The Sun.
London, England, 1848-09-23 00:00:00

4 14-031illff ;71111;

LONDON, SATURDAY, SEPTEMBER 23, 1848.

The Special Commission was opened at Clonmel
on Thursday, and true bills were that day found
against Mr. SMITH O'BRIEN, Mr. T. B. M`MANus,
and the three men named ORCHARD, TIGIIE, and
M'DONNELL, for high treason—the gravest and most
weighty offence recognised by law. The five priso-
ners were forthwith arraigned, in order that the
provisions of the law might be complied with,
which enables parties charged with that crime
to demand copies of the indictment, which must
be delivered to them five clear days at least,
exclusive of the day of service, and of any inter-
vening Sunday, before they can be called upon to
plead thereto. The prisoners all availed themselves
of that privilege (which only exists in cases of high
treason), and accordingly the copies were handed to
them, so that the first of the trials, which it is gene-
rally believed will be that of Mr. SMITH O'BRIEN,
cannot take place before Thursday next. Another
privilege of no ordinary character also exists
exclusively in cases of this description.
The prisoners are entitled, if they demand
it, each to have two counsel assigned for
their defence against the charg. Mr. O'BRIEN
alone nominated the Learned Gentlemen to whose
skill and talent he is willing to entrust the case, the
result of which is of such fearful importance to him-
self; the others will of course also select their counsel
during the interval allowed before they can be called
upon to answer before a jury of their countrymen,
for their recent acts.
Charges of this description are happily so rare in
this country, that much interest will naturally
be felt in everything relating to these proceedings.
The indictment is founded upon one of the oldest
enactments in the statute- book, an Act passed in the
reign of King EDWARD the THIRD, which relates to
the two classes of high treason charged against the
prisoners " for levying and making war against our
SOVEREIGN," to which the first five counts of the in-
dictment are applicable, and for compassing and
imagining the death of the QUEMN, to which the
sixth and most general count relates, the several
acts charged in the first five counts being laid as
overt acts, to sustain the principal treason of " com-
passing and imagining the death of her MAJESTT."
The former charge is plain and intelligible enough;
the questions for the jury will be whether the pri-
soners were either actually engaged in; or present
aiding and abetting in acts which in law amount to
the "levying of war" directly or constructively.
Actual fighting is not necessary for this purpose, for
it has been held (VAUG HAN'S case, 5, State Trials, 17;
2, SALKELD, 634) that " enlisting and marching
are sufficient to maintain the charge with-
out coming to actual battle." The incidents
essential to such a " levying of war" were decided in
the case of the Monmouth Chartists (reported in
9 CARRINGTON and PAYNE, 129) to be, " that there
must be an insurrection, that there must be force
accompanying that insurrection, and that the object
for which the rising took place must be of a general
nature." A direct levying of war is when the QUEEN
herself, her person, or dignity are immediately con-
cerned ; such as, for instance, if the object be to
depose her from her sovereign dignity over the
whole or any part of her dominions, to impri-
son or in any manlier restrain her person, to compel
her to dismiss her Ministers, capturing or taking
any of her MAJESTY'S castles, forts, &c., or the like ;
while constructive levying of war is maintained if
the object be to effect any innovations of a public or
general nature by an armed force. Thus, the at-
tempt to obtain the repelil of a particular statute, or
the redress of any public grievance, real or ima-
ginary, by force of arms, is a constructive levying of
war. Thus, if the intent of the parties were to
establish an Irish Republic, it would be a di-
rect levying of war, but if only to obtain the repeal
of the legialative union, an improved law
of landlord and tenant, or even employment by the
State for the labouring population, it would only be
constructive. The distinction is of some importance,
for in a " direct levying" all persons assembled and

23, 181

marching with the rebels are guilty of treason, al-
though they might not actually he aware of the pur-
pose of the assembly, or in any manner aid or assist
In committing acts of violence, unless they are con-l-
palled.hy force to join the insurgent band; but if it is
only " constructive," none but those guilty of the
actual violence v,rhich constitutes the overt act,
or aiding and abetting therein, can be convicted of
r treason, the others of their party are merely
rioters, and can only be punished as such.
The other class, however, alluded to in the fifth
general count, of " compassing and imagining the
death of the SOVEREIGN," is one of those legal
fictions which are still unfortunately suffered to exist.
A very elaborate explanation thereof was given by
the Lord Chief Justice in his able and lucid charge
to the grand jury. . It is not at all necessary
that the parties should contemplate any personal
injury to the SOVEREIGN to make them guilty of
" compassing and imagining the death of the SovE-
REIGN." Anything in which the QUEEN'S person or
dignity is concerned, or that amounts to a " direct,"
or even a conspiracy for a " direct" levying of
war, will support the charge—and the jury are not
permitted to judge of the intention of the party, they
are only to decide whether 'be has been guilt of the
" overt acts," or any one of them ; and it is for the
Court to say, as matter of law, " whether that overt
act, which the jury by their verdict declare to be
proved, is a sufficient overt act to maintain
the principal treason laid in the indictment."
This will, we trust, be altered, and the jury consti-
tuted, as in matters of libel, judges of the law as
well of the fact, of the " intention" of the parties,
which constitutes the gist of the offences. The acts
referred to in the various counts are those
which took place when the insurgents at-
tacked
the police under Inspector TRANT at
Boulagh Common, when they demanded the arms
from the small police force at Mullinahone, and where
they erected the barrier against the passage of the
troops at Killenaule. These acts are put in various
manners in the different counts, so as to meet any
objections that may be raised to the form of the indict-
ments.

We rejoice to find that, thanks to the exertions of
the excellent Society for the Promotion of Coloni-
zation, the subject of emigration to our Australian
colonies is beginning to attract the attention that it
merits, and that encouraged by the unexampled success
which has attended its exertions, the society is esta-
blishing branches in the principal seaport towns of the
kingdom. A most interesting meeting was held at
Southampton on Thursday, which was attended by
the Hon. FRANCIS SCOTT, Mr. MARK BOYD, Mr.
LENNOX. BOYD, Mr. ARTHUR MILIS, and Mr. C. D.
LOGAN, as a deputation from the parent society at which
it was determined to form a branch society for
Southampton and its neighbourhood. The progress
of this society, albeit at first the authorities at the
Colonial-office attempted to pooh ! pooh ! it down,
has been as remarkable as it is gratifying. It was
thus described by Mr. MARK BOYD at the South-
ampton meeting—
" The progress of the society had, however, shown
that mighty results might proceed from insignificant be-
ginnings. He had heard it said of a late Hon. Member
tor Middlesex Mr. Byng, the father of the House of
Commons in his day, that at one time his party, which
in a very short time after came into power, might be
driven home in two hackney coaches.—(A laugh.) Well,
at no very remote period, two hackney coaches would
have taken home all the members of the Colonization
Society. But small as were the numbers of the
society, the information they had been at the
trouble of laying before the public had produced in-
finite advantages. He recollected sitting with Mr.
Elliott, the Chief Commissioner of the Emigration
Board, in October or November last, when that
gentleman said—' I am convinced I shall be found fault
with in the colony for the sort of people I have sent out
in the Hydrabad and the Sobraon; but I had no choice,
for the number of applicants is so small.' Three months
ago he was told at the Emigration-office that they had
then 300 applications a day to reply to, and it was pro-
bable that at that moment the Colonization Scciety had
three times that number per diem.—(Loud cheers.) Till
this society exerted itself the country was completely in
the dark as to the manner in which the colonies were
suffering for want of that labour of which we had here
such a redundancy. He had been asked what was the
reason the wool of Australia now came to the market in
such a bad state? The answer was obvious—want of
hands. Ho trusted, however, by means of this society a
supply of labour would be sent out by which the tine
hand washed wools of Australia might again be brought
to this market. The colonies opened a field for the
employment of agricultural, mineral, pastoral, and com-
mercial labour, to an illimitable extent. Sir Thomas
Mitchell, the Surveyor-General of Australia, said, on
his recent visit to this country—' Give me labourers,
and what could not be done in Australia? I will give
her roads, bridges, docks, sink wells, and form water-
courses;' and a nobler and more prosperous colony
would not be in existence had she but labour to develop
her resources.—(Cheers.)"
While the development of the resources of Aus-
tralia is checked for want of hands—while, as was
justly observed by the Hon. FRANCIS SCOTT, if in
that colony " 501. a year, with food, raiment, and
lodging, were offered, servants could not be had, and
that solely because there were none to be found,''
what is the state of the population of this country ?
It is increasing at the rate of 1,000 per day, and
this increase of population is combined with a
diminution of food and a diminution of employ-
ment, producing poverty and its invariable
crime ; for " the poor man without being more devoid
of moral feeling than those who are better off, is
driven to crimes he would otherwise shrink from by
the stern behests of poverty and starvation," an
observation by which the Hon. FRANCIS SCOTT in-
troduces the following appalling statistics of the
poverty and crime of this country :
" The Penitentiary atParkhurst cost 14,3491. a year;
and Pentonville 18,000/. The cost of prosecutions was
348,0001. a year ; that of county gaols, 147,1451. ; the
county houses of correction, 160,8411. ; the rural police,
180,000/, ; the metropolitan police, 363,1641. ; giving on
these few items a total of 1,231,0001. a year expended
upon crime and the maintenance of felons. But the
most expensive article in England was not crime ; there
was another more expensive, namely, poverty.
The poor-rates amounted to 6,000,0004 a year. The
number of paupers in the workhouses and receiving
parochial relief was one-tenth of the whole
population of England ; in Ireland it was one-
third ; and in Scotland it was daily increasing.
Another evil of overwhelming importance was
the rapid increase of vagrancy. By a Par-
eo sr,
viang tr he en
tys ebreaerilni
egevnuedndi
was
srSeealfsBl,esmo3i3.b,e
br
u3toi,n 1846.184 i
liamentary return it appeared that in the districts south
g
othfethneuTmhbaemr
it had risen to 44,937;
26,404, or 60
per cent. on the preceding year. The nightly average
of paupers in 600 unions in December, 1845, was 1,791;
in 1846, it was 2,224; in 1847, 4,500; and in March,
1848, it was 16,086. Taking three very differ ent dis-
tricts, similar results would be presented. In the Mi-
chaelmas quarter in 1845 the annual poor relieved at
Windsor was 1,700; and in 1848, 5,868. At Devizes, in
1847, the number was 1.394; and in 1848, 2,892; and
in the North Riding, in 1836, there was but one; but in
1846, 216; and in 1847, 1,161. The applicants for re-
lief at the Mendicity Society in 1836, per month, was 27;
in 1847, it was 15,678; and in 1848, 22,296."
Well might he add, "No argument, no eloquence,
can depict more strongly the state of the country than
these statistics." What is the remedy for this
gigantic evil ? How are these victims of poverty to
be rescued from their present disastrous con-
dition save by a well-regulated system
of colonization ? Home colonization, the re-
clamation of the waste lands of England,
has been put forward as a remedy, but
it is one utterly inadequate to meet the evil, for, as
was justly observed by Mr. STEBBINS at the South

ampton meeting—"lf they turned every forest into
tillage, and had every common cultivated, they would
still have an increasing population of 1,000 every
day, and this in a country in which there are already
300 inhabitants to the square mile, while in Australia
there are twelve square miles to every inhabitant."
Emigration, therefore, is the remedy, and by emigra-
tion we mean not a mere shovelling out of paupers,

but emigration conducted upon proper principles of
colonization, so that the emigrant, the colony, and the
mother country shall be equally benefited by the
change. So to conduct emigration to our Australian
colonies is the arduous task Which the members of this

o doubt they will succeed. They have
society have undertaken to accomplish, and in which
there can be n .
-officleenagtmhodtlifiecaotoic.)
operation
of their
rules, an
forced upon
e hatvieleoCbutal°innmi
at obtained
and support of the Government; they have also
succeeded in dispelling many of the pre-
judices which have heretofore existed in
the minds of the working classes on the
subject of emigration. "On a recent occasion," said
Mr. MARK .13ovp, " they had been opposed—with
great ability he must say—by several working men ;
and after the meeting he came in contact with one
of the chief spokesmen, and said to him, ' Why
should you oppose emigration ? Are not the work-
ing men here many of them in a state of starvation ?'
`Starvation!' said the man 'I am starving; I have