The Sun.
London, England, 1848-10-06 00:00:00

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S II N 9 OCTOBER 6, 1848.

for the Lord Chief Justice—he had read a confident an-
ticipation of the prisoner's guilt, and a subsequent appeal
to the jury to convict. If he thought that that would
have the slightest influence on the Court, or on the
mind of any gentleman in that box, he would have
withdrawn, and left Mr. O'Brien—who held his
life under the law—tol bo sacrificed as a vic-
tim on the shrine of political expediency. But he
know too well that the ermine worn by Mansfield, Holt.
and Hale would not be sullied by the distinguished
thel
f vi
nhae:o.i
trial.i. Senate,—all
eedo s
innwh ca entret
h. e
oe,e(H—imx.
lasir
hlstf.
O'Brienel
oacnrdlal
evi taeemh:wti
made
idhehseesohai
rbHedtntdaeoaer)i
had
bemoaoajodfnteeucdtl
tntddohi houoeaewrnmpi
nfowirgwl
noao oillgs
htui
judges he saw before him. One had had a brilliant re•
equallye
sPauttiassatisfied
rejoicedn ains
convinceasedes
fractious
ol,rire,,Egmihcrlaueovssfisntmoghfeodtitkinh
awful position to contradict the opinions of his life. He
therefore had submitted a question to the Court which
had been decided—he had no doubt rightly—and most
unfeignedly did he rejoice, from the emphatic charge of
the Lord Chief Justice and the verdict of the juries,
to find that the jury panel was framed in a manner
not only legal but laudable. He was content with
the tribunal. His client was perfectly satisfied with
the jury; and he (Mr. Whiteside) avowed openly and
publicly, that whatever might be the result, neither
the maligned gentleman at the bar nor the Counsel
who addressed them, would ever breathe a word of ob-
jection to their decision. It never entered into his mind
to cast an imputation on the 'respectable gentleman the
sheriff of the county. He (Mr. Pennefather) bore a
name he (Mr. Whiteside) respected; for he had been
long accustomed to be taught by the wisdom and learn-
ing of that distinguished Judge, and whose memory
s hen he was removed from this world—he trusted at a
far distant day—would be honoured and revered. But
when he said he had no complaint to make of the jury,
he had a complaint, to make of the law. The Judges
had 'overruled his objection, but they were compelled to
do so; they did not make, but were coerced by the law.
Had Mr. O'Brien been so fortunate as to have been an
Englishman, and to have been tried by the English law,
he would have had, ten days before his trial, the name
of every juror upon the panel, the name of every witness
that was to be examined against him, with their titles,
their professions, and their residences; but in this coun-
try it had been decided that that law did not prevail;
and a more melancholy example of that unfortunate
result never presented itself than in this case they had
witnessed. There appeared on the table, to swear away
directly the life of his client, a man whom no human
being in that court could give him the slightest sugges
tion as to who he was, whence he came, his past life or
conduct. Had this trial taken place in England, where
he knew that already this practice had created much
surprise, he,would.have been enabled to see the evidence,
if it existed, against the character and veracity of that
witness, but by the law of this country an informer, or
a man called by that name, might appear upon the table,
never seen by the accused or by any human being who
could advise or assist him, and would give evidence he
would take care no one could contradict, and destroy in-
nocence instead of establishing guilt. The Attorney-
General had opened this case with what he deemed for
his purpose a sufficient exposition of the law. It was
not sufficiently complete for the case of his (Mr. White-
aide's) client, and it therefore became his duty to ex-
plain what he believed to be the law, and the principles
within which the case would fall. He would afterwards
observe upon the statements of the law officers of the
Crown upon the evidence they had brought forward
to sustain the charge brought against Mr. O'Brien—
founded upon the past acts of his life upon
the things he had done, said, and written—
all was brought in evidence against him. They were
proceeding to try the prisoner upon an ancient statute
passed so long since as the reign of Edward 111. The
people of England, crushed by the intolerable oppression
of the former law of high treason, determined it should
be expressed as it ought to be, in language of' distinct-
ness and precision, and the Parliament that passed it has
been described as the Benedietum Parliamentum. That

_ .
law was clear and simple; there was no difficulty in it;
but it was always to be regretted that decisions were
made upon it contradictory to the letter, if not to the
spirit of that law, and defying the ingenuity of man to
comprehend. There was a brief exposition of this Act
in the few following lines :—" That as divers opinions
had been before that time in what cases treasons should
be said, and what not, it was enacted, that if any one
contrived the death of the King, the Queen, or their
eldest son—meaning their natural death—he should be
guilty of high treason ; and further, that if any man
levied war against them, or aiding their enemies, he
should also be guilty of the same crime." Before the
reign of Philip and Mary that simple law, made by wise
and sagacious men for the protection of themselves and
their fellow-subjects, was frittered away, mystified, and
perplexed. Men were put to death for mere words, and,
as it was described by a profound lawyer, the courts of
law in England were caverns of murder. An Act,
therefore, was passed to restore the law, and Lord Coke,
observing upon it, said the statute of Mary enacted that
no Act whatsoever, by words, ciphers, deeds, or other-
wise, should be high treason, unless it was declared to
be so by the statute of Edward, and added that so many
treasons had been made before that Act, that not only
ignorant, but learned and expert men, were caught and
trapped by them. The Act of Mary remedied that state
of things. It was distinct ; leaving nothing to the dis-
cretion of the judges ; and the two rules recited in the
preamble were true. They were then, first, that the
authority of the Sovereign was held by the love and
favour of the subject, more than by the dread and force
of laws made with rigour and extreme punishment; and,
secondly, that laws justly made for the preservation of
the commonweal without extreme penalty and punish-
ment, were often better obeyed than extreme
laws made with extreme punishment. Lord Coke
expounded that statute in a few lines : he said
that it was express against all implications, and that no
temporary judgment or opinion of the judges could make
anything treason which was not so expressed in the
statute. Lord Hale explained the exception in that act,
for there was an exception in it, and it was this—if a
man covertly and secretly rode about with a body of
armed men against another to rob or slay him, or to de-
tain him until he was ransomed, that was not treason.
In this indictment there was a charge of having cern-
passed the death of the Queen. The intention of com-
passing the death was an operation of the mind, and
overt acts were the means by which that intention must
be discovered. But a conspiracy for compassing the
death of the Sovereign, though the conspiring be not a
matter for directly accomplishing that end, yet if there
were anything that in all probability would induce it,
that was laid down to ba an overt aet to prove the
compassing of the death—as if, for example, a man
conspired to imprison or detain the king—and it was,
accordingly, so adjudged in the cave of the Earl of
Essex in the reign of Queen Elizabeth. But, said a
high authority, words were not of themselves overt
acts within the statute ; one reason was that they
were easily mistaken, misapplied, misrepresented,
or misunderstood by others ; and another was, that a
man in a moment of passidn might also say many things
he never meant to do. It was requisite, therefore, in
cases of so nice a nature, that the intention should be
evidenced by the doing of some acts in prosecution
thereof. All that was wise and consistent with the law
of a free country. That state of the law had not con-
tinued long before the unhappy doctrine of constructive
treason arose, and in process of time another levying of
war was made out for that contemplated by the statute.
The Earl of Northumberland marched towards the battle
in which an army under his son Hotspur was engaged
against the forces of the King, but when he heard of his
son's defeat he marched back again; and the judges held
that, as the object of his march was doubtful, whether
ho was going to join the forces of the King or Hotspur,
it was not high treason. Lord Hale said that was a
gentle judgment, but so it was decided. But there was

now a levying of war called " a constructive levying
of war," and that was the kind attempted to be made
out in this case. If a rabble met together, and in-
tended to pull down one meeting-house, that was
not treason, but if they intended to pull down many
then it was said that it encroached on the King's
prerogative ; and, the purpose being general, that
was considered to be treason. A case had occurred
of that nature. But as to the levying of war, there
must be three things proved; first, that it was against
the King in his realm, and for a general purpose. The
Learned Counsel then referred to and stated the particu-
lars of the celebrated case of " The Weavers." In that
case a number of persons, having created an insurrec-
tion for the destruction of weaving looms, were indicted
for high treason. The question was submitted to the
judges, of whom Halo was one, and five of them were
of opinion that although the writ extended over five
counties of England, and the King's guards had been
resisted, and loss of life had occurred, yet as the object
of the insurrectionists was personal and private, and not
general, it was not a levying of war within the statute,
and that they were not therefore guilty of high treason.
So essential was it to establish the crime of high treason
that the intention should be evidenced by overt acts, but
when the regicides, on the restoration of Charles 11.,
were tried for high treason, they were tried for a con-
spiracy to kill the King, and the overt act charged—a
strong one certainly—was cutting off his head. Mr.
Justice Foster, in commenting on the import of words,
said, that " loose words, not relative to overt acts or
designs, are not overt acts of treason;" and in various
other parts of his work he substantially repeated that
opinion. The Learned Judge then proceeded to
draw the distinction between a direct levying of
war and a constructive levying of war, and said
that an insurrection for breaking into a prison and
rescuing persons therefrom was not a levying of
war to support the charge of compassing the King's
death. In this indictment the prisoner was charged with
compassing the Queen's death, and the overt act was a
levying of war. If that levying of war was not direct
but constructive, as stated by Judge Foster, then it was
not evidence of the compassing of the Queen's death ;
and as in the 6th count no other act was stated than
those laid in the other five counts, if the overt acts there
charged did not aim directly at the death of the Queen,
they amounted only to constructive treason and the con-
spiracy of compassing the Queen's death by the levying
of war, did not support the charge as laid in the 6th
count. But Mr. Justice Foster further observed that the
levying of war for a purpose coming within any of the
species of treasons declared by the statute of Edward
111. would not, fall within the Act of Parliament unless

[PRICE SD.

' the rising was effectual ; but when there was a rising of
that nature, all parties connected with the conspiracy
were guilty. The jury had heard the Attorney-General
say that all the members of the Confederation, of which
they had heard so much, were guilty of treason ; but if
that were the case—if, from the conduct of two or
three members, all were guilty of treason, the country
would be deluged with blood. Lord Coke had dis-
tinctly said that bare words might make a heretic,
but not a traitor without ;overt acts. In later times
there had been two or three practical instances of what
was said to be a levying of war so pertinent to the
present case that he would report them. The first was
the case of Lord George Gordon. That nobleman by
force endeavoured to procure the repeal of a certain Act
of Parliament. He headed a body of 50,00 n men, and
for five days the most violent conduct ever witnessed in
London took place. Some of the public establishments
were broken into. Houses were burnt—property was
destroyed. The King was in London, but the purpose
was particular, not general, and in that case the great
lawyer who conducted the prosecution never ventured to
say it was evidence of compassing the King's death.
No count for that was put in the indictment. In the
memorable trial of Watson, a great question turned
upon a paper found in his pocket. The speeches spoken
by him were put in evidence. In the document found
in his pocket London was divided into certain sections,
apparently for the purpose of attack ; but the jury
acquitted the prisoner. The next case was that of
Frost. The Attorney-General had called upon him to
explain this thing and that, but the law must ex-
plain it. The Crown must establish the guilt of the
prisoner before he was called upon to say one word in his
defence. In Frost's case an expression of the prisoner's
explaining certain things did fall from the counsel for
the prosecution; but Sir Fitzroy Kelly—he wished he
had that Learned Gentleman's masterly ability—refuted
it at once. A distinct proof was given of a general plan
for a march upon Newport and a general rising over the
whole kingdom. Frost, with the boldness which cha-
racterised the people of England when they rise in insur-
rection, placed himself at the head of a body of men with
which he attacked the soldiers drawn out in defence of
the place. He was tried for his offence, and when the
Attorney-General called on his counsel to explain the
purpose of his acts, it was decided by the Learned Judge
who presided that he was not bound to do so, and his
defence was conducted on the grounds that he had
marched into Newport for the purpose of rescuing Vin-
cent from gaol. If his counsel had succeeded in per-
suading the jury that this had been the case, he would
have been entitled to a verdict ; for, according to the
Learned Judge, though the offence committed by
Frost had been one of great weight, it would
not have amounted to high treason, because there
was something personal in the object for which
it had been committed. He now came to the indict-
ment against the prisoner at the bar. He was accused
of having committed various treasonable acts, abou

between the 17th and 30th of July; of having appeared
in arms at Ballingarry, Mullinahone, and Killenaule;
of having obstructed the march of the military at the
latter place (though it is not stated that they were
marching on their lawful business); of levying war at
Farrinrory ; of levying war generally, and of conspir-
ing to kill the Queen. As to the last offence, Mr.
O'Brien had about as much intention to commit it as he

had to kill the Great Mogul. The Attorney-General
told the jury that the space in which the treasonable
acts were committed was little more than a week; but
in the evidence he laid before them he called on them to
look to speeches in January, 1847, as explanatory of the
acts done by Mr. O'Brien in July, 1848. He contended
respectfully against that objection, that Mr. O'Brien
ought not to be called on to explain the history of his
life, to satisfy the jury of the intent with which he had
acted at Ballingarry. In the present instance Coke's
boast, that the great distinction between trials for high
treason and for other offences was, that a person ac-
cused of the former knew exactly what was laid to his
charge was falsified. The Attorney-General opened his
case by calling up Mr. Hodges, the Government repor-
ter, to prove certain speeches. Now if there were any-
thing more odious than another in the whole scope of the
law, it was an attempt to make out the crime of high
treason by cumulative evidence. The Attorney-General
should have gone at once to prove the acts at Farrinrory
tad Ballingarry, and not have put forward those old
speeches us evidence of the intent with which those acts
were done. The doctrine of the Attorney-General
amounted to this—that by adding a speech which was
not sedition, to another which was not treason, to a third
that was neither one or the other, you could constitute
the crime of high treason in the person who made them.
Mr. Hodges rendered faithfully and truly, beyond all
doubt, every word he heard Mr. O'Brien utter—he did
nut believe that gentlemsn would wilfully falsify one
letter. Two of the speeches reported by Mr. Hodges
-had been already proved against Mr. O'Brien in a trial
for sedition. He hoped the verdict of the jury would
reprehend the Attorney-General for such a course.
Having failed to get a verdict for sedition, he pro-
ceeded against Mr. O'Brien for high treason. In-
stead of doing so, he should again have joined issue
with Mr. O'Brien, and have endeavoured to con-
vince another jury that these speeches were seditious.
It was not legal, nor was it fair, to attempt to show that
a speech containing all kinds of topics, and which took
one hour and a half to read, could prove the acts of Mr.
O'Brien at Killenaule. But could it he argued that every
word spoken by the members of the association, unless
spoken in furtherance of the common design of the body,
was evidence of the intent of the acts done by any of the
body susequently ? But in Hardy's case, when' =eh
stronger language was used, it had been laid down
by the Court that thet members :of the association
were only bound by the rules setting forth the object of
their body. He regretted that the Attorney-General
had thought proper to allude to Mr. O'Brien's con-
nexion with the Confederation, as it became necessary
for him to state the history of his client's association
with them, in order to show how unfounded were the
charges against bim. The tact of the Attorney-
General was shown in bringing forward those speeches
in the first part of his speech, for if he had gone to
the acts at Ballingarry and Mullinahone, without
forcing a treasonable intent out of the speeches, no
one would ever for one moment have believed that
Mr. O'Brien intended to levy war against the Queen.
Many years ago Mr. O'Brien entered the Imperial Par-
liament. He belonged to the rare class of Irish senators
whose boast it was never to have been bought or sold.
His course was independent—it might be called eccen-
tric. He displeased parties because he would not stoop
to any. He was regarded as an impracticable man.
When he joined the association a speech of his was
printed and circulated as a manifesto of his opinions,
and those opinions were honourable to his sense and
good feeling.—(The Learned Gentleman here read the
speech, which was a lengthy document setting forth the
grievances of Ireland, and the writer's propositions for
their remedy; and commented on it as he proceeded.)
Mr. O'Brien truly enough said that the suggestion of
Mr. Nicol, a stranger, had more weight with the Eng-
lish Parliament on the subject of the poor-law than
that of all the Irish country gentlemen. Unlike many
political Protestants, he was no reviler of his
clergy and his church, but in this manifesto boldly
declared that Protestants should not be excluded from
their fair share in the benefits of national education.
Before 1843, Mr. O'Connell and his client had had
some misunderstanding, but with a peculiarity which
marked his nature, when Mr. O'Connell was in difficul-

ties, and was under the ban of Government, Mr. O'Brien
came forward to his support, and became a member of
the Repeal Association on the ground that he had tried
the British Parliament, and failed in obtaining justiee.
The Learned Gentleman read the letter which Mr.
O'Brien addressed to the association on that occasion.
The objects stated in that letter were just and reason-
able. Mr. O'Brien set out to promote them with all his
energy. A discussion arose in the association about
moral and physical force; that discussion was not with-
out its purpose. Mr. O'Brien wanted to put an end to
humbug; he wished to see an end to the farce of men
who were in connexion with the Government of the day
getting up an agitation which they resolved should not
go too far, and which they made the means of obtaining
Government place and emolument. He said, therefore,
to the association, " You must give up looking for place
and pension." "Oh 1" was the reply, " you are an im-
practicable man." " You must turn out Richard Sheil,
Master of the Mint, from the borough of Dun-
garvon.” "It can't be done—this would be
physical force. You are very unreasonable," was the
answer. Mr. O'Brien said he was in earnest when he
contended for a national legislature. The association
refused to listen to him; they got up a distinction about
moral and physical force accordingly. Mr. O'Brien said
he did not want physical force, but certainly admitted
that, under certain circumstances, it might be justifiable
to resort to it. And surely that opinion was right and
just. On the truth which it enunciated depended the
right of the judges to their seat on the bench, and of the
Queen to her throne. The association thought other-
wise, and Mr. O'Brien, and those who thought with him,
resolved to found another body to carry out their views.
Counsel next read the address which was issued on the
formation of the Confederation, pledging the members
to procure domestic legislation, and repudiating the doc-
trine of physical force, but insisting on agitation for
their objects, in accordance with the constitution. About
the same period a meeting of gentlemen—the first in
the land— was held under the name of the Irish Council
to form some combined plan of action for the good of
Ireland. Mr. O'Brien was invited to attend, and
made a speech iu which he uttered the sen-
timents of a true patriot. Here the Learned Centleman
quoted passages from the speech, and argued as he pro-
ceeded that they were worthy of being looked on with fa-
your rather than disapproval. In April, 1847, an attempt
was made by a nobleman, who possessed as large a heart
as ever swelled in a human breast, Lord G. Bentinck, to
procure a great benefit to Ireland for the promotion of
railways; Mr. O'Brien started to London to support that
proposition. It failed, and on his return he told his.
countrymen what was but too true, that when the inte-
rests of England were at stake rish patriotism and
truth were forgotten. He resolved to agitate for repeal;
to Whig alliance—to the great constitutional compact
he was inexorable. Accordingly, in May, he made a
speech, in which he laid down the soundest doctrines
with respect to the rights of property. On the 13th of
Nov. a report of the Confederation confirmed those doc-
trines, and avowed them. Soon afterwards Mr. O'Brien
visited Belfast, and found that the people there enterteined
different opinions, from those which their ancestors had

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