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FHE 
 
 A REVIEW 
 
 OF 
 
 PRINCIPAL FACTS 
 
 CONNECTED WITH 
 
 THE RISE, PROGRESS, CONCLUSION, 
 AND CHARACTER 
 
 RECENT STATE PROSECUTIONS 
 
 IN IRELAND: 
 
 SCLUDING AN EXAMINATION OF THE MOST IMPORTANT OF THE DECISIONS 
 AND OPINIONS OF THE JUDGES IN BOTH COUNTRIES, AND OF THE 
 JUDGMENT OF THE HOUSE OF LORDS. 
 
 BY A BARRISTER. 
 
 LONDON: 
 
 PRINTED FOR 
 
 LONGM/ , BROWN, GREEN, AND LONGMANS, 
 
 r TA.TERNOSTER-ROW. 
 
 1845. 
 
 CHESTNUT HILL. 
 
pA 
 .$11 
 
 London r 
 Trinted by A. Spottjsyvoode, 
 New-Street-Square. 
 
REVIEW, &c 
 
 The year 1843 was distinguished in Ireland by 
 the development of the process of " peaceful agita- 
 " tion" to a degree which had never been imagined 
 in any other country, and which had not previously 
 been exhibited, or even anticipated, in Ireland 
 itself. The subject of the Repeal of the Union 
 having been debated in the Dublin Corporation in 
 the month of March in that year, the result of the 
 discussion was the adoption, by the Corporation, of 
 a petition to the Legislature in favour of Repeal. 
 This consequence being regarded as a triumphant 
 testimony in favour of the measure, imparted a 
 degree of energy to the general agitation, which 
 was totally unparalleled, and which led to the 
 holding, in several places throughout Ireland, of 
 Repeal meetings ; at some of which from 100,000 
 to 500,000 persons were assembled, and one of 
 which was said to be composed of no less than 
 a million of individuals. These meetings were, 
 however, not more distinguished for the immense 
 multitudes of human beings of which they were 
 made up than for their uniform determination 
 to r\>stain from whatever tended, in any degree, to 
 a breach of the peace or of the law ; and we 
 
 a 2 
 
 *> n 7 
 
4 
 
 believe that it may be asserted, as an indubitable 
 fact, that no violation of tranquillity, even to the 
 slightest extent, occurred at any of the multi- 
 tudinous assemblies, exceeding forty in number, 
 which took place between March and October, 1 843. 
 An unanswerable authority upon this point, even 
 if he stood alone, would be Mr. Justice Burton, 
 who, in charging the grand jury upon the bill 
 of indictment, said that " not only was it not the 
 " wish of the defendants to cause any breach of the 
 u peace at or through the medium of those assem- 
 " Mies, but that, on the contrary, it was a principal 
 " object with the leaders and conveners of the 
 " meetings to prevent the possibility of any infrac- 
 " tion of the public peace and the same learned 
 judge repeated the same statement, in presence of 
 the whole court, when he was in the act of pro- 
 nouncing judgment against the prisoners after con- 
 viction by the jury. The same statement was made 
 in almost the very words of Mr. O'Connell himself 
 to the special jury by the Lord Chief Justice, in 
 two or three remarkable passages of his charge ; 
 whilst the law officers of the Crown repeatedly, and 
 expressly, deliberately, and unequivocally bear testi- 
 mony to the fact, in language which is absolutely 
 extravagant. The Attorney General, in his opening 
 speech*, says, " The separation of those meetings 
 " peaceably, and the intention that they should so 
 " separate, is a formidable part of this conspiracy ! " 
 and the following is one of several similar state-. 
 
 * Report of Messrs. Armstrong and Trevor, p. 56. 
 
5 
 
 merits made by the Solicitor General in his reply*: 
 " We admit that there was no breach of the peace, 
 " because the conspiracy was that there should be 
 " none!" This is certainly a strange kind of cri- 
 minality. A conspiracy not to violate the peace 
 would be a curiosity in jurisprudence anywhere 
 out of Ireland. As every crime includes a viola- 
 tion of the peace, such a conspiracy, if permanent 
 and universal, would supersede all necessity for 
 the administration of criminal justice, and be no 
 small advance towards establishing the Kingdom 
 of the Saints upon the earth. 
 
 It may therefore be taken as a fact altogether in- 
 dubitable, and about which no doubt has ever been 
 actually expressed, that the multitudinous meetings 
 of 1843 not only did not cause a single breach of the 
 peace or of the law, but that all the efforts of all the 
 parties by whom those assemblies had been convened 
 were most earnestly and sincerely, as well as sue- 
 cessfully, directed to the prevention of any infrac- 
 tion of public order, and that no offence zuhatever 
 either accompanied or followed any one of the meet- 
 ings in question. 
 
 Having shown that the meetings were totally 
 free from any imputation of illegality in respect to 
 any breach of the peace, actual or consequential, 
 we proceed to demonstrate that in themselves they 
 were p pially free from any such imputation upon 
 
 * Report of the trial by John Flaiiecty, Esq., p. 404. 
 A 3 
 
6 
 
 every other ground; and that any prosecution which 
 might have been instituted for the purpose of 
 directly stamping a character of illegality upon 
 any one of them would have altogether failed in 
 accomplishing that purpose. In the earlier part of 
 his reply, the Solicitor General expressed himself 
 upon this subject in the following words : — 
 
 " They," the counsel for the traversers, " might 
 " have spared themselves the observations about 
 " Mr. O'ConnelFs exhortations not to commit any 
 " crime — about no persons being alarmed for his 
 " personal security, because we," on the part of the 
 Crown, " do not say that any one of those meetings, 
 u as far as that matter is concerned, would have been 
 u open to prosecution. Suppose we had prosecuted 
 " the persons who had attended one of these meet- 
 " ings for being present at an unlawful assembly, 
 " what would have been the defence — and the tri- 
 u umphant defence ? That the meeting terminated 
 u peaceably ; that though numerously attended, it 
 " did not cause any alarm to the public ; and that the 
 " parties met for the ostensible purpose of petition- 
 " ing the Legislature for the repeal of an Act of 
 " Parliament. That defence it would have been im- 
 " possible for us to meet; and if we had prose- 
 ^ " cuted in such a case, we should have been de- 
 u servedly defeated."* 
 
 Here, then, is an express, unequivocal avowal by 
 the Solicitor General that the object of the de- 
 fendants, "the repeal of an Act of Parliament," 
 * Flan., p. 405. 
 
7 
 
 was legal in itself*, and that the meetings, which 
 were the means by which that object was to be 
 accomplished, were, when considered in themselves, 
 as legal as the object. " But," says the learned 
 gentleman, " when the existence of a conspiracy has 
 " been established, then each meeting which, con- 
 " side red by itself, would be a lawful assembly, be- 
 " comes illegal as a link in the chain of the con- 
 " spiracy." But what is the proof of the conspiracy 
 itself ? " The conspiracy," says the Solicitor 
 General, " is here evidenced by the number of 
 " meetings which took place, and by the continuity 
 " and unity of purpose which was evinced at each 
 M meeting, and which rendered every one of them 
 u a link in the conspiracy! " Elsewhere f he says, 
 " You will also find, from the holding of those mul- 
 " titudinous meetings, that all this places beyond a 
 " doubt the intention of these parties." So that the 
 holding of the meetings is lawful until the existence 
 of the conspiracy is proved, and the proof of the • 
 existence of the conspiracy is the holding of the 
 meetings ! The meetings are declared to be unlawful 
 as the result of a conspiracy, and the conspiracy is 
 deduced from the holding of the meetings, which 
 are lawful in themselves. One meeting to petition 
 for the Repeal of the Union is lawful, but the 
 
 * "We are prosecuting them for combining to obtain an end * 
 which is not illegal in itself. — Reply of the Sol. Gen., Flan., 
 p. 414. 
 
 t Flan., p. 445. 
 
 A 4 
 
8 
 
 holding of several shows a continuity and unity of 
 purpose, and is thereby evidence of a pre-existing 
 conspiracy; and the first meeting, which was law- 
 ful when it occurred, and for a long and indefinite 
 period afterwards, becomes for the first time un- 
 lawful after the holding of the others- — becomes 
 retrospectively unlawful by relation to succeeding 
 and contingent occurrences ; and the parties who 
 had originally convened and attended a lawful 
 meeting, assembled for the attainment of a lawful 
 object, are liable to be prosecuted nunc pro tunc ! 
 
 If the meetings are so few as not to produce 
 upon the Government or the Legislature any im- 
 e pression of the propriety of conceding the object 
 in question, the meetings will, it seems, be lawful ; 
 they will not be liable to any imputation of illegality 
 as long as they do not show that the purpose in view 
 is desired by a large proportion of the population. 
 If the first assembly of 100,000 persons should 
 not have advanced the cause for which they met, 
 the meeting was, it seems, in conformity to the law ; 
 but if in order to prove the universality of the 
 desire for the alteration, successive meetings be 
 convened in various places, as they all come to- 
 gether for the same purpose, this fact is held 
 to be quite enough to show a unity of object, 
 and the unity shows the conspiracy, and then the 
 conspiracy proves the illegality! "It is only ne- 
 " cessary," says the Solicitor General*, "to show 
 " that each defendant in his way was labouring to 
 * Flan., p. 410. 
 
9 
 
 " effectuate a common object ; and that evidence 
 "being given, the jury are at liberty to infer the 
 "existence of a conspiracy." But as the con- 
 spiracy is proved by merely proving a series of 
 meetings, the conspiracy itself becomes unnecessary 
 to the final conclusion ; and any meeting, however 
 lawful its general object may be when the meeting 
 is held, will have become retrospectively illegal if it 
 happen to be followed by other meetings of the 
 same nature, each lawful in itself ! 
 
 A series of meetings, according to the Solicitor 
 General, becomes evidence of a conspiracy, as 
 they denote a continuity and unity of purpose. 
 If, instead of frittering away their energies in 
 driftless, desultory, and unconnected efforts, the 
 parties make arrangements for exciting, collecting, 
 and expressing the public opinion upon the given 
 subject, and if for this end they adopt means 
 whereby the public attention may be for some 
 considerable period concentrated upon the subject 
 in view, they then disclose such a unity and con- 
 tinuity of purpose as proves them to be conspi- 
 rators, and therefore proves the illegality of all the 
 separate meetings, which were quite legal before ; 
 meetings can be legal only in proportion as they 
 have no tendency to effectuate the object for which 
 they were assembled ; and the general result of the 
 whole matter must be, that the conduct of all 
 persons who engage in such proceedings must be 
 characterised by inutility or illegality. 
 
 Before we quit this part of the subject we must 
 
10 
 
 refer to an authority, the only one which was 
 quoted by the Solicitor General in support of his 
 reasoning, and which was taken from the case of 
 
 „ Bedford v. Birley.* "An unlawful assembly," says 
 the authority, "is in any case where persons meet 
 " together in a manner and under circumstances 
 " which the law does not allow, but makes it 
 " criminal in those persons meeting together in such 
 " a manner knowingly, and with such purposes as 
 " are in point of law criminal." The meaning of 
 this profound, elaborate, and very luminous defini- 
 
 ' tion seems to be, that an assembly will be against 
 the law if the law is against the assembly. And 
 such being the exact value of the authority, it 
 seems most wonderfully appropriate to the doctrine 
 which it is adduced to support. 
 
 Having arrived at the conclusion of the illegality 
 
 * of the meetings by the very singular process of 
 reasoning which we have described, the learned 
 counsel felt, however, that he had not advanced 
 very far in justifying the form of the prosecution, 
 and he accordingly endeavours to apologise to the 
 public in the following manner: — " But it is right 
 " that I should also disabuse the public with respect 
 "to another objection which has been urged against 
 " the proceedings in this prosecution. It is said, ' If 
 " i these meetings were unlawful, why not prosecute 
 " 1 them as such f And if you can now show that 
 " 1 such a meeting was unlawful, even with reference 
 " 1 to its purpose, why not indict the parties present 
 * 3 Starkie, Nisi Prius Cases, 102, 103. 
 
11 
 
 M 1 at that meeting for attending an unlawful assem- 
 " 1 bly ? ' NoWj" says the Solicitor General, " in the 
 '•first place, being persuaded that this combination 
 11 which we charge did, in point of fact, exist, and 
 " feeling it to be our duty not to prosecute the 
 " inferior and subordinate instruments by whom, 
 M and through whose intervention, the purposes of 
 that combination were sought to be effected, but 
 " that we ought at once to brin^ forward the heads 
 "of it to a trial; feeling that to be our duty — the 
 "bold, straightforward^ and manly course to be pur- 
 ".sued — ice saw tiiat that could not be done ex- 
 " CEPT through the medium of an indictment for 
 
 "A CONSPIRACY."* 
 
 This appears to be a distinct and most deli- 
 berate confession that the mere facts of the case 
 would be wholly unavailing for the purpose of pro- 
 curing a conviction, without introducing them to 
 the court and the jury in conjunction with a theory 
 which we have already shown, out of the mouth of 
 the Solicitor General himself, to be a fiction, and an 
 imposition, "a delusion and a snare:" that in order 
 to show the separate acts of the defendants to be 
 illegal, it was necessary to construct the framework 
 of an inferential and imaginary conspiracy for the 
 purpose of exhibiting real but lawful occurrences 
 in such a connection with inferred and assumed 
 illegality of design as should make them appear to 
 be unlawful. The authors of the prosecution had, 
 no doubt, very important reasons for pursuing 
 * Flan., p. 406. 
 
12 
 
 this course, and the course itself may be entitled to 
 be called effectual for the attainment of its real 
 purpose : but what there is in it u bold, straight- 
 forward, or manly," that public, to " disabuse" 
 which this explanation has been given, will, we 
 think, find it very difficult to perceive. The 
 object of the whole prosecution, professed and 
 declared by the Ministry, the Irish Court of 
 Queen's Bench, and the Counsel for the Crown, was 
 the punishment and repression of the monster- 
 meetings, of which forty-one took place in the 
 course of the year 1843, between March and 
 October. But the prosecution was not commenced 
 until after the fobty-eirst meeting had been holden. 
 This, however, was perhaps in consequence of its 
 being supposed by the Crown prosecutors that such 
 was the u bold, straightforward, and manly course 
 " of proceeding." 
 
 In another place the Solicitor General observes *, 
 " But a meeting may be unlawful^ because it has 
 " an unlawful object — because it is the means 
 " resorted to to bring about an unlawful end : and 
 " until you know what that end is — till the fea- 
 " tures of the conspiracy to which that meeting is 
 " auxiliary are fully developed and disclosed — 
 " nay more, until they are capable of legal proof 
 " in a court of justice — until that moment arrives 
 u it is impossible to show that any one meeting held 
 " for that purpose is an unlawful meeting. But 
 " when circumstances have occurred which show 
 * Flan., p 405, 
 
13 
 
 " the purpose kept in view all along by the parties 
 M who caused that meeting to assemble — when that 
 u purpose is clearly demonstrated by their subse- 
 u quent acts as the conspiracy advances towards 
 
 its consummation, then the original meeting which, 
 " standing by itself and unaffected by reference to 
 u the whole conspiracy, could not be prosecuted as 
 u iUsijaL becomes at once unlawful" 
 
 This is certainly a most marvellous declaration. 
 In the passage which we have cited, the Solicitor 
 General was, to use his own language, " explaining 
 " to the jury why the prosecution had been delayed ' 
 " until the period when it commenced;" and he 
 assigns as the reason of this singular " delay of 
 "justice, that it would have been impossible at an 
 " curlier period to adduce the necessary proofs of 
 u the illegality of the meetings." Is it possible to 
 conceive that, supposing the first meeting to be 
 unlawful, he possessed no evidence of its illegality 
 until after the holding of the forty-first ? The 
 first meeting of the Association which was given 
 in evidence was holden in Dublin upon the loth of 
 February. The first monster meeting was held in 
 Trim on the 16th of March, and the last of the 
 multitudinous meetings was held at Mullasfhmast 
 upon the 1st of October. Is it possible to believe Jf 
 that there was no evidence of the illegality of the 
 meeting in Dublin until after the meeting in Mul- 
 laghmast — no evidence of the illegality of the 
 meeting in Februarv until after the meeting in 
 October ? The informations- upon which the indict- 
 
14 
 
 ment was presented were founded upon the meeting 
 at Mullaghmast, which occurred on the 1st, and the 
 
 ^ meeting at the theatre in Dublin, which took place, 
 on the 8th of that month, and must therefore have 
 been sworn between the 9th and the 14th, upon 
 which latter day the defendants received the first 
 official notice of the prosecution. Is it possible that 
 until the 9th of October the Crown had no evidence 
 to support a charge of illegality against the meet- 
 
 , ings of the 13th of February or the 16th of March ? 
 If this be so it is quite clear that if the meeting at 
 Mullaghmast and that which was held in Abbey 
 Street had not been holden it would have been 
 impossible to prosecute the defendants in respect 
 of any of the antecedent meetings, and that the 
 allegation of a conspiracy on the loth of February 
 would pass for a mere falsehood. 
 
 The law officers, it seems, held back until they had 
 evidence which must "coerce" * any jury into return- 
 ing a verdict of guilty. " But," says the Solicitor 
 General, " when we found, from certain proceedings, 
 " what those parties really had in view, it then became 
 " our duty to vindicate the law." The prosecu- 
 tion was, it seems, commenced as soon as the pro- 
 secutors found out what were the views ol the 
 defendants. But the " proceedings " from which 
 the prosecutors inferred those views took place 
 with an unparalleled publicity in presence of hun- 
 dreds of thousands of persons upon Sunday s and 
 holidays, and were attended by policemen and 
 * Flan., p. 405. 
 
15 
 
 stipendiary magistrates, and official persons of 
 all sorts, as well as by reporters engaged not^ 
 only on the part of the Crown, but of all the 
 most considerable newspapers in the empire, by 
 whose agency the whole of the " proceedings " 
 were continually communicated to the public with 
 the greatest minuteness and particularity. The only 
 44 proceedings" given in evidence at the trial were 
 those occurrences which were previously known to 
 the whole world: and "the great deal of time and 
 " trouble required to collect the evidence" * was 
 simply commensurate and co-extensive with the 
 time and trouble required for reading the public 
 newspapers which contained the statements that 
 were given in evidence upon the trial. The simplest 
 credulity revolts against admitting the belief that 
 until the month of October, 1843, the Government 
 were 44 not possessed of the evidence necessary 
 M to prove the illegality of the 'original' meeting 
 " which took place in February, if the meeting was 
 44 illegal;" or that until some time shortly antece- 
 dent to the commencement of the prosecution they 
 did not 44 find out" the 14 views of the defendants," 
 as evidenced by their 44 proceedings," and that it 
 was only after something which happened in the 
 county of Meath in the month of October, that the 
 Government became definitely convinced that the 
 defendants had entered into a conspiracy on the 
 13th of February, in the city of Dublin. Yet 
 this most incredible state of things appears to 
 * Page40o.- 
 
16 
 
 be expressly asserted in the charge of the Chief 
 Justice himself.* 
 
 But if it be true that the Government required this 
 prodigious period of observation for the purpose of 
 ascertaining the real character of occurrences which 
 were much more notorious than the proceedings of 
 the Government itself, what is to be thought about 
 a conspiracy which is said to have been formed in 
 February, but which required a period of eight 
 months to discover, or rather to deduce; although 
 all the sagacity and industry of all the available in- 
 genuity in the service of the Crown was continually 
 applied to the purpose, and although the acts from 
 which the conspiracy is inferred were as public as 
 common daylight; being, indeed, the same sort of 
 acts which the more important of the parties 
 had been continually doing for the greatest por- 
 tion of their antecedent lives? For our own 
 parts, we believe, — as we think, that all candid 
 persons acquainted with the facts of the case will be- 
 lieve — that, whatever may be the legal demerits of 
 the several defendants, thereon spiracy was a fiction 
 of the most extravagant and improbable nature ; 
 that it was a " delusion and a snare" used for seve- 
 ral and contradictory purposes, — employed at one 
 time to attach to legal meetings a character of ille- 
 gality, at another made an excuse for conniving at 
 proceedings now for the first time alleged to have 
 been unlawful when they occurred ; and used all 
 through the prosecution as the means of introducing 
 * Page 140 — 1. of the authorised edition. 
 
17 
 
 an enormous mass of general imputations, that 
 would never be admitted in support of an indict- 
 ment which charged any individual with any distinct, < 
 substantive, and pcdpable offence against the law.* 
 Instead of grappling with each of these alleged ille- 
 galities, and making it the object of a separate pro- 
 secution, it was, no doubt, and for good reason, con- 
 sidered a safer plan to reserve them all for the final 
 composition of a general charge, constructive and 
 accumulative ; the multitudinous and heterogeneous 
 character of which would, in all probability, over- 
 whelm the defendants by the vastness of the details, 
 the enormity of the expense, the inutility to the de- 
 fendants of proving the lawfulness of the separate 
 acts complained of, and the impossibility, in such 
 circumstances, of giving any direct evidence to dis- 
 prove the conspiracy itself. 
 
 Upon the unconstitutional and oppressive nature 
 of such conduct it is unnecessary to make any com- 
 ments. Indeed, it appears that even the stern 
 genius of military law itself abhors this practice of 
 accumulative accusation. Lord Woodhouselee, in * 
 his essay upon that subject, has the following obser- 
 vations f: — " The military law, whilst it authorises 
 a every measure necessary for the punishment of 
 " offenders, is most strictly watchful to obviate 
 
 * Each of the defendants filed an affidavit upon the 16th of 
 April, about six weeks before the sentence, explicitly denying 1 
 the charge of conspiracy. One of these, that of Mr. Tierney, is 
 given at length in the Appendix, p. 1. 
 
 t Essay on Military Law, p. 160. 
 
 B 
 
18 
 
 " every possible means of oppression, and to guard 
 " the administration of justice from every taint of 
 44 malice or of private resentment. The Mutiny Act, 
 44 therefore, with equal wisdom and humanity, pro- 
 44 vides that offences which, at the time of commis- 
 * 44 sion, have been deemed of too slight a nature for 
 44 prosecution, shall not, when the evidence of exculp- 
 44 ation or alleviation may chance to be weakened, 
 44 be lodged as matter of arraignment against the 
 44 offender." He then dwells upon the want of 
 candour and equity which is exhibited in passing 
 over at first the original deviations from duty for 
 the purpose of afterwards, when the offender has 
 been tempted to the commission of greater trans- 
 gressions, bringing the original offences forward, 
 either in aggravation of the offender's guilt, 44 or, 
 44 as has been too frequently done, to make them parts 
 44 or one accumulated charge against him." 
 
 The following note is appended to the text of Lord 
 Woodhouselee by the editor of the third edition of ' 
 the work : — "Of a procedure of this kind, which 
 44 had occurred on two trials held at Edinburgh in 
 44 March, 1798, viz. that of Captain John Cameron 
 44 and Captain and Adjutant John Eoy, on a 
 44 variety of charges, the King expressed his 
 44 pointed disapprobation in the following terms: — ■ 
 44 4 His Majesty, adverting to what has in some 
 44 4 measure appeared in the course of both these 
 44 4 trials, has expressed his extreme disapprobation 
 44 4 of keeping charges against an officer or soldier 
 44 4 in reserve until they shall have accumulated, 
 
19 
 
 " ' and then bringing them before a general court- 
 " 4 martial collectively ; whereas every charge 
 " ' should be preferred at the time when the fact or 
 " ''facts on which it turns are recent, or, if know- 
 " 4 ingly passed over, ought not, either in candour * 
 " 1 or in justice, to be in future brought into 
 " 4 question.' " 
 
 The third edition of Lord Woodhouselee's Essay, 
 from which the above-given extract is taken, was 
 dedicated to King George the Fourth, and edited by- 
 Major James, the well-known author of the " Trea- 
 tise on Courts Martial," the " Military Dictionary," 
 and other works on military subjects. 
 
 But after all the explanations of the Solicitor 
 General, people would still naturally wonder a little 
 why it was, if the meetings in question were illegal, 
 no matter upon what grounds, the law officers of the 
 Crown did not venture to raise the question of ille- ^ 
 gality upon the record, even in conjunction with the 
 conspiracy. Those learned persons repeated often 
 enough, ore tenus, that the meetings were illegal ; and 
 so said — ore tenus — every judge of the Irish Court 
 of Queen's Bench ; and the Solicitor General him- 
 self expressly stated that the " great question which 
 " they wanted to try was the legality of the meet- 
 u ings." But every man who attends an illegal 
 meeting is liable to be indicted and punished for 
 such attendance ; and the established method in 
 England of proving the illegality of a meeting is 
 through the medium of such an indictment. In 
 
 b 2 
 
20 
 
 order to " disabuse the public " upon this point, 
 the Solicitor General observes, " If we had included 
 " counts for attending an unlawful assembly, as it is 
 " said that we ought to have done in the indictment 
 " for a conspiracy, we should have exposed ourselves 
 "to the risk of being defeated upon technical 
 " grounds ; because it has been decided that if you 
 " include in an indictment several defendants upon a 
 u charge of conspiracy, and also upon a charge for at- 
 " tending an unlawful meeting, and you fail to prove 
 " that all the defendants attended that meeting, you 
 " must elect between the two charges, and cannot 
 " 'proceed upon bothy But if the counts had been 
 introduced, and the question of the unlawfulness of 
 the meetings had been directly raised for discussion 
 and adjudication, it is clear that the prosecutors in 
 that instance, like the prosecutors in every other, 
 would only fail in consequence of being unable to 
 prove the case which they had stated upon the 
 indictment. Of all the elemental ingredients which 
 can enter into the composition of any offence, the 
 ¥ corporal presence of an individual at a public 
 meeting, in the proceedings of which he is promi- 
 nently engaged, must be the most easy to establish 
 in proof, as it is the most obvious and simple in 
 itself. If, therefore, "you fail to prove that all the 
 " defendants attended the illegal meeting," you suc- 
 ceed in proving that you ought not to have put 
 them all upon their trial, and that you have at- 
 tempted to punish some, at least, of them for an 
 
21 
 
 offence of ichich they were not guilty, and from 
 the imputation of which they ought to be acquitted 
 as a matter of course and of right. Such a failure, 
 however undesirable to a public prosecutor, must 
 always be very desirable to the public at large, who 
 have the deepest interest in the pure and impartial 
 administration of justice. 
 
 But the escape of a few innocent individuals 
 would not after all, it seems, be the worst con- 
 sequence of such a conjuncture of affairs as we 
 have been describing. The most disastrous re- 
 sult would, according to the Solicitor General, be 
 the necessity of electing between two charges, and 
 the not being able to proceed upon both at one and 
 the same time. In order, therefore, to be able to 
 accumulate imputations, and to conduct the pro- 
 secution in a circle, it was necessary to have the 
 power to shuffle the meetings and the conspiracy 
 together, so that the existence of the meetings may 
 be used to prove the existence of the conspiracy, 
 and that the existence of the conspiracy may be used 
 to give a character of illegality to the meetings. The 
 facts were wanted to give plausibility to the fiction, 
 and the fiction was required to brand illegality upon * 
 the facts ; and the necessary consequence of sepa- 
 rating those two indispensable parts of the ma- 
 chinery would be to produce in this case a defeat, K ~ 
 u as deserved," as, according to the Solicitor General * 
 himself, must have resulted from attempting to pro- 
 secute any one of the meetings for illegality. The 
 
 b 3 
 
22 
 
 difficulties which would arise from the necessity 
 of election were, therefore, and very truly charac- 
 terised by the Solicitor General as insuperable — 
 altogether insuperable, no doubt, in consequence 
 of the fact that the conspiracy was a mere fiction 
 invented for the purpose of giving the character of 
 illegality to the meetings, whilst the meetings — to 
 use the language of the Solicitor General — were 
 to be represented as "the links," "the means," and 
 " the proofs" of the conspiracy. 
 
 The Solicitor General tells the jury that according 
 - to the common law every offence must be tried 
 where it has been committed. u For that reason," 
 says he, " you could not try Tara, Lismore, Mullagh- 
 " mast, or Mullingar." What then? The meetings 
 in question would be tried by the proper juries 
 — proper in every sense — of the respective counties 
 where they were holden. Was it a necessary part 
 of the arrangements of the Crown that the trial 
 should be by that jury in the city of Dublin ? This 
 was certainly one reason for adopting the conspi- 
 racy. A better, however, is that which has been 
 already given by the learned gentleman himself, 
 namely, that any prosecution of any single meeting 
 for illegality would be " triumphantly answered, and 
 " deservedly defeated" A jury of the city of Dublin, 
 by the help of a mass of diffusive, cloudy, and 
 * exaggerated imputations, may be induced to find 
 the defendants guilty of the shadowy, constructive, 
 and indefinite offence of conspiracy ; whereas no 
 
23 
 
 jury, much less one of the neighbourhood, could be 
 expected to have the effrontery to pronounce a 
 meeting illegal when the very evidence for the prosecu- 
 tion had not only proved the total absence of all the cir- 
 cumstances which had ever been considered as the cha- 
 racteristics of illegality, but absolutely demonstrated 
 that the most sedulous and extraordinary efforts had 
 been successfully made to prevent the existence of 
 any pretence for imputing to the meeting that it 
 had been in any respect in opposition to the law. 
 
 For these reasons it was necessary, for securing 
 a conviction, to throw a drag-net about the de- % 
 fendants in the county of the city of Dublin, by 
 alleging that upon the loth of February, of all 
 days in the year, " at the parish of St. Mark, in the 
 " county of the said city, they did combine, con- 
 " spire, confederate," and so on; by which " ingenious 
 u device" every question about the character of the 
 meetings was withdrawn from the consideration of 
 the jurors of the comities where the meetings ij- 
 were ho/den respectively, where their peaceable 
 and unalarming character, now expressly and 
 universally admitted, was perfectly well known to 
 the whole population, and where any attempt at 
 branding them with the imputation of illegality 
 would be scouted with derision by the whole popu- 
 lation of all political parties. The conspiracy, how- 
 ever, being laid in the indictment, the meetings 
 were admitted in proof ; and amongst the defend- 
 ants charged with having conspired on the 13th 
 
 b 4 
 
24 
 
 of February to convene the meetings was the 
 Bev. Mr. Tierney, who never attended any of 
 them, whose first entry into the Repeal Association 
 was exactly eight months after the day when he 
 was said to have conspired, and who, through the 
 " bold, straightforward, and manly course " of a 
 fictitious, inferential, and theoretical conspiracy, 
 was made responsible for hundreds- of transactions * 
 in which he had no actual participation — the trans- 
 actions of an association of which he was not a 
 member, and of individuals with whose conduct 
 there was no reason to presume that he was in any 
 manner acquainted, except through the statements 
 which were publicly made upon the subject in all 
 the newspapers of the empire. 
 
 The Solicitor General, in his efforts to " disabuse 
 " the public" upon this point, saysf, "We are 
 " not to be taunted with having adopted the con- 
 " trivance of an indictment for a conspiracy, or 
 " with having brought the actions of one man to bear 
 " upon another — we do not visit one man with the 
 " guilt of another, but we visit on him the legal 
 " and inevitable consequences of his own act," &c. 
 In another passage he says J, " We are seeking to 
 " charge one man with the act of another, but not 
 " with the guilt of another." This is mere quib- 
 bling of the most sophistical character, and is as 
 contradictory as it is ludicrous. § Mr. Tierney is, 
 
 * See p. 166—173 f Flan - P- 44 ?- % I bid - P- 41 L 
 § We ^request the reader to apply this and all other obser- 
 vations of the same nature, not to the talents, character, or 
 
25 
 
 it seems, rendered responsible only for the conse- 
 quences of his own act. But he is made responsible 
 for all the speeches, writings, and actions, not only 
 of all the other defendants, but of a great and in- 
 definite number of other persons, during the seven 
 or eight months before the 3d of October, on which 
 day he became, for the first time, a member of the 
 Association. Were all those actions, writings, and 
 speeches, the enumeration of which occupies fifty- 
 three pages of print, and of the largest folio size, and 
 which took place before he joined the Association, 
 the consequence of his act in joining it? To assert * 
 this directly would be too ridiculous, and recourse is 
 therefore had to the theory of a self-assumed retro- 
 spective criminality, which, in the circumstances of 
 the case, is as great an outrage upon law as it is upon 
 justice and common sense. The following extra- 
 ordinary passage upon this subject is taken from the 
 charge of the Chief Justice to the jury*: " In re- 
 M ference to Mr. Tierney I shall put this question to 
 " you, — If you are satisfied that he did then join 
 " them, did he, at that time, on the 3rd of October, 
 " adopt the Association as it stood, with all its 
 
 conduct of the Solicitor General, for whom we entertain a 
 very~~sincere respect, but to his argument, which was the 
 consequence of his position. We have taken his reply as the * 
 principal ground ofour observations, for the very obvious 
 reason that it was the only address upon the part of the Crown 
 which deserves any notice at all; the opening speech of the 
 Attorney General being a mere series of the fragments of the 
 evidence to be adduced upon the trial. 
 * Page 451. 
 
26 
 
 " criminality! (if such existed), as it did then 
 "exist!" As the jury found Mr. Tierney guilty, 
 they must of course have been satisfied that " on 
 " the 3d of October he adopted the Association as 
 " it stood, with all its criminality, if any such ex- 
 " isted at the time ! " There is something in the last 
 degree ludicrous about this idea of a man's taking 
 an Association for better for worse, and wedding him- 
 self deliberately and desperately to a body which 
 he actually knows to be eight months gone with 
 ready-made criminality ; and the most curious part 
 of the principle is, that a man may involuntarily 
 adopt this precious " infant in ventre sa mere " 
 without being even aware of its existence.* 
 
 In putting this question to the jury, the learned 
 Chief Justice professed to consider himself justified 
 by the case of The Queen v. Douglas and Murphy f, 
 in the course of which Mr. Justice Coleridge is repre- 
 sented to have said that " if a conspiracy is already 
 " formed, and a person joins it afterwards, he is 
 " equally guilty." Mr. Justice Coleridge himself has 
 frequently stated, and very recently, in the case of 
 The Queen v. the Trustees of the Taunton Market, 
 that these general expressions are always to be un- 
 derstood with some reference to the case before the 
 Court. In the case of The Queen v. Douglas and 
 
 * See infra, Appendix, p. 1., the affidavit of Mr. Tierney, in 
 which he states that, with one droll exception, he had had no 
 communication whatever, by writing or speech, with any of the 
 other defendants, from the 13th of February to the 13th of 
 October. 
 
 f 8 Car. & P. p. 300. 
 
27 
 
 Murphy, the offence which the defendants were 
 charged with conspiring to accomplish was one act 
 of resistance to the levy of a church-rate. Both de- 
 fendants, on the 27th October, published a hand-bill, 
 denouncing, to the dislike of the parishioners, the 
 collector of the rate, and recommending resistance. 
 On the same clay the collector was resisted by a man 
 of the name of Wall, who was taken before a magis- 
 trate for the offence on the 3d November, upon 
 which occasion Douglas became his bail, and Murphy 
 assisted in his defence. The whole occurrence was 
 a single transaction, occupying a few days, and the 
 two defendants had evidently and expressly adopted 
 the act of Wall and the acts of each other. They 
 previously publicly, avowedly, and conjointly re- 
 commended a breach of the law; and when this 
 recommendation was acted upon, they conjointly 
 and avowedly, in their several ways, aided, assisted, 
 and abetted the person who so committed, upon 
 their suggestion, an undoubted illegality. What 
 earthly resemblance is there between such a case 
 and that of Mr. Tierney and his imaginary adoption 
 in October of the imaginary conspiracy said to 
 have been formed in February ? The statement 
 for the prosecution by Mr. Thesiger, in the case 
 of The Queen v. Douglas and Murphy, occupies 
 only half a page of a loosely-printed octavo, there 
 being to be stated only one occurrence in which not 
 only the two defendants participated, but which 
 teas originated conjointly by themselves. There nei- 
 ther was, therefore, in fact, nor could possibly have 
 
28 
 
 been any question at all in that case of adoption; and 
 the observation of Mr. Justice Coleridge, if he really 
 made it, had no more connection with that case 
 than the case itself has resemblance to that of The 
 Queen v. O'Connell. Yet the Chief Justice leaves 
 altogether out of view the total absence of any 
 resemblance between the particular natures of 
 the two cases, whilst he extracts from one of them 
 a passage which is both general and extra-judicial, 
 and which was so far from being sufficient as an 
 authority to decide the ridiculous question of adop- 
 tion in the case of Mr. Tierney, to which it was 
 applied, that it had not even any connection with 
 the case in which it is said to have occurred. It 
 may be added, that in the case of The Queen v. 
 Murphy, a rule for a new trial was obtained, upon 
 the ground, along with others, that the acts of 
 "Wall had been improperly received in evidence 
 against the defendants at the trial : nothing further 
 has been done in the case upon either side, and 
 the rule nisi remains now undecided. 
 
 The manner in which the Chief Justice affects 
 Mr. Tierney with the knowledge of the proceedings 
 at Mullaghmast is a little singular. His Lordship 
 observes, " He might certainly have known them, as 
 " the fact was so recent and the place so near — 
 u not near where he lives, but near the city of 
 " Dublin, where he was on the Monday following 
 " the meeting*;" so that because he might on the 
 
 * Charge, p. 147. of the edition published by the Queen's 
 printer. 
 
29 
 
 3d of October have heard of the proceedings which 
 took place upon the 1st of that month, some 
 forty miles off, it is to be inferred that he also 
 knew the illegal character of those proceedings, upon 
 which no imputation had ever been made up to 
 that time upon the part of the Crown, and that 
 knowing this illegality, which was unknown to 
 even/ one else, he constituted himself a conspirator 
 , by relation ; deliberately adopting forty monster meet- 
 ings, not one of which he tftrar attended; besides 
 a conspiracy of which he never heard ; the very date 
 of which — as hypothetical as the existence of it — 
 was afterwards attributed to a period eight months 
 antecedent to the meeting in question. If it be 
 necessary to import the considerations of supposed 
 and comparative proximity of distance and recency 
 of time, for the purpose of bringing home to Mr. Tier- 
 ney a constructive knowledge, and still more ima- 
 ginary adoption of the proceedings at Mullaghmast, 
 which was the last of the forty -one meetings, upon what 
 principle could he have been holden guilty of cdl that 
 had occurred at the forty meetings which preceded the 
 last? Mr. Tiemey was so far from desiring to take a 
 part in any of the great monster meetings, that upon 
 the day when the very meeting of which we are " 
 speaking was holden at Mullaghmast, he attended a 
 meeting in his own parish of Clontibret, at which 
 none of the other defendants was present. The 
 Chief Justice, referring to this subject, said, " Mr. 
 " Tierney, it seems, on the same day had a little pet 
 " meeting of his own," &c. The expression "little 
 
30 
 
 " pet " being obviously intended as a judicial jocular 
 antithesis to " Great Monster ! " Such was the tone 
 of dignified impartiality which was exhibited by the 
 Chief Justice, who, in the course of his address to 
 the jury, designated the counsel for the defendants as 
 " the gentlemen upon the other side!"* Such was 
 the judge who informed the jury that it was an in- 
 dictable misdemeanour to endeavour to withdraw the 
 * confidence of the public from the established courts 
 of justice in Ireland. After perusing such a charge, 
 one can easily understand how strong must be the 
 temptation to withdraw every degree of confidence 
 from some, at least, of the Queen's Courts in that 
 country, and how little difficulty there is in effect- 
 ing such a purpose, f 
 
 Of the case of the Rev. Mr. Tyrrell it is unneces- 
 sary to say much, as death, partly caused by anxiety 
 
 * The following is the passage from which the extract is 
 taken: — Addressing the jury, his lordship observes, "I am 
 " stating substantially the document to you, and I am speaking 
 " under the correction perfectly of the gentlemen of the other 
 " side to see whether I do not state correctly the several docu- 
 " ments as I go along ; and I shall be very much obliged to them, 
 " if they find in any particular I fall short, or mistake, or misstate 
 " the documents that occur, to interrupt me. It is quite right 
 " they should be aware of that. I shall state no document they 
 " have not ; and for the ends of justice it is essential that if I 
 " misstate at all I should be corrected." (a) This passage is a very 
 fair sample of the style of this extraordinary composition, 
 which we shall more minutely analyse in the course of the pre- 
 sent publication. 
 
 t The reader is requested to turn from this passage to the 
 affidavit of Mr. Tierney, Appendix, p. 1 . 
 
 (a) Page 5Ch of the edition published by the Queen's printer. 
 
31 
 
 for the result of the prosecution, has released him 
 from this as well as from every other worldly 
 affliction. With reference to the meetings, the 
 overt acts charged against him were, that he at- 
 tended those of Drogheda and Tara, and " endea- 
 " voured " to procure the meeting to be hold en at 
 Clontarf, and attended the Association about three 
 times. No complaint is made of his speeches at 
 either of the two monster meetings ; and it is not 
 even alleged that he spoke at all at either of them, 
 or upon the few occasions when he attended the 
 Repeal xVssociation. With regard to the projected 
 meeting at Clontarf, against which the proclamation 
 ortlie Lord Lieutenant was directed, it is generally 
 believed that the_fatigue which he underwent upon 
 the night before the day appointed for the meeting 
 in his endeavours to prevent it, was one of the causes 
 of his death. The principal evidence alleged in the 
 enumeration of the overt acts, in support of his 
 having conspired on the \ 3th of February, was, that 
 he moved certain resolutions at a meeting which 
 took place on the Sth of October, although he was 
 made responsible for every thing which had been 
 imputed to all the rest of the defendants by the 
 fifty-three pages of overt acts or the bill of par- 
 ticulars. 
 
 Upon the same principle, every thing objection- 
 able which was said by Mr. O'Connell at the monster- 
 meetings was charged to the account of Mr. Duffy, ^ 
 who never attended one of them ; whilst Mr. O'Con- 
 nell was made responsible for the writings of Mr. 
 
32 
 
 Duffy, although even the evidence for the prosecu- 
 tion proved*, that Mr. O'Connell had publicly and 
 expressly repudiated any responsibility on his own 
 part or that of the Association for the sentiments 
 expressed in any paper whatever, and especially the 
 " Nation," which is the paper of Mr. Duffy. The 
 only overt acts charged upon Mr. Duffy in respect of 
 the meetings, are the reports contained in his paper 
 of the speeches delivered at the assemblies by Mr. 
 f O'Connell. But as Mr. Duffy's paper is a weekly 
 one, it is quite obvious that the speeches reported 
 therein must have appeared in all the daily news- 
 papers of every description throughout the empire, 
 before they could appear in the " Nation;" so 
 that his offence in this respect would universally 
 consist in his having published what had been 
 already made known to the whole world through 
 the medium of previous publications in almost all 
 the other papers in the kingdom. 
 
 As it appeared to be a point of primary import- 
 ance to ascertain, in the first instance, the character 
 and quality of the conduct, which was the subject 
 of the prosecution, we have, in order to place this 
 matter beyond the possibility of doubt, thought^ it 
 proper to enter, in this place, rather fully^into the 
 consideration of some collateral subjects, and also to 
 anticipate, in some degree, the chronological order 
 of the proceedings. Thj^testimony of the Solicitor 
 General to the peaceable and un alarming character 
 and undoubted lawf ulnes s of th e me etingsjn them- 
 
 * Flan., p. 193. 
 
33 
 
 selves -was borne, after he had heard all the evidence 
 upon the subject, and would, even if it stood alone, 
 and were not, as it was, confirmed by the Attorney 
 General and the whole Court of Queen's Bench, be 
 most abundantly sufficient to put this point beyond 
 the possibility of controversy or doubt. 
 
 Such being the character of the meetings, as 
 given by all the authorities, judicial and ministerial, 
 connected with the trial, the prosecutions com- 
 menced with the informations laid by Mr. Bond 
 Hughes upon the subject of the assembly at Mul- 
 laghmast, of a meeting of the Repeal Association 
 which took place at the theatre in Abbey Street, 
 and of a dinner which occurred at the Rotunda 
 upon the evening of the same day. Mr. Hughes 
 deposed untruly, through mistake, that Mr. Barrett 
 was present at the theatre and at the Eotunda, and 
 informations for perjury were offered against 
 him before the magistrates. Mr. Hughes, in the 
 meantime, had been convinced of his error, and 
 communicated the fact to the Crown Solicitor, 
 Mr. Kemmis. That gentleman, however, adopted 
 the extraordinary course of abiding by information 
 which the informant himself declared to be untrue. 
 He proceeded with the prosecution against Barrett 
 for conduct of which he knew Barrett to be inno- 
 cent, and defended Hughes against an imputation of 
 which he knew Hughes to be guilty. It being pub- 
 licly established beyond controversy by the oaths 
 of several respectable persons that Barrett was not 
 
 c 
 
34 
 
 present at either of the above-mentioned places upon 
 the occasions in question, the untruth of Hughes's 
 deposition upon that point became notorious, whilst 
 none of the general public was aware of the fact 
 that he had privately informed Kemmis of his mis- 
 take. Hughes was, in this condition of affairs, 
 perhaps not very unnaturally, hooted in the 
 streets ; and the Attorney General, who was ac- 
 quainted with the whole of the circumstances about 
 Hughes's deposition, made the fact of the popular 
 disapprobation being so expressed against what 
 seemed to be undoubted perjury, a ground upon 
 which he subsequently refused to give a list of the 
 witnesses for the prosecution, alleging that to fur- 
 nish the list would be to expose the witnesses to 
 public outrage.* 
 
 When an application was made to the court 
 for a mandamus, commanding the magistrates 
 to receive the informations of Barrett against 
 Hughes, the Attorney General opposed the applica- 
 tion, though he knew that Hughes's deposition was 
 untrue ; and he at the same time, and whilst the 
 monster indictment was actually pending before the 
 grand jury, proceeded to the outrageous and ex- 
 travagant indecency of publicly declaring in court, 
 that if the grand jury should find the bill he 
 
 * One of the objections which he subsequently made to the 
 plea in abatement was, that it did not state the names of the wit- 
 nesses ! which names lie himself had prevented the defendants 
 from procuring ; and with which, in point of fact, they never 
 had the means of becoming acquainted until after the judgment 
 had been pronounced. 
 
35 
 
 would undertake to establish as foul and wicked a 
 conspiracy as ever disturbed an empire! When 
 the reader considers that this whole prosecution was 
 commenced for the purpose of punishing and re- 
 pressing the meetings, and that the result of the 
 prosecution, in fact, was to prove that they had 
 never caused, and were never followed, by any dis- 
 turbance whatever, he will be duly sensible of the 
 farcical nature of the exaggerated bombast uttered 
 by the Attorney General upon the occasion to which 
 we refer. The gross impropriety of attempting to 
 influence the grand jury by publicly and pre- 
 viously undertaking to convict the defendants is 
 too obvious to require any particular notice, and is 
 rendered still more glaring by the disgraceful dis- 
 comfiture by which the whole proceedings of the 
 prosecution were finally overturned. Such an 
 undertaking, given by a public prosecutor in the 
 court where the defendants were to be tried, and 
 before the very existence of the indictment, which em- 
 bodied the accusation, whilst the law, to which the 
 Attorney General, as well as the court itself, owe 
 their very existence, presumed the parties accused 
 to be absolutely innocent of the charge, was, we 
 shall venture to repeat, an indecency as unprece- 
 dented as it was outrageous. The absurd inconsis- 
 tency of this outrage was upon a level with all its 
 other demerits ; for whilst the Attorney General 
 was in the act of making a public, solemn, and 
 official declaration, which was obviously and emi- 
 
 c 2 
 
36 
 
 nently calculated to prejudice the grand jury into 
 the finding of the bill then before them, he opposed 
 the motion of which we have been speaking, upon 
 the ground that it was " calculated to prejudice the 
 " case then before the grand jury" ! 
 
 The indictment, which was presented upon 
 the 3d of November, was returned a true bill 
 upon the 8th. Its dimensions and general cha- 
 racter are now matter of universal notoriety. The 
 enumeration of the overt acts annexed to the first 
 count occupied fifty -three printed pages of the largest 
 folio size.* The author of an article in Blackwood's 
 Magazine has calculated that the indictment con- 
 
 * To which was appended the following " Bill of Particulars," 
 which may serve as a sample of the whole. The reader will 
 not fail to observe, that whereas in all other cases the bill of 
 particulars, as the very name of it indicates, consists of some 
 selected items from the larger multitude of details contained in 
 the indictment itself, the bill upon the present occasion is made 
 up of documents, occurrences, declarations, resolutions, entries, 
 &c. &c. &c, of which no previous mention had been made in the 
 indictment at all. This bill of particulars was the Irish answer 
 which the Attorney General gave to the request of the defend- 
 ants, that he would inform them of the specific portion of the 
 overt acts to which he proposed to limit the production of 
 evidence at the trial. 
 
 Bill of Particulars. 
 
 " In addition to the several matters and things set out in the 
 "first count of the indictment, it is intended to give in evidence, 
 " in support of the prosecution, the speeches made, the resolu- 
 " tions moved or adopted, the acts done, the letters and other 
 " documents read, and the several proceedings which occurred 
 " or took place at each and every of the several meetings in the 
 " said first count specified or referred to, and any entries of the 
 " said several proceedings made by the defendants or any of 
 
tains about 75,000 words! which "monster meet- 
 " ing" of the English language he excuses upon the 
 ground that it was convened " for the laudable pur- 
 " pose of giving the parties notice of the par- 
 " ticular facts from which the Crown intended to 
 " deduce the conspiracy, which facts consisted of a 
 " prodigious number of writings, speeches, and pub- 
 " lications." But what was it that created the 
 necessity for such a " prodigious particularity ?" 
 It was the confessed consciousness of the Crown 
 prosecutors that they were totally unable, upon any 
 principle of the common law, to sustain a direct 
 charge of illegality against any one of the meetings 
 or any one of the defendants, and that they could 
 only accomplish a conviction by tumbling into the 
 jury-box a multitudinous mass of confounding, dis- 
 tracting, and overwhelming details, which would 
 create a general impression in the minds of the 
 jury concerning some general criminality, without 
 
 " them, or by the directions of them, or any of them, and the 
 " manner and order in which the persotis composing said several 
 u meetings respectively went thereto; and also the speeches 
 " made, the resolutions proposed or adopted, the acts done, the 
 " letters and other documents read, and the several proceedings 
 " which occurred or took place at each of the several occasions 
 "following, that is to say, at meetings of persons styling them- 
 " selves the Loyal National Repeal Association, at the Corn 
 " Exchange Rooms, on Burgh-quay, in the City of Dublin, 
 
 a which took place respectively on ." It then sets out the 
 
 date of several meetings which were held in the months of March, 
 April, July, August, September, October, and November, 1843, 
 and of the several meetings at Limerick, Sligo, Charleville, Cashel, 
 
 c 3 
 
38 
 
 rendering it necessary to find a verdict upon any 
 issue of any specific nature. These overt acts were 
 charged, some against one, some against two, others 
 against a greater or lesser number of the defendants, 
 and only very few of them were laid as having been 
 jointly committed by them all. But as the gravamen 
 of the indictment was the conspiracy, each indi- 
 vidual was, by fiction and relation, made respon- 
 sible for every thing that was charged as having 
 been either said or done by every other individual 
 in furtherance of the alleged common object, at 
 any place or time; even though the party to be 
 affected by the evidence may not have actually 
 entered into any communication with the persons 
 by whose actions he was affected until long after 
 the acts themselves had been performed ; and as 
 the whole of the acts were spread over a period 
 of eight or nine months, and were laid as having 
 occurred in places widely distant from each other, 
 
 Ennis, Athlone, Skibbereen, Galway{a), Tullamore, Tuam, 
 Maryborough, Roscommon, and the dinners which took place 
 at those places. "And any entries of the said several proceed- 
 " ings made by the defendants, or any of them, or by the direc- 
 " tion of them or any of them, and the manner and order in 
 " which the persons composing the said several meetings re- 
 " spectively went thereto ; and also it is further intended to 
 " give in evidence, in support of the said prosecution, the hold- 
 " ing of, and all proceedings and acts of, certain assemblies 
 " styled Courts of Arbitration, held at Blackrock and Rathmines, 
 " in the vicinity of Dublin, and also at Limerick, in the months 
 " of August, September, and October, 1843, and of the persons 
 " professing to act as Arbitrators in the said Courts ; and it is 
 
 (a) Vide infra, page 168. 173. 
 
39 
 
 the consequence must have been interminable 
 anxiety, perplexity, and confusion to the defend- 
 ants.* For this multitudinous aggregation of 
 charges against nine individuals in a body, the 
 Attorney General was warmly commended by a 
 London organ of the Government as having " mer~ 
 " cifully included the materials of a hundred indict- 
 " ments in one ! " — as if the commonest considera- 
 tions connected with the administration of criminal 
 justice did not render it obvious that the first and 
 greatest mercy which, consistently with the interests 
 of the public, can be shown to persons charged with 
 a violation of the law, is to make each individual 
 responsible for only his own offences, to give him 
 distinct information of the nature of the imputed 
 offence, and to call upon him to answer as few 
 charges as possible at the same time. This mercy 
 or rather this justice, it is the obvious and bounden 
 
 " further intended to give in evidence, in support of the said 
 " prosecution, the fact of the printing and publishing, and also 
 " the contents, of the several newspapers following." — It then 
 enumerates the dates of several of the Pilot, Freeman's Journal, 
 and Nation newspapers, published during the months of March, 
 April, Mai/, June, July, August, September, October, and No- 
 vember, 1843. "And you are to take notice, that each and 
 " every of the said several matters hereinbefore mentioned or 
 " referred to, will be offered in evidence at the trial of this case, 
 " in support of each and every of the counts in the indictment. 
 " Dated 13th of November, 1843."0) 
 
 * A " notice to produce," printed with a copy of the Jury 
 Lists in a Parliamentary Return of the 7th June, 1844, con- 
 sists of six elosely -printed folio p ayes. Vide infra, p. 174. 
 (a) Report by Armstrong and Trevor, p. 33*, & 34*. 
 
 c 4 
 
40 
 
 duty of every public prosecutor, civil or military, to 
 do to every party whom he accuses.* The following 
 report presents a most remarkable confirmation, by 
 the highest authority at present practising at the bar 
 in England, of the correctness of the view which we 
 have taken of this point. The report is extracted 
 from The Times of December 23d, 1844: — 
 
 "COURT OF QUEEN'S BENCH, GUILDHALL, Dec. 21. 
 " ( Sittings at Nisi Prius, before Lord Denman and a 
 Special Jury.) 
 " The Queen v. Rowlands and others. 
 " Mr. Piatt and Mr. M. Chambers appeared in this case for 
 " the prosecution. The Solicitor General (with whom were 
 " Mr. W. H. Watson, Mr. Humfrey, and Mr. Miller) conducted 
 " the defence. 
 
 " The indictment was preferred against five persons, of the 
 " name of Rowlands, who were charged, together with two others, 
 " named Knight and King, with having conspired to procure 
 " false evidence to be given in the course of an arbitration, for 
 " the purpose of causing the award to be made in favour of the 
 " defendant in the action referred, who was also one of the de- 
 " fendants in the present indictment. The subject of inquiry in 
 " the action and in the arbitration was, the precise nature of an 
 " alleged agreement between the plaintiff and defendant with 
 " regard to the purchase of some watches ; and it was upon this 
 " subject that was committed the alleged perjury, for the alleged 
 " procurement of which the present indictment for a conspiracy 
 " was preferred. Upon the part of the prosecution, evidence was 
 " adduced with a view to show the falsehood of the testimony in 
 " question ; and the argument on that side of the case was, that 
 " as the several acts of the several defendants had a tendency to 
 " the attainment of a certain object, namely, the making of the 
 
 * See Archbold's Crim. Plead., edited by Mr. Jervis, Q.C., 
 (1843) pp. 53. 59.; and Hough on Courts Martial, p. 40, 
 second edition, by George Long, Esq., Barrister-at-Law. 
 
41 
 
 - award in favour of the defendant Christopher Rowlands, it must 
 " be taken that it was for the attainment of that object that they 
 " severally swore what was untrue ; and that, as they all committed 
 " perjury, as the means of attaining a common object, they must 
 " be supposed to have conspired together for the attainment of 
 " that object by those means. There was no evidence of any 
 " previous combination, except that which was said to be afforded 
 " by the considerations which we have just mentioned. 
 
 " Upon the close of the case for the Crown, 
 
 " Lord Dexman observed, that as the evidence which was 
 " now given for the purpose of proving the falsehood of the 
 M statements made before the arbitrator existed at the time when 
 " those statements were made, it might have been adduced for 
 " the purpose of contradicting them before the making of the 
 " award. As that course was not adopted, and as the attorney 
 " who attended the proceedings before the arbitrator on the other 
 M side was not called on to explain why it had not been pur- 
 " sued — as the attention of the witnesses themselves, when ex a- 
 u mined before the arbitrator, did not appear to be called to the 
 
 " evidence which was now (jin n to contradict them — and as a 
 " COnsidt ruble time had elapsed since the original evidence was 
 " given, he (Lord Dexman) was of opinion that the jury would 
 " not, under such circumstances, find the defendants guilty of 
 " the charge. 
 
 " The jury having signified their assent to his lordship's view 
 " of the case, Mr. Piatt, after a few observations, gave up the 
 " prosecution, and the jury found a verdict of Not Guilty, 
 
 " The Solicitor General, after a short interval, rose and re - 
 " quested permission of the court to observe upon the oppressive 
 ■ nature of this prosecution, which, instead of making each 
 
 " OF THE DEPENDANTS RESPONSIBLE FOR HIS OWN SEPARATE OF- 
 
 " fence, if he were guilty of any, threw over the whole of them a 
 
 " DRAG-NET BY INDICTING THEM ALL FOR A CONSPIRACY, the 
 
 " result of which was that the lips of all of them were closed 
 " upon the present occasion; whereas, if each had been sepa- 
 " rately accused of the alleged perjury, the other persons who 
 " were note his co-defendants might be called to show his inno- 
 " CENCE of the charge. He (the Solicitor General) had felt it 
 " hi* duty to express his most decided disapprobation of such 
 
42 
 
 " A course, and felt obliged to the court for having permitted 
 " him to do so after the close of the proceedings. 
 
 " Mr. Piatt said, that the reason for including them all in the 
 " indictment was, that they had all committed perjury ; and as 
 " they all committed it for a common object, they were all very 
 " properly included in the prosecution. With regard to the 
 " course of indicting them for a conspiracy, it had been adopted 
 " under the directions of counsel. 
 
 " The Solicitor General shook his head, and intimated other - 
 " wise by his gestures his disapprobation of such a course ; 
 " but the conversation proceeded no further." 
 
 Upon this most important subject the following 
 observations are made in the admirable judgment 
 delivered by Lord Denman in this very case.^ 
 
 " I am deliberately of opinion that the practice 
 " of selecting at the time of trial the counts on which 
 " judgment may be lawfully awarded is the right 
 " and wholesome practice, producing no inconve- 
 " nience, and affording a great security for justice. 
 " In old times, when the indictment consisted of a 
 " single count, it was of necessity the universal prac- 
 " tice to form an opinion whether that count was 
 " valid : the constant aim of modern legislation has 
 " been to simplify criminal charges ; nor is any 
 u object more worthy of attention in framing the code 
 " of every civilised country. 17 
 
 The following are the particulars of the " volu- 
 minous, unwieldy, and unintelligible" document 
 upon which Mr. O'Connell and his co-defendants 
 were put upon their trial : — 
 
 * Page 30. of the Judgment, in O'Connell v. The Queen, as 
 edited by Mr. Leahy. 
 
43 
 
 It contains eleven counts, in each of which it 
 is charged that the said Daniel O'Connell, John 
 O'Connell, Thomas Steele, Thomas Mathew Ray, 
 Charles Gavan Duffy, John Gray, and Richard 
 Barrett, the Reverend Peter James Tyrrell, and the 
 Reverend Thomas Tierney, unlawfully, maliciously, 
 and seditiously did combine, conspire, confederate, 
 and agree with each other, and with divers other per- 
 sons, whose names were to the jurors unknown, for 
 the purposes in the said counts respectively stated. 
 
 The first count charges the said supposed con- 
 spiracy as a conspiracy to do live different acts 
 (that is to say) — 
 
 First. " To raise and create discontent and dis- 
 " affection amongst her Majesty's subjects, and to 
 " excite such subjects to hatred and contempt of the 
 " government and constitution of the realm as by 
 " law established, and to unlawful and seditious op- 
 " position to the said government and constitution." 
 
 Second. " To stir up jealousies, hatred, and ill- 
 " will between different classes of her Majesty's 
 " subjects, and especially to promote amongst her 
 " Majesty's subjects in Ireland feelings of ill-will 
 u and hostility towards and against her Majesty's 
 " subjects in the other parts of the United King- 
 " dom, and especially in that part of the United 
 " Kingdom called England." 
 
 Third. '* To excite discontent and disaffection 
 " amongst clivers of Her Majesty's subjects serving 
 " in Her Majesty's army." 
 
 Fourth. " To cause and procure, and aid and 
 
44 
 
 " assist in causing and procuring, divers subjects of 
 " Her Majesty unlawfully, maliciously, and sedi- 
 " tiously to meet and assemble together in large 
 " numbers, at various times, and at different places 
 " within Ireland, for the unlawful and seditious pur- 
 " pose of obtaining, by means of the intimidation to 
 " be thereby caused, and by means of the exhibi- 
 " tion and demonstration of great physical force at 
 " such assemblies and meetings, changes and alter- 
 " ations in the government, laws, and constitutions 
 " of the realm by law established." 
 
 Fifth. " To bring into hatred and disrepute the 
 " courts by law established in Ireland for the admi- 
 " nistration of justice, and to diminish the confi- 
 u dence of Her Majesty's subjects in Ireland in the 
 " administration of the law therein, with the intent 
 " to induce Her Majesty's subjects to withdraw the 
 " adjudication of their differences with and claims 
 " upon each other from the cognizance of the said 
 " courts by law established, and to submit the same 
 " to the judgment and determination of other tri- 
 " bunals to be constituted and contrived for that 
 " purpose." 
 
 This Count sets out as overt acts of the said sup- 
 posed designs certain alleged meetings, speeches, 
 and publications. 
 
 The second count is the same as the first, omit- 
 ting overt acts. 
 
 The third count is the same as the second, save 
 that in the fourth charge the words " unlawfully, 
 " maliciously, and seditiously" are omitted. 
 
45 
 
 The fourth is the same as the third, omitting the 
 charge as to the army. 
 
 The fifth count contains the first and second 
 charges set forth in the first count, omitting the 
 overt acts. 
 
 The sixth count contains the fourth charge set 
 forth in the first count, omitting the words " un- 
 " lawfully, maliciously, and seditiously," and the 
 u overt acts." 
 
 The seventh count is the same as the sixth, 
 adding the words " and especially by the means 
 u aforesaid to bring about and accomplish a disso- 
 u lution of the legislative union now subsist in g 
 u between Great Britain and Ireland." * 
 
 The eighth count contains the fifth charge set 
 forth in the first count, omitting the overt acts. 
 
 The ninth count contains the fifth charge set 
 forth in the first count, omitting the intent therein 
 charged, and the overt acts, but adding the follow- 
 ing charge (that is to say), " and to assume and 
 " usurp the prerogative of the Crown in the esta- 
 " blishment of courts for the administration of law." 
 
 The tenth count is the same as the eighth, omit- 
 ting the intent stated in the fifth charge in the 
 first count. 
 
 The eleventh count charges the supposed con- 
 
 * The judges and law lords in this country unanimously de- 
 cided that the 6th and 7th counts of the indictment were o-ood 
 
 o 
 
 for nothing, as they imputed to the defendants nothing which 
 was forbidden by the law. They also decided that the finding 
 upon the 1st, 2nd, 3rd and 4th counts respectively, were so 
 bad as to render each of these counts a mere nullity for the 
 purpose of supporting a judgment. 
 
46 
 
 spiracy to be, to cause and procure meetings in 
 divers places and at divers times in Ireland, " and 
 " by means of unlawful, seditious, and inflamma- 
 " tory speeches and addresses to be made and de- 
 " livered at such meetings, and also by means of 
 " the publishing, and causing and procuring to be 
 " published, to and amongst Her Majesty's sub- 
 " jects, divers malicious, unlawful, and seditious 
 " writings and compositions, to intimidate the Lords 
 " Spiritual and Temporal, and the Commons of the 
 u Parliament of the United Kingdom, and thereby 
 " to effect and bring about changes and alterations 
 " in the laws and constitution of the realm as now 
 " by law established." 
 
 There are thus in effect six distinct charges com- 
 prised in the indictment. 
 
 1. A conspiracy to raise and create discontent 
 and disaffection amongst Her Majesty's subjects, 
 and to excite them to hatred and contempt of, and 
 to unlawful and seditious opposition to, the govern- 
 ment and constitution as by law established. 
 
 (This charge is set forth in the first, second, 
 third, fourth, and fifth counts respectively.) 
 
 2. A conspiracy to stir up jealousies, hatred, and 
 ill-will between different classes of Her Majesty's 
 subjects, and to promote amongst Her Majesty's 
 subjects in Ireland feelings of hostility and ill-will 
 towards Her Majesty's subjects in the other parts of 
 the United Kingdom, especially in England. 
 
 (This charge is also set forth in the first, 
 second, third, fourth, and fifth counts re- 
 spectively. ) 
 
47 
 
 3. A conspiracy to excite discontent and dis- 
 affection in the army. 
 
 (This charge is set forth in the first, second, 
 and third counts respectively.) 
 ,4. A conspiracy to assemble meetings of large 
 numbers of persons in Ireland, and, by means of 
 the intimidation to be thereby caused, and the ex- 
 hibition and demonstration of physical force thereat, 
 to obtain changes and alterations in the govern- 
 ment, laws, and constitution, and especially to 
 effect a dissolution of the legislative union between 
 Great Britain and Ireland. 
 
 (This charge, with the exception of the last 
 clause, is set forth in the first, second, third, 
 fourth, and sixth counts respectively, and 
 including the last clause is set forth in the 
 seventh count.) 
 5. A conspiracy to bring into hatred and dis- 
 repute the courts by law established for the admi- 
 nistration of justice in Ireland, and to diminish the 
 confidence of Her Majesty's subjects in Ireland in 
 the administration of the laws therein, with intent 
 to induce the said subjects to withdraw the adju- 
 dication of their differences with and claims upon 
 each other from the cognizance of said courts, 
 and to submit them to the decision of other tri- 
 bunals to be constituted and contrived for that 
 purpose. 
 
 (This charge is set forth in the first, second, 
 third, eighth, and ninth counts respectively, 
 save that in the eighth count the word 
 
48 
 
 u tribunals " is substituted for the word 
 " courts," and in the ninth count the intent 
 charged is omitted, and there is substituted 
 a charge of conspiracy in these terms, 
 namely, " to assume and usurp the prero- 
 " gative of the crown in the establishment 
 " of courts for the administration of law.") 
 6. A conspiracy to assemble meetings of large 
 numbers of persons in Ireland, and, by means of 
 seditious and inflammatory speeches to be made 
 thereat, and also by means of the publication of 
 seditious writings and compositions amongst Her 
 Majesty's subjects, to intimidate the Lords Spiritual 
 and Temporal and Commons of Parliament, and 
 thereby to bring about changes and alterations in 
 the laws and constitution. 
 
 (This charge is set forth in the eleventh count 
 only.) 
 
 With regard to the first charge, it is not neces- 
 sary to say much more than that as the conduct which 
 it describes as the object of the conspiracy is it- 
 self a distinct, substantive, and palpable offence 
 against the law of the land — as the offence of 
 sedition is therein implicitly imputed to each of 
 the defendants — the just, equitable, impartial, and 
 unimpassioned administration of justice required 
 that, to use the language of the Solicitor General 
 for England, " each individual should be made re- 
 " sponsible for his own separate offence, instead of 
 " throwing over them all the net of a conspiracy " 
 and proceeding in a manner against the oppressive 
 
49 
 
 character of which Sir Frederick Thesiger felt it 
 to be his duty to protest, even in a case in which, 
 if in any case whatever, it would be allowable to 
 infer a previous conspiracy from the separate guilt 
 of the defendants : inasmuch as it is impossible to 
 believe that in the circumstances of that case* all 
 the defendants could have committed perjury upon 
 the same point without having previously conspired 
 for that identical purpose. 
 
 The Solicitor General of In land, who continuallv 
 felt the want of candour, equity, and impartiality, 
 which was evident upon the face of the proceedings, 
 made frequent attempts to avert the indignation 
 which all candid persons must have entertained at 
 the course that had been adopted. At the end 
 of his reply he observed, that M it would not have done 
 4 * to convict Mr. Barrett or Mr. Duffy of having pub- 
 " lished a seditious libel, or Mr. O'Connell of bavins 
 k * spoken a seditious speech." But why would it 
 not have done? The reason of this very odd state- 
 ment is even more odd than the statement. ; * The 
 M great question,'' says the Solicitor General, "which 
 M we want to try is the legality of these proceedings 
 " and of this body." What proceedings and what 
 body ? The monster-meetings and the Repeal 
 Association. If this be so, it must be admitted 
 that the prosecution was a truly Hibernian method 
 of attaining the proposed object of the Crown : 
 as there was, in fact, no divert issue upon the trial 
 • The Queen v. Rowlands, ante, p. 40. 
 D 
 
50 
 
 as to either the meetings or the Association. 
 The law officers themselves repeatedly stated this 
 fact, and reminded every body that the indictment 
 was not for attending illegal meetings, or belonging 
 to an illegal association, but for conspiring to do 
 so and so. Their case upon this point was, that 
 the defendants may be convicted of conspiring to 
 convene the meetings, although the meetings had 
 never been convened at all ; and although, when 
 convened, they were perfectly lawful as regarded 
 every one of the hundred thousand persons who 
 attended them except, the defendants, by whom 
 they were said to be convened. The result of the 
 trial, as far as regarded this point, was not a little 
 curious. All the counts of the indictment which 
 related to the monster-meetings, except the first and 
 second, charged the defendants with illegally and 
 seditiously conspiring to cause large bodies of per- 
 sons to meet and assemble for the purpose, &c. 
 The charge in the first and second count was that 
 of illegally and seditiously conspiring to cause large 
 bodies, &c. illegally and seditiously to meet and 
 assemble — the character of illegality being in the 
 first and second counts, and in those alone, attributed, 
 though indirectly, to the meetings themselves. The jury 
 of course found the defendants guilty upon the first 
 and second, as upon all the other counts ; but even 
 that jury expressly expunged from those counts, be- 
 fore returning their verdict, the words unlawfidly 
 and seditiously as applied to the meetings, allowing 
 the same words to stand where they affected the 
 
.31 
 
 defendants upon the record ; so that the effect of 
 the judgment, as entered up on the verdict, as to 
 this point, was, that the defendants were found 
 guilty of unlawfully convenimj meetings, ichich were 
 lawful when convened! 
 
 With regard to the Association, its character 
 was not in any manner whatever in issue.* It is 
 true that the defendants were all members of the 
 body, some of them having been connected with 
 it for three or four years, and one or two for 
 a few days before the commencement of the prose- 
 cution. But the defendants, though members of 
 the Association, were not prosecuted as such, and 
 their conviction could not in the slightest degree 
 affect the legality of that body. So that if we 
 regard the result of the prosecution we shall have 
 reason to conclude, considering its professed objects, 
 that it was as inefficient as it was absurd ; inasmuch 
 as the judges and law lords in England expressly 
 decided that the description of the meetings, as con- 
 tained in the indictment, was such as not to show 
 that there was any thing illegal, as far as the 
 convening of those meetings was concerned, in 
 the conduct or object of the parties by whom 
 they were convened; whilst we must conclude 
 
 * " It was not contended by the Attorney-General that the 
 " Association was an illegal body, nor do I pronounce any opi- 
 " nion one way or other upon that subject." — Judgment of Mr. 
 Justice Crampton upon the motion for a new trial. Morning 
 Chronicle, 21th May, 1844. 
 
 D 2 
 
52 
 
 that the Association is a body to which there 
 exists no legal exception, as no attempt has ever 
 been made to convict it of illegality. Indeed, 
 it may be said that the Government did not 
 venture to raise any direct or specific issue upon 
 the record as to the illegality of any thing ex- 
 cept the shadowy and hypothetical subject of an 
 alleged combination among the nine defendants 
 in the indictment. 
 
 But if the object of the prosecution was to try 
 the legality of the proceedings, how does it hap- 
 pen that the indictment was framed in such a 
 manner as that the defendants could be con- 
 victed under it without any proof of any proceed- 
 ings at all, either legal or illegal. The law officers 
 of the Crown and the Chief Justice of the Queen's 
 Bench repeatedly informed the jury that, in order 
 to find the defendants guilty of having conspired, it 
 was not necessary to prove that they had done any 
 thing towards accomplishing the alleged objects of 
 the conspiracy, and that the offence with which they 
 were charged would be complete even though nothing 
 whatever should have been done in furtherance of the 
 purposes of the combination. But as no direct evi- 
 dence was or could have been given of any conspi- 
 racy, which, on the contrary, was only attempted to 
 be deduced as a consequence from the acts and pro- 
 ceedings of the parties, it follows that, according to 
 the account which the prosecutors give of their own 
 prosecution, it has not only failed as a matter of 
 fact in accomplishing the object for which it was 
 
53 
 
 instituted, but that it was originally incapable of 
 accomplishing that object. 
 
 The Solicitor General Bays, " We have not gone 
 " to the inferior agents, or put into prison this 
 " person or that who had acted a subordinate 
 M part." To say nothing of Mr. Tyrrell or Mr. 
 Tierney, what is Mr. Hay, who is a defendant 
 upon the record ? The Chief Justice himself states 
 the extent of Mr. Ray's criminality in the following- 
 facetious manner*: — "And you have Mr. Ray, 
 " moreover, adding his mite" The Chief Justice's 
 jocularity is, however, occasionally of a more 
 sombre character. It haying been urged in excuse 
 of Ray for contributing " his mite" that he was the 
 mere paid secretary of the Association, the Chief 
 Justice answers the excuse by the following tem- 
 perate and decorous comparison : — "It might as well 
 " be said that Scotch Andrew could not have been 
 M guilty of the murder of Mr. McDonnell because 
 " he was in the service of Mr. Fitzgerald, and acted 
 " under his orders ; yet Scotch Andrew was tried, 
 M convicted, and executed for the offence." 
 
 The Solicitor General says. " We have at once 
 " joined issue with Mr. O'Connell." Now that is the 
 very thing which it appears to us to be self-evident 
 that they have not done. If the law officers of the 
 Crown had pursued this course, their conduct could 
 not, with propriety, be called either unconstitutional 
 or oppressive, whatever objections maybe made to it 
 * Pages_144, 145. of the Queen's printer's edition. 
 
 ]> 3 
 
54 
 
 upon other grounds. They repeatedly asserted that 
 such a speech of Mr. O'Connell was a seditious ad- 
 dress, and such an article in " The Nation " or " The 
 " Pilot " a seditious writing ; and the same doctrine 
 was frequently expressed by the Lord Chief Justice 
 of the court. Now, if these, statements were 
 correct, any one of those individuals might, ac- 
 cording to the just and enlightened principle of 
 Sir Frederick Thesiger, " have been made re- 
 " sponsible for his separate offence " by an indict- 
 ment consisting of one count, which might have 
 been proved by one witness and tried in one 
 day, at an expense of one hundred pounds. This 
 course, however, which the Solicitor General 
 of England considered to be the just, candid, and 
 impartial method of proceeding, " would not DO " 
 for the purpose of the Crown lawyers in Ireland, 
 which was "to bring the leaders into one mass and 
 " one focus and prosecute them in a heap. This 
 metaphor of the " mass " and the " focus," taken 
 from the practical application of a burning-glass, 
 makes an unintended revelation of the real objects 
 of the party who instituted the prosecution in the 
 u converging " form of a charge for conspiracy ; as it 
 is well known that the " focus " is the point about 
 which the materials for combustion are collected 
 into a " mass " for the purpose of increasing the 
 power of the machine to which they are exposed, 
 and of more completely effecting their destruc- 
 
 * Reply of the Solicitor General, Flan, p 447, 
 
55 
 
 tion.* " This/' says the Solicitor General, " is 
 u the mode which we have boldly and manfully 
 " adopted." He avers that Mr. Duffy was guilty 
 of writing sedition in u The Nation;" yet instead 
 of making Mr. Duffy separately responsible for 
 that separate offence, the Solicitor General thinks 
 it more bold and manly to charge him with all 
 that was done at all the meetings which took 
 place from Clontarf to Skibbereen between the 13th 
 of February and the 13th of October, although 
 it is expressly stated by the Chief Justice himselff 
 that Mr. Duffy did not attend a single one of those 
 meetings. The law officers of the Crown declare 
 that Mr. O'Conncll has made seditious addresses to 
 the people, and those very addresses are given in 
 
 * This notion of considering defendants before trial as un- 
 questionably guilty — of looking upon them as doomed to de- 
 struction, and deserving it — of considering them as animals feras 
 naturae — and regarding the administration of justice as the 
 mere means of catching and destroying them, is rather familiar 
 with the Tory writers. The author of an article in the last 
 " Quarterly " has the following observation upon this sub- 
 ject : — "In old times criminal justice fished with a hook: she 
 is now forced to use a net? (a) The writer of an article in the 
 " Blackwood's Magazine " for Nov. 1844, says, " The only conse- 
 " quence was, that the indictment was a little longer than it turns 
 " out that it needed to have been. Though several hooks had 
 " been used in order to give an additional chance of catching the 
 "Jish, that was not regretted, when, the Jish having been caught, it 
 " turned out that two of the three had not been strong enough, and 
 "that had they alone been used, the Jish must have escaped." (b) 
 
 f Charge, page loo. 
 
 O) " Quarterly " for Dec. 1844, p. 252. 
 \b) Blackwood, Nov. 1844, p. 563. 
 
 D 4 
 
56 
 
 evidence upon the charge of conspiracy ; yet the law 
 officers consider it the more bold and manful course 
 not to indict Mr. O'Connell separately for his own 
 separate sedition, but to join with him in the same 
 accusation a poor sickly priest, who, before he could 
 be tried for conspiracy to excite seditious resist- 
 ance to the government, came to his death in conse- 
 quence partly of his endeavours to induce the 
 people to obey the government, and partly from the 
 agony produced by his apprehensions for the result 
 of the prosecution itself, about which he was raving 
 at the very moment of his dissolution. " That," 
 says the Solicitor General, "is the course which we 
 " have boldly and manfully adopted." Instead of 
 deciding the whole matter in controversy, as we 
 might have done by indicting the principal defend- 
 ant in one count, which may be tried in a day at a 
 cost of 100/., we have thought it the more bold and 
 manful course to throw a net over the heads of nine 
 persons, and to prefer against them, at an enormous 
 length, an inferential and deductive charge, the 
 real " body and pressure " of which it was impossi- 
 ble to present with any distinctness to the under- 
 standings of even the learned, — the proceedings 
 upon which distracted the attention of the empire, 
 and interrupted the regular administration of jus- 
 tice for many months, and put the defendants and 
 the public to an expense of a hundred thousand 
 pounds, one half of which infliction was borne by 
 persons who were ultimately decided to have been 
 
57 
 
 illegally convicted " by a jury, by whom," even ac- 
 cording to the judgment of a Tory writer*, "they 
 u ought never to have been tried," and upon an in - 
 dictment of which the following character was 
 given by the illustrious magistrate who occupies 
 the highest position in the administration of the 
 common law and criminal justice in England, 
 
 " And I must here take the liberty of observing 
 M that, in my opinion, there cannot be a much greater 
 " grievance or oppression than these endless, volu- 
 k> minous, unintelligible and unwieldly indictments, 
 " An indictment which tills fifty-seven close folio 
 u pages is an abuse to bk put down, not a practice 
 u deserving encouragement Most of the persons 
 u who are accused of offences arc in a line of life 
 M which does not enable them even to get a copy of 
 " such a charge from the clerk of assize, who will 
 u not part with it without his fees; and when the 
 " party accused has obtained a copy, the greatest 
 " stretch of mind of the mast hut rued persons can 
 u hardly, even for days, as we know from the argu- 
 
 " MENTS AT YOUR LORDSHIPS' BAR, find Old what it is 
 
 * " And then followed such a series of blunders as could not 
 " possibly have occurred in any part of the civilised world ex- 
 " cept Ireland. God knows, we are not inclined to regard with 
 "a partial eye the decisions of Lords Denman, Cottenham, and 
 " Campbell in any instance where the interests of their party are 
 " concerned. But a regard to truth compels us to acknowledge 
 " that their judgment in the case of O'Connell v. The Queen was 
 " a RIGHT judgment," and that Mr. O'Connell "was illegally 
 
 convicted by a jury which never ought to have tried him at 
 M all." — Frasers Magazine for August, p. 501. 
 
58 
 
 " that is really the matter of criminal charge. It is 
 " often ambiguous to that degree, that possibly the 
 " pleader who drew the indictment may mean one 
 " thing, the judge another ', the jury a third; and the 
 " jury, if asked whether the party was guilty in the 
 u only sense in which the law would condemn him, 
 " might in that sense have acquitted ; whilst a fourth 
 " sense may, perhaps, be discovered by the Court 
 " of Error for these ambiguous phrases."* 
 
 With regard to the second head of accusation, that 
 of stirring up ill-will between Her Majesty's Irish 
 and English subjects, Mr. Justice Burton seems, in 
 his charge, not to have thought it worth while to 
 advert to it at all, although it is contained in each 
 of the first five counts of the indictment. In- 
 deed, the practice of exciting jealousy and ill-will 
 in the minds of one class against another class of 
 Her Majesty's subjects is an affair of such frequent 
 occurrence, and is carried on so systematically, 
 as to be, as it were, a regular part of the public 
 business of the country. The public newspapers 
 labour, in this respect, with the most indefatigable 
 industry. " The Morning Post " is perpetually 
 invoking the hostility of all other classes of the 
 community against "mortgagees, annuitants, and 
 " all the recipients of fixed money revenues." " The 
 " Times " denounces the wrath of earth and heaven 
 
 * Judgment of Lord Denman, in the Queen v. O'Connell, 
 p. 30. 31. 
 
59 
 
 upon the framers and supporters of the Xew 
 Poor Law. and imputes the guilt of murder 
 in express terms to those whose position obliges 
 them to attend to the wants of the poor, but 
 whose negligence has allowed them to perish. 
 11 The Morning Chronicle," with equal vehemence, 
 denounces the landlords of Ireland as guilty of all 
 the deaths which are the consequence of the horri- 
 ble system of clearances ; and the " Herald n abets 
 the ferocious fanatics who, at Exeter Hall and 
 elsewhere, denounce the whole body of the l\oman 
 Catholics of the empire as being unobservant of 
 contracts, incapable of integrity, and essentially 
 idolatrous and rebellious. These journals respect- 
 ively are supported in different places and in dif- 
 ferent particulars by several persons who enforce the 
 same doctrines in sermons, and speeches, and 
 compositions, and make them the foundation of 
 their public conduct, religious, political, and per- 
 sonal, — all that is done or spoken by all and 
 every of the parties being calculated, or at least 
 intended, to attain the same common end in each 
 instance, which is, to excite the hostility of one 
 portion of the public against another. Upon the 
 principles, therefore, which were advanced in the 
 recent monster prosecution, it would be perfectly 
 easy to include Mr. Walter, Mr. Oastler, Mr. 
 Ferrand, Mr. Bowen, and the editor of " The 
 u Times n in one indictment, and Sir John East- 
 hope, the editor of " The Morning Chronicle," 
 
60 
 
 and a few of their Irish correspondents and co- 
 operators in another. Nothing could be more easy 
 than to prove that these parties respectively had 
 acted in the manner described in one part of the 
 monster indictment, and that they had in their 
 several ways co-operated to excite hostility in one 
 class against another. Mr. Miles, the Duke of Rich- 
 mond, Lord Egmont, and other Protectionists, may 
 be united with a couple of brace of London editors, 
 in a charge of exciting ill-will in all the rest of the 
 public against the whole body of the Free Traders ; 
 who themselves not being at all behind their an- 
 tagonists in the amabsean contention of abuse are 
 in the habit of denouncing landlords, monopolists, 
 and indeed the whole aristocracy at large, as a class 
 which exercises all its power to the detriment of 
 the rest of the community, and whom therefore it 
 is a duty to devote to at least a political extinction. 
 For this offence they may be represented by Mr. 
 Villiers, Mr. Cobden, Mr. Pattison, Mr. Bright, 
 and as many supernumeraries as would be suffi- 
 cient to make a respectable muster of defend- 
 ants. Mr. Jones Loyd might of course be easily 
 included in the indictment, and would have the 
 pleasure to be informed, with " prodigious particu- 
 u larity," of all the " speeches and writings" which 
 had been delivered by any Free Trade orator since 
 the date of the conspiracy, whenever that may be 
 assigned, either in Co vent Garden Theatre or at 
 any of the hundreds of meetings attended by hun- 
 
61 
 
 dreds of thousands of individuals which may have 
 occurred at Stockport, Manchester, Liverpool, or 
 any other of the fifty places where such overt acts 
 have been committed. He would receive a notice 
 in the Bill of Particulars that, besides all the " pro- 
 " digious particularity " of the indictment itself, 
 evidence would be given against him of all that had 
 been done at a score of other meetings of which he 
 never heard, as well as of the order in which the 
 persons who attended those meetings proceeded 
 thereto, and of any particular conversation which 
 may have occurred between any two of the said 
 persons by the way, and he would, finally, receive a 
 notice to produce all the books, papers, entries, &c. 
 &c. of all the direct and collateral branches of the 
 Anti-Corn-Law League, as well as of the central 
 society itself. Of Mr. Loyd's liability there can be 
 no doubt, according to the Irish doctrines upon 
 that subject. Like Father Tierney he deliberately 
 adopted the League, as it stood with all its criminality, 
 if any existed at the time, and like Father Tyrrell 
 he did an act very disagreeable to the Government 
 at a particular juncture ; and as Mr. Tyrrell was 
 included in the prosecution for moving certain 
 resolutions immediately after the proclamation of 
 Lord De Grey, Mr Loyd may be included for send- 
 ing in his adhesion and his 50/. to the League on 
 the eve of the election of Lord John Russell. It 
 is, however, some consolation to the parties just 
 mentioned, that, if we are to form an opinion from 
 
2 
 
 the apology which the Solicitor General of Ireland 
 has made for delaying the prosecution of " Daniel 
 " O'Connell and Others," we must infer that the 
 Government of this country is not yet in a condition 
 to establish the charge of conspiracy against the 
 League, not having hitherto received such evidence 
 of their " criminality " as would be sufficient to 
 " coerce " a jury into a verdict of guilty. We may 
 add, though not for the purpose of exciting alarm, 
 that a Government paper hinted to the League on 
 •the 18th of January, 1845, that the Attorney 
 General may some day or other prosecute that body. 
 Independently, however, of the gratitude which 
 Sir Eobert Peel must entertain towards Mr. Cobden 
 and certain other members of the League for im- 
 portant services rendered at a very critical conjunc- 
 ture, the Right Hon. Bart, is well aware that he 
 may, without exciting any indignation in England, 
 prosecute conduct in Ireland such as he would not 
 even dare to entertain the notion of making the 
 subject of a prosecution in England itself. 
 
 The manner in which the learned judge, who 
 addressed the grand jury, expressed himself upon 
 the charge of exciting disaffection in the army 
 sufficiently shows the flimsy and evanescent ground 
 upon which that charge was advanced. " The 
 " principal evidence," says his Lordship, " in sup- 
 " port of this charge, so far at least as it has fallen 
 " under my observation, is to be found in what im- 
 
63 
 
 i4 ports to be a letter or letters, published in a news- 
 u paper, or perhaps in several newspapers, of which 
 " some one of the parties accused are or is the 
 " editors or editor. These documents, or whatever 
 " document* there may be of this description* should 
 " be considered with care, with the view on the one 
 M hand to elicit the true meaning and intention of 
 ; * the composition itself, for it may well be supposed 
 " that a design of such a description would be con- 
 H veyed in ambiguous and in very cartful and studied 
 " language ; secondly, to the fact of its being pub- 
 " lished with or without the knowledge of that 
 M meaning by the party publishing ; and, lastly, 
 u whether the publication bearing that guilty mean- 
 " ing was or was not in accordance with the inten- 
 M tions of the parties accused, or any of them ." 
 
 This doctrine exhibits in the clearest light the 
 manner in which a parcel of nonentities may be 
 converted into criminal conduct if they can once 
 be presented upon the framework of an inferential 
 conspiracy. If any one of the defendants should 
 happen to understand a letter, even though it be 
 expressed in careful, studied, and ambiguous 
 language, and to perceive in it a guilty meaning 
 which the author, if he had such meaning at all, 
 had studiously rendered ambiguous ; and if after 
 having so penetrated to the guilty meaning of 
 the document he finds it to be in accordance 
 with his own intentions, and gives it publica- 
 tion, it may, it seems, be inferred that every 
 
64 
 
 other one of the defendants has not only assented 
 to the publication, but that he attaches to it 
 the same meaning attached by the publisher, and 
 this although he may have been altogether unable 
 to see the meaning in question or may consider the 
 meaning to be perfectly innocent, or though he may 
 not understand the meaning, or even though he may 
 never have heard of the document at all, and though 
 it may have been published before he became ac- 
 quainted with the writer, and even though he 
 may never have become acquainted with the 
 writer, or known who he was. The Solicitor General 
 in his reply admits expressly that Mr. O'Connell, 
 who was found guilty of this charge, always 
 advised his associates not to enter into any corre- 
 spondence with any body in the army — that being 
 a dangerous proceeding, and in some circumstances 
 an offence against the law. It may not be im- 
 proper to insert here the most remarkable portion 
 of the letter to which Mr. Justice Burton alluded. 
 It professed to be written by the Rev. Mr. 
 Power, P. P. of Kilrossenty, and was published 
 in the Pilot, which is the newspaper of Bar- 
 rett : — 
 
 " There is one class of persons whom Mr. O'Con- 
 " nell has not taken into his school in his lectures 
 " upon political rights and duties, but who have, it 
 u seems, profited, notwithstanding, to some extent 
 " by his peaceful doctrines, — I mean the military. 
 u Mr. O'Connell is the best abused man in the 
 
65 
 
 " world; his motives are misconstrued, his objects 
 u misrepresented, his character maligned, his per- 
 " son insulted, and his character held up to scorn ; 
 u his course must be cautious. If he touched upon 
 " this subject, he would be cried up at once as an 
 " open rebel. It would be said that he wanted to 
 u corrupt the soldiery, and withdraw them from 
 " their duty. It woidd be put down as an act of 
 " high treason. It was, therefore, consummate 
 " wisdom on his part never even to have alluded to 
 M it. His system cannot be perfect, however, — it 
 M will not embrace every class, through whose 
 " agency an oppressed and plundered people can 
 u create for themselves a wise, just, and impartial 
 " government, without bloodshed, rapine, or any 
 " species of crime, unless the soldiery are in- 
 " structed in their conscientious duties. The very 
 " life and soul of a soldier's profession is to die for 
 " his duty : let the brave soldier therefore know his 
 u duty, and he will die to perform it ; but as he 
 M every day of his life dares death, he will die 
 " before he would exceed it. My present purpose 
 u is to explain as clearly as I can what that duty is. 
 " I cannot be suspected of corrupting the soldiery, 
 " or bringing them over to second any views of my 
 " own. I can have no political object, no ambi- 
 14 tious projects. I took the oath of allegiance, and 
 " I shall adhere to it to my death, and my position 
 u in society is immoveably fixed. I can, therefore, 
 u have no other object but to state the truth ; and, 
 
 E 
 
66 
 
 as truth and justice must ever go hand in hand, 
 to make the statement of the true doctrine on 
 this point subservient to universal justice as far 
 as it may. I do not presume to be an authority 
 on this most grave and important subject, but, 
 stating thus publicly what I conceive to be the 
 true doctrine regarding it, I am open to correc- 
 tion. I call upon my fellow-clergymen, whose 
 duty it is to be accurately informed on it, and to 
 communicate that information to all whom it 
 may concern, to set me and the public right when 
 I may have erred. I am sure many of them will 
 be found to do so if I go wrong. A soldier is a 
 person who hires himself to a government for the 
 purpose of slaying his fellow-men. He does not 
 carry destructive weapons for the purpose of 
 hunting down wild beasts, or butchering sheep or 
 oxen. No ; expressly and distinctly it is to kill his 
 own fellow-creatures. Viewed solely in this light, 
 every feeling of our nature recoils with horror 
 from the profession of a soldier ; and yet the true 
 soldier is a manly, generous, and noble fellow. 
 His duty and his object, it is true, is to slay his 
 fellow-man ; but then he is no cut-throat or hang- 
 man. He would sooner be the victim of either than 
 stain his high character with the crime of the one or 
 the infamy of the other. He is not the ready tool of 
 a bloody-minded tyrant, who woidd employ him to 
 cut down the unarmed and defenceless. He would 
 sooner stand to be shot at than be converted into a 
 murdering man-butcher by any such horrible mis- 
 
67 
 
 M creant. It has been reported of a certain officer 
 " now stationed in Ireland, that he attended an 
 H assemblage of magistrates held on the eve of one 
 " of Mr. O'Connell's great monster-meetings, as 
 " they are called, and that he offered on j ust get- 
 M ting a hint, to drive a troop of dragoons into the 
 " body of the meeting, and trample and cut down 
 " like weeds men, women, and children ! If it be 
 M a fact that this red-roated fiend made such an 
 " offer, and that it is known to his fellow-officers in 
 * the service, and that they now associate with 
 u him, I call them to their teeth a pack of 
 u cowardly, infamous, imtnanty scoundrels. He is 
 " no soldier. He is not only a disgrace to the cha- 
 tt racter of an officer, but he would be a disgrace to 
 M a gang of pirates. Xo brave man ever made 
 11 such an offer. A brave man would let himself 
 u be blown from a cannon before he would even 
 " contemplate it ; and the officers who tolerate such 
 u a filthy cannibal amongst them deserve to be sent 
 u out to gloat themselves upon human flesh in the 
 M congenial companionship of their fellow- savages in 
 " the South Sea Islands. Having said thus much 
 M upon what is not, I now come to state what is the 
 " duty of a soldier. It is his duty to fight against 
 M the enemies of his country, armed for attack, or 
 k ' armed and forewarned for defence. This is the 
 M sum and substance of his duty : if he is ever 
 " employed for any other purpose he is not bound 
 11 to obey ; but to this duty he is bound to devote 
 
 e 2 
 
68 
 
 " every energy of his mind and body in life and 
 44 death. In action the soldier is to have no will 
 44 of his own. It is the right and duty of his 
 44 commanding officer to point out what he is to 
 44 do. It is his duty to do it or die, not only as a 
 " matter of personal bravery, but as a conscientious 
 44 duty before God, he is bound to give up all 
 44 thought of self-preservation, all feelings of huma- 
 44 nity towards the enemy, not, however, to the 
 44 extent of unnecessary cruelty, to weaken and 
 44 destroy the adversary in every way in his power, 
 44 and even when he sees that his own death is 
 44 inevitable, to sell his life as dear as he can. War 
 44 being once legitimately proclaimed, the soldier is 
 44 a mere instrument in the hands of the govern- 
 44 ment of his country, to be employed by the 
 44 general placed over him for the destruction of 
 44 the enemy ; and whatever intellect he possesses 
 44 he is only to use to carry into effect the com- 
 44 mands of those in authority over him. It will 
 44 be said that this is a degrading and debasing 
 44 condition to place rational beings in who are all- 
 44 accountable for their actions, and many of whom 
 44 may be as intelligent and enlightened as the 
 44 very general whom they are thus blindly re- 
 u quired to obey ; but the strength and efFective- 
 " ness of an army is ever in proportion to the 
 44 extent to which this spirit pervades the whole 
 44 mass, men and officers. Prompt, cheerful, and 
 44 determined resolution to carry the commanding 
 44 officer's orders into effect is the whole secret of 
 
69 
 
 " military discipline. On it alone depends victory : 
 " it will tell almost against any odds, and it is 
 kk therefore that it is a moral duty in a just cause. 
 " This is the full extent to which the unreflecting, 
 " mechanical obedience required from the soldiery 
 " can be carried. It is absolutely impossible that 
 " any human authority could exist on earth which 
 u could absolve any man in any condition or pro- 
 " fession from the moral responsibility which attaches 
 u to every rational being. The soldier, like every 
 " other man who hires himself for any particular 
 " business, if required to go beyond it, is not 
 " bound to obey ; if it ceases to be legitimate, he is 
 " bound not to obey. The soldier is bound to fight 
 " against the enemies of his country a just war. 
 " This is his sole duty — this is his only obligation; 
 u if commanded to do anything else, he is not bound 
 " to obey : and if he did obey with arms in his 
 k ' hands, when required to do anything unbecoming 
 u a soldier, I would call him not only a base slave, 
 " but an arrant coward. If the government to 
 " which he has engaged his services as a soldier 
 M should be so iniquitous as to enter upon a war of 
 " plunder or unjust oppression against an unoffending 
 " people, he should die before he would participate in 
 " such a homble crime. No supposed obligation, no 
 u imaginary duty, would justify or excuse him before 
 " God and the world ; he would be a robber and a 
 " murderer if he advanced one step in obedience to 
 " any human being for such a wicked purpose." 
 
 e 3 
 
70 
 
 In conjunction with the letter of Mr. Power 
 there was read from an article called the " Morality 
 " of War," which appeared in Duffy's paper, the fol- 
 lowing extract : — " If a man fight hi the ranks of 
 " an invader or a tyrant — if he fight against the 
 " cause of Liberty and the land that gave him birth — 
 " may his banner be trampled, and his sword broke 
 u in disastrous battle, and may his name rot in 
 " infamy ! But if he fight for truth, country ', and 
 "freedom, may fortune smile upon his arms, and 
 " victory charge by his side ! " 
 
 We shall not pretend to enter into any consider- 
 ation of the merits or demerits of these compositions. 
 We have, however, no hesitation in affirming that 
 the doctrines which they lay down upon the subject 
 of a soldier's duty are so far from being either new 
 or unusual, that they are the principles which have 
 been systematically propounded and enforced by 
 all the eminent writers who have ever treated upon 
 ethical subjects. As this fact appears to us to be 
 quite notorious to all persons who are even mode- 
 rately acquainted with the literature of ethics, it 
 may appear superfluous to advance any authority 
 upon the point. We shall, however, trouble the 
 reader with a few extracts upon the question from 
 writers of established reputation. 
 
 In treating of the duties of a Christian soldier, 
 Grotius mentions, with high commendation, the con- 
 duct of those who served under the Emperor 
 Julian, " and who marched with alacrity to the 
 
71 
 
 u field in defence of the state, but when he com- 
 u manded them to draw upon the Christians they re- 
 " fused to obey, assigning the superior commands of 
 " the Emperor of Heaven." ' He then extols, with 
 similar commendation, the conduct of the Theban 
 Legion, who allowed themselves to be decimated 
 rather than obey commands which they had re- 
 ceived from the Emperor Domitian, and which they 
 thought it their duty as Christians to resist. He 
 concludes by citing their address to the Emperor 
 upon another occasion, as expressing, with substance 
 and brevity, the whole duty of a Christian soldier in 
 similar circumstances : — " Qua* Christiani militis 
 " officium solida brevitate exprimit. 
 
 " Ofterimus nostras in quemlibet hostem manus 
 " quas sanguine innocentium cruentare nefas daci- 
 u mus. Dexterae ipsa? pugnare ad versus impios et 
 " inimicos sciunt, laniare pios et cives nesciunt 
 " meminimus nos pro civibus potius quam ad versus 
 " cives arma sumpsisse. Pugnavimus semper pro 
 u just it in, pro pietate, pro innocentium salute*,'' 1 Sec. 
 
 The following passages are taken from " The 
 " Duties of Men," by Gisborne, who cites the au- 
 thority of Blackstone in support of the principles 
 laid down by Gisborne himself, f 
 
 " It has been already observed that the obedience 
 u which is the duty of an officer is prompt and 
 " punctual obedience to lawful authority. This 
 
 * Grot, de Ju. B. & P., lib. i. cap. 2. sect. 10. N. 12. 
 t VoLi p. 273—277. 
 
 E 4 
 
72 
 
 " statement implies that the thing commanded must 
 " be lawful, for otherwise the authority which 
 " presumes to enforce it is so far unlawful. Were 
 " an officer, then, directed by his superiors to do 
 u what is contrary to the received laws of war and 
 " of nations, to the laws of his country, or to the 
 " laws of God, his compliance with the order would 
 
 " be CRIMINAL." 
 
 " Let him remember that no human authority 
 " can change the eternal distinction between right 
 " and wrong, or be pleaded in excuse by any man 
 " for doing what his conscience deliberately disap- 
 u proves. If he is ordered to co-operate in any 
 " unjustifiable undertaking, let him, at all hazards, 
 " refuse to comply. And if not only the loss of pro- 
 " fessional honours and emoluments, but severe 
 u punishment, and even death itself should stare 
 " him in the face in consequence of his refusal, let him 
 u remember the unequivocal directions which his 
 " Saviour and final Judge has already addressed to 
 u all who are reduced to the alternative of offend- 
 " ing either God or man : 4 Fear not them which 
 " 1 kill the body, and after that have no more that 
 " i they can do ; but fear Him who, after he hath 
 " 4 killed, hath power to cast into hell : yea, I say 
 " ' unto you, fear Him.' " * 
 
 " From these considerations it follows that every 
 " individual officer who is called into active ser- 
 " vice is bound to investigate the justice of the war in 
 
 * Luke xii. 4, 5. 
 
73 
 
 " which he engages. If he should be thoroughly 
 u convinced that his own country is the aggressor 
 M in the quarrel, or deems the probability to be very 
 u greatly upon that side, it is his indispensable duty 
 " to resign, whatever false honour or personal or 
 " interested motives may suggest to the contrary." 
 
 " Will it be said that it is his part to obey and 
 " leave the state to answer for the guilt ? This is 
 u not the argument of a considerate man, or of 
 u a Protestant. The state, on whatever principles 
 " it may claim his obedience, cannot exempt him 
 " from that which he owes to his God ; and should 
 " the naval or military officer decline, on the plea 
 u of conscience, to undertake the service enjoined, 
 M there seem to be no grounds, if the sincerity of 
 M his plea can be ascertained, in which his discharge 
 " can be refused ; nor any, if it should be refused, 
 " on which his compliance can be justified." 
 
 u Murder," says Sir William Blackstone *, " is 
 " expressly forbidden by the Divine and demon- 
 " strably by the natural law ; and if any human 
 " law should allow or enjoin us to commit it, ice 
 u are bound to transgress that human law, or else 
 u ice must offend both the natural and divine." 
 
 In support of these principles authority may be 
 derived even from military works of a merely pro- 
 fessional character. A reference has been already 
 made to Major James, the editor of Lord Wood- 
 houselee's " Treatise upon Military Law," and 
 
 * Com. Introd. page 42-3. 
 
74 
 
 himself the author of the " Treatise upon Courts 
 " Martial" and the " Military Dictionary. 7 ' The 
 " Treatise on Courts Martial" is dedicated to the 
 Duke of York, and the dedication expressly re- 
 minds his Royal Highness that the work of Lord 
 Woodhouselee above mentioned was dedicated to 
 the Prince Regent. The writer goes on to appeal 
 to the Duke himself in support of the position, that 
 the " army are by no means the passive instruments 
 " of Power y In the " Military Dictionary " the au- 
 thor declares the proper obedience of a soldier to 
 consist in a prompt submission to " lawful com- 
 " mands, " — the very terms in which Gisborne has 
 laid down the doctrine upon the same subject. In 
 addition to the authorities already adduced upon this 
 question, it maybe mentioned that a learned member 
 of the bar, who authorises the statement of the fact, 
 has informed the writer that he has seen, in Lord 
 Brougham's handwriting, an opinion in which that 
 noble and learned lord has declared that if a soldier 
 should be called to account at law for a trespass 
 committed in this country upon one of his fellow- 
 citizens, it will not be a sufficient legal excuse to allege 
 that in the matter complained of he acted under the 
 
 COMMAND OF HIS SUPERIOR OFFICER, without going On 
 
 to allege, what must also be proved, that the matter so 
 commanded was lawful in itself. 
 
 The following cases upon the point have been 
 decided by the tribunals of this country : — 
 
 "If a superior officer imprison an inferior 
 
75 
 
 u officer for disobedience to orders, made under 
 " colour, but not within the scope of his military 
 " authority, he is liable to an action of trespass at 
 " the suit of such inferior officer, and this although 
 " the imprisonment be followed by a trial by court- 
 " martial.'" — (Warden v. Bailey, 4 Taunt. 67.) 
 
 " If an officer, in imprisoning a soldier, acts 
 u under the orders of his commanding officer, he 
 " can justify the imprisonment, if it were justi- 
 " fable on the part of the commanding officer" — 
 (Bailey v. Warden, 4 M. & S. 400.) 
 
 " The lieutenant of a press-gang, to whom the 
 " execution of a warrant icas properly deputed, 
 " remained in King-road, in the port of Bristol, 
 " while his boat's crew went some leagues 
 " down the channel, by his direction, to press sea- 
 " men. It was held that this impressment was 
 " illegal, and that one of the press-gang being 
 u killed in the furtherance of that service by a 
 " mariner, it was ruled to be only manslaughter, 
 " though no personal violence had been offered by 
 M the press-gang " — (Broadfoot's Case, Foster, 
 154.) 
 
 " A press-warrant had been directed to Lieuten- 
 " ant W. Palmer, enjoining all mayors, &c, to 
 u assist him, and those employed by him, in the 
 " execution thereof. Palmer gave verbal orders 
 " to the prisoners to impress certain sea-faring 
 " men, but the delegation was held to be clearly 
 " bad, and the execution of the warrant by the 
 
76 
 
 " prisoners to be illegal, although it was proved 
 " to be the constant custom of the navy to dele- 
 " gate the authority in that manner." — (Brothwick's 
 Case, 1 Dougl., 267.) 
 
 " A sailor in the King's navy, on duty as a 
 " sentinel, has no authority to fire upon persons 
 " approaching the ship against orders. The pri- 
 " soner was sentinel on board the Achille when 
 u she was paying off. The orders to him from 
 " the preceding sentinel were to keep off all boats, 
 " unless they had officers with uniforms in them, 
 " or unless the officer on deck allowed them to 
 " approach, and he received a musket, three blank 
 " cartridges, and three balls. Some boats pass- 
 " ing forwards, he called upon them repeatedly 
 " to stop, but one of them persisted, and came 
 u close under the ship. He then fired at a man 
 " who was in the boat, and killed him. It was 
 " put to the jury whether he did not fire under the 
 " mistaken impression that it was his duty, and they 
 " found that he did. But, on a case reserved, the 
 " judges resolved unanimously that it was never- 
 " theless murder." — (Thomas's Case, 1 Russell, 
 509.) 
 
 " The book called 1 Rules and Regulations for 
 " e the Government of the Army,' said Lord Ten- 
 " terden, is not a book of which we can take judi- 
 " cial cognizance." — (Bradley v. Arthur, 4 Barn. 
 Cress. 304.) 
 
77 
 
 If Mr. Power of Kilrossentv, instead of under- 
 taking to communicate his own sentiments to the 
 public upon this point in his own name, had con- 
 tented himself with transmitting to the editor of 
 The Pilot for publication the extracts which we have 
 above given from the great authorities to whom we 
 have referred ; and if the newspaper had been ad- 
 mitted in evidence against Mr. Barrett and the 
 other defendants in support of that part of the 
 indictment which charged them with conspiring to 
 excite disaffection in the army, it is impossible to 
 believe that even a jury which was acknowledged 
 by the prosecutor upon the record to have been 
 fraudulently and illegally compacted for the con- 
 viction of the defendants would convict them of 
 such a charge upon such evidence. 
 
 The ground upon which the Solicitor General* 
 declares the passages in the u Pilot " and the 
 u Nation " to be illegal is, that if the soldiers were to 
 adopt the doctrines therein promulgated, the soldiers 
 would ask, " Is this a just war?" Now that is 
 the very question which, as we have shown, the 
 scientifical and systematic writers upon morality 
 agree in declaring that it is the duty of the soldier 
 to ask, and for the consequences of neglecting 
 which the law writers make him responsible. We 
 have already observed that we do not profess to 
 
 * Flanedy, p. 434. 
 
78 
 
 enter into any consideration of the abstract merits 
 of the doctrine upon either side : — 
 
 Non nostrum tantas componere lites : 
 
 but supposing the authorities which we have ad- 
 duced to be correct expositions of the principles 
 which they profess to lay down, we ask how it is 
 possible that any man can contend that it is not the 
 duty of a soldier to make the inquiry which reli- 
 gion and morality command him to make ? And if 
 it be his duty to make the enquiry, we ask how it 
 can be an indictable offence to recommend the 
 performance of his duty ? 
 
 Some further evidence affecting Mr. Barrett arose 
 out of the following facts : — 
 
 A private soldier having sometime about the 
 beginning of September dropped dead on parade 
 from over-drilling, and another having in a fit of 
 desperation advanced from the line and shot the 
 adjutant, an article appeared upon the subject in 
 the Dublin Pilot of the 6th of September, and this 
 article was given in evidence for the prosecution. 
 It began with stating, that if the Press had not at 
 length interfered there would have been no bounds 
 to the persecution of the private soldier ; and after- 
 wards alleged that promotion to commissions was 
 only for the rich, whilst to the soldiery were left 
 the mangling lash to the bleeding back, and such 
 merciless drilling as had caused poor private 
 M'Manus to fall down dead, and George Jubee, a 
 
79 
 
 soldier of acknowledged good character, to send in 
 desperation a bullet through the body of his adju- 
 tant. Such was the manner in which this trans- 
 action was treated in the Irish Pilot. The following 
 is an extract from an article upon a similar instance 
 of the same general subject, taken from a recent 
 number of The Scotsman : — 
 
 u We have found the harrowing details given 
 " below in the London Medical Gazette. They will 
 " be read, we think, with deep interest, and our 
 " readers, we feel sure, will agree with us, that 
 M they betray a degree of cruelty and tyranny 
 " in the treatment of our soldiers disgraceful to 
 M the government which authorises it. We are 
 " well aware of the necessity of maintaining dis- 
 " cipline in an army with a strong hand ; but the 
 " system must be wrong under which such acts as 
 " those described below take place. It will be ob- 
 " served that in the cases narrated the men so 
 " cruelly punished were generally of good character, 
 " while their offences were trifling, or were charged 
 " on mere suspicion, or were provoked by tyrannical 
 u usage on the part of the officers. Had Flanagan 
 M and Darby Star been taken by a piratical cruiser, 
 " and sold in Algiers for slaves, they could not have 
 " been more barbarously used, and in one respect 
 M their lot would have been better, for their ener- 
 " getic characters would in all probability have 
 u opened the paths of promotion to them. And 
 •• this is the condition in Which 90,000 British sub- 
 
80 
 
 " jects are doomed to spend their lives ! It is absurd 
 " to speak of the 4 severe laws' of the army. So 
 " far as the privates are concerned, no law exists 
 " but the discretion of the commanding officer, 11 
 
 " Desperation seems to be the parent of many of 
 " those acts of insubordination which expose soldiers 
 " to the lash and to the penalty of death, and this 
 " desperation is apparently induced by the severe 
 " restraints to which they are subjected, joined with 
 " the painful conviction that their state is unchange- 
 " able, and that their sufferings can only end with 
 " their lives. We have fearful evidence of this in 
 " the fact that one death out of every twenty in the 
 " cavalry regiments is from suicide. 11 
 
 The writer in the Scotsman then proceeds to give 
 at great length all the particulars of the horrible 
 cases to which a reference is made in the preceding 
 passage ; but for our present purpose it is unnecessary 
 to trouble the reader with any further details. 
 
 The following passage is extracted from a leading 
 article of the London Morning Chronicle of the 14th 
 of J anuary instant : — 
 
 " We call the attention of our readers to a com- 
 " munication of a most painful nature, which 
 " appears in another column, signed 1 Justice to 
 " India.' If the statements in that letter be cor- 
 " rect, and they are supported in almost every 
 " particular by the printed papers and documents 
 " having reference to the case which have come to 
 " our hand, we have little hesitation in saying that 
 
81 
 
 u not only has 'justice' not been done to certain 
 " of our Indian subjects in this case, but that the 
 " most rigorous penalties of martial law have been 
 " inflicted upon soldiers in the Madras Sixth Light 
 " Cavalry, by a process illegal in itself, according 
 " to the articles of war and the precedents which 
 " have been established in regard to them by the 
 " very highest authorities. 
 
 " This is a startling position to take — our 
 " readers will presently see whether we are able to 
 " establish it ; but, if we do, we tell them plainly 
 " that the necessary consequence will be, that two 
 u troopers of the said Madras Sixth Light Cavalry 
 " have been murdered (besides that fifteen others 
 " have suffered the severest penalties short of death), 
 " under semblance of judicial proceeding; and that 
 " men niGiiEST in authority in the government of 
 " the Madras presidency must be held responsible 
 " for that MURDER." 
 
 In a subsequent part of the same article the 
 writer has the following passage : — 
 
 " Here apparently is a closing of the whole 
 " matter — congratulation at the termination of 
 " an unseemly state of things, coupled with a re- 
 " primand and a punishment, namely, the removal 
 " to Arcot. Such, however, was not, as it appeared 
 " to be, the case ; and here we have to charge the 
 " Marquis of Tweeddale with premeditating a 
 
 " MOST UNMANLY AND UN-ENGLISII act of FRAUD. His 
 
 u Lordship, in the above official communication, 
 
 F 
 
82 
 
 44 assigns certain reasons for removing the Sixth 
 44 Light Cavalry to Arcot ; but in a manifesto 
 44 which he has lately thought it necessary to pub- 
 44 lish he does not blush to state that the reason so 
 44 assigned was not the true one — that there was 
 44 another motive behind, which he designedly with- 
 44 held. In the fifteenth paragraph of this singularly 
 44 disgraceful document, the noble Marquis, after 
 44 detailing the views of vengeance which he enter- 
 44 tained, and the means by which he hoped to 
 44 enmesh his victims, says, — 
 
 44 4 To carry this purpose into full effect, I at once 
 44 'determined upon ordering the regiment to Arcot, 
 44 4 where this important inquiry could alone be made 
 
 44 4 UNDER MY OWN IMMEDIATE DIRECTION.* " 
 
 These extracts from two metropolitan journals 
 of England and Scotland afford a sample of 
 the manner in which subjects of that nature 
 may be treated with impunity in Great Britain, 
 whilst language of vastly less intensity and severity 
 is the subject of prosecution in Ireland. It may 
 be further observed that the speeches and articles 
 of Mr. O'Connell and others of the defendants upon 
 this subject contained several examples of such ex- 
 pressions as 44 ruffian soldiers," 44 military fiends," 
 44 cowardly scoundrels," and other such designa- 
 tions, as would certainly appear to be very little 
 calculated to entice the members of the British 
 army from the performance of their duty. Upon 
 such evidence, however, Daniel O'Connell, Barrett, 
 and Duffy, were found guilty, — there not being a 
 
83 
 
 particle of evidence to show that even an attempt had 
 been made to bring' any of the articles in question 
 to the notice of any soldier ; and even the Chief 
 Justice himself expressly declaring* that the design, 
 even if formed, " was never, in fact, carried into ex- 
 " ecution." Nobody can believe that any Attorney- 
 General would venture to prefer a separate indict- 
 ment for such an offence upon such evidence. Mixed 
 up as it was, however, in the present case, with such 
 a monstrous mass of other imputations, it received 
 assistance from the other collateral charges ; and, 
 like every other separate portion of this vast and 
 heterogeneous indictment, it received some addi- 
 tional force from the monstrous heap of particulars 
 by which it was surrounded in the " voluminous, 
 " unwieldy, and unintelligible " document of which 
 it formed a part. 
 
 Let us now proceed to that part of the charge 
 which relates to the monster meetings; in reference 
 to which it will be recollected that the judges in tlii< 
 country are unanimously of opinion, thai the sixth 
 and seventh counts of the indictment are bad. 
 Such is also the opinion of the House of Lords ; 
 and, indeed, the whole of the judgments upon 
 both sides proceeded upon the ground, that the 
 counts in question disclosed no offence against the 
 law. The counts which have been so declared to 
 be invalid and illegal by the judges and the lords, 
 
 * Page 178. of the Charge as printed by the Queen's Printer. 
 
 F 2 
 
84 
 
 are directed against the monster meetings, and 
 contain not any portion whatever of the several 
 other charges which are contained in the remaining 
 counts of the indictment. It was for the purpose 
 of putting down those meetings, by procuring a 
 declaration of their illegality, and punishing the 
 persons who convened them, that the whole pro- 
 secution was commenced. But the English judges 
 have unanimously declared their opinions, and the 
 House of Lords have, with the exception, perhaps, 
 of Lord Brougham, declared their judgments to be, 
 that those meetings, as they are described in the sixth 
 and seventh counts of the indictment, are not illegal 
 at all* 
 
 The form of the charge in the sixth and seventh 
 counts is, that the defendants maliciously, &c. con- 
 spired to cause large numbers to meet for the 
 purpose of obtaining changes in the laws and 
 constitution, &c, and especially the Repeal of the 
 Union, through the intimidation to be caused by 
 means of the exhibition and demonstration of great 
 physical force at the meetings themselves. The 
 decision, therefore, of the judges and of the lords is, 
 
 * It may be desirable to insert in this place the statement of the 
 Lord Chancellor upon this point, which we cite from the cor- 
 rected copy of his judgment, which has been printed only within 
 the last few days. " Two of the counts," says his Lordship, 
 61 are defective, in the opinion of the learned judges, because they 
 " contain no charge of any offence. There are various allega- 
 " tions in those counts ; but they do not constitute ANY offence 
 "known to the law? {a) 
 
 (a) Judgment, p. 3. 
 
85 
 
 that a general charge of causing great numbers to 
 assemble, for the purpose of procuring changes in the 
 constitution and in the laws by intimidation, to be 
 effected by the exhibition of great physical force, 
 does not constitute a charge for which any man can 
 be put upon his trial, according to the law of 
 England. As the language of the judges upon this 
 point is extremely important in a general view, as 
 well as with respect to this particular case, we 
 insert the very words which were used by Lord 
 Chief Justice Tindal in delivering the unanimous 
 opinions of the judges upon the point. 
 
 u The word intimidation is not a technical word; 
 " it is not voeabulum artis, having a necessary 
 " meaning in a bad sense ; it is a word in common 
 " use, employed on this occasion in its popular 
 u sense ; and in order to give it any force, it ought 
 u at least to appear from the context, ichat species 
 " of fear was intended, or upon whom such fear 
 " was intended to operate. 
 
 " But these counts contain no intimation what- 
 " ever upon what persons this intimidation is in- 
 " tended to operate ; it is left in complete uncer- 
 " tainty, whether the intimidation were directed 
 u against the peaceable inhabitants of the sur- 
 u rounding places, against the subjects dwelling in 
 " Ireland in general, against persons in exercise of 
 " public authority there, or even against the legis- 
 " lature of the realm. 
 
 " Again, the mere allegation that these changes 
 f 3 
 
86 
 
 " were to be obtained by the exhibition and demon - 
 " stration of physical force, without any allegation 
 " that such force was to be used, or threatened to be 
 " used, seems to us to mean no more than the mere 
 " display of numbers, and consequently to carry the 
 " matter no further." 
 
 In reference to the opinions thus delivered by the 
 English judges upon this subject, it may be ob- 
 served that the intimidation laid in the indictment 
 was an intimidation in the abstract, without any 
 express, or even any implied application to any 
 individual, or any body of individuals in the com- 
 munity. It was, however, by the Court and the 
 prosecutors, according to their own caprice, or 
 convenience, or conjecture, orally treated through- 
 out the trial as an attempt to intimidate any 
 body, or some body, or every body — " the 
 " people of England!"* " the legislature," " the 
 u councils of the nation," " the ministers," " the 
 " persons holding office under the government," 
 " the persons having the management of state 
 " affairs," the inhabitants of each particular locality, 
 or only such portion of them as were, or were 
 imagined to be, unfavourable to the defendants them- 
 selves, or to the changes which they proposed, or 
 the time or manner in which they were to be 
 effected or attempted, or intended to be effected, or 
 intended to be attempted to be effected. The use 
 or projected use, or future possible use, of such inti- 
 midation, so left at large upon the record, without 
 * Reply of the Solicitor General, Flan., 419. 
 
87 
 
 specification or distinction, and without any applica- 
 tion to any individual, or collection or class of indi- 
 viduals, was expanded by the Court of Queen's 
 Bench in Dublin to the dimensions of an indictable 
 misdemeanor, by the convenient process of supply- 
 ing in conversation, and without the shadow of any 
 justification from the evidence, every necessary fact 
 of which the allegation was wanting upon the 
 record ! 
 
 The whole body of the English judges, and all 
 the law lords, decided, with unanimity, and with- 
 out hesitation, that the charge contained in the 
 indictment, as far as it related to the multitudinous 
 meetings, amounted merely to a charge that the 
 defendants had attempted'to produce changes in the 
 laws and constitution of the country, through the 
 medium of making a display of large numbers of 
 persons as being favourable to the change ; and this 
 conduct the Court of Queen's Bench in Dublin ad- 
 judged to be indictable at common law. If this most 
 monstrous decision had remained unreversed, it must 
 have either stilled all manifestation of public opinion 
 by large numbers in Ireland, or been productive of, 
 and followed by, a revolution in that country; or 
 would probably have generated both these results 
 in the regular order of succession in which they 
 have before now followed each other in Ireland and 
 elsewhere ; and we should find a new form of sup- 
 pressing the liberty of action, of writing, and of 
 speech, introduced under the " authority of the 
 
 f 4 
 
88 
 
 case of the Queen v. O'Connell," to which the 
 learned reporters of the Queen's Bench in Ireland, 
 mixing their own knowledge with the judgment 
 of the Court, may annex a marginal note in the 
 following, or some equivalent form : — 
 
 " In an indictment for a conspiracy to produce 
 " changes in the laws and constitution, through the 
 " intimidation to be produced by the exhibition of 
 "great physical force — The word intimidation, 
 " although not a technical word — not vocabulum 
 " artis — and although not having of necessity any 
 " meaning which indicates any thing illegal, and 
 " although a word in common use, may be employed 
 " in its popular sense ; and in order to give it force, 
 " it need not appear from the context what species 
 " of fear was intended. 
 
 " And the counts need not contain any intima- 
 " tion whatever upon what persons this intimida- 
 " tion is intended to operate; and it may be left in 
 " complete uncertainty, whether the intimidation 
 " were directed against the peaceable inhabitants 
 " of the surrounding places, against the subjects 
 u dwelling in Ireland in general, against persons 
 " in exercise of public authority there, or even 
 " against the legislature of the realm. 
 
 " Although the mere allegation that these changes 
 " were to be obtained by the exhibition and demon- 
 " stration of great physical force, means no more 
 u than the mere display of numbers." 
 
 It will be observed that the English judges in 
 overruling this decision of the Irish Court of 
 
89 
 
 Queen's Bench, dwell upon the absence from the 
 counts of certain allegations. Their lordships, how- 
 ever, do not go on to say that, even if the absent 
 
 ALLEGATIONS WERE PRESENT, the COWltSWOulcl be good. 
 
 Whatever may be their actual opinions upon this 
 particular point, they, for the present, have ex- 
 pressed none. For our own part, we are humbly of 
 opinion, that the addition of the allegations in ques- 
 tion would " carry the case no further," and that it 
 is impossible to conceive how the defendants, in this 
 case, could have been guilty of the offence imputed. 
 
 Let us, in the first place, imagine that it had 
 been alleged that the intimidation was to be ex- 
 ercised upon the peaceable inhabitants of the sur- 
 rounding places, and that no objection is made 
 to the want of a precise and legal meaning in the 
 word intimidation itself. It is notorious, as a 
 matter of fact, that the meetings in question every 
 w here contained the whole population of the neigh- 
 bourhood, who, therefore, could not possibly inti- 
 midate any body but themselves. Indeed the Soli- 
 citor General expressly states, that if such an alle- 
 gation had been made in form, it would have been 
 disproved in fact by the evidence. The following pas- 
 sage upon the subject is taken from the reply* : — 
 
 " I say that every one of these monster meetings, 
 " and many others which have been given in evi- 
 " dence, are unlawful meetings, not because the 
 " people in its vicinity ic ere f rightened, or apprehended 
 u any immediate injury to their property" &c. In 
 * Page 405. 
 
90 
 
 the account which the Solicitor General dwelt upon 
 in his reply of the proceedings connected with 
 one of the largest of the meetings, he read the 
 following passage*: — " Cars and other vehicles 
 " were crowded with females, cheerful and 
 " lovely, who were determined to have some portion 
 " in the achievement of the domestic felicity 
 " which was to follow independence."! It was 
 therefore of course impossible that any allegation 
 of alarm to the neighbourhood could have been 
 introduced upon the record by the Law Officers of 
 the Crown, who themselves knew that such alle- 
 gations would be totally false : whilst it would of 
 course not only be untrue but absurd to assert 
 that a meeting which produced no alarm in the 
 neighbourhood could produce alarm at a distance. 
 
 But let us suppose an assembly of an hundred 
 thousand persons, a majority of which consisted of 
 women and children, and which from the beginning 
 to the conclusion was, according to all the autho- 
 rities, attended with no breach whatever of the 
 peace ; let us, moreover, suppose that some dozen 
 or dozen dozens of persons, there or elsewhere, 
 were actually alarmed at such meetings ; how is it 
 conceivable that such alarm could produce any alter- 
 ations in the law ? No change can be effected in 
 the law except by the authority of the legislature. 
 How, then, is it conceivable that the act of alarming 
 
 * Page 426. 
 
 t See, page 162., the policeman's description of the meeting 
 at Mullaghmast — the largest of them all. 
 
91 
 
 a few persons, or even a great many persons any 
 where in Ireland, could have the effect of causing 
 any change in the Laws of the Empire, except, per- 
 haps, by inducing the Government to procure an Act 
 of Parliament for the restraint or the punishment of 
 those by whom the alarm had been created ? If 
 any new law could have been the consequence of 
 such alarm, it must have been a re-enactment of 
 the Coercion Bill, not a repeal of the Union. 
 
 But let us proceed still further, and suppose that 
 the counts did actually contain an allegation, that 
 the purpose of the defendants was to intimidate the 
 legislature itself by the exhibition of great physical 
 force. All the cases of this kind that have ever 
 occurred, including the cases that were cited by 
 Chief Justice Pennefather himself, were cases where 
 the physical force was exhibited and demonstrated 
 in the vicinity of the parties upon whom the inti- 
 midation was to be effected, and where the exhibi- 
 tion of the force was accompanied by an actual, or 
 threatened, or probable violation of the peace. We 
 ask, then, in the name of common sense, how is it 
 possible that the exhibition of great physical force 
 in # Mullaghmast could alarm the legislature in 
 Palace Yard ? The meeting may produce upon the 
 mind of the legislature some very serious impres- 
 sions in reference to the subjects which had been 
 agitated in the assembly itself ; but we cannot see 
 
 * As a matter of fact, when several of the meetings occurred, 
 there was no legislature in existence to be intimidated, as the 
 Parliament had been prorogued at the time. 
 
92 
 
 how it is possible that the parliament in Abingdon 
 Street could be physically intimidated by the fact, 
 that a hundred thousand men, women, and children 
 had assembled in the most peaceable manner upon 
 the Hill of Tara. Chief Justice Pennefather, in his 
 charge to the jury, asserted the illegality of the 
 meetings, upon the ground that they were entirely 
 under the control of Mr. O'Connell, and that he, 
 from time to time, issued advice, and even commands, 
 to the people of Ireland, to avoid all connection 
 with Chartists or secret societies, and to abstain 
 from physical force and every species of crime. 
 These injunctions were described by the Chief Jus- 
 tice as having been continued without interruption 
 throughout the whole of the three years after 
 the Repeal Association came into existence ; and 
 Mr. Justice Burton, speaking in the name and in 
 the presence of the whole Court of Queen's Bench, 
 declared in the very act of pronouncing the sen- 
 tence, that the Court entertained no doubt about 
 the sincerity of the parties who had continually 
 issued such injunctions. The prosecution itself, 
 therefore, which proceeded upon the ground of 
 illegal intimidation, demonstrated, as it advanced, 
 the absence of the foundation upon which it was 
 professedly constructed. It is of course very pos- 
 sible that such assemblages may be illegal upon 
 other grounds of different kinds, according to the 
 conduct of the parties who direct and attend them. 
 But is it not a most palpable absurdity to presume 
 
93 
 
 that meetings which, however numerous, were de- 
 liberately, pre-eminently, and unprecedentedly peace r- 
 able, could produce personal terror any where, much 
 more at a distance of three hundred miles ? 
 
 We next proceed to consider the charge which 
 related to the attempt to establish Arbitration 
 Courts in Ireland, in regard to which it may, 
 in the first instance, be observed, that a pro- 
 secution for inducing individuals to submit their 
 differences to arbitration must proceed in igno- 
 rance, or in defiance of the principles of morality. 
 All ethical writers lay it down as the duty of 
 every man to submit his cause, if possible, to 
 arbitration. The obligation is expressed by Paley 
 in the following words : " But since the suit 
 " is supposed to be undertaken simply with a view 
 M to the ends of justice and safety, the plaintiff 
 " in an action is bound to confine himself to the 
 " cheapest process that will accomplish these ends, 
 " as well as to consent to any peaceable expedient 
 " for the same purpose, as to a reference, in which 
 11 the arbitrators can do what the law cannot."* 
 
 If it be a moral duty to submit our causes to 
 arbitration, it must be a virtue to recommend the 
 submission. To prosecute a man for promoting 
 the establishment of arbitration courts is to pro- 
 secute him for performing the moral and religious 
 
 * Principles of Moral and Political Philosophy, book iii. 
 part ii. ch. 10., art. "Litigation." 
 
94 
 
 duty of promoting " peace and good- will amongst 
 " men." Independently of thousands of individual 
 cases which are so decided every day, there are 
 numerous classes of partnership deeds in which it 
 is provided that all disputes of every kind which may 
 arise out of the partnership itself shall be settled in 
 that manner. Many societies of a larger extent and 
 looser composition proceed upon the same principle, 
 either by the force of some statute or their own 
 internal organisation. Some considerable depart- 
 ments of the population act upon the same plan, 
 as the Jews, the Methodists, and the Society of 
 Friends. The tendency of all modern legislation *, 
 as well as of the decisions of all the Superior Courts 
 of Law and Equity, has been to increase the facili- 
 ties for this method of decision, to enlarge the 
 jurisdiction of arbitrators, and render their powers 
 more extensive and effectual ; and Lord Brougham 
 himself brought into the Legislature some years ago 
 a measure to render the practice of arbitration in 
 a manner universal. The attempt to establish arbi- 
 tration courts in Ireland arose, in fact, out of the 
 absurd and impolitic dismissal of a large number 
 of magistrates throughout the couDtry, and might 
 be charged against the Lord Lieutenant and the 
 Lord Chancellor more properly than against the 
 leaders of the Corn Exchange. 
 
 Speaking upon this subject, the Solicitor General 
 himself observes f, " Gentlemen, when you consider 
 
 * See particularly the 3 & 4 W. 4. ch. 42. 
 f Page 445. 
 
95 
 
 " the time when the selection of these arbitrators 
 M was determined upon, when you recollect that 
 u the dismissal of the magistrates by my Lord 
 " Chancellor was the reason and the occasion why 
 
 " this was thought of," M when you recol- 
 
 " lect that the dismissed magistrates are the per- 
 u sons selected to adjudicate between the different 
 u classes of the people, you can have, in my opi- 
 u nion, no doubt whatever that there was a 
 u settled plan to disparage the regular tribunals, 
 u &c." This conclusion would, however, seem to 
 an impartial reader to be singularly destitute of 
 any support from the premises. Most persons 
 would, instead of thinking that the facts here 
 mentioned afforded any evidence of a u settled 
 " plan," be inclined to conclude that the notion 
 of setting up Arbitration Courts was actually 
 generated by the dismissal of the magistrates. 
 Indeed the Attorney General expressly says * that 
 the attempt to establish those courts "was the 
 " more illegal because it icas adopted in coxse- 
 " quence of the exercise of the right of the Crown to 
 " dismiss the magistrates who attended the multitu- 
 u dinous meetings ; " whilst the Solicitor General 
 himself elsewhere gives the quietus very effectually 
 to his own theory, by saying, " As soon as it teas 
 M ascertained that the gentlemen who had attended 
 " those meetings had ceased to exercise magisterial 
 "functions, the plan of substituting for the ordinary 
 u tribunals others to be filled by the very persons 
 * Page 138. 
 
96 
 
 " dismissed occurred to the persons connected with 
 " this conspiracy."* 
 
 We have already shown that the act of uniting 
 for the purpose of inducing the subjects of the 
 Queen to submit their differences to arbitration is 
 absolutely and considerably meritorious. Such a 
 charge in that form would, in fact, be ridiculous in 
 an indictment, and therefore it was placed upon the 
 record under the more serious description of " a 
 " conspiracy to bring into hatred and disrepute 
 " the courts by law established for the adminis- 
 " tration of justice in Ireland, and to diminish the 
 " confidence of Her Majesty's subjects in Ireland 
 " in the administration of the laws therein, with 
 " intent to induce the said subjects to withdraw 
 
 the adjudication of their differences with, and 
 " claims upon, each other from the cognizance of 
 " said courts, and to submit them to the decision 
 " of other tribunals to be constituted and contrived 
 " for that purpose." 
 
 The extracts already given from the speeches of 
 the Attorney and Solicitor General are, however, suf- 
 ficient to demonstrate that the real guilt of the defen- 
 dants was the honour which they conferred upon the 
 magistrates who had been dismissed by the Crown ; 
 and the Chief Justice puts that point altogether out 
 of doubt by the following very gross piece of mis- 
 direction upon the subject f : — " It will be for 
 
 * Reply, Flan., p. 431. 
 
 f Page 188. 
 
97 
 
 " you," says his Lordship, " to say whether the 
 M Arbitration Courts were not set up for an 
 " entirely different purpose, with something! of 
 " a factious view of opposing the Government in 
 " the course they had taken in dismissing from the 
 " commission of the peace the magistrates who had 
 " attended the repeal meetings." * This new sort 
 of offence, which consists in doing an act " with 
 " something of a factious view of opposing the 
 " Government," is as great a curiosity in its own 
 line as the terrible Irish conspiracy, which consisted 
 
 * The futility of the pretence upon which the Chief Justice 
 addressed the jury in reference to this point has been laid bare 
 in the plainest manner within a day or two by the conduct of 
 the Government itself in the case of Lord Lucan, whom they 
 have appointed to the lord-lieutenancy of the county of Mayo, 
 after having, upon a deliberate examination of his conduct as a 
 magistrate, expelled him from the commission. If the repealers 
 elect to the office of arbitrator a justice who has been dismissed 
 by the Crown for political reasons, they are, it seems, to be 
 considered as acting from the factious view of opposing the 
 Government : but the Government is to be taken as acting 
 with perfect propriety when they place at the head of the ma- 
 gistracy a person whom they had themselves deliberately stig- 
 matised as unworthy, from his magisterial misbehaviour, to be 
 even a private member of the body. This proceeding, after all, 
 if properly understood, may be only an additional sample of that 
 " bold, straightforward, and manly" conduct for which credit 
 was assumed by the Solicitor General. Taken in conjunction 
 with the case of Mr. O'Driscoll and others, it will afford a proof of 
 the propriety of prosecuting Mr. O'Connell for a seditious con- 
 spiracy, upon the ground of his having complained of the pro- 
 visions made by the Government for the administration of 
 justice in the Irish courts of petty sessions, and of his uniting 
 with other persons to withdraw the confidence of the public from 
 such tribunals as those of Skibbereen, Clonakilty, and Castlebar. 
 
 G 
 
98 
 
 in a combination not to violate the law, and is 
 worthy to be ranked along with the several other 
 sorts of novel criminality invented for the purpose 
 of procuring the conviction of Mr. O'Connell per 
 fas aut nefas. 
 
 The objections made by the Chief Justice to these 
 appointments, upon what may be called the merits, 
 are most extraordinary. He objects to the manner 
 in which the Chairman of the Arbitration Courts was 
 to be elected, upon the singular ground that he was 
 to be chosen to that office — " not on account of his 
 " legal knowledge, local or other information, or pro- 
 u perty, but because, having been a magistrate, he has 
 u either been dismissed for attending repeal meet- 
 " ings, or has himself resigned the office." Now, 
 one should suppose that the Chief Justice of the 
 Queen's Bench would assume that a person who 
 has been actually appointed by the Crown to administer 
 justice, and who has been for some time employed in 
 the actual administration of it, must possess all the 
 qualities of every sort which are necessary to enable 
 him to discharge, with efficiency, that most important 
 duty — knowledge, temper, judgment, integrity, 
 impartiality ; as well as all necessary information, 
 local and legal, together with such amount of property, 
 as is required by law. These qualities it is but 
 reasonable to presume that he possesses, whilst his 
 name appears in the Commission of the Peace by 
 the authority of the Crown. No sooner, however, 
 has he been removed from the roll than, according 
 to the theory of the Chief Justice, his whole nature 
 
99 
 
 becomes deteriorated, and in part annihilated — his 
 legal, even his local knowledge becomes extinguished ; 
 his education becomes reversed or undone, his 
 very property vanishes away, and all the qualities 
 by which he was enabled to administer justice, 
 whilst he was the commissioned magistrate of the 
 Crown, become annihilated as soon as he has 
 been elected an arbitrator by the people. If the 
 arbitrators did, in fact, possess these qualities, 
 the observations of the Chief Justice are quite 
 irrelevant. But if they were wanting in the ne- 
 cessary knowledge of the laws, as well as in the 
 other qualities required for the administration of 
 justice, how did it happen that they had been ap- 
 pointed to the Commission by the Crown ? Is 
 it the Chief Justice's opinion that a knowledge 
 of the law is necessary in an arbitrator elected 
 by the people, and not necessary in a magistrate 
 appointed by the Queen ? 
 
 The reader, who has by this time received some 
 insight into the manner in which Chief Justice 
 Pennefather dealt with the facts of the case, will 
 perhaps not be surprised to hear that the persons 
 recommended by the " Report," to which his Lord- 
 ship referred, were those u possessing education, 
 " high moral character, and local influence, together 
 u with the full and complete confidence of the parties 
 u upon whose cases they may have to arbitrate,'''' * As 
 the Chief Justice did not read this passage to the 
 * Arm. & Trev., p. 100. 224. 
 G 2 
 
100 
 
 jury, we presume that it must have altogether 
 escaped his Lordship's notice.* 
 
 In the course of his observations upon this sub- 
 ject, the Solicitor General read a passage from a 
 speech, in which Mr. O'Connell expressed a hope 
 that " before twelve months more should have passed 
 " over, the Four Courts would be abandoned." 
 It would certainly not be very wonderful if the 
 Forum should be deserted in a capital where the 
 Custom-house is said to be falling down for want of 
 an occupant ; and that litigation should languish 
 where commerce is in a consumption. It is diffi- 
 cult, however, to decide which of the two parties 
 was less in earnest — Mr. O'Connell, in pretending 
 to anticipate, or Mr. Green, in professing to appre- 
 hend, the total desertion of the Four Courts, as the 
 consequence of establishing a system of arbitration 
 to fill up the vacancies which were made in the 
 
 * The Chief Justice tells the jury (a) that the arbitrators are 
 to be persons " not known to the party," — a statement which is 
 evidently in direct opposition to the fact, as the arbitrators, 
 according to the very report, of which the Chief Justice read a 
 part, were to be, as we have just mentioned, " persons possess- 
 " ing local influence, together with the full and complete con- 
 " fidence of the parties upon whose cases they are to arbitrate? 
 Out of Ireland, at least, it would be difficult to understand how 
 a man possessing local influence in a locality where he has acted 
 as a magistrate can, after he has been rendered much more con- 
 spicuous by being removed from the office, be unknown to a 
 person in the same locality, who places at the same time the 
 " most full and complete confidence " in this dismissed magis- 
 trate whom he does not know ! 
 
 (a) Page 196. 
 
101 
 
 petty-sessions bench by the removal of the Repeal 
 magistrates. 
 
 With regard to the alleged offence of bringing 
 the courts of justice into contempt, it is one which 
 can scarcely be committed without the assistance 
 of the courts themselves. A person, for instance, 
 who should attempt to bring into contempt the 
 Superior Courts of Law in England at this time 
 would only bring contempt upon himself, if he 
 should happen to be otherwise of importance 
 enough to be the object of such a feeling. There 
 are other tribunals, however, which deserve, or 
 are supposed to deserve, the contempt of the 
 public, which contempt is invoked upon them con- 
 tinually by speakers and writers of all classes and 
 all parties, who are so far from being considered as 
 committing an indictable misdemeanor, that their 
 conduct is universally regarded as highly beneficial 
 to the community. If the absurdity, the preci- 
 pitancy, the partiality, and the ignorance which 
 have been lately exhibited in those other tribu- 
 nals should ever, quod absit longe, come to sup- 
 plant in the Superior Courts at Westminster the 
 sound learning, good sense, candour, calmness, 
 impartiality, and integrity which generally distin- 
 guish those high tribunals at present, it would 
 unquestionably become the duty of every man who 
 took a part in public affairs to collect upon those 
 courts as much as possible that universal odium and 
 contempt which, in such a state of affairs, if such 
 
 g a 
 
102 
 
 a state were possible, they would as justly deserve 
 as they now do the esteem and admiration of the 
 whole empire. 
 
 The following passage exhibits the great authority 
 of Lord Denman* in support of these observa- 
 tions : — 
 
 u In the first place, it is my bounden duty to 
 " state that I do not entirely agree with the learned 
 u Judges in thinking that there are only two objeo 
 M tionable counts ; it appears to me that there are 
 u other counts open to very serious objection; and I 
 " should be sorry to preclude myself, by any thing 
 u which I may now say, from giving a judicial 
 " opinion against counts so generally stated, and 
 " charging as an unlawful act a conspiracy to excite 
 u dissatisfaction with the existing tribunals for the 
 " purpose of procuring a better system. I am by 
 u no means clear that it may not be an innocent 
 u and a most meritorious act : I am by no means 
 " clear that there is any thing illegal involved in 
 H exciting disapprobation of the courts of law, for 
 " the purpose of having other courts substituted more 
 " cheap, efficient, and satisfactory " 
 
 The truth is, that courts of justice can be 
 effectually brought into contempt by their own 
 members alone. u Their enemies are of their 
 " own household. 7 * The administration of justice 
 is a matter of necessity so overwhelming and 
 so obvious to the most uninstr acted of man- 
 kind, that it may be safely asserted that the pub- 
 * Judgment in the case of O'Connell v. The Queen, page 19. 
 
103 
 
 lie confidence in a tribunal will never be less 
 than it deserves, and will generally, perhaps, be 
 greater. That any conspiracy can have the effect 
 of inducing parties to withdraw the adjudication of 
 their differences from courts which are composed 
 of learned, enlightened, candid, patient, and im- 
 partial judges, is a supposition purely ridiculous. 
 To suppose that suitors could be induced by the 
 u malicious contrivances" of any conspirators, 
 however subtle, to withdraw their suits from such 
 courts as we have described, is simply to suppose 
 that the suitors are insane. Whenever the confi- 
 dence of the public is actually withdrawn from a 
 court of justice, it will be invariably found that 
 the court is not entitled to confidence ; and the 
 only effect of a prosecution upon such a ground is, 
 in the first place, to make the want of confidence 
 notorious ; and, in the next place, to make it 
 greater than before. The court which tries the 
 charge, and which deserves the imputation, will, in 
 all probability, treat the offence as a personal 
 matter, and exhibit so much perverse passion and 
 precipitate partiality as to justify the defendants 
 for the diminution of their confidence in the tri- 
 bunal, and to show that what the Court punishes 
 as an offence against the Court, is a meritorious act 
 with regard to the public at large. 
 
 Nothing can be more absurd or more futile than 
 a prosecution, having for its object the repression of 
 a sentiment, which in the circumstances is natural 
 
 g 4 
 
104 
 
 and inevitable, The security of a court of justice 
 for its character and existence depends upon its 
 deserving the support of the just and enlightened 
 portion of the public ; and we may say of such an 
 institution what Montesquieu* has truly asserted of 
 government at large — " Elle est comme toutes les 
 " choses du monde : pour le conserver, il faut V aimer" 
 But if it be an offence to attempt to bring a 
 tribunal into contempt, the extent of the offence in 
 any particular instance must be in the direct ratio 
 of the dignity, importance, utility, and established 
 character of the tribunal, and of the degree which 
 that particular tribunal occupies in the ascending 
 scale of the general jurisdiction of the country. If, 
 therefore, it be an offence to bring the Irish Court 
 of Queen's Bench into contempt, it must be a still 
 greater offence to depreciate in public estimation 
 the character of the House of Lords, as the court 
 of the highest dignity and of ultimate appeal in the 
 administration of justice throughout the empire; 
 and if such conduct be a " high misdemeanour " 
 in any man, how much higher in one who is himself 
 a constituent member of the Court, peculiarly bound 
 by every consideration of duty to maintain the dignity 
 of the body to which he belongs. After the judgment 
 in the case of The Queen v. O'Connell had been de- 
 livered in the House, Lord Brougham committed 
 the outrageous impropriety of publicly declaring, 
 in his place as a judge of that high court, that its 
 " judgment would go forth without authority, and 
 * De L'Esprit des Loix, lib. iv. chap. v. 
 
105 
 
 "return without respect;" and this statement he 
 made immediately after he had himself decided that 
 it was an indictable misdemeanor to make any at- 
 tempt at bringing into disrepute or withdrawing the 
 public confidence from the courts of justice in Ire- 
 land. A learned Judge of one of the Superior Courts, 
 whose name it is unnecessary to mention, has also 
 given the " Running Rein" to his humour in the 
 same direction, and has frequently and publicly al- 
 luded to the judgment of the House of Lords in 
 terms not particularly respectful ; whilst a couple of 
 London newspapers have repeatedly, and in the most 
 express, direct, and open manner, charged with po- 
 litical partiality and corruption the majority of the 
 Lords by whom the case was decided. If, then, Lord 
 Brougham and the learned Judge in question, and 
 the editors of the Standard sxndHerald, should be in- 
 dicted for having combined to induce the subjects of 
 her Majesty to withdraw their confidence from the 
 highest court of justice in the empire, and to bring 
 that court into discredit and disrepute, what de- 
 fence could they, upon their own principles, make 
 to the indictment ? Is it an offence in Dr. Gray and 
 Mr. Steele to bring an Irish petty sessions court 
 into disrepute, and no offence in Lord Brougham 
 and a judge of a superior tribunal to assert that 
 the judgment of the House of Lords was neither 
 entitled to be obeyed as an authority, or even treated 
 with respect ; and to commit this outrage upon the 
 highest judicial institution in this country — whilst 
 they were themselves actually exercising judicial 
 
106 
 
 functions, and sitting and acting in a judicial cha- 
 racter ? Is the act of bringing the courts of jus- 
 tice into contempt an offence in every one except 
 the members of the courts themselves ? Is it to be 
 exclusively committed by those who consider it to 
 be an offence, and not by those who think it to be 
 meritorious ? And is the protection of the Attorney 
 General to be confined altogether to the Irish ma- 
 gistrates, of whom a considerable portion have been 
 in the habit, notoriously and prescriptively, of re- 
 ceiving bribes of all values, from a fat cow to a leg 
 of mutton, or a day's labour in harvest, and who 
 have been in the habit, although not recently to the 
 same extent, of committing every enormity which 
 could be crowded within the limits of their capa- 
 city for evil ? * 
 
 * As the public are sufficiently familiar with the manner in 
 which justice is administered in the Irish courts of petty sessions, 
 we shall only trouble the reader with a statement of the latest 
 of these disgraceful exhibitions that has been recorded in the 
 Irish correspondence of the London press. It appears that a 
 petty sessions court was held at Castletown (Bearhaven, 
 county of Cork), within a few days, and that amongst the 
 worshipful individuals present was a justice who thought that 
 he had reason to complain of a report which had recently ap- 
 peared in a Cork newspaper concerning some preceding trans- 
 actions. Upon this matter the magistrate, before the com- 
 mencement of the proceedings, made a public address, towards 
 the end of which he said, that " he had thought it right to make 
 " these remarks, and he now hoped that the author of the letter 
 " would have the manliness to come forward, and not be an as- 
 " sassin in the dark; but if he continued to hide behind an anony- 
 
 " mous signature, all he [Mr. ] would say was, that nothing 
 
 " could exceed his contempt for the malicious scoundrel." 
 
 At the conclusion of the proceedings the subject was again 
 resumed, and 
 
107 
 
 The Government, whose own conduct affords the 
 most copious and convincing examples of the gross 
 and obvious impropriety of every part of the accu- 
 sation against Mr. O'Connell, as well as of every 
 part of the prosecution of the charge, have, within 
 a day or two of this present 11th of February, 
 furnished an additional example of the facility with 
 which they may themselves commit with impunity 
 what they have made the subject of an indictment 
 against their political antagonist. The Lord Mayor 
 of Dublin, attended by certain aldermen and town- 
 councillors, along with their Town-clerk, waited 
 upon the Lord Lieutenant, who was attended by 
 Mr, Green, the Solicitor General, for the purpose of 
 representing the Court of Conscience in Dublin as a 
 nuisance, and recommending its abolition as such. 
 The Lord Lieutenant and the Solicitor General 
 
 Mr. observed. u Whoever furnished the report to the 
 
 Examiner gave a false report, and that I state publicly and 
 fearlessly." 
 
 Mr. . u He is subject to a prosecution." 
 
 Mr. . u What mark would the scoundrel be for costs ? " 
 
 Mr. . u I mean a criminal prosecution." 
 
 Mr. . u He had better be cautious."' 
 
 He certainly had. After the specimen which the justices of 
 Bearhaven — misprinted, perhaps, for Beargarden — have given 
 of their calmness and impartiality, if the " scoundrel n in ques- 
 tion allows himself to be impleaded before their tribunal, his 
 lolly must be at least as great as his malice. The account of 
 the same to which we refer is contained in the Morning 
 Herald of the 17th of February. Since the preceding part of 
 this note was written one magistrate in another county (not 
 Cork) has been dismissed by the Lord Lieutenant for oppressing 
 a poor man under the forms of justice j and the case of a second 
 worshipful individual is under consideration. 
 
108 
 
 assented to the correctness of the representation, 
 but hesitated about the abolition until some substi- 
 tute should have been provided for the existing 
 Court, which seems to be the only tribunal for the 
 recovery of small debts in the city of Dublin. 
 Upon the part of the Deputation it was proposed to 
 make certain manor courts in that place available 
 for that purpose, but the Solicitor General declared 
 that he knew officially and professionally that the 
 manor courts themselves were so incurably bad, as to 
 be incapable of any amendment. 
 
 The following is the whole of the evidence which 
 was produced with regard to the charge of setting 
 up the Arbitration Courts : — 
 
 " Chaeles Hovenden sworn, and examined by 
 Mr. Brewster. 
 
 " I am an Inspector of Police. I know Dr. Gray 
 " and Mr. John O'Connell. I saw them both act- 
 " ing as arbitrators. I saw Dr. Gray act but once 
 " as arbitrator. I have seen Mr. John O'Connell 
 " several times. I first saw him on the 17th of 
 " October. I saw him several days subsequently 
 " acting as arbitrator. There was one case the 
 " first day I attended the court, and there was no 
 " case on the subsequent days." 
 
 u Cross-examined by Mr. Hatchell. 
 
 " I was not there on the commencement of the 
 " proceedings of the first day. I went there about 
 " a quarter past eleven. I went in and out once or 
 " twice ; no obstruction was given to me, quite the 
 " reverse. There was the greatest kindness shown 
 
109 
 
 " me. They stated they had no power to do 
 " any thing, except by consent of the parties. I 
 " saw no fees paid, no persons pleading. The par- 
 u ties wishing to have their differences settled did 
 " consent. There was nothing done in the case 
 " that was brought on ; it was adjourned to Kings- 
 " town. I was not present when it was finally 
 " decided. / did not see any case decided. I 
 u went there in uniform. I did not go there by 
 " the direction of the arbitrators. I went there in 
 " performance of my duty as Inspector of Police. 
 M I did not go there as officer of the court. I gave 
 " no previous intimation that I would go there. I 
 " saw no oaths administered." * 
 
 Such is the very prosperous account which the 
 witness gives of the success with which the arbitra- 
 tion system upon the voluntary and popular principle 
 was attended in the immediate vicinity of the city 
 of Dublin, where the only one of Her Majesty's 
 courts in which a " small debt " can be recovered is 
 asserted by the Lord Mayor, and admitted by the 
 Lord Lieutenant and the Solicitor General to be 
 a nuisance which deserves to be abolished. Such 
 were the practical results of the awful combination, 
 which was pompously described upon the monster 
 indictment, as a conspiracy " to bring into hatred 
 " and disrepute the courts by law established for 
 " the administration of justice in Ireland, and to 
 " diminish the confidence of Her Majesty's subjects 
 " in Ireland in the administration of the laws therein, 
 
 * Armstrong & Trevor, p. 294. 
 
110 
 
 " with intent to induce the said subjects to with- 
 
 " draw the adjudication of their differences with and 
 " claims upon each other from the cognizance of said 
 u courts, and to submit them to the decision of other tribu- 
 " nals to be constituted and contrived for that purpose.' 1 
 Several sittings — no fees — one case — no decision : 
 not even a fragment of a hearing, their arbitra- 
 torships having adjourned the judgment, and 
 entered a curia advisare vult, not wishing very 
 probably to part with their only cause until they 
 had some chance of receiving another. Such was 
 the competition against which Her Majesty's Go- 
 vernment thought it necessary to protect Her 
 Majesty's courts of justice in Ireland by calling 
 before the jury a policeman to swear that he saw 
 Mr. Gray and Mr. 0' Conn ell sitting in court, i. e. in 
 a small newsroom, first of all doing nothing in the 
 one case that was brought before them, and then 
 adjourning the future non-performance of their 
 duty to some other court, where they were again 
 judicially to assist each other in this negative in- 
 dustry. The witness, who wished to make the 
 most of his materials, deposed that he saw Mr. John 
 O'Connell acting as arbitrator upon several oc- 
 casions after the adjournment of the one cause. 
 How he could have acted as arbitrator without 
 having any thing to arbitrate about, it is rather 
 difficult to understand. Mr. John O'Connell must 
 have sat in such circumstances, not like an arbi- 
 trator upon a reference, but 
 
 " Like patience upon a monument " 
 Smiling at — Gray. 
 
Ill 
 
 The reader will perceive that this important 
 seance was holden upon the 17th October, after the 
 swearing of the depositions upon which the indict- 
 ment teas founded. So that, if the defendants had 
 not sat upon that occasion, the evidence would not 
 have contained a single act performed by any of the 
 defendants in practical furtherance of this alleged 
 conspiracy to transfer all the business from the 
 Four Courts to M other tribunals to be constituted 
 " and appointed for that purpose." In reference to 
 this charge, all the defendants except Mr. Tierney 
 were found guilty for conduct which we have 
 shown to be meritorious in its intention, and merely 
 ridiculous in its result. Those who are accustomed 
 to the administration of justice in England can 
 find it difficult to comprehend how any jurv could 
 have had the effrontery to return a verdict of 
 guilty upon such a charge upon such evidence. 
 
 To the sixth and last charge, of conspiring to in- 
 timidate the " Lords Spiritual and Temporal," by 
 seditious and inflammatory speeches and writings, 
 addressed to large numbers of persons, may be ap- 
 plied many of the observations which we have 
 made upon the preceding parts of the indictment. 
 The eleventh count, which is the only one which 
 contains this charge, is the only one that states 
 the persons who were said to be the objects of inti- 
 midation. The fact principally relied upon against 
 Mr, O'Connell, in support of this charge, was his 
 openly declaring that the statute of the 39 & 40 
 
112 
 
 Geo. 3. c. 29., known as the Act passed for the 
 union of the two countries, was void. This declar- 
 ation, which Mr. O'Connell has merely repeated 
 after Saurin, Plunket, and Bushe, was frequently 
 stigmatised as not only inflammatory but sedi- 
 tious by the law officers of the Crown and the 
 Chief Justice of the Queen's Bench.* But if 
 the speech were justly characterised by those per- 
 sonages, nothing could be easier than to frame an 
 indictment, consisting of a single count, against 
 the person who spoke it. His conviction must, 
 according to the crown lawyers and the Court of 
 Queen's Bench, have been a mere matter of course. 
 " It would not," however, " do" to prosecute Mr. 
 O'Connell directly and solely for the use of lan- 
 guage which, whether seditious or not, is very 
 much inferior in the intensity of its character and 
 in its inflammatory tendencies to that which is 
 used every day by, the persons who address " large 
 " numbers of persons" in England " for the purpose 
 " of intimidating the Lords Spiritual and Tempo- 
 u ral, and the Commons, in Parliament assembled, 
 " and of thereby bringing about changes and alter- 
 
 * The Chief Justice, in dwelling upon one of Mr. O'Connell's 
 assertions regarding this matter (a), says, " It is absurd and 
 seditious ! " — that the statement has no distinct or consistent 
 meaning at all, and that the meaning is not only distinct, but 
 indictable ! To this piece of judicial perspicuity we may apply 
 the passage of the satirical poet : — 
 
 " To die for treason is a common evil, 
 
 " But to be hanged for nonsense is the devil." 
 
 («) Page 27. of the Charge, published by the Queen's printer. 
 
113 
 
 "ations in the laws" of this country. A meeting 
 which took place at Rochdale on Thursday the 9th 
 of January last furnishes a very satisfactory sample 
 of the sort of lan£ua<xe which is not seditious in 
 England. One of the speakers asserted that the 
 new poor law was a " confiscation of the rights of 
 " Englishmen" and that the authorities who ad- 
 ministered it " sought out for men who set no 
 M value upon conscience, had no feeling for their 
 " fellow-creatures, and were therefore capable of 
 14 carrying out to the full the punishment to be in* 
 " flicted on the poor." Another pronounced the 
 poor law to be " murderous in its operation ; " an- 
 other designated the three Commissioners appointed 
 to carry it into effect as the " three devil kings of 
 " Somerset House ; " another asserted that the 
 law in question " disinherited millions of their 
 u birthright* stamped on their foreheads the brand 
 M of slavery, and went far to tlie dissolution of 
 u society itself." No lan<iua;re ^iven in evi- 
 dence upon the monster trial made any approxi- 
 mation to this in its inflammatory tendency. Is it 
 then seditious to sav in Ireland of one statute that 
 it is not binding upon the consciences of the people 
 of Ireland, and not seditious to say in England of 
 another statute that it was passed for the purpose, 
 and is followed by the effect, of murdering the 
 population of England? Is it seditious to say in 
 Ireland of one statute that it has not had the effect 
 
 H 
 
114 
 
 of uniting the two countries, and not seditious to 
 say in England of another statute that it has almost 
 dissolved society ? Is it seditious to say in Ireland 
 of one statute that it has not produced a union, 
 and not seditious to say in England of another 
 statute that it has introduced anarchy? Is it se- 
 ditious to say in Ireland of one statute that it has 
 " withered" the resources of the people of Ireland, 
 and not seditious to say in England of another 
 statute that it continually murders the population 
 of England ? If this distinction do not exist, how 
 comes it that language is prosecuted in Ireland 
 which is not prosecuted in England? As far as the 
 law of the case is concerned, there could be no 
 more difficulty is framing an indictment against 
 the repealers of the statute of Wm. IV. than 
 there was in framing an indictment against the 
 repealers of the statute of Geo. III. There is the 
 same unity and continuity of purpose: that pur- 
 pose is to procure the repeal of the New Poor 
 Law, through the means of addresses expressly 
 appealing to and exciting the passions of the 
 millions who are said to have been robbed, and 
 to be in the process of being murdered, by the law. 
 There exists, therefore, every one of the elements 
 which were said to enter into the composition 
 of the guilt of the defendants in the case of The 
 Queen v. O'Connell and others — the unity, the 
 continuity, the inflammation, the intimidation, 
 
115 
 
 the combination. The grand principle of Mr. 
 O'Connell's agitation — that which in fact includes, 
 and which, if well founded, would most abun- 
 dantly justify, all the others, is, that impartial 
 justice is not done to his country — that justice 
 is meted forth to the people of England with 
 a measure very different from that which is ap- 
 plied in respect to the people of Ireland. He has 
 occasionally, in support of this principle, submitted 
 for the consideration of the public certain occur- 
 rences which have not always appeared to be alto- 
 gether conclusive. Sir Robert Peel, however, who 
 has more than once unintentionally helped Mr. 
 O'Connell out of a difficulty, has now furnished 
 him, in the monster prosecution, with a proof 
 and a justification which cannot be either ob- 
 scured or misunderstood. Mr. O'Connell complains 
 that the Irish tribunals are so constituted and 
 composed as not to deserve the confidence of the 
 people of that country : Sir Robert Peel institutes 
 a prosecution which proves the fact. Mr. O'Connell 
 complains of the difficulty and danger which the 
 state of the law in Ireland places in the way 
 of free and public discussion : Sir Robert Peel 
 answers him by an indictment, of which the prin- 
 cipal portion consisted of counts of which there 
 never had been an example since the formation of 
 the common law, but which the Irish Court of 
 Queen's Bench deliberately declared to be unexcep- 
 
 h 2 
 
116 
 
 tionable, whilst all the judges and law lords of 
 England declared that they were not worth a straw, 
 but which, if they had remained unrepealed upon 
 the record of the original prosecution, would have 
 left all future public discussion in Ireland altogether 
 at the mercy of the Crown. It would be easy 
 enough to amplify this comparison to a much greater 
 extent ; but our limits prevent us from carrying 
 that part of the case any farther at present. 
 
 As the facts connected with the progress of the 
 trial itself received more of the public attention, 
 and were more distinctly perceived and more cor- 
 rectly appreciated, than the subject matter of the 
 prosecution, or the principles and consequences 
 which were involved in its form, character, and 
 conduct, we shall not enter at any great length 
 upon the actual occurrences of the trial itself ; we 
 shall merely glance at the most prominent points 
 of the transaction, for the purpose of showing 
 the general spirit which actuated the Court and 
 the prosecutors throughout, and of exhibiting to 
 the people of England the course of proceeding 
 which was adopted for the purpose of repressing 
 the loud complaints which have been so continually 
 made in Ireland of the manner in which justice is 
 administered in some at least of the tribunals to 
 one class of the population of that country. 
 
 Having already examined at some length the 
 
117 
 
 character of the indictment itself, we shall in this 
 place recur to only the charge contained in the 
 sixth and seventh counts, in which it was attempted 
 to establish the monstrous doctrine, that to induce 
 large numbers of persons to assemble together and 
 represent themselves as being favourable to a change 
 in any particular law is an indictable offence in an 
 individual, and that if two or more persons unite 
 for the attainment of such a purpose, they are 
 guilty of a conspiracy. If this M damnable doctrine 
 and position " had been established in the law of 
 this country, not only all hope of amendment in 
 every part of the institutions, but every manifesta- 
 tion of public opinion upon the subject, must 
 hang altogether upon the caprice of the Govern- 
 ment for the time beine. Yet the ministry and 
 the law officers of the Crown, who attempted to 
 establish this doctrine, have the hardihood to boast 
 that in the course which they adopted upon this 
 subject they kept within the bounds of the common 
 law, and stood upon the ancient ways of the consti- 
 tution. Where is there in the common law a pre- 
 cedent for the sixth and seventh any more than 
 for some other counts of the indictment in The 
 Queen r. O'Connell ? The slightest, merest, most 
 superficial inspection is sufficient to show that 
 every one of the common law u authorities n relied 
 upon by the prosecutors and the Court in support 
 of that part of the indictment which relatpd to 
 the meetings gave the most express contradiction 
 
 h 3 
 
118 
 
 to the assertions in support of which they were 
 adduced: and the single circumstance of laying 
 down in Ireland, upon the authority of Mr. Baron 
 Alderson, a position which Mr. Baron Alderson 
 himself, in conjunction with all the judges and law 
 lords in England, repudiated afterwards in England, 
 is a type and sample of the conduct of the Court and 
 of the Crown throughout the whole of the proceed • 
 ings. The Solicitor General is reported* to have 
 stated " that the indictment in the Queen v. Vin- 
 " cent f was verbatim the same as the present." 
 It seems to be true that in that indictment the first 
 count to which the Solicitor-General probably con- 
 fined the comparison, and which is given in a general 
 form in the Report, resembles a portion constituting 
 one fifth of the first count in the Queen v. O'Connell. 
 In this count four overt acts were charged. But the 
 second count was for conspiracy to procure large 
 numbers to meet " for the purpose of exciting terror 
 " and alarm in the minds of the Queen y s subjects, &c, 
 " and to annoy, alarm, disturb, and prejudice divers 
 " subjects in ihepeaceable enjoyment of their property" 
 The third count was for an unlawful assembly. 
 The superintendent of police deposed upon the trial, 
 that several persons called upon him, and com- 
 plained that they " were alarmed at the meetings, and 
 u requested him to send for military assistance." 
 The report of Messrs. Armstrong and Trevor | 
 represents the Solicitor General as stating in the 
 
 * Flanedy, p, 414. f 9 Car. & P. 275, t Page 685, 
 
119 
 
 same place, that in the case of The Queen v. 
 Shellard (9 Car. cj* P. 277.) the indictment was 
 " like the present," i. e. like that of The Queen v. 
 O'Connell. The indictment in the former case 
 charged in the first count a conspiracy " to make 
 " insurrections, riots, and routs, &c, to prevent 
 " the execution of the laws, &c, to procure arms for 
 " carrying the conspiracy into effect, and that, in 
 " pursuance of the conspiracy, the defendants, with 
 " divers others, riotously and routously assembled, 
 " armed with guns, and while so armed made a great 
 " riot and rout, and attacked and broke open divers 
 u dwelling-houses of the liege subjects of our Lady 
 M the Queen, and wounded divers of the said subjects 
 u and took from them divers quantities of arms." The 
 second count was for making an insurrection ; and 
 the third count was for a riot. Such are the cases 
 which were used for the purposes of analogy and 
 comparison upon the trial of Mr. O'Connell ! ! 
 
 But every step in the cause, from the original 
 beginning to the final conclusion, exhibited the 
 spirit in which the prosecution was conducted. The 
 grand jury having come into court for the purpose 
 of stating that an error had been made in the fourth 
 count of the bill, by substituting the name of Mr. 
 Tierney for that of Mr. Tyrrell throughout that 
 count, the Chief Justice enquired whether any of 
 the counsel of the traversers were present. Mr. 
 M'Donogh, Queen's Counsel, answered that he ap- 
 
 h 4 
 
120 
 
 peared upon the part of Mr. Tierney.* The At- 
 torney General objected to his addressing the Court 
 on the ground that he had not obtained a licence 
 from the Crown to defend the traverser ! This un- 
 paralleled piece of forensic meanness was immedi- 
 ately nullified by the declaration of the agent, 
 that the licence, which is as much a matter of 
 form as the wearing of a wig, had been obtained. 
 Mr. M'Donogh, having thus got over this extra- 
 ordinary objection, proceeded to make an obser- 
 vation upon the subject of the error which had 
 been stated by the jury to the Court. The 
 Attorney- General then changed his ground, and 
 objected to any counsel addressing the Court 
 upon the subject of the error at the present stage 
 of the proceedings; after which he immediately 
 went on himself to address the Court upon the 
 s abject in question, upon which he had said that 
 no address ought to be heard ! 
 
 An application was made upon the part of the 
 defendants, and opposed by the Attorney Gene- 
 ral, for a copy of the caption, which accord- 
 ing to Lord Holt is necessary, in order to enable 
 a defendant " to advise with his counsel as to the 
 " plea to be pleaded." And, according to Sir 
 Michael Foster, is " as necessary to enable him to 
 " conduct himself in pleading as the copy of the 
 
 * So printed in the report of Messrs. Armstrong and Trevor. 
 This must, however, be a mistake, as Mr. Tyrrell must have 
 been the party for whom Mr. M'Donogh appeared. 
 
121 
 
 " indictment itself." If the indictment against 
 Mr. O'Connell had been found at the assizes, and 
 removed by certiorari into the Queen's Bench, the 
 caption would be actually added to the indictment 
 by the officer, of his own mere motion, and as a 
 matter necessary to the completeness of the record. 
 W hat motive the Government could have for re- 
 fusing a copy of the caption, if they sincerely 
 nu ant to give the prisoners a fair and impartial 
 trial, as we are bound to presume that they did, 
 it is impossible for us to imagine, and it would be, 
 therefore, useless to dwell any longer upon the 
 point. The application was refused by the Court ; 
 the Chief Justice making the extraordinary alle- 
 gation that it had always been the practice of the 
 Crown Office in England never to grant a copy of 
 the caption along with a copy of the indictment! 
 Every body acquainted with such matters in this 
 country is aware that the practice here is diametri- 
 cally opposite to that which the Chief Justice asserted 
 it to he; whilst it appears upon the face of the 
 Report that no step whatever had been taken by the 
 Chief Justice for the purpose of receiving any in- 
 formation from the Court of Queen's Bench or the 
 Crown Office in England upon a subject which 
 was so decidedly, but of course unintentionally, 
 misrepresented by his Lordship. It is an indu- 
 bitable fact, and a notorious one, that anybody 
 applying at the Crown Office in London, for a 
 copy of an indictment, obtains a copy of the 
 
122 
 
 caption without asking for it, and as a matter of 
 course ; and that that is the reason why no motion 
 is or can be ever made in court upon the subject 
 in this country ; the matter being in fact here 
 attainable without any motion at all. 
 
 An application upon the part of the defendants 
 for a list of the witnesses, was also refused by 
 the Court. With regard to this matter, as to the 
 former, the Chief Justice expressly stated, what is 
 most undoubtedly contrary to the fact, that it is the 
 practice in England not to grant the information 
 in question. We take upon ourselves to affirm, 
 on the contrary, that the usage of the Crown 
 Office in England is to grant, upon request, and as 
 a mere matter of course, a copy of the whole in- 
 dictment at once, — back and front, bill, caption, 
 memorandum, witnesses, and all. 
 
 The statements of the Chief Justice upon these 
 points are truly extraordinary. He first asserts, con- 
 fidently, that the practice of the English Crown Office 
 is not to give the list of witnesses, or a copy of the 
 caption, and this he asserts in a manner from which 
 one would be naturally induced to conclude that 
 he had received some authentic or official inform- 
 ation upon the subject. When a London attorney 
 makes an affidavit of the practice of the Crown 
 Office upon the point, the Chief Justice objects 
 that the attorney is not an actual officer of the 
 Crown Office ! He then contends that at any rate 
 the practice of the office in England had never 
 
123 
 
 been brought under the notice of the Court in 
 England : from which it was of course to be in- 
 ferred that he considered that the practice of the 
 office was not binding, unless it received the ex- 
 press and deliberate sanction of the Court. He 
 says at the very same time that the practice of the 
 Court is the law of the Court, and upon this 
 principle he decides the application before him 
 upon the authority of his own officer as to the 
 practice of the office ; and he finally concludes 
 by saying, that even if the practice in England 
 should be to give the copies in question, (after 
 he has expressly and repeatedly declared — but 
 incorrectly — that the practice here was not to give 
 the documents,) he would yet abide by the negative 
 practice in Ireland, which is as contrary to com- 
 mon justice as it is to the common law, and to the 
 indubitable positive practice in England. He declares, 
 contrary to the well-known fact, that the law of the 
 Court in England is not to give the documents. 
 He then is informed, upon affidavit, that his opi- 
 nion is unfounded. He says that there ought, be- 
 sides the affidavit, to be a certificate from the 
 Crown Office. The defendants then offer to refer the 
 whole question to be decided by such certificate ; but, 
 without waiting until such a document could be pro- 
 cured, he decides the case against them; and he says, 
 at the same time, that if the certificate should be in 
 opposition to his oiun views, he would not abide by it: 
 so that there was no possible contingency in which the 
 
124 
 
 defendants could have obtained, upon application to 
 the Court of Queen's Bench in Dublin, a copy of the 
 caption, or of the list of witnesses, both of which 
 
 THEY WOULD OBTAIN IN LONDON AS A MATTER OF 
 COURSE, IN THE OFFICE, WITHOUT ANY MOTION AT 
 ALL TO THE COURT. # 
 
 With regard to the list of witnesses, the reason- 
 ing of the Irish Chief Justice appears to us to be 
 most extraordinary. He said that the real strength 
 of a man's defence consisted in his innocence, and 
 not in his knowirig the persons who were coming to 
 prove his guilt. If this very original principle were 
 to have any influence in practice, it must operate to 
 the extent of inducing every man to take no trou- 
 ble about answering any criminal charge ; and, in- 
 stead of " putting himself upon a jury of his coun- 
 " try," and taking human measures for his defence, 
 
 * If the reader will take the trouble to turn to the opinions 
 which the Lord Chief Justice of England afterwards delivered 
 in the House of Lords upon the part of all his judicial brethren, 
 upon the error assigned by Mr. Steel, in reference to the subject 
 matter of the plea in abatement («), he will see that the English 
 judges expressly assume that the defendants had received, 
 before the trial, a list of the witnesses who had been examined 
 before the grand jury, and that they make such assumption the 
 foundation of part of their reasoning upon the subject. The 
 propriety of giving or not giving the list was not argued before 
 the English judges at all, as that question was not upon the re- 
 cord ; but those learned persons took for granted, as a matter of 
 course, that the names of the witnesses would in Ireland, as in 
 England, be given to the defendants for asking, or without. 
 
 (a) Infra, p. 242. 
 
125 
 
 to leave his case altogether to the justice and mercy 
 of the Almighty God. If this kind of argu- 
 ment had been used by the late Chief Baron Joy, 
 after his return from Constantinople, it would be 
 said that he had adopted it from the Turks, who 
 attribute every individual occurrence to the im- 
 mediate interposition of an antecedent, ever active 
 destiny, and look upon all human interference as 
 an impertinent intrusion into the department of 
 Divine Providence. But even Turkish theology 
 is not exactly the worst part of the sentiment, as . 
 will immediately appear from the other portions 
 of the Chief Justice's statement. Speaking of 
 this application of the defendants, he says, — 
 " To enable them to plead to the charge which 
 " appears upon the face of the indictment, that 
 " which does not so appear need not be furnished." * 
 {The names of the witnesses are written upon the 
 back.) The learned, temperate, and impartial 
 Chief Justice proceeds to say, "Why are they to be 
 " furnished with the names of the witnesses ? Their 
 " defence, if ANY they have ! ! ! does not depend 
 u upon the names of the witnesses, but upon the 
 k - nature of the charge. "f " The defendants are 
 " not a whit benefited by knoicing whether the names 
 " of the witnesses are A. and B., or C. and D. ! ! " 
 Was there ever any thing more extravagant pro- 
 pounded from the bench of a Court of criminal 
 justice ? The defendant cannot be " a whit bene- 
 * Armst. & Trev., p. 40. f Ibid. 
 
126 
 
 " fited " by knowing the witnesses against him ! 
 although in consequence of such knowledge he 
 may be able to prove that the witness was unworthy 
 of belief, or was not present at the scene which he 
 describes, or was the personal and political enemy 
 of the defendant, or that he was incapable of 
 estimating accurately, or of reporting correctly, 
 the transactions to which he deposes. It would be 
 an insult to the understanding of the reader to 
 make any farther observations upon the necessity 
 and importance to every defendant of knowing the 
 witnesses by whom the charges against him are to 
 be supported. In England*, by the joint operation 
 of the statute and common law, and of the usage 
 of the administration of justice, the names of the 
 witnesses are known to every defendant as soon as 
 the indictment has been returned; and even in 
 regard to trials by court martial, it is expressly laid 
 down, that among the duties of the Judge Advocate 
 is that of giving the prisoner the earliest intimation 
 of the charges against him, and of the names and 
 designations of the witnesses by whom they are to be 
 supported. f In the present case, when the names 
 of the witnesses came to be known, after judg- 
 ment had been delivered, it appeared that three- 
 and-thirty witnesses had been examined before the 
 grand jury, and that only nine were produced 
 
 * See infra, p. 242—244. 
 
 •f Hough on Courts Martial, edited by George Long, Esq., 
 Barrister-at-law, p. 52. 
 
127 
 
 upon the trial; and that amongst the witnesses 
 produced before the grand jury, but not produced 
 at the trial, was Mr. Kemniis, the Crown pro- 
 secutor for the city of Dublin, and the Crown 
 solicitor in this prosecution itself. The importance 
 to the defendants of having an opportunity of 
 cross-examining these witnesses, and especially Mr. 
 Kemmis, upon whose affidavit the warrant was issued 
 against the defendants, is as obvious as the gross 
 want of candour and fair dealing on the part of the 
 Government in keeping back from the public inves- 
 tigation the persons whom they had used for the pur- 
 poses of the private inquisition. The Chief Justice, 
 who was continually throwing out sneers and insi- 
 nuations against the defendants, had the indecorum 
 to insinuate his disbelief in the affidavit in support 
 of the application which was made by the person 
 employed to arrange and prepare the defence of one 
 of the traversers, and who swore that he required 
 u a list of the witnesses, for the purpose of enabling 
 " the traverser to defend himself with effect."* 
 One of the judges upon the bench described this 
 deponent as " a gentleman of respectability and 
 " veracity, and above all others qualified to form 
 " an opinion upon the point." The statement 
 which was made by the deponent was obviously 
 and eminently probable in itself, and no fact of any 
 
 * The necessity of the List, and the several grounds of such 
 necessity, are stated in the fullest manner in a joint affidavit of 
 the Jive attornies for the defence, infra, page 16.5, 166. 
 
128 
 
 sort was alleged in contradiction of the statement 
 or even in diminution of its probability. Yet the 
 Chief Justice intimates that he does not believe it 
 to be true, and Mr. Justice Crampton insinuates 
 that " the parties wanted the names, not for the 
 u purpose of defence*," but for some other, to 
 which he affords no clue, except by this obscure 
 and unjustifiable insinuation. The following ex- 
 tract from the judgment of Mr. Justice Perrin f 
 affords a complete and compendious answer to the 
 whole of the observations of the other members 
 of the Court upon this subject : — 
 
 " I cannot see any good reason to refuse this ap- 
 " plication, and not to give the names of the wit- 
 " nesses endorsed on the indictment as they are 
 " now sought for. This application is perfectly 
 " distinct from that on which the former order of 
 " the Court was made. The motion on that occa- 
 " sion was to amend the copy of the indictment 
 " which had been furnished to the traversers, and 
 " it was, in my judgment, properly refused, on the 
 " ground that the names endorsed on the indict- 
 " ment form no part of it. This is an application 
 " made on the affidavit of the attorney, the gentle- 
 " man who is employed to arrange and prepare the 
 " defence, of one of the traversers, and he swears 
 " that he requires a list of the witnesses' names as 
 
 * Arm. & Trev. p. 112* 
 
 f Arm. & Trev., p. 133 * and 114.* 
 
129 
 
 " essential to, and for the purpose of enabling the 
 " traverser to defend himself effectually. I think 
 " there can be no doubt that it may be, and generally 
 " is very important to a man's defence, as well to know 
 " who his accusers are, as what the extent of the 
 " charge is ; and the statute which has been referred 
 " to, the 6 & 7 W. 4. c. 114., altering the state of 
 " the law in an essential particular, proves this to 
 " be a sound principle, and also, in my mind, fur- 
 " nishes a complete answer to a good many of the 
 " arguments which have been urged against this 
 " application. The defence may depend much on the 
 " veracity and character of the icitncsses who are to 
 " be produced on the part of the Crown. That may 
 " furnish an important ground of defence for the 
 " consideration of the traversers and those en^a^ed 
 " for them, and, as my brother Burton has ob- 
 " served, it may be very material for the traverser, or 
 " the prisoner, to know, that certain witnesses will be 
 " produced on ichose testimony he may be enabled to 
 " rest part of his case. There is another distinct 
 " reason for giving him the names of the wit- 
 " nesses. It may be important for him to know 
 " this, with a view to avoid the necessity of looking 
 " for other witnesses to support his case in that re- 
 " spect. It is not necessary for me to go through 
 " the cases or instances in which it may be, or in 
 " which it may not be, essential to the traverser to 
 " know the names of the witnesses to be produced 
 " against him, because the person who makes the 
 
 i 
 
130 
 
 " affidavit in this case is, above all other persons, 
 " qualified to form an opinion, and he has distinctly 
 " sworn that it is, according to his belief, essential to the 
 M defence of the traverser that he should be apprised of 
 u the names of the witnesses. I was surprised to hear 
 " it asserted that he did not swear that the names 
 " were not known. I cannot conceive how any 
 " gentleman of respectability or veracity could 
 " swear that it is essential to his client to be fur- 
 " nished with the names of the witnesses, if he was 
 " conscious at the time that his client knew them. 
 " I think this affidavit necessarily involves, in every 
 " well-constituted mind, a distinct denial that he 
 " does not know the names. Because, if he does, 
 " it is in my mind not only an evasion, but direct 
 u false swearing. I perceive no sound objection to 
 " this disclosure ; nor have I heard any argument 
 " which has satisfied me that it is desirable that 
 " the witnesses' names should in general be sup- 
 " pressed. No special objection has been sug- 
 " gested at the bar in this particular case. I before 
 " adverted to the 6 & 7 W. 4. c. 114. : it does 
 " not show to me any objection nor any incon- 
 " venience that would arise from furnishing the 
 " names of the witnesses sought. By that statute 
 u the party accused is entitled to the names and 
 " depositions of all the witnesses sworn before 
 " he was held to bail or committed. I can see no 
 " inconvenience, but a distinct reason for giving 
 u him the names of the witnesses upon the indict- 
 
131 
 
 " ment, for the purpose of informing him whether 
 " he is to make his defence against the depositions 
 " alone, or whether any additional proof has been 
 a given before the Grand Jury. It appears to me, 
 " therefore, that there is no sound objection in 
 u general to such a course of proceeding. 
 
 " It is said there is no practice in this country to 
 u give a list of the witnesses ; or that the practice is 
 " the other way. I cannot find any instance in which 
 u the names of the icitnesses were ever ref used ; and, 
 " if they were never refused, it follows that there 
 " was no necessity for making the application. So 
 " that, with respect to that observation, it may be 
 M taken that there is in this country no fixed or 
 " settled practice on the subject. But it does ap- 
 " pear to me, on the best consideration that I can 
 " give to the documents which have been laid 
 " before us, supported, as I think they are, by the 
 M case to which the Attorney-General referred, 
 " Rex v. Gordon, that the practice in England is to 
 u give the names of the icitnesses endorsed on the in- 
 " dictment in cases of misdemeanor. I think it is 
 " impossible to doubt that such is the practice there, 
 " especially as it is not suggested on the other side that 
 " the practice is otherwise ; and, therefore, I must 
 " take it that, if this application was made at 
 u "Westminster Hall, it would be granted. The 
 M common law of England is the common law of 
 " Ireland, where the latter is not altered by sta- 
 " tute ; and I think that should be relied on rather 
 
 i 2 
 
132 
 
 " than any unascertained and unpublished practice 
 "here." 
 
 Upon this point it may be desirable to cite the 
 authority of Darcy, an Irish lawyer of great emi- 
 nence, who was chosen prolocutor in the conference 
 between the Irish Lords and Commons, to explain 
 the reasons of the celebrated questions proposed to 
 the judges in that country in 1641, and to urge 
 the insufficiency of the answers which had been 
 returned by the judges. The argument which Darcy 
 addressed to the conference was ordered by the 
 House of Commons to be printed.* In the course 
 of itf he referred to a case in the Year Books, 
 Pasch. 18 Jac, upon a question as to the power 
 of the Queen's Bench in Ireland to change the 
 common-law practice upon the subject of pleading. 
 In reference to this case Darcy observes that no 
 course of practice in the Queen's Bench in Ireland 
 can alter the law, and that a declaration therefore 
 by the Irish judges contrary to the law of England 
 was void. The decision of the Irish Court was 
 reversed, and the Chief Justice of the Queen's 
 Bench in England, the predecessor of Lord Denman, 
 said that if they did not in Ireland know how to 
 proceed according to the common law they must 
 learn it. " And so," says Darcy, " I conclude that 
 " the answer of the judges to the question is insuf- 
 
 * We cite from a copy printed by Thomas Bourke, Water- 
 ford, 1643, and reprinted in Dublin in 1764. 
 f Page 74, 75. 
 
133 
 
 M ficient." He afterwards observes, " Innovations 
 " in law creep in slily and slowly, pleading in the 
 " end a saucy and usurped legitimacy by uncon- 
 " trolled prescription." 
 
 " The contest, 1 ' says Leland, " was closed by a 
 " solemn determination of the House of Commons 
 " on every separate article in which the rights 
 u of Irish subjects were stated and affirmed with 
 u strength and precision, and all the powers assumed 
 " by the late administration (that of Strafford), 
 " all irregular and illegal practices introduced by 
 " public confusion and sanctified by custom, were 
 " condemned explicitly and severely." The whole 
 proceedings concluded by an impeachment of the 
 Chancellor, the Chief Justice, and the other persons 
 who had been instrumental in causing the opinions 
 in question to be given* 
 
 * Before we finally take our leave of this part of the case, it 
 may be desirable to refer to the case of The Queen v. Gordon, 
 which was the principal authority relied upon by the Attorney- 
 General, in opposing the application for a list of the witnesses. 
 As the case is short, it is copied verbatim, from vol. xii. of the 
 Law Journal Reports, New Series, Magistrates' Cases, 84. The 
 report is in the following words : — 
 
 "the queen AGALN'ST Gordon and others. 
 " W. H. Watson applied for a rule, calling upon the prosecutor 
 " to show cause why he should not deliver to the defendant, 
 " Gordon, the additions and places of residence of several wit- 
 " nesses named on the back of the indictment which had been 
 " found against the defendants for a conspiracy. The affidavit of 
 " Gordon stated that several perso?is were named on the back of 
 " the indictment of whom he had not the slightest knowledge, 
 
 i 3 
 
134 
 
 With regard to the plea in abatement we must 
 refer the reader to page 238, infra, where that 
 
 " and who, as he believed from circumstances mentioned in the 
 " affidavit, were witnesses suborned for the purpose of con- 
 " victing him by perjury, 
 
 "Mr. Justice Patteson : I never heard of any application of 
 " this kind, although similar difficulties must have occurred be- 
 " fore ; nor do I think that the Court has the power to grant 
 " the application* — Eule refused." 
 
 Any person acquainted with the nature of the application 
 made, upon the part of Mr. Duffy, will see, by a mere glance at 
 the words which we have marked in italics, that the case of The 
 Queen v. Gordon is so far from being an authority for the re- 
 fusal which has been given by the majority of the Court of 
 Queen's Bench in Dublin, that it actually demonstrates that the 
 application ought to have been granted. The application of 
 Mr. Watson was, that the prosecutor of the indictment may be 
 directed to furnish the additions and residences of several of 
 the witnesses whose names were on the back of the bill ; but 
 who were sivorn to be personally unknown to the defendant. 
 The application of Mr. Duffy was, that the officer of the 
 court should give a list of the names only of the witnesses. 
 Gordon was so far from wanting a list of the names, that 
 his affidavit actually stated that he had it already. It was 
 because he had the list of the names that he was in a con- 
 dition to make the application for the addresses. If Gordon 
 had not a copy of the list — if he had not the information 
 which was vainly applied for by Duffy — he could not have 
 sworn that the names were those of persons who were to him 
 altogether unknown. The application of Gordon was for the 
 addresses and residences, which never appear upon the bill. 
 The application of Duffy was for the names, which invari- 
 ably do. The application of Gordon was, that the Court would 
 compel the prosecutor, over whom it had no direct or immediate 
 control, to give information, which the prosecutor himself, in 
 the ordinary course of business, had a right to withhold. The 
 application of Duffy was, that the Court would command its 
 own officer to furnish to the accused party the names of wit- 
 
135 
 
 matter is treated at length in reference to the judg- 
 ment of the English Judges upon the point. 
 
 "We come, in the next place, to the challenge to 
 the array — a subject of the most transcendant 
 importance, which has been treated in the House 
 of Lords, by Lord Denman, in so masterly, so 
 dignified, and so overpowering a manner, that 
 we should be guilty of the most presumptuous 
 folly if we thought it possible for us to add any 
 force t<» an argument which has annihilated all 
 opposition and even all doubt upon the subject, 
 and which exhibits every admirable quality which 
 the noblest sentiments and greatest abilities could 
 collect within the limits of such a composition. It 
 is unnecessary to introduce this luminous judgment 
 by any antecedent statement of the facts, out of 
 which arose, as they are all, as far as they are ma- 
 terial to the decision, most perspicuously stated by 
 the noble and learned Lord himself. The Lord 
 Chancellor having moved that the judgment of the 
 Queen's Bench be confirmed, and Lord Brougham 
 having seconded the motion, 
 
 ?iesses against him from the back of the act of accusation, wlicrc 
 they appeared as a matter of course" 
 
 Such is the authority upon which Mr. O'Connell was refused 
 a list of the witnesses against him. Such the very comical 
 analogies upon which justice is administered in Courts, the 
 endeavour to bring which into contempt is an indictable mis- 
 demeanour! 
 
 i 4 
 
136 
 
 Lord Denman rose and said,— 
 My Lords, 
 
 In considering the important questions which 
 are involved in the case now before your Lordships, 
 it appears to me convenient to advert in the first 
 place to that which has been last argued by my 
 noble and learned friend who has just sat down. 
 I mean the objection to the judgment given by 
 the Court below, allowing the demurrer to the 
 challenge to the array. I am induced to begin 
 with this subject, not only because it is preliminary 
 in the course of the proceedings, but because I 
 think it is important, to a degree which does not 
 admit of exaggeration, to the administration of 
 justice throughout the United Kingdom; and that, 
 if it is possible that such a practice as that which 
 has taken place in the present instance should be 
 allowed to pass without a remedy (and no other 
 remedy has been suggested), trial by jury itself 
 instead of being a security to persons who are ac- 
 cused, will be a delusion, a mockery, and a snare. 
 
 The traversers have challenged the array, on 
 account of the fraudulent omission of sixty names 
 from the list of jurors of the county of the city 
 of Dublin. The Attorney General demurs to that 
 challenge, ad?nitting thereby that that fact has 
 taken place. It appears to me that that challenge 
 ought to have been allowed : that was the opinion 
 
137 
 
 of one of the learned judges of the Court of Queen's 
 Bench in Dublin ; an opinion stated by him with 
 the diffidence which becomes one who differs from 
 his brethren, but at the same time stated with 
 firmness and perspicuity, and for reasons which, I 
 venture to think with great confidence, received no 
 kind of answer from the learned judges who formed 
 the majority of that Court. Speaking with the 
 same diffidence, I disagree with the opinion which 
 then prevailed. I think that the principle laid down 
 in that opinion is not correct. I think that the 
 principle of challenge to the array is not confined 
 to the narrow issue, whether the sheriff has done 
 wrong, but involves that larger question, whether 
 the party has had the security of trial by a laufid 
 jury of his country. 
 
 When the judges are consulted by this House 
 upon any case submitted to them, it is not usual 
 for such judges as have the honour of a seat in 
 your Lordships' House to attend their consultation ; 
 but I was so much struck with the immense im- 
 portance of this present question, and so entirely 
 unconvinced by the reasoning of the learned judges 
 in Dublin, that I felt a strong desire to ensure the 
 benefit of a full discussion of that point, and I 
 accordingly wrote to my brother Coleridge, several 
 weeks ago, thinking that he would attend that 
 consultation, and would submit that point to the 
 learned judges. Most unfortunately, however, he 
 
138 
 
 was prevented by illness from leaving his room, 
 but he wrote his opinion upon the whole subject; 
 sending one copy of it to the Lord Chief Justice, 
 and another to myself. 
 
 "Taking," says he, "the facts from the chal- 
 " lenge of one of the traversers, and dismissing all 
 " other knowledge, it must be admitted, that the 
 " recorder has sent no general list, as required by 
 " the statute, to the sheriff ; that by some persons 
 " unknown a spurious list has been transmitted, 
 " omitting the names of many qualified special 
 " jurors ; that this has been done fraudulently, 
 " with intent to prejudice him upon his trial ; 
 " that from that spurious list the jurors' book 
 u and special jurors 1 list have been made, and 
 " the present array selected ; and that the tra- 
 " verser himself is wholly unparticipant in this 
 " fraud, and protested against the array being 
 " constituted from the list so framed. Here," 
 he proceeds, " is a confessed and serious wrong; 
 " and the only question is, whether a challenge to the 
 " array be the proper remedy. It is said, first, that 
 " the sheriff is not in default ; and, secondly, that 
 " if the challenge be allowed, no better materials 
 " can be found for the array, for the book now 
 " formed is by law the book from which any other 
 " jury must be selected. With great deference, I 
 " submit that neither of these is an answer. Sup- 
 " pose at common law a challenge to the array,"- — 
 
139 
 
 and then lie puts a particular case, in which the 
 sheriff may have made an imperfect array, and yet 
 not have been guilty of any default at all ; and he 
 says, " yet I apprehend the array would have been 
 " quashed. So here, the sheriff may not be in 
 " default, but still, if the materials for a jury have 
 " an inherent defect in them, the defendants are 
 " not to suffer, but the challenge ought to be 
 " allowed.'" Then he answers the second argument 
 by observing, " The only consequence is, that the 
 "trial may remain untaken;" and he expresses 
 in strong language his own opinion, that far better 
 it were that no trial should be taken under those 
 circumstances than that it should be taken subject 
 to the heavy suspicion which these facts must involve. 
 " That the fraud is not charged upon the prosecutor 
 M is, in a criminal question, quite immaterial. 11 
 
 On Monday, 1 found upon my table, on my 
 return home, another letter from my brother 
 Coleridge, written the day before. I had stated to 
 him my general views upon this subject, and in 
 this second letter, after repeating what he had be- 
 fore said, that he thought the argument in favour 
 of overruling the demurrer was too technical for 
 the decision of a great constitutional question, and 
 stating again the view he took of the balance of 
 conveniences, he says this, — the note is written by 
 his son, as he himself unfortunately is not at pre- 
 sent able to write, — " He is much struck by what 
 
140 
 
 " you have written on the question of challenge, 
 " and at present, like your Lordship, awaits the 
 " better arguments that are to be adduced on the 
 " other side." 
 
 Now I have a right to state, that I do not stand 
 in the unfortunate position of being alone among 
 the judges, in not thinking that any thing may be 
 done with any panel out of which a jury may be 
 drawn, and that there is no redress for the injury 
 which may be so inflicted. I venture also to think, 
 as I believe my learned brother Coleridge will 
 think, those better arguments have not yet been ad- 
 duced. 
 
 My Lords, the next point is— that upon which 
 both my noble and learned friends have proceeded, 
 namely, that the principle of a challenge to the 
 array is solely for unindifferency or misconduct on 
 the part of the sheriff. The judgment that I have 
 formed, and in which my brother Coleridge states 
 very clearly his agreement, upon the present state 
 of the law is this : that that which was the single 
 duty of the sheriff in former times — to collect the 
 names, to determine who were fit to be the jury, 
 and afterwards to enter them on the panel, — that 
 all those duties, which belonged to the sheriff alone, 
 by the late act of parliament are divided in Ireland 
 between the tax collectors, in the first place, the 
 quarter sessions, that is, on the present occasion, 
 the recorder of Dublin, in the second place, and 
 
141 
 
 the sheriff, in the third place. The ground of 
 challenge to this array was, that after the re- 
 corder had exercised his judicial functions, after 
 he had determined, " This shall be the list for 
 M the county of the city of Dublin for the en- 
 " suing year," somebody else had said, " This shall 
 " not be the list ; that is the list, and that shall be 
 u taken, and that shall become the jurors' book." 
 The handing over the perfect list by the recorder 
 to the sheriff is a ministerial act, but that mini- 
 sterial act has been imperfectly, or rather not at 
 all, performed. The challengers say, " You have 
 M deprived your own judicial act, which has been 
 u properly performed, of the weight of authority to 
 u which it was entitled ; you yourself have handed 
 " over a list which has made the book imperfect, 
 " and therefore we contend that that is no book." 
 
 My Lords, I cannot help believing that if that 
 view of the case, which my brother Coleridge states 
 far more forcibly than I can do, had been presented 
 to the learned judges at. their consultation they 
 would have thought it an argument at least worthy 
 of consideration. I think they would not have held 
 it sufficient to say in answer, " We find in Lord Coke 
 " that it is only in respect of a default by the 
 " sheriff that a challenge can be made." The 
 sheriff was then the only officer entrusted with the 
 return of juries, except the bailiff of a franchise, 
 who is an officer strictly analogous. Then who 
 
142 
 
 is the returning officer at present ? Why the re- 
 corder is the returning officer for this purpose ; 
 and, in my opinion, the recorder, though without 
 the slightest imputation upon his motives, which 
 is disclaimed by all, was guilty of a default when 
 he handed over to the sheriff, as the list to make 
 the jurors' book, that which is not the list required 
 by law, and with respect to which the recorder 
 himself had declared that that shall not be the 
 list, but that another shall. He indeed is free 
 from all suspicion, but he has power to indulge the 
 grossest partiality ; and if he were justly suspected 
 of it, the general argument would leave the de- 
 fendant without any protection against its effect. 
 
 I also differ from him and from my noble and 
 learned friends who have addressed you this morn- 
 ing in what they have stated as to the consequences 
 which are likely to ensue. The learned Lord Chief 
 Justice says, " No object or advantage could have 
 u been gained if the challenge had been allowed ; 
 " for, if the challenge had been allowed, the jury 
 " process would have been directed to some other 
 " officer." Now there I venture to think that there 
 is a mistake. The default is not that of the sheriff, 
 and therefore the duty of making the return would 
 not have been taken from the sheriff. The default 
 is either in the recorder, or in the clerk of the 
 peace who acts for the recorder, and who sends to 
 the sheriff an incorrect list. There would, there- 
 
143 
 
 fore, be no reason whatever for depriving the sheriff 
 of his right to return a second jury if the first 
 were set aside on this objection. A venire facias 
 de novo might now issue, if this were the only ob- 
 jection ; and at this very moment the book may be 
 found perfect, notwithstanding the mutilation that 
 it underwent in the mean time, or circumstances 
 may arise to deprive these defendants of the right 
 of challenge. AVhat may occur in the course of 
 pleading upon any future challenge to the array I 
 know not, and have no right to conjecture. 
 
 The act of parliament expressly provides for the 
 want of the jurors' book being returned. My noble 
 and learned friend on the woolsack meets that by 
 saying, u Here is a book returned ;" but what is the 
 book returned ? The act of parliament requires 
 that a book shall be returned which is correctly 
 made up from the list ; but the book which has been 
 returned is a book incorrectly made up from the 
 list. It is said on the one hand, " AVhat ! if there 
 M is a single defect, is that to vitiate the whole ?" 
 And there I think the learned Lord Chief Justice 
 has fallen into a mistake, which probably would 
 have been corrected if this opinion, proceeding from 
 so humble an individual as myself, had been thought 
 worthy of discussion at their meeting and of a more 
 specific answer here. He says, " If in England, 
 " through accident, carelessness, or design, a single 
 " name had been omitted in the list delivered to the 
 
144 
 
 " clerk of the peace, according to the argument the 
 " whole book would have been vitiated." I beg leave 
 to question that altogether, because all that is done 
 previously to the decision of the quarter sessions is 
 referred to that decision ; that decision is in itself 
 judicial, and makes the book from which I say that 
 the parties had a right to have their jury selected. 
 
 When this argument, to which great force was 
 given in Ireland, was stated at the bar in this 
 House, the reductio ad dbsurdum was encountered 
 by an opposite one of much greater extent ; for the 
 argument was, " If I am unreasonable, and if the 
 " consequence is very inconvenient of saying that the 
 " omission of a single name shall vitiate the whole 
 " book, and make it a different book, what is the 
 " effect of omitting sixty names? — what is the effect 
 "of omitting 600 names? — because either of those 
 " is equally beyond the reach of question, unless this 
 " mode of questioning is to prevail. 1 ' My Lords, I 
 admit the inconvenience may be very great upon a 
 single occasion, that parties shall not be tried out 
 of any book that the sheriff has received. But let 
 me here observe also by the way, that the decision 
 in the case of The Queen v. O'Connell is no decision 
 upon any other case. If the other parties who 
 have issues to be tried are satisfied with the jury- 
 book as they find it, we may be sure that they will 
 not challenge ; but if they do, and if a true jury- 
 book has not been returned for that year, the law 
 
itself provides that the former jury-book shall be 
 resorted to. And this is the law of England, as 
 well as the law of Ireland, which follows it as 
 closely as the different circumstances of the two 
 countries will permit. My Lords, my learned bro- 
 ther the Lord Chief Justice supposes that the omis- 
 sion of one name from the unre vised lists would, 
 on my argument, destroy the array. With great 
 submission I think I have shown the contrary, and 
 that probably no inconvenience would arise from 
 holding it to be vitiated by the fraudulent abstrac- 
 tion of many names after the lists have been ad- 
 judged upon and signed. / humbly ask, what 
 balance is there between the two sets of inconvenient 
 consequences ? Is it not right to hold the public 
 officer to the strict and faithful discharge of his easy 
 duty ? Can any thing be more wrong than that he 
 should enjoy full licence to tamper with those sacred 
 documents according to hi* pleasure? 
 
 Now, my Lords, what follows appears to me to 
 be of the very highest importance. That there 
 may be the greatest wrong and injury committed by 
 this very omission of names from the list is uni- 
 versally acknowledged. And the Chief Justice 
 says, ''that there must be some mode of relief for 
 " an injury occasioned by such non-observance of 
 14 the directions of an act of parliament is undeni- 
 li able.' 7 So all the judges in Ireland still more 
 emphatically assert. So says my noble and learned 
 
 K 
 
146 
 
 friend on the woolsack. So says my noble and 
 learned friend wlio has just addressed your Lordships. 
 What then is the mode of relief '? 
 
 My noble and learned friend on the woolsack 
 did certainly raise my expectations to a very high 
 pitch upon this subject. In one part of his argu- 
 ment he said, " The party is not without a remedy ; 
 " the party can set himself right. There may have 
 " been a great error, a great injury ; but there is 
 " a correction for that error, a redress for that 
 " injury ; there is a way to prevent the injustice of 
 " such a trial as the law never contemplated and 
 " would not have endured.' 1 '' Then I wanted to 
 hear from that high authority, what is that re- 
 medy ? — what is that redress ? — and what is that 
 mode of preventing one of Her Majesty's subjects 
 from being tried by such a jury as the law never 
 provided for him? 11 Oh," says my noble and 
 learned friend, " you must excuse me there. I 
 " shall put olF telling you what the remedy is till 
 " some future occasion ; " as if any occasion could 
 more pressingly require the statement. 
 
 When my Lord Chief Justice and the other 
 learned judges in England, and the learned jud,ges 
 in Ireland, and my Lord Chancellor, can inform us 
 of no remedy whatever against this, which is ad- 
 mitted to be possibly the greatest wrong, and pro- 
 ductive of the greatest confusion and interference 
 
 WHICH IT IS POSSIBLE TO CONTEMPLATE, with the Sam- 
 
147 
 
 tity of the law and the security of the subject, I 
 shall venture to go farther and declare, that, if this 
 right of challenge is gone, the law provides no remedy ; 
 but I will not believe that the law can have placed 
 its subjects in such a situation. Unless I see the 
 old and well-known constitutional practice of chal- 
 lenge to the array, founded on the principle of the 
 array being itself incorrect and injurious to the 
 party, — unless I see that ancient process directly 
 repealed by act of parliament, I will not believe 
 that that process does not still exist, and that that 
 remedy is not still preserved to the subject. The 
 absence of all other remedy in a case of such im- 
 mense importance is to me demonstrative proof that 
 that old remedy exists — that the objection has been 
 well taken — that the challenge ought to have been 
 allowed — and that the trial has erroneously pro- 
 ceeded. 
 
 My Lords, I shall keep my promise, and spare 
 your Lordships the hearing of much which I have 
 collected. But there is one thing too remarkable 
 to be overlooked. In that short passage in Lord 
 Coke, which contains the whole of the learning 
 upon this subject (Co. Litt. 156.), he cites a case 
 from the Year Books, which is twice reported, 
 once in the 17th of Edward III., and once, I be- 
 lieve, in the 20th of Edward III., though I think 
 Mr. Hill quoted it as the 50th. I could not find 
 it there, but I found it in the 20th, and I have 
 
 k 2 
 
143 
 
 it copied before me. The sheriff returned a list, 
 which the bailiff of the franchise ought to have 
 returned ; that was held to be wrong prima facie, 
 because it deprived the party of his challenge 
 against the bailiff individually. But then it was 
 argued, u Oh, but there are good names enough 
 " returned by the sheriff to ensure the party a fair 
 "trial;" exactly the argument which appears to 
 have succeeded in Dublin. But the Court held, in 
 the time of Edward the Third, that as the array 
 was one entire indivisible thing, one error would 
 vitiate the whole, and the whole was accordingly 
 set aside. In that very case the sheriff was charged 
 with unindifferency, the question of his unindif- 
 ferency was tried, he was acquitted upon that 
 charge ; and yet the fact of his having done, though 
 not with any corrupt or partial intention, that which 
 gave a different jury was deemed a default sufficient 
 to set aside the whole proceeding. 
 
 My Lords, I must not leave this subject without 
 observing yet further upon the want of other re- 
 medy. It was suggested in the course of the 
 argument here by some learned person, that 
 an application might be made to the Court. 
 What ! are the Queen's subjects to apply to the 
 discretion of the Court to have a lawful jury to try 
 them for their lives, for their liberties, for their 
 most important interests ? It is to be a thing 
 upon motion, and upon written deposition, the 
 party accused always swearing last, and after 
 
149 
 
 all, the matter referred to the discretion cf the 
 Court, the decision subject to no appeal ? But 
 in this case I hnd the judges stating that there 
 was such a motion. The motion was refused. 
 Upon what ground I do not know, for I have read 
 nothing of these proceedings but what I have seen 
 in the papers printed for our use. But, as I under- 
 stand the facts, I must take the liberty of saying, 
 that it would startle any court in England to hear 
 that such a motion as that should be refused. 1 
 cannot help thinking that the omission of sixty is 
 considerable enough to affect any party's chance 
 of obtaining a right jury. The number seems to 
 me to be a great proportion. It is obviously by 
 no means impossible that, if those sixty names had 
 appeared in the panel, the iclwle jury might have 
 been drawn from those names ; and who can tell me 
 that the effect of the evidence upon the minds of 
 the jury might not have been entirely different if 
 they had consisted of those gentlemen ? That, how- 
 ever, is a subject upon which I think I am not at 
 liberty to enter. I consider that it cannot be in- 
 cumbent upon any person to prove any other par- 
 ticular injury than simply and solely that one of 
 Her Majesty's subjects put upon his trial has not 
 had the security, which is provided for him by laiv, 
 that that trial shall be a fair one. 
 
 If this be otherwise, — if the old redress is abro- 
 gated and no new provided, — that improved law, 
 which was intended to place the construction of 
 
 k 3 * 
 
150 
 
 juries beyond all abuse and all suspicion, would 
 have the effect of securing success to the worst ma- 
 noeuvres, and of unsettling the public confidence in the 
 most important functions of justice. 
 
 The great object of improving the mode of 
 appointing juries was undoubtedly to purify the 
 practice, and prevent all tampering, and suspicion 
 of tampering, with the construction of those im- 
 portant bodies. But if the present doubt is well 
 founded, the most impure pi^oceeding might pass 
 unquestioned, the most corrupt packing of juries 
 might prevail. For though in the present instance 
 no suspicion is felt as to the motives, this argument 
 goes the length of depriving the parties of all re- 
 dress, however criminal the design may have been. 
 
 From admitting such challenge for the cause 
 stated in the present case, great inconvenience, is 
 however, predicted. The objection being to the 
 book of jurors for the current year, is supposed to 
 prevent the summoning any good jury for that 
 year. The Chief Justice observed, " This is not 
 " the case of Reg. v. O'Connell alone ; it is the case 
 " of all parties who have issues to be tried during 
 " the period for which the book is to be in force. 
 " The Court cannot set aside that array without 
 " setting aside the book itself from which all juries 
 " must come." 
 
 Taking the supposed inconvenience at the 
 highest, what are we to say of subjecting parties, 
 through any misconduct, negligence, or default in 
 official persons, to a trial by a different jury from 
 
151 
 
 that which the law provides for them. But the 
 inconvenience imagined is a chimera, if the objec- 
 tion be of such a nature as to prove that the book 
 called the Jurors' Book appears to have no title to 
 be so styled. And this appears to me to be its 
 true result ; for if the sheriff has not received the 
 book described and required by the Act, the Jury 
 Acts of both countries have met this inconvenience 
 by express enactment. And if this be considered 
 doubtful, still it may be observed, that the sup- 
 position of the Court's setting aside the book gene- 
 rally, when they give effect to a challenge of the 
 array in a particular case, by reason of the imper- 
 fection of such book, can hardlv be maintained. 
 Other parties may not challenge, notwithstanding 
 the defect, and the book actually sent by the 
 sheriff, if unchallenged, must stand good ; or they 
 might be unable to prove the facts, or might have 
 waived the objection, or be estopped from insisting 
 upon it. 
 
 Those who argue against the right of challenge 
 to the array must be content to take up a position 
 ever regarded by our Courts with the utmost jea- 
 lousy, — that here is a right which cannot be effec- 
 tuated, — a wrong without redress. Remedy or re- 
 dress there is none pretended, however defective 
 the panel may be, or from whatever cause or motive 
 the defect has arisen, unless it can be obtained 
 through the old and well-known constitutional pro- 
 ceeding of challenge to the array. 
 
 k 4 
 
152 
 
 If the law enjoins the recorder to make a general 
 list, composed of lists A, B, and C, and then to select 
 his panel from that general list, but he thinks proper 
 to compose his general list from lists A and B only, 
 is this no default ? It may be venial, — it may in- 
 volve less blame to him than to some of his subor- 
 dinates, and the Court may properly refuse to exer- 
 cise its power of punishing the officer ; but surely 
 the party who has duly complained of the evil conse- 
 quence to himself and his own security for a fair 
 trial, cannot justly have that unlawful jury forced 
 upon him. 
 
 The complaint is, that the recorder's judgment, 
 which is irrevisable and without appeal, has been 
 set at nought by the fraudulent substitution of 
 another ; that the stream of justice has thereby been 
 obstructed in its flow, and the administration of 
 the law rendered essentially different to the parties 
 traversing from what it ought to have been. 
 
 Another objection to this challenge occurred to 
 Mr. Justice Crampton, — that the panel was 
 spoiled by a stranger. " What is ground of chair 
 " lenge to the array according to law?" asks that 
 learned judge. He answers, " A challenge founded 
 u on partiality in the officers. You may challenge 
 " the return for fraud or mistake in the officer, but 
 " fraud in a stranger will not give the Court juris- 
 " diction." I certainly had thought that a fraudu- 
 lent interference with the process of the Court 
 would have given jurisdiction over the offender's 
 
153 
 
 person, and, still more clearly, over the document 
 which he had mutilated.* If not, it should seem 
 that a stranger, striking out of the reduced panel 
 of twenty-four any number of names he chose, 
 and introducing the names of others, might im- 
 pose this jury of his own fabrication as the twelve 
 men appointed by law for the trial. But if the 
 stranger's act was adopted by the sheriff, or any 
 other officer entrusted to return the jury, this 
 would be the act of such officer, in conformity to 
 what is laid down by Lord Coke, in 1 Inst. 15G., 
 from an authority in the Year Books. 
 
 For my part, I do not understand how the right 
 to challenge the array can rest on any other prin- 
 ciple than the right of Her Majesty's subjects to have 
 their interests decided by juries duly constituted 
 according to law. That jury, which was returned 
 from partiality, or imperfect through any default 
 in the sheriff, was not so constituted. On that 
 officer, and on the bailiffs of franchises who per- 
 formed analogous functions, the whole duty was 
 cast in ancient times. By the recent act it is 
 divided with other officers ; but if the panel is 
 rendered essentially imperfect by any one of these, 
 
 * "Fraud is an extrinsic collateral act, which vitiates the 
 u most solemn proceedings of courts of justice. Lord Coke savs 
 "that it avoids all judicial acts, ecclesiastical or temporal/' — 
 Unanimous opinion of the Judges delivered by Lord Chief Jus- 
 tice de Grey in the House of Lords in the Duchess of Kingston's 
 case, Smith's Lead. Ca., vol. ii. p. 431. — \_Xote by the Editor 
 of Lord Denmaris Judgment.^ 
 
154 
 
 when not exercising a judicial capacity, the sub- 
 ject loses the protection which the law would have 
 afforded him, and the principle of challenge to the 
 array applies. 
 
 During the discussion, I heard a suggestion 
 thrown out to meet the argument arising from the 
 absence of all other remedy. The party was said 
 to be at liberty to apply by motion to the Court. 
 I confess that I am at a loss to find it just or 
 reasonable to strip a party of a well-known consti- 
 tutional process, fully adequate to correct the wrong 
 and prevent the mischief, and refer him to the 
 discretion of any Court, exercised on facts brought 
 before it in the unsatisfactory form of written 
 depositions, where the accused officer has the benefit 
 of swearing last, when questions of fact would be 
 withdrawn from the tribunal established for settling 
 them, and the law would be laid down without 
 appeal. 
 
 In the present case, however, we collect, that 
 such application was actually made, and refused. 
 I must conjecture, that the facts now admitted on 
 demurrer were not well proved by the affidavits; 
 
 for IF THEY WERE TAKEN TO BE TRUE, / Can HARDLY 
 CONCEIVE A STRONGER CASE FOR SETTING ASIDE A 
 
 jury panel than that which exists in the present 
 case* 
 
 * At the moment when the Attorney General demurred to 
 the plea in abatement, the Recorder, and every other officer 
 concerned in the manufacture of the lists, were actually present 
 
155 
 
 It is said that "no particular injury is stated" 
 in the challenge. But none can be stated, nor, if 
 stated, could be proved. There are no materials on 
 which the judgment of the triors or of the Court 
 
 in court, and could of course have been examined upon the 
 facts of the case if the law officers had taken issue upon the 
 plea. Upon the part of the defendants, the matters alleged in 
 the plea are verified by several affidavits : upon the part of 
 the prosecution, the facts so alleged are confessed upon the 
 record. The law oificers, in the mean time, endeavour to con- 
 tend that their own confession, and the affidavits of the defend- 
 ants, are not sufficient to prove the actual truth of the allega- 
 tions. But they themselves absolutely prevent the possibility 
 of deciding the question of such truth by any form of investiga- 
 tion to be applied to the matters of fact, although the officers 
 who alone could give a full and authentic account of the trans- 
 action must be supposed to be all under the influence of the 
 Crown ; and although they were all actually present in court, 
 in consequence of subpoenas issued by the defendants at the 
 time when the Attorney General, instead of taking issue upon 
 the facts, tendered a demurrer to the plea upon a technical de- 
 fect in its construction, and so rendered it impossible for the 
 defendants to establish the truth of the allegations in the chal- 
 lenge by any species of judicial inquiry. This, however, is not 
 very material, as, whatever may be the effect of the admission 
 upon the record, the fact is notorious and undoubted, that the 
 jury list was illegally concocted by somebody, and that the effect 
 of the concoction, taken in conjunction with what occurred in 
 the Crown Office upon the striking was, that Mr. O'Connell, a 
 Catholic and a Repealer, was tried by a jury from which every 
 Catholic and Repealer had been struck off by the Crown, and 
 that Ins jury consisted of men almost everyone of whom was 
 so notoriously and violently opposed to him in politics and reli- 
 gion that he would have thought it a matter of discretion to 
 challenge almost each individual of the twelve if he had the 
 right to do so in law. — [Note by the Author of the present 
 Review^] 
 
156 
 
 could be exercised. The whole subject lies beyond 
 the reach of human speculation. But as long as 
 men differ in their opinions, understandings, and 
 feelings, and so long as these influence their decision 
 on disputed points of morality, expediency, and general 
 policy, so long must it be at least uncertain whether 
 the exteusion of a tolerably laege peopoetion of 
 persons from the body to which they belong may not 
 materially affect the character of its general com- 
 position, and vary the chances of their arriving at 
 such or such a conclusion. Here, if the true list 
 had been entered in the sheriff's book, it might have 
 happened that not one oe the gentlemen who tried this 
 case would have been suffered to enter the jury box. 
 The jury might have consisted altogether of indi- 
 viduals comprised in the omitted sixty, and might 
 have brought to the inquiry such sentiments and 
 habits of thinking as must have ensured the ac~ 
 quittal of all the persons under accusation.* 
 
 * The sagacity, justice, and profound sense of these obser- 
 vations have been universally admitted by " the learned fre- 
 quenters of Westminster Hall" without any exception. When 
 the judgment was, however, delivered, it was little supposed 
 that, within so short a period, so extraordinary a confirmation 
 would be afforded in fact of the accuracy of the general theory 
 of Lord Denman's judgment upon this point as is exhibited by 
 the following occurrence which took place at the annual revi- 
 sion of the jury list in 1844, one year after the transaction which 
 is the subject of the plea in abatement: — 
 
 " Edward Clarke, Esq., of Stephen's Green, claimed exemp- 
 " tion from serving, on the ground of his being an attorney. 
 
157 
 
 To disclaim any thing like an opinion that this 
 would have happened, or a suspicion of the fair- 
 
 u Mr. Clements. Were you not objected to on that ground 
 ,; last year ? I was. 
 
 " Mr. Clements. And did you not then insist upon being put 
 "on? I did. 
 
 " Mr. Clements. You succeeded ? Yes. 
 
 t; Mr. Clements. You were on 0' ConneWs jury ? Yes. 
 
 " Mr. Clements. Is it to your professional skill the public 
 " are indebted for the special pleading on the issue paper ? / 
 " cannot say. 
 
 " Mr. Clements. Now, sir, may I ask you wherefore it is 
 u that you, a retired attorney, seek for exemption now, while 
 " under identically similar circumstances last year you pressed 
 ' ; and insisted upon being on the panel ? 
 
 <; Mr. Clarke. The fact of it is, I got quite enough of it. 
 
 " The Recorder ruled that, not being an attorney actually 
 u practising, his name should remain on the list." 
 
 The indictment against Mr. O'Connell was found by the 
 grand jury upon the 8th November, 1843. The revision of the 
 jury list by the Recorder was commenced upon the 14th of the 
 same month, and the trial began upon the second day of the 
 ensuing term. Mr. Edward Clarke was the second person who 
 answered to his name in court, upon the calling of the special 
 jury, and exercised, in all probability, some considerable influ- 
 ence over his fellows as to the substance of the conclusion at 
 which they arrived, and the form in which they expressed it. 
 Mr. Clarke is a decided political and religious opponent of 
 Mr. O'Connell, and as scon as the prosecution was commenced 
 he insists upon his right to be placed upon the jury list, not- 
 withstanding that he was objected to upon the very ground upon 
 which he now claims to be exempted from the necessity of serving 
 for the future. He claims, in 1844, the privilege of not being 
 called upon to take his share in general administration of justice, 
 having, in 1843, insisted upon his right to perform the special 
 function of deciding upon the guilt or innocence of his political 
 opponent, about to be tried for a political offence. Can any 
 
158 
 
 ness of those by whom the cause was tried, can- 
 not be necessary. The want of all opportunity 
 and power of arriving at any conclusion upon such 
 a matter drives me to say, that there is no alter- 
 native between a list duly formed according to the act 
 and one not so formed — no middle course between- 
 what is unlawful and what right — no equivalent 
 or substitute for that security for a fair trial which 
 the law has carefully provided. 
 
 The strictness which would vitiate the whole for 
 a single omission was not formerly considered as 
 a reductio ad absurdum, but was acted upon as a 
 ruling principle. Nor will this jealousy appear 
 excessive, if we weigh the opposite inconveniences. 
 The question, rather tauntingly thrown out, " Will 
 " you set aside the whole panel because one name 
 "has been omitted ? " is surely well enough 
 rebutted by the other question, " Will you 
 " hold it good, though nine-tenths should be 
 " omitted ?" There is no great inconvenience in 
 exacting perfect fidelity and accuracy from ministerial 
 officers who have to perform an easy duty of incal- 
 culable importance to the public. Glance at the 
 
 human being, however charitable, entertain the slightest possible 
 doubt about the determination with which Mr. Clarke entered 
 the jury-box to try Mr. O'Connell? Can any person hesitate 
 to believe that other jurors entered the same box with the same 
 purpose ? Can any body entertain any reasonable doubt that 
 the jury which tried Mr. O'Connell were either predisposed or 
 predetermined to convict him, and that the trial was a mere 
 formality, and the conviction a matter of course ? — [Note by 
 the Author of the present Publication .] 
 
159 
 
 inconvenience of dispensing with those qualities in 
 their returns. At best, according to the learned 
 judges, the Court must task itself with the inquiry, 
 whether the number to which a panel may have 
 been improperly reduced was large enough to pro- 
 mise a fair trial, under all the varying circum- 
 stances of each particular case, without any means 
 whatever of ascertaining the fact. But the negli- 
 gence thus sanctioned and encouraged might be 
 assumed as the cloak of FRAUD, and woidcl infal- 
 libly incur the suspicion, and fill the minds of the 
 people with all the distrust and discontent which, we 
 can cdl remember, to have hung upon the special 
 jury system but a few years back. 
 
 Farther, it was objected that the making up 
 the lists without these sixty names, and the omis- 
 sion of them from the special jury list, is not 
 averred to have been without the consent of the 
 challengers, but only the fraudulent omission of 
 them from the paper purporting to be the general 
 list, and the array of the panel from that paper. 
 But that twofold averment, witli the fact that the 
 special jury list was made from those materials, 
 appears to me sufficient ; and when this is averred 
 to be done to the icrong and prejudice of the defend- 
 ants, I cannot think that there is any presumption 
 of their privity requiring to be rebutted by them in 
 pleading. 
 
 One more remark was, that on the challenge, as 
 pleaded, the Court could give no award — princi- 
 
160 
 
 pally, as I understood, because there is no ground 
 for punishing the sheriff or other officer. But I 
 apprehend that this notion has been already shown 
 to be a fallacy, and the same award must be pro- 
 nounced as would have been pronounced under the 
 old law, in respect to the party challenging, whose 
 prayer is that the bad array may be set aside, not 
 that the officer should be punished. If a venire 
 facias de novo could be issued, the lists signed and 
 purloined may possibly be by this time faithfully 
 copied and restored, and may compose a good 
 jurors' book ; or if, for want of them, there is none 
 for 1844, recourse may be had to that of the 
 former year. A challenge may not be taken, or 
 the facts on which it is founded may possibly admit 
 of some answer. But if from neglect of duty in the 
 officers, or any of them, it should still remain impos- 
 sible to bring a good jury into the box, I cannot see 
 that that ought to compel the accused to submit to be 
 tried by a bad one. 
 
 Thus have I set down what occurred to me from 
 recollection and my notes of the argument in the 
 House of Lords. I have since that time again 
 read over the judgments on this point given at 
 Dublin, and am much fortified in my own views 
 by Mr. Justice Perrin's concurrence and reasoning, 
 while I cannot feel that there is the least weight in 
 the opposite argument of the majority of the judges. 
 
 If I am asked how many omissions and inter- 
 polations will suffice to vitiate a return, I might 
 
1G1 
 
 perhaps decline the question as irrelevant, because 
 the number actually omitted is, at all events, so 
 considerable as to disturb the identity of the 
 return. But I would decline to answer it for 
 another reason — the impossibility of tracing the 
 operation of the faulty proceeding. The truth may 
 be that the whole Jury of twelve would have come out 
 of the rejected sixty; or the truth may be, when one 
 only is excluded, that that one entering the jury box 
 as one of the twelve to try the issues would, by his 
 influence with the other eleven, cause a different 
 verdict. But such truth can never be established 
 by evidence, nor can it be made the subject of any 
 rational speculation. The law, regardless of the 
 calculations which may be formed in various quar- 
 ters upon these doubtful probabilities, affords a 
 certain protection to all whose interests are to de- 
 pend on the verdicts of juries, by cautiously provid- 
 ing the manner in which these are to be composed ; 
 and if this protection is not secured, the parties 
 have none." 
 
 It would be quke superfluous to enter into any 
 detailed examination of the evidence which was given 
 at the trial, as we have taken the result, effect, and 
 value of it all through from the statements which 
 were made by the law officers themselves. As the 
 reader may, however, desire to see a compendious 
 representation of the actual features, character, and 
 conduct of one of the monster meetings, we extract 
 
 L 
 
162 
 
 from the testimony* the account which was given • 
 of the largest of them all, — at which 
 
 "Behemoth, biggest-born of Earth, upheaved 
 His vastness," — 
 
 by a police constable, who was despatched from 
 the city of Cork, some sixty or seventy miles, for 
 the purpose of attending it. 
 
 " James Healy, a Police-Constable, cross-examined 
 " by Mr. M'Donogh. 
 
 " You heard no expression among the people 
 " except those you stated ? No. [The expressions 
 " which the witness had stated immediately before 
 " were c God save the Queen/ or 4 The Queen, God 
 44 £ bless her.' 4 Repeal and Old Ireland/ or 4 words 
 44 4 to that effect.'] f 
 
 44 You mixed among the crowd very much that 
 day in the discharge of your duty? Very much. 
 
 " And very minutely and attentively observed 
 what was going on? Very much so. 
 
 44 You listened attentively to what was said ? I 
 44 did. 
 
 44 You mingled with the groups of people, and 
 44 attended to what they were saying ? Anything 
 " I could see or hear I noticed it. 
 
 44 And all you did see or hear them say or do 
 
 * Flan., 232, 233. 
 
 f The first resolution adopted at the meeting was one of 
 loyalty to the Throne, and a determination to uphold the pre- 
 rogative of the Crown. («) 
 
 (a) Ar. & Trev. 369. 
 
163 
 
 " was to shout for Repeal and Old Ireland ? That's 
 " all. 
 
 " Although you were there from eight o'clock 
 " in the morning until next morning ? Yes ; I 
 M was there the evening before, and all that day, 
 " and up to eleven o'clock at night. 
 
 " And you were sent specially from Cork for 
 " that purpose ; I presume it was because you 
 u were a stranger that you were selected ? That 
 " may have been the reason, but I cannot say. 
 
 u Xow, as we have what you heard, I want what 
 " you saw. Was not that a very peaceable as- 
 " sembly ? Indeed it was very much so as far as I 
 " saw. 
 
 " No riot or breach of the peace ? All teas very 
 " quiet in that respect There icas nothing wrong 
 
 " THAT I COULD EITHER SEE OR ASCERTAIN. 
 
 " When you told the Attorney-General that par- 
 " ties remained there at night, did you mean to 
 11 convey that they remained for the banquet ? 
 M Persons remained in tents and places enjoying 
 " themselves. 
 
 M In peace and quiet ? Yes, in peace and quiet 
 " as far as I could see. 
 
 " You stated that you saw bands coming from 
 u the direction of Carlo w and Kilkenny. Do you 
 " know if these were temperance bands ? I think 
 " they were. 
 
 k> Xow as you are from the south of Ireland, 
 l 2 
 
164 
 
 " you must have seen several of Father Mathew's 
 " processions ? I did, a great many of them. 
 
 " There were temperance bands at those pro- 
 " cessions ? There were. 
 
 " How many bands have you seen at one of 
 " them ? More than there were at Mullaghmast ; 
 u a good many more. 
 
 " How many ? I counted forty-five bands at one 
 " time at the great temperance procession in Cork 
 " on Easter Monday. 
 
 " And about how many persons do you suppose 
 " were there ? I should suppose about 300,000. 
 
 " Were the temperance bands who were with that 
 " meeting of 300,000 persons in uniform ? Yes, 
 " some of them. 
 
 " Had they flags or banners ? A very few, and 
 " they were small ones. 
 
 " I presume they bore inscriptions ? They did, 
 " but they were all connected with the temperance 
 " movement. 
 
 u Those processions are, I believe, common in the 
 " south of Ireland ? Very common. 
 
 " Have you been long in the constabulary ? 
 " Nearly twelve years. 
 
 u Have the people improved in their habits in 
 " consequence of the temperance movement ? I 
 " should say they have. 
 
 " Very much so ? (After a pause) — In point of 
 " drunkenness there is a great improvement among 
 " the people (laughter). 
 
165 
 
 " Were you at the great procession at Nenagh ? 
 11 I was not. 
 
 " When the bands were coming to the ground 
 " from the direction of Carlow and Kilkenny, how 
 " did they come? They appeared to be very wild, 
 " and tossed all before them. 
 
 " Were you one of the people that they tossed 
 " before them ? I was. 
 
 " But wets not all that from high fan? It was. 
 
 " Mr. O'Connell (to Mr. M'Donogh) — Ask him 
 did they injure any body. 
 
 " Did they injure any body? Not that I could 
 " see, except to knock down a couple of gingerbread 
 u stalls. 
 
 M Were there many persons there, disposing of 
 iv these things ? Several were there. 
 
 " Many people selling gingerbread? Yes, and 
 " grog and coffee, and other eatables of that sort 
 (laughter). 
 
 " Did you know any of the people who sold these 
 " papers that you bought one of? No, I did not. 
 
 " They were sold, and not circulated gratui- 
 " tously among the people ? Yes. 
 
 " You did not perceive any one giving them 
 ik away for nothing? I did not. 
 
 " 1 suppose in these large assemblages in the 
 " south of Ireland you have frequently seen per- 
 " sons hawking about ballads, and selling them? 
 " Yes. 
 
 " Do not they usually take advantage of these 
 
 l 3 
 
166 
 
 " large meetings, and hover about the precincts of 
 " them to sell these ballads? I should think so. 
 
 " They hover about the outskirts of a meeting, 
 " and endeavour to retail these things for profit ? 
 " Every place where they think they can make 
 " sale of them. 
 
 " And I believe at assizes, while the judges are 
 " sitting in the criminal courts, those ballad singers 
 " are generally to be found in the vicinity of the 
 ■ ■ courts ? I have seen them there. 
 
 " With respect to the persons that had on their 
 u hats the words 4 O'Connell's police,' I ask you, 
 " as a fair and honest man upon your oath, did 
 " not those people contribute to the preservation of 
 " the peace and order? I saw them exert them- 
 " selves. 
 
 " That is no answer. Did they clear the plat- 
 " form ? They may have intended to keep the 
 " platform clear, and to keep order about it. Heard 
 " a man, named Walsh, give instructions to the 
 " people to keep order and quietness about the 
 " platform and pavilion. 
 
 " Were they peeled wands they had in their 
 " hands? The sticks they had were smooth, and 
 " very slight. 
 
 "They were not pieces of timber? They were 
 " pieces of timber. 
 
 " Oh ! they were of course made of timber, but 
 " they were not what you called on your direct 
 " examination pieces of timber. 
 
 " Attorney- General — That was not what he said. 
 
167 
 
 k * Mr. M'Donogh — I beg your pardon, I insist 
 I am right ; he called them pieces of timber, and 
 then went on ; but it is of no consequence. 
 
 " Were you here on the entry of George the 
 Fourth into Dublin? 1 was not. 
 
 You were at Mullaghmast dinner ? I was, but 
 not all the time. 
 
 u One of the mottoes, you Sly, was, k No Soxon 
 1 (laughter) butchery shall give Wood-gout for a 
 fc repast ? 9 (loud laughter). Yes. 
 " There was something better for repast on that 
 occasion, I believe ? Some appeared not to be 
 satisfied ; the dinner appeared to be rather sho 
 " You say another motto was, 1 Ireland dragged 
 4 to the tail of another nation?' That was the 
 purport. 
 
 u Mr. M'Donogh — A good heavy load she 
 -ould have, would she not ? 
 " Mr. O'Connell — And a strong tail (laughter). 
 "Witness — There were private carriages in the 
 procession. 
 
 " Did you take down all the mottoes ? I did not. 
 
 " Why did you not take them down? Because 
 
 I thought it was no consequence. 
 
 k ' Perfectly harmless? Quite so. 
 
 u Xot material. Just so. 
 
 " Therefore you did not take them ? Just so. 
 
 " The witness then left the table." 
 
 Upon the conduct of the Government in refer- 
 l4 
 
168 
 
 ence to these assemblies, we entreat the most earnest 
 attention of the reader to the following statement 
 which appeared in the " Morning Chronicle" of 
 June the 10th, 1844. The statement is of the 
 greatest importance in several points of view, and 
 requires no commentary whatever, as it most per- 
 spicuously expresses its own meaning. 
 
 " The conduct of the Government upon the sub- 
 " ject of the Kepeal agitation appears to have 
 " equally puzzled their adherents and their oppo- 
 " nents. In the speculations which we have our- 
 " selves occasionally made upon the point, we have 
 " always been willing to admit that the Ministry, 
 " in allowing the progress of the monster meetings, 
 " may have been influenced by a desire to avoid 
 " collision, or a hope that some lucky circumstance 
 " would eventually bring those immense assem- 
 " blages to a conclusion. We were unwilling to 
 " admit the supposition that the Ministerial con- 
 u nivance was only a treacherous watchfulness, which 
 " hoped for some accidental occurrence of outrage, 
 u as a pretence for crushing the expression of public 
 " opinion at meetings which were not alleged to be 
 " illegal in themselves, even upon the very face of that 
 u indictment where they were laid as overt acts of 
 " illegality. This disposition upon our part to dis- 
 " believe in the existence of treachery in the 
 u Government, must, however, now be abandoned, 
 " upon the decisive authority of a letter, which we 
 " have received from a gentleman whom we know 
 " to be a person of high respectability, and who 
 
169 
 
 i has communicated several remarkable details 
 ' connected with the holding, as well as the 1 get- 
 ting-up' of one of the largest of the meetings in 
 ' question, which took place in Skibbereen, in the 
 ; county of Cork, about the middle of July. Pre- 
 ' vious to the convening of the general meeting, 
 1 preparatory ones were held, at the first of ichich 
 i Mr. Brew, a sub-inspector of police and a very 
 ; intelligent officer, made his appearance along 
 ' with a sergeant of the force. They were received 
 
 • with marked courtesy, had seats provided for 
 ' them, and, as the meeting had been sitting some 
 
 time before they entered the room, all the 
 previous proceeding* were detailed to Mr. Brew, 
 and the resolutions were shown to him, as well 
 as all the other documents ; amongst which was a 
 k detailed plan in writing of the manner in ichich 
 ' the district committees, about fifteen in number, icere 
 ' firmed, for the purpose of preparing the several 
 ' districts to furnish respectively their proper quotas 
 1 of men and repeal rent. This document stated 
 ' the names of the committee-men in the several 
 1 districts, and exhibited a minute and perfect plan 
 1 for the organisation of that very extensive district, 
 ' in such a manner as to secure the attendance of the 
 \ largest possible numbers at the meeting. 
 
 " Upon the breaking up of this preparatory 
 4 meeting, the committee addressed a letter to Lord 
 v Eliot, stating the fact of the attendance of the 
 
 * police, and of the mode in which they had been 
 
170 
 
 received, and stating that, although the com- 
 " mittee would on no account have uttered one 
 " syllable at the meeting and before the people which 
 " might have been even by possibility misinterpreted 
 u into a condemnation of those in authority, yet that 
 " the committee did not the less feel the impro- 
 " priety of their intrusion (though their personal 
 " conduct was most proper) ; and that the com- 
 " mittee begged to inform his Lordship that they 
 " considered such an intrusion (the meeting hav- 
 " ing been held in a room at a hotel) as altogether 
 " unnecessary, &c. 4 Now here, surely,' says our 
 " correspondent, ' was the attention of Government 
 " 4 directly attracted to the subject — and what was 
 " ' their answer? — a condemnation of the object 
 " 4 of the meeting, or of the means intended to be 
 44 4 used for the accomplishment of its purpose ? 
 44 4 No such thing. No hint, no warning, that the 
 44 4 intended meeting would be illegal if held, as an 
 44 ' undue exhibition of physical force. Nothing of 
 " 4 that, by a reply that an investigation into the 
 " 4 circumstances would be instituted.' That is to 
 " say, that the Government would inquire into the 
 " charge of improper conduct made against the 
 u police." 
 
 u Mr. Brew attended another much larger pre- 
 " paratory meeting, subsequently to the one already 
 " mentioned, but previous to the reply from Go- 
 u vernment, of which reports and returns were 
 " received from the various districts — a letter 
 
171 
 
 " from Mr. O'Connell read — and extensive arrange- 
 44 ments entered into for an immense cavalcade, &c., 
 " and yet no warning icas given to the public by 
 " the public authorities. 4 Is it too much to say,' 
 M continues our correspondent, 4 that the people 
 " 4 must naturally have concluded, that what was 
 " 4 thus known to the Government as in progress of 
 44 4 being done, and not even hinted at as criminal, 
 u 1 could not, in reality, be anything but innocent 
 " 4 when actually performed? Was it a trap? I 
 44 4 do not say so ; but it is hard to punish for acts 
 44 4 which might by a word have been prevented. The 
 " 4 Government had full notice of a monster meet- 
 44 4 ing to be held — corresponded with its committee 
 4 4 4 on the subject — not only did not express disap- 
 4 4 4 probation of the object or the means, but impli- 
 4 4 4 edly sanctioned both ; and afterwards this same 
 4 4 4 Government prosecuted for those acts as a 
 4 4 4 crime.' 
 
 44 All comment upon this communication is un- 
 44 necessary. In our opinion it completely convicts 
 44 the Government itself of that conspiracy which 
 44 the Government has untruly, and, as we have 
 44 always thought, ridiculously imputed to the 
 44 Repealers ; and we hope that some gentleman in 
 44 the House of Commons will require from Lord 
 44 Eliot an explanation of the extraordinary circum- 
 44 stances which we have stated. 
 
 " If we may judge from the tone of the only 
 44 metropolitan morning paper which represents the 
 
172 
 
 " Ministerial sentiments, we should conclude that a 
 44 mere treacherous abandonment of their duty was 
 "not the only charge to which the Cabinet were 
 44 liable upon the subject in question, but that they 
 " sought to exasperate the Irish population into a 
 44 violation of that peace which the people of that 
 " country seem so resolutely determined to pre- 
 44 serve. In the Morning Herald of Friday last the 
 " following passages occur: — 
 
 44 4 As the man of the priests and the savages, 
 44 4 Mr. O'Connell has, amid the concurrent good 
 44 4 wishes of all the rest of his fellow-subjects 
 44 4 speeding him to the gibbet, to Australasia, or to 
 44 4 a dungeon, been able to maintain a high position, 
 
 4 and to levy exorbitant tributes from men who 
 " 4 hated and yet pretended to obey him. No 
 44 4 government dared to attack him, though, in his 
 44 4 rapacious pursuit of plunder, he threatened the 
 " 4 security of the empire itself — the feeble Saurins 
 44 4 and Blackburn s quailed before the power of 
 44 4 the priests and the savages — the crafty Plunkets 
 44 4 and Pigots were only too happy to elude a grap- 
 44 4 pie with them — and in the person of Mr. O'Con- 
 44 4 nell the priests and the savages really exercised 
 4 4 4 the government of Ireland.' 
 
 44 We shall not condescend to characterise this 
 44 composition, much less to enter into any discussion 
 44 with such a person as the writer of it must be. 
 44 Our purpose in quoting it is to call the attention 
 44 of Sir Robert Peel to the subject, and to ask if 
 
J 73 
 
 M these be the means by which he proposes to calm 
 " the indignation of the Irish people, infuriated as 
 " they are by the spectacle of their leader being 
 " incarcerated, after a trial which the highest au- 
 " thorities in this country declare to be illegal, and 
 " upon a charge of which they believe that leader 
 u not to be guilty, and of which he has himself de- 
 " clared upon his solemn oath that he is innocent. 
 " Without pretending to possess any peculiar de- 
 " gree of sagacity, we may safely affirm that such 
 " insults can have no other effect than that of 
 11 heightening the existing exasperation, and giving 
 11 renewed vigour to an agitation which the Govern- 
 " ment and its organs vainly believe to be weakened, 
 " if not suppressed." 
 
 Can the reader believe that this meeting so held 
 not only by the connivance, but by what may very 
 properly be called a previous understanding and 
 arrangement with the Government itself in Dublin, as 
 well as with the police authorities of the locality where 
 the meeting was hoi den, was included in the Bill of 
 Particulars* among the NINETY assemblies at which 
 the speeches made, the resolutions proposed or adopted, 
 the acts done, the documents read, and the several 
 proceedings which took pAace, were to be given in 
 evidence against the defendants in the prosecution. 
 
 Before we finally quit this part of the case we 
 shall present the reader with the following descrip- 
 tion of the actual condition of the defendants be- 
 * Supra, p. 38. 
 
174 
 
 fore the trial in respect to the evidence to be 
 adduced for the prosecution. The passage is taken 
 from a joint affidavit by the five attornies for the 
 defence, and is to be found in pp. 33, 34, 35 of the 
 Return which was ordered by the House of Com- 
 mons on the 19th June, 1844. The mere perusal 
 of it is sufficient to confound the clearest head and 
 to affright the stoutest heart : — 
 
 " And these deponents say, that even if the pro- 
 " secution in this cause had been confined to the 
 " charges the particulars of which are specified in 
 " the said indictment *, these deponents would not 
 " have been able by any possible diligence or acti- 
 " vity to have been prepared sooner than next 
 " Hilary term to meet those charges, from their 
 " numbers, their peculiar character, and the amount 
 " and variety of evidence which these deponents 
 " are advised, and believe it would be necessary, to 
 u offer on the trial of the said defendants in answer 
 " to the charges in the said indictment ; but depo- 
 " nents say, that, on the contrary, they have been 
 " apprised that it is not intended that said charges 
 " shall be so confined, for these deponents say, that 
 " having been advised that it was necessary for the 
 " defence of the said defendants that they should 
 u obtain full particulars of the charges on which it 
 " was intended to rely in said prosecution, these 
 " deponents respectively caused notice of applica- 
 " tions to the court for particulars of such charges 
 
 * To the fifty-three printed folio pages of overt acts. 
 
175 
 
 " to be served on the Crown solicitor on the 11th 
 " of November instant for Tuesday the 14th of 
 " Xovember instant; and these deponents say, that 
 " a paper purporting to be a bill of particulars of 
 " said charges was furnished to these deponents 
 " respectively late on the night of the 13th or early 
 11 in the morning of the 14th instant; and these 
 " deponents say, that by such bill of particulars 
 M these deponents were for the first time apprised, 
 M that in addition to the several matters and things 
 u set out in the said informations, and the first 
 " count of said indictment, [the fifty -three pages of 
 M large folio print already mentioned}, comprising, 
 " amongst others, the several meetings and speeches 
 " hereinbefore referred to, it is intended by the 
 u Crown to give in evidence in support of the pro- 
 u secution the several speeches made, the several 
 " resolutions moved or adopted, the several acts 
 " done, the letters and documents read, and the 
 " several other proceedings which occurred or 
 " took place at each and every of the several 
 u meetings in said first count specified or re- 
 " ferred to, and also any entries of the several 
 " proceedings made by the said defendants or any 
 " of them, or by the directions of them or any 
 " of them, and also the manner and order in 
 " which the persons comprising said several meet- 
 " ings repectively went thereto ; and further, that 
 " it is by said bill of particulars stated to be also 
 " intended to give in evidence on the part of the 
 
176 
 
 Crown in support of said prosecution the se- 
 veral speeches made, the resolutions proposed or 
 adopted, the acts done, the letters and other do- 
 cuments read, and the several proceedings which 
 occurred or took place at each of several meetings 
 in said bill of particulars specified, amounting in 
 the whole to the number of forty-nine meetings, 
 
 NOT ALLUDED TO OR MENTIONED EITHER IN THE SAID 
 INFORMATIONS OR THE SAID INDICTMENT ; and Say, 
 
 that twenty -four of said last-mentioned meetings 
 are alleged to have been held at divers places 
 throughout the country districts of Ireland, and 
 many of them in remote places, at great distances 
 from Dublin, and in particular that several of said 
 meetings are in said bill of particulars alleged to 
 have been held, among other places, at Limerick 
 in the county of Limerick, at Sligo in the county 
 of Sligo, at Charleville in the county of Cork, at 
 Cashel in the county of Tipperary, at Ennis in the 
 county of Clare, at Athlone in the county of Ros- 
 common and Westmeath, at Skibbereen in the 
 county of Cork, at the town of Galway, at Tul- 
 lamore in the King's County, at Tuam in the 
 county of Galway, at Maryborough in the 
 Queen's County, and at Roscommon in the county 
 of Roscommon, as by said bill of particulars ; it 
 further appears to be intended to give in evidence 
 in support of said prosecution the holding of and 
 all the proceedings and acts of certain assemblies 
 in said bill of particulars alleged to be styled 
 
177 
 
 " Courts of Arbitration, and to have been held at 
 " Blakroek and Rathmines in the county of Dublin, 
 " and also in the city of Dublin, and also at Limc- 
 M rick, in the months of August, September, and 
 u October in the present year, and of the persons 
 " therein described as professing to act as arbitra- 
 u tors in said alleged courts ; and these deponents 
 " say, that it also further appears by the said bill of 
 " particulars that the said several meetings therein 
 " specified are alleged to have been held during the 
 " interval from the 2 2d of March until the 6th of 
 " November in the present year ; and say, that five 
 u of said meetings are alleged to have been held since 
 u the said defendants were required to enter into re- 
 " cognizances to answer for the said alleged conspi- 
 " racy, and one of same being a meeting alleged to 
 " have been held since the time when the said bill 
 u of indictment was sent before the grand jury in 
 " the present term ; deponents say, that wholly 
 " independent of said meetings in said indictment 
 " and bill of particulars respectively mentioned, 
 u and which appear to exceed ninety in num- 
 " ber, extending over a period of nearly nine 
 M months, the said indictment and bill of particu- 
 " lars respectively set forth and specify many other 
 " charges and matters of various facts intended to 
 u be relied on and made the subject of evidence 
 " in support of such prosecution, and in particular 
 " that the said defendants have collected large sums 
 a of money, not only in Ireland, but from the inha- 
 
 li 
 
178 
 
 u bitants of foreign countries and the subjects of 
 " foreign states, for the purpose of such alleged 
 " conspiracy ; and say, that the difficulties of pre- 
 " paring for the defence in the prosecution are gene- 
 " rally increased by the fact that several of the said 
 " defendants do not appear, and are not alleged 
 
 " OK CHAEGED TO HAVE TAKEN PART IN MANY OF 
 
 " the said meetings, and other proceedings sped- 
 " fed or set forth in the said informations, indict- 
 " ment, and bill of particulars respectively, and 
 " have no personal knowledge whatever of such 
 " alleged meetings or proceedings, and in that respect, 
 " as deponents are advised and believe, the defence 
 " of each particular defendant must be not only 
 " separate and distinct, but in many instances 
 " wholly or essentially different from the rest of the 
 " others of said defendants ; and further say, that 
 " such difficulties as aforesaid have been still fur- 
 " ther increased by the circumstance that the 
 " names of the several witnesses produced and 
 " examined before the grand jury in support of the 
 u said bill of indictment have been withheld from 
 u the defendants ; and these deponents have been 
 " thereby compelled to make arrangements for the 
 " production of a much larger body of evidence 
 " than would otherwise have been necessary, with 
 u respect not only to the particular facts and details 
 " of the proceedings at each and every of such 
 " meetings, and connected therewith, and of the 
 " acts and speeches of the several persons who took 
 
179 
 
 " part in such proceedings, but also with respect to 
 " the means of knowledge and the statements re- 
 k * specting same, and the motives, character, and 
 " conduct of each and every person who these depo- 
 " nents have any sufficient reason to believe will be 
 u produced to give evidence for the Crown in support 
 " of said prosecution, of an unfair or dishonest 
 " nature respecting said meetings, or any of them, 
 " calculated to prejudice the said defendants, or 
 " any of them ; and these deponents say, they are 
 " advised and believe that, wholly irrespective of 
 " the particular and separate defence so ren- 
 u dered necessary, in many instances, for each 
 " of the said defendants in this prosecution, it 
 " is absolutely necessary for the defence of the 
 u said defendants generally that these defend- 
 " ants should be prepared with evidence as to 
 " the true numbers, character, conduct, and de- 
 " meanour of the persons assembled at, and other cir- 
 " cumstances connected with, each and every of the 
 " meetings in the said informations, indictments, and 
 " bill of particulars respectively specified or referred 
 " to, and that they should also be prepared with evi- 
 " dence as to the several speeches made, the several 
 u resolutions proposed or adopted, the several acts 
 u done, the several letters and documents read, and 
 " the several proceedings which occurred or took 
 " place at each and every of the said several meet- 
 u ings ; and further, that they should be prepared 
 " with evidence as to the object, character, and effects 
 
 m 2 
 
180 
 
 " of the said several meetings, the said speeches so 
 " made, the resolutions so proposed or adopted, and, 
 " the said acts so done thereat." 
 
 We are now arrived at the period when it became 
 the duty of the Chief Justice to deliver his charge 
 to the jury upon the case ; and although we have 
 already, by anticipation, commented upon some 
 portions of that unparalleled effusion, yet we must 
 again advert to an address which will certainly be 
 considered in all future times as one of the greatest 
 curiosities in even Hibernian jurisprudence. It has 
 been preserved in a separate state for the use of 
 posterity, has been published by Her Majesty's 
 printer in Dublin, and is said to have been author- 
 ised and corrected by the Chief Justice himself. 
 
 As a composition it is loose in its texture, 
 confused, contradictory, and incoherent in the 
 doctrines and principles which it lays or seems 
 to lay clown, totally destitute of precision, and al- 
 most equally wanting in perspicuity; whilst it 
 exhibits every where the most perverse inappro- 
 priateness in the application of judicial authori- 
 ties to the case actually before the court, and 
 the most unjust and inaccurate estimate of the 
 facts of the pending case as considered in reference 
 to the circumstances of some others which it re- 
 sembled in no particular, except the general nature 
 of the offence imputed by the indictment. Of the 
 judicial propriety, candour, and impartiality ex- 
 hibited by his Lordship we shall at present express 
 
1S1 
 
 no opinion; but we believe that no reader who 
 peruses the present publication will have any diffi- 
 culty in forming a very exact estimate of the 
 amount of those most important qualities which 
 Chief Justice Pennefeather showed forth upon the 
 occasion in question. 
 
 At the very beginning of the charge appears the 
 following astounding assertion : — " Gentlemen," 
 says the Chief Justice, " I call the case a strange one 
 " only in reference to its duration ! because, for 
 " myself, I do not feel that it is a case in which there 
 11 exists any great difficulty in the law, or in the facts 
 M upon which so intelligent a jury as I have now 
 M the honour of addressing will finally have to pro- 
 " nounce their verdict." 
 
 All the world is aware that the Chief Justice 
 charged the jury for a conviction ; that he con- 
 sidered the allegations in the indictment to be suffi- 
 cient designations of offences known to the law, and 
 that he considered the evidence as having esta- 
 blished the allegations. It is notorious, that about 
 one hundred pages of the authorised edition of the 
 charge are occupied about the multitudinous meet- 
 ings, and that the counts of the indictment, which 
 are confined exclusively to the exhibition of great 
 physical force at those meetings, have been declared 
 by all the judges, and four out of five law lords in 
 this country, to be good for nothing. Yet the 
 Chief Justice of the Queen's Bench in Ireland does 
 not think that there is any great difficulty about 
 
 m 3 
 
182 
 
 either that or any other part of the law of the case ; 
 and before he has read a syllable of the evidence to 
 the jury, he openly declares that he does not antici- 
 pate that they will have any difficulty about the facts. 
 The judge, who has already decided in his own mind 
 that the defendants are guilty, begins his charge by 
 informing the jury that he does not expect that 
 they will have any more difficulty than he had in 
 coming to the same conclusion. What " feeling " 
 could a gentleman who so conducted himself enter- 
 tain about the dignity or the responsibility of his 
 office ? 
 
 In order to justify this " feeling " that there was 
 no difficulty about the law of the case, the learned 
 judge proceeded to cite some authorities which he 
 professed to consider as appropriate to the pre- 
 sent case, and conclusive in themselves. Let us see 
 what these cases were, as reported by himself. The 
 first was the case of The Queen v. Vincent, in respect 
 to which the Chief Justice proceeded to read the 
 charge of Mr. Baron Alderson, in which the learned 
 baron cited the authority of Hawkins, to prove 
 " that any meeting whatever of great numbers of 
 " people attended with such circumstances of terror 
 " as cannot but endanger the public peace, &c. is 
 " unlawful." He then cites Mr. Justice Bayley as 
 laying it down in Hunt's case, that " if a meeting, 
 " from its general appearance, and all the accom- 
 " panying circumstances, is calculated to excite 
 
 " TERROR, ALARM, AND CONSTERNATION, it IS generally 
 
183 
 
 " criminal and unlawful'' Mr. Justice Bayley 
 goes on to state the kind of " circumstances " to 
 which he alluded as being " calculated to excite 
 " terror, alarm, and consternation" and as impres- 
 sing a character of illegality on the conduct 
 of the parties. "If," says the learned judge, 
 " they have met at unseasonable hours of the 
 " night, or under circumstances of violence and 
 u danger, — if they have been armed with offen- 
 " sive weapons, or proposed to put to death 
 " any part of their fellow subjects." What mortal 
 could believe that these authorities were cited 
 for the purpose of proving the illegality of meet- 
 ings, of which Mr. Justice Burton, in charging 
 the grand jury in support of the bill of indictment, 
 said that " not only was it not the wish of the defend- 
 " ants to cause any breach of the peace at or 
 " through the medium of those assemblies, but that, on 
 " the contrary, it teas a principal object with the 
 " leaders and conveners of the meetings to pre- 
 u VENT the possibility of any infraction of 
 " the public peace ; " the correctness of which 
 description was not only established by the official 
 statements of the law officers of the Crown, and by 
 all the evidence in the case, but was expressly 
 asserted by Chief Justice Pennefeather himself in the 
 very charge in which he cites the case of TJie Queen 
 v. Vincent as one having a resemblance to that of The 
 Queen v. O'Connell. 
 
 Mr. Justice Bayley and Mr. Baron Alderson are 
 m 4 
 
184 
 
 cited as declaring that meetings will be illegal if 
 the parties propose to put their fellow subjects to 
 death, or come armed with offensive weapons, or 
 come together under circumstances which excite 
 alarm and terror, and cannot but endanger the 
 public peace. What conceivable bearing can such 
 " authorities " have upon the case of meetings, 
 which, according to the statement of the Solicitor 
 General, " terminated peaceably, and without excit- 
 u ing any alarm to the public" — the peaceable and 
 unalarming termination of which, moreover, was 
 not a lucky and unexpected accident, but one of 
 the deliberate objects of all the parties concerned. 
 The Solicitor General stated, that " the conspiracy 
 was — not to break the peace T The Attorney Ge- 
 neral described the peaceable separation of the meet- 
 ings, and the intention that they should so separate 
 as " a formidable part of the conspiracy." Yet, 
 in reference to these meetings at, or before, 
 or after which no breach of the peace was com- 
 mitted or contemplated, nor any alarm excited, and 
 at which it was the actual as well as the uni- 
 versally declared purpose of all the parties con- 
 cerned that no breach of any law should occur, — 
 at which there actually was no breach of the peace, 
 nor any excitement of alarm, nor any injury, 
 nor any apprehension of any, to person or pro- 
 perty, — it was in reference to these meetings that 
 the Chief Justice quoted the authority of Mr. Justice 
 Bayley and Mr. Baron Alderson, as having laid it 
 
185 
 
 down, that meetings are unlawful if the parties 
 propose to commit murder, or to go armed, or as- 
 semble in such circumstances as must cause public 
 alarm, and a breach of the peace. The case of The 
 Queen v. Vincent was so far from having any 
 resemblance to the prosecution of Mr, O'Connell, 
 that it was in all essential points of a diametri- 
 cally opposite character, as will be seen at once 
 from the following outline of the case. The de- 
 fendant was one of the Physical-Force Chartists 
 against whose conduct and example Chief Justice 
 Pennefeather expressly stated in his charge that 
 Mr. O'Connell was continually warning his own 
 political adherents. The first count of the in- 
 dictment in the case recited that the defend- 
 ants, intending to disturb the public peace, &c., 
 did conspire, and so on. The second count stated 
 that they had met in a menacing manner with 
 OFFENSIVE weapons, and did cause great terror and 
 alarm to the peaceable subjects, &c. The third was 
 for attending an unlawful assembly, at which they 
 excited great alarm and terror by loud exclamations, 
 cries, Sec. The meetings were held at night: the 
 mob hooted the authorities. Mr. Vincent told the 
 meeting, "If any policeman interfered with them, to 
 M break his head ; and if the yeomanry interfered 
 " with them to throw them over the bridge ;" and 
 exclaimed, " Perish the privileged orders ! n "Death 
 u to the Aristocracy /" He said he M should like to 
 " see Mr. Prothcroe, one of the magistrates, hung 
 
186 
 
 " up to the lamp-post!" All the witnesses 
 swore that the meetings actually excited well- 
 founded alakm and terror ; and it was deposed 
 that the Chartists were treating for the purchase 
 of arms ; and one of the witnesses, who sold arms, 
 deposed that he removed them from the shop to a 
 private part of his house. Such were the facts of 
 a case which was cited as resembling that of The 
 Queen v. O'Connell ! But the transaction would 
 not seem to be perfectly complete without the 
 additional fact, that whereas the authority of Mr. 
 Baron Alderson was vouched so vehemently for 
 the purpose of proving that the description of the 
 monster meetings upon the indictment was a 
 sufficient description of illegal assemblies, Mr. 
 Baron Alderson himself in conjunction with all the 
 other English judges and law lords, has since 
 expressly decided that it was not. 
 
 The Chief Justice himself seems to have felt how 
 absurdly inapplicable his authorities were to the 
 case of the meetings before the court, and he ac- 
 cordingly endeavours to help them out with a new 
 theory of his own, upon which we shall make some 
 observations after we have presented it to the 
 reader in the extraordinary language of the Chief 
 Justice himself. * 
 
 " I do not mean to say that the mere attending 
 u the meeting, however large the numbers may be, 
 " if no breach of the peace be committed, nor 
 " tendency to a breach of the peace, at the time, 
 
 * Page 38. of the authorised edition. 
 
187 
 
 u or immediately ensuing the meeting — I do not 
 " mean to say that a man's attending such a meeting 
 " under such circumstances will be necessarily 
 " unlawful. I do not mean to say that it would 
 " be necessarily lawful. I shall explain that by 
 " and by ; but there is nothing in the mere fact of 
 " the assemblage of the people that renders that 
 " an illegal act. But in order to make the meet- 
 " ing unlawful it would not be necessary, though 
 " in fact the peace was not broken, that therefore 
 u the parties should not be guilty of the offence of 
 M exciting and creating terror and alarm amongst 
 " Her Majesty's subjects. The meeting may, 
 " though the parties went to it unarmed, have 
 " been attended with demonstrations of physical 
 M force, that would reasonably have excited fear, 
 " terror, or alarm amongst the peaceable subjects 
 u of Her Majesty in the neighbourhood, whether 
 " there was cause for it or not ! beyond the enor- 
 " mous mass and multitude of persons assembled ; 
 " and if persons were alarmed and terrified by that 
 " mass and multitude so assembling, why, then, 
 " the terror so caused would have shown that to 
 u be an illegal assembly, for which the parties so 
 " assembling would be answerable. But it is not 
 " necessary that that should have been the state of 
 " things, in order to make that an unlawful as- 
 M sembly. Suppose the parties all went to that 
 " great meeting in ever such great multitudes — 
 u suppose they went without arms — suppose they 
 
188 
 
 " conducted themselves with great propriety and 
 " regularity — suppose no breach of the peace was 
 " committed — suppose no then tendency to a breach 
 " of the peace was committed — all those facts might 
 " concur toward the establishment of the innocence 
 " of that meeting ; and yet, Gentlemen of the Jury, 
 " that meeting might have been an illegal assembly! 
 u Suppose that the object of collecting those hun- 
 " dreds and thousands of persons was, not for the 
 u purpose of committing a breach of the peace — sup- 
 " pose they had an ulterior and more remote object 
 " — suppose it was not for the purpose of terrifying 
 " the neighbours by what was done, or intended to be 
 " done, by the persons assembing at that meeting — 
 u but suppose that the parties who collected that 
 " multitude together did so for the purpose of 
 " making a demonstration of immense force and 
 " physical power, guided and actuated by the will 
 " and command of the person who had caused that 
 " multitude to assemble, for no purpose of a pre- 
 " sent breach of the peace, but for the purpose of 
 " making an exhibition to those with whom he had 
 " to do, to those who were the legal legislators of 
 " the country ; and that his object in calling all 
 " those people together — his object in assembling, 
 u dispersing, recalling them, was to do that with 
 u the greatest possible notoriety --suppose he did 
 " it in the open day, where all the world could see 
 " and hear him, and that he had as his object to 
 " overawe the Legislature, who are likely to have to 
 " consider certain political subjects in which he 
 
189 
 
 k ' had his own views and his own interests — for 
 " the purpose of deterring the Legislature and the 
 " Government of the country from a free and cool 
 " deliberate judgment on the subject: — if that were 
 " his object in causing and procuring that demon- 
 " stration, then, Gentlemen, I say that that is an 
 " illegal object in him, and in all who concur and 
 u are agreed with him in procuring such means for 
 " such an end." 
 
 The reader will observe that the Chief Justice, 
 at the beginning of this passage, admits that a meet- 
 ing will not be illegal merely in consequence of the 
 multitudes who attend it, if there be no other 
 ground for imputing illegality except the numbers 
 alone. Immediately afterwards he says that the 
 meeting may be illegal as causing what he calls 
 reasonable terror in a rational person, although 
 the rational person had no reason for the alarm 
 except the numbers alone! Whilst this palpable 
 and ridiculous contradiction involves, or rather 
 composes, a hypothesis that the peaceable subjects 
 of the Queen in the neighbourhood of the meeting 
 Were .alarmed — a supposition which was not only 
 contradicted, but even repudiated by the very law 
 officers of the Crown themselves, who placed their 
 case upon a totally different ground. Whilst the 
 Chief Justice was talking about the alarm of the 
 neighbourhood, he knew of course that in the case 
 before the court there was no alarm, and that the 
 Solicitor-General, after the whole of the evidence 
 had been given, stated expressly, and several times, 
 
190 
 
 that none of the meetings had excited any alarm at 
 all, and that any prosecution against any one of the 
 meetings upon that ground would have been triumph- 
 antly defended and deservedly defeated. * 
 
 .Having in this manner endeavoured to incorporate 
 with the evidence a state of facts which did not exist, 
 the Chief Justice proceeds to perform the same sort 
 of operation with respect to the law, and addresses 
 the jury upon the supposition that the charge against 
 the defendants upon this point was that of con- 
 spiring, by the exhibition of great physical force, to 
 intimidate the legislature, and the government. 
 Li If you believe," says the Chief Justice to the jury, 
 u that the object of the persons who collected those 
 " multitudinous meetings was to intimidate and 
 " overawe the Legislature and the Government, by 
 " the exhibition and demonstration of the great 
 " physical force assembled at such meetings, I am 
 u of opinion that that object was unlawful, and that 
 " if more than one concurred to procure it, they are 
 " guilty of a conspiracy." Now, from the beginning 
 to the end of the indictment, there is no charge of 
 conspiring, by the exhibition and demonstration of 
 great physical force, to intimidate and overawe the 
 Parliament or the Government. The offence which the 
 Chief Justice presented to the jury, in the passage 
 which we have cited, as well as in several other parts 
 
 *. See ante, p 162. 165., the evidence of the policeman, who 
 deposed that even at the monster meeting at Mullaghmast, the 
 only accident that he observed was that some gingerbread was 
 thrown down. 
 
191 
 
 of his charge, was not imputed to the defendants, 
 and was not in issue before the court. There is 
 no charge in the indictment of conspiring to inti- 
 midate the Government at all, by force, or by any 
 thin? else. Notwithstanding which the Chief Jus- 
 tice continually describes the charge as a conspiracy 
 to intimidate, by the exhibition of great physical 
 force, the actual " Ministers of the Queen," and 
 the persons engaged in carrying on the govern- 
 ment of the country — there not being a syllable 
 about the Queen's Ministers from one end of the 
 indictment to the other; and we cannot help con- 
 sidering it to be a most unconstitutional and unjus- 
 tifiable proceeding in Chief Justice Pennefeather to 
 present the case in a false aspect to the jury, and 
 endeavour to supply, by his address, that which he 
 must have known not to be in existence upon the 
 record. The allegation upon the subject of intimid- 
 ation to be produced by the exhibition of physical 
 force was declared by the unanimous voice of the 
 judges and law lords in England to be worthless, 
 upon the following, along with other gounds, that 
 the word intimidation had not necessarily an illegal 
 meaning, that upon the present occasion it was used 
 in its popular sense, that it did not appear what 
 sort of fear was intended to be produced, nor upon 
 whom it was to operate, whether upon the peaceable 
 inhabitants of the neighbourhood, or the subjects 
 of the Queen in Ireland generally, or the persons in 
 public authority there, or the legislature of the 
 Bealm; that there was no allegation that the phy- 
 
192 
 
 sical force was threatened to be used, or intended 
 to be used, and that the " exhibition and demon- 
 " stration of physical force " therefore in the cir- 
 cumstances could not mean any thing more than 
 the mere display of numbers. Yet, although every 
 one of these allegations was wanting, the Chief Jus- 
 tice addresses the jury upon the footing that they 
 are all upon the record, and founds this part of -his 
 charge upon a supposition which he must have 
 judicially known to be destitute of any foundation; 
 and this incredible statement, in the course of which 
 he expressly declares that an innocent meeting may 
 be illegal ! that a meeting may be legal and illegal, 
 innocent and guilty all at the same time, he winds 
 up by declaring that he has been laying down 
 "the clear and incontestable law upon the sub- 
 " ject ! " — which " clear and incontestable law " has 
 since, as all the world knows, turned out, " clearly 
 " and incontestably," to be no law at all. 
 
 " Having stated that there was no such charge in 
 the indictment as that of conspiring to intimidate 
 either the Government or the Parliament, or any 
 member or members of either body, by the exhi- 
 bition of physical force, it may be as well to add 
 that a charge of conspiring to intimidate the 
 Parliament by certain speeches and writings is con- 
 tained in the eleventh count. That count, how- 
 ever, contains no charge of any offence connected 
 with the exhibition of great physical force ; and there 
 does not throughout the whole of " this volu- 
 
193 
 
 " minous, unwieldy, and unintelligible document " 
 occur any such charge as that which was so often 
 presented to the notice of the jury under such de- 
 signations as " exhibiting great physical force" to 
 intimidate u the Government" or " the Parliament," 
 or the " persons in office," or " in authority," or 
 the " legal legislators," &c. &c. 
 
 But the observations which we have made upon 
 this point are not applicable to this part of the sub- 
 ject alone. Throughout the whole of the trial one 
 charge was imputed in terms by the court and the 
 prosecutors, whilst another was imputed by the re- 
 cord. In page 189. the Chief Justice describes the 
 charge about the arbitration courts as a charge of 
 combining in order to " put down the existing courts 
 " of justice as derived from the appointment of the 
 " Queen." In page 1 91 . he describes the same charge 
 as a charge of " combining to deny the power of the 
 M Crown to erect court* of justice" for which descrip- 
 tion there did not really exist a shadow of pretence 
 either in the evidence or indictment. The counsel 
 for the prosecution, in arguing the case at the bar 
 of the House of Lords, took the trouble to give an 
 explicit contradiction to this part of the Chief 
 Justice's charge, by saying * " There is no state- 
 " MENT of a combination to get the tribunals changed; 
 " the tribunals are to remain, but the combination is 
 " to withdraw matter from their cognizance." So 
 far was it from being true, that Mr. O'Connell had 
 
 * Clarke & Finnelly, vol. ii. part i. p. 228., just published. 
 
 N 
 
194 
 
 denied or depreciated the power of the Crown, that the 
 Chief Justice hinkself expressly declares Mr. O'Con- 
 nell to be guilty of sedition* for stating the power 
 of the Crown as being greater than that which Her 
 Majesty possesses according to the opinion of Her 
 Chief Justice of the Queen's Bench in Ireland. All 
 the evidence throughout the whole case proved 
 eminently and repeatedly that the most loyal injunc- 
 tions were issued at all times, by Mr. O'Connell to 
 the people, and that the people responded cordially 
 to such intimations — being deluded, as the law 
 officers themselves assert, by Mr. O'Connell into 
 the notion that Her Majesty was their friend upon 
 the subject of the Repeal. His Lordship continually 
 sneered at the defendants upon this point, as upon 
 every other f, and very plainly intimated his opi- 
 nion that these professions of loyalty were not sin- 
 cere. To say, however, that they denied the power 
 of the Crown to constitute courts of justice was to 
 say what was diametrically opposed by the very evi- 
 dence which was read by the Chief Justice himself. 
 
 * Page 27. of the official edition of the speech. 
 
 | The following is a sample of his Lordship's humour upon 
 this point : " It is now called the ' Loyal National Repeal As- 
 
 * sociation/ Stet nominis umbra. Whether you think there 
 " is any thing in that or not, it is for you to say." With great 
 respect for his Lordship, " it was not for them to say." The 
 jury " had nothing to say to it." Mr. Justice Crampton, in 
 giving his judgment upon the motion for a new trial, expressly de- 
 clared that the Attorney- General did not impute any illegality, 
 much less any disloyalty to the Association, even in his speech. 
 There was nothing at all about it on the record. 
 
195 
 
 Every other part of the case was treated in the 
 same style. From an address which was printed 
 and circulated by the Repeal Association, and 
 signed by Mr. O'Connell, he read the following 
 passage : — " But, Irishmen, we suffice for our- 
 11 selves. Stand together — continue together — 
 " in peaceful conduct — in loyal attachment to the 
 u throne — in constitutional exertion, and in none 
 " other. 11 The Chief Justice, having read the pas- 
 sage, says to the jury, u Is that evidence of inti- 
 M midation, or is it not ?" Now if the expression of 
 a determination to continue in " loyal attachment 11 
 " constitutional exertion 11 " peaceful conduct, and 
 " none other 11 is to be taken as the language of 
 intimidation, there can be no fixed or definite mean- 
 ing in language at all ; and the use of it must be, 
 not as a source of illumination to the world, but as 
 the means of enabling mankind to conceal their ideas 
 from each other. We request the particular atten- 
 tion of the reader to the following passage : — 
 
 " Now there were in connection with the Asso- 
 " ciation three gentlemen,'' [Messrs. Gray, Barrett, 
 and Duffy,] " who are all of them at present among 
 " the traversers at the bar, who were respectively 
 " proprietors of certain newspapers in the city of 
 " Dublin, — I need not say one way or other as to 
 " the tendency of their contents. * The Eepeal- 
 
 * It must have been a most wonderful stretch of heroic im- 
 partiality to abstain from telling a Dublin ury what the 
 politics were of the Pilot, the Freeman, and the Nation. 
 
 N 2 
 
196 
 
 " wardens were to take care that in their respective 
 " districts a certain number of newspapers should be 
 " provided — not newspapers generally, of whatever 
 " class the parties might think it necessary to in- 
 " form themselves in point of politics — not THE 
 " EVENING MAIL!!! on a paper op THAT 
 " KIND, but the Freeman's Journal and the 
 " Pilot, of which Dr. Gray and Mr. Barrett are 
 " the proprietors." So that the charge against 
 Mr. Gray and Mr. Barrett is, that they being 
 Repealers did not assist in the diffusion of 
 Orange politics, and that, having no other in- 
 come except what arose from the sale of their 
 newspapers, they did not help to increase the profits 
 of another property to the diminution of their own ! 
 Poor Mr. Duffy's guilt is yet more enormous in this 
 respect than that of either of the others, or of both 
 together ; for as his paper, the " Nation/' was not 
 included in this arrangement, he could not obtain 
 any profit by the monopoly, and whereas Gray 
 and Barrett were guilty of giving an Irish kind of 
 " fraudulent preference " to the sale of their own 
 papers, Duffy gave a still more Hibernically fraudu- 
 lent one to the papers of Gray and Barrett above 
 his own. Gray, Barrett, and Duffy are guilty of a 
 conspiracy — Gray and Barrett of conspiring not to 
 circulate the commodities of Remmy Sheehan,Esq.*, 
 who keeps " the house over the way," whilst Mr. 
 
 * This gentleman is said, in the speech of Mr. Sheil, to be the 
 proprietor of the Evening Mail. 
 
197 
 
 Duffy, with the uncalculating disinterestedness of 
 a true Irish patriot, conspires not to circulate his 
 own. As it seems difficult to believe that any 
 sane person occupying such a situation as that in 
 which Mr. Pennefeather is placed could have given 
 utterance to such a mass of melancholy nonsense, 
 we beg leave to say that the passage to which we 
 have referred is found in Mr. Flanedy's Report, 
 page 458.; in the Report of Messrs. Armstrong and 
 Trevor, page 830 ; and in the 57th and 58th pages 
 of the Report of the Charge, as published by the 
 Queen's printer, and said to have been corrected by 
 the Chief Justice himself. 
 
 Mr. Fitzgibbon haying corrected an error into 
 which the Chief Justice had fallen in a part of the 
 statement, his Lordship observed, " It does not 
 " matter very much. What I was stating was, that 
 M the papers recommended to be furnished were all 
 " of that political class, whether it was Dr. Gray's 
 " paper or not. 11 A jury, from which every indivi- 
 dual of the political party of the defendants has 
 been extruded, are called upon by a judge who is 
 of the same politics with the jury, and of hostile 
 politics to the defendants, to find two newspaper- 
 owners guilty of sedition because they circulated 
 their own papers without circulating those of the 
 party to which the judge and the jury belong! I Such 
 a judge expressly directs such a jury to find their 
 political antagonists guilty, upon grounds which are 
 
 n 3 
 
198 
 
 not only expressly political in their character, but are 
 so futile and ridiculous in themselves, that they 
 would bring discredit upon a Court of Kequests, 
 much more upon Her Majesty's Court of Queen's 
 Bench. 
 
 It ought, however, to be mentioned, injustice to 
 the learned judge, that he seems, at the instant 
 when he delivered the very extraordinary passage 
 which we have just cited, to have been seized 
 by a very unusual fit of sentimentality towards 
 the " poor country people, to whom these papers 
 " were to be read, and who had subscribed their 
 " shilling a year;" which, as his Lordship takes 
 the trouble to calculate, " amounts to a farthing 
 • - a week " for the use of the papers in question. 
 " Consider, gentlemen of the jury," says his Lord- 
 ship, "what the effect of these papers" (the 
 4 Pilot' and 'Freeman') "must be when circu- 
 " lated among the poor people over all Ireland*," 
 without the countervailing accompaniment of the 
 Evening Mail, or any other paper of that sort After 
 dwelling upon this very distressing condition of 
 affairs, in which the poor people, for their farthing 
 a week, are obliged to put up with papers of their 
 own politics, and to take the bane of the " Pilot," 
 without the antidote of the " Packet f," he goes on 
 to make the following more serious observation { : 
 
 * Page 58. Queen's printer's edition. 
 
 \ An Orange paper. \ Page 59. 
 
199 
 
 " These are matters that ought to be constantly 
 14 kept before you, when you recollect that the 
 " Crown complains of a conspiracy by intimidation, 
 " and by the demonstration of physical force to over- 
 44 aice the legislature of the country." It is scarcely 
 necessary for us to repeat what we have already 
 stated so often, that the alleged offence of com- 
 bining to overawe the legislature by the demon- 
 stration of great physical force is a mere, pure 
 fiction, there being no such offence charged upon 
 the defendants by the record. But even if such a 
 charge existed in the most express, direct, and 
 unequivocal form, the reader will, perhaps, have as 
 much difficulty as we have had in discovering how 
 such a charge could be established, by showing 
 that the poor people throughout the country, for 
 their farthing a week, were obliged to content 
 themselves with the politics of the 44 Pilot " and the 
 " Freeman," without any perusal of the 44 Evening 
 14 Mail," or 44 other paper of that sort." 
 
 The reader has already seen that the Chief 
 Justice intimated very distinctly his opinion of 
 the defendants' guilt, even before he began to read 
 the evidence to the jury. 
 
 The manner in which he proposes to neutralise 
 this intimation is as remarkable as the intimation 
 itself. In page 10. he observes, 44 I do not mean 
 44 to say this, anticipating one way or the other — 
 44 God forbid — what conclusion you may come to 
 
 N 4 
 
200 
 
 "upon the subject." In one place* he says, "I 
 " do not say that any of the traversers are guilty." 
 In another, " I anticipate nothing against any 
 " body here, as yet. I put it rather by way of ex- 
 " ample, than as bearing upon the present case ; and 
 " I desire that in what I have said it may be 
 " rejected from your minds altogether as if I were 
 " giving any thing like an opinion, or any thing 
 u bordering upon an opinion, with regard to the 
 " facts of this case, which will be for your final 
 " decision. But I am putting it by way of exem- 
 " plification. Secrecy is not necessary. If the 
 " parties conspired, that is, agreed together, upon 
 " a common illegal basis and design, to overawe 
 u the Parliament of the country, to cause alarm 
 " and terror amongst her Majesty 's subjects, by 
 " collecting together in the open day large bodies 
 " of the people, the more numerous, the more 
 " public, the more adapted to the end of the party 
 " who called them together, his object being all 
 " along to create terror, intimidation, and over- 
 " awing, this would be brought about by more 
 " public demonstration than by secrecy or eonceal- 
 " ment."f All this he utters with apparently the 
 most perfect gravity, as if he really believed that 
 the jury would consider it as not " bearing upon the 
 " present case;" and as if by u the parties," whom 
 he supposes to have conspired, the jury would not at 
 all understand the parties who were the defendants 
 
 * Page 41. t Pa g e U - 
 
201 
 
 at that moment upon their trial ; or as if they could 
 suppose that the individual alluded to in the ex- 
 pression " his object," &c. was some shadowy and 
 imaginary personage in nubibus or in gremio 
 legis, and not Mr. Daniel O'Connell, who was cor- 
 porally in the view of the Court, and who was 
 charged with having " in open day collected large 
 " bodies of men, in order, by the exhibition of great 
 " physical force, to procure changes in the law, &c." 
 
 After citing the authority of Baron Alderson's 
 charge in the case of The Queen v. Vincent, in 
 which the learned Baron recommends that meetings, 
 in order to their being legal, should be peaceable 
 and open, the Chief Justice proceeds to say upon 
 his own part, that " there is not one word in that 
 " charge in which he does not fully concur, and to 
 " which he is not fully satisfied to subscribe upon 
 " any and every occasion." Having thus fully 
 subscribed to the doctrine, that meetings will be 
 lawful if they are peaceable and open, when the 
 evidence in the Irish case proves that the meetings 
 were exactly of this character, Chief J ustice Penne- 
 father shifts his position, quits the authority of 
 Baron Alderson, and cries out, as the reader has 
 just seen, "the more open and more peaceable the 
 " worse ! " It is difficult to say which is more 
 shocking to common sense in this instance, the 
 general absurdity or the particular inconsistency. 
 
 But we must part company with his Lordship at 
 last. His whole charge, from the commencement 
 
202 
 
 to the conclusion, is a continued series of curious 
 improprieties ; the only way of exhibiting a com- 
 plete picture of which to the reader would be a 
 reproduction of the whole oration in extenso. 
 We shall only mention, before we finally take leave 
 of his Lordship, a few additional specimens, which, 
 added to those already produced, would furnish 
 forth a small spicilegium of the most remarkable 
 parts of this most wonderful address. In one of 
 his facetious moods *, he quizzes the teetotallers of a 
 monster meeting by likening them to the armies of 
 Xerxes, who drank up rivers in their march, and 
 pleasantly, but partially, quotes a passage from 
 Juvenal upon that subject : 
 
 " Epotaque flumina Medo 
 Prandente." 
 
 The remainder of which is at least as material 
 as that which his Lordship repeated : 
 
 " Et madidis cantat quae Sostratus alis." 
 
 " With a long legend of romantic things, 
 " Which in his cups the boosy poet sings." 
 
 Dryden's Translation. 
 
 * " Gentlemen, there was a dinner, as there had been at 
 " other of the monster meetings, 
 
 ' Epotaque flumina Medo 
 Prandente ; ' 
 
 " and the conviviality of the evening was enlivened by a speech 
 " from Mr. O'Connell." (a) 
 
 (a) Page 89. 
 
203 
 
 The following is a sample of the vigour of his 
 language, and if the imagery were correct, it would 
 certainly, and very effectually, take away all hopes 
 from the most resolute Repealer of ever seeing 
 Ireland again resume the shape of a separate poli- 
 tical existence. " Ireland," says his Lordship, 
 " being by the effect of the Union swallowed 
 " up*" in the United Kingdom. 
 
 After having stated the substance of a speech 
 delivered by Mr. Barrett at Mullingar, his Lordship 
 makes the following pleasant addition to the prin- 
 ciples of presumptive evidence : — 
 
 " He," [Barrett] 9 not only spoke the speech at 
 " Mullingar, but I," [the Chief Justice] 9 take far 
 " granted I that he wrote the speech down when he 
 " went to Dublin !"f 
 
 Some of his concessions to the right of discussion 
 and petition are not a little curious. In one place 
 he says J, 9 It is no crdie for a man to have a griev- 
 9 a nee ! or to think he has it, or to make a mistake 
 " with regard to his political position in respect to that 
 9 grievance.''' What a Wonderful quantity of liberty 
 must be involved in this admission, deliberately 
 made even upon the bench of justice, that it is 
 actually 9 no crime in a man to have a grievance ! 
 u nor even to think he has one!! or still more to 
 
 * Page 69. f Page 77. 
 
 % Page 37. edition of the Queen's printer. 
 
204 
 
 " make a mistake in his political position in respect 
 "to it!!!" 
 
 One of the principles upon which he regulates his 
 method of leaving the case to the jury is amongst 
 curiosities a curiosity. He says to the jury, " The 
 " onus is on the Crown, and that is another reason 
 " why I pass over without more particular detail the 
 " evidence given on behalf of the traversers!"* 
 Upon reading such a passage all that one can do is 
 to sit mute with astonishment. All commentary 
 upon such a statement is equally superfluous and 
 impossible. 
 
 Equally strange, and equally unintelligible and 
 inappreciable, to us at least, is the following pro- 
 ceeding : — 
 
 After having read at full length, and commented 
 upon certain documents which were given in evi- 
 dence for the prosecution, he saysf, " Now I sup- 
 " pose, from what has been said by Mr. Moore, the 
 " gentlemen " [the counsel for the defendants] 
 " will not allow this document to go to your " [the 
 jury's] "room; I have therefore (!) read it more 
 " in detail than I should otherwise have done." We 
 confess ourselves unable to understand upon what 
 principle it is that a document which ought not to 
 go before the jury may be read and commented 
 upon by the Judge. And still less can we under- 
 stand why the fact that the document ought not to 
 
 * Page 52. f Page 185. of the official edition. 
 
205 
 
 go to the jury can be a reason for the judge's reading 
 it in detail, and commenting upon it at his discretion. 
 T\ ith regard to the expediency of such a proceeding 
 we are, in the present case, a little more, if possible, 
 in the dark, as we cannot see in the circumstances of 
 the case what the defendants could gain b) T keeping 
 the document out of the hands of the jury after it 
 had been read and commented upon by the Chief 
 Justice. The following occurrence may tend in 
 some degree to justify our scepticism upon the 
 latter point. In a document called the " Crisis," 
 which appeared in Mr. Duffy's paper, there occurs 
 the following passage : — " We have gloried in the 
 " irresistible efficacy of a new element in political 
 " warfare which we boast to have invented, and by 
 " whose employment we have already won many 
 " outposts." 
 
 Having read the sentence immediately preceding 
 this passage, the Chief Justice went on to the sen- 
 tence immediately following it, having of course 
 overlooked the intermediate passage itself. The 
 following is the account of the transaction as it 
 appears in the Report of the Charge * : — 
 
 " For weal or for woe — for ages of bondage 
 " or centuries of independence — we stand com- 
 " mitted. Forward and prompt action is sure of 
 " its reward in speedy and glorious triumph — 
 " the criminal abandonment of opportunity is 
 " equally certain to be avenged in the perpetuation 
 * Page 170, 171. 
 
206 
 
 44 of misrule. In the making or marring of our own 
 " fortunes, we involve to an incalculable extent the 
 " hopes of the whole human family." 
 
 [In this place comes the passage which the Chief 
 Justice overlooked.] 
 
 " We purposely postpone critical details of the 
 " plan submitted under the sanction of 0' ConnelVs 
 " name, and with the authority of the Associ- 
 " ation — contenting ourselves to admire, and 
 44 inviting our countrymen to admire with us, the 
 " symmetry of the temple of freedom raised for 
 " their reception." 
 
 Mr. Whiteside. " A sentence, my Lord, inter- 
 " venes : 'We have gloried in the irresistible efficacy 
 " 4 of a new element in political warfare, which we 
 " 4 boast to have invented, and by whose employment 
 " ' we have already won many outposts/ " 
 
 The Lord Chief Justice. " Where is that ? " 
 
 Mr. Whiteside. " In the article, my Lord ; a 
 " sentence or two before that." 
 
 The Lord Chief Justice. " I do not see it, Mr. 
 " Whiteside:' 
 
 Mr. Whiteside. "It is just after the words 
 " 4 human family ; ' and then it is the statement of 
 " what the writer means : 4 We have gloried in the 
 " 4 irresistible efficacy of a new element in political 
 " 4 warfare ' — political warfare — 4 which we boast to 
 44 4 have invented, and by whose employment we 
 44 4 have already won many outposts.' " 
 
 The Lord Chief Justice. 44 Well — you read it." 
 
207 
 
 Mr. Whiteside.—" That is all, my Lord." 
 
 The Chief Justice concluded his charge by ex- 
 pressing to the jury a confident hope "that the 
 " Lord who rules over all would enlighten and 
 " direct them." If, however, we maybe allowed to 
 draw any conclusions from the succeeding declara- 
 tions of the jury themselves, we should venture to 
 suppose that no particular amount of enlightenment 
 was accorded in consequence of the pious prayers 
 of the Judge ; whilst their conduct exhibited very 
 unequivocal traces of their being under the influence 
 of something very different from celestial direction. 
 Upon coming into court oti Saturday the 10th of 
 February, they stated that they were perplexed about 
 the form of the issue, and that the first and second 
 counts they did not understand, although they men- 
 tioned that they were entirely agreed among them- 
 selves as to THE VERDICT WHICH THEY WOULD GIVE.* 
 
 The jury, having given this happy evidence of their 
 intelligence and impartiality by intimating their 
 determination to find the defendants guilty upon 
 issues which the jury themselves declared that they 
 did not understand, Mr. Justice Crampton addressed 
 himself to the task — equally difficult and useless — 
 of explaining to them that which was the cause of 
 their extreme perplexity. In this effort the learned 
 judge represented himself as having totally failed f, 
 whilst the jury were present in court. After the 
 
 * Armstrong and Trev., p. 887. 
 
 t Ibid. 
 
208 
 
 retirement of that body, however, his lordship 
 occupied himself in preparing a second edition of 
 the issue paper, with alterations and amendments ; 
 and this castigated copy was, at the next meeting 
 of the court, publicly read and handed to the jury, 
 after it had received the sanction of all the judges, 
 and of the law officers of the Crown. 
 
 When the jury next came into court and returned 
 their verdict they said nothing upon the first or 
 second counts of the indictment, wishing to pass 
 them over altogether, for the very sufficient reason 
 alleged by Mr. Justice Crampton, " that they did not 
 understand them" Upon the same occasion, the 
 jury having found four of the defendants guilty on 
 the 3d count, said nothing about the four others. 
 On the 4th count they found nothing about Mr. 
 Tierney, whose name they did not mention. On 
 the 5th count they found all the defendants guilty ; 
 on the 6th count they found nothing. On the 7th 
 they said nothing of Mr. Tierney. On the 8th and 
 9th counts there was no finding. Upon the 10th, 
 which was for the offence of conspiring to bring the 
 Irish tribunals into disrepute, they found all the 
 defendants guilty. Upon the 11th count, which 
 was the last, there was no finding at all. When, 
 therefore, the verdict was originally brought in, it 
 contained nothing whatever about the 1st, 2d, 6th, 
 Sth, 9th, and 11th counts. With regard to these 
 counts the jury were wholly and absolutely silent. 
 With regard to the charge in the 3d count, they 
 
209 
 
 were silent as to four of the defendants ; and with 
 regard to the 4th and 7th as to one. The verdict 
 as it then stood was a verdict of guilty against ail 
 the defendants upon the 5th and 10th counts; 
 against all but one upon the 4th and 7th; and 
 against four out of the eight defendants upon 3d 
 count alone. The counts, therefore, upon which 
 the jury found any thing at all, were the 3d, 4th, 
 5th, 7th, and 10th. With regard to the 10th 
 count, it imputes to the defendants that they con- 
 spired to bring into disrepute the legal tribunals in 
 Ireland, and to diminish the confidence of Her 
 Majesty's Irish subjects therein; to which is added 
 in the 3d count, that the defendants combined to 
 induce the people to withdraw the settlement of 
 their differences from the established courts, and 
 transfer it to others to be constituted for that pur- 
 pose. The 5th charges a conspiracy to excite dis- 
 affection and seditious opposition to the Govern- 
 ment, and hostility among different classes of the 
 Queen's subjects, and contains no allegation about 
 the monster meetings or physical force. The 4th 
 count consists of the 5th, with an addition about 
 the monster meetings in the words of the 6th and 
 7th, which have been declared unanimously by the 
 Judges in this country to contain no charge of any 
 legal offence at all. There only remains, therefore, 
 the 3d count, which charges the seditious opposition 
 to Government, the multitudinous meetings in the 
 form which all the Judges have declared to be 
 
 o 
 
210 
 
 worth nothing, the causing of discontent in the 
 army, and the charge of bringing the established 
 courts of justice into disrepute, and to cause the 
 people in Ireland to submit their claims and dif- 
 ferences to the arbitration courts recommended by 
 the Kepeal Association. With regard to that part 
 of this count which relates to the monster meetings, 
 it has been decided, as we have already so often 
 observed, to be worth nothing at all. 
 
 Taking, therefore, the case of Mr. O'Connell 
 alone, the jury originally found him guilty upon the 
 3d, 4th, 5th, 7th, and 10th counts. The matter 
 charged in the 10th count is certainly not very im- 
 portant in the circumstances of the case, and the 
 addition made to that in the 3d count we have 
 already shown to be not illegal, but meritorious. 
 The 7th count is good for nothing. The verdict 
 may, therefore, be considered as reduced to a ver- 
 dict upon the 4th, 5th, and 3d counts. The latter 
 part of the 4th is the same as the 6th, which has 
 been decided to be worth nothing. The verdict 
 then becomes a verdict upon the 3d, the 5th, and 
 the first part of the 4th. But the first part of the 4th 
 is the same as all the 5th, and the verdict becomes, 
 therefore, a verdict upon the 3d and 5th. Now, 
 the 5th is identical with the first part of the 3d ; 
 and the verdict, when all the necessary deductions 
 have been made, resolves itself ultimately into a 
 verdict upon the 3d count of the indictment. This 
 count contains, along with other charges, a charge 
 
21! 
 
 relating to the monster meetings ; but as this 
 charge is expressed in the terms of the 6th count, 
 which has been decided to be no charge at all, that 
 part of the count goes to the ground as a matter of 
 course. 
 
 From all this we conceive it to be as clear as 
 daylight that the verdict, as originally returned, 
 contained no verdict of guilty against any of the 
 defendants upon any legally valid imputation upon 
 the subject of the monster meetings, in reference to 
 which the whole prosecution was instituted, and in 
 reference to which the principal part, if not the 
 whole, of the punishment was professedly inflicted. 
 It is quite clear that when the jury first brought in 
 their verdict, thev considered that thev had done 
 with the case, and that their labours were at an 
 end. Mr. Justice Crampton had, in open court, 
 previously stated that, in his opinion, he could pro- 
 perly receive a verdict in which there was a finding 
 upon some counts and no finding upon others. 
 The jury, after this, bring in a verdict in which 
 they say nothing about the 1st, 2d, 6th, 8th, 9th, 
 or 11th counts, and it is clear as daylight that they 
 did not at that time intend to find anything upon 
 those counts. The conversation which took place 
 upon the reading of the verdict proves this beyond 
 the possibility of any doubt. The foreman said 
 that the first count was too comprehensive ; and 
 one of the jurors, Mr. Floyd, expressly asked Judge 
 Crampton " Whether the verdict would be correct, 
 
 o 2 
 
212 
 
 " if they found not guilty upon the first and second 
 " counts? 11 And this part of the exhibition concluded 
 by Mr. Justice Crampton's declaring that he would 
 not receive the verdict, as there was no finding 
 upon some of the counts, he having, himself pub- 
 licly and expressly declared, before the verdict was 
 returned, that he was at liberty to receive such 
 a verdict. The jury retired, the Court adjourned, 
 and at its re-assembling was graced by the presence 
 of the Chief Justice, Mr. Justice Burton, and Mr. 
 Justice Crampton. 
 
 The last-named judge informed his learned 
 brethren publicly of what had occurred in their 
 absence at the preceding sitting, and stated that 
 the jury, " although they did not understand the first 
 u and second counts, and were manifestly perplexed 
 " about the form of the issue, had entirely agreed as 
 " to the verdict which they were to give." After bear- 
 ing this very flattering testimony to the intelligence, 
 impartiality, and consistency of the jurors, his 
 Lordship went on to inform the other members of 
 the Court that he had prepared a second edition of 
 the issue, which he accordingly produced, and 
 which, after having received the approbation of the 
 other judges, and of the Attorney- General, was 
 handed up to the jury, upon whom it had the effect 
 of inducing them to produce a second edition of 
 their verdict, with some very eminently important 
 alterations and additions; for, having in the first 
 verdict passed over the first and second counts; 
 
213 
 
 having declared that those counts were too com- 
 prehensive, having been " manifestly perplexed" by 
 them; having declared that they did not under- 
 stand them ; having inquired if they could not 
 with propriety find a verdict of not guilty upon 
 those counts ; they now find Daniel O'Connell, 
 Barrett and Duffy guilty of all the matter 
 charged in both these counts, omitting three words ; 
 they find John O'Connell, Steele, Ray, and 
 Gray, guilty of all, with another omission ; and 
 they find Mr. Tierney guilty of the first part of 
 each of those counts. Upon the first occasion, 
 they found nothing upon the sixth, eighth, ninth, 
 and eleventh counts ; they afterwards discover, 
 when properly instructed by the Court, that all the 
 defendants, except Mr. Tierney, are guilty of all the 
 matters charged in all those counts respectively. 
 The result, however, of the correction of the first 
 verdict, and formation of the second issue, must have 
 eminently amused those persons who, with Hamlet, 
 
 " Think it sport to have the engineer 
 " Hoist with his own petard." 
 
 as the effect of the special interposition of the Court 
 and Attorney-General has been, to take the first, 
 second, third, and fourth counts of the indictment 
 out of the record. The ultimate condition of that 
 monstrous document is, therefore, this — There are, 
 or rather were, eleven counts in the indictment. Of 
 these the sixth and seventh counts — the most 
 
 o 3 
 
214 
 
 important in the indictment — were originally, es- 
 sentially, and utterly worthless in themselves. The 
 second, third, and fourth were made worthless 
 by the findings of the jury; which findings were 
 composed by the Court in the presence of the 
 Attorney- General, and which received his actual 
 sanction, and that of the other Crown lawyers, 
 upon the spot and upon the instant. The remain- 
 ing counts were made worthless by the fact that 
 the judges inflicted the punishment in reference 
 to the counts which were incurably bad, but which 
 they considered to be unexceptionably good.* 
 
 A motion was afterwards made for a new trial. 
 Most of the grounds upon which the application 
 was placed are of a nature not well adapted 
 for discussion in the present publication. There 
 is amongst them, however, one, the merits of 
 which may, as we think, be justly appreciated 
 by any person of ordinary capacity; and as that 
 one formed the most prominent subject of the 
 
 * The Lord Chancellor (a) describes, in the following words, 
 the final condition of the indictment in this respect : — "It was 
 * stated as the unanimous opinion of the " [English] "Judges, 
 " and I entirely concur in that opinion, that the erroneous 
 " findings of the jury, and the erroneous entry of such findings, 
 " are altogether void; that they are to be considered as no 
 i( findings ; and that a good count upon which there is no find- 
 " ing is in its effect the same as a bad count upon which there 
 " is a good finding — it is a mere nullity" 
 
 (a) Judgment, p. 3, 4. 
 
215 
 
 judicial difference, and as it related to the case of 
 the principal defendant, and constituted the prin- 
 cipal ground upon which he relied for the success 
 of his application, we shall take the liberty of 
 making a few observations upon the subject. 
 
 In the course of the trial, and for the purpose of 
 proving that Mr. O'Connell upon certain occasions 
 attended certain meetings, and gave utterance to 
 certain opinions, copies were put in of the " Dublin 
 M Pilot," and of the "Freeman's Journal," containing 
 what professed to be statements of the attendance 
 of Mr. O'Connell at these meetings, and reports of 
 the speeches which he was said to have there deli- 
 vered. No other evidence whatever was given, 
 either of the speeches or attendances, except the 
 mere production of the newspapers themselves ; 
 and the question as to this point upon the motion 
 was, whether these newspapers had been properly- 
 received as evidence of the truth of the statements 
 therein contained, of Mr. O'Connell's having at- 
 tended the meetings and given utterance to the 
 sentiments in question. If Mr. O'Connell had been 
 the sole defendant upon the trial, and was there 
 upon a direct and substantive charge of having 
 spoken the speeches and attended the meetings in 
 the manner which the newspapers professed to re- 
 cord, no person having the slightest acquaintance 
 with subjects of that nature could be so ignorant 
 as to think that the charge could be proved by the 
 production of the papers ; and no counsel in the 
 
 o 4 
 
216 
 
 empire would so affront the good sense of any 
 judge as to tender such documents for such a 
 purpose. It was, however, contended in the pre- 
 sent case, " upon the other side," that as the papers 
 in question were published by Barrett and Gray, 
 who were themselves upon their trial for having 
 conspired with Mr. O'Connell, and as the papers 
 were evidence respectively against the respective 
 publishers, they were evidence against the co-con- 
 spirator of the publishers as acts done in further- 
 ance of the common object by Gray and Barrett ; 
 and as, therefore, being acts which, according to 
 the law of evidence relating to conspiracy, may be 
 given in evidence against Mr. O'Connell, although 
 he had not personally participated in the publica- 
 tion of the reports, and may, as a matter of fact, 
 be absolutely ignorant of their existence. It seems 
 to be universally acknowledged, and we believe it 
 to be an undeniable fact, that such evidence was 
 never before admitted for the purpose for which 
 this evidence was adduced upon the recent occa- 
 sion ; and the exposition which the three judges of 
 the Irish Court of Queen's Bench have given, of 
 the grounds of their judgment in favour of its 
 admissibility, appears to us to show very clearly 
 that the decision is as wrong as it is novel. 
 
 The Chief Justice, adopting the words of Mr. 
 Phillipps (Treatise in Evidence, ch. v. sec. 4.), ob- 
 serves that the " act of the publication being done 
 " by one conspirator in furtherance of the common 
 
217 
 
 " design, was to be considered as done by him in 
 " the character of agent to his co-conspirators ; and, 
 " therefore, that if Mr. Barrett published a statement 
 " of Mr. O'ConnelTs speeches and proceedings at 
 " public meetings, he published it as the agent of 
 u Mr. O'Connell." Xow, in the very place ichcre the 
 Chief Justice found the first part of this doctrine, he 
 must have also found that an exception was made in 
 regard to such declarations or statements as consisted 
 in relations of antecedent events. The conclusion, 
 therefore, which the Chief Justice drew from one 
 part of the text, was actually prohibited by another, 
 and that which his lordship has deduced as a con- 
 sequence from the rule, is declared by his own 
 authority to be an exception to it. 
 
 The published accounts of the judgment of 
 Mr. Justice Burton represent him as concurring in 
 the judgment of the Chief Justice, upon the same 
 grounds and upon the same authority, and making 
 the same omission of any reference to the exception 
 which we have already mentioned, and which, in fact, 
 altogether governs the present case. In regard to 
 Mr. Justice Burton, it is, however, extremely sin- 
 gular that, in support of his own and the Chief 
 Justice's view, of the admissibility of such papers 
 for such a purpose, he actually refers to the case 
 of the King v. Hardy, which is the very authority 
 upon which Mr. Phillipps relies for their exclusion. 
 
 But the extravagance to which Mr. Justice 
 Crampton has carried this novel doctrine is per- 
 
218 
 
 fectly romantic, and absolutely soars into the sub- 
 lime of the absurd. He says, " that even though 
 " every speech and every fact stated in the newspapers 
 " were false, they were as much evidence against 
 " Mr. O'Connell as if he had written every 
 " line oe them." This is one of those daring nights 
 of imagination, before which criticism falls pros- 
 trate in utter and impotent amazement. 
 
 There must be an overwhelming amount of ju- 
 dicial daring about a judge who thus boldly, wan- 
 tonly, and unnecessarily evokes and looks coolly 
 into the very face of the wildest combination of 
 absurdity and injustice which could be generated 
 by the operation of his own principles. Some of 
 the obvious and inevitable consequences of the 
 extraordinary doctrine of Mr. Justice Crampton are 
 droll enough. If it should happen, for instance, 
 that the " Freeman's Journal," which was given in 
 evidence upon the trial of Mr. O'Connell, should 
 contain a libel upon a private individual, that in- 
 dividual would have a right of action against Mr. 
 O'Connell, who, according to Mr. Justice Crampton, 
 is responsible for the contents of the paper; and 
 upon the trial of that action, the publication by 
 O'Connell of the libel would be proved by first 
 proving the conspiracy between Gray and O'Con- 
 nell, and then the publication by Gray alone. 
 
 It appeared upon the whole matter, that Mr. 
 Justice Crampton was of opinion that the applica- 
 tion for a new trial ought to be granted as to the 
 
219 
 
 Rev. Mr. Tierney*, whilst Mr. Justice Perrin thought 
 that the motion ought to be conceded as far as 
 concerns Mr. 0* Conn ell also. The Lord Chief Jus- 
 tice, " on the other side," was of opinion that the 
 rule ought to be refused as to all the traversers ; 
 and the opinion of Mr. Justice Burton was in ac- 
 cordance with the judgment of the Chief Justice. 
 The combined effect of the judgments of Messrs. 
 Crampton and Perrin, taken together, was there- 
 fore that Mr. Tierney and Mr. O'Connell ought to 
 have a new trial. And Mr. Justice Crampton en- 
 tertained so strong an opinion about the injustice 
 and illegality of the verdict against Mr. Tierney, 
 that he threatened to consent to a new trial being 
 granted to all the defendants, unless the Attorney- 
 General entered a nolle prosequi in favour of Mr. 
 Tierney. In deference to this recommendation of 
 Mr. Justice Crampton, a nolle prosequi was entered 
 with regard to Mr* Tierney. It is unnecessary to 
 add that no regard was paid to the opinion which 
 Justice Perrin had expressed in favour of Mr. 
 O'Connell. Yet nothing in the world can, we 
 think, be more clear than that Mr. O'Connell was 
 entitled to a new trial upon the ground already 
 mentioned, namely, the admission in evidence of 
 the " Freeman" and the M Pilot," for the purpose 
 of proving that Mr. O'Connell spoke the speeches, 
 
 * In reference to a meeting at Clontibret, evidence was re- 
 ceived at the trial of a conversation alleged to have taken place 
 between Mr. Tierney and a policeman two months before the 
 meeting was held.— A $ T. 262. 
 
220 
 
 and attended the meetings therein represented to 
 have been attended and spoken. The newspapers, 
 having been published by Gray and Barrett, were 
 admitted against Mr. O'Connell as evidence of the 
 truth of the statements which the papers contained 
 concerning the conduct and acts of Mr. O'Con- 
 nell, and as evidence of the truth of the relations 
 which they contained of antecedent events. The 
 instance was the very first in which a news- 
 paper had ever been given in evidence in such cir- 
 cumstances for such a purpose. What amount of 
 propriety there was in admitting it upon the recent 
 occasion will appear by the following extracts from 
 the latest (Mr. Amos' s) edition of the first volume of 
 Mr. Phillipps's " Treatise on the Law of Evidence," 
 pp. 210—212. 
 
 " Any writings or verbal expressions which are acts in them- 
 " selves, or accompany and explain other acts, and are, there- 
 of ore, part of the res gesta, and which are brought home to one 
 " conspirator, are evidence against the other conspirators, pro- 
 " vided that it sufficiently appear that they were used in the 
 " furtherance of the common design. 
 
 " For the same reason, declarations and writings explanatory 
 of the nature of the common object are receivable in evidence, 
 " provided they accompany the acts done in the prosecution of 
 " such object, arise naturally out of those acts, and are not in 
 
 " THE NATURE OF A SUBSEQUENT STATEMENT OF THEM. 
 
 " But where words or writings are not acts in themselves, nor 
 " part of the res gesta, but a mere relation of some part of 
 " the transaction, or of the share which other persons 
 " have had in the execution of the common design, the 
 " evidence is not in its nature original. It depends upon the 
 " credit of the narrator, who is not before the Court; and it 
 " cannot therefore BE received." 
 
221 
 
 These passages are abundantly sufficient to show 
 the impropriety of admitting the papers in question 
 for the purpose for which they were admitted ; and 
 the most extraordinary fact connected with the 
 decision of the Court upon this point, is the little 
 or no degree in which the majority of the judges 
 appear to have adverted to the plain and palpable 
 distinction which is made in the extracts, and 
 which had been so distinctly pointed out to their 
 notice in the judgment of Mr. Justice Perrin. 
 
 That this motion, if addressed to any of the 
 Courts at AVestminster Hall, would be granted, is 
 perfectly clear as a matter of general principle. 
 There occurred, however, at the period in question, 
 a case in the Court of Queen's Bench in this 
 country, which demonstrates in so complete, and 
 we may add, so confounding a manner, the gross 
 impropriety of the decision of the Court of Queen's 
 Bench in Ireland, that we cannot abstain from here 
 inserting the case, that of The Queen r. Blake and 
 Tye, as it was reported in the London papers of 
 the 3 1 st of May last year : — 
 
 The defendants had been indicted for having 
 conspired to defraud the revenue, by causing goods 
 to be delivered out of the Queen's warehouse with- 
 out paying the whole of the duty, and amongst the 
 documents tendered in evidence against Blake at 
 the trial, were certain entries made by Tye, in his 
 own ledger, together with a sort of account, stated 
 by him upon one of the butts or counterfoils of his 
 
222 
 
 check-book with his banker. The first class of en- 
 tries contained accounts of the successive deliver- 
 ings out of the goods in the course of the several 
 stages of the transaction, as well as a statement of 
 Blake's name, as the Custom-house officer who was 
 concerned in aiding the delivery, the entries being 
 contemporaneous with the deliveries which were so 
 entered. The account upon the counterfoil stated, 
 along with other matters, that Blake was entitled to 
 a sum of eighty-two pounds, as his share of the 
 produce of the fraud. Mr. Cockburn, at the trial, 
 objected to the reception of either of these docu- 
 ments as against Blake, but Lord I) en man allowed 
 both to be read. The defendants having been found 
 guilty by the jury, Mr. Cockburn upon a subsequent 
 occasion obtained a rule nisi for a new trial, and 
 cause was shown against it afterwards by the Soli- 
 citor General and Mr. Pollock. The Court, how- 
 ever, without any hesitation, and without even think- 
 ing it necessary to hear Mr. Cockburn in support of 
 his rule, unanimously decided that the new trial 
 ought to be granted. 
 
 Lord Denman said, that with regard to the en- 
 tries, the Court had no doubt of the propriety of 
 their admission, as they arose naturally out of the 
 successive steps in the transaction, and were, in 
 fact, a portion of it. With respect, however, to 
 the memorandum upon the counterfoil, it was, in 
 substance, the same as a declaration by Tye, that 
 he had given the money to Blake, and such a declar- 
 
223 
 
 ation, according to all the authorities, could not be 
 received against Blah. He, Lord Denman, had so 
 much doubt upon the subject at the trial, that in 
 admitting it, he had only yielded to the jjressing 
 instances of the' Attorney -General, by whom the pro- 
 secution was conducted. He was now, however, 
 clearly of opinion, that, being a statement of one con- 
 spirator of the part which another had taken in the 
 conspiracy, it was inadmissible as evidence against 
 the person whose part in the transaction it professed 
 to describe. If the Court were to open a door for 
 the admission of such statements, they would find 
 themselves oftentimes extremely embarrassed by 
 the fact of one conspirator making such a statement 
 about others as should completely exonerate him- 
 self, and tli row the whole blame upon them. It 
 was quite clear, that a mere statement which one 
 conspirator makes either to a third party, or upon 
 an occasion when he may think proper to act for him- 
 self cannot be received as evidence against any other 
 person charged with participating in the conspiracy. 
 
 Mr. Justice Patteson concurred entirely in the 
 judgment of Lord Denman, as well as in the grounds 
 of it, and stated that in the cases which had been 
 relied upon by the Solicitor-General (and which 
 were the same upon which reliance was placed by 
 the Attorney-General, and apparently by the Court 
 of Queen's Bench, in Dublin) the distinction laid 
 down in the text -books between declarations accom- 
 panying the acts of the conspirators, and subsequent 
 
224 
 
 statements of antecedent events, had been 'particularly 
 preserved and acted upon, 
 
 Mr. Justice Williams and Mr. Justice Coleridge 
 expressed the same opinion, considering it to be 
 perfectly clear, upon acknowledged principles, that 
 no subsequent statement by one conspirator, of an 
 antecedent event, was receivable in evidence to affect 
 another* 
 
 From this judgment, it is perfectly clear that 
 the new trial, which was refused in Dublin by a 
 majority of three judges to one, would have been 
 conceded at Westminster, without argument, by a 
 majority of four to nothing; and that the Irish 
 decision against the new trial may be said, there- 
 fore, to rest upon the authority of three judges out 
 of eight, whilst it is totally destitute of any support 
 or countenance from any principle, or any case or 
 any writer whatever. 
 
 Having been charged, tried, and convicted in the 
 monstrous manner which we have mentioned, Mr. 
 O'Connell came up to receive the sentence of the 
 Court upon the 30th of May, when there was pre- 
 sented the most extraordinary exhibition that had 
 been theretofore made, even upon this very extraor- 
 dinary trial. Mr. Justice Burton, who officiated upon 
 the part of the whole tribunal upon the occasion, 
 observed that " the Court felt that it ought not to 
 
 * The case was down for hearing during the sittings after last 
 Hilary Term, at Guildhall, but was withdrawn by the Crown. 
 
225 
 
 ,k be led away by feelings of indignation , nor by any 
 14 desire to inflict punishment for punishment sake, 
 " but to bring their minds to the subject free from 
 " external influence. For himself, and he thought 
 " he may add for all the Court., he was sure that 
 " their minds had been brought into exactly the 
 44 proper state to consider the case." It certainly 
 was worth while to commemorate in a special man- 
 ner the fact that the Court, after the conviction of 
 the defendants, and upon the arrival of the catas- 
 trophe, had been brought into the sort of judicial 
 temperament which seemed necessary to secure a 
 calm and impartial decision. The misfortune of 
 the matter is that the learned Judge immediately 
 afterwards proceeds to make a statement which, as 
 far as it is intelligible at all, seems very decidedly 
 to negative this desirable condition of complete im- 
 partiality. His Lordship says, " We are bound to 
 " award punishment of an exemplary kind ; but, at 
 " the same time, determined not to suffer any opinion 
 " of our own as to the offence to guide us in the sen- 
 u tenee, but strictly to examine and conclude upon 
 u the character of that offence." 
 
 The multitudinous meetings constituted of course 
 the principal topic of his Lordship's address ; and 
 he did not fail to make upon this subject, as the 
 Chief Justice had previously done, several assertions, 
 which denoted the most entire oblivion of the evi- 
 dence which had been given, or the most complete 
 contempt for it. Mr. Justice Burton observed that 
 
 r 
 
226 
 
 the meetings in question 4 4 must necessarily have 
 44 been attended with great terror to all the Queen's 
 44 subjects in the neighbourhood in which the assem- 
 44 blages took 'placer Upon this subject it shall 
 suffice to remind the reader once more, not only 
 that all the evidence which was given upon this 
 point, expressly and directly proved that no alarm 
 was excited — much less any terrok — in the neigh- 
 bourhood by the meetings ; but that it was upon 
 the very ground of those assemblies not causing any 
 apprehension in the neighbourhood, for either person 
 or property, that the Solicitor General justified the 
 conduct of the Government, in having indicted the 
 defendants for a conspiracy, instead of charging 
 them with attendance at illegal assemblies. The 
 Solicitor General stated, after all the evidence in 
 the case had been given, that if any separate meet- 
 ing had been made the subject of an indictment for 
 illegality, such prosecution would be triumphantly 
 answered and deservedly defeated by the fact that 
 no alarm whatever was excited by the meeting in 
 the neighbourhood where it took place, or anywhere 
 else. Yet Mr. Justice Burton asserts, that the 
 meetings must have produced not alarm only but 
 terror — an assertion which he must have known, and 
 which every one else knew, to be directly and ex- 
 pressly contradicted by the evidence which was given 
 upon the trial — by the case which was made on the 
 part of the prosecution by the law-officers of the 
 Crown ; and by the very case made against Mr. 
 
227 
 
 ( TConnell even by the Chief Justice himself.* In the 
 same manner, showing as little regard for the state of 
 the record in one case as he had shown for the evi- 
 dence in the other, his Lordship observes, " the 
 " main offence imputed to the traversers is, that of 
 u attempting the abolition or abrogation of the legis 
 u lative union, as at present subsisting, by means of 
 w a conspiracy, which is alleged by the indictment, 
 " and has been so found by the jury, as formed 
 u by them, with the intention to intimidate the 
 M subjects of the Queen who are opposed to such 
 u a measure : " and elsewhere he calls it, iC k con*- 
 " spiracy to abolish the legislative union, by means 
 M of the intimidation caused to various branches 
 u and bodies of her Majesty's subjects." 
 
 Upon these assertions we shall trouble the reader 
 no further than by reminding him, that the indict- 
 ment contained no mention of any subjects of Her 
 Majesty, whether opposed to the Repeal of the 
 Union or not, who were to be intimidated by the 
 exhibition of physical force at the meetings, much 
 less of any particular M branches and bodies of Her 
 " Majesty's subjects." The English judges, in declai - 
 ing the charge upon the record about the physical 
 force at the multitudinous meetings to amount to 
 nothing at all, expressly and in a very remarkable 
 manner, as the reader has already and frequently 
 seen, drew the attention of the House of Lords to 
 
 * Supra, p. 181- "Not for the purpose of terrifying the 
 u neighbours " — " but for an ulterior and more remote object." 
 
 p 2 
 
228 
 
 the fact, that the charge in question contained no 
 statement of the sort of intimidation intended to be 
 alluded to, nor any allegation as to the persons, if 
 any, who were to be the objects of it; nor any 
 allegation that the physical force was used, or 
 threatened, or intended to be used against any 
 body whatever. 
 
 To give a peaceful character to the meetings 
 answered the purpose of the Crown in the 
 circulating sophistry by which they attempted 
 to make a juggling justification for their con- 
 duct in adopting the cumulative, circuitous, and 
 constructive prosecution to which they had re- 
 course for the purpose of attempting to esta- 
 blish the illegality of meetings, the character of 
 which they did not dare to assail by any direct 
 imputation which was known to the law, or upon 
 which any specific issue might be distinctly placed 
 before a jury, and correctly estimated by the public. 
 When, however, the sentence was to be pronounced, 
 it was felt of course that it would be rather too 
 glaring an iniquity to inflict actual punishment in 
 hypothetical reference to " ulterior " contingencies 
 and " remote " futurities, and then it became neces- 
 sary to give a character to the meetings in direct 
 opposition to the whole evidence in the case, and 
 indeed in the directest opposition to the funda- 
 mantal theory of the very case itself. Having 
 already entered with some degree of minuteness 
 into the consideration of the several portions of the 
 
229 
 
 conduct which was attributed to the defendants, 
 and alleged to be illegal, and having, as we con- 
 ceive, demonstrated very satisfactorily that such 
 actions were in some instances meritorious, in 
 others not illegal, and in any event that they were 
 only what the same individuals had for many years 
 before been in the habit of doing, and what hun- 
 dreds of other persons have been and are now in 
 the habit of doing without any imputation of ille- 
 gality, we believe that the reader will agree with 
 us in thinking that the punishment inflicted upon 
 Mr. O'Connell by fine and imprisonment was ex- 
 travagantly severe, and that notwithstanding the 
 assurance given by Mr. Justice Burton that the 
 Court had been brought into a state proper for the 
 impartial consideration of the subject from some 
 other state less proper for the performance of such 
 a duty ; yet there is reason enough to believe that 
 those " feelings of indignation," to which the learned 
 Judge alluded as being so unfit to influence the 
 conduct of their lordships in apportioning the pu- 
 nishment, had not been so totally suppressed as 
 their lordships themselves appeared to suppose. 
 
 The most important of the language called se- 
 ditious used by Mr. O'Connell was said by the 
 Chief Justice to be seditious nonsense, although 
 it had been previously uttered by Saurin, Plun- 
 kett, and Bushe. The language in which he was 
 said to have endeavoured to excite hostile feel- 
 ings in the people of Ireland against the people 
 
 p 3 
 
230 
 
 of England, exhibits not the tenth part of the 
 violence with which at the very same time thou- 
 sands of individuals, and dozens of societies, 
 were endeavouring to excite hostility in the people 
 of England against the people of Ireland. The 
 language used in reference to the soldiery we 
 have shown to be the same which expresses the 
 principles of moral science upon that subject, whilst 
 the Chief Justice declared that as a matter of fact 
 there was no evidence that the papers in question, 
 whatever may be their character, had ever come 
 into the hands of any individual soldier. No part of 
 the evidence appears to be in a peculiar degree appli- 
 cable to the charge of intimidating the legislature 
 by speeches and writings, which is contained in the 
 eleventh count, and the charge itself upon that 
 record is contradictory and absurd, as the whole of 
 the prosecution went upon the ground that the 
 defendants combined to effect the repeal of the 
 Union, not through the medium of an act of the 
 Legislature, but by the application of some other 
 means. The Chief Justice expressed this view of 
 the case half a dozen times over in the course of 
 his address to the jury. The only remaining part 
 of the charge was that of setting up the Arbitration 
 Courts, of which we have sufficiently disposed 
 already, and in respect of which the evidence 
 proved that the two defendant-arbitrators, Mr. 
 John (yConnell and Mr. Gray, had assumed cogni- 
 sance of one cause, in which the only judicial act 
 
231 
 
 which they performed was that of adjournment, 
 and which seems to have been as real a piece of 
 litigation as that represented by Homer as having 
 been represented by Vulcan upon the shield of 
 Achilles. After having sentenced Mr. O'Connell 
 for his share in these offences to suffer imprison- 
 ment for twelve months, and to pay a fine of 2000/.. 
 Mr. Justice Burton proceeded to direct that he 
 should give security to the extent of ten thousand 
 pounds! that he would keep the peace for seven 
 years. This last part of the sentence is so incre- 
 dibly absurd, and is shown by the Court itself to be 
 so unjustifiable, that we should suppose there existed 
 some mistake in the report, if we saw any ground, 
 however slight, for believing in such an error. 
 It is scarcely credible — one can with difficulty 
 believe, upon even the testimony of one's own eye- 
 sight — it is, however, an indubitable fact, that this 
 very judge, who sentenced Mr. O'Connell to give 
 security to the extent of ten thousand pounds ! that 
 he would keep the peace for seven years, actually 
 declared in the same judgment, within one minute 
 before, that numerous and multitudinous as the 
 Repeal meetings had been, they had not exhibited 
 
 A SINGLE INSTANCE OF A BREACH OF THE PEACE. 
 
 That this absence of a single breach of the peace, 
 in the course of a political agitation, which was 
 accompanied with unparalleled excitement, and in 
 which millions of the peasantry participated for a 
 
 p 4 
 
232 
 
 period of several months, was the result of the pacific 
 influence exercised by Mr. O'Connell, that he himself 
 [the Judge who sentenced Mr. O'Connell to give 
 security to the extent of ten thousand pounds, that 
 he would keep the peace for seven years] believed 
 — that he, the Judge himself, believed — that it was the 
 intention of Mr. O'Connell to carry the Repeal of the 
 Union without any infraction of the peace, and 
 
 WITHOUT SHEDDING A SINGLE DROP OF BLOOD ; that 
 
 he, the Judge, was convinced that Mr. O'Connell 
 had this determination to preserve the peace firmly 
 fixed in his mind, and that it was the great influence 
 which he possessed over the parties who joined him, 
 that enabled him to preserve the peace unbroken. His 
 lordship went on to refer to the continual declara- 
 tions of Mr. O'Connell, that he would abandon the 
 people to themselves, if they committed any violation 
 of the peace ; and that no violation of the peace would 
 ever be committed with his consent. Having referred 
 to these passages, his lordship declared his belief 
 that all the expressions which he had cited showed 
 how very anxious was Mr. O'ConnelVs desire for the 
 preservation of the peace, " and whether," said 
 the learned Judge, " Mr. O'Connell had expressed 
 u such desire or not, the preservation of the 
 " peace was the consequence of all that he 
 " said and of all that he did." 
 
 Could any man — can any man, believe that 
 the Court of Queen's Bench, after having thus 
 
233 
 
 deliberately expressed their own judgment upon 
 the pacific nature and consequences of Mr. O'Con- 
 nell's principles, recommendations, and conduct — 
 after deliberately declaring that, throughout the 
 whole period of the recent agitation, he had pre- 
 served the peace inviolate, in a continuance of cir- 
 cumstances which, in the judgment of the Court, 
 had a tendency to the generation of tumultuous 
 OUTKAGE — can it be believed, that the same Court 
 should, in the same breath, direct Mr. O'Connell 
 to give security to the extent of ten thousand 
 pounds, that he would not, for the next seven years, 
 violate that peace which he was not even charged 
 with violating, or intending to violate; which the 
 Court itself declares that he has never violated, hut 
 has always preserved, and will preserve to the end 
 of his life. Mr. O'Connell is sentenced to the present 
 punishment of being obliged to find and give secu- 
 rity to the amount of ten thousand pounds, upon 
 the contingent possibility that, peradventure, upon 
 some future occasion — nobody knows when — some 
 other person — nobody knows who — may commit, 
 in spite of Mr. (J Conned, an offence which the 
 judges who sentenced Mr. O'Connell declare that 
 he will never commit, nor allow any one else to 
 commit if he can prevent the commission. And in 
 reference to this future offence, to be possibly 
 committed by some other person in opposition to 
 Mr. ConneWs efforts at preventing the commission, 
 Mr. O'Connell and others (his sureties) are bound 
 
234 
 
 to enter into recognisances upon which it would be 
 ridiculous to suppose that either the sureties or the 
 principal could ever be made responsible, even sup- 
 posing the offence to be actually committed in the 
 circumstances contemplated and described by the 
 Court itself ! The wanton, flagrant, self-contradic- 
 tory iniquity and absurdity of this part of the 
 sentence, transcends all capacity of description, 
 and cannot fail to be received with indignation by 
 every person whose sentiments are sufficiently 
 elevated to render him more solicitous for the ra- 
 tional administration of justice, than the gratifica- 
 tion of political or personal hostility. 
 
 When this administration is pure, enlightened, 
 and unimpassioned, it becomes what it was intended 
 to be, the principal support of civil society, and 
 secures the willing obedience and cordial veneration 
 of the community which reposes under its protec- 
 tion. The administration of justice, however, like 
 all other human institutions, depends, not only for 
 its efficiency, but for its very existence, upon the 
 opinions which are entertained about it by the 
 judicious, the instructed, and the impartial mem- 
 bers of the community ; and these opinions are 
 directed to the conduct of the parties by whom the 
 tribunals are put into motion, as well as to that 
 of the tribunals themselves. 
 
 That feelings of such a nature as we have men- 
 tioned should in a peculiar degree find a place 
 among the members of the profession of the Bar, 
 
235 
 
 was of course to be expected ; and we cannot be 
 surprised, therefore, at the following description of 
 the scene which occurred in the Irish Court of 
 Queen's Bench, when Mr. O'Connell came up to 
 receive the sentence of the Court. The following 
 account of this extraordinary and unprecedented 
 occurrence is taken from the " Times " of the 
 1st June, 1844 : — 
 
 " All the barristers present at the time in Court, with the 
 " exception of comparatively feiv, rose and greeted Mr. O'Con- 
 " nell, upon his entrance, with loud and repeated rounds of 
 u cheers, accompanied with clapping of hands. This demon- 
 u stration of acclamation continued for a few minutes, and as it 
 " seemed to become louder, it was evidently joined in at the 
 " clo.<e by a great many who had not ventured to do so at the 
 u beginning. Indeed we are in formed that meiny of the barris- 
 " ters who joined in that singular display of feeling ARE not 
 
 " THE POLITICAL PARTISANS OF Mr. O'CONNELL. We MAY 
 " ALSO OBSERVE, THAT THE DEMONSTRATION SEEMED TO BE 
 4< CONFINED TO THE MEMBERS OF THE BAR." 
 
 This extraordinary excitement and sympathy 
 among the members of the Irish Bar, and espe- 
 cially among the political opponents of Mr. O'Con- 
 nell, is perfectly intelligible. Accustomed as they 
 are to the daily administration of justice, and 
 deeply sensible as they must consequently be of its 
 infinite importance, they had been shocked at be- 
 holding some of its most fundamental principles 
 violated in the trial of Mr. O'Connell. They had 
 seen eight or nine defendants overwhelmed in a 
 body by an act of accusation so multifarious in 
 its character, and containing such a multitude of 
 
236 
 
 heterogeneous imputations, that the copy of it 
 occupies a moderately bulky volume of the octavo 
 size. They had seen the defendants tried upon 
 this interminable accusation by a jury which was 
 most unquestionably and effectually packed, whe- 
 ther through accident or fraud. They had seen 
 a new trial refused, in circumstances in which they 
 must have considered that it ought to be granted 
 as a matter of right. They knew that all these 
 occurrences constituted an example equally dan- 
 gerous to all men of all parties, and they felt that 
 what was the case of their political adversaries 
 to-day, may be their own case to-morrow. They 
 must have believed that whatever may be said 
 about the separate overt acts imputed to Mr. O'Con- 
 nell, the charge of conspiracy was untrue, and, in 
 the circumstances, actually ridiculous; and how- 
 ever, therefore, they may have rejoiced to see Mr. 
 O'Connell convicted upon an indictment rendering 
 him directly and solely responsible for a distinct, 
 substantive, palpable, and intelligible offence, they 
 revolted from the notion of punishing him for a 
 conspiracy, of which they probably did not believe 
 him to be guilty, and of which he expressly de- 
 posed upon his oath, as did every other defendant, 
 that he and they were jointly and severally and 
 totally innocent. 
 
 This feeling could have scarcely been diminished 
 by the combination of excessive severity and essen- 
 tial absurdity by which the sentence was distin- 
 
237 
 
 guished. We accordingly find that when Mr. 
 O'Connell protested his innocence of the offence 
 imputed to him, and declared that justice had not 
 been done, loud cheers broke from all parts of 
 the Court. The judges, but particularly the Chief 
 Justice, looked around them as if utterly con- 
 founded by this outburst of professional and po- 
 pular feeling. The cheering was continued for a 
 few minutes, and as it was about to subside, was 
 again renewed in obedience to the call of " one cheer 
 " more." Such was the vehement, uncontrollable, and 
 most decisive assent which was given by Mr. O'Con- 
 nell's own political antagonists to the truth of his de- 
 claration, that "justice had not been done" to him. 
 
 A writ of error having been sued out, the case 
 was brought before the House of Lords, where the 
 principal questions were, the correctness of the in- 
 terlocutory judgment, allowing the demurrer to the 
 plea in abatement ; the propriety of the other inter- 
 locutory decision overruling the challenge to the 
 array; and the validity of the final and general 
 judgment in the form and circumstances in which 
 it was entered up, and in reference to the grounds 
 upon winch it was, or professed to be, supported. 
 The judges were summoned to assist the House in 
 its deliberations, and before the final judgment 
 was delivered gave written answers to certain ques- 
 tions which were proposed upon the part of the 
 House, and to which we shall more particularly 
 
238 
 
 advert, according as there shall be occasion to 
 do so. 
 
 Upon the subject of the challenge to the array 
 we have already inserted the greatest portion of 
 the masterly and invaluable observations of Lord 
 Denman, to which it would be as " wasteful and 
 " ridiculous excess " to add any observations of our 
 own, as " to gild refined gold, to paint the lily, or 
 " throw a perfume on the violet," — even if we pos- 
 sessed, in a more considerable degree than we pre- 
 tend to possess, an acquaintance with the art of 
 argumentative and oratorical perfumery and gild- 
 ing. To the arguments of his Lordship we there- 
 fore commend the reader once more, being convinced 
 that to whatever political party he may belong, yet 
 if he be adequately imbued with the love of impar- 
 tial justice in general, and with admiration for the 
 provisions which have been made for the purity of 
 its administration under the British constitution in 
 particular, the noble address of Lord Denman will 
 not only please upon a second perusal, but that 
 
 " Decies repetita placebit." 
 
 The question which arose out of the judgment 
 upon the plea in abatement, and upon the error 
 assigned in reference to the subject of the plea, will 
 be sufficiently understood from a perusal of the fol- 
 lowing summary of the law and of the facts con- 
 nected with that part of the case : — 
 
 The 56 Geo. 3. c. 87. recites, 44 that a practice 
 
239 
 
 " prevailed in many of the grand juries in Ireland 
 " of finding bills of indictment without examining 
 " any witnesses for the Crown / " And after a short 
 interval goes on to provide, " that from and after 
 11 the passing of that act no bill shall be returned a 
 M true bill by any grand jury in Ireland unless the 
 " same has been found by the jurors upon the 
 M evidence of one or more witnesses, sworn in court, 
 " and produced before the grand jury." 
 
 The immediate effect of this act of parliament 
 was to establish by statute in Ireland the practice 
 which had been established by the common law in 
 England. The statute in the former country was, 
 however, more stringent than the usage was here. 
 For whereas there existed some grounds for believing 
 that a grand jury in England may find a bill of 
 indictment without the testimony of one or more 
 witnesses who had been sworn in open court, the 
 Irish act of parliament expressly prohibits the jury 
 from finding any bill in such circumstances. From 
 the nature and construction of such provision it 
 inevitably results, not only that any bill which may 
 be found in the manner prohibited by the statute 
 would be an absolute essential nonentity, but that 
 the jury in finding it would be guilty of an actual 
 violation of the law. Upon the passing of the act 
 it immediately became the practice to swear the 
 witnesses exactly in the same manner as in this 
 country, and the proper officer always authenticated 
 the circumstance by a memorandum in the following 
 
240 
 
 form, which was placed upon the back of the bill : 
 " John Smith, William Brown, Henry Jones, and 
 " Charles Kobinson, four witnesses sworn in open 
 " court. — John Reynolds, Crier." So that the in- 
 dictment contained upon itself the evidence of its 
 having been returned a " true bill " according to 
 the provisions of the act of 1816. 
 
 The 1 & 2 Vict. c. 37. recites the passing of the 
 act of 1816, and recites the recital of that act: 
 " That a practice had prevailed in many of the 
 " grand juries of Ireland to find bills of indictment 
 " without examining witnesses for the Crown." It 
 then goes on expressly to recite the part of the 
 former act which absolutely prohibits the finding of 
 any bill to be a true bill in such circumstances. It 
 then recites that the other parts of the provisions 
 of the former act had been found most salutary, 
 " but that the administration of the oath in court 
 " had been found to be productive of delay, &c." 
 It then goes on to enact that before the examination 
 of any witness the foreman or other member of the 
 grand jury shall administer to him the oath re- 
 quired by law ; and that the foreman or other mem- 
 ber who should have administered such oath shall 
 upon the back of the bill endorse the name of the 
 witness so sworn by such member, " and authen- 
 " ticate the same by his signature or initials." 
 
 Since the passing of this latter act the witnesses 
 have been sworn in the grand-jury room, and by 
 the members of that body ; and as the evidence, 
 
241 
 
 which was formerly afforded by the memorandum 
 of the officer that the witnesses had been sworn 
 according to law, could not possibly exist any 
 longer in that shape, the legislature directed that 
 whatever member of the jury should happen to 
 administer the oath to a witness should, with his 
 own hand, upon the record authenticate the fact of 
 his having done so. With regard to this matter 
 it appears, beyond controversy, to have been the 
 object of the legislature that the bill itself should 
 contain intrinsic evidence of its having been found 
 in the manner which was required by the law; and 
 the legislature not only considered that the method 
 enjoined by the statute produced the most authentic 
 evidence of the fact, but the only evidence which 
 the legislature contemplated upon the subject — 
 the sworn secrecy of the grand jury proceedings 
 preventing the possibility of the existence of any 
 other evidence of an authentic or official character. 
 
 It appears in the present case that the indictment 
 contains no entby or memorandum, great or 
 small, of the kind, which is imperatively required by 
 the statute, in order to the validity of the indictment 
 itself. It has the appearance of an indictment found 
 before the act of 1816, and in the vicious and 
 illegal manner which it was the declared purpose 
 of that act to prohibit for all future time. It con- 
 tains not, in short, any trace of any evidence to show 
 that it has been found in the manner which the law 
 requires ; that is to say, it contains no evidence what- 
 
 Q 
 
242 
 
 ever that it has ever been legally or sufficiently found 
 at all. 
 
 Such being the state of the facts upon this point, 
 the following " information " was given to the 
 House of Lords by the judges in this country : — 
 
 " And with regard to the error in fact assigned 
 " by the defendant Thomas Steele, it is manifestly 
 " founded on a part of the section that is directory 
 " only, and not essential. The oath must have been 
 " already administered (which is the essential part 
 " of the enactment) before, in the language of the 
 " statute, ■ the for email who shall have administered 
 " the oath ' is directed to state the name of the 
 " witnesses sworn, and to authenticate the same by 
 " his signature, or initials, that is, before the objection 
 " above made can possibly arise. As a matter of con- 
 " venience at the trial, in order to ascertain at a glance 
 " whether the witness examined before the crown jury 
 " was one of those who appeared before the grand 
 "jury, such direction ought undoubtedly to have been 
 u complied with ; but it cannot be the law that 
 " after the witness has been duly sworn and examined, 
 u and the bill returned a true bill upon his evidence, 
 u it can be deprived of its legal operation and cha- 
 u racter by reason of the foreman of the grand jury 
 " having neglected to comply with such direction 
 " of the statute." 
 
 It is difficult to treat this kind of reasoning with 
 the respect which is due to the persons by whom it 
 was used. In delivering the opinions of the judges 
 
243 
 
 upon the Sussex Peerage case, the Lord Chief Jus- 
 tice, in speaking of the Royal Marriage Act, said 
 that its language was precise, and unambiguous, 
 and its intentions clear and unmistakeable. The 
 very same observation may, with even more truth, 
 be made concerning the statutes now under con- 
 sideration — the object of both of them being, in 
 the language of Chief Justice Pennefeather, to re- 
 medy a " prevalent evil pervading the adniinistra- 
 M tion of justice in every part of Ireland."* Now 
 we have always understood it to be an invariable 
 rule that u where a statute directs a tiling to be 
 " done for the sake of justice, even the word k may ' 
 " means the same as the word 4 shall :' so if a sta- 
 " tute says that a thing may be done which is for 
 " the public benefit, it shall be construed that it 
 " must be done.f In the Queen v. Price J, it was 
 held by the Court of Queen's Bench in England that 
 an indictment would lie against an officer who re- 
 fused to obey an injunction in a statute relating to a 
 matter of public concern. So that if the expression 
 were in form only permissive, instead of being as 
 it is, directly mandatory, yet as the matter is of 
 public importance, and concerns the administration 
 of justice, the provision would impose an obligation 
 with which it would be indispensable for the jurors 
 
 * Page 63. 
 
 t Dwarris on Statutes, 712. R. v. Barton, 1 Salk. 609. 
 R. v. Flockwood, 2 Chitty R. 251. 
 % 1 1 Ad. & El. 727. 
 
244 
 
 to comply, in order to give validity to the finding 
 of the indictment. We are sorry to be obliged to 
 observe that the language in which the opinion of 
 the judges is expressed upon this part of the case 
 demonstrates the very slight and superficial atten- 
 tion which they bestowed upon the point. The 
 Chief Justice assumes twice over that the oath 
 can be administered by the foreman only ; whereas 
 the statute expressly provides, as will be seen, 
 that it may be administered by any member, " pro- 
 " vided that he as well as the foreman shall authen- 
 " ticate that fact by his signature or initials." The 
 Chief Justice observes that " the oath must have 
 " been already administered before this objection can 
 " arise;" but what means are there of ascertain- 
 ing whether it has been administered or not if the 
 writing of the name or initials be not obligatory. 
 His Lordship goes on to say, " that as a matter of 
 " convenience at the trial," &c. But it is perfectly 
 obvious that the statutes in question had no view 
 at all to any thing which may happen at the trial. 
 Their declared purpose was to prevent a trial upon 
 any indictment which had not been found in the 
 manner therein commanded, and to provide that 
 every indictment, before it came to be tried, or even 
 found, should contain upon itself " authentic" evi- 
 dence of the fact that it had been found according 
 to law — there being no means whatever of ascer- 
 taining that it was so found except the means 
 which the statute itself provided, but which this 
 decision has abolished. 
 
245 
 
 In the same spirit of assumption the Chief J us- 
 tice goes on to say that " it cannot be the law that 
 " after the witness has been duly sworn and ex- 
 k> a mined, and the bill returned a true bill upon 
 " his evidence, it can be deprived of its legal opera- 
 " tion and character" But the Bill can have no 
 " legal operation or character " unless the witness 
 has been so sworn; and the decision of the Chief 
 Justice has annihilated the only means of ascertain- 
 ing whether he has been so sworn or not. One 
 consequence, therefore, evidently and inevitably 
 flows from the decision, namely, that there is now 
 nothing to prevent grand juries in Ireland from 
 returning bills to be true bills without swearing 
 any witnesses whatever, that is to say, to prevent 
 them from doing in fact what the statutes of the 
 56 Geo. III. and the 1 & 2 Victoria expressly pro- 
 hibit them from doing in law; and these two Acts 
 of Parliament, which were passed, according to the 
 statement of Chief Justice Pennefather himself, to 
 remedy " a prevalent evil pervading the adminis- 
 " t ration of justice in every part of Ireland," are 
 virtually repealed. Xobody who knows anything 
 about the grand juries of Ireland will attempt to 
 set up in their favour any presumption founded 
 upon either law or fact, of their discharging their 
 duties with propriety and in conformity to the 
 law. Such presumption, if advanced in the pre- 
 sent case, would be immediately annihilated by the 
 statutes themselves, which expressly and very truly 
 
 Q 3 
 
246 
 
 recite that it has been the custom of those bodies 
 to do not right but wrong. 
 
 Although we have already* entered at some 
 length into the conduct of the Crown and of the 
 Court of Queen's Bench in refusing, pertinaciously 
 if not perversely, to allow the defendants to have 
 a list of the witnesses who appeared before the 
 grand jury in support of the bill, yet we cannot 
 help again adverting to that subject in this place. 
 The reader will perceive, upon referring to the 
 language of the judges, in the decision which we 
 have been just now examining f, that they ex- 
 pressly assume that the defendants had a list of 
 the witnesses. Such would unquestionably have 
 been the case in this " realm of England Proper." 
 In Ireland, however, " they manage these things " 
 differently ; and not only did Mr. O'Connell remain 
 ignorant, until judgment was pronounced against 
 him, of the names of the persons upon whose tes- 
 timony the grand jury had found the indictment, 
 but the solicitors for the defence were not even 
 allowed to look at the back of that instrument. % 
 
 There only remains for consideration the third 
 of the grounds of error which we have mentioned 
 above, in respect to which we shall consider it 
 sufficient for our present purpose to remind or 
 inform the reader that the immediate subject for 
 
 * Supra, p. 122., &c. | Supra, p. 242., line 6., &c. 
 
 J Affidavit of the attornies, printed by order of the House 
 of Commons, 19th June, 1844. 
 
247 
 
 consideration was the validity of a judgment which 
 was expressed in general terms upon the whole 
 ofan indictment containing six different offences 
 charged in good counts and bad, in a case 
 where a separate verdict of guilty was found and 
 entered upon each of the counts, good and bad ; 
 where the verdict was illegally found and entered 
 upon some of the good counts, and where, to use 
 the language of the record, " the court, having fully 
 u seen and understood all and singular the premises" 
 awarded a certain punishment against the defend- 
 ant M for his offences aforesaid," and where the 
 quantum of the punishment was a matter for the 
 discretion of the court. It was agreed upon all 
 hands that the judgment ought to be reversed if 
 the punishment were actually awarded upon all 
 the counts, bad and good, and if the words " his 
 " offences aforesaid " must be understood to mean 
 all the offences alleged in fact against the defendant 
 upon the record. The majority of the judges, 
 however, decided that the court below must be 
 taken to understand the difference between the 
 good counts and the bad ; that, as they would un- 
 questionably have given a wrong judgment if they 
 had given any part of it either in reference to 
 the bad counts, or the counts upon which there 
 were bad findings, it must be presumed that they 
 gave the entire upon the counts which were good 
 in themselves, and upon which the verdicts were 
 legally found and entered ; and that the words " for 
 
 Q 4 
 
248 
 
 " his offences aforementioned " must, therefore, be 
 understood as not meaning all the offences which 
 had been mentioned before, but only such part of 
 them as was alleged in the good counts, and sup- 
 ported by legal and appropriate findings, legally and 
 properly entered, and as rendered the defendant 
 liable, in law, to the punishment which was awarded 
 by the Court. Such was the decision of the seven 
 judges upon what may be called the construction of 
 the record ; and they stated, in further confirma- 
 tion of their own view, that it was in conformity 
 with a general impression which has prevailed upon 
 the subject in question from the time of Lord 
 Mansfield to the present period. 
 
 With regard to the wonderful presumption of 
 the infallibility of the Irish Court of Queen's Bench, 
 we think it sufficient to say that it was demolished, 
 in the very moment of its creation, by the very 
 judges who made it, and who unanimously decided 
 that certain counts in the indictment, which the 
 court below declared to be unexceptionably good, 
 were most unquestionably bad ; whilst we find, 
 from the authenticated accounts of the proceed- 
 ings of that court, that the assumption by the 
 judges in England that the judges in Ireland had 
 pronounced their judgment only upon the good 
 counts, was loudly, repeatedly, and most copiously 
 contradicted by the Irish judges themselves. The 
 question remaining for decision, therefore, was, what 
 foundation there existed, in reason, authority, or pro- 
 priety, for the general impression that such a judg- 
 
249 
 
 ment as the one under consideration was correct ? 
 The question upon this point, in other words, was, 
 how far the general impression to which we have 
 alluded was to be considered as a practical and 
 authoritative exemplification of existing law ? 
 About the actual existence of the impression there 
 was little or no question ; and Lord Denman and 
 Mr. Baron Parke expressly stated that they enter- 
 tained it up to the moment of entering the House. 
 This was the position of the case and of the argu- 
 ment at the instant when the Lord Chancellor 
 moved, in conformity with the opinions of the 
 seven judges, that the judgment be affirmed. It 
 is superfluous to say that his Lordship's address was 
 an able one. But we confidently appeal to all 
 persons who have the capacity to judge of such 
 matters, whether every part of it was not either 
 an assumption or an abandonment of the whole 
 matter which was really in controversy. He takes 
 for granted the infallibility of the Court of Queen's 
 Bench, and concludes, as the English judges had 
 done, contrary to the authenticated and unques- 
 tionable fact, that the Irish judges awarded the 
 punishment upon the good counts alone. 
 
 We shall take leave to cite, in reference to this 
 point, the opinions which were delivered by the 
 judges of the Queen's Bench upon the 29th of 
 May, in refusing the motion which had been made 
 to arrest the judgment. The Chief Justice de- 
 clared that the act of attempting to effect intimida- 
 
250 
 
 tion by the exhibition of great physical force 
 at the monster meetings, exceeded in audacity 
 every other part of the conduct which was charged 
 upon the defendants. Mr. Justice Crampton ex- 
 pressed himself in the most vehement language 
 against the assembling of multitudinous masses, for 
 the purpose of producing intimidation, in the man- 
 ner complained of in the indictment. Mr. Justice 
 Perrin called the offence a " very high misde- 
 " meanor" and said that it was nothing short of 
 threatening insurrection to attempt to intimidate 
 the Government by the assembling of multitudinous 
 masses and the display of great physical force. 
 Upon the next day, Mr. Justice Burton, in pro- 
 nouncing the sentence of the Court, observed that 
 " the main proceedings which were charged against 
 " the defendants were the assembling of vast mul- 
 " titudes for the purpose of overawing the Govern- 
 u ment and other persons, through the intimidation to 
 " to be produced by the exhibition of great phy- 
 " sical force." The learned Judge merely alluded 
 to the other parts of the charge, and then pro- 
 ceeded to pass sentence for the offence which, adopt- 
 ing the language of Mr. Justice Perrin, he called 
 a " very high misdemeanor." Nothing can be, there- 
 fore, more clear than that almost the whole punish- 
 ment ivas inflicted for the offence of procuring intimi- 
 dation by the exhibition of great physical force. 
 Now in the 5th, 8th, 9th, 10th, and 11th, which 
 are the only surviving parts of the indictment, 
 
251 
 
 there is no charge whatever of causing intimidation 
 
 by the EXHIBITION OF GREAT PHYSICAL FORCE ) and 
 
 the consequence is, that Mr. O'Connell has been 
 actually imprisoned for three months, and sentenced 
 to pay a fine of 2000/., upon the supposition that he 
 was guilty of an offence of which there was no legal 
 or valid allegation upon the record of his conviction. 
 
 Such was the state of the facts at the instant 
 when the Lord Chancellor moved the House of 
 Lords that the judgment of the Court be affirmed. 
 We shall now proceed to examine the grounds of 
 this motion, and we venture to hope that we shall 
 demonstrate that they are totally and evidently 
 inadequate even to give a colour to the confirma- 
 tion which he proposed. * 
 
 The Lord Chancellor says, that, in a civil case, 
 the record is always examined, in order to see that 
 the verdict is entered upon such counts as are valid 
 in law, and capable of supporting the judgment, 
 but that no such thing is ever clone in a criminal 
 case, in which latter instance the verdict is entered 
 as a matter of course, without any regard to the 
 sufficiency or insufficiency of the counts — the 
 foundation of this practice, both negative and posi- 
 tive, being, according to his Lordship, " that it has 
 " always been considered in the profession that 
 u any number of defective counts in the indictment 
 " cannot affect the judgment, provided there be one 
 l: good count upon the record to sustain it." Let 
 * Judgment, p. 2. 
 
252 
 
 us examine the tenor, estimate the value, and ascer- 
 tain the consequences of this argument or assertion, 
 whichever it be. 
 
 First, as a matter of fact, the record having a 
 good count is never, as it seems, any farther ex- 
 amined in the court below, because — secondly, it is 
 considered that one good count will support a 
 general judgment, however numerous may be the 
 bad ones ; thirdly, this consideration is founded 
 upon the principle that the court below awards no 
 punishment at all upon any of the counts that are 
 either ill framed or ill found, but assigns the whole 
 to such as are good in both those respects ; which 
 principle of necessity involves the presumption that 
 — fourthly, the Court not only is infallible in dis- 
 criminating between good and bad counts and find- 
 ings, but that it puts its infallibility into actual 
 operation by inquiring into the quality of the counts 
 and findings, for the purpose of distributing the 
 punishment, and that it therefore invariably ex- 
 amines the record before pronouncing the judgment — 
 that it invaeiably does what the Lord Chancellor 
 asserts as the foundation of his argument that it never 
 does at all ! Starting with the Lord Chancellor along 
 the line of the argumentation from the position of 
 fact, that the record is never examined by the court, 
 we find ourselves, under the conduct of his Lord- 
 ship, actually arrived at the conclusion that the 
 record is invariably examined by the court. The 
 fact of the record never being examined in the court 
 
253 
 
 below is assigned as a proof of the existence of the 
 general impression that the judgment is good, 
 whilst the goodness of the judgment rests, as a 
 matter of reason, upon the presumption that, first 
 of all, the court below is infallible in discriminating 
 between good counts and bad ; secondly, that it is 
 impeccable, to such an extent, at least, as to 
 exclude the possibility that it should award 
 any punishment upon either bad counts or good 
 counts badly found ; and, lastly, that, for the pur- 
 pose of seeing which counts are bad in either of 
 these respects, that examination of the record which 
 the Chancellor declares never to be made is made 
 universally and in variably. 
 
 Omitting the intermediate links of this odd sort 
 of sri tes, the argument in a compressed form is, 
 that the Judges never, in fact, examine the re- 
 cord in any instance, because in theory they are 
 presumed to examine it in all ; and that whereas 
 if such examination took place we should be justified 
 in presuming that all the punishment was put only 
 upon good counts well found, we are therefore to 
 take the same thing for granted though the examin- 
 ation had not taken place, and although the only 
 foundation assigned for the presumption is the 
 fact of the examination, which examination is de- 
 clared, in the same breath, never to be made as a 
 matter of fact ! The presumption, like every 
 other, can only be justified upon the ground that 
 it is a true expression of at least the ordinary and 
 
254 
 
 general condition of the facts. But it is unlike 
 every other in this extraordinary respect, that, 
 being founded upon the probability of a certain 
 state of circumstances, not only does that state of 
 circumstances not exist, but the very reason why 
 it does not exist is because of the presumption that 
 it does ! The presumption supports a rule because 
 of the existence of a fact, which fact, contrary to 
 the presumption of its existence, not only does not 
 exist, but is prevented from existing by the pre- 
 sumption of its existence. To call this reasoning 
 in a circle would be an inadequate expression for 
 the contradictory circuitousness of its character, 
 unless we could by the circle understand one which 
 was positive at one side and negative at the other 
 side of a certain point in the circumference of the 
 circle itself. 
 
 Again : the Lord Chancellor says, " Now the 
 " judgment is, that the party for his 4 offences afore- 
 " said' be fined and imprisoned. What, then, are 
 " the 1 offences aforesaid?' They are the offences 
 " properly charged, and properly found upon this 
 " record. Two of the counts are defective, because 
 " in the opinion of the learned judges they contain 
 " no charge of any offence. There are various 
 " allegations in those counts, but they do not con- 
 " stitute any offence known to the law. When the 
 " judgment, therefore, refers to the offences afore- 
 " said, it must, according to every rule of legal 
 " interpretation, relate only to those counts in 
 
255 
 
 " which some legal offence is stated, and cannot be 
 M considered to include those which contain no such 
 a charge."* 
 
 For this metlwdus inter pretandi the noble and 
 learned lord assigns the following reason, to which 
 we entreat the most earnest attention of the reader.f 
 u If you reverse the judgment upon the ground 
 u that the punishment, or a part of it, was founded 
 " upon a count which is defective, you may, after 
 M you have so done, find that the Judge had taken 
 k * into his consideration, among other circumstances, 
 k> that very defect " [of the count] u in making 
 M up his mind as to the extent of the punishment 
 M which he felt it his duty to inflict" Now at the 
 moment when the Lord Chancellor made this asser- 
 tion he knew that in the present case the judges of 
 the court below were so far from taking the defect 
 of the counts into consideration that they deliberately 
 and unanimously declared the defective counts to be 
 absolutely unexceptionable, and that they were 
 so far from diminishing the amount of the punish- 
 ment with any reference to the counts in question 
 that it was for the offence — the only one — alleged in 
 those very counts that the whole, or cdmost the 
 whole, punishment was expressly inflicted. The 
 Lord Chancellor, therefore, expressly founds his 
 argument upon a presumption for which he knows 
 that there is not a particle of foundation in the case, 
 and which, on the contrary, he actually knows to 
 
 * Opinion, page 3. f Ibid. 
 
256 
 
 be diametrically opposite to the fact This general 
 presumption, therefore, about examining the counts, 
 and making allowance for the defects, could not 
 imaginably be presented in a more hopeless or deso- 
 late situation than that in which it was placed by - 
 the Lord Chancellor himself. The question which 
 was raised upon this point at the Bar of the House 
 of Lords was, whether this presumption was en- 
 titled to receive the deliberate sanction of the Bench 
 and of the Bar, and to be adopted into the general 
 mass of what may be called the practical law of 
 the country ; and in these circumstances the Lord 
 Chancellor contends for the probability of the pre- 
 sumption in a case where he actually knows it to 
 be absolutely and even notoriously contrary to the 
 fact. So that Lord Lyndhurst's conclusion in 
 favour of the correctness of the judgment is 
 founded upon the existence of an " impression," 
 which is founded — if upon any thing at all — 
 upon an assumption ; which assumption Lord 
 Lyndhurst's own argument absolutely proves to be 
 unfounded in general, and which Lord Lyndhurst 
 absolutely knows to be not only unfounded, but 
 in direct opposition to the truth in the particular 
 case before the House. 
 
 It may be said that, in arguing the case upon 
 the grounds whereon he placed it, the Lord Chan- 
 cellor only pursued the method which had been 
 previously adopted by the judges. But we sub- 
 mit that the position of the judges in reference 
 
257 
 
 to the decision was very different from that in which 
 the Lord Chancellor was placed. The judges, at 
 the request of the House of Lords, " informed " the 
 House of what the law of the case would be upon 
 the assumption of the correctness of the impres- 
 sion which had been supposed to prevail in favour 
 of such a judgment as that which had been given 
 by the Irish Court of Queen's Bench in the case of 
 The Queen r. O'Connell. But the question which 
 had been raised at the bar of the House of Lords 
 was the correctness of that impression itself. That 
 was the question which the Lord Chancellor was 
 called upon to decide as a member of the House of 
 Peers, but which, as we humbly submit, he did not 
 argue at all. That question was then raised upon 
 a writ of error for the first time. Opposite con- 
 sequences were by the different parties to the dis- 
 cussion drawn from this fact ; but all parties agreed 
 about the fact itself, that there had not been any 
 previous instance of a writ of error upon such a 
 judgment as that which was then brought under 
 the consideration of the House.* 
 
 * " It is admitted on all hands that this question is res 
 " integra, as far as decisions are concerned. We must then 
 " weigh the principle, and I find it wanting : it is inadequate 
 " to support the loose and censurable practice which, some of the 
 u learned judges have described as prevailing. To pass a 
 " sentence for three offences where a party is well convicted of 
 " only two cannot be right. And let it be observed, that I do 
 u not seek to control a discretion exercised on the proper subjects 
 " of that discretion ; I merely hold it wrong to punish in a case 
 
 R 
 
258 
 
 Into the merits of this question, so propounded 
 for the first time, the Lord Chancellor scarcely 
 entered at all, but contented himself with stating 
 that Lord Mansfield had asserted, obiter, the suf- 
 ficiency of such a judgment; that the judges 
 who occupied the Bench at the time did not 
 " then and there " express any dissent from the 
 dictum of Lord Mansfield, and ought to be, there- 
 fore, considered as assenting to its correctness ; 
 and, finally, that the Bench and Bar had, from the 
 time of Lord Mansfield, been in the habit of consi- 
 dering that such a judgment was good. With re- 
 gard to the first and third of these assertions, we 
 shall presently adduce the conclusive refutation 
 which they have received in the masterly judgment 
 of Lord Denman. In the meanwhile we shall 
 ourselves take the liberty of saying, in reference to 
 the second, that if it were to be taken as a general 
 rule that every judge must be looked upon as as- 
 senting to every proposition which is delivered 
 upon the Bench unless he actually and expressly 
 dissent from it, the inevitable consequence would 
 be the continual occurrence of judicial discussions 
 upon collateral issues. There scarcely occurs a single 
 
 *' where no punishment is lawful. The judgment is not sever- 
 " able, and if partially wrong must, for that reason, be wholly 
 " reversed, on the very same unquestionable principle which must 
 " be applied to civil cases. The sentence in the one and the 
 " damages in the other stand on the same footing, the moment 
 " it is clear that the judgment is general and proceeds upon all 
 the counts/' — Lord Denman 's Judgment, p. 43, 
 
259 
 
 day in which some one judge does not make asser- 
 tions from which some other judge is believed to 
 dissent, although he expresses no opinion upon the 
 occasion. In the very last judgment which was 
 delivered by the Court of Queen's Bench, on the 
 day before yesterday (March 1st), Mr. Justice Pat- 
 tison, referring to a case in 1 Bar. & Aid., observed, 
 that an observation made by Lord Ellenborough 
 in the case was not in accordance with law : but, 
 upon referring to the case, it appears that neither 
 of the other judges, Bayley, Abbott, or Holroyd, 
 expressed any dissent from this incorrect observa- 
 tion of Lord Ellenborough. That they considered it 
 to be incorrect may be inferred with sufficient pro- 
 priety from the circumstances of the case, and is 
 rendered still more probable from the fact that one 
 of them, Lord Tenterden, when the observation in 
 question was afterwards brought under his notice, 
 in the case of Richards r. Richards*, appears to 
 intimate an opinion that the observation of Lord 
 Ellenborough was not correct. 
 
 With regard to the origin of the u impression," to 
 which we have so often alluded, the following state- 
 ment is made by Lord Denman : — 
 
 " My Lords, this whole doctrine has arisen upon 
 M a single remark of Lord Mansfield, twice repeated. 
 M It was made on occasions where it was perfectly 
 " immaterial to know ichat his Lordship might think 
 " about criminal law, and where it is clear that his 
 
 * 2 Bar. & Aid. 447. 
 B 2 
 
260 
 
 " Lordship unnecessarily went out of his way to 
 44 heighten a grievance which he thought he found in 
 44 the practice in civil actions as contrasted with that 
 44 in criminal proceedings. He says, 4 In cases of 
 44 4 civil actions, where there is one good count and 
 44 4 one bad, and the verdict is general, and for da- 
 44 4 mages, in that case the court above will be bound 
 " 4 to set aside that verdict, because the damages 
 44 4 proceed upon all the counts, and you cannot tell 
 44 4 how much may have been given for the bad 
 44 4 count, and how much may have been given for 
 44 4 the good count and this undoubtedly is both 
 44 true and, in the supposed circumstances, inevit- 
 44 able. But I most deeply regret that it did not 
 44 occur to Lord Mansfield that, presiding at Nisi 
 44 Prius, he had a plain remedy for that evil in his 
 44 own hands, because he had nothing to do but to 
 44 tell the jury to assess the damages separately 
 44 upon the several counts, and then the damages 
 44 would have stood for what they were worth — well 
 44 awarded upon those counts which were good, and 
 44 liable to be set aside upon those counts which 
 44 were bad. Why upon that occasion that noble and 
 44 learned Judge should have thought it necessary to 
 44 say one word respecting the rule in criminal cases, 
 44 / am quite at a loss to conceive. 11 
 
 With regard to this dictum of Lord Mansfield, 
 Mr. Justice Williams observed*, 44 that it was 
 44 entitled to some weight — not so much for 
 * Opinion of the Judges, p. 20. 
 
261 
 
 tt expressing the opinion of Lord Mansfield as 
 " vouching what had been done — held to be suffi- 
 " cient."* This method of putting the case evi- 
 dently and correctly suggests that Lord Mansfield's 
 dictum is to be altogether estimated by a refer- 
 ence to the authorities upon which it was supposed 
 to be founded. Now these authorities, upon being 
 examined with even ordinary care, will be found 
 not to afford any warrant whatever for the con- 
 sequence which Lord Mansfield is supposed to have 
 deduced from them, and which, if he did not deduce 
 from them, he deduced from nothing at all. The 
 following are the terms in which the two cases in 
 question have been reviewed by Lord Denman f : — 
 " The first case quoted was the Queen v. Rhodes, 
 44 which occurred in the time of Lord Chief Justice 
 44 Holt, and is reported in 2d Lord Raymond's 
 44 Reports. That was an indictment for subornation 
 44 of perjury. There were several assignments of 
 44 perjury. The defendant was convicted of the 
 44 offence. 4 But then,' said the counsel for the de- 
 u fendant, 4 some of those assignments of pe jury 
 ( * 4 are bad, and therefore the judgment is bad, be- 
 44 4 cause general.' That was in arrest of judgment 
 • 4 also. But I should have answered him, as I think 
 " Lord Llolt did answer him upon that occasion, 
 • 4 — for that is the meaning I ascribe to what he 
 4 * says, and I know it is a course which we have taken 
 
 * The italics are of Mr. Justice "Williams himself, 
 f Judgment, edited by Mr. Leahv, p. 36. 
 
 B 3 
 
262 
 
 " very recently, — the question is a question of per- 
 " jury ; it does not signify how many assignments 
 11 there are : there may be twenty which are bad, and 
 " only one which is good ; but you still convict 
 " him of subornation of perjury. It is no separate 
 " finding. It is not for 4 his said several offences,' 
 " but for his one single offence of subornation of 
 " perjury ; and whether the overt acts are more or 
 " fewer, or only a parcel of unmeaning words have 
 " been added, is perfectly indifferent as to making it 
 " a good judgment upon the only crime charged in 
 " the indictment. I think that this is an answer 
 " which entirely explains that case, and shows it to 
 " be of no application in the present instance. 
 
 " Then my noble and learned friend referred to the 
 " case of The Queen v. Ingram, which is in Salkeld : 
 " and what do your Lordships think that case was ? 
 " It was a charge against a man and his wife, that 
 " they were guilty of an assault. There was a motion 
 " in arrest of judgment. The objection was some- 
 " thing of a grammatical nature. In the first part 
 " of the indictment the singular number was used, 
 " insultum fecit (all the indictments at that time were 
 " in Latin), upon which the grammarians who de- 
 " fended the parties said, ■ This is a bad record, 
 " 'because the insultum fecit (that is, made an 
 " 4 assault) only applies to some one of those two, 
 " ' and we do not know which.' But however bad 
 " that grammar, or however doubtful the charge, the 
 " following words were correct and perfectly clear, 
 
263 
 
 '• and touched both defendants. The same count, 
 " there being only one, proceeded to say S vulneraverant 
 
 i et verberaveriint' A little bit of false grammar 
 " which comes in before is of no consequence at all, 
 " with reference to the punishment of those who have 
 " beer; convicted of the offence well and gramma- 
 " tically laid. Chief Justice Parker said, upon that 
 " occasion, 4 If any part of the count is good the 
 " wliole is good;' and so it is: yet that case is 
 " quoted to prove a judgment good which rests on 
 M two counts, one good and one bad. And those two 
 u are the only cases before the time of Lord Mans- 
 u field which are now quoted as establishing his 
 " position, stated by him in a civil action, not dis- 
 " tinctly upon the point in question, but antitheti- 
 u cally, as serving to illustrate the supposed absur- 
 M dity of the rule in civil cases. I admit that cases 
 u come afterwards which require some explanation ; 
 " but the first explanation is to be found in the 
 " general language which was employed by so great 
 u an authority upon this subject, and a want of any 
 " examination into what the principle really was." 
 
 These cases his Lordship then proceeds to ex- 
 amine in the following words : — 
 
 " My noble and learned friends have selected, of 
 
 course, those authorities which they thought the 
 a strongest ; and to those I shall direct my attention. 
 " The first. I think, which was mentioned was the 
 " case of The King v. Powell, which is reported in 
 M the second volume of Barnewall and Adolphus, 
 
 B 4 
 
264 
 
 " in which there was a general verdict of guilty 
 " for two offences stated in two different counts, 
 " one of them charging an assault with a particular 
 " intent, and the other a common assault. The 
 " sentence was general, and was such as only the 
 " verdict upon the first count warranted, and a 
 " writ of error was brought. Now there is one 
 " very remarkable circumstance in that case, which 
 " appears in the judgment of Mr. Justice Taunton. 
 " He says, 4 When I look at this indictment, I do 
 " ■ not find that it states two offences ; it does not 
 " ' say that he committed another assault, which is 
 " \ the usual course of doing it ; but in fact it is 
 " 4 only another description of the same assault, and 
 " 1 therefore there is nothing at all wrong in saying 
 " ■ that the heavier punishment which the first 
 " ' count enabled the Court to award is properly 
 " 4 assigned.' But the only objection taken there 
 44 was simply this, that the words 4 misdemeanour 
 " 4 and offence ' applied to one of the counts alone : 
 " the Court held that it applied to both ; that 
 u 4 misdemeanour ' ought not to be confined to the 
 " offence described in one count, but is nomen col- 
 " lectivum, including the offence, with its aggra- 
 " vations, as stated in the first count, as well as 
 " the mere assault, as stated in the second. That 
 " is the decision which the Court came to upon 
 u that occasion : and to apply that here, as laying 
 u down the principle that we must secure the right 
 " of the prosecutor to convict generally, and have 
 
265 
 
 * % a general sentence passed, unquestionably in 
 " error, though it should turn out afterwards that 
 " there was some bad count in the indictment, 
 " stating a different misdemeanour, is what I cannot 
 " at all understand." 
 
 Mr. Justice Pattison had observed * of this case 
 (The King r. Powell), that " it was the nearest case 
 " to the present ;" and after having examined it at 
 some length, he concludes by saying that it " is no di- 
 " red authority to show that the doctrine" [contended 
 for on the part of Mr. O'Connell] u was not right;" 
 — that is to say, that the very best of the authorities 
 adduced upon the part of the prosecution did not show 
 that the judgment of the Irish Court of Queen's 
 Bench was correct. The learned Judge goes on, 
 however, to say, that the case in question, taken 
 along with other authorities, went to u show, at all 
 " events, what had been the received opinion upon 
 " the subject." But if it showed this it only showed 
 upon one side what was not at all denied upon the 
 other. Upon this point the following observation 
 of Lord (Tottenham is immediately applicable and 
 extremely important: — "The case in question," 
 says his Lordship f, " proves only what the learned 
 " Judges have informed us, that such an impression 
 " has existed generally in the profession — a circum- 
 " stance which certainly ought not in general to be 
 " disregarded. When, however, it is found that such 
 
 * Opinions of the Judges, p. 15. 
 
 | Judgment of Lord Cottenhain. p. 5. 
 
266 
 
 " an impression could not have arisen from decisions, 
 "for there are none, or from practice, for upon 
 " these particular points none seems to have existed ; 
 " but that the origin of the impression can be safely 
 "referred to a species of proceeding" [motions in 
 arrest of judgment], " at first sight similar to the 
 "case under consideration" [namely, that of a writ 
 of error], "but found, upon examination, to be to- 
 "t^lly distinct from it, I cannot think that any 
 " weight ought to be given to such an impression." 
 
 After having so examined the case of The King 
 v. Powell, Lord Denman proceeds to make the 
 following observations upon other authorities of a 
 date posterior to the dictum of Lord Mansfield : — 
 
 " Then, my Lords, we come to the case of 
 " The King v. Hill, which is in 1st Eussell and 
 " Kyan, and which in my opinion has really no 
 " application whatever to this subject The party 
 " was there found guilty of an offence at the 
 " assizes, the same offence being stated in six or 
 " seven different counts. The question was, whether 
 " all those counts were not bad ; and Mr. Justice 
 " Chambre, the learned judge who tried the cause, 
 " had the prisoner convicted, and passed a sentence 
 " upon all the counts which a conviction upon 
 " any one of the counts would have warranted: 
 " but he said, 4 I will reserve this point for you.' 
 " That was a matter of arrangement between the 
 " counsel and the judge at the trial. What was 
 " the arrangement ? Why, that if all the counts 
 
267 
 
 " were bad the prisoner should be pardoned; but if 
 " any one count was good the prisoner was to un- 
 " dergo his sentence. From that it is inferred that 
 " had a writ of error been brought upon a judg- 
 " ment upon all those counts the judgment would 
 " have stood, notwithstanding five or six were bad. 
 u I clo not know how the judgment was entered ; 
 kk but I know the reservation was, 4 He is convicted, 
 " 1 upon condition that T find one good count. On 
 M 1 condition that all the counts are not bad, the con- 
 " L viction stands, and there is an end of it.' I have 
 " no reason to doubt that the judgment was pro- 
 " perly entered. I am quite sure, if I had tried 
 " the case it would have been so, because it is my 
 " constant practice, and I believe that of several 
 " other judges, to take can-, that, with their know- 
 " ledge, no judgment shall ever be entered for the 
 " Crown upon a bad count. 
 
 " In The King v. Mason the judgment was arrested 
 M because all the counts icere bad. That case requires 
 " no other comment. In The Kins v. Yoxmst. how- 
 u ever, a difficulty, I admit, arises, because there 
 " the punishment was discretionai'y. The Court 
 " might either have pilloried, or imprisoned, or 
 " transported. They thought proper to transport ; 
 " and I agree with the observation which has just 
 " been made, that though, if they were to transport, 
 " it could only be for the term of seven years, they 
 *' must have exercised a discretion in elect in £ that 
 M mode of punishment, and that therefore they did 
 
268 
 
 u pass sentence upon an indictment which appears 
 " to have been wrong as respects two of the counts — 
 " a sentence which was affirmed on a writ of error. 
 " According to my argument I agree that that 
 " judgment was wrong. I agree, also, that to the 
 " answer, 4 the objection was not taken,' it is a 
 " strong reply, that that learned Court and the 
 " eminent counsel employed would have been very 
 " likely to take it if well founded. But I must 
 " apply my brother Parke's observation, that it is 
 u perfectly clear that upon that indictment (as in 
 " R. v. Powell) the several counts were only several 
 " descriptions of one set of facts; and though that 
 " may not be properly discoverable from the record, 
 " still, in point of substance and effect, proof of 
 " those facts warranted the sentence. 
 
 " So where a felony was established requiring 
 " capital punishment or transportation for life, the 
 " number of counts could make no difference, be- 
 " cause the punishment pronounced upon any one 
 " of them exhausted the whole materials of punish- 
 " ment, and admitted of no addition. The effect is 
 " a judgment for one felony stated in various forms, 
 " not for a variety of misdemeanors described as 
 " 4 his said offences.' 
 
 " The case of Rex v. Young, or rather the course 
 " which was not resorted to in the case of Rex v. 
 " Young, is really the whole strength of authority 
 " relied on by the Crown in this argument. It is 
 " said, * This point, if available, should have been 
 
269 
 
 " ' taken, but was not taken.' I can only explain it 
 " by the current notion that one count alone would 
 " support any sentence applicable to the offences 
 " stated in the whole indictment, and can only 
 M account for that notion by Lord Mansfield's gene- 
 " ral words, needlessly and inconsiderately uttered, 
 " hastily adopted, and applied to a stage of the pro- 
 " ceedings in which they are not correct in point of 
 " law. 
 
 " My noble and learned friend on the woolsack 
 M denied all distinction between the proceeding by 
 " arrest of judgment and that by writ of error, for 
 u the purpose of the present debate. And it is 
 " curious that the learned reporter, in his marginal 
 " note to this case of Rex r. Young, says that the 
 " Court refused to arrest the judgment, though in fact 
 u they refused to reverse it on icrit of error. The 
 u identity of the two proceedings is assumed — an 
 " assumption which shows the hasty manner in which 
 " opinions are occasionally taken up. The difference 
 " is, however, palpable. In the former case the Court 
 u abstains from pronouncing judgment upon any 
 " count that may be deemed erroneous ; the judgment 
 " may, however, be properly entered up on such counts 
 " as are good: in the latter the judgment, having 
 " already been finally entered up, cannot stand if it 
 " rest on any materials which are vicious in point of 
 " law. 4 But what absurdity,' says my noble and 
 " learned friend near me (Lord Brougham), 1 to 
 " 1 suppose that a court should refuse to arrest the 
 u 1 judgment on a bad count, and yet leave the bad 
 
270 
 
 44 4 count on the record, so that, when judgment 
 44 4 was entered up on that record, the vice of that 
 44 4 one count should be left to subvert it altoge- 
 44 4 ther ! 1 I should rather suppose that care would 
 44 be taken to forbear from entering up judgment on 
 44 the bad portion of the indictment ; and if the pro- 
 44 secutor should perversely so enter it up, I cannot 
 44 doubt that the same reasoning, which has convinced 
 44 myself and others of more authority, would have 
 44 induced the Court to decide against it, if the objec- 
 44 tion had been pointedly propounded." 
 
 It is agreed upon all hands that the opinion, 
 though 44 received," was never examined ; and that 
 its 44 reception" was the consequence of 44 re- 
 44 ceiving" another opinion, namely, that the judges 
 of the court below always examine the indictment 
 before they pronounce the judgment, and never in- 
 flict any punishment in reference to any counts, 
 either badly framed or badly found, which that 
 instrument may contain. As far as this 44 re- 
 44 ceived opinion" is applicable, to the present case, 
 the question is stated by Lord Cottenham* in 
 the following words : — 44 If we read this record 
 44 as we should, any other document, and give to 
 44 the words which we find there the construction 
 44 which they would receive if read in any other 
 44 instrument, we find it distinctly stated by the 
 44 record that the defendants were charged in the 
 44 indictment with the several offences specified in 
 44 the several counts, and that the jury found ver- 
 
 * Lord Cottenhara's Judgment, p. 2. 
 
271 
 
 u diets of guilty upon all and each of them,"* 
 [repeating in so many words all the distinct and 
 several charges in them all ; after which the re- 
 cord proceeds in these words : u whereupon all 
 " and singular the premises having been seen and 
 " fully understood by the Court of our Lady the 
 " Queen" f] " the Court sentences each defen- 
 " dant to a certain punishment 4 for his offences 
 v - ' aforesaid.' " Lord Cottenham, upon this condi- 
 tion of the statement upon the record, proceeds in 
 the following words : — " Did not the court below 
 " then pass sentence upon the present defendants 
 u for the offences charged in the first, second, third, 
 " fourth, sixth, and seventh counts, as well as upon 
 " the offences charged in the others. The record 
 " of that court tells us that it did ; and if our duty 
 u be to see whether there has been any error upon 
 " that record, and if we adopt the unanimous opi- 
 " nion of all the judges," [in England] "that those 
 " counts (the first, second, third, fourth, sixth, and 
 " seventh), or the findings upon them, are so bad 
 u that no judgment upon them could be good, how 
 " are we to give judgment for the Crown, and say 
 " thereby that there is no error upon the record ? " 
 
 * In reference to this matter, Chief Justice Pennefeather, in 
 refusing the motion in arrest of judgment, observed, "Take 
 " any one count of the remaining set " [after the 5th] " in 
 "these counts" [the 6th and 7th, &c], "those dangerous 
 " offences are set out in a way which, in my opinion, requires 
 " no further certainty. The jury have awarded upon each of 
 " them, and I see not why the judgment should be arrested." 
 
 t Lord Campbell's Judgment, p. 5. 
 
272 
 
 This observation, equally plain and powerful, 
 does, in our humble opinion, effectually dispose of 
 this part of the case. The professional reader 
 will, moreover, have observed that Lord Cottenham, 
 in the passage which we have given above, rather 
 understates the principles upon which a record is 
 to be read. It is an ancient and absolute axiom 
 of the common law, that a record is of so high a 
 nature that no averment can be taken against it*, 
 even though the matter be only supposed f by the 
 record; and Lord Ellenborough C. J.J declared 
 that " the judgment roll imports incontrovertible 
 " verity as to all the proceedings which it sets forth ; 
 " and so much so, that a party cannot be admitted 
 u to plead that the things which it professes to state 
 " are not true" whether they are true or not. 
 According, however, to the principle of Lord Lynd- 
 hurst, the record in the case of The Queen v. O'Con- 
 nell is either false or insensible in its actual form ; 
 and before it can possess either uncontrollable 
 verity, or even intelligible meaning, we must read 
 it as if it contained some twenty or thirty words 
 which are not there at all. 
 
 According to Lord Lyndhurst the record must 
 be read as if it contained, upon the, face of it, an 
 allegation that before delivering the sentence upon 
 the defendant the Court had carefully considered 
 whether there were any bad counts, or bad findings, 
 or bad entries, and that, in awarding a certain 
 
 * Co. Lit. 260 a,, 167 b. 168 a. f 1 Leon, 82. 
 
 J Ramsbotham v. Buckhurst. 
 
273 
 
 quantity of punishment, they took into their con- 
 sideration any such defects as may exist under 
 either of these three different heads. But the argu- 
 ment of Lord Lyndhurst himself proves that if the 
 record actually contained such an averment the re- 
 cord would be so far from '* importing uncontrol- 
 " lable verity n that it would exhibit unquestionable 
 falsehood. The very first foundation which Lord 
 Lyndhurst himself laya at the bottom of his whole 
 argument • is, that no such examination ever takes 
 place, as it is considered to be unnecessary and 
 useless. Let us, however, suppose that the Court 
 makes allowance for any bad count* that may exist 
 in the indictment. Such a supposition has been 
 proved by Lord Lyndhurst's argument to be untrue 
 in presumption : it is notoriously untrue in general 
 as a matter of practice and of fact : all the world 
 knows that it is most extravagantly untrue in the 
 present case. Let us, however, waive all these ob- 
 jections, and suppose it to be true. How can we pos- 
 sibly admit the other presumption, that in pronounc- 
 ing judgment upon a defendant every court must be 
 presumed to have taken into its consideration any 
 defects which may exist upon the findings when it 
 is notorious to all mankind that in ninety-nine 
 cases out of a hundred there never are any formal 
 findings at all. Everybody knows that almost 
 universally the jury content themselves upon such 
 occasions with pronouncing through their foreman 
 
 * Page 2. 
 S 
 
274 
 
 the single word guilty, intimating thereby the con- 
 clusion which they have drawn as a matter of fact 
 from the circumstances of the case, and that the 
 Court immediately afterwards proceeds to sentence 
 the defendant to what it considers to be an adequate 
 punishment for the offence or offences of which 
 the party has been convicted. The registrar of the 
 Court in the mean time inscribes the word guilty 
 upon the indictment, which inscription concludes 
 all the clerical manipulation that is ever performed 
 with reference to this point, except in perhaps one 
 case out of five hundred. 
 
 But the presumption which is so obviously 
 unfounded in general is most curiously and extra- 
 vagantly untrue in the present instance. How 
 can it be for a moment imagined that the Court 
 of Queen's Bench in Dublin took into considera- 
 tion the badness of the findings upon the first 
 four counts of the indictment, when, as we have 
 already stated *, the issue-pa/per upon which those 
 findings were entered was actually composed by 
 the whole Court itself, and when after such com- 
 position the contents and form of the issue-paper were 
 the subject of open public discussion between the judges 
 and the counsel, and when the paper was not handed to 
 the jury until it had received the express approbation 
 of the judges, and of the counsel for the Crown, and, as 
 was alleged, even of the counsel for the defence. After 
 all this preparation " Mr. Justice Cramptonf in- 
 
 * Supra, p. 208. & 212. 
 
 | Report of Messrs. Armstrong and Trevor, p. 888. 
 
275 
 
 " formed the jury that he was directed by the Court 
 " to read the different findings, in order to guide the 
 "jury as to the mode in ichich they should sign the 
 " issue-paper to be sent up to them. ,, He accordingly 
 read the document which he then handed to the fore- 
 man, by whom it was, after a very short interval, 
 handed back to the Court, with the different findings, 
 which the jury had u signed," in " the mode " as to 
 which they were " guided" bv the Judges and the 
 counsel for the Crown. 
 
 The findings having been in this manner drawn 
 up, signed, and returned, the issue-paper was again 
 read over, with the findings annexecT; after which 
 the Chief Justice, addressing the counsel on both 
 sides, observed that he supposed there was nothing 
 more to be done. The Attorney General answered 
 that there was not. The Chief Justice compli- 
 mented the jury upon their conduct. One of the 
 counsel for the defence then asked for a copy of 
 the issue-paper, which was promised, after which the 
 court adjourned. We have already stated* that 
 the jury had, before the occasion which we have 
 just now been describing, returned a verdict 
 upon another issue-paper, which had previously 
 been handed up to the jury by the Court, and that 
 such verdict was rejected for the supposed irre- 
 gularity incompleteness, inadequacy, and illegality 
 of the findings. It was to exclude the possibility 
 of any such objection being adducible against the 
 
 * Supra, p. 207. 
 
 s 2 
 
276 
 
 ultimate verdict that the findings in the second 
 paper were actually, openly, deliberately, and ex- 
 pressly composed in the manner which we have just 
 mentioned : it may therefore with perfect propriety 
 be asserted, that the findings in the form in which 
 they were finally signed by the jury, were the 
 act of the Judges themselves, and that those learned 
 persons considered the findings in that form to be 
 absolutely immaculate. 
 
 We ask then, in such a state of affairs, after 
 all the care which the Court exerted in this 
 manner for the purpose of making those find- 
 ings unexceptionable — after sending them to the 
 jury as such — after having received them with- 
 out the intimation of an objection, or even of a 
 doubt, from any quarter whatever, can anything in 
 the whole world of art or nature be more extra- 
 vagant than to presume that this very Court was 
 all this time under the impression that the find- 
 ings were defective, which findings they publicly 
 approved, and even publicly composed? And this 
 most extravagant of all imaginable presumptions 
 Lord Lyndhurst calls upon us to make, although 
 the very ground of the Irish Attorney General's 
 complaint upon this subject at the Bar of the 
 House of Lords was, that the attention of the Irish 
 Judges had never been at all directed to the badness 
 of the findings * We do not precisely know whether 
 this statement of the Attorney General be correct 
 or not ; but whether it be or not is not an affair of 
 * Vide infra, p. 346. " 
 
277 
 
 the slightest possible importance. Let us suppose 
 that, according to the statement of the Attorney- 
 General, the Court did not, either of its own 
 motion, or in consequence of any extrinsical sug- 
 gestion, take the findings into consideration. What, 
 in such a case, became of the presumption that 
 they must have considered and allowed for the bad- 
 ness of the findings. If, on the other hand, the 
 court below considered the findings before they 
 pronounced the judgment, they thought the find- 
 ings to be good, or they though them to be bad. If 
 they ultimately decided that the findings which 
 were composed by themselves were illegal, and in- 
 sufficient to support the judgment, what becomes 
 of the infallibility, which is the foundation of the 
 whole argument upon the part of the Crown ? If 
 on the other hand they decided, upon consideration, 
 that the findings were good, how is it possible to 
 conceive that they must have taken the badness of 
 those findings into their consideration, and awarded 
 no punishment in reference to the counts which 
 were found so illegally. 
 
 But let us, notwithstanding the essential absur- 
 dity and practical untruth of such a supposition — 
 let us imagine that the judges had taken into 
 account the badness of the two counts which they 
 declared to be unexceptionable, and still more that 
 they were absolutely aware of the badness of the 
 findings which had been anxiously composed by 
 themselves, and which they considered to be imma- 
 
 s 3 
 
278 
 
 culate, it is necessary for the conclusion of the Lord 
 Chancellor to go still further, and presume, as the 
 Lord Chancellor contends that he is justified in 
 doing*, that every Court, in passing sentence upon 
 a defendant, examines the entries upon record with 
 regard to those findings, which are entered in such 
 a manner as to render the count upon which they 
 are so made altogether incapable of supporting a 
 judgment. With regard to the entries of the find- 
 ings upon record, it may be asserted with safety 
 that throughout the whole administration of crimi- 
 nal justice there scarcely, as we suppose, can be 
 as much as one record — one judgment roll with 
 formal entries — for every five hundred actual con- 
 vict ions ; whilst it may be truly asserted that in 
 the great majority of cases in which records are 
 drawn up such operation does not take place until 
 after the sentence has been pronounced. To pre- 
 sume, therefore, that in every case where a court 
 pronounces judgment upon a defendant it takes 
 into consideration the findings upon the record, is 
 really to presume that the Court examines a very 
 large number of records which do not, and never 
 will exist, and another smaller number, which does 
 not come into existence until after the period 
 of the supposed examination. The court which 
 can act in this manner must be guided not by 
 the " spirit of judgment," but by " the spirit of 
 " prophecy,' 1 and not merely by that intelligible 
 
 * Judgment, p. 1. 
 
279 
 
 general prophetical power which anticipates events 
 that are thereafter to happen, but by that Hiber- 
 nian species of the gift which can foresee that which 
 will never happen at all. In the present instance, 
 the form in which the entries were to be made 
 would in such a case require a good deal of con- 
 sideration, as is evident not only upon the case 
 itself, but from the fact that all the consideration 
 which lias been given to that point has not 
 been sufficient to ensure the correctness of the 
 entries. It is true that the entries as they ap- 
 pear upon the record are dated of a date anterior 
 to the judgment. Such, however, would be the 
 case, wherever they may happen to have been 
 entered in fact. Upon this very part of the record 
 appears the entry of the nolle prosequi in respect to 
 Sir. Tierney, which entry is dated on the 2 2d of 
 May. But this entry must have been made in con- 
 sequence of what occurred upon the delivery of 
 the judgment of the Court of Queen's Bench upon 
 the motion for a new trial upon the 25th of May. 
 Upon that occasion Mr. Justice Crampton declared 
 that he would consent to the motion unless the 
 Attorney-General should agree to enter a nolle pro- 
 sequi as regarded Mr. Tierney. This entry was 
 afterward made, at what precise period afterwards 
 we do not exactly know ; upon the record, how- 
 ever, it is dated retrospectively as of the 2 2d of 
 May, i. e. three days before the suggestion of 
 making the entry was thrown out by Mr. Justice 
 
 s 4 
 
280 
 
 Crampton. Upon the same day an application was 
 made upon the part of the defendants to amend 
 the entries upon the postea. The motion was op- 
 posed by the Attorney-General, who read the 
 entries, most probably from a copy on paper, 
 and contended that they were perfectly correct. 
 From the account of the discussions which ap- 
 peared in the newspapers it seems difficult to 
 decide whether the entries were then upon the 
 parchment or not ; but in ' either condition of the 
 fact the consequence as to the consideration in 
 question will be exactly the same. If the entries 
 were then upon the parchment record in the form 
 in which they afterwards came before the House of 
 Lords, it is impossible that the court below could 
 in giving judgment have made allowance for any 
 supposed badness in the entries, as the Court unani- 
 mously refused the motion for their amendment, and 
 must have therefore considered that they did not 
 require any amendment at all. If, on the other 
 hand, the entries as they ultimately appeared were 
 not then upon the record, then any supposed 
 allowance for their badness must be a physical 
 impossibility, as the Court could not of course, by 
 any possibility, know the form of an entry which 
 did not exist at all as a matter of fact. The sub- 
 sequent motion in arrest of judgment was exclu- 
 sively founded upon considerations connected with 
 the essential deficiencies of the Courts themselves, 
 and nothing further was said about the findings, or 
 
281 
 
 the entries, until the case came to be argued in the 
 House of Lords.* 
 
 Lord Lyndhurst says, that we cannot go out of 
 the record for the purpose of calling in aid any fact 
 which does not appear upon the record itself. This 
 was all said, of course, in order to prevent the anni- 
 hilating effect which must be produced upon the 
 argument of the noble and learned Lord by the fact 
 — notorious at Xew York and Alexandria — that 
 the Court of Queen's Bench in Dublin expressed a 
 most decided and most deliberate opinion, after 
 hearing a long argument upon the subject, that 
 the counts which all the law lords and judges in 
 England declared to contain no charge of any 
 offence at all were not only unanimously considered 
 by the Court " on the other side " of the water to 
 be the most unexceptionable in the indictment, but 
 that the said Court had expressly, and most warmly 
 and frequently, declared that it was for the [so 
 called] offence alleged in those counts, of showing 
 that large numbers of persons were favourable to a 
 change in the law, that the greatest part of the 
 punishment was inflicted. One would think that, 
 instead of shutting out this unquestionable and all- 
 important fact by the screen of a conjectural and 
 hypocryphal presumption to the contrary, a person 
 in the place of the Lord Chancellor — who himself 
 knew the fact as well as he knew that he was the 
 Lord Chancellor of England — would consider the 
 probable existence of such a fact in general, and 
 
 * Vide infra, p. 346. 
 
232 
 
 the undoubted existence of it in the particular case, 
 as an irresistible reason for looking with suspicion, 
 at least, upon a presumption which, according to 
 the very argument of the Lord Chancellor himself, 
 was so very likely to be generally untrue. 
 
 Waiving, however, this consideration, let us 
 adopt the principle of Lord Lyndhurst, as laid 
 down by himself, that in construing a record 
 you cannot call in aid any fact which does not 
 appear upon the record itself. How, then, can 
 you justify the actual introduction into and upon 
 the record of a statement which of necessity in- 
 volves, not one fact, but several — a statement 
 which is not only very complex in its nature, but 
 which is most undoubtedly in direct, as well as 
 in evident opposition to that which the record itself 
 professes to declare — a statement that the court 
 below, before proceeding to award any punishment 
 against the defendant for " his offences aforesaid," 
 very sedulously applied itself to the consideration 
 of the record ; that, upon such consideration, they 
 found that the sixth count was bad, and the seventh 
 count no better ; that the first, second, third, and 
 fourth counts had been ill-found, and were totally 
 incapable of supporting a judgment ; that the bad 
 findings upon the first three of those counts had not 
 been at all mended by any subsequent occurrence, 
 but that the bad finding upon the fourth count had 
 been cured by the nolle prosequi of Mr. Tierney, 
 according to the then future opinions of some 
 of the English judges, but had not been so cured 
 
283 
 
 according to the opinions of some other of 
 the English judges; that the fourth count was 
 therefore, at one and the same time, capable and 
 incapable of supporting a judgment, and that the 
 Irish Court of Queen's Bench therefore, according 
 to the " legal construction of the record," must be 
 taken at one and the same time to have awarded 
 the punishment in respect to that count, and not to 
 have awarded the punishment in respect of that 
 count : and all this must be supposed to have been 
 done in consequence of then future opinions which 
 had never been delivered, and a then future occur- 
 rence which had never occurred. 
 
 Such is the goodly exhibition of consequentiality 
 and common sense which results from what the 
 Lord Chancellor calls * " construing the record 
 u according to its legal effect.'' Such is the con- 
 geries of contradictory and impossible facts which 
 we are called upon to introduce into the record, in 
 order to support the principle that no fact is to be 
 introduced into the record which does not appear 
 upon the face of the record itself. 
 
 But let us concede to the Lord Chancellor the 
 principal assumption which he claims, and sup- 
 pose that the judgment was not given upon the 
 counts that were either ill-framed or ill-found. It 
 is unquestionably certain that if the judgment were 
 entered in that general form upon the record it 
 would be incurably vicious, according to the uni- 
 
 * Judgment, p. 3. 
 
284 
 
 versal consent of all judicial and forensic mankind, 
 upon the mere ground of uncertainty alone. Let 
 us therefore carry the concession further, and sup- 
 pose that the court below actually specified upon 
 the record the counts which were in its opinion ill- 
 found or ill-framed. If that opinion were correct, 
 we should then have arrived at the perspicuity and 
 precision for which we contend, and the present 
 question could not have arisen at all. But in such 
 a case, if the opinion of the court below was incor- 
 rect as to the goodness of the counts, the judgment 
 would be set aside upon a writ of error as a matter * 
 of course. Let us now suppose that the court be- 
 low gives judgment of conviction upon two indict- 
 ments, that in each case it examines the record, 
 and in each awards the punishment only in refer- 
 ence to the counts which it believes to be good ; 
 let us suppose that it is in both cases mistaken, 
 but that in one record it specifies the counts upon 
 which the judgment was given, and that in the 
 other it does not. In the first of these cases the 
 judgment would of course be reversed, and the 
 defendant discharged ; in the second case the judg- 
 ment would be affirmed, not because the defendant 
 had committed any offence against the law, which, 
 according to the supposition, he had not committed, 
 but because upon an indictment containing several 
 charges, and upon which the defendant had been 
 generally found guilty, the Court had not con- 
 descended to inform him of the particular charge 
 
285 
 
 in reference to which the punishment was awarded; 
 and in that case the Court, both above and below, 
 would punish the defendant, not for the delinquency 
 of the defendant, but for that of the Court itself. 
 The court below would punish him for its own 
 neglect or indifference, and the court above would 
 continue and confirm the punishment upon the 
 presumption of the industry and intelligence of the 
 court below. 
 
 The judgment of Lord Brougham does not re- 
 quire any lengthened examination. He took a vast 
 quantity of trouble, as the Lord Chancellor had 
 previously done, to prove what nobody had ever 
 thought of denying, namely, the existence in the 
 legal profession of that general " opinion, " " as- 
 " sumption, " " impression/' or whatever it is to be 
 called, to which we have already so frequently 
 alluded ; and he contended, as Lord Lyndhurst 
 had done, that the information communicated 
 by the judges, in reference to the existing cases 
 upon the subject, as well as an examination of 
 those cases themselves, proved that such impression 
 had been acted upon for a considerable time. But 
 neither of those noble and learned lords uttered a 
 word about ichat was really the subject for the decision 
 of the House of Lords, namely, whether the " im- 
 " pression " had not been received upon slight 
 grounds, or no grounds at all ; whether it had not 
 been rashly and inconsiderately taken for granted, 
 under a mistake of the meaning of an obiter dictum. 
 
286 
 
 or without ascertaining precisely what was its 
 particular meaning, if it was to be considered as 
 having any specific meaning at all ; and, finally, 
 whether this " impression," so negatively tolerated 
 without adjudication or even examination, was not 
 so obviously and considerably in opposition to the 
 plainest principles of justice, of reason, and of law } 
 that it ought to be immediately abandoned, unless it 
 had received that long, deliberate, and unbroken 
 sanction, under the shelter of which so many abuses 
 and absurdities have been able to establish and main- 
 tain themselves within the ancient pale of the English 
 common law. Instead of arguing upon the merits of 
 this question, which was really the only one in con- 
 troversy, the Lord Chancellor and Lord Brougham 
 substantially abdicated their offices and abandoned 
 their duties as members of a court of appeal, and 
 recommended the other lords present to decide in 
 conformity to the information given by the majority 
 of the judges; Lord Lyndhurst declaring that 
 the opinions of the judges ought to be followed, 
 unless the House should be satisfied that they were 
 founded in palpable error*, and Lord Brougham ex- 
 pressly stating that he " had no eight to set up his 
 u judgment and opinion against the judgment and 
 " opinion of such men, formed upon such materials, 
 " and strengthened by such talents and learning, 
 " and above all, fortified by such large and long-con- 
 
 * Page 8. 
 
287 
 
 " tinued experience as they possessed." What par- 
 ticular amount of propriety or consistency there 
 was in either of the two noble and learned lords 
 placing themselves, or the House, or the learned 
 judges in such relative positions amongst them- 
 selves, will appear from a perusal of the following 
 passage from the judgment of Lord Denman* : — 
 
 " My Lords, I quite agree with my right honour- 
 " able and learned friend Mr. Baron Parke, as to 
 " the general opinion which has prevailed in the pro- 
 gression upon this point. He and Mr. Justice Colt- 
 u man have both stated the existence of that opinion 
 " as a fact upon which no doubt can be entertained. 
 M I felt, as my learned brothers did, great surprise 
 " when I heard that most able and ingenious argu- 
 u ment which was addressed to the House, and I con- 
 " fess that I had never felt a doubt upon the subject 
 M until that argument was submitted to my mind. 
 u But I must add that / never had occasion to give 
 " a judicial or a professional consideration to the 
 u matter. And I must ask, when such an argument 
 " is raised, what is the duty of a Court of Error? To 
 u consider whether the doubt is well founded or not. 
 " Not to he run away with by mere authority, unless 
 M indeed it is so decisive as to get rid of the doubt, 
 " but to see ichether in point of law there is legal 
 u ground for the doubt which is entertained. My 
 " Lords, this is no unusual practice. This is not 
 
 * Page 22. of Mr. Leahy's edition. 
 
288 
 
 u the first time that a Court of Error has taken that 
 view. I perfectly well remember, not indeed in 
 " a Court of Error, but at the time when my noble 
 " and learned friend on the woolsack was presiding 
 " with so much dignity, and so beneficially to the 
 " public, in the Court of Exchequer, a case was 
 " brought before that Court, upon which it was 
 " proposed to overrule, not the dicta, the impres- 
 u sions, the fancies of the learned frequenters of 
 " Westminster Hall, but decided cases, running 
 " through a period of near fifty yeaes, appearing in 
 " numerous reports, and laid down by all the 
 " text writers. Mr. Justice Bayley, on a par- 
 " ticular examination of those cases, thought them 
 " clearly founded in error; they were traced to a 
 " dictum of Lord Mansfield during his first judicial 
 " year, which was held by Mr. Justice Bayley to be 
 " untenable, and my noble and learned friend, Lord 
 " Lyndhurst, pronounced the unanimous judgment 
 " of his Court, denying their authority, and over- 
 
 " RULING THEM ALL. * 
 
 " I heard my noble and learned friend with the 
 " admiration I always do, when he laid down the 
 " rule on this subject. He reminded your Lord- 
 " ships that you are not bound to do more than re- 
 u spect in the highest degree, and consider with the 
 " utmost care, the opinions which may be given to 
 
 * The case to which Lord Denman refers in this place is 
 that of Hutton v. Balme, 2 Y. & J. 101 ; 2 Cr. & J. 19 ; 2 Tyr. 
 17. 
 
289 
 
 M you by the Judges. But you have a duty of your 
 14 own to perform. Your consciences are to be satis- 
 44 fied ; your minds are to be made up ; your pri- 
 k * vilege affords you the assistance of the most learned 
 44 men living ; but your duty forbids you to delegate 
 u your office to them. 
 
 44 And, my Lords, what happened in this very 
 44 House not twelve months ago ? There was an 
 4k universal opinion at the English bar, founded 
 4b upon the dicta of Judges as illustrious as any who 
 4k have ever filed the seats of justice in any country, 
 44 upon a question of no less importance than the 
 44 Nature of Marriage ; Lord Mansfield, Lord Ellen- 
 44 borough, Lord Kenyon, Lord Tenterden, Lord 
 44 Chief Justice Gibbs, and many others, all clearly 
 44 taking the same view of the subject in dicta which 
 44 perhaps did not in any one of them go precisely 
 44 to the extent of a decision upon the subject, but 
 k4 which showed their opinion upon the nature of 
 44 the contract, and that those enlightened mind* had 
 44 come upon general principles to a certain conclu- 
 44 sion. Nay more, Lord Stowell, half a century of 
 44 whose invaluable life had been devoted almost ex- 
 44 clusively to the consideration of this subject, had 
 44 pronounced a decision conformable to that opinion. 
 44 Your Lordships had the case before you. The 
 44 Judges of the present day were consulted, and 
 44 formed an opinion directly contrary to that of 
 44 their predecessors in former times ; they did not 
 44 feel themselves deterred by this great concurrence 
 
 T 
 
290 
 
 " of authorities from asserting their opinion as to 
 " the law. 
 
 " But did my noble and learned friend {Lord 
 " Brougham) feel himself fettered by this unanimous 
 " opinion of the present luminaries of Westminster 
 " Hall ? By a most powerful argument he sought 
 " to overthrow their conclusion, and strenuously ex- 
 " horted your Lordships to dissent from it Nor did 
 " he stand alone : others among us concurred with 
 " him in holding the former principles to be just, 
 " and the reasoning of all my learned brethren to 
 " be insufficient to confute them. 
 
 " Your Lordships have not forgotten the ter- 
 " mination of that case. Those of your Lordships 
 " who took a part in the discussion were equally 
 " divided ; the consequence of which was, that the 
 " judgment of the Court below stood affirmed, de- 
 " ciding against the dicta of those most venerable and 
 " distinguished individuals. 
 
 " Now, my Lords, after that proceeding, which 
 u indeed followed many precedents, are we not bound 
 u to make a full examination of the grounds and 
 " reasons upon which the Judges may found the 
 " opinion which we asked at their hands ? Having 
 " done so in this case, I must venture to say that 
 " my surprise has changed its object. I no longer 
 " wonder that the objection should have been taken to 
 " the supposed law, but that such should have been 
 a supposed to be the law. I am convinced that it 
 " never has been the law ; and I think a slight atten- 
 
291 
 
 " tion to the cases will show that that is the true 
 " conclusion at which to arrive."* 
 
 But after all, do the opinions of the seven English 
 Judges, as actually delivered, demonstrate even the 
 decided existence of the " impression " in the form 
 which has been assumed. We venture to assert 
 that they do not, and that a very slight reference to 
 them will be sufficient to prove our assertion. Let 
 us take the opinions in the order in which they 
 were delivered in the House. Lord Chief Justice 
 Tindal sums up the whole value of his own opinion 
 upon the point in the following words f: — " I con- 
 " ceive the law to be, that the judgment in the 
 u case proceeds upon the good counts only ; there 
 " is certainly no authority against this position. 
 " The inference to be drawn from the case of Young 
 u r. The King is strong in support of the doctrine; 
 " [that upon an indictment containing good counts 
 
 * Sir William Blackstonc, after having stated that it was an 
 established rule " to abide by former precedents," goes on to 
 observe, " yet this rule admits of exception, where the former 
 " determination is evidently contrary to reason. But even in 
 " such cases the subsequent judges do not pretend to make a 
 " new law, but to vindicate the old one from misrepresentation. 
 " For if it be found that the former decision is manifestly ab- 
 " surd and unjust, it is declared, not that such a decision was bad 
 " law, but that it was not law ; that is, that it was not the esta- 
 " blished custom of the realm, as had been erroneously deter- 
 " mined." — Comment, book i. pp. 69, 70. 
 
 f Opinions of the Judges, as printed by order of the House 
 of Lords, p. 6. 
 
 T 2 
 
292 
 
 " and bad, a general judgment is to be presumed to 
 " be given upon the good counts;] and if the judg- 
 " ment proceeds upon the good counts only, the whole 
 " difficulty is at an end. 1 ' But if NOT, as in the 
 case in question it most indisputably did not, the 
 
 WHOLE DIFFICULTY IS EQUALLY AT AN END, but in a 
 
 very different manner ; for then, that is to say, in 
 the actual and unquestionable condition of the facts 
 of the present case, the judgment of the Court of 
 Queen's Bench was a nullity. 
 
 Mr. Justice Patteson delivered his opinion in the 
 next place. We have already* cited the statement 
 of the learned judge, that the very strongest au- 
 thority to which a reference had been made for the 
 purpose of proving the existence of the "impression," 
 was not quite sufficient to prove it. Upon that 
 point it is unnecessary, therefore, to say any more at 
 present. Another part of the learned judge's opinion 
 requires a more particular notice. The learned 
 judge observes f, "If there be any question in a 
 " Court of Error as to the sufficiency of any 
 " count, surely that Court is bound to suppose that 
 " the court below not having given a separate judg- 
 " ment upon each count has given its judgment 
 " in respect of each count." Ther learned judge 
 assigns no reason why the Court of Appeal should 
 make this very extraordinary supposition. But 
 some reason, and some very strong one too, would 
 
 * Supra, p. 265. 
 
 f Opinions of the Judges, p. 14. 
 
293 
 
 seem to be necessary to support a doctrine which 
 calls upon the court above to suppose to be true 
 that which the party calling upon the court so to 
 suppose, expressly declares not to be true. 
 
 " The court below not having given a separate 
 " judgment in respect of each count," — to call upon 
 the court above to suppose that the court below 
 u has given a separate judgment in respect of each 
 " count," is simply to call upon the court above to 
 suppose not only what is untrue, but what is abso- 
 lutely declared to be untrue by the very party who 
 calls upon the court above to suppose it to be 
 true. 
 
 But waiving the irreconcileable contradiction 
 between the two parts of the theory, let us con- 
 sider the principal part of the supposition itself. 
 Mr. Justice Patteson declares that the House of 
 Lords is bound to suppose that the court below 
 has given its judgment, and passed the whole of its 
 sentence in respect of each count, good and bad, 
 and that in such case the judgment will be sup- 
 ported by the good counts, although there may be 
 others which are bad. If the court below in such 
 a case knew that some counts were bad, can it be 
 imagined that they deliberately and intentionally 
 passed the whole judgment, and awarded the whole 
 punishment in respect to each of the bad counts as 
 well as to each of the good — being at the time 
 aware that the bad counts were bad ? But if on the 
 other hand the court below, at the moment of 
 
 t 3 
 
294 
 
 awarding the punishment, did not know which 
 counts were bad, or whether any were such, how is 
 it possible to imagine that they must have awarded 
 the punishment upon the good counts alone ? and 
 what becomes of the theory that they must have 
 known which counts were bad, and confined their 
 judgment altogether to such as were good ? 
 
 But supposing that such a judgment had been 
 delivered, it is evident that whenever all the counts 
 in the indictment related to the same identical indi- 
 vidual offence, the delivery of the judgment, and 
 the awarding of the punishment in respect to each 
 count, must have been accompanied by a quali- 
 fication to the effect that the punishment awarded 
 in respect to each count was identical with the 
 punishment awarded in respect to every other. 
 If, therefore, a defendant should be found guilty 
 of one and the same offence, charged in twenty 
 different ways in one indictment, and the Court 
 should be of opinion that he ought, for such 
 offence, to be imprisoned for one year, an im- 
 prisonment for a year would be awarded in 
 respect of each count, but the award would be 
 accompanied by the limitation that the year awarded 
 in respect of each of the last nineteen counts was 
 the same identical year — the same identical frag- 
 ment of chronology for which he was to be impri- 
 soned in respect to the first count. When several 
 offences were charged in several individual counts, 
 or several individual offences in several sets of 
 
295 
 
 counts, the same principle must, of course, be 
 applied according to the varying circumstances 
 of each case, in order that, in each instance, the 
 defendant should not suffer any greater amount of 
 punishment than that which the court considered 
 to be adequate to the nature of the offence or 
 offences of which he had been altogether convicted. 
 Such would be the form of the judgment in the 
 circumstances which we have supposed, and which 
 have been supposed by Mr. Justice Patteson. But 
 every body knows that there never has been any 
 instance of any such judgment being actually deli- 
 vered before the case of O'Connell v. The Queen. 
 Since that case, indeed, there has actually been one ; 
 for not only did this practice never exist before, 
 but it has absolutely been introduced in conse- 
 quence of the decision of the House of Lords in 
 Mr. O'Connell's case ; and the very first instance, + 
 the only one in which it has yet occurred, is one 
 in which Mr. Justice Patteson himself was obliged 
 to pronounce judgment in this very form, in con- 
 sequence of the House of Lords refusing to act 
 upon his hypothesis that it must be supposed to 
 have been so pronounced, in that same form, upon 
 all former occasions. 
 
 The following are the circumstances of the case 
 to which we allude : — 
 
 t 4 
 
296 
 
 COURT OF QUEEN'S BENCH. 
 Wednesday, January 29. 
 
 THE QUEEN V. CARTER. 
 
 This was an indictment against the defendant for 
 unlawfully and fraudulently obtaining certain sums 
 of money under false prentences. The defendant 
 had pleaded guilty. The case was removed here 
 by certiorari, and the defendant was now brought 
 up in custody. 
 
 The Solicitor-General having moved the judg- 
 ment of the Court, 
 
 Mr. Justice Patteson having read through the 
 substance of the counts in the indictment, said, that 
 it appeared that there was one offence charged in 
 different ways in three counts ; a second offence 
 was charged in the fourth count, and a third offence 
 was charged in the fifth, sixth, and seventh counts. 
 The learned judge then said, that after the decision 
 in the case of O'Connell v. The Queen he could not 
 pass judgment upon the indictment in its present 
 form. His Lordship, therefore, proposed that the 
 Solicitor-General should enter a nolle prosequi upon 
 all but one of each class of counts which charged 
 the same identical offence in a different form. 
 
 The Solicitor-General said he had no power to 
 do that. 
 
 Lord Denman asked why not ? Was not the 
 Solicitor-General, in the absence of the Attorney- 
 General, to exercise all his powers ? 
 
297 
 
 The Solicitor-General said he was not empowered 
 to do so in all things, and he believed that this was 
 particularly the power which he was not entitled 
 to exercise in the absence of the Attorney-General. 
 
 Their Lordships having consulted together for a 
 few minutes, — 
 
 Lord Denman said, that as the case presented 
 itself in circumstances which were new to the prac- 
 tice of the Court, it would stand over till to-mor- 
 row, there being some difficulty in saying how the 
 judgment should be entered. The Solicitor-General 
 might, in the mean time, consider what was the ex- 
 tent of his power in respect to the entering of the 
 nolle prosequi in the Attorney-General's absence. 
 
 Opon the following morning the Solicitor-General 
 renewed his motion, and as nothing further was 
 said upon the subject of the nolle prosequi, Mr. 
 Justice Patteson, as the senior puisne judge, pro- 
 ceeded to pronounce the sentence of the Court. 
 The following is the report which appeared in 
 " the Jurist " of the scene which was presented 
 upon the latter occasion *: — 
 
 " An Indictment contained four Counts for Extortion, and 
 " three Counts for uttering forged Licences. The Jury having 
 " returned a Verdict of Guilty upon all the Counts, the Court 
 " passed Sentence of the same identical Term of Imprison- 
 " ment upon each Count separately. 
 
 " An indictment against the defendant, an excise officer, con- 
 " tained four counts for extortion, and three counts for uttering 
 " forged licences. Another indictment against the same defen- 
 
 * Vol. ix. p. 178. The preceding part of the Report is taken 
 from the Times and Morning Chronicle. 
 
298 
 
 " dant, for obtaining money upon false pretences, contained ten 
 " counts varying the description of the offence. The defendants 
 " having pleaded guilty to both indictments : 
 
 " Sir F. Thesiger, S.-G-., now prayed the judgment of the 
 " Court, consisting of Lord Denman, C. J., Patteson and Cole- 
 " ridge, J J. 
 
 " Patteson, J., delivered the sentence of the Court, which was, 
 " upon the first count, eighteen calendar months' imprisonment, 
 " with hard labour ; upon the second count, the same eighteen 
 " calendar months' imprisonment, with hard labour ; upon the 
 " third count, the same eighteen calendar months' imprisonment, 
 " with hard labour ; upon the fourth count, the same eighteen 
 " calendar months' imprisonment, with hard labour ; and, upon 
 " the fifth count, the same eighteen calendar months' imprison- 
 " ment ; upon the sixth count, the same eighteen calendar months' 
 " imprisonment ; and, upon the seventh count, the same eighteen 
 " calendar months' imprisonment. His Lordship then passed sen- 
 " tence upon the prisoner in respect of the second indictment in 
 " a similar manner, and concluded with saying, ' The effect of 
 " ' the sentence is, that the term of your imprisonment will be 
 " * for eighteen calendar months, with hard labour, though the 
 " ' Court has passed that sentence separately upon each count.'" 
 
 As the two indictments contained seventeen counts, 
 and no nolle was entered upon any of them, it would 
 seem that the learned Judge was obliged to repeat the 
 same form of words all over, no less than seventeen 
 times. When Carter's case was brought before the 
 Court of Queen's Bench, on the 29th, Mr. Justice 
 Patteson was of opinion that no judgment could be 
 delivered upon the indictment as it stood. On the 
 following day he delivered the judgment in the 
 form which we have mentioned, being the first 
 occasion upon which, in such a case, a judgment 
 had ever been delivered in that form — in the very 
 form which Mr. Justice Patteson recommended the 
 House of Lords upon the 2d September, 1844, to 
 
299 
 
 suppose to be that in which judgment had in- 
 variably been delivered at all antecedent periods, 
 but of which the very first example was to be fur- 
 nished, in fact, upon the 30th January, 1845 — 
 Mr. Justice Patteson himself being the very person 
 who was destined to give the first actual example 
 of what he previously said that the House of Lords 
 were bound to take for granted as a mode of pro- 
 ceeding which had been theretofore invariably 
 adopted. 
 
 The opinion of Mr, Justice Maule, in answer to 
 the third and eleventh questions proposed to him 
 by the House of Lords, was expressed in a very 
 few sentences. But short as the opinion is (occu- 
 pying little more than half a page), it contains 
 portions which seem not to be either very relevant 
 or very clear, and statements which, from a mis- 
 take of the printer, or some other cause, are un- 
 doubtedly incorrect. That the very eminent abili- 
 ties of the learned Judge were called but to a very 
 small extent into requisition upon the occasion is 
 perfectly certain. The principal, if not the only 
 ground upon which the learned Judge was of 
 opinion that the judgment of the court below 
 ought not to be reversed was, that " the question 
 u of the amount of punishment was not a fit sub- 
 ject for the consideration of a Court of Error, 
 " which has not before it the evidence adduced at 
 " the trial, or the other matters which determined 
 " the amount of the punishment" in the court below. 
 
300 
 
 But the question upon this point was, not whether 
 the punishment of the court below was too great or 
 too small for the offence to which the punishment 
 was attributed, whatever that offence may be, but 
 whether the record did not expressly and unequivo- 
 cally state that the defendants had been punished for the 
 conduct which was described in the sixth and seventh 
 counts, which conduct was not illegal at all, 
 and whether they were not also punished for the con- 
 duct set out in the first, second, third, and fourth 
 counts, upon which the findings had been so returned 
 by the jury, or so entered upon the record as to render 
 
 it UNLAWFUL IN THE COURT OF QUEEN'S BENCH to 
 
 inflict Am: punishment in respect of any thing alleged 
 in any of those counts respectively. 
 
 The learned Judge observes, that " the universal 
 " practice is for the Court " [below] " to look 
 " beyond the record in such cases, in order to de- 
 " termine the amount of the punishment from the 
 " circumstances of the case." But in order pro- 
 perly to determine that amount they must of 
 course, when they consider bad counts to be good, 
 as they most indubitably did upon the present oc- 
 casion, take into consideration all the circumstances 
 relating to all the counts, good and bad, and must 
 therefore, according to this very hypothesis, have 
 awarded some portion of the punishment in respect 
 of the bad counts, and therefore in respect of 
 conduct which was not forbidden by the law. The 
 learned Judge is, notwithstanding, of opinion that 
 such a judgment ought not to be disturbed, be- 
 
301 
 
 cause in that case " it might well be that a judg- 
 " ment would be reversed by a court which, in 
 " the place of the court below, would have sen- 
 " tenced the defendants to the very same species 
 " and amount of punishment." In the infinite 
 varieties of possible contingency, in respect to a 
 matter which it is difficult to render subject to 
 any rational speculation, there may undoubtedly 
 occur a coincidence which would not only be for- 
 tuitous but miraculous. All the light, however, 
 which can be had upon such a subject appears to 
 demonstrate the absolute impossibility of the two 
 courts ever exactly fixing upon the same kind and 
 amount of punishment where both courts had a 
 discretion upon both points, where, as in the pre- 
 sent case, the counts expressed different charges, 
 and where the court below thought all the counts 
 good, and the court above is of opinion that some 
 of them are bad. 
 
 Let us take the case of an indictment con- 
 taining five counts, each of which imputes a 
 separate and a different offence. The defendant 
 is convicted upon each count: the court below 
 considers each to be unexceptionable, and sen- 
 tences the defendants to a certain amount of 
 punishment upon the whole for the five separate 
 offences of which he has been found guilty. Let us 
 now suppose the court above to be of opinion that 
 four out of the five counts are bad, and that the 
 court above, according to the supposition of Mr. 
 Justice Maule, is " put into the place of the court 
 
302 
 
 " below " for the purpose of passing sentence upon 
 the defendant in respect of the remaining count, 
 containing, according to the opinion of the court of 
 error, the only offence of which the defendant was 
 guilty. How is it possible to believe that the court 
 above could " sentence the defendant to the very 
 " same species and amount of punishment " for one 
 offence which the court below had awarded against 
 him for five, amongst which the very one in ques- 
 tion was included. Supposing the two courts 
 to be equal in respect to sagacity, impartiality, 
 and all the other qualities which are necessary to 
 enable a court to award an adequate and appro- 
 priate punishment, the court above would of course 
 agree with the court below as to the propriety of 
 the punishment awarded in respect of the five 
 counts, if the five counts were all good. But 
 the court above considers that four of them 
 are bad, and that no punishment ought to be 
 inflicted except for the remaining one. In the 
 case, therefore, which has been supposed by Mr. 
 Justice Maule, the amount of punishment awarded 
 in the court above must universally, and, as 
 a matter of unquestionable necessity, be less 
 than the amount awarded in the court below by 
 exactly the amount which the court below awarded 
 in respect of the bad counts, which in the case that 
 we have been supposing would be about four-fifths 
 of the whole. 
 
 But in order to demonstrate the utter ground- 
 lessness of Mr. Justice Maule's theory, it is not 
 
303 
 
 necessary to have recourse to a hypothetical case, 
 or to travel beyond the four corners of the re- 
 cord in the case of O'Connell r. The Queen. 
 Upon the face of that record Mr. Justice Manic 
 could have seen a charge of conspiracy to procure 
 a change in the laws by intimidation to be effected 
 through the exhibition and demonstration of great 
 physical force at the monster meetings, which 
 charge Mr. Justice Maule himself decided to be a. 
 nullity. This charge he would have seen in the 
 first, second, third, fourth, sixth, and seventh 
 counts of the indictment, and in no other count. 
 Xow Mr. Justice Maule has himself decided that 
 the first, second, third, fourth, sixth, and seventh 
 counts of the indictment are to be considered as 
 mere nonentities, and he has therefore decided that 
 the charge about the exhibition of great physical 
 force at the monster meetings must be considered 
 as if it had never existed upon the record. 
 
 Let us now suppose that the court above was, ac- 
 cording to the learned Judge's theory, to be put into 
 the place of the court below, for the purpose of award- 
 ing the punishment. In order to do so with propriety, 
 M the Court n [to use the language of the learned 
 Judge himself] " must, according to the universal 
 u practice, look beyond the record in order to de- 
 u t ermine the amount of the punishment from the 
 ' k circumstances of the case." The Attorney and 
 Solicitor General would be consulted of course, and 
 would, as the first " circumstance of the case," 
 inform the Court of Error that the whole prosecu- 
 
304 
 
 tion had been instituted for the purpose of trying 
 the legality of the multitudinous meetings, as de- 
 scribed in the first, second, third, fourth, sixth, and 
 seventh counts of the indictment. The Court of 
 Error, having decided already that the six counts 
 above mentioned were to be treated as non-existing, 
 would go on to require information about the 
 charges contained in the remaining counts, namely, 
 the fifth, eighth, ninth, tenth, and eleventh. The 
 Court itself would see that these charges were first 
 a conspiracy to excite a seditious opposition to the 
 Government by other means, as well as by writings 
 and speeches of an inflammatory character ; se- 
 condly, a conspiracy to excite ill-feelings amongst 
 different classes of her Majesty's subjects, and 
 especially to promote ill-will amongst the Irish 
 against the English; thirdly, a conspiracy to set 
 up arbitration courts, and recommend the people 
 to submit their differences to those courts rather 
 than to the courts already established in Ireland by 
 the Crown ; and fourthly, a conspiracy to intimi- 
 date the Legislature by speeches and writings. 
 
 In regard to the first of these charges, the Court 
 would learn that Mr. O'Connell, repeating the 
 opinions of Saurin, of Plunket, and of Bushe, 
 had said that an Irish act of Parliament was 
 void ; but the Court would perhaps not forget at 
 the same time that hundreds of most influential 
 persons in England are in the habit of saying with 
 impunity that one English act of Parliament is 
 murderous, and another was passed for the purpose 
 
305 
 
 of preventing the population from having enough 
 to eat. They would inquire what evidence had 
 been given of any recommendation by Mr. O'Connell 
 to make any resistance to the law ; and they would 
 be not a little surprised to hear that an uncon- 
 ditional obedience to the law had been the great 
 principle to which, throughout the whole period of 
 his life, he had exacted a universal and unhesitating 
 conformity from all his followers ; that indeed the 
 most provoking part of the man's conduct was that, 
 like a peaceable dog, in the manger of riot, having 
 no appetite for that particular entertainment, he 
 not only himself abstained from indulging in the 
 enjoyment of tumult, but would not allow any one 
 else to partake in the gratification ; and that such 
 perverse and persevering " total abstinence " from 
 illegality upon the part of the leader and the fol- 
 lowers was, in the opinion of the Attorney- General*, 
 that which constituted the most formidable part of 
 the hypothetical conspiracy; rendering it necessary, 
 as the reader will have already perceived, to con- 
 strue Mr. O'Connell's conduct into illegality, and so 
 producing that continual interlacing of contradic- 
 tory sophistries which we have endeavoured to dis- 
 entagle, and in the course of which the logicians of 
 the Crown were compelled to contend fifty times, 
 not only that white was black, but that the reason 
 of its being so very black was that it was so par- 
 ttcularhj white. 
 
 * Vide supra, p. 4—5. 
 U 
 
306 
 
 But in continuing its inquiry into " the circum- 
 u stances of the case," the Court would probably hear, 
 that although Mr. O'Connell had not recommended 
 any opposition to Government, there were others 
 who did so with impunity ; and as the Chief Justice 
 had shown during the trial some concern about 
 the circulation of the Evening Mail, the court above 
 might perhaps have an opportunity of seeing in 
 that paper that a Dublin judge — the same gentle- 
 man who revised the lists of which the Court had 
 already heard so much — had declared at a great 
 public meeting "that he trusted the people knew 
 u their duty too well to submit to the enactments of 
 u the Government"* and that the right honourable 
 gentleman had never been prosecuted for such de- 
 claration. The Court would also not fail to take 
 into its consideration what was going forward in 
 the world without, and would probably see, by the 
 reports of the London papers, that within a few 
 days of this present 15th of March, 1845, a 
 noble Earl, who is the Lord Lieutenant of the 
 " proper" county in which the Prime Minister has 
 his residence, presided over a meeting, at which it 
 was unanimously resolved that the recent measures 
 of the Government amounted to a confiscation of 
 property, and that another multitudinous meeting, 
 presided over by a noble Duke, who is also a Lord 
 Lieutenant, and whose brother is a Lord of the Trea- 
 
 * Arm. & Trev., p. 327. 
 
307 
 
 sury, expressed their determination not to submit 
 to any further extension of such measures ; and de- 
 clared that if the farmers of England had shown a 
 little sooner, the formidable front which they 
 exhibited upon the present occasion, no govern- 
 ment would have dared to act as the present 
 Government had done. Mr. O'Connell would, pro- 
 bably, not fail to cause it to be communicated to the 
 Court, that although himself and the other defend- 
 ants were charged with convening the monster 
 meetings for the purpose of procuring a seditious 
 resistance to the Government, no intimation was 
 given to the parties that they were acting illegally, 
 except one, which was immediately obeyed ; that 
 the Government had never interfered in any manner 
 with respect to any of those meetings, except the 
 actual meeting at Skibbereen*, and the projected 
 meeting at Clontarf ; that the meeting at Skib- 
 bereen, as the reader has been already informed, 
 was holden with something like the deliberate 
 sanction of the Government; and that when a pro- 
 clamation was issued against holding the meeting 
 at Clontarf [the only official intimation which the 
 Government had given] " every one of the de- 
 " fendants, in his way, laboured to effect the 
 " common object," of showing obedience to the 
 proclamation [which conduct was considered as 
 
 * Vide supra, p. 168. 
 
 u 2 
 
308 
 
 decisive evidence of a conspiracy to resist it], and 
 that one of them sacrificed his life to the efforts 
 which he made upon the occasion, in recompence 
 for which efforts the Government very gratefully 
 rewarded him with a prosecution for a seditious 
 conspiracy. The court above, so placed in the 
 situation of the court below for the purpose of 
 awarding the punishment, would naturally turn to 
 the clergy of the Irish establishment for a perfect 
 exemplification of submission to the laws and the 
 authorities ; but the Court would, perhaps, learn, 
 from some source or other, that a very large portion 
 of that reverend body was at present " labouring, 
 " each in his own way, to effectuate the common 
 " object," of exciting opposition to that part of the 
 measures of the Government, and laws of the land, 
 which relate to the education of the people, and that 
 they denounce those laws and measures not only as 
 being in opposition to the law of God, but as tend- 
 ing to destroy the word of God itself, and as being, 
 therefore, such as not only to justify, but to render 
 meritorious, the resistance of all Christian mankind. 
 The Court would be, moreover, informed by the 
 Solicitor-General, that although he is himself a 
 member not only of the Government which has 
 adopted those atheistical measures, and procured 
 the enactment of those laws for the mutilation of 
 the Divine Word, but also a member of the Board 
 whereby the laws and measures are to be carried 
 into effect, he has never felt it to be his duty to 
 
309 
 
 prosecute any of the reverend persons who, accord- 
 ing to his own theory, may be so easily inferred to 
 have conspired together, from the fact that " each 
 " of them has been for a considerable time labour- 
 " ing, in his own way, to effectuate the common 
 " purpose," of procuring resistance to the laws and 
 measures in question. 
 
 With reference to the charge of exciting ill feel- 
 ings between different classes of the people, the 
 Court, upon a very slight examination of some 
 affidavits which would perhaps be filed in mitiga- 
 tion of punishment, would find that the excitement 
 of ill feelings in one class of the people towards the 
 other was a permanent occupation with persons 
 rather high in the world, who, for committing the 
 offence, instead of being prosecuted, had been pro- 
 moted. They would find in the Chief Justice's 
 paper, the Evening Mail, and in every " paper of 
 " that sort," that a deputy-lieutenant of the county 
 of Down pledged himself at a great meeting, which 
 was presided over by Lord Roden, that, if it should 
 be desirable, he would u drive the Papists out of the 
 " land." That he went on to say ; that the boast was 
 not a vain one, — that he was satisfied that the thing 
 could be done, as the Orangemen were three millions 
 and the Papists only jive ; and that if he had been 
 aware that Lord Roden was to preside, he would 
 have had a body of at least 60,000 Orangemen to 
 bid him welcome. That Lord Roden upon that 
 occasion made, according to the accounts, no at- 
 
 u 3 
 
310 
 
 tempt to express any dissent from these minatory 
 calculations, but, on the contrary, at the close of 
 the proceedings, recommended the multitude to 
 treasure up in their hearts the excellent advice and 
 cheering assurances which they had received ; that at 
 a great meeting of the Protestants of Ireland, which 
 was held at the Mansion House in Dublin, ten days 
 afterwards, he expressed his exultation at the display 
 of physical force which had justified Mr. Crommelin 
 (the deputy-lieutenant aforesaid), in boasting that the 
 party to which he belonged were willing and able to 
 44 drive the Papists into the sea." " It is gratifying," 
 said the noble lord, " to think, and, oh ! it was 
 gratifying to see, at the meeting in the North to 
 which I have alluded, that we have with us the 
 Protestant sinew and strength of the country" — that 
 strength and sinew upon which Mr. Crommelin 
 relied for effecting the clearance which he seemed 
 so anxious to accomplish. That no mitigation has 
 since that time taken place in his lordship's sen- 
 timents, appears plainly enough from the fact, that 
 four years later, when speaking of the clergy 
 of the Koman Catholic persuasion in Ireland, he 
 said, " They dictate to the rulers of the land, and 
 " send members to Parliament, who must, in return, 
 " obey their dictates. They watch over even the 
 " private conduct of Protestants, and know all their 
 " proceedings and domestic secrets by the agency of 
 " the confessional. The Protestants court them from 
 " fear ? and contribute to their exactions. There can 
 
311 
 
 " be no security for the country, nor no hope for its 
 " civilisation and prosperity, tell this order is put 
 " down — Djelexda est Carthago." 
 
 That these and similar recommendations of ex- 
 termination had produced their appropriate con- 
 sequences in the passions of the ferocious multi- 
 tudes to which they were addressed ; that in the 
 " Times" of the 27th of January, 1845, it was 
 stated that the Protestant Operative Association of 
 Dublin had lately published a set of resolutions, 
 the effect of which was a recommendation to ex- 
 terminate the Roman Catholic population of Ire- 
 land. 
 
 Coming to the, so called, offence of setting up the 
 practice of arbitration, the Court, along with certain 
 other matters which we have already mentioned, 
 and shall now not repeat, would find that the only 
 practical development of that part of the combi- 
 nation was the appointment of the Areopagus of 
 Blaekroek, which awful tribunal " had usurped the 
 " prerogative of the Crown in the administration of 
 " justice" to the very formidable extent of seditiously 
 adjourning the only cause that was brought under 
 their notice, " to the evil example of all others in 
 " like case offending," if any others there shall ever 
 be. Upon the subject of bringing courts of justice 
 into contempt, they would, perhaps, recollect that 
 some of the most ancient and important courts in 
 England itself — those exercising a spiritual juris- 
 diction — have come into such a degree of contempt 
 
 u 4 
 
312 
 
 as to be considered almost in the light of public 
 nuisances : that they themselves (the judges of the 
 Court above, now put into the place of the Court 
 below) were not perhaps without participating in 
 this opinion ; and that at this very moment Lord 
 Brougham is combining with some other persons, 
 not merely to " induce " but to compel " her 
 " Majesty's subjects to withdraw the adjudication 
 " of one large class of their differences with, and 
 " claims upon, each other, from the cognisance of 
 " the said tribunals by law established, and to sub- 
 " mit the same to another tribunal constituted and 
 " contrived for that purpose," of which latter tri- 
 bunal Lord Brougham will himself be undoubtedly 
 the most active and influential member. 
 
 Upon coming to the last charge of all — that of 
 intimidating the Legislature by speeches and 
 writings, for the purpose of effecting a change in 
 the laws, — the Court would begin by inquiring 
 what law it was that was pending before the Legis- 
 lature at the time of the supposed offence, and 
 which the Legislature was to be coerced into 
 passing or into rejecting by the force of the inti- 
 midation. They would be surprised to find, upon 
 this subject, that there was no such measure at all, 
 either permissive or prohibitive ; and that, in fact, 
 the very case of the Crown Lawyers, as repeated fifty 
 times all over by themselves and by the Court was, 
 that the changes in question which the defendants 
 were charged with endeavouring to effect by intimi- 
 
313 
 
 dating the Legislature, were to be effected without 
 any intervention of the Legislature being either 
 prayed or permitted. They would therefore see 
 that, if the case of the prosecutors themselves was 
 true, this part of the charge must be false.* They 
 would see, at any rate, that it was physically impos- 
 sible to intimidate a legislature into passing or into 
 rejecting a measure which did not exist, and was 
 not even projected ; and they would still further 
 learn, that during a considerable portion of the 
 period within which the speeches and writings were 
 uttered and delivered for the alleged purpose of in- 
 timidating the Legislature, in reference to a law 
 which was not contemplated, there was no such 
 thing in existence as the Legislature itself. The 
 Court, however, may not perhaps be disposed to 
 adopt this view of the law without some limitation : 
 they would, therefore, enter into the circumstances 
 of the case as disclosed upon the evidence, where 
 they would certainly find but small traces of any 
 language at all approximating, in its minacious 
 character, to that which they read of as forming the 
 regular dialect of some very important associations 
 in this country. 
 
 We have already presented the reader with some 
 sufficiently striking samples of the language, which 
 in England is used with impunity, for the declared 
 
 * The way in which the Chief Justice put the matter to the 
 jury in one part of his charge (p. 170.) was, that the defendants 
 " took it into their own hands entirely, without the assistance, 
 " advice, or co-operation of King, Lords, or Commons." 
 
314 
 
 purpose of intimidating the Legislature and the 
 Government. The following extracts are taken 
 from speeches delivered at a recent meeting of the 
 Anti-Corn Law League, in Manchester. The meet- 
 ing was composed of about 6000 persons, and the 
 extracts are taken from the Eeport contained in the 
 Morning Chronicle of the 7th of March instant. 
 One speaker says, 44 You want but unanimity and 
 a determination to carry any object you take in 
 44 hand." Talking of the League itself, he observes, 
 44 You feel in your own minds its growing strength. 
 44 The nation feels and recognises its evidence in 
 4 4 the House of Commons — itself the last place to 
 44 show the results of a movement. Yet there, who 
 44 does not perceive in the present session that the 
 44 tone and style of the leaders of political parties 
 44 has undergone a material change [cheers] ; that 
 44 zv e find deference where once there was super cilious- 
 44 mess; that the Treasury bench looks on not 
 44 haughtily, whilst the leader of the opposition 
 44 declares that protection is the bane of agricul- 
 44 ture [loud cheers]. A higher standing has as- 
 44 suredly been achieved for the friends of free trade, 
 44 as opposed to the friends of scarcity, in the Legis- 
 44 lature of the country [cheers]. That indication 
 44 is valuable for the very reason that more slowly 
 44 than in any other class in society does the progress 
 44 of knoivledge and of truth act upon that body. The 
 44 House of Commons marks time like a septennial 
 44 clock, that only strikes at long intervals [cheers 
 
315 
 
 " and laughter]. When the hands do begin to move 
 " forward, however, it is with a sort of jump, and 
 " not with the steady progress that marks the ad- 
 
 ponce of truth amongst the people; and we may 
 " anticipate that on this matter, as on that of Ca- 
 " tholic Emancipation, and some other topics, whilst 
 " year after vear we are tauntingly asked how 
 " many votes have you got, how many votes have 
 " you changed ? that at last icill come all at once the 
 H icord of command from head quarters to 1 right 
 " 4 about face 1 1 The ground will be cleared, and 
 u we shall hnd that what they have been for whole 
 " years denouncing as the ruin of the constitution 
 " and the agriculture of the kingdom — we shall 
 " find them enlightened to the essential importance 
 " of free trade, and declaring that it is the only 
 " rational policy which such an empire can adopt 
 " [cheers]. However it may be in the Legislature, 
 " the symptoms of progress are decided enough every- 
 * k where eke. They are evident, not only in the 
 
 immense numbers that attend meetings, both here, 
 " in the cradle of the Anti-Corn Law League, and 
 " those meetings in London which have gone on to 
 " such an unparalleled extent, but they are not less 
 " distinct in the character than in the multitudinous- 
 M ness of the meetings. They are marked by no 
 " sudden outbreaks of popular enthusiasm. We feel 
 " that not merely the purposes of this League, but 
 u every purpose that is connected with the march 
 11 of the national mind, is advancing towards its 
 
316 
 
 " accomplishment, that the dominion of sophistry, 
 " that the reign of humbug [loud cheers] is over — 
 il over for ever in this country; and no legislator 
 " or professed statesman will in future dare to try 
 " the cajolery that has been practised in past times, 
 " when he knows that the flimsiness of his argu- 
 " ments will instantly be seen through, and his 
 " insufficient assertions will have their speciousness 
 " detected. He will feel that his best interest is 
 "to be honest, because he has to deal with a de- 
 " velopment of mind that is no longer to be paltered 
 u with [cheers]." In comparison with such language 
 as this, any Irish Repealer, even Mr. O'Connell 
 himself, " roars you like a sucking dove." Even 
 the Chief Justice wound up his charge upon this 
 part of the case by reading the conclusion of an 
 address which was printed and circulated in Sep- 
 tember, 1843, which appeared in almost all the 
 newspapers of the empire, and which concluded in 
 the following terms : — " But, Irishmen, we suffice 
 u for ourselves. Stand together — - continue to- 
 " gether, in peaceful conduct, in loyal attach- 
 " ment to the Throne, in constitutional exertion, 
 " and none other." The Chief Justice having 
 read this passage exclaims, " Is this the language 
 " of intimidation, or is it not ?" It would be quite 
 ridiculous to attempt any serious answer to such a 
 question. If the Chief Justice's idea of intimida- 
 tion is to pass for a rational one, we know not why 
 people should consider that there was any thing 
 comical in the decision of the legal functionary in 
 
317 
 
 Shakspeare*, who decided that to impute to a gen- 
 tleman that he gave money to procure a calumnious 
 imputation upon a lady's character, was " flat bur- 
 " glary." 
 
 The reader is of course aware, that besides this 
 Corn Law Repeal Association, there is an Anti- 
 Corn Law Repeal Association, which, according to 
 the small extent of its courage and capacity, and 
 the somewhat smaller of the sincerity of its prin- 
 cipal members, adopts the same course which is 
 pursued by its antagonist, and for exactly the same 
 purpose, of intimidating the Legislature. As all 
 these matters are of course perfectly notorious, we 
 shall at present only call the reader's attention to the 
 fact that the proceedings of both Leagues having 
 become the subject of discussion in the Legislature 
 itself upon the 17th of March, 1845, not only did 
 all parties assert that the intimidation of the Legis- 
 lature was the professed object of all the "speeches 
 " and writings" of both associations, but the Prime 
 Minister himself actually read a document for the 
 purpose of proving, that the real purpose of the 
 society presided over by the Duke of Richmond 
 was to " arrest the specific measures then actually 
 " in progress through Parliament," and that, for the 
 accomplishment of this purpose, the society was 
 labouring by itself, and by all its affiliated branches, 
 as well as by deputations ichich icere sent all through 
 the country, for the purpose of exciting resistance 
 to the actual and intended measures of the Legisla- 
 
 * " Much Ado about Nothing," act iv. scene 2. 
 
318 
 
 ture and Government, by acting upon the fears of 
 the individual members. 
 
 Although, after the instances which we have 
 already adduced, it may seem to be nothing 
 better than "wasteful and ridiculous excess" to 
 accumulate any additional evidences of the uni- 
 versality of the conduct which we are treating, 
 we cannot help referring to the proceedings of a 
 meeting which took place at Exeter Hall upon the 
 18th of March, in reference to the measure now 
 before the Legislature for increasing and render- 
 ing permanent the grant to the College of May- 
 nooth. The Honourable and Reverend Baptist 
 Noel having moved a resolution to the effect that 
 in the opinion of the meeting any assistance or 
 countenance given to the Roman Catholic clergy 
 was calculated to bring down the judgment of God 
 upon this Protestant country, the Reverend Mr. 
 Bickersteth next addressed the meeting. He said 
 that this grant was a national sin — that Popery 
 was the abomination of abominations — that the 
 grant was for the support of idolatry, and would be 
 so much money spent in undermining the throne — 
 so many barrels of gunpowder prepared to over- 
 throw the British constitution, as those with which 
 Guy Fawkes intended to have blown up the Parlia- 
 ment. It could not be expedient to concede the 
 grant to Maynooth, for it was paying to teach re- 
 bellion to God and to the state. He concluded 
 by stating, that the Government had made a fictitious 
 
319 
 
 excuse for bringing forward the grant. Sir Culling 
 Eardly Smith said, that it was the duty of all Pro- 
 testants to oppose it, and recommended that a com- 
 mittee should be appointed to sit every week (like 
 the National Repeal Association), and send able 
 men throughout the country to stir up a general op- 
 position to the grant, which recommendation was 
 adopted by the meeting. It seems to be scarcely 
 worth while to cap this climax of intimidation by 
 referring to a meeting in which the Irish Attorney- 
 General himself took a part, and at which a noble 
 Earl described the existing Parliament as " a rebel- 
 " lious Parliament," and added, that the then " Lord 
 11 Lieutenant was the slave and minion of the rebel- 
 M lious Parliament. " Mr. Smith exhibited upon the 
 same occasion some small bigotry upon his own 
 account ; but none of the individuals who combined 
 together for the purpose of intimidating the Legis- 
 lature by writings and speeches were ever made 
 the object of a prosecution for such conduct. 
 
 Upon inquiring into the character and conduct 
 of the respective defendants, the Court would be 
 informed by Mr. Justice Burton that Mr. O'Connell 
 was a person who never broke the law himself, or 
 allowed any one else to do so : upon which inform- 
 ation the Court would consider, that it would be 
 rather a flagrant injustice to sentence him to the 
 punishment of giving security to the amount of 
 10,000/. upon the pretence (admitted to be false) 
 
320 
 
 of preventing him from committing a breach of the 
 peace. The Court above would of course have 
 heard a good deal about the chivalrous qualities of 
 Mr. Steele's character, and would perhaps look 
 upon him as the most valiant and most dangerous 
 of the defendants. The Court would, however, 
 learn from the Solicitor-General that " he," the 
 Solicitor-General himself, "was quite satisfied — 
 " quite certain — that Mr. Steele would not wan- 
 " tonly put himself at the head of any movement 
 " that would disturb the public peace or injure any 
 u human being." * The Court would, upon hearing 
 this, naturally wonder why he was prosecuted at 
 all ; and would, perhaps, not wonder the less upon 
 hearing from the Solicitor- General f that "he had 
 " known Mr. Steele for many years, and highly 
 " respected his manliness of character as well as his 
 " pacific disposition ; but that he, the Solicitor- 
 " General, had included him in the indictment, not 
 " because of any specific offence which he had com- 
 " mitted, but because it was thought impossible that 
 " any gentleman who had taken so prominent a part 
 " in the whole of the general movement could be 
 u omitted." 
 
 The Court, having in vain attempted to digest 
 this new principle of action, by virtue of which a 
 man is prosecuted because his political friends 
 happen to be in the same predicament, would 
 scarcely think that this kind of Irish conformity 
 
 * Reply, Flan., p. 421. f Ubi supra. 
 
321 
 
 was a matter to be commended in the administra- 
 tion of criminal justice ; but would at any rate 
 suppose that Mr. Steele had been acquitted by the 
 jury. Their Lordships would, however, be in- 
 formed, that " the jurors aforesaid " not only re- 
 turned a verdict against Mr. Steele upon every 
 count in the indictment, but actually found him 
 guilty of more offences than were imputed to him. 
 
 It would, then, become, of course, indispensable 
 to ascertain more perfectly the nature of the 
 "prominent part " which he had taken throughout 
 the movement, and the Court would be informed 
 that Mr. Steele's exertions had been principally and 
 most effectually directed to the preservation of the 
 peace. But the Attorney-General would inform 
 their Lordships as he had already informed the Court 
 below, that M the determination to preserve the 
 " peace was, in fact, the most formidable, and, there- 
 u fore, the most criminal, part of the whole con- 
 u spiracy." * The Court, being completely mystified 
 and bewildered by this farrago of absurdity and 
 iniquity, would be glad to pass on to some other of 
 the defendants, and would learn that Mr. Barrett 
 was charged with sedition for expressing upon the 
 subject of military duty the principles of the Bible, 
 of Grotius, of Gisborne, of Blackstone, and of 
 Brougham ; and Chief Justice Pennefather would 
 himself inform the Court above that, as a matter 
 
 * Vide supra, p. 5. 
 X 
 
322 
 
 of fact, Mr. Duffy was in so delicate a state of 
 health as never to have been able to attend one of 
 the meetings which he was charged with conspiring 
 to convene. With regard to the Eev. Mr. Tierney, 
 the Court would be informed by Mr. Justice 
 Crampton that in his, Mr. Justice Crampton's 
 opinion, justice was not done to Mr. Tierney, either 
 by the Court or the Jury * ; that the Court, that is 
 to say, the Chief Justice in his charge to the Jury, 
 ought to have been " more explicit ; " and that the 
 Jury ought to have acquitted him, notwithstanding 
 the fact, that "justice was not done to him" in the 
 charge ; that he had joined the association after 
 every one of " the overt acts," such as they were, 
 " had been done; " that the evidence against him was 
 " of so very trifling a nature " that the Jury ought 
 to have acquitted him ; and, finally, that he, Mr. Jus- 
 tice Crampton, having omitted to interfere at the 
 proper time to prevent injustice from being committed 
 against Mr. Tierney, " could not now rest satisfied 
 " as a conscientious man, unless Mr. Tierney was re- 
 " leased from the pressure of that verdict; " and that, 
 sooner than Mr. Tierney should not have a new trial, 
 he, Mr. Justice Crampton, would even grant a new 
 trial to the other defendants who, in his opinion, 
 did not deserve it. Of Mr. Tyrrell, the Court would 
 hear that he had been deprived of his life, partly 
 from the effect which the mere commencement of 
 
 * Judgment of Mr. Justice Crampton in refusing the motion 
 for a new trial, reported in the Morning Chronicle, May 27. 
 
the prosecution had produced upon a frame which 
 was not naturally vigorous, and partly from the 
 exertions which he had previously made to induce, 
 in the popular mind, a sincere obedience to the Go- 
 vernment which prosecuted him for a seditious re- 
 sistance. Of Dr. Gray and Mr. John O'Connell, the 
 onlv arbitrators among" the defendants, the Court 
 would learn that they had " combined together " to 
 adjourn, without a hearing, the only cause which 
 they were ever asked to hear ; and concerning the 
 only remaining defendant, Mr. Ray, the Chief Jus- 
 tice would state that his share of the combined 
 illegality was only a mite. 
 
 With regard to all the defendants, the Court 
 would learn that they severally and specifically de- 
 nied, in eight separate affidavits, the truth of the 
 charge for which they were indicted, and the Court 
 would, probably, be of opinion that the solemn 
 depositions of nine respectable individuals ought to 
 pass for something in answer to an inferential im- 
 putation of a constructive and conjectural offence, 
 which was founded upon a hypothesis ; which " eye 
 u had not seen or ear heard," and which " it never 
 u entered into the heart of any one but the Attorney - 
 44 General to conceive :" and, which was never even 
 pretended to have a " local habitation," although 
 the law gave it a " name " upon the presumption of 
 its existence. 
 
 Having now presented to Mr. Justice Maule an 
 outline of the sort of circumstances which "the 
 
 x 2 
 
324 
 
 " Court above, put into the place of the Court be- 
 " low," would have to consider before the passing of 
 the sentence, we venture to hope that we may safely 
 assert that no English Court could, in the present 
 case, have inflicted one hundredth part of the 
 punishment to which the defendants were sen- 
 tenced by the Irish Judges — a punishment which, 
 as we have already shown, was as extravagantly 
 disproportionate as it was extravagantly absurd. 
 
 Coming next in order to the " Information " given 
 by Mr. Justice Williams to the House of Lords, we 
 find the learned Judge using the following lan- 
 guage : " And what, I may be permitted to ask, is 
 " there which gives your Lordships to understand, 
 " and be informed, that judgment may not have 
 " been — actually was not — given exclusively 
 " upon those counts, and the findings thereon, to 
 " which (according to the opinions of all the Judges 
 " at least) no possible objection applies ? Why is 
 " it to be assumed that the judgment has proceeded 
 " upon some or all of the erroneous parts of the 
 " record?" In answer to this we beg leave to say 
 that the Record itself was that which gave their 
 Lordships to understand that the judgment had been 
 given upon all the counts, good and bad. The record 
 minutely stated that the defendants were charged 
 with having committed certain offences therein 
 very particularly set forth. It then proceeded to 
 state, with much more particularity, that the Jury 
 had found the defendants guilty of all the offences 
 
325 
 
 aforesaid, in manner and form as the said offences 
 had been respectively charged against the said re- 
 spective defendants. It then proceeded to state, 
 that the Court having seen, and fully under- 
 stood all and singular the premises, had sentenced 
 each defendant, for his k ' offences aforesaid, " to a 
 certain amount of imprisonment and line. What- 
 ever may be the true and legal meaning of the 
 expression " his offences aforementioned," there can 
 be no earthly doubt that, prima facie, it imports 
 the offences which had been mentioned before, and 
 of which the Jury had declared upon the ante- 
 cedent parts of the record that the defendant was 
 guilty. Mr. Justice Williams, however, is of opinion 
 that the words ; * his offences aforesaid " are upon 
 that record exactly equivalent to the words " such 
 u offences as are charged against him in five- 
 M elevenths of the counts of the indictment aforesaid." 
 And this most violent construction is based upon 
 the equally violent supposition that, as no judgment 
 could have been legally given upon the 1st, 2d, 3d, 
 4th, 6th, or 7th counts of the indictment, it must 
 be taken to have been given in respect of the 5th, 
 8th, 9th, 10th, and 11th, to neither of which, ac- 
 cording to the opinions of the English judges, no 
 objection applies. Let us try the correctness of 
 the construction, and of the presumption, by a test 
 which, to ourselves at least, appears quite unex- 
 ceptionable. 
 
 Let us suppose that there were now, as in Lord 
 
 x 3 
 
326 
 
 Mansfield's time there actually were, two Courts of 
 successive appeal in the present case ; that a writ 
 of error had been first brought upon the judgment 
 from the Queen's Bench in Ireland to the Queen's 
 Bench in England, and afterwards from the Queen's 
 Bench in England to the House of Lords. In the 
 present instance the Court of Queen's Bench in 
 England would confirm the judgment of the Court 
 below, as the three puisne Judges of the English 
 Court have expressed their opinions that the Irish 
 judgment must be taken to have proceeded upon 
 the 5th, 8th, 9th, 10th, and 11th counts, which 
 they declare to be good, and well found ; and not 
 to have proceeded in any any degree upon the 1st, 
 2d, 3rd, 4th, 6th, or 7th, which are either ill found 
 or ill framed. 
 
 Let us now suppose that the case goes on from 
 the English Queen's Bench to the House of Lords, 
 and that the majority of the Law Lords in that 
 House agree in opinion with Lord Brougham and 
 the four Irish Judges, that the 6th and 7th counts 
 are unexceptionably good, that they see nothing 
 bad in the finding of the first four counts, and that 
 they are also of opinion that all the others are un- 
 questionably bad. The House of Lords would de- 
 clare that the judgment of the Irish court was good, 
 because it must be presumed to have proceeded 
 exclusively upon the 1st, 2d, 3d, 4th, 6th and 7th 
 counts ; and the English Court of Queen's Bench 
 would decide that the same judgment was good 
 
327 
 
 upon the ground that it must be presumed not to 
 have proceeded in any degree upon any of those 
 counts at all. The Supreme Court of Error would 
 affirm the judgment upon the ground that the 
 Court below must have held the 6th and 7th counts 
 to be unexceptionably good, and all the others to 
 be unquestionably bad, and the 1st, 2d, 3d, and 
 4th to be legally found : and the intermediate Court 
 of Error would affirm the same judgment upon 
 the ground that the Court below must have held 
 the 6th and 7th counts to be unquestionably bad, 
 and all the others to be unexceptionably good, and 
 the findings upon the first four counts to be good 
 for nothing. We should then have a presumption 
 of law which was negative at one side of a parti- 
 cular wall, and positive at the other. So that the 
 effect of the presumption would be upon the whole, 
 that the Court of Queen's Bench in Dublin consi- 
 dered the 6th and 7th counts to be at one and the 
 same time unexceptionably good and unquestionably 
 bad ; and the findings upon the first four counts 
 to be at the same instant legal and illegal ! 
 
 In the meantime, the persons who repudiate the 
 literal and obvious construction of the record, but 
 who won't go beyond it for information, have no 
 means whatever of ascertaining as a fact, with 
 which of the Courts of Error the Court below is in 
 accordance upon the point ; or whether it does not 
 in some degree both differ and accord with each, or 
 whether it does not in every particular differ from 
 
 x 4 
 
328 
 
 them both, respectively, as widely as they differ 
 from each other. 
 
 Mr. Baron Gurney's opinion proceeds upon the 
 supposition that the question in controversy was 
 the adequateness of the punishment — a matter 
 about which there was no question at all : whilst Mr. 
 Baron Alderson, who states in one place * " that the 
 " Court below always give their judgment upon the 
 " good counts;" — for which purpose it is of course 
 indispensable that they should examine the record 
 in order to see which counts are good and which 
 not, — anticipates, in the same place f , as the conse- 
 quence of setting aside the judgment of the Queen's 
 Bench in Ireland, " that the Court below will be 
 u obliged to examine and decide upon the record in 
 " some cases without even the benefit of an argument," 
 — that, as a consequence of reversing the judgment 
 against Mr. O'Connell, the Court will, as a matter of 
 fact, be compelled to do, occasionally and imperfectly, 
 what, as a matter of presumption, it is supposed to 
 do universally, and completely. This argument so 
 nakedly reveals its own want of any foundation as 
 not to require any other answer besides that which 
 it gives to itself. 
 
 It appears humbly to us, that not only does the 
 " presumption " of which we have been speaking 
 conduct in every direction to a wilderness of ab- 
 surdities, but that the very terms in which it is 
 expressed, are deprived of all intelligible meaning 
 
 * Opinions of the Judges, p. 25. t Ibid, p. 24, 
 
329 
 
 by the use to which they are applied. What sense 
 are we to attribute to the expression M good counts " 
 in the argument of the Lord Chancellor, and of all 
 those who take that side in the discussion ? M Good," 
 in such a case, must mean " good according to the 
 
 I CO 
 
 tk decision of some tribunal having power to decide 
 " upon the goodness." If. therefore, the expression 
 as it is used can mean anything at all. it must 
 either mean counts that are good in the opinion of 
 the Court below, or counts that are good in the 
 opinion of the Court above. 
 
 It may be conceded that the Court below delivers 
 its judgment upon the counts which Usdf considers 
 §0 he good. But if this fact be sufficient to make the 
 judgment good, there must result of necessity one of 
 two consequences of the most monstrous character ; 
 first, that the Court below cannot make any mis- 
 take upon the goodness of the counts ; in which case 
 the existence of a Court of Error, which profess- 
 edly exists only for the purpose of rectifying those 
 (non-existing and impossible) mistakes, would be 
 a gigantic outrage upon common sense. But se- 
 condly, if the Court below should be capable of 
 error, it must equally and inevitably result, that 
 wherever that Court gave a judgment of conviction 
 upon an indictment, consisting of one bad count, 
 or consisting of several counts all bad, the Court 
 above would be obliged to declare expressly that a 
 judgment was good which it knew to be bad. To 
 suppose, therefore, that by " good counts " we are 
 
330 
 
 to understand counts good in the opinion of the 
 Court below, is altogether and obviously impossible. 
 
 Equally impossible must it obviously be, to sup- 
 pose that the expression can mean counts good in 
 the opinion of the Court above ; as nothing could 
 be more extravagant than the supposition, that the 
 Court below gave judgment upon the counts in re- 
 ference to the opinion of their goodness which may 
 be formed by a Court of Appeal ; when the Court 
 below could not know what the opinion of the Court 
 above would be upon the subject, or whether it 
 would ever give or ever be asked to give any 
 opinion upon the subject at all. 
 
 But if we proceed upwards to the alleged foun- 
 tain of this imaginary doctrine, we shall find that 
 the position which Lord Mansfield is said to have 
 laid down, or rather the intimation which he 
 very improvidently threw out, affords as little 
 ground for the consequences which have been sup- 
 posed by the judges to follow from it, as the 
 opinions of the judges afford for the fabric which 
 Lord Lyndhurst has erected upon the opinions 
 themselves. It seems to be admitted upon all 
 hands, that if Lord Mansfield's dictum were spoken 
 with reference to a motion in arrest of judgment 
 only, it was altogether inapplicable to the case of a 
 writ of error, which is a proceeding of a totally 
 different nature. That he did not speak with 
 reference to a writ of error appears to be entirely 
 out of doubt ; first, because he says nothing which 
 
331 
 
 indicates that he had any such proceeding in his 
 mind ; secondly, because there never was any in- 
 stance of a writ of error upon that subject at all 
 until the present case of the Queen v. O'Connell ; and, 
 thirdly, because it appears that the very proceeding 
 before Lord Mansfield, when he uttered the dictum, 
 was a motion in arrest of judgment, where the 
 several counts in the declaration were all, as ap- 
 peared upon the face of them, for the same subject 
 matter, and where the two counts objected to were 
 held by Lord Mansfield himself to be good. If, on 
 the other hand, it can be supposed, in defiance of 
 all probability, that Lord Mansfield intended his 
 dictum to be extended to writs of error, as well 
 as to motions in arrest of judgment, a very slight 
 inspection of the arguments which have been used 
 to show such to have been Lord Mansfield's inten- 
 tion, will be sufficient to demonstrate that he 
 ought to have drawn from the premises in question 
 a conclusion diametrically opposite to that which 
 he actually deduced. He is supposed to have 
 placed the alleged difference between civil and 
 criminal cases upon the ground that " in civil cases, 
 " if there be one count bad, and the verdict be 
 " general, no good judgment can be given, because 
 " the court having no power over the damages, or 
 u means of apportioning some part of them to one 
 u count, and some to another, knows not for which 
 " portion the judgment ought to be given, and is 
 " compelled therefore to set the whole verdict aside." 
 
332 
 
 Now, upon this point, it appears to be instantly 
 obvious that the position of a Court of Error, in a 
 criminal case, with reference to the sentence and 
 the punishment, is absolutely identical with that of 
 a Court in Banc, in a civil case, with respect to the 
 verdict and the damages. Upon this subject Lord 
 Cottenham made the following conclusive observ- 
 ation : * " It appears to me that a Court of Error, 
 " in criminal cases, is in precisely the same situa- 
 " tion " (as the Court in Banc). " It has no more 
 " jurisdiction over the quantum of punishment, and 
 " no better means of referring one portion of it to 
 " one count, and one portion to another, than the 
 " Civil Court has, after a general verdict, over the 
 " damages in an action. In both cases the pre- 
 " liminary or inferior jurisdiction has proceeded 
 " upon an instrument (the indictment or declara- 
 " tion) found to be in part deficient, and having 
 " come upon the whole to one result, which the 
 " inferior Court cannot separate or apportion, the 
 " same necessity exists in the one case as in the 
 " other, of holding the whole to be void." 
 
 The most which can therefore be made of the 
 argument upon the part of the Crown, is that Lord 
 Mansfield asserted, without any authority for such 
 an assertion (if it is to be supposed that he spoke 
 with reference to a writ of error), that the practice 
 was in criminal cases different from what it was in 
 
 * Judgment, p. 6. 
 
333 
 
 civil ; but that ever}' reason, of every sort, alleged in 
 support of his obiter dictum, demonstrates that there 
 ought not to be any difference at all, so that the 
 very foundations of the theory are as fictitious as 
 the fabric itself. 
 
 But whatever direction ou^ht to be given to the 
 meaning of the dictum, it is quite obvious that it 
 must, as to the extent of its application, be confined 
 within very narrow limits indeed. Lord Lyndhurst 
 represents Lord Manslield as " laying down, in the 
 *• most broad and general terms," the rule that, " in 
 '* criminal cases, where there is a general verdict of 
 M guilty, if one count is good it is held to be suf- 
 M cient."* Now, if an indictment consist of as few 
 as even two counts, each charging a really distinct 
 offence, and the defendant is found guilty upon them 
 both, it is of course the unquestionable duty of the 
 Court, in passing sentence upon the person, to inflict 
 some punishment for each of the offences of which 
 he has been found guilty. It is, of course, impossible 
 to presume that any Court would be so flagrantly 
 mindless of its duty as to pass sentence for only one 
 offence alone : some punishment must be awarded 
 in reference to each. It is therefore impossible to 
 entertain for a moment such a theory with respect 
 to any such case, as that the Court, upon ascertain- 
 in^ that there was one £rood count in the indict- 
 ment should proceed to give its judgment, with- 
 
 * Judgment, p. 2. 
 
334 
 
 out any reference to the actual or possible badness 
 of the others. The " impression " or " notion " 
 therefore, about one good count being sufficient to 
 support a judgment, must be obviously false, in re- 
 ference to any case, except those in which the in- 
 dictment, although containing various counts, im- 
 putes only one individual offence, which is charged 
 in different ways, in order to meet the possible 
 contingencies of the evidence. Now the indictment 
 in the case of the Queen v. O'Connell contained six 
 charges, unquestionably and obviously distinct, 
 and could not, therefore, by any possibility, be in- 
 cluded within the operation of the " impression." 
 The slightest examination, therefore, of the alleged 
 rule and of the actual record, are sufficient to show 
 that from the operation of the rule must of necessity 
 be excluded, at least, one class of cases, and that 
 within that class the case of O'Connell v. The Queen 
 is most unquestionably included, so that after all the 
 assertions and all the denials which were made upon 
 the subject, of the existence and meaning of this 
 apocryphal principle, it finally turns out that what- 
 ever degree of credit is to be given to it, the extent 
 of its application falls obviously short of the case 
 actually before the Court. 
 
 Such was the course of negative and inconsiderate 
 usage in the administration of criminal justice which 
 Lord Brougham called the " practice of ages," be- 
 cause it had existed for some years, unamended 
 and undetected ; a practice under which a man may 
 
335 
 
 be convicted and punished upon an indictment 
 charging several offences, without being ever able 
 to ascertain with precision or certainty in what 
 respect it was that he transgressed against the law*, 
 or for what offence it was that he suffered punish- 
 ment ; a practice, however, which the House of Lords 
 very properly abolished, by reversing the judgment 
 of the Queen's Bench in Dublin, in the case of the 
 Queen v. OYonnell, and pronouncing a decision 
 which has undoubtedly received, since its delivery, 
 the deliberate and sometimes reluctant approbation 
 of the whole Bar in this country. 
 
 Such was the conclusion of a contest, in which 
 the Government was routed with a more disastrous 
 and a more total defeat than was, perhaps, ever 
 exhibited in the result of a crown prosecution before 
 — a prosecution which was commenced and con- 
 ducted with " a prodigality of blundersf," but with a 
 scarcity of justice, which in England and in modern 
 times appear perfectly prodigious — a prosecution 
 which not only failed to produce the results or 
 establish the principles for which it was professedly 
 
 * " Such was the system under which," as Lord Campbell ob- 
 served (Judgment, p. 7.), " the framer of an indictment, having 
 " got one count good in law, goes on to draw others upon the 
 " same or different subjects, more and more vague and attenuated, 
 " and requiring less and less proof, until the accused becomes in- 
 " volved in the most perplexing generalities,and finds the greatest 
 M difficulty in ascertaining what is the charge to be repelled." 
 
 f " Times " Newspaper. 
 
336 
 
 instituted, but which completely succeeded in pro- 
 ducing consequences and establishing principles dia- 
 metrically opposite. The Solicitor-General expressly 
 stated that one object of the prosecution was to 
 suppress the Repeal Association. But although the 
 Chief Justice called it, jocularly, " a society for the 
 " diffusion of useful knowledge," and complained, 
 seriously, that it did not circulate " the ' Evening 
 " ' Mail ' or any other paper of that sort," Mr. Justice 
 Crampton expressly declared upon the bench, and 
 in the presence of the whole Court, that the At- 
 torney-General had not, in the course of the pro- 
 secution, made any imputation upon its legality; 
 and so little does any body now imagine it to be 
 illegal, that the Earl of Devon, in the very first 
 page of the recent Report of the Irish Land Com- 
 mission, expressly and directly informs her most 
 gracious Majesty that the commissioners had re- 
 ceived several documents and witnesses from the 
 " committee of the Repeal Association" which he 
 mentions in the ordinary way, as if speaking of one 
 of the organised and acknowledged institutions of 
 the country, and which is the very first body which 
 he specifically mentions as having made any com- 
 munication to the commissioners. "We want," 
 says the Solicitor- General to the Court of Queen's 
 Bench, " to put down this illegal association." 
 "We beg leave," says the Earl of Devon to the 
 Queen herself, "to inform your Majesty that we 
 " have received communications from the Repeal 
 
337 
 
 u Association, the boards of guardians of different 
 " unions, and the bishops of the Established Church." 
 Such is the result of the prosecution with respect 
 to the Association. 
 
 Let us now see what sort of success attended it 
 in reference to the other great purpose of the Govern- 
 ment. The principal part of the indictment, that 
 to which alone any real importance was attached 
 by any body, was the portion which related to the 
 Monster Meetings of 1843. It was for the purpose 
 of procuring a decision against the legality of those 
 meetings that the whole proceedings were set on 
 foot. Nobody can believe that the Irish crown 
 lawyers did not introduce into the counts relating 
 to those meetings as much intensity of allegation 
 as the circumstances would bear. Yet the final 
 result of the prosecution upon this point is, that 
 the judges and the law lords of England have de- 
 cided by a majority of thirteen to one — every one 
 else to Lord Brougham — that those allegations 
 are totally worthless, and that the charge upon that 
 subject amounts to no offence at all. 
 
 The prosecution must have been advised by the 
 Lord Chancellor of England, and the purpose of it 
 is known to all mankind to have been, to punish the 
 multitudinous meetings ; yet the Lord Chancellor 
 himself now declares, not obiter — not accidentally or 
 inconsiderately, but as laying and constituting the 
 very foundation of his argument, that the parts of 
 the indictment which relate exclusively to those 
 
 Y 
 
338 
 
 meetings, contain no imputation of any conduct 
 which the law forbids — that the conduct imputed 
 to the defendants in those counts, — to use the very 
 words of the Lord Chancellor himself — " does not 
 " constitute any offence known to the law*," 
 however offensive it may be to the Cabinet. 
 
 But although every meeting is to be considered 
 a lawful one until the reverse has been proved, we 
 do not mean to assert that the decision which we 
 have mentioned is in itself sufficient to prove the 
 meetings in question to have been lawful. Taking, 
 however, into consideration the whole of the subject, 
 including the facts as well as the law of the case, 
 we have no hesitation in expressing our own opinion, 
 that the prosecution of Mr. 0' Conn ell has demon- 
 strated the utter impossibility of sustaining any im- 
 putation of illegality against the multitudinous 
 meetings of 1843. 
 
 But the Government did not, in fact, venture to 
 raise any direct issue upon the point at all. 
 For, instead of indicting the defendants for attend- 
 ing illegal assemblies, they instituted a speculative 
 prosecution upon a constructive imputation, from 
 which in any event it could only be conjectured with 
 more or less probability, that the meetings were, 
 or were not, considered to be unlawful, but in which 
 no direct or express decision could be given upon 
 that point. Instead of making each individual re- 
 
 * Judgment of the Lord Chancellor, p. 3. 
 
339 
 
 sponsible for the alleged illegalities of his own 
 conduct, they hustled nine defendants together into 
 the same dock, by which " manly and straight- 
 " forward conduct " one defendant was made re- 
 sponsible for not only what had been done by him- 
 self, but for every thing that had been done without 
 his assent or his knowledge, not only by every 
 other defendant, but by hundreds of other persons, 
 of whom he had never heard, and of whom he knew 
 no more than he did of the man in the moon. 
 
 The effect of this tortuous iniquity has been, how- 
 ever, exactly the same as must, aecording to the 
 Solieitor General, have resulted from a direct, open, 
 just, and constitutional course of action. It has 
 been ki triumphantly resisted, and deservedly de- 
 u feated," and the very general who anticipated the 
 triumph, has been reduced to the necessity of act- 
 ing himself as the herald of his own defeat. 
 
 The success of the prosecution in other particu- 
 lars has been exactly of the same kind. Upon a 
 charge of inducing the people of Ireland to with- 
 draw their confidence from the courts of justice — 
 or at any rate of law — in that country, the defend- 
 ants were dragged in " a mass " into the " focus " 
 of the most important of those courts, in which the 
 alleged offence was treated, not as an injury to the 
 public, but as the invasion of a monopoly, and in 
 which the Chief Justice deprecated the introduction 
 of arbitrators in the same spirit in which Mr. Miles 
 protests against the importation of lean cattle 
 
 y 2 
 
340 
 
 from Holstein — as if a client law were as neces- 
 sary as a corn law, and the principles of protection 
 were equally applicable to lard and litigation — to 
 the admission of grease and the administration of 
 justice.* 
 
 But the commercial narrowness, which viewed 
 clients only in the relation of customers, was 
 not the worst part of the exhibition. The public 
 at large, and especially the professional portion of 
 it, saw with astonishment that the Court of Queen's 
 Bench in Dublin uniformly, deliberately, and per- 
 tinaciously refused a series of applications, made 
 upon the part of the defendants, whilst the ordinary 
 law reports of the newspapers in London were 
 alone sufficient to show, that these applications 
 would be granted in this country as a matter of 
 course, and of right. To these motions in general 
 may be applied the observation made by Lord Den- 
 man, with respect to one of them in particular f — 
 that for the amendment of the packed panel: 
 " The motion was refused, upon what ground I do 
 " not know, for I have read nothing of these proceed- 
 " ings, except what I have seen in the papers which 
 " have been printed for our use. But as I under- 
 " stand the facts, I must take the liberty of saying 
 " that it would startle any couet in ENGLAND 
 " to hear that such a motion as that should be refused." 
 Even the Lord Chancellor himself intimates % that 
 
 * See the recent debates in the House of Commons. 
 
 f Judgment, by Mr. Leahy, p. 17. % Judgment, p. 8. 
 
341 
 
 the relief required by that motion ought to have 
 been granted by the Court below, having, in the 
 course of the argument in the House of Lords, 
 expressly declared — what of course was well known 
 even without such declaration — that the fraudu- 
 lent and illegal concoction of the jury panel was 
 acknowledged by the Attorney-General upon the 
 record. 
 
 It must be admitted that there is nothing very 
 extraordinary in one Court giving a different judg- 
 ment from another, upon a subject which is proper 
 for the adjudication of both. It is, however, not 
 impossible that the people of Ireland, applying to 
 the conduct of the tribunal which tried the defend- 
 ants the same principles which were applied by the 
 tribunal to the conduct of the defendants them- 
 selves, may suppose that they had some reason 
 for concluding that the " series" of the decisions, 
 like the series of the meetings, exhibited a " con- 
 " tinuity and unity of purpose," from which infer- 
 ences may be drawn as well warranted at least as 
 those which the Crown prosecutors drew from the 
 number and succession of the meetings; and that 
 the indubitable effect of prosecuting Mr. O'Con- 
 nell, for endeavouring to diminish the confidence 
 of the Irish public in the administration of justice, 
 was to render that confidence much less than be- 
 fore, and to induce a belief that there now exists 
 a justification for the antecedent suspicion. This 
 futile and absurd attempt to repress, in modern 
 
 y 3 
 
342 
 
 times, by the feeble means of a legal formality , 
 the irresistible expansion of public opinion upon a 
 subject of such transcendant interest to the com- 
 munity, has, moreover, had the effect of drawing 
 the following most important opinion from the 
 exalted magistrate, who enjoys in perhaps a greater 
 degree than any individual ever did before, the 
 confidence and admiration of the whole community, 
 of every class and of every party: — " In the first 
 " place, it is my bounden duty to state that I do not 
 " entirely agree with the learned Judges in thinking 
 " that there are only two objectionable counts ; it 
 " appears to me that there are other counts open to 
 u very serious objection, and I should be sorry to pre- 
 a elude myself by any thing which I may now say 
 u from giving a judicial opinion against counts so 
 44 generally stated, and charging as an unlawful act 
 u a conspiracy to excite dissatisfaction with the 
 " existing tribunals, for the purpose of procuring a 
 " better system. I am by no means clear that it may 
 " not be an innocent and a most meritorious act ; 
 " / am by no means clear that there is any thing illegal 
 " involved in exciting disapprobation of the 
 
 " COURTS OF LAW, FOR THE PURPOSE OF HAVING 
 
 " other courts substituted, more cheap, efficient, 
 " and satisfactory." * 
 
 Such an opinion, proceeding from such a quarter, 
 will be very slightly countervailed by the statement 
 of Lord Brougham, that what all the judges decided 
 
 * Judgment of Lord Benman> edited by Mr. Leahy, p. 19. 
 
343 
 
 to be only a display of large numbers in favour of 
 a change in the law was an indictable offence — a 
 doctrine by the force of which every instance of 
 effectual or extensive political co-operation would 
 become transmuted into a seditious conspiracy ; and 
 in a country professing to be governed in accord- 
 ance with public opinion, all changes in the laws or 
 policy of the state would become unattainable in 
 the direct ratio in which they were desired by the 
 public. With regard to the feelings of ill-will 
 which had been excited in the minds of the Irish 
 towards the English people, as they were increased 
 by the temporary and partial success, they have 
 been altogether annihilated by the total and final 
 defeat of the prosecution, which in every respect 
 has established the legality of the bodies which 
 it treated as illegal, has justified the complaints 
 which it attempted to repress, and increased the 
 evils which it pretended to extinguish. 
 
 Such was the position in which the subject-matt* r 
 of the prosecution was left in the result. With re- 
 gard to the principal prosecutor himself, his condition 
 at the bar of the House of Lords was the most humili- 
 ating and the most deplorable that can be imagined 
 as existing in such a case ; and however little may 
 be the dignity which could be attributed to his posi- 
 tion, or the commendation which could be given to 
 his conduct in the earlier part of the proceedings, 
 u the last stage of the man was most undoubtedly 
 " much worse than the former." The Attorney - 
 
 y 4 
 
344 
 
 General was present in the Court of Queen's Bench 
 in Dublin upon the 12th of February, 1844, and 
 heard the whole Court publicly compose the forms 
 of the findings, which were to be signed by the jury. 
 He assisted personally in the composition, and heard 
 the Court itself declare the findings to be faultless, 
 and knew that the Court considered them to be 
 such. He saw them handed up to the jury box 
 from the bench, and saw them handed back to the 
 bench from the jury box, and received without the 
 slightest objection or intimation of an objection. 
 He subsequently heard an application to amend the 
 postea by adding some findings to those which 
 existed already. He saw that neither upon that 
 occasion or upon any other was any objection made 
 as to the goodness of the findings upon the first 
 four counts of the indictment. He resisted the 
 motion, and was upon that, as upon every other 
 occasion, supported by the judges. He opposed 
 the motion in arrest of judgment, and contended 
 that every count in the indictment was faultless. 
 He was present when the judges decided in his 
 favour, and heard with his own ears every one of 
 those learned persons declare that every count in 
 the indictment was good ; but that the sixth and 
 seventh counts were preeminently so, and altogether 
 unexceptionable. In delivering judgment upon the 
 motion in arrest of judgment, Mr. Justice Perrin 
 expressly declared that he concurred in refusing 
 the motion, upon the ground that the " sixth and 
 
345 
 
 seventh counts were unexceptionable." Mr. Justice 
 Crampton thought it unnecessary to enter into the 
 merits of the first five counts, upon the ground that 
 the sixth and seventh were " legally good and suf- 
 ficient in substance and in form," whilst the Lord 
 Chief Justice declared every count of the indictment 
 to be good and sufficient in law, and '"particularly 
 u the sixth, seventh, and remaining ones." 
 
 He was afterwards present when the sentence 
 was pronounced, and with his own ears heard the 
 senior judge of that court, in the presence of the 
 Chief Justice and the two other judges, declare 
 emphatically and repeatedly that the greatest part 
 of the punishment was awarded in respect of the 
 monster meetings : that, to use the language of 
 Mr. Justice Burton, in delivering the judgment, the 
 M main offence imputed to the traversers was, that 
 u they had conspired to procure the Repeal of the 
 u Union by intimidation to be produced by the ex- 
 " hibition of great physical force." 
 
 Yet this identical individual afterwards came to 
 the bar of the House of Lords, and requested that 
 House to confirm the judgment of the Court below 
 upon the ground that the Court below took into 
 consideration the badness of the counts and of the 
 findings (which he knew that they considered to 
 be immaculate), and that they awarded no punish- 
 ment in respect to that part of the charge which 
 he Ju-ard the Court itself declare to be the " main 
 u feature n in the offence ; — asking for the judgment 
 
346 
 
 of the House upon pretences which he knew not 
 only to be totally destitute of any foundation, but 
 to be diametrically opposite to the fact. It is wor- 
 thy of notice, that from this very peculiar conduct 
 of the right honourable and learned gentleman, 
 a consequence was drawn by Lord Denman, which 
 completely annihilated one part of the general ar- 
 gument upon the side of the prosecution. After 
 showing the absurdity of the use which had been 
 made of the doctrine of estoppel upon that side, the 
 noble and learned lord observed* : — "It is, how- 
 " ever, no easy matter to estop the Crown in any of 
 " its legal proceedings. The difficulty is greatest in 
 " criminal prosecutions, where any one may employ 
 " the name of the Crown in accusing and bringing to 
 " trial. And what is to estop the Crown in the case 
 " supposed? The fact of the party having been ad- 
 judged guilty of this offence. Yet the whole argu- 
 " ment has been to show, that as this offence was ill laid 
 " in the indictment, you must presume that no such 
 " judgment could have been pronounced. I confess, 
 " however, that 4 estoppel ' is to me a word without 
 " meaning, if this judgment now under investigation 
 " can be maintained by the reasoning adduced in 
 " support of it; for how could that doctrine at any time 
 " and under any circumstances apply more strongly 
 " than at the present moment, when the first law officer 
 " of the Crown in Ireland is not estopped from 
 
 " ATTACKING THAT INDICTMENT, PREFERRED BY HIM- 
 
 * Judgment, p. 45. 
 
347 
 
 " SELF, AND OX WHICH, IN ALL ITS PARTS, HE HAS 
 M OBTAINED A VERDICT OF GUILTY, AND A SENTENCE 
 
 " of fne and imprisonment? 
 
 In these observations, Lord Denraan refers more 
 especially to the subject of the counts. In reference 
 to the findings, Lord Campbell observes*, "With re- 
 M spect to the unauthorised findings, your Lordships 
 "are asked to presume that the Judges of the Court 
 " of Queen's Bench in Ireland were well aware that 
 u there was no sufficient verdict upon any of those 
 " counts, and awarded no punishment in respect of 
 M any of them. This, again, would be a presumption 
 u against the fact as well as against the averment 
 u upon the record: for complaint teas made at your 
 "Lordships' bar by the learned counsel for the 
 " Crown that no objection had been taken to those find* 
 u inys in the Court bdow, and it is quite clear that 
 " there was no misgiving in any quarter in respect 
 M to them until this writ of error. In truth, the 
 u counts in question [so ill found] contain the most 
 " serious charges, including some, as the charge 
 " to excite disaffection in the army, which are not 
 u repeated in any of the good counts on which there 
 M is a valid verdict. We cannot resort to the palfably 
 u incredible fiction, that the Judges, in violation of 
 " their duty, did not consider the guilt of the defend- 
 M ants aggravated by the charges in these counts, 
 u and proportionally increase their punishment. ,, 
 
 * Judgment, p. 7. 
 
348 
 
 But the argument upon the part of the prosecu- 
 tion at the bar of the House of Lords, was not only 
 in direct opposition to the argument in the Court 
 below, but was in equally direct opposition to itself. 
 And the same parties who were obliged to assert, 
 contrary to their own knowledge of the fact, that 
 the badness of the counts and of the findings must 
 have been taken into the consideration of the Court 
 below before the pronouncing of the judgment, con- 
 tended, at the same time and in the same place, that 
 there was no badness either in the counts or in the 
 findings at all* 
 
 It is impossible for us to conjecture what apology 
 could be adduced upon the part of the Government 
 for having endeavoured to procure the judgment of 
 the House of Lords, for continuing the incarceration 
 of their political antagonist, upon grounds, which, 
 as every body is aware, they themselves personally 
 knew to be diametrically opposite to the fact. 
 Equally difficult is it for us to conceive why no 
 public effort has been made hitherto, for the pur- 
 pose of demanding an explanation upon the subject, 
 
 * " The questions raised hitherto" (which included the ques- 
 tions about the badness of the findings) "are here raised upon 
 " the form of the record drawn up for consideration in this 
 " House, and do not involve any matter which occurred before the 
 " Court of Queen's Bench in Dublin." — Argument for the Pro- 
 secution at the Bar of the House of Lords, CI. & Fin. vol. xi. 
 part 1. p. 219. 
 
 " As to the supposed confusion between the charges in the 
 " counts and the findings upon them, it is submitted that there 
 " is none" — Ibid. p. 218. 
 
349 
 
 in that House which can afford to bestow so much 
 of its attention upon the importation of basket rods, 
 bad butter, false teeth, and canary seeds. 
 
 Without attempting to depreciate the importance 
 of those articles, we may be allowed to suggest that 
 some notice may without impropriety be vouch- 
 safed to such an object as that of asserting the prin- 
 ciples of constitutional freedom, and vindicating 
 the purity of the administration of justice ; and we 
 cannot even yet abandon the hope, that some parlia- 
 mentary enquiry will be made into the monstrous 
 prosecution, the character of which we have at- 
 tempted to delineate, and the success of which 
 would inevitably have left every degree of the 
 liberty of speech, of writing, and of political action 
 in Ireland, for all future time, at the mercy of the 
 Crown. 
 
350 
 
 APPENDIX. 
 
 Affidavit of the Rev. T. Tierney, sworn and filed 16th April, 
 
 1844. 
 
 In the Court of Queen's Bench, Crown Side. 
 
 The Queen against Daniel O'Connell, John O'Connell, 
 Reverend Thomas Tierney, Thomas Steele, Charles Gavan 
 Duny, John Gray, Richard Barrett, and Thomas Matthew 
 Ray. 
 
 The Reverend Thomas Tierney, of Lakelands, in the parish 
 of Clontibret, and county of Monaghan, clerk, maketh oath and 
 saith, that he, this deponent, never attended any meeting of the 
 Repeal Association previous to the meeting on the 3d day of 
 October, 1843; and this deponent saith, he admits that on 
 the said 3d day of October this deponent did hand in the sum of 
 921. and upwards as a contribution to the funds of the Repeal 
 Association, in order to bring about, by legal and consitutional 
 means, a repeal of the Union, and for no other purpose and 
 with no other object ; and deponent saith, that this deponent 
 had not during the year 1843, up to the 13th day of October in 
 that year, being the time of this deponent's being held to bail in 
 this case, any communication whatsoever, either personal or 
 otherwise, with any of the other traversers named in the indict- 
 ment in this cause, save that in the said year 1843 this deponent 
 wrote a letter from Clontibret, in the county of Monaghan, to 
 the said Charles Gavan Duffy, who had been formerly on inti- 
 mate terms with him, and who was, as this deponent believes, 
 then in Dublin, inviting him to come to Clontibret to spend a 
 
APPENDIX. 
 
 351 
 
 few days with deponent; but tliis deponent saith, that Mr. 
 Duffy did not comply with the invitation of this deponent : de- 
 ponent saith, that the meeting in the parish of Clontibret on 
 the loth of August, 1843, was convened by this deponent alone, 
 for the only purpose and with the only object that a petition 
 might be agreed upon to Parliament for the repeal of the Union ; 
 and saith, that the Repeal Association did not in any manner 
 whatsoever take any part with this deponent in convening that 
 meeting, and this deponent made no communication to the 
 Repeal Association of his intention to convene that meeting ; 
 that at the meeting so convened at Clontibret by this deponent 
 on the loth of August, 1843, a petition to Parliament for the 
 repeal of the Union was drawn up, agreed to, and read ; and this 
 deponent positively saith, that he, this deponent, did not, on the 
 16th day of June, 1843, or any other day, or ever say to John 
 M'Cann, one of the witnesses examined on the part of the 
 Crown, on the trial of this cause, that the feeling towards repeal 
 had extended itself to the army, that the army were favourable 
 to repeal, and partook of the enthusiasm of the people, and that 
 they could not be so easily led to spill the blood of their fellow 
 men, even by the bayonet, for seeking redress of their grievances 
 peaceably ; nor did this deponent on that occasion, or any other 
 occasion, use any words to the said John M'Cann to any such 
 purport or effect; that this deponent did not on that occasion or 
 ever speak to the said John M'Cann as to what the army had 
 done in Spain, or say any thing to the said John M'Cann in 
 respect of the army in this country, or in Spain, or in any 
 other country, or any word to any such import or effect ; and 
 this deponent saith, that he did not on that occasion or ever 
 say to the said John M'Cann that if the Association did not 
 ultimately attain its object, it had done so much, at least, that 
 the country would get something else besides bayonets, or any 
 words to any such import or effect ; and deponent saith, that 
 in the said conversation which passed betwen this deponent 
 and the said John M'Cann on the said 16th of June, this de- 
 ponent, in reply to a question from the said John M'Cann as 
 to when the Clontibret meeting would take place, informed him 
 that the time had not been fixed ; this deponent most positively 
 saith, that he did not on the 13th day of February, 1843, or on 
 
352 
 
 APPENDIX. 
 
 any other day or on any other occasion, combine, conspire, con- 
 federate and agree with the said other traversers in the indict- 
 ment in this cause named or with any of them, or with any 
 other person or persons ivhatsoever for or any of the purposes 
 charged in the indictment, or for any purpose whatsoever ; and 
 deponent saith, that in attending the said meeting of the Repeal 
 Association on the said 3d of October, 1843, this deponent was 
 utterly ignorant of there being any conspiracy ; and deponent 
 positively saith, that in attending such meeting, he did not in 
 the slightest degree intend to become a party to any conspiracy 
 or illegal association whatever; and deponent verily believes 
 no such conspiracy as that charged in the indictment in this 
 case ever existed, or was ever entered into by any of the 
 parties charged therewith. 
 
 THE END. 
 
 London : 
 
 Printed by A. Spottiswoode, 
 New- Street- Square. 
 
f 
 
BOSTON COLLEGE 
 
 3 9031 020 79430 1