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FEBRUARY 24, 1785.
RENEWED efforts were made in 1784 for Reform. In consequence of a requisition, Henry Reilly, Esq., Sheriff of the county of Dublin, summoned his bailiwick to the court-house of Kilmainham, for the 15th of October, 1784, to elect members to a national congress. For this Mr. Reilly was attached by the King's Bench, on a crown motion, and, on the 24th of February, 1785, the Right Hon. William Brownlow moved a vote of censure on the judges of that court for the attachment.
HOPE I may say a few words on this great subject, without disturbing the sleep of any right honorable member [the Attortorney-General * had fallen asleep on his seat] : and yet per
haps, I ought rather to envy than blame the tranquility of the right honorable gentleman. I do not feel myself so happily tempered, as to be lulled to repose by the storms that shake the land. If they invite rest to any, that rest ought not to be lavished on the guilty spirit. I never more strongly felt the necessity of a perfect union with Britain, of standing or falling with her in fortune and constitution, than on this occasion. She is the parent, the archetype of Irish liberty, which she has preserved inviolate in its grand points, while among us it has been violated and debased. I now call upon the house to consider the trust reposed in them as the Great Inquest of the people.
I respect judges highly; they ought to be respected, and feel their dignity and freedom from reprehension, while they do what judges ought to do; but their stations should not screen them, when they pass the limit of their duty. Whether they did or not,
John Fitzgibbon. He was made Solicitor-General on the 9th of November, 1783, and on the 20th of December, 1783, succeeded Yelverton as Attorney-General. This latter office he retained till he was raised to the Chancellorship, on the 12th of August, 1789, thus making way for Arthur Wolfe, afterwards Lord Kilwarden.
is the question. This house is the judge of those judges; and it would betray the people to tyranny, and abdicate their representation, if it do not act with probity and firmness.
In their proceedings against Reilly, I think they have transgressed the law, and made a precedent, which while it remains, is subversive of the trial by jury, and, of course, of liberty. I regard the constitution, I regard the judges, three of that court at least ; and, for their sakes, I shall endeavor to undo what they have done.
The question is whether the court has really punished its own officer for a real contempt; or whether it has abused that power, for the illegal end of punishing a supposed offence against the state, by a summary proceeding, without a trial by jury.
The question is plain, whether as a point of constitution, or as of law; but I shall first consider it in the former view. When I feel the constitution rocking over my head, my first anxiety is to explore the foundation, to see if the great arches that support the fabric have fallen in; but I find them firm, on the solid and massy principle of Common Law. The principle of legal liberty is, that offence, and trial, and punishment, should be fixed; it is sense, it is Magna Charta – a trial by jury, as to fact, an appeal to judges as to law.
I admit Attachment an exception to the general rule, as founded in necessity, for the support of courts, in administering justice, by a summary control over their officers acting under them; but the necessity that gave rise to it is also the limit. If it were extended farther, it would reach to all criminal cases not capital ; and in the room of a jury, crimes would be created by a judge, the party accused by him, found guilty by him, punished by the utter loss of his liberty and property for life, by indefinite fine and imprisonment without remedy or appeal. If he did not answer he was guilty ; even if he did, the court might think or say it thought, the answer evasive, and so convict him for imputed prevarication.
The power of Attachment is wisely confined by the British laws, and practised within that limit. The crown lawyers have not produced a single case where the King's Bench in England have gone beyond it. They have ranged through the annals of history through every reign of folly and of blood; through the proud domi
nation of the Tudors, and the blockhead despotism of the Stuarts, without finding a single case to support their doctrine.
I consider the office of sheriff as judicial and ministerial. Reilly's offence did not fall within any summary control, in either capacity. It was not a judicial act, it was not colore officii. An act colore officii must either be an act done by the actual exercise of an abused or of an usurped authority - neither of which can it be called; for where the sheriff summons his county, he does it by command, by authority, under pain of fine and imprisonment to those who disobey.
Was the appointment of a meeting any such active exertion of authority? Does any man suppose he was obliged to attend ? that he would be fined if he refused to attend ? No. Did the sheriff hold out any such colorable authority ? Clearly not. The contrary: he explained the purpose of the intended meeting; he stated at whose instance he appointed such meeting; and thereby showed to every man in his senses that he was not affecting to convene them by color of any compulsive authority.
If, then, there was any guilt in the sheriff's conduct it was not punishable by Attachment. They who argue from its enormity, are guilty of a shabby attempt to mislead men from the question, which is not whether he ought to be punished at all, but whether he had been punished according to law.
You have heard no man adduce a single case to support their assertion ; but we have the uniform practice of the King's Bench iu England in our favor, the uniform practice, both there and here, during these last years. Had they not meetings there and here? Did not the crown receive petitions and addresses from such assemblies? Why, during that time, was there no motion for an Attachment in either kingdom.
If an English Attorney-General had attempted such a daring outrage on public liberty and law, he must have found some friend to warn him not to debase the court, and make it appear to all mankind as the odious engine of arbitrary power; not to put it into so unnatural a situation, as that of standing between the people and the crown, or between the people and their representatives.
I warn him not to bring public hatred on the government, by the adoption of an illegal prosecution. If he show himself afraid of
proceeding against offenders by the ordinary mode, then offenders will be exalted by arbitrary persecution of them; they will become suffering patriots, from being mere petty offenders ; their cries will become popular. Let him he warned how he leads the court into an illegality, which the commons can never endure. No honest representative can sacrifice his fame and his duty, by voting in support of a proceeding subversive of liberty. I should shrink from the reproach of the most insignificant of my constituents, if that constituent could say to me - " When thou sawest the thief of the constitution, thou consentedst unto him."
Such would be the caution suggested to an English AttorneyGeneral ; and, accordingly, we find no instance of bis ever venturing on such a measure.
Without case then, or precedent, or principle, what is the support of such a conduct here? - the distinction of a judge? And what is that distinction? It is different in different men; it is different in the same man at different times; it is the folly of a fool and the fear of a coward; it is the infamy of the young, and the dotage of age : in the best man it is very weakness that human nature is subject to; and in the worst, it is very vice. Will you then tell the people that you have chosen this glorious distinction in the place of fixed laws, fixed offences, and fixed punishments, and in the place of that great barrier between the prerogative and the people - Trial by Jury?
But it is objected that the resolution is a censure on the judges and a charge of corruption :- I deny it, and I appeal to your own acts.
Mr. Curran then called to the clerk, who read from the journals a vote of censure passed upon Mr. Justice Robinson, for imposing a fine illegally in a county, when on circuit, without view or evidence.
Was your resolution founded on any corruption of that judge ? No: you would, if so, have addressed to remove him. I called for the resolution, therefore, not to charge him with guilt - I am persuaded he acted merely through error; but to vindicate him, to vindicate you, and to exhort you to be consistent. You thought a much smaller violation of the law was deserving your reprobation. Do not abandon yourselves and your country to slavery, by suffering so much a grosser and more dangerous transgression of the con