The Sun.
London, England, 1848-10-23 00:00:00

OCTOBER 23, 1848.
Bus'

_ •-.
were very voluminous, in which Michael Moran, John
Joieph Moran, and John M'Cormick, were charged
with the offence he had stated, and if the jury
were satisfied of their identity they would have little
difficulty in finding true bills. He had but ono only
observation more to make with reference to the cases on
the part of the Crown. The law officers of the Crown
were, in another place, discharging their public duty'
and it might happen at a future time, during the sitting
of the commission, they (the grand jury) might be
called upon to receive from the Court such instructions
as the law officers of the Crown shonld think proper to
submit; but, unless such a circumstance should arise,
they would proceed in the ordinary way to consider the
cases that would be brought before them.
The Learned JUDGE, in addressing the county grand
jury, merely referred to the closing observations he had
addressed to the city grand jury, and, concluded by
stating that some bills would be sent up to them
against persons charged with having arms in their pos-
session without license, and they would consider in how
far the charges against these persons came nnder the
provisions of the Act.
The Court, shortly after, proceeded with the trial of
prisoners.
Until the arrival of the Attorney-General from
Clonmel, the trials of Mr. Gavan Duffy and the other
parties charged with felony will notltake.place.
Nothing in the shape of public interest was mani-
fested respecting the proceedings at this commission,
although it was known that the prosecutions against
Messrs. Duffy, Williams, and:O'Doherty were pending.
As stated by Mr. Justice Torrens, the bills for felony
against those persons were found at the last commis-
sion, so that the Crown can proceed at once with the
trials, without the intervention of the!present grend jury.
It is quite possible, howeveNthat the Attorney-General
(who is expected in town from Clonmel on Monday)
may send up fresh bills of indictment in the case of
Mr. Duffy; but at present the only charge against
him is founded upon the indictment under the Treason
relony Act.

THE LORD LIEUTENANT.
Saunders' News Letter says:—
" We understand that his Excellency the Earl of
Clarendon, on his visit to London, will receive at the
hands of her Majesty the ribbon of the Order of the
Garter, vacant by the death of the late Earl of Carlisle.
His Excellency's stay in England will not extend be-
yond a few days."
It is stated very confidently here that the Earl of
Clarendon is to be raised to the dignity of a Marquis„

THE SPECIAL COMMISSION.

falsehood never existed, nor outside " Gil Blas" did they
ever hear the history of such a man, who, on every occa-
sion, and in every employment, seemed to have delighted
in acting the eharacter of a spy, and inventing the basest
falsehoods. They would recollect that he swore, on the
first trial, that Mr. Meagher was present at the meeting
on the 19th of July. On the present occasion he con-
tradicted himself, and as to the " Red-hand Club," of
which they had heard so much, he would produce a wit-
ness who would prove he never knew such a man as
Dobbin was elected a representative to the council, al-
though he was present every evening. Suppose
the thirty men, to whom he alluded, and whose fate de-
pended on the present trial, were going to be hanged,
and they said, " Pray, Mr. Attorney-General, what
have we done?" Oh, he should reply, " You were levy-
ing war against the Queen." " Levying war against the
Queen; why, we were poking our parlour fire in
Dublin." Yes; but certain persons were levying war
down in Tipperary, and you were constructively guilty
of the same act, would be the reply. Well, then, the
thirty unfortunate men might properly say, " If we are
found guilty of constructive treason, let us be construc-
tively hanged."—(A laugh.) The statute of Edward
111. enacted, in as plain words as could be, that levying
of war should be actual, and open in the field. But
words were made eonstructive treason by bad decisions
and corrupt judges. It was done in the reign of
that most pure, virtuous, patriotic, high-minded Sove-
reign, Charles ll.—(Laughter)—by half-a-dozen men,
who resolved that a few men getting into a corner and
whispering something together, formed a conspiracy,
and was to be held as high treason. That was a law
which the present Lord Chief Justice of England told
a jury they should rather perish in the box than act
upon it, and so he (Mr. Whiteside) would also say, that
if he were on that jury he would rather perish than find
the prisoner at the bar guilty of high treason under such
circumstances. The Learned Counsel next referred to
the evidence of the policemen who deposed to the
speeches made at Enniscorthy on the 24th of July. By
the Treason Felony Act the exact words spoken must be
deposed to by two witnesses, but in that of high treason,
as in the present case, the evidence of policemen was
given, who reported words and speeches, and the jury
were to convict his client upon such testimony. If there
were to be any safety for life—if there be any good ex-
pected for their country—let them not believe such evi-
dence—let them not convict a young and ardent man
for high treason because in a moment of excitement he
made speeches on which ho never intended to act. What
said Lord Erskine—the brightest ornament of the
English Bar, and a man when on the Bench who left an
example to those who follow him in the judgment-seat
—what said he of that description of evidence ? " But
let us first examine," he said in the celebrated case of
Horife Tooke, "in what manner this matter, such as it
is, was recorded. He preferred to speak from notes,
yet I observed him frequently looking up to the ceiling
whilst he was speaking, when I said to him Are you
now speaking from a note ; have you got any note of
what you are now saying?' Ho answered—Oh 1 no,
this is from recollection. Good God Almighty !
recollection mixing itself with notes in a case of high
treason. He did not even take down the words ;
nor, to do the man justice, he did not affect to have
taken the words—but only the substance, as he
himself expressed it. Oh I excellent evidence. The
substance of words taken down by a spy, and supplied
when defective from his memory ?" They then pursued
his unfortunate client from Enniscorthy to Graig, and
so on to Callan, Nine-mile House, and on to Carrick.
There they had witnesses deposing to such language as,
the" grass rising in one rapid sway."—(A laugh.) One
man sunk the fire-ship, and another brought it up from
the depths of the sea—(Laughter)—for the purposes of
that prosecution. The Learned Counsel next proceeded
to comment on the evidence of the police who deposed
to the speeches, and continued—that was the evidence of
the Crown on that part of the case. His Learned Friend
the Solicitor-General was a man of honour and a gentle-
man, and he would watch to see if he would ask them for
a verdict on such testimony. He knew he would not ;
for nothing worse was done in the worst days of the
Stuarts, nor in that fearful record of crime—
the State Trials of England. Were they to send a
young man to the scaffold on such reports of speeches
as were given in evidence? It was in the power of the
jury, no doubt, to do so—the prisoner at the bar was in
their power, but if they convicted him they would shed
innocent blood. For his own part, a worse case than
the present he had never heard of or read, even in the
worst days of the state trials. He contended that had
his client been tried by twelve Englishmen in England,
his acquittal was certain. Ho (Mr. Whiteside) never
felt so much pain in his life as when he heard from a
member of this bar, much his senior, that had Arthur
O'Connor been tried in Ireland, instead of England, he must
have been convicted. He would have been overwhelmed,
he said, in Ireland by a load of prejudice, which the
sober, good sense of England would have rejected, and
found guilty of high treason. A priest named Quigly
was found in his company, with whom treasonable
papers were got, but an English jury refused to convict
him, because they held he was not responsible for
the acts and conduct of another. The principal evidence
in the present case was that of spies; and what said their
brilliant countryman (Burke) on that description of per-
sons.—" A mercenary inrorwei ,"‘. distinction.
Under such a system the obnoxious people are slaves,
not only to the Government, but they live at the mercy
of every individual—they are at once the slaves of the
whole community, and of every part of it, and the
worst and most unmerciful men are those on whose
goodness they most depend. Is this situation men
not wily shrink from the frowns of a stern magis-
trate, but are obliged to fly from their very species.
The seeds of destruction are sown in civil intercourse
and in social habitudes. The blood of wholesome
kindred is infected—the tables and beds are surrounded
with snares. All the means given by Providence to
make life safe and comfortable are perverted
into instruments of terror and torment. This species of
universal subserviency, that makes the very servant who
waits behind your chair the arbiter of your life and for-
tune, has such a tendency to degrade and abuse man-
kind, and to deprive them of that assured and liberal
state of mind which alone can make us what we ought to
be, that I vow to God I would sooner bring myself to put
a man to immediate death for opinions I disliked, and so
to get rid of the man and his opinions at once, than to
fret him with a feverish being,• tainted with tho gaol
distemper of a contagious servitude to keep him above
ground, an animated mass of putrefaction, corrupted
himself and corrupting all about him." Tho Learned
Gentleman next referred to the transactions at
Ballingarry, and thus concluded : To sum
up my argument, let me ask fearlessly, has the
Crown established to a demonstration that the prisoner
levied war against the Queen? Directly he did not.
From a participation in each and all of the overt acts
laid in the indictment he is free as the child unborn. This
the Learned Counsel for the Crown confesses. The ad-
mission ought to startle the jury into the most watchful
attention to each step in the process by which the pri-
soner is argued into the crime of treason. Mr. Smith
O'Brien and others levied a constructive war against
the Queen, and the prisoner is asserted to have been
constructively present at the levying of constructive
war. The prisoner, through the agency of several per-
sons whom he did not see, with whom he did not speak,
nor corresponded, from Monday to Friday evening, was
all the while levying war against her Majesty, and by
construction is present, although physically and men-
tally absent. You are to find, by your verdict, ho was
constructively present, aiding those who were construe-
, tively levying war against the Queen. He is to suffer a
most horrid death, on the ground of the acts of others
with whom he was neither directly or indirectly con-
nected. This was the doctrine which baffled the cons-
' prehension of ordinary minds; the lawyer establishes
by vague words a tissue of assumptions. Compelled to
admit words are not treason, nor overt acts of levying
war, he converts the speeches into acts, and says the
prisoner is guilty, not by words, but words which he
calls acts. This is a grand step in the process of making
out a constructive crime, evading or misstating the whole
of the law of treason. The framers of the statute of
Edward would stand aghast at this demolition of their
glorious work. Moreover, these guilty words are
to be received as evidence which would scarcely
be listened to in a common action for slander.
This constructive levying of constructive war is
proved by cumulative evident* of equivocal speeches,
and which, though deemed sufficient in cases of life
and death, would not be received in cases of felony
under the statute of Victoria. This is the perfection of
reason—a lesser sla!gree of evidence required in the more
serious case. Assume there was a council of war, next
assume that this implied an intention to levy a particu-
lar' war in a particular place, neither being named or
specified, and nothing specific being mentioned as to time
or place, wherever or whenever the outbreak may
happen, those ignorant of the time, place, circumstances,
and actors, who never instigated the perpetration of any
of the acts charged, are said to be rebels—are guilty,
not merely of the conspiracy, but of the fact
of levying war in the open field. This makes
our law of treason an abominable imposture,
for it enables a prosecutor to pretermit the
charge which might be sustained for conspiracy,
and to charge a man with the doing of a number of
facts, of any one of which he is wholly innocent. The
rational view of the matter would be, to consider the
man who conspired to levy war guilty of the conspiracy
when indicted for that crime, and when his guilt was
established by two witnesses to that crime, and to con-
sider those who levied war guilty of that fact when
shown that they did actually levy war in the field. The
course taken here is, to confound the distinction between
armies, and reason and justice alike. A plain violation
of the statute of Edward tho Third this is, and the vio-
lation is justified on most suspicious authority. Accord-
ing to the construction we contend for, every man is
guilty of this offence who, in the words of the old
statutes, levies war, or who incites others or a multi-
tude, to do the treasonable acts of which he is accused.
This is sensible. The opposite view is a contrivance to
sacrifice human life on a quibble. But, at all events, the
foundation of the accusation is, that some conspiracy or
other to levy war has been proved. It is really the sub-
stance of the charge, and without clear proof to demon-
stration of this conspiracy the acts of strangers would
not bind the prisoner. Now, the case should be re-
garded by the jury as if the prisoner was actually n-
dieted for the conspiracy, his real crime, if any ; or, if
he were so indicted, two witnesses would be essential to
convict him. But the jury hereimust be satisfieclawith