The Sun.
London, England, 1848-10-02 00:00:00

IRELAND.

'PIM STATE TRIALS.

es..foNmEL, 'SLIDA Y .—The trial of Mr. W. S.
O'lfien, M.P., was this' morning resumed. The-
exci.teme-Ot-WiiaTiiiii--eihibited yesterday had much
increased. The re was a greater number of ladies
present in tilt,- gallery, and every part of the court
was.crowded.
The prisoner remained perfectly calm throughout.
Upton the Atdges taking their seats,
Mr. Wnr-rmswa syplied to the Court to have the
panel recalled et a higher' fine for those who did not
attend.
The names of those who had not before answered
were then recalled, hilt the Lo-,.11 Chief Justice di-
reeted it to be done under the same penalty of 101.
Only four answered.
Wiimestnit then made an application to the
Court to have the jury chosen by ballot. He quoted
the authority of " The King r. Frost," in which it
was allowed, on the ground of the panel having
been drawn rAphabetically. In that case Lord Camp-
bell, then attorney-General, said it seemed to him
a matter of flit most perfect indifference. From
the ith William 111. to that trial he believed that the
calling by ballot had never been adopted, but if their
Lordships the .Judges thought it would promote the
iodpartial administration of justice, ha would concur
w h the counsel for th-_! prisoner and pray a depar-
turo from the common rule.

The ATTORNEY-GiARRAL believed that by yielding
to the present application it would imply that he ccn-
ceived the Sheriff had not fairly and impartially dis-
.charged his duty in arraying the panel, and he there-
fore must object to any departure from what had
been the rule in both countries as far back as he had
any means of ascertaining the practice.
The LORD CHIEF JUSTICE—We cannot, without
the consent of the Attorney-General, make such an
order. Call the panel.
The Clerk of the Crown informed the prisoner that
he might challenge twenty of the jurors peremptorily,
and as many others as he could show cause against.
'The pane! was then called.
R. M. S. Mornsergh and E. C. Moone were then
called and sworn as jurors. J. Willington and F. A.
Jackson were challenged by the prisoner. On R. A.
Riversdale, being called,
Mr. WaxrEstun chatiengt•d him on cause. The
gentleman did not stand indifferent to the, prisoner, as
he was prepared to show: - -
The COURT ordered Mr. Mornsergh and Mr. Moone
to he sworn as triers of the cause.

Mr. WIIIT£SID 13 stated the grounds of challenge.
Mr. O'Brien was Member for the county of Lime-
rick, in which Alr. Phillips held the commission of
the {peace. Some time-ago the latter gentleman had
a quarrel with a person in that county, and accused
him of firing at him. It appeared doubtful which of
the two fired the shot in question, but Mr. Willing-
ton took proceedings against the other, who, being
acquitted, thereupon applied to Mr. O'Brien to bring
the matter before'the House of Commons, and under
the notice of the Chancellor. Mr. O'Brien had done
•so accordingly, and the impression on his mind was
that Mr. Willington did not stand indifferent to him
in consequence.
The ATTORNEY. GSNBS AL said that, if there were
arty foundation for the statement, and if the prisoner
entertained any such notion, he had no objection to
let the juror stand by at once.
Mr. Willington was passed over accordingly, and
Messrs. L. Creaßh, C. Clarke, J. W. Barton, and J.
R. Minnitt, on answering to their names, were chal-
le,nged peremptorily by the prisoner.
R. A. Garson was the third juror sworn.
Mr. H. Langley was ordered to stand by in con-
sequence of his statin., • the Court that he had been
present at the origijr examinations before the ma-
gistrates after tke affray at Ballingarry.
Mr. W. 13. Smithwick claimed exemption from
service on the jury, because his wife and Mrs. O'Brien
were near relatives, and the Attorney-General ordered
him to strand by.
Mr. J. Goring was the fonrth juror sworn.
Colonel H. Dwyer, J. J. Hutchinson, J. Banbury,
and R. Phillips ure challenged peremptorily by the
prisoner.
Mr. W. Going pleaded, as an excuse from service,
that he lived in the immediate vicinity of the place in
wlich the insurrection had occurred, and was one of
the magistrates before whom the information had been
sworn.

The ATTORNBY-GENPRAL ordered him to stand by.
Messrs. W. Briscoe, G. Cooper, G. Gough, W.
Smith, J. Sankey, IW. Biddulph, W. C. Gason, J.
Alinnitt, W. Ryan, and 0. G. Philips were chal-
lenged peremptorily by the prisoner.
Mr. J. Langley was ordered to stand by on eating
he was one of the magistrates before whom the infor-
mations had been sworn.

Oa Mr. S. Monsergh being called he was chal-
lenged by the prisoner.
The ATTORNEY-GENERAL—You have exhausted
your challenges, and the Coutat cannot allow you to
strike off the name of Mr. Monsergh unless o❑ spe-
cial cause.

Mr. WHITBSIDD said he was prepared to argue
that the challenge should be allowed if the assump-
tion that England and Ireland were under equal laws
was correct. In 2d Hale, 267, the common law was
distinctly stated to be that a person accused of treason
was entitled to challenge peremptorily any number
under that of ;three whole juries, that was 35 chal-
lenges, and this privilege was granted to him infaro •
rem •itx because he stood arraigned on a capital
charge. The Bth of Philip and Mary enacted that
trials for high treason should follow the course of the
common law. It remains to be considered whether

or not the privileges of the common law were taken
away from Ireland' by statute, and he contended that
the Act which was supposed to hare that effect did
not apply to the crime of high treason but to that of
petty treason, which was a crime of a different nature.
The 9th George IV., for the better Administration of
Justice in Ireland, in the 9th section, enacted that no
person„ arraigned for treason or murder should he
tatmitttal to peremptorily challenge over the number
of 20, and if he do so that the challenge was not to be
alloyed. He submitted, from the context of the Act,
that the treason there spoken of was petty, not high
treason, and that the offence to which the Act re-
ferred was but a felony. The Learned Gentleman
quoted Hawkins, page 205, and other passages, to
Below that the law treated petty treason in the light
of a felony, and proceeded to argue that the Act'
which was' supposed to strip the subject of his com-
mon-law right should be construed favourably when
doiibt existed, and where his life was at stake, and
Mat the prisoner was entitled to the number of pe-
ramptory oballengee allowed in cases of high treason
be the law of England.
The ATroae MT • GENERAL submitted that there was
no questi.ia to be argued. It was unnecessary to4in-
qatire what was the common law of Ireland, M by
the steteite of the 9th George IV., c. 64, it was en-
acted that no per-4m aisraignelfor " treason, or mur-
der, or other felony," should be'permitted to challenge
mare than twenty jurors peremptorily. There was
such a thine. as petit treason, distinct from high
treason, but he never had heard that the word " trea-
son" did not comprise both.
Mr. Feeatosteeen argued that, from the words
" other felony," the treason first-named in the statute
must Mean that species of treason which had been re-
duced to felony,snaux,ly, petit treason.
The Loan Clit Er `ausr 13—: We are of opinion that
the word." treason," comprises all treasons, and that
it cannot be cut down to signify one species.
Tile challenge was disallowed.
Mr. WHITESIDE wished the disallowance to appear
on the record.
The LORD CHIEF JUSTICE —The words of the Act
are, " the challenge shall not be allowed," let those
%verde be followed.
Mr. C. Going was then sworn. .
The jury stood thus accordingly M. S. Mon-
rergh (foreman), E. C. Moose, R. A. Gason, J.
Going, Johd Lloyd, J :Perry, J. Russell, E. Penes
father, •TeSadlier, J. Tuthill, S. Monsergh, and C.
Going.
The Clerk of the Crown then read the indictment.
Mr. FLTZGIALD stated that he and his Learned
Friend wished all the witnesses to le,ave the court.
The ATTORN2I"-CrENERAL had 0' Objection ; but
o-e gentleman, Mi. Hodges, was else' engaged on the
part of the Government to rep )rt the proceedings on
this occasion. General M`Donald also was summoned
by the Crown, as well as Major Urownrigg, end it
would hawdly be necessary for them to leave. He saw
in court another gentleman, Mr. O'Hara, who waS
summoned by the Grown, but, like the other wit-
nesse% he had no control over him.
Mr. Smith O'Brien—l do not object to General
3el`Doreeld. or Major Brewnrigg, but I do object to
M. Ilfrodgee being present. Ire attended all our
meetirtge, representing himself to he simply a _re-
pealer, and prepared to prove only that certain words
were uttered. He now .comas forward, 8.0(1 swears
ilaat the words so uttered were seditioaand treason-
able. r apprehend . therefore, that his character differs
fetem that df ar Binary reporter, and I cannot think
that tfis report would be a fair report.
The Aaeroamme-GENERAL.--Mr. Hodges is to be
liCarainectto prore report of speeches of which he took
noires. He will be our first witness.
Mr. Hodges said he could retia6, as his son would
take a note of this Wel.
Mr. Wurrisioa.—We ask that the ordinary rule
may be folio-vied.
Lord Chief Justice DOHERTY.—There is no stern
rule—rt is always subject to be modified upon rea,on-
ilerk circumstances.
- The Lou CHIEF JUSTICE.—'dr. Hodges attends
in a prafassional capacity. To the other two, General
li`Donald and Major Brownrigg, there is no objec-
'ion.
theprisoner—So.far as I am concerned I do not
tfequieece in Itr. liodgee being present. He departed
from Nis chaiateter of a rep Ater. We afforded him