences at any period, however remotely, previous to the existence of the statute; that is, that it is to have an ex post facto operation. The learned prosecutors have been forced into the necessity of supporting these last monstrous positions, because upon the return to the writ, and upon the affidavits it appears, and has been expressly admitted in the argument:-first, that the supposed libel upon these noble and learned prosecutors relates to the unhappy circumstances that took place in Ireland, on the twenty-third of July, 1803, and of course must have been published subsequent thereto and secondly, that Mr. Justice Johnson from the beginning of 1802 to the present hour was never for a moment in England but was constantly resident in Ireland; so that his guilt, whatever it be, must arise from some act, of necessity, committed in Ireland, and by no physical possibility committed or capable of being committed in England: these are the positions upon which a learned chancellor and a learned judge come forward to support their cause and to stake their character, each in the face of his country, and both in the face of the British empire; these are the positions, which, thank God, it belongs to my nature to abhor, and to my education to despise, and which it is this day my most prompt and melancholy duty to refute and to resist-most prompt in obeying; most grieved at the occasion that calls for such obedience.

We must now examine this act of the forty-fourth of the king, and in doing so I trust you will seek some nobler assistance than can be found in the prin

ciples or the practice of day-rules or side-bar motions; something more worthy a liberal and learned court, acting under a religious sense of their duty to their king, their country, and their God, than the feeble and pedantick aid of a stunted verbal interpretation straining upon its tiptoe to peep over the syllable that stands between it and meaning. If your object was merely to see if its words could be tortured into a submission to a vindictive interpretation, you would have only to endorse the construction that these learned prosecutors have put upon it, and that with as much grave deliberation as Mr. Justice Bell has vouchsafed to endorse the warrant which my lord Ellenborough has thought fit to issue under its authority. You would then have only to look at it, ut leguleius quidam cautus atque acutus, præcentor.

Lord Avonmore. No, Mr. Curran, you forget, it is not præcentor, it is leguleius quidam cautus atque acutus, præco actionum cantor formarum auceps syllabarum.

Mr. Curran. I thank you my lord for the assistance; and I am the more grateful, because, when I consider the laudable and successful efforts that have been made of late, to make science domestick and familiar, and to emancipate her from the trammels of scholarship, as well as the just suspicion under which the harbourers and abettors of those outlawed classicks have fallen, I see at what a risk you have ventured to help me out. And yet see, my lord, if you are prudent in trusting yourself to the honour of an accomplice. Think, should I be prosecuted for this misprision of learning, if I could resist the temptation of escaping by turning evidence against so notorious a delinquent as you, my good lord, and so confessedly more criminal than myself, or, perhaps, than any other man in the empire.

To examine this act then, my lords, we must revert to the three English statutes of which it is a

* Lord Avonmore may be justly ranked among the first classical scholars in either Ireland or England. They who know him, know this.

transcript. The first of these is the twenty-third of George II. cap. 26. sect. 11.

So much of the title as relates to our present inquiry is "for the apprehending of persons in any county or place, upon warrants granted by justices of the peace in any other county or place."

See now sect. 11. that contains the preamble and enaction as to this subject :

"And whereas it frequently happens that persons, against whom warrants are granted by justices of the peace for the several counties within this kingdom, escape into other counties or places out of the jurisdiction of the justices of the peace granting such warrants, and thereby avoid being punished for the offences wherewith they are charged:"For remedy whereof, be it enacted by the authority aforesaid, that from and after the twenty-fourth day of June, one thousand seven hundred and fifty, in case any person against whom a legal warrant shall be issued, by any justice or justices of the peace for any county, riding, division, city, liberty, town, or place within this kingdom, shall escape or go into any other county, riding, division, city, liberty, town or place out of the jurisdiction of the justice or justices granting such warrant as aforesaid, it shall and may be lawful for any justice of the peace of the county, riding, division, city, liberty, town, or place, to which such person shall have gone or escaped, to endorse such warrant, upon application made to him for that purpose, and to cause the person against whom the same shall have been issued to be apprehended and sent to the justice or justices who granted such warrant, or to some other justice or justices of the county, riding, division, city, liberty, town, or place from whence such person shall have gone or escaped, to the end that he or she may be dealt with according to law, any law or usage to the contrary notwithstanding.'

This act was amended by the twenty-fourth of the same reign, the title of which was, "An act for amending and making more effectual a clause in an act passed in the last session of parliament, for the

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