John Curran, Rowan And Free Speech, 1794 pt1

A very early instance of Ireland's long fight for self-determination from the British pretence that their control of the country was by popular agreement. The man concerned was on trial simply for speaking of independence, under laws that notionally protected free speech.

 

When I consider the period at which this prosecution is brought forward; when I behold the extraordinary safeguard of armed soldiers, resorted to, no doubt, for the preservation of peace and order; when I catch, as I cannot but do, the throb of public anxiety, which beats from one end to the other of this hall; when I reflect on what may be the fate of a man of the most beloved personal character, of one of the most respected families of our country—himself the only individual of that family—I may almost say of that country: who can look to that possible fate with unconcern? Feeling, as I do, all these impressions, it is in the honest simplicity of my heart I speak, when I say that I never rose in a court of justice with so much embarrassment as upon this occasion.

If, gentlemen, I could entertain a hope of finding refuge for the disconcertion of my mind in the perfect composure of yours, if I could suppose that those awful vicissitudes of human events, which have been stated or alluded to, could leave your judgments undisturbed and your hearts at ease, I know I should form a most erroneous opinion of your character. I entertain no such chimerical hopes; I form no such unworthy opinions; I expect not that your hearts can be more at ease than my own. I have no right to expect; but I have a right to call upon you in the name of your country, in the name of the living God, of whose eternal justice you are now administering that portion which dwells with us on this side of the grave, to discharge your breasts, as far as you are able, of every bias of prejudice or passion; that if my client is guilty of the offense charged upon him you may give tranquillity to the public by a firm verdict of conviction; or if he is innocent, by as firm a verdict of acquittal; and that you will do this in defiance of the paltry artifices and senseless clamors that have been resorted to in order to bring him to his trial with anticipated conviction.

The peculiarity of the British Constitution (to which, in its fullest extent, we have an undoubted right, however distant we may be from the actual enjoyment, and in which it surpasses every known government in Europe) is this: that its only professed object is the general good, and its only foundation the general will. Hence the people have a right, acknowledged from time immemorial, fortified by a pile of statutes, and authenticated by a revolution that speaks louder than them all, to see whether abuses have been committed, and whether their properties and their liberties have been attended to as they ought to be. This is a kind of subject which I feel myself overawed when I approach. There are certain fundamental principles which nothing but necessity should expose to a public examination. They are pillars the depth of whose foundation you cannot explore without endangering their strength; but let it be recollected that the discussion of such topics should not be condemned in me nor visited upon my client. The blame, if any there be, should rest only with those who have forced them into discussion. I say, therefore, it is the right of the people to keep an eternal watch upon the conduct of their rulers; and in order to do that, the freedom of the Press has been cherished by the law of England. In private defamation let it never be tolerated; in wicked and wanton aspersion upon a good and honest administration let it never be supported—not that a good government can be exposed to danger by groundless accusation, but because a bad government is sure to find in the detected falsehood of a licentious Press a security and a credit which it could never otherwise obtain.

Gentlemen, without any observation of mine, you must see that this indictment contains a direct charge upon Mr. Rowan; namely, that he did, with the intents set forth in the information, publish this paper, so that here you have, in fact, two or three questions for your decision: first, the matter of fact of the publication; namely, did Mr. Rowan publish that paper? If Mr. Rowan did not, in fact, publish that paper, you have no longer any question on which to employ your minds. If you think that he was in fact the publisher, then, and not till then, arises the great and important subject to which your judgments must be directed. And that comes shortly and simply to this: Is the paper a libel; and did he publish it with the intent charged in the information?

But whatever you may think of the abstract question, whether the paper be libelous or not, and of which paper it has not even been insinuated that he is the author, there can be no ground for a verdict against him unless you also are persuaded that what he did was done with a criminal design. I wish, gentlemen, to simplify, and not to perplex; I therefore say again, if these three circumstances conspire—that he published it, that it was a libel, and that it was published with the purposes alleged in the information—you ought unquestionably to find him guilty; if, on the other hand, you do not find that all these circumstances concurred; if you can not, upon your oaths, say that he published it; if it be not in your opinion a libel; and if he did not publish it with the intention alleged; I say upon the failure of any one of these points my client is entitled, in justice and upon your oaths, to a verdict of acquittal.

Gentlemen, Mr. Attorney-General has thought proper to direct your attention to the state and circumstances of public affairs at the time of this transaction; let me also make a few retrospective observations on a period at which he has but slightly glanced; I speak of the events which took place before the close of the American war. You know, gentlemen, that France had espoused the cause of America, and we became thereby engaged in war with that nation. "Heu nescia mens hominum futuri!"

Little did that ill-fated monarch know that he was forming the first causes of those disastrous events that were to end in the subversion of his throne, in the slaughter of his family, and the deluging of his country with the blood of his people. You cannot but remember that at a time when we had scarcely a regular soldier for our defense, when the old and the young were alarmed and terrified with the apprehension of invasion, Providence seemed to have worked a sort of miracle in our favor.

You saw a band of armed men come forth at the great call of nature, of honor, and their country. You saw men of the greatest wealth and rank; you saw every class of the community give up its members and send them armed into the field to protect the public and private tranquillity of Ireland. It is impossible for any man to turn back to that period without reviving those sentiments of tenderness and gratitude which then beat in the public bosom; to recollect amid what applause, what tears, what prayers, what benedictions, they walked forth among spectators agitated by the mingled sensations of terror and reliance, of danger and protection, imploring the blessings of Heaven upon their heads and its conquest upon their swords. That illustrious and adored and abused body of men stood forward and assumed the title which I trust the ingratitude of their country will never blot from its history—"The Volunteers of Ireland."

Give me leave, now, with great respect, to put one question to you: Do you think the assembling of that glorious band of patriots was an insurrection? Do you think the invitation to that assembling would have been sedition? They came under no commission but the call of their country; unauthorized and unsanctioned except by public emergency and public danger. I ask: Was that meeting an insurrection or not? I put another question: If any man had then published a call on that body, and stated that war was declared against the State; that the regular troops were withdrawn; that our coasts were hovered round by the ships of the enemy; that the moment was approaching when the unprotected feebleness of age and sex, when the sanctity of habitation, would be disregarded and profaned by the brutal ferocity of a rude invader: if any man had then said to them, "Leave your industry for a while, that you may return to it again, and come forth in arms for the public defense,"—I put this question boldly to you, gentlemen,—it is not the case of the volunteers of that day; it is the case of my client at this hour, which I put to you,—would that call have been then pronounced in a court of justice, or by a jury on their oaths, a criminal and seditious invitation to insurrection? If it would not have been so then, upon what principle can it be so now? What is the force and perfection of the law?

It is a question, gentlemen, upon which you only can decide; it is for you to say whether it was criminal in the defendant to be so misled, and whether he is to fall a sacrifice to the prosecution of that government by which he was so deceived. I say again, gentlemen, you can look only to his own words as the interpreter of his meaning, and to the state and circumstances of his country, as he was made to believe them, as the clue to his intention. The case, then, gentlemen, is shortly and simply this: A man of the first family and fortune and character and property among you reads a proclamation stating the country to be in danger from abroad and at home, and thus alarmed—thus upon authority of the prosecutor alarmed—applies to that august body before whose awful presence sedition must vanish and insurrection disappear.

You must surrender, I hesitate not to say it, your oaths to unfounded assertion, if you can submit to say that such an act of such a man, so warranted, is a wicked and seditious libel. If he was a dupe, let me ask you who was the impostor? I blush and I shrink with shame and detestation from that meanness of dupery and servile complaisance which could make that dupe a victim to the accusation of that impostor.

You perceive, gentlemen, that I am going into the merits of this publication before I apply myself to the question which is first in order of time—namely, whether the publication, in point of fact, is to be ascribed to Mr. Rowan or not. I have been unintentionally led into this violation of order. I should effect no purpose of either brevity or clearness by returning to the more methodical course of observation. I have been naturally drawn from it by the superior importance of the topic I am upon—namely, the merit of the publication in question.

This publication, if ascribable at all to Mr. Rowan, contains four distinct subjects. The first, the invitation to the volunteers to arm. Upon that I have already observed; but those that remain are surely of much importance, and no doubt are prosecuted as equally criminal. The paper next states the necessity of a reform in Parliament; it states, thirdly, the necessity of an emancipation of the Catholic inhabitants of Ireland; and, as necessary to the achievement of all these objects, does, fourthly, state the necessity of a general delegated convention of the people.

Be pleased now, gentlemen, to consider whether the statement of the imperfection in your representation has been made with a desire of inflaming an attack upon the public tranquillity or with an honest purpose of procuring a remedy for an actually existing grievance. It is impossible not to revert to the situation of the times; and let me remind you, that whatever observations of this kind I am compelled thus to make in a court of justice, the uttering of them in this place is not imputable to my client, but to the necessity of defense imposed upon him by this extraordinary prosecution.

Gentlemen, the representation of your people is the vital principle of their political existence. Without it they are dead, or they live only to servitude; without it there are two estates acting upon and against the third, instead of acting in cooperation with it; without it, if the people are oppressed by their judges, where is the tribunal to which their judges can be amenable? Without it, if they are trampled upon and plundered by a minister, where is the tribunal to which the offender shall be amenable? Without it, where is the ear to hear, or the heart to feel, or the hand to redress their sufferings? Shall they be found, let me ask you, in the accursed bands of imps and minions that bask in their disgrace, and fatten upon their spoils, and flourish upon their ruin? But let me not put this to you as a merely speculative question. It is a plain question of fact: rely upon it, physical man is everywhere the same; it is only the various operations of moral causes that give variety to the social or individual character and condition. How otherwise happens it that modern slavery looks quietly at the despot on the very spot where Leonidas expired? The answer is easy; Sparta has not changed her climate, but she has lost that government which her liberty could not survive.

I call you, therefore, to the plain question of fact. This paper recommends a reform in Parliament: I put that question to your consciences; do you think it needs that reform? I put it boldly and fairly to you; do you think the people of Ireland are represented as they ought to be?

Do you hesitate for an answer? If you do, let me remind you that until the last year three millions of your countrymen have, by the express letter of the law, been excluded from the reality of actual, and even from the phantom of virtual representation. Shall we, then, be told that this is only the affirmation of a wicked and seditious incendiary? If you do not feel the mockery of such a charge, look at your country; in what state do you find it? Is it in a state of tranquillity and general satisfaction? These are traces by which good are ever to be distinguished from bad governments without any very minute inquiry or speculative refinement. Do you feel that a veneration for the law, a pious and humble attachment to the Constitution, form the political morality of the people? Do you find that comfort and competency among your people which are always to be found where a government is mild and moderate, where taxes are imposed by a body who have an interest in treating the poorer orders with compassion, and preventing the weight of taxation from pressing sore upon them?

Gentlemen, I mean not to impeach the state of your representation; I am not saying that it is defective or that it ought to be altered or amended; nor is this a place for me to say whether I think that three millions of the inhabitants of a country whose whole number is but four ought to be admitted to any efficient situation in the state.

It may be said, and truly, that these are not questions for either of us directly to decide; but you cannot refuse them some passing consideration at least when you remember that on this subject the real question for your decision is whether the allegation of a defect in your Constitution is so utterly unfounded and false that you can ascribe it only to the malice and perverseness of a wicked mind and not to the innocent mistake of an ordinary understanding; whether it may not be a mistake; whether it can be only sedition.

And here, gentlemen, I own I cannot but regret that one of our countrymen should be criminally pursued for asserting the necessity of a reform at the very moment when that necessity seems admitted by the Parliament itself; that this unhappy reform shall at the same moment be a subject of legislative discussion and criminal prosecution.

Far am I from imputing any sinister design to the virtue or wisdom of our government; but who can avoid feeling the deplorable impression that must be made on the public mind when the demand for that reform is answered by a criminal information! I am the more forcibly impressed by this consideration when I consider that when this information was first put on the file the subject was transiently mentioned in the House of Commons.

This paper, gentlemen, insists upon the necessity of emancipating the Catholics of Ireland, and that is charged as a part of the libel. If they had kept this prosecution impending for another year, how much would remain for a jury to decide upon, I should be at a loss to discover. It seems as if the progress of public reformation was eating away the ground of the prosecution. Since the commencement of the prosecution this part of the libel has unluckily received the sanction of the Legislature. In that interval our Catholic brethren have obtained that admission which it seems it was a libel to propose. In what way to account for this I am really at a loss.

Have any alarms been occasioned by the emancipation of our Catholic brethren? Has the bigoted malignity of any individuals been crushed? Or has the stability of the government or has that of the country been weakened? Or are one million of subjects stronger than three millions? Do you think that the benefit they received should be poisoned by the stings of vengeance? If you think so you must say to them: "You have demanded your emancipation and you have got it; but we abhor your persons, we are outraged at your success, and we will stigmatize by a criminal prosecution the relief which you have obtained from the voice of your country."

I ask you, gentlemen, do you think, as honest men anxious for the public tranquillity, conscious that there are wounds not yet completely cicatrized, that you ought to speak this language at this time to men who are too much disposed to think that in this very emancipation they have been saved from their own Parliament by the humanity of their sovereign? Or do you wish to prepare them for the revocation of these improvident concessions? Do you think it wise or humane at this moment to insult them by sticking up in a pillory the man who dared to stand forth their advocate?

I put it to your oaths, do you think that a blessing of that kind, that a victory obtained by justice over bigotry and oppression, should have a stigma cast upon it by an ignominious sentence upon men bold and honest enough to propose that measure; to propose the redeeming of religion from the abuses of the Church, the reclaiming of three millions of men from bondage, and giving liberty to all who had a right to demand it—giving, I say, in the so-much-censured words of this paper, "Universal Emancipation?"

I speak in the spirit of the British law, which makes liberty commensurate with and inseparable from the British soil; which proclaims, even to the stranger and the sojourner, the moment he sets his foot upon British earth, that the ground on which he treads is holy and consecrated by the genius of universal emancipation.

No matter in what language his doom may have been pronounced; no matter what complexion incompatible with freedom an Indian or an African sun may have burned upon him; no matter in what disastrous battle his liberty may have been cloven down; no matter with what solemnities he may have been devoted upon the altar of slavery; the first moment he touches the sacred soil of Britain the altar and the god sink together in the dust; his soul walks abroad in her own majesty; his body swells beyond the measure of his chains that burst from around him, and he stands redeemed, regenerated, and disenthralled by the irresistible genius of universal emancipation.

Gentlemen, I am not such a fool as to ascribe any effusion of this sort to any merit of mine. It is the mighty theme, and not the inconsiderable advocate, that can excite interest in the hearer. What you hear is but the testimony which nature bears to her own character; it is the effusion of her gratitude to that Power which stamped that character. And, gentlemen, permit me to say that if my client had occasion to defend his cause by any mad or drunken appeals to extravagance or licentiousness, I trust in God I stand in such a situation that, humble as I am, he would not have resorted to me to be his advocate. It was not recommended to his choice by any connection of principle or party, or even private friendship; and, saying this, I cannot but add that I consider not to be acquainted with such a man as Mr. Rowan a want of personal good fortune.

Gentlemen, upon this great subject of reform and emancipation there is a latitude and boldness of remark, justifiable in the people, and necessary to the defense of Mr. Rowan, for which the habits of professional studies and technical adherence to established forms have rendered me unfit.