In the present case, Mr. Daly has made a subsequent affidavit; but such affidavit could be no ground for the arrest, for it was not in esse, when the Fiat was granted.
2 Strange, 975, Gammage against Watkin — The original debt was under the sum entitled to special bail; but the costs swelled it over; and the Plaintiff had judgment, on which he brought debt, and held the Defendant to bail; and now upon motion the court ordered common bail to be accepted; for as the original demand did not require bail, the addition of costs will not alter the case.
And yet, my Lords, here, the costs and the original demand were liquidated, and in law became one debt; but the Court in its decision, guided by attention and attachment to personal liberty, made the distinction in its favour; and the like attention and attachment appear to govern in every case.
4 Burrow, 655, Pomp. vers. Ludrigson. — A rule for discharging the Defendant upon common bail was made absolute; the affidavit to hold him to special bail, not being possitive; which, it is the established rule of the court,
“that it must be.”
This was the case of a merchant in London, whose correspondent in Sweden had sent him over the accounts from Sweden, where the debt arose: and consequently the Plaintiff, the merchant in London, could only swear to his belief, with a reference to the accounts sent to him from Sweden; the fact itself not being within his own personal knowledge: so that the affidavit could not have been more positive than it was, unless the correspondent in Sweden could have come over to London to swear it.
2 Strange, 1209, Rios vers. Relifante. — The affidavit to hold to special bail was made by a merchant in London, swearing that the Defendant owed the Plaintiff 270l. as appears by an affidavit made by the Plaintiff in Amsterdam, which he, the Deponent, believes to be true, et per curiam; there can only be common bail; the oath abroad is no ground, and there is nothing but belief, which is not sufficient.
Your Lordships will observe, that these are commercial cases, and from the nature of commerce, and the situation of parties connected with it, similar cases may every day occur; yet we find no attempt at an argument founded on necessity or public benefit to extend the power of the Court.
2 Strange, 1226, Claphamson vers. Bowman. The Plaintiff’s BOOK-KEEPER, swore, that the Defendant was indebted to the Plaintiff in 3400l. for money had and received by the Defendant, to the use of the Plaintiff, as this Deponent verily believes; and the Court held it not sufficient to hold the Defendant to special bail.
This was the case of a book-keeper, swearing as fully as he conscientiously could; no merchant keeps his own books, because he cannot be a witness to prove any debt due to himself; his clerk who must be his witness, who should be privy to the dealing, and who keeps the account, can scarcely extend his oath, were he ever so correct beyond the best of his belief; yet, in such case, if the charge be not POSITIVE common bail only is allowed.
2 Strange, 1219, Walrond vers. Fransham, an executrix in order to hold the Defendant to bail, made an affidavit, that he was indebted to her testator (so much) as appears by the books of the testator; and it was held insufficient and common bail ordered.
Here could have been no positive affidavit; the creditor was dead; the Plaintiff was an executrix, and sued in such right; the office is highly favoured in law; the assets (of which credits may make a principal part) are committed for the best purposes; and among the first, the payment of the testator’s debts: yet in this case, the case, I say, of an executrix, suing in the right of another, in whom no private or personal interest could be presumed, and laying before the Court the best foundation in her power — common bail only.
Compare, my Lords, such cases with the present, and can you doubt; compare such affidavits with that of Mr. Daly, whose present losses are the conjecture, surmise, apprehension and belief of future injuries.
The cases I have quoted are cases within the description, and reach of special bail; the case of Daly is that of defamation, entitled only, as I apprehend, to common bail; certainly to no more, where no actual damage is sworn to have been suffered, certainly, not to the extent, which confines him before trial to an amount, which might be considered as excessive in damages after verdict.
But, my Lords, laying aside the parties, and the particular circumstances of the case, what is the great and important question? — if the extensive and extending conscience of a suitor, partial to himself, in fancied injuries and imaginary ills, can impose on the credulity of a Judge; if the Judge may, at his discretion, hold a subject in prison previous to trial, on terms with which he cannot comply; the discretion of the Judge may become the pleasure of the Man; where then will be the difference between FIAT and LETTER DE CACHET: if such be the practice, we are not safe; we have obtained nothing by the glorious Revolution; we have no security in the great Charter, in the Bill of Rights, in the Habeas Corpus: the atchievements of liberty may decorate the monument of a former constitution, or be like standards taken from an enemy, hung up, old, torn and useless, save only to shew a degraded posterity, the virtue and valour of their ancestors. — No, my Lords, I trust, that a great and able Judge, will this day add a brighter glory to his name, his rank, and office, than any in the power of Majesty to confer, by nobly saying, what the best have said, and what none but the best will say, I have been wrong: — a generous and a grateful people will applaud, bless, record the expression, and honour even the error that caused it.
FINIS.
SPEECH OF RICHARD BRINSLEY SHERIDAN, ESQ. IN THE HOUSE OF COMMONS OF GREAT BRITAIN, ON THURSDAY, JANUARY 31ST, 1799, IN REPLY TO MR. PITT’S SPEECH ON THE UNION WITH IRELAND.
NO common question arrests the serious attention of this House. — I have listened, Mr. Speaker, with more than usual attention to the Speech of the Rt. Hon. Gentleman — and much as I am disposed to admire, much as I believe the House may be induced to approve of, the very eloquent harangue which has been just now delivered, yet I trust that I need not remind it, that there are some questions of a nature so serious and delicate, which strike home so immediately to our dearest interests, that it is peculiarly important that we should be particularly suspicious of the more than ordinary display of mental exertion, and jealous of that unworthily directed eloquence, that would surprise our approbation to a measure replete with injury and insult to Ireland, and, in my opinion, with ruin to the British empire. We have long stood in the most trying and difficult situation, but that crisis, I think, has now arrived, when it becomes every Gentleman seriously to catechise his heart, before he is led by the eloquence and abilities of the Hon. Chancellor of the Exchequer, to do that which he might in his sober judgment reflect upon with pain, and perhaps have reason to repent the rest of his life. I consider the House, at this moment, in that situation in which it becomes my duty to apprise them of the danger of listening to the specious arguments by which their minds are attempted to be influenced. I took the liberty, last week, of stating to the House, that whether Government thought an Union was essential to the prosperity of Ireland, or necessary to the salvation of both countries, whether the plan by which the Union was to be effected was approved or disapproved, yet that in the present crisis of the affairs of that Country, and under all circumstances as applicable to both, the measure was one which was by no means advisable. It happened the majority of the House differed from my sentiments; yet I may venture to assert, that excepting the Right Hon. Gentleman, and one or two more whose opinions usually coincide with his, there is not one Gentleman, now in the House, who does not from his heart regret that such a measure was ever brought forward in Ireland. The manner in which it has been met in that kingdom, is in my mind an additional reason of regret that such a measure should still be obstinately persevered in in this. It is to be regretted that the Right Hon. Gentleman should, when the question was last week before the House, have expressed himself in so decided a manner. He, unfortunately, and most unwisely, pledged himself that he would make the measure of an Union between this country and Ireland a favourite object; he
distinctly stated that it was a measure from which no opposition in this House, or in the House of Commons in Ireland, no loss of popularity, no consideration of the offence which he might give those friends he valued most, should deter him from endeavouring to carry into execution. He has this day, though not quite in such unqualified terms, repeated that pledge; — but though he has repeated it, the House has not repeated it; and I conjure every Gentleman in the House, that he will not only refuse by his vote this night to sanction such a pledge, but that he will give his vote in such way as to preclude the hope of its being brought forward on any future time. The Right Hon. Gentleman, by this proposed measure of an Union, has placed Ireland and England in a very awkward and perilous situation. The two countries are in that peculiar situation, that it must appear evident to every one the Independance of Ireland, and the power of the Right Hon. Gentleman to destroy it, are incapable of existing together. He has shewn that one or the other must be annihilated; that they cannot co-exist, unless indeed the House in its wisdom shall interpose, and convince him that it will not suffer him to use his power to the destruction of that Country. He has, by this measure, promoted discord and dissension between the two countries, at a time when union and co-operation were above all things necessary; he has been the means of planting the seeds of discord and dissension between the Houses of Lords and Commons in Ireland; he has traduced the Parliament, as an assembly convicted of being the dupes of an English faction. There remains but one thing more for him to do, which is to raise the British House of Commons against the House of Commons in Ireland. This, however, he has not, and I trust he never will be able to effect; and I hope, sincerely hope, that the British Nation would rather that that Gentleman was plunged in the abyss of public odium, national execration and unrelenting hatred, than that by any wild, desperate, daring and impolitic measure, he should be permitted to alienate the affection of one country from the other, or strike at the political consequence or commercial prosperity of our dear, valued, faithful, brave and generous sister kingdom. Oh God! Sir, why is it that I interpose between the system of that Right Hon. Gentleman, and the adoption of it on the part of this House? because, Sir, it is a system which is calculated to promote discord, and an inveterate alternation of disgust and antipathy, when union and affection should be conciliated and confirmed: it is because it is a system which must as sure as effect follows cause, promote disgust and resentment; it is because it is a system which traduces one of the contracting parties as so low, so desperate, and so degraded; as in energy incapable to retrieve the Country from the calamities under which it has laboured; and in mind so weak, so pusillanimous, so unenlightened; such a shame and scandal to the nation over which it presides, as to be the continual dupe of every paltry, despicable British faction; a system, in one word, which is now endeavouring to array the British House of Commons against the Representative Assembly, of our dear and justly valued sister kingdom.
I frankly and honestly declare, that by far the greatest part of that Right Hon. Gentleman’s speech was in no shape connected with the question which he was pleased to introduce. For near an hour of the time which he occupied the House, I was inclined to suppose, (if such a supposition was allowable) either that a stranger had got into the House, and the Hon. Gentleman was replying to some speech which he had delivered in some other assembly, or that the Right Hon. Gentleman in the warmth of his imagination, had fancied himself in the Irish House of Commons, and was warmly engaged to (what by the bye I did not conceive him, adequate on the present occasion) a reply to Mr. Foster, on a subject which was deeply connected with the vital interests of that much injured, but rapidly advancing young Country. Not one part of his argument relates to the question — he is proposing a measure by which the rights of an independent nation are to be destroyed and trampled upon; and he thinks he triumphs by endeavouring to shew that the arguments of Mr. Foster are unfounded. The whole of his argument is, that Mr. Foster thought the propositions in 1785 necessary to prevent future jealousy and suspicion between the two countries; and the Hon Gentleman thought if the propositions failed, he would be considered a useless Minister. What is to be collected from this, but that both Mr. Foster and the Hon. Gentleman sustained foolish opinions? for it turned out, that although the propositions did fail, the failure was not the means of introducing jealousy and suspicion between the two countries, nor of producing the resignation of the Honourable Gentleman. If, indeed, he can shew that the failure of the propositions had produced all those disasters which have since happened; all those scenes of distraction and rebellion which the kingdom of Ireland has witnessed; then I admit the argument would be against Mr. Foster; but has he shewn that to have been the case? On the contrary, the argument relative to Mr. Foster stands simply thus: Mr. Foster said, the failure of the Commercial Propositions would be the ground of future jealousy and suspicion on the part of Ireland. Well! what is the consequence? He now says,
“though I did say so, I find I was mistaken; for it appears to have been the best means of preserving its independence.”
Sir, there does not strike me the slightest inconsistency in the present sentiments of Mr. Foster on the question, with reference to those he formerly entertained; and the arguments of the Right Hon. Gentleman seem to me to consist in a sort of repartee unworthy his good sense and abilities.
But though the Right Hon. Gentleman may not have succeeded in fixing the charge of inconsistency on Mr. Foster, yet the tendency of his speech has fully developed the system of foul and rank corruption and intimidation by which it seems the measure is or was to be carried: Does it not throw out an ignominious threat of withdrawing such commercial advantages as Ireland may derive from her connexion with Great Britain, unless she basely consents to strengthen that connexion, by the plausible and specious mode, which is now so cruelly suggested, — the surrender of her independence, — and proclaims to an astonished world, — her disposition to become a province; though from the earliest era of modern Europe to this day, she has had the strength, capability, and power, to retain the character and consequence of a distinct and separate kingdom from Great Britain. Are not the expressions which we have heard this night an insinuated threat to those who look upon a Legislative independence of Ireland necessary to the continuance of her present prosperity? for what end could such scandalous and disgraceful threats be resorted to, but as the means of intimidation? this is fully corroborated by what follows the taunting observations of the Right Hon. Gentleman; — observations that evince little respect — nay an utter contempt — either for the Parliament, or the People of Ireland: — Ireland, he says, ought at this moment to spurn the nature of her present situation, and be particularly desirous of embracing the offer of closer Union: — And why? — Because such forsooth is her weakness, that she is incapable of defending herself, and must therefore rely on the protection of her powerful neighbour to defend her. What was this but calling on a wretched, distressed, impoverished Irishman, to surrender every thing dear, and valued, and worth defending, for the privilege of being defended, and when defence would be an object of trifling estimation? What is this but to state that our protection is to be withdrawn, if she refuses to accede to what is proposed? (No, no, exclaimed several Gentlemen on the Treasury Bench). I repeat that it is the fair and natural inference — he says, that Ireland is incapable of defending herself without our connexion, and that our connexion cannot exist without an Union — can any other inference be drawn from such a mode of reasoning, than that if Ireland refuses the Union, she will be deprived of the protection of this country? But is this language sit and proper to be held out? If two countries stand in that relation to each other, that with respect to the one it has no trade, no commerce, no manufactures, no advantage of its own, nothing in fact but what it derives from the other, that it is in a situation in which it is incapable of defending itself without the assistance of its powerful neighbour, is it not natural to ask, How it came into that situation? and may I not ask, How Ireland is in
the situation described by the Honourable Gentleman? a country blessed with all the advantages which God and Nature ever bestowed, a healthy climate, commodious ports, and a fruitful soil. Is it, let me ask, wise in the Hon. Gentleman to press such a discussion; and to afford Ireland the opportunity of inquiring how it has happened she is not in possession of those advantages which naturally belong to her; and by the enquiry to learn, that it has been owing to the oppressive, unwise, injurious policy of Great Britain, for a period of near three hundred years? The Hon. Gentleman says he considers the connexion between the two countries necessary to each other, and that England is little qualified to do without Ireland; yet he brings forward a discussion which leads to that hostility, that may destroy the existence of both. With regard to the question of the power of Ireland to resist her enemies, let me ask the Hon. Gentleman, what inducement he could have for offering the insult he has to that country? When Ireland had her Volunteers in arms, had she not the means of repelling her foes foreign and domestic? What assistance did she not afford this country during the American war? Cannot Ireland say to you, before she suffers you to reproach her with her inability to defend herself, before she suffers you to reproach her with your 40,000 militia in the heart of the kingdom (for which you have my thanks), could she not say, give me back the 100,000 Irishmen who have lost their lives in fighting your battles? Above 10,000 of her sons have perished in the West Indies alone, in supporting your contests, yet you now say to her, you have weakened yourself, you are at our mercy, and therefore we insist upon your coalescing with us. But now the Hon. Gentleman contends that her weakness not only leaves her exposed to hostile invasion, but he also seems to feel that the same weakness leaves her at his mercy, and therefore, he will avail himself of it, to compel her to acquiesce in an Union. While this, however, most undoubtedly appears to be his real intention, he talks of leaving her adoption of the measure to the unbiassed and calm deliberation of her own independent Parliament. Was not this an insulting mockery? Such, at least, it must be deemed by men who regard not the words of the Right Hon. Gentleman, but who look at his actions for their true interpretation and import; and when I reflect upon the whole of his past conduct, can I believe that this question is to be left solely to the unbiassed judgment, to the independent discretion of the Irish Parliament? Surely not: and therefore I most seriously appeal to the good sense and the high dignity of the House, not to lend the sanction of its authority to the shameful means by which this measure is to be forced upon the reluctant feelings of the sister kingdom. And what, in the name of God, are those means? Do we not see in the foremost rank of them a barefaced and staring corruption, that stalks along the land with a purse in one and a scourge in the other? Do we not see intimidation exerting its discouraging power in the sudden and scandalous dismissals of the oldest and best tried servants of the Crown, in the removal of a Parnell and of a Fitzgerald? And after this shall we still be told that the adoption of the proposed measure is wholly left to the calm judgment and independent discretion of the People of Ireland? Or rather, must it not be allowed that the whole of this imperious and threatening conduct on the part of Ministers is a lesson and a warning held out to the Irish Parliament to enforce their assent, or perhaps to hang over them the terrors of a Dissolution, or shew what those who still remain in place may expect from the examples of the punishment that has already been inflicted on some of the fairest and most distinguished characters in Ireland, unless they sacrifice the dictates of their duty and their conscience to the intemperate imperiousness of an headstrong Minister? The same stretch of insulting power might perhaps also be resorted to here, if any Gentleman now in office should venture to consult his Conscience and the Constitution, and espouse the opinion I propose; the fate of such a person most undoubtedly would be, to be turned out tomorrow; for we have been frequently told how important and necessary it is to repress and punish first symptom of insubordination and insurrection.
Delphi Complete Works of Richard Brinsley Sheridan Page 88
