The Express.
London, England, 1848-08-14 00:00:00

COMMISSION CO URT.—Avo. 11.

TRIAL OF MX. O'DOIIeRTY.—THE Dgeeteca.—On the
judges of the commission taking their seats,
Mr. Butt, Q.C., moved that the Attorney-General should
elect upon which of the two distinct charges contained in the
indictment he would prosecute the prisoner. The first was
alleged to he an intention to deprive or depose the Queen
from the style, title, honzur, and royal name of the imperial
crown, and with having uttered or declared such intei.tion in
one set of counts. Tue second charged an tention on the
part of the prisoner to levy war against the Queen, in order
to compel her to change her measures and c sunsets, and with
having uttered and declared that intention by certain publi-
cations.
The Attorney.Genersl opposed the motion, and the court
having coincided with him, Mr. Butt withdrew his motion.
The learned Counsel, alter a few introductory rem irks,
said it was necessary that the jury should believe, on their
oaths, that the prisoner was guilty of the precise offences
charged in the indictment. They might believe his
conduct to he wrong; nay, they might believe it to
be abtoletely wicked, or that the publications he
issued to the world were highly dangerous to the
public peace of /this country; but on their solemn
oaths they could not find hint guilty, unless they considered
hint to be guilty of the actual and precise offences charged
in that indictment. If writing, be wrong, end calculated to
excite insurrection the law provided an abundant remedy.
These writings were, Red he admitted it. seditious; he could
rot contend that the y were not. He was not there to lead •
them astray. He admitted that if the Attorney• General had
instituted a prosecution for sedition, and the jury believed
the prisoner to be the wrier and publisher of those articles,
they ought to find him guilty; but this Will not a prosecu-
tion for sedition, a conviction for that offence would be
tollowed by penalties the severest which the mild
spirit of the British law permitted a court to inflict.
The present was a prosecution under an act which was
cautiously guarded; therefore he called upon the jury
to dismiss from their minds eve rything that hail been said
about the dangerous characte r of the articles. They were
not trying a prisoner for sedition, hut whether he had
brought himself under the provisions of a highly penal act,
inv,,lein.e, short of the sacrifice of lire, the highest conse-
quences. The act had been termed an unconttitutior al and
severe one : it was one which, in the hands of weak jumre—
jurors who were not ititeiligent jurors—who might be
alarmed and made instruments of, the most grievous oppret-
MIMI ureter which a country ever groaned. But loving con.
stitudional freedom as he did, all he asked was to give him an
honest and intellig. nt jury to cottstrue the act, and he had
no tear ter the result. The learned adyocote
then quoted the act of parliament, and continued.
There were two intentions charged, as were stated.
They were upon their oaths to say, first, the intention of the
heart of the prisoner; secondly, did he express and declare
that intention. They had no inference of law to try. There
was no state of facts from which the court could call upon
them to draw an inference; but they should, as fallible men,
penetrate into the heart of the prisoner, find out his inten-
tion, and then say was that intention expressed, uttered, and
declared. They should therefore, in the first place, be satis•
tied of two distinct matters : one was that the prisoner com-
passed, devised, and intended to depose the Queen ; and
the other to levy war against her Majesty. It
occurred to him to be a difficult matter to find
both intents, or either, upon the evidence. Now,
in considering this important mater, they would re-
member how difficult it was in the ordinary intercourse of
lip: to judge aright of men's intentions eve n from external
acts and appearances, end if so, he "(Mr. Butt) would ask
how much more difficult would it be for a jury to look into
a man's breast, and upon their oaths say that he intended,
devised, and imagined the deposition of the Queen,
and pur-
posed levying war ageing her. That was the difficult duty
they were called on to pee form, the tremendous irsuc they were
expected to find ; in fact, they were asked by the Attorney-
General to assume the character of the Deity—the Searcher
of men's hearts—and speculate on what the prisoner
at the bar might, or might not, have intended to do.
He was merely on the subject of intention : and let them for
a moment supplies a man sittiog down and writing an article
highly reprehensible and calculated to withdraw allegiance
from the throne, and yet that he did so without having any
treasonable intention ; if such a case occurred, the party
charged would toe entitled to an acquittal under the act in
question; therefore they would see the vastimpertance of consi-
dering calmly the nature of the charge and also of the statute.
A republican!--and be (Mr. Butt) would, before he re-
sumed his seat, show that the prisoner was not a republican
—if he expressed his opinions calmly, might be guilty of no

offence; but if a man sat down and wrote articles calculated
to disturb the public peace he was liable to penalties. And
he admitted that the prisoner was, in his opinion, liable to
those penalties fir publishing seditious articles; but he was
not guilty of the more grave offence laid to his charge, that
of iatending to depose the Queen, and of levying war against
her. What were the intentions charged ? A great deal of the
speech of the Attorney• General appeared to usume that the
offence of levying war against her Majesty would entitle ajury
to find a verdict of guilty against the prisoner, if even nothing
else were proved. Now he (Mr. Butt) would take the liberty
of denying the accuracy of that doctrine—because, u
he understood the law, it was necessary not only to prove an
intention of levying war, but that it was to be levied for a
particular purpose; and that purpose was to compel the
Queen, by force and constraint, to change her measures sad
councils. Now, if he were right in his construction of the
law, and the court would judge upon that point, even if the
prisoner intended to raise a rebellion in Ireland, hut not for
the purpose of deposing the Queen, he would be entitled to an
acquittal; if he intended to do so, and not remove the sove-
reign from her seat on the throne, the offence charged
would not be complete; in fact, nothing short of proof of a
sailed purpose of deposing her Majesty would warrant a jury
in convicting. Even proof of intending to effect changes
in public measures would not be sufficient ; it would be abso-
lutely nee. nary to show that her Majesty was attempted to be
made to change them by force and cunetraint. He (Mr. Butt)
would go so far as to say that if the prisoner purposed and in-
tended to force the houses of parliament to make alterations by
intimidation and constraint, and that he used no restraint
towards her Majesty, that he would not be legally guilty
under the statute on which the indictment was founded.
He might go no far as to hike the field against her Majesty's
troops, tocompel the House of Lords and House of Com•
mons to change the law, it he did not use threats to intimi•
date the sovereign. What was the evidence upon which
they were called on to hod a verdict which would have the
effect of sending his client from his country for the remainder
of his life ? The law required that every one about publish-
ing a newspaper must go to the Stamp-office, and there
make a declaration that he was the proprietor, and a num-
ber of every publication of that paper should be sent to the
office signed by the proprietor. The crown bad merely proved
proprietorship, and upon it alone no jury would be safe in
finding a verdict of guilty intentions on the prisoner's
part to depose the Queen, and levy war against her.
Now, let them consider how it was shown that the prisoner
even intended or declared to depose the Queen, or levy war
against her ' • and if he (Mr. Butt) showed the jury that the
prisoner did Oct know frequently what was published in the
Tribune, would they find him guilty from articles read from
it, the manuscripts of which were not even sr own to he in'
his ha..dwriting I The question would therefore resolve
itself into the consideration, whether the libels read by the
croon to suonort their case, and not proved to be written I y
the priso ter, showed intentions on his part to depose the sove-
reign, and to levy war against her, to force her by threats and
intimidation to change her councils. No evidence of inten-
tion was given, and how could they convict under the statute ?
The case was a most W culler one, because, as they were
aware, there was another prosecution against a joint pro-
prietor of the same paper, and it was impossible that both
proprietors had written the same articles. One and both
proprietors were answerable, perhaps, for sedition, and if so,
they might be prosecuted fur it ; but no jury could say that
a grave charge could be sustained.
Baron Pennefather asked Mr. Butt if it were his intention
to call any witnesses ?
Mr. Butt, Q.C., replied in the affirmative, but upon con-
sultatien this intention was abandoned.

Tb. Solicitor-General addressed the jury in reply.
Baron Pennefather then addressed the jury in a length-
ened address. Having stated the law as applicable to the
offence with which the prisoner was charged, he commented
et considerable length on the two principal articles, entit.ed
" Our H Prospect.' "pointing out their dangerous cha-
racter, and leaving it to the jury to decide whether, as Mr.
Butt bad argued, the intention o the prisoner in
writing or publishing them wa innocent or othi
wine. With respect to the doctrines themselves, he
observed that person, following them up might in
their closets repent of what thi y had done, shudder at the
conwquences that might have attended their acts, shudder at
the thought that the unhappy victims of their writings
might have been sacrificed in thousands—that their friends
might have been incarcerated in prison, and brought to trial
--some of tin m, perhaps, to an ignominious death. They
might, insteps, reflect on these matters, and, in their calmer
moments, repent that they had gone so far, and might, at all
events, give up for the future those iniquitous designs, which
might have proved so f,tal to the peace of this country.
But whether they did so or not, or whatever consequences
had or might have taken place, had nothing to do with the
question the jury had to try. They had first to consider
whether the prisoner declared and published an intention
to levy war against her Majesty to compel her to change
her measures and councils; and, secondly, whether he
compassed and imagined to di peeve her of the style,
title, and royal name of the imperial crown of the United
Kingdom. They would read over the prosecuted articles
calmly and dispassionately ; they would form a judgment
from them as to what the int. n ileac of the prisoner were.
It or. the whole they were satisfied that he bait the guilty
intention of depriving the Queen of her crown and
dignity, and of manifesting that intention by levying war
against her, it would be their duty to find a verdict of
guilty ; hut if they were not satisfied that euch were his
intentions, it they had even a solitary doubt on this point,
the prisoner was entitled to have the benefit of it, by an
acquittal. But if no doubt existed in their minds on the
subject of his guilt, they were bound to find a verdict of
guilty, and to fins. that v. edict regardless of all consequences
as to whether their decision might affect the prisoner, or
whether it might prove of advantage to the country
at large.
"Fiat justitia, rust ecelum."
The jury retired at twenty minutes to four o'clock. At
half-past tour o'clock they returned into court, and asked the
judge whether they were to consider the publication the
same as it the article hail been written by the prisoner, and
if they ought to be satisfied he knee. what-was Written with-
out any proof he knew it?—Baron Pennefather : That is for
veu to judge. The prisoner being the registered pub-
lishm made a prima fade case, but it was for the jury to say
if that constituted proof to satisfy them he was aware of the
nature of the articlec—The jury retired again, and did not
come into court up to post hour.