THE UNIVERSITY 
 OF ILLINOIS 
 
 LIBRARY 
 
 From the collection of 
 James Collins, 
 Drumcondra, Ireland. 
 Purchased, 1918. 
 
 W158 
 K63ze 
 
mat Oreed. | * 
 
 A REPORT 
 PROCEEDINGS. 
 
 IN THE CASES 
 
 OF 
 
 THOMAS KIRWAN, MERCHANT, 
 . AND | 
 
 EDWARD SHERIDAN, M.D. 
 
 FOR MISDEMEANORS 
 
 CHARGED TO BE COMMITTED IN VIOLATION OF 
 
 THE CONVENTION ACT. 
 
 BY WILLIAM RIDGEWAY, ESQ. 
 
 Barrister at Law. 
 
 Dublin: 
 
 PRINTED BY GRAISBERRY AND CAMPBELL, BACK-LANE. 
 AND SOLD BY y 
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 A REPORT, &c. 
 
 COURT OF KING’S BENCH, 
 
 Wednesday, 6th November, 1811. 
 
 In the month of dugust last, several Gentlemen 
 were arrested in the city of Dublin, under, and by 
 virtue of warrants issued by the Right Hon. Lord 
 Chief Justice Downes, upon a charge of attending 
 a parish meeting, and acting in the appointment of 
 Representatives, to represent the Roman Catholics 
 of Ireland, for the purpose, or under pretence of 
 preparing petitions to both Houses of Parliament, for 
 the repeal of the laws in force in Ireland, particu- 
 larly affecting the Roman Catholics, contrary to the 
 provisions of the act $3 Geo. 3, chap. 29, called the 
 Convention Act. The persons arrested entered into 
 bail’ te appear in the Azng’s Bench, and this being 
 the first day of the Term, as soon as the Court sat, 
 
 Mr. GooLp, stated, that he was concerned as 
 counsel for several of the Gentlemen who had been 
 arrested, and was instructed by one of them, Mr, 
 
 486965 
 
4 
 
 THOMAS KIRWAN, to apply to the Court for a copy 
 of the informations sworn against him. It had been 
 the constant practice, in the case of misdemeanors, 
 to give the Traverser a copy of the informations.— 
 te was aware that the practice was different in cases 
 of felony. But, through all his experience, he had 
 never known it refused in misdemeanor. An appli- 
 cation had been made to the officer, who thought 
 proper to refuse; and therefore an application to the 
 Court became necessary. 
 
 The Court, after conferring, required that some 
 case should be stated, in which such had been grant- 
 ed, which not being done, they declared, that there 
 did not appear to be any distinction, in this respect, 
 between felonies and misdemeanors. ‘The evidence 
 for the prosecution was never disclosed before trial, 
 and they could not make a precedent, by yielding to 
 the application. 
 
 The Grand Jury pannel having been’ called" over, 
 NATHANIEL Hone, Alderman, appeared as fereman; 
 and upon the Deputy Clerk of the Crown a 
 him the book to be sworn, 
 
 Mr. Gootp. My Lords, 1 am counsel foie Mr. 
 THomas Kirwan, and others, who are bound by re- 
 cognizance to attend this Court. © The only docu- 
 ment, with which they have been furnished, is a 
 copy of the warrant, issued against them, from ‘which 
 
 it appeais, that the offence charged is a misdemea- 
 
 nor. I did apply for a copy of the informations 
 upon which the warrant was granted, the Clerk of 
 the Crown having refused it, and hi: before that, 
 > 
 I now desire toknow, whether it is intended to prefer 
 an indictment. against those who have been arrested ? | 
 . The Crown Solicitor answered, that the intention 
 was to proceed by indictment. : bie 
 Mr. GOoLp. Then, my Lords, 1 may now repeat 
 my app: lication on behalf of the Traverser, for a copy 
 of the information against him. 
 Mr. SOLICITOR GENERAL. My Lords, this’ appli- 
 cation comes upon us by surprize. The person for 
 
 “‘T had doh silaten as the i avons ficht . we the subject. 
 
= re 
 
 5 
 
 whom Mr. GooLp appears, is called a T’averser, 
 against whom, no indictment has been yet sent up. 
 
 The Grand Jury will exercise their discretion, whe- 
 ther to find the indictment a true bill upon the in- 
 formations, which will be sent up to them, or upon 
 the examination of witnesses. We cannot say what 
 may be the foundation of their decision. 
 
 Mr. Justice Daty. _ I have enquired of a very 
 experienced officer, and he states, that he has some- 
 times given copies of informations, “in trivial cases, 
 and in other cases, which were of difficulty, he applied 
 to the Judges for their permission, which tends to shew 
 that it is not a matter of right. 
 
 Mr. GooLtp. Uniform practice is the best evi- 
 dence of right, and upon that ground we did make, 
 and repeat the application, for a copy of the infor- 
 mations. Now, my Lords, understanding, that the 
 
 _ erown will procéed by indictment, I think it my duty 
 
 to take exceptions to certain members of the Grand 
 Jury. 
 
 Lord Chief Justice DOWNES. Does the Crown 
 consent ? 
 
 SOLICITOR GENERAL, Certainly not, my Lord, 
 Lord Chief Justice Downgs, Then we may dis- 
 
 pose of the objection. I have never known an-in- 
 J 
 
 stance of it. 
 
 Mr. NortH. My Lord, one objection which we 
 make to the Grand Juror is, that he is returned at. 
 the instance of the Prosecutor, and we cannot state 
 that, as a cause of challenge, until we know whe 
 he is. 
 
 Mr. GooLtp. My Lords, our objection to Alder- 
 man Hone is, an objection to the favour. Our 
 yoaeene is this: ‘And the said Thomas Kirwan, b 
 
 Kildahl, his attorney, comes and says, that Na- 
 tian Hone, returned ypon the pannel, stands not 
 
 indifferent, but is favourable to the prosecutor.”—— 
 
 How can I state that, without knowing who the prose- 
 cutor is? Butthe evidence which I propose to offer 
 is, that he holds an office under the Crown, remove- 
 abie at plezsure, and therefore in a case between the. 
 Crown and tiie Subject, such a person oaght not te 
 be sworn on the Grand Jury. Bac. Abr. 
 
6 
 
 Mr. SoLiciror GENERAL. My Lords, in the ab- 
 sence of the Attorney General, who is indisposed, 
 and there being no notice of such a proceeding, we 
 require the Court to decide upon the propriety of 
 
 suffering this challenge to appear upon the record. ° 
 
 The person, on whose behalf it is made, is not 
 called upon ; when he is called upon, he may make 
 eyery objection, which the Jaw allows him. | 
 
 Mr. Justice Osporne. But if the Court be in- 
 formed in any way of the disqualification of a Grand 
 Juror, is it not their duty to set him aside? 
 
 Mr. Justice Day. It is the right of a person ac- 
 cused to challenge a Grand Juror. 
 
 Mr. Burrowes. My Lords, Iam not counsel for 
 the particular gentleman, whose name bas been men- 
 tioned ; but I am counsel for others who are involved 
 in the same accusation; and therefore I think it ne- 
 cessary to say something upon this objection, as the 
 rule which may be now pronounced, may govern the 
 other cases. My Lords, to deny the right of a sub- 
 ject accused to challenge a Grand Juror, will extend 
 the prerogative of the crown beyond any thing, which 
 has yet been known: as to the period of time, when 
 the challenge ought, according to the forms of pro- 
 ceeding to be made, I submit, that it appears quite 
 decided, and the party may make it when the Grand 
 Jury is called. : | 
 
 Mr. Justice Daty. I.do not apprehend that such 
 a right is decided. | 
 
 Mr.GooLtp. Do the Crown Lawyers say, whether 
 they will demur, or join issue-in fact? ws A! 
 
 Mr. Soticiror GENERAL. My Lords, with great 
 respect, we say, that the Court will not call upon 
 the Crown to join issue, or demur. We submit, 
 that the challenge is inadmissible: it is undoubtedly 
 informal, and must be amended: it states, that the 
 party on whose behalf it is offered, “ comes by his 
 attorney.”—-What right has he to ‘appear by attorney? 
 How does it appear that he is the same man, against 
 whom the informations now laying in the Crown of- 
 fice were sworn? It begins with the copulative 
 « 4nd ”—-with what is it to be connected? | 
 
 ts 
 
7 
 
 Mr. M'Natty. The identity is admitted by the 
 acknowledgement, that he is to be proceeded against 
 by indictment. But I think the previous motion 
 should be, that all the parties should be discharged 
 from their recognizances. . 
 
 Lord Chief Justice Downes. That would be alto- 
 gether premature. 
 
 Mr. Gootp. My Lords, we have amended the 
 challenge :— The said Thomas Kirwan, bound ‘by 
 recognizance to appear on the 6th of November, in 
 his proper person, comes and says, that Nathaniel 
 flone, stands not indifferent, as he stands unsworn, 
 but is favourable to the crown.” 
 
 » Mr. Soticiror Genrrat. My Lords, we ‘submit 
 that the judgment of the Court should be taken, 
 whether the Crown ought to be put to answer this 
 challenge, or whether it should be permitted to re- 
 main upon the record? The nature of the duty of 
 the Grand Jury shews the impropriety of this pro- 
 ceeding. Thiey are to enquire, generally, of offences 
 committed in the county. They are not to decide 
 between particular individuals; it is an cr-parte pro- 
 ceeding, before them the accused is never heard ; 
 _ Hone but the accuser is allowed to appear; and the 
 
 Grand Jury find, whether there be probable cause of 
 
 prosecution. ‘That is decisive to shew, that a person, 
 
 not in custody, is not entitled to object, although he 
 states, that he is bound by recognizance to attend— 
 
 a recognizance, upon which he has not been called, 
 
 and never may be called ; and, because he has a 
 
 contingent right to be prosecuted, has he therefore 
 
 a right to challenge the Grand Jury? If this be a 
 
 ground of objection, it is to be urged asa plea in 
 
 abatement of the indictment, when the party is called 
 to answer the accusation upon record ; and it is con- 
 trary to the practice of ali criminal courts to permit 
 aman, who may, or may not be prosecuted, to 
 
 challenge a Grand Juror. As to the allegation of a 
 
 Grand Juror being favourable or unfavourable, it is 
 
 hot easy to reconcile the passage in //awkins, with 
 
 the veneral practice. Want of freehold in a Grand 
 
 Juroris every day a ground of pleading in abatement, 
 
 t 
 
8 
 
 and then an issue may be knit between the crown and 
 the subject. But shall a man not in custody, or 
 not accused, for aught appears, stand up in court, 
 and challenge a Grand Juror? This challenge be- 
 gins, “ And the said Thomas Kirwan, &c.” who is 
 he? 
 
 Mr. Justice Day. The man whom you have in 
 custody under your warrant. 
 
 Mr. Souiciror GENERAL. He is not in actual 
 custody—his identity might then be admitted; the 
 challenge oifered, states that the party offering it, is 
 bound by recognizance to appear. But how is he 
 known to be the same man?—We do not consent 
 to this challenge being received. 
 
 Mr. Burrowes. |My Lord, the challenge is of- 
 fered at the only time when it could be offered. 
 
 Mr. Justice Day. I think, that every man; apprized 
 of a charge against him, is interested in having a 
 pure Grand Jury to decide upon the accusation, as 
 mucli as a petit jury. aa 
 
 Mr. Burrowes. My Lord, it cannot be denied, 
 for itis an established principle, that no man can be 
 convicted, but upon the concurrence of twe juries, It 
 is not, therefore, a matter of indifference who the 
 Grand Jury are. Weare not put to the necessity of 
 arguing that; but there is some objection made as to 
 the time in which we urge it. | 
 
 My Lords, the counsel for the Crown would deride 
 us, if their politeness did not prevent them, for 
 letting the opportunity slip. Woald it not follow, 
 if their argument be true, that the sheriff might 
 impannel twelve scullions from the Castle, without the 
 possibility of the prisoner objecting to any of them. 
 
 Mr. Sotictror GenerRAL. My Lards, I believe it 
 is not peremptory upon the Court, that the Grand 
 Jury should be sworn this day, and therefore, if your 
 Lordships will adjourn the swearing of them until to- 
 morrow, I will take the opportunity of conferring 
 with the Attorney General. . | 
 
 Lord Cuter Justice. 1 see’no objection. 
 
 ’ 
 
 Tiyaate 
 
 ed ae 
 
9 
 
 Thursday, 7th November, 1811. 
 
 Mr. Gootp. My Lords, I shall now take the li- 
 berty of tendering the challenge, which was_ taken 
 yesterday, to Alderman Nathamel Hone, in a more 
 formal manner, and,;engrossed on parchment: it is 
 as follows : 
 
 « Thomas Kirwan, bound by.his recognizance to 
 « appear on Wednesday the 6th of November, 1811, 
 ** before our Sovereign Lord the King, in his Court of 
 * King’s Bench, at Dublin, to answer such matters 
 “as shall be then and there alleged against him, 
 ** comes in his proper person, and says, that /Va- 
 thaniel Hone, one of the Jurors returned upon the 
 “ pannel of the Grand Inquest of the County of 
 “the City of Dublin for the present Michaeima, 
 “ Term, stands not indifferent, as he stands un- 
 sworn, but is unduly  Soletteocy to our Sovereign 
 “© Lord the King, in this, that at the tins of the ar- 
 “ raying of the pannel aforesaid, the said Nathanie{ 
 
 *¢ Hone held, and ever since hath. held, and stiil doth. . 
 
 s* hold an ofies of great emolument, to wit, the of- 
 “* fice of one of the Divisional Magistrates of Police 
 ‘© in and for the County of the City of Dublin, re- 
 SS moveable at the will and pleasure of our Sovereign 
 © Lord the King, and this he is.ready to verify.” 
 
 Mr. SoLiciron GENERAL. My Lords, We wish to 
 have the judgement of the Court, whether we are 
 called upon to give any answer to this challenge, or 
 whether the Court will not quash it, as a perfectly irre- 
 gular and illegal proceeding. 
 
 My Lords, the impression made upon my mind 
 yesterday, on the first mention of this very novel and 
 extraordinary experiment, has not been since altered 
 by the opportunity which I have had of conferring 
 with the ATTORNEY GENERAL, and of further con- 
 sidering the subject. I apprehend, that in the first 
 instance, I cannot do better, than call upon the gen- 
 tlemen of the other side to produce a single example 
 of a challenge being received toa Grand Juror, upon 
 his coming to the book, I have not seen any autho- 
 
 } ae 
 
iO 
 
 rity to that effect, and I have consulted such books 
 as the shortness of the time would admit. My Lords, 
 
 if there be uniform practice against it, and a total 
 
 want of precedent for such a proceeding, Lam hot 
 only warranted in opposing the experiment, but I 
 should be guilty of a dereliction of my duty, if T 
 did not take the opinion of the Court:upon it. 7 
 
 My Lords, see, what, in point of principle, this 
 challevge is. Itis a challenge, which any man may 
 make at any assizes, who is accused of any crime 
 whatever, even although he be not called up for trial ; 
 although he is not in custody, and although no pro- 
 ceedings have been taken to make him amenable! 
 My Lords, it would go to this, that every prisoner 
 confined in the gaol ‘of a county, and every man 
 bound by a recognizance to attend the assizes, has a 
 Yight to come into Court on the first day ef the as- 
 sizes and object to the swearing of the Grand Jury. 
 There is no instance of such a proceeding known. 
 But, although | confess, that if the practice be sup- 
 ported by authority or by principle, the want of an 
 instance is no objection to the proceeding; yet the 
 uniformity of practice is deserving of much attention. 
 Have your Lordships ever known an mstance, i the 
 course of your experience, of a Grand Jury being 
 sworn in the presence of the prisoners? Has. the 
 sheriff ever been called upon to produce his prisoners 
 before bills of indictment have been found? Has 
 the Clerk of the Crown ever called upon the pri- 
 soners or persons out upon bail to look to their chal- 
 lenges, tor that the Grand Jury were about to be 
 s\ He n? 
 
 My Lords, T have looked through ‘the elementary 
 Hibs which have ‘treated of Juries, and 
 J ®buld find nothing to sanction the objection. 1 
 have looked into Zhe Complete Juryman, which i a 
 hook of some authority upon this subject, and I do 
 not find a trace of such a proceeding. The only 
 book in which any thing Tike an authority is ‘to be 
 found, is that cited yesterday, “Bacon's Abridgmenj 
 in which ‘there is only a vague dictum, and it refers to 
 3 Hawk, Pi. Cor. ch. 25.8. 16. In this chapter, treat 
 
13 
 
 ing upon indictments, is this passage: “ As to the 
 first particular (meaning who may be, and ought to 
 be indictors) it seems ‘lear, that every indictment 
 must be found by twelve men at the least, every 
 one of which ought to be of the same county, and 
 “ yeturned by the sheriff, or other proper officer, | 
 * without the nomination of any other person what- 
 “ soever; and ought also to be a freeman, and a 
 “ lawful liege subject, and consequently neither un- 
 “* der an attainder of any treason or felony, nora vil- 
 lein, nor alien, nor outiawed, whether for a crimi- 
 nal matter, or as some say, in a personal action. 
 And from hence, it seems clear, that if it appear 
 by the caption aad an indictment, or otherwise, that 
 it was found by less than twelve, the proceedings 
 upon it will be erroneous. Also, it seems, that any 
 one, who is under a prosecution for any crime 
 whatsoever, may by the common law, before he is 
 indicted, challenge any of the persons returned on 
 the Grand Jury; as being outlawed for felony, &c. 
 or villeins, or returned at the instance of a prose- 
 cutor or not returned Oy the proper officer, &c. ” This 
 is the only dictum, and vague as itis, the compiler of 
 
 Bacon’ s Abridgment, echoes it, 3 Bac. Abr. tit. Ju- 
 ries, and states, ‘ that the exception-should be taken 
 “ before indictment found.” ‘There is no other au- 
 thority. . 
 
 Mr. M‘Nautiy. There is in 2: fal. P. C. 126, and 
 255. where it is said, that the statute extends to the 
 panne! of the Grand Inquest. This is not an echo 
 from Hawkins, and I can also refer to a more recent 
 case, 
 
 Mr. Soniciror GENERAL. My Lords, it is quite 
 impossible for Mr. M‘NALLy and me to argue this sub- 
 ject at the same time. * 
 
 Mr. M‘Nauiy. I shall not give you any further 
 information upon crown jaw, or interrupt you again 
 until you have finished. 
 
 Mr. Soticiror GENERAL. |My Lords, I was pro- 
 ceeding to state what is to be found in Serjeant Haw- 
 kins’s Pleas of the Crown. I am perfectly aware of 
 the passages alluded to in HALe, which apply to pleas 
 
 ee 
 
12 
 
 eo inet ahd Holts challenge. ‘Seugitan Haw- 
 
 KINS is stating the consequence of a‘defect in a Grand 
 
 Juror appearing on the record. Inthe margin, there 
 are references to authorities, and if he” did not refer 
 to some, it would be his mere dietum.< He bégins 
 the par ragraph by saying, “it seems clear, that if it 
 
 abd appear by the caption ‘of an Sidicthne: or other- 
 
 “¢ wise, that it was round by less than twelve men, the 
 “ proceedings will be erroneous.—Also, it seems 
 “* (varying the phras se from it seems clear) that any 
 “ one who is under prosecution, may by the common 
 “ Jaw before he is indicted, challenge any of the persons 
 ** returned on the Grand Jury, &e.” “In the mar gin, 
 the stat. 11 //en.4, c. 9. is referred to, as is.also a case 
 in’ Cro. Car.134, as-an authority, to prove that a chal- 
 “lenge lies to a’ Grand Juror, as a common Jaw right, 
 ‘before he is sworn. But so far from its being a com- 
 mon law right, the statute recites the disqualifications 
 and enacts that the Indictment found by a Juror so 
 disqualified shall be void, but there is not to be found, 
 in the entire of it, a single word about challenging a 
 Jurce, before he bhe found an indictment. The case 
 referred t6 upon the subject, is Sir Welliam Whithi- 
 pole § case, Cro, Car. 134. and so far from being an 
 authority to shew ‘that a Grand Juror can be chal- 
 lenged ‘when he comes to the ‘book, the case re- 
 ferred to, 1s the case of a Prisoner pleading i in abate- 
 ment, after’ jHaiePhent found. My Lords, the case 
 was’ this —“ Sir MWilham bY oid being zndicted 
 “ before the Coroners for the murder of ° Madyson, 
 “and being arraigned upon that inquest, informed 
 the Court, that he had matter in law to plead to 
 “avoid the indictment.’ ee eeery word shewing, as 
 
 we proceed, that the objection was urged: after he 
 indittment was found and not before the Grand Jury, 
 was sworn. “ Cotigsel being? assioned, por in a plea 
 
 for hiin, that ‘he ollelt not to be impeached upon 
 “this indictment ; for “he shiewed' in his pled the sta- 
 “tute of It Hen! 4. ¢.°9,—* That none shall be put 
 ’ upon any pannel of inquest at the denomination of 
 any Fhekaelat unless by the bailiffs and ministers of 
 ‘(the sheriffs sworn and known; and that the said 
 
15 
 
 © Jurors should be prodi & legates honunes, and fur- 
 “ ther pleads that the foreman nominated himself to 
 “ be of the Jury, and that two of the Jurors were 
 ‘¢ OUTLAWED, and for this plea pleaded, the Court 
 would advise, whether it should be accepted? and 
 what should be done thereupon, either démur or 
 “ join issue? The first question was whether the 
 “ 11 Hen. 4. c. 9. extends to inquests before Coro- 
 “ ners, or only to indictments before Justices of the 
 “ peace, and of oyer arfd terminer.” 
 
 Mr. Justice Daty. The question there was, whe» 
 ther the statute applied to a Coroner’s Jury, but no 
 doubt was entertained, that it was applicable to other 
 Grand Juries. 
 
 Mr. Souiciror GENERAL. The determination of 
 the Judges in the case cited, was that “ the statute 
 “11 Hen. 4. ¢. 9, extends to all inquests before the 
 “ Coroners,” as gill as to other indictments, mani- 
 festly shewing that the objection cannot be made 
 before, and I am warranted by this examination of 
 those authorities to observe, that Mr. Serjeant Haw- 
 kins’s book is more respectable, where he states legal 
 principles, supported by adjudications, than where he 
 indulges in conjectures, and qualifies his positions by 
 saying that “ it seems,’ and some other authorities 
 which are given in the margin, upon this passage, 
 furnish proof of the truth of this remark. The year 
 book, 21 Hen. 6. c. 30, is cited; and upon looking 
 into it, your Lordships will find that the case reported 
 was an-action of debt in which a question was made 
 as to the return, by the sheriffs, of a Jury, and in the 
 course of the argument a dictum is uttered,’ that a 
 Juror shall hat ba an outlaw. I have otad into 
 Bro, tit. Cor. and Indictment also stated in the margin, 
 and have found nothing in either upon the subjectyso 
 that it rests upon the position in Hawkins, which is not 
 made better by being repeated in Bacon's Abridgment. 
 
 It is a mistake to suppose that the doctrine for 
 which I contend would deprive an accused man ot 
 the right to object to the Grand Jury who finds bills 
 against him. Such a rights unquestionable. I only 
 object to the manner of exercising it, and say that it 
 
14, | 
 
 cannot be by challenge—that is the proper mode of 
 objection to a Petit Juror, but the objection to a 
 Grand Juror must be by plea in abatement, The 
 very case of Sir Welham Whithipole referred to by 
 Hawkins, demonstrated that—his plea of abatement 
 could not have been entertained if he had had a right 
 to challenge, for to such a plea it is always an answer, 
 that the Pleader comes too late, if he has not availed 
 himself of the objectiom at the earliest moment. 
 
 My Lords, I have so far considered the authority of 
 the dictum in Hawkins: But, independent of this, 
 the angumentum ab inconvenienti is very serious. 
 
 Your Lordships are not much troubled with indicts 
 ments found by Grand Juries in term time; but in 
 the different circuits, there is much criminal business, 
 and I cannot conceive, that there could be a more 
 complete obstruction to public justice than what must 
 arise, if every accused person, from the crime of 
 high treason down to petty larceny should have a 
 right to challengeia Grand Juror, about to be sworn, 
 not upon his own case only, but upon the case of 
 every man to be accused at the same assizes, of any 
 crime committed previously. At the time that the 
 Grand Jury is swearing, it is not clear, that the in- 
 formations, which are sworn against any particular 
 man will be proceeded on. What the Court may do 
 with them—whether they will be sent to the Sessions, 
 or whether the person charged will be called upon at 
 all. , 
 
 When the Grand Jury is about to be sworn, it is 
 not Known what will be given them to enquire into, 
 or who will be brought before them. Some persons 
 are in custody, othe.s are out upon bail, others have 
 not as yet been accused at all, and their accuser may 
 for the first time appear in the Crown Office or be- 
 fore the Grand Jury, after the Grand Jury shall have 
 been sworn. Is it contended that every prisoner and 
 every man bound by recognizance has the privilege 
 of objecting to a Grand Juror, who may never have 
 his case brought before them, and if this be the con- 
 stitutional privilege of men so circumstanced, what 
 ‘will be said of that third class who are accused for 
 
15 
 
 the first time after the Grand Jury shall have been 
 sworn, shall they be deprived of this alieged right 
 at the option of their prosecutors, and shail the post- 
 ponement of the accusation send the accused to trial, 
 ‘dbereft of an advantage which is said to be important, 
 and of a challenge which is said to be indispensible 
 to a fair trial? 
 
 It is a mistake of the nature of a challenge, to sup- 
 pose that it lies to a Grand Juror. A challenge is an 
 objection by a man about to be tried, to the man wha 
 is about to try him, but the Grand Jury are not to 
 try any man; they are not brought into contact with 
 any accused person... Their oath merely binds them 
 to enquire into the offences brought before them, and 
 pronounce, whether there be sufficient reason for 
 putting those offences into a state for further investi- 
 gation. Until their bill be found, no man can tell 
 who they are; when he, against whom they find a bill, 
 sees their names in the caption of the indictment; 
 If he discovers a legal objection to any of them, he 
 may by plea urge that objection, as a reason for not | 
 answering to that indictment, but the notion of a pre- 
 vious challenge would not only be against principle, 
 but induce absurdities and injustice in practice. 
 
 Suppose the case of a man arrested after the Grand 
 Jury is sworn, for a crime committed before they were 
 sworn, and who before was not amenable; nay, sup- 
 pose the case of a man indicted by a Grand Jury 
 without any previous intimation of his being accused. 
 What opportunity could he have to propound a chal- 
 lenge? If he has a right to such a challenge, he. 
 ought not to be tried without an opportunity of exer- 
 cising it. Your Lordships would not try a man with- 
 out enabling him to challenge the Petit Jury, and if. 
 he has a right to challenge a : Grand Jury, you would — 
 not deprive him of that “right, and yet in the two 
 cases which I have supposed, it is impossible that he 
 could avail himself of it. 
 
 Mr. Justice Day. It often happens, that a man is 
 tried at an assizes for an offence committed after the 
 assizes commenced. : 
 
 Mr Soriciror GENERAL. Undoubtedly, the prac- 
 
16, 
 
 tice is so, and instances are not uncommon in cases of 
 perjury committed during an assize. The bill of in- 
 dictment, in such a ease, is found by a Grand Jury, 
 sworn before the crime was committed. But I appre- 
 hend, that it 1s a practice liable to objection, for the 
 Grand Jury is sworn to enquire into offences com- 
 mitted, that is, theretofore committed, and the proper 
 course is, in the case of a crimé committed after the 
 Grand Jury has’ been ‘sworn, to swear a new Grand 
 Jury to enquire of the subsequent case. But with 
 respect to the practice contended for, it would extend 
 to this, that no man could be tried at an assizes, who 
 was not in custody or bound by recognizance at the 
 time when the Grand Jury was sworn. 
 
 Mr. Justice Day. That would be to allow him to 
 take advantage of his own default. 
 
 Mr. Souiciror GENERAL. My Lord, sith great 
 respect, that does not necessarily follow : Suppose 
 an information sworn against a man for a capital crime, 
 that the accused person knows nothing of the charge; 
 suppose that the magistrate does not grant a warrant, 
 or having granted it, that it cannot be executed at the 
 time, or is not executed from the supineness of the 
 constable; yet the Grand Jury may be, and is sworn; 
 the prosecutor is examined before them, and the bill. 
 of indictment is found. The accused, in such a case, 
 is in no default; and yet, if he be brought in after- 
 wards by a Bench warrant issued upon the indict- 
 ment found, and either at the same or subsequent 
 assizes be tried, convicted and executed, his execu- 
 tion would be a marder, upon the argument which is 
 contended for, because he would be tried without the 
 benefit of a Jegal challege. How can a Judge, go- 
 Log circuit, excuse himself for not calling upon the 
 prisoner to look to their challenges, when the Grand. 
 Jury were to be sworn. Has an instance been known 
 in the recollection of any man who hears me of such 
 a practice? I have had some experience myself, and 
 I have never known it; but I appeal to the experi- 
 ence of your Lordships, which has’ been much more 
 considerable; do you remember an instance, in which — 
 
17 
 
 the sheriff has been called upon to produce his goal 
 defore the Grand Jury was sworn? 
 
 | Have you ever known that persons out upon recog- 
 mizances of bail were called to appear before the 
 Grand Jury were sworn, and to look to their chal- 
 lenges? Andif all such persons had a right to chal- 
 lenge a Grand Juror, how cam these omissions be ex- 
 cused? or what can justify the practice of granting 
 Bench warrants upon indictments found against ner- 
 sous who never had the opportunity of challenging 
 the Grand Jury? 
 
 But, my Lords, exclusive of the ground upon 
 which I have been arguing hitherto, you will be pleas- 
 ed to observe, that this is a chailenge to the favour. 
 
 My Lords, I do not anticipate the argument which 
 may-arise in case of a demurrer to a plea of such a 
 matter; but I resist the reception of sucha challenge 
 upon the grounds of decency and of example. Your 
 Lordships, i in this instance, will establish a precedent, 
 if you admit the challenge, that where the King and 
 the King only, in his public character, appears as a 
 prosecutor, for the benefit of public justice, he shall 
 be put to answer, whether a Grand Juror stands in a 
 favourable relation to him or not. Upon constitu- 
 tional doctrine, it is very alarming and novel, to say, 
 that any ,man indicted, or who apprehends an indict- 
 ment, may, guia comet, allege, that a particular Grand 
 Jaror is in a favourable. and corrupt relation to the 
 Crown! (It is against all precedent and principle. 
 The King is not known to the Country and the Con- 
 stitution as an interested man, or a man capable of 
 being so. What is the meaning of favour in such an 
 objection? Is it not the partiality which arises from 
 friendship, from affinity, from connection, from cor- 
 ruption? and should 1 not abandon and abdicate the 
 character of the King, if I admitted, that it should 
 be argued in a court of justice, where the name of 
 the first magistrate of this free constitution is used for 
 the attainment of justice; that he is to answer, whe- 
 ther he stands in a favourable or corrupt relation with 
 any person whatsoever? My Lords, there is a broad 
 distinction between the crown and a subject upon thig 
 
 c 
 
18 
 point, and it is a’ perfely u mistake to apply the chak' 
 
 lenge of favour, to the King as ‘a personal prosecu- 
 tor: no individual interest éf his is concersied, and 
 there is a constitutional indecorum in calling upon the: 
 King to answer, whether ‘he stands in‘a ‘corrupt rela- 
 tion to a Juror, when he is not personally concerned. 
 
 My Lords, it is the opinion of a man of ‘high autho- 
 rity, much more than Mr. Serjeant HAWKINS, or the: 
 compiler of Bacon's Abridement, that a challenge for 
 favour ‘does not apply to the crown.’ Co. Lat. 156. 
 No challenge for favour lies in the case of the King. 
 
 My Lords, I might refer you to a case, ‘whieh if 
 there were nothing more ‘to ‘support it, than the 
 judge who presided, I would not consider as: high 
 constitutional authority. I would tot mention the 
 name of Ch. J. Jefferies, ‘aniess he ‘were supported 
 by ‘the authority of the greatest constitutional lawyer, 
 that ever satin a'court of justice: I mean my Lord 
 HO xt, assisted by Tresy and Roxesy, men of high 
 character. J shall ‘not ‘mention the case before Jef- 
 Jeries, in the reign of Char. 2d. The case before. 
 them was in the reien of William 3d. atime in which, 
 constitutional jealousy was peculiarly alive, aud when - 
 the principles of civil liberty ‘were ‘firml y established, 
 and strenuously supported. 
 
 ‘Lord HOut’s character does not however, depend 
 upon the times in which he lived; ‘there was‘no pe~ — 
 riod, however corrupt or degenerate, an which-a ‘con- 
 stitutional opinion ‘might not be ‘expected from Lord 
 Ho.it—the opinion ‘I refer'to, is strong and em- 
 phatic—not volunteered by him. upon an unnecessary 
 occasion, ‘but when ‘lie was anxious to Jet the public 
 know, what the law ‘was,’ and announced from the 
 Beticls, upoh a @reat and important occasion, The 
 case ‘is in ‘4 St. Tr. 631, Sir'WM. PERKINS’s ‘Case, 
 and it applies the stronger, as being the case, not of 
 a grand, but of a petit jury. In “that case, a jury 
 was called, ‘to decide upon ‘the ‘life and inheritable 
 blood of aman of rank and fortune. A challenge 
 was taken, because one of the jurors'was the King’s 
 servant—a challenge ‘to the favour The Attorney 
 General did not think proper to struggle the ‘point, 
 
19 
 but desired, that the jung mighe stand. by, ink 
 that ahnities might be called, which shews that the 
 trial was conducted with constitutional temper, and 
 was not to be compared to the arbitrary proceedings 
 of former times. But after a second challenge was 
 taken for the same cause, Lord Hour said to the 
 prisoner, *¢ The reason of these challenges is, be- 
 “ cause these jurors are the King’s servants 
 “ am to acquaint you, that it is no cause of chal- 
 “lenge. But the King’s counsel do not resist it, 
 “ if there are enough beside, and I speak this, that 
 “ [ would not have it go asa precedent, that the cause 
 “ you assign is a cood cause.” 
 
 Such, my Lords, is the broad etn fe assioned 
 by high authority, in a case that called directly for 
 an opinion from the bench, expressed in the indig- 
 nant language of a great constitutional judge, whose 
 feelings were beticod at the notion, that che king, in 
 his public character of ‘public accuser, lending’ his 
 name for public purposes, should be: made subject 
 to the imputation of favour. 
 
 My Lords, I infer from that authority, that if the 
 Attorney General had not yielded to the objection 
 which was made a cause of challenge in a case of high 
 treason—that if he had taken another course, Lord 
 Hor would not have called upon the counsel for 
 the Crown to demur, and that he would not allow 
 a matter to be put upon the record, which militated 
 against the principles of the constitution. 
 
 My Lords, no man is at liberty to say, what the 
 present case may turn out tobe. Public rumour is 
 not to be acted upon; and the counsel on the other 
 side must argue, that if their client be apprehenswe of 
 an Ladiciene for the minutest trespass, a pick- pocket 
 he is at liberty to say, that the first magistrate in the 
 state shall be called upon to answer the imputation of 
 corruption. It seems to be a proceeding which vio- 
 lates every principle of law, sense and constitution. 
 The King, as prosecutor, represents public justice, 
 and the commonwealth and the peace of his realm 
 is called the King’s peace. ‘To say that a juror 
 stads in favcur to him, is to say that he stands in 
 
 I ; 
 
20 
 
 favour to the commonwealth and to the public 
 peace, it imputes to his political capacity what can 
 
 only be true of an individual character, and is as 
 absurd ag it is unconstitutional. 
 
 I sha!l giye your Lordships no further trouble. What 
 we argue on the partof the Crown is reducible to two 
 propositions ;—tirst, that no challenge lies to’ any 
 Grand Juror ; but that the proper mode of objecting 
 to him is by plea in abatement of the indictment 
 which he has found. The next proposition is, that 
 even if a challenge does lie toa Grand Juror, no chal- 
 lenge for favour to the king lies even to a petit Juror, | 
 ands a mulio foritor?, it dies not lie toa Grand Juror.” 
 Upon those crounds, we hope, that your Lordships 
 
 wiil quash this challenge, and not call upon the Crown 
 to take issue, or demur to it. 
 
 Mr. Burrowes. My Lords, I am of counsel for the 
 person tendering the challenge, and in coming to the ~ 
 Court this day, I didi imagine that the case had stood 
 over, in order that the counsel for the Crown might 
 exercise their discretion, whether they would demur, © 
 or plead. 
 
 Mr. Sopicitor-GeneraL. My Lords, I hope it is 
 in your recollection, that J submitted to the judgement 
 of the Court, whether the Crown should be put to: 
 answer the challenge, and that I suggested the ad- 
 journment, for the purpose of conferring with the 
 “ATTOR NEY- GENERAL upon the subject. | 
 
 Mr. ‘Burrowes. My Lords, I am not saying that 
 the counsel for the Crown intended to act differently 
 from what they haye done. I am merely stating my 
 own impression | of the matters, and expecting to have 
 an issue in fact to be tried; ora demurrer to be ar- 
 gued, My Lords, I am now called upon to argue,---I 
 know not, whether one op two questions ; whether the 
 challenge should be quashed, without suffering it to go 
 upon the record; or whether it be a good challénge. 
 
 These questions are as distinct. as can be imagined 5 
 he it is the usual course to argue matters Of Link, 
 question after question, where the Court feels any 
 difficulty ; not to argue accidentally, whether there be 
 
 “aiff onlty, or not, | “My Lords; if there bea doubt, 
 
21 
 
 whether the challenge should be received, Iam ready 
 to contend, that er “debito justilie, it ought to be re- 
 ceived. But I really feel some difficulty i in arguing 
 that. question, and keeping clear of the. merits of the 
 challenge. I will, however, endeavour to distinguish 
 betwee them: and only thans iently touch upon the 
 merits, or demerits of tie challenge. 
 
 Mr. Justice Osporne. It was put distinctly by the 
 SOLICITOR-GENERAL, that in vo case does a challenge 
 hie toa Grand Juror. . 
 
 Mr. Burrowes. My Lords, so I understand, and | 
 
 it is insisted upon as a corollary, that the challenge 
 must be quashed and the Crown not put to answer it. 
 My Lords, I will advert, but little, if at all, to the 
 merits of the challenge. My very lJearned and elo- 
 quent friend the SoLtciIroR-GENERAL, who is so 
 anxious to vindicate the criminal law of the land, 
 seems to forget the importance of Grand Jurors. This 
 is the first time in my life, in which I have heard it 
 argued, that a Grand Juror is no essential part of the 
 Jaw in bringing a man to trial. My Lords, I have 
 always understood and have known it repeatedly men- 
 
 tioned, that no man can be legally tried, except in > 
 
 cases of information, unless two verdicts have passed 
 ‘upon him; one by the Grand Jury, twelve of whom 
 found the bill of indictment; and second, the Petit 
 Jury, all of whom must concur in the verdict. There- 
 fore, my Lords, the main pillar of the argument, 
 founded upon the nature of the challenge -is not only 
 removed, as a difficulty, but it turns round, and be- 
 comes an invincible auxiliary to those iho contend 
 for the contrary doctrine. My Lords, it is not only 
 not immaterial by whom a bill of indictment is found, 
 or how it is found ; but a legal Grand Jury has always 
 
 been considered as a necessary ingredient in a crimi- ~~ 
 
 nal proceeding; and the constitution requires, that a 
 
 double verdict should pronounce a sentence of guilt: 
 
 upon the accused ;—one deciding, that the charge 
 should be examined, and the other determining finally 
 
 upon its merits. This is the great boast of the con- 
 
 stitution—without a Grand Jury our liberties may be 
 endangered; both juries are necessaty and equally 
 
 VA 
 
22 
 
 open to objection in the formation. But, my Lords, 
 this is the first day in which I have heard it mentioned, 
 that an accused man feels an interest in the integrity 
 of one, and a perfect indifference in the character of 
 the other. My Lords, is the swearing of a Grand 
 Jury a mere formal ceremony in which a prisoner has 
 no rights, or interests? Hf he has not, what is the 
 meaning of the common law in requiring, that they 
 should be freeholders—that they should be probit & 
 fegales homines omni exceptione majores, to whom the 
 property, liberty, and life of the subject are confided ? 
 Therefore, my Lords, it really appears to me, that 
 instead of saying, that the constitutional doctrine of 
 Hawkins and Hate and Bacon is no authority--- 
 instead of saying, that their positions are novel, it is 
 more novel to deny the right of the prisoner to im- 
 vestigate the qualifications of a Juror when bringing 
 the accused to trial, which I have heard, for the first 
 time, this day. ' My Lords, there is not, in the whole 
 system of our law, any subject in which constitutional 
 jealousy is so prevalent, as in guarding the purity of 
 jories. The subject is cautiously furnished with two 
 elasses of objections for the protection of his liberty--- 
 ene arising from the character of the person so ar- 
 
 yaying the Jury, and the other from the character of — 
 
 the individuals impannelled; and this is the first time 
 in which I have beard that those objections were con- 
 fined to the Petit Jury. I say, that'they apply equally 
 to the Grand, as to the Petit Jury---the same prin- 
 ciple pervades the whole system,---the objections are 
 equally applicable to both---the qualifications extend 
 to both---they were intended to secure the independ- 
 ence of both; and it might as well be contended, that 
 they do not apply to a special Jury, because they are 
 applicable to all juries. My Lords, I said, that the 
 law provides two modes for the purity of juries ;---the 
 first gives the prisoner the advantage of attacking the 
 the whole array, flawing from the character of the 
 person making the return; that where such a person 
 stands in a character from whence partiality, or non- 
 indifference (in the ancient language of the law) may 
 be fairly inferred, there results necessarily a principal 
 
23 
 
 challenge to the array; and there it is the duty of the 
 Court to decide upon. the objection and quash the 
 array, without resorting to triers ferther than to find 
 the fact: the implied unfitness of the officer vitiates 
 all the polls, and the effect is the same, as if every 
 one of ‘the array lay under the same taint. The pos- 
 sibility of ‘the sheriff lying under an imputation frem 
 whence such an inference arises, 1s not only obvious, 
 butis recognized in 7rials per pats, Hawkins & Co. Lit. 
 The grounds of challenge are almost undefined :--- 
 every thing which may be referred to triers to satisfy 
 their consciences, that there is partiality inthe person 
 returning the Jury---it is empliatically a ‘case for the 
 triers ‘to ‘ascertain the fact, whether it created partiality, 
 or not ;'and in addition to this, there are cases of chal- 
 lenge to the individuals, and the party, who might affect 
 thie « entire array by an imputation upon the “mode of 
 attaying the Jury, may waive that, and attack each 
 individual, by an ‘objection, which goes to set him 
 aside ; andl every objection which would go to taint 
 the pannel, if appheable to the oficer, will set aside 
 the poll, if it-can reach the individual ; and a man is 
 not legally tried, who has not the benefit of trial by 
 sucha Jury, as the law ‘takes’ the precaution he-shalt 
 dvave, and ‘he has ‘not that Jury, unless he has the be- 
 nefit of these legal objections as they may arise. 
 
 ‘But, my Lords, what is there in a criminal proceeding 
 to distingaish the rights of the subject, in respect of 
 challenge to juries, “from his rights in civil actions? 
 Can it be the ‘magnitude of ‘we? case, or the delicacy 
 of the subject ? Is the: protection to be found in cases 
 of ‘a peculiar description? No. ‘But it is said, that it 
 arises from the character of the prosecutor, whose 
 ‘great and impeccable nature is such, that it would be 
 violated, if “le were supposed to be corrupt or partial. 
 My Lords, is not this begging ‘the question? Does 
 ‘not ‘the counsel require a concession to which he is 
 not entitled, in order to deprive the subject of a pri- 
 ‘vilege to which he ‘is entitled ? 
 
 But, my Lords, itis said to be disrespectful and un- 
 Agsonstivational to insinuate, that the King, prosecuting 
 in his public character, could stand ina partial relation 
 
24 
 
 with a Grand Juror. What! shall. sycophants be 
 raised to. such Siiuations, and no objection made to 
 them, without its being supposed, that it reflected 
 ‘upon the Sovereign, who lives in ignorance of the 
 entire transaction, whose name is assumed as a shield 
 of protection and, whose feelings would revolt, if he 
 were informed that such< proceedings were resorted to 
 for the, purpose. of depriving his subjects of their 
 rights? . The observation was unfair, and there is no 
 reason, 1n principle, for sayiag, that buchia challenge 
 is allowable in a-ctvil case, but not ina criminal case. 
 _ My Lords, why should not the objection apply to every 
 nian who is impannelled by the authority of the she- 
 riff, if it be founded in fact? But my learned friend 
 Hae als \beniin pais in supposing this to be the case 
 of a petty offender---a pick-pocket ! Ido not wish to 
 advert to cases. which might be noticed; but is it fair, 
 because there are cases of mean, low, and pitiful of- 
 fences, that they should be held out to the Court as 
 an arguinent not to decide the general question. It 
 is enough to rouse the constitutional feelings of the 
 Court, that such an attempt should be made, | by in- 
 troducing such petty offenders to induce a decision 
 against a privilege of the highest vaine. The doctrine 
 of my learned friend, respecting pick-pockets, must 
 extend,to.men of the highest dignity. Hi Yearys 
 My Lords, no authority has been resorted to. Li the 
 other side: there has been much preliminary discus- 
 sion, and arguments ab inconvenienti’ have been urged. 
 It.has,been “contended, that this right should not be 
 indulged, and your Lordships are asked, whether it is 
 to. be. bohewacer: that every man, at an assizes or com- 
 mission of gaol watihaes may come forward to chal- 
 lenge a Grand Juror, who is to be sworn to present 
 all offences ? My Lords, if we can suppose any thing 
 so chimerical, as a conspiracy among all the persons 
 accused at an assizes to make sham _ points, for the 
 purpose of consuming time, it would be a great griey- 
 ance. But yet it is such as must be submitted to. It is 
 admitted to be a legal privilege, and if inconvenience - 
 _ result from the exercise of such a right, it is an alloy 
 attending a sterling good; if it shall be pushed to ap 
 
 ’ a 
 
25 
 
 excess, such as has been described (but of which ex- 
 perience has furnished no example) a bill should be 
 brought into parliament to take these privileges away, 
 and thereby remove-all inconveniencies whatsoever. 
 But, my Lords, I do not see how these conse- 
 quences can arise :—Is it not extravagant to imagine, 
 that every man, to be tried at a commission of over 
 and terminer, should stand up in court and say, be~ 
 cause he apprehends that an indictment will be pre- 
 ferred against him, therefore he will object to the 
 Grand Jury? 1 do not say, that every man in such a 
 situation would be received: Those not in custody, or 
 
 not bound by recognizance to attend, mav not be re-. 
 
 garded. But aman in custody, or bound by recog- 
 nizance to appear, is impleaded as it were by the 
 Crown; the swearing of the Grand Jury is not a mat. 
 ter of indifference to him; and being entitled to ob. 
 ject, I ask your Lordships, whether it is not more likely 
 to procrastinate and impede the progress of public jus- 
 tice to lie by, and after a lapse time, take advantage 
 of an objection, than to urge it zn dimane, and have 
 the opinion of the court upon it, in the first instance ? 
 Hf all the accused perons should concur in making legal 
 objections, there must be some substantial reasons for 
 their doing so, and will it not expedite the course of 
 proceedings to state them in the outset, rather than re- 
 serve them for a later period, when, if they proved 
 
 successful, they would render a second commence- , 
 
 ment of all such proceedings necessary! Therefore, I 
 conceive, that, if your Lordships were now legislating 
 upon the subject, it would be more expedient to have a 
 challenge to a Grand Juror received deforé he is sworn, 
 than after; and when the party is put to plead to the 
 indictment, which must fall, if the plea be allowed. 
 My Lords, it is every where laid down, that you 
 must challenge the polls, before they are sworn, and 
 not after. My learned and eloquent friend was not 
 ignorant of this; neither was he unapprized of the in- 
 ference to be derived from it: And, therefore, he con- 
 tended, that no challenge lies to a Grand Juror at all, 
 but if the accused-has an objection, be must plead it 
 ‘in abatement of the indictment; and it is asked, if 
 there be a right to challenge when the Grand Juror 
 comes to be sworn, how account for the hardships im- 
 y : 
 
26 
 
 posed upon persons accused, who are not present in 
 court, when the Grand Jury is sworn, and know no- 
 thing of their being sworn? My Lords, I answer, 
 that if such persons do not attend, they waive their 
 right.. The maxim is, ** Vigilantibus & non dormi- 
 entibus servit lex; and is it not a strange argument, 
 that because the necessary modes of proceeding ren- 
 der it difficult to know, how, in some instances, par- 
 ties can challenge Grand Juries, therefore they shall 
 be deprived of it in every instance? Is it not strange 
 to say, that because there cannot be unlimited pro- 
 * tection there shall be no protection at all? Mr. Sott- 
 ciTtor GENERAL foresaw the justice of the criterion, 
 to which I put it, because he avowed a doctrine, 
 from which it would follow, that if twenty-three scul- 
 lions from the king’s kitchen were arranged upon the 
 Jury, no man would have a right to challenge them, 
 and he, with triumph avowed a proposition which — 
 calls upon the court to. reject the present challenge. 
 My Lords, I more than countervail it, by stating the 
 monstrous consequences that would follow, that any 
 _ twenty-three men may be put upon the Grand Jur 
 without a right on the part of the accused to chal- 
 lenge one of them! My Lords, in Trials per Pats, 196, 
 it is laid down, that a subject may challenge the polls,” 
 in a case where the King is a party. 
 Lord Chief Justice Downes. That is done every 
 day in cases of petit jury. : 
 Mr. Burrowes. My Lords, I see no distinction be- 
 tween them, except in degree; the Grand Jury are of 
 an higher order, but they equally pass upon the life and 
 liberty of the subject. All who are instrumental in | 
 trying him should be omn? erceptione majores. Ifa 
 man cannot be hanged without the verdict of a petit 
 jury against him, he cannot go_ before that petit jury 
 without an indictment found by the Grand Jury, and 
 therefore all the men concerned, whether at the head 
 or tail of the proceeding, should be omni exceptione 
 majores. My Lords, we rely upon the authority of 
 Hawkins and Bacon, and I do not find, that any thing 
 has been urged on the other side, but a dictum of Hout, 
 and that with reference to a particular mode of chal- 
 Jenge, which does not apply to the present case. 
 ‘The Soticiror GENERAL argued, that all objec- 
 
tions to Grand Jurors originated in the statute 11 /fen. 
 4.0.9. | 
 
 Mr. Justice Daty. In 3 Znst. Lord Coke says that this 
 statute was in a great measure declaratory of the law. 
 
 Mr. Burrowes. But, my Lords, it was argued, 
 as if the statute created the objection. . 
 
 Lord Chief Justice Downes. If we put the two - 
 sections of Hawkins together, there is something very 
 difficult to be reconciled and- looks as if ne bimself 
 were doubtful upon the subject. In the 16th section, 
 he says, ‘* Also it seems, that any one who is under 
 *¢ prosecution for any crime whatsoever, may, by the 
 *¢ common Jaw, before he is indicted, challenge any 
 *¢ of the persons returned on the Grand Jury.” The 
 authority referred toby him is the Year Book, 11 H. 4. 
 c. 41. where it was after indictment found and a plea 
 . filed. Afterwards in the 18th section, he says, ‘* It is 
 
 * resolved in the Year Book of 11 Hen. 4. by the ad- — 
 ‘¢ vice of all the Justices, that one outlawed on an in- 
 *¢ dictment of felony, may plead in avoidance of it, 
 ‘ that one of the. indictors was outlawed for felony, 
 “* &c.” Now, if a party can take an objection ina 
 subsequent stage of a cause, can he also take it at a 
 prior one? and is there not much force in the reason- 
 ing, that where the objection is good by plea to the 
 indictment when found, he cannot avail himself of it 
 in this stage? Hawkins goes on, ‘* But it seems to be 
 ‘¢ the general opinion, that this resolution 1s rather 
 “* grounded on the statute of 11 Hen. 4. c 9. which 
 *¢ was made in the same term in which this resolution 
 ** was given, than on the common law; because it ap- 
 ‘© pears by the very same Year Book, that when this 
 *¢ plea was first proposed, it was disallowed, irom 
 ‘¢ whence, as Z suppose, it is collected, that the sub- 
 ‘¢ sequent resolution was founded on the authority of 
 “¢ the said statute, which may be intended to have been 
 << made after the.plea was disallowed, and before the 
 *¢ subsequent resolution by which it was adjudged good. 
 ® Yet considering, that the said resolution was given 
 “ in the beginning of “dary term, and that the par. 
 *¢ Jiament which made the said statute was not hoiden 
 ‘¢ before the beginning of the same term, and there. 
 *¢ fore, it is mot likely, that the said statute was so 
 ** soon made ; and also considering that the said re- 
 
28 
 
 ‘* solution was given by the advice of all the Judges, 
 ‘¢ who seem to have been consulted about the validity 
 ** of the plea abovementioned at the common law, and 
 
 ** takes no manner of notice of any statute, but only 
 66 : 
 
 *¢ whether such plea be not good at the common Jaw.” 
 
 Now, if this be a good plea at common law, does not 
 that furnish an argument as to the period of time, 
 when the objection is to be taken, that is after the in- 
 dictment, and by pleading in avoidance of it? — 
 
 Mr: Burrowes. My Lord, it occurs to me, that 
 the statute itself strongly tends to réconctle a challenge 
 with a plea; it recites, that inquests were taken of 
 persons named to the justices, without due return of the 
 sheriff, and enacts that inquests sali be composed of 
 the King’s lawful liege people ; if they be otherwise, 
 an indictment found by them may be avoided ; but'that 
 is a distinct and different mode of relief from that to 
 which he was before entitled. 
 
 Lord Chief Justice Downes. Suppose the statute to 
 have given a new right of objection, would it not have 
 taken up the original mode and_ said, the party may 
 challenge such a Juror? But the construction bas been 
 uniform from the moment of its passing, tbat it adopted 
 a pre-existing mode, which was by plea. } 
 
 Mr. Burrowes. My Lord, J do not apprehend that 
 to beso. A man may challenge the entire array for a 
 taint of which all participate and therefore ail must fall. 
 But if it affect only one, the objection must be con- 
 fined to that individuai, and does not vitiate the entire 
 array. And therefore, the only question is, whether at 
 common law, the party has not a right to set aside one 
 man, not thereby affecting the pannel otherwise, than 
 by reducing the number so much. The statute recites 
 a practice which bad prevailed of returning outlaws and 
 others, whose qualifications were not known, and en- 
 acts that indictments found by such may be avoided ; 
 that can be done only by plea, which will have the 
 effect of a challenge to the whale array, The statute 
 is confined to the case of an indictment found, and 
 therefore the remedy given to avoid it, may stand per- 
 fectly distinguishable from a right existing, which is 
 vot taken away by a remedial, beneficial law, extend- 
 ing provisions, but not abridging any. | ; : 
 
 of the law in general, it may deserve a question, 
 
29 
 
 Therefore, my Lords, we say, that so far as respects. 
 the right of objecting to the polls, there is no distinc- 
 tion between a grand and petit jury, and every reason 
 and principle even of convenience applies in support 
 of the mode, which meets the prosecution 2 lemine. 
 It will not be contended, that a Grand Jury is a mere 
 matter of form and ceremony, in which the subject has 
 no concern, though tending to affect his life And 
 therefore, my Lords, with great respect, we rely, that 
 this is a case in which ex debito justitie the party has a 
 right to challenge a man who is about to be sworn to 
 present, whether a charge preferred be true or false ; 
 that the objection ought not to be extinguished zm li- 
 mine, without the possib' dity of having a more solemn 
 decision, and that the counsel for the Crown have not 
 succeeded in distinguishing between a Grand and 
 Petit Jury; they were bound to establish, that no man 
 can arrest the progress of a Grand Juror to that station, 
 which may enable him to ees a fatal decision 
 upon him. 
 
 The Sorrcrror GENERAL entered into the particulars 
 and form of the challenge. I had no wish to embarrass 
 the case with niceties and verbal distinctions. There 
 are many objections to Grand Jurors, which are not 
 _Tecited in the statute, and I hope it is not considered as 
 a matter of indiflerence who are impannelled. My 
 Lords, if Iam to argue this case, as if it were upon a 
 demurrer, I will say a few words upon it. 
 
 Mr. Justice Day. ‘The case has not come to that 
 Pete } 
 Mr. Mac Natiy. May it please your Lordships, I 
 will take the hberty to cite a éase, which 1 believe will 
 not appear less interesting, or Jess conclusive than any 
 of those to which the attention of the court has been 
 already called. The case is recent ; it occurred on the. 
 arraignment of the Aing against the unfortunate bro- 
 thers, Z/enry and John Shear s. On that trial, my Lord 
 CaRLETON, then Chief Justice of the Common Pleas of 
 Ireland, assisted by CrooksHanx justice, GeorcE 
 Baron, and one of the judges now sitting on the bench, 
 delivered their opinion on the very point before the 
 court. Lord Hott’s name has been mentioned, but 
 neither Lord Hott, or any other judge that England 
 can boast, held a character more respectable for juadi- 
 
30 
 
 cla} knowledge than Lord Carreron. In the case I 
 altade to, the grand inquest were sworn, andthe prison- 
 ers on being ar Neher deck presented a plea in abatement of 
 the ‘adinbersnt! Phe plea was to this effect,—that a. 
 person named Decluzeau, was an alien, a Frenchman 
 born, and incompetent to serve the office of a Grand 
 Juror. On ths plea being tendered, the Chief Justice, 
 after conferring with his brethern said, —‘* this plea, 
 6° which is a plea j in abatement, is put in as a substi- 
 tute fora challenge, the party not being present at 
 s¢ the swearing of the Grand Jury ; if he had been pre- 
 *¢ sent and had taken a challenge, the subject matter 
 fusake, 3 that challenge must have been instantly inquired 
 * into.” Is not this an opinion in point? Tread it 
 from Mr. Ridgeway’s Report. 19. | 
 My Lords, I have another and a serious remark to 
 make to the court. There is a statute, the 48. of the 
 Kine, the Police act, and I advise Mr. Sheriff to at- 
 tend to that statute in future, when he summonses 
 Grand Jurors. Attention to that statute will probably 
 set at rest the question raised upon the propriety, upon 
 the legality of putting police magistrates upon the pan- 
 nel of the grand inquest. From the enactment of this 
 statute, it appears how those justices are nominated. 
 Je also appears that one divisional justice shall attend at 
 each office every day, from ten in the morning until 
 eight in the evening, and at such other times.and places 
 ws shall be fotind necessary 3 and two justices shall at- 
 terid together from eleven in the forencen until three in 
 the afternoon, and the barrister shail attend at all hours 
 though not his tarn or duty, when his presence is ne- 
 cessary. These magistrates are always to be within 
 cath, How are they to be within call if confined on 
 Grand Juries, if locked up ina jury-room? I venture 
 reassert, that these police justices are by virtue of the 
 ace of parliement which I have referred to, and which 
 imstitutes them, incompetent to act as Grand Jurors, 
 aud for this very good reason, that they are required 
 imperatively, by the act, to sit in their offices from ten 
 in the morning votil three in the afternoon—their duties 
 are not to be executed in a jury-room, or jury-box, 
 bat in their respective offices and at their desks. ‘The 
 
 act tres them Up, 
 
Pinel 
 
 Lord Chief Justice Downes. Shew me the report. 
 
 Mr. Mac Natty. Here it is my lord. 
 
 Chief Justice. Goon. “Cn 
 
 Mr. M‘natty. I was about shewing your Lord- 
 ships that from a fair explanation of the police act, 
 the intention of the legislature, the duties of office, 
 and the restriction put on the justices, which that act 
 instituted, they are not eligible to be sworn on the 
 grand inquest. In addition, I beg leave to observe, 
 that so astute has parliament been in coercing those 
 justices from interfering in any matter of law what- 
 ever, that they are not only rendered incapable of 
 sitting in parliament, but barristers, while in office, 
 are prohibited from practising in their profession in 
 court; from drawing deeds or pleadings in law or 
 equity ; or even giving an opinion under a very heavy 
 penalty—and it is fair to say, that the legislature has 
 put no trust in them, but what the act specialty points 
 out. This shews that the law, looks upon them with 
 ajealous eye; and, the spirit of the law points eut 
 the incapacity of the lay magistrate as strongly as the 
 
 letter of the law points only to the ineligibility of 
 
 the professional magistrates. Yet, my lords, thougis 
 the intent of the statute is as I have described, I sce 
 seven justices of police ranged in thy; grand jury box, 
 as good men and true—there they stand all in a row, 
 alderman Hone at their head, down to ‘ though last 
 not least in love,” major Sirr. Let me ask, are these 
 gentlemen suited for legal inquiries between the. King 
 and the subject, where they are to be swern to pre- 
 sent, without favour or affection? If they have not 
 favour to the crown, have they favour to themselves ? 
 My lords, what is the station of a grand jury? Lime 
 bibed strong ideas on this great and legal subject not 
 long since from a learned judge on the bench, Mr, 
 Justice Day. His lordship’s words were these—* the 
 grand jury is a bulwark raised by the constitution, be- 
 tween the accuser and the accused.” Let me ask 
 this, if a grand juror is a constitutional guardian of 
 our rights and liberties, should he not be as indepen- 
 dent of the influence of the crown as a judge? I need 
 not enguire now why judges were made independent, 
 but I wish in heaven they are so. Why should 2 
 juror’s free will be shackled by apprehensions of giving: 
 
32 
 
 displeasure to the government? Amd why should the 
 fear of being dismissed from office be held suspended 
 over his head? With grand jurors so circumstanced— 
 so trembling under the apprehension of being punished, 
 by such a visitation as George Lidwell was, br a con- 
 ‘scientious discharge of bis duty, the liberty of the 
 subject must lose all security and be put into jeopardy. 
 That gentleman, your lordships know, was deprived 
 of the commission of the peace for attending a catho-. 
 lic meeting, and avowing his friendly sentiments to 
 the Catholic body. 3 
 
 Lord Carer Justice. Mr. M‘Nautiy that charge 
 ‘should be made in the presence of the person who is 
 responsible. 
 
 Mr. M‘Natry. True my lords—I feel I am ifre- 
 gular—but when the heart and the understanding are 
 hurried on by the same impulse, there is a liability to 
 error—-I meant only to illustrate—I was endeavouring 
 to shew that the grand jury in such a case as the pre- 
 sent, should be as free as possible from the operation 
 of mfluence or controul of power. I do not consider 
 these worthy metropolitan magistrates, now in the 
 ‘grand jury box, as they must have been considered 
 merely fac totwm men—but I consider their worships 
 as ti tofums, who may be turned round and round by 
 those who appoint them, and turn up or turn ‘down, 
 just as their spinner please—men who will turn any, 
 way rather than turn out. As mere appointees of the — 
 crown, they are so plainly submissive to its influence, 3 
 order and control, that I must hope your lordships 
 wil] be of opinion that alderman Hone ts not possessed 
 of that independence, that freedom, which is essen- 
 tial to render him eligible to-sit as a grand juror, ina ~ 
 cause betweeb the crown and the subject on a crimi-. 
 nal prosecution by indictment. 
 
 Mr. Gooip rose to argue in favour of the chal- 
 lenge; but the Court said, they would not hear more 
 than two counseél for the defendant, to the same point. 
 
 Mr. Justice Osporne. In this case, as there is 
 some shade of difference between the opinion of one 
 of the Judges of the Court, and the rest, although 
 the result of his opinion is adverse to the challenge, 
 but upon a distinct ground, I will proceed to state my — 
 opinion, which I will give briefly, not wishing to delay 
 
33 
 
 the public time. Unquestionably, in looking through 
 the books, which treat of the subject of jurics, from 
 _ the first to the last, we are led into difficulties from 
 the confused manner in which the subject is taken up 
 by them all—there is seldom a distinction made, be- 
 tween grand and petit jurors; between criminal and 
 
 civil causes: they are confusedly mentioned inallthe 9 
 
 books. But this, we do not findin any book, or in — 
 the experience of any professional man, that a chal- 
 lenge lies to a grand juror, when he comes to be oie 
 sworn. I would pay very little respect indeed to the ms 
 principles ‘which influence the administration of the 
 criminal law in general, if I held that such a right of 
 challenge existed, but that there was no form or mode 
 established in practice, by which the subject could 
 avail himself of it. That would be monstrous. We 
 know, that the constant practice upon circuit is, to 
 call upon the grand jury, in ‘the absence, and neces- 
 sarily in the absence, of the parties to be tried. I 
 concur entirely with the counsel for the defendant, 
 that the disqualifications of grand jurors and petit 
 jurors are the same; a man must be indifferent and 
 Impartial, as a grand juror, as well as a petit juror. 
 But from the nature of their duty, arises this essential 
 difference between them, that with respect to one, 
 the objection must be by challenge, which is zmme; 
 ‘diate, and as to the other, not immediate, that is, not 
 by challenge, when the man called, as a grand juror, is 
 to be sworn, but as a plea. The sacred right of the 
 subject is in both cases protected. No man shall be 
 tried by a disqualified person; but the objection, on 
 the ground of disqualification, is to be urged at the pro- 
 per period. A party accused must avail himself of a 
 challenge to a petit juror, when called to be sworn, 
 but if the objection be not then made, the time is 
 lapsed, and the objection cannot be afterwards urged. 
 
 In the case of a grand juror, the objection is to be 9 
 
 relied upon, in the form of a plea. “Therefore, I think 
 that there does not exist, by the common law, the right 
 to challenge a grand juror, which has been contended 
 for, and in so determining,-I do not abridge the privi- 
 lege of the subject ; but [ stand upon what has been 
 always considered, a satisfactory proof of what the - 
 common law is—the general practice of the courts 
 Ds | 
 
a ae 
 
 34 
 
 from time immemorial to the present day; a prac- 
 tice, which would be most unjust, and severe, and 
 would tend to make many executions, murders, by re- 
 presenting them to be illegal, which they must be, if 
 the party sentenced, were deprived by the practice of 
 the courts of the benefit of that challenge, which the 
 
 Jaw gave him. This practice is not liable to the cen- 
 
 sure, which it must be, if it occasioned the mischief, 
 which has been supposed :—the subject is not deprived 
 of any advantage, which the law gives him, and the 
 modes of insisting upon those advantages are ascer- 
 tained—the mode of objecting to a petit joror is by 
 challenge—and of objecting to a grand juror, is by 
 plea. Y am of opinion, therefore, that a challenge 
 cannot be made to a grand juror, and by so determin- 
 ing, the subject is not exposed to any difficulty. It 
 
 appears to me, that the passages in Hawkins, in this: 
 
 particular, are not to be relied upon, as authority at 
 all; because, when we examine the several sections, 
 or paragraphs in his book, we see, painted, as it 
 were, the countenance of a man in doubt—that part 
 of his book is a discussion upon a controverted, or 
 uncertain point, rather than the opinion of a juridical 
 author. Perhaps, be may give the leaning of his own 
 mind; but it is impossible to consider it as the autho- 
 rity of Hawkins in favour of this challenge, when his 
 language is contradictory and not to be reconciled. 
 Mr. Fintay. My Lords, if it be not improper, 
 while the court are giving judgment, 1 beg to mention 
 
 several authorities, independent of that taken from 
 Mr. Serjeant Hawkins. In Wood’s Inst. it is laid 
 down, that a grand juror may be challenged by one, 
 
 before he is indicted—and the same is also to be found 
 in Cro, Car. 433, 135, 147. 
 Mr. Justice OsBorne. 1 wish you had mentioned 
 these references before, because they require to be 
 canvassed, before they can be acknowledged as autho- 
 rites. 
 ' Mr. Soxiciror GENERAL. My Lords, all these 
 refer to Wrthipole’s case, and are founded upon it. 
 Lord Chief Juste Downes. And there is a query 
 in the margin of Z/awkins, referring to these pages in 
 Cro, Car. intimating a doubt, that they did not sup- 
 port the text. | fe | 
 
 : 
 
 » 
 
\ 4 
 
 35, 
 
 Mr. Justice Daty. In this case, a challetige has 
 been taken to a grand juror, upon the ground, that be 
 is,a placeman under government. The challenge 1s 
 founded upona position in Hawkins Pl. Cor. where 
 he says, ‘* that it seems that any one who is under a 
 ‘* prosecution for any crime whatsoever, may, by the 
 ‘* common law, before he is indicted, challenge any of. 
 *¢ the persons returned on the grand jury.” As far as. 
 my research has gone, there is no other, authority for 
 that position, except Hawkins; because Bac. Abr. 
 and others, which have been cited, are the mere 
 echoes of Hawkins, in that particular, who refers to a 
 case,. which does not support the position. The 
 authority of Hawkins stands very high, but, in the 
 instance now before. the court, he rests his opinion 
 upon proceedings which do not bear him out at all. 
 Withipole’s case, in Cro. Car. came before the court 
 upon a plea in abatement, filed by a person indicted 
 for murder, before the Coroner, stating, that the fore- 
 man of the grand jury and fourteen others were nomi- 
 nated by a person, who was not the returning offi- 
 cer. The particular question there was, whether an 
 indictment, or inquest before the Coroner came within 
 the purview of the stat. 11 Hen. 4. It was undis- 
 puted that all other indictments came witbin the pur- 
 view of it:-—the only doubt was, as to the proceeding 
 before the Coroner, and it was ultimately held, that 
 such proceeding was equally within the purview of the 
 act. That is an extremely ancient statute, and I 
 take it, that it introduces new objections to grand 
 jurors, and creates disabilities in some particulars, 
 which did not exist at common law. [think it is fair 
 to say, that if a challenge existed to a grand juror, at 
 common law, that statute would have’ given the chal- 
 lenge, as.a preliminary mode, to the new causes of 
 objection, instead of a plea, which must be subsequent 
 to the grand jury being sworn, and indictment found. | 
 The statute makes the indictment void, if found by a 
 grand juror, to whom the objection therein mentioned 
 applies, and it gives the advantage of making the ob-> 
 jection by plea, after the indictment found. It is very 
 remarkable, that the stat. of “en. 8. which: seems. to 
 follow up the mischief that was particularly to be re- 
 medied, recites, that, notwithstanding the statute of 
 
36 
 
 Hen. 4. irregularities were practised by sheriffs and. 
 bailiffs, and that the remedies previously enacted were 
 not sufficient. What then does it dof It gives ‘no 
 challenge, but it enacts, that the justices, notwith- 
 standing any return by the sheriff, may new model ity 
 and put others in the place of those returned by the 
 sheriff. Here then, are two statutes, upon the same 
 subject matter, giving remedies of a different kind’ 
 from that of challenge, and taking no notice of are!’ 
 miedy by challenge. 
 But, it is contended, that a challenge lies to’ a 
 
 erand juror at common law, and that the statutes ale’ 
 
 luded to, intended to give an additional remedy ; but? 
 it appears to me perfectly plain, that if a challenge’ 
 lies to a grand juror, it must be made’ in the same’ 
 form and manner, as ‘to a petit juror. How then 
 does a challenge lie to a petit yaror ? The pannel is. 
 c alled over, in the presence of the persons to be tried ; 
 
 iney are called upon, to look to their challenges 
 to challenge the juror, as he comes to the book,’ 
 otherwise the challenge is too late. ‘I take it, that’ 
 
 from this form, w hich is the only form to be found if 
 
 the books, or known in practice, the challenge to a 
 petit juror must be taken at a particular time, and- 
 cannot'be taken afterwards. How, then, does it stand, 
 with regard to a grandjuror? The cominon and wni- 
 versal practice is, to swear a grand jary in the aby 
 sence of ‘all the persons, who may be tried at that 
 sessions, at which the grand jury is sworn. No per- 
 sons are called, but the grand jurors themselves, and 
 
 upon the best research w hitch I have been able to make 
 
 into this subject, I find, that every valid objection, 
 which can be made to a petit juror, may be made to 
 a grand juror, but by a different mode :—the objec- 
 tion to the former is by challenge—the objection to the 
 latter, is, by plea. Therefore, upon the whole, Iam 
 of opinion, that no challenge whatever lies to a prand 
 juror, and it does not appear that it ever was allowed, 
 Mr. Justice Day. I am extremely sorry that there 
 should be any shade of difference in the opinion of 
 the court, upon a point of great consequence; but 
 no twithstandine all that I have heard, from the bar 
 and from the bench, I cannot give up the 6ld opinion 
 that Ihave: ever entertained (perhaps It 1s erroneous, 
 
37 
 
 but I confess that I have entertained from my coming 
 to the bar to the present dav) that, generally speaking, 
 a challenge lies to a grand juror, as well as to a petit 
 juror. If Tam in error I haye the consolation to err 
 in good company ; in company with Hawkins, Bacon, 
 (who is Gilbert) and Lord CarLeron, an enlightened, 
 experienced and eminent judge, of deep research, 
 and never hasty in giving a judicial opinion. These 
 I consider.as powerful authorities, in support. of the 
 right of challenge, contended for, on behalf of the 
 defendant—-and therefore, when the Soricsror Gr- 
 NERAL has-not been able to cite a single authority 
 to the contrary, which the counsel for the defendant 
 bad wright to demand, I cannot but bend to those in 
 favour of challenge. Sir Wm. Withtpole’s case, Cro. 
 Car. 134, which has been adverted to, furnishes some 
 ‘illustration of the decision. Hawkins says, ‘ it 
 ‘* seems that any one under prosecution, may, before 
 ‘* he ts indicted, challenge any of the-persons returned 
 ‘on the grand jury, as being outlawed for felony, 
 “¢ or villeins, or returned at the instance*of the pro- 
 ‘** sécutor, or not returned by the proper officers” In 
 Withopole’s case, the prisoner was indicted upon an in- 
 quest found before the Coroner, and being arraigned 
 upon that inquest, he pleaded in abatement that two 
 of the jurors were outlawed in a personal action; and 
 upon reference to the twelve judges, a majority were 
 of opinion, that the 11 Hen. 4. c. 9. extended to civil 
 outlawries, ‘‘ for (says the book) such persons are not 
 ** probit & legales homines, to be sworn on an inquest, 
 “Sand may be challenged for that cause.” Perhaps, I 
 do not construe this case right, in the burry in which 
 this matter is disposed of, from an anxiety to save the 
 public time. The jurors sworn before the Coroner 
 are guas? grand jurors, and the verdict pronounced by 
 them 4s in the nature of-an indictment upon which 
 the party may be arraigned and tried by a petit jury ; 
 then if the grand jurors impannelled before a Coroner 
 may be challenged, why may not those impannelled 
 before justices of Oyer and Verminer? It is admitted, 
 that objections lay at common law, for want of free- 
 hold, outlawry, villemmage, &c. Then how was the 
 subject to avail himself of those objections where they, 
 or any of them happened to occur before the statute 
 
38 
 
 of Fen. 4. which gives the plea in abatement, unless 
 by challenge? And if the subject had that privilege 
 
 : % . - 
 at common Jaw, what bas happened to deprive him. 
 
 ef it? Certainly not the statute of //en. 4.; for that 
 is 2 remedial statute, not substituting the plea in abate- 
 ment after indictment, for challenge before indictment, 
 but auxiliary to the defective common Jaw privilege 
 
 of chalienge. That privilege was found egregiously, 
 
 defective in this, that the person charged was either in’ 
 
 prisop, or not amenable, or ignorant of any, informa- 
 tion preferred against him, and thus not being present 
 often had not the opportunity of challenging any, 
 
 the grana jury. Now it isa leading maxim that are- 
 medial law never puts an end to a former right, but 
 it ails defects, which impeded the exercise of the 
 right and cures them. The statute, after reciting that 
 *“ many were thus indicted against the course of the 
 
 ‘‘¢ommon jaw,” that is, by, persons against whom, 
 fegal objections lay, for want of opportunity to chal-. 
 
 lenge before indictment, gave the plea in abatement 
 
 after. Hawkins it is true, doubts whether that plea. 
 was not competent at common law; but Coke ex: 
 ‘pressly denies that doctrine, and affirms that the plea 
 
 33 given by the statute. 
 In the case of a petit jury, to be sure, the party has 
 but the one mode of objecting, that is, by challenge, 
 
 for he pleads the general issue before he is put to his: 
 
 challenge—be has no further plea to urge, and being 
 warned to look to his challenges, if he lapse that op- 
 ortunity, he is concluded upon the subject. 
 
 The Soticiror GENERAL argued, with his usual 
 force and power, against this right of challenge, from 
 the many inconveniences, which would result from it, 
 and it must be admitted, that some inconveniences 
 may follow. But we must stifle the sentiments, ex- 
 cited by the familiar abuse of privileges. Great con- 
 
 stitutional privileges are not. to be put down by argu. 
 
 ments a> tnconvenientt. We must not argue from the 
 abuse of the thing to. the use of it. That argument 
 would strip the subject of some of bis most legitimate 
 and acknowledged privileges; because every judge 
 
 knows how often they are abused to the great annoy- 
 
 ance of. the court and the waste of much precious 
 
 time. For instance, where several are included in, 
 
 ~ 
 
39 
 
 the same indictment, how often have we known thea 
 to refuse joining in their challenges, and ,thas severad 
 trials are given to a case which might be dispatched 
 by one? If, because the right of challenge may be 
 abused, it followed, that therefore it does not exist, 
 the same argument would take away the plea in abate- 
 ment, which is capable of still more vexatious pro- 
 traction and abuse. In truth, a challenge, in my mind, 
 is less objectionable than dilatory plea; for the latter, 
 if allowed, vitiates not only the indictment objected 
 to, but all the past proceedings of the grand jury, and 
 all must be resumed de novo, tothe great delay of 
 public business ; whereas a challenge to a grand juror 
 may be disposed of with the same facility of dis- 
 patch, as a challenge toa petit juror. In the case in 
 The Year Book, 11 Hen. 4. the Court said, the party 
 was late. What does that mean? That he should 
 have taken the objection, before the indictment was 
 found, which objection, so to be taken, could have 
 been only by challenge. But the plea, which was 
 not offered till after the indictment found, was after- 
 wards allowed ; because it was found, upon consider- 
 ation, that the statute, which had just passed, gave 
 the plea in abatement, in addition to the common 
 Jaw right. | 
 
 Another objection is, that no instance is to be 
 found in the books of a challenge to a grand juror. 
 But the answer is obvious. The party interested sel- 
 dom is present, and seldom therefore can challenge ; 
 and though he did casually attend, the party mighr 
 think it more prudent to wait the event of the bill 
 prepared against him, and if found, then to plead in 
 abatement. But a privilege becomes not obselete, or 
 lost by desuetude. 
 
 Upon the whole If think, that the privilege of chal- 
 lenge is the undeniable right of the subject io the 
 case of grand jurors, as well as petit jurors. Thar 
 proud bulwark of civil liberty, the grand jury, would 
 be defective without such privilege in the subject. 
 No subject can be convicted but upon the concurrent 
 verdicts of two juries, each omnz excepttone majores. 
 And yet, if the privilege of challenge be denied, the 
 sheriff may impannel a grand jury, the most objec- 
 tionable ; of aliens, minors, outlaws, without frechold, 
 
AO 
 
 &c. without any right or power of exception; and 
 then after the bill is found by a jury, many of them 
 not prob. et legales, after the shaft has flown and the 
 wound has been inflicted, then truly, the consola- 
 tion offered is, that the party indicted, if he can af- 
 ford to fee a counsel, may plead in abatement. 
 
 But upon the other ground, which the SoziciroRr 
 GENERAL has insisted on, against the present chal- 
 lenge, I concur with him, namely, that no challenge 
 for favour to the crown does lie in the mouth of any 
 
 _ subject. Lord Hott, who was a great constitutional 
 Jawyer, denied the right of making such a challenge 
 to a petit juror, even where a man was upon trial 
 
 for his life ; a multo fortiort, the objection cannot lie 
 to a grand juror, who only accuses the prisoner and 
 sends him to trial. What could .be more revolting, or 
 monstrous than to say, where the crown was not per- 
 sonally, but in its political character concerned, that 
 it had an interest in the accusation of innocence ? 
 
 Upon the whole, while I admit the general right of 
 the subject to challenge a grand juror, I coneur with 
 the Court upon this latter ground, in rejecting the 
 challenge now offered. 
 
 Lord Chief Juste Downes. This appears to me 
 to be a novel attempt, and it would be attended with 
 great inconvenience to receive a challenge to a grand 
 juror, antecedent to an indictment found. It is the 
 right of the subject to object, in all cases, as well to 
 the grand juror if legally disqualified as to the petit 
 juror. In that, we all agree, it is plain and clear— 
 the only question raised is, as to the mode, in which 
 the right should be exercised—at what time should a 
 party, having a valid objection to make to a grand 
 juror avail himself of it? The general course. of 
 making any objection is upon the first opportunity, 
 which the party has, and upon looking through the 
 books, there is not a single instance to be found to 
 support this challenge, and if there were, the industry 
 of the gentlemen on both sides would have discovered | 
 ‘it. I have taken some pains to search, and I have 
 met no instance whatever of a challenge to a grand 
 juror, I have looked through the State Trvals, as well 
 as the time allowed, and 1 have not found an instance 
 of such a challenge being even offered, although so 
 
4i 
 
 many opportunities of taking a challenge to a grand 
 juror must have occurred. ‘The universal practice is 
 a powerful argument, that the challenge will not lie, 
 no instance being found of its having been offered. 
 
 The objection to such a challenge is founded upon 
 good reason. The party, who comes to urge it, may, 
 or may not be present—may, or may not be indicted ; 
 and if it were open to him to make an objection by 
 challenge, because informations have been sworn 
 against him, so must it, in all cases, be open to every 
 person against whom informations have been sworn, 
 and if so, besides the great inconvenience it must 
 create.in the administration of justice, many persons 
 must be precluded from availing themselves of the 
 objection afterwards; because, the rule of pleading 
 is, that to take advantage of a disqualification, it 
 must be alleged in the first instance, and if after- 
 wards urged, it must be disallowed, because the party 
 has lost his opportunity—and if he were absent, it was 
 his.own default—he might have been present. Nov, 
 although we have no instance, from the oldest books 
 in the law, to those of our own time, where a chal- 
 lenge has been taken to a grand juror, there are abun- 
 dant instances, in which the party has availed himself 
 of objections to the grand jurors, by plea ; and these 
 instances demonstrate the mode by which the party is 
 ‘to avail himself of such objections. : 
 
 It would be monstrous to say, that an illegal grand 
 juror should find an indictment, and that the man ace 
 cused should have no mode to avoid it. If it were a 
 question unsettled, and that the accused had no other 
 mode of availing himself of the objection, save by 
 challenge, there is no doubt that he must have the 
 right. But if there be no instance to be found of 
 a challenge for hundreds-of years, and there are abun- 
 dant instances of pleas, it cannot be doubted, that the. 
 latter is the only mode by which a party can avail 
 himself of an objection. | 
 
 Ido not go into the nature of the present objec- 
 tion. I rest upon the first part of the argument— 
 that is, supposing the objection tobe valid, (upon 
 which I give no opinion because it is not necessary ) 
 the party can receive no injury by rejecting his 
 challenge, because, when he is called’ upon to plead, 
 
 F 
 
42 
 
 he can make the objection to the indictment in the 
 mode sanctioned by universal practice. The universal 
 ptactice then Is against the challenge. What is the au- 
 thority relied upon to shew, that a challenge is the only 
 mode of making objections? It is a passagé from 
 fTawkins, which conveys no positive opinion, and is 
 followed up by observations, shewing that he himself 
 doubted upon the matter, and it is plain that the case 
 he cites from the Year Book, was the case of an objec- 
 tion taken by plea, and not by challenge. He states, 
 ** that it seems to be the general opinion, that the reso- 
 Jution in the Year Book of 11. Hen. 4. is rather 
 grounded on the statute of 11. Hen. 4. ¢. 9. whieh 
 was made in the same term, in which the resolution 
 was given, than on the common law,”—and proceeds in 
 _ that 18th section in the manner, which has been already 
 
 stated. Now, it is worth observing, what the course 
 was, which was taken in that case, cited from the Year 
 
 ook: there was no challenge to the Grand Juror; but 
 the objection was made upon the party being arraigned, 
 and then he pleads, that one of the Grand Jury, who 
 found the indictment was himself indicted of felony. 
 He is told, that he is too late, for that he ought to have 
 challenged. If the case rested there, it would be an 
 authority, so far as it went, that the objection was to 
 be made, not by plea, but by challenge, antecedent to 
 the swearing of the Jury. But the’ case goes on— 
 ‘And the opinion of all the Judges ‘was taken, who 
 «¢ held, that the plea was good.” © That was a deter- 
 mination, that ‘a plea was the proper mode ; that the 
 first impression of the Judges in the Court was wrong ; 
 and that their subsequent opinion, and that of the rest 
 of the Judges was in favour of the plea. This then is 
 the authority relied upon by Hawkins, and at all events, 
 it remains‘liable to doubt, even in the opinion of Haw. 
 kins’ himself, whether the plea in that case was not 
 good‘ at common Jaw, independent of the statute ad- 
 verted to; and if it were good as a plea, it ‘seems to 
 follow that no such challenge ought to be taken, ‘for if 
 it could, the objection coming by way of plea would 
 come too late, and all the other cases, in which the ob- 
 jection to a Grand Juror were made by plea only, and 
 not by challenge, are strong comments upon Hawkins 
 to shew, that by plea, and not by challenge, is the 
 
) 43 
 mode, in which a party is to avail himself of an objec- 
 tion to a Grand Juror. As to what Lord CARLETON 
 said in Sheares’s case, it is enough to say, that this 
 point was not made before him; the case there was on 
 a plea, and it was not in question whether a challenge 
 would lie or not: pene at 
 
 I donot think it necessary to go further: I say no- 
 thing, at present, as to the other objection. But I. 
 think, that if. we received a challenge, we would allow 
 a dangerous novelty, which» would encumber the ad- 
 ministration.of justice. .It is better to proceed in that 
 course, which has been established for centuries, than 
 to give way to an attempt, made for the first time, in 
 a matter, in which most manifestly for ages past, the 
 instances would perhaps be almost as numerous, as 
 challenges to the petit jury, if that course was legal. 
 Therefore I am of opinion, that this challenge should 
 not be received. 
 
 Challenge refused.* 
 Saturday, November 9th, 1811. 
 
 Mr. Jouwnson, on behalf of the Defendants repeated 
 the application, for copies of the informations to be 
 granted to them. He did not urge it as a matter of 
 right, but of indulgence, and the indictments being 
 found by the Grand Jury, there was less reason to re- 
 fuse the motion. The statute 49. Geo, 3.- gives the 
 officer a fee of six shillings and eight pence for a copy 
 of an information, which recognizes the practice of 
 granting copies. 
 
 Mr. Burne, on the same side, said, there was a dis- 
 tinction always made between misdemeanors and capi- 
 tal cases: in the former, he considered it a matter of 
 right to have a copy of the informations ; in the latter, 
 it was a matter of indulgence. 
 
 Lord Chief Justice. This application is perfectly 
 novel :—it presumes a right in the accused person to 
 search into the evidence, which is intended to be given 
 
 * By the 17th and 18th Geo, III. c. 45. Ir. It is enacted, ‘* that no 
 «* plea of the outlawry of a Grand Juror in any civil case, shall he recéiv- 
 «* ed in avoidance of any act, er acts, tobe had or done by any Grand 
 ** Jury whatsoever, 
 
Ad, 
 
 on the part of the Crown. No prosecutor can be com 
 pelled to disclose his evidence. Even the £nglish sta- 
 tute of Wil. 3. which gives the accused copies of the 
 indictments in cases of high treason, expressly excludes 
 the names of the witnesses, which may be indorsed 
 thereon. The Irish statute upon the same subject, gives 
 copies of the indictments, but not of the informations, 
 5, Geo. 3.c. 21. The object of this motion is to pro- 
 cure the names of the witnesses, which appears to us 
 
 to be an unreasonable application. It is sufficient for’ 
 
 the accused to know the fact, with which he 1s charged; 
 but he is not to be armed with a knowledge of the pro- 
 secutor’s proo!s. , ' 
 
 Motion refused ; but copies of the indictments were: 
 granted. 
 
 Monday, November, 11th, 1811. 
 
 Lord Chief Justice Downes. I think it right to 
 4ake notice of a circumstance relative to the motion, 
 which was made on Saturday last. Counsel for the Traver- 
 sers moved for copies of the informations sworn against 
 them, and also for copies of the indictments. We 
 were of opinion that copies of the indictments should 
 be granted ; but we were also unanimously of opinion, 
 that copies of the informations ought not to be granted. 
 @ne ground of our refusal was, that there was no in- 
 stance of forcing the Crewn to give up its evidence, 
 and that there was a legislative declaration in the sta- 
 tute of W7l. 3.* which directs copies of the indictments 
 in cases of high treason, but excepts the names of the. 
 witnesses, indorsed upon the back of the indictment. 
 I spoke at the time from my recollection, and upom 
 looking into the statute since, I find that I was right. 
 But I also find, that by stat. 7. Anne c. 21. the names 
 of the witnesses are directed to be given. That statute 
 is not in force here. I thought it right to mention this: 
 though it makes no manner of difference as to the rule 
 which we pronounced; nor do I see any reason tp 
 doubt the propriety of that rule. | 
 
 * 7. W.S.0 8 Eng:. 
 
45 
 
 Mr. Arrorney Generar. My Lords, I: am now’ 
 hombly to move your Lordships, that the persons. 
 against whom indictments have been found, may be 
 calied, in order, that they may plead. 
 
 Mr. Burne. My Lords, we who are concerned for 
 the Traversers, are anxious to facilitate the business of 
 the Court. Messrs. Taarrr, SuHreripan, Burks, 
 BreeEne, and Scurtoe, will waive their right of plead- 
 ing in abatement, and are willing to abide by whatever 
 may be vour Lordship’s decision, in the case of Mr. 
 KIRWAN. 
 
 Mr. ArroRNEY GENERAL. Nothing can be fairer. 
 These gentlemen will, of course, plead the general 
 issue, with liberty to withdraw that plea, should the 
 Court decide against the Crown ; which liberty I un- 
 dertake they shail have. 
 
 Lord Chief Justice. Are all the Defendants in 
 Court ? 
 
 The Clerk of the Crown called over their names, 
 
 and they appeared. 
 
 Lord Chief Justice. Gentlemen, with respect to all 
 except Mr. Avrwan; you will plead the general issue. 
 But if the Court will allow Mr. Airwan’s plea, you shall 
 be permitted to withdraw your traverse, and avail 
 yourselves of the decision of the Court in his favour. 
 
 _ This arrangement was assented to on both sides, and 
 Messrs. Taaffe, Sheridan, Burke, Breen, and Scurlog 
 traversed the indictments. 
 
 An abstract of the indictment against Mr. Kirwan 
 was read. ye 
 
 It stated, that on the 9th of July, 1811, an assem- 
 bly was held in Fishamble-street, by persons intending 
 to procure the appointment of a committee, of persons 
 professing to exercise the Roman Catholic religion, to 
 exercise an authority to represent the Roman Catholic 
 ‘inhabitants, under pretence of causing petitions to 
 Parliament, for the repeal of laws existing against 
 'them, and that Thomas Kirwan, intending to assist in’ 
 forming such committee, on the 3ist of July, 1811, at 
 Liffey-street, did assembie with others, for the purpose 
 of appointing five persons to act as representatives of 
 the parish of St. Mary; that Edward Sheridan, M. D. 
 was elected, and that Thomas Kirwan voted in said 
 appointment, contrary to the form of the statute, &c. 
 
: 46 
 
 Mr. Nortu. My Lords, in this case, Mr. Kirwan 
 tenders to the Court, three several pleas. The first is, 
 that several of the persons composing the Grand Jury, 
 hold offices under the Crown, removeable at pleasure. 
 The second is, that several of the Grand Jury are not 
 seized of estates of freehold. And the third is, the 
 general issue, Not Guilty. 3 
 
 Mr. Atrorngey GENERAL. Let the Clerk of the 
 Crown read the pleas. 
 
 They were as follow :— 
 
 «© AND now at this day, that is to say, on the 
 * eleventh day of November, in the fifty-second year of 
 “the reign of our Lord the King, comes the said 
 ‘© Thomas Kirwan, in his proper person, and having 
 ‘ heard the same indictment read, prays judgment 
 ‘s thereof, and that the same may be quashed, because, 
 ‘* protesting that he is not guilty of the supposed of- 
 << fences in the said indictment specified, or any of 
 ‘¢ them, the said Zhomas Kirwan saith, that the said 
 “© Nathaniel Hone, said Frederick Darley, said Sir 
 “¢ WVilliiam Stamer, Baronet, said Abraham Bradley 
 ‘© King, said William Lindsay, and said James Blacker, 
 <* six of the jurors aforesaid, by whom the said bill of 
 «¢ indictment was found a true bill, at the time of their 
 << and each of their being sworn as aforesaid, upon.the 
 ‘¢ Grand Inquest aforesaid, and also at the time of their 
 “* finding said bill, held and exercised, severally, and 
 ‘© respectively, offices of great emolument, under our 
 « Sovereign Lord the King, to wit, the offices of Di- 
 «¢ visional Justices within the Police district in Dublin 
 ‘¢ Metropolis, under and by virtue of a certain act of 
 ‘< Parliament, entitled an Act for the more Effectual 
 <* Administration of the Office of a Justice of the 
 ‘¢ Peace, and for the more Effectual Prevention of Fe- 
 ¢¢ Jonies within the District of Dublin Metropolis, from 
 ‘* which said offices, the said Nathaniel Hone, said 
 ‘s Fredertck Darley, said Sir William Stamer, Baronet, 
 “. said Abraham Bradley King, said William Lindsay, 
 ‘6 and said James Blacker, were removeable at the will 
 *¢ and pleasure of our Sovereign Lord the King, and 
 ‘* this he is ready to verify, wherefore he prays judg- 
 ‘* ment of the said indictment, and that the same may 
 * be quashed, : 
 
47 
 
 *¢ Ann for further plea in this behalf, the said Thomas, 
 “* protesting as he hath above protested, saith that he 
 said Sir MVilliam Stamer, Baronet, at the time of his 
 “© being sworn upon the Grand Inquest aforesaid, and 
 ‘© also at the time of finding the said bill, was not 
 ** seized of any estate of freehold in the said county 
 ** of the city of Dublin, and also that the said WVilliam 
 “* Cope, at the time of his being sworn on. the Grand 
 ‘* Inquest aforesaid, and also at the time of finding the’ 
 *¢ said Bill, was not seized of any estate of freehold in’ 
 ‘¢ the said county of the city of Dublin, and also that 
 « the said James Blacker, at the time of his. being 
 ‘¢ sworn upon the Grand Inquest aforesaid, and also at 
 ‘* the time of finding the said Bill, was not seized of 
 ‘¢ any estate of freehold in the said county of the city 
 <¢ of Dublin, and this he is ready to verify ; wherefore 
 “¢ he prays judgment of the said indictment, and that 
 the same may be quashed. 
 ** AnD for further plea in this behalf, the said 7o- 
 ** mas saith, he is not guilty of the premises wherewith 
 ** he is by the said indictment charged, and of this he 
 ‘¢ puts himself upon the country and soforth,*” 
 
 “~ 
 an" 
 
 Mr. ArTrorNEY GENERAL. My Lords, I do not 
 mean to take any advantage of an informality in the ° 
 mode of pleading on the part of the Traverser. | It is 
 ‘not regular to, plead two distinct pleas in abatement ; 
 though I admit, that in one plea several matters might 
 be introduced. My Lords, I conceive, that the matter 
 of the first plea has been ruled already by the Court, 
 upon the question of the challenge ;. but ] am ready to 
 have it discussed again in the present form; I demurto 
 both the pleas in abatement. | 
 
 ‘Mr. Justice Daty. Do you demur to the plea for 
 want of freehold ? because then you admit the want of it, 
 
 Mr. Arrorney GENERAL. My Lord, I do. 
 
 _* The third plea is not regularly pleadable, at the same time, with the 
 first and second, for if these were allowed, the judgment of the Court 
 would be to quash the indictment, without ca!ling upon the defendant fur- 
 ther, and if they were disallowed, then the judgment is, that the Defend- 
 ant shall answer over to the charge, 
 
 ’ There was also an affidavit of the defendant annexed, stating, that the 
 first and second plea were true in substance. Such affidavit was held to be 
 unnecessary. Sheares’ case, 16. 
 
 ¢ 
 
48° 
 
 The Traverser joined in demurrer. te 
 
 Mr. ATTORNEY GENERAL. My Lords, Lam to sup- 
 port the demurrer ; not having been well for some time; 
 I would-prefer, with your Lordship’s permission, . to’ 
 proceed now, rather than reserve myself for the reply 
 to the arguments on the other side. If the argument. 
 should extend to any length, it, perhaps, might be at’ 
 a late hour, when I should be called upon to perform: 
 that duty, and by that time, I might be utterly unable 
 to perform it. I shall therefore leave it to some of my 
 brethren. , dd 
 
 My Lords, I beg leave, by way of preliminary obs 
 servation, to state, that as the course, in. which the 
 ‘Traversers have been advised to proceed, is caleu- 
 Jated to convey an insinuation (I am sure it is not in- 
 tended to be suggested by the counsel, who are con- 
 ducting this case) that the return of this Grand Jury 
 has been in any other than the ordinary way ; and may 
 impress the public mind, that any improper practices 
 have been resorted to with regard to the return of that 
 Grand Jury ; it is a justice due to the government of 
 the country; it is a justice due to myself, who ant 
 responsible for the conduct of these prosecutions--- 
 it is a justice due to the sheriffs, by whom: the jury 
 has been returned, to say, in the most unequivocal 
 manner, that it is gross and unfounded. Indeed, I 
 might appeal to the Counsel, who are condueting’ 
 the ease of the Traversers, whether they do not hold 
 me incapable of countenancing any improper prac- 
 tice whatever. ‘ 
 
 Mr. Burne. We do indeed hold you to be utterly 
 incapable. ma 
 
 Mr. Justice Day. I have. had a pretty long ex- 
 perience, and I-can bear witness, that the present 
 Grand Jury is composed of much the same persons, 
 as I hear called eyery. term. 
 
 Mr. Burrowes. My Lords, I trust, it is unneces- 
 sary for us, who are Counsel for the raversers, to 
 disavow, seriatim, all intention of insinuating any 
 thing disreputable to the candour. and honour of the 
 Attorney General. | 
 
4 
 Mr. ATTORNEY GENERAL, My: Lords, it-is right 
 in these times, to.euard the public mind against 
 abuse, which is attempted’ by too many. _ ty 
 
 My Lords, we who are concerned for the crown, 
 consider these pleas, as dilatory :—the traverser is en- 
 titled by law to plead them, and I would be the last 
 person to deny him the benefit of the law :—therefore, 
 we will consider the pleas, coolly and dispassionately, 
 upon their merits, The traverser has pleaded double 
 matter, in abatement of the indictment. The first is, 
 in fact, a challenge of a grand juror, for favour; and 
 the second is, that some of the ‘grand jurors, named 
 in the plea, have not. any estate of freehold in the 
 county for which they are returned. I am not. dis- 
 posed to do more, as to the first, than refer your 
 Lordships to the arguments, which were so eloquently 
 and forcibly urged by the SoticiTorR GENERAL, upon 
 a former day, upon which the court decided. 
 
 Mr. Burrowes. I expressly waived arguing that 
 question, as it did not arise, | 
 
 Mr. Justice Oszorne. I tsink, Mr. Burrowes, 
 you were stopped in that part of your argument. 
 
 - Mr. Jusrice Dary. The opinion of my Lord 
 Corer Justice, of JupGe Osporne and myself was, 
 
 that the objection could not be taken advantage of by 
 
 way of challenge. | , 
 
 Mr. Arrorney Generat. My Lords, I consider it 
 so. But in. deciding that question, we consider it, 
 sev for granted, that the objection will not lie at 
 all. 
 
 Mr. Justice Day. I was the only judge, who held 
 that it did not lie at all. 
 
 Mr. Arrorney “Genera. My Lord, so [ under- 
 stood, and I take it, that no such objection. lies in 
 point of law. The authority of Lord Ho tr is deci- 
 sive, that no such challenge lay to a petit juror,.and — 
 a fortiori, it could not exist in the case of a grand 
 juror. With that authority, and the arguments al- 
 ready advanced, I shal] content myself as to the plea. 
 If any thing further be necessary, in consequence of 
 what may be said on the other side, it will receive an 
 answer from such of my brethren as will speak on the 
 same side. 
 
 & 
 
50 
 
 My Lords, with respect to the other plea—the. 
 want of freehold—having had some apprehension, 
 from the former course of proceeding, that the tra- 
 verser might be induced to plead in abatement, in 
 delay of the trial of the merits, I did with consider- 
 able pains and attention look into the authorities, and 
 have fully satisfied my mind upon the subject; and if 
 I shall be successful in communicating to your Lord- 
 ships the result of my investigation, I am clear, you 
 will also determine that the matter of this other plea 
 is not miaintainable in abatement of the indictment. | 
 
 Your Lordships will please to recollect, that the 
 question, now before the court, is, ** Whether in 
 “€ counties of corporate cities, of corporate towns, the 
 ‘< want of freehold is a good cause of challenge even 
 “to a petit juror.”—And if it be not, either by the 
 common law, or by any statute, a cause of challenge 
 to a petit juror in counties of corporate cities or towns, 
 a fortiori, it is no cause of challenge, or plea in 
 abatement, as against a grand juror. 
 
 My Lords, I am ready to concede, upon the dictum 
 of Lord Har, where he is speaking distinctly of coun- 
 ties at large, that tn counties at large, it is necessary 
 at common law, that the jurors should have freeholds. 
 T admit the dictum of Hate is express to that effect. 
 It is extremely material, upon a question of this kind, 
 to advert to the writ, by which, originally at common 
 law and since, grand jurors have been summoned to 
 attend. The only qualification specified in the writ, 
 ascertaining who—and of what quality and condition 
 grand jurors are to be, is that they should be prod: & 
 legales homines; and I am ready to allow, as I be- 
 Jieve it has been admitted in Sir Zho. Raym. in 
 Blood’s case, that libert and probi are to be consi- 
 dered as synonimous. Therefore, I will take it 
 most advantageously for the traverser. © There is 
 nothing said in the writ of frank-tenement or free- 
 nold, buat prodz, aut libert.& legales homines. The 
 sargument which I mean to found upon the writ (and 
 that is going to the foundation) ts, that by the com- 
 mon law, the qualification of a grand juror or a petit 
 juror was pot dependant upon his property, or the- 
 value of it, but upon his condition and quality in the 
 state—namely, that be should be, what the law - 
 culled—a freeman—not a villein, or outlaw—but a 
 
51 
 
 freeman. In counties at large, the condition of a 
 freeman was ascertained by his tenure. If he held 
 lands or tenements, he held in all—or almost all— 
 cases, by tenure of freehold; for in those ancient 
 times, tenures for years were unknown to the law; 
 and holding by tenure of freehold, he was, in right 
 of that tenure, a liber homo. There was no limita- 
 tion-as to the amount in value; he was a freeman, 
 though the outgoings of the frank-tenement ex- 
 ceeded its income; his condition was free, and he 
 was proper to be returned as a juror. 
 
 In illustration of this, I beg to call your Lord- 
 ships’ attention to the first statutes, which were 
 enacted with regard to the qualification of jurors, 
 They throw considerable light upon the subject. 
 The first is the stat. of Westm. 2. 13 Ed. 1. c. 38; 
 and the next is the 21 Fd. 1.c.1. “ De ws gut po- 
 “ nendi sunt in Assisis.” These statutes were enacted 
 —not for the purpose of ascertaining the qualifica- 
 tions of sums with regard to property or with a view 
 to those who were to be tried by them, but to re- 
 eve jurors from the oppressions, which they suffered 
 from the conduct of sherifis; and your Lordships 
 will find, that the hardships which they suffered from 
 the misconduct of sheriffs, consisted in the sheriffs 
 returning old and decrepid persons---returning per- 
 sons actually paupers---oppressing the poor and fa- 
 vouring the rich---returning persons to extort nroney 
 who were not resident in the county. The first sta- 
 tute recites, ‘“ Forasmuch also, as_ sheriffs, hun- 
 *‘ dredors, and bailiffs of liberties have used to grieve 
 “‘ those which be in subjection unto them, putting in 
 “‘ assizes and juries men diseased and decrepit, and 
 *¢ and having continual or sudden disease ; and men 
 * also, that dwelled notin the county at the time of 
 “ of the summons ; and summon also an unreason- 
 “ able multitude of jurors for to extort money from 
 *“ some of them for letting them go in peace, and so 
 * the assizes and juriés pass inany times by poor men 
 “and the rich men abide at home by reason of their 
 “bribes. It is ordained, that from henceforth, in 
 * one assize, no more shall be summoned thin four 
 
52 
 
 * and twenty, and’ off! then ‘abdve” three score and 
 ‘ten years, being continually sick, and being dis- 
 * eased at the time of the summons, or not dwelling 
 in that county, shall not be put in juries of “petit 
 assizesz--nor shall any be put in assizes or juries, 
 though they ought to be taken in their own shite, 
 “that may dispend less than twenty shillings yearly. 
 ** And if such assizes and juries be taken out of’ 
 “shire, none shall pass in them, but such as ‘may 
 és dispend forty shillings yearly at least, except cttdl 
 “as be witnesses in deeds, or other witnesses, whose 
 A presence is necessary, so that they be able to tra- 
 “vel. Neither shall this statute extend to oréat as- 
 “sizes, in which it behoveth many times knights to 
 “‘ pass not resident in the country, for the scarcity of 
 “knights, so that they have land’ in the shire; and if 
 “ the sheriff or his under ‘sheriffs, ot bailiffs of liber- 
 “ ties offend in any point of this statute, and there- 
 
 “ “ upon be convict, dainages shall be awarded to the. 
 
 * parties. grieved, and “they shall nevertheless be 
 “ ‘amerced 1 to the king, and justices assigned to take 
 ce assizes, when they come into the shire, shall have 
 power to hear the plaints of all complainants, as to 
 the articles contained in this statute, and to minis - 
 “¢ ter justice in form aforesaid.” 
 
 _ My Lords, I have read the entire of the statute ; 
 
 it recites the mischiefs which had existed, and enddts 
 the remedy, that jurors shall have tenements of the 
 yearly value of twenty shillings, thereby putting a 
 value, for the first time, upon thie tenure. dt taken 
 out of the shire, that is, if taken to Westminster 
 upon trials at bar, &c. the tenure must be of the 
 value of forty shillings. 
 
 Then, my. Lords, comes. the stat. 21 Hd1; ‘stat. 
 which. is reinarkable i in another réspect, that will be 
 deserving attention.” It is commonly called the ‘sta- 
 cate « De tis gut ponendt sunt in assists.’ Tt is made 
 qu.part maleria with the fermer, ‘not with a view to 
 
 the parties, ho are to be tried ‘by the jury, but for 
 
 gh ease of the jurors themselves who were oppressed 
 by the, misconduct of sheriffs. e6 Forasinach ‘a as our 
 
 ‘4 
 
53 
 
 é Lord the King by the continual and grievous com 
 
 “ nlaint of his “inferior people, doth perceive that 
 “ divers persons, being of least ability of his realm, 
 “are many times intolerably troubled by sheriffs, and: 
 “ their bailifis, bailiffs of liberties which impannel 
 “them to the recognizances of assizes, juries, in- 
 “ quests and attaints, t triable out of the shires, where 
 “they be dwelling; and do spare the rich people 
 “ and such as be more able, by whom the truth. of 
 the matter might be better known, whereby great 
 “expences and trouble doth daily manifestly ensue 
 ‘tothe impoverishment and other disheriting of 
 “many. Our said Lord the King, providing for 
 “the indemnity of his people, and desiring to set 
 “ convenient remedy in the premisses for the public 
 « weal of his realm, in his Parliament holden, &c. 
 “hath ordained in this behalf, that no sheriff, &c. 
 «shall from henceforth put in any recognisance 
 
 “ abovesaid, that shall pass out of their proper.coun- 
 « ties, any. of their bailiffs, except he have lands and 
 ** tenements to the yearly value of an hundred shil- 
 “lings at the least. And the King intendeth not by 
 “this statute to restrain the last statute of Westonn- 
 _“ ster, wherein mention is made of recognisers to be 
 “put in juries and assizes, but of such only as oughe 
 “to pass in assises, juries ‘and recog nisances, triable 
 out of their proper counties; so that within the 
 county before justices of our said Lord the King, 
 “ or other ministers assigned to the taking of any such... 
 & inquests, juries, or other recognisances, none shall 
 “be impanelled, except he have lands or tenements 
 * to the yearly value of forty shillings; and likewise 
 
 ‘saving, that before Justices errant, that hold com- 
 
 ‘mon pleas in their circuit, and ‘also. in cities, bo- 
 ty Pett and other market towns, where recogni- 
 o tai hag assises and juries or inquests do pass upon 
 
 “any matter touching the said cities, boroughs and 
 * other towns, it shall be done like as hath been ac- 
 *“eustomed in times passed.” Recognising in this 
 very ancient statute, that there were certain laws and 
 usages, applicable to cities and towns corporate, 
 ‘which were not applicable to counties at large, and 
 
a4 
 
 where a reformation with respect to juries in counties 
 is provided for, there is a saving, retaining and pre- 
 serving the foriner usages in corporate towns. When 
 your Lordships come to hear what I shall subse- 
 quently offer, it will go strongly to shew, that there 
 is one law with regard to counties at large, and ano- 
 ther, founded upon reason and necessity, with re- 
 gard to cities aid corporate towns. 
 
 My Lords, these statutes, respecting the qualifica- 
 tion of freehold, requiring twenty shillings in one 
 case and forty shillings in another, are utterly imma- 
 terial in the point of view, in which we are now con- 
 sidering the subject, that is, as to challenge ; for it 
 is laid down by Lord Coxe, in his commentary upon 
 the stat. of Westm. 2d in his 2 Jnst. 448, that if an 
 persons be returned contrary to the purview of this 
 statute, he cannot be challenged, neither can the 
 party aggrieved allege the matter for his discharge, 
 but he must take his remedy by aetion against the 
 sheriff. So that after the passing of these statutes, 
 the subject stood, as to the matter and right of chal- 
 lenge, precisely as it did at common law: and the 
 only challenge which lay at common law, was, that 
 the juror was not a liber homo, that is, that in coun- 
 ties at large, he had not such a tenure, as constituted 
 him a lider homo; but no value was necessary---he 
 might be a pauper; but if his condition were free, he 
 was qualified to be a juror; and down to this period, 
 no value is annexed to the freehold. 
 
 My Lords, this may be the proper time to draw 
 your attention, to the case of cities and towns corpo- 
 rate, in which the crown of England had from time 
 to time, antecedent even to the reign of Edward’). 
 establfshed corporate bodies, for the promotion of 
 trade; gave them jurisdictions, exemptions and pri- 
 vileges, making them counties in themselves; and in 
 many of these corporations, if a frank tenement 
 were a necessary qualification for a juror, there must 
 be an absolute failure of justice: for there were not 
 numbers sufficient to compose a jury, who had free- 
 holds in lands and tenements. But the corporators 
 were made Sreemen by the King’s charter, and being 
 
53 
 
 made such, they were, give me leave to say, to all in- 
 tents and purposes, within the principle and exigency 
 of the writ, which went to the sheriff at common law, 
 directing him to return diberos K legales homines. If 
 they were made free, upon what principle could the 
 sheriff refuse to return them as freemen? ‘The mem- 
 bers of the corporation were created such by the char- 
 ter of the Crown ; they were acknowledged as such by 
 the legislature in the stat. 21. Hdw. !. which recognized 
 the case of corporations, in which different laws and 
 usages prevailed from those in counties ; because the 
 criterion of a man’s being free, in a county, was his 
 frank tenement, by which he was a fiber homo, and 
 the criterion in a town was his being a freeman by char- 
 ter, and therefore equally within the meaning of the des- 
 cription, liber homo, The Crown thought fit to make 
 men free by charter. The power of raising and enlarging 
 the condition of the subject, isan acknowledged prerog- 
 ative of the Crown. And therefore, my Lords, it appears 
 to me, considering the true principle and meaning of the 
 writ at common law, by which the sheriff is commanded 
 to return jurors, that the exigency of it is fulfilled by a 
 return of freeholders in counties aud freemen in cities ; 
 they equally answer the description of liber? homines— 
 one by tenure and the other by grant :—the value was 
 nothing in either case. This, my Lords, will go a great 
 length indeed to prejudge the question, that is, why it 
 was, that a frank tenement was not a necessary crite- 
 rion to qualify a juror in a town; although from the 
 authority of Lord Hate, I concede, that it was neces- 
 sary in counties, | 
 
 My Lords, if you consider, in addition to this, the 
 necessity of the case; that in towns there must be a 
 failure of justice, if frank tenements were necessary, it 
 is an irresistible argument to prove, that from time im- 
 memorial, the objection for want of freehold could be 
 no cause of challenge. The King, no doubt, frequently 
 gave lands to the body he incorporated. But such lands 
 formed the estate of the corporation, to whom it was 
 granted as an aggregate body ; but the freemen, who 
 lived within the precincts of the town, and who were 
 to try causes within the limits of. their jurisdiction, 
 had no freehold in the lands; they derived a share of 
 the profits, or some of them might become farmers of 
 
56 
 
 the estate ; but in that case they did not hold as frank. 
 tenants,—-but as tenants at will, or bailiffs of the core. 
 poration, and therefore, if ere were not.this distinc. 
 trou between cities and counties at large, there must 
 have been a total failure of justice in the former, | 
 The firse statute, which your Lordships will find in 
 the statute book, which tmposed a qualification of 
 value wpon jurors, with reference to the parties, whose. 
 éauses are to be tried, and not, as in the former sta-. 
 thtes, with igen to the jurors themselves, is the 2s. 
 Hen. 5. stat. 2.¢+ 8. which requires a qualification in. 
 value of the tenement, and confines itself to three cases. 
 anly, to which we bee leave to direct your attention, 
 Oo, Lit. 219, and in commenting upon this statute, ex- 
 pressly recognizes the three cases, to which it extends : 
 mt enacts, “ “that no person shall be admitted to pass in 
 ‘* any inquest upon trial ef the death of a man, nor in 
 “ any inquest betwixt party and party in plea real, nor 
 ‘© in plea personal, whereof the debt or the damage 
 «« declared amount to forty marks, if the same pers 
 s¢ have not lands, or tenements of the ye zarly einen 
 *« forty shillings above all chagges of the s same; so that 
 «¢ it be challenged by the party, that any such person. 
 $6 80 impanelled in the same cases hath not lands or 
 ¢¢ texements of the vearly value of forty shillings above 
 « the charges, as afore is said.” That statute it appears 
 was construed to extend to corporate cities or towns ; 
 consequently after that stat, of 2. fen, 5. but certainly 
 not before, it was considered to be a good cause of chat= 
 lenge, In cities and towns, In the three cases specified, 
 that a juror had nota freehold of the value of forty 
 strillings. But all other cases except those three, all 
 eriheiivala eases short of felony and in civil cases under 
 forty marks, stood exactly as they did at common law, 
 But, this statute having been construed to extend to 
 cities, which was productive of much inconvenience, 
 there not being a suthcient number of freeholders im 
 cities and towns to.try such causes, and the consequence 
 was a failure of justice in these inferior jurisdictions, ig 
 order to remedy this mischief, the stat. 23. Hen. 8. c. 
 13. was enacted in England, and it furnishes an almost 
 irresistible argument upon the present question. It re- 
 cites, ** that forasmuch as trials in murders and felo- 
 “ qies i cities, boroughs and towns corporate within. 
 
57 vr 
 
 #¢ this realm (having authority to proceed, &c.) had 
 * been oftentimes deferred and, delayed by reason of 
 *¢ challenge of such offenders, for lack of sufficiency 
 aii. freehold, to the great-hindrance of justice, there- 
 *¢ upon it is enacted, that every person and persons, 
 -** being the King’s natural subjects bora, which either 
 ‘¢ by the name “of citizen, or of a freeman, or any 
 “¢ other name, doth enjoy and use the liberties anu 
 “ privileges of any city, borough, or town corporate, 
 «¢ where he dwelleth, or maketh his abode, being worth 
 “in moveable goods and, substance to the clear value 
 “¢ of forty pounds, be admitted in trials of murders 
 “ and felonies, in every session and goal delivery to be 
 ‘¢ kept and holden in and for the liberty of such éities, 
 boroughs, and towns corporate, albeit they have no 
 «© freehold, any act, Statute, use, custom, or ordinance 
 ** to the contrary hereof notwithstanding.” 
 
 Therefore, your Loraships see, that in cases of mur- 
 der and felony, the legislature relieved cities and towns 
 corporate f from the grievance affecting public -justice, 
 which was oecasioned by construing the stat. of Hen. 
 5. to Becht to them, and this furnishes a perfect de- 
 ‘monstration, that by the common law the objection for 
 ‘want.of freehold would not lie in cities and towns. In 
 cases mot within that statute, that is, all cases short of 
 felony, and civil cases where the debt was under forty 
 ‘marks, the same failure of justice must have existed, if 
 the challenge for want of freehold were allowed, and 
 if that were the case, would the legislature, in the. reign 
 of Hen. 8. confine the remedy to cases of murder and 
 felony ouly, and omit to relieve public justice from the 
 embarrassment and delay that must necessarily have 
 _arisen, if the party were at liberty to challenge in all 
 other cases, not within the stat. Hen. 5. And therefore, 
 my Lords, this furnishes a decisive proof, that the qua- 
 lification of freehold was required in counties at large 
 only, and not in corporate towns, and that a public 
 mischief arose in the latter from the construction given 
 _to the stat. Hen, 5. (prior to which it must be admitted 
 -it did not exist) and the stat. of Hen. 8. enacted the 
 remedy. 
 
 Mr. Justice Oaponne. Is that statute enacted in this 
 country? 
 
 H 
 
OS 
 
 Mr. AtrorNEY Generar. No, my Lord, it is not? 
 a . bh * 
 is immaterial, . 
 
 but for the purpose of my argument, that 
 
 because the present is a’ case not within the statutes of 
 FFen.5. have grounded ‘my argument Wis tie qua- 
 lifications of a juror at the common law ; that in -coun- 
 ties at large, it was his condition, arising from his’ te- 
 nure ; and when the Crown made freemen, eo nomine. 
 in towns, it gave them by charter, that quality and con- 
 dition, which a freeholder in a county acquired’ by, his 
 tenure. Therefore, my Lords, | have arcued this case 
 upon the principles of the common law, upon the true 
 interpretation of the writ, upon the necessity of ‘the 
 case, shewing that there must be a failure of justice, if 
 the law as to frank tenement were the same in towns 
 as in counties at large ; and I have fortified my argu- 
 ment, by referring to ancient statutes, which recog- 
 nize the distinction, and which bas been recognized by 
 every subsequent statute upon the subject. My Lords, 
 if J rested there, I think, that I would have the opinion 
 of the Court with me, that the want of a frank-tene- 
 ment in a city is no cause of objéction to. jutom But 
 ‘I come now to an authority, in addition ‘to those p 
 ciples, which give weight ‘to the decision, for a case, 
 unsupported by principle, has little weight. But if we 
 find a decision of grave judges, upon a point directl: 
 before them, not altered or affected by subsequent 
 cisions, the Court will have every thing enabling them 
 to decide against that, which goes to delay justice and 
 
 work a failure of it, which would be the consequence » 
 
 if this challenge were admissible in cities and corporate 
 ‘towns. The case, to which 1 allude, is in Sir’ 7'homas 
 Raym. Rep, 484, the King a Higgins. It was decided 
 in Hil. 34. and 35. Car. 2. when Chief Justice Saun- 
 pers presided, and a greater legal authority never sat 
 in Westminster-Hall. It was a trial at bar, and was an 
 information in nature of a go warranto, exhibited 
 against Certain persons, being citizens of Worcester, 
 for exercising certain franchises within the city. There 
 
 ‘were several issues joined upon the record, and upon. 
 
 the trial at bar, the counsel for the defendants took’a 
 challenge to the polls, because the jurors had not any 
 frechold ‘within the city; and the Reporter states,— 
 ‘¢ this challenge was debated by all the four judges, 
 
 rin- 
 
‘© and it seemed to them all, that it Se ol no. ind 
 challenge, because the stat. 2. Hen. 5. ¢. 3. doth not 
 
 *‘ extend to this case, for that. is only in causes be-. 
 
 ‘¢ tween party and party, nor doth 35. Hen. 8. ¢. 6. 
 
 ‘* reach thereto, because that statute cannot extend to 
 
 ‘¢ cities and corporations, but to sheriffs of counties at 
 
 “¢ large; for if a pannel made in corporations mnst _ 
 “have freehold jurors, they must have likewise 
 
 ¢* six hundredors, which cannot be in any corporation 
 
 « in England, and so 27. £liz. c. 6. But the juror. 
 
 «* of corporations are to be at the common law, and 
 
 «* though it is said 3. Cro. 413. in Blunt's case, that 
 
 “* there ought to be some freeholders, that cannot be 
 
 *‘ intended in corporations, for in some corporations = 
 ¢¢ there are no freeholders at all, and so justice ould 
 “‘ fail; and by constant practice ip all trials at"Guzld- 
 6c hail, London, by Nist Prius, no such challenge was 
 <¢ ever made or allowed, and therefore it would be very 
 <¢ mischievous after so long a practice to the contrary ae 
 to admit the challenge: and yet nevertheless, be- 
 e counsel for the defendants were not well 
 “< satisfied with this resolution, [, was desired by the 
 «¢ other judges of the Court to know, the opinion of 
 «¢ the judges of the Court of Common Pleas, and I dis- 
 ‘6 coursed with them, and propounded the challenge 
 * tothem; and Pemberton, Chief Justice, Wyndham 
 «© and. Charleton (Levinz being absent propter egritu- 
 © dinem} did clearly concur “with os, and I returned — 
 ** their answer so ta the Court.” So that here, your 
 Lordships have the opinion of seven judges expressly 
 upon the very point, reported by one of those very 
 judges. 
 
 My Lords, after the revolution, the statute of W7il. 
 and Mary was enacted respecting the qualifications of 
 jurors. it, was stated in the Bill of Rights that mis- 
 chiefs arose in cases of treason from want of freehold- 
 ers, and it was enacted, that in cases of treason, ju- 
 rors should have a freehold of £10, per annum. But 
 there is an express exception of cities, boroughs and ° 
 towns corporate ; and in Laycr’s case, and Francia’s 
 case, which were subsequent to that statute, a challenge 
 was taken for want of freehold to. the value of £10. in 
 London, that challenge could be founded only on the 
 
60 
 
 Statute that lately passed, which was a popular one and 
 made in derogation of the conduct ef the former go- 
 vernment, and yet, clearly it could not be supported 
 as a challenge in London under the statute; the objec- 
 tion was not allowed as valid, but it appears, that 
 both parties agreed, that all the jurors should be free- 
 
 holders. Therefore there was no decision upon the 
 
 subject, and these cases cannot be considered as any 
 authority whatever, and if any thing were said in 
 favour of the challenge, it would be in direct opposi-- 
 tion to the statute, Ta 
 
 My Lords, there is nothing to decide this question 
 in our jury acts. But every statute upon the subject 
 of juries uniformly recognizes the distinction, founded 
 in law, necessity and reason, between the case of cor- 
 poration towns, and counties at large. 
 
 My Lords, if any thing shall be said on the other 
 
 side, which shall raise a doubt in the mind of the 
 Court, my colleagues will be ready to give a satisfac- 
 
 tory answer. But it appears to me, Papiect le’ cleat, 
 that the usage and practice that have prevailed, bave 
 
 been consonant to the principles of the commen law, 
 and not contrary to any statute; and that by over- | 
 
 ruling this plea, you will sustain the ancient practice 
 and usage, which are conformable to the law of thé 
 Jand. hd ty : Sea 
 
 Mr. Nortu. My Lords, with» my hmited experi- 
 ence, I cannot but feel considerably embarrassed, in 
 rising to reply to the great legal learning, and con- 
 summate ability of the ArroRNEY GENERAL ;—and 
 that embarrassment, I confess, is not a Jittle increased 
 by the preliminary observations, with which-he has 
 thought proper to introduce his argument. Jn answer 
 10 those observations, 1 may confidently affirm, for 
 myself, and for my colleagues, that we had not the 
 remotest intention, in the course which we. have 
 adopted, of ascribing to the ATTORNEY GENERAL 
 airy motives, which might seem to derogate from the 
 high character, and estimation, he so deservedly pos- 
 wesses with the public. We have deemed it, however, 
 in a great cause, Irke the present, affecting the best, 
 und dearest interests of the country, an indispensable 
 duty to satisfy the nation; that the proceedings in 
 every stage, have been conducted according to the 
 
 4 
 
61. 
 
 -strict principles of the law, and that as they are, [ 
 trust, free from taint, so they may be also exempt 
 from suspicion. 1 could wish, my Lords, that these 
 remarks might have been dispensed with. They would 
 have fallen, perhaps, with a more becoming grace, 
 from counse} senior to myself. Henceforward, how- 
 ever, I shall confine myself to the legal argument, 
 my better and more appropriate province. 
 
 My: Lords, the Arronney GENERAL has applied 
 himself chiefly to the second) plea; with this, there- 
 fore, I shall begin. The authorities requiring, that 
 grand jurors shall be freeholders are numerous and di- 
 rect. The first, I shall cite, is of the very highest 
 description, derived from those forms of the law, 
 which, it has been well observed, are the best indica- 
 tions of the law itself. The ancient precept to the 
 sheriff for summoning the grand jurors, requires that 
 they shall be men, ‘possessing a certain estate of free- 
 hold. Itis thus cited by Crompton, f. 212. a ‘* Ve- 
 *¢ nire factas vigintt quatuor liberos et legaules homines, 
 ‘¢ de quolibet hundredo mm ballivd tud quorum qualibet 
 “ habeat 40s. per ann. libert tenement: ad minus,” 
 and so on. ‘The ‘next authority, I shail submit to 
 your Lordships, is that of Sir MatrHEew Hare. This 
 great judge, and admirable writer, speaking of the 
 grand inquest, has the following passage, 2 P/. Cr. 
 155. “© Touching their annuus census, | do sot find 
 *¢ any thing determined, but freeholders they oughé to 
 *< be.” The stile and manner of this passage are wor 
 thy of attention. They show, that Lord Hare was 
 not writing from habitual knowledge, or general 
 impresstons—they imply, that he was peculiarly 
 alive to his subject—reviewine bis old opinions—_ 
 
 fixing a wavering and undetermined judgment—and = 
 
 applying the full resources of his powerful mind and — 
 of his ample information to a new and fina: investiga= 
 tion of the question. He enters into both branches of 
 his inquiry, and with his accustomed candour, ac- 
 quaints us, with the result of his researches in each. 
 On ‘the first head, he confesses, that his diligence 
 was disappointed—he could obtain no. satisfaction, 
 ‘‘ Touching their annuus census he could find no- 
 “thing determined.” Oo the other, bowever, he 
 could speak with perfect assurance, ‘* Freeholders 
 
62 
 
 ** they ought to be.” His diffidence and. caution, 
 where there 1s room for doubt, entitle him to our. en- 
 tire credit, when he delivers his opinion with confi- 
 dence. There is’one only authority in the law, which. 
 ean be put in competition with Lord Hare, and this. 
 authority is with me. ord Coxe 10 enumerating the. 
 challenges to jurors, ‘* propter defectum (Co. Litt. 156.. 
 5.) declares, one of them to be, ‘* propter defectum: 
 ‘+ annut census, 1. e. dibert tenementt.”. It may be re- 
 plied, to be sure, that this refers only to the petit! 
 yory; but that actually strengthens. the argument.) 
 If it has been thought proper to secure, by Jegal quae 
 Hifcations, the respectability of the petit jary, it is 
 fatural to expect, that these qualifications should be 
 required ina still higher degree forthe grand jury. 
 But, perbaps, the ArrorNEY GENERAL intended to 
 eoncede the general rule, and 10 rely aitogetber on 
 the exception which he has attempted to make out for 
 citres and towns corporate. The ArroRNEY GENERAL | 
 hus argued from authority. and reason; from a long 
 series of statutes, and a supposed obstruction of jus- 
 tice, if freeholders should be required in cities, To 
 begin with the statutes, they are all ancient. The 
 first is the 21st Ldw. 1. De 2s. gut ponend: sunt in 
 assists. “There 1s.a writ founded on itin the Register. 
 It requires an’ increase of property.in jurors, with a 
 saving, ‘© Ehat in cities, boroughs, and other towns 
 ‘© may be dane, as hath heretofore been accustomed 
 ‘to be done.” Thatis, that im cities, boroughs and 
 other towns, the old rate of property shall be observed, 
 and not the new. An-increased qualification was the 
 object of the enactment; . therefore, it must be the 
 subject matter of the exception, unless it shall, be con- 
 tended, that a proviso may save from the operation of 
 an enactment, what never was exposed to it, and take: 
 et of its limits that, which never fell: within ibvem: 
 ‘Ybis eseeption then respects only the quantum of, the 
 freehold, which is not increased in the towns, as it 
 was thought necessary tovraise it in. the counties. 
 And this was a very, vatural provision in the infancy of 
 commerce, when the cities, were. poorer, than the 
 country. The same answer is applicable to all the 
 other statutes, which the. Arrornry GENERAL has 
 qiwied. They ave all to the same effect. From time 
 
63 
 
 to ‘time, they increased the amount of property  re- 
 
 “quired in a juror, sometimes excepting, and some- 
 
 times not, jurors in cities and corporate towns. | As to 
 the ArrorNnry GENERAL’s argument, from a supposed 
 
 ‘obstruction of justice, if jurors in cities were required 
 
 to be freehoiders, he has furnished me with an answer 
 to it himself. He cites 2 Hen. v. c. 3. enacting, that 
 in particular cases there specified, jurors in cities shall 
 be freeholders, possessing property toa certain amount > 
 has the Jegislature then ordained an impossibility, and 
 
 ‘enacted an impediment to justice? Nor do_{ admit 
 
 the unfair influence, drawn by the Arrornrey Grenx- 
 RaL, from the statute, that this qualification for 
 jurors ‘was not required by the common law. He 
 should have observed, that this act was partly affirma- 
 tive, and partly remedial; so far as it requires, that 
 jurors shall he freeholders, it is declaratory of the 
 common law—so far as it makes necessary an increased 
 
 qualification of property it is remedial; in the same 
 
 way with so many statutes that went before and that 
 
 succeeded it. | 
 But, my Lords, the Arrornry GENERAL comes tu 
 
 -adjudged cases. He has cited with confidence tie 
 sease of the City of Worcester, and has endeavoured 
 “to raise its authority ‘by an eulogy of Chief Justice 
 
 SaunpErs. Surely, my Lords, it is not from the 
 name of Chief Justice SaunpERs that this case can 
 derive any additional weight. How did he come to 
 
 have a voice in this decision? What was his title to 
 
 pronounce an opinion upon this question? Wien this 
 
 “judgment was given, he was not yet firm in that seat, 
 
 which had been just left by a sound lawyer and an 
 upright judge ; Chief Justice PEMBERTON was removed 
 
 ‘from the King’s Bench, because he would not assent 
 
 to the illegal and unconstitutional’ measures medi- 
 
 tated on the trial of ALGERNON Sypney, and who was 
 the ready and convenient tool that was substituted m 
 
 his place? It was my Lord Chief Justice SaunpErs. 
 
 “His name, therefore was the last I should have ex- 
 “pected to hear relied upon in a question between the 
 ~crown and a subject. But why did not the Arrorngy 
 
 4GENERAL cite Lord Russert’s case? He would have 
 found the point ruled with him there also. These 
 4ases, my Lords, ‘were once the subject of very close 
 
64 
 
 examination. Sir Jomn Haw es, in his admirable re- 
 view of them (4 S¢. 7’r. 169.)* has refuted every prin- 
 ciple, on which they were determined. He has parti- 
 cularly noticed this pretence of an obstruction to jus- 
 tice In cities, if jurors were required to be freeholders, 
 He exposes the absurdity of the argument in the 
 Cities of London and Westminster, which had been 
 from the earliest times the residence of the greatest 
 landholders in the kingdom, and his reasoning, I 
 think, will lose nothing of its force, when it is apphed 
 to the present state and former history of the Irish me- 
 tropolis. But; my Lords, beyond vail this, the deter- 
 minations, in these cases, have been overruled yby 
 
 an express declaration of the legislature in the Bull of 
 Rights, and 7 W. 3. c.' 3. On this second plea, 
 
 therefore, I shall trouble your Lordships no farther, 
 My Lords, the Traverser’s first plea is, that the 
 
 grand jurors hold. offices of emolument, from which 
 
 they are removable at the pleasure of the crown and 
 therefore ‘‘ stand not indifferent,as they stand. un- 
 sworn.” The purity of grand juries has ever been an 
 object of high importance with the English law. A 
 
 very severe statute has been enacted for its security, 
 41 Hen. 4..c. 9. It has been protected by the solemm , 
 
 sanction of an oath, and the bigkest authorities of the 
 Jaw pronounce a perfect indifferency of mind, an i9- 
 
 dispensable quality of an indictor, ‘Lord Coke, 3° 
 
 Inst. 32. in treating of petit treason, takes occasion 
 
 to digress on the constitution and offices of the grand — 
 
 inquest, and has the following strong, and I think de- 
 cisive passage :—** All indictments, for any offence 
 “* whatsoever, ought by the common law of the realm 
 «to be by persons duly returned, and by lawful liege 
 “ people, indifferent, as they stand unsworn,’” In- 
 deed, from the reason of the thing, the integrity of a 
 grand jury reqnires stronger guards, and oreater secu- 
 rity, than that of a petit jury, ‘They hear but half 
 the evidence—there is nothing to counteract the first 
 unfavourable impression. Again, they are net the 
 final tribunal—-a man of infirm virtues yields to the 
 temptation of bemmg balf unjust; distiugmsbing be- 
 
 tween the indictment and conviction, he extenuates 
 
 * Vid. 9 Cob, St. Tr. 79°. 
 
65 
 
 his offence, by the consideration, that he decides not 
 upon the guilt, but the imputation; he consoles 
 himself with the expectation that another jury will in- 
 terfere betwixt the charges and its consequences, and 
 is bold enough to visit with the reproach, where 
 he dares not to visit with the crime. 
 
 Bat, my Lords, the ATrorNeY GENERAL attempts 
 to alarm and overawe us, by the indecorum and inde- 
 cency of supposing, that a subject can be corruptly 
 influenced by the King. A dazzling sophism, asplen- 
 did fallacy! True; the source of this influence is, 
 indeed, pure and uncontaminated. To presume it 
 otherwise is more than indecorous and indecent. It is 
 illegal, and unconstitutional. But the influence of the 
 Crown finds its way to the subject through many me- 
 diums. To him it is derived through a long and cor- 
 rupt channel, and it gathers in its course, the vices of 
 every soil, through which it flows :—Until the Sove- 
 reign’s authority, exerted, in the first instance, only 
 for the noble purposes of impartial justice, at length, 
 perhaps, becomes known to his subjects in the capri- 
 ces, the intemperance, the prejudices, and the pas- 
 sions of the meanest and most unworthy of his ser- 
 vants. re , 
 
 My Lords, the argument of the Arrorney GENEs 
 RAL operates in my mind, an effett directly the reverse 
 of that which it is intended to produce.’ As he extols 
 the dignity, as he heightens the attributes, as he en- 
 larges on the qualities, as he reveals the full splendor 
 of majesty, I grow more and more alarmed ; I tremble 
 for the integrity of the juror, and for the safety of my 
 client. Nor are my apprehensions diminished, when 
 he vilifies and degrades the character and situation. of 
 the Traverser. I confess, on. the contrary, my fears 
 increase, lest the accused should suffer from so unfa- 
 vourable a comparison, and be injured by. so painful a 
 contrast. I am only the more anxious to secure the 
 Grand Juror’s purity. In circumstances like these, his 
 Integrity should be fortified with walls of brass. | But 
 when you add to all this, a direct interest disturbing 
 the fair exercise of an impartial judgment :—Gratitude 
 for favors received, expectation of favors to come, 
 dependency of present fortune, and hope of future 
 
 I 
 
 ’ 
 & 
 
66 
 
 emolument; how can you expect, that they will not 
 totally warp the reason and obscure the candor of 
 the juror? Such a biassed juror will listen to no wit-. 
 nesses, but his hopes and his fears. ‘The pleasure of 
 the Crown will enforce, exaggerate, and amplify all 
 the evidence against the subject. ' 
 
 My Lords, if this important question is to be deci- 
 ded by the law of challenge, there is no doubt in 
 the books, that a challengé is good against a vadelet 
 of the King. The only question is, respecting the 
 form of the” challenge, whether it should be a pranct- 
 pal one, or to the favor only. Lord Coke inclining 
 to the first opinion, and Lord HALE to the last; but 
 this. cannot arise, upon the present occasion; your 
 Lordship’s having decided, that, in the case of a 
 Grand Juror, the ney is by plea in abatement, 
 and not by challenge | 
 
 But, my Lohda supposing, that the common law. 
 was against us ; that it was as strong with the ATTOR- 
 
 NEY- GENERAL, as we conceive it is y with us, yet there 
 is a positive statute, within the equity of; which the 
 case of my client comes: it is the 11. //en. 4. €. 9. 
 It provides for the purity of Grand Juries ; it recites, 
 that “ because of late, inquests’ were taken at West- 
 “ minster of persons named to the justices, without 
 “ due return of the sheriff, of which persons some 
 “ were outlawed before ‘the said justices of record, 
 “ and some fled to sanctuary for treason, and some 
 “ for felony, there to have refuge, by whous! as well 
 “ many offenders were indietedy as other lawful liege 
 “ people of the King, not guilt ‘'y, by conspiracy, 
 “ abetment, and false imagination of other persons, 
 “ for their special advantage and singular lucre, 
 “ against the course of the common law, used and 
 “ accustomed before this time.” It is enacted, that 
 indictments so made shail be held void. Thepersons 
 described in this statute are given, by the legislature, 
 as instances of jurors, who were not indifferent and 
 exemplifying the general rule, that no man shall be 
 returned upon the grand inquest, of whose impar- 
 tiality there is any suspicion. ‘Then, my Lords, are 
 
1 
 
 67 
 
 we not within the equity of this statute, when we 
 shew, that there is'a strong suspicion, attaching upon 
 these jurors; that they cannot be indifferent, being 
 
 the immediate servants of the prosecutor, and de- 
 
 pending upon him? The objection applies with. as 
 much force, as if the prosecutor had required, that 
 particular persons should be returned upon the jury: 
 the independence of the juror is gone, and he can- 
 not’ present as he is sworn to do, “ without fear, 
 “ favour, or affection.” 
 
 But, my Lords, we do not rést so much upon that 
 —we rather rest upon the common law, that the non- 
 indifference of the juror is a ¢round of objection in 
 all cases ; it is similar to the familiar instance, where 
 the juror stands in a ‘degree of consanguinity to the 
 party in the action, is his agent, or otherwise his ser- 
 vant, he is rejected at once. There can be no stronger 
 analogy to shew, that the cases are parallel. These 
 Grand Jurors who are named in the piea, are the ser- 
 vants of the Crown, at whose pleasure they exist ;— 
 
 ‘their hopes or their fears are kept playing before 
 them, and their capacity for impartial judgment is, 
 
 destroyed. 
 
 I shall not trouble your Lordships further upon the 
 general principles of the’ ancient common law, as I 
 have-stated them from the oldest and best authorities, 
 that it is necessary, that a Grand Juror should have a 
 
 freehold ; the amount in value has been she subject 
 of statute regulation upon different occasions, not 
 
 dispensing with, but recognizing the original com- 
 
 ‘mon law qualification. Again, my Lords, we rely, 
 “© that the Grand Juror should stand indifferent as he 
 
 “stands unsworn ;” which cannot be where he isa 
 
 dependant upon the Crown, holding by precarious 
 
 tenure. Therefore, my Lords, we submit, that both 
 pleas are supported, and I rely with confidence upon 
 the judgment of the Court. 
 
 Lord Chief Justice Downes, Extremely well ar- 
 gued indeed. In this case, the Counsel for the Crown 
 
 ‘are entitled to the last word, and therefore, if the 
 
 Counsel for the Traverser have any further arguments 
 
68. 
 
 to offer, they. will now v proceed. We call upon them 
 from an-adherence to the rule; not that we mean to 
 undervalue what we have just heard. 
 
 Mr. Gootp. My Lords, in rising to address the 
 Court upon a subject, at once, novel, difficult, and 
 interesting, it is impossible to conceal, that I feel 
 considerable emotions of embarrassment; an embar- 
 
 rassment, not diminished by the dazzling display of . 
 
 eloquence, which we have just witnessed from the 
 gentleman, who has preceded me. He has shewn to 
 the Court, to the Bar, and to the great body of the 
 
 “public, a rare exhibition of talent, an uncommon as- . 
 
 semblage of qualifications—he has displayed a vigour 
 of understanding, : ‘a justness and accuracy of thought 
 far beyond his years. I congratulate the young gen- 
 tleman, that he has overstepped the slow and painful 
 progressions, which are used to characterize forensic 
 success. He has prematurely burst into the full blaze 
 -of meridian day, and by the brilliancy and steadiness 
 of his light, has illuminated the cause and the coun- 
 try of which he is so distingnished a member.and 
 “Ornament. 
 
 My Lords, if I were counsel on the other ry Bl I 
 certainly should consider it my duty to caution even 
 this grave Court against the most powerful of all fas- 
 cinations ; the fascination of modest and unassuming 
 eenius. Lam confident, that it will be a consolation 
 ‘to the present generation to know, that in this once 
 kingdom, the rights of the subject are not likely to 
 suffer any serious or permanent infringement; when 
 the cause of freedom is seen to have for its advocates, 
 
 the zeal of virtue, and the splendor of genius; nor 
 can the citadel be said to be in much danger, when 
 the outworks ave guarded by such centinels as — 
 
 those. 
 
 My Lords, I never remember a case, SO. exceed- 
 ingly important and interesting as the present. It 
 cannot be forgotten, that the great majority of the 
 country feel themselves involved j in it; and whatever 
 may be the fate of this branch of it, thank God, the 
 main question on which so much depends, must be 
 
 eS 
 
69 
 
 ultimately determined by that tribunal, which at this 
 awful moment, cheers the friends of ‘freedom, and 
 appalls the friends of despotism; a tribunal within 
 whose entrenchments stand safe and secure the 
 menaced rights and liberties of our country. 
 
 My Lords, before J proceed to examine the argu- 
 ments of the ATTORNEY-GENERAL, I must observe, 
 that in putting in those pleas of abatement, motives 
 have been attributed to the Traverser, which do not 
 exist. They have been charged with wisinng to pro- 
 crastinate, unnecessarily, the decision of a great 
 question. My Lords, they are guiltless of suca a 
 
 charge. It was at my suggestion, ‘and by my advice, 
 that, on the first day of this terins the challenge to 
 the Grand Jury was taken. I avow, that I was one 
 of those, who advised the pleas in abatement; and 
 why? Because I thought it essential to the validity 
 of any judgment, which may hereafter be pronounced, 
 that every stage of the proceedings shou!d not only 
 be without taint, but should be above suspicion. Be- 
 cause | felt it to be of the last importance, that the 
 great body of the people should have no legitimate 
 grounds for disputing, or doubting the justice and 
 purity of those proceedings. It did strike me, that 
 ‘a Grand Jury, composed of placemen removeable at 
 pleasure, was not such a tribunal, as would satisfy 
 the public, in a cause so novel and interesting ; a 
 cause in which the administration of the day had (as 
 
 it were) preferred a. bill of indictment against a whole 
 _ people. I did feel, that the indictment, framed as 
 it is, should have been found by a pure and un- 
 influenced jury. Asa member of this great commu- 
 nity, interested in the preservation of its remaining 
 rights and privileges, I felt it to be of vital conse- 
 quence, that a charge (connected as it is, more or 
 Jess, with the subject's right of petition) should have 
 had, on its outset, the advantage of pure and unin- 
 fluenced discussiou.” If there be a responsibility in 
 that advice,,1 shrink not from it. The case will be 
 met, and ‘vill be met fairly and boldly ; and if any 
 man connect with the present. form of proceeding 
 
70 
 
 any principle of procrastination, or alarm, he mis-- 
 
 takes the character of a cause, which to be victorious, 
 requires only to be known. 
 
 My Lords, no objection has been taken to the fbr 
 of pleading ; the demurrer admits all the facts which 
 have been well pleaded, and prays the judgment of 
 the rie upon the ground of some insaflict ‘lency in 
 
 the plea. Your Lordships will feel, that I'am not 
 
 placed in such an advantageous position, as if I had 
 
 heard the arguments of the ATTORNEY General, I 
 
 Jost that advantage, by being called into the Common 
 
 Pleas during his argument. 
 
 My: Lords, I pray you to have in rebbliddelans that 
 you have already decided, that no challenge lies in 
 any case toa Grand Juror. It therefore foliows, tnat 
 whatever objections do lie toa Grand Juror, such ob- 
 jections can only be taken advantage of by plea in 
 
 abatement. Now I take it to be a settled rule of the 
 
 common flaw, that every juror, without any kind of 
 distinction, whether grand or petit, should be a free- 
 
 holder. If the Crown thought proper to avail itaelf 
 
 of any alleged exemption in “the particular case, the 
 Counsel for the Crown should have pleaded such ex- 
 emption ; they should, according to their argument, 
 have replied in this case the Charter of Dublin, to 
 shew the privilege, which is claimed, in derogation 
 of the common law; then we could have rejoined 
 and come to an issue upon it, or demur, so as that 
 the Court might be able,to pronounce judgment 
 Bpon the facts disclosed upon the record. But, by 
 the present mode of proceeding, your Lor dships are 
 
 -. deft completely in the dark, and: you are called upon: 
 
 to say, that in ¢hzs county, for it is a ‘county, no free- 
 holder is necessary, but that freemen are sufficient. 
 Does it appear by the record now, whether the juror 
 is a freeman? The'watter shoud have been pleaded 
 with proper averments. It should appear upon the 
 
 record, that the city of Dublin is a chartered corpo- é 
 
 ration, and that the jurors objected to are freemen, 
 and so pray judgment, But as the matter stands at 
 present, all that appears is, that two of the Grand 
 
 ea 
 
 My, 
 
- 
 
 oe? wert. 
 
 (ai 
 
 Jury of the County of the City of Dublin are not 
 freeholders, and for aught that appears are not free- 
 
 ‘men.. Have your Lordships any thing to shew you. 
 
 that this question can be decided, with satisfaction ? 
 Is it not quite obvious, that by allowing the demurrer, 
 you may suffer an indictment to stand, which may 
 have been found by men neither freeholders nor free- 
 
 men? I took achallenge to the favor, supported, as 
 
 I thought Iwas, by authority. I,do not complain of 
 the judgment, which was pronounced by the court. 
 But the Counsel for the Crown: were aware, that we 
 
 meant to avail ourselves of the objection by plea. 
 
 Then, why leave the court in this awkward predica- 
 ment, without its appearing upon the record, whether 
 the juror be a freeman, or freeholder? From what 
 appears by the record, are the court aware,, that this 
 is a corporation charter; they call it the City of 
 Dublin ? What the corporation is, whether it be com- 
 posed of Mayor, Aldermen and Freemen, or Bailiffs 
 and Burgesses, or what its constitution, does not — 
 appear. But, my Lords, supposing by way of 
 
 argument, that I am able to throw into doubt the 
 proposition of the ArrorNEY GENERAL, that .it is not 
 
 so clear, as he states it, ought not the benefit of 
 
 that doubt be given to that side, which has not en- 
 gendered the doubt, but which has stood upon the 
 well known and ordinary principles of the common 
 law? By disallowing the demurrer, or by allowing 
 liberty to withdraw it and to plead, the court will 
 do no more than give a fair opportunity of putting 
 such matter upon the record, and may iurnish sufh- 
 
 cient’ materials for a sound and satisfactory decision. 
 
 My Lords, I bave looked into the authorities on the 
 subject, and do feel that they preponderate to our 
 side of the question. When I speak of Lord Hate, 
 I mention a name, which is never heard by a lawyer, 
 but with respect and veneration; and if he excelled 
 in any department of the science, itis in that, which 
 
 ¢ . . . e- « 
 ‘is now under consideration. In no instance has bis 
 
 name been mentioned with less than absolute autho- 
 rity. The passage cited by Mr. Norru, I will beg 
 leave.to refer to, with some further observations. 
 "The effect of a judgment on the demurrer in favour of 
 
 ‘the ok al would be to quash the indictment altoge- 
 
 ther—although upon the record the objection is made 
 
 a a 
 Taher 
 
72 
 
 only to one out of twenty-three, yet if the objection 
 be valid, the whole proceeding is void, In page 167, 
 it is distinctly laid down, that af there be an excep- 
 tion to one of the grand jury, it vitiates the whole 
 array. Then see; what.he says, with regard to free- 
 hold—-writing expressly upon the subject, with the 
 common law and the statutes before him. ‘* Touch- 
 “¢ing their annuus census, 1 do not find any thing de-+ 
 “ termined, but frecholders they ought to be. The 
 “ stat. of 2 Hf. 5. cap. 3. that requires jurors that pass 
 ‘¢ upon the trial of a man’s life, to have 40s. per ann. 
 “‘ freehold, hath been the measure by which the-free- 
 «¢ hold of grand jurymen hath been measured in pre- 
 “¢ cepts of summons of sessions.” What is the mean- 
 ing of this expression ‘* hath been the measure ?” 
 He found no direction as to the, quantum of freehold, 
 and therefore he says, it has been the usage to regu- 
 late it by the, measure stated in the statute, and I 
 never can imagine, that Lord Hae would state a 
 freehold to be necessary, and that we should be told 
 here, it is not necessary... But if the authority of 
 Lord Hae wanted any proof from the opinion of more 
 modern judges, see what BLAcKsroNE says upon the 
 same subject, In 4 Com. 302.—he entertains. the 
 same opinion, and distinctly says that ‘* freeholders 
 *¢ they should be,” and the only. difficulty, or doubt 
 which existed has grown out of the amount of the 
 qualification, but not from the want of it altogether. 
 HAWKINS. states the: doubt of Hane, and carries it 
 still further, 2 dZawk. c. 25.s, 19, 21. He mentions 
 a doubt, whether freeholders were necessary—he was 
 a laborious compiler, and certainly entitled to very 
 great respect—upon looking into the cases cited by 
 him, we find one, where a challenge was taken, be- 
 cause the juror had only a freehold to.the amount of 
 15s. and it was over-ruled, because he was a free- 
 holder, \n 2 Rol. Abr. 648, |. 26. it is laid down, 
 that before the stat. of Hen. 5. any freehold was suf- 
 yficient, and so the case of Sir Chris, Blunt was ruled 
 accordingly. In 2 Z/ale 272. there is a note; to which 
 I beg to refer—the passage in the text is—‘* By the 
 «« statute of 2 J7. 5. cap. 3. no man is to be admitted 
 <* in any inquest upon the trial of the death of a man, 
 + unless he have lands of tenements of the value of 
 
3 
 
 40s. per ann. above all charge; if he be challenged.” 
 The note is, “ That is to say; in capital causes— 
 “‘ this statute was ifitroductive of a new law only 
 ** with respect to the quantum of the freehold, for by 
 ** the common law it was requisite, that a juror should 
 ** be a freeholder ; so that though this statute be re- 
 “* pealed by the general words of 1 & 2P.& M.c. 
 ** 10, a8 to treason, yet some freehold was still neces. 
 ** sary, and so it was allowed in Feézharris’s case by 
 *¢ Pemberton, C. J. 3 St. T’r. 263. notwithstanding, it 
 ‘© was ruled othérwisé in the case of Lord Aussell, by 
 ‘© the same judge, 3 St. Tr. 634, and in the case of 
 “ Colonel Sydney, ibid. p. 776. which last resolutions 
 ** were declared to be illegal by several acts of par- 
 ** Jiament.” 
 
 But, my Lords, supposing this privilege now claimed 
 for freemen of citiés to exist at common law, which 
 we deny, upon what part of the record does it ap- 
 
 ear? And if the record be defective, whose fault is 
 it? To entitle a man to an exemption, he is bound to 
 bring himself within the limits of it; not by surmises 
 and conjéctures, but by setting forth all the ‘circum- 
 stances, with proper averments, by means whereof 
 the court cati be enabled to pronounce a competent 
 adjudication. Therefore, in my judgment, there is 
 nothing, either in’ the common law, or in any statute, 
 . Which makes‘it nécessary for the court to take judicial 
 notice of the’ corporation of Dublin. There is such a 
 privilege with regard to the City of London, whose 
 customs may be certified by the Recorder, but that is 
 thé only corporation that [| know ‘of, which possessés 
 sucha privilege. It is said by the ArrorNey Gener. 
 RAL, thaf all that is requisite is, that the jurors should 
 bé liber?’ homines, and that those words mean’ free 
 holders in counties, and freemén’ in cities. If that 
 were the casé, nothing more would be necessary in the 
 writ, than the words Izber? homines ; but it goes on 
 to say, “having such a tenement,” and therefore, 
 all the precedents being uniformly of this description, 
 form in themselves no mean argument in favour of an 
 exception, and farnish if my judgment a tolerably 
 strong’ denial of thé Arrornry GENERAL’s définition 
 ‘of the words“ lider? hominesy’? in the writ. And 
 
 Ke 
 
74 
 
 taking the coutse of the common law—reviewing the 
 several statutes updn the subject—attending to the 
 observations, which have been made upon them—ob- 
 serving tbe uniform tenor and:«language of the writ; 
 the necessary corollary is this:=that to be a grand 
 juror he ought to be a freeholder. It is manifest, that. 
 this qualification is absolutely requisite in counties, 
 and the court is now called upow by this demurrer, and 
 by the magic.of the name of the City of Dublin, to 
 overturn the rules of the common law, and to grant 
 by way of surmise all the effect of privileges, which 
 are neither claimed, nor stated by this record, | 
 
 My Lords, if they’ bad replied with proper aver- 
 ments, the matter might be tried by a jury; but by 
 this demurrer, the facts in the plea are admitted, and 
 no new fact can now be introduced to contradict them. 
 
 My Lords, the challenge which was originally taken, 
 was, as I said, taken by me and I say, with sincerity, 
 that it was not my intention to throw upon the sacred 
 majesty of the Crown, any disrespect whatever. But 
 when Iam retained by the subject, who. confides his 
 Interests to my care, 1 cannot stand upon punctilious 
 ceremony :—it becomes my duty to assert the rights 
 of the subject even against the sacred character 
 of the Crown. I came prepared to support the chal- 
 lenge by authority, that if it was wrong, I could shew 
 my justification, and it is no small source of gratifica- 
 tion to me, that an eminent member .of this court, 
 much versed in every branch of the criminal law, has 
 differed from the majority of the court, and has given 
 it as his opinion, that a challenge will lie to a grand 
 juror. I shall now, my Lords, make a very few ob- 
 servations on the nature of the second objection relied 
 on by the plea. Mr. Serjeant Hawkins says, that a 
 eballenge to the favor ltes for the King,. 2 Hawk. 589, 
 but not against him, What is there, that exempts the 
 King from a challenge to the favor? As an, univer- 
 sal proposition, it is only necessary to state it, to exe 
 pose its absurdity-—~a proposition alone so sjavish, and 
 so unjust, could only have been engendered by bad 
 
 times; such a proposition, so broadly stated and_.- 
 without any qualification could owe its existence only” 
 
 to that subservient courtesy, by. which the ,gravdest 
 rights were sacrificed to the meanest expedients—such 
 
 ~ 
 
 a 
 
75 
 
 2 proposition flourished at a season when prerogative 
 was every thing, and the rights of the subject were 
 nothing. Sce what the reason assigned is—‘* because 
 “every one is bound by his allegiance to favour the 
 **’King more.” Then he goes on, ** But if no more 
 ** be meant by these books, than that such a challenge’ 
 ** is not good without shewing some actual partiality 
 *“in such sheriff or juror, or some particular cause, 
 “© in respect whereof the King may influence them, : 
 ‘¢ it seems not clearly settled how the King in this re- 
 *“spect hath a greater privilege than the subject, 
 © which yet it seems agreed, that he hath.” 2Hawkins 
 himself questions the reasonableness of the old notion, 
 and admits the validity of the objection, if particular 
 canse be shewn, by which the juror may be influenced. 
 Shall I then be charged with indecency to the Crown, 
 in calling for the judgment of the court, whether a 
 man shall be accused of a crime, of which, he not 
 only says, he is innocent, but contends for it that 
 there is not even ground for suspicion—am I not war- 
 ranted in demanding that so many Police Magistrates 
 shall not be impanneled upon the grand inquest, in a 
 case where the Crown prosecutes, by the Attorney 
 General, an obscure humble individual? Every branch 
 of the proceeding in such a cause should be omni 
 exceptione mmajor—that. whatever may be the fate of 
 it, it may be useful to the Crown—useful to the ac- 
 cused, and what is of infinitely more value—useful to 
 the great body of an agitated community. I did 
 think, that Hawkins w\s right in stating, that the sub- 
 ject was entitled to such a privilege. | am corrected, 
 and I bow to the opinion of the Court, with sincerity 
 and unfeigned respect. My Lords, I thought myself 
 further justified by the reasoning in Mr. Hargrave’s 
 note, in Co, Lzt. 158, note 5. Lord Coke says, in p. 
 156. a. ‘* Where the King is-party, one shall not 
 ‘“challenge the array for favor, &c. because in re- 
 ** spect of his allegiance, he ought to favor the King © 
 **more. But if the sheriff be a vadelet of the Crown, ‘ 
 «© or other menial servant of the King, there the chal- » 
 **Jenge is good.” Mr. Harcrave in bis note upon 
 tifis passage, says, ‘* Lord Coke having imme- 
 ‘“diately before expressed, that the array should not 
 ** be challenged for favor against the King, be must - 
 ‘© be here understood to be considered being a vadelet, 
 
 nlm 
 
 an 
 
76 
 
 <¢ or other menial servant of the Crown, as a principal 
 *¢ challenge to the array, for otherwise he would be 
 se inconsistent unless, indeed he is supposed, in the 
 << first instance, to state a general rule, and in the se- 
 *< cond an exception to it, which, as his words are, 
 « would be a strained construction.’ ? 
 
 With regard to Hampden’ s case, in which such achal-. 
 lenge was rover-tuled, it is only necessary. to direct the: 
 attention of the court to the dialogue between Ch. 
 J. JEFFERIES and Mr. Wit.iaMs. The latter was. a 
 great lawyer, and he took this very objection, that 
 one of the jury had an office in the forest. How then. 
 stands the argument—you, my. Lords, have. decided” 
 that uo challenge can in any case lie to a grand juror. 
 The purest member of society may be indicted upon 
 the oaths of a grand jury, against whom might be 
 produced reasons of conviction for perjury. The 
 subject has no remedy but by plea—and it. is vow con. 
 tended for that no freehold is. necessary, and that, in 
 a case where nothing appears upon the record to en= 
 title the Crown to any exemption or. relaxation, of; the 
 ordinary requisites of the common Jaw—and also, it is, 
 contended, that although the. juror be the servant of 
 the Crow n, or favorable to the Crown, yet it lies not. 
 in the mouth of a subject to make an objection, which. 
 it is alleged, is as illegal as it-is indecorous,. 
 
 My Lords, with, regard to the parties, themselves—». 
 the times in which we live—the country we, inhabit, 
 require more than ordinary circumspection in. these - 
 proceedings. It is my decided opinion, that the Tra- 
 versers, in what they have. done (I mean with reference, 
 to the charge against them) are not only. right in, point 
 of law, but that it was their duty to see, that in. this. 
 great prosecution, which, is. carried. on, avowedly. by, 
 the ATTORNEY GENERAL, at the instance of the Crown. 
 against a subject, and in which seven-eighths of the. 
 Injsh people feel interested, should be examined, by- 
 grand jurors, against whom there. lay. neither local 
 nor moral objection ; and I foresee that if the demurrer ” 
 be disallowed, there. will, not: be found in. the City, of: 
 Dublin, a grand | jury, who upon examining and cross 
 examining ‘the Witnesses for the prosecution, could be 
 of opinion as. the indictment .now stands, that my: 
 client.should even be put upon his.trial. 
 
 Adjournede. 
 
‘ee 
 1 
 
 Tuesday, 12th November, 1811. 
 
 Mr. Burne. My Lords, before Mr. Townsena 
 goes on, I think it right to inform your Lordships, 
 that Mr. Perrin, in the course of his researches yes- 
 terday evening, has discovered an act of parliament, 
 which may illustrate the subject, if your Lordships 
 will please to hear him. 
 
 Lord Chief Justice Downes. Yt was understood, 
 that the Counsel for the Traversers had closed their 
 argument, and that the Counsel for the Crown are 
 now to reply ; yet we will not refuse to hear the Gen- 
 tleman, if he has any authority, or act of parliament 
 to mention, as bearing upon the question. 
 
 Mr. Perrin. My Lords, I bave met with an act 
 of parliament, which appears to me applicable to the 
 present question: It is 23 and 24 G. $3. ¢. 52.8. 47. 
 It is entitled, ‘¢ An act for better regulating the police 
 of Waterford,” and the 47. s. recites, that it had beens: 
 found ‘! that a sufficient number of freeholders can- 
 “¢ not be easily had in said city, qualified to act as Ju- 
 ** rors, &c.” ‘and that there were a number of wealthy 
 citizens, who had not freeholds; and it enaets, that 
 want of freehold shall not be a legal or sufficient chal- 
 lenge ; this peculiar exemption, in favour of the city’ 
 of Waterford, shews, that in every part of the coun- 
 try, freehold is a necessary qualification of a Juror, 
 and-consequently, was.so in Waterford, prior to this 
 act. 
 
 _ Mr. Justice Day. That statute applies only to cases 
 between party and party, and not to criminal cases. 
 
 Mr. M‘Nariy. There is a still stronger act rela- 
 tive to the town of Galway, 4 G, 1. c. 15. s. 1 and 2. 
 by which it is enacted, that the sheriffs of the towm of 
 Galway mav issue their summonses to any Protestant’ 
 Srecholder, having forty shillings a-year in the county 
 
 of Galway ta attend. and serve on any grand, or petie 
 
 jury, for the trial of issues depending in said town of 
 Galway, in any piea of the Crown, whether capital’ 
 or not, &c, The stat. 12 G. lec. 4. 8s, 16, requires: 
 the sheriffs to veturn the grand pannel to the quarter 
 sessions, coniaiuing ihe names of all the freeholders, 
 haying frechold lands-of the value of forty shillings by’ 
 
 ahh 
 “ 
 
78 
 
 the year. This is a proof that the legislature consi- 
 dered freeholders as the only qualified Jurors, 
 
 Mr. Townsenp. My Lords, in this case, I am con- 
 cerned on behalf of the crown, and it is my duty, if I 
 ean, in reply to the arguments which have been ad- 
 vanced on the other side, to satisfy your Lordships; 
 that the demurrer should be allowed. TI shall take na- 
 tice of the acts of parliament, which are now referred 
 to, in the course of my argument. But, my Lords, 
 before | enter into a discussion of the general question, 
 it may be necessary to take notice of some objections, 
 which have been made, though not much relied upon,, 
 us preliminary to the enquiry into the main question. 
 ft was asked, why do you demur, and not put for- 
 ward upon the record some fact, upon which an issue; 
 might be joined, and a jury impannelled, and it was 
 intimated, beyond insinuation, that there was a hard-). 
 ship put upon the defendant by this mode of pro- 
 ceeding. But, My Lords, it is new to me, that a 
 party, defendant, should wish for.a jury, where there: 
 is nothing but a point of law to be decided. It is: 
 quite new, to hear it said, that it is a hardship to ad-° 
 mit the facts, which have been stated by the defen. 
 dant himself, and to refer it to the court, whether: 
 upon, his own statement, he is entitled to judgment. 
 It is asserted, on the other side, that we should have. 
 averred, that the Grand Jurors objected to, were free-: 
 men of ‘the city; that we should_have brought in the: 
 charter of the city of Dublin, aud averred it in plead- 
 ing, otherwise the court cannot take notice of it. This 
 case has been contrasted with the city of Londox, with 
 respect to which the courts are bound to notice the. 
 custams, which are certified by the Recorder, and the 
 argument is, that there being no such custom in Duds 
 din, your Lordships cannot take notice, that you are 
 sitting in the citv of Dublin. But, My Lords, there. 
 are puinerous statutes, which recognize the city of 
 Dublin, as a corporation. If the Gentlemen on the 
 other side had examined, they would find, that this: 
 court Is sitting at this moment, as a court of gaol de-- 
 livery, within the city of Mudblin: For, my Lords, © 
 the distinction is, that where a record is removed into 
 this court, from: a county ditferent from that in which 
 the court sits, the court is then considered as sitting, 
 
9 
 
 by virtue of its high judicial authority, superintending 
 all other inferior courts; whose records are removed 
 by certiorari into this court; but as to the county, in 
 which the court sits, in the city of Dublin, it is a 
 court of general gaol delivery, superseding all others, 
 except so far as any recent local statutes have autho- 
 rized others to sit. With respect to all other counties, 
 there must be fifteen days between the téste and re- 
 turn of the jury process. But in the county in which 
 the court sits, it awards the return of a jury mnstanéer, 
 as all courts of gaol delivery do; your Lordships have 
 judicial notice, that the Grand Jury of the city of 
 Dublin was sworn before yourselves: The caption of 
 the-indictment, to which these pleas are filed, shews, 
 that it was found by a Grand Jury of the cety, and the 
 defendant, in the present instance, has pleaded to it, 
 as an indictment fownd in the city; and yet, it is now 
 ‘contended, that you are not to know, that you are now 
 sitting in the city’of Dublin, and that we should pro- 
 duce the charters of the city. My Lords, we rely 
 upon the general law of the Jand, which requires cer- 
 tain qualifications for Jurors, and among others, re- 
 quires freeholds of a certain valuc, upon particular oc- 
 casions; bat at_the same time, making exceptions in 
 cases, where there might be a delay, or failure of jus- 
 ‘tice, if the qualifications, previously required, were 
 essential :-~As in the case of cities and towns corpo- 
 rate, where_freeholders could not be had; not that it 
 is a privilege of the inhabitants of a city, which Dudliz 
 is, to sit upon atrial; fer no man claims the privilege 
 of being upona jury. But we allege, that the excep- 
 ‘tion is wisely placed by the law upon its own ordi- 
 Nance, to prevent its extending to those cases, to 
 which if it did extend, it would be productive of mis- 
 ‘chief. — 
 
 My Lords, it is said, that we ought to shew the 
 persons named in the plea to be freemen: that ob- 
 servation might have weight, if it were necessary for 
 us to plead the yualification, which we do not. The 
 other side allege matter of. disqualification, to which 
 we do not think it necessary to reply, by stating new 
 matter, or denying what is pleaded: our demurrer ad- 
 mits what is stated, and if there were any other mat- 
 ter necessary to support the objection of the other 
 
80 
 
 side, it should be pleaded. Every man ig to be pre- 
 sumed a probus & legalis homo until the contrary ap- 
 pears; until his disqualification is pointed out; if it 
 were necessary to shew, that the Grand Jurors objected 
 to were not freemen, then the counsel for the defen- 
 dant have urged only half an objection, for by their 
 plea, they w ould rely, that they were neither freemen 
 nor freeholders, and if their averment be incomplete, 
 the demurrer ought to be allowed: that demurrer relies 
 upon the imperfection of the plea; and it is not ne- 
 ‘eessary for us to-render their pleading more perfect, 
 Suppose it to be necessary that the Grand Juror should 
 be either freeholder, or freeman. They should have 
 averred that he was not either. one or the other. With 
 ‘regard to the latter, the plea is silent, and no autho- 
 -Fity bas been referred to: therefore it is not necessary 
 to enlarge upon that topic. With regard to the qua~ 
 Hification of freehold, it is very much at large. As to 
 the acts of parliament which have been cited this day, 
 the only inference from them is, that at the time they 
 passed, thev were necessary, that there were ‘aiselitele 
 éxisting, which ought to be remedied, and which were 
 ‘remedied accordingly by the statutes in question: 
 
 I conceive, that will follow, distinctly, from the 
 nets cited by the ArrorNry GENERAL; every one knows 
 that by the 10 Len. 7, commonly called Poyning”s s act, 
 English statutes, then in force, were by a sweeping 
 elause, made law in Jreland, but the statutes passed 
 in Hngland, subsequent to_ that period, are not of 
 force here. We were told, and it is not denied, that 
 the stat. 2 Hen. 5. requires In capital cases, and in 
 personal actions, above forty marks, that the Jurors 
 should have freeholds of a certain annual eenses. That 
 statute was enacted prior to Poyning’s law and there- 
 fore became the law of Jreland.. So far as it re- 
 lates to. certain descriptions of cases, it is repealed in 
 fugland; but is not. repealed here. By the 23 Hen. 
 8, the former, statute.is repealed 1 in England, so far as. 
 it repected capital cases; but. that latter act of Hen. 
 8. being subsequent to Poyning’s act, does not extend 
 to this country, ip which no similar act has been pass- 
 ed; and therefore, my Lords, it must be admitted, 
 that the statute of Hen. 5. (which, gave rise to'the ne- 
 eessity of enacting the other statutes mentioned to thé 
 
81 
 
 Court, remains in force in Zreland. ‘These latter sta- 
 tutes are cited to shew what the common law was; but 
 if it can be shewn, that these statutes were necessary, 
 independent of the common law, they fail to afford the 
 inference desired. ; 
 
 My Lords, this case has been argued upon principle 
 and upon authority. The latter consisted chiefly of 
 inferences drawn from the terms, and penning of ,acts 
 of parliament, and the former was founded upon the 
 whole analogy of the law. ‘There was also an autho- 
 rity mainly relied upon by the other side ; it was an 
 argument derived from the terms of the writ of sum- 
 mons of the sessions of the peace, cited from Cromp- 
 ton’s Justice. With regard to that, it is sufficient to 
 observe, that it-does not carry the inference of the 
 necessity of freehold further than we admit it: it ex- 
 tends only to counties at Jarge; for it appears from the 
 very passage, which was quoted, that a certain num- 
 ber of Aundredors were required to be returned ; but 
 there are no hundredors in counties of cities or towns : 
 and in the case of the King a. Higgins, this was held 
 to be a sufficient argument for restraining the opera- 
 tion of an act of parliament concerning jurors to coun. 
 ties at large, for whom it made a certain number of 
 hundredors necessary upon the pannel. It could not 
 be intended to apply to those divisions of the country, 
 in which hundredors do not exist, and indeed the in- 
 ference is so plain, that it is not necessary to cite an 
 authority in support of it. 
 
 But the authority of Lord Hate has been resorted 
 to, on the other side. His words are general. Speak- 
 ing of Grand Jurors, he says, ‘* freeholders they 
 *© ought to be ;”’ and it is observable, that all the pas- 
 sages, which have been referred to, are.in general 
 terms. My Lords, we do not mean to dispute the ge- 
 neral proposition; we admit the truth of it; but we 
 say, that there exists an exception, which reason and 
 sense suggest, and which is not denied in any 
 book. 
 
 Text writers, like Hate, when commenting upon 
 the common law, or acts of parliament, lay down their 
 propositions and rules in general terms, without direct- 
 ing their attention to the exceptions applicable to 
 
 he 
 
82. 
 
 them ; and.when it Is necéssarytoo ascertain, whether 
 there. be an, exception. of pot, one-precise authority. i in) 
 supportoof, it, will have more weight with the mnder+ 
 standings, shat a@ bundred,, general expressions, which: 
 take no notice of a particular exception, and therefore: 
 do not exclude it... If, it were riecessary to shew, that 
 there may.be,an exception, ‘consistent wath: Lord. Hatie’s 
 general proposition, itis to be shewn from; Lord HaLe 
 himself; because he refers to that very. writ, of; sume 
 . 
 mons,, which! bas been relied upon by, the other. side, 
 and when he argues upon that, and it appears.to relate 
 to counties at large only, it furnishés | some laid, .to; the 
 _mind, and demonstrates, that his.attention was directed 
 to. the case of, jurors returned for counties at large, and 
 that he.did, not then advert to the excepted case of 
 Cities and towns, | 
 My-Lords, in arguing. this question, it is imypossible 
 to overlook. the circumstances, that. in some borough 
 towns, there might, be but one freeholder, and injmany - 
 of those towns, they mast be confined to a very small 
 number indeed. In every criminal court. within thém, 
 it is necessary to havea considerable number of jurors); 
 and it is plain, that it would destroy. the, administration 
 of justice, if it were necessary, that such jurors should 
 be frecholders. To this argument it has been replied, 
 that the stat. 2, Hen, 5. isa legislative recognition of 
 the contrary :, for that)it.enacts, without any exception 
 in fayour.of.cities or boroegh, towns, that. no jurot 
 shonld-be iD PAPAGHe’ who ‘had not.a freehold of a 
 certain amount, and therefore the legislature supposed, 
 that there did, exist a. sufficient number of: freeholders, 
 competent.to supply the jury. d.think, it ismone na- 
 tural to presume, that, in the framing of thatjact, the 
 exception was. forgotten; that, the attention, of the le- 
 gislature, wasturned, to. particular mischiefs, aud in 
 guarding against those, mischiets, they used,.general 
 words, whieb w ere thought sufficient, to prevent a re- 
 currence of the evils. ‘But experience, soon -preved, 
 that, whether the omission of the exception arose from 
 inadvertence or. design, it Was an unwise omission, and 
 becanie productive, of such serious consequences, that 
 in the succeeding reign of Zen. 8. it was found, peces- 
 sury to alter the ‘act, with regard to\criminad eases. . As 
 to civel cases, it was less necessary, because, with re- 
 
83 
 
 _ spect? to them, the stat. of “Hen. 5. extended: only to 
 
 trials of freehold, or of property above ‘the value of 
 forty ‘marks, in’ which cases-a great proportion ‘of the 
 borough ‘courts ‘had no jurisdiction. But thevoalh had 
 criminal jurisdictions, and when courts of Oyer and 
 “Ferminer and gaol delivery, are held in ‘small towns, 
 it is'manifest, that if freehold were an essential quallt- 
 fication of jurors, the administration ‘of criminal jus- 
 tice must be materially delayed and impeded. The 
 omission of the exception out of the stat. /7en. 5. 
 might have arisen from inadvertence, but the provision 
 in Hen. 8. could not ; because it refers ta the very case 
 and provides for it expreSsly. 
 
 My Lords, there was something like an argument 
 touched upon, as if the necessity of jurors being free- 
 holders arose from the rule, that aman should be tried 
 by his Peers. That principle cannot extend to any 
 vase! but treason or felony ; for to this hour, if a woble- 
 inan were to be tried for a misdemeanor, he would be 
 tried by a jury of Commoners. ‘The’ community is 
 divided into two classes; noblemen, who are to be 
 tried by nobles, in cases of treason or’ felony, and 
 commoners, who are to be tried by commoners. But 
 there is no subdivision; and it never has been held, 
 that one inhabitant'is not the peer of another, because 
 he had not a freehold, and that sach inhabitant could 
 not legally sit upon the trial of the other. The case of 
 Sir Christopher Blunt, Cro. Eliz. 413, has been cited 
 by the other side. My Lords, that was an information 
 upon an enlrusion: two challenges were taken to ju- 
 rors: the first was for insufficiency of freehold, and it 
 ‘was disallowed; the second was for want of freehold, 
 tand it washeld good. The reporter has not informed 
 ‘us, where the question arose ; whether in a county at 
 large, or a city, or town corporate. We should there- 
 fore be left to mere conjecture, and to infer that it was 
 more probable that the lands of the Crewn, which were 
 intruded upon, lay in a county at large, remote frem 
 atown. But Higgins’s case in Sir Thomas Raymond 
 determines this question; for Blunt's is referred to in 
 this manner ; * and though it is sa'd in Blunt’s case, that 
 * there ought to be some freeholders ;” (which I take 
 to be a mistake in the print;, it should be some free- 
 hold )—*‘* that cannot be intended in corporations, for 
 
se 
 
 ‘< ip some corporations, there are no freeholders at all, 
 “© and so justice would fail.””. Therefore, when they 
 made ‘that observation, the Court must have known, 
 that Blunt's case could not have been a corporation 
 case, and it is as much as if they had said, “* Blunts 
 <‘ case was ina county at Jarge; not in a corporation, 
 ‘¢ and therefore does not apply to the present case, 
 «¢ that of Worcester, which is a corporation case.” 
 
 My Lords, there is a case in the books, which is par- — 
 ticularly applicable to the observation, that this Court 
 will not. take notice of the charter of Dublin; but it 
 also applies to other parts of this subject: It was 
 doubted, whether the act of parliament, which men- 
 tions towns corporate, extended to towns, which were — 
 - counties in themselves, and a case is cited, so early as 
 the Year Books. .It was the case of an attaint, which 
 was a proceeding, not in the nature of an indictment, 
 but was an action by an individual, alleging, that a 
 false verdict was given against him. A writ issued out 
 of the Oficina Brevium, returnable into the Court, 
 where the original record was, aud he there proceed - 
 ed against the jury as defendants, who were to be 
 tried by a jury of twenty-four; and there being two 
 juries; one was called, the Grand /ury, aud the 
 other, was called, the Petit: Jury. Com. Dig. Tit. 
 Aittaint. The year book is 12 #d. 4. 13. a: It was 
 an attaint in\the city of Fork., One of the Grand 
 Jury was challenged, for that be could not expend 
 twenty pounds per annum, according to the stat.: 15. 
 Hien. 6. c. 5. it was answered, that the statute has the 
 exception of cities and towns corporate, as all the’ 
 jury statutes bave, except the 2. Hen. 5. It was there 
 contended, that that that exception means cities which 
 are not counties in themselves, but by advice of all 
 the justices, the challenge was not allowed, for the sta- 
 tute is general, and did not extend to cities and. bo- 
 roughs. The effect of the objection was, .that the sta~ 
 tute meant cities, which are not counties in themselves, 
 such as Cashel and Armagh, in this country ; but, the 
 decision has established, that the exception extends to 
 cities which are counties, as fully as it does to the smal- 
 lest towns corporate, and when we come to consider 
 
835. 
 
 the reasonableness of the rule, which is contended for ; 
 when we consider, that cities and boroughs. were con« 
 stituted at a time when there were few, or no frees 
 holders, it is impossible to con@ive that it should be 
 “otherwise. ‘There must be twenty three freeholders 
 on the Grand Jury, and twelve upon the Petit Jury. 
 Lpon the latter pannel there should be a sufficient num- 
 ber returned to leave room for thirty five peremptory 
 challenges by the prisoner at common law, and an 
 indefinite number of challenges: by the Crown. ° Se 
 that there must be seventy {reeholders, at: least, and 
 consequently, there would be a total failure of justice in 
 every city or town corporate, in which a criminal court 
 sat. . nui 
 Now, my Lords, !ct us see, for a moment, the 
 mode of proceeding in summoning members to Parlia- 
 ment. The form of the writ directed the sheriff what 
 he was to do. .It required the sheriffs of counties 
 to return two knights, girt with swords, which meant 
 persons who were seized, zn capife, of a certain por- 
 tion of Jand—a knight’s fee is well known, and thir- 
 teen kuights’ fees made a Baron's fee ; so that the dis- 
 tinction depended. upon territorial possession, and none 
 should be returned, but knights girt with swords, as . 
 persons of consideration. From the cities or boroughs, 
 landholders were not required, but two citizens trom 
 the cities, and two burgesses from the boroughs, | Is it 
 to be conceived, that where the territorial possession 
 of freehold was not required, in order to forma part of 
 the legislative body of the country—not because terri- 
 torial property was undervalued, but. because it could 
 not be had,—yet that the common law, which is not 
 founded upon positive institutions, but has grown out 
 of,.and been moulded upon reason and necessity, 
 should require, that trials for misdemeanours, or even 
 of cases of life and death, in places where the inha- 
 bitants are made wealthy by trade, should be had before 
 none but freeboldbers.. A freeholder is the natural and 
 proper juror of a county at large—he is an inhabitant 
 of that division of the country, 1n which alone consi- 
 derable landed property is-to be found, But can such 
 a qualification be required in that district, in which it 
 does not exist ? 
 
86 
 
 _ My Lords, I wish, as much as possible, to avoid 
 repetition—and not to travel, again, over the ancient 
 acts of parliament, or the ground which has ‘been 
 gone over by the Atfornry GryERAL, insuch a man- 
 ner, as to leave nothing unsaid, But, my Lords, 
 _there have been some observations made upon that 
 most important case of the King a. Higgins, which it 
 is necessary to meet, not only from their owa nature, 
 but fram the respect, which every man, who heard 
 them, must entertain for the gentleman from whom 
 they came, and the weight they derive from the ta- 
 lents, with which they were enforced. My Lords, it 
 was observed, that a case between the Crown and the 
 snbject can derive little authority from the name of 
 Chaef Justice SAsunpERs—that he was a man, whose 
 subserviency was so well understood by the Crown, 
 that PemMBERTON, who was Chief Justice of the King’s 
 Bench, and who upon the trial of Lord Russexz, de- 
 clined certain compliances, which were expected, 
 was removed to the Common Pleas, in order to make 
 way for SAUNDERS, preparatory to the trial of AreER- 
 NON Sipney. I thought, at the time, that there was 
 an error in the statement, but I was so impressed with 
 the eloquence of the learned gentleman, that I would 
 not venture to suggest my doubt—but determined to 
 satisfy myself by inquiry. I have accordingly exa- 
 mined the different contemporaneous reporters. Your 
 Lordships know, that some older reporters indulge in 
 a minute detail of the promotions and removals of the 
 judges. I found a memorandum in Sir Thos. R : 
 4718, Hilary Term, 34 and 35 Car. 2. The date’ of 
 the reign of Charles Il. was calculated from the deca- 
 pitationof his father, which was the 30th of January, 
 1748, near the middle of Hilary Term, and therefore 
 it is stiled, Hil. Term, 34 and 35, Car. 2. “* Memo- 
 “ yandum, the first day of this Term, Edmond Saun- 
 ‘* ders, Esq. of the Aliddle Temple, appeared at the 
 ‘© Chancery Bur, toa writ tested in the vacation to 
 * command him to take the state and degree of a 
 ‘¢ Serjeant at Law, and was then sworn, and immedi- 
 ‘¢ ately went from thence into the Common Pleas 
 ‘* Treasury, and there, in the presence of all the 
 * judges, except Levinz, who was sick, made his 
 ‘“ count, aid had his coif put on, and went to the 
 
a7 
 
 *¢ Common Pleas bar, and, made some motions, till 
 “the Lord Keeper came into the court of King’s 
 «““ Bench, and then he was sent for to the bar, and 
 “‘ when he was there placed, the Lord Keeper made a 
 _ very excellent speech to him, and then he came 
 ‘S into the court, his writ for Chief Justice was read, and 
 ‘* haying takeu the oaths of obedience and supremacy, 
 “ and oath of Chief Justice, he was placed Chief 
 “< Justice of the said court, in the room of Sir Francis 
 ‘* Pemberion, who was the day before sworn Chief 
 << Justice of the Common Pleas, at Ais own. desire, 
 *¢ for that it is a place (though not so honourable) 
 ‘* yet of more ease and plenty, as the Lord Keeper 
 ‘* said in his speech to Saunders.” 
 
 » It may be said, that PemBerton could not avoid 
 retiring from the King’s Bench to the Common Pleas ; 
 but the dates will shew, that the insinuation cannot be 
 maittained, and that Saunders had no connexion with 
 the trial, either of Lord Russexx, or Colonel Sipwry. 
 Lord RussExu was tried by special commission at the 
 Old Bailey, on the 13th July, 35 Car. 2. several 
 months after SaunpEeRS had been appointed Chief 
 Justice of the King’s Bench, and after PEMBERTON 
 had been appointed Chief Justice of the Common fleas, 
 and therefore his.removal to the latter court could not 
 have been on account of his conduct upon Lord Rus- 
 SELL’S trial. Saunpers did not report any case later 
 than the 24 Car. 2. He was appointed Chief Justice, 
 in Hil. 34 and 35, Car. 2. and the trial of Srpnry 
 took place in the November following. SAauNDERS was 
 either dead, or removed before that time, for it ap- 
 pears that. Jerrerres was the Chief Justice who pre- 
 sided, The trial was at the bar of the Azngs Bench, 
 on the 2ist of November, 35 Car. 2. and therefore, 
 whatever happened upon that trial, which has been 
 the subject of censure, belongs exclusively to that 
 man, whose decisions will not be cited as authority in 
 a court of justice, ina case between the Crown and 
 the subject :—I mean Jerruris ; and cannot be im- 
 puted to the other, who was highly respectable for 
 his learning and talents, as a- lawyer, and whose name 
 stands high in judicial authority. His reports are es- 
 teemed as the best and most accurate of bis day. He 
 was of delicate health at the time of his promotipn, 
 
ahs 
 
 and it is probable, that he died in a short time after.* 
 If he were removed, the inference, sought to be 
 drawn, turns the Grebe ay, aud that he was removed, 
 because he would not comply with the desires of the 
 Court, So that the case of the King a. Miggins, 
 stands above all impeachment ; it conveys the opinion 
 ef two courts upon the very point, and it is of as 
 much authority as any case that was not carried to 
 Parliament can possibly be. The same case is re- 
 ported in Skin. 105, 106. where a motion was made in 
 arrest of judgment, and the court refused to permit 
 the counsel to argue, whether want of freehold be a 
 challenge to the polls, having by the opinion of the 
 court, and likewise of: the Justices of the Common 
 Pleas over-ruled it upon the trial.f) From there 
 being a motion in arrest of judgment, the objection 
 must have appeared upon the record, and the case 
 might bave gone to Parliament by writ of ey a if the 
 parties had been so advised. 
 
 Mr. Justice Day. Could the party have a writ of 
 error in a criminal case ? 
 
 Mr. TownsEeND. Yes, my Lord, by consent of the 
 Crown. In a ‘capital case, the ‘consent is discre~ 
 tionary, and has been refused for political reasons 3 
 but in musdemeanors, the subject-can have it, ex debito 
 justiie, upon a petition which the King cannot re- 
 fuse. 
 
 My Lords, the other exception taken is in the: na- 
 ture of a principal challenge, or a challenge to the 
 favor ; and for the purpose of my areument, it is not 
 shistetial which it is; because we contend, that in 
 either view, it cannot be allowed. If it be a princi- 
 pal challenge, it IS against reason and precedent is 
 and if it be a chalienve to the favor, it cannot pre- 
 vail in the case of the King—that there cannot be a 
 challenge in the King’s saue besides the passage, in 
 which it bas been laid down by Lord Hour, as great 
 and constitutional a judge, as hh presided in any 
 court—in Parkyn’s case, 4 St. Tr. 633, T bee to res 
 
 * 19th June, 35 Cure 2. Ch. J. Saunpers died. 2S! ower, 308. See 
 alsu the note in Cofbet?s Fd, St Tr. 9th vol, p, 580 where several inac- 
 curacies of Mr. Ss jeant Runanagion, and Sir John Df mole, respecting 
 these vhauges, ure corrected. 
 
 4 And-see 2 Show. 257. , 
 
89 - 
 
 fer your Lordships to a case in 21: Vin. Abr. 272. 
 Tit. Trial, Tottersol’s case, in which it was ruled, 
 that there can be no challenge for favor, where the 
 King is a party. Lord Coxe gives in his usual way, 
 a quaint reason for this:—that it is the duty of every 
 man to favour the Crown. But this is not true, in the © 
 sense in which it is used ; it is the duty of every man 
 to honour the King—but not to favour the King 
 against justice. But the true reason is given ina note 
 of Mr. Hargrave, which I observed trembling under 
 the finger of mv friend, Mr. Gooip, and which he 
 did not read. Co. Lit. 156. a. note 4. §* That from 
 ‘¢ the extensive variety of the King’s connexions with 
 ‘‘his subjects, through tenures and offices, if favor 
 ** to him was to prevail, as an exception to a juror, 
 «© it might lead to an infinitude of objection, and: so 
 “¢ operate as a serious obstruction to justice in suits in 
 *¢ which he is a party.” If therefore, objections, 
 which are admitted in ordinary cases, were admitted 
 in the case of the King, it would make the adminis- 
 tration of justice absolutely impossible. My Lords, 
 see the effect it would have in challenges to the array: 
 there could not be a trial in any county at large in 
 which the sheriff returned the jury. The sheriffs of 
 every county in Jreland, and I believe in every county 
 in England, except twa, are appointed by the Crown— 
 they are removable at pleasure, and are by their of-. 
 fices entitled to fees and emoluments. In some places, 
 they are offices of considerable profit, in some they 
 may not—but in point of law, they are all entitled to 
 fees: there may, therefore, be a challenge to the 
 array in every crown case, unless where the writ goes 
 to the Coroner! which was never heard of, for the 
 return of a Grand Jury. 
 
 It has been compared to the case, in the books, of 
 the King’s valet, or menial servant. I can scarcely be- 
 lieve, that the learned gentleman, who made the com- 
 parison was serious. Can it be thought, that any com- 
 parison will hold between the King’s menial servant, 
 and those, who are acting in the service, and for the 
 benefit of the state? All tbe justices; sheriffs, magis- 
 “trates of every description, they hold their offices dur- 
 ‘ing the pleasure of the Crown; but they must be con- 
 
 sidered to be above the temptation, or the petty in- 
 M ? 3 
 
fiuence, that could arise from such their situation. We 
 are told, that the mind is biassed and influenced. No 
 doubt, the mind is subject to many impressions; and 
 we must lament, that however a tribatal be Consti- 
 tated, the accused must be tried by -men of frailty. 
 But give tne leave to ask, would the chance of a fair 
 trial be éencreased, by excluding those from the jury, 
 who are selected for their talents, their integrity and 
 character, to assist in the conducting ‘of the pute 
 business? If it would, it would be a Serious injury 
 indeed; and in many places, it would be the duty of 
 the Crown, in appointing to offices, previously to en- 
 quire, whether the appointment might not be an in- 
 jury to the administration of justice in those places. » 
 My Lords, this is not the first time in which an ob. 
 jection of this kind ‘has been taken; but it is the first 
 tinie, in which it has been persevered in. A gentle- 
 men of fortune, now living in Zyeland, Mr. idles, 
 was tried in the year 1794, at the bar of this court, 
 upon an information for a libel; a challenge was taken 
 to a gentleman called upon the Jay, as holding a place 
 under the Crown. The AtrorNEy Generar of that 
 day, Mr. Wo.re, afterwards presided in this court, 
 and was created’ Lord KitwarpDEN ; a man, whom [ 
 will not hesitate te compare with any other, for ho- 
 nour, integrity and constitutional spirit; whose last 
 ‘wortls ‘set the’ seal‘to his character, and will make him 
 be remembered by posterity as a genuine supporter of 
 the laws of his‘country. My Lord, he started up with 
 indignation and astonishmént, at the notion of such a 
 challenge ; he insisted upon the illegality of the oeb- 
 jection, and observed, that it went against all that was 
 honorable and respectable § ii the Jahd, and it was over- 
 ruled by the Court. I believe your Lordship was at 
 that time on the bench. Perhaps, the warmth of 
 the moment induced Lord KILWARDEN to express 
 himself too largely; the objection did not militate 
 against adl, that was honourable, but it did against 
 a large proportion of honourable and worthy men ; 
 and, whatever may be thought by some, let any 
 aman look round ‘through the country, or that portion 
 of the community, with which he is acquainted, and 
 say, whether he does not see among those who sare 
 
Ol 
 
 now engaged in the, public service, many indiyi- 
 duals of great respectability and honour, and as fit 
 to discharge the duties of grand jurors, ‘and to ASSiSt 
 in the administration of justice, as any others who 
 could be named. 
 
 My Lords, the ATTORNEY GENERAL of that day 
 would not have opposed the challenge, if it were 
 admissible, nor would the Court haye over-ruled it. 
 I believe I have stated it correctly from the printed 
 report. 
 
 Lord Chief Justice Downes. I have a perfect 
 recollection of the facts of that case, as you have 
 stated them. 
 
 Mr. Townsend. My Lords, having dispdsed of 
 the law of the case, at least to the best of my power, 
 it is fit, that I should take notice of one or two ob- 
 servations, which fell from the other side, during 
 the argument. It was stated, that this was a case 
 interesting in the highest dégreé to five-sixths, or 
 even more of his “Majesty’s subjects ; that 
 the feelings of the people are erigaged, and the 
 result is looked for with anxiety, from the re- 
 motest corners of the island. My Lords, it may 
 be interesting to some, and the anxious wish of 
 others, that the indictments which have been feund, 
 should not be tried. But further than that, what 
 interest have his Majesty’s subjects ?—No other than 
 this, to have that done, which the Court will do, 
 whether it be of public interest, or not; that the 
 law shall be settled, and that this case shall be 
 decided according to it, | 
 
 But as to the public interest, the public has been 
 looking on for five hundred years, at grand juries 
 returned in the same manner, as the present, without 
 ? a single man objecting to the mode, or express- 
 ing a wish, that there should be aay alteration, --- 
 There is no man desires to see such an ancient 
 system, and established usage departed from, though 
 some endeavour to torture “the present into an ir- 
 regularity ; no man desires, that the most respect- 
 
92 
 
 able citizens should be excluded he ‘the ‘grand 
 jury ; those citizens, who have raised themselves. 
 by their talents ‘and industry, and have qualified 
 themselves by experience, to discharge the duties 
 of juries; is there any man who wishes to see such 
 men displaced, and to have them succeeded by il. 
 literate persons occupying small farms round the. 
 city! Will any man wish to have such a_prac- 
 tice adopted in this city? Is it not more fit and, 
 consistent with the nature and constitution of the 
 city we inhabit, that the grand jury should be 
 composed of its wealthy and intelligent aldermen 
 and merchants? Would any man. desire that those 
 should be overlooked, and that the sheriffs should 
 search through the suburbs for freeholders, having 
 forty shillings by the. year? If there . be 
 any such man, I cannot agree with him, and no 
 good man will agree with him. Shall it be. said, 
 that the man who. is competent to transact the com- 
 plicated business of mercantile concerns, and whose — 
 habits have qualified him for the discharge of pub- 
 lie duties, shall be excluded ? ‘The possession of a 
 freehold is one thing, the possession of wealth, 
 character, and credit, is another. . Out of which 
 class would any man wish. to have’ the grand - “jury 
 chosen ! if from the former, 1 envy him not us 
 choice. 
 
 Mr. Nortu. My Lords, I do not rise to nigks 
 any further observations upon the question before 
 the. Court, but merely to justify, from authority, 
 the impression which yesterday I conveyed to oF 
 Court respecting. Chief Justice SAUNDERS. | 
 
 Lord Chief Justice Downes. 1 should be sorry, 
 if we sat here to try the reputation of Chief Justice 
 SAUNDERS, 
 
 Mr. Burne. My Lords, Mr. Nortn’s authority 
 was taken from North’s life of Lord Guzldford. . 
 
 Mr. Townsenpd. My Lo.-ds, I am_ perfectly satis- 
 fied, that the distinguished gentleman, who made 
 the observations upon Chief Justice Saunprrs, -did 
 
 \ 
 
93 ‘ 7 
 riot mention ‘them, without thinking himself justi- 
 fied by authority. So far as Norti’s life of Gudld- 
 ford was authority, he was supported in the obser- 
 vations. But I have founded my reply upon the 
 best sources; the printed reports of the Virtied tie 
 dates of the trials, compared with the changes upon 
 the bench. I was anxious to shew, that Rasibe had 
 not been done to the memory of SAUNDERS, 
 
 Adjourned. 
 
 Saturday, 16th November, 1811. 
 The Court pronounced Judgment. 
 
 _ Lord Chief Justice Downes. In this case, there 
 have been two pleas in abatement to an indictment 
 for a misdemeanor, to which pleas the ATTorNeEy ~ 
 GENERAL has demurred. ‘Tlie first plea is, that some 
 of the grand jurors therein tamed, are not free- 
 holders of the county of the city.of Dublin; and 
 the second. plea is, that some of the grand jurors 
 hold offices under the. Crown, from arene they 
 are removeable at the. will and pleasure of the 
 Crown. . On the part of the prosecutor. it is con- 
 ‘tended, that neither the one plea nor the other, 
 forms a valid objection to the indictment, or war- 
 rants the Court to say, that the defendant ought 
 not to be tried upon it. : 
 
 It is contended, with respect to the first plea, which 
 objects the want of freehold, that other qualifica-— 
 tions, in a city or town corporate, where this ob- 
 jection is made, are sufficient, for instance, that 
 of being a freeman. For the traverser, it 1s con- 
 tended, that supposing freehold not a necessary 
 . qualification, but that it is sufficient that the juror 
 should be a freeman or citizen, such fact does not . 
 appear; that the A1TORNEY GENERAL ought to have 
 replied, and to have shewn such a. qualification by 
 the city charters, from which it shou'd appear, that 
 the juror was sufficiently qualified, although he had 
 not a freehold, and that. we cannot otherwise see 
 
O04, 
 
 that the indictment was found in a city, exempt from 
 the general law applicable to counties at large; as 
 to this preliminary objection, it is impossible to sub- 
 mit to it fora moment. The Court must take notice 
 in what place they sit; and the indictment, by the 
 caption, shews, that it is taken in the city of Dub- 
 lin; the pannel of this jury was returned in the 
 presence of the Court, by the sheriffs of the city,. 
 But if we could give way to this preliminary objec- 
 tion, and~ hold, that we cannot take notice of the 
 place where Etie indictment. is found, we must al- 
 jow the demurrer to this plea, because the plea 
 objects the want of freehold in the County of the 
 City of Dublin, Ke. and therefore, unless a freehold 
 
 in that city bea necessary qualification for a grand © 
 
 juror every where, we must, if we cannot take notice 
 where the indictment is found, hold the plea bad. 
 
 The plea itself supplies an answer to the objection, 
 which is, that the juror has not a freehold i the 
 county of the city of Dublin, Such an objection 
 could not be. relied upon, for a moment, any where, 
 but in the county, in which the indictment was 
 found; it would be ridiculous to object for want 
 of frechotd in any other place, and therefore, the 
 plea itself is conclusive of the fact, as to the 
 place in which the indictment was found. 
 
 It is then objected, that if there be other quali- 
 fications, independent of freehold, by which a juror 
 may be legally impannelled, these ought to appear. 
 That objection, in my mind, is as weak as the 
 other. When a party pleads in abatement of an in- 
 dictment, a particular matter of disqualification in 
 the grand jury; he admits the truth and exist- 
 ence of all other qualifications, which he does not 
 deny. He rests upon the single objection, which he 
 assions, and in doing so, the Court is left to pre- 
 sume, that there is no other; it might as well be 
 contended, that the Court should expect, that the 
 ATTORNEY GENERAL should aver, that the grand 
 jiiror was not a minor, but of full age; that he was 
 
Se 
 . 
 not an alien, but a natural born subject, and so 
 of every other qualification for serving on a grand 
 jury. Therefore, as to these preliminary objections, 
 which have been urged on the part of the defendant, 
 in my apprehension, they are not of the slightest 
 weight. : | 
 
 The principal question then is, ‘* whether in a city, | 
 ‘¢ where an indictment for a misdemeanor has been 
 “¢ found, freehold in land, be an essential qualification 
 <¢ in agrand juror.” There is little to be found in the 
 books relative to grand jurors distinctly. But the ques- 
 tion has been argued on both sides with analogy to the 
 qualifications :of petit jurors, and as they are to ¢ry and 
 the grand juror only to accuse, it seems to be treating 
 the subject fairly on the part of the crown, to enquire 
 whether in a petit jury circumstanced as the present 
 jurors are, they would be qualified to serve. It is ad- 
 mitted, that in counties at large, the jurors must -be 
 freeholders, and that every where, they must be d:derz 
 et legales homines. This latter quality, it is contended 
 for, on the part of the crown, is communicated by the 
 king’s charter, to ‘members of corporations, who are 
 thereby made equally competent to be impannelled om 
 juries, as inhabitants of counties at large are, by reason 
 ef their freehoids; and it iscontended, that necessity 
 gives rise to such qualifications to prevent a failure of 
 justice in districts so small as some corporate towns are, 
 and the necessity of such qualifications and its sufficien- 
 cy without possessing any freehold, is argued for, by 
 inferences drawn from statutes, from ‘reference to law 
 writers, and decided authority. 
 
 On the cther side, general principles are insisted 
 on, one uniform qualification of jurors, (namely free- 
 hold) is maintained, the inferences drawn from the 
 statutes are denied, and the authority of one decided 
 case, which bas been much relied upon by the coun- 
 sel for the Crown, is questioned. ‘ : 
 
 It is to be lamented, that there is a want of perfect 
 precision in the text writers upon this subject; we 
 should expect something from Coke, Hale and Hawk- 
 tns, to set the question at rest, and shew, with preci- 
 sion, whether the admitted necessity, in general, of 
 
96 
 
 the qualification of being a freeholder, was at com- 
 mon Jaw universal, applicable to both Grand and 
 Petit Juries, and as well to cities and corporate towns, 
 as it is acknowledged to be in counties at large. 
 
 But this Bichon, so desirable, will not be found 
 in any of those writers. In 2 Hale, 155, it is said, 
 that the Grand Jurors must be prod: & legales homi- 
 nes, and therefore, if any one of the indictors. be 
 outlawel; though in a personal action, itis a suffi- 
 cient plea to avoid the indictment.” Then | he 
 says, “ touching their annual census, I do not find 
 “ any obtng determined, but freeholders they ought 
 MLB se Rd Ole Aw! w Cs aber Bott! HALE speaks generally, 
 in this passage. He is treating of counties at large, 
 not adverting to cities or boroughs. His words are 
 general, but cannot be said to be absolutely exclusive 
 of all exceptions of cities or boroughs, concerning 
 which, he was not speaking; and if “there be other 
 evidence of the law, sufficient to satisfy the mind, 
 that there is an exception to the rule, Zale’s testi- 
 mony does not contradict it. In 2. ZZawk, c, 25.8. 19 
 p. 308, he says, * I do not find it any where holden, 
 that none but freeholders ought to. be returned on 
 *€ a Grand Jury. But how far the law is in this res-,- 
 “ pect altered by, Statute, shall be shewn in the twen- 
 “ ty-first section.” He then states two statutes, which 
 have been relied on in argument here ; the 13. Hdw, 
 L, Meshns 2c: 38,.and 21. £dw, J, Des rus, ue ponendt 
 sunt tn assisis. The first of these enacts, ‘* that none 
 ** shall be put on juries or assizes, though they ought 
 ** to be taken in their proper county, whi have fess 
 Kf tenements, than to the value. of twenty shillings 
 “ yearly.” . The second statute is upon the same sub- 
 ject, and to remedy the same erievance ; the opprés- 
 sion of the poor by sheriffs in favour of the rich! 
 This statute prohibits the sberiff to put in ¢ any recog- 
 nizance that shall pass out of the county, those Who 
 have not lands and tenements of the yearly valne or 
 100 sinllings at least, and within the county, none 
 shall be impannelled who have less than 40 shillings, 
 But when recognizances, assizes, and inquests -pass 
 
 . 
 
97 
 
 upon any matter touching cities, boroughs and 
 towns it shall be done like as tt hath been ac- 
 customed. From that exception, Hawkins infers, that 
 neither by common law, nor by these statutes was 
 there any necessity, that petit jurors should be free- 
 holders in cities, and from thence he infers, that it is 
 probable, that there was no greater nécessity, that 
 Grand Jurors should be freeholders. 
 
 But it is said, that the inference which has been 
 drawn from the early statutes of Edward, by the coun- 
 sel forthe Crown, and by Hawkins, is not a fair one— 
 that these statutes only required a qualification from 
 County Jurors in point of value of freehold, and have 
 not thought fit to require the same as to czfies or towns 
 corporate, but it is insisted on, that in both, jurors 
 must be freeholders, and that the only consequence of 
 those statutes was, that in counties, the freehold must 
 be to acertain amount. But that in cities, there must 
 a freehold, but no value is necessary. The inference 
 drawn by Hawkins, if it rested merely upon the cir- 
 cumstance of value of qualification, would not carry 
 perfect satifaction with it. ‘Those statutes certainly 
 insist On certain value of freehold in counties, not with 
 a view to the parties, but to relieve the poorer classes 
 of jurors from grievances which they suffered. Possibly 
 the same mischief did not exist in the corporate towns, 
 so as to call for a similar remedy, for none is given of 
 any kind, and non constgt, that Parliament, if they 
 deemed) it necessary, would not have made the same 
 regulations, as to jurors of cities, or some other reme- 
 dy analogous to their situations. But the inference 
 drawn by Hawkins does not rest on the exception of 
 jurors in cities from the same value of qualifications, as 
 those in counties, but from the saving of the rights 
 of corporations ** it shall be done as hath. been accus- 
 tomed”—shewing, that those towns possessed usages, 
 with regard to juries, with which the legisture did not 
 intend to interfere. 
 
 The’ next statute argued on is the 2. Hen. 5.¢. 3. 
 and this-is the first statute which enables the party pro- 
 secuted, or the party in am action, to object to the want 
 of freehold, or insufficiency of freehold in ajuror. It 
 enacts, that.no person’shall be permitted to pass in any 
 in any inquest wpon ae of the death of a man, nor 
 
98 
 
 “ in any inquest between party and party, &e, if the 
 “ same person have not lands or tenements of the 
 “ yearly value. of forty shillings above all charges 
 * of the same,” &c. —so that | it be challenged “by 
 the party, &c. Now, that statute has no exception 
 of cities or towns; the mischiefs which it intended to 
 remedy, were recited to be general, “ mischiefs and 
 disherisons through all the realm of England ;” and 
 therefore, ‘although cities and towns were not ex- 
 pressly mentioned, it was held to extend to them. 
 But, ‘clearly, it does\aibe extend to the offence: of 
 Pinsdamreaate! which remained after that statute, tri- 
 able as at common law. ‘The provision of this sta- 
 tute was found inconvenient, for want of a sufficient 
 number of freeholders, qualified mpi this statute, 
 and the 23d” of TZen.’ 8th, ch. was enacced ; 
 
 it recites, that trials in dined, ie felonies, in 
 cities, boroughs, and towns corporate, had been 
 oftentimes dclayed by reason of challenge for lack 
 of sufficiency of freehold ; and ibe enacts, “shat every 
 _ person, who either by the. name of. cilzzen,..or of .a 
 Jreeman, or any other name, doth enjoy and use. the 
 liberties and privileges of any city, borough, or town 
 corporate, beittg worth in moveable goods to the value 
 of forty pounds, be admitted in trials sof murders: and 
 felonies, albert they have no freehold; &c, It is ob- 
 servable upon this statute, that misdemeanor is not 
 mentioned in ‘it,’ or in the statuteof Henry V. And 
 yet, if misdemeanors were triable at common law, by 
 freeholders only, the same inconvenience must habe 
 
 arisen ‘from’ the paucity of freeholders, as in cases 
 of: murder and felony; and it is not very ‘easy, 
 on a supposition, that freeholders were necessary at 
 common law, to give a reason that could induce the 
 legislature to sufier persons who were-not freeholders, 
 
 to sit upon trials for murder,,and other felonies, and’ 
 
 leave it still necessary, that none but freeholders 
 could be impannelled in cases of. misdemeanor.—- 
 
 This statute furnishes a very strong inference, that, at 
 least in the casé of misdemeanors,. there was no ne- 
 cessity, by. the common law, that jurors should »be 
 fréeholders; because,. if tote had been such a-ne- 
 cessity, the legislature would. have extended the re- 
 
99 
 
 medy to them, and made them triable by freemen, 
 having a qualification in goods, as was done in 
 the cases of murder aud felonies; and that inference 
 arising from the: statute, furnishes a strong support, 
 if any were wanting, to the case of the King, versus 
 Higgins, in Sir T. Raymond. - | 
 It plainly appears, from an examination of all the 
 statutes, relative to juries, that every general act, 
 on the qualification of jurors (except that of Jen. 
 fifth, afterwards repealed in this respect) has an ex- 
 press saving for cities and towns Corporate, in various 
 phrases; in one, the expression is, 2 shall be-done 
 as was accustomed; in another, they shall return | 
 such persons as they have been accustomed todo; and 
 in another act, saving their ancient usage of returning 
 juries. All whiali anew: that there was an ancient 
 usage in cities and towns corporate, difierent from 
 the course of returning juries in counties at large, 
 and ‘it was not- thought expedient by the  par- 
 liament to put them upon the same footing. No 
 inference arises from any of those acts, that any of- 
 fence, below felony, which the present is, was ever 
 by law, or custom, required to be tried by freehold- 
 ers in counties of cities, as in counties at large. 
 ~~ Where the parliament has, in different ages, placed 
 a value upon the freehold, which should qualify per- 
 sons in counties at Jarge, and have from time to 
 time increased that value from twenty shillings to 
 ten pounds; in all these instances, it saves the 
 usages of those towns, and no-qualification in land 
 is, in any instance, required ; except by the statute 
 of fTen. 5. which in this respect has been repealed. 
 The néxt instance in which any reference is made 
 in any act to their qualifications, is in the statute of 
 the 23d Hen. 8. which enables them to try. mur- 
 ders and felonies, with a qualification’ of personal 
 property only. All this demonstrating, that however 
 the case may have been, as to murders, and other 
 felonies, before that statute, and under the act of 
 Hen. 5th, no referrence was ever had to their being 
 possessors of freehold property, at any period, as a 
 qualification, for the trial of minor oftcnces, ! 
 
Live 
 
 With these observations, on! the provisions made 
 by the different statutes, and ‘especially, observing, 
 that if freehold property ever was the qualification 
 foy a juror in towns corporate, that the statute of 
 Hen. 8th left misdemeanors triable, as at common 
 law, and of course, in-so singular a way, that misde. 
 meanors must be tried by Frecholders, while a per- 
 sonal property was made a qualification for the trial 
 of murders, which can scarcely have been possible 
 to have been done by the legislature. With ‘these 
 observations, I say, I shall now read the case of the 
 King and Higgins, from Sir T. Raymond's Reports. 
 
 [Here the Chief Justice read that case, and then 
 proceeded.) 
 
 T have compared the acts referred to in that case, 
 and examined all the statutes upon the subject of 
 juysies, from. the first in our books, down to the time 
 of that. decision, and I think it impossible to draw, 
 an inference from any of them, contrary to the opi- 
 nion of the Court in that case; and I think, the 
 Court, in that case,. was clearly. supported in the 
 opinion it gave, that misdemeanors were then tri- 
 able by juries, at common law, in corporations, and, 
 that. there is no evidence on the books, of their evar 
 being tried by JSrecholders in cities and towns cor- 
 porate; and I can readily believe, what is there as- 
 serted, that by constant practice, in all the trials 
 at Guildhall, London, by Nisi. Prius, no such. chal- 
 lenge was ever made or allowed; and thus, it would 
 would have been mischievous, after so long prac- | 
 tice to the contrary, to admit that challenge. - 
 
 This case, then, confined to its proper subject, 
 misdemeanors, seems so far to be, in itself, liable to 
 no objection ;-——-and it.is met by no. contrary au- 
 thority; and it is not. proved erroneous by any rea- 
 soning. An ill use was, indeed, made of this case, 
 en the trial of Lord, Russell. He was tried for high 
 treason, and took this challenge, and the counsel 
 for the Crown urged the case of the King and Hig- 
 gins, as an authority for over-ruling the challenge. 
 
iQ] 
 
 But whatever was wrong in the proceedings against 
 Lord Aussel, cannot fairly be attributed to the in- 
 fluence of this case, or of Saunders, who was Chief 
 Justice when it was decided. He did not sit upon 
 Lord Russell's trial. | : 
 The case of the Azng against LZiggins, does not 
 touch at all upon trials for. treason, or divers, whe 
 ther or not the jurors in such cases must be free- 
 holders: but the generality of the expressions when 
 he observes on B/unt’s case, gave to the counsel 
 for the Crown, on the trial of Aussell, the oppor- 
 tunity of making an unfair use of it; for, in Hg 
 gims’s case, the Court said, that. though it is said 
 in Blunt's case, that there ought to be some free- 
 hold, that can not be in corporations, &c.’ Now, 
 Blunt's case was a misdemeanour, and did not arise 
 within a corporate town, but was in a county at large, 
 (as may be plainly inferred from the words of the 
 Court, in discussing /ggins’s case), and therefore 
 Saunders does not deny its “puthority. 
 The present case is one arising within a city-— 
 
 so was the case of, Higgins, and therefore, when 
 Chief Justice Saunders says, that though in Blunt's 
 case it was held, that the jurors ought to have some 
  freebolds, that cannot be intended of corporations, 
 for in some corporations there are no freeholders at 
 all, and so justice would fail; he does not controvert 
 the doctrine in Blunt's case, which was in a county’ 
 at large, but explains the meaning of the casé and 
 shews, that it does not apply to the case, then before 
 the Court; because the obyection, that there should - 
 be fregholds, applies to counties at large, but could’ 
 not be intended to apply to corporations : and there~’ 
 fore it appears, that the observations in Higgins’s ease 
 were meant to apply to the case of corporations only, 
 and not at all to counteract the doctrine of Blunts 
 case, that the jurors to try misdemeanors in counties 
 at large, must be freeholders : and if the decision of 
 SAUNDERS had been treated fairly and properly on 
 Lord RussELW’s trial, it would have received the same 
 answer, which he gave in Blunt's case, and it wij 
 have oct said, © the dee sion of SAUNDERS does 
 
102 
 
 not apply, for when he said, freeholders were not ue- 
 cessary on trials in corporations, he was speaking not 
 of cases of treason, but of mzsdemeanor. 
 
 If we do not do him, the justice of confining his 
 
 ceneral expression fo the subject matter, on which he 
 
 was speaking, then indeed we make him say what is 
 
 contradicted afterwards, by the act reversing Rus- 
 
 SELL’S attainder, and by the Bill of Rights: these 
 acts declare the common law; that ‘in all cases of 
 high treason, the jurors must be freeholders. Saun- 
 DERS does not appear ever to have denied that doc- 
 trine ; certainly notin Hzggins's case. 
 
 Perhaps, indeed, the declaration’ of right had in 
 one respect, thrown some doubt on part of the rea- 
 soning of that case, where it is used as an argument, 
 that in some boroughs there are no freeholders ; yet 
 hy the Bill of Rights, it is declared, that all treason 
 must be tried by freeholders, we must therefore sup- 
 
 pose that fr eeholders exist in all, or if the case shall” 
 
 ever arise of a treason etiitniaed™ ina city or corpo- 
 rate town, forming a county in itself, and without 
 
 freeholders sufficient to form a jury, an embarrass-— 
 ment to justice will arise, which I hope will never 
 
 happen. 
 
 But if doubts, on that: siecsoittaby affect part of the 
 reasoning on tl:e case, it does not strike me, that they’ 
 
 can warrant us in condemning a decision, uncontra- 
 dicted by any other; made by the concurrent opinions 
 of. two courts in Westintnster Hall, conformable to 
 
 long and ancient practice, and tothe best evidence of 
 
 the common law, fair inference from ancient statutes, 
 uncontradicted, as it appears to me, by any decided 
 case, Or any dictum of any law writer, plamly bear- 
 ing ow the subject; and it 1s remarkable, that about 
 the period, when the declaration of rights was made, 
 
 and about the time of the decision in Higgins’s case, 
 
 there had .been numerous trials for misdemeanours, 
 
 of almost as great importance, as even a case of trea- 
 
 son, yet the case of misdemeanor js not touched upon 
 by the bill of rights, which requires the qualification 
 of freehold, .in the case of treason only. 
 
 I ought to have noticed, that three or four Irish 
 
103 
 
 a Lave been referred to, applicable to Cork, 
 
 Vaterford, Galway, Xc.. which,recite, an. inconve- 
 -nience arising from want of sufficient freeholders, to 
 be impannelled upon juries :—from. which it is in- 
 ferred, that freeholders are necessary ia corporate 
 towns. ‘This observation, was satisfactorily answered 
 from the bar ; that the statute of J/en. 5, created the 
 mischief, and not the common law :—that statute. ex - 
 isted in Jredand, and was not repealed here by the 
 statute of Z/en. 8. so.that no inference arises from 
 these local acts explanatory of how .the common 
 law stood before. 
 
 The case then of the King : a. Higgins, whith is di- 
 rectly in point to the present, cannot be shaken, and 
 must rule this case, and the demurrer to the first plea: 
 must be allowed. 
 
 As to the second plea, that some. of the Grand 
 Jurors hold oflices under .the Crown, removeable at 
 the will of the Crown, it is enough to.say,, that it has 
 been solemnly decided. to be no cause of challenge to 
 a Petit Juror ;.& @ foriiorz,, it is. no. cause of objec- 
 tion to a Grand Juror... If such an objection 
 were allowed, we must. hold, that an infinite num-, 
 ber of the most meritorious persons, must be presu- 
 med incapable, and absolutely disqualified from ho-~ 
 nestly executing the office of a juror. . The true rea~ 
 son, why no such challenge to. the favor lies, is 
 given by Mr. Hargrave, because. the connection be-. 
 tween the Crown and the subject is so extensive, that 
 if such an objection were allowed, , it would disqualify 
 so many, as to impede the administration of justice. 
 Besides, there are several statutes, both here and in 
 England, exempting various public. officers from the 
 duty of serving upon juries; not disqualifying those 
 officers, but,excusing them, on, account of their 
 being engaged in the public service; which provision 
 would be unnecessary, if by law they rae not serve 
 upon juries, 
 
 It is not necessary to say more pany this. point, 
 which has been so often determined, with. respect to 
 Petit Jurors, particularly by Lord Hout in Parkins’s 
 case, by Lord Chief Justice Pratt, in Sayers case, 
 and in.one of the trials here, arjsing out of the pro- 
 
104 
 
 eeedings of The United Frishinen :+! believe in the 
 case noticed at the bar, this obyection was determined 
 to be no ground of challenge. Therefore, in my ap- 
 preliension, the demurrer to both these pleas in 
 abatement should be allowed, and the Traverser 
 should be put to answer the inaieEen ett! 
 
 Mr. Justice Day. The zeal, and apparent confi- 
 dence with which this case has been urged on the 
 part of the Traverser, will, I trust, excuse me, if- 
 notwithstanding the conclusive argument which we 
 have just heard from my Lorp Cuier Justice, I 
 trespass, for some moments, upon the public atten- 
 tion. “Phe Traverser has pleaded in abatement :— 
 first, a plea for favor in the Grand Juror to the Crown; 
 and secondly, want of freehold : and the ATTORNEY 
 GENERAL has demurred. With respect to the first, 
 I have already anticipated that objection, when I gave 
 my opinion, touching the right of challenging a 
 Grand Juror, before he is sworn ; and I said, Tuiad a. 
 subject cannot take a challenge to a juror for favor te 
 the King. Various grounds have been assioned for 
 “this rule of law: bat whatever be the principle, cer- 
 tain it is, that the rule stands upon very hich autho- 
 tity. Bro. Abr. f£. 122, says “ Fhe ‘King can chal- 
 « Jenge for favor, but such a challenge against him’ 
 “js of noavail.” And in the same book, f. 126, 
 “ No man can challenge against the King, that a 
 “Juror is servant or favorable to the King. * So in 
 
 Lord Coxe, Co. Fit. 156. * Where the ‘King is @ 
 “ party, one shall not challenge the array for favor ;” 
 and in Parkyn’s case, 4 Stat. Trt. 632, Lord. Hor, 
 assisted by TreBy and ROKEBY, all great names, 
 pin expressly, “ that it was no cause of challenge, 
 
 “ that the juror was servant of the King.” So dis- 
 tinct does the law consider the King: in “his political 
 capacity, as the Custos Reg gn, and interested (not as’ 
 the exception would funrpiort) in: the destruction; but 
 in the preservation and protection of his imnocent 
 subjects. Here then are three of the greatest autho- 
 rities in the law, concurring in the point, that sucly 
 ai exception does not lie to a Petit Juror, even in a 
 ease of treason; much less then will it he to a. Grand 
 
 Juror, and thetin the ease only of a misdemeanor. 
 
105 
 
 With regard to the second exception, although 
 pressed with much confidence from the bar, and sus- 
 tained with great erudition; eloquence, and modest 
 worth, by a young gentleman*, who has given early 
 promise of becoming an ornament to our profession; 
 that exception appears, to me; to be as untenable as 
 the first. The affirmative of that exception, it is upon 
 ' the Gentlemen, who make it, to sustain; and in.my 
 opinion, they have sustained it, as an wntversal proposi- 
 tion, more by assertion, than by argument, or fair 
 authority. Upon principle, they did not offer to sup- 
 port it; they did, not pretend to say, that however 
 expedient and desirable a criterion of independence, 
 freehold might be in counties at large, where freeholds 
 abound, it would be reasonable to exact the same qua- 
 Iifications in cities or towns, where from the paucity of 
 freeholders, it would be always difficult, often impos- 
 
 sible, to find a'sufficient number. In truth, it was out 
 of the inconvenience and manifest obstruction to the 
 public justice, in establishing a freehold qualification 
 in cities, that the usage contended for by the crown 
 had grown. And, therefore, the gentlemen very pru- 
 dently seek to ground theinselves upon authority. 
 
 But what are the authorities, which the counsel for 
 the defendant have referred us to? The first is Lord 
 HALE, a vame never to be mentioned but with honor 
 and veneration, and of bigh authority in crown law. 
 But there is sometimes a want of precision in his work, 
 which no doubt, it would have received, .had that great 
 and good man Jived to publish it. Speaking of Grand 
 Jurors, he says, ‘‘ touching their annuus census, 1 do 
 ** not find any thing determined ; but freeholders they 
 “ ought to be.” 2. Hale, 155. But when we look to 
 the chapter, it is plain, that this position was meant te 
 be confined to Grand Juries of counties at large. Have 
 begins with stating the precept tq the sheriff, which he 
 gives in: three or four forms—‘‘ each requiring him to 
 ‘© return twenty-four from each hundred.” Upon this 
 precept, he says that, ‘‘ the sheriff is to return twenty- 
 ‘¢ four,or more, trom the whole county, out of which 
 *° the grand inquest are taken and sworn ed tnguiren- 
 “¢ dum pro domino rege X corpore comitatus.” All this 
 
 _ ¥ Mr. North. 
 O 
 
LO06 
 
 is plainly confined to counties at large. He then pro- 
 ceeds, “* Now touching the Grand Jury thus returned, 
 « (i, e. the county Grand Jury) there are some things 
 « considerablé. They must be prodi X legales. Touch- 
 “ing their annuus census nothing is determined, but 
 “«¢ Freeholders they ought to be.” Who ought to be free- 
 holders? Why the Grand Jury, of whom only he was 
 speaking, namely the Grand Jury of counties at large. 
 And, therefore, nothing is plainer, than that this high 
 authority, when examinied, does not support the post- 
 tion unwwersally. Itis applied by fale to counties at 
 large, and predicates nothing of cities and towns cor- 
 porate. The next authority was 4 Black. Com. 302; 
 he lays down the rule in the same general terms, ‘* that 
 ‘¢ Grand Jurors ought to be freeholders.” But upon 
 reference to the book, it is manifest, that he also; is 
 treating of Grand Juries of counties at large only— 
 «© The sheriff (says he) of every county is bound to re- 
 « turn twenty-four good and lawful men of the county, 
 ‘© some out of every Aundred, to inquire,’ &c. “* They 
 ‘* ought to be freeholders”—plainly speaking of county 
 Grand Jurors; echoing the very terms of Lord Hare, 
 and adding nothing to his authority, but removing the 
 , donbt, if there were any, that Lord Hae had only 
 counties at large in his view.—The next authority was 
 
 Blunt's case, Cro. Eliz. 413, where there was a chal- 
 
 lenge to a juror hecause he had only a freehold of fifteen 
 shillings per annum, which was over-ruled, the court 
 holding, that at common law, if the juror had any free- 
 hold, it was sufficient, and that he should have some 
 freehold was determined. In this case, it is true, the 
 rule seems to have been Jaid down universally. But let 
 it be recollected, that it was the case of an information 
 for intrusion into the lands of the crown, which ex ve 
 termini nakes it probable, that the premises lay in a 
 county at large, and not in a town; and therefore, that. 
 the case regarded a county Grand: Jury. But that is 
 put out of all doubt by the enlightened argument of. 
 Mr. Townsenp who referred us to /iggins’s case, 
 
 Raym. 486. 8. C. Ventr. where it appears, that Blunt's. 
 case was a case in a county at large and not in a cor-, 
 
 poration. These are the only. authorities which I have 
 collected on the part of the defendant; authorities 
 which leave the case of cities and towns corporate at 
 
107 
 
 common law, altogether untouched. Cities and bo- 
 roughs do not appear to have entered into the contem- 
 ‘plation of those authorities. And, perhaps strictly 
 speaking, it would be sufficient here to say, that counsel 
 have failed to establish the proposition in the uzversgl 
 form in which it was advanced, namely, that jurors in 
 all cases ought to be freeholders, and therefore, that 
 the plea should be over-ruled and the demurrer al- 
 lowed, . | 
 Bat m a question of sueh expectation and impor- 
 tance, as every question must be which relates to the 
 liberty of the subject, —it is the duty of the court to 
 ascertain what really, and truly‘is in the point. And, 
 in my opinion, it may be fairly deduced from a view 
 of all the statutes and authorities—-that neither by the 
 common law, or the statute law, is it necessary, that a 
 “jeror in a city or borough town should be a freebolder, 
 in the case of a misdemeanor. 
 The earliest statutes, which prescribe a definite guan- 
 twm of freehold qualification for jurors, are the two 
 Statutes of Edw. 1. which enact, that none shall be put 
 On assizes, or juries, though they ought to be taken in 
 ‘their proper county, who have less tenements (i. ¢. frank- 
 tenements) than 40s. yearly ; ‘‘ provided that in cities and 
 boroughs the same may be done as was accustomed,” 
 That proviso indeed was ex abundantz, for the statutes 
 are expressly confined to counties; but it marked the 
 extreme caution of the legislature to introduce the free- 
 hold qualification into cites. What that usage of cor- 
 porations was, in respect to their jurors, is not ex- 
 pressed in those statutes; but awk. states it to have 
 been ‘* that freehold was not a necessary qualification 
 of jurors in cities and boroughs.” 2 Hawk. 309. c. 25. 
 8. 21. ibid. 583, c. 43. s.12. The next statute was the 
 2 Hen. 5. c. 3. which required, that jurors should have 
 Jands and tenements of the yearly value of forty shil- 
 lings, in all civil and capital cases ; capital not expressly, 
 but it has been so held'in construction. In this statute, 
 the same caution was not displayed, as has been in 
 21 Ed. 1. for here, from the generality of the wording, 
 the statute has been always construed to extend to 
 eities and boroughs as well as to counties. This statute, 
 however, which was the first that prescribed a freekold 
 qualification to cities, did uot touch the case of mis- 
 
108 
 demeanors.-—The next statute is the 23 Hen. 8. which 
 throws great licht upon the subject. By this time, the 
 freehold qualification enacted by the 2 Hen. 5. it would 
 ‘seem, began to be felt as a great obstruction, both 
 to criminal and civil justice. This statute then was 
 enacted to cure the mischief in criminal cases; > Its 
 title is, ‘* An act for trials of ,.murders in cities and 
 towns.” And it recites,—-‘* Forasmuch as trials*for 
 ‘* murder and felony are in cities and towns corporate, 
 “< often delayed by-challenges for dack of sufficiency of 
 ‘¢ freehold to the great hindrance of justice—it is there- 
 ‘‘ fore enacted, that every freeman, being worth in — 
 ‘ moveable goods and substance to the clear value of 
 ‘¢ forty pounds, be admitted in trials of murders and fe- 
 ** Jonies, albeit they haveno freehold.” Thus, then, this 
 statute provides a remedy in the cases of murders and 
 felonies, by substituting a ‘personal, for a freehold qua- 
 lification. But it makes no provision for the case of 
 msde meaner ; arid why ? Would not justice be delayed 
 also in misdemeanors by the challenge for ap of free- 
 hold, if competent to be: made in such.-cases ? Plainly, 
 because freehold never was a/necessary qualification 1 in 
 the case of misdemeanors in cities; If it had been, the 
 statute would be quite preposterous to have substituted 
 a pecuniary, for a freehold qualification. in. felomes, 
 while it left misdemeanors to be tried only by free- 
 holders. ‘The legislature cannot be, supposed to have 
 
 felt more jealousy, or to require: more chastity, or a 
 higher degree of qualification in the case of*a misdemea- 
 nor, than of a felony ; and therefore- it was,. that the. 
 legislature did not extend the remedy to cases of mis~ 
 ‘demeanor, because in them the. grievance did not exist. 
 The grievance, however, still remained. unredressed, 
 
 until the 27 Adzz. in civil cases, which, while it increased. 
 the freehold qualification in counties to £4. ayear, in 
 all issues between party and party, provided, “ that 
 “* the juries of cities should be returned, as had been 
 ** accustomed,” and thus, by both statutes, the saving 
 of the common law in favour of city juries was restored, 
 
 both in civil and eriminal cases. ‘The point which i 
 have thus urged, was solemnly, adjudged in the above- 
 cited case of Higgins—it was debated by the judges of 
 two courts, the hing’ 3 Bench and Common Pleas, who 
 ‘unanimously held, that a,freehold was not a necessary 
 
109 
 
 qualification: ‘for a juror ina city, upon the-trial of a 
 misdemeanor. That>was a’ decision of great autho- 
 rity, SAUNDERS presiding in ‘one court, and PEMBER- 
 TON in the other. ‘This decision was adopted, as a set- 
 tled rule of Jaw, in 3. Salk, 81. where it is laid down 
 expressly, that when a jury: are of a@ fown corporate, 
 it is no challenge, that they are not freeholders. 
 
 No alteration of the law, upon this subject, has 
 been adopted in Zredand, from the reign of Lenry 3, 
 until the 29 Geo. 2. 6. which advanced. the qualifica- . 
 tion of. jurors to £10 a year in civil cases, except m 
 counties of cities and ‘counties of towns; saving, ever 
 in civil cases, the usages of cities. Thus, then, in 
 criminal cases in Jreland, the freehold qualification 
 continues, both in counties and cities, to be governed 
 by the stat. 2 Hen. 5.; that is, in felonies, t the jurors 
 must haye freehalds of forty shillings by the vear. 
 But that statute leaves misdemeanors as at common 
 law. 
 
 But it is said, that Higgins’s case goes too far 3 
 that it lays down. as-an. universal proposition, that 
 jurors are vot required to be freeholders in corpe- 
 ag i whereas the Bill of Rights requires, that 
 
 ‘ jurors which pass upon men’s lives in tr eason, sliall 
 ‘* be freeholders.” But the answer is, that the court 
 in. Higeins’s case; was treating? only of the case of 
 misdemeanor : ; that the observation must be understood 
 secundum subjectam inatertam, and the extent and ge- 
 _herality of their expressions must be controled by the 
 case before them. So the judges in that case said, 
 that 2. Hen. 5. extended only to cases between parti 
 and party, although they knew, that it extended also 
 to capital cases ;—but the court cite only so much of 
 the statute as answered their present purpose, con- 
 fining themselves to civil cases; and accordingly they 
 add ** that: no such challenge was ever made at Nis? 
 A* Prius at Guildhall. 
 
 It is also said, that if in treason, the jurors: shonld 
 be freeholders, in cities as well as in counties, as the 
 Bul of Rights declares, then the common Jaw rule, 
 that ‘© want of freehold i is a good cause of chalienge 
 to a juror in a city,” is not universally true. But, as 
 I understand it, that exception, in favour of {pease 
 did not exist at the common law, but arose from-the 
 
10 
 
 construction given, by the highest authorities, to thé 
 stat. 2 Hen. 5. In Stamf. p. 162. a. it ts laid down, 
 that all cases where a man is arraigned for his life are 
 within the express words of that statute. And in 
 RvssEiy’s case, (which I would not cite, save where 
 the point. was ruled in favour of the prisoner) the 
 counsel on both sides and the court, one and all, 
 agreed, that the stat. 2 Hen. 5. extended to treason 
 dad every other capital case. So that it was, in truth, 
 the Itberal construction of the stat. 2 Hen. 5. whieh 
 gave the challenve for want of freehold in cases of 
 treason in cities and towns. The 23 Hen. 8. repealed 
 the 2 Hen. 5. as to the freehold qualification in cities, 
 as fay as murders and felonies, but it left untouched, 
 both treasons and misdemeanors. It left treasons as 
 thev stood under the settled construction of the stat. 
 2 Hen. 5. and it left misdemeanors as they stood at 
 common faw. ‘aAretd 
 
 It is observable, that the Bill of Rights does not 
 allude to misdemeanors ; although some scandalous 
 and corrupt eases of misdemeanors took place about, 
 the period of RussEexy’s and Srpney’s trials, or shortly 
 after—particularly the case of Mr. Hamppen, who 
 was fined £.40,000 by Jerrerres. So also, the case 
 of the Seven Bishops; and other interesting cases of 
 misdemeanor, in which the liberty of the subject was 
 deeply interested! The Bill of Rights condemns ex- 
 travagant fines in cases of misdemeanor ; and bei 
 enacted at atime, when the public pulse beat high In 
 the great cause: of civil liberty, that second Magna 
 Charta would not have limited the challenge to trea- 
 son, if it could have extended the challenge to the 
 ease of misdemeanor. LH rpressum facst cessare tact- 
 tum—the omission of misdemeanor amounts to a vo- 
 hime to shew, that the challenge did not apply ina 
 ease of misdemeanor tried in a city. The Bill of 
 Rights declares, that a treason, the jurors ought to 
 nave freeholds. Why not so declare, in the case of 
 any otber offence? I ean discover no other reason, 
 but that-in murders and felonies the 23 Hen. 8. re- 
 pealéd that challenge in cities; and because in misde- 
 meanors want of freehold never existed in cities as @ 
 causc\of challenge. | 
 
ii] 
 
 Upon the whole, I am of opinion that the pleas in 
 this case cannot be sustained, and that the demurrer 
 should be allowed. | 
 
 Mr. Justice Dazy. The present case is of such 
 extreme importance, that f shall be excused, if I oc- 
 cupy a small portion of time in giving my opinion 
 upon the question which has been argued. I will not 
 take up time in discussing the challenge to the favor. 
 It is clear from authority, that such a challenge is 
 without any foundation whatever. My Lorp Curr 
 Justice has detailed the cases, and I think, that no 
 answer can be given to what he has said, and what 
 was said at the bar, by the Counsel for the Crown. 
 Therefore, it would be a waste of time to go inte 
 that question at all. , 
 
 But with regard to the plea for want of freehold, 
 it is necessary to say something. In taking the de- 
 murrer, the ATToRNEY GENERAL has admitted, that 
 at the common law, want of freehold was an objection 
 to a grand juror in a county at large;—-but he con- 
 tends, that by the common law, no such objection 
 lay either to a grand, or petit juror in cities, or other 
 towns corporate. In support of this opinion, he ars 
 gued, that the qualification of a grand juror did not, 
 in its nature, originate from the value of his property ; 
 ‘but from his quality, and condition in the state ;— 
 namely, that he should not be a villein, or a bond 
 man, but free. That in counties at large, this, his 
 condition, was ascertained by the nature of his te- 
 nure, and it was from thence, that he, and he orily, 
 who had eberumn tenementum was liber e¢ legalis home, 
 so far as related to counties at Jarge; and he ills. 
 trated this position by an observation, which is true in 
 point of fact, that by the common law, iu cases even 
 where freehold was necessary to constitute a juror, 
 no particular amount in value was ascertained :+~but, 
 as to corporations, he contends, that the same crite- 
 rion to ascertain who the Uber et legalis honto was, 
 who was competent to serve on juries, could not be 
 applied, that the persons incorporated were made 
 free by the King’s charter, and endowed with privi- 
 leges for the purpose of encouraging trade ;.that the 
 lands on which the corporate town stood were anci- 
 
112 
 
 ently the estate of the corporation, and not of the in- 
 dividuals who composed it, and that if a frank-tene- 
 ment were necessary to qualify a juror in such eorpo- 
 rations, there would be an absolute failure of justice ; 
 there being very few of those corporations, which 
 could furnish sufficient—and soine, which could fur- 
 nish no- freeholders at all, 
 
 This reasoning, taken abstractedly, has. very con- 
 siderable weight. But it is the duty of the Court to 
 see, whether these principles have been rec Omnis 
 by the legislature, or the courts of justice. 
 
 In taking notice of the authorities which have bean 
 weforked to, I shall begin with my Lord Harr In his 
 2vol. Pl. Cor. he has this observation, speaking of 
 erand jurors, he says, ** Touching their annus census 
 “<1 find nothing determined; but Sreeholders they 
 ** ought to be.” It appears plain, from the context of 
 Hae, that, in this part, he is speaking of jurors of 
 counties at large, for he gives the form of the precept 
 which issues tear the justices of Oyer and Terminer, 
 or of the peace to the sheriff, by which it appears, 
 that twenty-four loert K lecales homines are.to be sum- 
 moned from every ufideed out of which the grand. 
 jury are to. be taken and sworn; and then, he: says, 
 ‘« Touching the grand jury, thus returned, they must 
 “be liberi & lewales, and freeholders they cught to 
 “< be’—evidently meaning the jury of a county at 
 large—for the precept, as stated by him, requires’ a 
 certain pumber of Aundregors, and there are none of: 
 
 that description im cities or towns, ‘Therefore, in this 
 passage, he seems not to have adverted at all: to the 
 ease of Corporate towns; but to have covfined his 
 view of the subject to counties at large. And there-' 
 fore, this passage, which has been so strongly pressed 
 by the Counsel for the Traverser, is not decisive ney 
 the question before the Court. it 
 
 I shall next.advert to what Seryeant HAWKINS says 
 upon this question,’ In his ap capi ch 43.8. 12) we 
 find. the following position, *‘* At common law,” says 
 he * there was no necessity, that jurors chant: have 
 any freehold in cities or burghs.” » But in this part of 
 his work, he does not seem to be very consistent; for 
 iy the same section he says, ‘* It hath been adjudged, 
 
113 
 
 ‘ that the common law did not require that a, Juray. 
 should, in any case, biave any freehold. But thig 
 is contrary to all the authorities, for it seems to be. 
 settled at this day, that the want of freehold is 4 
 good challenge of a Juror in all cases, mot other- 
 wise provided for by the statute, and consequently 
 in a trial for high treason in London, as well as in 
 ** any other county.” Evidently implying, that by 
 the common Jaw, Jurors should be freeholders in cities, 
 towns and boroughs, contrary to what he had said.ina 
 former part. Therefore, neither Hae nor Hawkins. 
 can be said to afford us much light in either, of the 
 foregoing passages. In another passage, 2 Hawk. ce, 
 25. sect 19. Hawkins says, ** 1 do not find it any 
 ‘* where holden, that none but freeholders ought to be 
 hg returned. i 
 
 The first statute which required a freehold of a. 
 certain, value, as a, qualification of a, juror, is the 
 stat. Westm. 2.¢. 28. The mischiefs which it intended 
 to ‘remedy, are’ recited ‘in it ‘* that sheriffs, hun- 
 é¢ dreders and bailiffs of liberties have used to grieve 
 = those which be in subjection to them, putting. in 
 ** assizes and juries, men diseased and decrepid,” &c. 
 and it prohibits persons of this description from being. 
 returned, nor any put upon juries within the county; 
 
 that may dispend less than twenty shillings, yearly, or 
 
 if they are to serve without the county, t then their. te- 
 nements must be of the yearly value of forty shillings, 
 and the penalty .is imposed upon sheriffs,,and other 
 officers, who act to the contrary.. The object of. this 
 statute plainly was not for the purpose of ascertaining 
 the qualification of jurors—it. did not touch that— 
 but it was to relieve jurors from the oppressions, of 
 sheriffs and. other returning officers, and therefore, it 
 has been always held, that. if any persons be returned, 
 contrary to the provisions of the act, they cannot be , 
 challenged on that account, nor can. the party grieved , 
 allege ‘such matters in his discharge; but the jurors 
 are to take their remedy by action | against the sheriff, 
 or other officer so offending. The qualifications, 
 therefore, of the jurors, remained in. my apprehen- 
 sith notwithstanding that act of parliament, as they 
 
114. 
 
 ‘were at common law. This act exempts such as are 
 there described, but if they thought fit to waive ‘the 
 benefit of ‘the’ act, and were willing to serve upon ju- 
 ries, they could not be challenged upon the grounds 
 mentioned. ’ Therefore this statute. does’ not furnish 
 an objection to a Grand ‘Juror in such a case, as the 
 _ present. ; 
 
 “Phe next statute is 21 4d. 1. De tis gus pohcull 
 sunt tn assists, and is made am parz materia with the 
 former ; it requires, that jurors should have tenements 
 to the value Of forty shillings yeatly ; but it contains 
 an express exception of cities, boroughs, and other — 
 trading towns “ where the same wds to “be Woke as Was | 
 he accustomed, ~~ Hawkins says, that this exception — 
 is likewise mentioned inthe writ in the register, which 
 seems to be grounded on both these statutes, 1 have 
 looked into the writ, Fiz. N.B. 166. and t find it 
 to be so. 
 
 hi oki obsétvation of Hawkins upon both these sta: 
 tutes, is, that neither by the common law, nor ‘by them, 
 was ‘here auy necessity, that jurors should *be free- 
 holders‘in cities and burghs, and that there seems no 
 greater | necessity that Grand Jurors should be free- 
 holders. © [ have already observed that’ Hawxrns is 
 not consistent with himself, 
 
 Hitherto, I have discovered nothing to saitntbish ee 
 force of the? argument of the ATTOKNEY GENERAL, 
 arising from the nature of the thing and the incenve- 
 niencé to public justice in cities or towns, if the want 
 of freehold ‘were. _a good cause of objection to a juror, 
 in such ‘places ; it still rests upon its native strength, 
 and I think, derives aid from a position in Co. Litt. 155. 
 a. who says $* he that is of a jury, must be liber homo, 
 ‘S that is free and not bond.” 
 
 IT come now toa statute, which may ui said to be 
 the first, which made any “alteration in the common 
 faw, respecting the particulars now before us. I mean 
 the stat. 2 Hen. 5. c. 3: which enacts, ‘* that no per-" 
 ** son shall be'admitted to pass in any inquest upon 
 “* trial of the death of a man, nor in any inquest be= 
 “< twixt party and party, in plea real, nor in plea per- 
 “ sonal, whereof the debt or damage*declared amount 
 Kee. forty marks, if the same person have not lands or 
 ({ tenements of the yearly value of forty shillings 
 
i15 
 
 ** above all charges of the same,” &c. making such 
 defect a cause of challenge. This statute, so far as it 
 concerns criminal proceedings, comprehends capital 
 cases, extending to High Treason, and certainly was 
 held to include counties corporate ; but it leaves mis- 
 demeanors, as they were at common law; and thus 
 ~ the law stood, until the 23 Hen. 8. c.13/ which recites, 
 “© that trials in murders and felonies in cities, boroughs. 
 and towns corporate within this realm, &c. had been 
 oftentimes deferred and delayed by reason of chal- 
 “lenge of such offenders for lack of sufficiency of 
 freehold, to the great hindrance of justice,” and tt 
 enacts the provisions, which have been mentioned. 
 
 Now, some very important observations arise upen 
 this act. What the inconvenience was, is perfectly 
 plain and manifest—it arose from the paucity or non- 
 existence of freeholders in such places—an inconve- 
 nience, which would apply to misdemeanours, in its full 
 force in corporations where there were no freebolders, 
 and in some degree to most of the corporations in the 
 
 kingdom. © The act is plainly intended to repeal the 2 
 Hen. 5. so far as it concerned felonies and murders, 
 and it seems to me to be a fair,inference, that the stat. 
 of Hen. §. did not enact upon the subject of misde- 
 meanours, because, in fact, at the time of its enact-_ 
 ment, the objection for want of freehold in cities and 
 towns was not considered as valid in such cases). Why 
 - it did not exclude High Treason is not very easy to 
 ‘conceive. The inconvenience there was enormous, in 
 consequence of the greater number of peremptory . 
 challenges :—It is very probable, it was a casus omis- 
 sus, trials for High Treason not arising very frequent. 
 ly, and this idea is in some degree corroborated by the 
 stat, 2. PAil.and Ma. c. 13, which enacts, That all 
 trials for treason shall be according to the course of the 
 common law. And it. has been held to repeal the 2 
 Hen. 5. in cases of treason. | 
 
 It is, however, contended on the part. of the tra- 
 verser, that-the 2 Hen. 5. went only to encrease the 
 value of the qualification in the cases’ to which it ap- 
 plies, but that by the common law, a freehold of some 
 kind or other was necessary in all cases whatsoever. [I 
 have already observed upon what may be said in an- 
 - swer te that, as arising’ from the nature of the thing, 
 
 «¢ 
 
116 ; 
 and sia nature of, corporations; and now, I come to 
 the authorities upon the subject. As to that, the case 
 of the Aig a. Higg ins, is in point against the Pe 
 verser ; SO far as it may_ ‘be considered a as authority ; 
 shall not state it; because it has been fully ine 
 already. It states, broadly. and generally, that at 
 common law, the want of freehold formed no objec- 
 tion to a.juror, at common law, in counties corpo- 
 rate. :—there is no qualification of the assertion in 
 _any respect. I'he case, then before the Court, was 
 a misdemeanor ; its attention was, naturally turned to 
 that species of offence, and although its expressions 
 are general, yet it will not bea very great stretch), 
 to say, that the decision should be confined to the 
 case, then before the Court. 
 
 This case, however, was relied upon by the coun- 
 sel for the Crown in Lord RussELv’s case, and al- 
 though the judges who presided in that case, do not 
 appear to have stated it, in giving their opinion, yet 
 they held, that a want of freehold was no challenge 
 in a cityin a case of high treason, It is very well 
 known, however, that the judgment in the case of 
 the ‘King a. Lord Russell, has been declared illegal 
 by | several acts of parliament, particularly by the. Bill 
 of Rights, which expressly declared, that, in. the 
 cases of treason, the want of freehold i is.a anod cause 
 _of challenge in counties corporate. But this. decla- 
 ration is confined to the case of/ treason; it leaves the 
 case of misdemeanor untouched ; and yet there were 
 maby cases. of that description, connected with the 
 state, which would require the interference of the 
 legislature, if it held the objection Jegal and valid in, 
 such cases. It is further to be observed, that the in- 
 convenience was much greater in permitting the ob- 
 jection to prevail in the case of treason, than it could 
 be in misdemeanors ; forin the former case, the num- 
 ber of peremptory challenges would make it impos- 
 sible to jind jurors in some corporations at all. This 
 inconvenience would not exist in such force i in the 
 case of misdemeanors, in which there were no pe- 
 remptory challenges. 
 
117 
 
 _ Here then is a legislative declaration which certain- 
 ly’ shakes the ceneral position, laid down tn the,case 
 of the King a. LTiggins, but does. not touch thepoint, 
 which it directly decided; and I cannot therefore 
 bring myself to reject it altogether, as authority ; for 
 it appears. to me not to be alfected, so far as it res- 
 pects the case of anisdemeanors. ’ 
 
 Asito the Jrish acts, which have ‘been aerncbe | 
 they do not make any impression upon me. It ‘has 
 ‘been very well said by my Lord\Culer Justicr, that 
 the stat. 2. fen. 5. 1s altogether unrepealed with res- 
 pect to this country ; and the stat. 2 Ph. K M. having 
 passed after Poyning’ slaw, may account for the prac- 
 tice prevailing in particular corporate towns in Tre-. 
 land, of requiring freeholders upon juries; and we 
 must suppose, that these local acts were intended to 
 remedy the local inconvenience, and turnish no proof, 
 that the objection, for want of freehold in a corpora- 
 tion, was suffered to prevat!, as being founded in the 
 general. law.of the land. It appears, that the objec- 
 tion being allowed in those particulary .towns was a 
 grievance, which is remedied by these several statutes 
 inthe respective towns to which they apply. But 
 with respect to other towns, how far such objections 
 were allowed, does not appear, but no regulation ‘thas 
 been enacted with respect to them. 
 
 Upon the whole,- therefore, although I will not 
 take upon me to say, that’ this question is entirely 
 clear of all doubt and difficulty ; yet it is sufficient 
 (supposing it even to be more difficult) to deter me 
 from oversetting the practice of ages in this, and other 
 corporations ; ; from introducing into the Grand Jury, 
 men ot a very inferior class “of freeholders, in the 
 place of the most wealthy and respectable corpora- 
 tors; from creating that obstruction to criminal jus- 
 tice, which obviously arises from allowing the objec. 
 | tion, which must impede the administration of justice 
 jn many towns, and in some defeat it altogether. 
 For these reasons, 1 am of opinion, that the demur- 
 rer. ought to be allowed, on the question of freehold. 
 Upon the other gnestion, I have no doubt what- 
 €¥ Cr. 
 
118 
 
 Mr, Justice OsBorneE. Tam very sure, that I might, 
 with great safety, rest my opinion upon the reasons 
 which have been already given. However, as my bre- 
 thrén have thought it right to give theirs, if may be 
 expected that [ would give mine, which T will very 
 shortly, referring, in generai, to the iltustrations ‘of 
 the subject, as detailed by those who have preceded 
 meé:—my opinion being in afirmance, and adoption of 
 the opinion of my brethren. 
 
 I agree with my brother Dary, that upon the first 
 question, respecting the objection to the favor,—it is 
 decided by the authorities already. cited, and it is not 
 necessary to enlarge 1pon it. : 
 
 The other plea is deserving of more attention. The 
 plea amounts to this, that a freehold is indispensible, 
 as a qualification of a juror, in a case arising within a 
 city jurisdiction. This position, is in itself, contrary 
 to the experience we all have of what daily takes place 
 in this, and other cities; and by no research has it been 
 found, that till this day, the necessity of such qualifi- 
 cation was urged here, or in England, so as to have 
 furnished a judicial decision upon the point ;—and we 
 now find that the whole of the argument is rested upon 
 a general assertion, ‘‘ that every juror must be a free- 
 ‘¢ holder,’—and this general proposition, supported, as 
 is alleged by the authority of Hate; although, upon 
 Jooking into his book, it is evident, that im the passage 
 cited, bis mind was not directed to the matter of this 
 exception; as it there manifestly appears from his mode 
 of treating the subject; that it wasa general proposi- 
 tion only respecting counties at large, the truth of which 
 is not now questioned. It is not In that passage, as 
 appears by the context, to be taken as a proposition 
 universal; nor is any reference whatever, made to juries 
 in cities; and yet we find, that the whole basis of the 
 argument here, depends upon that opinion, and the 
 inference attempted to be drawn from Blunf’s case ; 
 and which that case does not warrant, as already shewn 
 by those who preceded me. When, therefore, the 
 practice bas been uniform the other way, and where | 
 the research of ‘all the bar has not discovered a decision 
 in support of the universality of the proposition, so as 
 to make the same qualification necessary in cates. as in 
 counties, I cannot go the length of saying now, for the 
 
119 
 
 first time, that in the city of Duélin, the possession of 
 a frechold is a necessary qualification of a juror. 
 
 Asa general proposition affecting counties at large, 
 it is admitted; and there are satisfactory grounds for 
 acctedine to it *—and according with Lord Hate’s doc- 
 trine, as a general rule, in all such cases, - 
 
 Burwhen Wwe stek toextdnd this cule fram, counties 
 at laree ‘to cities and corporate towns, having certain 
 jurisdictions, authority: fails. us, and the very. silence 
 of the books cannot fail to make this impression upon 
 the mind, that no objection, upon the ground of want 
 of freehold was conceived to exist in a city or town 
 corporate. 
 
 ‘Thus far, there is strong ground to favour the opi- 
 nion, that freehold is not:a necessary qualification—nor 
 ever was considered so, in a city or town corporate. 
 But when we come to investigate the matter farther, 
 the first and most obvious enquiry is, as it strikes me, 
 that if it be said to be grown into ‘usage, upon what 
 reason, and basis can it stand ?—This is the natural 
 enquiry asto the existence of the rule at common la. 
 Now, if we examine it as a reasonable rule, we shalt 
 find, at this day, when property is so generally dif. 
 fused, that if a freehold were an indispensable qualifica- 
 tion for every juror, in every jurisdiction, there would 
 be a complete faiiure of justice in many, and ‘in some 
 very extensive jurisdictions; and the very end for which 
 juries were established would be defeated, in instances so 
 numerous and so obvions, that it is scarce necessary to 
 mention them, But if we refer back to the period 
 before Ldw. is: T think ‘it manifest, tirat it would pot 
 be practicable to carry on the administration of justice 
 in cities or towns, if frecholds were there necessary for 
 jurors. Nor would: it be possible, that, in practice, 
 such an usage would take place—and yet, without any 
 express authority, “we are called upon to say, en ac- 
 count of a general proposition, certainly not an wriversad 
 one, that at common law, it is settled, that a freehold 
 is an indispensible qualification for a juror in a city, 
 
 a position which would destroy his functions the very 
 moment that he is called into action; and further, we 
 are called upon to say, that this role is founded in prac- 
 tice, when we see, that such a practice must have been 
 impossible. | 
 
120} 
 
 Now consider, whether, in this’ chiquiry, any thing 
 can be collected from the early statutes, which can 
 throw light* upon the’ subject? Abd in’ my appre- 
 hension, considerable light is obtained from the early 
 statutes, and the inferences, which they afford. The 
 stat. 21 £d. I. states the mode adopted by the legis- 
 jature, for the relief of the poorer classes, who were 
 forded an’ juries by the sherifls, and) puts a higher 
 qualification upon jurors, © saving to cities, &c. their 
 “ancient usages as to juries.” Now, 1t appears 
 to me, to be no strained inference from this, to say, 
 
 that the legislature recognized the usage, which at 
 that early period, prevailed - in erties,vas differing in | 
 
 some way or other, fron: the: usage’ whieh” prevailed’: 
 in counties, H the object of the legislature of this’ 
 
 statute was, as'has been areted) to’ encreasé the’ 
 
 annual amount of. freehold’ qualifications’ in counties, — 
 without dispensing with, but retatning the original | 
 
 qualification’ of soine freehold in ‘cities anid towns, it. 
 wonld have’ bed more obviotis to have excepted 
 
 them, in’ diréct ‘terms,’ from ‘the increased qualifica- 
 tion, than td’ have ‘excepted cities in thé manner it was 
 doe, The words imply something very different ;— 
 
 they récovhize ‘an usage in cities ‘different from habit 
 ir counties: and | think, that the subject-matter, of. . 
 
 the” statute leads to the conclusion, that other, qua-) 
 
 lification than. freehold property was admitted in: cities 
 and towns corporate. Because the,evil which arose 
 from the partiality of sheritis, in sumnioning?thein- 
 
 ferior classes, was general; and) called fora remedy: 
 in cities and towns, :as mach as’ elsewhere ; yet 'it | 
 allows to cities and towns ‘their accustomed’ mode, » 
 
 and does not think fit to requirée'a freéhold’ of ‘any - 
 
 annual amount-—but’ leaves’ tlie to their accustomed © 
 
 qualification; which, it is’ redsonable‘to presume, did 
 
 not ‘give risé*'to the’ ig ay which prevailed’ in 
 counties: at! lave, : 
 
 This acéotinty for the exception in the statute.— — 
 The’ legislature’ did not ‘require’ a freehold qualifi- 
 
 cation, ‘froin’ an apprehension of a failure of ] Justice 5. 
 
 and found the ‘accustomed qualification in cities, a 
 
121 
 
 sufficient guarrantee .against the mischief the sta- 
 tute meant to remedy, “generally. 
 
 There is also another statute of an early date, which 
 affords a strong inference, that the legislature, at 
 that period, did not consider freehold as a necessary 
 qualification of a juror-in a city, or town corporate, 
 {t is the 27 EHhz. which contains, also,-a saving, in 
 favour of cities and corporate towns, of their former 
 rights of returning Juries. ' Now, the object of this 
 act; in’which this « exception is made, was to oblige 
 sheriffs, in all cases, to summon freeholders, décdrd. 
 ing ‘to the nature of the subject to be tried; either 
 of the encreased qualification, in which case, there 
 was a guorum quilibet clause in the precept; and in 
 otlier cases, those having freehold of any annual 
 amount : but that it BERRA be otherwise in cities, 
 &c. which are left to their accustomed usage. This 
 furnishes an additional ground of inference, that 
 the legislature did not consider. freehold as a ne- 
 cessary qualification for a juror in a city; and this 
 inference does not admit of the answer, which was 
 given to the exception in the prior statutes, namely, 
 that it only meant to except cities from the en- . 
 creased qualification ; for this act operates upon the 
 old interpretation of ‘simple freehold, of no ascer- 
 tained amount, and yet juries’ in cities, ant are eX- ° 
 cepted. ' 
 
 I think, also, that the opinion of Serj. HAWKINS 
 is, (although there is some confusion, if not con- 
 chactiont in his treatise upon this subject) that a 
 freehold is not a necessary qualification in a city.— 
 His authority is certainly great, and his mind was 
 directed to the very question, at the time, that he 
 was laying down the positions. The authority of 
 Lord HaLe, no doubt, is very great. But his, mind 
 was not Bieeetacl? to the particular question, at the 
 time, when he laid down the general proposition, not 
 to the subject of juries | generally, to take it most’ 
 strong, but, as I conceive, to the subject of juries, 
 in counties | Only, 
 
 a 
 
122 
 
 I shall not, cettainly, because it Would be to little 
 eflect, repeat the observations, which have been made 
 upin the other statutes,/arid whieh have been im- 
 pressed, us iustrative of the question’ by thosé who 
 preceded’ me. I shall, therefore, rest my opinion 
 upon the reasons which have been given—from inifer- 
 ences rationally drawn from the acts of. Parliadtrent— 
 from the silence of the books—from the’ want, of any 
 authority to sbew the necessity of this qualification in 
 a city :—evep Haxz is silent in this particular respect. 
 
 But I may add, the practice which has uniformly 
 prevailed-——and the reasoning in the case of the King 
 2, Higgins, as equally tending to shew, that the affir- 
 mative of the proposition is not supported, _F consi- 
 der the case of the King a. Higgins as standing upon 
 as high authority, as any case in the books can stand. 
 It is the opinion of, certainly, one cf the ablest law- 
 yers, and in my mind, there has not beén any thing 
 said, todo away the effect of that opinion, nor can 
 we attribute to the judge, who pronounéed it, any 
 improper use, which was subsequently made ‘of it by 
 others—he gave that opinion with the concurrence Of 
 his brethren, sitting in the court with him ; and ‘he 
 did not act like a man, ayxious to enforce shis own 
 opinion, for he communicated with his brethren of 
 another court, and had the concurrence of their’ dpi- 
 nion. . Therefore, it is the opinion of two courts— 
 and Ido not consider, that this opinion has. been af- 
 fected by the Bill of Rights; because, in my judg- 
 ment, it would be an extraordinary construction of a 
 declaratory law, to go an zofa beyond the declaration 
 itself. » We have no reason assigned to shew the foun- 
 dition of the judgment, or declaration in such a case. 
 No man can contiovert a declaratory law ; but it would 
 be dangerous to ‘carry it further'than the very matter, 
 which is declared to be law. All it says is, that in 
 cases of Aigh tréason, a freehold qualification is neces. 
 “sary—to that, ] implicitly submit. But it doés not af- 
 fect the case of the Aug a. Wiggins, which was ‘no 
 such Case. | 
 
 Demurrer allowed. 
 Fe : 
 
“0 
 
 . Mr, Arrorney GeneraL. Now, that your Lord- 
 ships have disposed of the objections, which occupied 
 
 so,much, of the public time, 1am to apply to the 
 Court, to fix an early day for the trial of those Tra- 
 yersers.. df there be no objection, I beg, that the 
 trials may proceed on Wednesday, which will give as 
 full and reasonable time, as can now be expected, and 
 will leaye only sufficient time, if it shall be necessary 
 to. make any motion after the trial. With regard to 
 the Traversers, they cannot complain of the time 
 which has elapsed ;—the bills of indictment were 
 forind on the second day of the term, and only for 
 the challenge and the other objections, which are now 
 determined to be without foundation, the trials would 
 hare proceeded before. The delay, therefore, is im- 
 putable to themselves, and not to those who are con- 
 cerned for the Crown. 
 
 Mr. Burrowes. My Lords, on the part of the 
 Traversers, I am instructed, as before, to express a 
 desire on their part, that the terin should not elapse 
 without a trial; at the same time, Ff wish to suggest, 
 that it will be necessary to bring witnesses from dis- 
 jtant parts. I do not mention this, by way of diffi- 
 culty to either party; but toinduce the Court to ap- 
 “point as.Jate'a day, as they can, consistent with a 
 trial being had. As,to the delay imputed, we submit 
 to the judgment of the Court upon the objections 
 -which»were made—but still the Court thougot they 
 required a solemn judgment, which shews, that they 
 / were not-frivolous. . , , | 
 
 Mr. Arrorney Genera. Idid not say, that they 
 were frivolous. 
 
 Mr. Burrowes. You did not—but the Court pro- 
 -nounced a solemn judgment, and nothing was more 
 _weasonadle, than that.the Traversers should refer such 
 
 questions toan accurate discussion, and consistent with 
 . such a discussion, there has not been any delay. The 
 objected now isto be prepared, and the time granted 
 maybe. compensated by.the .brevity of the defence, 
 it isa short time to allow three days oniy—whereas, 
 if the trial bad.been by information, there must have 
 been fifteen days notice of trial. 
 
 Mr. Justice Daty. Some. preparation ought to 
 
124 
 
 fave been made, witha view to the event. of the plea 
 being over-ruled. 
 
 Mr. BurRowEs. My Lord, we are not altogether 
 without preparation. 
 
 Lord Cuirr Justice. There is nothing laid before 
 us by athdavit to shew any inconvenience in appoint- 
 
 ing Wednesday for the trials. 
 
 Mr. ArtorNgy GENERAL. _My Lords, there. ought 
 to be four days after a trial before judoment can be 
 pronounced ; therefore a day or two later might pre- 
 vent the matter terminating ‘this term. 
 
 Note.—After some further conversation, Thurs- 
 day, the 21st of November, was agreed upon 
 for the trial. 
 
 Adjourned. 
 
 Thursday, 21st November, 1811. 
 
 The Court sat at Ten o’Clock. 
 
 Mr. Arrorney GeNERAL said he would proteed 
 first in the trial of Dr, SHERIDAN. 
 
 The Sheriffs returned their pannel of jurors, which 
 was called over, and those who did not appear were 
 called a second time upon fines. 
 
 Benjamin Geale, Merchant, as the first who an- 
 swered, was called to be sworn— 
 
 Mr. Burrowes, for the Traverser—My Lords, I 
 desire to ask the Gentlenmal whether he has formed any 
 
 opinion upon the subject of this trial, or has declared 
 any opinion upon it. 
 
 Mr. ATTORNEY GENERAL. My Lords, I object to 
 this mode of intetrogating a Gentleman ‘eaten to be 
 sworn upon the jury, 
 
 Mr. GooLp,; for the Traverser—My Lobes it is a 
 rifled case, that with respect to any thing not touch- 
 ing the honor, or integrity of the juror, he may .be 
 interrogated. 
 
 Lord Curer Jusrice. It has been ruled over and 
 over again, that a juror cannot be asked, whether he, 
 
 has declared an opinion. The objection made must 
 be proved as a cause of challenge. 
 
 Lar RD ae ae te 
 
par ‘tae 
 
 i 125 
 
 Mr. Gootp. If your Lordship states it has been so 
 ruled, we cannot persevere. But 1 beg leave to say, 
 that it was asserted by Lord ERSKINE, when at the 
 
 bar, upon the trials, in 1794, of John Horne Tooke, 
 Hardy and others, aud it was conceded. by the Coun- 
 sel for the Crown and by the Court, that a juror 
 might be asked as to any matter, hor affecting his 
 
 Se] 
 bonor or integrity ; and in the course of my experi= 
 
 ence, I have known it often done. 
 
 Lord Cuter Justice. It has been ruled otherwise 
 over and over again, 
 
 Mr. Gootp. Your Lordships having aid so, I 
 submit. 
 
 Lord Cuter Fosvies: All that we can do is, to 
 determine, whether an objection made be jega!, or 
 not. 
 
 Mr. Burrowes. My Lords, we cannot pro e the 
 fact ; but the Counsel for the Crown siiouid vonsent 
 to the objection. ; 
 
 Mr. Benjamin Geale was then sworn. 
 
 Peter Digges Latouche, Esq. sworn. 
 
 John Roche, Merchant, set by on the ae of the 
 
 Crown. 
 
 John Lindsay, Merchant, Do. 
 
 » Bartholomew Maziere, Merchant, Do. 
 
 Leland Crosthwatte, Merchant, sworn. 
 
 John Ori, Merciiant, sworn. 
 
 Richard Darling, Merchant, set by on the part of 
 
 the Crown. 
 
 John Duncan, Merchant, sworn. 
 
 William Hutton, Merchant, set by on the part of 
 
 _ the Crown. 
 
 Thomas Thorpe Frank, Merchant, Do. 
 
 Francis Beggs, Merchant, Do. : 
 
 Alexander Jaffray, Merchant, Do. 
 
 John Pepper, Merchant, sworn. 
 
 Patrick Marsh, Merchant, set by on the mah MN the 
 
 Crown. . 
 
 Martin Hynes Sc ahenen, Merchant, Do. 
 
 William Sparrow, Merchant. 
 
 Mr. Burrowes. My Lords, I am told, that this 
 gentleman-is a sworn Orangeman. 1 do not like te 
 
196 
 
 tention the mattér—but it is a Bhiracdee whicl; ‘has 
 been too well known in these latter times —from the 
 nature of the oath taken by such characters, he. must 
 of nece ssity be inunical to the " Traverser, and ‘the 
 religion be professes. nts 
 Mr. ATTORNEY-GENERAL. My Lords, I really 
 do not know what the objection is, which 1s made to 
 the juror. ‘hi a Leos 
 Lord Cuizy. Justice. If there be anh objection 
 
 made in legai form, we will give our opinion upon 
 
 it. . 
 Mr. Gooup. My Lords, the objection we make 
 as, for malice against the ‘Trteal, I \saduid! be 
 
 sorry to take up the time of the Court. We sabmit 
 
 our objection to the consideration of the ATTORNEY 
 
 GENERAL, and we say, tat the oath of an Oravge- 
 man renders him decidedly jo pale to every. Catholic; 5 
 
 and to the Traverser in particu! 
 Lord Cuier Justice. Do ne, take a challengé or 
 not? Because throwing ont assertions of this. ‘Rind 
 
 can answer bo purpose. 
 
 Mr. Goo.tp. My Lord, we do chaivenge ore fenus : 
 which the Clerk of the Crown wili take « d awn >and 
 to which Mr. ATTORNEY GENERAL will either plead, 
 ordemur. Itender this challenge—“. And the ‘said 
 “ Edward Sheridan comes in his preper. person, and 
 
 “ says, thatthe said William Sparrow stands not. in- 
 
 “ different, as he stands unsworn, bat bears malice 
 
 “ against he said AKdward Sheridan and this he is 
 
 “‘ ready ‘to, verify.” 1 ot, this challenge ere 
 “+ 1EnUs., 
 
 The challenge thus taken was written ‘by “Mr. 
 Bourne, Deputy Clerk of the Crown. 
 
 Mr, ATTORNEY (GENERAL joined issue upon the 
 challenge, and desired that triers might-be sworn. 
 
 Mr. Gooup. Thope the Crown will not appoint 
 every thing in this cause. 
 
 Mr, Avrorney GENERAL. My Lords, Ido ‘hope 
 that Mr. GooLp will spare his-insinuations. The law 
 
 appoints the triers in such’cases, as the present, and 
 not the Counsel for the:Crown. ; 
 
127 
 
 Lord Culer Justice. The course is, that if a 
 challenge be taken before any jurors are sworn, then’ 
 some of the officers of the Court are appointed triers : 
 but if the challenge be taken, after some of the 
 jurors are sworn, then two of the jurors, so sworn, 
 are to be the triers of the issue upon the challenge. 
 
 Messrs. Geale and Latouche were then sworn to try 
 the issue depending in Court upon the challenge 
 
 ‘taken to /illiam Sparrow, and a true verdict to give, 
 
 according to the evidence. 
 
 Mr. Goo.tp. My Lords, we will now produce Mr, 
 Sparrow himself, to prove, that he is an Orange- 
 man, and that the oath which he has taken, is hostile 
 to the Catholics of Ireland. 
 
 Lord Cuter Justice. If this matter be assented 
 to, on both sides, the Court will not interfere; but I 
 do not wish to have it understood, Cha tan can 
 be permitted to be examined, in this way, to matter 
 which would shew him to be unworthy. 
 
 Mr. ATTORNEY GENERAL. My Lords, we do not 
 object to his being sworn; but if any improper gues- 
 tion be put, we will then object, and the Court will 
 
 - determine, whether he is bound to answer. 
 
 Mr. Sparrow was then sworn to make true answer 
 to such questions, as should be asked of him. 
 
 Mr. ATTORNEY GENERAL. My Lords, he must be 
 sworn to tell the truth and the whole truth; for he is 
 produced, as a witness, to give evidence upon an issue 
 im fact: If he shail be asked, whether he himself 
 bears malice to any man, we will object to the ques- 
 
 tion. / 
 
 Mr. Burrowes. My Lords, I do not wish to con~ 
 sume time, Our object. unquestionably is, to exa- 
 mine this gentleman himself; to acknowledge upor 
 his oath, or deny, that he is 2 member of a certain 
 society, and as such has taken an oath, which of ne- 
 cessity renders him hostile to the Traverser. 
 
 Mr. Justice Day, To acknowledge, that le had 
 taken such an oath would subject him to an indict- 
 ment for a serious offence. 
 
4, tr 
 
 128 
 
 Mr. Burrowes. .My Lordy we may proceed to a 
 
 certain. extent in examining him: the maxim, memo: 
 
 senetur seipsim prodere, does ‘not go to prevent our 
 proving a link of a chain, leading to a fact; which 
 we tay prove by other evidence. Therefore, T ami 
 warranted in asking him every question, but one, whe- 
 ther he took such an oath, or not. 
 
 Mr, ATTORNEY GENERAL, | My Lords, this. being. 
 avowed, 1 imusi, 1m point of, propriety, object to. the 
 gentieman being sworn, 27 chief. The issue is, “ that 
 
 “ he bears StU cat against the ‘T'raverser.”. The, per- 
 
 son so charged to bear nies cannot be examined to. 
 
 establish such an. issue. e did not object. to, his 
 
 being sworn upon the be iret but we object to. 
 
 his being sworn to give evidence against himself. 
 Lord CHa iSTICE. He cannot be examined to: 
 any thing, ak would. criminate himself,: or that 
 would nak hin disreputable; but he may bevex- 
 
 aniined to some extent. | 
 
 Mr. ATTORNEY GENERAL. My Lords, the ruil of 
 
 ~ 
 
 Jaw upon this subject is agreeable to common sense. 
 
 The Juror could, not be examined to prove his own 
 
 declarations, if he had made any, against the Tra- 
 verser. He could not be examined even upon the 
 vor dire, whether he bore malice against the Tra- 
 verser, Pees it sounds to his reproach. | 
 
 Mr. Burrowgs. . My Lords, I admit, that it would 
 be wasting time to. press this challenge, if the Coun- 
 sel for the Crown object to Mr. Sparrow being swarn 3 
 Lecause we have no. otlier evideitce, but ye may 
 come from bis own examination. If nine other Orange- 
 men be cailed upon the Jury, we, will nat object to 
 them. We appeal to the candour of the ATTORNEY 
 GENERAL, whether he will consent, to this, gentleman 
 being set aside, 2 
 
 Mr. Gootp. My Lord, we withdraw. the iphal 
 lenge. : ‘i 4 
 William San row was sworn, 
 i Htggert Orr, Merchant, set by on the pare of the 
 
 Crown. 
 
 Lhomas Meade,-Merchant, Do. 
 
 F 
 
‘(129 
 
 Richard Williamson, Merchant, Do. 
 ~ James Jameson, Merchant, Duo. 
 
 - Thomas Prentice, Merchant, Do. 
 
 Nicholas Wade, Merchant, Do. 
 
 John Hutton, Merchant, sworn. 
 
 Wilham Humphries, Merchant, set by on the part 
 
 of the Crown. 
 
 James Chambers, Merchant, Do. 
 
 William Wood, Merchant, Do. 
 
 James Jackson, Merchant, Do. 
 
 ‘Robert Armstrong, Merchant, sworn. 
 
 Edward Clibborn, Merchant, Do. 
 
 Charles M‘Kiernan, Merchant, set by on the part of 
 
 the Crown. 
 
 Francis Richardson, Merchant, Do. 
 
 Charles Pentland, Merchant, sworn. 
 
 John Hamilton, Merchant, sworn. 
 
 Mr. Burrowes. With respect to the gentleman 
 last called, we only to state that he has dealings with 
 the Castle. We submit it, to the Counsel for the 
 Crown, whether he should be sworn. We acknow- 
 Jedge that we have no legal cause of challenge. 
 
 THE JURY. 
 
 _ Benjamin Geale, William Sparrow, 
 Peter D. Latouche, John Hutton, 
 Leland Crosthwaite, Robert Armstrong, 
 
 — John Orr, Edward Clibborn, 
 John Duncan, Charles Pentland, 
 John Pepper, John Hamilton. 
 
 To whom the Traverser was given in charge upon 
 the following indictment, to which he had pleaded, 
 on the 11th of November, as before-mentioned. Vid, 
 p. 44. 
 
 “© County of the City of Dublin to wit. The jurors: 
 
 ** of our Lord the King upon their oath present, that 
 
 “© on the 9th day of July, in the year of our Lord 
 
 1811, at Pishamble-street, in the County of the 
 R 
 
“~ 
 Lay 
 
 130 
 
 City of Dublin, divers persons, to the said jurors | 
 
 unknown, assembled themselves together, and being 
 so assembled, and then contriving, and intending to 
 cause, and procure the appointment of a committee 
 of persons professing the Roman Catholic religion, 
 to exercise.an authority to represent the inhabitants 
 of Zreland, professing the Roman Catholic religion, 
 under pretence of causing ‘petitions to both houses 
 of Parliament for the repeal of all laws,remaining in 
 force in Lreland, by means whereof any: person pro- 
 fessing the Roman Catholic religion, is subject to 
 any disability, by reason or in consequence of his 
 religious tenets, and also under pretence of procur- 
 img an alteration of the said matters so esta- 
 blished by law, did then and there, amongst 
 other things, enter into certain resolutions of 
 and concerning . such Committee, and of and 
 concerning the said laws, so. remaining in force in 
 freland, and of and concerning certain, districts in 
 the city of Dublin, called parishes, and used as 
 such, for the purpose of public worship, according 
 to the rites of the Roman Catholic religion, of the 
 purport and effect here following, that is to say, that 
 a Committee of persons professing the Roman Ca- 
 tholic religion (meaning such, Committee as afore- 
 said) should be ‘appointed and requested to cause 
 proper petitions to both Houses of Parliament to be 
 forthwith prepared for the repeal of the penal laws, 
 (meaning the said laws'so remaining in force in Jre- 
 land) and to procure signatures thereto in all parts 
 in Jreland, and to take measures for bringing such 
 petitions under the serious consideration of the Je- 
 gislature, within the first month of the ensuing ses- 
 sions of Parliament, and that such Committee should 
 consist of the Catholic peers, and their eldest sons, 
 the Catholic baronets, the prelates of the Catholic 
 church in ZJredand, and also ten persons to, be ap- 
 pointed by the Catholics, in each county in Zreland, 
 the survivors of the delegates of 1793, to constitute 
 an integral: part of that number, and also of five 
 person tobe appointed by the Catholic inhabitants 
 of each parish in Dublin (meaning each district so 
 
 _ eqlled a parish as aforesaid) and that LdwardSheri- 
 
 . 
 
6é 
 
 cé 
 
 13] 
 
 dan, late of Dominick-street, in the county of the 
 city of Dublin, Doctor of Physic, being a person 
 professing the Roman Catholic religion, and divers 
 other persons professing the Roman Catholic reli- 
 gion, to the said jurors unknown, well knowing 
 the premises, but being ill disposed persous, and un- 
 lawfully contriving, and intending to aid, and assist 
 in, and towards the constituting and forming of stich 
 Committee, as aforesaid, on the 31st day of July, in 
 the said year 1811, at Liffey-street, in the county of 
 the city of Dudliw, in order to comply with such 
 resolutions, and to aid, and assist in, and towards 
 the constituting and forming of such Committee, 
 did meet and assemble themselvés together, for the 
 
 ‘ purpose ‘cf appointing five persons to act, as re- 
 
 presentatives of the inhabitants, professing the Ro- 
 man Catholic religion, of, and in one of the districts 
 in the city of Dudlin aforesaid, commoily called 
 
 the parish of St. Mary, in the said Committee, so 
 
 proposed to be formed, and that at, and in the said 
 meeting, so then and there held, for the said purposé 
 one Thomas Kirwan, then and there being a person 
 professing the Roman Catholic religion, was then 
 and there unlawfully appointed by the said persons, 
 so then and there assembled, to act as one of the re- 
 
 ' presentatives of the said inhabitants of the said dis- 
 
 trict, in the said Committee so proposed to be form- 
 ed, and that the said Ldward Sheridan, then and 
 there, with force and arms, knowingly, wil- 
 fully, and unlawfully, was one of the persons 
 so assembled, and then and there acted as chair- 
 man, and then aod there as-such chairman, pro- 
 posed as a question to the said meeting, whe- 
 theyx the said Thomas Kirwan should be ap- 
 pointed or uot, and on the said question- being 
 put, the said Thomas Kirwan was then and there so 
 appvinted, by the said persons as aforesaid; and so 
 
 ‘¢ the said: jurors say, that the said Mdward Sheridan, 
 
 6“ 
 ‘é 
 6é 
 
 in manner aforesaid, then aud there acted at and in 
 the said appointment, to the great encouragement of 
 riot, tamalt and disorder, to the evil example of all 
 others, in like case offending, and against the peacé 
 of our said Lord the King, his crown and dignity, 
 
132, 
 
 and against the form of the statute made and pro- 
 vided. 
 
 Second Count, And the said jurors of our said 
 Lord the King further present and say, that Edward 
 Sheridan aforesaid, so being a person professing the 
 Roman Catholic religi on, together with divers other 
 ill disposed persons professing the Roman Catholic 
 religion, on the 31st day of July, in the year of our 
 Lord, 1811, at Liffey-street, in the county of the 
 city of Dublin, met and‘assembled: themselves toge- 
 ther, for the purpose of appointing five persons: to 
 
 the Roman Catholic religion, of and in a certain’ dis- 
 trict, there situate, commonly. called the parish of 
 St. Afary, ina committee of persons, professing the 
 Roman Catholic religion, to be thereafter held, 
 
 and to exercise a right and authority to represent the 
 inhabitants of Jr eland, professing the Roman Catho- 
 lic religion, under. pretence of preparing petitions 
 to both Houses of Parliament, for the repeal of all 
 laws remaining in force in Ireland, by means where- 
 
 of any person, professing the Roman Catholic reli- 
 
 gion, is subject to any disability, by reason of his re- 
 ligious tenets, and of thereby procuring an altera- 
 tion of the said matters so established by law, and 
 that at and in. the said meeting so then and ‘there 
 held, one Zhomas J/tirwan then and there being a 
 person professing the Roman Catholic religion, was 
 then and there unl: awfully appointed by the said per- 
 sons, so then and there assembled, to act. as one of 
 the representatives of the said inhabitants of the said 
 district, in the said Committee to be so thereafter 
 held as last aforesaid, under the said pretence, and 
 that the said Edward Sheridan, then and theyre with 
 force and arms, knowingly, wilfully and anlawfully 
 was one of the persons, so then and ‘there unlawfully 
 assembled, and then and there acted as chairman of 
 the said meeting, and then and there as such chair- 
 man proposed as a question to the said meeting, 
 whether the said Thoinas Aurwan should be so ap+ 
 pointed by the said persons as last aforesaid, and 
 so the said jurors say, that the font Lidward Sheri- 
 dun, in manner fast aforesaid, then and there acted 
 
 » 
 
 act as representatives of all the inhabitants professing ~ 
 
133 
 
 ‘* at, and in the said appointment last mentioned, 
 
 ‘** the. great encouragement, of riot, tumult, and ‘dis. 
 order to evil example of all others. in. like cases of 
 fending, against the peace of our Lord the King, - 
 his crown and dignity, and against the form of the 
 statute in that case made and ‘provided.* 
 
 Mr. Kemmis opened the indictment. 
 
 Mr. Arrornry GENERAL. J/y Lords and Gentle- 
 men of the Jury. I cannot but cougratulate you, 
 Gentlemen, and the public, that the day of justice 
 has, at length arrived. I am sanguine in expecting, 
 
 €¢ 
 
 that the result of the proceedings of this day will be 
 
 to. frustrate the designs of treason, and to give an ef- 
 fectual check to those extremes, to which faction and 
 folly have of late proceeded. 
 
 Gentlemen of the Jury, the case of the Traverser 
 Mr. Sheridan, which is before you, lies, itself, in a 
 
 Narrow compass, both with regard to the law, upon 
 
 which the indictment is founded, and with regard to 
 
 * The following is the statute, upon which the indictment was fiestas 
 «© An act to prevent the election, or appointment of unlawful assem- 
 blies, under pretence of preparing, or presenting public petitions, or 
 ** other addresses to his Majesty, or the Parliament. 
 
 «© Whereas the election, or appointment of assemblics, purporting to 
 represent the people, or any descrip'ion, or number of the people of 
 this nation, under pretence of preparing, or presenting petitions, com- 
 «¢ plaints, remonstrances and declarations, and other “addresses to the 
 King, or toboth, or either houses of parliament, for alteration of mat- 
 ters established by law, or redress of alledged grievances, in Church and 
 «© State, may be made use of to serve the ends of factious aud seditious 
 *¢ persons, to the violation of the public peace, and the great and mani- 
 “« fest encouragement of riot, tumult, and disorder. Be it declared, and 
 «< enacted, by the King’s Most Excellent Majesty, by and with the advice 
 “¢ and consent of the Lords Spiritual! aud Temporal, and Commons, in 
 Parliament assembled, and by the authority of the same, that all as- 
 semblies, committees, or other bodies of persons, elected, or in any 
 other manner constituted, or appointed to represent, or assuming or 
 exercising a right, or authorit y to represent the people of this realm, or 
 
 «* any number or description of the people of the same, or the people of 
 ‘* any province, county, city, town, or other district, within the same, 
 under pretence of petitioning for, or in any other manner, procuring an 
 ‘* alteration of matters, established by law, iu Church or Sate, save and 
 ** except the knights, citizens, and burgesses elected to serve in the par- 
 liament thereof, and save and except the Houses of Convocation, duly 
 “© summoned by the King’s writ, are unlawful assemblies, and it shall and 
 may be lawful for any mayor, sheriff, justice of the peace, or other 
 peace officer, and they are hereby respectively authorized and required, 
 within his and their respective jurisdict‘ons, to disperse ail such uniaw- 
 *© ful assemblies, and if resisted, to enter into the same, aud to appre- 
 boed al! persons offending in that behalf 
 
154 
 
 the facts, by which the indictment is to be supportéd. 
 But the case connects itself with so mény others, and 
 with such a variety of matter, that if I shall ind my- 
 
 self under the necessity of trespassing a little longer 
 
 upon your time, than has been my custom, or tncli- 
 nation to do, you will give me credit, when [I say, 
 that I shall do so, with a view to the public peace 
 of the country ; and in ardent expectation of allaying 
 those discontents, and abating that fever and ferment, 
 which treason and sedition have too successfully ex- 
 cited in the minds of many of his Majesty’s Roman 
 Catholic subjects in Ireland. 
 
 _ Gentlemen, the project, against which the present 
 prosecution is levelled, is one which you will find 
 detailed in certain resolutions entered into by an as 
 seinbly, assuming to itself the denomination of ** A 
 “General Agoregate Meeting of the Catholics of 
 *¢ Ireland,” held on the 9th of July last, 
 
 This Aggregate Meeting sprang out of a resolution 
 
 of a Committee, which is well known, I am sure, to 
 every gentleman who hears me, which for the last 
 eighteen months has been acting a very distinguished 
 part indeed in this country, under the name of “ A 
 ‘¢ General Committee of the Roman Catholies of 
 “ Treland.” | 7 
 
 * If, And be it further enacted, that if any person shall give, or pub- 
 «* Jish, or cause or prociire to be given, or published, any written, or other 
 * notice of election to be holden, or of any manner of appointment of any, 
 ** person, or persons, to be the representative, or representatives, dele= 
 « eate, or delegates, or to act by any other name, or description what- 
 “ ever, as representative, or representatives, delegate, or delegates of the 
 * inhabitants, or of any description of the inhabitants, of any province, 
 « county, city, town, or other district, within this kingdom, at any such 
 ** assembly, or if any person shall attend, and vote at such election or 
 ** or appointment, or by any other means vole or act in the choice, or ap- 
 * pointment of such representatives or delegates, or other persons to act 
 ** as such, every ‘person who shall be guilty of any of the said offences 
 ‘+ respectively, being thereof convicted by due eourse of law, shall be 
 «© deemed guilty of an high misdemeanor. wary 
 
 “© III, Provided always, that nothing herein contained shal! extend, or 
 « be construed to extend to, or affect elections to be made by bodies cor- 
 “ porate, according to the charters and usage of such bodies corporate 
 6. respectively. 
 
 « TV. Provided also, that nothiug herein contained shall be construed 
 «* in any manner to prevent, or unpede the undoubted right of his Majes- 
 « ty*s subjects of this realm, to petition his Majesty, or both houses, or 
 “either house of parliament, for redress of any public, or private 
 “ grievance.” 
 
« 125 
 
 - Gentlemen, when I talk of treasonable motives, as 
 connected with this measure, let me not be misun- 
 derstood. Iam fully persuaded, that the great portion 
 of the educated Roman Catholics of Zredand are loyal 
 to their King, and have no tntention of conducting 
 themselves otherwise, than agreeably to the laws of 
 their country. Nay, Gentlemen, that many of them 
 look with as,much disgust, as any of us, upon the 
 lawless and seditious proceedings, which have been 
 carried on for a considerable time past, falsely, under 
 the name and authority of the Roman Catholics of 
 Ireland: Nay, 1 will.go further, and most unequivo- 
 cally declare my conviction, that 2 great proportion 
 of those Roman Catholics, who have taken an active 
 part in furtherance of this project, are loyal men, 
 who mean nothing like treason or sedition :—but 
 that they have been misled and duped by the artifices 
 of those, whose designs they are not able to pene- 
 trate. 
 
 That many of them are young men of ardent. 
 minds, whose passions have been inflamed by engaging 
 in a political pursuit; who are not actuated by any 
 more criminal motive, than the vanity of raising them- 
 selves into notice :—and who yet by these acts and 
 these speeches, are working the work of the United 
 Irishmen, in the cause of separation and revolution, 
 not considering, that in the gratification of their va- 
 nity, they are endangering the public. peace, and 
 directly counteracting the object of that Catholic pe- 
 tition, of which they pretend to be the advocates. 
 
 Gentlemen, that is the view, which I have taken of 
 the project, which at this time of day has been formed, 
 of calling a National Convention—a representation of 
 all the estates of the Roman Catholics of Jreland.— 
 I will now call your attention to the resolutions of the 
 Aggregate Meeting, which assumed to itself to be a 
 General Meeting of the Roman Catholics. , 
 
 - 
 
[36 
 
 ‘Ata Meeting of the Roman Catholics of Zreland, 
 ‘held in F¢shamble-street, on the 9th of Judy, 1811. 
 
 ‘¢ Earl of FinGavy, in the Chair. 
 
 erat That being impressed with the- unalterable 
 © conviction of ihe’ undoubted right of every man to 
 ** worship his Creator accor ding to the dictates of his 
 *¢ own conscience, we deem it our duty, thus publicly 
 ‘and solemnly to declare our decision, that no Go- 
 ‘¢ vernment can inflict any pain, penalty, or privation, 
 ‘* for obeying that form of Christian Faith, which in 
 ‘¢ his conscience he believes to be right.” 
 
 Genlemen, that 1s the first: resolution ; the dbivet 
 of which you ‘will plainly. perceive, is to impress 
 upon the minds of the Roman Gathaliaa of this 
 country, that they are at this day subject to pains 
 and penalties for exercising their religion, a resolu- 
 tion not founded im truth, ‘and Sulculted to mislead 
 the loyal Catholics of Fela 
 
 ‘¢'The second resolution, is—** Resolved, that we 
 ‘‘acain petition the Legislature, for a repeal of the 
 és Have affecting the Catholics of Ireland.” | 
 
 Gentlemen, ‘the right of petitioning, and of pre- 
 paring petitions, a according to the laws of the land, 
 there is no: man in this country, who either did, or 
 does dispute. 
 
 Their third resolution, is—*%* That in exercising our 
 * undoubted right to petition, we will adhere to the 
 “ancient forms of the Constitution.” 
 
 ¥ ully aware of the law, against w hich they were at 
 that instant about to offend, but professing | at the 
 same time their obedience to it. 
 
 Their fourth resolution, was—That a Committee be 
 “ appointed to enquire into the penal Jaws, and make 
 ** a report wit"in one month of the ensuing’ session of 
 ** Parliament.’ . . 
 
 The next resolution deserves particular attention. 
 
 ‘* That the Committee to be appointed to prepare 
 <¢ petitions to Parliament, do consist, first of Catho- 
 ‘‘ lic Peers, and eldest Sons of Peers, and Catholic 
 +f Boronthieencoond: Catholic Prelares ;—third, ten 
 ‘* persans chosen from each county, and the survivors 
 
 14 
 
137 
 “ of the Delegates of 1793, to form an integral part 
 ** of that number;—fourth, five persons from each 
 ** of the parishes in Dublin.” 
 
 Gentlemen, you will perceive, what a formidable 
 assembly was thus constituted—an assembly consisting 
 in point of numbers, of between 4 and ‘500 persons, 
 representing every estate of his Mayjesty’s Roman Ca- 
 -tholic subjects, in Zreland. The Peers—the Clergy, 
 and the Laity. It was also resolved, that the ap- 
 pointment of these Delegates should be made forth- 
 with, and until this new body was formed, the ma- 
 nagement of Catholic affairs was confided, to certain 
 Peers, Baronets and survivors of the Delegates of 
 1793; so that until this ‘* National Convention,” 
 should be assembled for the purpose of preparing the 
 petition, and procuring signatures, the affairs of the 
 Catholics should be managed by an Jntertm Govern- 
 ment.’ This last resolution proving unequivocally, 
 that this Convention was not to be confined to the ob- 
 
 ~ ject of preparing a petition to Parliament, but was to 
 have a general management of the affairs of the Roman 
 Catholics of Zreland. 
 
 Gentlemen, by the laws and constitution of this 
 ‘land, the management of the affairs of all the King’s 
 subjects, is intrusted to the parliament of the empire ; 
 ‘if therefore the people shall at any time attempt, or 
 assume to set up, any representative body, for the 
 management of their affairs, such attempt is a dis- 
 claimer of the lawful parliament of the land, and a 
 usurpation of its authority. Gentlemen, I will beg 
 leave to put it, not to you, but to every unprejudiced 
 man, every Roman Catholic, who hears me, who will 
 consider and reflect upon the subject, whether the 
 convening such an assembly, in the metropolis of this 
 country, can be reconcilea)le—not with the statute 
 jaw of the land—but with the principles of any law 
 whatsoever, whether it is to be endured, in any state, 
 in which there is the form of a government, that an 
 assembly so constituted, should be tolerated or al- 
 lowed? Gentlemen, it is against the fundamental 
 principles of all government, that the people should 
 -assume an authority to have themselves represented 
 
 S 
 
 > 
 
138 
 
 in an assembly, distinct from that, which: is: known 
 to, and established by the law. Fis ea 
 But it is contended, that an assembly, so spiernest- 
 able-as this, could not be guilty of any misconduct, 
 or act in any way contrary to law. Gentlemen, »itds 
 not, that an assembly of ‘this magnitude, has an it 
 _tvany respectable und loyal persons, ‘that it \is, there- 
 fore, to be countenanéed ‘or ‘endured; or ‘that ‘thie 
 -pabtic: peace can cbe! guaranteed ‘by the integrity of 
 -sach persons; in ‘sucl assemblies, it is ndtorious, that 
 the modevate‘and ‘well meaning are overborne by the 
 ‘turbulent, the’ factious, aud the desperate. Let me ‘eall 
 your attention, to ‘that ‘very committee out of’ whose 
 resolutions the present intended assembly was to take 
 ‘its rise. “We all recollect that committee, and its 
 proceedings, during a great part of the last year, and 
 the beginning of the present. I appeal not to you, 
 but to every loyal and dispassionate Roman Catholic, 
 who hears me, whether that committee, though con- 
 taining many most respectable and loyal men, did-not 
 _ proceed to such excesses, to such an abuse of the»pri- 
 vilege, under which they claimed to ‘meet, of :allde- 
 cency and decorum, that every. good and loyal Roman 
 Catholic was'scandahzed ard ashamedsof them. Were 
 _there not found members of. that committeeraisa, ito 
 deliver speeches so, gross, that the seditious press “of 
 Ireland became afraid to publish, what they were fot 
 ashamed to'speak, Every man, who regarded, the public 
 peace cried out against thems; and Tam sure, thatif 
 ‘blame be imputable to. the government with respect 
 that committee, it must be, that it did’ not interpose 
 soouer, and for having ingergered with it when ait did. 
 ; When it was expected, at least. when every one 
 hoped,, that it. was. shot to terminate its: sittings, ig 
 issued aycircular letter, calling for a renovation of it- 
 self, by the addition to its, numbers of; ten represen- 
 _tatives from the. counties, and five from)every parish 
 in Dublin. It. was then, and not till.then, that.go- 
 vernment interfered ; it. interposed, .not-by a measure 
 violatory of the. law, but by. notifying \to the magis- 
 trates, that the intended elections of persons to-be ine 
 
 | 
 
“139 
 
 scorporated with the committee, would: be. against the 
 statute law of the land, and that recourse. Would be 
 hadi to the law to prevent’ such a mischief: ~Fhat in- 
 “terpesition had the desired effect; treason and, sedi- 
 tion were checkedip their progress, and the project 
 was for a time abandoned. The committee afterwards 
 met; many of those respectable characters, who had 
 seceded, during the period, or about the time when 
 the committee had so much, misconducted itself, re- 
 turned to it,. The admonition of the government, 
 and the presence and prudence of these persons, re- 
 strained the commission of similar excesses, and there- 
 fore the same disposition to lenity en the part of the 
 government, which had marked its conduct before the 
 issuing of the circular letter of the committee, indu- 
 eed the government not to interfere, the project con- 
 .tained in that letter having been abandoned. 
 But ¥ have digressed from my subject, in pursuing 
 the history of thakicommittee! to. its ‘conclusion. I 
 ‘again return'te it, by asking, Is it in the conduct of 
 that committee, that the government of the country 
 ‘are to look for a guarantee, that all the acts and 
 ‘proceedings of the intended National Convention of the 
 ‘Roman Catholics of Ireland, will be marked by 
 moderation and loyalty ? 
 But it is contended, that as the avowed purpose of 
 this Convention is to prepare and forward a Petition. to 
 Parliament, the Petition of the Roman Catholies, for 
 ‘the repeal of the laws which affect them; that on this 
 ground government ought to connive at it. Gentlemen, 
 Petition “being an ostensible object, it is necessary to 
 call your attention to the nature of that Petition, which 
 jt is alleged and pretended, is to be the sole bustheds of 
 ‘this * ‘National Convention.” For this purpose, I think, 
 it may be useful, not only with respect to the subject 
 of the present trial, but also, in setting right the minds 
 ‘of such of my Roman Catholic countrymen, as have 
 been misled or abused, to state, very shortly, what is 
 the actual political situation of the Roman Catholics of 
 Jreland at this day, and thereby to ascertain precisely, 
 what is the object of this Petition, which is made the 
 “pretence for convening this National Assembly, 
 
140 
 
 Gentlemen, for this purpose, I shall go back to the 
 year 1778, and state how the Roman Catholies of Jre- 
 land stood at that time, and then shew, very briefly, 
 in what situation they stand at present. In.1778, a 
 period in the recollection of many of us, they were, 
 with regard to Janded property, disabled from ac- 
 quiring any interest in lands beyond leases for 31 years, 
 on whicha rent amounting to two thirds of the value 
 should be reserved ; with regard to the estates of which 
 they were in possession, they were disabled from dis- 
 disposing of them, except for value in money, and 
 that to Protestants; their estates were made to gavel 
 among all the sons, for the purpose, and from the policy 
 of reducing the power of the Roman Catholics,—the 
 _eldest_ son was enabled by his conformity to reduce his 
 father to the situation of a mere tenant for life of his 
 estates, with the reversion in fee to himself, subject to. 
 portions, debts, and.engagements: such was their situa- 
 tion, with respect to landed property ;—With respect 
 personal privilege, they were incapable of holding any 
 office, civil or military, in the State,—of exercising the 
 elective franchise; they were not admissible to the 
 profession of the law; their clergy, regular and secular, 
 were subject to various disabilities; no man of that 
 Religion was to keep a horse of above the value of £5, 
 if government thought fit to take it from him, and there 
 "were various other disabilities and penalties to which 
 they were subject, which it is not necessary to enume- 
 rate. In the year 1778, the legislature interfered, by 
 allowing them to acquire a.permanent interest in Jand, 
 not exceeding however, terms for 999, years, upon 
 which arent should be reserved. But the estates which 
 they had previously acquired were by that act made 
 disposeable ; exactly as the estates of Protestants were, 
 and in that respect, they were put upon a perfect equa-. 
 lity with them; the law which enabled the son, to con-. 
 vert his father’s estate to a tenancy for life was repealed. 
 So far the legislature interfered, inthe year, I have 
 mentioned. By the 2ist and 92d of the King, they 
 were further relieved, by being enabled to acquire 
 estates in fee simple, and their. incapacities with regard 
 to Janded property were completely removed; they 
 were also relieved from a variety of penalties and for. 
 feitures, to which they had been subject by the penal 
 
 ~ 
 
141 
 
 code;—still however, after that, and other intermediate’ 
 acts,’ till 1793, they remained subject to the full opera~' 
 tion of the test acts; they were not admissible to any 
 offices civil or military, they were disabled from exer- 
 
 cising the elective friinchise, and excluded from the 
 from the profession of thevlaw. But in. 1793, the 
 Statute passed, to which I wish to call your attention, 
 because it appears necessary, it order to refute the 
 assertions daily made by the press, and calculated and. 
 intended to mislead and impose upon the minds of the. 
 Roman Catholics of Zreland, that they are liable at this, 
 day to the penalties of the Popery laws. This act of 
 Parliament will give to you, and to the Roman Caiho- 
 lics of Jredand, a clear and distinct view of their pre- 
 sent situation 5 Hite they have acquired, J have stated, 
 
 what remains for them to demand, and for Parliament. 
 to grant, you will see presently. I will read the pream- 
 ble from the statute, 33 Geo. 3. chap. 21. | “* Whereas 
 ** various acts of parliament have been passed imposing 
 “on his Majesty’s subjects professing the Popish or Ro- 
 *““man Catholic religion, many restraints and disabili- 
 ‘ties to which the otlier subjects of this realm are not 
 liable, and from the peaceable and Joyal demeanor 
 of his Majesty’s Popish or Roman Catholic subjects, 
 itis fit that such restraints and disabilities shall be 
 ‘¢ discontinued.” It then enacts, that his Majesty’s sub- 
 jects of the Roman Catholic religion, shall not be liable 
 or subject to, any penalties, oe relviros! disabilities, or 
 incapacities, or to any laws for the limitation, charg~ 
 ing, or discovery of their estates and property, real 
 and personal, or touching the acquiring of property, or 
 securities affecting property, save such, as his Majesty’s 
 
 subjects of the Protestant religion are fiable and sub- 
 ject to.—This clause, at one stroke, has put an end to all 
 penalties, disabilities, and incapacities, to which Roman. 
 Catholics were subject, and they are put upon a footing 
 -with their Protestant fellow- subjects, with this excep= 
 
 tion—that the statute still retains, in part, the provision 
 of the test acts, by which, both in #ngland and in 
 
 Ireland, certain oaths are to be taken, and cerenionies 
 
 to be werlornsed by persons holding offices of trust. 
 
 But this statute has excepted the Roman Catholics of 
 Lreland from the operation even of the test ac's, with 
 respect to all offices whatever, save only and except 
 
{ 
 \ 
 
 142 
 
 the particular offices, which are specially enumerated? 
 fn the statute, and A biah { wilh read from the statute 5° 
 (the Arvozney GENERAL then read’ the enumerated! 
 offices in the statute,)—except ‘with these enumerated 
 offices, there ts no legal or political distinetion® bee ’ 
 tween lis Majesty’s Protestant’ and Romar Catholic 
 swhjects of Lreland, ee 
 Gentlemen; Let it not? be juice that: r am 
 undervaluing the consequence of being admissible’ 
 ta these offices, to men of rank and property jin’ 
 the ‘country. i acknowledge them to be’ laudable 
 objects of ambition; and that it Is the right of every ‘ 
 Roman Catholic Subject, to petition to ‘be relieved 
 from the operation of the Test Act; but Iam en-— 
 deavouring to. imeress upon your hinds, how much 
 the: sabject of the Roman Catholic petition is. nar- , 
 rowed, and confined; and how little it can be ne- | 
 eessary, at this day, and for the first time, to. calla 
 National Convention of all the estates of the Catholics: 
 of Freland—an assembly of five hundred persons—in 
 order to prepare a petition to Parliament for the pur- 
 pose, which I have «distinctly submitted to» your’ 
 view ; a petition which any man, who can read and ° 
 write, is as capable of drawing and framing, asithe 
 ablest Statesman in ‘the land; bat when § add to 
 this, that the petition has been already prepared ; 
 shat it has been again and. again presented to Par- 
 Wament; that it has been again and again received 
 and discussed; that it was never rejected, as defective 
 im form, or in ‘substines; I appeal to the good sense 
 and Hatidont of every Roman Catholic, “who. hears 
 me, if it be not a mockery to tas vey. 8) to Par- 
 liament is the sole, er the reat object of calling a 
 * National Convention” of . five hundred Serene ee 
 to sit in the metropolis? I cannot reconcile. it to 
 my understanding, but I can well conceive why at. 
 should be desirable to some, that there should be 
 such an assembly.. H we can suppose, that ‘there | 
 exists a rebel party in this country, a remnant of the » 
 United Trishmen, who are, labouring to effect by arti- 
 
 fice, that which they could: not aecommplish by force ; . 
 
 ~ 
 
 a- 
 
143 
 
 who are labouring to undermine that constitution, 
 ‘which, in 1798, and in 1803, they attempted te 
 ‘carry by assault ite can well conceive, that they may 
 have an object in, having sach an assembly establish- 
 ed within the. nietropolis. Is not the danger to the, 
 Government, and the constitution of the country, ob- 
 vious in the establisment of suchanassembly? Under 
 . what controul, I would ask, is such an assembly te 
 sit, save its ewn discretion? Where are the rules 
 -and orders to be found, which are to regulate its 
 “proceedings? Mark the wisdom of our constitution; _ 
 in our Parliament, io which is to be found every 
 thing whichis dignified in the Peerage, every thing 
 that is valuable in the Prelacy, ;every: ‘thing that vank 
 and fortune and character can render respectable.— 
 ‘That Parliament cannot meet, but under the or- 
 der of the King’s writ; it-cannot.continue its sittings 
 ‘beyond the moment, when itis the pleasure of the 
 crown that its sessions shall be closed. But this 
 ** National Convention,” called by no will: of the 
 King, is to be subject to no controul, but its own 
 discretion. 
 
 Gentlemen, I am astonished, that the loyal: ent | 
 rational amongst the. Roman hshalies of Ireland 
 do not perceive that an imposition upon their .un- 
 ‘derstandings is attempted, when they are told, that the 
 convocation of such an assembly, is immediately, or 
 ‘remotely, necessary to the carrying of their petition 
 ‘to Parliament. 
 
 ‘T have done, therefore, with that part of the sub 
 ject; and, gentlemen, I now bég leave to call your 
 attention, and that of the Court to the statute on 
 “which this prosecutjon is founded, from which it will 
 ‘appear most clearly, that such an assembly is an un- 
 Jawful assembly; and that the electing of delegates 
 to such an assembly, is contrary to the statute. laws of 
 the land. 
 
 - Antecedently to the enactment of the statute of 
 the 33d of Geo. 3.,¢..29, upon which the ,present 
 indictment has been framed, attempts had been made 
 
 é 
 
: bs 
 
 by certain visionary politicians, in the northern parts 
 ot ZJreland, to have delegated assemblies holden, for 
 the purpose of forwarding particular objects, which 
 they had in view; some ‘of. those persons, no doubt 
 had revolutionary objects j in view, but certainly, there 
 were many, wlio meant no ihiscliter whatsoever. ‘The 
 ostensible object was to forward the purposes in view, 
 by an assembly, which by the werght and authority, 
 which it would acquire from representing a great por- 
 tion of the people, would attract public attention ; 
 and that the debates of such ah assembly by the force 
 of its eloquence, the strength of its arguments, and 
 the firiniess of its toné would carry with it the public 
 sentiment, and finally coerce the legislature into the 
 ailoption of those measures, which ‘those politicians 
 
 thought fit to recommend for the country. ‘The legis-- 
 
 ‘lature saw directly the danger to the public, ‘peace, 
 and‘to the constitution, Which such delegated assem- 
 ‘blies were likely to produce; and therefore. it was, 
 that the statute was enacted. I will beg to call your 
 “attention to the preamble of the statute, which will 
 explain best the extent and force of the enactment, - 
 
 “ Whereas the election or appointment of assem- 
 blies purporting to represent the people or any de- 
 scription or namber of the people of this realm, 
 “under pretence of preparing or presenting peti- 
 “tions, complaints, remonstrances and déclatations: 
 © and other addresses to the King, or to both or either 
 Houses of Parliament for alteration of matters esta- 
 blished by law, or redress of alleged grievances | in 
 Church and State may be made use of, to serve the 
 ends of factious and seditious persons, to the. ViOn, 
 lation of the public peace, and the great and ma- 
 nifest encouragement of riot, cated, and disor- 
 der?’ The ‘mischief recited is, that the appaiut- 
 ment of such assemblies might be made use of, to 
 serve the ends of faction, that is, that such. assemblies, 
 are, from their very nature, of a dangerous tendency ; 
 if°so, what would common sense sugcest, as the pro- 
 ee remedy. Why, no doubi, that 8 Reh assemblies 
 
 £é 
 
 my 
 
 &e 
 sé 
 $s 
 66. 
 6¢ 
 $¢ 
 
 $6 
 
 ? 
 
 ¢ 
 
' 
 
 145 
 
 should not be suffered to exist ; and that is precisely 
 what the statute has done and meant to do. For, 
 whereas with regard to all other assemblies, their le- 
 gality or illegality, depends upon their proceedings : 
 if their acts and proceedings be unlawful, the assem- 
 
 “bly will be unlawful, and they will be subject to the 
 
 correction of the law ; but with regard to those assem-~ 
 blies, the legislature makes their illegality depend 
 upon their very constitution; and, therefore, it enacts 
 that all such delegated or representative assemblies, 
 *« for procuring an alteration of matters established by 
 “ law, in Church and State, are unlawful assemblies, 
 * and it shall and may be lawful for any peace officer 
 * to disperse them.” 
 
 That this is the plain meaning of the statute, name- 
 ly, that the constitution of the assembly, not its con- 
 duct, is the criterion of its illegality, appears from 
 two provisions of the statute ; one is, that, without 
 waiting for, or enquiring into any act done by such an 
 
 assembly, the peace officers are required to disperse 
 
 them. Could it be in the contemplation of the legis- 
 lature, that the officers of justice should exercise a 
 
 judgment on the proceedings of such an assembly, 
 
 and according to those proceedings, to disperse them 
 ornot? to sit injudgment, from day today, in order 
 to decide, whether the pretence or avowed object of 
 these meetings were a true ora false one? Under 
 such a construction, how could the statute prove a re- 
 medy against the dangerous tendency of such assem- 
 blies, when no remedy could be applied, until the 
 mischief would be effected, which the legislature 
 meant to prevent? 
 
 ' The second provision of the statute, which proves 
 this to be its meaning, is the second section of the 
 act, upon which the present indictment has been 
 framed; by that section, it is made a high misde- 
 ineanor, for any person to give or publish notice of 
 an election or appointmeut of a representative or 
 delegate. The manifest object of this clause is, to 
 prevent the existence of such an assembly, and tp 
 
146 
 
 stifle the attempt to form it, in the very cradle.— 
 It is obvious, upon this second section, that a pro-_ 
 gecution may be maintained before. the assembly has 
 met. ; 
 
 But. if any thing else were the object’ of the le- 
 gislature, all prosecution must be suspended, until 
 it were discovered, that the assembly was for no 
 improper purpose; aud no prosecution could be 
 maintained, until after the assembly had been dis- 
 persed, when the object of prosecution, for the elec- 
 tion, would be at an end. 
 
 From these provisions, as well-as from the professed 
 object of the act, which is to prevent a mischief, 
 rather than to punish it; it is clear, that the ille- 
 gality of such an assembly depends on its constitu- 
 tion, and not on its proceedings. 
 
 But I will examine the statute more particularly, 
 and, I think, remove every shadow of doubt upon 
 the subject. The only ground, upon which any 
 cavil can be raised, is, upon thé use of the word 
 ~ pretence,” which is introduced into this statute.— 
 The assembly mentioned in the preamble, is an as- 
 sembly, purporting to represent the people, under 
 ““ pretence of preparing and presenting petitions.” 
 
 Now, I understand, it will be contended, on the 
 part of the traverser, that, the word “ pretence,” 
 contained in the statute, is used by the legislature 
 as meaning “a false pretence ;” and that therefore, 
 a delegated assembly, or such a committee as I haye 
 been describing, if assembled for the purpose, really 
 of preparing, and presenting a petition to Parlia- 
 ment and the King, isnot within the provisions of 
 ihe statute. That argument can be founded only 
 upon the presumption, that when the legislature 
 used the word “ pretence,” they intended “ a 
 false pretence.” I will shew, both from  prece- 
 dent and authority, as from the statute itself, that 
 that the word “ pretence,’ used indefinitely 
 does not import a falsz pretence,” but that its 
 “true, legal and statutable meaning is claim, assump- 
 
147 
 
 tion, or profession; and then the.'statute will run thus, 
 * that all delegated assemblies, clarming, or asswning, 
 *¢ or professing, by petitioning or by any other means, 
 *€ to procure an alteration of, matters established by 
 ** Jaw, are unlawful assemblies.” When the Legisla- 
 ture means to use the word ‘‘ pretence,” as a false 
 pretence, it uses the epithet fa/se—-thus in the sta- 
 tute 26 of Geo. III. chap. 27, ‘* if any person’ know- 
 ** ingly and designedly by false pretence or pretences, 
 “obtain money, goods,” &c. then the epithet false 
 is annexed to the word ‘¢ pretence,” it being the in- 
 tention of the Legislature to confine its meaning te 
 the case of a ‘‘ false pretence ;” in the statute of 3 
 Henry the 8th, chap. 9. ng. against datnlenaves, 
 it is enacted, that no person shall buy, or contract 
 for any pretensed right, or title—there using the word 
 indefinitely, and yet the construction of that statute 
 has been, that whether as Lord Coxe says, the title 
 be nearly false, and nothing in verity—Or whether 
 it be a real title, in either case, if the party contract- 
 ing be out of possession, it shall be declared a pre- 
 tensed title. So that in the language of our statutes 
 the word ‘ pretence,” indefinitely, * does not import 
 “a true, or a false pretence ; but a claim, assumption, 
 or profession, whether the same be false or well- 
 founded. But there is a decisive authority upon this 
 subject, arising on a statute, quite similar to the pre- 
 sent, and from which indeed the statute, now in ques- 
 tion, seems to have been SARIGE It is the 13th of 
 Charles ad, chap. 5. Eng. the title of it is very like 
 the present ; itis ‘* An act against tumults and disor- 
 ** ders, upon pretence of proposing petitions, and ad- 
 om dresses, to his Majesty and the Parliament.” It 
 recites, that by sad experience, tumults, and other 
 ‘‘ disorders in preparing petitions, and bringing up 
 *€ petitions by excessive numbers, endangered the 
 «public peace.” That statute in order to prevent. 
 the recurrence of such miscliief, prohibits the bring- 
 ing up of petitions by any Saban exceeding doa 
 It is the acknowledged law of Lngland, that to bring 
 up a petition by “any ereater number, subjects the 
 parties offending to the “penalty of £100 in money, 
 and three months’ imprisonment. Now I beg leave to 
 call your Lordships’ attention to the words used by 
 
148 
 
 the Legislature, to carry their object into éxécution— 
 it is enacted, ** That no person shall repair to his 
 <¢ Majesty, or both, or either Houses of Parliament 
 ‘<< upon pretence of delivering any petition, with above 
 ‘the number of ten persons.” Now, if the argu- 
 ment in the present case on the other side, be well 
 founded, it must amount to this, that notwithstanding 
 that statute, any number of persons may go up with 
 ad petition to Parliament, or to the Kine, and that 
 no prosecution can be iia ria ined dnless such fame 
 bers have no petition ; and meet to disturb the public 
 peace, under the false pretence of petitioning. “In 
 that case the statute would be of no manner of use; 
 it would prevent nothing ; it would be suspended 
 while the mischief had happened, when it would be 
 punishable by the ordinary law of the land—as it stood 
 before the statute was made. But the object was to 
 prevent that from which mischiefs were likely to en- 
 sue, and therefore if a greater number of persons than 
 ten, should accompany such a petition, they would 
 be guiity of the offence, even though they were real 
 petitioners. 
 
 Here is a statute, in which the Legislature has 
 used the word ‘* pretence,” and most clearly not 
 ** false pretence,” but indefinitely, as profession, whe- 
 ther false or true, and construing the word ‘€ pre- 
 “* tence” in the statute, now in question, in the same 
 sense, it makes the statute clear and consistent; it 
 efiects the object wiich the Legislature had in view, 
 and removes every difficulty out of the case, 
 ~ So far, I have contended on the authority and pre- 
 cedent, for the true cénstruction of the word © pre- 
 ads tence” in the Statute in question. I will now prove 
 10 your Lofdships full satisfaction, from the statute 
 itself, that it is, and‘was used there in the same sense, 
 and none ether. ‘The statute enacts, that, in two in- 
 stances, delegated assemblies shall be pntaweats eee 
 if they are delegated assemblies under pretence of 
 toning, they are unlawful, (the other side contend 
 that must be “ false pretence 3”) but then let me direct 
 your attention to the second member of the same 
 sentence, ‘* or if they are delegated assemblies under 
 “pretence of, a any other manner, procuring an 
 ‘¢ alteration of matters established by law” in Church 
 
 ee 
 
149 
 
 ‘© or State,” they are unlawful. I would ask, whether 
 of delegated assembly, boldly avowing itself to be met 
 for the purpose of an alteration, of matters established 
 by law, by its debates—by the weight of its dele- 
 
 gated authority=-by the effect which it may expect to 
 have on the public mind, and so ultimately to induce 
 
 the Legislature to alter the laws, according to its pre- 
 scription? Would that be an assembly within the 
 meaning of the act? It would not meet under any 
 false pretence, No, the declared object would be the 
 trhe one; and clearly it must be admitted, that such 
 ati assembly would be directly contrary to the law. 
 If so, the Legislature in one instance must have used 
 the word pretence, not only in two distinct meanings, 
 bot in two meanings dianietrically opposite to each 
 other ; as false “ pretence,” when applied to petition. 
 ing, and as true pretence, when applied to any other 
 mode of effecting any alteration in the established 
 laws. And therefore, my Lords, the plain meaning 
 of the statute, is, that all representative assemblies 
 for the purpose of procuritig an alteration of matters 
 
 established by law in Church or State, whether by pe- 
 titioning, or in any other manner whatsoever, are 
 made unlawful, and why?! because they are of ‘dau- 
 gerous tendency. 
 
 But further, the sense ef the legislature is clear, for 
 the next clause of the statute, which contains the saving 
 out of the enactment. Nothing can serve to shew more 
 satisfactorily the extent and comprehension of the enact- 
 ment of a statute, than the saving or PREORUGD of it; 
 for if the legislature bad not conceived that the matter 
 contained in the saving were within the extent of the 
 enactment, there would be no use if the saving. Now 
 see what the saving in this statute is, save and except 
 the knights, citizens, and burgesses, elected to serve 
 in Parliament, and save and except the houses of con- 
 vocation duly summoned by the King’s writ. Now if 
 the statute in its enactment, extended only to assem- 
 blies met under a ‘‘ false pretence,” it would be useless, 
 nay absurd, to save and except those assemblies, w hich 
 meet under the real and true pretence of altering the 
 Jaws, and if the legislature held it necessary to except 
 those assemblies, which meet for the true and real pur- 
 pose of altering the laws, and did not except or save 
 
150 
 
 any others, must it not follow that the enactment of the 
 statue ek tends to all other assemblics whatever who 
 meet to procure an alteration of the ANS whether on 
 true or false pretences ? 
 
 Mr. Justice Day. The saving seems to have been 
 unnecessary. it , 
 
 Mr. Arrorney GENERAL. But, my Lord, it shews. 
 clearly, that the meaning of the legislature was to in- 
 clude in the enactment, every Delegated Assembly, 
 which-had for its object, "whether true or false, to pro-. 
 cure an alteration of matters established by law. It 
 only remains, therefore, to call your attention to the 
 4th proviso, which I presume, will be relied upon, as 
 doing away the prior enacting clauses. If I have suc- 
 ceeded in satisfying your lordships’ minds, that the 
 enactment is clear, which makes a delegated assembly _ 
 for the purpose of procuring an alteration. of the law, 
 unlawful; because it is delegated, whether professing 
 to: procure that alteration by. petition, or other means 
 whatsoever ;, there will be no diffic ulty, AP disposing of 
 the. fourth proviso, which provides, ‘ ‘ That nothing 
 ‘* in the act contained, shall be construed in any man- 
 ‘¢ ner to prevent or impede, the undoubted right of 
 «¢ .his Majesty’s subjects of this realm, to petition his 
 ‘¢ Majestv, or hoth houses, or either houses of Parlia-. 
 ‘¢ ment, for redress of any public or private grievance:” — 
 My Lords, before this statute, a claim was made, novel 
 and unprecedented, never recognized as law, of peti- 
 tioning by delegation. ‘This statute cut it up by the 
 roots, and having done so, thea comes this cautionary , 
 provision, that fag act sh: i not be construed to impede ; 
 the undoubted right of petition; that is, that the act, 
 shal} not be Carian by construction beyond its enact- 
 ment; this can never be considered as a saving and- 
 exception of delegated assemblies out of the enact-_ 
 ment. If that bad 4, RE intended, why should they not 
 be found in that part of the act, which contains the. 
 express saving and exception? ‘No: the legislature | ‘\ 
 does not so soon repent of the wise enactment it has 
 made, as by a proviso at the end, to undo all that the 
 preceding parts of the act had done; they only add a 
 cautionary proviso, that the statute Showa not be car- 
 ried, by construction, beyond the aaa ie that it. 
 should: not interfere, as, it docs not, with the ancient | 
 
151 
 
 and unquestionable right of petitioning to be exer- 
 cised in the manner in which, from the earliest times, 
 in Hngland and Jreland it had been exercised, 
 
 But see, my Lords, what would be the effect of this 
 statute, if this clause should be construed as a saving 
 for assemblies delegated for the purpose of peti tion- 
 ing. It never has been denied, that as well before as 
 since the statute, the law and usage of Parliament 
 would not permit that a petition should be received 
 from such an assetnbly, as being unknown to the law 
 and the constitution. This seems to be conceded by 
 the Roman Catholics themselves, who never have at- 
 tempted to petition by their committees or delegates, 
 but give the clause in question the effect of a saving 
 for assemblies delegated for the purpose of petitioning, 
 and the effect of this act must be to introduce and to 
 legalize a mode of,petitioning, which before the act 
 could not, according to the law of Parliament, be 
 used, for, if the Act of Parliament does particularly 
 except ‘° delegated associations for the purpose of pe- 
 ‘¢ titioning” out of the prohibition of the statute, it 
 must recognize them as lawful assemblies, recognized 
 as such by the legislature, surely it must follow, that 
 the legislature, after the passing of this act, could not 
 refuse a petition from such an assembly : and if so, the 
 title of this act is quite mistaken. Tt ought to be en- 
 titled ** An act to extend the subjects’ right of peti- 
 “ tioning, by enabling them to petition “(whieh be- 
 “ fore the act they were never authorised to do) by de- 
 “¢ Jegation,” and therefore giving*the act this construc- 
 tion, it must follow, that the Roman Catholic conven- 
 tion proposed to be assembled, should be empowered 
 with the act in their-hands, tocarry up a petition to the 
 King or the Parliament, ahd to insist, that they have 
 now, by virtue of the convention not in Jreland, a 
 right which -they never had before—of presenting a 
 petition to the King or either house of Parliament. 
 On the whole, my Lords, it is impossible to make Buy 
 other construction of this statute than that for which [ 
 have contended, namely, that delegated or rascal cal 
 tive associations for effecting an alteration of the esta- 
 blished laws, whether by petitioning or otherwise, being 
 
152° 
 
 of a ‘tendency dangerous to, the peace of any country, 
 as well as to Its governinent and constitution, shall not 
 be allowed to exist ia this. “T his is a construction con- 
 sonant to common sense—confofmable to the manifest 
 intent of the legislature, and as I have shewn to be 
 deduced from every clause, and [ may say from every 
 -word of the statute. I would add a word, as to the ef- 
 fect of this intended Romaa Catholic convention, and 
 the proceedings leading to, and connected with it, oa 
 the Roman. Catholic ‘petition to Parliament, which 
 it was the professed object of such convention to 
 promote. | 
 
 I am sure, I offer no disparagement to the Roman 
 Catholics of Zreland, when I sav, that in point of 
 rank, fortane, education and character, .the Roman 
 Catholics of England are at least equal to those of 
 Treland. Gentlemen of the Jury, they are not only’ 
 subject to all the incapacities to which the Roman, Ca 
 tholics of /reland are subject, but also to several from: 
 which those of Jreland are exempted. - They, no 
 doubt, are as desirous as the Roman Catholies of /res: 
 land te be delivered from the operation of the. Test, 
 Act, but they, Gentlemen, hold no aggregate meet 
 ingeathey countenance no seditious speeches or pre- 
 ceedings—they issue no mandates for convening a pro- 
 vincial election—they claim not to hod “ a national 
 << convention.” Now see, Gentlemen, whether the 
 conduct which they observe, or that which the Roman 
 Catholics of Zre/and are pursuing, be most conducive 
 to the success of thew petition. 
 
 On the petition Parliament, and Parliament alone 
 must decids.. If anv Roman Catholic of Jreland has 
 borne thé idea of eifecting the object of the petition 
 by Faroe, he is a traitor in point of design; the oath 
 of his allegiance makes it hich treason to attempt by 
 force to altey any established ‘law, and therefore it 1s 
 by Parliameat and threngh Parliament only, ; pie the 
 object of the Roman Catholic petition can ever be 
 obtained. In that Parliament, the claims of the Ro- 
 ian Catholics have been advocated bv many able and 
 enlightened statesmen, and supported by a consider- 
 able and respectable number of it menabers. 
 
153 
 
 Still however a majority in both houses of parlia- 
 ment, are not yet satisfied, that it is wise or politic, 
 to depart from the policy of the Test Acts; a policy 
 which has prevailed since the reign of Queen £liza- 
 beth, and existed at the revolution, and has had the 
 approbation of all successive parliaments,. for so long 
 a period of time. Now, I would appeal to the com- 
 mon sense of every Roman Catholic who hears me, 
 whether he conceives, that this majority in parliament, 
 is to be convinced or persuaded, to. aiter-the opinion 
 which they entertain, by the low and vulgar abuse, 
 which is poured upon them: by those, who affect to 
 speak on behalf of the Roman Catholics of Ireland— 
 by lawless and seditious meetings and assemblies—and 
 lastly, by an attempt, in the name of the Roman 
 Catholics of Zredand, to hold in defiance of the law 
 of the land, a National Convention! And therefore, 
 Gentlemen, whether I consider this project of a 
 National Roman Catholic Convention, with reference 
 to the law, it appears to be most lawless ;:—if I con- 
 sider it, with reference to the constitution, it appears 
 most unconstitutional : if with respect to its tenden- 
 cy, I consider, it is dangerous and revolutionary :—if 
 as it relates to the Catholic Petition, I cannot but 
 consider it as highly calculated to retard and to defeat 
 it; and therefore, on the whole, I cannot but con- 
 clude with that position, on which I originally set out 
 —that, this project is the. plan and the design of 
 some, whose object is, separation of the two coun- 
 tries—a revolution ; and that those loyal and honest 
 Roman Catholics, who have lent themselves to the 
 furtherance of this project, are the dupes, and are 
 made the instruments of designs, of which they are 
 not aware. ~Gentlemen, we shall prove thé fact 
 against the Trayerser, that he acted in the election 
 of delegates or representatives to a National Con- 
 vention,” to he assembled for the purpose of procu- 
 ying an alteration of matters.established by law; and, 
 - therefore, we have no doubt, that your verdict must 
 find him guilty of the misdemeanor created by the 
 statute. 
 
 U 
 
~ 
 
 154 
 John Sheppard, sworn. ede 
 pate a by the SoLiciTor GENERAL. 
 
 Q. In What! situation, or employment, are you? 
 A. Tam a’peace officer, "” 
 Q: Inthe police ou ishae ae 
 Aes, Sik 
 Q. Were you directed to attend _any meeting. in 
 Liffey-street chapel? — oT ee 
 “A. I was: 
 Q. Did you attend it? 
 de AM 
 Q. Do you recollect upon whrat day" it was 
 AY Wednesday,” the 31st of hs 40 
 2 Do you know Dr. Sheridan ?' 
 » I saw him there, and saw him in Court this 
 day! 
 oe "OR secant ginoees Point him out, if you see 
 him now. ~~ ab didi inition 
 Witness did so. ; 
 Q: At about what hour did you go to the meeting 
 A: Between twelve and one. — 
 Q. Was ‘there ‘an assembly i in Liffey-street ee 
 upon that day ? 
 ‘A. There was, and what I considered a very large 
 one. 
 "Q. Can you state about what number? Be rather 
 under. , Dbl ie 3" 
 “Av I cannot state as to the number. The lower 
 part of the chapel’ was full-” | eae teeta 
 Q. Did-you ‘see any’ person in the chair, presiding - 
 at that assembly ? 
 °A. Tdid; I saw Dr. Sheredan in the chair. 
 Q. Did you hear any person address Dr. Sheridan 
 in the chair? 
 A. Tdid. 
 . Who was that person ? 
 AL ‘Mr. Atrwan, for one. — 
 Q. Do you redott ect, what was the nature ahd subs 
 stance of his first address te Dr. Sheridan ? . 
 
 ma 
 
 ie} 
 
wis 
 
 135 
 
 A. The first motion was for a. petition to Tue 
 PRINCE Recent, and both Houses of Parliameng, 
 for a repeal of the penal laws, existing against the 
 Roman Catholics of Jreland, or to that purpose. _ 
 
 Q. Ido not ask you for ‘the particular words ; are 
 you sure, that was the substance ? 
 
 A. Tam. 
 
 Q. Was there a question put upon that motion ? 
 
 A. There. was. . 
 
 . Who put it? 
 . Dr. Sheridan. — 
 Was that motion carried ? 
 
 AT It Was, unanimously. 
 
 Do you recollect any other motion made by Mr. : 
 Kirwan at that meeting, to Dr. Sheridan ? 
 
 A. There was a motion made for. appointing a com- 
 mittee of five. _ 
 
 Q. For what purpose? _ 
 
 A. For the purpose of rey resenting that parish in 
 thé general committee of the Catholics; the words 
 may ‘not be exactly so. 
 
 Q. You are not certain, as to the exact words ; do 
 you say, that is the substance ? 
 
 A. That was the substance, _ 
 
 “Mr. Burrowes. Gentlemen of the yell I beg 
 you will attend to that; he does not recollect the 
 exact words, and yet they are yery important, — . 
 
 Witness. My Lords, I omitted to state, that to 
 “ prepare a petition” was part of the motion,;and to 
 ** conduct the, business of the Catholic inhabitants of 
 “ that parish,” é 7 3 
 
 Q. By the Court. Do you mean to say, that was 
 part of thé motion. | 
 
 A. Yes, my Lord. 
 
 Q. Was it stated, at that meeting, according, to 
 your recollection, whether that, motion, was made in 
 consequence of any previous meeting ? 
 
 A. I heard of that elsewhere. __,, 
 
 Q. But did you hear it at that place? 
 
 A. JT did not. 
 
 Q:'Then do not say any thing of it; was the mo- 
 tion for appointing a coimmittee ef fiye persons put ? 
 
156 
 
 A. It was. 
 
 Q. Who put it? 
 
 A. Dr. Sheridan. 
 
 2 Was it carried? 
 
 It was. om 
 
 Q. Was any proceeding adopted in contecy tara of 
 that resolution ? 
 
 A. There was. 
 
 Q_ What was it? . 
 
 A. There was some difference of opinion as to the 
 mode of election. It was at last proposed, that seven 
 persons, not candidates for the committee, shou!d be 
 chosen, and that those seven should retire, and select 
 five cut of a list, which was given to then. a 
 
 Q. Did you see any of the seven persons who were 
 sO appointed ? 
 
 A. I saw part of them. 
 
 Q. Did you see any persons retire after that? -, 
 
 . A. I did see some persons retire. 
 
 Q: Was that proposal of appointing seven n persons 
 carried ? 
 
 A. It was. 
 
 Q. And after it was carried, some persons retired ? 
 
 A. Yes. 
 
 Q. Did those persons, who retired, as you say, re- 
 turn to the meeting? 
 
 A. I saw but two of them afterwards; the situation 
 I was in, was such, that I could not see all the people 
 —I was in the gallery. 
 
 Q. What was done afterwards? 
 
 A. One of the two handed in a list, I believe. , 
 
 Mr. GooLp. Your belief- is not evidentan 
 
 Q. Did any of the persons who returned hand any 
 
 thing’ to any other? . 
 
 A. They did. yall 
 
 Q. To whom? : . 
 
 A. To Doctor Sheridan. . 
 
 Q. What was it? ‘ i 
 
 A. A slip of paper. , 
 
 Q. What did Dr. Sheridan do, upon getting it? 
 
 A. I believe, he handed it to some other person. 
 
157 
 
 Q. Was it read? 
 
 A. It was. 
 
 Q. Were there any names read from it? 
 
 A. There were. 
 
 Q. How many? 
 
 A. Five. é 
 
 Q. Do you recollect them ? 
 
 A. I do. 
 
 Q. Repeat them ? 
 
 A: Dr. Sheridan was the first, Mr. Avrwan next, 
 Mr. Taaffe next, Mr. Sweetman, and a Mr. Sheil: 
 
 Q. Pray, sir, after those names were read, did Dr. 
 Sheridan continue in the chair. 
 
 A. No, Sir; be was removed from the chair. 
 
 ‘Q. Who took it? 
 
 A. Dr. Burke. 
 
 -Q. What was then done? 
 
 A. He pat the question upon Dr. Sheridan's elec- 
 tion, as one of the committee; it was carried unani- 
 mously. , | 
 
 Q. After that, did Dr. Burke continue in the 
 chair? 
 
 _A. No, Sir, it was taken by Dr. Sher wan. 
 
 —Q. Was there ay vote upon the election of the 
 _ other persons? | 
 
 A. There was. 
 
 Q. Were tiiey elected ? 
 
 A. They were all elected Sepa with one 
 exception. 
 
 Q. After this eleetion, did you hear any person ‘ad- 
 dress the chair? 
 
 A. I did. 
 
 Q. Who were they ? 
 
 A. The members of the committee. 
 
 Q. Do you mean, that those persons, one ata 
 ~ time addressed the chair? | 
 
 A. Yes, Sir. | 4 
 
 Q. What was the subject of their address?’ 
 
 A. Expressing their thanks for the honour which 
 was done them. 
 
 ~ 
 
158 
 
 Oh Can you name those who returned thanks? 
 A. Ican. Mr. Kirwan, Mr. Taaffe. Mi Sideethan 
 was not present, and a freemd oO; his thanked them in 
 his name. Mr. Sheil, 1 understood, was in London, 
 and that was the reason of the oppeaeae to his ap- 
 pointment. a 
 
 Q. Assoon as thanks were returned, was thie ahy 
 other motion made to Dr. Sheridan ; dia he continte 
 in the chair? 
 
 A, It was moved, that he should i the chair, 
 and Mr. Taaffe took it. ; 
 
 _ 2. Was any motion made to him: * | 
 A. There was a motion rétutning the thank? of the 
 
 assembly to Dr, Sheridan, for his) proper conduct in 
 the chair. 
 
 2. Was that motion carried ? 
 
 A. It was. 
 
 2. Wasany thing said by Dr. Sheridan ? . 
 
 A, He returned thanks, as the othér members aid? 
 and promised his warmest support. 
 
 2. In what parish: is Liffey-stree: chapel ? 
 
 A, In St. Mary’s parish, I believe. _ 
 
 2. Was there atty other businéss done at that meet- 
 ing, except what you have stated ? 
 
 A, Nothing else, that I observed. | ‘Dy. Sherkduge 
 was in the chair, when I got there. 
 
 2. Was any other motion attempted there? 
 
 A. Not that I-heard. 
 
 Q. Were you ata meeting at Fishamble-street on 
 the. 9th of: July ? 
 
 A. I cannot say positively. . I was at séverak 
 Cross-examined by Mr, BuRROWES, = 
 
 @, OF what religion’are you'? th sh 
 
 A. Of the established church? | 
 
 (J. Then you did not go to the chapel Diy 
 M#reet, as‘one of the meenng? 
 ie Noy. Sars 
 
 Q. The meeting was Hig to ais person, ‘of any, 
 religion? 
 
159 
 
 It was.. 
 
 No concealment whatever. 
 
 None. 
 
 No abuse of.any individual, or.of the Govern- 
 ment ? 
 
 A. Not a.word: 
 
 Q. Or any thing seditious? 
 
 A. No, From. “the, respectability of; the meeting, 
 I would not expect any such thing. 
 
 Q. Do you not believe, that they, really. did intend 
 to prepare a petition to Parliament! 
 
 A. I do. : 
 
 Q. Do you not believe, that the resolutions; whiol: 
 were passed at that meeting, were taken. down: in 
 writing ?. 
 
 _A. I believe they were read from a paper. 
 
 Q. Read these two resolutions in this brief. You 
 
 , you do not recollect: the words; read; and say 
 whether these were the: words. 
 
 {MZr. Burrowes handed» his brief to the witness] 
 
 A. “ Resolved, that we_petition the Prince Regent, 
 “‘ and both Houses of Parliament, against the laws 
 ** which are still in force against our “body,” Ke. 
 
 Q. Was that the first resolution ? 
 
 A. I believe so. 
 
 Q:. Read the second resolution. 
 
 A. “ Resolved, That, a.committee ,of five persons 
 
 i p> ep 
 
 ‘*-be appointed to prepare a petition, fo he pre- 
 
 “~ 
 
 © sented,” Kc. 
 Q.: Was that the second Resolution ? 
 AS I think not. : 
 Q. Are you certain what were the words of the 
 
 -setond resolution ? 
 
 A. I-mentioned the terms, as nearly as T can re- 
 
 collect; this copy is not so full. 
 Q. hes you certain there were other words? 
 A. There were other. words. 
 
 Q. Can you swear to the word represent” being... 
 -in the resolution? 
 
 A. ican. 
 
 os 
 
160 
 
 Q. Youare positive, that the woh * represent 0 
 was in the second resolution. 
 A. The words, “ to present,” or ¢ prepare,” were 
 in it. I did not mean to say, “ represent.” ~~ : 
 Q. Then you do not mean to say, positively, that 
 the word “ represent,” was in the second resolution ? 
 A. I do not. 
 Q. Whiatever the resolutions were, they were read 
 fron: a written paper? 
 A. T belteve.so. 
 
 G@. And do you not believe, that such a paper 
 
 would give a more correct statement than “eed re- 
 dalibeticht ? 
 A. I do think ‘so. 
 
 Q. Did you say, there was a word about transact 
 
 ing parte 
 
 “A. I did, at 
 
 Q. Upon your oath, did you not say (you may 
 now unsay it, if you chuse) that the object of the 
 meting was to prepare a petition, and nothing else? 
 
 That was the object of the meeting. . 
 
 eo And the only object of the meeting ? 
 
 A. I catmot say. 
 
 Q. Upow your oath, if any ey was said ahont! 
 the appointment of persons, do you not believe, 
 that it was an appointment. of ‘persons to prepare 
 the petition? 
 
 A. I believe the object of the meeting was to pe- 
 tition. 
 
 Q. If any thing was said abont doing Reine by 
 the persons there, was it not the business of pre- 
 paring a petition; or what else was it? 
 
 A. I shall tell you; they appointed five) persons, 
 first to prepare a petition, and then to transact the 
 business of the inhabitants of tle parish. 
 
 Q. What was the other business? 
 
 A. I cannot tell. 
 
 Q. I appeal to your recollection, Sir ; was there any 
 ather business mentioned ? 
 
 - 
 
 o} 
 
‘to ‘be prepared, or any thing done? 
 
 16] 
 
 A. Nothing else eae heard. | 
 
 Q. Nothing, but about petioning ? 
 
 A. Nothing. 
 
 Q. Had they any other business, as you believe, 
 but to prepare a petition ? 
 
 A. As-I believe ? 
 
 Q. Yes,—stating the foundation of your belief, can 
 _ you mention any other business which was talked of? 
 
 A. I have already stated that there were five per- 
 sons appointed. 
 
 Q. That is not an answer. I ask again, did you hear 
 any thing stated, but upon the subject of petitioning ? 
 
 A. Except the appointment of five to be the Catho- 
 lic committee of that parish to prepare a petition, and 
 transact the other business of the inhabitants of that 
 parish. 
 
 Q. Did the resolutions state, where the petition was 
 
 A. I do not recollect decidedly. ‘ 
 
 Q. If you do not—do not invent. But you swear, 
 positively, upon the peril of being credited by the 
 jury, that they were to transact other business ? 
 
 - Ido. 
 
 Q We will contradict you. » What parish was this 
 Ina 
 
 A. St. Marys 1 believe. J understand that Liffey 
 street chapel includes three parishes. 
 
 Q. What three? 
 
 A. 1 do not know, but I understand ste are St. Tho- 
 mas, St. George: and St. Mary. 
 
 Q. Then it was the inhabitants’ of those three pa- 
 
 rishes, who composed the meeting ? 
 
 _A. LI suppose so. 
 
 ‘Q. Did you take any memorandum in writing of 
 these resolutions, after you went home? 
 
 A. I did, before I went bome. 
 
 Q. Where | is it? 
 
 A. I have it not now. 
 
 Q. When did you last see it? 
 
 A. I saw it within ten days, or a week. 
 
 Q. Did you know ten. days ago, tes you were to 
 come forward as a witness? 
 
 Xx 
 
162 
 
 A. I did. 
 
 Q. To prove the import of the resolutions # 
 
 A. Yes. 
 
 Q. Did any person tell you. not to bring the memo- 
 randum here? | 
 
 A. No. 
 
 Q. Why did you not bring it? 
 
 A. I did not choose to bring it. 
 
 Q. Then you left it behind you, and you rat give 
 ing a vague recollection of the substance. To whom 
 did you give it? 
 
 . Not to any body. I believe it is in my desk. 
 
 Q. Did you not think it important to have it ? 
 
 _ A. If I could have found it I would have brought 
 if. 
 Q. Did you look in your desk for it § > 
 
 A. I did, and it may be in it, though I could not 
 find it: they were short notes, and the desk is in the 
 office, crowded with papers. | 
 
 Q. Were you not sent to that meeting for the very — 
 
 purpose of taking an account of what passed 
 
 A. ‘I was sent to that meeting, as I was to others. 
 
 Q. Did you tell those persons, who sent you, what 
 the import of the resolutions was? 
 
 A. 1 told those whom I had a right to tell it to. 
 
 Q. Who were they? 
 
 A. The magistrates. 
 
 Q. Did you give them a copy of the notes ? 
 
 A. Ibelieve I gave them a written report, as is usual 
 with me. 
 
 Q. Is that lost? 
 
 A. Icannot say. 
 
 Q. Was it in your hand-writing ? 
 
 A. It was. , \ 
 
 Q. Did the magistrates destroy it ? 
 
 A. I cannot say, 
 
 Q. To whom did you give it? 
 
 A. I cannot tell to which of the magistrates y gave 
 it—there were three sitting ; and to which I gave vit i 
 cannot tell, 
 
 Q. Who were the magistrates ? 
 
 A. Alderman Pember' ton, Counsellor Hai °C, and 
 Major Surv, 
 
 t 
 wine Ae 
 a 
 
163 
 
 @. Can you not say to which of them you gaye it? 
 
 A. Icannot. I do not say positively that I gave it, 
 but it was usual to give reports. 
 
 Q. You will not say positively whether you did or 
 
 A. I think it likely, if I was called upon. 
 
 Q. To which of the Magistrates? 
 
 A. I have not a perfect recollection, but I think 
 Mr. Hare was there. é 
 
 Q. Who desired you to go to the meeting? 
 
 A. I got general orders to attend meetings. 
 
 Q. These orders did not come from heaven—-can 
 you mame any person on earth from whom you got 
 them? . ) 
 
 A. I sometimes got orders from the magistrates, and 
 sometimes from the chief constable. 
 
 Q. Who is he? 
 
 A. Mr. Farrell. | 
 
 Q. You said, that seven persons retired, and that 
 two of them came back, who were they? 
 
 A: I think Mr. Scurlog was one of them. 
 
 Q. Who was the other? 
 
 ‘A. I cannot’ tell. 
 
 Q. Was it Dr. Breene? 
 
 A. It was not. | 
 
 Q. Did you swear informations against Dr. Breene ? 
 
 A. I swore informations—— 
 
 Q. But it is too hard to appeal to your memory— 
 did you swear against him? 
 
 _ A. I swore informations, and stated his name, having 
 heard his name mentioned. 
 
 Q. Did you swear positively against him? 
 
 A. I did not. 
 
 Q. What did you swear? 
 
 A. All [swore was, that I heard his name mentioned | 
 there? | 
 
 Q. Before whom did you swear your information ? 
 
 A. Before the Lorp Cuter JusTICE. . 
 
 Q. Did you not say, that you saw Dr. Breen there? 
 
 A. No—TI only swore, that I heard his name men- 
 tioned. i 
 
 Q. Did any other person swear against him? 
 ‘. A. There was another person at the meeting with 
 me. | 
 
 no 
 
 ct 
 
164 
 
 *- 
 
 Q. Did he swear informations against Dr. iene g 
 A. T cannot tell. 
 
 Q. Do you not know, that he was arrested upon ! 
 
 your informations ¢ 
 
 A. I cannot tell: he was arrested, but upon what, 
 
 informations I cannot say. 
 Q. Were you nota constable of St. Paul’s wateh at 
 some time ? 
 A. No. 
 Q. What was the whole of, the time which you 
 passed at the meeting—how many hours? 
 . Ido not think it was an hour altogether. 
 Was it half an hour ?, 
 I think it was. : 
 . Did you swear to a longer time ? 
 No, [ think not, 
 
 >OPO> 
 
 James, M‘ Donough, sworn. 
 
 Examined by Mr. Serjeant Moore. 
 
 Q. Are you in any public re apa in this city? 
 
 A. Yes, Iam. 
 
 Q. In what situation? | 
 
 A. I ama clerk in the head office of the Police 
 Establishment. _ 
 
 Q. Were you at any time, during the month of July 
 last, in Liffey-street chapel 2°. : | 
 . Yes Sir. | 
 . Upon what day ? , ihe 
 Upon the 31st of July. ey 
 . What time of the day was it? 
 
 . Between the hours of ‘twelve and one. 
 . Was any person with you? Via 
 Yes. | 
 
 . Who was with you? 
 
 Sheppard, 
 
 . Do you mean the last witness? 
 
 Yes. 
 
 . Did you go together? 
 
 A. Yes. . 
 
 Q. Did you ‘find any. persons assembled at ia ey 2y- 
 street chapel on that day ? | 
 
 BOF Ororerer ore 
 
105 
 
 Yes, a considerable number. 
 Did you remain among them, or join them f 
 No, I went up to the gallery. 
 Did you observe what they proceeded to do? 
 Yes. 
 . State what they did. 
 » Lsaw Mr. Thomas Kirwan there. 
 Is he in Court? 
 Yes, there be is, (pointing to Mr. Kirwan.) 
 _Q. Do you see any other person here, who was at 
 that meeting ? 3 
 A. Yes, Dr: Sheridan. 
 Q. Point him out? 
 “Witness did so. 
 - Q. Was there any Chairman? 
 A. No, Dr. Sheridan was in the Chair. 
 Q. Did vou see him take the Chair? 
 A. No, he was in the Chair when we arrived. 
 
 Q. Did you hear any person address the Chair, er 
 the meeting ? 
 
 A. Yes, I did. 
 
 Q. Who? 
 
 A. Mr. Kirwan. 
 
 Q. Did he speak to the meeting! 
 
 A. He did. : | 
 
 Q. Do you recollect the general subject of his dis- 
 course ? 
 
 A. Yes—he moved that a petition be presented to 
 his Royal Highness the Prince Regent, and both 
 Houses of Parliament, praying a repeal of the- penal 
 laws, still existing against the Roman Catholics of 
 ireland. . 
 
 Q. What was the fate of that resolution ? 
 
 A. It was seconded, and carried unanimously. 
 
 Q. Was the motion put by any person f 
 
 A. It was by Dr. Sheridan. 
 
 Q. Was any thing else proposed f 
 
 A. Yes. 
 
 Q. Witat was next done? ‘4 
 
 A. Mr. Kirwan them moved, that five persons 
 should be appointed to prepare, or present the Said 
 petition, T cannot say which, and that said five per. 
 sons were to represent the Catholics of that parish in 
 the General Committee of the Catholics. 
 
 >OPOPOP 
 
 PO 
 
f 
 
 166 
 
 Q. Was that resolution seconded ? 
 
 A. It was. 
 
 Q. Was it put by the Chairman? 
 
 A. It was, 
 
 Q. By Dr. Sheridan ? 
 
 A. Yes. 
 
 Q. Was it passed iva aller é 
 
 A. It was. 
 
 Q. What was the next proceeding whieh, you .ob- 
 served ? 
 
 A. Mr. Kirwan then moved, that seven persons be 
 named to ape ins the said Committee: of five, but 
 that none of the seven were to be eligible to be of the 
 Committee of five, or words to that effect. 
 
 Q. Was that resolution seconded or put ? 
 
 A. It was. 
 
 Q. And passed ? 
 
 A. Yes, it passed. 
 
 Q.. What did they proceed to do next? 
 
 A. The seven persons were nominated. 
 
 Q. In what manner ? 
 
 A. It first began by Dr. Sheridan naming one, and 
 the person he named, mentioned a second, “and so it 
 went on till the seven were named. 
 
 Q. What did those seven persons do after they were, 
 
 appointed ? 
 
 A. They retired for a short time. 
 
 Q. Out of the Chapel ? 
 
 A. I cannot say—they went aside. 
 
 Q. How long were they apart? 
 
 A. 1 cannot exactly. say—-from five to seven mi- 
 nutes. Ss 
 Q@. When they returned, what was the next pro- 
 ceeding ? 
 
 A. When they returned, some person in the’a as- 
 sembly, I cannot say W ho it was, stated the names of 
 the five persons, they had appointed. 
 
 Q. Do you recollect any of the names of the per- 
 sons who were appointed to this high national dig~ 
 nity ? 
 
 A. I can. 
 
 A. Mention them? 
 
 @. Mr. Sheridan was one. 
 
167. 
 Q. Who was the first? 
 
 A. He was the first named. 
 
 my AD Do you recwilect any other ? 
 
 A. ihomas Kirwan, Henry Edward Taaffe, Wm. 
 Sweefman, jun. and Mr. Sheil, 1 think. 
 
 Q. Are you positive, as to Dr. Sheridan and Mr. 
 Kirwan ? 
 
 A. Tam. 
 
 Q. When they were Meee did they take any no- 
 tice of it? 
 
 A, Yes, Sir—when Dr. Sheridan’s name was men- 
 tioned, it was moved, that he siould leave the Chair, 
 and that Dr. Burke should take it, which was accord- 
 ingly done. 
 
 ‘Q. What was donethem? 
 
 A. When Dr. Burke took the Chair, Dr. Sheridan’s 
 Name was put to the meeting, as one of the five per- 
 sons, and it was carried unammously. 
 
 Q. Did he say any thing upon that? | 
 
 A. I do not recollect, that Dr. Sheridan did; but 
 when Mr. Azrwan was elected, tie returned thanks to 
 the meeting for appointing him, and said, that he 
 would render them every service in his power. 
 
 Q. Did Dr. Sheridan return to the: chair ? 
 
 ' A. He did; after the vote passed, electing him one 
 of the committee of five, he resumed the chair. 
 'Q. Did you see hivieave the chair again after that? 
 
 A. He did. 
 
 Q. What was the object of it? 
 
 A. It was moved in the meeting, that he should 
 leave the chair, and that Mr. Taaffe should take. it, 
 which was done. 
 
 Q. What was the proceeding then? 
 
 A. After Mr. Taaffe touk the chair, the thanks of 
 the mecting were returned by Mr. Tuuffe to Dr. Sheri- 
 dan, for his proper cctiduct in the chair. 
 
 k Cross examined by Mr. BuRNE. 
 Q. Did you and Sheppard go together to the meeting 
 
 of the 9th of July ? 
 A. We did. 
 
168 
 Q. Did y you come on together : 
 
 A. We did. 
 Q. Then you were there as long as Mr. Sheppard 
 
 was? 
 
 AR Wass) /° Oe 
 
 Q. By whose direction did you go there ? 
 
 A. In consequence of orders from the head office 
 of the police. 
 
 Q. By what Magistrate ?. 
 
 A. Kither Mr, Hare, or Major Szrr. 
 
 'Q@. You cannot form a belief which of them gave 
 the orders? 
 
 A. I cannot :—It was in consequence of ote from 
 them, or one of them. 
 ~~ Q. What is-your situation in the police office ? 
 A. A clerk. 
 Q. What is Sheppard ? 
 A A constable: 
 Q. Is your situation or bis of the higher order? 
 A. I believe mine is: 
 
 Q. Did you get any particular orders from the gen- - 
 
 afeiah who sent you? 
 
 A. Yes, Sir, to take down notes of what passed. 
 
 Q. Was it your business, or Sheppard’s to take ee 
 notes ? 
 
 A. I should suppose it was the business of both. 
 
 Q. Did you take any notes of what passed ? 
 
 A. I did. 
 
 'Q. Give me leave to ask you what has becoine of 
 them ? 
 
 A. I do not know. 1 may have them, or may not. 
 
 Q. When did you last see them ? 
 
 A. About ten days ago. \ 
 
 Q. Were you in court daring the whole of Shepe 
 pard’s examination ? — 
 
 A. I was. 
 
 Q. Upon your aaeh, where are your notes? 
 
 A. I cannot say. 
 
 Q. [ask you were not your orders to give a . report 
 
 ~ tothe magistrates of what passed. at the meeting e 
 
 A. Yes 
 
 Q. Did you not give a report in writing ? 
 
 ~ A. No, I did not. 
 
 a 
 “Se 
 eps 
 
169 
 
 Q. What ! you, the scribe, gave no report? 
 A. I gave no written report. . 
 Q. Were you asked for any? 
 A. I was asked what passed, 
 
 Q. Were you asked for any report in writing? 
 A. Not at that time. 
 Q. Were you at any other time ? 
 A. I believe I was. 
 
 Q. By which of the magistrates ? 
 A. By Mr. Hare. 
 Q. Where was your report at that time? — 
 A. In the office. | 
 Q. You gave it in? 
 A. It was ni my desk in the office. 
 
 -Q. Did you never take it out ? 
 A. I did. 
 Q. For what purpose ? 
 
 A. Tolook at it. 
 Q. For what purpose? 
 A. I cannot immediately recollect. 
 Q. Who desired you to take it eut? 
 A. Nobody. 
 
 _Q. How long is it since you took it out of your desk ? 
 A. I donot know at what time. 
 Q. Was it two months ago? 
 
 -A. I cannot say. 
 Q. Was it one month ago ! ? 
 A. Icannot say. 
 
 -Q. You saw it ten days ago? 
 A. I believe so. 
 Q. Did you return it into your desk ? 
 A. J cannot tell. 
 Q. What did you take it out for ? 
 A. To look at it. 
 Q. Did you know at that time, that you were to be 
 
 iri as a witness here? “ 
 { knew previous to that. 
 S Was it to con over, and refresh your memory ? 
 A. It might be. 
 Q. But was it for that purpose ? 
 As It was, 
 Q. Did you_ever Jook for it since ? 
 A. Not since I saw it last. 
 Lee y 
 
1 70 
 
 Q. You did not search since ten days? 
 
 A. No. 
 
 A. When was it that Mr. Hare asked you for the 
 report ¢ 
 
 ‘A. I believe it was in a short time after 1 had been 
 in the Chapel. 
 
 Q. You had it in the office ? 
 
 A. Not in the same office. 
 
 Q. But in the same house, and you did not comply 
 with his request ? 
 
 A. He asked me, had I it—and I told him, ; had. 
 it. 
 
 Q. Did you ever shew it to him ? 
 
 A. I cannot say, that I shewed him that document, 
 or a copy of it—he saw a copy of the informations 
 which were sworn. | 
 
 Q. Did you ever make a copy of your notes; or 
 any abstract from them? 
 
 “A. None, but the informations, which were sworn. 
 
 Q. You were informed ten days ago, that you were 
 to be examined? 
 
 A. I was. . 
 
 Q. Was it upon that occasion, that you looked at 
 the memorandum ? 
 
 A. No. 
 
 Q. Upon what occasion did you look at it ? 
 
 A. 1 was looking after otlier papers, and seeing 
 that memorandum, T read it, 
 
 Q. Do you believe it is in your desk, or elsewhere ? 
 
 A. It certainly must be in the desk, or elsewhere. 
 
 Q. You have said, that when you last saw the 
 paper, it was by accident ; } 
 
 As It was. 
 
 Q. Then you did not go to Jook for'it? ON 
 
 A. Not at that time. 
 
 Q. Did you at any time? 
 
 A. Yes. 
 
 Q. At what time? ’ 
 
 A. When the informations were going to be sworn. 
 
 Q. That was not the time, w hen: you saw the notes 
 ten days ago? 
 
 A. No. 
 .Q. Then you looked at them again? 
 
171 
 
 A. Yes, 
 
 Q. How long ago? 
 
 A. Ten days ago. 
 
 Q. You said, that you were looking for other papers, 
 and found the notes accidentally among them ? 
 
 A. Sol did, and when [ saw them, I read them. 
 
 Q. You mentioned, that two resolutions were passed 
 at the meeting—the first was, that.a petition should be 
 presented—state what were the words of the second, 
 as exactly, as you recollect ? 
 
 A. The second resolution was, that five persons be 
 appointed to prepare—or present—the petition, and 
 that the said five persons were to represent the Catho- 
 lics of that parish in the General Committee of the 
 Catholics. ; , 
 
 Q. Was that the whole of the second resolution, as 
 you recollect ? , 
 
 A. I think so. 
 
 Q. Now, you have said, that they were to répre- 
 sent the Catholics of that parish, in pisgectera Com- 
 mittee of the Catholics—are you positive as to the 
 word ** represent ?”?—Take down what he says. 
 
 A. It was, that the five persons so appointed— _ 
 
 Q. Sir, that is not an answer—Can you say, posi- 
 tively, that the word ‘* represent” was in the second 
 
 resolntion? 
 
 A. Either that, or something very like it. 
 
 - Q. Will you swear, positively ? 
 
 __A. 1 cannot immediately swear to the exact expres- 
 sion—but that was the substance. 
 
 Q. Do you not believe, that the resolutions were in 
 writing ;—were they not read from a writing? 
 
 _ A. They were read—but whether they were in writ- 
 ing, or print, I cannot say. / 
 
 Q. But they were upon paper? 
 
 A. They were. 
 
 Q. And read from a paper? 
 
 A. They were. 7 
 
 Q. Did you swear any informations against Dr. 
 _ Breene ? 
 
 A. Yes, I did; I mentioned his name as one of the 
 seven persons, who, I believe was there: I mentioned 
 “Mr. Breene, whom | afterwards heard was Dr. Breene. 
 
172 
 
 Q. Did you take your notes at the same time’ that 
 Sheppard did. , 
 
 A. Part of them. one 
 Q. At what time did you take any chet 4 nid 
 A. lemneaitely after I left the chapel. ‘ie 
 Q. Whose proper duty was it to make a report of 
 
 the proseeninien 7 th¢ coastable or the clerk? * 
 A. Both. | 
 Q. Have you made any written Report?” ) 
 A. No, I mentioned the matter to the magistrates. 
 -_ Q. I speak of a written report ? | 
 _A. I did not make any. . | nw 
 Q, Whose duty was it, and upon tide did the. 
 inagistrates call for a report ? 
 A. They did not call upon,either of us. —__ 
 Q. (By Mr. Justice Day.) Did you see Dr. Breene 
 in the chapel? ) 
 
 _A. No, my Lord. | 
 Q. I thought you said you saw him in the cbapal ¢ 
 A, I saw a person, who I was told was Dr. Breene. 
 Q. Did you know him? Ne 
 
 _A. Thad seen Dr. Breene before. hela 
 
  Q. Did you see him that or i in the rh a oi 
 _,. A. Not in the chapel. Jix 
 
 Francis Huddleston, pe sworn. 
 | Examined by Mr. Serjeant Biri’ D 
 rigs, (6 Pray, Mr. Huddleston, did you attend any y appre 
 gate meeting of the Catholics during jast summer? 
 A. [did attend the aggregate meeting of the Catho- 
 ‘dics held tn’ Pishamble.street inthe 9th of clan ie | 
 Q. Was there a full meeting? | 
 A. A very full meeting. — _ 
 Q. Was the chair taken by any Se pe Vou need 
 not mention names. 
 A. lt was. sip omg ts oi) AR 
 Mr. O'CONNELL. Let hin mention aad presided. 
  Q. Since the gentleman td a it. avtho bre. 
 , chair? | 
 A« The Earl of FINGALL. 
 Q. What was the first business done hihi the chaie 
 was taken £ . 
 
 * 
 
173 
 
 ‘ 
 
 Mr. Gooip. My Lords, a very serious objection 
 arises to this evidence. If 1 understand my friend, 
 Mr. Serjeant Baur, right, he is now going to prove 
 what passd at Fishamble-strect, on the 9th of July, 
 T object, at this stage of the case, to evidence being 
 given of what passed at that meeting, at which the 
 travereser was not present. This is an indictment 
 against the traverser, containing a specific charge of 
 of haviag acted illegally on the Sist of July, at Laffey- 
 streef, and there is no evidence to connect bim with 
 the Aggregate Meeting held on the 9th.—There is ne 
 evidence to shew, that what passed at the meeting, at 
 which the traverser presided, was at all connected with 
 the business of the Aggregate Meeting, at which Lord 
 FInGALL presided. if there be any thing appearing 
 appearing from the testimony of the former witnesses 
 connecting these transaction, I stand corrected. But 
 to my recollection, no such evidence was given; and 
 I believe ne such evidence appears »pon your Lord- 
 ship’s notes ; indeed I am the more warranted in making 
 this ebjecticn, from certain questions which were put 
 to one of the former witaesses, by the Soticiror Geng- 
 RAL. Therefore, the Court will now determine, whether 
 upon a charge against Dr. Sheridan, for having’ acted 
 in a certain manner at Lijffey-streef, on the 31st of 
 July ; it is competent, for the counsel for the Crown, 
 to give evidence of what passed at another meeting, 
 held twenty-two days before, and in another place, 
 
 Lord Chief Justice Downes. As yet, I do not see 
 any connection between the proceedings. 
 
 Mr. Serjeant Batt, When an improper question 
 is put, an objection may be made, and if I.do nor 
 connect the matter with the traverser, the evidence 
 will go for nothing. 0] 
 
 Mr. Geoin. I make the objection, because I do 
 not know what effect such evidence may have, ever 
 although it be subsequently rejected. > Ad 
 
 Mr. Jusinwe Daves lf the evidence be not relevant, 
 it should not be received. 
 
 Mr. Serj. Batt, The object of the examination is 
 to shew, that the meeting of the 3ist ofJuly, at 
 Laffey-street was held in consequence of the resoluti- 
 ons entered into on the 9th of duly, at Jusheusble- 
 
174 
 
 street, and for the purpose of carrying, them into ef- 
 fect. It is necessary, therefore, to produce a Wit- 
 ness, ‘o shew, that a general meeting of the Ca- 
 tholics had heen resolved upon, which we say was 
 done on the 9th of July; and that the meeting of 
 the Sist of July, was for the purpose of carrying 
 into effect the resolutions of the former meeting, by 
 electing delegates to represent the Catholics of the 
 several parishes in Dublin, in the meeting previ- 
 ously resolved upon. | 
 
 Mr. Souiciror GENERAL. My Lords, there are 
 two counts in the present indictment: the first 
 complains of the traverser, for having taken part . 
 in the election of five persons, to represent the pa- 
 rish iv the Aggregate Committee, in consequence of 
 the resolutions entered into on the 9th of July. The 
 second count is, jor taking part in the election of 
 delegates to represent the parish in the general com- 
 mittee, without referring to’ the resolutions of the 
 9th of July. In the support of these charges, it is 
 competent for us, to prove, that a general committee 
 -had been resolved upon, In support of the first 
 count, we propose ta shew, that such a resolution 
 was avreed upon, the 9th of July; and in support. of 
 the second count, to shew thafpit was resolved upon, 
 at any time, that a general committee, should be 
 held ; because, that is the import of the second 
 -count. We do not pretend to say, that Dr, Sheradan 
 was present at the meeting of the 9th of July; but 
 we submit, that it is competent for us to prove. the 
 fact, that a general meeting was resolved upon; and 
 
 then to shew, that the election, which was afterwards 
 
 held, was for the purpose of representing this parish, 
 in that general committee. We conceive, that the 
 charge against the traverser will be supported by 
 the evideace proving, that a general committee was 
 resolved upon, when Lord FiINGALL was in the chair, 
 to which five representatives should be sent from each 
 parish, and then, that five persons were elected in 
 
175 
 
 this particular parish, to attend that general com- 
 mittee. This will be one circumstance, among others, 
 for the jury, in ascertaining what is really the corpus 
 delictt. 
 
 Mr. Burrowes. My Lords, the Counsel for the 
 Crown are not founded in offering this evidence, 
 either upon its relevancy to the charge, or its appli- 
 cability to Dr. Sherzdan. There is evidence of an 
 election to represent the parish in, soine general 
 meeting. But the Counsel for the Crown are not at 
 liberty to go into any portion of mankind, to shew, 
 that an illegal assembly was at any time held,’ with- 
 out connecting that assembly with the traverser. 
 Really, if that evidence be admissible, they might 
 travel back to the Dungannon meeting, or the Ath- 
 lone meeting, and the jury might as well credit the 
 statement of the ATTORNEY GENERAL, or the in-- 
 dictment itself, without requiring evidence. If it 
 be shewn, that the two assemblies were connected, 
 and that the latter, at which the Traverser was pre- 
 sent, flowed from the” former, the evidence is then 
 admissible. But what is now offered, does not extend 
 so far. They should give evidence, that an illegal 
 assembly was held on the 9th of July; that the 
 _traverser attended, and assented tothe appointment 
 of delegates. , 
 
 Mr. Justice Daty. As I understand, it is pro- 
 posed to shew, that it was resolved to elect five dele- 
 ‘gates for each parish, and it appears that five dele- 
 gates were elected for the parish of St. Mary. Is not. 
 that evidence for the jury ? 
 
 Mr. Burrowes. My Lords, I think, it might as 
 well be said, that if a man was robbed of five guineas, 
 and that five guineas were found in the pocket of an- 
 - other man twenty years before, he should be found 
 cuilg 
 
 Mr-Arrorney GeNneraL. These are observations 
 upon the weight of evidence. 
 
 Lord Chief Justice DowneEs. It is not very im- 
 portant, at what period of the trial, the connection is 
 
176 
 
 established. The Jury must believe, that the assem- 
 blies are connecied; and if the evidence shall not 
 satisfy them, they ought to acquit the Trayerser. 
 
 Q. Mr. Serjeant Bali. Were any resolutions en- 
 tered into at that meeting, relative to the appoint- 
 ment of a general committee of Catholics? a 
 
 A. There were. 
 
 Q. For what purpose ? : 
 
 A. I wil relate the transactions of the meeting, 
 After the chair was taken, Mr. Hay, the secretary, 
 began by reading the proceedings of the last meeting 
 of the Catholic committee, which had been held a 
 few days before. Shall I mention names or not? =. 
 
 Mr. Goots. Mentionevery name. hae 
 | Mr. Seryeant BALL. What next passed? 
 
 A. There was a resolution to this effect,— 
 
 Mr. Gocip. ‘The resolutions were in writing and 
 read ? ; 
 
 A. They were. 
 
 Mr. GooLp. “My Lords, we object to this parol 
 evidence; if the resolutions are to affect us, the pa- 
 per-writing containing them should be given in evi- 
 dence. 
 
 Mr. Jounson. My Lords, they might produce 
 Mr. ay, as a witness, he being in existence ; and it 
 is the more necessary to resort to the written evidence, 
 after such testimony was given, as we heard from the 
 _ two last witnesses. Shits. 
 
 Mr. Burrowes. There is no distinction, in’ the 
 
 ‘ 3 
 rules of evidence, between criminal and civil cases 3. 
 and in both, it is always held, that the contents of a 
 written paper cannot be proved by parol, without shew- 
 ing, that the paper is lost. It is a ‘cardinal rule of 
 evidence, that the best evidence, which the natare 
 case admits of, shall be given. If a man be indicted 
 for composing a treasonable paper; will evidence of 
 its contents be received, except from the paper 
 Te a recollection of the contents equivalent, in point 
 of value, or worth, to the paper itself? There is 
 nothing which the law is more sacred about, than 
 keeping away, the vague and fluctuating recollec- 
 ton of the contents of written instruments, when it 
 
177 
 
 3s possible, to produce the instruments themselves. 
 Here, no evidence is given to shew, that any ei 
 
 was made to produce this paper, that it is lost ; 
 
 — 
 
 any thing, to shew, that the rule, which is aitifoia 
 and igeneral, should be dispensed with. Why should 
 
 the rule. be dispensed with, in this case? Is it, in 
 
 the hope, that memory will supply defects in the evi- 
 dence-; that the witness may state, as from his recol- 
 
 Jection, what would not appear, if the paper was 
 
 -\produced ? 
 
 Mr. GooLp. My Lords, I beg to mention the case 
 
 of Hardy, who was tried in England, for high trea- 
 
 son, and certain papers, alleged to be treasonable, 
 were given in evidence, as the proceedings of the 
 corresponding society. These papers were read in 
 
 _evidencé ; the contents of them were not told ‘from 
 
 the recollection of witnesses. “The Attorney 'Ge- 
 
 meral began by detailing the documents themselves, 
 
 and he did not Bonen upon the recollection of any 
 man. 
 
 oMr. Justice Osporne. Who had the paper in his 
 
 _ possession ? 
 
 Witness. My [bi Mr. Hay read it. 
 
 2. Was that the first time you heard of it? 
 
 A, My Lord, I had heard of it before. 
 
 Mr, Justice Day. ‘There does not appear to he 
 
 _any attempt to obtain the primary evidence. 
 Mr, SERJEANT Bau. My Lords, this is not an deat 
 
 ment for composing those resolutions, or publishing 
 
 them: Wedonot even know, whether Dr. Sheridan 
 
 was at that meeting or not. But we offer evidence of 
 what was done at that meeting, to shew that it was con- 
 nected with the other. 
 
 Mr. Justice Daty. The witness says, he heard the 
 secretary read the paper—has any attempt been made 
 to get it? 
 
 Mr. SERJEANT Batt. My Lord, what the secretary 
 read was, the proceeding of a prior meeting. We do 
 not want the witness to detail what the secretary read, 
 
 respecting that prior meeting, and we will. proceed 
 
 to shew what was done atthe meeting of the 9th, 
 X 4 
 
178 
 
 2, You said, the secretary read some paper, do no¢ 
 state what it was. But I ask you, was there any mo- 
 tion made with regard to an original resolution entered 
 into by the meeting of the 9th of July. °) VES 
 
 Mr. Gootp. My Lords, I object to this ave 
 read the indictment, and the counsel for the Crown 
 _-must prove the statement which is there made: It 
 states the resolution of the Aggregate Meeting of’ the 
 Sth of July, and that the Traverser, being a person 
 professing the Roman Catholic religion, and: well 
 . knowing the premises, and contriving and intending 
 to aid, ‘and assist in, and towards the forming of such | 
 committee, did meet on the 31st of July, &c. “All 
 this must be proved by legal evidence. Now Twill 
 
 cet from the witness an acknowledsment, that what- 
 ever motion was made, or resolution ‘entered into, was 
 “in writing. 
 
 ie Was not the motion, or resolution, which you 
 areygoing to state, in writing ¢ i 
 
 A: They were read from the chair. 
 
 Mr. SERJEANT BALL. Was there any resolddion 
 
 entered into at that meeting, relative to 2 committee; 
 —answer, yes, or no? 
 
 Jeb There were several. Ca 
 
 2. What was the substance of the first proposition 
 made ? i 
 
 Mr, Gootp. My Lord, it appears, that those re- 
 _ solutions were in writing, and read from the chair; and 
 the Court has ruled, that the substance of the contents 
 cannot be given in evlanees without the paper ait 
 produced. 
 
 Mr. SERJEANT Batu. J do not apprehend, that thie 
 Court hasruled any such thing. We were giving evi- 
 dence of what was read by the secretary—it was ob- 
 jected to, and whether the objection was right or 
 wrong, we did not persevere. 
 
 Lord Cuter Justice. We considered, that is ebe 
 
 ave it up. 
 
 Mr, Justice DALY. We made no rule upon it. 
 
 Mr. SerseaNntT BALL. I now offer evidence of what 
 was further dene at. the meeting. 
 
179 
 
 ..2. By Mr. Burrowes. Were the proceedings 
 taken down in writing ? 
 
 A. I cannot say, that all the proceedings were 
 taken down. The person making the proposition 
 handed it in paper to the chairman, but whether it 
 was afterwards taken down in a book, or upon any 
 other paper, I cannot say. . ty | 
 
 Q. By Mr. Gooip. Did Lord. Fingall sign the - 
 resolutions—You have no difficulty in answering 
 that? 
 
 A. I have a difficulty ; but I rather believe they 
 were. 
 
 Mr. SERJEANT Bat. Really the objection resolves 
 itself into this: A meeting is held; a person there 
 reads a resolution from a paper, which he handed to 
 the chairman, and because the Counsel for the Crown 
 cannot produce that identical piece of paper, which 
 if produced, most probably could not be sworn to ; 
 therefore no evidence can be given of what passed at 
 the meeting. Even! | 
 
 Mr. Gootp.. That is a pefitio principn. Has any 
 notice been served to produce the paper? 
 
 Lord Cuigr Justice Downss. Js this evidence of 
 that kind or nature, to which the distinction between 
 , primary and secondary evidence applies ? | 
 
 Mr. Gootp. My Lord, we contend it is, The 
 principles of law and reason require, that the con- 
 tents of. a paper shall be proved by the paper itself; 
 the law will not convict any man upon the fancy, or re- 
 collection of a witness. Why do they not shew, that 
 they made any application to Lord Finegan, or Mr. 
 Hay? 
 
 Mr. Justice OsBorNE. Let us ascertain from the 
 witness, exactly, what the facts are, Was the paper 
 handed to Lord Fingall, as the chairman, to put a 
 question upon it? _ 
 
 A. The paper was read by the person proposing 
 the resolution: it was seconded ; then the paper was 
 handeds.to the chairman, and read by him. I can 
 state’ what it was, but what became of it afterwards, 
 I cannot say. 
 
180 : 
 
 Mr. Sontciron GeNgRaL. I hope, if your Lord- 
 ships have any doubt upon this objection, that you 
 will hear the Counsel for the Crown. 
 
 Mr. Justice Day. The question is, whether a 
 party ought to be affected by parol evidence of the 
 contents of a written paper, which is not produced, 
 or accounted for. The variance of a single piv 
 might be important. 
 
 Mr. Souiciror GENERAL. My Lord, the quésdd on 
 arising upon the objection, is, “ whee the sub- 
 stance of what passed at a meeting, can be proved 
 by parol, it appearing that the resolutions were read’ 
 from a written paper, and that the witness believes they 
 were signed by Lord Frneatu. I take it to be per- 
 fectly clear, that such parol evidence is admissible. 
 ' What the individuals said, or the meeting deter- 
 mined can be so proved. Suppose it were a court 
 of justice, or an house of parliament, or any assem=__ 
 bly, in which the acts of persons present would be 
 Jegal evidence; how are their acts, or declarations 
 proved, but by parol evidence? The objection would 
 amount to this, that if a man chose to read his speech, 
 no evidence could be given of what he said, except 
 from his own paper. Some men study théir spéeclies. 
 and repeat them frem memory ; others write them at 
 Jength and read them; others again refer to sliort 
 notes; and shall it be argued, that because such writ- 
 ings did exist, no evidtnce can be given of what the 
 speakers said, but that their notes and memorandums 
 must be produced? | 
 
 Mr. Justice Day. The evidence offered 1s, not of 
 the motions or speeches made by individual members, 
 of the assembly ; but of the resolutions of the meetings 
 which are intended to be niade the ground work of the 
 whole indictment. 
 
 Mr. Souicrror GEneraL. My Lord, I apprehend, 
 that some confusion prevails upon the subject. It is 
 admitted, that acts of the assembly are evidence. Are 
 those acts less evidence, because some of the members 
 yeduce part of the proceedings to writing ? Suppose a 
 man uttered a treasonable speech, and that he read 
 it from uotes, instead of speaking it extempore, would 
 
81 
 
 it be required by a court of justice, that the prosecutor 
 should cal] upon him to produce his notes, or his writ- 
 ten composition? Is there any thing im the nature of 
 such a writte paper, which renders its production 
 necessary ? Under both counts of this indictment, we 
 say that the proceedings in Liffey-street chapel aré 
 evidence; and parol evidence of them has been ad- 
 mitted. Under the first couxt, we say, that the pro. 
 ceedings at Mishamble-street are evidence ; and is it 
 because there was a clerk employed to take down mi- 
 hutes of their proceedings, that therefore it is neces- 
 Sary to produce that clerk and bis memorandums? 
 Suppose Mr. Secretary /fay was produced, he might 
 object, and say, that those papers would criminate 
 himself. This kind of writing, is not like a letter, 
 or a deed, or an article, under which a title is deriv- 
 ed. Uttering a speech, or passing a resolution is one 
 thing—reducing that speech or resolution to writing 
 1s another, and it is not because the latter has been 
 done, that therefore no evidence can be given of the 
 former, but such writing subsequently made. A num- 
 ber of persons assemble and confer together—they 
 agree to a certain resolution. If it be necessary to prove 
 such a transaction upon a criminal trial, would the pro- 
 secutor be bound to produce the resolution in writing ? 
 Or would he be bound by the manner in which it was 
 taken down by one of the confederates. Suppose that 
 the written resolution was produced, that would not 
 preclude us from giving evidence of other inatters, 
 which took place, and further, suppose the matter was 
 reduced to writing in such a way as to avoid a crimi- 
 nal imputation, although every sentenee of the de- 
 bate, or conversation were criminal, would the prose- 
 cutor be bound by the former, and precluded from 
 giving evidence of the latter? He cannot be bound 
 by the notion, that one beine superior evidence can- 
 not be supplied by inferior. ‘That distinetion does not 
 apply to the present case, and yet the only ground 
 upon which this argument is supported is, that you can-_ 
 not give inferior evidence, because there is evidence of a 
 superior nature in existences Suppose the resolutions 
 were now produced in paper, should we not; be at li- 
 berty to give evidence to contradict them ? 
 
182 
 
 (Several of the traverser’s counsel: answered—Cer= 
 tain y.] 
 
 Mr. SOLIcIToR GENERAL. “My Lordéle I cannot 
 _ proceed in the argument, if I am to be interrupted 
 by acry, from a Committee of Counsel. I say, my 
 Lords, that the doctrine respecting written evidence 
 being superior, and parol evidence being inferior, 
 does not apply to this case. But that it is compe- 
 tent, for us, to prove by parol evidence, the acts 
 of persons, combining together; and that the cir- 
 cumstance of those persons entering their resolutions 
 in writing, does not render the parol evidence less 
 admissible. 
 
 Lerd Chief Jusiice Downes. I do std feel, that 
 this objection to the evidence, has any weight. 
 The paper alluded to, is not that kind of instrument, 
 which should, in the first instance, be produced, or 
 accounted for, before evidence of an inferior nature 
 ean be given. The objection is founded upon @ 
 presumption, -that there is a document of an au- 
 thentic nature, shewing what the proceedings were, 
 and that it is not competent to give evidence of 
 those proceedings, without producing that docu- 
 ment. The evidence offered is, to shew the trans- 
 actions of the meeting. What was said by the one, 
 and the other; in short, the general conduct of the 
 assembly. [his cannot be rejected, because there 
 was some person there, who took notes of what passed. 
 Possibly, that person may have a more accurate ac- 
 count; but it goes no further than that.—If he shall 
 vary from the present witness, it will. be a question 
 _of credit between them. But the distinction between 
 primary and secondary evidence. does not. strike 
 me to be applicable to this point. 
 
 Mr. Justice Day, Possibly, 1 have mistaken the 
 drift of the examination, But if the testimony of 
 the witness went to establish, that certain resolutions 
 were entered into, as evidence necessary to support 
 the prosecution, I should suppose, that the resolutions 
 ought to be produced. 
 
- 
 
 183 
 
 “Mr. Justice’ Day. 1 think the evidence offered 
 
 is this :—evidence of the acts and declarations of in- 
 
 dividuals in that assembly. In order to prove that, 
 
 the witness states, that a person rose, and made a 
 
 ‘motion, which he read from a written paper, that does 
 
 not create the question of primary, or secondary evi- 
 dence at all. The evidence offered, is, not what the 
 paper contained, but what one person proposed, and 
 
 “what the meeting adopted. Suppose, in an action for 
 ‘slanderous words; it was proved, that some person 
 took down the words, that would not prevent another 
 
 witness from giving parol evidence of what the words 
 were. So here, { think it competent to prove the 
 proceedings by parol evidence. 
 
 Mr. Burrowks. My Lord, I am not going to 
 argue the question further ; but with a view to con- 
 form to the rule, after the Court shall have decided. 
 I beg to know, do the gentlemen for the Crown mean, 
 that parol evidence of a particular proposition in 
 writing, moved and passed, shall be evidence to affect 
 the whole assembly, and also the Traverser, if he 
 
 be connected with that assembly? 
 
 Mr, Justice Daty. I understand the object to be 
 this —to examine the witness to prove what was said 
 at that meeting, without proving any thing that was 
 ‘taken down in “writing, 
 
 Lord-Curer Justicz Downes. To what extent it 
 
 ‘may bear, we are not now called upon to say. 
 
 Mr. DriscoLt. My Lord, I apprehend, that there 
 is a misconception, as to the question put to the wit- 
 ness. He was interrogated as to the substance of a 
 resolution, which was “moved from a written paper, 
 read by the chairman, from the same paper, and 
 afterwards again reduced to writing. ) 
 
 Lord Curler Jusrice, The Court has ruled, that 
 the question may be asked. | , 
 
 _ &. Mr. SersEant Batt. You have stated, that 
 there was a. proposition made; What was the sub- 
 
 _gtance of it?- 
 
 A. Is it necessary to mention names ? 
 
 - 
 
the prejudices on the part of ike English. — 
 
 184 
 
 2. No; we do not desire it; some gentlemen on 
 the other side wish it, hut do you state what the reso- 
 lutions were ? 
 
 4. A gentleman gave in a report of ‘different Mes 
 ceedings, and concluded with a beaeee Surge 
 2° What’was the first resolution ? i 
 A It was declaratory of a naked right... : 
 “ Resolved, That being impressed with al ‘aualer- 
 
 « able conviction of its being the undoubted right of 
 
 “ every man, to worship his creator, according, to the 
 * genuine Giotatcs of his own conacienaa! we ‘deem it 
 * our duty, publicly and solemnly to declare our.de- 
 “ cided opinion, and principle, that no goverument 
 “can, with justice, inflict any .:pains, penalty, or 
 “ privation upon apy man, for professing that foxm, of 
 * Christian faith, which he in his conscience he- 
 ¥* hieves.” , 
 
 2. What was the second resolution ? 
 
 A, “ That we shall therefore persevere in petition- 
 *‘ ing the legislature for a total and unqualified repeal 
 ** of the Penal Laws, which aggrieve and degrade the 
 * Catholics of Ireland.” Eis 
 
 2. What was the third resolution ? 
 
 A, * Resolved, That in exercising this asdiewbtad 
 * right of petitioning, we shall continue to adhere to 
 ff the ancient principles of-the constitution, and to 
 * conform also to the peculiar restrictions, which, by 
 
 ~* modern statutes, are imposed on the people of 
 
 * Treland.” 
 
 2. What was the sth resolution ? 
 
 44. That a Committee be appointed to ** enquire 
 ** into the state of the penal laws, affecting the Ro- 
 «* man Catholics, and give a return of the same within 
 ** one month.” | 
 
 2. Were those resolutions carried ? 
 
 d. Yes, they were carried unanimously—another 
 Gentleman then rose and stated, that the resolution, 
 which he had to propose, ‘had for the sake of conve- 
 niency, been agreed upon in an adjoining room. He 
 said, it was possible, that there might be a communi- 
 
185 
 
 cation with Government, and the persons appointed 
 ought to be respectable—he then moved the fifth reso- 
 lution :—‘‘ That the said Committee do consist of the 
 ‘¢ Catholic Peers, and their eldest Sons; the Catholic 
 ‘¢ Baronets; the Prelates of the Catholic Church in 
 ** Treland; and also ten persons to be appointed by 
 ‘the Catholics in each county in J/reland; the sur- 
 “¢ vivors of the Delegates of 1793, to constitute an in- 
 <¢ tegral part of that number ; and also of five persons 
 to be appointed by the Catholic inhabitants of each 
 ¢¢ parish in Dublin. 
 
 Q. Was that resolution put to the assembly ? 
 
 A. It was, and carried unanimously. 
 
 Q. Do yon recollect any thing more that happened 
 at that meeting ? 
 
 A. There were other resolutions respecting money 
 granted to individuals, and thanks voted to several 
 Members of Parliament. | 
 
 Cross-ecamined by Mr. Gooup. 
 
 Q. Captain Huddleston, what countryman are you? 
 
 A. An Englishman. . 
 
 Q. Of what religion are you? 
 
 A. I was brought up a Catholie. 3 
 ~ Q. That is not an answer to my question? 
 
 A. I consider myself a Protestant—I think it right 
 to explain myse!lf—I have for many years past consi- 
 dered upon the subject, and from a perfect conviction 
 upon my own ita Ihave rejected the doctrines of 
 the Romish Church, and embraced the tenets of the 
 Protestant Religion. 
 
 Q. Have you taken any measures upon the subject— 
 
 I presume, that you have renounced the Catholic reli- 
 gion, with all the solemnity such an alteration in your 
 _religious opinions required ? : 
 _ A. Ihave never, ina formal manner, conformed— 
 but when I make a declaration of my being a Protes- 
 tant in the face of this Court, [think I cannot make a - 
 more solemn recantation. 
 
 Q. From the character in which you appear this 
 day, you do the Protestant religion great honour, and 
 on hearing “ truths divine,” from such a tongue, 1 
 
 2A 
 
186 
 
 presume, that I am to take every thing, which you havé 
 said this day, as gospel. Your family have the honor 
 of being descended from a very ancient Roman Ca- 
 tholic family ? 
 
 A. I have. | 
 
 Q. Your family have been Roman Catholics for 
 many years? 
 
 A. They have. 
 
 Q. Some hundreds of years? 
 
 A. Yes. , 
 
 Q. You have conferred great honor upon your fa- 
 mily, and credit upon your country, by reading your 
 recantation this day in the Court of King’s Bench ? 
 
 A. I have acted from conviction. 
 
 Q. You are a man of learning ? 
 
 A. Not much—l] have read a great deal. 
 
 Q. And the result of your reading was to become a 
 Protestant ? 
 
 A. Most decidedly. 
 
 Q. And to declare it here this day ? 
 
 A. I have been compelled to declare it. 
 
 - Q. It was the result of your reading which induced 
 ‘you to become a Protestant.—You were actuated, no 
 doubt, by a divine sense of religion ? 
 
 A. I was. ; 
 
 Q. Now, Sir, let ‘me ask you, have you ever enter-~ 
 tained loose opinions upon the subject of religion? _ 
 
 A. Since I came to the use of reason, I never enter- 
 tained any opinion derogatory to the Christian religion, 
 but I cannot answer for myself before I arrived at four- 
 teen or fifteen years of age. 
 
 Q. Do you swear positively, that since you arrived 
 at the age of fourteen or fifteen years, you entertained 
 no doctrine or tenet, except such, as was completely 
 conformable to the Christian religion ? 
 
 A. I think Ican. ese. 
 
 Q. Did you, before you attained the age of fourteen 
 or fifteen, entertain tenets not conformable to that reli- 
 gion? : | ah 
 
 A. ‘I cannot recollect: 
 
 Q. You will not say that you did not? | Gea 
 
 A. I do not think I did;—I might have neglected. 
 the duties of religion. ae 
 
 —_ 
 
187 - 
 
 Q. Then, as you are a perfectly pure, religious man, 
 ‘ive me leave to ask you, have you lately made any 
 eclaration, deriding the subject of religion ? 
 
 A. I believe I never did. 
 
 Q. Will you swear, positively, that you did not ? 
 
 A. I will. 
 
 Q. That you never declared, you were a deist ? 
 
 A. Never, 7 
 
 Q. Or a tendency towards deism ? 
 
 A. No such thing. 
 
 Q. Then you would be shocked, if I were to ask 
 you whether you ever declared yourself to be an 
 atheist ? 
 
 A. Certainly not. 
 
 Q. Do you swear that positively ? 
 
 _ A. Most solemnly, : 
 
 Q. Then in taking the account from Captain Hud- 
 dleston himself, he is a perfectly pure and moral man? 
 A. Ido not say that. : 
 
 Q. Are you not perfectly religious ? 
 
 A. I do not say 1 am perfectly religious. 
 
 Q. Or perfectly morai ? 
 
 A. Ido not say I am a perfectly moral man. I 
 have the frailties of others. 
 
 Q. At the time of this extraordinary meeting you 
 did not go there, as a Catholic ? 
 
 A. I did not. ; 
 
 Q. What was your object in going there? 
 
 A. My sole object was to report for the news- 
 papers. 
 
 Q. You attended, in the quality of a reporter for 
 the newspapers ? ? ay 
 
 ie! Tes: 
 
 Q. Of course, it is no shame? 
 
 A. It was more for my family’s sake, than 
 mine. _ } | | 
 
 Q. Sir, I mean to say, it does you credit. You 
 attended many meetings? | 
 
 A. I did. | 
 
 Q: Did you ever know a single instance, in which 
 the resolutions were not reduced to writing, and present- 
 
 ed to the chair, before they were put from the chair 
 and passed ? Bae. 
 
188 
 
 A. As far as my experience went, I have always 
 found, that the resolutions were read from the chair, or 
 by the secretary. he 
 
 Q: Sir, they could not be read, unless they were in 
 writing, or printed.—I ask you,—Do you not believe, 
 that the resolutions were in writing, before they were 
 read from the chair? | 
 
 A. I think they were reduced to writing by the 
 proposer of them :—they might have been afterwards 
 transcribed into a thousand other papers. 
 
 Q@. Do you not believe they were in writing at the 
 time they were proposed ? 7 
 
 A. Ihave no doubt of it. 
 
 Q. Do ysu not believe that they were entered in a 
 book by the Secretary, and signed by the chairman? 
 
 A. I believe, at least, they were signed by the chair 
 man —My belief is founded upon the usual practice in 
 such cases. But I did not see the chairman sign them, 
 
 Q. Do you believe, that these resolutions were en- 
 tered in writing at all ? 
 
 A. I think they were written down by the proposer 
 of them. ; 
 
 -Q. How many resolutions, in number, passed that 
 day? | 
 A. Indeed, I cannot exactly answer that question. 
 
 Q. Then your memory is not so exact, as the reso- 
 lutions themselves ? | 
 
 A. Sometimes resolutions are divided into separate 
 parts, and encrease the number—in general, they are 
 designated by first, second, &c. From the notes, which 
 I took, and omitting the resolutions, respecting money 
 and thanks, there were five resolutions. 
 
 Q. State what the fourté resolution was ? 
 
 A. As I have taken it,—it was that a Committee be 
 appointed to inquire into the state of the penal laws, 
 affecting the Roman Catholics, and give a return of the 
 same within one month. Fi 
 
 Q. Was that the fourth resolution ? , 
 
 A. The conviction on my mind is, that it was. 
 
 Q. Was it proposed, and passed ? 
 
 “A. I took it down, as such ; there might have beea 
 alterations. 
 
 a 
 
189 
 
 Q. Was it passed ? 
 
 A. It appeared to me, to be so; I reported it, as 
 such. 
 
 Q. Will you swear it passed; because it is most 
 important? 
 
 A. With respect to the fourth resolution, my mind 
 is not so completely made up, as to the others. 
 
 Q. From what source does the inaccuracy arise ? 
 
 A, I know of no source, but the imperfection of 
 
 ‘memory to which a man may be liable. } 
 
 Q. As to the fifth resolution, are you sure? 
 
 A. J am. 
 
 Q. Repeat it? 
 
 The Witness repeated it. 
 
 Q. Repeat the second? 
 
 Witness did so. 
 
 Q. Were they passed on that day? 
 
 A. They were 
 
 Q. Are you positive } 
 
 A. Tam. 
 
 Q. And the third? 
 
 A. Yes. 
 
 Q. Will you swear, that the fourth resolution, or 
 any thing like it, passed? 
 
 A. To the best of my belief, it did. { baw) not 
 exactly remember all the words. 
 
 Q. Was there any other clause, which you have not 
 stated ¢ 
 
 A. There were words, which 1 do not recollect. 
 
 2 Were they material ? . 
 
 . As to the impression upon my mind, they were 
 ae 
 
 Q. Where are your notes? , 
 
 A. T have lost them: there was no intention te de- 
 stroy them; when they were given to the printer, TE. 
 did not think it necessary to keep them any longer. — 
 
 Q. Ido not attribute to you any Intention ‘to. de- 
 stroy them; but will you swear positively, whether 
 the fourth resolution passed? 
 
 A. It appeared to me to pass ; and I took it down, as 
 haying passed ; bat alterations might have been made 
 
Igo 
 
 init afterwards. They appeared to me tocbe altered 
 and amplified in the Catholic official paper, The 
 Evening Post, as } saw them afterwards. 
 
 2. Mr. Huddleston, I will not now speak of honor, 
 or integrity, but I am appealing to your accuracy. 
 Will you swear, ,that any thing like the 4th resolution 
 passed ? ° 
 
 A. 1 stated.so, in my report. , 
 
 2. Thatis no ri emie. Will -you state, is el 
 thing like such.a resolution was put from the: chair? 
 
 A. To the best of my recollection, it certainly 
 . ea 
 
 2. Will you swear, positively ? 
 
 A, 1 have repeated before, my doubts of the exact 
 accuracy of the words of that resolution,—I can do 
 no more: I have some doubt, whether it was, that the 
 report was. to be made, co ithark a month from the time 
 of the meeting—or a month before the meeting of par- 
 liament. 1 cannot now say which, 
 
 2. Will you swear, that is the only matter in 
 _ which you cannot be accurate ? | 
 
 A, That is the only matter of which. I have a 
 doubt. 
 
 2. Lord Cuter Justice. As to all the rest of the 
 fourth resolution, do, you say, that the account, which 
 you have given, is accurate? 
 
 4. Yes, my Lord. 
 
 2. For what paper did you report? 
 
 4..The Hibernian Journal. 
 
 2. A paper not remarkable for its friendship to Shia 
 cause ¢ 
 
 A. 1 have reported for others also; I had no > Bar 
 ‘ticular anxiety about that one. 
 
 2. Who moved that notable fourth resolution ?. 
 
 4. Do you wish, I should mention the name ? 
 
 Q. If you please? 
 
 A. Mr. O'Gorman. 
 
 Q. Do you mean Counsellor 0? Gorman ? 
 
 A. Yes. 
 
 Q. Who moved the first? ) 
 
 A. Counsellor. O'Gorman moved the first four reso- 
 tutions, 
 
191 
 
 Q: Very good. You say, that you saw an official 
 report in the Dublin Evening Post ? 
 A. What I considered to be official. 
 Q. Did it appear that Lord Fingall signed them? 
 A. I cannot chatee my memory with what appeared 
 there, only that “the resolutions appeared to be 
 mended and amplified. 
 Q. Will you swear, that you do not recollect seeing 
 Lord Fingall’s name? 
 ' A. To the best of my recollection, ‘it was at the 
 bottom of the publication; but I cannot say posi- 
 tively. : 
 Q. Was not Lord Fingail’s name mentioned in the 
 Mibernian Journal, as haying presided at the meet- 
 ing ? 
 A. Yes, 
 Q. And as having signed the resolutions ? 
 A. No, I think not, 
 Q. How long is it since you saw your report of 
 the resolutions ? 
 A. I saw them this day. 
 Q. In your own hand-writing ? 
 A. Not since the evening, when T made the re- 
 port for the paper, about four months ago. 
 Have you taken any pains to refresh your me- 
 fiory? 
 A. I have Biageycured to do so. I considered 
 upon the subject several days. 
 Q. And you have refreshed your memory ? 
 A. I have. 
 Q. Did you this day ? 
 A. TI did. 
 Q. You had no occasion? 
 A. Ithink not. 3 
 Q. How did you refresh your memory this day? 
 A. By reading certain papers. 
 Q. What were the papers? 
 A. I read a private letter, which does not bear upon 
 these resolutions at all. 
 Q. He tells the Jury, that he refreshed his memory 
 by reading a private letter, which did not relate to 
 these resolutions! 
 
192 
 
 A, It isa private letter, bearing only cola 
 upon the subject. 
 
 Q. Have you this day refreshed your menor} y-apon’ 
 this subject ? 
 
 A. I have this day read the report, whieh 4 gare 
 in the paper. 
 
 Q. Whiat was the private letter ? 
 
 A. I was reading a letter, which recalled be my 
 mind several of the circumstances—it was a copy of 
 a letter which I had written. . 
 
 Q. You said you refreshed your memory by read- 
 ing the news-paper report.—How many new-papers 
 did you read? 
 
 A. The report was not comprized in one ; it was 
 published in the Hibernian Journal of the 11th and 
 12th of July, which I have here; there are some er- 
 rors of the press in them. 
 
 Q. Was your memory refreshed ? 
 
 A. I do not know that it was. 
 
 Q. Then how did you refresh your memory, if it 
 
 was not refreshed ? 
 
 A. Thad the facts upon my mind, but to prevent 
 apy mistake, I looked over the report. 
 
 Q. How long ago is it since you lost your notes? 
 I do not mean bank-notes, | 
 
 A. They were lost, or destroyed three months ago 
 as loose papers. 
 
 /Q. Did you lock for them? : 
 
 A. 1 did—if they were destroyed, it was widfioht 
 any intention of mine, or any act of mine, and it was 
 before there was any idea of my appearing as a witness. 
 
 Q. I think I saw you reading a paper in Court; what 
 was it for? 
 
 A. Fo prevent.a lapse of memory. na? Ah 
 
 Q. I saw you eg a paper in a corner, what 
 was it? sen 
 
 A. Do you mean @ written or a priqted pg t- 
 
 Q. Lask you what it was? 
 
 A. One was the copy of a’ private letter, dnd the 
 others were newspapers, containing the PFA — 
 
 Q. Where are they ? : 
 
 \ 
 
 , 
 
195 
 
 A. Here they are—there are thany errors of the 
 press. | | 
 
 Q. These are the printed papers—where is the 
 ether? | ya 
 
 A. It is a private letter. 
 
 Q. You refreshed your memory by reading a private 
 letter ? melt 
 
 A It has nothing to do with the subject. 
 
 Q. How did that refresh your memory ? 
 
 _ A. There is a passage, which does bear upon the 
 subject, and which I will read. ; 
 
 Q. Sir, I will not suffer you to read it—to whom 
 Was it written? 
 
 A. Am TI bound to answer ? ‘ 
 
 Mr. Gootp. You may take the sense of the Court. 
 
 Witness. have no object in concealing any thing; 
 I wish that all was open as the day ;—~although I suffer 
 sia obloquy from appearing here, I am unwilling to 
 
 O SO. 
 
 Q. Then, Sir, since you have no objection, that 
 every thing should be as open as the day, pray, tell 
 me to whom the letter was directed ? 
 
 A. To Sir Charles Saxton. 
 
 Q. How long ago was it written? : 
 
 A. This is a copy, and the date is not annexed, 
 
 Q. About what time was it written? . 
 
 A. In last AZarch; and now I think, I am entitled 
 to state the passage to which I referred. 
 
 Q. I will not permit you to state it as evidence 
 against the Traverser. But tell me, by what process of 
 the human mind can you make it appear, that a letter, 
 written in AZarch, could refresh your memory,. as to 
 transactions, which happened in July following —I tell 
 you fairly, Captain Huddleston, that my object is to 
 discredit you, and I am instructed, that there are wit- 
 nesses to be examined to that purpose. ‘Tell me, how 
 could a letter written in March bear upon transactions 
 in July ? 
 
 A. I can explain, if I am permitted, and I have 
 offered to do sq several times. 
 
 . Mr. Justice Day. If you wish to explain, you may 
 O sO. | , 
 
 2B 
 
194 
 
 A. My Lord,. the intention is avowed to asperse my 
 character, and it is natural for me to wish to vindicate 
 myself; therefore, I wish to explain how I was drawn 
 into this business.—I attended, as a reporter of the 
 proceedings of the Catholic Committee, partly for 
 a small emolument, ahd partly for my own improve- 
 ment. | é All 
 
 Mr. Goo.p. I object to this kind of statement, as 
 evidence against Dr. Sheridan. TEN 
 
 Lord Ghief Justice Downes. What part of your 
 evidence do you wish to explain? Ona 
 
 A. My Lord, I cannot do it, without going into a 
 history of the matter, and how I have been brought 
 into this business. | | ; 
 
 Mr. Jus/ice Daty. In your’ cross-examination by 
 Mr. Gooip, you stated, that you wrote a letter to Sir 
 Charles Saxton, in March.—Now, explain, how that 
 refreshed your memory, as to matters whieh happened 
 in July ? | 2 ‘ ae 
 
 A. My Lord, that will appear from stating the letter 
 -itself.—On the 15th of December— rags 
 
 Mr. Gootp. My Lord, I must object to the witness 
 reading any part of the letter. He may explain any 
 thing that he has satd, but he is not to read a letter 
 of his own. DP 
 
 Lord Chief Justice Downes. He wants to explain in 
 some way, how this letter has a collateral bearing, as he 
 svys, upon the stibjects ts Chi Ge 2 Means “ner aree 
 
 Mr. Gootp, My Lord, I object to it. big 
 
 Lord Chief Justice Downes. - You ask him, how it 
 has such a bearing, and surely he has a right to say, 
 - how? fico haa om 
 Mr. Justice Daty.: How can he explain it, without 
 Jooking into the letter. 
 
 Mr. Burrowes. » My Lord, I believe it is. best to 
 jeave the matter as it is. ‘ . 
 
 i. oon 
 
 Examination resumed. 
 
 _ Mr. Gootp. You wrote, you say, to Sir Charles 
 Saxton, a réSpectable, generous and liberal man.—Was 
 it of your own free will and motion ? ; 
 
 A. it wasmy act, and written with my hand. 
 
195 
 
 _Q. Was it not suggested to. you by somebody? Or 
 was it of pau own accord, and the prompting of your 
 own mind ? 
 
 - Am_I bound to tell with whom I conversed pon 
 it ! 
 
 Q. No. But whether you wrote in consequence of 
 @ suggestion from any person, or from your own free 
 will? 
 
 A. I received a suggestion. 
 
 .Q. Then you acted from both the one and the other, 
 and you appear now from a motive of public justice ? 
 
 A. Iwill explain the transaction. The proprietor 
 of the Hibernian Journal told me one day— 
 
 Mr.Goo.p, I object to your telling what passed 
 between you and the ah Sab of the Hiberman 
 Journal. 
 
 ‘Mr. Serjeant Batu. You ask him a question, and 
 you will not let it be answered. I never saw so un- 
 reasonable a mode of cross-examining, in my life. 
 
 Mr. Gooxtp, Ithank you. I like that sort of ap- 
 probation from an adversary. | : 
 ~. Lord Cater Justice. You ask the witness from 
 what motive he acted, and: he is going to answer you, 
 
 A. I waited on Sir Charles Saxton, in conseque:ce 
 of what the proprietor said to me, and had a conver- 
 sation, relative to my having attended the Catholic 
 ‘meetings. I told him, if I came forward, as a wit- 
 ness, I would be exposed to a great deal of reproach 
 and obloquy : but that if I was “obliged to come for- 
 ward, I would tell what I knew on the saeada: with- 
 out four: | 
 
 Q. Do you now say, that you are an al a 
 witness ? 
 
 A. I said, it would expose me to mach obloqny 
 and reproach. 
 
 Q. Are you an unwilling witness ?' 
 
 A. Iam sorry to come forward ; but I cannot say, 
 1 am unwilling to give evidence. 
 
 Q. Have you “ever received any favours from 
 
 government ! a 
 ich 
 
196 
 
 A. T have received riumerous favours <I was in 
 the army, and held the situation of Barrack-master, 
 several years. 
 
 Q. Have you received any favours lately? 
 
 A. I have not. oa 
 
 Q. Have you any prospect? See 
 
 A. I have not: 
 
 Q_ Will you swear that? 
 
 A. No certain prospect.—A bout three : years. ago, I 
 applied for a situation, but have been ever since 
 without it, and therefore have no prospect. 
 
 Q_ How long have you been in this country ? 
 
 A. Ten years, 
 
 Q. Have you had any knowledge of the Earl of 
 Fingall ? 
 
 A.I have had the honour of dining in his company.’ 
 
 . He is a man of high rank and honour? 
 
 Sion 
 
 Q. Do you believe that there is any man in his 
 Majesty’ s dominions, less disposed to violate the Jaw 
 ‘of the land? 
 
 A. Ihave the highest opinion of him, and think 
 he would not violate the law. 
 
 Q. Do you know Lord Southwell? 
 
 A. I know him, but have not been in his com- 
 pany. 
 
 Mr. O’CoNNELL. Ask him, Mr. GooLp, ‘by whom 
 the fifth resolution was moved? ~ | 
 
 Q. Do you know by whom the fifth resolution was 
 moved ? 
 
 ’ A. Do you wish me to name the gentleman? 
 
 Mr. O’CONNELL. Yes, we wish’ you to name him. 
 A. Mr. Byrne. 
 
 Q. Do you mean Mr, John Byrne, of Mullinahack ? | 
 
 A. I believe it was, — 
 
 Mr. Gootp. My Lords, we will not detain, the 
 Court further with this witness. 
 
 Mr. ATTORNEY GENERAL. My Lords, we will not 
 produce any other evidence, and close on the part of 
 the Crown. Itis now past six o’clock, ‘and the Coun- 
 
197. 
 
 sel for the T'raverser. have no objection, if. it meets 
 the approbation of the Court, to adjourn until to-mor- 
 row morning. | 
 
 Lord Cuter Justice. We have no objection to 
 adjourn; and in that case, do the Counsel, on either 
 side, Oot any thing particular respecting the 
 jury. 
 
 The Chanel on both sides answered, that they did 
 not ; whereupon the jury were permitted to depart. 
 
 BRIERE ESS GD TED EEAEISE, 
 
 sileae, ee, 23, 1811]. 
 
 ‘The Court sat pursuant to adjournment, and the 
 jury attended. 
 
 Lord Cuter Justicr. We wish to have a matter 
 explained respecting what the witnesses Sheppard and. 
 M‘ Donough swore in their information, and what was 
 stated yesterday. Therefore let James MDonough be 
 
 called. 
 _ Mr. Burne. My Lord, we request that the other 
 witness, Sheppard, may retire and not suffered to be 
 present while the Court is examining M‘Donough. 
 
 Lord CHIEF JUSTICE. Certainly. Let him with- 
 draw. . a 
 
 James M‘Donough 
 Examined by the Court. 
 
 Lord Cuier Justice. You swore yesterday, that 
 you saw Dr. Breene at the meeting in Lifey-street ? 
 
 A. Not in the chapel, my Lord. 
 
 . Q, You did not see him in the chapel ? 
 
 AY No, my Lord. ; 
 
 Q. Did you say; that you saw him? — ge 
 
2 
 
 198 
 
 ” 
 
 ¢ 
 v 
 
 A. Not yesterday. hy 
 Q. Did you represent ; or mean to TEpreeRhs by. 
 our informations, that Dr. Breene was there? 
 _A. My Lord, what I meant to represent was this : 
 ~—-On coming out of the chapel, amongst the persons. 
 
 coming out, I saw a'man whom F- believed to be Dr... 
 
 Breene, and Y turned to Sheppard and said to him, 1 
 believe that is Dr. Breene, whony we ‘heard: spoken 
 of, or called in the chapel. 
 
 ‘0. Pray did you represent in your informations, 
 or mean to do so, that the seven persons, who were 
 pamed, 1p order to choose the committee of five, were 
 actually present in the chapel? 
 
 A- All the seven, who were named, except Dr. 
 
 Breene. 
 
 Q. Did you mean to except ppaale ? 
 
 A. I meant, that he was named, but I did, not see 
 him. 
 
 Q. Did you mean 1 to represent to the J ary, that the - 
 seven persons, who were to retire and elect five, were 
 all fe and retired? 
 
 - A believe so. 
 
 mi Did you ever swear it ? 
 
 A- Lonly meant, that I believed they were all there 
 ¥ did not see all. 
 
 Q. Did you mean to convey in your informations, 
 that these seven persons were Belay Wee Preseny at the: 
 time ¢ 
 
 A. Yes, My Lords, I did mean to convey, that 
 those seven persons were in the chapel. 
 
 Mr. Justice Daty. Do you mean to swear posi- 
 tively, that Dr. Breene was there? , | 
 
 A. I cannot swear, positively, that he was; I only 
 belteved it. 
 
 Lord Chief Justrce. You swore that Mr. Kirwan 
 
 proposed, that seven take should be nominated. a 
 A. I did, s 
 Q. Did you mean by that statement to say, that 
 
 the seven persons, so nominated, were then present. 
 A. I did; but EF did not see ther alles io, bt 
 
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 _A- Not, yesterday. ete, | 
 Qy Did you represent; or mean ‘to’ TepreNenk: vy. 
 our informations, that Dr. Breene was thereg S08 fe 
 | A. My. Lord, .what I meant to represent was “this: 
 —On caming out of the chapel, amongst “she persans . 
 coming opt, I saw a man whom I beljeved to be Dr, 
 Breene, and I turned to Sheppard and said to him, J 
 believe that is Dr, Breene, whem we: heard: pppken 
 of, orcalled inthe chapel... 
 Q. Pray did you represent in your informations, 
 or mnean to do so, that the seven persons, who were. 
 
 --, named, in order te choose the committee of. ie e, were 
 
 actually present in the chapel ? 
 
 A- All the seven, ane were named, oxee Dr. 
 Breene. | 
 
 Q. Did you mean to except him 
 _ A. I meant, that he was an but I. ne not, see 
 him... PGP Sas 
 
 Q. Did you mean to represent t to the Frits ‘dit thie. 
 seven persons, ‘who were to retire feet ine Eve were 
 all present, -and retired ? ey uae 
 
 i WA. BA beltewe gos i bE Ee SEN ta 
 
 -Q. Bhd Yow evel ewear it? SA REM 5) pai oo 
 
 A- Lonly meant, that I believed they w were ¢ all theres: 
 Tdid ‘not-see all. | tae 
 _ - Qi'Did you mean ‘to convey in your Treen 
 that thase seven popagen) eb oes present at ‘the: 
 time? fthy oF. | 
 
 A. Yes, My fone I did mean to convey, ’ - that 
 those seven persons were in the chapel. 
 
 Mr. Justice DaLy. Do you mean to swear posi- 
 tively, that Dr. Breene was there? ~ 
 
 A. I cannot swear, positively, that ‘he was ; I only 
 believed it. 
 
 ‘Lord Chief Jusrice. ' You swore that Mr. Kadi 
 proposed, that seven pouene should be nominated. \ 
 
 A. I did. te 
 
 Q. Did you-mean “by : ‘that statement ‘to say, Hat 
 the seven persons, so nominated, were-then present, 
 
 A. I did; but T-did net see: them all. 
 
 ) 
 
OLY 
 
 (OM; Justice: Day... Did. you mean to sayy that: yeu 
 saw the seven persons? 8) tS 
 NA: No. We ae oe vou Sich vate POA ve a fare fr 
 - Lord Chief Sastiew, | ‘You ’ swore this that Mr. 
 «Kirwan: pr iséd, that seven-of thé ‘persons present, 
 4g HOuld ° #! nominated: to appoint the committee’ 
 <¢ fve”—did you mean to convey OY, these words, that | 
 those seven: persotis were present? - ws 
 A«'l did. Parra 
 Mr. Justice OsBoRNE. Pray Sir, ra say you heard 
 _ the names of seven persons called i. | 
 
 A. Yes, my Lord: de : 
 i ay Mr. Breene x was one? ; ie 
 
 a. Yes. Fy GT LINIS Sly eae 
 
 . You did not see him? SR, 
 
 Bae No. ae, 
 
 Q. Then’ how could you say, it was Dr. Breene, 
 wlied you did not see him? 
 
 A. To the best of my belief, because I heard in’ the 
 ‘chapel before I left it,‘ that it was'Dr. Breene. ©‘ 
 
 Lord Chief Justice. ‘Your ‘information states, that 
 
 you‘knew Dr. Breene, did you mean by: that,’ in your 
 informations, to represent, ‘that. he Was one of” the 
 ‘seven who retired? : acts oa ‘ith 
 _ A. [meant to say, 'Y believed it,’ 
 
 Lord Chief Justice, Your informations do not ge 
 “te, = : 
 
 Mr. Justice Div: You saiv’ five’ ‘of the seven, ‘persons 
 ‘who were nominated, , one of ‘the five ‘was Mr. Br ene, 
 «© whorn informant. knew to be Dr. ‘Breente.”  ” 
 A, Before I, gett. the chapel, 1 ‘heard it Was "Di. 
 “Breene. | 
 
 Q. How conta you swear you knew him, when you 
 did hot see him?" | 
 A ‘I believed lie was the person; I saw him yester- 
 day; and this day, and believe he is the same person 
 who was naméd on that day. 
 
 ~~ Q. But you said you knew him? : 
 
 A. heard his name mentioned, and believed he" was 
 the! person whom I afterwards saw. 
 ‘ ‘Lord Chief Justice. Do the counsel on either side 
 Wish to ask him any thing ? 
 
 ~“Couusel on both sides declined. 
 
 “Mr. Driscout. My Lord, I beg to refer you to what 
 
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 _ *w the seven persons? at 
 
 4. No.* . 5 ; : 
 
 4 PNG Chief Justick. You swore this—‘* that Mr. 
 “K ‘eee proposed, that seven of the persons present, 
 s i “ld be nominated. to appoint the committee of 
 
 ‘iv@__did you mean to convey by these words, that 
 
 Hii Sen persons were present? 
 - \edid. 
 (Mr. Justice OsBoRNE. ‘Pray Sir, you say, you heard 
 the Nines of seven persons called ? 
 | A. Yes, my Lord. 
 | Q.Mr. Breene was one? 
 | A. Yes, : 
 | & You did not see him? 
 4 A, No. | | 
 | 
 »~ |} Q. Then how could you say, it was Dr. Breene, 
 “when you did nof see him? | 
 
 A. To the best of my belief, because I heard in the 
 chapel before I left it, that it was Dr. Breene. — 
 
 Lord Chief Justice. Your information states, that 
 you knew Dr. Breene, did you mean by that, in your 
 informations, to represent, that he was one of the 
 seven who retired ? i 
 
 A. I meant to say, 4 believed it. 
 
 Lord Chief Jusrice. Your informations do not ge 
 to that. 4 nt ' 
 
 Mr. Justice Day: You saw five of the seven persons 
 ‘who were nominated, one of the five was Mr. Breene; 
 ‘¢ whom informant knex; to be Dr. Breene.” 
 ~ A. Before I left the chapel, I heard it was Dr. 
 Breene. peta ee . 
 
 Q. How could you swear you knew him, when yor 
 did not see him ? 
 
 A. I believed he was the person; { saw him yester~., 
 day, and this day, and believe he is the same person 
 who was named on that day. 
 
 Q. But you said you knew him? 
 
 ’ A. I heard his name mentioned, and believed he was 
 the person whom | afterwards saw. , 
 
 Lord Chief Justice. Do the counsel on either side 
 
 wish to ask bim any thing? ‘ | 
 - Couusel on botinsides’ declined. 
 *Mr. Driscott. My Lord, I beg to refer you to what 
 
 $ 
 
Pn a 
 
 he said yesterday, that 
 his notes. aes | na f 
 
 Mr. O’ConneLi. He said, he never copied h 
 notes, except in drawing his informations, Law 
 
 Mr. Justwe Day. Shepperd did not identify any of 
 the seven in his informations, and therefore it, 7 2 
 necessary to call him. 
 
 Lord Chef Justics. Mr. Burrowes, you ay 
 now go on. ~ b iy 
 
 MR. BURROWES. ‘ha 
 
 drew his informations fror 
 
 My Lords, and Genilemen of the Jury—tt is n_ COM- 
 mon place exaggeration to assert, that the qiisfou 
 upon which you are to decide is serious, and interest» 
 ing in the extreme, and claims ‘your utmost. attention. 
 
 His Majesty’s ATTORNEY GENERAL more than insi-. 
 
 nuates that the peace of the country and the stability 
 of its government depends upon your verdict. In 
 this 1 agree with the ArrorNEY GENERAL, and I add 
 to the catalogue of things at. hazard (what. does not 
 much appear to excite his sensibility). the invaluable 
 right of petitioning. But I totally differ from his Ma- 
 jesty’s ATTORNEY GENERAL, ac to the mode in which 
 your verdict may affect these greet concerns; for it is 
 the firm conviction of my mind, #hat if you shall, in 
 the person of Mr. Shertdan, attaint the Catholic Body 
 of Jreland of treasonable practices, all these great ob- 
 jects will be more than hazarded. I well know, with 
 what inferior weight of talents and influence, I make 
 this contrasted assertion; but I feel, I confidently feel, 
 that this infertority, great. and formidable as it is, is 
 
 more than counterbalanced by the weight of the cause _ 
 advocate. Before I enter upon that cause, I must, I. 
 
 will freely remark upon what occurred under. every 
 
 ‘eye, and therefore under your own, while you, were °~ 
 ~'¥mpannelling. 1 confess, Gentlemen, I was astonished: — 
 
 ‘to find, that no Roman Catholic was suffered to enter. 
 
 that box, when it is well known, that they equal, if 
 
 not exceed, Protestant persons upon other occasions, 
 ad when the question relates to privilegJ$ of which 
 ‘they claim a participation, and yoy possess & mono- 
 poly. I was astonished to see. tventy-two. Protestant, 
 
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 he said yesterday, that:he drew his informations from 
 his’ notes. OE EIRD tgs 98 Cea es Oe 
 Mr.,O’Connett, He’ said,: ‘he’ ‘never’ copied : his 
 notes,,except'in drawing his informations,» + 
 Mr. Justice Day. Sheppard did not identify any of . 
 the seven in his informations, and therefore it, ig: not 
 necessary to call him. +: ie ile ers 
 ~ Lord Chief Justice. . Mr. Burrowks, ‘you ..may 
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 MR. BURROWES. » 
 
 ~~ My Lords, and Gentlemen of the Jury—It is no com- 
 mon place. exaggeration to assert, that the question 
 upon which you are to decide is serious, and interest- 
 .. ing inthe extreme, and claims your utmost attention. 
 His Majesty’s ATTORNEY GENERAL more than insi- 
 nuates that the peace of the country.and “the stability 
 of its government depends upon your verdict. In 
 ' this L agree with the’ ArrornEY GENERAL, and I add 
 “to the catalogue of things at hazard (what does nat 
 Much appear to excite his sensibility) the invaluable 
 right of petitioning. But I totally differ from his Ma- 
 jesty’s ATTORNEY GENERAL,‘as to the mode in which 
 your verdict may affect these great concerns; for it is 
 the firm conviction of my mind, that if you shall, in 
 the person of ‘Mr. Sheridan, attaint the Catholic Body 
 of Jreland of treasonable practices, all these great ob- 
 jects will be more than hazarded. I well know, with 
 what inferior weight of talents and influence, I make 
 this contrasted.assertion ; but I feel, Bconfidently feel, 
 that this‘inferiority, great and formidable as it js, is 
 -more than counterbalanced by the weight of the cause 
 I advocate. Before I enter upon that’cause, I must, I 
 will freely remark upon what occurred under every 
 eye, and therefore under your own, while you were 
 tmpannelling. 1 confess, Gentlemen, I was astonished 
 to find, that no Roman Catholic was suffered to enter 
 that box, when it is well known, that they equal, jf 
 pot exceed, Protestant persons upgn other occasions, 
 and when the question relates to privileges of which | 
 they claim a participation, and you possess a mono-r 
 poly, J was astonished to see twenty-two Protestant _ 
 
MOTE Mere Sk tee 
 
 persons .of the highest “vespectabilityset. aside by the 
 arbitrary veto of. the ‘Crown, without any alleged, .in- .- 
 
 SuTigiancy pen the, sale «demerit, of suspected: libes_ 
 rality. I was astonished to find a. juror pressedinto’ ° 
 sthep boxe whoa did.inoty;deny, thati-heiwas?a. ‘sworn’ 
 Orangeman,siandsanothersd whovawas:aboutnto .admity 
 
 imntil, bes,,was silenced, .thapihe :had prejudged* the | 
 
 iMause.s, Theseaccurrences, at: the first aspect of: them, 
 filled me with unqualified despaire;::I'do notisay} that 
 the Crown Lawyers: have. had any. concern in this res 
 
 -volting process—but I will say, that they ought: to - 
 have interfered in counteracting a selection, which has 
 insulted some of the most loyal men in this City, and 
 must disparage any verdict, which ‘may be thus proe 
 cured. But, Gentlemen, upon a' nearer view’ of the 
 
 subject, J. relinguish the despair by which I was. ac~ 
 tuatel—T[ rest..my hopes upon your. known: integrity: 
 your deep:interest in.the welfare of the country; and 
 the very disgust which yourselves must feel at.the mane . 
 ner, and motive.of your array.-You didnot press 
 forward into that Jury Box--you did not. seek the. exe 
 glusionsrthe total exclusion of any Roman Catholic-= 
 you, no, doubt,.: would ;anxiously: desire’ an ‘intermix 
 ture of some of those enlightened Roman: Catholics, 
 whom the Arronngy GENERAL. declared,: he: was «cers 
 tain.he could.conyinge, but whom -he has not:ventured 
 to-addres.jn.that Box... .The painful:responsibility, cast 
 bpon. you, 4s not.of .your own wishing, .and:P persuade | 
 
 | tale you will.upon.due reflection: feel: moreindiss 
 ~posed.to those,,.who court and-inflame your prejudices, | 
 
 bgp vould. involve syou..in -an, act:of: deep.responsi+ 
 
 ~ Pility,.. without that fair -intermixture: of opposite feels 
 
 * jngs and.,interest, which. by, inviting. discussion, and . 
 balancing. affections,.would promise-a:moderate and 
 respected decision, than. towards me,.who ‘openly ate 
 tack your,prejudices, and: strive..to «arm your” consci- 
 
 _ ence against.them. :, You know, as welljas. I do; that ~ 
 prejudice.is a deadly enemy to fair investigation=sthatit’; 
 has neither.eyes or ears for justice--thatuit- hears and 
 sees-every thing on one side, that.to tefute it,-is.to ex- 
 ‘asperate it.;.and that, when it: predominates, accusation 
 
 “is receiyed as evidence, and, calumayi-produces con. 
 
 e* . J : a : <— 
 viction.... ee & 1. FTG 4c.ay. JUBA: ayo AS Fore 
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 201 
 
 persons of the highgst respectability set aside by the 
 
 arbitrary veto of the Crown, without any alleged in- 
 
 sufficiency, upon the sole demerit of suspected libe- 
 rality. I was astonished to find. a juror pressed into 
 the box, who did not. deny, that he was a sworn 
 Orangeinan, and another, who was about to admit, 
 until he was silenced, that he had prejudged the 
 cause. Those occrrrences, at the first aspect of them, 
 filled me with unqualified despair. I do not say, that 
 the Crown Lawyers shave had any concern in this re 
 volting process—vut I will say, that they ought to 
 have interfered to: counteracting a:selection, which has 
 insulted some of the most loyal men jn this City, and 
 must disparage any verdict, which may be thus pros 
 cured. But, Gentlemen, upon a nearer view of the 
 
 ‘subject, [ relinquish the despair by which [ was ac- 
 
 tuated—I[ rest my hopes upon your known integrity ; 
 
 your deep interest in the, welfare of the country, and 
 
 ~ipgs and interest, which by inviting discussion, and» 
 balancing ‘affections, would promise a inoderate and 
 
 you, no doubt, would anxio 
 
 whom the ArrorNry GENERAL 
 tain he couid convince, but who 
 ‘to addres in that Box. ‘The pain 
 
 the very.disgust which yourselves mus: feel at the mans 
 ner, and motive of your array.—Yo1 did not press 
 forward into that Jury Box—you did rot seek the exs 
 clusion—the total exclusion of any Keman Catholic— 
 
 ugly desire an intermixs 
 ture of some of those. caligh bed Roman Catholics, 
 declaned, hy ‘was cers 
 th he has nt ventured 
 ; tbilit\ cast 
 upon you, is not of your own wis gee { persuade 
 myself, you will upon due reflectiog more indise 
 posed to those, who court and inflame your wrejudices, 
 
 and would involve you in an act of deep responsi- 
 “bility, without that fair intermixture of opposite acu. 
 
 respected decision, than towards me, who openly ate 
 tack your prejudices, and strive to arm your consct- 
 
 ence against them. You know, as well as Ido, that 
 prejudice is a deadly enemy to fair investigatlon—that it 
 
 has neither eves or ears for justice—that it hears and 
 
 “gees every thing on one side, that to refute it, Is to ex--~ 
 
 4 
 
 4 
 
 asperate "nd that when it predominates, accusation 
 
 4s received 8 eyjdence, and calumay produces con- 
 1S eiv ? ’ ; 
 
 Heh 
 
 -yiction. 
 
 Be at ‘ee 
 
 & 
 
 ror 
 
202 
 
 One claim [ urge to your justice, which you ‘can- 
 not, you will not refuse,—Listen to the evidence and _ 
 the arguments with’ patient attention, and read the in- 
 dictment and the act of Parliament, upon which it is 
 founded, with the minutest care—they willnot, I pre- 
 sume, be withheld from you. Upon the law of the 
 case, and the true construction of that act, I shall now 
 proceed to comment .— 
 
 The act, my Lords, is very short, and nothing is 
 
 : | a 
 more easy, than to extract a just and perfect defini- 
 
 tion of ‘the crime it declares, and enacts to be a high 
 
 misdemeanor; that definition is ‘* representing the 
 ‘< people, or an! portion of the people, under pretence 
 <¢ of petitioning for, or otherwise procuring an altera« 
 «tion of matters established by law in Church or 
 ‘¢ State.” .All persons, who are in any way, or under 
 any name deputed to, or who assume such a charac- 
 fer, are guilty under this act; and persons in any way 
 electing, or appointing such assembles, namely, as- 
 
 sembhies assumirg, or exercising a right to represent 
 
 the people, arz also euilty. The great question, 
 
 therefore, wil arise upon the true meaning of the term 
 represent in this cre vee I conceive, that to repre- 
 sentany man, or boteM®f aien, both in common and 
 legal paance, meang to fill his or their place, and to 
 possess higor their pwer, to the exclusion of the body 
 reprgfS te he representation. . The represen- 
 tative.acts n name, and is invested. with all 
 the power © body represented ; he ‘differs from 
 an Attorr’Y, Or a man deputed todo a particular act, 
 in adefeed way—the latter isa mere instrument acting 
 under orders, and in the name of his principal. Such 
 
 is the meaning, unquestionably, of representatives of 
 
 the people in. Parliament, and. from this meaning 
 spring their principal attributes and ‘qualities ; they 
 possess the public rights of the people, and exercise 
 them in their own name, without any obligation to 
 obey, or even to consult their constituents. In the 
 same seuse Is representative used, as contradistinguished 
 from attorney in all legal relations—the persgnal repre-_ 
 sentative, the real representative are wars having 
 and exercising rights of their. own, in. ¢'@!" wn name. 
 If this meaning be adopted, it is note “!ficult to un- 
 derstand why, to represent the peopléoF any portion 
 
 - 
 \ 
 
OM 
 
 202 
 
 - £. One claim Lurge to your justice, which you can- 
 
 not, you, will not :refuse.—Listen to the evidence and 
 the arguments with patient attention, and: read: the.in- 
 
  dictment dal the act of Parliament, upon: which. it is 
 
 ‘om, Procded to.comment.— eMedia 
 «2: ~ > [hej act, my. Lords, is very short, and nothing is 
 
 founded, with the minutest care—they will not, 1 pre- 
 sume, be withheld. from: you. Upon the law. of, the 
 case, :and the true. construgtion of that act,-I shall now 
 
 r 
 
 more.easy, than to extract ajust and perfect defini- 
 tion-of the crime it.declares, and enacts to. be a high 
 misdemeanor; that. definition is ‘* representing. the 
 
 F people, or any. portion of. the people, under pretence 
 ~ $$.0f petitioning for, or otherwise procuring an altera- 
 
 <¢ tion of matters established: by law in Church or 
 <¢ State.’ All persons, who are in any. way, or under 
 any. name deputed to, or who assume such a charac- 
 ter, are guilty’ under this act ; and persons in any way 
 electing, or appointing such assemblies, namely, as« 
 semblies assuming, or exercising a right to represent 
 
 the people,. are also. guilty. The great question, 
 
 therefore; will:arise upon the true meaning of-the term 
 
 represent.in this statute—now I conceive, that to repre- 
 
 sent.any man, or body of men, both in common and 
 
 Jegal parlance, means to fill bis or. their place, and to 
 
 . possess his or their power, to the exclusion of the body 
 
 represented, during the representation.. The represen- 
 tative acts in bis own name, and is invested with all 
 the powers of the body. represented ; he differs from 
 an Attorney, or a.man deputed to do a particular act, 
 ipa defined. way—the latter isa mere instrument acting 
 under orders, and in.the name of his: principal. Such 
 is the meaning, unquestionably, of representatives of 
 the people in, Parliament, and. from this meaning 
 spripg their principal attributes and’ qualities ; they 
 possess the public rights of the people, and exercise 
 
 _them in their, own. name, without any obligation to 
 
 obey, or eyen to consult their constituents. . In the 
 
 ' same sense. is representative used, as contradistinguished 
 from attorney. in all legal relations—the. personal repre- 
 
 sentative, the real representative are persons having 
 and_ exercising rights of their own, in their.own name. 
 If this meaning be adopted, it is not difficult to un- 
 derstand why, to represent the people, or any portion 
 
 ay" 
 
 wre 
 
 aie 
 
208 
 
 of them, should be a crime at common law; and: de- 
 clared to be such. It is evident, .that to giye, or to ee 
 
 ' uses the word represent, in defining the crime, as I 
 
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 boundary or criterion, and if- be succeeds in his con- 
 struction of the law, no man can sey, where the spo- 
 
 Pre. 
 
elie ONY S okeaed, te puna ae 
 tee ‘ ‘3 3 “we xh your windba 
 ej Tha Meee nee 2 1h (ae OE ti dae? oN, 
 - He) fe He % sapnitnepins ets te ¥ 
 Oc, ae 5 ~ ap he be * dae —s “ime 
 
 ® 
 ca 
 
 wit ‘ — Se Mi FTOr= 
 + JOLY fees Eve 
 ey te he ed > WP ER , 
 RR Kek eM ee, Me oe ; 
 130 cae ba Sremeeanpeho tel tain , 
 =" aes 3 Ape? a) owe oe Te 
 sgt : re by ty ‘1 wahlog Lee 
 A ‘ hr tds it if” nh , eS : 
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 Sb Sepa et: aR vey Veer: Ms fe 
 ay Rak 5 tai rr E« a 
 
 * 
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 ? 
 
 Mike Cu atin fue ~ ny rectacttn Hud is 
 
 ; : bak ay 0S. |e ee Be 
 we? ? Meas a ty ids rp whys oa 
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 Vite. oe a pa ne bP, a 5 
 
 e 
 
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— 
 
 203 
 
 of them, should be a crime at common, law, and de- 
 clared to be such. It is evident, that to give, or to 
 assume such a right, would be to encroach upon the ex- 
 clusive privileges of the House of Commons; and no 
 man can doubt, but that to assume the character, or 
 exercise the functions of any department in the state, 
 legislative, executive, or judicial is, and always was 
 an high misdemeanor—but it never yet was conceived, 
 that to depute a man, or a number of men, to per- 
 form a defined, preconceived, legal service, for, and 
 in the name of the persons deputing, was an encroach- 
 ment upon the rights of Parument, and more parti- 
 cularly, when that very service was to propose a peti- 
 tion to that very Parliament. That the Legislature 
 uses the word represent, in defining the crime, as I 
 explain it, appears conclusively from this, that know- 
 ing, that the House of Commons must fall under the 
 definition, they expressly except it—‘‘ Save and ex- 
 ‘ cept the Knights, Citizens and Burgesses elected to 
 ‘¢ serve in the Parliament thereof ;” so that from the 
 legal and constitutional meaning of the word, repre- 
 sent; from the excepting the House of Commons from 
 the enactment, and from the Legislative avowal, that 
 the evil to be guarded against, was a pre-existing 
 crime; it most clearly follows, tbat the appointment 
 of deputies, bona fide, to prepare a petition to Parlia- 
 ment, and for no other purpose, cannot be within the 
 act. Lentreat those, who assert the contrary, to In- 
 form the public, whether every act of deputation for 
 the purpose of communicating with the Parliament, falls 
 within the act, or where they draw the line? The 
 Arrorney GENERAL has not drawn any line—will he 
 say, that to depute a few to prepare a petition=—or . 
 materials for a petition, is criminal ;—will such deputa- 
 tion become criminal, if they consume one, two, three, 
 or how many. dayis in executing their commission ? 
 Will it be crithinal in- tie mercantile bodies of Dublin, 
 Cork, Waterford and Belfast, should each appoint 
 persons to confer upon the general business of trade, 
 and to prepare a petition to Parliament upon the sub- 
 ject? The Avrorney Genera has not furnished any 
 boundary or criterion, and af he succeeds in his con- 
 struction of the law, no man can say, where the spo- 
 
 * 
 
re eee See 
 
 liation of a great popular right, I am not ashamed to 
 use the word, much as it has been abused, will stop. 
 But we are told, that the Magistrates are directed and 
 empowered by the law, to disperse the assembly, de- 
 clared and enacted to be illegal; and we are triumph- 
 antly asked, how can they even act, if false pretence, 
 or encroachment upon parliamentary privileges be the 
 criterion of guilt? How can they be supposed to know 
 the false pretence, or criminal pursuit? I dechne not 
 this test of the meaning of the statute, and ] answer, 
 that it is no great evil, in the mind, at least of any man 
 who is not a law officd?, that great difficulty should 
 obstruct the right of dispersing men, who are acting 
 peaceably, and who furnish po pretext for such disper- 
 sion, but suspeeted guilt, and imaginary evil result. 
 If they commit any seditious act, or menace the pub- 
 lic peace by riotous or disorderly conduct, the’ Magis- 
 trates may disperse them.—If they are associated, as 
 usurpers, in the slightest degree, of parliamentary right, 
 he may also disperse them. In the latter case, he must, 
 and he ought to, act at his peril ; and 1 hope I never 
 _ shall live to see the day, when the tranquillity of the 
 country shall be secured by more extended powerss— 
 But has the ArToRNeyY GENERAL illuminated the in- 
 tellect of the magistracy upon this subject? Has he 
 defined for their practical guide, what species of dele- 
 gates they may disperse, and when they should ab- 
 
 stain? Are they warranted to attack the 2uakers* 
 meeting? Are they warranted to disperse the Presby- : 
 terian synod in Ulster? Are they warranted to vio-— 
 
 late the sanctuary of every deputed chamber of com- 
 ynerce in Ireland? Can there be no conference upon 
 “subjects of common interest, betweenypersons widely 
 . separated, through the medium of agents or commit- 
 tee men (I dread not the phrase) without a previous 
 licence from Government? 1 know*not how this may 
 pass in Jreland—but how will this exposition of the 
 common law be relished in Hngland—for it is clearly, 
 and is avowed to be a common law question, applica- 
 ‘ble there as well as here—the Avrornney GENERAL 
 
 has not explained this, which I wish he may do—I . 
 
 shall not consider it an interruption. What explana; 
 tion the SoLiciroR GENERAL may give, when he 
 
 ees 
 
be 
 
 > WGivarvje ye 
 
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 RRMA (OR Miayiikl. Aasre SHRP TOT Ho 
 
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 pine give We Hs Pee KR us 
 
 sp whal 24 t chi tke stg PL Hie ap ines ty q. 
 
 ~ ~~ “ , ’ ee « i. 
 ype? VARS a) ibaa . 2a acl a | Fae hee 
 
 & 
 
204 
 
 liation of a great popular right, I am not ashamed to 
 use the word, much as it has been abused, will stop. 
 But we are told, that the Magistrates are directed and 
 empowered by the law, to disperse the assembly, de- 
 clared and enacted to be illegal; and we are triumph- 
 antly asked, how can they even act, if fulse pretence, 
 or encroachment upon parliamentary privileges be the 
 criterion of guilt? How can they be supposed:to know 
 the false pretence, or criminal pursuit? I: decline not 
 
 “this test of the meaning of the statute, and I: answer, 
 
 that it 1s no great evil, in the mind, at least of-any man 
 who is not a law officer, that great difficulty: should 
 obstruct the right of dispersing mien, who are acting 
 peaceably, and who furnish no pretext for such disper- 
 sion, but suspested guilt, and imaginary evil result. 
 if they commit any seditious act, or menace the. pub- 
 Jic peace by riotous or disorderly conduct, the Magis- 
 trates may disperse them.—If they are associated, as 
 usurpers, in the slightest degree, of parliamentary right, 
 he may also disperse them. .In the latter ease, he must, 
 and he ought to, act at his peril ; and-I hope I never 
 shall live to see the day, when the tranquillity of the 
 country shall be secured by more extended powers.— 
 But has the ATTORNEY GENERAL illuminated the in- 
 tellect of the magistracy upon this subject? -Has he 
 defined for their practical guide, what spectes of dele- 
 gates they may disperse, and when they should ab- 
 stain? Are they warranted to attack the Quakers’ 
 meeting? Are they warranted to disperse the Presby- 
 tertan synod in Ulster? Are they warranted to vio- 
 late the sanctuary of every deputed chamber of com- 
 merce in Ireland? Can there be no conference upon 
 subjects of common interest, between persons widely 
 separated, through the medium of agents or commit- 
 tee men (I dread not the phrase) without a previous 
 licence from Government? I know not how this may 
 pass in Jreland—but how will this exposition of the 
 common law be relished in Lngland—for it is clearly, 
 
 ‘and is avowed to be a common law question, applica- 
 
 ble there as well as here—the ArroRNEY GENERA}, 
 has not explained this, which I wish he may do—I 
 shall not consider it an interruption, What explana- 
 fidn the SoLiciToR GENERAL may give, when he 
 
 \ 
 Paty 
 1? ~ 
 
'. 205 
 
 ! 
 
 ‘shall have the last word, fearless of reply, ‘I cannot 
 
 anticipate—but certain Iam, he cannot, in his way o 
 
 construing the act, ascertain the right and duty-of- 
 ‘Magistrates, without placing the most ‘precious of our: 
 
 reserved civil rights under their: feet. : 
 Gentlemen of the Jury, we are surfeited with vision- 
 ary notions, and republican: declamation. We have 
 
 Jost our relish for the old, 1: hope not obsolete: princi-_ 
 ples of liberty, so cherished by our ancestors. From: 
 
 the abuse of things of the highest worth, we begin to 
 forget their value... This, Gentlemen, is a most dan- 
 gerous state, and a most. permanent evil. Every im- 
 portant invasion of right. has been founded. upon an 
 abuse of that right, and has succeeded through the apa- 
 thy, created by such abuse. Let us not fall into this vul- 
 gar--error—let us give: to the government. and ‘the 
 people their legitimate rights, and not suffer either to 
 transgress.. Kew are the rights reserved to the people, 
 
 or which can be reserved under a stable constitution. 
 
 The legislature must be sovereign. T’o ascribe to it 
 actual omnipotence is nonsense ‘and impiety, ‘but. 
 to ascribe to it relative omnipotence is rational. No 
 
 power can question, or resist its acts, while it exists, ° 
 
 but consistent with this acknowledged supremacy 
 are the reserved. popular. right.of a free press, and an 
 unshackled right of petitioning. They are the great 
 pedestals of our free and balanced -constitution.—~ 
 Impair either, and it totters, Withdraw either, 
 and it falls and crushes the people and their liber- 
 ties. Do I say, that these privileges are incapa- 
 ble of abuse, and should not be contracted in their 
 
 exercise by law? No—but I say, that each should, 
 
 be exercised, without previous restraint.- Let every 
 man publish at his peril—let no. man ‘dare exercise 
 any previous control over him—but if he. publishes 
 a public or private libel, let the law punish -him.— 
 Iu the same] way, suffer nothing to impede the-for- 
 mation, or presenting a petition; but if under the pre- 
 text of petitioning, men should assemble. and violate 
 the law, vindicate the violated law—but do pot do as 
 his Majesty’s government boasts to have done—suffer. 
 the offenders to escape, but attack the privilege which 
 
 t 
 
 has been abused, Much has been said about the athot . 
 
 t 
 
 oe 
 
opaest tyme ate webs 
 
 oe v4 
 eer a ao vd, See ag lesen, Jeti 
 Thavb whee ated | ede ga 
 ee ee Te ca 
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 hid i where ei fae 
 gh ah (pba dewey 
 ‘2 Heer gost egy ara 
 j ae eae Sh sane ot its 
 got opty! ae peut bD} i aah, GE 
 7 ayo ; 3. {tines Tung Ge 
 wet = Yai oop 
 aj bes 4 ae :5 pe | RA Siret| 2 
 : igh Pye Fak? oe 
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 ipo i sey — te 
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 : wt TS a bere eo 
 ne) th ER 
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 Le ee See nen ay 
 dee 2 RE ee eee 
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 Nes i ower tee ye Be 
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 sl u Da SReOR core. 
 Pree I hy A) ; wile, a ef 
 Tee sii <i ;> é 
 
 &. 
 
« 
 
 205 
 
 shall have the last word, fearless of reply, I cantot 
 anticipate—but certain ] am, be cannot, in his way of 
 construing the act, ascertain the right and duty of 
 Magistrates, without placing the most precious of our 
 reserved civil rights under their feet. 
 Gentlemen of the Jury, we are surfeited with vision- 
 ary notions, and republican declamation. _We have 
 lost our relish for the old, I hope not obsolete princi- 
 ples of liberty, so cherished by our ancestors. Brom 
 the. abuse of things of the highest worth, we begin'to 
 forget their value. This, Gentlemen, 1s a most dan- 
 gerous state, and a most pe@fianent evil. Every im- 
 portant imvasion of right has been founded upon an_ 
 abuse of that right, and has succeeded through the apa- 
 thy, created by such abuse. Let us not fall into this vul- 
 ear error—let us give to the government and the 
 people their legitimate rights, and not suffer either to 
 transgress. Few are the rights reserved to the people, 
 or which can be reserved under a stable constitution. 
 The legislature must be sovereign. ‘To ascribe to it 
 actual omnipotence is nonsense and impiety, bat 
 to ascribe to it relative omnipotence is rational. No 
 power can question, or resist its acts, while it exists, 
 but consistent with this acknowledged supremacy 
 are the reserved popular right of a free press, and an 
 
 _unshackled right of petitioning. They are the great 
 
 pedestals of our free and balanced constitution.— 
 knpair either, and it totters. Withdraw either, 
 and it falls and crushes the people and their Jiber- 
 ties. Do I say, that these privileges are incapa- 
 ble of abuse, and should not be contracted in their. 
 exercise by law? No—but I say, that each should: 
 be exercised, without previous restraint. Let every 
 man publish at his peril—let no man dare exercise 
 any previous control over him—but if he publishes 
 a public or pyivate libel, let the law punish him.— 
 In the samej way, suffer nothing to impede the for- 
 mation, or presenting a petition; but if under the pre- 
 text of petitioning, men should assemble and violate 
 the law, vindicate the violated law—but do not do as 
 his Majesty’s government boasts to have done—suffer 
 the offenders to escape, but attack the privilege which 
 has been abused, Much has been said about the act of 
 
206- 
 
 Charles Ui. in England against tumultuous petitioning, 
 
 This act grew oat of the licentiousness in the reign of 
 Charles 1. aod in my opinion, was intended to be re- 
 pealed by the Bill of Rights. But does it not implicitly 
 recognize and recommend petitioning through dele- 
 gates? Is not delegation the best remedy of tumul- 
 tuous petitioning? ‘And will it be said, that the people 
 shall neither petition in numbers, or through delegates, 
 who may collect and communicate their wishes? This 
 cannot be said by any honest statesman. It is always 
 useful to know even the transient sentiment of the peo- 
 ple, though it may not al —ys be wise to adopt it. But - 
 there are, and ever will be statesmen, who wish to have 
 it stopped ; who always claim popular approbation, but 
 never will, if they can avoid it, suffer their pretensions 
 to be brought to any test. There never was a state 
 empiric, who forced a bitter potion down the throats 
 of the people, who did not. say he did so, to gratify 
 their craving appetite. To guard against such mockery 
 and insult; is amongst the uses of the right of petition- 
 ing. In short, facut per aliwm, facit per se—and con- 
 ‘versly, every man being answerable for the acts of 
 others, authorized by him, may depute others to do 
 Jegal acts; so may many men appoint one or more 
 deputies for defined legal purposes; so may many, 
 having a common object, appoint deputies to confer 
 with other deputies upon the same object—without this, 
 many salutary pursuits might be absolutely frustrated. 
 The cancerns of agricniture—the concerns of trade— 
 the concerns of charity—the concerns of religion might 
 be sacrificed.—Neither can the exercise of this right 
 depend upon the number or variety of the persons de- 
 puting, or the persons deputed. Such circumstances 
 might, possibly, in some imaginable cases, be an in- 
 gredient to. be left. to a jury, with other evidence to 
 satisfy them, that the purpose avowed was a pretence, 
 and that the real object was to represent the people, 
 or any portion of them, not to petition parliament, or 
 to execute any defined preconceived object. But if 
 _men should be elected, or should assume to represent 
 the people, or any portion of them, for general pur- 
 poses, and if petitioning should be found by a jury 
 to be a mere pretext, or if such usurpation of the 
 exclusive right of the House of Commons, should, 
 
 “ 
 
‘y* OH 
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 Petree aecusameewrtel iy) hun oe: 
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 girs csi 2: ‘nave ifet eer)! hi 
 
 DL ess! ett ol turt) it Gxt ” F my 
 
 Proms (oO begets hpie?o. a rae 
 Se) chats tory Poet aece | 
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 pe as PERL A iy geen sobre: J 
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206 
 
 Chardes Il. in England against tumultuous petitioning. — 
 Phis act grew out of the hcentiousness in the reign of 
 Charles 1. aud_in my opinion, was intended to be re- 
 pealed by the Bill of Rights, Buz does it not implicitly 
 recognize and recominend: petitioning through: dele- 
 gates? Is not delegation the best remedy of tumul- 
 tuous petitioning? And will it be said, that the people 
 shall neither petition in nambers, or through delegates, 
 who may coliect and communicate their wishes? This. 
 cannot be said by any bonest statesman. It is always 
 useful to know even the transient sentiment of the peo- 
 ple, though it may not always be wise to. adopt it. But 
 there are, and ever will be statesmen, who wish to have: 
 it stopped ; who always claim popular approbation, but 
 never will, if they can avoid it, suffer their pretensions 
 to be. brought to any test. ‘There never was a state 
 empiric, who forced a bitter potion down the throats 
 of the people, who did not.say he did so, to gratify 
 their craving appetite. To guard against such mockery 
 and insult, is amongst the uses of the right of petition- 
 ing. [ti short, facet per alum, facit per se—and con- 
 vetsly, every man being answerable for the acts of. 
 ' others, authorized by him, may. depute others to do 
 legal acts; so may many men appoint one or more 
 deputies for defined legal purposes; so may many, 
 having. a common object, appoint deputies to confer 
 with other deputies upon the same object—withont this, 
 many salutary pursuits might be absolutely frustrated. 
 The concerns of agriculture—the concerns of trade— 
 the concerns of charity—-the concerns of religion might 
 be sacrificed.—Neither can the exercise of this right 
 depend upon the number or variety of the persons de- 
 _ puting, or the persons deputed. Such circumstances 
 might, possibly, in some imaginable cases, be an ju- 
 gredient to be left to a jury, with other evidence to 
 satisfy them, that the purpose avowed was a pretence, 
 and that the real object was to represent the people, | 
 or any portion of them, not to petition parliament, or 
 to execute any defined preconceived object. But if 
 men should be ejected, or should assume té represent 
 the peaple, or any portion of them, for general pur- 
 poses, aud if pstitioning should be found by a jury 
 to be.a mere pretext, or if such usurpation of the 
 exclusive right of the House of Commons, should, 
 
( 
 
 ‘do not hesitate ; this will be équal justice. 
 
 207 c 
 
 q 
 
 under any pretext take place, then the assembly so 
 elected, or usurping, would be an illegal assembly from 
 their very constitution, independent of any act, and 
 guilty of an high misdemeanor of a treasoable nature, 
 
 and liable to a heavy punishment. This is enough for' 
 
 security, and not too much for freedom, 
 
 I come now to another principal ingredient in the 
 crime, .as defined in the act and the indictment, but 
 which the. Arrorne¥ GENERAL treats as mere form— 
 { mean the allegation, that the ‘assembly, such as it 
 Was, was to be constituted under the pretence of peti 
 tioning patliameot. He contends, that: pretence here 
 means purpose; and that the crime was complete, even 
 though petitioning was the dona fide purpose, and’ the 
 sale purpose. I cannot think, that any-of; you; gentle. 
 
 men, unless influenced by his‘ authority, can-submit to - 
 
 his reasoning. If he be so confident in this opinion, 
 why did he not.use the wards for the purpose, instead 
 of under the pretence, in the indictment ? Whv, my 
 Lords, did he not give us an, opportunity af demurrin 
 
 to such an indictment, or seeking to arrrest the judge 
 ment, with aright of going to the dernier resort, . if 
 your Lordships should decide against us ¢ If the argu- 
 ment be valid, such an indictment. must be valid, for 
 although it is good pleading, to plead in the language 
 of an act of parliament, it-is equally good pleading to 
 use equivalent language. Surely it cannot be intended 
 to persuade you, Gentlemen of: the jury, to’find’ the 
 allegations of the- indictment in one sense, and to pro- 
 nounce fhe judgment ofthe law upon them, as if found 
 in another sense, and. in: this great question, to Jeave 
 the trayerser without any,appeal, theugh the: commen 
 sense of all mankind. should cry aloud: in his. favour, 
 I say, Gentlemen, if you do find him geverally. guiley, 
 your verdict will, be conclusive, that he, apd. all-with 
 whom he was. connected, acted’ under the pretence, 
 obviously meaning pretext or false pretence of petition. 
 
 ing- parliament. If you believe it to be. so, do nat 
 
 hesitate. Butif you cannot infer it from the evidence, 
 
 / 
 
 How, has the ATTORNEY GENERAL proved his ex- 
 position of the word pretence? He contends, that 
 pretence means claim, true, or false. I admit, that 
 petence is sometimes used in this rare acceptation, 
 
 we 
 
 yo 
 
Cardia earned eon ialn 
 aca oh hes gis * lgow ib Og, "ra 7 +i 
 ET 
 et =" ern 3 bi “ oa ‘ 
 paix 4; oe ugh Jape wigs: By 
 ee A oes or elt ae eae 
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 a gr 5. ete? weet Vex. te j 7 aS 
 
 tee a Ore iebey at ety RR ot it” : at 
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 at : .* ee ; 
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 ti Shc YRC ELAS, OE eR ee a 
 sy Toe geed verthuty 
 mrss wt? a yore b yereet 
 
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 7 
 
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207 
 
 under any pretext take place, then the assembly so 
 elected, or usurping, would be an illegal assembly from 
 their very constitution, independent of any act, and 
 guilty of an high misdemeanor of a treasoable nature, 
 and liable toa heavy punishment. This is enough for 
 security, and not too much for freedom. 
 
 I come now to another principal ingredient in the- 
 crime, as defined in the act and the indictment, but 
 which the Arrorney GENERAL treats as mere form— 
 ~ I mean the allegation, that the assembly, such as it 
 
 was, was to be constituted under the pretence of peti- 
 tioning parliament. He contends, that pretence here 
 means purpose ; and that the crime was complete, yyven 
 though petitioning was the dona fide. purpose, and the 
 sole purpose. I[ cannot think, that any of you, gentle- 
 men, unless influenced by his authority, can submit to 
 his reasoning. If he beso confident in this. opinion, 
 why did he not use the words for the purpose, instead 
 _ of under the pretence, in the indictment? Why, my 
 
 Lords, did he not give us an, opportunity of demurring | 
 to such an indictment, or seeking Yo arrrest the judg- 
 ment, with aright of going to the dernier resort, if 
 your Lordships should decide against us? If the argu- 
 ment be valid, such an indictment must be valid, for 
 although it is good pleading, to plead in the language 
 of an act of parliament, it is equally good pleading to 
 use equivalent language. Surely it cannot be intended 
 to persuade you, Gentlemen of the jury, to find the 
 allegations of the: indictment in one sense, and to pro- 
 nounce the judgment of the law upon them, as if found 
 in another sense, and in this great question, to” leave 
 the traverser without any appeal, though the co-gmon 
 sense of all mankind should cry aloud in his favour, 
 I say, Gentlemen, if you do find him generally guilty, 
 your verdict will be conclusive, that he, an® aik with 
 whom he was connected, acted under the pretence, 
 obviously meaning pretext or false #yetence of petition- 
 ing parliament. If you believe ®:. be so, do not 
 hesitate. But if you cannot infer iz from the ewidence, 
 do not hesitate ; this will “be equal justice, — 
 
 How has the ArrorNey GENERAL proved his ex- 
 position of the word pretence? He contends, that 
 pretence means claini, true, or false. I admit, that 
 petence is- sometimes used in this rare acceptation, 
 
208 
 and that Milton makes some of his Devils (I. do not 
 recollect whether it be the chief Devil) use the phrase 
 
 adust pretences,” but I assert, that in this statute, it 
 does not meanclaam. Claim imports some right as- 
 
 serted on one side, and disputed on the other.—_ 
 
 Pretence, in. this statute, obviously means, the mo- 
 tive alleged to influence the. act; the objeet,. the 
 person, pretending, says he is pursing, and when so 
 used, it invar iably imports either a “ suppress1o wert, 
 
 or a suggestio falsi.;” either it holds out a’ motive, or 
 
 object of pursuit not at all in contewplatioa, or it. 
 
 cojyeals sume other motive or object, which solely, 
 or at Jeasv principally, actuates the party. 
 
 This is still more undeni ‘ably so, when the language 
 used is “ under pretence,” and I think I might safely 
 give up the question, if the ATTORNEY GENERAL 
 shall produce asingle passage in any English author, 
 where such words are used without importing either 
 falsehood or disguise. I cannot, Gentlemen, avoid 
 making this general remark, the legislature is about 
 to define an high misdemiesnar, it uses a word, hay- 
 ing, at least nineteen times out. of twenty, a Cri- 
 minal meaning, but having rarely a neutral, or inno- 
 cent meaning. It is to be presumed, that when SO 
 used, in defining a.crime, it is to be taken in its” 
 rare and innocent sense, and and not in. its. usual 
 and criminal sense. I.much fear, Gentlemen, if you 
 were to find the Traverser guilty, the word pretence 
 coulé not be. construed upon the record in any other 
 than, a criminal import, when punishment should he 
 applied to the crime, But, my Lords, the ATTORNEY 
 GENERAL has cited those statutes upon which he re- 
 lies + he refers you to the 33d Hen, 8, in England; 
 the same as 10.Char. Ist. in Ireland. This is an act to 
 prevent the sine “ pretensed rights. or titles,” by 
 persons not having possession ; and’ he cites, Lord 
 . Coke, to shew, ee in expounding that statute, it 
 was considered as material, , whether the right sold 
 was a good or bad title. Lond Cole: eoule ant have 
 etherwise decided, without manifest absurdity; but, 
 
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 lies; he refers you to the 32d Hen, 8, in England 
 
 208 
 
 “ just pretences,” but I assert, that in this statute, it 
 
 and that Milton makes some of his Devils (I do not 
 recollect whether it be the chief Devil) use the phrase 
 
 does not mean clazm, Claim imports some right as- 
 
 serted on one side, and disputed on the -other.— 
 Pretence, in this statute, obviously means, the mo- 
 
 tive alleged to influence the act; :the objeet, the 
 
 person pretending, says he is pursing, and when so 
 used, it invariably imports either a “ suppressio vert, 
 or a suggestio falsi ;” either it holds out a motive, or 
 object of pursuit. not at all in contemplation, or. it 
 conceals some other motive or object, which solely, 
 or at least principally, actuates the party. 
 
 This is still more undeniably so, when the language 
 used is “ under pretence,” and I think I'might safely 
 give up the question, if the ATTORNEY GENERAL 
 shall produce a single passage in any English.author, 
 where such words are used without importing either 
 
 falsehood or disguise. I cannot, Gentlemen, avoid 
 
 making this general remark, the legislature is about 
 to define an bigh misdemeanor, it uses a word, hay- 
 
 ing, at least nineteen times out of twenty, .a cri- - 
 
 minal meaning, but having rarely a neutral, or inno- 
 
 cent meaning. It is to be presumed, that when so 
 
 ‘used, in defining a crime, it is to be taken in its 
 
 rare and innocent sense, and and not in. its usual 
 and criminal sense. I much fear, Gentlemen, if you 
 were to find the Traverser guilty, the word pretence 
 
 could not be construed upon the record in any other 
 
 than a criminal import, when punishment should: be 
 applied to the crime. But, my Lords, the ATTORNEY 
 GENERAL has cited those statutes upon which he re- 
 ? 
 the same as 10 Char. 1st. in Zreland. This is an act to 
 prevent the sale of “ pretensed rights or titles,” by, 
 persons not having possession; and he cites Lord 
 
 Coke, to shew, that in expounding that. statute, it. 
 
 a 
 
 was considered as material, whether. the right sold. 
 
 was a good or bad title. Lord Coke could not have 
 etherwise decided, without manifest absurdity ; but, 
 
 PRM BE ba, 
 
209 » J 
 
 ean the ATTORNEY GENERAL seriously contend, that 
 “ preténsed title” in that statute, and pretence in the 
 present, have in their meaning any affinity. to each 
 other? - Does he really think, that the word pretence, 
 in the ‘act under discussion, means’ claim, and that 
 the le gislature. re eferred ‘to persons, who should as- 
 seinble to assert ‘their right-of title to petition >— 
 Was such a right ‘ever disputed ?—could it be pre-_ 
 ‘sumed it would ever be disputed? No; the legisla- 
 ture obviously meant to refer to persons, who, holding 
 out the false and affected purpose of exercising an 
 unquestionable and unquestioned righty sliould really, 
 and in fact assemble tor other dangerous and dis= 
 guised purposes, Such is the meaning, which every 
 plain understanding must extract from ‘this statute ;. 
 and it would be a sad necessity, if a legal or judi- 
 cial mind sliould be compelled to:construe it in a 
 sense, far from its so obvious and ‘manifest import, 
 Neither do I feel any force from the epithet false, 
 applied to predence, in the statute punishing the ob- 
 _taing of goods or money upon false pretences. No- 
 thing is more common, than to add by epithet, what 
 is comprehended in the principal and substantive 
 word, Wilful and malicious murder, wilful and cor- 
 rupt perjury, are combinations in daily use, and ocx 
 cur in every indictment upon the subject; yet no, 
 man could, doubt, but that murder, and perjury, “* 
 would imply. these epithets, when ‘used ‘without them,, 
 either in statutes, or in any other. writing, fe CLDYES~ | 
 “ sto corum que taciti insunt nil operaiur.” The } 
 statute of Ch. II. against tumultuous petitioning, ap- 
 pears. to me to be as little illustrative of the ATTOR- af 
 NEY GENERAL’s meaning as the others.  It_enacts, 
 *‘ that no person or persons shall repair to his Ma- 
 jesty, or both or either houses of Parliament, 
 upon pretence of delivering any petition accom- 
 panied with an excessive number.” 
 In the case here stated, the pretence, from the very. 
 nature of the subject, must be, false, for it is impos- 
 sible to conceive the accompaniment of an excessive 
 
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 ne talsde 
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 Life a” iy 
 
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209 
 
 ean the ATTORNEY GENERAL seriously contend, that 
 “‘pretensed title” in that statute, and pretence inthe > 
 present, have in their meaning any affinity to each 
 other? Does he really think, that the word pretence, 
 in the act under discussion, means claim, and that 
 the legislature referred to persons, who should as- 
 semble to assert their right or title to petition >— 
 Was sucha right ever disputed?—could it be pre- 
 sumed it would ever be disputed? No; the legisla- 
 ture obviously meant to refer to pexsons, who, holding 
 out the false and affected purpose of exercising an 
 unquestionable and unquestioned right, should really, 
 and in fact assemble for other dangerous and dis- 
 guised purposes. Such is the meaning, which every 
 plain understanding must extract from this statute; 
 and it would be a sad necessity, if a legah or judi- 
 cial mind should be compelled to construe it in a 
 sense, far from its so obvious and manifest import. 
 
 Neither do I feel any force from the epithet false, 
 applied to pretence, in the statute punishing the ob- 
 taing of goods or money upon false pretences. No-~ 
 thing is more common, than to add by epithet, what 
 is comprehended in the principal and substantive 
 word. Wilful and malicious murder, wilful. and cor- 
 rupt perjury, are combinations in daily use, and oc- 
 cur in every indictment upon the subject; yet no 
 man could doubt, but that murder, and perjury, 
 would imply these epithets, when used without them, 
 either in statutes, or in any other writing, ‘‘ expres- 
 “ sto eorum que taciti insunt nil operatur.” The 
 statute of Ch. II. against tumultuous petitioning, ap- 
 pears to me to be as little illustrative of the Arror- 
 NEY GENERAL’s meaning as the others. It enacts, 
 ** that no person or persons shall repair to his Ma- 
 «< jesty, or both or either houses of Parliament, 
 “ upon pretence of delivering any petition accom- 
 “ panied with an excessive number.” 
 
 In the case here stated, the pretence, from the very 
 nature of the subject, must be false, for it is impos- 
 sible to conceive the accompauiment.ef an excessive 
 
 2D 
 
 a 
 
210 
 
 crowd necessary to the mere delivery of a petition. 
 Therefore it is quite reasonable, to infer a violation 
 of the act, from such accompaniment, but can the 
 same reasoning apply to preparing a petition, prepa- 
 ring’ materials. upon the ‘subject, discussing the sub- 
 
 ject, and collecting the sentiments of those, who are_ 
 
 most interestéd upon it? But, my Lords, and Gen- 
 tlemen of the Jury, all this reasoning is superfluous 
 upon my part; the legislature, as if. presaging, that 
 if after times some effort might be made to curtail the 
 privilege of petitioning, under this statute, have 
 shielded that noble privilege against all possible mis- 
 representation ; for, in the final section, it is enacted, 
 “ provided that nothing herein shall be construed in 
 “any manner to prevent, or impede the ‘undoubted 
 “ right of his \Majesty’s subjects of this realm to pe- 
 “ tition his Majesty, or both houses or either house 
 6 OF Parliament, for redress of any public or private 
 “ grievance,” 
 
 The ATTORNEY GENERAL has founded ar argu- 
 ment upon this proviso, being in the fourth and last 
 section of the act, and not in the first section, where 
 the erimeris defined. As’ eannot comprehend this 
 distinction, I shall not attempt to combat it ; but I will 
 appeal to the common sense, or the professional sense 
 of all who hear me, whether words could be devised, 
 more perfectly and comprehensively protecting a right 
 from impairment or diminution? “Pry it by this crite- 
 rion ;—suppose it was agreed by every member of 
 parliament, to leave the right, and tlie éxercise of the 
 hight of petitioning ehediitroverted: and to provide a 
 
 clause for the purpose, and suppose’ this clause was. 
 
 BrOpoged; as sufficient for the parpose, could the most 
 jealous* and suspecting advocate for popular rights 
 reasonably object to it? If he did, would he Hot be 
 considered as factiaus and unreasonable? But attend 
 to the words, “ nothing im the act shail be construed 
 “in ANY DEGREE TO IMPEDE the wadoubted right to 
 “ petition,’ can it’ be %said’ that deplianon cannot 
 afford any facility to whe esercise’of the right of: pe- 
 
 duoning? On the contrékyp is it not manifest, that’ 
 
 > 
 
6 AAT 
 
 in- many cases (and. in, none so strongly asin the pre- 
 
 sent), that without the aid, and instrumentality of. 
 
 agents, or deputies, or commitiees, I care not what 
 name is used, while the purpose is zmnocent and laud- 
 able, this invaluable privilege would Jose more than 
 half its value? And is.it not equally manifest, that 
 to take away such facilities, in tlie exercise: and en- 
 joyment of such aright, would be in some degree to 
 ampede it? This appears to me to be too plain to 
 need further enforcement or illustration.. But suppose 
 the statute obscure’ or doubtful; in such cases..the 
 history.of the times, and the evil to be remedied, are. 
 always looked to, for the interpretation of the true 
 meaning. 
 
 _ What.was. the evil, which in 1793 HAdued the Ar- 
 TORNEY GENERAL, antl the Government of that day, 
 to introduce this billieiaka stating it, I am vindicating 
 the memory of ‘that ATTORNEY GENERAL, and of tiat 
 Government, from the misconstruction, ds the mis- 
 application of the act, by their successors of the pre- 
 sent day. There existed, , shortly previous to the en- 
 actment of thatlaw, a body representing the whole 
 ' province of UWister, in the illegal and dangerous sense, 
 which I have ascribed to the.term. They sat at Dun- 
 gannon ; they acted, and resolved in their own names, 
 as general representatives of that province. They 
 abstained from no subject, legislative, or executive. 
 They did. not confine themselves, or pretend to con- 
 fine, themselves to any defined, preconceived object. 
 They did, not pretend to seek, seven a subvequent 
 adoption, or ratification of the measures, or resolu- 
 tions they adopted;—their avowed purpose was to 
 destroy, or new model, all or inmost of the ancient and 
 venerable departments of the, state and constitution. 
 
 They would annihilate the boroughs, purge the House 
 
 “of Lords of ecclesiastical intermixture, extend the 
 elective franchise to the whole rabble, interfere with 
 the executive, in the prerogative of making peace 
 and war, and in short, controul and dictate upon 
 every subject. In the name of God, can any man say, 
 there is any resemblance between an assembly, such 
 
 - 
 
212 
 
 as I have described, and a Catholic Committee, such 
 as I acknowledge is now in existence, for the sole bond 
 
 jide purpose of preparing a petition for the subsequent 
 
 ratification and adoption of individuals of: their body? 
 if the truth of the alleged purpose be doubted,. let 
 that question be left toany jury, however selected for 
 
 their prejudices, provided they be like you; men -of' 
 
 sense and integrity. ‘Fhis representative body of 
 Ulster, had actually convoked a representative body 
 of the whole people of Jreland,, to sit at Athlone, 
 upon the exact principles of their own formation. Ft 
 was against this portentous and unconstitutional as- 
 sembly, that the Convention Act was provided, and: 
 not against any Catholic Committee, either: then in’ 
 existence or meditated, ‘as I shall. hereafter more fully 
 demonstrate. But I shall first lay before you the re- 
 solutions of the Ulster Convention held at Dungannon, 
 taken from a pamphlet, published at the time: by Mrs 
 Joseph Pollock, now chairman of the County of Down, 
 He was hinwself a member of that Convention, and 
 his mind being awakened to a sense of the uneonsti+ 
 tutional nature, and dangerous tendency of that as- 
 sembly, ‘he publicly and manfully warned the Pars 
 hament and the nation against them ;—listen, Tens 
 treat you, to their resolutions ; ; they were passed on 
 the 15th of Peters, 1793, while Parliament. was 
 sitting. 
 
 ef Resoven, That it is the constitational right of 
 ** the people, sek essential to the very being of THEIR 
 liberty, to be‘ FULLY and FAIRLY oe er mn their 
 * own house of parliament, 
 
 “ That the present state of the hepinesbit tisha’ in ‘the 
 “ house of commons is partial and inadequate, subver- 
 “* sive of the rights of the people, and an INTOLERA- 
 “ BLE GRIEVANCE, 
 
 ‘¢ That it appears tous, that several hee spiri- 
 “© tual and temporal, as well as Commons, direct the 
 “ return of more than’ TWO. HUNDRED members” of 
 < the Irish house of ¢ommons, being not one third of 
 ‘“* the representation of ¢he people, aie 
 
 7 
 a 
 
213 
 
 © That it is the opinion of this meeting, that all 
 
 6, 
 
 66 
 
 boroughs should be disfranchised, and representa- 
 tion established on FAIR and RATIONAL principles, 
 by extending the elective franchise equally to per- 
 sons of every religions persuasion; by elections 
 
 ' frequently repeated, and by a distribution of repre- 
 
 sentatives, proportioned to the population and wealth 
 of the country. 
 
 “ That deeming a complete parliamentary reform, 
 essential to the ; peace, liberty, and happiness of the 
 
 **' people, we do most solemnly pledge ourselves to 
 
 &é 
 &@ 
 ce 
 
 each other, and to our country, that we will never 
 abandon the pursuit of this important object; but 
 zealously and steadily persevere, until a fud/ and 
 
 “< fair representation of the people shail be unequivo- 
 
 . 66 
 
 6¢ 
 ce 
 €¢ 
 “< 
 <4 
 6é 
 66 
 ée 
 6¢ 
 74 
 6é 
 
 cally obtained. 
 
 ** That a power be vested in a committee, consist- 
 ing of thirty persons, for the purpose of re-con- 
 voking this assembly: (as occasion may arise), until 
 the constituent body is pleased to return another re- 
 presentation of the province. AND THAT on a re- 
 commendation by letter to Wilham Sharman, Esq. 
 at Moira, signed by seven of the committee, he 
 shall by circular letter tothe rest, procure the sense 
 a majority, and if the measure of a provincial meet- 
 ing be by them approved of, he shall forthwith issue 
 a summons in the name of the committee for that 
 purpose. (Here follow. me names of the com- 
 
 mittee.) 
 
 “ That the above named committee be authorized 
 to communicate with the other provinces of: the 
 kingdom ; at this important crisis, and to consult 
 proper means of calling a National Convention at a 
 future day, should citcuimatances rehdersuch a meet- 
 ing unavoidably necessary. 
 
 * “Resolved, That we behold with indignation an 
 intention of embodying a MILITIA in this k kingdom, 
 a measure which only has* munisterval influence for 
 its object, which we deem burdensome and eis 
 UUNECESSAYY, 
 
214 
 
 * Resolved unanimously, that it is with infinite con< 
 “ cern we behold the kingdom likely, 19 be inyelyed 
 
 a war by which, as a nations we can gaia nothing 
 
 *¢ hostility.” 
 That the meditated Athlone convention, and not che 
 Roman Catholic Committee was. the abject, as’ well 
 as the cause, of this act, will fully appear from the 
 debates upon it. Mr. WOLFE, tlie Attorney | General, 
 of the day, and Mr. Hoparr, THEW AE Secretary, . the 
 framers and introeducers of the act, expressly, disclaim 
 
 any reference to the Catholic Committee, or any inten- 
 
 tion to interfere with the right of deputation for any 
 limited, preconceived, object, and although the opposi- 
 tion of the day did oppose it, as touchiog upon the 
 right of petitioning, it is aitich ‘more reason ible to take 
 the sense of the House, from those, with whom a vast 
 majority agreed, and voted, than from the jealous con- 
 struction of Faby opposition members. 
 
 _ Gentlemen, I will read , ua few extracts pets the 
 debates upon that occasion. i 
 
 Lord Chief JUSTICE. Recollect Bhi a moment, is. 
 
 there any such rule for'the construction of acts of 
 paKement as to refer to the debates. | 
 ‘Mr. Burrowns. My Lord, fam extremely obliged 
 to your Lordship ; I submit to the opinion of the Coart, 
 and shall no further mention those debates; but I shall 
 
 refer you to cotemporary evidence, at once adassible, 
 
 end, to mv undefstanding; conclusive upon the sub- 
 ject.. I mean, the act of the 33 of the King, 
 act, from which the ATrorNEY GENERAL read the af- 
 
 fecting detail of the remaining Roman Catholic. restrice. 
 
 tions 3 this act, containing such liberal concessions to 
 
 in the horrors and. expenses of a joreign wary a 
 
 but on the contrary, must expose. our, commerce 
 to depredation, and our ounery to Sn phere He 
 
 the very. 
 
 Re 
 
 the Roman Catholic body, wa 3 passedi n the same ses- 
 
 sions, with the Convention Act, avd perhaps received ' 
 the royal assent the very same day.* [ct was the resuly 
 
 of a petition framed by the Catholic Committée—Ro- 
 man Catholic deputies, avowed members of that com- 
 mittee, negociated again and again with the frish go- 
 vernment, ‘and with the E nglish government, particu- 
 
 *One of the Jury here asked for the act of Parliament, and several 
 @opirs were handed tu the Jury. 4 
 
215 
 
 larly with Mr. Pirr and Mr. Dunpas upon the subject ; 
 
 they were introduced to, and graciously received by 
 
 the King himself about that period. It was then deem- 
 ed wise, and constitutional, to hold intercourse with 
 men, who understood and could truly communicate the 
 sentiments and feelings of their community. I shali 
 read the recital of that act— hyip 
 ‘¢ Whereas various acts of Parliament have been 
 6* passed, imposing on his Majesty’s subjects, profes- 
 sing the Roman Catholic religion, many restraints 
 << and disabilities, and from the peaceable and loyal de- 
 <¢ meanor of his Majesty’s Popish or Roman Catholic 
 ** subjects, it 1s fit that that such restraints and disabili- 
 ‘¢ ties be discontinued.” Now I ask, is not this recital 
 decisive evidence, that the Legislature did not consider - 
 the Roman Catholic Convention, thrcugh whose me- 
 diation the very” act passed, an illegal or unconstitu- 
 tional assembly? Or is it to be conceived, that they 
 would pass an act with such a recital, and immediately 
 after, denounce the body, through whose mediation it 
 was obtained? Such a supposition would not be more 
 deregatory to the character of the Roman Catholic, 
 than to the truth and consistency of Parliament. The 
 ATTORNEY GENERAL Cannot conceive any use in dele- 
 gation—he says it would require only a capacity of 
 
 ‘writing a few lines, praying a repeal of the test acts, 
 
 which any individual might perform, to bring the Ca- 
 tholic demands fully before parliament, where no doubt, 
 however introduced, they would receive a full and 
 candid discussion. My Right Honourable and Learned 
 Friend is one of the worthiest and ablest men living— 
 but I will take the liberty of telling him, that he is in 
 Boeotian darkness, as to either the history, or present 
 state of his Roman Catholic brethern—he would nov 
 otherwise speak as he has spoken—act as he has acted. 
 I will tell him, that something more than the simple 
 process, te recommends, is, was, and always will be 
 necessary to a discussion of the claims of a people, 
 seeking a restoration of privileges of which they have 
 been deprived ; I will teil him, that if the Roman Ca- 
 tholics of Zreand had confined themselves to the simple 
 mode, which he recommends, they would not now be a 
 people; or Zreland.a nation. 1 will give hima very. 
 
216° 
 
 summary review of the proceedings of the Roman Ca- 
 tholics, in order that he may judge from experience, — 
 whether delegated committees were serviceable. “From 
 the Revolution to the accession of Geo. If. the Roman ° 
 Catholics were mute, they did not address the Crown, oF’ 
 the Parliament for any amelioration of their state; they ° 
 merely made faint efforts to resist each additional penal ° 
 law. During that period, they were in a condition — 
 more abject and grovelling (to borrow a phrase from a — 
 learned and eloquent Friend of mine) than’ the beast that 
 browzed upon the land, which they cultivated by their 
 labour. “Their silence; ‘their declining to address the ~ 
 Crown, or the Parliament, during that period, ‘was fre- 
 quently commented upon, as indicating a dissatisfied | 
 and stubborn spirit. It was so construed by the Tories 
 during the reign of Queen Anne, and by the Whigs 
 during the reign of George the first, and furnished both ' 
 with a pretence, amongst others, of adding largely ‘to 
 the penal code.’ Upon the accession of Geo. IL. in’ 
 1727, is was deemed adviseable, to break this’ silence, ’ 
 and silence this pretence, and accordingly Lord Delvin, 
 and the principal of the Roman Catholic’ gentry pre-’ 
 sented a most Joyal, and duteous address from the Ca- 
 tholic body to the then Lords Justices, to be presented’ 
 tothe Throne. It never has been found ah easy task, 
 for,the oppressed, to please his oppressor. ‘To this Joyal 
 address no answer was given—no public notice was 
 ever taken of it—possibly it never reached'the King’s’ 
 hand, and that if it did, it might have touched his heart. 
 Bat it did ‘not pass wholly unnoticed, and without ef- 
 fect. Primate Boulter, in a letter to Lord Carteret, 
 professes much alarm, at this first act of the Catholics, 
 as a community—he seems to consider it, as a most por- 
 tentous phenomenon; and immediately after, m the 
 very same year, by the 1 Geo. II. ch. 9 sect, 7. they’ 
 were deprived of the elective franchise. ‘The following 
 year, a bill was introduced to prevent Roman Catholics 
 from acting, as solicitors. Several individuals, in Cork, 
 and in Dublin, raised a subscription to defray the ex- 
 pense of opposing this bill—an interdicted priest gave 
 information of this foul conspiracy (as it was called) to 
 bring in the Pope and Pretender. The transaction was 
 referred to a committee of the House of Commons, 
 
Q17 
 
 wheetctnally reported that £5. was collected, and re- 
 solyed, that.it appeared to them, that under the pre- 
 tence of opposing heads of bills, sums of money had 
 been collected, and a fund established, by the Popish 
 inbabitants of the kingdom highly detrimental to the 
 Protestant interest—and they resolved to address the 
 Lord Lieutenant, that he might issue his proclamation 
 to dll magistrates, to put the laws against Popery into 
 execation, This, I presume, is the precedent upon 
 which the ArroaNeyY GrNnerRaL has founded his ad- 
 vice, to his Majesiy’s government, to issue his procla- 
 mation, to magistrates, to disperse Roman Catholics, 
 who should assemble, as delezates; for the purpose, or 
 under the pretence of petitioning. So far, the Roman 
 Catholic concerns proceeded, without any committee, 
 or delegation—with what success is. too well known. 
 In the year 1757, upon the appointment of the Duke 
 of Ledford to the Viceroyalty of Lreland, the prospect 
 of the Roman Catholic people began to brighten, and 
 at.the same period, a committee was formed. to act for 
 them, and from that hour to the present, they have at 
 ail times, when they approached. Parliament, or Go- 
 vernment, for any relaxation, or favour, acted through 
 the mtervention of persons delegated at different times, 
 ia different ways, and varying as to rank, and nunibers. . 
 ‘These committee men, or delegates openly acte5 for, 
 aod in the name of the Roman Catholic people, con- 
 ferred with successive governments, were principally in- 
 struinental by they zeal, industry and talents, in pro-. 
 curing every relaxation of the penal code, and never 
 until this day incurred the suspicion, or displeasure of 
 any government, lu 1747, under the auspices of the 
 Duke of Bedford, and with Ins concurrence, a most 
 satisfactory public declaration, of religious opivions, as. 
 far as they related-to civil duties, calculated to dissipate 
 the false nouons at all times entertained upon. the sub- 
 ject, was made and published by the whole Roman Ca- 
 tholic clergy of Jredend. diaimediately after, was the 
 first Roman Catholic Committee formed, with the entire 
 approbation of the suine V:ceroy, which assembled and 
 met in the Globe Tuvern, in Hssea-street. . Among the 
 first Ccommittee-men, were some men well known to li- 
 terature. Doctor Curry, O Connor the Antiquarian, and 
 Mr. /Fyse, of Waterford. This committee was shortly 
 28 
 
218 
 
 after enlarged, according. to a plan of more extended 
 delegation prapesed by 1 Mr. Wyse. In 1759, the Duke 
 of Bedford delivered a message to: Parliaasent, from the 
 King, desiring: them to provide against invasion. How 
 the Roman Catholic people felt, or would act upon such 
 an, event was a matter of serious expectation to all. If 
 there was any reason to. doubt it, the liberal.and en- 
 lightened policy of, the Duke of Bedford removed all 
 doubt ; and upon the first alarm. of the invasion, of 
 Confluns,. the Roman Catholic Committee prepared a 
 loyal, and animated address, which was submitted to 
 their body. at a public meeting in Dublin, and was signed 
 by above 800 merchants and others, and was then 
 presented to John Ponsonby, the Speaker, by Messrs. 
 Crump and M-Dernott, committee-men, to ‘be trans- 
 mitted by him to the Ford Cieutenant. Agios 
 eracious answer to this adtress was returned, and 
 published in the gazette. The Speaker summoned the 
 two delegates to “the House of Commons, and at his 
 instauce, the address was then read—Mr. Af Dermott, 
 in the nante of his body, thanked the Speaker for his 
 condescension, and the Speaker replied in flattering 
 lapo tage. 
 
 From the first formation of a Rais: Catholic lias 
 mittee to this day, it was.either continued, or was called 
 inte existence, whenever-any subject of discussion arose 
 
 etween that body and government, or panlioments 
 oe relaxation of the law which. was obtained, 
 principally asc ribable to. their. zeal, activity. and oc 
 severance. 
 
 ‘The ALTORNEY. GENERAL is well acquainted with 
 
 the truth of the maxim, “ lex vigtlantibus. non dormi- 
 ENLLOUS insersUt ; end he may rest assured, that the 
 maxim is as true, in -politics, as in Jaw... T he «first 
 territorial acquisition ef the Catholic body was uot 
 very splendid... By the Ll and 12 Geo HE they are 
 enabled.to take fifty acres of. unprofitable bog for sixty 
 ane years, with haif an acre of arable land adjoin- 
 ing, provided, that it should not be within one mile 
 of a town, and that the lease should be void, if half 
 the lands should not be reclaimed within twenty-one 
 years. In 1777, they obtained, through their com- 
 
219 
 
 mittee, a most important concession, the right of 
 taking leases for long terms for years, and of de- 
 vising their lands. In 17$2, their committee again 
 acted; their .claims, their doudixion, and their con- 
 duct, were brought into public, and full discussion. 
 Several disabilities were removed, and they were 
 placed on a footing of perfect ‘equality with their 
 Protestant brethren, in respect of the right of ac- 
 quiring, or disposing of lands. From this conces- 
 sion, political equality appears to me to follow, asa 
 certain corollary, however for a time it may be thwart- 
 ed, or postponed. In 1792, this modernly denounced 
 committee were again in activity, and the Bar was 
 thrown open to the Roman Catholic body, with, how- 
 ever, a most impolitic proviso, that no Roman Catho- 
 lic should be appointed a King’s Counsel; that is, 
 precaution was taken,—when they were invited, and 
 receiyed into,a profession, which above all others im- 
 proves popular talents, and gains popular influence, 
 that they should be in habitual, and as it were re- 
 gimented opposition to the’ Crown, upon all: ques- 
 tions of prerogative, which might arise in our courts, 
 and that even the King should not be empowered to 
 entitle himself to the permanent service of any of 
 them, be his talents ever so splendid, his learning 
 ever so pre-eminent. But when did pride or prejudice 
 ever reason! In 1793, the Roman Catholic com- 
 mittee made their last successful effort. I have fore- 
 stalled much, indeed almost all, that I intended to 
 say upon that committee and that period. It con- 
 sisted of delegates from all the counties, and was 
 somewhat more numerous, and more fully. attended 
 than the former committees; principally, because it 
 had been asserted, as it is still asserted, that the 
 Roman Catholic people at large, felt no interest in 
 Roman Catholic Emancipation. A foul, and unna- 
 tural calumny upon the good sense, and sensibility of. 
 an intelligent and feeling nation ! 
 
 I shall 2 again refer you 1 to that affecting catalogue of 
 privations, ‘which the AT TORNEY GENERAL read, with 
 such visible, involuntary, public sensation; and | 
 
220 
 
 shall tell you, that that catalogue details but a ona 
 portion of privileges, from whined: the Romaa Catholic 
 people are shut out, The orders of council to which 
 they are left subject, have a most extensive ‘operation, 
 and they are, in effect, deprived of the enjoyment 
 of almost every privilege, given to freemen in, cor- 
 porate towns, in a kingdom where corporations 
 abound, and where those “exclusive privileges are sO 
 vigilantly asserted. ‘They are also subject to several 
 importa :t disabilities, net connected with the Test 
 Acts. ~For instance, no Roman Catholic, though he 
 should possess half---the whole, Bank of Ireland 
 » stock, can be a Directory of the Bank of Ireland.--+ 
 
 These restrictions, and exclusions meet the Roman_ 
 
 Catholics in every quarter of Jreland; and affect his 
 interest, and hurt his feelings, ina thousand ways, 
 not known to my Right Hon..Friend. - Bus: suppose 
 it otherwise; suppose the higher orders: alone: inte- 
 rested in the present Catholic question y suppose the 
 
 higher arders alone labour under disabilities, can the 
 
 ATTORNEY GENERAL know soilittle of human nature, 
 
 as not.to feel, that the lower orders will make com- 
 
 mon cause with the higher orders: of their sect, even 
 in. matters of mere pride, and speculation? In my 
 opinion, if the only difference between the Protest- 
 ant, and the Catholic were, that. the latter should be 
 prohibited: from wearing love upon their clothes, or 
 having livery servants ; ANT ridiculous and invidious 
 
 distinction would be felt by .the meanest ‘peasant, — 
 
 and might, at some unlucky crisis, produce the most 
 disastrous. consequences, I therefore do assert, that 
 
 no candid man, whe understands .the Catholic ques- 
 
 tion, and the state and condition. of the Catholic 
 
 people, can think ita mere form to petition, or 
 deny the utility of delegation, .towards effecting the 
 
 Jaudable purpose, and constitutional object of their 
 
 pursuit. . Suppose it were true, that ali the restrietions 
 
 might be removed, by the repeal of the Test Act; and 
 
 that such repeal might be. eect bya single dine} does 
 
 it fallow, that no measures ought to be, or can be le- 
 gally adopted, to induce the government, or parliament 
 
 vy 
 
221 
 
 to enact that short and sin:ple bill? Is it impossible, 
 that ignorance might exist, as to the variety and ex- 
 tent of the very restrictions, and misrepresentation, or 
 misundersfanding prevail, as to the grounds, upon 
 which they were imposed, and the probable conse- 
 quences of their removal? Gentlemen of the Jury, 
 such things are not only possible—but certain; and al- 
 though Protestant liberality has made) great addeitces 
 in modern times, although rooted prejudic es have been 
 dislodged, although the Roman Catholic. of this, day 
 has teceived from the Protestant of this day, eonces- 
 sions calculated to obliterate, and which bave almost, 
 obliterated, afl recollection ae past animosities, all re. 
 flection of the barbarous and civil dissensions, which 
 disgraced our ancestors. and embittered their lives, al- 
 though much has been done—much stil remains to be 
 done; and until that shall be done, we cannot feel the 
 confidence of an united people: the enemy will not 
 feel the terror, with which such a character must ever 
 strike. the invader. Instead, therefore, of impeding 
 the object of this delegated committee; it ought to be 
 the anxious wish of every good Irishman, and every 
 loyal subject, to give it full s success ;—to wipe away, at 
 once, at this inost interesting moment, all réstrictions, 
 and distinctions; to invite our eae Catholic» bre: 
 thren to a full participation. of every civil right, and to 
 bind him by interest, gratitude and. affection, to unite 
 
 with his beart, tal band, in defending our, common 
 rights, our common country, and our common consti+ 
 tution. 
 
 ‘In dismissing | this subject, s so barren , an evidence, 
 and so pregnant in observation, I had nearly forgotten 
 an important topick.  T really think, that if the Con- 
 vention Act were seriously and liberally construed, that 
 the admitted object of Catholic pursuit would, in it- 
 self, exclude thea: from the operation of the law, and 
 that they ought not to be considered, or treated as 
 men seeking an alteration of ‘¢ matters established by 
 « Jaw in, Church and State.” Recollect, Gentlemen, 
 that they are not seeking to innovate or destroy—they 
 seek not to pull down the common constitution of our 
 common ancestors—they seek not to annihilate’ any, 
 even the lowest, department of the state—-they only tee! 
 
222 
 qmre to be received, and treated, as joint proprietors, 
 and co-heirs of our noble constitution—they seek to 
 widen its basis, and add new pillars, and sepporters to 
 the edifice of liberty and law. In doing this—let it 
 not be mistaken, that they look ‘to any transfer of 
 power, or any direct, or immediate investiture with 
 any privilege. No, Gentlemen, they merely seek 
 capacuty, and leave the right of conferring it, where it 
 pre-existed. They seek to unshackle the prerogative’ of 
 the Crown—-they seek to give to the electors a wider 
 range of choice—they seek to vindicate the best prin- 
 ciples of every free constitution—the connexion ’be- 
 tween property, and power. In every well cousti- 
 tuted state, property and power are connected in all 
 its departments ; to separate them, is to sow the seeds 
 of disease, and agitation. They gravitate towards 
 each other, with as fixed a law, as prevails in the phy- 
 sical world, and tranquillity cannot exist under their 
 forced, and unnatural separation. They must—they 
 will finally unite. Either property will clothe: itself 
 with power, or power will seize-upon propetty. Ina 
 pure despotism, there is but one proprietor—so that in 
 fact the Roman Catholics are seeking—not only the 
 grace~but the shield of property—not only what 
 would ornament, but what would secure their acquisi-’ 
 tions. Can it be just—can it be wise, at any time, or 
 in any country, to disfranchise property and rank of 
 their legitimate, and constitutional trusts ? Cam it be 
 wise, or politic to permit the great bulk of a nation 
 to accumulate property without bounds, and to ac- 
 quire lands and interests in lands without limit, and to 
 close the avenues to all the great honors and distine- 
 tions of the state against them ? Ambition Is a passion, 
 natural to man ;—and if great proprietors, and their 
 descendants. be shut out from all legitimate gratification. 
 of that ineradicable appetite, they will be tempted to 
 courses and pursuits, equally dangerous to the commu- 
 nity, and themselves. In a country, so mis-organized, | 
 if ever there should arise a strife between the lower’ 
 and higher orders ;—if ever republican frenzy should - 
 agitate the country, talent and wealth will be ‘driven. 
 into the ranks of folly and disorder, to discipline} and 
 lead them. These observations—at all times true— 
 apply with augmented force since the Union, and from 
 
293 
 
 a consideration of the grand strife, in which. these 
 united. islands are engaged. It must be .the first wish 
 of every honest subject to render that union univer- 
 sally effectual, to the purpose of wniting every heart, 
 and hand. acainst the common enemy. Sach was the 
 avowed object. of the statesman, who. proposed’ that 
 measure, of which Catholic emancipation was intended 
 to be a part. Ivis the anxious wish of those, who op- 
 posed it, and of none more’than me, that. that object 
 should be accomplished. .Perhaps, they would not 
 consider the merger of: national independence, as too 
 great a price, for so inestimable .an jattainment. But, 
 while the Roman Catholics are excluded from a parti- 
 cipation of the offices, and honours, and power of the 
 State, can there be any thing like national amalgamas= 
 tion? Can the Roman Catholics of Zreland-be taught 
 to feel? Is it possible, in fact, that they will feel — 
 that there is a fair legislative union between the na- 
 tions? But will they not be effectually told, by every 
 man, who wishes to infame them—will not their own’ 
 feelings tellthem, that Zreland is more than ever pro- 
 vincial ? Will not exclusive Protestant. legislation be 
 felt by them as the disfranchisement of Jreland? On 
 the contrary, by giving full effect to the pursuit for 
 which Mr. Sheridanis sought to be convicted, we ren- 
 der the nations really, and not nominally united. We 
 enable the Crown to animate the.zeal,:and reward the 
 exertions of his» Roman Catholic subjects in every de- 
 partment. We take from: the enemy a formidable: 
 reinforcement. of irritation and disaffection, and we in- 
 terest and unite all.the property, talent and feeling of: 
 the nation in defence of the common. cause.) Lwoulkd 
 appeal to my Right Honorable Friend. himself, whe- 
 ther, what I. state. be.not founded in truth and) nature. 
 He has earned an ample fortune and. an-high. repuia- 
 tion.. He has children to. inherit. bis acquisitionsy~and 
 who are, no doubt, emulous: to tread in his: paths ?. 
 Would he be satisfied to leave them his property be- 
 reft of the priviteces properly incident: tow? Would 
 he feel at ease, if all incentives to legitimate: ambi-: 
 tion were extinguished, and their feelings were; ex - 
 posed to dangerous ambition ©, I think he owould) get.. 
 I well know that his rooted loyalty andostrong cteasou:: 
 
 a ®. * 
 
924 
 
 would protect bim from treason and even. sedition, but 
 he would pine under restraints that robbed: bis acquisi- 
 tions of more than balf their value; and he would Ja- 
 ment, that he had not exerted bis great tepid and 
 planted his family in some other soil. 
 
 The ArvrorNEY. GENERAL has entered. largely j into 
 a defence, indeed a pauegyric of his Majesty’s go- 
 vernment in) Jreland, for their proclamations, against 
 I wall say it, though he does not admit it——~the 
 Roman | Catliolic people of Iretand; and of tis, 
 avowedly, state prosecution. | appland bis manly 
 avowal, that he advised those state acts, thoagh I can- 
 not bit lament the gross indiscretion: of sich: advice, 
 from whatever quarter it might originate. His own 
 statement, in. my opinion, condemns both the Jus- 
 tice, and policy of the measure. He has stated, that. 
 a series of seditious, and inflammatory. libel: . tuo 
 gross. for the seditious press of this city, (to use. bie 
 own language,) was daily, and publicly uttered, m a 
 committee, with whom, be. has not. so much,. as at- 
 tempted, to connect the present, Roman Catholic: 
 committee by any evidence. He expatiated upon the 
 patience and temper of the Jrish government, ie 
 calmly witnessing, and submitting to such outrages, 
 and waiting for the voluntar ¥ death, -and dissolution of 
 
 that assembly. tHe has more beast instnuated, that: 
 
 that assembly was bottomed in treason, and has exerted 
 himself much, to alarm your fears, aud excite your 
 
 prejudices, by the picture, he has drawn of theit con- 
 
 duct and designs. Gentlemen, is it possible to bear 
 
 this, without, at once, seeing its irrelevancy and un, 
 
 fairness ? ti the present committee to be condemned, 
 and punished for their mere existence, because. there 
 was another Ronan tRS, in which individuals were in- 
 temperate and seditious? He ought not to be listen- 
 ed to, while stating such. enormities; which, if. they 
 existed, should have called. forth, and must.have called 
 
 forth, the vigour of the law. . But to, suppose his: 
 
 statement perfectly true, and unexaggerated, what is 
 the reasonable inference? , Not that a subsequent 
 committee, of which the FINGALLS, the SQUTHWELLS, 
 
 vy 
 
 © 
 
225 
 
 the Barnwe.us, the BELLEws and the Byrnes, the 
 Catholic Prelates, and the Catholic Peers; those in« 
 dividuals and classes of the Roman Catholic body, in 
 whom every prévious Trish government placed uné« 
 biassed confidence, composed a part, should’ be de- 
 nounced, and diseerséd, independent of any act, or 
 the expression of any sentiment; but that the govern- 
 ment, whieh should suffer siteh outrage to eo unpus 
 nished (if any’ there’ were’, and should: attempt to 
 punish, where no offence have been committed, or is 
 likely to be committed, are themselves objects BE the 
 justest condemnation, But there is a further, and more 
 alarming inference-—one, in which Catholic and Pro-. 
 testant, Trishmen and #nglishmen are equally interest- 
 qd. It is, that government is not Prosecutitig the 
 crime, but’ hunting down the privilege— that they 
 have no desire to. ptinish arly Offender, be he ever so 
 atrocious, but cannot endure, that’ the privilege of 
 petitioning should assume such a shape, ‘as that the 
 sentiment of the whole peoplé should be, unques- 
 tionably, pronounced. If this be’ their object (as it 
 unquestionably is) they have acted with judgment ; 
 they have acted with candour. 
 
 They have attacked the privilege in its strongest 
 hold; they have attacked it, where it is most defen: 
 sible. They have liavavded defeat; but if they ob- 
 tain a victory, the privilege is for ever vanquished. 
 The precedent of this day will be pleaded against 
 every species of delegation, aud when the concen- 
 trated force is routed, it will be easy to disperse, mis- 
 represent, and put down individual petitions. 7 look 
 to you, Gentlemen of the Jury, for protection against 
 such consequences, The Irish government, instead 
 of claiming credit for thei conduct, should; in my 
 opinion, say (sinners as they are) “ We have left un- 
 “ done those things which we onght to have done, 
 6 and we have dotié those things, w hich we ought not 
 « to have done.”  Theiv conduct resembles: the con- 
 duct of an intoxicated bravo, who being too much 
 oppressed by liquor. to resist teal, or imaginary inju- 
 ries, or insults, as soon/as he becomes semi-sober and 
 
 oF 
 
 be 
 
 sumibe 
 
 296 
 
 semi-vigilant, should rush forth into the high-way, 
 and knock down every man he meets—peer, prelate, 
 or peasant, . } ‘ 
 
 I fear, my Lords, I bave committed an unwarrant- 
 able trespass upon the public time. In, doing so, I 
 have but followed the éxample of my honorable and 
 learned friend, who has said so much upon general 
 subjects, ‘and so little upon the case of the Traverser ; 
 whose gigantic statement is so disproportioned to the 
 pigmy proofls that followed it. I fear I have even 
 exceeded him, in prolixity, which you will, rather 
 
 ascribe to his superior powers of condensation, than: 
 to any desire, upon, my part, to dwell unnecessarily 
 
 upon any topic. In truth, when I turn my attention 
 to the facts in evidence, my astonishment is encreased 
 that Doctor Sheriday was ever brought to trial. Shut 
 out from your minds the aspersions which have been 
 cast upon other men. Disengage your loyal feelings 
 from that appeal, ‘which has been so artfully addressed 
 to them ; do the Traverser the justice—of not pre- 
 
 g, that he must have bad designs, because he 
 is a Roman Catholic, and, of not ascribing to him 
 every seditious act; committed by, or ascribed to, 
 every man of his religion:--Which of yourselves 
 could bear this test?) Try him, as every man should 
 be tried, by his own acts, established in evidence 
 
 against him, and see what that evidence is? Two 
 
 witnesses were examined, who. swore that .Doctor 
 Sheridan presided at a meeting of Roman Catholics, 
 
 who elected five ‘persons to prepare a petition, and. 
 
 they added, to represent them; im-a Catholic Com- 
 
 mittee ; one.of them afterwards retracted the word 
 
 represent, as forming any part of the resolutions 
 passed, and positively swore it did not, and the other 
 swore, that he could not be certain, that the word 
 represent was used, and they both admitted, that they 
 
 had the very resolutions in writing, and gave thein in 
 
 > ty 
 writing to those who condugt, the prosecution. I do 
 
 not think the word’ represent,” can avail any thing. 
 
 If delegates were appointed, in a criminal sense to 
 represent the people, no use of language could vary 
 
 * 
 
% 
 
 227 
 
 “the offence, or Ate the culprit ; and if the dele- 
 gation was from its Ole innocent, no phraseology 
 could render it guilty ; I strongly suspect, that those, 
 who managed this evidence, and kept back the writ- 
 ing, are of a different opinion, But if the words 
 were considered as important, it is impossible, that 
 you, upon the evidence, can assume that it was used. 
 _ From those. witnesses, it appeared, that no other bu- 
 siness was. mentioned, but business of _ petitioning, 
 and one of tluemavepai ues that he believed, no. other 
 object was in contemplation, and that. he believed, 
 that the petition, when prepared, was to be submitted 
 to the individual Catholics, »for -their adoption and 
 signature. If the evidence stopped here, would tke 
 ATTORNEY GENERAL say, Mr. Sheridan was. guilty 
 under the Convention Act? He must say so, for he 
 fas not drawn any line, and has levelled his argu- 
 ment, and this prosecution against all delegation, or 
 deputation, for the purpose “of petitioning. ‘That, 
 which js expressly protected by the act, would appear 
 as he construes it, to constitute the offence. But the 
 evidence has not stopped here; Mr. Huddleston, 
 whose evidence I do not mean to impeach, has proved, 
 from memory, the following resolution, as having 
 passed an aggregate meeting : 
 
 «“ RESOLVED, That. said, ‘Committee do. consist. of 
 the Catholic Peers, and their eldest sons, the Catho- 
 
 ‘lic Baronets, the Prelates of the Catholic: Church in 
 
 ‘Ireland, and also ten persons to be appointed by the 
 Catholics in each county in Ireland, the survivors of 
 
 ‘the Delegates 1793+ to constitute an integral part. of 
 
 that number, and also of five persons to be appointed 
 “by the Catholic: inhabitants of each parish: in Dud- 
 Toe 
 
 “Now, I -do not “ahi; ine those aS, WN are 
 Lutein nly proved by parol evidence,—it appearing 
 ‘that they exist in writing,—to be received as the act 
 of that aggregate body, so as to affect persons not pre- 
 sent; but I shall waive this objection, I boldly, ‘and 
 “confidently maintain, that there is nothing in these 
 _resolutions, or ina committee formed upon them, sedi- 
 , Hous, illegal, or violatory of the Convention Act; and 
 
228, 
 
 if all I have said be not erroneons, I have already es- 
 tablished, that such an assembly is not, as it is con- 
 tended to be upon the other side, illegal, independent 
 of any concealed or illegal pursuit, or any libellous or 
 seditious speeches, used in it, when assembled; and I 
 repeat it, and it cannot be too often’ repeated and tn- 
 culcated, that to decide otherwise,—will be vitally to 
 injure the right of petitioning, and totally to disregard 
 the constitutional saving of the Convention Acti 
 
 All the resolutions given in evidence, are. precisely 
 conformable to the functions, invariably performed by 
 Catholic committees, since their formation, and T can- 
 not discover any part of them denoting any bad object, 
 criminal motive, or illegal pursuit. The resolution, 
 defining the constituent parts of the committee, bas 
 been much relied upon, and grossly misrepresented. 
 How daes this part of the case fairly stand? A com- 
 mittee is formed to collect information, to prepare 3 
 petition, to suggest arguments in favour of that peti- 
 tion, to discover prejudices that impede, to obviate 
 difficulties, to solicit support; in short, in every rational 
 and fair way to promote the success of that petition. 
 The disabilities, sought to be removed, affect the peers, 
 affect the commons, affect those who reside in coun- 
 ties, affect those’ who reside in cities ;—in short affect 
 every order, and department of the Roman’ Catholic 
 community, and it is now objected; that there are depu- 
 ties from every order; and it is further objected, that 
 the few persons, who now survive, of the committe of 
 1793, so favoured, and cherished by the then Govern- 
 ment and parliament, are members of the committee. 
 ‘They are called Estates General,—are represented, as 
 ‘usurping all the functions of the legislature and govern- 
 ment. This is cruel mockery! -1If such be their con- 
 ‘stitution, or their views, they'are guilty of high -trea- 
 gon, and ought to be prosecuted as such. - But shall this 
 be taken upon assertion? Shall this assembly be deemed 
 legal, because it has received an infusion of the Peers 
 and the Prelates, who have always been considered, ‘as 
 a counterpoise to the too great eagerness of popular 
 pursuit? If the Prelates, end the Peers had been 
 omitted, the clamor against the committee would have 
 been much louder, and much more plausible; but the 
 utmost effect, that the numbers, and constitution of 
 
229 
 
 the committee ¢an have, is to become an ingredient in 
 a jury question, if any jury question could arise, as to 
 the real object, and pursuit of such committee. Doctor 
 Sheridan challenges such, a question to be left to any 
 jery, but they do not venture it upon .the other side, 
 rut call for,your verdict, upon the. ground, of general, 
 unevidenced and unapplied. imputation,. and a. gross 
 misconstruction of the Convention Act. 
 
 Gentlemen of the Jury, upon this inexhaustible sub-. 
 ject, I have left much.unsaid ; yet, upon the grounds, 
 I have urged, I shall, now,leaye it to your decision, 
 only again imploring: you, to read the charge, which 
 you are sworu to try, and to compare it with the evi- 
 dence, which you have heard from the witnesses, and 
 not with the calamnies, which have been every where 
 uttered. . To find the “Traverser guilty, you must, 
 Upon your.oaths, find in the very language of the in- 
 dictment, that the Catholic Committee intended to be 
 appointed, was to be ‘‘ a Committee of persons pro- 
 fessing the Roman Catholic religion, to be thereafter 
 held, and to exercise a right, and authority ¢o represent 
 the inhabitants of Ireland, professing the Roman Ca- 
 tholic religion, under. pretence of preparing petitions 
 to parliament.” You must, infact, convict the Roman 
 Catholic subjects of this.realm,.of.an offence approach- 
 ing to high.treason.. You have.no evidence to warrant 
 this; and yon cannot have any rational wish to create 
 or supply such, evidence... The Catholic. body of this 
 
 ‘day owe their Protestant brethren of this day great 
 obligations.’. Believe me, they: are deeply sensible. of 
 
 the debt, and are not the less worthy to have that debt 
 augmented, by the eagerness they display to, be fully 
 emancipated, to. be perfectly amalgamated: with you.in 
 constitutional .co-existence. | No wise and good man 
 would wish.at any time,.to disappoint, this laudable 
 impulse, «No man, not a maniac, would seek to dis- 
 
 ‘appoint,it.a moment, when all, .that. is dear to us, is 
 
 in such peril, that united enthusiastic efforts are neces- 
 
 -sary. to common security.. Gentlemen, your Roman 
 
 Catholic brethren, await a verdict, which. is, to, pro- 
 nounce upon ..their principles, and pursuits, with ago~ 
 nizing anxiety... There is not a.city,,town, village, or 
 
 -hamlet in-Jreland, in which ,the result..is not, at this 
 
 moment, looked for, with breathless expectation... It is 
 
230 
 
 jaoked for in Bngland, with little less anxiety. ‘They 
 cannot be indifferent to the truth, or falsehood of the 
 -eharge, made by the Lrish Government upon the Ro- 
 
 man ‘Catholic subjects of Zreland. It 1s loaked for, by 
 the common enemy, with an anxious wish, that the 
 ‘accusation may be truc-—they must derive the highest 
 gratification, and possibly, the strongest motive to act, 
 from a Protestant verdict, against the Roman Catholic 
 people. . Gentlemen, pronounce a verdict of Not 
 Guilty 5 relieve your fellow-subjects, and disappoint 
 the common enemy.’ Do not, Gentlemen, apprehend, 
 
 that so gratifying a result would be followed up by in- 
 temperate joy, or dangerous exultation. No-bad feel 
 ing can mix with the pure delight, which such an event 
 would: universally diffuse ;-but if. there were danger of 
 excesses from unbounded joy, those Roman Catholic 
 Noblemen and Gentlemen, who are implicated in the 
 charge, will moderate the triumph, and guarantee the 
 tranquillity of the country. ‘The gallant Fiycay will 
 guarantee it. He stands before you, to pled, e his high 
 character for the conduct of his brethren. boy know, 
 you may trust him; you know, that in the hour of 
 danger, he lifted his sword, equally against the rebels 
 ‘of all perspasions; he ‘despised false ‘and Pameee 
 ‘popularity ; he proved his title to be received, a 
 “supporter of the Throne, and he would not sally Wee 
 title, and he neyer has sullied it, by ery abe ‘or 
 intemperate act. | 
 
 May the God of truth, and justice subdue your pre- 
 “judices, awaken yaur consciences, and enlighten your 
 minds, to find that. verdict, which will tranquillize the. 
 country, ‘unite the peaple; appall the enemy,. and 
 ‘place these united islands in a state of such proud 
 
 defiance, that an’ enemy will dare ta  aapcrae: our 
 
 shores. — j 
 ‘Lord Cuter Justice. Does the Tvaverser pro- 
 “duce any evidence?” i osag 
 
 Mr. Burne: My Tore, we © beg a few ‘moments 
 for deliberation. 
 
 Lord Crier JustTice: Take your own time. 
 
 After a‘few minutes, 7» he 
 
 Mr. BuRNE. My Lord, I beg ata for Kuh 
 delayed the Court: The Counsel for Dr. ‘Sheridan, 
 
> 
 
 291 
 
 after mature deliberation, are unanimously of opit 
 nion, that no evidence ought to be gone into, upon 
 his part. 
 
 Mr. GOoLp. We think, that the Counsel for the 
 Crown have proved no case, either in law, ot fact. 
 Whenever the question, at issue, shall arise, it will be 
 met most boldly. 
 
 Mr. SOLICITOR GENERAL. My Lords, it is my 
 duty : ety 
 Mr. Gooud. My Lords, on behalf of the Tras 
 verser, I call upon the Court to disallow any claim on 
 the part of the Crown to reply. No evidence ‘has 
 béen given on the part of the defendant ; there is no 
 surprize, or any thing, which can require observa- 
 tion from the Counsel for the prosecution’; and by a 
 
 Yate case, even the personal right of the ATTORNEY 
 GENERAL, where he is the prosecator, has been quies- 
 tioned, “fave ‘Ease OF thie King a, Lord Abingdon, 
 1 #Espt. N. P, Lord Kenyon observed, iat as thie 
 defendant had called no witness, be thought it irret 
 gular in the Counsel for the prosecution to Rephy's 
 and that though the ATTORNEY GENERAL might be 
 entitled. to it, as a privilege, he thought mo “other 
 Counsel for the prosecution ought to have it; that he 
 had. never claimed it, when. holding. an afice under 
 the Crown, and that he Would not make a precedent 
 in a matter, which he disapproved. In Cox's’ ease, 
 
 -at the last Comraission, in Dublin, one of the Coun- 
 sel for the Crown rose to reply, but was not admitted ; 
 and there is nothing particular in this case, to in- 
 dace the Court to dispense with the general rule. 
 
 » Mir. SOLICITOR GENERAL... There: Is certainly no- 
 sake in this case to warrant a departure from any ge- 
 
 -netalyule. But it remains to be established, that 
 
 there is such a general rule. In ciyil cases, the 
 
 .gudges, have 2 lately established a rule, that where no 
 
 evidence is given by a Defendant, the Counsel for the 
 Plaintiff cannot speak, in reply. But that. bas not 
 been extended to criminal cases; for in such, the 
 Crown is always allowed to have the last word. . This 
 
 “ds established by avery remarkable case—that of the 
 
‘wnfortunate Mr. Emmet; he made no: defence ; and 
 yet Mr. PLUNKET, at the particular request of. the 
 then ATTORNEY GENERAL, addressed the jury in 
 reply. | : | 
 
 Mr. Driscott. My Lords, there was a case on the 
 Leinster Circuit, before Mr. Justice OsBorNE, in 
 which he decided against the right. It was the case 
 of the Kinga. Tench, at- Wexford, in which I stated 
 the case for the Traverser, upon whose belialf no evi- 
 dence was adduced. The Counsel for the prosecu- 
 tion insisted upon a right to reply, which the Judge 
 refused. : 
 
 Mr. Justice OsBorNE. The impression upon my 
 mind is, that there is no reply and so [ decided. But 
 I do not pretend to say, that I am absolutely right. 
 I think, however, that if the Crown has the right, 
 there ought to be an authority to prove it. . It must 
 have occurred in, some case, or other before. 
 
 Mr. O'CONNELL... My Lord, there was a ease upon 
 the Munster Circuit. One Aason. was indicted for a 
 misdemeanor, he gave no evidence, and I made the 
 objection, that the Counsel for the. prosecution. could 
 not reply. Mr, Baron Smits, before whom. the 
 cause was tried, hesitated, but said he would consuit 
 with Mr, Justice Day, then in the other Court, and 
 it was decided by their Lordships, that the objection 
 was valid, and.that no right of reply lay with the 
 Crown. : 
 
 Mr. Justice Day. That was my opinion. 
 
 Mr. Arrorney GreNnerat. Perhaps the rule may 
 have been made in ordinary cases, that the Counsel for 
 prosecution have no right to reply, when evidence is 
 not given for the Defendant.—But in all cases, where 
 the prosecution is by the ATToRNEY GENERAL, the _ 
 Crown has the’ prerogative to reply, and that was ad-—. 
 mitted in Lord Abinedon’s case. SEONG Oe 
 
 Mr. Townsrnv.— Before the case of the King a Lord. 
 Abingdon, the right of the Arrornry GENERAL to 
 reply was never questioned, and however it ae have 
 been ruled in some ordinary cases, Lord ExLEn- 
 BoRovuGH has admitted an’ exception in favour of the 
 Arrerney Gexerat. So it has been the uniform prag- 
 
’ 
 
 tice in this couttry Ve Ww hich j is aa th by the decision: 
 of the Kinga: inmets that case not only establishes the 
 right of the Arrorney Generat to reply, but that he 
 way transfer his right to another.—In the absence of 
 
 the Arroryey Gonerat, he is. represented .by the 
 SoLicrror GENERAL. . 
 
 -Mr., O'Gonnev.—As the Acronney GreNEran has 
 already. stated. the case, he cannet. now. appoint a 
 deleguie, uuler predence of speaking to eviderice. | 
 
 Mr. - MES. ALLYs— et CAO - Sly what, may. be the. 
 modern ractice of the Court of King’s Bench in Ting 
 land. But in the case of the King, ‘at thé prosecution 
 of Maclilin,. a. “Clark, and others, Lord. MANSFIELD: 
 prevented Me. Donnine from speaking in reply, as ho 
 evidence Was given for the defendents. As tothe case. 
 of “Mi. “Ennet, it was a case of high treason.-—Mr. 
 Burrowes, and i were his assigned Se ME pro- 
 hibited us from speaking for hit; so that the Crown 
 had tivo lest words. —The Arrorney Generar; Mn 
 O’Giapy, stated the’case, and. Mr. PLunxer replied) 
 although no evidence was given by the prisoner, nor 
 observation made by his counsel upon the law, or the 
 facts. Many well informed men thought at the time; 
 
 : oO 
 it was an unnecessary pracoeclingins and Bhould: not be 
 
 followed as a precedent. | 
 
 Lord ig Jusrice. Ihave always seviaitisieail ity: 
 as a settled rule, that the Attorney General, for: the 
 Crown, had the last word. 
 
 Mr. Perrin, My Lords, I submit, that. the case of 
 the King a. Cow is pr ecisely 1 in point, it was a. prosécte 
 
 tion. by indictment tor a misdemeanor, institated. by the- 
 Attorney, General, and was tried before Lord Norboury,~ 
 and Baron George, ,at the, Coramission Court; last) 
 Kein UAT Y ‘Lhe Attomey Genera! Stated. the case, on. 
 
 behalf of the Crown, and witnesses were examined iti: 
 support of it. Mr. O'Connell. stated. the case for the: 
 Tivaverser—no witnesses were called. Serjeant Moore 
 rose to reply. The Counsel for the defendant objected; 
 
 and cited Lor d Abingdon’s CASE, The Comt deter~ 
 
 mined, that ,the Counsel for thé Crowa hadi jie tight . 
 to rey ply in, such’ a, case, except, the Attorney General. 
 ——That the right was personal, and could not be» 
 
 himsel 
 taansferred. If the Attorney General thinks proper te 
 2G 
 
 gia" 
 
934 
 
 éxercise such a right here, let him do so ;) but/we object 
 to the Solicitor General being heard in his stead. — 
 
 Mr. O’ConneLu.—My Lords, Isent for Mr. EZspi- 
 nasses’ book, and can now state Lord Abingdon’s case 
 from it (which he did). | , 
 
 Mr. Arrorney Genrerat. My Lords, every rule 
 of this kind. is made for the convenience of the Court, 
 who may dispense with it, in any case of difficulty. In 
 the present case, there has been much discusssion sinah 
 matter of law.—My construction of the Act of Parlia- 
 ment has been denied, and we think it necessary to 
 
 reply,—at the same time, we have no objection, that the’ 
 
 Counsel for the Traverser may be further heard, if they 
 think proper. 
 Mr. Justice Osporne. I should have thought, that a 
 little research would have furnished a precedent to de- 
 cide this matter. NT 
 
 - Mr... Justice Datry. I think the case of Lord Abing- 
 
 don is in-favour of the reply. In common prosecu- 
 tions—not instituted by the Arrorney GENERAL—the 
 counsel for the prosecution contended for a right to 
 
 reply, which, it seems, was denied. But it was ad- 
 
 mitted, that the Arrorney Grenerat has such right— 
 that means, where he is the prosecutor. If there be 
 such right, why confine it to him personally? If he 
 
 appears, as the prosecutor, and has the right of reply 
 in him, I see no reason, why, he may uot transfer it 
 
 to another. 
 
 _.Mr. Gooin. My Lord, this is not a prosecution 
 
 by information, fiied, er officio, by the ArrorNey 
 
 CENERAL—but by indictment. ¢- — OPE: 
 Mr. Justice Dary.. Ido not think that makes any 
 
 difference. If the Arrorney GENERAL appears, as 
 
 the prosecutor, I think it is sufficient. 
 
 Mr, Arrornry GreNeRau. My Lord, the’ objection 
 made would apply in cases of High ‘Treason, which 
 are always by indictment, and the Court takes: notice, 
 whether the AtroRNEY GENERAL prosecutes in his of- 
 
 ficial character, or appears as counsel for ‘an-ordinary 
 
 prosecutor, 
 
 _ Mr. Justice Day. If we take it upon ‘the authori- 
 ties, they rather, weigh against what is coutended for 
 
 by the ATTORNEY GENERAL 0 
 
 — 
 
235 
 
 Mr. Burton. My Lords, what is it that Lord Ken-- 
 YON disapproved of ? Why, the right claimed by the 
 Attorney General—but when he was Attorney Gene- 
 ral, he did not exercise it. | 
 
 Mr. Justice Osporne. If it be the privilege of the. 
 Attorney General, as contradistinguished from the 
 right of ordinary prosecutors, we might expect fur- 
 ther authority to establish it. : 
 
 Lord Chief Jusrice. The notion which I have al- 
 ways entertained, is, that the Attorney General had: 
 the right of reply ; but my brethren require stronger. 
 authority, than the cases, which have been mentioned. 
 
 Mr. Justice Daty. Ido not insist upon that. 
 
 Mr. Souiciror GENERAL. My Lords, we rely upon 
 the case of Byrne, in 1798, and the ease of Lmmet, 
 in 1803, both occurring at Special Commissions in this, 
 country, as deciding the right in favour of the reply. 
 
 Mr. Draiscott. My Lords, the cases, in which the, 
 privilege has been allowed to any other counsel, than 
 the Attorney General himself, were cases of High 
 Treason, in which two counsel are assigned to the pri- 
 soner—one to state his case, and the other to speak to 
 the evidence. If they choose, they may waive the 
 right, but that cannot preclude the Counsel for the 
 Crown from areply. But the rule is different: in the 
 case of Misdemeanor. The Counsel for the Traverser. 
 has no right to speak to the evidence, after the evi- 
 dence on both sides is closed. But if he gives no evi. 
 dence on his part, the Counsel for the Crown cannot 
 reply. : GANS ; 
 Mr. Burron. Perhaps, the Attorney General will 
 render further discussion unnecessary, by waiving his_ 
 claim.. : 
 
 Mr. ArrorNry GeneraL. I cannot waive any pri- 
 vilege on the part of the Crown. But have no objec- 
 tion, that the rule, in such cases, be adhered to, what- 
 ever it is. a] WikAc 
 
 Mr. Justice Osporne. As to the distinction between 
 the cases*of Treason’and Misdemeanor, I do not see 
 how it applies in this respect .—if there be any, it is 
 a fortiori in favour of reply. ! 
 
 Mr. Avrornney GENERAL. My Lord, so far as re- 
 spects the case of Misdemeanor, the right of reply 
 
i230 
 
 was decided in, the case of the, King a, Rhabb, and 
 
 others. It was. a prosecution against the. Proprietors, 
 
 of a paper, called Fhe Northern Star, for a lthel, and 
 the Counsel for the Crown were admitted to xreply,, 
 though no evidence, was aiven for, the defendants. 
 
 “Mr. Bettew. My Lords, although the. Camrt will 
 not acknowledge any distinction, between the cases of 
 High Freason and Misdemeanor, yet we hope it. will 
 admit the. similarity between. cases, all of which. are 
 are Misdemeanors. En Lord dAbingdon’s case, Lord 
 
 Kenyon doubted the right, but said, that if it, did ex-. 
 
 ist, he thought it bad in practice, and when be. was. 
 Attorney General he néver exercised it... La answer to 
 this, the case of Ame? is relied upon, but that was 
 a case of High Treason—the former was a case of 
 Afisdemeanor, and then comes the, subsequent ease of 
 the Aing a. Cor, which was also a Afisdeimcaner. 
 The result then is, that onmed’s ¢ase, which, is con- 
 sidered of sufficient weight to outbalance that of Lord. 
 Abingdon, is over-ruled by the Amg a. Cox, whichis, 
 not only a later case, but was the case of a ,Diesde- 
 greeanor, like the present—and so was Lord Aéingdon’s. 
 Fhen taking precedent against precedent, the rule is, 
 that the latter precedent shall prevail. But, my Lards, 
 rive me teave to add, a word, as to the justice of the 
 
 F. 
 
 case. What, is it, that the Crown, is, here contending 
 
 for? The’ Attorney, General opened the casey apa 
 
 must be supposed to have stated all that was necessary 
 to support the prosecution. Mr. Burnowns, tor the 
 Fravertser, observed upon the case stated, and the evi- 
 dence in support of ir, so far as it went. ..No, ew, evi- 
 dence was produced, and thus far, both peniies ane, 
 equal, What then, let me repeat—is it--that, the, 
 Gentiemen ,. concerned for the, Crown, ase. contending 
 fore Why, for ap, advantage ONGC. £6 sR aa Ghat 
 having two speeches against cng. Is this, acese, Un 
 which sach an'advantage should be sought for? As if 
 the Crown. could not venture to meet, the, subjects, in. 
 the present prosecution, upon Sapah APR ans ul 
 te not be wiser, to adopt Lord Kenyons, practice & 
 
 And at all events, in a doubtful matter, vo let the last 
 
 authority decide, | os 
 “Lord, Chief Justice. I Bave always considered, it, to, 
 be the right of the Attorney General, in every case, 
 where he is concerned in his official character, to have 
 
237 
 
 the right of reply. Ido not think the observations of 
 Lord Kenyon binding i in the present instance—although 
 no evidence has been given, on hehalf of the Traver- 
 ser, abundant obser vations kate been made, both upon 
 the evidence, and the Jaw of the case, and under such 
 circumstances, where the gaht of the Crown is ins 
 sisted a I think, it shauld be granted, 
 
 Mr. Justice Dax. It has been alw ays. considered, as 
 a sort of muximethat the Attorney Gcueral has ‘the 
 reply, and IT should have no doubt at all, respecting 
 the right, but for Lord Abingdon’s case, which alone 
 shakes ny opinion * — 
 
 Mr. Burron. My Lords, we submit to the decision 
 of the Coure, that the Attorney General has the right 
 of reply. But another question arises, whether that 
 rigat°can be extended, beyond’ the Attorney General 
 himselé 2 | 
 
 Mr. Justice Oszorne. JY have no doubt of that. 
 
 Me... Justice bay. “There is no’ doubt at all, but’ 
 that the vight may be exercised By himself, or by the 
 Solicitor Geiierdl, 
 
 Mr. Burton. My Lords, you have decided two 
 points against us; that the Attorney General has the 
 right of | reply, and that he may transfer it, We sub. 
 mit to these decisioas—bat there is, still, amether ques~ 
 question, which we hope the Court, will net decide 
 against uys—that is, whether another Counsel may be 
 heard for the Traverser. 
 
 Mr. ATTORNEY GENERAL. My Lords, so far froma 
 objecting, I suggested, long since, my acquiescence. 
 
 Lord Chief FusTice: In a case of this kind, there 
 can be no objection on the part of the Court, to heax 
 the defendant’s ‘counsel, : 
 
 Me. Goon. will now submit’ to the good | SENSE ,, 
 and temper, and: feeling of the Counsel for the Crown, 
 whether they: ought not to be satisfied, witlr the privi- 
 lege being conceded: to. them, and: let. the'case go to 
 the Jury, vpon-the abservations. from) the Courts 
 This: was, net acceded to. 
 
 * Mn the.case of, the King a, Whila;, before Lord Elenborough, Ist Nov: 
 1812. The Defendant, who wastried for alibel, stated his own case, and, 
 saidihe did not intendsta: call:any witness, that the Attorney’ General might 
 “not have the benefit of a reply. But Lord Elienboroughs told him, vhate 
 the Attorney General would have that benefit, whether the Defendant 
 
 called any witness. or not, if the Attorney General chose’ to exercise his 
 right, 
 
238 . 
 MR.GOOLD. 
 
 Ay Lords, and Gentlemen of the Jury.-1 have the 
 
 the lionor to appear, as Counsel for the ‘Traverser, 
 
 Doctor Sheridan, and in that capacity, | am about to: 
 
 address you, on the Inost portant subject, that has 
 ever attracted jadicial notice, or rivetted public at- 
 tention. In the sincerity of my heart, I say it, I 
 
 wish this great cause had at this moment EBay amore 
 
 suitable Mivente: I wish, I could flatter myself, that 
 
 any thing I have to offer, could merit a favorable re-. - 
 
 ception. _[ can entertain no, such notion, after the 
 splendid exhibition, we have just now witnessed ;— 
 an exhibition, distinguished by the highest powers of 
 intellect, ‘and the purest sentiments: of public virtue. 
 
 It is but a few moments, since our understandings” 
 
 have been won, and our senses charmed by a speech, 
 which will stand recorded as a monument of forensic 
 
 excellence ; ; persuading by its eloquence, convincing © 
 by its logic, fascinating by its beauty, and dazzling | 
 
 by its splendor, How can I hope to engage the ear, 
 even of indulgent attention, when my best efforts can 
 only serve, as a foil, by which contrasted superiority 
 
 shines more bright, absorbing and engrossing the- 
 
 eS ee 
 powers, and principles of illumination. [tis hazard- 
 ous to,touch a picture finished by the master hand of 
 
 genius; it is doubly so, when every inch of the can- 
 
 vass is glowing with the beauty of a fresh perform- 
 auce. The jealous’ pretensions of the Counsel for 
 
 the Crown have produced an arrangement, sanc-. 
 tioned only by the indulgence and courtesy of the: 
 
 Court; an arrangement, as novel in principle, as it 
 
 is Inconvenient in practice ; an arrangement by which, |: 
 without the interposition. Fy. a single. witness, the in-’ 
 tervention of any evidence, or the addition. of any 
 
 topick, I am unexpectedly called upon to speak to this 
 
 great question. I shail not. shrink from ‘the’ call,—— 
 
 however painful, and irksome to myself ; and while I 
 despair of the powezs of the advocate, ‘Jet it not be 
 imagined, I feel any alarm for the cause. It is the 
 
 cause of truth, of justice, and of freedom! It Ss oieia 
 
 * 
 
 Feats 
 
239 
 
 (as it were).for itself.. It is oftentimes the pride and 
 privilege of truth, to be its cwn  sublimest,—most 
 successful advocate ;—and surely, no serious apprehen- 
 
 sions can be entertained for the fate of a cause, on. 
 
 which so many wise men, so many’ good’ men—have 
 
 taken so deep an interest ; a cause, which the more it 
 is examined, and the eaete nearly it is surveyed, is 
 
 likely to enlist in its service every faculty of a well 
 reguvated understanding, and every sympatliy of a 
 
 feeling heart ;—a cause, ibtol has derived fresh vigor, 
 
 as well from thie hostility it has been poll aggte ee as 
 
 trom the mode’ of warfare, by which that hostilf ity | las. 
 
 been characterized. Is it not obvious to every marr 
 
 of the plainest understanding, that unexampled ar 
 rangement has been practised in the selection of the 
 jury? Does a FAIR case require such management aa 
 
 How comes it, that out of the thirty- ‘five. pers ons 
 who have appeared on the jury, twenty- -three should 
 have been challenged, without cause, by the Crown ? 
 
 Inthe twenty: three names is to be se een, as much intel-- 
 ligence, re espectability, jie) and integrity, as is to. 
 
 be f found in. this metropolis ;—men, known to their fel- 
 low citizens, men, in the daily habit of serving on 
 Special Juries,—men, whose recorded verdict would be 
 likely to inspire respect, and. give satisfaction—nine out 
 of ten of those very men, Pr otestants 5 ; men of no party 
 
 feclings, and of no party prejudices,—men never sus-" 
 pected of any bias, but in favor of justice.—Astonished | 
 at such a proceeding, we have asked each Oper, what. 
 motives could haye suggested,—what., principles. can: 
 
 justify it? In vain shall we lock for either the one, or 
 
 the other, amongst the fair and logitimate grounds, of. 
 
 human conduct; No—we Shall find the motive. and 
 the principle owing their birth to other far. different 
 causes—to a profane and interested expectation, that 
 out of the great pannel returned, a Jury might be 
 found, surrendering to prejudice, what was due to jus- 
 tice ; and satisfactory truth, upon the altar of bigotry 
 and intole pon the Jury, to be upon ‘their 
 
 uard against themselves ; I call upon them to bear in 
 mind the destination of their sacred dutics. Good 
 God! In what times are we living? Will posterity be 
 
 Are 
 
240 
 
 lieve, that on atrial of stich magnitude, and at a time, 
 when the rights of the people were sapposed to be un- 
 derstood and allowed, the privilege of the Crown, in chal- 
 Jenging the Jury, had been exercised, not on any avowed 
 principle of reason, but on a silent and sulien princi- 
 ple of arbitrary choice? I am not blaming the fair 
 
 exercise of the just rights of the Crown: Those very 
 rights exist for the benefit of the peoplé—-Nor am 1 
 
 anxious to canvass the weight of the reasons by which 
 the most respectable of our fellow citizens have, in the 
 face of the public, been deemed unfit to try so great a 
 
 ‘cause as this. But I am indignant, when I behold a 
 
 paid, and placed, and pensioncd minion of the Castle, 
 with his pen in one hand, and his list im the other, dic- 
 tating (as it were) who should be the jrrors tu try a 
 question, so vitally important to the great body of the 
 people’ I am indignant, when I behold one of that 
 - very grand jury, who have found those very bills, pro- 
 faning, by his officious mterference, the sacred temple of 
 justice, violating all decency and decorum, and in the 
 ‘true and genuine spirit of prejudiced partizanship, as- 
 sisting, yes openly, and shamelessly assisting, in the dis- 
 graceful work of tutored selection. Who, now, can 
 say that | was unwarranted in taking every practicable 
 objection toa grand jury, so constituted and orgatiized ? 
 Will you not agree with me, ‘that if in the outset, I had 
 reason to suspect; I have now reason to complain ?—~ 
 This is not declamation,—this is not the fruit of fancy 
 ot conjecture. It has passed in your presence, and 
 within your view. Yes; these two stipendaries of the 
 Crown, these pure and impartial magistrates and mem- 
 
 bers of justice have acted, as I have/describéd. © What ’ 
 
 revenge will you take on them? Let your verdict be 
 the record ef your honor, and their discomfiture and 
 
 sear 
 
 ord Chief Jusrics. Iam very sorry to interrupt 
 
 you : but Ido not see how you can’apply your obser- 
 
 vations, except to’ matter which appeared in the cause.» 
 
 What you are now adverting ‘to was not brought before 
 
 the Court. * 
 Mr. Goon. My Lord, it Oceurred i open Court. 
 
 SON ie 
 ) WS 
 
 }? 
 
241 
 
 Mr. Justice Day. . It, is much to be; lamented, that 
 some suggestion was not made to the Court, at the 
 time. We would have interfered to prevent any ims. 
 propriety. %.. 4 
 Mr. Mac. Natty, My Lords, Tapprized Mr, Linds, 
 say, at the very time, of his. fess 68:8 being .improper. 
 and indecorous, and.f asked him, bow he dated, after 
 having, as a Grand Juror, found the: bills against: the. 
 Traverser, come down to suggest challenges on behalf. 
 of the Crown. fi | 
 
 Mr, Gootp. My Lords, 1 hepe, Tamas little Cas | 
 pable, as any man, of intentionally deviating from the 
 strict line of, my. duty, I do conceive [ haye a:right to: 
 call the attention of the Jury to a transaction, that passed, 
 notoriously within, their view... If the Court are pleased 
 to stop me in what, I. conceive, the just exercise of my. 
 right, [shall sit Aut: and. let the Solicitor General 
 proceed, 
 
 _Lorp Cuter JusTICE. "You had better proceed, Mr. 
 Goold. . 
 
 Mr. Goo... thiols’ ay Bead. it w Fils eae anne: in~: 
 flammatory topicks are not fit for this place. It is:al-: 
 ways painfol (ona great- occasion: more especially). to 
 _ speak ef one’s self.. But I know the pains, that are al-. 
 ways taken by the underlings of power, to misconstrue, 
 and, to calumniate. .. The. same. falsehood and, fabricas: 
 tion, that-impute disloyalty. toa cause, is but too sure 
 to attribute inflammatory speeches to the advocate. I 
 had, hoped, that the. Court would not, by its interrup- 
 tion, have given any asylum. to siainweateds and uufound- 
 ed Senakian: I had hoped, that it bad not been fore: 
 gotten, that. when. the youth of, those countries were / 
 fascinated by doctrines of the French révolution, iL 
 endeavoured to, stop its contagion. Idid.so, ina way, 
 that if not useful to my country, was:at least: of walue 
 to myself, since it attracted. to me. the vatice’ of the 
 first of human beings, and procured for we the. friend. 
 ship. of the, most. spleadid. advocate. the cause of loy-. 
 alty ever recorded, or ever will record. . He too was 
 an Jrishman.—He is no more. But yet he lives.in the 
 heart of,evyery. man,..to. whom liw and liberty and 
 country are dear. Basdou, my Li tds, this digression. 
 
 Gentlemeu.—The indictine ent, now under your con- 
 
 OF | 
 
sideration, contains two counts. The first in substance 
 charges,. that in the month of Judy last, divers persons 
 assdmbled at Fushamble-str eet, with a view and luten- 
 tion of causing, and procuring the appointment of a 
 Committee of Roman Catholics, to exercise an autho- 
 rity io represent the Roman Catholic inhabitants of 
 Treland, under pretence of causing petitions to both 
 Houses of Parliament to be framed for the repeal of 
 the penal laws, and ‘that a resolution was then and there 
 entered into, for the formation and appointment of 
 such Committees, as is described in the indictment, 
 and that the travérser, in pursuance and furtherance of 
 such resolution, did, on the 31st of July last, assist in 
 the election of Mr. Thomas Kirwan, to be a represen- 
 tative for Mary’s parish in said Committee. The se- 
 cond count takes no notice. of the proceedings on the 
 ninth of July in Fishamble-street, and merely charges 
 the Traverser with. having, on the 31st of July last, 
 assisted in the electien of Mr. Thomas Kirwan, as a 
 representative for St. Mary’s parish, in a general 
 committee thereafter to be holden. The relies 
 has been found, as you have already heard, upon an 
 act of Parliament passed in the year 1793, and com- 
 aronly called the Convention Act. In: order to sustain 
 this indictment we, as Counsel for Doctor Sheridan, 
 say, that the Catholic committee should, by evideuce, 
 appear to be an. assembly, elected, appointed, or as- 
 suming or exercising a right to represent the Roman 
 Catholics of Ireland, under pretence, avd not for the 
 purpose, of framing a petition to both Houses of Par- 
 lrament 3; while on the other hand, the Attorney General 
 has broadly, and boldly laid. it Hom: that any assembly, 
 whether greaz or small, elected, or ‘appointed to repre- 
 sent, or exercising a tight to represent, any portion of 
 the inhabitants, whether great or small, for the par- 
 pose of Ja MINe a petition to Parliament ts an unlawful 
 assembly. “The position, he pledged himself, he would 
 demonstrate; sure Tam, that a proposition so gene- 
 ral, und unqualified should be demonstrated, before it 
 sl) ould be adopted. 
 ‘Phe Attorney General has not adverted to any dis- 
 tinction between general representation, and restricted 
 delegautror.. Te has assumed, that the Catholic com- 
 
 ‘ 
 
PAS bane 
 
 mittee, resolyed upon by the resolution of the 9th July, 
 was, and ‘isa. Representative Assembly.—Now, the first 
 observation that strikes an impartial] observer, upon 
 this part of the case, is, that no evidence whatsoever 
 has been given of such committee having ever met, or 
 having done any act whatsoever, from which a repre- 
 sentative character might be fairly, inferred, It is not 
 too much, therefore, to say, that the illegality of such 
 an assembly can, in; the present instance, be collected 
 only from the. terms -of the, resolution, by which such 
 cominittee was originally, elected or appointed. —'The 
 Attorney General has drawn. his inference from the 
 terms of the resolution, that the Catholic committee ts 
 a representative assembly’ ;,and finding the word ‘* pRE- 
 TENCE” in tlie statute, he, says, that pretence in the 
 Statute means assumption, or claim, or in other words, 
 eans purpose. Liais construction bi the word pretence, 
 the Attorney. Gongfalisays, is manifest from. the object 
 the act had in, view ;,,from the. saving, or exception 
 contained in the first section of the act, from,the ab- 
 surdities, which he, contends, would fellow. from any 
 other construction of the word, and lastly. from, ana- 
 logous’ construction, or, analogous cases. — The object 
 of. the. act, he contends, is to prevent an legal assem- 
 bly from meeting ; and this object, he says, js apparent 
 from several clauses ip it, by one of which, the magistrates 
 are directed to disperse such a meeting, and by the 
 other, any person giving votice of the _election, or 
 assistingtherein, is dé¢ lared to be euilty of a high misde- 
 ineanor.—It is triumphantly asserted, that those two 
 clauses would lead to. manifest ‘absurdlity.y if the. word 
 pretence, meant any thing, else than.purpose:—Are the 
 magistrates to wait. until some act, be, done, by which 
 the, character of illegality, could be inferred f—-Can no 
 bill of indictment be preferred against an elector, until 
 the assembly comport itself, in such a way, as to de- 
 monstrate, that petition was a false. pr etence, and nota 
 real purpose ?—With respect to the first,of these clauses, 
 and the observations made upon it, I say,,that there is 
 no hardship, nor inconvemence, in obliving’ magisterial 
 atithority oto jact upon magisterial kesponsibility. Ita 
 magistrate receive information, that. a, certain assembly 
 was, elected, as a pure representative, assembly, “for 
 alteration of matters established by law, or that it 
 
244 
 
 - 7 
 
 ASS? umed a pure representative character, purporting fo 
 bind» by its own aets; aid ‘in its own name, those by 
 whom it was elected) or constituted Tsay, in such a 
 dase, the magistrate.1s not only warranted, ‘bat bound to 
 disperse sich a meeting; before’ it’ does‘any act what. 
 ever, and shrely the tepade of its incorporation, as’ well 
 the professed objects of its meeting’ are evidence’ of MeL 
 gality in its formation; or original’ constituion, and every 
 act it does'is clearly’ ebidened'alsd of ite false. pretence; 
 or covered purpose. Bat if this argument of allegedin= 
 conveniénce isto: have'the weight sought for, on the cont 
 struction of an act of parliament, ‘must be ‘recolleéted) 
 that éach party is equally entitled to the benefit of such 
 an ‘argument.—Will afy! man - gravely contend, ' that 
 jnednvenience, and serious'and dreadful inconvenience, 
 may vot result from an: unlirhited authority; and direes 
 sit to disperse evety meeting: constituted by delega, 
 ton,’ whether creat ‘or small, however. peaceable * its 
 intention,’ and lawful its object or ‘purpose? Treally 
 think, “it only requires a‘ there statement "of ‘the propo- 
 sition, to interest’ in’ our behalf, a ‘people, thinking, 
 sober, moral, just, ‘and’ feclineg, 0 for: sucli is the ‘British 
 people. —What will they” isa'y ,° Sweet they ‘héar it ‘eon- 
 tended for, that ‘every ‘committée, consisting only of a 
 stall ‘namber ‘of ‘persons for the %sale atid. exclusive 
 objéct of petitioning parliament, is ab legal assembly; 
 liablé’to'be dispersed, its‘tnembers liable to ar restation, 
 and the electors, who constitatedit, guilty of a high nviss 
 demeanor i2-Then' every committee’ appointed | to’ pre~ 
 pare a petition té/ parliament, forethe sole ‘purpose’ of 
 preventing 'ér ‘repealing’ a revenue law, is, according 
 to the dreaument contended forj! an’ unlawful assembly. 
 That such committees are ‘not unlawful assemblies in 
 Great Britatn'is notdrious, lt i$ every day’s Ss practice, to 
 elect and ‘appoint such committees: The: Ess Water esta 
 of conimetce and ‘trade require it.) ° 
 ~ With respect to the‘second ‘clause,' and’ thie’ observe 
 ‘tions ‘upon it, it isto ‘be ‘observed, that ‘on this very 
 ‘section 6 clause is the T ravérsoy dnceted | jhe’ is ‘ach 
 used,’ atthe’ bar of a’ cdutt ‘of exinainiad justice, for 
 having assisted in ‘the election’ of ani iilegal assembly; 
 and before that |as ssembly has! either’ met ‘or otherwise 
 ‘peted The ‘counsel: for the ‘Crown’contend, that this 
 
 ‘indictment’ ‘{s nidimtainabley before the asseribly mee, 
 ; Ue dak Yu VYSUeiGUhieo SVi9rat Ee ae of P24 
 
 abet, 
 oF a 
 
J 
 
 B15 
 ; ? 
 
 tion, it takes a character of legislation, which is in- 
 ‘compatible with our laws—and any man, who votes for 
 - ‘a member of such an assembly, is guilty of a misde~ 
 meanor; and such an assembly never can have petition 
 ‘as a purpose, but as a false pretence. | 
 _ According to my view, ‘therefore, ‘every. assembly 
 elected, constituted or appointed, for alteration of 
 “matters established by law, that is in, itself’ a pure re- 
 presentative body, binding by its acts, and an its own 
 fiame, unamenable to the constituent body, is an un- 
 lawful assembly in its very formation: and again, J 
 take it, that’any, assembly, although not representative, 
 ‘but merely delegated for a particular purpose, may 
 be'an illegal assembly by its acts, and cannot screen 
 itself from the penalties of illegality, by a false pretence,; 
 eyery act of such an, assembiy is evidence, to go to a 
 jury, that petitioning was a pretence and not a purpose. 
 Now with respect to the saying or exception contained 
 jn the first clause, it is relied’on, ‘that unless pretence 
 in the statute means purpose, this saving or exception 
 was unnecessary ; In order to build the argument, , the 
 “Arrorney Gexrear has given a. grammatical con- 
 sttuction, which, in my judgment, “is neither called 
 for, por wattanted. "The" words “ard, that all << as. 
 ét semblies, &e. &e. undet’ pretence, of petitioning. for 
 or in any other ipanher procuring an: alteration of 
 * tatters established by law,” &c..‘“'save and. except 
 ‘the knights, citizens, and burgesses,” &c.. &c. are 
 unlawful ‘assemblies, © The . ditorney General, says 
 ‘that the sentences should run thus, vez. 6 Under 
 ‘pretence of pétitioning for,” or ‘* weder pretence 
 *©of ‘in any Other mariner procuring an. altera- 
 tion,” &ce, &¢. by this construction, it “is, that, the 
 Attorney, General Int¥oduces the words ‘ under, pre- 
 tence of” before ‘the last branch, of the proposition, 
 ‘and contends, that. to make. sense. of that. proposition, 
 
PL ae 7 
 
 thosé words “* tinder pretsnce of” should be under- 
 LLadél ;-~and then, he says, that such being: the case, 
 the conséquence would be, that the word ‘* pretence,” 
 according to our construction, would mean false pre- 
 fence in one sentence, while in the. very next, if would 
 mean, real -purpose—This argnment., would. deserve - 
 weight, if the construction rélied on were absolutely ne- 
 cessary to the understanding ‘of the statute. —But 
 ‘surély, any one who re ads the act with attention, will 
 nnn nediately see, that it is not necessary to introduce 
 ‘the words “ under pretence of, ” before the words in 
 
 any other manner procuring, * &c.—On the contrary, - 
 
 it seems, that the obvious constract ion, by which the 
 saving: or exception is introduced, is this—‘*‘ all as- 
 somblies,  &c.  &e. procuring an, i cdeeeay tt “in ghat- 
 ‘ters established by law, either under pretence. of 
 
 ‘petitioning, or in any other manner,”—are unlawful . 
 
 assemblies. “There are many other ways of * prow 
 
 curing alteration in matters established,” ee than. by 
 petition or pretence of petition.—The - assumption 
 or exercise of legislative functions, the open menace, . 
 ---the undisguised - defiance: therefore to withdraw 
 the House “of Commons from the scope. of ‘the 
 enactment, it is to be considered, whether the words 
 were large enough to embrace it ss —it was purely | a 
 representative body, it did really procure alteration in 
 matters established by law, and coming within the very 
 terms of the enactment, it was deemed expedient to ex- 
 cept it by express words :—but see what the force of this 
 
 exception is, on the other side of the question ; 3 the act, 
 
 In express terms, points to assemblies purely represza- 
 
 tative, its words are sufficient to embrace the House of 
 Commons; it contains an express saving, or exception . 
 for it, and- dots, therefore furnish an argument, that 
 gencral represent vion, and not restricted delegation, 
 was the mischief which it Intended to guard against, - 
 The Attorney General also contends for his. construc- 
 tion of the word pretence, upon the authority of ana- 
 logous interpretation, and for this purpose, he has cited, 
 and relied on three acts of Parliament: $2 Hen.8. in 
 England ; 13 Ca. 2. and 26 Geo., 3d. The 32 Hen. 8. 
 is an act against maintenance, and how. the words 
 *« pretensed titles”? in that .statute can illustrate | the 
 words ** under pretence” in the 32 Geo. 3d.; I own, 
 
, RAT 
 
 1 cannot conceive: according to the literal interpreta- 
 tion of the words in 32 Hen. 8. those words mean 
 claim, whether true or false :—pretextionis claim, true 
 
 or false, and the act would be clearly absurd and in- 
 operative, if while providing against the sale. of titles, 
 unless clothed with some aah of possession, it held 
 out the power of trying in a criminal court, all the 
 intricacies and nicities of civil titles. As to the 26 Geo. 3. 
 which adds to the word “pretence” also the word 
 <¢ false,” 1 own 1 cannot see any great accession which 
 the Attorney General’s argument derives from this sta- 
 tute.—The statute says, if any person * by false pre- 
 tences obtain, &c.” now, this word pretence stands 
 alone in the séntence; it is not coupled with, or re- 
 ferable to any particular act or acts to be done, or per- 
 formed, as in the case now before us. If the word 
 False were not added, the clause would stand thus: if 
 any person, by pretence or pretences, obtain money, 
 &e. ;—such a clause. at first sight would suggest some 
 insufficiency, particularly in the criminal law:—but if 
 the statute had said, that if any person under ‘* pre- 
 tence” of doing some particular act ‘* obtain money,” 
 &c. I think, it would strike any! lawyer, that the inser- 
 tion of the word false, in such a case, would not be 
 considered necessary to constitute the crime; at all 
 events, the addition of the word may well be consi- 
 dered, as one of those instances, in which the Legis- 
 lature has thought fit to proceed upon a principle of 
 abundant caution, leaviug nothing to caprice, or 
 conjecture, in the administration ‘of criminal justice. 
 The 13 Ca. 2. c. 5. is certainly more analogous to the 
 present statute, than either of the other two acts, on 
 which I have observed, and of course deserves more 
 
 serious consideration: ‘there is, however, in iny judg-' 
 ment, sufficient ground to contend, that the word _ 
 pretence in the statute 13 Ca. 2. means false pretence, — 
 
 ‘To the delivery of a petition, it is not necessary, that 
 there should be a greater number than is sufficient to 
 carry it, and deliver it ; any excess above that number, 
 therefore, being unnecessary, is of course, not a real 
 
 purpose; buat a false pretence; and our argument, so. 
 
 far from being weakened, gains additional force from: 
 
 att instance, in which the werd ‘ pretence” alone, must. 
 
 Pu 
 
248 
 
 froin tire very nature of the case, mean 1 falbe diets 
 and not real” purty rpose. | 
 
 If in the. Obes rvations [ have made upon the atau 
 ments of the Alforney General, TY have repeated: what 
 has been ‘already said':—If I have’ adlverted "to topics, 
 _ which have been mitch more ably stated, and enforced, 
 - T trust, I shailstand, in some manner, excused’ by ie 
 importance of the subject, and the value of the stake, ~ 
 which seems in issue between the parties:—that stake, 
 in nay judgment, is nothing more than the RIGHT TO 
 
 PETITION ;—a right common’ to Protestant, or to. 
 
 Catholic;—a right, which becomes exposed to anni- . 
 hilation, the moment it is stripped of any of those _ 
 safeguards, by which it has been for so many centuries _ 
 surrounded, and protected :—the right, I say, is in the 
 greatest danger, when a proviso, inserted for its pro- 
 tection, is openly. stated, as a neutral clause, intro=., 
 
 duced to gratify an unmeaning feeling of popularity ;—_ 
 
 when it is further stated, that such a clause loses ‘all 
 its weight from the Grey! in which it finds its way into 
 the ‘statute-—I hope, I shall’ stand further excused, 
 when I call to the recollection of the Court, hase 
 fundamental’ rules of construction, which. have inva- . 
 riably prevailed, and without which, law would be a . 
 symptom ‘of caprice, and not of principles. In the — 
 consideration of all statutes, the first and most impor-_, 
 tant rule is, to ‘give such a construction, as is best — 
 calculated to repress the mischief, and advance. the 
 remedy. 2dly, ‘Lhe statute must be taken all together, 
 and. nothing shall be deemed surplusage, which can, 
 have an efficient sensible meaning,. And 3dly, in the. 
 criminal code of this, country, nothing is better settled .. 
 than this, that no construction shall be made, whereby. 
 a crime is spelled out by conjectur e, and intendment, i 
 or by any thing short of plain, positive words, 
 In order to ascertain the mischief, as well as the 
 remedy, one is Teac led to consider the nature , 
 of the times,' in which the act passed, as well as the 
 particular occasion, awhich. gave birth to the act: 
 ‘This statute was introduced into the Honse of Com- 
 mons, in the year 1793. It was presented at a mo- 
 ment, when French principles had made great pro- 
 
 gress, and given dangerous impressions to the minds 
 
249 
 
 of the people; at a season, when those very prin- 
 ciples had assumed an air of so much body and con- 
 sistency, as to alarm all moderate men, for the fate 
 of our common country, and our common constitu- 
 tion ;—when the Press openly proclaimed scant be aio 
 incompetence, and incorrigibility in our systein ; 
 when Pazne was regarded as a Missionary, and the 
 Age of Reason was ‘read as a creed; ; when, under the 
 pretence of Parliamentary Reform, parliamentary ani= 
 hilation was intended; when, in the spirit of professed 
 imitation, a National Assembly had been actually 
 convoked—an assembly, without cover or disguise, 
 assuming the riglits,; and executing the powers of 
 legislation,—an assembly, in its very organization, 
 threatening to supercede both Houses of Parliament 
 in their privileges and in their functions—such were 
 the times, and such was the occasion, that produced 
 the Act of 1793, called the Convention Act—an Act, 
 which in its genuine spirit, and its letter, bears every 
 mark, and feature of a Declaratory Law. It makes 
 use of the word “ Declare,” and in speaking of those 
 assemblies against which it points, it’ uses the word 
 “ are”—illegal assemblies. There was at the time 
 a pre-existing evil—there was a Representatiwe As- 
 sembly, that, under a pretence, was masking a pur- 
 pose. The principles of the commou law were suf- 
 ficient to put down the mischief in ordinary times ; 
 but it has been frequently deemed expedient to enact 
 (as it were) a legislative recognition of the coinmon 
 law. In this very year 1793, did the Catholic Com- 
 mittee meet, and meet almost daily ; ; it was’very nu- 
 merous ; it had a chairman; its proceedings were not 
 a secret; they were publishéd’ i in all the daily prints. 
 Some of its leading members had constant interviews 
 and conimunications, not only with individunl Mem- 
 bers of Parliament, but with the Executive Govern- 
 ment itself. | 
 
 Mr. Richard Rurke, as the professed agent of the ° 
 Catholic Body, attended tlie meetings of the Com- 
 mittee—But it, was a Committee of “restricted dele- 
 
 21 
 
250 
 
 gation, for the sole purpose of petitioning, and not 
 a representative body, under pretence of petitioning. 
 That very Committe has been, ‘at intervals, sitting 
 ever since, and long before; and yet, until this 
 day, we fis not find any charge made against it. 
 Since the year 1793, a peri od of near nineteen years, 
 we do not find a sngie oil of indictment, either 
 formed or preferred, upon this Convention act; and 
 during that period, this very Catholic Gomiminee 
 was in the habit of seeing, in. the seat of power, 
 men characterized by an almost. instinctive hatred 
 _of the Catholic cause, and, peculiarly. distinguished 
 by the violence of their counsels, the. illiberaiity. of 
 their principles, and the inveteracy of their habits--- 
 Yet, against this same Catholic Committee, sitting, 
 and acting in the full giaré ofday, did no proceeding 
 emanate, even from such men. Until the close of 
 the year 1811, was the Convention Act suffered to 
 remain in drowsy obscurity, and then brought forth, 
 in order to maaspery's public. feeling—to “invade a 
 public right, and to inculpate an entire population. 
 
 *. Let us now. look to the proviso, which bas been 
 treated with so much levity by his.Majesty’s ATToR- 
 NEY. GENERAL. 
 
 efficient sensible, meaning. At the common law, did 
 there, exist aright te petition by delegation ?—MLost 
 | assuredly there. did; ; and does now exist, openly, and 
 -unreseryedly in Great Britain... 'This Act of Parlia~ 
 ment does not touch, affect to touch, by any of its 
 _provisious, the abstract right to petition ; but by some 
 construction, it, might atlect a pre-existing right to 
 petition by delegation. What are the words of this 
 clause: “ Provided. that nothing herein contained 
 “shall be CONSTRUED to prevent, or impede the un- 
 ‘« doubted right to petition” Can any thing be stronger 
 than the words used? You shall not even construe the 
 act, so as to prevent or impede, the right to peti- 
 _uon. This clause legalizes facilities, and denounces 
 
 I beg leave to say, that you, my 
 Lords, have no. right, to. reject the proviso, if, in 
 looking into the entire act, you. can give. to it an. 
 
251 
 
 ete "s 
 ‘preventions‘and impediments. The only right which 
 the act’ could, ‘by any ihtendment,’ to act, is a right 
 “to petition by ‘delegation. diye that right be touched, 
 ‘impediment’ is pro tanto. created ; but a right is ex- 
 pressly saved, and that ‘right ext only be a right to 
 petition by delegation. 
 
 I take leave, again, to say, that ‘this act of 1793 
 is a declaratory law. If such be the case, it con- 
 stitutes no crime, that was not known to the common — 
 Jaw. “But suppose, ‘for ‘argument’ sake, that it pur- 
 ported to enact a new crime—Well then? I boldly 
 ‘affirm, that it 1s a profanation of the British law; and 
 ‘a libel of the British constitution, to assert, that con- 
 jecture niay“make culprits, and that crimes may be 
 got at through ‘the “avenues of forced construction, 
 and: ingenious interpretation.’ The criminal’ codé of 
 every country should beat’ those bréad and glating 
 ‘characters, ‘that every man who ‘runs ‘may read, 
 “Abbvée‘all, never‘let it bé ‘heard in a court of Brith 
 justiee, and’ in ‘the hearing’ of British’ jury, that’a 
 ‘proceeding, which violates ‘no moral duty, ‘and ‘hurts 
 ‘no’ inbral* instinct,~—a proceeding, suggested by the 
 ‘purest principles, ‘and Avetified by the purest’ mo- 
 ‘tives, shall, ‘by the. torture of ‘construction, be the 
 foundation’ of crime, and the source of UhiSHHeNE: 
 “Upon suclia theme as this, T can’ call upon ‘the 
 sympathies, as the legitimate Go Biltdries of the under- 
 ‘standing. T implore the Jury, upon afeeling of common 
 inverse, as well as common justice, to pause, before 
 they’ ene a verdict, which may ‘ffelst the grandest and 
 proudest of our rights and privileges. That neht, by 
 ‘which the people of a free country, “without paraphrasis 
 ‘subterfuge, or evasions, ‘state a grievance ‘and implore 
 a remedy, a right, not the less haughty, because its 
 posture is hunible': a right, dreaded’ by despotism, 
 and courted by freedom ; a right, in its exercise un- 
 ‘encumbered by forms,’ and unattended with danger 5 
 a right forced from reluctant power, by valour “and 
 by sactifice---maintained and cherished in the very 
 bosom of liberty---a right, ‘congenial to the feelings 
 
252 
 
 of every human being, whatever. his colour, or his 
 -ereed--+a right interwoven with the elements of our 
 nature, and the principles of our faith---a right, which 
 rescues hope from.the regions of despair, ‘andh sheds 
 a glimmer upon. the dark recesses of prostrate ca- 
 lamity, and the gloomy dungeon of prostrate crime. 
 To inyade; this; right; to impede its, exercise, or cir 
 cumscribe its. operation, is to turn traitors against 
 ourselves; to wage impious war against the first prin- 
 ciples. of divinity, and to, arraign. the ordonances, af 
 the Great God himself. 
 
 Gentlemen of the Jury, there. is. something pecu- 
 liarly. novel in. the conduct of this;cause. . Ii a com- 
 mittee delegated. for the sole, purpose. of: petitioning, 
 be-an allegal assembly ; ; why have not the, Counsel. for 
 the, Crown. so. put the charge. upow the -face of the 
 record? Has the Attorney. General himself been 
 satisfied with treasing the guestion.in such a.way? 
 the mere act of delegation for the: purpose,of peti- 
 tioning be criminal, what more;was necessary than to 
 make “the simple. statement, and prove the simple 
 fact? Recollect, the speech ‘of the Right Honourable 
 Gentleman ;, recollect that at the very moment he was 
 insisting, that, the, word ‘ pretence” in the statute 
 meant purpose, he, himself was using. the. identical 
 self same word, in,his speech, in a sense) diametrically 
 Opp Paites Recollect, the,.whole. scope. and. tenor 
 of that speech, by which this great cause was first 
 presented, to your notice. In every line, of. itis con- 
 tained an..insinuatien, deep) and grievous insinuation 
 against the Catholic ommittee, "Phat speech, from 
 first to last, breathes. suspicion of, the. motives, and-ob- 
 jee ts of that. committee. Jf delegation for, peti- 
 tioning be unlawfal, why haye wwe beard so.much. of 
 révolutionar y doctrine, treasonable practices, seclitious 
 and inflammatory speeches ! If delegation for the 
 purpose of* petitioning, be, unlawful, why, have. we 
 heard so much of. Protestant, moderation, and: Catholie 
 turbulence; why so much of. Pratestant, generosity, 
 and Catholic ingratitude? If delegation for. petition- 
 ing be illegal, why have we heard it “distinctly charged 
 
 ’ : p ee 
 
253 
 
 upon that commitee, that petitioning was a false pre- 
 tence and not a real purpose Why have we heard ig - 
 repeated over and over again, that any man who could 
 read and. write, could frame the Catholic petition? 
 Such assertions stated from ‘such bigh authority can. 
 not be regarded as the giddy redundancies of exube- 
 rant declamation. If they were necessary to have 
 been stated, they ought to have been proved. Has a 
 scintitla_of evidence been offered, to shew the charac- 
 ter of that, Committee such as. it has been repre- 
 sented? On thejcontrary, from every thing that has 
 happened here. (and.give me leave to say from) every 
 thing which. could, fairly have appeard. elsewhere) the 
 sole and exclusive object of that committee was peti- 
 tion. Is: the Attorney.General really in, earnest, when 
 he says, .that.any nian, who can read and write, could 
 frame the Catholic petition? Let me tell the Right 
 Honouable Gentleman, that to instruct the aiind; of 
 habitual ignorance, to, correct the mind of habitual 
 error, to. reinstate) reason, on the throne usurped by 
 folly, to-enrich liberality: by the sacrifice of habivaa! 
 prejudice,—is not the work of a single day, nor of a 
 single individual. When was it ever heard of, that 
 selfish bigotry. yielded to the first suggestion of rear 
 son, or was illuminated by the first flashes of convic- 
 tion? When .was.it. ever heard of, that the strong 
 holds of intolerance were taken by a first) assault? are 
 we living in. a country, and, in anage, in which the 
 bad passions of our nature have Jost all their influ- 
 ence? . In which talent and integrity are the only pass 
 ports, to power? Has there been no instance, in which 
 moderate capacity has been. raised fo immoderate 
 greatness upon. the shoulders of religious persecution ? 
 Hopeless would be the fate of this ¢ great cause, Hf it 
 - stood upon the inactive dua cllonoes of its own in- 
 trinsic merit. To insure it ultimate success, there 
 nust be the co-operation of many minds, and many 
 hangs, and many hearts. It, is;the character of this 
 great cause, that disaster begets effort, and defeat: is 
 the parent. of resource. Any man who can read and | 
 write might frame,the Catholic: Petition!!!" No,/I - 
 
 : t 
 
fear this great cause will not succeed, until the voice 
 of pidieid as reiison, ‘and of inl CPA eloquence 
 erow into the full swell of national chorus: | 
 Gentlemen of ‘the Jury, it has’ been more than in- 
 sinuated,’ that the’ creat ‘body of the people feel no m- 
 terest in the success of a pétition, which throws open 
 only to’a few the avenves to political power and conse- 
 quence. However such a ‘topic might suit another 
 ‘meridian, it certainly was ‘not fit for this place.’ When 
 I look around me and behold such a body of talent 
 among the Catholic youth, when -I° contemplate ge- 
 pias ieessle drooping under the: weight of | those. dis- 
 ‘oraceful ‘fetters, which have ‘chained ” her within the 
 narrow periphery of'al contracted circle 2~When I 
 consider, by what base means; and ‘for: what base ends, 
 her —pinions’ ‘have ‘beei? “elippeds! and “her flights 
  impeded,—whew I consider all this,’ say, the penal 
 code is a systéin’ of impious ‘ieapacities. ae 
 call toomind bow!often oenias’ born th’ peasants: Hut ha 
 graced these vows} and ‘ornainented that' bench; “when 
 I bring to remembrance the various instances, tn oaHah 
 the very lowest of the people shave’ been waftae on the 
 pinions of native talentto’ the bichest summits of bu- 
 man shentiresss” Tsay Catholic emancipation ’ is an 
 object of’ aniversal ‘interest and ‘universal anxiety. 
 _ Yes, the Cathulic peasant has a right to the ‘conifort 
 and consolation. even-of fancied preatness.' He has 
 a right to the sweet hope, that one day'or other his 
 son, or some of his posterity may make a’ name, and 
 create afamily. He has: aright to feel) that canines 
 and virtue can lift poverty and “obseurity ee the hichede 
 pinacles of British greatness ; and that man is- er 
 illustrious, “who” at the. end: of bis career, leaves’ the 
 distance between his lowly origin, and his high” ascent, 
 one continued track of splendid glory and ‘llumina-- 
 tion. . 
 ‘Tf, Gentlemen of the Jury, we have had reason to be 
 Gibisitiitieed with the construction of an act of parlia- 
 ment, which goes to contract the powers, and impede 
 the means of petitioning ; a construction, which would 
 include limited delegation for the purpose of petitioning, 
 within the words of an act, which makes representation 
 
ee 
 
 255 
 
 under pretence of petitioning Beal, we have no. less 
 reason to complain of certain charges made upon the 
 Catholic body, and unsupported by a scintilla of evi- 
 
 ‘dence. The ‘Attorney General has endeavoured to im- 
 
 press on your minds, that treason and sedition exist in 
 the Catholic body. 
 
 Mr. Attorney Generar. I beg Mr. Gooxn’s 
 pardon ; I entreat he will be so good, as not to misre- 
 present me.. What I said as to ‘treason. and sedition, I 
 did not apply to the Catholic body, I never meant to 
 impute treason and sedition to the Catholic body. 
 
 Mr. Gooup. I certainly must pb misunderstood 
 my Right Hon. Friend, and I am sure, I have done 
 him a eae in thus giving him an op ere of ex+ 
 planation. But after all, where is this treason f endises 
 dition? . It has been tod miich the order of the day, to 
 cry down, our national loyalty. It has been the privilege 
 of every, mercenary ruffian to degrade the character of 
 Ireland. W here, I say, is this treason ant sedition? 
 It is for ever quiy ering on the livid Li ns of ad isgusting 
 animal, who owes his existence to the Pcs of bad times 
 —a, creature sprung from the womb of public disorder, 
 nursed upon the bosom of. public calamity, and ripened | 
 into maturity by the tainted air of public disgrace a 
 creature, who is something when the country is nothing; 
 —who is nothing, when the country is something. Ne 
 Alas! how melancholy, that ‘much of our national! cha- 
 racter should be taken from hired defamers, ana their 
 miscreant misrepresentation. I am glad, I have given 
 
 the Attorney General the opportunity of doing justice 
 
 ‘to the Catholic body. Their loyalty stands in no-need 
 
 ,of my feeble attestation. It has been proved by a cen- 
 
 tury of suffering and resignation. It has stood the test 
 
 - of many a severe trial. -It has been marked. by modest 
 
 meekness, and peaceable demeanor. It has been cha- 
 racterized by uo presumptions unless to approach with 
 humble petition the foot of the throne, or the vestibule 
 of parliament, be presumption, 
 
 _ Gentlemen of the Jury, [have endeavour i to shew 
 you, that upon the true construction of. the statute, the 
 Catholic Committee is not such.an assembly, as the- ‘act 
 declares illegal—that it is not rep7 bd i iy ac that 
 petitioning is nota pretence. But supposing our view of 
 
 the statute erroncous 5 yet you have no evidence on a which 
 
256 
 
 to convict the Traverser. I beseech you to banish from 
 your minds, the recollection of any calumny by which 
 the bad part of the Press of this city may have influenced 
 you. Be unprejudiced ;—come to the consideration of 
 this question, with minds like blank paper, spotless and 
 uncontaminated. 
 
 With respect to the evidence of Mr. Huddleston— 
 What has he said? He has given you an account of a 
 meeting, and his observations upon it—but Doctor 
 Sheridan wes not there. What becomes then of all that 
 detail of iets, which happened in his absence? Is he 
 to be bound by resolutions, to which he never assented ? 
 Ts he to-be bound not only by the resolutions of an 
 assembly, which he never attended ; but by the resolu- 
 tions springing from the memory of a man, who lost his 
 
 notes ? By the memorandums of transactions, which | 
 
 the witness never locked for and therefore could not find? 
 Upon the testimony of a man, who refreshes his me- 
 mory of a transaction in July, by aletter written in the 
 March preceding? God forbid, that honor and berg 
 should be sacrificed by such testimony as this. 
 
 With respect to the evidence of the two first wits 
 nesses, namely Sheppard and M* Donough, 1 have very 
 
 little to offer. Hf they are entitled to er redit, it appears, ' 
 
 that the meeting on the 31st of July at. Liffey-street, 
 was most respectably attended, and most decorously 
 condicted, It appears, that petitioning was the object, 
 and tae only o object. Butone of the witnesses mentioned 
 something of the word represent-andon being closely in- 
 terrogated, he could not swear whether it was present, or 
 repr esent. No doubt you have observed, with what anxiety 
 
 the Court, on this day, examined one of the witnesses. 
 
 The Court was enabled to see those informations, on 
 which the indictment is framed—and, I think, from 
 the tenor of the examination, it pretty clearly appears, 
 that the informations, and the evidence are not consistent. 
 
 jut there is one remarkable circumstance, as it regards 
 the evidence m this case-—It appears, that: the three 
 witnesses took notes of what passed at the time—lIt 
 appears that two of those witnesses were expressly: sent, 
 for the purpose of being witnesses for this  trial---And 
 yet, strange to say, not a single memorandum hes been 
 produced—They have all been lost, although they were 
 carefully locked up! Ali this is for you—Have you a 
 
aie” Me ect 
 - ’ 
 
 257 
 
 doubt, that there has been tutoring in this case? I mean, 
 no insinuation against the eminent. counsel, who have 
 conducted this cause. They are incapable of any indi- 
 rect proceeding—The underlings of power have been 
 mixing themselves in this business—In the anticipated . 
 conviction of Doctor Sheridan, they already see the fruit 
 of interested zeal, and unprincipled interference—They 
 fancy, they can see promotion in the success of cunning, 
 and the triumph of artifice, ‘Truth may be sometimes 
 jostled by such pitiful adversaries—But in a great cause, 
 on a great public occasion—it cannot be vanquished 
 by them.— Magna est veritas et prevalebit DF i 
 In instituting this prosecution,. the administration of 
 the day have undertaken a gratuitous crusade against the 
 feelings of the Country— Without anjadequate object, or 
 end, it has created much risque—It has been stated, that 
 the Catholic Committee. was the focus of inflammatory 
 debates, and seditious speeches—If such was. the case, 
 ive me leave to ask, was not the strong arm of the 
 ae sufficient to punish individual delinquency, without 
 apnihilating public right?—If in the exercise of the most 
 valuable of our privileges, we find some errors, let it be 
 recollected, that no human institution is perfect—no 
 good without its attendant evil—such errors are peculi- 
 
 _ arly inseparable from a free constitution.— They are 
 
 excrescences which grow on the smooth surface of 
 beauty—Cursed be the hand, that would attempt 
 to remove them, at the expence of life itself. 
 
 I again assert it, the administration have undertaken 
 A gratuitous crusade against the feelings of our people. 
 They have also cgi upon the Court, and upon 
 You, a most painful duty. They insist upon the court 
 construing pretence, purpose, and call upon you, to 
 convict a worthy man, upon such a construction. They 
 have done all this, without any apparent necessity to 
 Warrant so monstrous a proceeding. Wisdom, as well 
 as justice would have suggested a far other, and dif- 
 ferent mode of conduct. ‘The minister might have 
 gone to. Parliament, with the statute in one hand, 
 and his impeachment of the Catholic committee ia 
 the other. He might have had a legislative 
 reading and construction of the word pretence; If 
 
 his argument was strong ie for the purpose. H¢ 
 
i 258: 
 
 . by end > - ’ La 
 might also have found an opposition sturdy and victo- 
 riais. He might have learned, that his: construction 
 could not be palatable to a people, jealous of their 
 rights—a_ people of plain, unsophisticated understaad- 
 ing--a people, who might feel disgusted, and alarmed 
 at a proceeding, which creates a crime through the 
 medium of false logic, and forced interpretation —— 
 This proceeding may be the parent of much trouble. 
 If an orderly. and peaceable mode of petition, be pre- 
 vented, the Catholics must resort to other metbods— 
 agcregate. meetings, adjourned aggregate meetings, 
 In every district, and in every county in Jredand. De- 
 pend upon it, the Catholics will never give up the ab- 
 stract right to petition. They have great objects to 
 gain—to gain by petition—by universal petition. Re- 
 collect one memorable occasion, in which the child 
 and champion -of ascendancy, reviled their petition, 
 because it appeared to be the petition of only nineteen 
 counties. In every point of view, this proceding seems 
 as little sanctioned by policy as by justice. 
 
 Gentlemen of the Jury, the entire of this proceeding 
 _has been characterized by peculiar wantonness and in- 
 
 felicity. The administration of the day have shewn but | 
 little judgment in the selection of their victims. They — 
 
 have brought to the bar of a court of criminal justice, 
 one of the most reputable of our fellow-citizens ; a 
 ‘man of letters, aman of studious habits, and peaceful 
 pursuits; 2 man admired for his talents, and beloved 
 for his goodness, a man whose very name is propitious 
 to the cause of liberty. Yes;—He does bear a name, 
 that is Jreland’s boast, and Zreland’s pride; a name 
 connected with the legitimate. vanities of our country ; 
 a name that uninfluenced by power; unseduced by 
 false popularity ; unenriched by corruption; unsubdued 
 by poverty, and unappalled by misfortune, bas kept 
 the even and steady. tenor of its way, and has been at 
 once, the best prop of the Monarch’s just prerogative, 
 and the invincible champion of the rights and liberties of 
 the people. Yes—he does bear a name, that brings to 
 mind overy thing that is sound in principle, transcendant 
 in genius, and facinating infancy. . Look, Gentlemen, 
 
 at that respectable, and venerable man—behold the. 
 sweet, composure, that sits on bis brow, at a moment, 
 
 ¥ 
 
259 
 
 when the «throb of public anxtety beats so quick and 
 
 .so high. Upon the charg and upon’ the evidence con- 
 
 vict such a man, if you can. Deprive him of liberty, 
 and his ten children of bread—his body you may con- 
 fine—and in that confinement, he can appeal from your 
 sentence. He can arraign it before the Majestic trie 
 bunal of a clear conscience, Yes—there is an heroic 
 innocence, as well as heroic valour, that courts cap- 
 tivity ; smiles at torture—that raises man above the 
 weakness of his nature, and rhakes a feeble frame the 
 habitation of a godlike soul. That lifts prostrate worth 
 beyond the reach of sublunary terror. That blunts the 
 sharp-edge of tyranny, and disarins the bloody hard of 
 oppression ;—That Eheeresiconsleettiniaes and ele- 
 vates the intarderated victim : ; and converts the g@loo- 
 my walls of a dungeon into jhe splendid theatre ar his 
 glory. 
 
 Gentlemen of the Jury, never have we witnessed a 
 cause so important—so interesting. It assuredly 1 is the 
 
 ‘only cause within my memory, in which a Jury has 
 
 been so identified with the Constitution, as to make its 
 recorded verdict a source of public felicity, or of pub- 
 lic misfortune. Every thing contributes to heigh ten 
 
 the grandeur and solemnity ‘of the scene. Man y people 
 
 think, that the success of the Catholic question, is more 
 or Fa connected with the proceedings of this day. 
 Sure Iam, that this cause touches nearly the grandest 
 of our rights and privilezes—the cause derives no small 
 interest from the character of the ‘suitors. “khe admi- 
 nistration of the day, ob the one hand, the people of 
 
 Jreland.on the other, When Ireflect upon the events, 
 
 that have passed, and. are passing on the ‘great theatre 
 of the world; when | call to mind the fatal and disas- 
 trous consequences, that have followed from a paraded 
 
 contempt of public’ opinion. When I contemplate 
 those awful vicissitudes, which have annihilated, in a 
 
 moment, the most ancient and venerable syst ms.— 
 When [ look up at that frightfil eminence, from 
 ean. an ambitious and udprincipled Usurper is 
 
 nabled to survey the almost prostrate liberties of the 
 Warld: from which he can in safery Bag with fero- 
 cious delight on those spiencid ruins, which he scat- 
 tered around him, the monuments (as it were) of so 
 
 much greatness, and so much folly. When, above all, 
 
260 
 
 I behold the venerable fabric of: the British Constitu- 
 tion, standing graceful.and erect, aiid such a pile of 
 desolation, 1 cannot help feeling the most. trembling 
 _anxiety, lest the rude, assaults of power, om ihe one 
 hand, or of licentiousness,; on the other, should en- 
 danger thé only remaining asylum for exiled virtne, 
 and exiled freedom. Let us not deceive onrselves++ 
 we are threatened by a no comimon adversary—if we 
 be. wise, we may defy him. Avyainst such. an antago+ 
 nist, and against such fearful odds, the mec!anism of 
 defence is every thing short.ot defeat—against such a 
 man, you must enlist the heart, as well us ite: hand of 
 Ireland. Yes—you must employ tha» spirit of war, 
 which is engendered by a defence of equal liberties and 
 equal rights.. You must draw forth that spring and 
 energy of the soul, which isthe exclusive, growth: of 
 of freedom’s soil—which braces the boyish arm of 
 beardiess youth, and renovates the decrepitude of old 
 age—which furnishes the ready, weapons of invincible 
 defence ;—which makes every imeh) of your mvaded 
 territory a scene of valor, or a theatre of exploit— 
 which makes every hillock a rampart—every rustic an 
 engineer—every ditch a fortification—and every 
 peasant a herc—-which rushes into the field, dauntless 
 
 of danger and fearless of numbers; which marches. to. 
 
 no step, but. the step of conquest ;—and hears no 
 
 shouts, but the shouts of victory. Yes, let us have a 
 
 system, which animates alike bigh and low=-rieh and 
 poor—strong and feeble—old and young, in the de- 
 fence of our common country and common. constitu- 
 tution, Let the Cathohe have what by nature he is 
 entitled unto. Let the right to petition be free and 
 unmpeded. Let the trial by jury be regarded, as the 
 sanctuary of our laws and liberties. The tyrant may 
 frown—despotism may threaten, while the united and 
 
 cordial sons of freedom can smile with all. the compo- 
 
 _ sure of perfect security, and certain success. 
 
261 
 
 MR. SOLICITOR GENERAL. 
 
 Gentlemen of thé Jury, I offer myself to your atten- 
 tion, with very little iopes of engaging it. You have 
 itii#eseet such displays of a splendid eloquence—-so 
 
 many enthusiastic appeals have been made to your 
 passions ;—you have been dazzled by light, and so 
 
 heated by fire, that D must, at least, wait until the 
 temperature of your minds shall have cboled—T must 
 - allow you to recover from the intoxication of your 
 feelings, or I must despair of making any impression 
 by an addiess, in which, it is my determination, to 
 confine’ myself exclusively to the only two topicks, 
 which seem to have been forgotten thts day ;—at 
 least they seem to have been thought of comparative 
 insignificance-—-the law and the facts of the case now 
 before. you. 
 
 Gentlemen, it is not my inclination, or my | daty, 
 and ¥ disclaim the right, to address you upon any of 
 those popular topicks, Which have been so laboriously, 
 and passionately urged by the Traverser’s counsei—I 
 recollect the place in which I stand—! know, that I am 
 ina ey of justice—and not in a house of parlia- 
 ment. -I shall not stop to enquire, bow far those Gen- 
 tlemen may have abused that latitude of discussion, 
 which is permitted to those, who defend an accused 
 man. I wish not to abridge the fair exercise of such 
 a privilege—although, I may be allowed to observe, 
 
 te) 
 ‘that it has been indulged in this day, without stint, and 
 
 ¢atried to its utmost limits. Be that as it ma y, a colder 
 
 duty devolves upon me—I prosecute the man, whom 
 they defend, and God forbid, that in doing so, I 
 should appeal to any thing, bat your understandings ; : 
 or, if 1 tad the talent of perverting your minds, 
 through the medium of your prejudices—tinat I should 
 avail myself of such a power, in the psosecution of 
 the individual, now upon trial, or any other man. 
 You will give me credit, Gentlemen, for the wish, to 
 discharge. my duty, and-not to transgyess it; and | am 
 ot willing to impute to youa different intention. I 
 7M sure, Liat it is unnecessary to remind you, that 
 You are not impanneled to decide upon those great 
 political, and constitutional Haestione; which “have 
 
 the 
 
' 2 vy ’ Pity! 
 
 ' "969 
 
 been so much agitated this day—that you are not /e- 
 £islaio rs—but jurors—and that your saths bind vou to 
 a tair verdict, between the Crown and the Traverser. 
 But it has become very necessary to obseyve pon the 
 confusion of jerisdiction, which has been contended 
 for this day; and the very unfair attempts, which 
 have been fades to induce you, to usurp— the autho- 
 rity of the Court. Gentlemen, your exclusive pro- 
 vince is to decide upon the facts, in controversy be- 
 
 ’ 
 
 tween the partes, instead of which, you have been 
 clamorous ly catled upon to interpret the daws of the 
 
 jand. ‘Phe mummery of sending up into a jury-box a 
 a dozen ccpies of an act of Parliament, has been re- 
 sorted to, and you have been called upon to decide 
 upon its pelicy, as if you were senators, and to con- 
 Struc its enactments, as if you were lawyers. You 
 have been told, that its provisions are difficult of inter- 
 pretation—that learned counsel have differed upon 
 them; and it has been objected to the Convention 
 law, that it requires professional astuteness to expound 
 it :—and yet the same advocates call cape twelve re- 
 spectable citizens, to resolve, upon their oaths, all 
 those intricate and entangled questions,. as if your 
 habits, or vour education, or your studies, enabled 
 you to decide them. If this be fair, and justifiable 3 in 
 the Counsel for the "Traverser, it would_ not, at least, 
 be fair in me; and I protest solemnly, that if I knew a 
 
 popular topic, upon which I could mislead you upon~ 
 
 the law, 1 would not urge it to you—and i assure 
 you, that in what T shall address to the Court, upon 
 the ‘Convention Act, I shall think myself precluded 
 from directing a single Labs aie or a aE look 
 to the jury-box. : 
 
 I ihabe ae Gentlemen, that we live in extraordinary 
 times; | Ree that Ale Mas: and wicked men have 
 tuken the most unjustifiable means to pre occupy, and 
 mislead the public mind—I know, that the press has 
 everiiowed with the most audacious, and libellous 
 publications, presumptuously dictating to the Judges 
 of tbe land, “in the discharge of their duty, and ineul- 
 cating upon Juries, a contempt for the authority of 
 
 the Court t3——T know, that county meetings have been’ 
 
 convened ah ‘oughout the island, tiat. Country Gen- 
 tlemen might enlig hten the courts of justice, by their 
 
263 
 
 readings upon acts of Parliament ;—and I know, that 
 the Keeper of the Great Seal has been taught the Jaw 
 by a Justice of the Peace. | : 
 
 But, Gentlemen, I trust in God, that those mon- 
 strous, and alarming novelties may never find their 
 way within the walls of a court. They well become 
 
 the agitators, and the demagogues out of doors, who_ 
 
 without such practices, could not inflame, or mislead 
 the public mind; but I trust, that the temple of jus- 
 tice may never be prophaned by doctrines so, offensive 
 to the principles of the Constitution. That Constitu- 
 tion defines with rigid exactness, the respective duties 
 of the Bench, and_ the Jury-box. Every constitu- 
 tional mind is appalled by the alarm which is excited, 
 by confounding the functions of those contiguous tri- 
 bunals. Every one would be shocked by the notion, 
 that the Judge should interfere with the Jury’s right 
 to decide upon the fact, and yet it is not more revolt- 
 
 ing to constitutional maxims, than that the Jury should 
 
 arrogate to themselves to pronounce upon the few.— 
 They are, equally, encroachments, and invasious 
 upon our pure administration. of public justice, and 
 ever they be permitted, woe to the Constitution, ¢ 
 could not survive such an assault. ) 
 What is there in the Constitution, the subject of. so 
 much eulogy and declamation this day, so valuable, as 
 the administration of justice? We love the Constitu- 
 
 tion, because it gives us, for the preservation of publie - 
 peace, and the adjustment of civil rights—a perfect 
 
 administration of justice, unknown to other countries, 
 which, in its turn, supports, maiptains, and pre- 
 serves that Constitution. Woe then to that Constita- 
 tion, (1 borrow the strong exclamations of Mr. Goo.p) 
 
 woeto it, when its first principle is invaded, and its | 
 
 corner stove subverted. _[ make every allowance for 
 the advocate ;—I know how much his duty to his 
 
 client demands from bim.—He may stand excused - 
 
 for calling upon you, for this preposterous usurpation of 
 the Court’s authority, but you could not stand justified, 
 
 if you obeyed the call. if this were a civil action, if a 
 
 question of property depended between two. parties, 
 Sata the counsel call upon you to break away from 
 the Court, and construe a limitatidn ina deed, or a 
 devise in a will,—should you not laugh at them? 
 
 Sy 
 
964 
 
 What then is the difference? If you wonld not have 
 aright, in the one case, how can you in the other, 
 or does a trial of this nature warrant your assumption of 
 
 power, because, not the property of your fellow citizens, 
 
 but the peace of your country isat stake? Ifany man,— 
 not an advocate,—gaye you such advice, would you 
 
 consider him as a. friend;—and when an advocate . 
 
 gives it,—though you may forgive him for his zeal,— 
 will you act upon his counsel? And. yet, Gentlemen, 
 
 if this be justifiable, where is the confusion. to stop?—. 
 
 Why have they not called. upon the judges to decide 
 
 upon the weight of the evidence, and the credit: of the 
 
 witnesses? Why have they stopped. half way, in. the 
 discharge of their duty; and when they threw the statute 
 into your bor, why did they not send up the zssue to the 
 Bench? ! 
 
 I own, that Lam warm upon the subject, and anxious 
 to establish this distinction. No man, attached to the 
 constitution or acquainted with the laws of his country, 
 can be indifferent upon such a .topick;—but. I am 
 
 more—I am interested init... My Right Hon. and learn-. 
 ed Friend, and myself;—as the sworn advisers of the 
 
 Crown in matters of law,—have given our opinions upon 
 the construction of this statute, when called upon te do 
 so;—and if we |havye been wrong, in that opinion, we 
 are. deeply responsible.-Of my own opinion, I think 
 with unaffected, humility ; when it is supported by his 
 I fell an honest.confidence, that it is not mistaken ;° but 
 
 even that confidence, I feel, not without deference to. 
 
 those learned and respectable persons, who. may have 
 
 ‘seen the matter, in another point of view. 1 expect 
 
 from. them. the same ‘charity, and the samé¢. fairness. 
 They will not impute to us more, than. error of judg- 
 
 ment; and if we are mistaken, let us stand rebuked,—_ 
 though not abashed, because no one will ascribe more. 
 than mistake to.us. Let usstand rebuked I say, but by, 
 whom? Who is to judge between us, and those, who. 
 
 differ from us?——Are we, and our characters, at. the 
 
 mercy of a Jury, usurping the interpretation of the . 
 
 ‘law ?——-Are we to be judged by the, presumptuous non- 
 Sense of Newspaper criticism? Is our knowledge of the 
 laws of our country to be appreciated by. the ravings 
 of Country Gentlemen, declaiming upon acts ef Parlia- 
 
- 265 
 
 ment?—God forbid!—- We appeal from such arrogatedy 
 and audacious tribunals, to you, my Lords, the sworn’ 
 Judges of the Land.-You are to interpret this Act of 
 Parliament, upon your oaths, and your high responsibi-. 
 lities. By you, ‘let us be judged,-—we disclaim all other 
 authority—if you say, that we have been right, we have 
 done our duty to our Sovereign, and our Country:—If 
 we have erred, 1 repeat it again, we are deeply answer- 
 able. Liars iY : 
 
 ~ Do decide this question, and te have the law ascertain-~ 
 ed, and the public: mind quieted upen this important 
 subject, have those prosecutions been inetitated:—not 
 forthe purpose, as has. been ‘unjustifiably asserted ,—of 
 persecuting Doctor Sheridan, or of subjecting any honest 
 man to punishment.. Doctor’ Sheridan has been warmly 
 panegyrized, and though I have not the honour of know- 
 ing him, I doubt, not, that he deserves the eulogies, 
 which, in atrial, of this nature, have been ‘so unneces- 
 sarily, heaped upon him. I will go further; and ‘say, 
 that I doubt not, but that he conceives himself to have 
 acted justifiably, and violated the laws of his Country, 
 without any intention of doing so. I can well believe, 
 that he, and other worthy men, have acted under those 
 mistaken impressions, which the misrepresentations of 
 the Convention Act have suggested to so many ;—but it 
 is not the less true, that, if he has violated that law, he 
 must be convicted. No man can be so weak or malignant, 
 as seriously to impute-to Government the wish, to inflict 
 upon him, those miserable sufferings, which have been 
 anticipated, and deplored with so much misplaced 
 pathos—example, and not punishment, is cur object, 
 Ifhe be innocent, in point of fact, and has-been falsely 
 aceused ; nay, if a reasonable doubt can be entertaing 
 of his guilt, or if you shall hear from the Court, that, 
 in¥point ofthe law, he has not violated the statute, I 
 trust, that youmay acquit him. None ef his advocates, 
 or friends will. rejoice, in such an event, more than 
 myself—but if you should ecquit him, let your acquittal 
 rest upon some such solid principles, as [have suggested, | 
 which: will justify you to your Country, your consciences, 
 and your Ged. i only deprecate, that most formidable. 
 of evils,—charaeteristic of bad times,—a ~ popular” 
 verdict, which, has been. clamorously . demanded. 
 
 pit Sade AY des 
 
 eA. 
 
266 
 
 from you this. day,—a verdict—which confounds every 
 
 principle dear to public justice, and exhibits a Jury ™ 
 
 the disgraceful act of trampling on the laws, which. 
 
 ~ 
 
 they are sworn to administer. re $3 
 
 Let me now, call your attention to those facts, upom 
 which you are bound to decide: Doctor Sheridan Is 
 charged with having participated in an election at Li/- 
 
 fey street Chapel, onthe 3ist of July, of five members, 
 
 to represent the Catholics in a Committee, appointed on, 
 
 the 9th of July, at an Aggregate mecting, on tlie pre- 
 tence of petitioning Parliament, for a repeal of the 
 penal laws. In order to establish that fact, two wit- 
 “nesses have been produced, to prove what occured at the 
 meeting in Léfey-strcet Chapel, who had been sent 
 
 there, for the purpose of observing what should passs— ") 
 
 If they have sworn truly, they have proved the charge, 
 in the most distinct and satisiactory manner, and upon 
 comparing their testimony with that of Mr. Huddileston, 
 you wi!l observe, that the number cof parochial delegates, 
 whom they represent to have been elected on the 31st, 
 exactly corresponds with the number, which he states to 
 have been announced on the 9th of July. Those per- 
 sons have been cross-examined, with the utmost severity, 
 and have been treated, as if their story had been, from 
 the beginning to the end, a shameful fabrication ; every 
 artifice has been practiced to embarrass, or confound 
 them—they have been exposed to that unequal contest, 
 in which persons of their rank, or indeed of any rank 
 are exposed, when opposed to a professional antagonist. 
 The vulgar cry of spy, and informer has been halloed 
 
 against them ;—and any man, who heard the cross-exami~ 
 
 ‘nation, would believe, that the Counsel had been ine ~ 
 
 structed to deny the existence of any meeting at A2fey- 
 street Chapel, upon that day. But, Gentlemen, no wit- 
 nesses have been produced to impeach their moral cha- 
 racter, or contradict their testimony ; they swore, that 
 Mr. Kirwan and Dr. Burke,and many more.persons, now 
 in this Court, were present, and partook im the election. 
 If their story were a fabrication, why not produce those 
 Gentlemen to contradict it ? Why not prove, by them, 
 > that they were not present at any such meeting, or that 
 
 if they were, Doctor Sheridan was not? I need not pur- 
 
 sue this argument further—the Counsel, who was ine 
 structed to controvert the fact, has saved me the trouble 
 
ee 267, 
 
 he asked those witnesses, whether the resolutions which 
 Dr. Sheridan put, at that meeting, were not reduced to 
 writing, and actually put his briei into their hands, dall- 
 ing on “them to read the resolutions, which really passed. 
 Well then, we have got so far, as that there was such a 
 meeting 5 ; that Dr. Sheridan presided at it, and what 
 remains? Why, a question, upon the accuracy of their 
 recollection, as to the substance of the resolutions, Gen- 
 tlemen, unimpeached men have given you their oaths 
 upon that fact, and who has contradicted them? Did you 
 not, yesterday, | hear the whole bar of the. Traverser’s 
 Counsel exclaim in chorus, that they had 500 witnesses 
 to contradict them, and that the resolutions, were not as 
 stated. What. has become of the 500? Not one of them 
 has been produced >—Mr Kirwan is by my side; Doctor 
 Burke is ‘in my eye ,—they were here yesterday—surely, 
 if they had been produced, and had stated, . upon their 
 respectable characters, that the Crown’s witnesses. had 
 been mistaken ;—if the original. of the Ni eat git brief, 
 containing the genuine resolutions, had been. exhibi ted, 
 and demonstrated the mistake } surely au would not 
 ave been left in your present astiaiek sere but no such. 
 taht is afforded to you. ‘Witnesses in court, who could 
 contradict ours, are witheld---the’ written document. in 
 their hands is suppressed ; anc you are called upon rashily 
 .to disbelieve, what they w ill net controy ert ;---to'linpute, 
 by your verdict, perjury to. the witnesses for the Crown, 
 and to declare upon your oaths, thet you do not belicve, 
 that which they will not deny. Gentlemen, Iam ata 
 Lone in discharging this duty, to discover, what I am to 
 reply to---one “Counsel asserts his. client S innocence, in 
 point. of Sac t---the other glories, in his crime in point of 
 faw-—niiy, the one half of each Counsel’s speech is an 
 answer to the other: they alternate oly rail against the wit- 
 nesses, or declaim ii favour of the offence, What has 
 been their conduct, as to Mr. Huddleston, --the remaining 
 witness?’ What has been left unsiid, or unattempted, an 
 his ¢ross-examination? “Two hours of pr eclous, ‘ond i itTe- 
 coverable time have been: consumed, in attemp! ting to 
 discredit a witness, who has only proved the pr ocecditivs 
 of the Agaroyate Meeting, of the 9th of duly, at w hick 
 Lord Fingail’ presided.” No. subornelunisereant, who 
 ev er attex upted to take awiy ai innocent man’s life, was 
 ever treated with amore, wind riiy-+-ne. » advgcate, retained 
 
os ea 
 
 268 
 
 for a felon, at the Oli Bailey, ever plunged 1 iore des- 
 -perately through a cross-examunation, trembling for the. 
 wretch, whose only defence was, the hope “of Gon- 
 founding his prosecutor, or supporting bis adibi, ‘The 
 man’s fi lings were agonized—he was stretched on a 
 rack and tortured—his private life anatomized, whis 
 most secret sentiments scrutinized—he was called upon, 
 
 to swear to bis religious opinions, and even in this, 
 
 Court, public disgust was clamorously excited, by ex- 
 hibiting bim, as a recreant. from the religion of his 
 ancestors—bis birth, his connexions, his country, his, 
 faith, his morals, his, circumstances, all ransacked—all 
 
 exposed. Ile was asked was he not a Deist, was he 
 not. an Atheist, had he not been a Catholic, was he 
 
 not a Protestant, bad he not been an Officer, was he 
 not a Reporter. ‘for. the News-papers, was he not any 
 Linglishman—nay, to crown, the climax was he not a 
 Cambridgeshire. man, bad he not taken notes, and lost, 
 his memory, had he not wished for an employ ment, 
 and lost his conscience. What would any stranger, 
 who came into this Court have supposed, who had 
 looked upon the vietim. on the table, and heard, and, 
 seen the Counsel. at the Bar? Would he not have 
 imagined, that the most. shameful fabricator of the 
 nyost impudent lie, was undergoing well deserved chas-. 
 tisement for his falsehood ? What did the counsel him- 
 self say to him?_ Sir, 1 apprise you that 1 am sbaking 
 your credit.. Gentlemen, why so shake his credit? Te 
 -required not, the storm, of Mr. Gootp’s eloquence ta 
 subvert ita breath from Lord. Frncal would have 
 dissipated it. That Noble Personage sat: under your 
 box at the mement, and sits. there now—why did Not, 
 why does he not. come forward and assert, either that 
 such a meeting did not exist, or that he did. not preside 
 in it, or that no such resolutions, were passed. Hig 
 cath, Ushould not require ; were he of his honor, know- 
 ing, as I do, his high reputation for public, and fo 
 private worth, to have so declared, [. protest for one, 
 that | should abandon, so ‘much of this prosecution, as 
 depended upon any assertion, which he should so con- 
 tradict, I see other. noble atid honorable men about 
 _mte a alleged by Huddleston to, have. been present 
 
 on that occasion. Why-have none of them come for- 
 ward? How do they, and my Lord Fincat reconcils 
 
 An , ie, 
 MS 
 
269 
 
 it to tite feelings, to sit br, and bear it asserted that 
 the witvess has sworn falsely, in charging them with 
 having assisted at the meeting of the 9th of July? 
 “Will they say, that they were not at such meeting, or 
 will they hae understood, that tliey , and their friends 
 strugele not for justification, bat impunity ?). Is. it the 
 fact of the assembly that is controverted? 1 have not 
 a right to appeal to public notoriety—I must observe 
 upon evidence merely—but IT may observe ‘also, upon 
 the want of it, and [ ask again, is that fact denied, 
 why. not produce those persons most capable of contra. 
 dicting it? I'ask, into. what has shrunk the pompous 
 triumph of the defence? I ask, what. bas become of 
 the ‘reiterated assertions, within and without this 
 Court, of the legality of the delegation? It' is re- 
 duced to a miserable denidl of the “fact, without ‘the 
 produc ion of a witness fo support ite Perhaps it will 
 be said that. the, Taeeting was not, denied, but: that 
 ‘the purport of thé resolutions, has : been misrepre- 
 sented by Huddleston. With what ’ an argument has 
 Mr. Gooip furnished’ me upon this topick?. “Do you 
 remember the zeal! and the fire, I had almost said the 
 rage, with which, after Jabouring to shew, that’ there 
 Was no such assembly at’ all, he addressed’ ‘tho witness 
 aud said :—Sir, upon your oath, were not all the reso- 
 lutions passed that day, reduced to ‘writing, and have 
 they not been published. with Lord Fingall's signature im 
 every newspaper in-Dudblin? Such, was the question. 
 Gentlemen, for. Gad’s | sake, what. hes become of all 
 the newspapers in Dublin? — Why, bas 1 not one of them 
 ‘been produced? Wliy has not the secretary, who tran- 
 scribed the resolutions, and sent. them to the, press, 
 beer produced? I ask again, why the noble chair- 
 Anan, now sittin before me, and who: s signed them, 
 ‘has. not been. oneny ht The word tutored, has been 
 warmly, I shall not use é a stronger phrase, certainly with 
 ‘mo é warmth than decorum, applied to. the witnesses 
 fog Crown, [tis a’ vulgar and a silly insinuation, 
 which the counsel ‘has been ‘instructed to make. Who 
 is so absurd, as to. suppose, that those’ who carry on 
 these prosecutions, ‘would condescend to such practices? 
 I have no fear, in the face of our profession, and the. 
 ‘rhe public, to offer our characters, as a refutation of 
 the slander?» What ‘interest has any man in the con- 
 
270 
 
 viction of Doctor Sheridan, that he should.atchieve it 
 by subornation? What motive can be imputed to anv 
 person, acting for the Crown, but a wish to assert the 
 Jaw, and maintain the public peace? Those, who deal 
 in such insinuations, would do well to remeniber, their 
 nature of their own defence, consisting in clamorous 
 invective against the credit of witnesses, whom if false, 
 they could contradict, and will not, Let me not be 
 answered, by the ANS observation that Lord FincaLb 
 and _ his Feicnds: and Dr. Burke, and Mr. Kirwan, 
 could not be produced, becatse they could not be 
 asked a question, the answer to which, might crimi- 
 nate themselves. The, reply is obvious. If the wit- 
 nesses for the Crown bave ‘sworn falsely, those gen- 
 tlemen could not criminate’ themselves, their answers 
 Must acquit themselves, and Doctor Sheridan, and 
 it is only upon supposition, that the testimony for 
 the prosecution is true, that any danger could resule 
 from producing them. Suppose, that the witnesses 
 for the Crown. are base and infarnous, yet the most 
 base and infamous men may swear truth. Is there 
 no corroboration of their evidence, in the silence ‘of 
 those, who could contradict them? Why has no one 
 been produced to account for, or deny the coincidence 
 alleged by them, that on the 9th of July, Lord FinGaLL 
 announced a convention of a particular. kind, and that 
 in twenty-two days afterwards an, election takes place 
 in Liffey-street, returning for Marys parish, the exact 
 ‘same number of delegates, which had been - ‘required. 
 for every parish by Lord Fincai’s proclamation? 
 Why has the defence been confined to unfounded as~ 
 sertion, and popular clamour? | ask you again, what: 
 is the fair result of ‘such a defence? ‘I ask you, wilh 
 you venture upon such a defence,, to convict the Crow’ s 
 witnesses of perjury ?—I ask you, will you venture to 
 hang a doubt -upon their testimony, when, the Tra- 
 -verser’s counsel eculd have removed every donbt, avd. 
 refuse todo it? I tell you again, in) anticipation: of 
 what you shall hear eKint, the Bench, that if you. enter- 
 tain a doubt upon the-fact, you ‘ought to acquit but 
 pause,—pause awfully, before you entertain ited: must 
 be no light, capricious doubt; such as a man finds nat 
 2s a justification, but seeks for as an excuse... It mist’ 
 be such a doubt, as a sound understanding: can sug ggest ' 
 
 ‘ 
 
27) 
 
 to an honest heart.. If you can entertain such a doubty 
 acquit. I will not;use the confident language of the T'ra- 
 verser’s counsel]; I will not say, find such a verdict, if 
 you dare; but I say, find it, if you can. 
 
 My Lords, I turn from the Jury to the Bench,—to 
 address you, upon the law of the case. I have little more 
 to do, than to go over thesame ground, which the Attorney 
 General has trod before me, at the risque, common to all 
 who follow him, of effacing his impressions. Mr. Burrowes 
 has however, so strenuously, contended for a different con- 
 struction, that 1am bound to advert to his argument, and 
 if I can, refuteit. He has reasoned on three several propo-— 
 sitions: First, Taat the delegation, prohibited by the sta- 
 tute, is one for general representation, and not one for a 
 particular purpose. Secondly, ‘That the: word pretence, 
 means false pretence, and not real purpose, and that if 
 the object of the delegation be really to petition, no of- 
 fence is committed: and Thirdiy, that by the proviso in 
 the ‘statute, the right of petition, by the means of dele~ 
 gation is saved. I shall invert his order, and beginning 
 with his third proposition, which relies upon the proviso, 
 I shall only remark, that it must stand or fall with his 
 second, and abide its fate, because if it be admitted that 
 pretence means real purpose, then his construction of the 
 proviso, which he says saves something out of the en- 
 actment, becomes nugatory; for then the statute would 
 prohibit real petitioning by delegation, and the proviso 
 would save it, that is, the statute would do nothing. He 
 must, therefore shew that prefence means false pretence, 
 or the proviso is of no avail to him. In considering that 
 proposition, I shall not resort to poets or dictionaries for 
 the meaning of the word, but being in a court of law, 
 shall at once call your attention to an act of parliament, 
 enacted in Lngland, 13. Car..2. 5. “poo the same sub- 
 ject, and from which our Convention Act bas been copied, 
 with as little variation as the different circumstances of the 
 two countries weuld permit. The object of both was to 
 restrain the abuse of the right of petitioning. In ngland 
 the mischief to be prevented was the colleztion of mobs ; 
 in Zreland, the assembling of self-created parliaments and 
 conventions. Every one, who knows the history of the two 
 countries will admit that such were the respective evils at 
 the times those laws were enacted ; and it will be seen 
 thattbey were made in parz materia. Lhe word pretence 
 
272 
 
 is usedsin both, and if I can shew, thatin the Eaglish act, 
 
 it does not mcan false pretence, ‘bat: purpose and object, 
 whether real or fictitious, 1 certainly shall have gene sonic 
 
 Jength io ascertaining its signification in the Jrish statute, 
 
 which has been borrowed from the Znelish.. The title of 
 
 the Lnglish act is “ An act against tumult and disorders, 
 
 “ upon pretence of preparing or presenting public: peti- : 
 << tions or other addresses to his Majesty or the Parlia- 
 
 ‘¢ ment.” The title of the Jrzsh:act 1s ‘* an act to pre- 
 
 <¢ vent the election or appoimtment of unlawful assemblies , 
 
 <* under pretence of preparing public petitions, or othér 
 
 ‘¢ addresses to bis Majestv’ or the Parliament.” The . 
 preambles are almost (considering the difference of objects;) 
 thesame. Now the,very object of the Lnglish act isto li- 
 mit the number of persons who: shall. prepare or present 
 petitions to the King or Parliament, to twenty in the one 
 case, and ten in the other, and it has been’ the law: of 
 England from that day to this; that wo greater numbers 
 can) prepare or present » petitions however . real: Now, 
 in this act, the word pretence is used exactly as'in’ the 
 Trish ; no persons whatsoever shall ‘repair to the King 
 
 ‘* or Parliament, upon pretence of presenting or deli- 
 6 vering any petition, &e. &c. above ‘the number of, 
 ¢ 8rc. Kc. It-will remain,.then, for thosé who ‘can; to 
 shew, that in the two statutes: the same word is to ‘have 
 two different meanings. If it be asked, what meaning i8'to 
 
 be given to the proviso in the-/risf statute, the answer is 
 obvious... It is not-an' exception or saving our of the aét 
 
 of any thing enacted in-it; for whatever’is so excepted 
 
 is to be found in a distinct saving in the enacting clause, 
 but it is such a provision as your Lordships well kaowy is 
 
 to be found in: several, statutes, in the'nature of a pré- 
 testation, to exclude an unjust conclusion.» Tt is ds much | 
 as to say; let no one suppose that this: act imvades the sa- 
 cred right of petitioning. \ It only enacts that the right of 
 petitioning shall not be exercised through the mediuny OF 
 delegated assemblies. 4 . {POD EG FP es 
 
 Let me nev call your attention tothe absurdity which ~~ 
 
 must follow from giving to pretence in the frish statute 
 the meaning of false pretence... Vhe first. section declares 
 that all assomblies, committees, ov other’ bodies of persons 
 elected,or in any other manner appointed to’ represent any 
 portion of the peopic, underthe pretence of petitioning for, 
 ‘cor in any other manner, procuring an alteration of matters. 
 
 ; 
 
273 
 
 established by law, ate unlawful assemblies, and it shall 
 be lawful for any mayor, sheriff, justice of the peace, or 
 other peace officer, and they are thereby required, to 
 disperse all such unlawful assemblies, and if resisted, to 
 enter into the same, and apprehend all persons offending 
 in that behalf. Now if pretence means false pretence, 
 no magistrate would be warranted in dispersing a 
 meeting, really and bond fide assembled for the purposes 
 of petitioning, and ~who-is to decide that delicate and . 
 difficult question ? Can it have been the intention of the 
 legislature, to entrust such a decision to any peace 
 officer; and if so, how is he to decide it ? How ishe to 
 ascertain, whether the alledged petition be real, or 
 fictitious, except by permitting the assembly to meet, 
 and watch its conduct until it shall have concluded its 
 business? That is, suffer it to adjourn séne die, in 
 order to determine, whether he ought to disperse those 
 who-have ceased to assemble, ‘The statute also autho- 
 rizes him, if resisted, to enter into the meeting ; to 
 then pretence means false pretence, the legality of his 
 entry must depend, not upon his inference from his 
 observation of the proceedings,—for upen this suppo- 
 sition, he has not been allowed to observe them,—Dbut 
 upon the soundness of his conjecture, as to what be 
 should observe, if admitted ;—that is, he will be a 
 
 “trespasser, or not, according to the guess, which he 
 
 may make outside the door, as to the real object of the 
 meeting within. ‘The second section is not pointed at 
 the assembly when-met, but at those, who in any way 
 partake, or concur in the election to it, and they are 
 declared guilty of a high misdemeanor, nay, this is 
 extended to all those, who publish or give notice of. 
 such an election. | 
 
 _ Now, announcing the election, or partaking in it, 
 are clearly offences,. which may be committed, and com- - 
 pleted, although the assembly itself should never meet ; 
 but according to the construction contended for, they 
 could never be prosecuted, until not only the assembly 
 had met, but until it should be ascertained by its meet- 
 ing, that its pretence of petitioning was fictitious ; that 
 
 -is, the present prosecution is premature. It should have 
 
 lain in abeyance untilthe Catholic Committee had met, 
 aud until the nature of its institution had beeu proved, 
 
274 
 
 by the course of its proceedings. . No. interpretation of 
 a statute can be sound, which “Yeads to.such absurdities ; 
 and I cannot try this reasoning by a fairer test ,than by 
 supposing, that all which has been urged in argument, 
 were inserted in the statute. If nonsense should be the 
 result, Be argument cannot be good. _ Suppose the act 
 to have ated that all such assemblies were at the first 
 nioment: unl wil; provided, that it should! appear, 
 after their sittings were concluded, that their petition 
 were fictitious. | “Suppose it enacted, that every peace 
 officer should disperse them, provided always, that he 
 was of opinion, after they had met, that their petitions 
 
 was fictitious. Suppose it enacted, that every peace: 
 
 officer should be at liberty to enter the meeting, provided 
 that before he entered it, he should be convinced, that 
 no real petition was to be proposed ; in ‘it. Suppose it 
 
 chacted, that merely to publish a notice of an election. 
 
 for such a me eeting, should be a high misdemeanor, pro- 
 
 vided always, and not otherwise, that t! ereafier it should: 
 
 appear, that no real petition was the object of the meet- 
 ing. I cannot conceive a fairer test, by which to try, 
 and decide the construction of this act. 
 
 « Look again at the saving in the statute, for the Houses’ 
 
 of Parliament and Convocation. . If pretence means 
 
 false. pretence, then the legislature has declared, that’ 
 Parliament alone shall meet on the false pretence of 
 procuring an alteration of matters established by law.’ 
 
 Look at the words, “ under pretence of petitioning for, 
 ‘< or in any other. manner procuring, an alteration of 
 «< matters established by law in. church and state,” If 
 
 pretence, means false pretence, in the first part of this’. 
 
 sentence, which relates to. Pent Deans it must in the 
 
 second, which relates to procuring alteration, and then 
 the meaning will be, that-all dscotnblabe are unlawful, 
 except the parliament, which pretend falsely to procure 
 such alteration, and the necessary inference must be, 
 that all assemblies; except-the Parliament, are lawful 
 which profess truly to do-so. «This absurdity must fol+ 
 low, unless pretenee, in’ the same SeEnenOry shall be 
 he td to have two opposite meanings. 
 
 J come now, to’ Mr. Burrow8&s’s first argument, 
 wily; as well as I can understand it, is, that “there is 
 a distinction, between general representation, and dele- 
 
 gation for’a particular purpose ; and he has endeavoured 
 
275 
 
 to establish, that distinction, by reading the proceed- 
 ings of some assembly, against which, he says, ‘this 
 statute was levelled: and which announced an intention 
 to usurp legislative authority, and to change the funda~ 
 
 mental laws and establishments of the country ; and he 
 says, that such an assembly would be within the act, but 
 that an assembly, for the exclusive purpose of petition- 
 ing, would not. I apprehend, that his argument is built 
 upon asophism, and a mistake of the principles of this 
 law. Itis not, as he would suggest, a law against bad 
 objects, to be atchieved by the assembly when met. It 
 is a law against the very act of assembling. It is a law 
 founded on the samme principles, as the Whitedoy Acts, 
 in which that rage for associations, which @lways has 
 been the characteristic of all ranks in this country, is 
 denounced, by declaring it a high crime and misdemea- 
 nor, for persons assuming any name, or badge, or de- 
 nomination, not usually ‘assumed by Ins Majesty's sub- 
 jects to assemble, although noact has been committed, 
 
 or no arm raised. It is alaw to prevent mischiefs, not 
 to punish them, when committed—it is a law passed on 
 the recollection of the various conventions, anid assem- | 
 blies, and associations. which had, from time to time, 
 threatened the peace of this country. Igo not back to 
 
 former centuries—the Dungannon Meeting, the Felun=— 
 teer Convention at the Rotunda, the meditated Parha- 
 ment at Athlone, are freshin the recollection of many 
 of us. In contemplation of those mischiefs, which re- 
 presentative associations are calculated te produce,’ was 
 this act framed, and the crime, denoun ced by it, is com- 
 plete, whenever a representative body is elected, with 
 the view of procuring a change in matters katt ished 
 by law, thongh the mode ‘of doing so, should be ‘by 
 petition. Mr, Burrowes seems to think, that in 
 order to complete this crime, legislative aathority 
 must be usurped. Does he mean to say, ‘hat no as- 
 sembly is within this act, unless it displac es Parlia- 
 ment, and enacts laws, and imposes taxes?’ Does 
 he mean to argue, that ‘the. legislature bad declared 
 that to be a. iisdemenoor, which the law, had before 
 declared to be high treason? Must. the act, which 
 speaks of petitioning Parliament, only apply to as- 
 semblies, which have displaced Parliament? What 
 
 as 
 
: 276 
 
 would Mr. Burrow Essay of an elected, and delega- 
 ted assembly, if such a one should exist, which pro- 
 fessing to prepare a petition, should sit from July to 
 February, and day after day, and week after week, 
 assemble and debate, and do every thing but petition,— 
 which should’ publish inflammatory “and licoadiarg 
 discussions, upon all political topicks ;—which should 
 mimic, Und travesty all the proceedings of Parliament, 
 —appoint conmittees—and receive reports; which 
 should supersede, and bestride the legislature, by ‘the 
 discussion of public, and the courts of justice, by 
 the discussion of ptivate grievances! If such an as- 
 sembly shoyld exist, wonid he say, that because it 
 abstained from imposing taxes and enacting laws, it 
 would not fall within the Convention Act, that its in- 
 nocence should. depend, not upon what it did,—but 
 what it did not ;—that its members should not be 
 cuilty of a misdemeanor, beeanse » they were innocent 
 of treason? 
 
 I think, if he said so, he initia much fssiha-< the law, I 
 think if I said, that their guilt consisted in such aets, as I 
 supposed, Ishould mistake it too—we should both be wrong 
 and our common sophism would be, that we tried the 
 legality of the assembly by the test of its. acts, and not 
 by the test of its constitution. The framers. of this law 
 well knew the. tendency of such associations as it pro» 
 bibits—they well knew that worthy and honourable 
 men might engage in them, as I have no- doubt that 
 worthy and honourable, and loyal men would engage ip 
 the Catholic Committee, with the purest and the best of 
 motives. But the policy of the law is pointed at the 
 probable mischiefs, and the very preamble of the act is 
 directed to the dangers, which in the language of the 
 statute may epsue. What man can answer for the in- 
 termixture of those very different characters which must 
 find their way into such an assembly? I know that the 
 Catholic Nobility and Clergy, amongst whom are to. be 
 found the most respectable. of men, were to be consti« 
 tuent parts, but I know that every county was to send 
 ton, and every parish in. this City to send five mem- 
 bers. Who will answer for the description of persons 
 tiat must find their way inte this motley congregation? 
 I is not fro such men as Lord Fingall, and Lord 
 
277 
 
 Southwell, and Sir Edward Bellew, and the other ho. 
 nourable men of the Catholic persuasion, that such 
 danger is to be apprehended—short lived, indeed, would 
 be their influence. Perhaps the worst men would not 
 be the most numefous in this assembly—it signifies not ; 
 
 a small minority of agitators is always sufficient for mis- 
 chief. The history of mankind shews that they have 
 always prevailed—in every such assembly they float, and 
 the good are precipitated :—But the policy of this act 
 is not merely pointed at the intermixture of bad, but the 
 degeneracy of good characters. What man can answer 
 for himself, in going into a_ self-constituted political 
 society ? his first steps are deliberate ; his first motives 
 are good; his passions warm as he proceeds; the ap- 
 plause, never given to moder ation, intoxicates hives ;—the 
 vehemence of debate elates, and the success of ele- 
 quence inflames him; he begins a patriot, he ends a 
 revolutionist ; Is this faney or history? I well remem- 
 ber, who can forget—the first National Assembly of 
 France? Composed of every thing the most honourable, 
 gallant, venerable and patriotic in "that kingdom ; called 
 together for the noblest and the purest purposes, the 
 Nobility and the Prelacy, united with the representa- 
 tives of the people, and the three estates promised the 
 regeneration of the country ; What was the result? The 
 wise, aud the good, and the vittuous were put down, or. 
 brought over by the upstart, and the factious, and the 
 demagogue ; they knew not the lengths they were 
 going’; they were drawn on by an increasing attraction,— 
 step after step, and day after day sto that vortex jn 
 which have been buried even the ruins of every esta- 
 blishment, religious and political, and from whose womb 
 has sprung that colossal despotism which now frowns 
 upon mankind: What has become of that gallant No- 
 bility—where are the pious Prelates of that ancient king- 
 dom—one by one, and crowd by crowd, they have 
 
 - fallen upon the scaffold, or perished in: insurrection. 
 
 Some—less fortunate—drag out a mendicant exile in fo- 
 reign lands, and others, condemned to a harder fate, 
 have taken refuge in a Tyrant’s Court, and are expiat- 
 ing the patriotism of their early lives, by the servility of 
 their latter days.. 
 
 My Lords, and Gentlemen of the JuryI have di- 
 
 ‘ gressed involuntarily, I hope not irrelevantly, from thie 
 
278. 
 
 argumeat, upon the law of this case to the, consideration 
 
 of the policy of the statute. It was necessary, for no- 
 thing has been more misunderstood ; it has been foolishly 
 and wickedly asserted, that this statate and these prose- 
 cutions have been levelled at the Roman Catholic cause ; 
 the charge is false, if this act were violated by any other 
 class of men in’ the state, whether Protestants, Presby- 
 terians or others; I} know the fairness and the impar- 
 tiality cf my Learned and Right Honourable Friend to 
 be such, that the religion which they professed, would 
 never have shielded them from prosecution. It has been 
 
 clamorously urged, that the Government has declared 
 
 war against the subjects’ right of petitioning, whieh Mr. 
 
 Burrowes, has insisted js illimitable, and like the freedom — 
 
 of the press, not subject to previous restraint, and only 
 controulable for subsequent excess: this is a mest mis= 
 
 taken view of the Constitution: there is no such princi- - 
 
 ple known to our Constitution as those illimitable rights 5 
 our Constitution exists by its. restraints,: tts controuls, its 
 checks and balances» The Royal Prerogative is defined 
 
 within. a vigid: boundary; the privileges of the Nobles. 
 
 are ascertained by jealous limitations, and if the rights 
 of the people were not circumscribed, woe be to the 
 people, and woe to that Constitution, which has been 
 this day so enlogized, and so much misrepresented ; 
 the state would’ be disorganized,. the democratic part 
 would preponderate, and anarchy would be the conse- 
 quence. The contrary. is new doctrine, the growth of 
 modern and licentious times—such was not the opinien of 
 my Lord Somers and the great men, the Whigs of 
 his day, who in the Bilof Rights laid the cots 
 ner stone of the Constitution «in King William's 
 reion. In that second Magna Charta they asserted 
 ‘and estabisished this right of — petition, as the birth- 
 right of Englishmen; but they did pot venture. to 
 establish it, except as subject to the restrictions imposed 
 on it by the statute of Charles I. Your Lordships know, 
 that this has been decided by the highest authority,—that 
 when upon the trial of Lord George Gordon, another 
 epinion was contended for at the bar ; allthe judges una- 
 
 nimousty declared that such was the lav... That law was’ 
 never enacted here, but the misfortunes of our country . 
 
 have made another and a different restriction of the night 
 to petition necessary. Those laws speak a common prin« 
 4 A y ‘ ; Ds aes : f 
 
279 -. 
 / ‘ 
 
 ciple, though a different language. In England, the peo- 
 ple are told, that even the inestimable privilege to petition 
 shall not be the pretext for a mod, and inJreland, they must 
 be.told, that it shall not be a pretext for a convention. No~ 
 rational man will say, that for the fair and legitimate purpose 
 of petitioning the parliament, a convention of three estates, 
 consisting’ of nearly six bundred persons, sitting in a publie 
 theatre, without limit or controul can be necessary; the 
 public peace forbids such an association, and the law em- 
 phatically has declared, that there shall be but one parlia- 
 ment inthe country. [repeat it, it is new and anconsti- 
 tutional doctrine to talk of the unrestrained rights of the’ 
 people. What is that most precious right of the peopie of 
 these countries, which the Catholic committee is about to 
 usurp? The right of representation. ‘That which dis- 
 tineuishes us from all the nations of the earth. {fs it unre- 
 strained, and until the announcing of this Catholic com- 
 mittee, was it ever uncontrouled ? The rights and quali- 
 fications of electors are measured by property, situation 
 and independence. The freeholders of the country alone can 
 exercise them ; and some classes are excluded, on account 
 of their supposed dependence. The title to be an elector 
 must be ascertained by registry, and identified by record, 
 The capacity to be elected is confined within necessary re- 
 strictions ; the law of election is complicated, and nice, and 
 - a particular tribunal is-constituted to administer it. ‘ihe 
 King’s writ issues to the pablic officer, and under the 
 heaviest responsibilities he obeys and executes it. When 
 the senate is convened, the members are under the con. 
 troul of their speaker: Their very privilege of speech js 
 definite, and their duration depeads upon the King, whe 
 can prorogue or dissolve them. Such is the utmost righe 
 of representation, which the freest constitution upon 
 earth allows to the people, and if the popular part of 
 that constitution were not thus restrained, it would dege.. 
 nerate into wild democracy, and fatal anarchy. Compare 
 this right of representation, with that claimed by the Ca. 
 tholic committee, and in the contrast, behold the wisdom 
 of the Convention Act, and the necessity of these prosecus 
 tions. See whatis the constitution of those self-created 
 parliaments, which that statute denounces as illegal, and 
 which this prosecution is instituted to put down. What 
 is their law of election? what their qualification of free- 
 “holders ? what is their description of- candidates? I assert 
 
280 
 
 not too.mnch, when I assert, if the legitimate par- 
 jiament of the. pecker were to be assembled, as this com- 
 mittee has been, that the constitution would not survive 
 the first election. What is their claim to this monstrous 
 assumption of power ?. It grows actually out of their 
 numbers, and the Catholics assert it, because they are four 
 or five millions of people. What then are four or five 
 millions to elect? whose writ summonses them? what 
 officer in each county is to hold the election >—who is to 
 decide upon the votes ’—who is to identify the successful 
 candidate? Every man of the four millions is qualified 
 to be an elector or a representative, and tn the county 
 of Meath, my. Lord Fingall, in the exercise of either 
 ohatwersr, might be jostled by a beggar or a rebel, 
 claiming a superior qual: fication. Can it be the-Cons 
 stitution, or the Law, that what 1s denied to the Par- 
 
 Jiament, shall be allowed to a Committee;—and. that. 
 
 all the evils of democracy shall be let loose. upon the 
 land; universal suffrage; promiscuons. eligibility, and 
 
 aridiaaeiianaalss representation? But. suppose this extraors. 
 
 dinary meeting to assemble, who. is to controul them. if 
 they run riat 2) Who. is theis Speakers Who, is. their, 
 Serjeant at Arms? Who will diave the authority,—if any 
 ene has the courage-—to check licentious and disaflected 
 declamation ? Wio isthe man of any rank, that would 
 have spirit or power to interrupt, or rebuke a factious 
 orator ? which of the loyal men in that assembly would 
 ventare to chide an inflammatory harangue, offensive to 
 his feelings, and odious to his principles If in such an. 
 assembly, a rash young man, inflamed by debate, should 
 
 loudly assert, that the glorious Feomanry of Zredand were 
 
 the exterminators of their countrymen, and should eulo- 
 gize and hold up to veneration, and respect, the-rebels ‘of 
 1798, as patriots and martyrs,—who is there to call him 
 to order? Wiat man, in a popular and self constituted 
 assembly, would venture to interrupt him ? The very na- 
 ture, and constitution ef the assembly generates danger 
 and encourages excess. Compare such a constitution 
 with the established. authorities. of the. land, all. con- 
 trouled, contined to their respective spheres, balancing 
 and cravitating to each other ;—all symmetry—all order, 
 all harmony. Behold on tbe other band,—this prodigy in’ 
 the political hemisphere, with eccentric course aud por- 
 tentous glare, bound by no atwraction,—disclaiming any 
 Orbit, disturbing the system—and affrighting the w orld. 
 
 . 
 
LORD CHIEF JUSTICE DOWNES, 
 
 Gentlemen of the i Ys 
 
 This important case is now brought nearly to a 
 termination, and it is our duty to tell you, precisely, 
 what it is you have to try ; what are the charges ad 
 have been preferred against the Traverser ; ” what the 
 evidence is, which has been adduced in support of 
 those charges; the defence which has been made, 
 and the law arising upon the: facts, which have been 
 proved, connected with that defence. : 
 
 Gentlemen, the Indictment contains two charges 3 
 the first is, that an Assembly was held at 7 sehaibahiles 
 street, on the 9th of Judy, 1811, where it was resolved, 
 that a certain Assembly of the Catholics of Treland 
 should be held, to be composed of persons described 
 in that resolution, and that the Traverser afterwards 
 acted in the appointment, and election of Mr. Azrs 
 wan to be a member of that assembly, which is al- 
 leged to be criminal, under the Act of Parliament in 
 question. . , 
 
 The second count of the Indictment, without 
 stating the antecedent meeting: at /ishamble-street, 
 on the ninth of Ju/y, rests solely upon the acts, which 
 were done subsequent thereto, at .the meeting in 
 Liffey-street, and stating the conduct of Mr. Sherz- 
 dan, the Traverser, as assisting in the election of Mr, 
 Kirwan to be one of the representatives of the Ro- 
 man Catholic inhabitants of the parish of St. AlZary, 
 in a General Committee to be thereafter held, and 
 which Committee is also alleged to be an illegal 
 assembly, under the same staute. 
 
 [Ihis Lo: ‘ship stated the Indictment at length, and 
 
 then proceeded.) 
 -2°N 
 
982 
 
 Gentlemen, you will observe then, that the twe 
 counts charge in substance ; first, that an assembly 
 was held on the ninth of Judy, at which the De- 
 fendant is not charged with having done any act, 
 but that it was resolved, that representatives should 
 be appointed, for a subedefieht assembly, and he is 
 charged, with so acting at a parish meeting, in elect- 
 ing representatives, as to carry that resolution into 
 effect! and in the second count, he is charged with 
 the same conduct, without any reféreneias to the an- 
 tecedent meeting, or the resolution then entered into. 
 ‘But that he the Traverser, and divers others met and as- 
 sembled for the purpose of appointing five persons to aet. 
 -as representatives of all the inhabitants of the Roman 
 ' Catholic religion of the parish mentioned, in a Commit- 
 t2e of persons professing the Roman Cushadie religion, 
 -to be thereafter held, and to exercise the right and 
 ‘authority to represent the Roman Catholic inhabi- 
 tants of Ireland, under pretence of preparing peti- 
 tions to Parliament, to repeal the Jaws affecting the 
 ~Roman Catholics, and thereby procuring an altera- 
 
 tion of the said matters established by law. 
 
 Gentlemen, to establish the facts thus charged, 
 as constituting an offence under the act of Parlia- 
 ‘ment, three witnesses have been called, the. first 
 witness was John Sheppard. 
 
 [LTere his Lordship recapitulated the testimony of this 
 witness: | 
 
 Gentlemen, you see, from what this witness has 
 ‘stated, upon his direct examination, that a meeting 
 “was held in Liffey-street chapel; that Doctor Sher- 
 ‘dan, the Defendant, presided in the chair; that a 
 proposition was made, and carried, ‘to elect five per- 
 “sons to represent that parish in a subsequent meet- 
 ing, which election was accordingly held. These 
 acts ‘shew, if you believe the witness to have sworn 
 truly that Dr. Sheridan did act in the manner al- 
 leged in the indictment, namely, inthe election of Mg. 
 
283 
 
 _ dXirwan, for the purpose therein stated, and it will 
 remain to consider, whether such acts be criminal by 
 the law, or not. 
 
 Gentlemen, this witness was coss-examined; a re- 
 solution was handed to him, which he read; he said, 
 it was the same as the first resolution that was passed 
 at the meeting; but, upon being desired to read the 
 second, he said, it was not so full, as that which was: 
 passed at the meeting; and it appeared, in the course 
 of his cross-examination, that he was doubtful whe-’ 
 ther the word “ represent” was used; but he ad- 
 mitted, that no seditious language was used; that 
 the meeting was respectable, and their conduct de- 
 corous, 
 
 Gentlemen, the next witness was James M‘Donough, 
 who was called to the same facts. 
 
 [Here his Lordship read from his Nii the tes- 
 timony of this second witness.] 
 
 “Gentlemen, his account of what passed, at the 
 chapel in Liffey-street, is similar to what was stated 
 by Sheppard. - It appeared from the testimony of 
 these witnesses, that the Defendant, Dr. Sheridan, 
 put the question upon the election of Mr. Avrwan, 
 which was carried in the affirmative. Both these 
 witnesses agree in the account, meet they give of 
 the proceedings of the meeting; the election of 
 five persons, and the part which sot Sheridan took 
 in that election; and it will be for you to say, whe-~ 
 ther those witnesses are to be believed, and if so, 
 whether that election was for such purposes, as are 
 stated by the indictment, and I shall presently in- 
 form you whether such acts are criminal under the 
 Act of Parliament. . 
 
 Gentlemen, one of these witnesses was called upon, 
 this morning, to explain some circumstances which 
 appeared in his informations, and that did not appear 
 precisely to correspond with his evidence upon the 
 trial; and he stated, that he meant in his informations, 
 {OQ represent, that ne saw a gentleman, whom he took 
 
 he 
 
284 
 
 to be Doctor Breene, without meaning to swear, posi- 
 tively, that he was at the meeting ; but that he told 
 Sheppard, the other witness, that a person whom he 
 saw, was, as he thought, Doctor Breene; that seven 
 persons APRN I by him, as inthe chapel, as if being 
 present, and that he, the witness, thought they were 
 all present at the time; but that he actually saw only 
 some of them, and, he says, he meant to represent, 
 that he saw a eenileman, whom he thought was Doc- 
 tor Lreene: that he did not see lim in the chapel, but 
 in the yard, as he was leaving the chapel. 
 
 Gentlemen, with regard to this witness, it will be 
 for you, to say, whether you believe the facts, which 
 are stated by him, actuaily took place in the chapel on 
 the 31st of yy If you doubt the truth of his ae- 
 count, and that of the other witness from any circum- 
 stance, in the manner of giving their evidence ; if 
 you doubt, that these Witnesses were there; that they 
 saw Dr. seer aah acting at such an ie dain: as they 
 have described, then certainly, the’ whole of the case 
 4s at an end. | 
 
 But, ae if you believe their testimony, 
 then it will be material for you, to’ consider the testi- 
 mony of the other witness, Z7uddleston, the object of 
 whose. testimony was, to shew the existence of the 
 prior assembly, | held in #vshamble-street, on the 9th 
 of July; and that they resolved ypon the appoint- 
 ment of a subsequent assembly, to be supplied by 
 certain descriptions of persons, therein designated, 
 and others to be chosen from each county, in Fretand, 
 and a certain number also from each parish in Dublin: 
 it will be for you, to consider, whether from the evi- 
 dence, you find yourselves bound’ in your consciences 
 to believe, that the election, which’ was stated by 
 “Sheppard and MDonough, as having taken’ place in 
 Liffey-street chapel, was in conformity with the reso- 
 futions, entered into on the 9th of July, in Fishamble- 
 street, ‘ahd with a view to the assembly directed by 
 ‘that vésolution. Upon the identity of that assembly, 
 ordered and appointed oa the 9th of July in Fisham- 
 ble-street, connected with the election of Mr.-Kirwan, 
 
 < ” 
 
255 
 
 and the other persons, at which the defendant, Doctof 
 Sheridan, assisted, it is necessary,’ that you’ should 
 be satisfied, in order to establish the facts, which are 
 stated in the first count of this indictment (Ais Lord- 
 ship here recapitulated the testimony of Fiancis Hud- 
 dleston and ihe resolutions entered into on the 9th of 
 July.) 
 
 Gentlemen, whether the assembly, to which the 
 five persons stated to have been elected at Lifey-sirect 
 chapel, be identified, to your satisfaction, with the 
 resoiutions entered into at the meeting ef the 9th of 
 July in Fishamble-street, will be for your decision, 
 under the first count inthe indictment. ‘The circum- 
 stances given in evidence to connect them, are the 
 coincidence of the number elected, with the number 
 mentioned in the resolution, the time of their being 
 appointed, and their being elected to represent the 
 Catholic inhabitants of the parish, in'a general com- 
 mittee of the Catholics, It will be for you to con- 
 sider, whether that will satisfy your minds, so as that 
 you’ shall have no rational doubt, that these persons 
 were appointed, in conformity with the resolutions of 
 the prior assembly; that is,; whether the election of 
 tbe five persons, on the 31st of July in Lifey-street cha- 
 pel, was in consequence of the resolutions of the meet- 
 ing in Mishamble-strect, on the 9th of July, in order 
 to attach the facts, stated by the indictment, whether 
 criminal or not, upon Doctor Sheridan. If you have 
 any rational doubt, you should acquit him ow the first 
 count of the indictment. 
 
 Gentlemen, the second count of the indictment 
 charges the defendant, Doctor Sheridan, with having 
 acted i in the election of Mr. Azrwan, as a representa 
 tive of the Parish of St. Mary, and with having put 
 the question, on his election; and if you believe that 
 evidence, it will be for you, to say, combining the 
 Jaw of the case arising from, the facts as r shall 
 presently state it, whether the Defendant Doctor 
 Shertaan, has acted, in the language of this count of 
 the indictment in the choice, or appointment of such 
 representatives, or delegates, as ave declared to be 
 
286 
 
 illegal by the Act of Parliament—If he has, it wilk. 
 then be your duty to pronounce him guilty. | 
 Gentlemen, you have heard the grounds, upon 
 which the credit of the witnesses has been impeached, . 
 and you will determine upon them; but it is observa-_ 
 able, that although they state facts to have taken place 
 in a numerous assembly of persons,---no evidence has 
 been brought forward to contradict them. Sheppard, 
 and Afe, Donough state the election to have been held 
 on. the. 31st of July, in Liffey-Street ; and that the, 
 persons elected, were to represent. the Parish of 
 St. Mary in the general Committee of Catholics; and 
 you will have to judge, whether that election . falls 
 within. the description which has been prohibited by 
 the legislature. : 
 Gentlemen), much iaaieaie has taken place upon 
 the, Act.of Parliament, and a most important question 
 arises upon it. It will be my duty, to state to you the 
 mode in which the Court construe it. It is entitled 
 “an Act to. prevent the election, or appointment of 
 “unlawful assemblies under pretence of preparing 
 « or presenting petitions to His Majesty or the 
 “ Parliament.” And the description of assemblies, 
 which are meant to be prohibited, are not of necessity 
 confined to such as meet with intent to do any thing 
 in its own nature immoral, or illegal, before the 
 statute passed. Cases inight fall nth this act of 
 assemblies, which might not do any act in itself immo- 
 ral, or otherwise illegal, than as it contravened this sta- 
 tute, even though they assembled and dissolved without 
 doing any thing i injurious tothe state. But assemblies 
 of that nature, meeting even with fair and honest 
 views, at the first, might become criminal and davgerous 
 from the nature of their constitution, It is not, that 
 assemblies of this description mst become so, that 
 they are made criminal; but the legislature, reasoo- 
 ably apprehensive, that they might become so, enacted, 
 that assemblies, representing the people, or assuming, 
 or exercising a right of representing the people of 
 this realm, or any number or description of the same, 
 under pretence of periidning: for: or in any other 
 
ie Be 
 
 manner procuring an alteration of matters established 
 by law in church or state, should be deemed unlawful 
 assemblies. Uhe act of Parliament does not ‘say, that 
 such assemblies have been actually, or of necessity must 
 ée dangerous; but that they might be made use of 
 by designing and factious persons.; and that riot, tu- 
 mult and disorder might be the consequence. 
 
 ~ Gentlemen, this being the apprehension of the mis. 
 chef, which the legislature has stated, that is, that an 
 assembly, representing the people, or any portion of 
 it, under pretence of petitioning may become danger- 
 efs, (the probability of which is obvious to every 
 “man) the remedy, which the legislature adopted against 
 such representative assemblies appears to us plainly 
 to be, to avoid the possibility of the danger occur- 
 ring, by preventing their existence, and by punishing 
 every step towards their formation, and by enacting, 
 that if they should be assembled, they are to be 
 held unlawful assemblies, and all magistrates and ‘all 
 peace olficers are authorized to disperse them. The 
 mischief then, being the danger to the public peace, 
 which was likely to arise from such representative as- 
 serublies, the statute has pronounced them to be unlaw- 
 ful, and has enacted that it shall be lawful for any 
 mayor, sheriff, justice of the peace, and other peace 
 officers, who are thereby required to disperse ali such 
 unlawful assemblies, and if resisted, to enter into the 
 same, and to apprehend all persons offending in that 
 behalf. This is the remedy which the legislature has 
 given in cases of assemblies of that: description being 
 actually convened, such an assembly becomes unlaw- 
 ful from the very moment of its existence, and the 
 magistrates are authorized to disperse it. Tn order to 
 prevent the possibility of its existence, however, the le: 
 gislature endeavours to stop it in its very for ination, 
 and in every step of its progress, and it begins in the 
 second section, by making it a high misdemeanor to 
 give, or publish, or-cause, or procure to be given, or 
 published, any written, or other notice of election to 
 be holden, or of any manner of appointment of any 
 person or persons to be the representative or repre= 
 setitatives, delegate or delegates, or to act by aay, o-het 
 name or description whatever, as representative, of ie 
 jegate of the inhabitants, or of any description of the 
 
288 
 
 inhabitants, &c. at any such assembly, or if any person 
 shall attend, and vote at such election, or appointment 
 of such representative or delegate, he shall be deemed 
 guilty of a bigh misdemeanor. ‘Thus, you see, that the 
 Jegislature has enacted an assembly of this description 
 to be an unlawful assembly, and makes it a substantive 
 offence, in itself, to attend, and at act the election of a 
 person to be a representative in such assémbly, or in 
 any other manner to assist in the choice. of such a re- 
 presentative. | 
 
 Gentlemen, ithasbeen argued, on the part of the travers- 
 er that in order to make a representative assembly which 
 meets under the pretence of petitioning his Majesty or 
 the Parliament, criminal, such pretence, must be a ftt/se 
 pretence ;---in short, that this act of Parliament meant 
 only to punish those who constitute an assembly, under 
 the false pretence of preparing a petition; but that, if, 
 in reality, such assembly intended to petition, the eri- 
 minality declared by the statute, does not attach 
 upon them.---Gentlemen, the doctrine seems to me to 
 accord . very little with the provisions of the act:-- 
 the mischief, which the statute meant to provide against, 
 was, as I have already told you, the posstb:lity of the 
 consequences, to which a representative assembly might 
 give rise, that mischief is not by any means impossible 
 to happen, even although the parties constituting the 
 assembly, should, in reality, have first met with that 
 henest intention of petitioning; and therefore the re- 
 medy seems, to us, to go, and we have no doubt, it 
 does go, to all representative assemblies, meeting to 
 petition the king, or either house of Parliament ; and 
 that the object of the act, on account of the possible 
 mischief, .was to prevent persons from meeting by 
 representation, or delegation to procure alierations of 
 matters established in church or state, and that, though 
 an intention of petitionmg did in reality exist. ‘To 
 suppose, that a false pretenée were necessary, would 
 still leave the mischief, as complete, and possible, as if 
 the statute never had been enacted ;---for, if a false 
 pretence were necessary, in order to bring the parties 
 concerned within the penalties of the act, it would be. 
 impossible to discover, whether any such representative 
 assembly meant really to petition, until they had a- 
 
289 
 
 fually petitioned; or- dissolved and seperated without 
 petitioning: and yet the statute directs all magistrates 
 to enter into such an assembly, and disperse it,. as 
 being unlawful. ~The statute, in the very origin, 
 makes it penal in any person to-give any notice of any 
 election of a representative, or dalégiat! fer such an 
 assembly ; and it could not, in my apprehension, intend 
 an assembly, falsely pretending to petition, which could 
 not be known, until the assembly had met, or pexhaps, 
 until it had concluded, or dissolved itself. The statute, 
 also, makes it a criminal act to vote at such an elections 
 and that criminality seems to be complete in the persons, 
 
 who shall vote, the very moment that he has committed 
 
 that act; and yet, if it should be considered to depend 
 tipon the criterion of, whether the assembly met with a 
 true or a false pretence of petitioning,’ it would be im- 
 possidie, to consider that offence.as complete, and it 
 must depend altogether upon the acts of other persons 
 at a subsequent period, whether the act of the indivi- 
 dual previously committed be an offence or not. 
 ‘Gentlemen, the saving of thisstatute, seems, to us, 
 also strongly to shew the extensive manner, in which, 
 the Legislature thought fit to prohibit representative 
 assemblies ; having for their object the procuring such 
 changes as the statute mentions; the words used are so 
 
 large and comprehensive, that although it never could 
 
 ? . s oO. . + ‘ 
 have been conceived to have been the intention of the 
 
 Parliament to extend the provisions of this act to make 
 
 the House of Commons, or Houses of Convocation ille- 
 gal—yet on account of the largeness of the wording 
 
 of the act, it was thought right to except from the 
 enactment thereof, the House of Commons, and the 
 two Houses of Convoeation.. It is impossible to con- 
 ceive, that an exception of that kind Avould - have 
 been introduced, without seeing and feels at the 
 same time, the vast extent to which. the Levislature 
 meant to push the enacting clauses in this statute ; 
 and that it would be impossible, to keep from withia 
 the reach of the enacting clause, any assembly, which 
 should be a representative assembly, under pretence of 
 petitioning fory or in any other manner procuring an 
 alteration of matters established in Church and State, 
 
 Convocation. 
 
 29 
 
 save the House of Commons, and the two Houses of 
 
POO gan 
 
 Gentlemen, I have already stated some of the con- 
 sequences, which would follow from the ‘construction - 
 which has been contended for, on the part of the de- 
 ferdamt; that the assembiy designated by the act 
 must be one, meeting under a false pretence. If a 
 representative assembly met for any of the purposes 
 mentioned in the statute, but having a real intention 
 to petition, were exempt from the crime,’ created by 
 the act, in my apprehension, it would make the say- 
 inw in the statute of the right of petition, ‘perfectly 
 absurd. We are all of us of opinion, that the statute 
 meant to prohibit persons from assembling, by delega-_ 
 tion, to petition the King, or the Parliament, even | 
 although they have a bond fide purpose of doing so. — 
 If the clause, saving the general right of petition, 
 extended to representative assemblies, really intend- 
 ing to procure a change of particular matters esta- 
 blished by law in Church and State: I say, if the. 
 saving clause has protected such an assembly in con- 
 sequence of a rea/ tntentien to petition, then, in my 
 apprehension, the statute has done nothing, except 
 perhaps, by such saving clause to establish such an as- 
 sembly, in direct opposition to the enacting clause, 
 
 ' Gentlemen, upon the whole of this case, we are 
 of opinion, that the statute provides, and meant to pro- . 
 vide against all representative and, delegated assemblies, 
 meeting for the purpose of procuring either by petition,~ 
 or otherwise, an alteration. of ‘matters established by 
 jaw, in church or state, and we are of opinien, even 
 although it should appear, that there was, in reality, 
 an intention to petition, that the cloak of a petition, 
 caunot protect an assembly of that description from _ 
 the pemalties of the act of Parliament. 7 
 
 Gentlemen, [ have stated to you the grounds upon 
 which we hold that opinion, and I have now only to say, 
 that if you believe, that the traverser, Doctor Sherz- 
 dan, did act in the election of Mr. Airwan, a person 
 named in the indictment to be one of the Committee 
 and a representative of the inhabitants of the parish of 
 St. Mary, in a future assembly, of the description I — 
 ‘have stated, from the Act of Parliament, for the pur- 
 pose of procuring an alteration of matters established’ 
 by law, in church or state, even although it might not 
 -have been intended te do so, by violent means, or any 
 
‘ a -_ 
 291 
 force, but merely petition, that proceeding by peti- 
 tition cannot exempt them from the penalties of the 
 Act of Parliament; and if you believe, that the as- 
 
 sembly was suchas I have described, and that it was an 
 assembly appointed by the resolution of the 9th of 
 
 July, in consequence of which the election of the 31st. 
 
 of the same month took place, I say, if the evidence 
 has connected the two assemblies, so that you have no 
 
 doubt, from the evidence of the Defendant’s being 
 >] o 
 
 active in the electing of representatives, to serve in 
 tbe same identical committee, or assembly as previous- 
 ly directed; in that case, you will convict the traver- 
 ser upon the first count of the indictment ; but, gen- 
 tlemen, if you are not quite satisfied of that connexion 
 between the two assemblies, then it will be for you 
 to consider, whether the traverser, Dr. Sheridan, acted 
 or assisted in the election of five persons to represent 
 the parish of St. Mary in a future committee, or as- 
 sembly to be held for the purpose, or under the pre- 
 tence of petitioning his Majesty, or either ijouse of 
 Parliament, to procure an alteration of matters esta- 
 blished by law, in church or state, it is our duty to 
 tell you, that it is our opinion, upon which we enter- 
 tain no doubt, that the fact of there being a real inten- 
 tion to petition will not exclude the traverser from the 
 operation of the Act of- Parliament; but that such an 
 assembly is within its meaning and effect.» It only 
 
 remains, Gentlemen, for meto say, that if you have 
 
 any reasonable doubt of the credit of the witnesses, res- 
 
 ‘pecting the facts which they have detailed, you onght to 
 
 acquit the Traverser. 
 
 The J ury retired, 
 
 Mr. Burne. My Lords, we desire to know, whe- 
 ther the Bill of Indictment against the Traverser 
 was sent up to the Jury? . 
 
 Lord Cuiger Justice. It is not usual to send the 
 record to the Jury—nor do [ see that it is heces- 
 sary. 7 th 
 
 Mr, Justice OsBoRNE. The Indictment might have 
 been read to them, if they wished it, | | 
 
oe) Sis : — ?* 7 PPPS eaten 
 X! ’ *< . ¢ ; A - ‘ 
 Pa) oe ; 
 
 : . > 
 
 “32 
 
 Mr. O’Connety. The Jury are to decide upon 
 the Indictment, and they ought to have a copy of, it,,, 
 
 At this instant, tivo of the Jury, Mr. GRALE, and 
 Mr. Pepper, came into the court; the former said, 
 that tue Jury requested to be furnished with a‘ copy: 
 of tue Indictment. | | 
 
 A copy was accordingly given to them. 
 
 Mr. GraLE, My Lord, the Jury wish to be ins 
 formed, whether they can fica separate verdicts upow 
 the two counts in the Indictméent?—for, the-issue 
 paper handed to us, Is, to inquire whether the Tra- 
 
 verses be guilty of the offences in the indictment, or 
 not? 
 
 Lord Cuter Justice. CH certainly may find’ se- 
 
 arate verdicts, if. vou tim coner. You may And, . 
 pe 2 p 
 
 generally, that the Povekey is, ui) ty, or is not 
 guilty, upon the whole matter in the indictment, or, 
 you may find him guilty upon one. count, and; not 
 guilty, upon the other. 
 
 The issue-paper was amended accordinely,. 
 
 The Jury remained in. their room for one hour and 
 a. half ;— upon returning, they were called over. 
 
 Clerk of the Crown. Gentlemen, have you agreed 
 to your verdict? | 
 
 Jury. We have. 
 
 Clerk of the Crown. “Who shall say for you?: 
 
 Jury. The Foreman. a 
 
 Clerk of the Crown. Is the Traverser guilty of the: 
 . offences in the indictment,. or either, and wliich off 
 them, or not. hi | 
 
 Mr. GeaLteE. My Lord, this is our verdict,—3in 
 
 consequence of our opinion of the insufficieney of 
 
 a 
 
 “the evidence. ; , 
 
 NOT GUILTY, 
 
 v 
 
Counsel for the Crown. 
 
 Mr. Attorney General, (Saurin) Mr. Solicitor General, 
 (Bushe) Serjeants Moore, Ball, and M‘Mahon. Messrs. Jebb, 
 Joy, Townsend, Ridgeway, and Kemmis, Agents, Messrs. 
 Thomas and William Kemmis, 
 
 Counsel for the Traversers. 
 
 Messrs. Burrowes, Burne, Goold; Burton, Johnson, Driscoll 
 Mac Nally, Wallace, Bellew, Rice, O’Connell, Macldin, Fer- 
 rall, Mc. Kane, Perrin, Finlay, North, and Grattan. 
 
 Agent, Mr, Edward O’Callaghan. 
 
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