The Sun.
London, England, 1849-01-18 00:00:00

:•,''. •• v
.
.. , JANUARY iB, 1849,
- - - so.
7

flag of Port-Admiral Sir William Hall Gage With'l47`
guns, and received a return from the platform at
Mount Wise ; after which Captain Piranneau landed
at the Barbican pier, and, in company with Mr.
Luscombe, the French Consul, proceeded to visit the
Port-Admiral, Admiral-Superintendent Sir John
Louis, and the other Government . authorities at
Devonport.
The Pylades is pierced for 22 guns, but carried only
20,n amely, eighteen 24-pounders and two 30-pounders.
She left Brest in May, 1846, for her station off the
coast of Mexico, where she remained until list July,
when she touched for a few days at Havannah, in the
island of Cuba. She reached the island of Martinique
in August, and continued there until the 25th of
November, when she sailed for Brest. The Pylades
has experienced a long and tempestuous passage to
the English Channel, during which she has been
twice au menzent de perdition, having carried away
spars, lost chain plates, and been compelled, when on
her beam ends, on the 24th of December, to throw
overboard three of her 24 pounders. Her crew are in
excellent health, although many of them, when cross-
ing the Atlantic, have been without dry linen for 35
consecutive days. The Pylades is drawing her
supply of water from the Royal 'William Victualling
yard at Stonehouse. After obtaining some tempo-
rary repair she will sail for her destination. Messrs.
Densoly, Briere de Mondetour, and Eeliphe, pas-
sengers from Martinique, having landed here, proceed,
via South Devon Railway, for Paris.
Her Majesty's frigate Calliope, 26, having been or-
dered to be fitted for commission, her masts were yes-
terday taken out and conveyed to the dockyard at
Devonliort for examination.

The French- merchant barque Bramah, Captain Le.
borgne, four months from Batavia, with rice and
sapan wood, and the British brig Esther, Captain
Reay, from Leghorn, with grain, put in here yester-
day, having by a gale of wind been blown past their
port of destination—Falmouth, for orders.
Wind, S.W., strong breeze and rain.
Woor.wrcri, JAN. 17.—The Niger steam-vessel
was under orders to leave Woolwich this morning for
Devonport, to form one of the advanced war steamers
of that station, but the order has been countermanded,
and she will have another trial down the river before
her final departure._ _

The Basilisk and the other steam-vessels fitting at
this port are now in a forward state, and several of
them will soon be ready for sea.
The service will be glad to hear that Admiral
Sir George Cockburn, Bart., continues in excellent
health.

Admiral Sir Edward Hamilton, Bart., K.C.8.,
we are informed, is suffering from severe indispo-
sition.

There is no truth in the report that the Britomart,
8, Commander Chamberlain ; and the Dart, 3, brig-
antine, Lieut. Commander Hill, have been ordered
from the coast of Africa to the River Plate.

PR OMOMTION.
Second Master—C. J. Polkinghorne (1842), late of
the Calliope, 26, paid off from New Zealand, has been
promoted to the rank of master.

APPOINTMENTS.
Lieutenants—NV. K. Joliffe has been confirmed in
his appointment by Commodore Sir C. Hotham, to
the command of the Pluto steam-vessel on the coast of
Africa.

Surgeon—J. M. Deas, M.D. (1841), to be superin-
tendent of the Neptune, convict-ship.
Naval Instructor—George Foster (1842), formerly
of the Trafalgar, 120, to the Vengeance, 84, in the
Mediterranean.

Assistant-Surgeon—A. Watson, to the Wellesley,
72, flag-ship, in the West Indies.
Clerk—T. C. Thomas, in charge, to the Antelope,
steam-vessel, in the Mediterranean.
Midshipman—P. A. R. Browning, to the Asia, 84,
flag-ship, in the Pacific.

111aseer-Assistants—W. Steven, to the Fisgard,
flag-ship, at Woolwich ; S. P. Bedwell, to the Su-
perb, at Portsmouth.

IItELAND.

DUBLIN, JAN. 17.—The legal proceeding had recourse
,0 by Mr. S. O'Brien and his associates has, for the pre-
sent, totally tailed. The Judges of the Court of
Queen's Bench were unanimous yesterday in their judg-
ment against them. The following is a report of the
decision :
COURT OF QUEEN'S BENCH—TUESDAY, JAN. 16.
WILLIAM SMITH O'BRIEN AND OTHERS IN ERROR V. THE
QUEEN.
Yesterday having been specially fixed for the judg-
ment to be given on the several writs of error brought by
the prisoners tried and found guilty of high treason at
the Special Commission held in September last at Clon-
mei, the court was much crowded at an early hour, and
a number of ladies were accommodated with seats in the
galleries. The prisoners, Messrs. O'Brien, Meagher,
O'Donohue, and M`Manus, were brought from the Rich-
mond Bridewell in the prison van, accompanied by
mounted police, and took their places at the side bar.
At eleven o'clock the Lord Chief Justice and the other
members of the court took their seats on the bench.
The several cases having been called on,
The LORD CHIEF JUSTICE proceeded to deliver judg-
ment. The first error assigned was that the caption of
the indictment did not show with sufficient certainty
that the commission of oyer and terminer and general
gaol delivery, before whom the prisoners had been tried
and convicted, had jurisdiction to try the several cases.
The caption stated that at a special sessions of oyer and
terminer and general gaol delivery, before the two Chief
Justices and Mr. Justice Moore, nominated and ap-
pointed to hear and determine all treasons, felonies, &c.,
and from time to time to deliver the gaols of the' County
Tipperary, by virtue of a commission of oyer and ter-
miner and general gaol delivery, directed to them and
others, the prisoners were found guilty, and it had been
contended by the plaintiffs in error that the commis-
sion issued by the Crown conferred only a joint autho-
rity upon the three Justices named and others, and
if this were so the objection would be well founded.;
but he (the Chief Justice) thought this was not
the, meaning to be collected from the words of
the commission. The three Judges were nominated
and appointed to hear and determine all felonies, &c.,
and the commission was directed to them and others,
but the context did not show that the three who were
so nominated to hear and determine could not act with-
out the others. English precedents had been referred
to, to show that the caption in question differed from
them in form. Now, it should be remembered that the
caption was the minute or record of the proceedings of
the Court, and when delivered to a perticular Judge,
after being issued by the Crown, it is read in open
court. As the contents of such commissions varied in
many particulars according to circumstances, so must
their forms, end there were many precedents of com-
missions in England differing materially from other com-
missions issued in Ireland. He had a search made for
commissions in the Hanaper Office, and except in commis-
sions for counties of cities and towns, in which there is
a quorum clause, all the commissions of oyer and ter-
miner, whether general or special, are joint and several,
and embrace their execution by one, two, or any
number of the Judges. He had also had a search
made for captions of indictments in this court, re-
turned by writs of error and certiorari; and though
in a great many cases the ground of objection
assigned in the present case does not exist, yet there
are sixteen precedents in the form of that before us, in
certiorari returns, and within a very short time eight
exactly similar captions of indictments are returned
upon writs of error, and in none of them was the matter
of this objection ever alleged. It is therefore very ob-
vious that a commission in the ordinary form would be
truly described if it were stated to be a commission di-
rected to three and others, whereby three were nomi-
nated and appointed to execute and act under it. For
these reasons he was of opinion that the caption was not
erroneous; and, as the legal depository of the commis-
sion, if he remained silent upon the point the contrary
might be supposed. It was right to say that on looking
to the commission itself, there was no foundation in fact
for the objection, and the purport of the commission
hale been truly set forth. The second objection was
that the five first counts of the indictment were defec-
tive, for that there was no such offence known to the
law as the levying of war against the Sovereign of
these realms in Ireland. He entirely dissented from
this position and the grounds upon which it rested,
and thought it important to state his reasons for
doing so. I shall not dwell, said his Lordship,
on the answer suggested by the numerous
precedents of indictments in Ireland, in which convic-
tions have been had, and which contained counts for
levying war; nor shall I do more than express my con-
currence that this was treason at common law, of whieh
the 25th of Edward 111. was only declaratory. I come,
therefore, at once to consider the proposition, whether
the 25th Edward 111. became the law of Ireland by the
Act of Henry VII., chap. 10, called Poyning's Act.
That that Act made the 25th Edward 111. the law of
Ireland, in respect to the treason of compassing the
death of the Sovereign is admitted; but it is at the same
time denied that the offence of levying war became trea-
son in Ireland, because, as it is said, we must read in
Poyning's Act the words " in this realm," and use them
as meaning England, then the only. realm of the King's
own. But what would be the use of or meaning of
en-
acting by an Irish statute that that should be rea son in
England which was and had been always
mon law, or, at events, from theredigenls w) the com-
orfe so bh
s t Edwardwels! orI?
The Irish Parliament had no righ. tto u
to enact what should be the law in England; and if these
words cannot therefore be understoondottobme
ean
understood England,
to
I can see no reason why they should
mean Ireland, as the King's realm or territory over which
he exercised sovereign authority, and for which it was
in the power of the Irish Parliament to legislate. That
this is the effect of Poyning's Act is established by the
authority referred to by my brother Perrin in Coke
Littleton, 141, and to the same effect is a passage from
Ist Hale, 147, which refers to the statute of Edward 111.
as one of the affirmative Acts introduced into Ireland.

That this is the true meaning and effect of the statute is
obvious. and pliced beyand all doubt by simply referring
et its language. After reciting that there are divers
god and profitable statutes made within the realm of
England, whereby it is ordered and brought to great
prosperity, it is enacted that, all the statutes made within
the said realm shall from henceforth be deemed good
and effectual hi law. and be used and executed in this
land of Ireland in all points and at all times according
to the tenor and off cc of the same. The mere perusal of
this language makes it impossible to doubt that the seine
offencss which would be treason in England mould be
treason if committed in Ireland. But if any doubt re-
meined upon the subject it would be removed by the sth
Gee. 111., c. 51, which enacts that any person indicted in
Ireland under the 25th Edw. 111., should have a copy
of the indictment, and counsel assigned to defend. This
recognises the liability of any party to be indicted in
Ireland for any of the offences committed here, which
wt're made treason by that Act, and of course it includes
the levying of war. For ttitse reasons I believe the
s. Hid ground of error to be utterly insupportable. The
next cause of error is the 'disallowance of a plea. This
ititlictnient contains six counts. The first five are for
levying war against the Qeeen, and the sixth for compas-
sing the death of her Majesty. The sixth count sets
forth various overt acts, all of levying war, or conspir-
ing to levy war, and the first averments are that the
purpose was to bring end put our Lady the Queen to
death. The plea of William Smith O'Brien to this count
alleges that the prisoner should not be compelled now to
answer the indictment, because he is thereby indicted
for compassing, imagining, and intending to put our
Lady the Queen to death, so that by the statuteable
enactment in that case made and provided every person
indicted for compassing death or destruction to our
Lady the Queen is entitled to have delivered to him ten
days before his trial a 'copy of the indictment, and at
the same time a list of the witnesses to be produced
upon the trial, mentioning their names, professions, and
places of abode. It then avers that the indictment was
found on the 21st of September, and on that day
a copy of the indictment was delivered to him in
open court, but that no list of witnesses was delivered to
him, and that ten days had not elapsed since the indict-
ment was so delivered. It concluded with a verification,
and prayed judgment that he might not now be com-
pelled to answer the indictment. In the case of Meagher
in error against the Queen the plea was the same, with
the addition of an allegation that he ought to have been
given, and was not given, a copy of the jury panel. The
pleas in the other cases are, that by an Act of Parlia-
ment passed is the 7th year of Queen Anne, it was en-
acted that when any one, should be indicted for high
treason a list of witnesses and of the jury panel should
be delivered to him, together with a copy of the indict-
ment, ten days before he was called on to plead, and
that ne such lists were furnished to him. The com-
mencement and conclusion of all the pleas are the same.
The Attorney-General demurred to all, and that de-
murrer was allowed. We have considered what are the
real merits of the case made by the plea—that is,
whether the prisoners were entitled to be furnished
with a copy of the indictment and a list of the witnesses
ten days before being compelled to plead, or whether
they were entitled to the benefits which parties
indicted for high treason have under the 7th of William
111., chap. 7. Ills Lordship then proceeded to cite
the Acts of Parliament bearing upon the case, and after
giving to each its proper interpretation, he came down
to that of the Ist end 2d of George IV., and proceeded
as folloivs:—The Ist and 2d George IV., chap. 24, " An
Act conversant of the course of trials of high treason in
Ireland," was, he conceived, decisive upon the whole
matter of this controversy. It commenced by reciting
two of the provisions of the 7th Williaiia 111., chap. 8,
the first requiring two witnesses to prove each overt act
of treason, and the other, that no person should be in-
dicted unless the indictment was found within three
years after the treason was committed. It then went on
to enact that these provisions had not previously ex-
tended to Ireland. and that from thenceforth they should
be made to extend to it. This was a direct contradiction
to the assertion that the statute of William had been
extended to Ireland by the 57th George 111., chap. 6.
If, therefore, the 57th George 111. did not extend the
Act of William to this country, it could not possibly have
extended to it the Act of Anne. He was, therefore, of
opinion
that the Ist aud4!h sections of the 57th George
111., chap. 8, did not extend to Ireland. Ile would
next proceed to consider the second question—namely,
the argument raised in support of the plea founded on
the provisions of the Act of the 11th Victoria, chap. 12.
The first section of this Act repeated all the provisions
of the Act 36th George 111. and all the provisions of the
57th George lIL in relation thereto, save those which it
enumerated, and which were all before set forth in the
recital of the 36th George 111. What the recited pro-
visions of the 36th George 111. not thereby repealed were
there was not the least difficulty in ascertaining; for it
was plain that they were those which' related to the
compassing or intending the death or destruction, or any
bodily berm tending thereunto, the maiming, wounding,
imprisonment, or restraint of the heirs or successors of.
King George 111. These were the recited provisions,
and the only recited provisions of the Act of the
36th George 111., which that of the 57th George
111., chapter 6, made perpetual, and of necessity
they were the only provisions which, by the second
section, were to be made law in Ireland. But
it had been argued that, although the second section
did not in terms refer to the fourth section of the
57th George 111. chap. 6, yet that section was not re-
pealed by the 11th Victoria, c. 12, but was included in
the exceptions, and was therefore still in force, and
available to persons who might be indicted in England,
and hence it was inferred that it was also in force in Ire-
land. Now assuming that the 4th section of the 57th
Geo. 111., c. 6, was included in the exceptions, the con-
sequence was not that it was to be in force in Ireland,
but only that the law in that respect was to remain un-
changed, and that the 4th section should continue, as it
had previously been, the law of England. It had been
argued on the part f the plaintiffs in error that if this
4th section of the 57th George4ll., chap. 6, did not ex-
tend to Ireland, persons tried - for treasons against the
person of the Sovereign could not have the benefit of the
Irish statutes, and must be sentenced, on conviction, to
undergo the barbarous punishment of treason under the
common law. Now he (the Chief Justice) could not con-
sent to adopt this view of the case as affording ground for
questioning the conclusion he had arrived at. But though
trom the terms of the sth George ILL, chap. 31, there
might be. a question raised as to whether a person so
indicted should have the benefit of its provisions, he
still thoueht he would be entitled to the benefit of the
Ist and 2d George IV. He now came to consider the
position taken by the Crown, that it a person tried under
the filth Victoria, chap. 12, was not entitled to the be-
nefit of the English statutes, the plaintiffs in error here
could not be so entitled, their indictments not containing
any overt acts of personal violence against the Monarch
either actual or intended. Now, the two clauses of the
36th George 111.. chap. 37, providing for the protection
of the person and authority of the Sovereign, were
equally recognised and distinguished by the 11th Vic-
toria. chap. 12, which, after a full recital of all the trea-
sons made or declared by the 36th George 111., sets out
in the preamble that its object was to repeal such of the
provisions so recited as did not relate to offences against
the person of the Sovereign. The provisional portion
of the Act then went on to set out the various treasons
unrepealed in Ireland, and amongst them there was not
one that could be considered an offence against the per-
son of the Sovereign. He had therefore come to
the conclusion that, although at present, as be-
fore the recent Act, a charge of compassing the
death might be sustained under the 25th Edward 111.,
yet that the 11th Victoria was confined to the latter
species of treason. For these reasons he considered
that the demurrers to these pleas had been pro-
perly allowed. The next error assigned is for the re-
jection of the prisoners' peremptory challenge after
having challenged twenty. Counsel for the Crown in-
sist that by the Act the right of challenge is limited to
twenty; and upon the other hand counsel for the pri-
soner insist that under the words " or any other felony,"
the right of challenge is, not so limited. If that were
the intention of the Legislature the use of the word
" treason " would have been superfluous, for according
to this argument petty treason, as a felony, would be in-
cluded among other felonies. I have looked over a
great number of statutes in order to ascertain the sense
in which the word treason is used and understood, and I
find that the word, standing by itself, has invariably
been used to signify high treason. I have not discovered
one where it meant petty treason where the word high
was not added to it, but I have met many
cases where treason and high treason were
considered convertible terms. The very Act be-
foreh us, the 11th Vle., cap. 12, in the seventh
t haovi sfet hoAncl
peremptory
section, uses the word treason:as describing high treason
otes
no less than three tittles, and the
the statute of Edward and uses the
eiawmeerd
was
But if a certain test of the exposition of .
sixth section
required, the Bth and 11th sections 0_
word treason in its strongest sense. v
c a p
54y:
dufirdrtnhtheoret
ofl
assigned
think
sCs hg anrel
de there s
dmatterek f
et hr atth teh
fie
rA„
tt
nI9
eG :heir! er e s
•
it riot rroe
challenge. It had exist
htehdatltahosbatjteceittriroonwl:a s d d
e.d from timethetrofhts
Se far, therefore, to
.rsegoabrideleste
emen ed
tisionoangoreouutnode. of error.
"and execution."
citedt
where these terms
of the prisonerh whether
notietit,
setreo
uhpledrohnhaoaduvneregyetehanignagi n is to
t 0 w hit
udgment should
ist contended t
ta added judg-
but none where judgment in thotehfepprrei-
or judgment
It
afforded is
s shaiimd
held to be void
SEnervnetra I" porfecdedeaenhts have been
serf must have an opportunity
are used,
was
mov-
ing an arrest of judgment ; but when he is called
upon to state why judgment should not be
e passedupon
hies, that opportunity is certainly • afforded him. The
judgment here is that prescribed by
the 54th Geo. 111.,
which does not use the
word execution, and uses the
wprd sentence as synonymous with judgment. In the
word judgment is comprised
all the details which are to
constitute the sentence.
If, however, precedents and
authorities are required to warrant the present form
they are abundant. In 4th Blackstone, c. 29, he says,
" When verdict is found the prisoner shall be asked why
judgment should not be awarded against him." In the
case of the ",King r. Boyce," 4th Burrough, the prisoner
wcs asked why judgment should not be pronounced and
sentence awarded against him. Two of the cases cited
or behalf of
.the plaintiffs in error were cases in which
there was no agouti!" at all. In the former came the