« PreviousContinue »
orators towards England, neither breathes, nor means to breathe, any thing short of separation ; and how the disclosure of a principle šo hostile to that constitutional spirit, which unites the countries, can be, by any man, denied to be seditious, they are (not unnaturally) at a loss to comprebend. Nay some can scarcely dissemble their surprise, that our learned Judge should not have heard from Lord Norbury, or his brother Fox, of the terrifying state in which things were lately in Westmeath; or of those oaths to be faithful to Napoleon and the French, which were taken by some deluded combinators in that county: oaths which did not, from being absurd in the extreme, the less evince a seditious sentiment in the taker.
In the frame and nature of those confederacies, which were known by the appellation of Shanaghvests and Caravats, there always appeared to me, to be something mysterious and obscure. Their turbulence filled a criminal space too large, to be contemplated without suspicion and alarm. Yet I do not know that in the constitution of either, any thing directly seditious was demonstrated to exist; and I further believe that those fierce bodies were in array against each other. But it is certain that both were in array against the law : and the tumultuary spirit, which animates such combinations, is not likely, in our days, to be long without some factious leader, who will give the flame a political direction; and reduce to a determinate and seditious purpose, the vague, violent, and indistinct objects of the inob. In associations, at first very imperfectly cemented, and whose aims were neither political nor well defined, I apprehend we should find the rudiments of that society of United Irishmen, whose acts occupy so many pages in our annals of high treason.
In the infancy of the Insurgent Spirit, before it has yet developed itself, and acquired consistency and strength, most opportunely the Insurrection act' appears; a sword, which, sheathed in the Statute Book, is ready, if occasion require it, to be drawn ; but whose premonitory, and interrorem operation is, without its leaving the scabbard, not unlikely to suffice.
Those who term the Insurrection act“ a complete suspension of the constitution,” may, with reason, be suspected of using declamatory language; and describing this statute with more of acrimony than of truth. It is first a warning denunciation, to all whom it may concern, of the penal consequences which will ensue upon sedition, not only to the conspirators themselves, but to the vicinage in which their practices are allowed to ripen to disturbance. It then does little more than bring, (with previous notice) into action, that abstract principle of social union, which, establishing à reciprocal relation between protection and allegiance, will not squander
* As I will call the 54th of the King, cap. 180.
the full benefits of the former on the disloyal. It fairly admonishes the disaffected, that they shall not at once assail, and enjoy the Constitution; nor pervert the privileges which it confers, into means and instruments of aggression. Is that Act a suspension of the Constitution, which, leaving ninety-nine portions of the community in full possession of it, blockades the hundredth, only because, and as long as it is in revolt, at once cutting off its communication with the sounder parts, and straitening it, by whole some rigors, into submission to those laws, by which its happiness will be promoted, and its liberties secured? Is that a vexatious Statute, which comprehends within its controul, no inore than the immediate neighbourhood of commotion ? Obliged to do so by the necessity of the case,---and, while it does so, but enforcing the rule of ancient law,2 that those who dwell together, should be answerable for the good behaviour of each other? 3
To cavil at vigorous measures, in emergencies of the State, is far from being the symptom of strong attachment to the Constitution. Ne quid detrimenti capiat Respublica will ever be a cogent argument, with the patriot mind, for clothing the supreme authorities with unusual powers; nor will it unfrequently occur, that while party and mob-courting ambition are clamorous against restraint, the more genuine friends of freedom, with worthier sentiments, and larger views, will be supporting measures of coercion, and holding the language of controul. While Cæsar was slily canting about clemency and moderation, Cicero crushed the schemes of Catiline with a rigorous hand; and it was not Cicero, 4 who afterwards overthrew the liberties of Rome.
If the Wexford Charge be truly given, the present is not the first instance of the Charger's blindness, to the true situation of this country. He describes the rebellion of 1798, as “an explosion, sudden and unexpected.”—That it was unforeseen by those, with
"I have said that the Insurrection Act does little more than bring into operation an abstract principle, which is noticed in the text. There is a sense, in which it does much less. The Law, even where the Insurrection Act is in operation, extends a most solid and valuable protection, to those who have ceased to pay the quid pro quo, viz. allegiance. It but deducts, and abrogates, for a time, a portion of those free and clement doctrines, of which disloyalty has justly forfeited the benefits; and in which, without danger to its own existence, the Constitution cannot, in certain emergen- cies, indulye. Let it be recollected too, that Government cannot, at its pleasure, bring the Insurrection Law into action. A memorial from magisa trates of the county, not fewer than seven in number, is a preliminary sine quâ non, to the activity of the Statute. Though the justices memorial, the county (perhaps) may not be proclaimed; but unless they memorial, the Government cannot expose it to the rigors of this Law.
2 Already alluded to. 3 Blackst. Com. Introd. Sect. 4.
whom at that period he was supposed to act, is their best excuse, for having opposed those measures, which more discerning men thought necessary, to keep the country quiet. It was their persuasion then, as it is Judge Fletcher's now, that “no serious purpose of assailing His Majesty's Government was on foot;" “nor any conspiracy, connected with internal rebels, or foreign foes.” They then were of opinion, as he is reported to be now, not that the country was obviously in such a state, as required very prompt and strenuous controul; but that the necessity for enacting the insurrection law, so far from being apparent to all, who would but see what was before them,—was one “ of the secrets of the castle, not in their possession.”
Upon those who “winking with both their eyes," upon the perils which approached us, iuveighed against the appointment of that Dictator-Statute, which assumes 1:0 authority unless commo-, tions have arisen, and abdicates, when once the tumult is appeased ;—pon those it is to be hoped, that the rebellion came by surprise :- but can we allege that no explosion was expected, by that government, who day after day proclaiming the country to be in danger, justified the preventions which they recommended, by continual recurrence to this assertion ? Had the parliament which passed the insurrection Act? no apprehension of disturbance, or did the events of 1798 refute the justice of their fears ?
But on periods so calamitous, I shall dwell no longer. « Over the events of those days, and their causes, I willingly draw a veil ;"
and only wish that the passage, which contains the words that I have just borrowed, were less equivocal, and liable to misconstruction, than it is. Some might doubt what it was meant to insinuate lay behind the veil :--the misconduct of those rebelled against, or crimes of those rebelling ? Should any give the former interpretation to this sentence, though the context might not justify, I fear it would excuse them.
Judge Fletcher assures his hearers, (if the editor report truly) that he is “ attached to no party ; connected with no party; indifferent about party :” one who never mixed with the zealots of either ; and has “accordingly been calumniated by both."- If there were no such monster as av honest party man,-or if no person could be a partisan, without knowing that he was so,-I should feel myself concluded, by his Lordship's positive disclaimer. But when even of a man “ born for the universe,"3 it has been said, and said by an adinirer, that
“ narrowing his mind,
" Judge Fletcher's Charge, p. 402. ? In 1796.
3 The late Mr. Burke. See Retoliation,
this learned Judge can scarcely be offended, if I doubt his being as exempt from political prejudice, as free from party bias, as I am convinced he both wishes and conceives himself to be. The government of Lord Hardwicke (from whose practice in this particular the Duke of Richmond did not swerve,) im selecting for legal promotion, those who (rightly or wrongly) they thought best deserved it, took the objects of their favor indifferently from all sides ; and certainly, and at the least, displayed no preference to those, who in the great imperial crisis of 1799 and 1800, at the expense of their popularity, and in the teeth of Slander, had intrepidly lent the Constitution their support. Those who, bearing in their minds the political annals of that day, turn their eyes upon the present dignitaries of the law, will there see little, that can in any degree discredit this assertion. In the mean time (not yet Judge) Fletcher remained wholly unpromoted; nor was he appointed to the bench, until those Talents came into power, which gave the Seals to Mr. Ponsonby, and placed Mr. Curran at the Rolls. It might to some appear to follow, that those who then bore sway, and raised him from his privale station, were not aware how thoroughly detached he was, from every thing connected with, or however faintly resembling party. They possibly remembered, that when in parliament, he had been a partner in the firm of Grattan, Ponsonby, and Curran; that, with them, he resisted the vigorous measures then proposed; failed, with thein, to observe any purpose of assailing His Majesty's Government; seceded,' with them, from that parliament which neglected their advice; with them, avowed opinions, which the year 1798 confuted; but which seem, in 1814, to have revived.
It is true, that in a manuscript report of the learned Judge's Charge, which I have seen, he is represented to have said he “believed! he was in parliament, at the passing of the Insurrection Bill ;? and that he voted for it; at the same time declaring that it would not operate as a preservative of the peace.” But this must be a mistake of the Reporter or the Judge; 3 and it is far more likely that the parliamentary line, which I have attributed to this latter, is the one which he in fact pursued. To a measure which he reprobates so severely, which he describes as “a complete suspension of the constitution,”-it cannot be supposed, that he would have given his support, feeling that, by so sad a sacrifice, he would
1 I believe this to have been the fact. The Records of the time will show. In the mean while, I am merely attributing to him a course, which some of the other respectable personages unquestionably took.
2 In 1796.
3 Who only says he believes. That he should not have attained certainty on such a point may seem surprising.
restore no tranquillity to his country; and that the positive evil which he was incurring, would not be relatively a good. Again, how could the “explosion” of 1798 come so i unexpectedly” on him, who thought matters in such a state the year but one before ?
But it is time that I should have done ; and I will, without a peroration : preferring the risk of being abrupt, to the certainty of being prolix. I conclude then, by declaring that though I respect the integrity, learning, and abilities of Judge Fletcher, and hold him to be free from all unworthy bias,yet of the publication, called his Charge, I am obliged to disapprove. To me, that publication' does not seem to bear the marks of a judgment the most cool, a temper the best regulated, or a mind altogether free from the prejudice and warp of party. Were I to believe that he uttered every thing there purporting to be his, I should pronounce, not merely, that in entering on several topics which it contains, he manifestly outstepped the limits of his duty; but that many of his statements were as erroneous and unfounded, as still more of them were extra judicial and indiscreet: I should fear, that in overcharging the picture of grievances which he drew, he palliated ? the excesses, which he referred to those oppressions, as their source; and on the whole I should lament, that one, apparently so little qualified for a statesman, transgressing the grave province his commission had assigned him, should lose himself in discussions on affairs of State ;-those ardua regni, which the Constitution has committed to other hands.
Far be it from me to lower the dignity, or trench, however slightly, on the independence of the Bench. They are amongst those bulwarks of our freedom, which I would strenuously defend, But that dignity is most consulted, when Judges keep within their sphere; that independence best maintained, when they dispensé unbending justice. Aloof from the storm of politics, and prejudice of party,regardless of the cry of faction, or the frown of power,- let Judges proudly hold their equable and lofty course; and while they scorn to serve the purpose of a minister, disdain alike to play the game of his opponents, or flatter and foment the passions of a mob.
I. U. M. October 13th, 1814.
? Which, however, may grossly misreport him.
? Even though the Report were accurate, I should readily admit the overcharge to have been unintentional; and the palliation inadvertent.