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

IRELAND.

THE STATE TRIALS
FOURTEENTH DAY.

(FROM OUR OWN REPORTERS.)
DUBLIN, TUESDAY, JAN. 30.
COURT OF QUEEN'S BENCH.

THE QUEEN V. 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 haying 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
ease it was his duty to address the jury on the part of
Dr. 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 honrs 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
pr.-mises? If Mr. Shea, 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 pre-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
th,. 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. Thetiury had heard a term used very much
—" overt acts." 'I he 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, he
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. He
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' during 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 jastice, 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 &o away, and I regret the
cause to arise from indisposition.
Mr. O'Connell here left the Court, and—
Mr. FITZGIBBON continued—He claimed the attention
of the jury for a moment. There was the indictment ;
they were told that this was an indictmenrat 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, ho 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 au
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
cited 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 effixt that