The Express.
London, England, 1848-10-11 00:00:00

THE SPECIAL COMMISSION.

SENTEN CE OF DEATH ON MR. W. B. O'BRIEN.
CLONMEL, Ocr. 9.
The Ationeremenl having movedthat William Smith
O'Brien be called up for judgment, Mr. Smith O'Brien made
his appears, •a in the dock.
The Clerk of the Crown was about to read the indictment,
I and to ask what the prroeu had to say why erniteses of
death and mention thereon should not be passed upon him,
wk.,
Kr. Q.C., said that that was the proper tinie:te
I make application Os the emit kre arrest of judgment. At-
, exedlog to the weeds of the statute, the proper period for that
purpose was "deer the cenvietion of the prisoner." There
wen three wigwams en whisk be grounded kis application :
Pint, whacker the account of the meeting of the 21st
of July was simiesible spinet Mr. O'Brien, en two
grwande—Orst, that Dobbys's evidence had not been sow
Anneal • and the emend was the admissibility of the entente
se the Pccuesatsein, as there was no proof that they were
trued to the pasmosion of the prisoner. These were some of
the grounds as which be piled for arrest of judgment, but
the principal pound on which he rorted his application was
this—Mr. O'Brien was indicted for levying war spinet the
Qasen within her realm, end for composing the Queen's
death. He (Mr. O'Brien) had been acquitted of compassing
the Queen's death, and had ben convicted of the other of.
But he (Kr. Whitpide) would show that there was
no Bitch thing is levying war spinet the Queen is Ireland
contemplate in the statute of Edward 111., under which his
client was indicted. To levy war, then were three essentials
demanded—ant, to levy war; second, against the Queen ;
and third, *inn the rubs. In the statute of Edward it
was evident that the word "realm" meant England only,
and if a man enunitted a treason in Ireland he could not
be tried undo that statute in that "realm.' The learned
gentleman then want into an elaborate argument to support
his interpretation of the law on the punts on which he
relied. He oncluded by °burying that Mr. O'Brien had
been acquitted et sompusing the Quen's death, because the
jury were not of opinion that he had directly levied war
against the Quern—that in fact having only. levied war con-
structively, be was not guilty of compassing the Queen's
death. What followed from this result ? It could not appear
from the indictment whether the levying of war was direct or
constructive. Now the court had decided that the levying
K war in this instance was constructive, and he apprehended
that their lordship would not hold that a constructive levy-
ing et war still remained a crime punishable with death, in a
sew where if the Fleenor had been indicted for having com-
p els& and latltdgi to levy war spinet the Queen, and
three dos somb wort set out in the indictment, he must
Itsvo Men negated.
The Attsrestasnonl replied ; Mr.Fingerald followed on
lishdfais=risoser • and the Solicitoraeneral concluded
the delis ;rows.
The Chid hoods', after consulting for some minutes with
his heather judges, pronounced their lordships' decision.
The motion he said, was for an arrest of judgment, founded
ea Mot strgeillims to the indictment. Tut indictment, or
dee eabseentle ef it, wise under the statute of Edward
sod ebarpl a levying of war against the Queen.
The daft Yea was that the act of Edward the Third
wee not the bier of Inland, and in reply to that ohjectiA
it was costssiod by the crown that it wee erended to this
swasitry by Pmines Ant. It was admitted that that
dente referred to that of Edward the Third ; but it was
emillended that its construction was confined to unions cow.
siting Moues In Enelsed, but not in Ireland. It appeared
to his, however, that the meaning of the statute wee, that
dr IMO law should apply to both countries, and that which
was Messoa I. England was also treason In Ireland. Eis
WY* sentineled—The next objection is founded on
the estsstrsids• of the recent act, 11 Victoria, cap. 12, to
Ada sondenadmi we find it totally impomible to accede.
The trans messed by the statute of Edward 111, wee the
ion Mg of war. Then cams the English statute of 38
George 111, which did not extend to Ireland, by which the
OmPloing to hey war, when that is fir certain purposes,
I was made treason. The statute of Edward 111. made the
levying of wet the crime. This statute made the intention
to levy war the crime. And the objrction is that
the statute of Victoria, which does extend to Ire-