The Sun.
London, England, 1848-09-30 00:00:00

IRELAND.

THE STATE TRIALS.

CLONM EL, THURSDAY, SEPT. 28.—The trial of
Mr. ;Sm ith O'Brien, M.P., for high treason, was
opened rnis morning.
The Judges took their seats at eleven o'clock, and
within a few minutes every part of the court was
filled.

The Countess of Donoughmore sat in the
Sher;,ffs' box near the Judges. Lady Osborne and
sevetell other ladies were in the Sheriffs' gallery,
but neither Lady O'Brien nor Mrs. O'Brien were
present.
Sir Lucius O'Brien and the Rev. Edward O'Brien,
brothers of the prisoner, Lord Hawarden, and Lord
Dudley Stuart, and also Mr. Sergeant Shee, of the
English bar, were in the body of the court. General
I,l`Donald was in the Sheriffs' gallery.
The Attorney-General, the Solicitor-General, Mr.
Scott, Q.C., Mr. Sausse, and Mr. Lynch were the
counsel for the Crown ; Mr. Whiteside, Q.C., are,l
Mr. Fraetcis Fitzgerald appeared for the prise-„,,r,
Before Mr. O'Brien was called upon to -plead, the
prisoners Tyne, Orchard, and O'leonnell were
brought up, and Mr. O'Callaghan, was assigned as
counsel for each of them. U'tson their retiring Mr.
O'Brien came to the front oc the dock, and stood for
some minutes leaning as:atnst the rail. He was then
accommodated with Pe seat. lie was perfectly com-
posed, and nodded, familiarly to Dr. Gray, who sat
near the dock.
Sir C. Q'ieoghlen, who, though not engaged as
Counsel., was present, and took an active part in the
Pr9c'eedings, handed a parchment document to the
P'ltsoner, which was forthwith sworn to by him, and,
from what afterwards occurred, appeared to be an
affidavit that no copy of the panel of the jury or of
the list of witnesses had been delivered to him.
Mr. WHIT6SIDE, then addressing the Court, said,
that that was the proper time fir him to show cause
why the trial could not at that time proceed, but
must be postponed until their Lordships had decided
what was the true construction to be given to certain
Acts of Parliament to which he would refer. The
question was, whether the prisoner was or was not en-
titled by Act of Parliament to a copy of the jury panel
and a list of the witnesses to be produced against him.
Unless there was to be one law for England and
another for Ireland, that must be granted to the pri-
soners. It went to the very root of the defence of a
man tried for high treason, that he should have the
privilege to prepare for his defence. The statute of
William 111., chap. 3, an English Act, gave the party
accused a copy of the indictment, and a copy of the
panel of the jury must also be delivered to him. By the
7th Anne, chap. 20, also an English Act, the prisoner
was further to have delivered to him a list of the wit-
nesses, with their description, at the same time with
the copy of the indictment. It was upon that very
point that in the case of " The Queen v. Frost and
Others" the lives of the prisoners were spared. The
next Act, that of the 36th George 111., an English
Act also, made compassing the death of, or levying
war against the Sovereign, high treason, and re-
affirmed the old treasons declared to be such by the
statute of Edward 111. Those statutes were all
before the union, but the 57th of George 111. was
passed since the union, and was the Act upon which the
question chiefly arose. After reciting the statute of the
30th George 111., which merely applied to the life of the
then King, it enacted that all the recited provisions
should rte to the heirs and successors of his Ma-
jesty. heir Lordships were aware that since the
union, as there was said to be but one realm and one
Parliament, Acts made in relation to the United
Kingdom included Ireland, unless that part of the
United Kingdom was excluded by a distinct provi-
sion. Now, this statute of the 57th George 111.
having recited that outrages had been offered to the
Prince Regent of the United Kingdom, and that it
was expedient to extend the general provisions of the
36th George 111. to the heirs and successors of his
'Majesty, enacted by section 2, that any person who
should cernpass the death or destruction of the Prince
Regent of the United Kingdom, or the heirs or suc-
cessors of his Majesty, should be deemed traitors, and
suffer the punishment of death ; and by section 4 it
was provided that all persons arraigned under the
statute should be entitled to the benefit of the statutes
of \'illiam 111. and Anne, except in the case of high
treason, where the overt act of treason should be
he assassinaiion or killing of his Majesty or any
heir of his Majesty. The question then was, whe-
ther that Act applied to Ireland ? and if it did there
was an end to the discussion. He believed that since
the union not a single case had occurred in which it
was ever held that a specific provision was requisite
to extend a general act of the United Kingdom to
Ireland. Dwarris, in his book upon Statutes, laid it
down that all Acts extended to Ireland, whether men-
tioned or not, unless that part of the United Kingdom
were expressly excepted. It was so as to Scotland,
for there was the decision of the case of ° The King
Is. Cole" (2 Burroughes, 853), upon the point ; and,
unless there was a difference between England and
Scotland and England and Ireland it must be se as
to Ireland. The 4th section of the 57th George 111.,
was a proviso, and must he read as incorporated with
section 2, making the compassing of the death of the
King or his heirs the same in Ireland as in Eng-
land. Supposing, however, that their Lordships
were of opinion that the Act did not apply to Ire-
land, because not expressly named, then the second
branch of his argument arose, that by the statute of
11th Vict. the provisions of the 57th Geo. 111. which
were not thereby repealed, were extended distinctly
to Ireland. The only provisions which were so re-
pealed were those which did not relate to the death of
the Sovereign ; and it made the other provisions ap-
plicable to all parts of the United Kingdom. It was
plain, therefore, that every part of the 57th George
111. not so repealed was applicable to Ireland—that
anything relating to the compassing of the death of
the Sovereign was, by the terms of the antecedent
part of the section (2), directly extended to Ireland ;
and by the 6th count there could be no doubt that
the prisoner was expressly charged with that offence
against her Majesty. He might be answered, as he
had been in the case of Samuel Gray, that there was
in certain cases a different practice in Ireland ; hut
that case went to the House of Lords, and was there
*versed. Here, however, there was no practice—
there "had been no judicial decision on the question he
new raised ; and he wished to hear from their Lord-
ships why it should be the law in a country which
bq.gsfed of being governed by the Legislature of the
United Kingdom, that there should be one law for a
person tried for his life in England and another law
for Ireland, Ile relied upon the 57th George 111. for
what he asked, and if their Lordships were against
him upon that point, then he relied upon the Act of
the 11th Victofta to have the same privileges for the
prisoner as would have been allowed to him if he hod
been tried in England.
The ATTORM ET-GENERAL resisted the application
on The part of the prisoner, and contended that he
was net entitled to a copy of the jury panel and a list
of the witnesses against him previous to arraignment.
It was conceded by the C ainsel for the prisoner, that
at common law no such right existed, and the only
question that remained for the Court was, whether or
not there was any statute in force in Ireland entitling
him to such benefit ? The present indictment was
feetned tinder the statute of treasons in the reign of
Edward and it remained to be seen whether the
Court thought a person arraigned under the provi-
sione of that statute could claim the advantages ex-
tended to prisoners arraigned on treasons made by
subsequent statutes in the reigns of William 111.,
Anne, and George 111.
The CIITEY JUSTICE observed, that it was by a
statute of Qtaven Anne the-right tohave a copy of the
jury panel and of the list of witnesses was granted to
the prLoner.
The ATTORNEY-GENERAL—It was not contended
that the 36th George 111. extended to Ireland, its
object being lo constitute a new class of treasons
agaieet the reigning Sovereign of a temporary na-
ture., Then came the 57th George 111., which made
perpetual certain provisions in the preceding Act, and
included within the crime of treason offences therein
described against the per:on of the Prince Regent.
This statute did not extend to Ireland, and the sec-
tion on which the prisoner's counsel relied, while
eniusting that the accused should be entitled to the be.
netits of the statute of Anne, excludedhine from those
advantages in respect to the new treasons constituted
by the statute. There was nothing whatever in the
Act to alter the law of Ireland or to entitle a person
arraigned under the statute of Edward 111. to benefits
created by the subsequent Acts. If he were right in
contending that the Act of George 111. applied to the
new, not to the old treasons, it followed that the pri-
soner
one
rwas not entitled to advantages created under
new statute solely, and that there was no ground
for complying with the present
application.
r. WHITESIDE, on being called
M upon to reply,
submitted that he was entitled to it finally, and that
the Solicitor-General should follow the Attorney-
General on the part of the Crown.
The SOLICITOR
GENERAL—In the case of " The
Queen v. O'Connell" the question was discussed and
decided against you.
Mr. AVIIIT-EslDE—Yes, in the Court in Ireland;
but when the case was carried up to the House of
Lords the Irish practice was discussed, and it was
decided that the reply should rest with the counsel for
the prisoner. In " Cox's Criminal Cases" (414 p.),
a discussion on the very question was fully reported,
arid it was most fully settled in Frost's case, at Mon-
mouth, that the counsel had a right to reply.
The Court having consulted for a few moments,
The Loup CRIES' JUSTICE said that they would
hear the Solicitor-General then on the same side,
Without deciding whether or not Mr. Whiteside was
entitled the reply.
The SOLICITOR- GENERAL reiterated the arguments
!1e sed by the Attorney-General. It was manifest that
to 36th George 111. created temporarily a newsitw
of treasons in reference to the person of the reigning ,