The Sun.
London, England, 1844-02-01 00:00:00

SCULPTURE FOR THE NEW
ROYAL EXCHANGE.

The pieces of sculpture which are being prepared to fill the
pediment of the new Royal Exchange are now nearly com-
pleted. They are the work of Mr. Westmacott, at whose
residence we yesterday had the pleasure of inspecting them.
The subject the artist has chosen to illustrate for this purpose
is exceedingly appropriate to the occasion. It consists of a
series of figures grouped together after the following manner :
—The centre, or highest portion of the pediment, is occupied
by a figure on a pedestal, representing Commerce, of ten feet
in height. She leans on a helm, and is surrounded by all the
emblems suitable to her character—viz., the beehive, the com-
pass, the cornucopia, &c. On the steps on either side are placed
British merchants engaged in traffic with natives of every
clime—the Chinese, the Arab, the Negro, the Greek, the Indian,
the Armenian, and the Turk. These figures are between seven
and eight feet in height. The composition is terminated, as it at-
tenuates, on one side by marine furniture—such as anchors,
cables, and blocks, and on the other by different articles of
merchandise. In this composition the aim of the artist
seems to have been to embody in sculpture a modern subject
and the sentiments of our own age. In prosecuting a task
of no slight weight, he has apparently been deterred by none
of the difficulties which would naturally arise out of such an
undertaking, but has completed a work which, though doubt-
less not perfect, will, we apprehend, not disappoint the ex-
pectations of the inhabitants of the first commercial city in
Europe. It is cut in Portland stone, in a broad, vigorous,
and effective style. The area of the pediment, 13 feet by 30,
will be exceedingly well filled, and the various figures are
connected together without breaks or gaps.
We understand that in a very short space of time this
group will be elevated and fixed in the position which we
hope it is destined to occupy for ages to come.

Vegetation has been very rapid this month, and
the young crops are rather too forward ; the grass corn is
several inches over ground, and the blades as verdant as
April or May. This unusual precocity of vegetation is re-
garded with some apprehension by the farmers, who deem
it ungenial at this season. We learn that the wheat crop
of England is also supposed to be growing too rapidly.—
Cork Examiner.

DISTRESS IN BETHNAL.GREEN.—The Society for
the Relief of the Poor by District Visiting, under the presi-
dency of the Bishop of London, has -presented each of the
districts of this parish with 50/., to be dispensed amongst the
poor and destitute inhabitants. In most of the districts,
visiting societies have been formed, for aiding the efforts of
the Bishop of Londou for the relief of the poor.

IRELAND.

THE STATE TRIALS.

FOURTEENTH DAY.

(FROM OUR OWN REPORTERS.)
DUBLIN, TUESDAY, JAN. 30.
COURT OF QUEEN'S BENCH.
'PRE QUEEN w. DANIEL O'CONNELL AND OTHERS.

At ten o'clock this morning the Judges took their
seats on the bench.

Mr. O'Connell and the other traversers having an-
swered to their names, the jury were next called, and
two being absent, a delay of about five minutes took
place. When all were assembled,
Mr. FITZGIBBON, Q.C., rose and . stated that in this
case it was his duty to address the jury on the part of
1)r. Gray, and from the course adopted by the Crown,
in putting the eight individuals together upon their trial,
it necessarily resulted that each of the traversers had
the privilege of making a separate defence ; but, from
the nature of the evidence, it was plain that as the charge
was for a joint offence, the defence must also be joint.
The accusation against the eight traversers was for un-
lawfully, maliciously, and criminally conspiring together,
and that seemed in its nature rather a simple charge,
for even a single act might constitute the entire
offence, yet the Attorney-General had opened his case
with a speech which occupied eleven hours, and between
forty and fifty hours were spent in reading evidence, not
in examining witnesses. Was it fair to call upon the
jury to read over such a mass of matter to arrive at a
just conclusion upon a narrow issue? And who could be
safe—who could be defended ? What was a man to do
when a vast body of matter might be flung down without
explanation at the feet of a jury, in order that they
might arrive at any conclusion from such a variety of
premises? If Mr. Sheil, conscious of his complete
abilities, felt a difficulty in approaching this chaos
of confusion, and was conscious of the magnitude of
the duty which he had to discharge, what must be
his' (Mr. Fitzgibbon's) feelings ? Not those of emo-
tion, but of dismay. Eight gentlemen were now charged
with the crime of conspiracy—an offence the most
odious in every clime, and in every state of human
society the most detestable. Who was the first of those
eight gentlemen? A man pro-eminent in his profession
—pre-eminent for his talents and for his many great
virtues, and who, for a period of over forty years, was
the ornament. of the bar. Who had he (Mr. Fitzgibbon)
next to defend ? The son of that father—a candidate
for success in the same profession, and just entering life,
being not more than twenty-eight years of age ; and a
third traverser, Dr. Gray, was also a member of another
high and honourable profession. His opinion was, that
the present prosecution was an unconstitutional, illegal,
and unfair attempt now, in the year 1844, to devise a
ministerial scourge for the purpose of lashing a free
people. The three gentlemen who were highest in point,
of rank at the bar, and who were now pursuing the ob-
jects of the Government in this prosecution, he (Mr.
Fitzgibbon) could speak of as gentlemen, severally and
individually—" gentlemen," in the best and most fa-
vourable sense of the word, and " lawyers," also,
in the best sense of that word. But when he
thus alluded to those three individuals, he spoke
of them in ordinary matters, and in the ordi-
nary business of life. It had never before fallen to his
(Mr. Fitzgibbon's) lot to be concerned in, or to have
witnessed in a Court of Justice, a State prosecution,
but it had been his duty to read many of them ; and if
the three gentlemen acting for the Crown had fallen
from their moral dignity, they were only following the
example of much greater men than any one of them.
He said this without disparagement to them, but they
had only followed the fate of Lord Coke, whose virtues
and whose dignity could not preserve him from acting
the part of a Government lawyer in a State prosecution.
His name had gone down to posterity with a foul blotch
on it, and no friend of humanity could think of his at-
tack upon Sir Walter Raleigh without execrating the
tongue that delivered it under the circumstances.
The Attorney-General had, in his opening speech,
observed that the jury would take the law from the
Court, and so they would ; but the Court had not
the slightest jurisdiction in the world to direct them
upon the question of the guilt or the innocence of the
traversers. .That was a pure question of fact, with
which the Judges had nothing to do. In the case of
Hatfield, who fired at the King, in the theatre, intend-
ing to kill.him ; he was taken in the act, and yet the
Court had nothing to do with the intent of the accused,
for that was for the jury alone. The Judges had not
even a right to express an opinion upon the subject of
the intent, because a jury could only act upon evidence
on oath. He (Mr. Fitzgibbon) did not agree with the
Attorney-General in the statement of the law as to what
constituted conspiracy. Perhaps it might be said that
Mr. Moore admitted the law to be as stated by the
Attorney-General ; but Mr. Moore stood here for the
Rev. Mr. Tierney, who had a peculiar case, for he never
attended more than two of the meetings, and therefore
there was no necessity for applying his mind to the law
of conspiracy. The jury had heard a term used very much
—" overt acts." The term was applicable to only two
offences, that of treason and conspiracy; and treason was
a crime that a man might be guilty of without doing any act
at all—for if one imagined the death of the Sovereign,
the forming the determination constituted the crime.
In that case an " overt act " would be an act from the
the doing of which the intention of killing the King was
manifested. When the Attorney-General proceeded to
state the overt acts charged against the traversers, be
followed him in the hope that he would stop and call
their attention to some one speech which could not have
been spoken unless it had been previously spoken by
more individuals than the one who spoke it—that he
would rely upon some one speech which could not have
been spoken unless by conspirators, that is to say, by
persons previously engaged in a guilty combination. Ile
expected some of the speeches would have been selected
and shown to the jury as speeches that could not have
been the emanation of a single mind, but concocted by
more individuals than the man who made it. Did the
Attorney-General do any such thing? In the whole
eleven hours' duriiig which he read much from old
newspapers, did he point out a single sentenee that
must have been the result of a conspiracy ? Not
one. Again, when he came to the acts of the
defendants, did he fasten upon a single act and
show that it could not have been the act of an indivi-
dual unless that individual had been previously en-
gaged in a criminal conspiracy? Again, he said the At-
torney-General did not do any such thing. How, then,
did he attempt to argue there was a conspiracy? He
(Mr. Fitzgibbon) would tell them—and he was sure he
would not willingly misrepresent it—this was his train
of reasoning. Many meetings had been held that were
illegal meetings. These meetings were called by the
defendants, and the defendants all concurred in calling
them; and, pray, mind the word he used—concurred
in calling them. They all previously consented they
should be called. They were illegal meetings; and, ac-
cording to the law of conspiracy, if two or more agreed
to do a legal act, but by illegal means, they were guilty
of conspiracy. If, then, these eight defendants did all
agree to call meetings, and, for brevity, he would select
one—say the Tara meeting—that, said he, was an ille-
gal meeting; they had all agreed to call that meeting,
and having so agreed, and the meeting being illegal,
they were all conspirators. If two or more persons agree
to do a perfectly legal act, but do so by illegal means,
these two are guilty of conspiracy. Now, said the
Attorney-General, they agreed to do a perfectly
legal thing—to petition for a repeal of the union—but
they agreed to do so by the illegal means of calling that
illegal meeting and publishing these illegal speeches—
and•all of them concurring in the legal object of petition-
ing for the repeal of the union, but by illegal means, they
were all, to a man, guilty of a conspiracy. This was his
law, and this was the law he (Mr. F.) had to deal with.
He owned when he heard that law propounded in a court
of justice, in a State prosecution, it startled him a good
deal. The Attorney-General did not come there without
some little books of authority behind him. He read the
law from some of them. That he (Mr. F.) admitted—
[Here the Learned Counsel ceased his address for a
short time, and was observed speaking to Mr. O'Connell,
who sat behind him. After the lapse of a few seconds he
resumed]—Gentlemen of the jury, Mr. O'Connell, whose
countenance in this case I deem most advisable, and his
assistance, whether to suggest to me that which is neces-
sary, or restrain me, if I am wrong—has mentioned
to me that he is obliged to go away, and I regret the
cause to arise from indisposition.
Mr. O'Connell here left the Court, and—

hir. FITZGIBBON continued—He claimed the attention

of the jury for a moment. There was the indictment ;
they were told that this was an indictment at common
law, the meaning of which was, that this case could
have been sustained in the reign of Edward the Con-
fessor. -An indictment of the same kind had been sus-
tained before the Conquest. He (Mr. Fitzgibbon) told
them this without the fear of being contradicted by the
Court. When they approached the consideration of the
question—guilty or not guilty—they ought to consider
the time, the country, and circumstances of every crime,
or alleged crime, which had been committed, and he was
satisfied the jury in the present instance would leave
nothing undone to enable them to arrive at a just con-
clusion. This was an indictment against eight mem-
bers of a political association ; against eight members
of an association formed for the purpose of redressing
an alleged grievance—for the purpose of procuring
the repeal of an alleged bad law. Would the jury
not be surprised to hear that, from the reign of Edward
the Confessor down to the year 1794, there never
was in England one single instance of the members of
any political association whatever, from the days of Wat
Tyler down to the year '94—not one single instance
could be found on record of an indictment for conspiracy
against the members of a political association? Now,
was not that, he asked, rather an astounding fact? Was
conspiracy a crime in those days, or not to be touched
by the law? Conspiracy at a very early period, indeed,
became the object of great solicitude. It was regarded
as a crime so dangerous, so infamous, that it was looked
on as a scourge, and very early became the subject of
legislative and statutary legislation. He should read a
description of the crime of conspiracy, and the law
affecting it, from a high authority. He then read an
extract from Ist vol. of Hawkins' Pleas of the Crown,
page 444. The writer said that, for the better under-
standing the nature of conspiracy, he should consider,
first. who might be said to be guilty of the crime of
conspiracy ; and, secondly, how offenders were punished.
In the first, there was no better rule than the 3d of
Edward the First, commonly called the Statute
of Treasons, which he (Mr. Fitzgibbon) said
was passed to become a scourge in the hands of those
whom it ought to govern and not to scourge. Hawkins
oited the Act of Parliament, the intent of which was to
make a final definition of what a conspiracy was.
The
Learned Counsel then read a long extract from the work
which he held in his hand—which was to the effect that

conspirators were persons who bound themselves by oath
to do an illegal act—who bound themselves together to
tyranise over others—to undertake malicious enterprises.
Such (continued Mr. Fitzgibbon) was the definition given
of this early statute, for the purpose of making a final
definition of conspiracy. He was quite free to admit
that, in the same book, there were passages which might
be considered unfavourable to his case, but he (Mr. Fitz-
gibbon) would not keep out of the view of the jury that
which the leading member of the Irish bar had done.
He would not suppress from their view one single pas-
sage that might tend to explain the passage which he
should cite, and he would not say whether this course
was right or wrong
The CHIEF J USTICE—W here is that?
Mr. FITZGIBBON—On page 446. He then read a
passage respecting the kind of conspiracies which should
be prosecuted by indictment, and proceeded to say, that
when society began to emerge from a state of barbarism,
that confederacies of the most criminal and dangerous
character were formed, and it seemed to be only a ra-
tional thing to have a law to punish such villains. He
then cited the case of the King v. Edwards, which was
an indictment for conspiracy, arising out of an attempt
on the part of-the officers of a parish in England to ob-
tain possession of the money raised upon it for the bene-
fit of the poor. One of the pa *y charged married a
cripple, not for the purpose of ifiatrimony at all, but to
make her chargeable to another parish. There was an-
other instance of an indictment for conspiracy. A card-
maker conspired with the members of his family to bribe
the apprentice of another card maker to injure the paste
used by him, by putting grease into it, and thereby
destroying the reputation he had gained in his trade
They were indicted for a conspiracy, and this case
was a fair illustration of the meaning of a con-
spiracy. No one knew of the conspiracy but the villains
themselves ; no one could actually prove that there was
a conspiracy but by what appeared to be done at various
times by the several individuals. They gave money to
the apprentice. The father gave money one day—the
wife gave money another—on the third day one of the
servants—another servant on the followingr day. Evi-
dence of these overt acts were offered, and the Court
allowed them to be given to the jury, because the accused
parties were all members of the same family—all in
eluded in the same practice—all influenced by the same
design—that of ruining the rival card-maker by these
means. The acts of each separately could not be ac-
counted for, but it was left to the jury to consider whe-
ther the acts of all were not the result of a previous
conspiracy. This he conceived to be a fair illustration.

Justice BURTON—Where is that case ?
Mr. FiTzeninosi—lt was reported in Strange, and
well known as the card-maker's case. He would now
call the attention of the jury to the definition given by
the Attorney-General. He (Mr. F.) took it down from
his own lips. He told them that conspiracy was a
crime that consisted either of a combination to do some
illegal act, or to effect a legal purpose by illegal means,
and, in support of his view, he cited two cases—one
the King v. Rose, in 4th Barnewall and Adolphus, pages
349-350. The defendants were indicted for combining
to conceal the effects of a bankrupt. In this case Here
was a conviction, and the jury found a verdict of guilty
There was a motion for an arrest of judgment, and, in
giving judgment against the indictment, Lord Denman
said that the indictment ought to have charged they the
parties combined to do an unlawful, or a lawful, act, by
unlawful means. This was a mere dictum, or saying,
and not the decision of a Court; qnd no judge should pay
much attention to these, the mere " ipse dixits,"if
he' might use the word. These dicta were well des-
cribed by Sir Anthony Hart, when he said they were
used to mislead one judge by misrepresenting another.
He (Mr. Fitzgibbon) heard a judge of equal ability—
the present Baron Pennefather—repudiate the principle
or practice of citing in one case what a judge had said
in another ; for this reason, what was said in a par-
ticular case was said with reference to the facts proved,
and not said as laying down a general law, to effect
cases that might be composed o very different facts.
In the case of. the King v. Seymour, there was an in-
dictment against the officers of one parish for conspiring
to throw paupers upon another, and after a verdict
there was a motion for arrest of judgment, as in the
former case. The motion was granted—the judgment
arrested. Lord Denman spoke again, and supported
his former dictum in the case of the King v. Jones.
This was going a great way to establish the correctness
of the point—the same high authority, speaking and
acting similarly on two occasions. It so happened
that in 1839 there was another case before the very
same Chief Justice, of an indictment for conspiring
against a set of persons who opened splendid shops
and induced tradesmen to give them goods on credit.
They were convicted, but there was a motion for an
arrest ofjudgment, because it was declared not to be a
case properly within the law of indictment. Lord Den-
man had his own dictum cited, but he would not receive
it, and decided against it ; and so far as the authority of
Lord Denman in this case went, there was no weight.
CHIEF JUSTICE—Where is that case reported ?
Mr. FITZGIBBON—It was the case of the King v.
Keck, 2d Adolphus and Ellis. There was also a dictum
of the late Lord Chief Justice Bushe in the case of the
King v. Forbes, cited by the Attorney-General. That
very able man did lay down the law pretty much in the
same way.. In his charge to the jury he said—

The CHIEF JUSTICE inquired where this case was to
be fOund.

Mr. FITZGIBBON—It was at page 347 in Mr. Green's
report of the trial of Forbes and others, charged with
conspiracy in Dublin in 1823. In that charge it' was
laid down that when two or more persons confederated
together for effecting an illegal purpose by legal means,
it constituted the crime of conspiracy ; also, that they
were guilty should the object never be effected. He
(Mr. .Fitzgibbon) cautioned the jury against adopting
text-books of law, which he compared to map-malting
—the writers of text-books generally adopting those
which they already found in existence. The Leagued
Gentleman next adverted to the case of the King v.
Edwards, in East's Pleas of the Crown, in which it
was reported that the Court said the bare conspiracy to
do a lawful act to an unlawful end was a crime. This
was the bare dictum of the Court, describing au offence.
In vain would they look for such a definition iu thi old
books, or in the common law. No doubt it was to be
seen in Mr. East's book—a man almost of the present
day, but no authority. He was not a judge, but a re-
porter of the dicta of judges. In the case of the King v.
Edwards, he made a commentary on the decision before
him. He would now proceed to the second proposition
of the Attorney-General, who told them if the defendants
had been engaged in a common design to obtain the
end sought, they were all equally responsible, and
the acts of one were to be held as the acts of all. What
was the common design ? To obtain the repeal of the
union. One million, at least, of their countrymen had
been engaged in that common design. If there be guilt
in that design, then are the million guilty, and they
are involved in one of the most serious crimes that could
be charged against a subject of the realm. Nothing could
be more monstrous or more unconstitutional than this.
According to the Attorney-General, the act of every
one of that million is to be taken as evidence against
the entire. The conversation with a person totally
Unknown to Capt. Despard, behind a hedge, should, ac-
cording to the dictum of the Attorney-General, be taken
as evidence not only against the traversers here, but
against all who had been at the meeting, or who mixed
in the repeal movement. Could the jury, as men of
common sense, or as honest men, give their sanction to
a doctrine so utterly monstrous? That declaration of the
unknown man behind the ditch, is adduced here as an
overt act against the traversers. The jury were not
there strictly to try whether any of the meetings were
illegal—whether sedition was uttered at those meet-
ings. The meetings were in evidence to show that the
repeal of the union was sought by illegal means. It was
only in thatway that the question of illegality could arise.
The meeting was brought in to show, that without pre-
vious concert amongst the defendants it could not have
taken place. Could any rational being believe the story
told by Captain Despard—that 2,000 able-bodied men
had marched all the way from Shilmalier to Tara ?
Did they travel in a balloon, so high in the air that they
could not be seen ? Did they travel under-ground ?
Did any human being see them on the way ? Where
is the man, of all the police at the Tara meeting, to say
he saw a single Wexford man at the meeting ? Cap-
tain Despard did not see one—nor did any body else.
Captain Despard is a handsome-looking fellow, flippant,
clever—a very ready witness, who came here to tell not
a very probable story. If he (Mr. Fitzgibbon) had been
a witness to such a fact, he confessed he would be very
anxious to receive some corroboration of so startling a
statement, that there were 2,000 able men—strong, fight-
ing men—at Tara, who had come all the way from Shil-
malier. And it should be recollected, too, that this Shil -
mailer man volunteered this statement of the fighting
men—men of bone and sinew, such as O'Connell
wanted—to the Stipendiary Magistrate, the very indivi-
dual to whom it would be dangerous to communicate it,
if it were a fact at all. The Superintendent of Po-
lice was standing in immediate contact with Cap-
tain Despard, and must have heard this story ; but
he is not produced, and yet the jury were called
to believe that such a conversation took place.
Why was not Mar Westenra produced? He was there
—the pretended Wexford man was there—they were all
in a group, yet the Major was not produced. He
thought he would be able to show them, in the progress
of this case, a little of management. They were now
in the year 1844, and should do things now a days in
something of a more civilised style than in former
days. It would not do that a man who had been the
suggester of the matters charged should be produced
as evidence for the prosecution. In reference to the
devices on the Repeal card, if Mr. Holbrooke had
been a noisy bustling person—a forward Repealer, a
wearer of the repeal cap, it would not do to produce
him, for testimony of that kind would not suit for a jury.
No, he had two young men in his employment whose
characters had not been impeached, and who had no
connection with the movement, and they were produced.
Holbrooke had been employed by the Association—he is
now working for the Government—and if the facts re-
garding him had appeared, there would have been a
cry of indignation. Was not there in that evidence of
management, subtlety, and craft? Combine 'this with-
holding of Holbrooke with 'the story of the Wex-
ford man, and was it too much to ask the jury to be
lieve that there was here some signs of contrivance Qn
the part of the Crown ? The Attorney-General bad
quoted Mr. Justice Coleridge in support of his monstrous
proposition—he merely used the scissors. and cut out
the dictum of that judge. It was, howeicokie Learnedolnlrfair t
the man to give the entire of his4udgmenLf(T
Gentleman here read from the judgment, to
although the common design was the root of charge
:11:: that,
here should be evidence that
of conspiracY, Yet t mbimittot, to use the
upsr,oapnods i tai
bonsu rodf
the Attorney-
there had been a previous co
na
nfiat,nd'inoiTishtre
same means fojeiiie:rwmaos
version of the law of conspiracy. He concurred with
the view of Mr. Justice Coleridge, taken as a whole.
In the case quoted, he had spoken to the jury of acts
proved, and there could have been no mistake as to his
meaning. The monstrous proposition of the Attorney-

4113oneaa1 was totally unsupported by the judgment of otherwise, might have upon myself or my personal inte-
s let Judge. Counsel next referred to the case of the I rests. Ido not think any counsel is justified, even in
X-eaag v. Watson, a case of treason, and quoted from Mr. ' his public capacity, in attributing such unworthy and
etustice Bailey, who, in his charge to •the_gaand-jury, unwarrantable motives to me, -as that I could be influ-
held thatthareinust be consultation and design eased in this case by any interests with respect to the
to -establish conspiracy. The jury shciuld believe 1 political party to which I belong. I did then, and Ido
- .that the `parties actually did consult for a criminal still, feel very much offended at it —very much irritated
design,• before they could hold them guilty of con- at such an allusion—and I consider that no observation
apiracy. He came next to the third proposition of which could be used could more strongly tend to excite
the Attorney-General, and entreated the attention of such a feeling. Certainly, if language of the kind
the jury. The Attorney-General said that, provided a was not intended to convey a personal imputation
=an subsequently came into the common design, he was on myself, I cannot conceive anything easier than for
equally responsible as if he had been associated from the a gentleman to state that he had been misunderstood by
-beginning, as a criminal conspirator. Perhaps, by-and- myself and my friends. These are the circumstances, and
bye, the Solicitor-General would endeavour to explain, if there is any question to be properly brought before
-and get the Atturney-General out of this absurdity, the Court, whatever its rule may be, lam perfectly cer-
- by.contending that the parties subsequently coming in tarn it will not sanction any personal imputations on the
would become responsible by- seditious and illegal acts counsel who are engaged in conducting it.
—by calling large multitudes, and uttering seditious Mr. MooRE was about to make some observation, when
speeches. The Attorney-General, in support of his Mr. FITZGIBBON again rose and said—l beg your
proposition, had quoted Mr. Justice Bayley. (Counsel pardon ; allow me to address the Court. My Lords,
read froth the opinion of that judge, to show that the I could very well understand the good sense and pro-
- cases were not at all analogous.) He would now deal with priety on the part of the Attorney-General of calling
another proposition of law of the Attorney-General, my attention to anything which I said that might have
who had referred to the case of Redford and Birnie, offended him, and I could equally understand the pro-
which, arose out of a far-famed transaction in Manches- priety of my acting in accordance with the feelings and
ter, in 1820. They had all heard of the meeting on the 16th principles of a gentleman, had he permitted me the op-
of August, 1819, at Peterloo, in Manchester. Mr. Hunt, portunity of taking that course which propriety would
who was in the chair, was arrested, and several persons dictate. I will not now say what I might have done
were killed. Hunt was prosecuted, and the indictment under the circumstances, for that was not the way he
charged him with a conspiracy. There were three counts. acted ; but, with a pistol in kis hand, he says to me,
lie waschargedwithe.onspiracy,confederacy,&e., with the " I'll pistol you unless you make an apology ;" and I
other persons indicted. The Attorney-General of that day cannot help telling him now, that such a course won't
did not think it safe to go to trial merely on three counts draw an apology from me.
for a conspiracy. He knew it would be a nevelty to an Some minutes elapsed without any further observation
English jury, and, therefore, added a fourth count, for having been made on either side, the Court having
attending an unlawful assembly. They were tried at been engaged during the interval in consultation.
York, and the case occupied ten days. The Crown CHIEF J ernes—Mr. Moore you were going to make
strove, by every means, to establish a conspiracy, which some observations awhile ago.
was the very question for trial before the jury--,it Mr. MooßE—Really my Lord, I am afraid, after
not being competent to any judge to declare any man what has lately occurred, of making any observation at
a conspirator until twelve men on their oaths, who are all in the matter. What I was going to take the liberty
not judges, had found him to be so. That tribunal, of suggesting to the Court, in reference to an occur-
the jury, decided that Hunt was not guilty of con- rence which lam sure every individual member of the
spiracy. They gave that verdict, not because they were bar, and the public, will equally regret, in a case like the
political partisans, or men of one-sided views in politics; present, where the feelings of every person engaged on
but they gave their verdict as honest Englishmen on the one side or on the other, are necessarily very much
their oaths. Redford, who had been wounded at the excited, and in which I should hope every indulgence
meeting, brought his action against the man who might be extended to anything irregular that may
wounded him with a sabre. That case was tried. There have occurred—what I was going to take the liberty of
was a plea of not guilty, which is as much as to say the suggesting was, that as there appears to exist a very
. act, was not done; but that plea was not always safe, warm feeling on one side and on the other, an opportu-
. and there were other pleas, to the effect that the meet- tunity should be afforded of allowing that to subside, and
. ing was illegal and the plaintiff, being there illegally; of removing on both sides any misconception that may
the defendant only did his duty as a yeoman by assisting have previously existed. That was the proposition I
to disperse it. Conspiracy being illegal, it became ne- was going to to take the liberty of making. I cannot
cessary to prove it, and a witness was produced who attempt to justify what has taken place, nor am I au-
had been ill-used by a party engaged in drilling pre- thorised to interfere in it; but from the position which
vious to the meeting. That very evidence must have I have the honour to hold, and the sincere personal
been given on Hunt's trial, who was acquitted of the regard I entertain for both gentlemen, I think it
conspiracy ; but when the evidence was tendered on the might be desirable for their own sake, for the interests
civil action, it was admitted by the judge, and the jury of the profession, and the sake of the public at large, that
found a general verdict for the defendant. A motion the Court should allow some interval to elapse, in order
was made to set that verdict aside, on the ground of the that those feelings may subside, and this most unpleasant
admission of illegal evidence. The judges refused to affair may be satisfactorily arranged.
set the verdict aside, and the Attorney-General referred CHIEF JUSTICE—The Court are very much indebted,
to the dicta of the judges in support of his view of the and very much obliged to you, Mr. Moore, for the part
conspiracy and illegal meeting. The judges in that you have taken, and the short explanation you have
case only referred to the admission of evidence, as to the given. The Court feel themselves placed in a very em-
drilling, to go before the jury in a civil action.— barrassing and perplexing situation. They feel unwil-
And it was in such a case as this that the Attorney- ling to give any intimation of their opinion as to the
General sought a precedent and authority to prove a propriety or impropriety of what has taken place in
conspiracy and illegal meeting here. Hunt had been Court, being willing to make allowance for the excited
acquitted of conspiracy, and the judges had not, in feelings of the gentlemen concerned in a case of this na-
fact, the question of conspiracy before them. The tore, which may carry them beyond what their cool judg-
dicta of the judges about the admission of evidence of ment would approve of. They, therefore, give no sort of
drilling in Manchester, had been urged by the At- intimation at present of what their opinion is in regard to
torney-General in reference to the Repeaters, who had the conduct of the gentlemen at either side pending the
nofdidling at all. The Attorney-General had only read trial of this case. They feel it to be a very embarrassing
a small extract from Lord Wynford; he (Mr. F.) would case to be required to pronounce any sort of opinion
read the entire of it, with note and comment. Lord while a case of this nature, in which the public is so
Wynford referred to the parties engaged in drilling in much, interested, is depending before the Court, the jury,
Manchester being armed, in rank and file, and firing at and the public at large ; and they also feel that of all
the word of command, being ordered to advance at the men in the profession, the Attorney-General is the last
sound of trumpet. Such were the drillings Lord Wyn- man who ought to have allowed himself to be betrayed
ford spoke of. Was it fair to read the extract the At- into such an expression of feeling as has been stated to
torney-General had read, without bringing under the the Court as having taken place during our absence,
notice of the jury the sort of drilling that Lord Wyn- for although we were not personally present, it yet oc-
, ford had spoken of ? A lawyer was bound to state the eurred while the Court was sitting in the discharge of its
law fairly and candidly—above all, he was bound to do judicial functions.
so in a State prosecution, where a man of his:own rank, in The ATTORNEY- GENERAL—I have to state, a'nd my-
his own profession, who had been nearly half a century friends tell me so, that the note was written very hastily;
distinguished in his profession, was concerned. The At- but considering the position I was placed in, and the
. torney-General, in such a case, was more especially bound strongly irritated feeling I was under, I concur in what
to state the law fairly, when a man was concerned who has been suggested to me, and I have no objection to
had been so long his admitted superior in the profes- withdraw that letter, but I shall make no further turns
sion, and who was charged with a crime for which, if about. I feel that I was very badly dealt with, and I
he were found guilty, he would be conveyed to a dun- leave it to the Court to consider what course the gentle-
geon in the closing period of his life. If ever there was man who used that language ought to adopt in regard to
a case when it became the duty of a barrister in the what is due to me.
discharge of his public duty to prosecute a brother The CHIEF JUSTICE—The Court are bound to consi-
barrister, he ought to do it fairly, justly, honourably ; der what took place as if it occurred during the business
but if in the discharge of that public dutx, as Attorney- of the Court, and we can't by any possibility allow it to
General or Crown prosecutor, he aims below the mark— go further. It must be put a stop to.:
, if he cites the law for own particular purposes, and omits Mr. Moore—l know how very difficult a position lam
passages which he ought not to have omitted—if placed in ; but I would take the liberty of suggesting to
he seek a conviction, no matter by what means it is to Mr. Fitzgibbon, after what has been said by the At-
be obtained, he is no longer deserving of public respect torney-General, that he should admit that he has fallen
or of public confidence. He (Mr. Fitzgibbon) if he into an error, which any man may fall into ; and I only
had stooped to act in the manner he had described, suggest to him what I would do myself if I were placed
would cease to enjoy his own self-respect. He could in the same unpleasant situation.
not consent to earn the guilty wages of professional suc- Mr. FITZGIBBON—Your Lordships have heard—and
cess ; he would feel that he had been guilty of an act of all who are now present have heard—what fell from me
turpitude, which would fck ever disable him from raising an the course of my address to the jury. The Attorney-
his head in society. The jury, he was quite certain, General has repeated what he says was taken down as
could not be totally ignorant of the history of their coun- my language, and he says that I imputed to him dis-
try, or of the great events which took place in their honourable motives—of being influenced in his public
hemisphere. They were not ignorant that when Wil- conduct, in regard to these prosecutions, by the love
Ham the Conqueror landed in England, the greater por- of place, or desire of place, or personal advantage to
tion of the population of the island were bond slaves.
,himself. My Lords, that language did not come from
This was an indictment charging the defendants with me—l carefully avoided it. I spoke of Lord Coke and
the exhibition of great physical force. It did not others being influenced by those feelings which every
• charge them with seeking to attain their object by the public prosecutor was more or less influenced by in those
• us. of physical force—the use of it was not at all con- days, and which might appear to influence public
templated. An immense mass of the community were justice ; but I appeal to your Lordships' recollection
dissatisfied with a law, and they came forward in large whether I ascribed to the Attorney-General one single
s masses, to express their determination never to cease feeling dishonourable to him more than what I suggested
their constitutional efforts until that law shall was thecause of unusual warmth in a public prosecutor
have been repealed. And the Attorney-General calls in all cases of this kind. I regret extremely that
that a crime. Was there a crime in the attainment of the Attorney-General before he took the course he
Magna Charta ? Was there no exhibition of physical did, did not address me, for I stand here uncon-
. force at Runnymede, with the Barons in full armour, scious of having either said anything or done any act
requiring their Sovereign to sign a charter they had with the intention of wounding the felings of another.
bought ready made ! That is a charter which no At- I never imputed personal motives of a dishonourable
torney-General, no Judge, no King would dare to say, nature to the Attorney-General. What I have done,
that, because it had been procured in that way, it was, my Lords, in this case, and what *I have said, I have said
therefore, void. But there were other instances in and done in the discharge of what I conscientiously felt
English history of great changes produced by the to be the duty I owed to my client. I did not speak of
very same means. Was there, in fact, any great him except in the opening of my address to the jury,
change produced without them? Was there no ex- and in what terms did I speak of him then ? I spoke
hibition of physical force at the Clare election ? of him as a gentleman in the best sense of the word—
The people were discontented with the state of the law, I spoke of him as a lawyer in the best and most dig-
and they sought, peaceably and in large masses, to nified sense of the word. Such is the character and
effects a reformation. Why was this a monstrous case? extent of the language which I applied to him personally.
Because the Ministry of the day sought to get into their Did I not say all that in his behalf ; and did I not add
hands a scourge to prevent and repress the expression that my personal experience of him fully warranted
of popular discontent. He next referred to the me in saying thus much? This was the extent of my
' period of the French revolution, when an indictment had personal allusions to the Attorney-General, and if in
- - been preferred against a great man, Horne Tooke. As the subsequent part of my address I made any reference
in this case, a chaos of papers had been thrown on the to him, I did so in the discharge of the duty which, as
table, and the jury were left to spell their way an advocate, I owe my client, and my remarks were
through them. That prosecution had been counte- meant to apply to his conduct in the present case and to
nanced by the King—it was pressed with all the energy nothing else. lam not disposed to claim as a right the
of the Attorney- General and Solicitor-General privilege of canvassing the conduct of the Attorney-
of the day ; but the common sense and honesty General. If it be a right it is to me a most painful one;
of the jury prevailed—they found a verdict of not but when lam defending a gentleman who has done me
guilty. He (Mr. Fitzgibbon) felt a great responsibility the honour of confiding to me his defence, where he is
in this case, from a knowledge of his own deficiency. In accused of an atrocious offence, I feel it to be my impera-
the case of ktardy, public liberty had for its champion tive duty to analyse the official conduct of the first law
Mr. Erskine; Hardy was acquitted. They then brought officer of the Crown in the present case; but out of the
forward Tooke, and he was acquitted. The Crown still present case I will not travel. I spoke of the Attorney-
persevered, but each successive jury defeated their at- General as a public man, and as such only, in reference
tempts to establish constructive treason, and that was to the present prosecution. I spoke of his conduct in the
the last attempt in England. present case ; but out of the present case I did not for
At this moment (two o'clock) the Court retired for a moment travel, nor did I allude to one solitary act of
refreshment. his life unconnected with this trial ; and am I to be told
During the absence of the judges and jury for re- that lam to make an apology to a gentleman who—
freehments, a scene of the most singular, remarkable, The CHIEF JUSTICE—YOU may have misunderstood
and truly unprecedented character took place in Court the Attorney-General, Mr. Fitzgibbon.
which perhaps it ever fell to the lot of a journalist to Mr. FITZGIBBON—My Lord, it is totally impossible
record. It was observed that some hasty observations, that I could have misunderstood him.
and in a very excited tone and manner, passed between The CHIEF JUSTICE—Yes, but, Mr. Fitzgibbon, we
Mr. Fitzgibbon and the Attorney-General, and there are all liable to fall into error, and it is possible that
• was, ta use the language of Mr. Sheil, " a hush of public there may be misconceptions on both sides.
expectancy and almost breathless silence ;" when, after a Mr. FITZGIBBON—My Lords, the first emotion of my
much more protracted absence than usual, their Lord- mind, when I got his note was—no, I will not say what
ships resumed their seats upon the Bench. it was—my second was to let him out of the difficulty
- • Mr. FITZGIBBON rose and said—My Lords, as I was in which he had placed himself.
.coming into Court after having, from the effects of ill- [Here Mr. Fitzgibbon was handed in a piece of paper,
ne,ss, endeavoured to take a short respite in the library, in shape not unlike that on which the alleged challenge
after an exertion not very seasonable, having regard to was written ; but he tore it across, and flung the frag-
_ the state of my health, a note was put into my hand, ments under the tables)
signed by the Attorney-General, which I ask him now The CHIEF JUSTICE—I was going to say that the
to read to your Lordships. whole matter had now been under the consideration of
A short pause ensued, and the Attorney-General the Court, and that there was no necessity to go any fur-
-having made no reply, they into a statement of the circumstances.
Mr. FITZGIBBON continued—My Lords, I hope that Mr. FITZGIBBON—I have been misunderstood, my
in opening the case, I did very clearly and very plainly Lord. Ido
express my sense of the position in which I had been CHIEF JUSTICE—The Attorney-General has with-
professionally placed. I think I did very clearly and drawn the note he has addressed to you, Mr. Fitzgibbon.
plainly express what my opinions and what my feelings He has expressed his regret that it was written, and
were in respect to the' gentlemen who here represent wishes it to.be regarded as if it had never been-written.
the Crown. I very clearly separated any reference in He misunderstood you.
what I said of my private feelings from what I consi-
Mr. FITZGIBBON—My Lords, any man must have
dered my duty required of me to express, not in refer-
grossly misunderstood me who imputes to me the intention
ence to themselves personally, but to their conduct in of attributing base motives to any one in the discharge
this prosecution, and I do not think that I
of my professional duty. If I could for a moment
tetivelled out of the line of my duty in making those imagine that any man could conscientiously suppose me
observations. I observed upon no act or thought of a capable of such gross conduct as that of imputing to
-single one of them, except an act done or a thought ex- the Attorney-General base motives—l having nothing
pressed in the course of this prosecution. I said very on earth to say to his motives—l can only say that such
Ivan W
plainly and distinctly that I would despise myself if I a
an has grossly misinterpreted me. Were I, indeed,
left unobserved any point upon which my client might capable of acting such a part I could never again esteem
observe
if he were in my position, and defending him- or respect myself, and the direst punishment that could
self ais his own counsel, or I in his, as a befal me would be the self-reproach which would follow
tfaverser at the bar, and defending ' myself'. me in every scene of my life. I only spoke of the
I pursued what I considered to be the course Attorney-General in his official character as the law
which my duty indicated, and I don't think Iwent adviser of the Crown ; and my remarks had only refer-
beyond it. Now, my Lords, I ask the AttorneyGe ence, I again repeat, to his conduct in the present case.
"lend So hand up that note ; and if he will not, I will tell Mr. MOORE rose and said that the gentlemen at both
your Lordships the substance of it. He tells me in that
sides having given every explanation that could be ex-
note that I have given him a personal offence, and he pected from them, of whatever was disagreeable in this
calisaipen me, if I do not apologise for it, to name a distressing occurrence, he hoped that the matter might
friend,--(Sensation throughout the Court.) I need not
advert figther to his position or to mine on the present now be fairly considered as set at rest. He trusted that
it would be passed over in silence and consigned to obli-
occasioa, nor is it necessary for me to refer to my pecu- vion for ever.
liar position at this moment, while defending one of the The CHIEF JUSTICE (after consulting with his bre-
traversers here i but, with these observations, I shall thren) said that the Court felt exceedingly obliged to
leave it with your Lordships to deal with his conduct. Mr. Moore for the part he had taken on this perplexing
The ATTORNEY-GENERAL rose and said, in rather an
and the Court roost earnestly
and distressing occasion. The matter was now at rest,
be necessary hereafter t
indistinct tone—lf Mr. Fitzgibbon has any application
to make to the Court, let it be made is the usual form. oadvetrrtuisnteadnythmatanint
ewrowuhldatnsoo!
ever to what had taken place. He should hope it was not
Lethiin make an affidavit, setting forth all the facts.
necessary to say any more on the matter than had been
Mr, FITZGIBBON (warmly)—l never will.
The 'ATTORNEY-GENERAL I then have to state already stated.
that he attributed to me in this Court— and it The ATTORNEY-GENERAL—I of course acquiesce in
was so taken down in writing by some of my every thing that has fallen from the Court. I haVe with-
friends—that my public conduct in the conducting drawn the note, and, inasmuch ,as I understood Mr.
and. carrying on of these prosecutions was influenced Fitzgibbon to repudiate the idea of -imputing any un-
worthy or personal motives to me, I can only say I- am
by private and dishonourable motives. By the effect
which :the result of this prosecution, in its failure or satisfied.