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There is much of the life of this celebrated man⁶⁴ omitted by those who have attempted to write it. Even his son (a barrister, whom I have never seen) could have known but little of him, as he was not born at the time his father’s glories were at their zenith. Before he became the biographer of his celebrated parent, Mr. Curran would have done well to inquire who had been that parent’s decided friends, and who his invidious enemies; who supported him when his fame was tottering, and who assailed him when he was incapable of resistance: if he had used this laudable discretion before he commenced his character, he would probably have learned how to eulogise, and how to censure, with more justice and discrimination.

No gentlemen of our day knew Mr. Curran more intimately than myself, although our natural propensities were in many points quite uncongenial. His vanity too frequently misled his judgment, and he thought himself surrounded by a crowd of friends, when he was encompassed by a set of vulgar flatterers: he looked quite carelessly at the distinctions of society, and in consequence ours was not generally of the same class, and our intercourse more frequently at my house than at his. But he could adapt himself to all ranks, and was equally at home at Merrion Square or at the Priory.

The celebrity of Curran’s life, and the obscurity of his death – the height of his eminence, and the depth of his depression – the extent of his talents, and the humiliation of his imbecility – exhibited the greatest and most singular contrast I ever knew among the host of public characters with whom I so long associated.

At the bar I never saw an orator so capable of producing those irresistible transitions of effect which form the true criterion of forensic eloquence. But latterly, no man became more capable, in private society, of exciting drowsiness by prosing, or disgust by grossness: such are the inconsistent materials of humanity.⁶⁵

I should not allude here to a painful subject as respects the late Mr. Curran, had it not been so commonly spoken of, and so prominent an agent in his ulterior misfortunes: I mean that unlucky suit of his against the Rev. Mr. Sandes. I endeavoured as much as possible to dissuade him from commencing that action, having reason to feel convinced that it must terminate in his discomfiture; but he was obdurate, and had bitter cause to lament his obduracy. I did my utmost also to dissuade him from his unfortunate difference with Mr. Ponsonby. I told him (as I firmly believed) that he was wrong, or at all events imprudent, and that his reputation could bear no more trifling with: but he did not credit me, and that blow felled him to the earth!

THE LAW OF LIBEL

Observations on the law of libel, particularly in Ireland – “Hoy’s Mercury” – Messrs. Van Trump and Epaphroditus Dodridge – Former leniency regarding cases of libel contrasted with recent severity – Lord Clonmel and the Irish bar – Mr. Magee, of the “Dublin Evening Post” – Festivities on “Fiat Hill” – Theophilus Swift and his two sons – His duel with the Duke of Richmond – The “Monster!” – Swift libels the Fellows of Dublin University – His curious trial – Contrast between the English and Irish bars – Mr. James Fitzgerald – Swift is found guilty, and sentenced to Newgate – Dr. Burrows, one of the Fellows, afterward libels Mr. Swift, and is convicted – Both confined in the same apartment at Newgate.

In the early part of my life, the Irish press, though supposed to be under due restraint, was in fact quite uncontrolled. From the time of Dean Swift, and Draper’s Letters, its freedom had increased at intervals not only as to public but private subjects. This was attributable to several curious causes, which combined to render the law of libel, although stronger in theory, vastly feebler in practice than at the present day; and whoever takes the trouble of looking into the Irish newspapers about the commencement of the American revolution, and to 1782, will find therein some of the boldest writing and ablest libels in the English language. Junius was the pivot on which the liberty of the press at one moment vibrated: liberty was triumphant; but if that precedent were to prevail to the same extent, it achieved too much.

The law of libel in England, however railed at, appears to me upon the freest footing that private or public security can possibly admit. The press is not encumbered by any previous restraints. Any man may write, print, and publish whatever he pleases; and none but his own peers and equals, in two distinct capacities, can declare his culpability, or enable the law to punish him as a criminal for a breach of it (this excepts the practice of informations, often necessary). I cannot conceive what greater liberty or protection the press can require, or ought to enjoy. If a man voluntarily commits an offence against the law of libel with his eyes open, it is only fair that he should abide by the statute that punishes him for doing so. Despotic governments employ a previous censorship, in order to cloak their crimes and establish their tyranny. England, on the other hand, appoints independent judges and sworn jurors to defend her liberties; and hence is confirmed to the press a wholesome latitude of full and fair discussion on every public man and measure.

The law of libel in Ireland was formerly very loose and badly understood, and the courts there had no particular propensity for multiplying legal difficulties on ticklish subjects.

The judges were then dependant; a circumstance which might have partially accounted for such causes being less frequent than in later times: but another reason, more extensively operating, was, that in those days men who were libelled generally took the law into their own hands, and eased the King’s Bench of great trouble by the substitution of a small-sword for an information, or a case of pistols for a judgment; – and these same articles certainly formed a greater check upon the propagation of libels than the twelve judges and thirty-six jurors, altogether, at the present day; and gave rise to a code of laws very different from those we call municipal. A third consideration is, that scolding-matches and disputes among soldiers were then never made matters of legal inquiry. Military officers are now, by statute,⁶⁶ held unfit to remain such if they fight one another, whilst formerly they were thought unfit to remain in the army if they did not: formerly, they were bound to fight in person; now, they can fight by proxy, and in Ireland may hire champions to contest the matter for them every day in the week, (Sunday excepted,) and so decide their quarrels without the least danger or one drop of bloodshed. A few able lawyers, armed with paper and parchment, will fight for them all day long, and, if necessary, all night likewise; and that, probably, for only as much recompense as may be sufficient to provide a handsome entertainment to some of the spectators and pioneer attorneys, who are generally bottle-holders on these occasions.

Another curious anomaly is become obvious. If lawyers now refuse to pistol each other, they may be scouted out of society as cowards, though duelling is against the law! but if military officers take a shot at each other, they may be dismissed from the army, though fighting is the essence and object of their profession: so that a civilian, by the new lights of society, changes places with the soldier; – the soldier is bound to be peaceable, and the civilian is forced to be pugnacious —cedent arma togæ. It is curious to conjecture what our next metamorphosis may be!

The first publication which gave rise (so far as I can remember) to decided measures for restraining the Irish press, was a newspaper called “Hoy’s Mercury,” published above fifty years ago by Mr. Peter Hoy, a printer, in Parliament-street, whom I saw some time since in his shop, on Ormond Quay, in good health, and who voted for me on the Dublin election of 1803.

In this newspaper Mr. Hoy brought forward two fictitious characters – one called Van Trump, the other Epaphroditus Dodridge. These he represented as standing together in one of the most public promenades of the Irish capital; and the one, on describing the appearance, features, and dress of each passer-by, and asking his companion – who that was? – received, in reply, a full account of the individual, to such a degree of accuracy as to leave no doubt respecting identity – particularly in a place so contracted as (comparatively speaking) Dublin then was. In this way as much libellous matter was disseminated as would now send a publisher to gaol for half his life; and the affair was so warmly and generally taken up, that the lawyers were set to work, Peter Hoy sadly terrified, and Van Trump and Epaphroditus Dodridge banished from that worthy person’s newspaper.

But the most remarkable observation is, that so soon as the Irish judges were, in 1782, made by statute independent of the crown, the law of libel became more strictly construed, and libellers more severely punished. This can only be accounted for by supposing that, while dependent, the judges felt that any peculiar rigour might be attributed, in certain instances, less to their justice than to their policy; and, being thus sensitive (especially in regard to crown cases), they were cautious of pushing the enactments to their full scope. After the provision which rendered them independent of the ruling powers, this delicacy became needless: – but, nevertheless, a candid judge will always bear in mind, that austerity is no necessary attribute of justice, which is always more efficient in its operation when tempered with mercy. The unsalutary harshness of our penal code has become notorious. True, it is not acted up to; and this is only another modification of the evil, since it tempts almost every culprit to anticipate his own escape. On the continent it is different. There, the punishment which the law provides is certainly inflicted: and the consequence is, that in France there is not above one capital conviction to any twenty in England.

The late Lord Clonmel’s⁶⁷ heart was nearly broken by vexations connected with his public functions. He had been in the habit of holding parties to excessive bail in libel cases on his own fiat, which method of proceeding was at length regularly challenged and brought forward; and, the matter being discussed with asperity in parliament, his lordship was restrained from pursuing such courses for the future.

He had in the Court of King’s Bench, about 1789, used rough language toward Mr. Hackett, a gentleman of the bar, the members of which profession at that time considered themselves as all assailed in the person of a brother barrister. A general meeting was therefore called by the father of the bar; a severe condemnation of his lordship’s conduct voted, with only one dissentient voice; and an unprecedented resolution entered into, that “until his lordship publicly apologised, no barrister would either take a brief, appear in the King’s Bench, or sign any pleadings for that court.”

This experiment was actually tried: – the judges sat, but no counsel appeared; no cause was prepared; the attorneys all vanished, and their lordships had the court to themselves. There was no alternative; and next day Lord Clonmel published a very ample apology, by advertisement in the newspapers, and, with excellent address, made it appear as if written on the evening of the offence, and therefore voluntary.⁶⁸

This nobleman had built a beautiful house (which he called Neptune) near Dublin, and walled in a deer-park to operate medicinally, by inducing him to use more riding exercise than he otherwise would take. Mr. Magee, printer of the Dublin Evening Post (who was what they call a little cracked, but very acute), one of the men whom his lordship had held to excessive bail, had never forgiven it, and purchased a plot of ground under my lord’s windows, which he called “Fiat-hill:” there he entertained the populace of Dublin, once a week, with various droll exhibitions and sports: – such, for instance, as asses dressed up with wigs and scarlet robes; dancing dogs, in gowns and wigs, as barristers; soaped pigs, &c. These assemblies, although productive of the greatest annoyance to his lordship, were not sufficiently riotous to be termed a public nuisance, being solely confined to Magee’s own field, which his lordship had unfortunately omitted to purchase when he built his house.

The earl, however, expected at length to be clear of his tormentor’s feats – at least for awhile; as Magee was found guilty on a charge of libel, and Lord Clonmel would have no qualms of conscience in giving justice full scope by keeping him under the eye of the marshal, and consequently an absentee from “Fiat-hill,” for a good space of time.

Magee was brought up for judgment, and pleaded himself, in mitigation, that he was ignorant of the publication, not having been in Dublin when the libel appeared; which fact, he added, Lord Clonmel well knew. He had been, indeed, entertaining the citizens under the earl’s windows, and saw his lordship peeping out from the side of one of them the whole of that day; and the next morning he had overtaken his lordship riding into town. “And by the same token,” continued Magee, “your lordship was riding cheek by jowl with your own brother, Matthias Scott, the tallow-chandler,⁶⁹ from Waterford, and audibly discussing the price of fat, at the very moment I passed you.”

There was no standing this: – a general laugh was inevitable; and his lordship, with that address for which he was so remarkable, (affecting to commune a moment with his brother judges) said, – “it was obvious, from the poor man’s manner, that he was not just then in a state to receive definitive judgment; that the paroxysm should be permitted to subside before any sentence could be properly pronounced. For the present, therefore, he should only be given into the care of the marshal, till it was ascertained how far the state of his intellect should regulate the court in pronouncing its judgment.” The marshal saw the crisis, and hurried away Magee before he had further opportunity of incensing the chief justice.

Theophilus Swift, who, though an Irishman, practised at the English bar, gave rise to one of the most curious libel cases that ever occurred in Ireland, and which involved a point of very great interest and importance.

Theophilus had two sons. In point of figure, temper, disposition, and propensities, no two brothers in the whole kingdom were so dissimilar. Dean Swift, the elder, was tall, thin, and gentlemanly, but withal an unqualified reformer and revolutionist: the second, Edmond, was broad, squat, rough, and as fanatical an ultra-royalist as the king’s dominions afforded. Both were clever men in their way.

The father was a free-thinker in every respect; – fond of his sons, although materially different from either, but agreeing with the younger in being a professed and extravagant loyalist. He was bald-headed, pale, slender, and active – with gray eyes, and a considerable squint: an excellent classic scholar, and versed likewise in modern literature and belles lettres. In short, Theophilus Swift laid claim to the title of a sincere, kind-hearted man; but was, at the same time, the most visionary of created beings. He saw every thing whimsically – many things erroneously – and nothing like another person. Eternally in motion, – either talking, writing, fighting, or whatever occupation came uppermost, he never remained idle one second while awake, and I really believe was busily employed even in his slumbers.

His sons, of course, adopted entirely different pursuits; and, though affectionate brothers, agreed in nothing save a love for each other and attachment to their father. They were both writers, and good ones; both speakers, and bad ones.

Military etiquette was formerly very conspicuous on some occasions. I well recollect when a man bearing the king’s commission was considered as bound to fight any body and every body that gave him the invitation. When the Duke of York was pleased to exchange shots with Colonel Lennox (afterwards Duke of Richmond), it was considered by our friend Theophilus as a personal offence to every gentleman in England, civil or military; and he held that every man who loved the reigning family should challenge Col. Lennox, until somebody turned up who was good marksman enough to penetrate the colonel, and thus punish his presumption.

Following up his speculative notions, Mr. Swift actually challenged Colonel Lennox for having had the arrogance to fire at the king’s son. The colonel had never seen or even heard of this antagonist; but learning that he was a barrister and a gentleman, he considered that, as a military man, he was bound to fight him as long as he thought proper. The result, therefore, was a meeting; – and Colonel Lennox shot my friend Theophilus clean through the carcase; so that, as Sir Callaghan O’Brallaghan says, “he made his body shine through the sun!” – Swift, according to all precedents on such occasions, first staggered, then fell – was carried home, and given over – made his will, and bequeathed the Duke of York a gold snuff-box! However, he recovered so completely, that when the Duke of Richmond went to Ireland as lord lieutenant, I (to my surprise) saw Swift at his grace’s first levee, most anxious for the introduction. His turn came; and without ceremony he said to the Duke, by way of a pun, that “the last time he had the honour of waiting on his grace, as Colonel Lennox, he received better entertainment – for that his grace had given him a ball!”

“True,” said the duke, smiling; “and now that I am lord lieutenant, the least I can do is to give you a brace of them!” – and in due time, he sent Swift two special invitations to the balls, to make these terms consistent with his excellency’s compliments.

Swift, as will hence be inferred, was a romantic personage. In fact, he showed the most decisive determination not to die in obscurity, by whatever means his celebrity might be acquired.

A savage, justly termed the monster, had, during Swift’s career at the bar, practised the most horrid and mysterious crime we have yet heard of – namely, that of stabbing women indiscriminately in the street – deliberately and without cause. He was at length taken and ordered for trial: but so odious and detestable was his crime, that not a gentleman of the bar would act as his advocate. This was enough to induce Swift to accept the office. He argued truly, that every man must be presumed innocent till by legal proof he appears to be guilty, and that there was no reason why the monster should be excepted from the general rule, or that actual guilt should be presumed on the charge against him more than any other charge against any other person: that prejudice was a primâ facie injustice; and that the crime of stabbing a lady with a weapon which was only calculated to wound, could not be greater than that of stabbing her to the heart, and destroying her on the instant: that if the charge had been cutting the lady’s throat, he would have had his choice of advocates. This line of reasoning was totally unanswerable. He spoke and published his defence of the monster, who, however, was found guilty, and not half punished for his atrocity.

Theophilus had a competent private fortune; but as such men as he must somehow be always dabbling in what is called in Ireland “a bit of a law-suit,” a large per-centage of his rents never failed to get into the pockets of the attorneys and counsellors; and after he had recovered from the Duke of Richmond’s perforation, and the monster had been incarcerated, he determined to change his site, settle in his native country, and place his second son in the university of Dublin.

Suffice it to say, that he soon commenced a fracas with all the fellows of the university, on account of their “not doing justice somehow,” as he said, “to the cleverest lad in Ireland!” and, according to his usual habit, he determined at once to punish several of the offenders by penmanship, and regenerate the great university of Ireland by a powerful, pointed, personal, and undisguised libel against its fellows and their ladies.

Theophilus was not without some plausible grounds to work upon; but he never considered that a printed libel did not admit of any legal justification. He at once put half a dozen of the fellows hors de société, by proclaiming them to be perjurers, profligates, impostors, &c. &c.; and printed, published, and circulated this his eulogium with all the activity and zeal which belonged to his nature, working hard to give it a greater circulation than almost any libel published in Ireland, and that is saying a great deal! – but the main tenor of his charge was a most serious imputation and a very home one.

By the statutes of the Irish university, strict celibacy is required; and Mr. Swift stated “that the fellows of that university, being also clergymen, had sworn on the Holy Evangelists, that they would strictly obey and keep sacred these statutes of the university, in manner, form, letter, and spirit, as enjoined by their charter from the virgin queen. But that, notwithstanding such their solemn oath, several of these fellows and clergymen, flying in the face of the Holy Evangelists and Queen Elizabeth – and forgetful of morality, religion, common decency, and good example, had actually taken to themselves each one woman (at least), who went by the name of Miss Such-a-one, but who, in fact, had, in many instances, undergone, or was supposed to have undergone, the ceremony and consummation of marriage with such and such a perjured fellow and parson of Dublin university: and that those who had not so married, had done worse! and that, thereby, they had either perjured themselves or held out so vicious a precedent to youth, that he was obliged to take away his son, for fear of his morals becoming relaxed.”

It is easy to conceive that this publication, from the pen of a very gentlemanly, well-educated barrister, who had defended the monster at the bar and the Duke of York in Hyde Park, and showed himself ready and willing to write or fight with any man or body of men in Ireland, naturally made no small bustle and fuss among a portion of the university-men. Those who had kept out of the scrape by neither marrying nor doing worse, were reported not to be in any state of deep mourning on the subject, as their piety was the more conspicuous; and it could not hurt the feelings of either of them to reflect that he might possibly get a step in his promotion, on account of the defection of those seniors whose hearts might be broken, or removal made necessary, by the never-ending perseverance of this tremendous barrister, who had christened his son Dean Swift, that he might appear a relative of that famous churchman, the patron and idol of the Irish people.

The gentlemen of the long robe were, of course, delighted with the occurrence: they had not for a long time met with so full and fair an opportunity of expending every sentence of their wit, eloquence, law, and logic, as in taking part in this celebrated controversy. I was greatly rejoiced at finding on my table a retainer against the fellows and parsons of Trinity College, whom I formerly considered as a narrow-minded and untalented body of men, getting from 1000l. to 1500l. a year each for teaching several hundred students how to remain ignorant of most of those acquirements that a well-educated gentleman ought to be master of: it is true, the students had a fair chance of becoming good Latin scholars, of gaining a little Greek and Hebrew, and of understanding several books of Euclid, with three or four chapters of Locke on the Human Understanding, and a sixpenny treatise on logic written by the Rev. Dr. Murray, a very good divine, (one of the body,) to prove clearly that sophistry is superior to reason.⁷⁰ This being my opinion of them, I felt no qualms of conscience in undertaking the defence of Theophilus Swift, Esq., though most undoubtedly a gross libeller. It is only necessary to say, that Lord Clonmel, who had been (I believe) a sizer himself in that university, and, in truth, all the judges felt indignant (and with good reason) at Theophilus Swift’s so violently assailing and disgracing, in the face of the empire, the only university in Ireland – thus attacking the clergy though he defended a monster.

An information was in due form granted against Theophilus; and as he could neither deny the fact nor plead a justification to the libel, of course we had but a bad case of it. But the worse the case the harder an Irish barrister always worked to make it appear a good one. I beg here to observe, that the Irish bar were never so decorous and mild at that time, as to give up their briefs in desperate cases, as I have seen done in England – politely to save (as asserted) public time, and conciliate their lordships: thus sending their clients out of court, because they thought they were not defensible. On the contrary, as I have said, the worse the case entrusted to an Irish barrister, the more zealously did he labour and fight for his client. If he thought it indefensible, why take a fee? but his motto was – While there is life there is hope. During the speeches of these resolute advocates, in obstinate cases, powder and perspiration mingled in cordial streams adown their features: their mouths, ornamented at each corner with generous froth, threw out half-a-dozen arguments, with tropes and syllogisms to match, while English gentlemen would have been cautiously pronouncing one monosyllable, and considering most discreetly what the next should be. In short, they always stuck to their cause to the very last gasp! – and it may appear fabulous to a steady, regular English expounder of the law, and conceder of cases, that I have repeatedly seen a cause which the bar, the bench, and the jury, seemed to think was irrevocably lost, – after a few hours’ rubbing and puffing, (like the exertions of the Humane Society,) brought into a state of restored animation; and, after another hour or two of cross-examination and perseverance, the judges and jury have changed their impressions, and sent home the cause quite alive in the pockets of the lawful owner and his laborious solicitor.

In making these observations, I cannot but mention a gentleman long at the very head of the bar, as prime serjeant of Ireland, Mr. James Fitzgerald.⁷¹ I had a great friendship for him: I knew him in extensive practice, and never saw him give up one case while it had a single point to rest upon, or he a puff of breath left to defend it; nor did I ever see any barrister succeed, either wholly or partially, in so many cases out of a given number, as Mr. Fitzgerald: and I can venture to say (at least to think), that had that Right Honourable James Fitzgerald been sent ambassador to Stockholm in the place of the Right Honourable Vesey Fitzgerald, his cher garçon, he would have worked Bernadotte to the stumps, by treating him just as if he were a motion in the court of exchequer. There was no treaty which the government of England might have ordered him to insist upon, that he would not have carried, at all events to a degree, and pleaded for costs into the bargain.

This is a digression: but having been accustomed, for near forty years, to express my regard for that gentleman, and as this is probably the last time I shall ever have an opportunity of doing so, I was determined in my “last speech” not to be forgetful of my old, and, I really believe, sincere friend.

And now, reader! (I have in my preface stated my objections to the epithet gentle) we will go back to Theophilus Swift, and the college, and the King’s Bench. The trial at length came on, and there were decidedly more parsons present than I believe ever appeared in any court of justice of the same dimensions. The court set out full gallop against us: nevertheless, we worked on – twice twelve judges could not have stopped us! I cross-examined the most learned man of the whole university, Dr. Barret, a little, greasy, shabby, croaking, round-faced vice-provost: he knew of nothing on earth, save books and guineas – seldom went out, held but little intercourse with men, and none at all with women. I worked at him unsuccessfully for more than an hour; not one decisive sentence could I get him to pronounce: at length, he grew quite tired of me, and I thought to conciliate him by telling him that his father had christened me. “Indeed!” exclaimed he: “Oh! – I did not know you were a Christian!” At this unexpected repartee, the laugh was so strong against me, that I found myself silenced. My colleagues worked as hard as I: but a seventy-horse power could not have moved the court. It was, however, universally admitted that there was but one little point against us out of a hundred which the other side had urged: that point too had only three letters in it: yet it upset all our arguments: that talismanic word “law” was more powerful than two speeches of three hours each; – and, by the unanimous concurrence of the court and jury, Theophilus Swift, Esq., was found guilty of writing, publishing, (and undoubtedly proving,) that certain parsons, fellows of Dublin University, had been living (conjugally) with certain persons of an entirely different sex: and, in consequence, he was sentenced to twelve months’ imprisonment in his Majesty’s close, called the “gaol of Newgate,” where he took up his residence with nearly two hundred and forty felons and handy pickpockets – exclusive of burglars, murderers, and United Irishmen, who were daily added to that select society.

My poor visionary friend was in a sad state of depression: but Heaven had a banquet in store for him which more than counterbalanced all his discomfitures: – an incident that I really think even the oracle of Delphos never would have thought of predicting.