The Sun.
London, England, 1848-10-09 00:00:00

risings for the purpose of effecting by force and
by numbers, however ill-managed, provided, or
organized the force may be any innovation of any public
nature, in which the parties had no special or particular
interest or concern, have been deemed instances of the
actual levy of war." Gentlemen of the jury, in stating
the definition in my view of the crime of levying war
against the Crown, and in stating the words of this au-
thority, I have probably led your minds to the conside-
ration of the true distinction which it will be important
to keep in your minds, and on which distinction the de-
fence of the prisoner is rested. He asserts that the ob-
ject of recurring to the use of force, and that the end
and object of all the exertions which are detailed in
the cause, were not to effect any general object or parti-
cular purpose whatever, but that they were solely and
exclusively done to protect his person from arrest : and
I have to tell you that if the object of all this arming
and of all this force was solely and exclusively to pro •
tect Mr. O'Brien's person, and the persons of those in
his company from arrest, he is entitled to your verdict
of acquittal. You will, therefore, at once see that in
order to sustain either the charge or the defence, it will
rest upon you, in the consideration of the evidence, to
come to one or other of the two conclusions—was the
object of this insurrectionary movement a general object,
or was it limited to the particular object of protecting
the person of Mr. O'Brien from arrest? But you will
observe from what I have stated to you that the personal
or peculiar object must be exclusive, because if, in
addition to that of protecting the prisoner from arrest,
there was the other and general purpose which the
Crown contends for, the existence of that particular
object is of no moment whatsover, for the moment the
general object is established that instant it becomes
high treason. So that you will observe in the consi-
deration of the case that you will not only have to fix
your attention upon that which constituted the defence
of the prisoner—that the object was to protect him
from arrest—but whether that was exclusively the oh-
iect of all that has been done. The question, no doubt,
as one of the intention of Mr. O'Brien and those who
accompanied him—did he simply intend to effect his
own personal security from arrest, or did he in-
ssnd to effect any object of a general character, whether
a change in the Government, a repeal of the Act of
Union, or the separation of Ireland from Great Britain ?
It has been contended on the part of the prisoner that
this indictment does not set forth the evidence upon
which the Crown relies in support of the intention which
the Crown imputes to Mr. O'Brien, and which it is bound
to establish. The law does not require that that should
be so. The law does not require that the Crown
should state the evidence it intends to adduce of the in-
tention—it does not require the Crown to state what acts
were done ; but it does require not only that the Crown
should state the acts of war which were done, but that
one or more of those acts should be established by two
or more credible witnesses, and the acts which are
stated in the indictment you will find to be as follows :
aiding and marching in a hostile manner through divers
villages, towns, and public highways in this country—
to wit, at Ballingarry; the erection of obstructions by
means of cars, carts, pieces of timber, and other mate-
rials on the highway, to obstruct and prevent
the march of the soldiers of the Queen ; at-
tacking and firing on a large body of con-
stables being then in the execution of their duty, and
endeavouring by force and violence to make the consta-
bles join them in a public insurrection and rebellion
against the Queen. Then follows the charge of an
attack upon a certain dwelling-house at Farrinrory, and
firing upon the constables therein. These are the overt
acts. They must each or one of them be proved by two
witnesses; what was the object will depend upon the
intention that is to be disclosed by the evidence. Of
that evidence you are exclusively the judges in the case
which is now before us. You will observe the period at
which one class of evidence may be said to terminate and
the other to commence. The evidence antecedent to the
actual outbreak at Ballingarry, on the 25th, is in some
respects contrasted with the evidence subsequent to that
period. The evidence antecedent to that period cannot
have any relation to the apprehension of arrest, because
during that antecedeut period no arrest was or could
have been contemplated. The evidence subsequent to
that time is connected with that apprehension of arrest,
and I need not tell you that the latter is a period of
great importance, and that from the time the insur-
rection commenced, on the 25th, at Ballingarry, every
one of the transactions that occurred are to be
minutely and critically examined, and during that period
you are to consider whether the acts of Mr. O'Brien, the
acts of those whom ho put in motion, his own declara-
tions, the conduct of those who were assisting him, do
manifestly exclude the object of effecting his personal
safety and nothing else, or whether, upon a review of
these facts and circumstances, they do not manifest an
ultimate and general purpose—that is, the purpose of
effecting a revolution in the country. But when the
question is, what was Mr. O'Brien's intention at and
after the 25th of July, and when the intention imputed
by the Crown is, that he then and there meditated a
general purpose, and that that purpose was revolutionary
in its character—when that is asserted on the part of the
Crown, they at the same time say that, looking to the
conduct of Mr. O'Brien for a period of the four antece-
dent months, they are able to satisfy you of the existence
of a revolutionary scheme, and of means and prepara-
tions adopted by the prisoner for carrying that scheme
into execution; and it cannot be objected in point of law
to the Crown, nor has the prisoner any right to com-
plain, that during the period intervening between the
15th of March and the 25th of July his conduct, his
acts, his speeches, and his declarations are brought for-
ward as evidence for the purpose of showing what
his intention was. In truth, a large portion of our
criminal law— many crimes are found to consist altogether
in intention, and I know no limit to the period at which
evidence is admissible of previous conduct or previous
declarations from which the intention may be inferred,
and if I were called upon to instance a case of the most
familiar occurrence, it would be the case of murder.
Homicide is committed, and in order to show malice on
the part of the person charged, declarations made by him
at any antecedent period are every day admitted, and
are plainly within the principles of justice. It is, there-
fore, perfectly consistent with the principles that are
allowed to prevail that Mr. O'Brien's speeches and de-
clarations antecedent to those occurrences are now
brought in evidence against him. I shall now call your
attention somewhat ill detail to the evidence on the first
of those periods— that is, the evidence that terminates
with Mr. O'Brien's departure from Dublin. The first
of the documents that are given in evidence is the
speech of Mr. O'Brien on the 15th of March, 1848.
Before I advert to that speech it is due, in justice
to Mr. O'Brien, to state that from all the evidence
that has transpired and has been adduced on
his behalf, there seems to be no ground whatso-
ever to impute disloyalty to him, or any treasonable
practices or intention; and it is also right to say that
with regard to the proceedings of the Confederates, their
rules, and their acts, as far as they have transpired, there
does not appear to have been any thing revolutionary in
the constitution or the acts of that body. This docu-
ment before us of Mr. O'Brien's speech on the 15th of
March, the accuracy of which cannot be doubted, has
been proved by the reporter. It was a speech delivered
at the Music-hall, and at the delivery of that speech
were present Mr. Dillon, Mr. O'Reilly, Mr. Meagher,
Mr. O'Gorman, jun., Mr. Duffy, and Mr. D. Reilly,
whose names you have often heard. During the delivery
of that speech Mr. Meagher came into the meeting. It
was delivered on a remarkable occasion. The French
revolution had taken place within the preceding three
weeks, and this body determined to present a congratu-
latory address to the French Government on that event.
Mr. -O'Brien was employed to prepare, and did prepare,
an address to the French nation, and he was appointed
to (70, and did go, as one of the deputation to present the
add; cis. Upon that document it was for you exclusively
to form an opinion and to decide upon it. I take it for
granted, as each party has referred to it, that some copy
will he agreed upon.
Mr. WHITESIDE wished to remind their Lordships
that in a criminal ease it was not the practice to send the
documents to the jury; that occurred in the case of
" The Queen v. O'Connell;" but he did not object to
send the documents, if it was understood that all the
documents on both sides should go.
The LORD CHIEF JUSTICE—I think it will be better
just to read through the passages.—(The Learned Judge
then proceeded to read the passages that had been put
in evidence, which alluded to the proposed address and
the appointment of a body of 300, and then proceeded
thus):—lt is for you to say whether those passages sus-
tain the allegation of the Crown or that of the prisoner.
It appears that Mr. O'Brien went to Paris; and the next
evidence which was given was the speech he made on his
return, on the 15th of April, at the Music-hall, in Dub-
lin, at which were present Mr. Meagher, Mr. Duffy, Mr.
Mitchel, Mr. O'Gorman Mr. M'Ghee, and various other
persona. A great deal of this speech has been already
stated to you—passages which show that he had been in
intercourse with persons in Paris ; but I do not think
there is any passage which has not been recently before
you, except a passage which relates to Mr. O'Gorman.
—(His Lordship read the passage.) Unquestionably
these speeches are of vast importance, to show the then
state of mind of Mr. O'Brien, and certainly indicate an
intention to take some measures towards the attainment
of the object he had in view. And the next document
which is given in evidence, is one of several that were
found in the portmanteau of Mr. O'Brien.
Mr. WHITESIDE wished his Lordship to state that the
first speech of Mr. O'Brien which had been referred to
was prosecuted by the Attorney-General.
The LORD CRIER JUSTICE continued—So far as re-
gards the present case, the Attorney-General instituted
a prosecution against Mr. O'Brien, for the delivery of
that first speech ; that prosecution is not terminated.
There could be no doubt of the right of the Crown to
use that speech in evidence in this case. No objection
was made to its admissibility, and it is perfectly compe-
tent to you to act upon it as relevant to this charge.
The next document in order is the copy of a letter from
Philadelphia found in the portmanteau. Any papers,
in a charge of this kind, found in the actual possession
of or on the person of the party charged, can be given
iu evidence ; and it is insisted on the part of the
Crown that they have done that which ought to satisfy
you that this was, in fact, in the possession of
Mr. O'Brien. We allowed that document to be read.
We allowed them all to be read ; but we reserved for
your consideration the question whether the circum-
stance; attending the finding and production of these
papers ought in your 'judgment to have the effect
of fixing ;Mr. O'Brien with the possession of
them ; because if you should be of opinion that
he was not to be considered as in possession of them, you
ought not to attend to them. (His Lordship then went
over the evidence as to the portmanteau.) There is no
question whatever that the portmanteau sires Mr.
if Brien's; but it is contended on the part of the prisoner
—and this is a point for your consideration—that the

portmanteau was nor obtained under such circumstiinc;
as to make its contents, and the possession of its con-
tents, the actual possession by him, because they say that
the portmanteau was out of Mr. O'Brien's possession,
and that during that time, and before it came into the
p3atliiloll of Ow Cr9WPI somebody might have opened it,