The Sun.
London, England, 1844-02-12 00:00:00

IRISH STATE TRIALS.

TWENTY-TiIIRD DAY.
COURT OF QUEEN'S BENCH.—FianAy.

TIM QUEEN V. DANIEL O'CONNELL AND OTHERS.
The Court met at ten o'clock this morning, when the
Solicitor-General proceeded with his address, and after com-
menting on speeches made by Mr. O'Connell at other meet-
ings, concluded by expressing his conviction that the jury
wold feirlessly do their duty. He concluded at one o'clock,
when the Court retired for a quarter of an hour. On the
Judges taking their seats the utmost silence prevailed.
The CHIEF JUSTICE then spoke as follows :—Gentlemen of
the jury, it falls to my lot to make such observations as it
occurs to me necessary to submit to your consideration in
reference to this important case ; and I am happy to say that,
on conference with my brethren, I find there is a perfect con-
currence of opinion among us as to the subject matter to be
laid before you. Gentlemen of the jury, it has been, and is
highly satisfactory to the Court, and highly creditable to
you, that great deal of attention, I may say constant
and unremitting attention, has been paid by the prey
throughout this strange and most important case—
strange as regards its duration, and important as regards
the consequences. Gentlemen, you have heard during this
long trial a goad deal of eloquence—brilliant eloquence ; you
have heard somewhat also of declamation—you have witnessed
great oratorical powers, and powers of reasoning—you have
heard a great deal of what might be deemed poetic, and I do
not mean to say but you have also heard a good deal of what
may be more justly termed prosaic ; but, Gentlemen, you have
heard observations made to you which I cannot help saying ge-
nerally bordered on the very verge of propriety. But, what is
more material, you have heard a great deal which it would be
difficult indeed to say was properly relevant to the subject that
you are to consider. There are many questions to he con-
sidered, both of law and of fact. On the latter subject you
are the constitutional judges. You are to determine and
come to a just conclusion upon the facts. The law of the
case you will take from the Court, the Judges of which are
constitutionally entrusted with the adrninistrati. n of
that law, and bound to administer it under the most solemn
sanctions, and independent alike both of the Crown and the
people. We, the Judges, therefore, sit in this Court of Queen's
Bench, having the same obligations that the Queen holds to
administer justice with mercy according to the laws of the land.
Gentlemen, there are, as you know, eight traversers now upon
their trial—Mr. Daniel O'Connell, Mr. J. O'Connell, Mr.
Thomas Steele, Mr. T. M. Ray, Mr. C. Gavan Duffy, the Rev.
Thomas 'Tierney, Mr. or Dr. John Gray, and Mr. R chard
Barrett. These are, Gentlemen, the several traversers upon
their trial ; and here is an abstract of the indictment upon
which they are charged, and to which they have respectively
pleaded " Not guilty." They are indicted for conspiring
to raise and create discontent and disaffection amongst the
Queen's subjects. It will be very tnaterial (or you to keep
in mind, in coming to your verdict, the difficulty of dis-
tinguishing between the several traversers in respect of the
nature of the conspiracy charged against one and the other
of them. The first charge, then, is for conspiring to raise
and create discontent and disaffection among the Queen's
subjects, and to excite them to hatred and unlawful opposition
to the government and constitution of the realm. The
second is, conspiring to stir up jealousies among the Queen's
subjects, and to promote in other subjects of the
Queen, especially with regard to Ireland against England.
The third is, to excite di affeetion in the army. The fourth
is, to collect unlawful assemblies in large numbers in Ire-
land, in order to obtain a change in the laws and Constitu-
tion, by intimidation and demonstration of force. The fifth
is, to bring the courts of justice, established by law, into disre-
pute, and with the intention to induce the subjects of her
Majesty to submit their disputes to other tribunals ; and to
induce the Queen's subjects to withdraw the settlement of
their disputes from the tribunals by law established, and to re-
sort to other modes of adjudication. The first count in the in-
dictment contains the several charges of the conspiracy that I
have adverted to, accompanied with divers and several -avert
acts, by means of which these objects were to be carried into
effect. The overt acts are not part of the conspiracy, but they
are inserted in the counts of the indictment as statements of the
evidence be which those charges of conspiracy are to be sup-
ported. They are so for the laudable purpose of giving the
parties who are accused of the conspiracy notice of the parti-
cular facts by which the Crown intend to support their charge.
these overt acts are only evidence when the question is not so
much as to the exhibition of the particular overt acts men-
tioned, as to the conspiracy of which they are called in evi-
dence. You will have to say not whether the overt acts
did take place, but whether the parties accused are guilty of
the conspiracy. You will find it very necessary that you
should have a very clear and distinct idea of the particulars of
the alleged conspiracy. The first count of the indictment
charged them with endeavouring to excite among the Queen's
subjects an unlawful opposition to the Government and the
constitution ; secondly, to stir up jealousy among the Queen's
subjects, and to excite ill-will among various classes of her
Majesty's subjects, especially those in Ireland against those in
England ; thirdly, to excite disaffection in the army ; fourthly,
collecting together large assemblies its order to obtain changes
in the law and constitution by intimidation and an exhibition of
physical force ; and lastly, to bring the courts of justice, esta-
blished by law, into disrepute. Now, it is a conceded fact
that the indictment on which the traversers are brought to
trial consists only of an offence of one nature—that is to
say, it may have different branches which, in this case, it has;
set still the whole is an indictment for a conspiracy, and for
nothing else. There is no indictment against any of the tra-
versers for sedition, nor for any other separate and distinct
breach of the law. They are all, one and all, indicted for the
crime of conspiracy ; they cannot be convicted, unless it be
proved to your satisfaction that they have been acting on the
illegal charge set forth against them in concert with some
other persons and individuals—unless they have acted in
this concert, they are not guilty of conspiracy, though they
may be of a numerous class of other offences. For a con-
viction of conspiracy the law requires that the jury
should be satisfied that there was a consent either
for the purpose of doing an illegal act, or doing, or causing
to be done an act legal in itself, but to be brought about
by illegal means, Gentlemen, I think that to be the defini-
tion of conspiracy according to law, ald which I am bound
to put before you. You see in that definition Ido not include
as a component part of the crime of conspiracy either the ex-
istence of treachery, as it was insisted on by Mr. Fitzgibbon,
on the first day of his address, nor of secresy, which was in-
sisted on by him on the second day that he addressed you, and
which was afterwards reiterated and repeated by Mr. O'Con-
nell, one of the traversers, who addressed you in his own de-
fence, which he had a perfect right to do, when he stated his
case to you. In my opinion, and in the opinion of this Court,
it is a mistake in law to say that to establish conspiracy it is
necessary for the Crown to prove the existence of either
treachery or secresy in order to complete the charge. I do
not say it is contrary to it. It very often happens that
both treachery and secresy concur in the existence of various
conspiracies ; they are cognate to such any offence. But,
I deny aliogether that it is the law of this. coun-
try that the existence of either one or the other
ingredient should be proved in order to constitute the crime
of conspiracy. Secresy is very often involved in it; but, in
my opinion, it is not a necessary ingredient. I say there are
crimes like the present—by saying that, I do not mean to anti-
cipate—no, God Lrbid ! but, if secresy were a necessary ingre.
dient in the crime of conspiracy, the present charge might
have been carried on, and the parties could not have been
stopped in their progress. A great many authorities were
cited by Mr. Fitzgibbon in his argument, both on the first
day, when he insisted on the existence of treachery, and on the
second day, when he insisted on another alternative, the exist-
ence of secresy. I have looked into those authorities, and I
am bound to say that they do not support the propositions
which he brought forward. I would say further, that I was
much surprised at the statement which lie made with
regard to some of the eases to which he referred as
if they contained any ground for the introduction of such a
proposition. I have looked carefully over them all, and,
without troubling you with a recapitulation of those
the opinion
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suppot t the proposition for which they were cited—that in order
to substantiate the charge of conspiracy either treachery or
secresy was necessary. The definition of conspiracy I have
already stated to you, as we hold the law, to be the mutual
consent of two or more to bring about, by concert or design, an
end illegal in itself, or an end abstractly legal in itself, but to be
brought about by illegal means. That, you will see, includes
within it, wherever they exist, the charge of treachery or the
charge of seeress, ; but yet those are not necessary ingredients
in a conspiracy. But Mr. Fitzgibbon insisted that the definition
I have given conspiracy has been found fault with, or over-
ruled in a case to which lie refers, by Lord Denman, the Chief
Justice of the Queen's B:rich in England, that person, who,
is alleged to have first introduced the definition of conspiracy
such as I now lay it down to you. I beg leave to say to Mr.
Fitzgibbon, it does not appear that Lord Denman ever did any
such thing ; and, moreover, that the reason or definition which
Lord Denman had given in one place, afterwards had been the
rule and definition adopted and followed, not only by Lord Den-
man, but by a variety of successive Judges, in the different
Courts of England, giving judicially their judgments on the
subject. Mr. Fitzgibbon slid that Lord Denman, in the case
in which he had laid down that rule, did not act judicially ; and
he said that what he did say was either obiter dictum or ipse
&sit, the term obiter dictum is that he made it in-
considerately, or necessarily determined it ; ipse
his own personal opinion, unsupported by anybody
else; these are the meanings of his words. It so
happened in the case to which he referred, the case in
which the rule was originally mentioned by Lord Denman,
Ist Adolphus and Ellis, he not only did not lay down that rule
extra-judicially, as obiter dictum, nor unsupported by other
judgments, but he stated that rule judicially. The very founda-
tion of his judgment, an I given in the most deliberate manner,
was so far from being unsupported by the opinion of the other
Judges in the Court of Queen's Bench, that all concurred in
opinion will Lord Denman, not only in the judgment he gave,
but also in the rule which he laid down and adopted as the
foundation of his judgment. So far with regard to the
statement of ipse dixit, and not only because the same cir-
cumstance in several other cases in which it became neces-
sary to consider the law of conspiracy, and judicial opinion
pronounced from the Bench severally, and given seriatim by
each individual Judge, in which one and all concur in
the justice of the rule, and they pronounce the judg-
ment in their respective cases, according to their common
opinion. The same rule is laid down before Lord Denman's
time by the late Lord Chief Justice of this Court. He also,
in the Court of Queen's Bench, in this country, adopted the
same rule in precisely the same terms. The only imputa-
tion that ever was cast—and it is the mistake into which
Mi. Fitzgibbon fell—the only imputation that ever was cast
by Lot d Denman on that rule, I will now advert to. The
rule was cited in the progress of argument by (I think) a
Mr. Carrington, a gentleman of the English bar. He stated
the rule to be as I have stated it to be—a conspiracy is
either the agreement of two or more persons to procure to be
done an unlawful act, or a lawful act to be done by unlaw-
ful means—and, says Lord Denman, " I doubt the correct-
ness of the argument." That is the whole of what. Lord
Denman says ; and which is brought forward and cited in
this Court as giving judgment against all the concurrent deci-
sions of other Judges. Everybody knows Lord Denman to be
a most learned and accurate scholar ; and what he meant by
this expression was, that an exception might be taken. All
the Judges in England before whom the question has ever
since been raised (it has occurred very frequently) have
reiterated and restated the existence of the same rule, and
have acted on it accordingly. Mr. Fitzgibbon, with a good
deal of seriousness—perhaps I may say, solemnity--an-
nounced the law not to be such as I have stated ; and lie
found fault with his friend, Mr. Moore, who was for
mother traverser in the same interest with him, for having
idrnitted the law as the Attorney-General had declared it.
tie said, with au earnestness to excite your attention,
that that was not the law—that by the law as existing so long
go as the reign of Edward 1., nothing could he termed
a conspiracy except by respecting any other defraction but a
certain one mentioned in an old Act of Parliament of that
time. We learn from that it was said that nothing is a con-
spiracy except an unlawful association of men bound together
by oath or other illegal obligation, for the purpose of im-
posing a false accusation on another man—it was something to
this effect was said. Mr. Fitzeibbon then referred to a pas-
sage by way of pointing out the law as to conspiracy, but
there would not necessarily have been been treachery if the
law had been so stated as laid down by Hawkins, and taken
from the old Act of Parliament of Edward 111. Mr. Fitzgibbon
forgot to add, that in two pages after that to which he referred,
, Mr. Ket wood, a gentleman of the bar, who published the last
edition of Hawkins, records this passage—" Modern cases have
certainly stretched the doctrine of conspiracy far beyond the
old mule of law." That was the observation when a case