The Sun.
London, England, 1853-01-28 00:00:00

THE RIVAL CONVERTS.

( Front the Times.)

We did not scruple to express our dissatisfaction
with the conduct of the jury who tried the case of
" the Queen v. Newman" at the time when the
trial took place. Our regret at the nature of the
proceeding was aggravated by the consciousness
that the injustice which we believe to have been
done was inevitable. So far as the result of the
legal proceedings which he initiated went, Dr.
Achilli played a perfectly safe game, whether
convicted or acquitted. He was quite certain
that upon the two issues joined the verdict
of the Jury must, technically at least, be in his
favour, and that no new trial could ensue because
no state of the evidence within the range of possi-
bility could lead to any other result. The two
pleas put forward by Dr. Newman substantially
were--first, that the passage complained of was not
a libel, and secondly, that it was true. As to the
former question no doubt could possibly exist.
In his zeal to overthrow the opponent of his
faith the Anglican convert had raked together
series of accusations, the very least of which,
if true, was sufficient to blast the character of
his antagonist. Indeed, the misfortune of Dr.
Newman was that his charge was so formal
and specific, being in fact an elaborate indict-
ment of Dr. Achilli's whole life from the year
1826 to 1851. No one having the fear of
the law before his eyes would have made
so detailed a charge in so elaborate a form, because
it was absolutely impossible to prove the
truth of
the whole of a string of facts so remote in time and
place, and because lure in a single proof would
vitiate the validity of the whole plea, which to bar
the prosecution must be an answer to the whole
libel. Had Dr. Newman indulged in the style
of the more vulgar school of polemics, and merely
contented himself, like some of our most pious
cotemporaries, with applying to his antagomlSt
coarse and abusive epithets, he might have had
a hope of supporting by evidence such general im-
putations ; but because he relied on facts and
details instead of vague assertions, his complete
de-
fence became impossible, and a verdict against him
certain before a single juror was sworn. The jury
might have believed every one of the witnesses who
charged Dr. Achilli with incontinence, and have
thought that Dr. Newman was substantially justified
in what he wrote, but the want of proof on two or
three charges would have made that opinion im-
material. The case was all along, as Lord Camp-
bell explained, merely a question of the mitigation
of punishment, merely the examination of wit-
nesses viva voce whose evidence might have been had
on affidavits. Indeed, considering the enormous
expense of the trial, and the certainty of result to
Dr. Newman, it might possibly have been wiser to
reserve the testimony in mitigation of punishment,
and not spend such large sums, and bring over so
many witnesses, for the mere purpose of fighting a
losing battle, when no available amount of truth
could possibly alter the result.
For this state of things we have neither to blame
the law nor the Court; it is inherent in the nature
of the case. It would not be reasonable that the
truth of one libel should justify a man in writing
another, nor would it be right that the Court should
grant a new trial, which could only end in return-
ing formally the same verdict. The only difference
that could have happened, had a new trial been
granted, would have been that perhaps a jury might
have been found to take a different view of the evi-
dence. Happily, by a wise and provident pro-
vision in Lord Campbell's Act, which does great
credit to the far-sighted sagacity of its framer,
this second investigation is rendered unne-
cessary, because the task of reviewing that de-
cision is delegated to other hands. It is pro-
vided that, though the plea of justification be not
proved, it shall be competent for the judges to
consider that plea and the evidence adduced with a
view of seeing whether they aggravate or mitigate
the offence. The judges are to consider the evi-
dence for themselves, they are even bound to do so,
and, therefore, not to take their views servilely
from the conclusions of the jury. The judges may,
if they choose, believe witnesses whom the jury
disbelieve, and refuse credit to those on whom the
jury relied. The question is fairly re-opened for
their consideration, the evidence is before them,
but of that evidence they are themselves to form a
judgment fairly and impartially. The opinions of
the jury are doubtless to be considered, and, where
testimony is evenly balanced, to be followed ; but
the same discretion which the judges exercise in
case of the finding of a jury against the weight of
evidence will authorise them in forming an inde-
pendent judgment when the amount of punishment
is to be awarded. When, therefore, we complain
of the finding of a jury, it is not that we believe'
that finding will lead to any ultimate injustice--
against that we have still the best guarantee, the
unbiassed judgment of an upright and impartial
Court ; but it is because we feel that such exhibi-
tions as the Achilli trial tend to diminish in the
minds of our own people and of foreigners the
respect for the administration of justice in this
country, and confidence in the power of a nation
satisfactorily to administer justice to itself.
Unable as we have professed ourselves to agree
with the verdict of the jury, we must also pro-
fess our conviction that the guilt or innocence
of Dr. Achilli, and the consequent innocence
or guilt of Dr. Newman, are poor, trivial, and irre-
levant issues on which to set the pending contro-
versy between the awakened energies of the human
mind and the crushing despotism of the Romish
Church. Mighty issues are raised between the two
contending parties far different from the scandal-
ous revelations with which intemperate zeal has
sullied the atmosphere of our courts, and questions
enough to remain to task all the powers of the
acutest disputants, even though they should forego
the luxuries of law, the glare of publicity, or the
triumph of fine and imprisonment. That never-
ending controversy, co-equal with the existence
and co-extensive with the duration of human
thought, the controversy between the spirit of in-
quiry and the influence of authority, between inno-
vating speculation and stationary dogmatism, needs
other weapons, and asks other energies than those
which are sharpened and developed in a court of
justice. We trust that with regard to this most
objectionable trial the public mind has cooled down
from its former state of morbid excitement, and
that, whatever be the nature of the decision arrived
at, by the Court of Queen's Bench, the successful
party, whichever it may be, will regard the result
without indecorous exultation, and look on the case
as what it really is, a dispute between two over- •
zealous polemics—the one of whom has brought
forward more *charges than he can prove, and the
other denied more than he can disprove. To Pro-
testant and Romanist the case, truly viewed, is un-
important ; its real significance is in the discredit
it has tended to throw on our administration of
justice, and the impression which it has tended to
disseminate—that where religious differences come
into playa jury is the echo of popular feeling in-
stead of being the expositor of its own.

THE CONVICT KIRWAN.

DUBLIN, JAN. 27.—At Capel-street Police office ye:-
terday, Mr. Boswell, attorney, appeared before the
bench, and said that he had an application to make in a,
matter arising out of the case of the Queen v. Kirwan.
It was on behalf of a person whose name had been men-
tioned in connection with that case, and who had suf-
fered a great deal of oppression and misery. Certain
letters had been traced of a very serious character ; but
he would not mention the name of the detective, as he
was not there to make any charge against the police.
Some extraordinary conduct had been traced with regard
to an individual ; the matter would, he hoped, be broUght
timebwu
el:lic01
rrdrh: to.
alsoeoh correct,
li nbi
P. v.
ee
Boswells edtniigntagt toit 0
the
Lo
we orafdnt
Palmerston
investigation,
mtLordsoe
rlsi.tneon‘Justices,tvo;
whether
bthaueictteh neoarutntihdt
eawa meansoCu aude
i police ?
mons against the man, in order to bind him to keep the
peace ?
'Callaghan-11Tho is the person ; is he one of
I Mr. Boswell—
summons is Miss Kenny, wsohose name was mentioned in
connection with the case of Kirwan, and Mortimer Red-
mond is the name of the detective.
7th Will. iZelaVllB.,gtil—i
autho-
rities to whom you should refer.
Mr. Boswell—That is my difficulty, and therefore I
commissionersw ou l ds tahraet
theu n under the 6at
uh andt ile.
it be brought
thought that the best course would be to.nmsatk
is a very serious one, and it cannot restc mons.
I don't
ap-
plication to your worship. The charge
untilagainst
before a committee of the House of
it my duty to
want to prejudge the case, but thoughtlte
bring the matter be-
make this application. I intend
fore the Lords Justices.
' to interfere.
ban—Then I decline.
Mr. O'Callag .
in 'this matter is a most
Mr. Boswell—My position Re
odthro.ois aopd-
has been charged and
painful one. This man
p r attacks— vopinion—made
in m-
jurye tried him, but I
who
1 er I ought to Ic
think they
to them ; --Lowey .( Ther ehave
in been
the
pressvery iemnptrho
the
murder of two or three other
hcaosnvbiecetnedchaars a4emduvr,,
them, silently at least, to admit
and compe
es are totally unfounded. From inqui-
that these charg
persons, and sin hied
I have coped with the autho-
ritieshesitation in believing that this extraordinary
ries which I. have made step by step, I have not the
slightest ditehr et
case
is founded in a frightful conspiracy.
Mr.
m. O'Callaghan—Seeing that it is your intention to
bring the matter you speak of before the Lords Justices
I decline to take any step.
Mr. Boswell—I feared that the investigation before
the Lords Justices would ,be secretly carried on. I
will not say another word to your worship. I will
adopt the course now left to me, and will send the de-
claration of this lady, verifying all the facts, before the
Lords Justices.
inAbflra.ekllotshweetillw(withhodr.w:s accompanied by a lady, attired