II
At the Prosecution of Johnson for Libel^*
(1805)

I now address you on a question the most vitally connected with the liberty and well-being of every man within the limits of the British Empire—which being decided one way, he may be a freeman; which being decided the other, he must be a slave. I refer to the maintenance of that sacred security for the freedom ofEnglishmen— so justly called the second Magna Charta of British liberty—the Habeas Corpus Act: the spirit and letter of which is, that the party arrested shall without a moment’s delay be bailed, if the offense be bailable. What was the occasion of the law? The arbitrary transportation of the subject beyond the realm; the base and malignant war which the odious and despicable minions of power are for ever ready to wage against all those who are honest and bold enough to despise, to expose, and to resist them.

Such is the oscitancy of man, that he lies torpid for ages under these aggressions, until, at last, some signal abuse the violation of Lucrece, the death of Virginia, the oppression of William Tell—shakes him from his slumber. For years had those drunken gambols of power been played in England; for years had the waters of bitterness been rising to the brim; at last, a single drop caused them to overflow—the oppression of a single individual raised the people of England from their sleep. And what does that great Statute do? It defines and asserts the right, it points out the abuse; and it endeavors to secure the right, and to guard against the abuse, by giving redress to the sufferer, and by punishing the offender. For years had it been the practise to transport obnoxious persons out of the realm into distant parts, under the pretext of punishment, or of safe custody. Well might they have been said, to be sent "to that undiscovered country from whose bourn no traveler returns"; forof these wretched travelers how few ever did return!

But of that flagrant abuse this Statute has laid the ax to the root. It prohibits the abuse; it declares such detention or removal illegal; it gives an action against all persons concerned in the offense, by contriving, writing, signing, countersigning such warrant, or advising or assisting therein. Are bulwarks like these ever constructed to repel the incursions of a contemptible enemy? Was it a trivial and ordinary occasion which raised this storm of indignation in the Parliament of that day? Is the ocean ever lashed by the tempest, to waft a feather, or to drown a fly? By this Act you have a solemn legislative declaration, "that it is incompatible with liberty to send any subject out of the realm, under pretense 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 placed 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 forever. Little did they foresee the future race of vermin that would work their way through those mounds, and let back the inundation!

I am not ignorant, my lord, that the extraordinary construction of law against which I contend has received the sanction of another court, nor of the surprise and dismay with which itsmote upon the general heart of the bar. I am aware that I may have the mortification of being told, in another country, of that unhappy decision; and I foresee in what confusion I shall hang down my head when I am told it.

But I cherish, too, the consolatory hope, that I shall be able to tell them that I had an old and learned friend, whom I would put above all the sweepings of their hall; who was of a different opinion; who had derived his ideas of civil liberty from the purest fountains of Athens and of Rome; who had fed the youthful vigor of his studious mind with the theoretic knowledge of their wisest philosophers and statesmen, and who had refined that theory into the quick and exquisite sensibility of moral instinct, by contemplating the practise of their most illustrious examples, by dwelling on the sweet-souled piety of Simon, on the anticipated Christianity of Socrates, on the gallant and pathetic patriotism of Epaminondas, on that pure austerity of Fabricius, whom to move from his integrity would have been more difficult than to have pushed the sun from his course.

I would add that, if he had seemed to hesitate, it was but for a moment; that his hesitation was like the passing cloud that floats across the morning sun, and hides it from the view, and does so for a moment hide it, by involving the spectator, without even approaching the face of the luminary. And this soothing hope I draw from the dearest and tenderest recollections ofmy life; from the remembrance of those attic nights and those refections of the gods which we have partaken with those admired, and respected, and beloved companions, who have gone before us,—over whose ashes the most precious tears of Ireland have been shed.

Yes, my good lord, I see you do not forget them; I see their sacred forms passing in sad review before your memory; I see your pained and softened fancy recalling those happy meetings, where the innocent enjoyment of social mirth became expanded into the nobler warmth of social virtue, and the horizon of the board became enlarged into the horizon of man; where the swelling heart conceived and communicated the pure and generous purpose; where my slenderer and younger taper inbibed its borrowed light from the more matured and redundant fountain of yours. Yes, my lord, we can remember those nights, without any other regret than that they can never more return; for,

"We spent them not in toys, or lust, or wine;
     But search of deep philosophy,
     Wit, eloquence, and poesy;
Arts which I loved, for they, my friends, were thine."

^* From a speech in the Court of Exchequer in the case of the king against Mr. Justice Johnson, on February 4, 1805. At the conclusion of this speech one of the judges, Lord Avonmore, could not restrain his tears. After the court adjourned he sent for Curran and as Curran entered his private room embraced him. This proved to be the beginning of a reconciliation after what had been a serious breach between these men.