The Sun.
London, England, 1844-07-10 00:00:00

jury in Ireland. The mischief to be remedied was,
Ithat the informations were laid before the grand jury,
and no witnesses were examined viva voce, the object
being to substitute viva voce examinations for written
testimony; and, as one of the Learned Counsel had ad-
verted to the practice in the House of Lords, he sub-
mitted that the swearing of witnesses whilst the pro-
ceedings were going on led to some confusion, and that
the oath so administered was not so impressive as when
adminstered by those who had to receive the testimony.
Persons sworn in court might not be examined for two
or three days, and certainly the impressiveness of an
oath, might lose its force in that interval, which used to
occur before the Act of 1838. That Act was an im-
portant general remedial measure. The preamble stated
that the practice of swearing witnesses in court was at-
tended with great delay and inconvenience. Since that
time, in all the commission§ that had been issued, and
tried in the Recorder's Court in Dublin, the witnesses
ware sworn by the grand jury. How, then, would the
case be, if, as represented for the appellants, the Act
did not extend to Commissions in which the judges of
the superior courts were included ? It frequently hap-
pened that the jury had been charged by the Recorder,
had retired, examined the witnesses, and found the bills
by the time that the two judges came into court. Now,
was it necessary that all the witnesses should be re-sworn
in open Court before the Judges, and the whole of the
proceedings gone over again ? Yet, if this objection
were good, such would be the case ; and every man
who had been convicted and transported under these
commissions was wrongly transported. It was a. cu-
rious coincidence that the first judge who charged a
grand jury under the Act was Baron Wolfe, whose
name '.as on this bill.
Lord CAMPBELL—Had he the Act before him at the
time ?
The ATTORNEY-GENERAL (for Ireland) did not know.
But he thought that when a judge instructed a jury on
the construction of an Act of Parliament, he would
have made himself acquainted with that Act. In the
enacting part of the Bill it was ena'ted, that "In
all cases which should come before grand juries
in Ireland for their consideration," the witnesses
might be sworn by the foreman or other members of the
grand jury, and that the clerk of the crown at assizes,
and the clerk of the peace at sessions, should endorse the
names of the witnesses on the back of the bill. Mr.
Kelly laid great stress upon this point. The Right
Ron. and Learned Gentleman then proceeded to refer to
cases on the subject, in the 2d Institute, pages 393, 394.
and 426. He did not think it was necessary he should
trouble their Lordships with any further ob
servations on the assignment in error, except with
respect to Mr. Steele's assignment of error in fact,
and that he ventured to say could not be sustained
for the reasons he had already mentioned. He admitted
that a'l the witnesses had been sworn, but that the officer
not having put his initials on the bill, the whole was in-
valid; now he submitted that it was not. He would now
shortly call the attention of their Lordships to the in-
dictment
in the present case. He thought he had some
grounds to complain of some of the Learned Counsel who
appeared on behalf of the plaintiffs in error, one of them
having adverted to matters that were not within the
record. Whoever had instructed the Learned Counsel
to make the statement he did had instructed him
to state that which was not true. Having
said thus much he would proceed with his
arguments notwithstanding the language that had been
used by one of the Counsel for the plaintiffs in error, who
in speaking of the vituperative language of some parts of
the indictment, seemed to have made use of it himself,
leause he said that nothing but confidence in a political
jury could have induced this indictment to be framed as
it had been. Nothing in his opinion could have justified
counsel in making such observations. The fifth count of
the indictment appeared to be the first to which an
objection had been made, and the reason probably
there was no allusion made to the earlier counts
was that the fifth and subsequent counts were embodied
in a different way. By the fifth count the defendants
were found guilty of unlawfully and maliciously conspir-
ing to create discontent and disaffection among the sub-
jects of the Queen and to the Government. Now the
first case on the subject was the case of the King
v. Redhead Yorke," reported in the State Trials.
The Right Hon. and Learned Gentleman then quoted
from the 9th volume of Carrington and l'ayne's Reports,
page 275, the case of the " Queen v. Vincent." Vincent
heel been one of the associates of Frost, who had been
found guilty of high treason. Frost had not been tried
upon the indictment for conspiracy, but Vincent had
been tried. The first count on which he had been in-
dicted charged him with conspiring to excite discontent
and disaffection amongst the liege subjects of her Ma-
jesty against the Constitution, and of endeavouring by
assembling a large number of persons to excite peril and
alarm in the mind of her Majesty's liege subjects, and by
exciting such peril and alarm to procure a change in the
Constitution. In that case the jury had found Vincent guilty.
He had procured a copy of the indictment from the so-
licitor of the Treasury. The indictment had been tried
lon the Mh of March, 1840, and the indictments in that
case were identical with the present. One of the
Learned Counsel who had addressed them on the present
occasion for the plaintiffs in error, and who had par-
ticularly directed their Lordships' attention to that
count in the indictment, had been one of the
counsel for the Crown when Vincent was
tried. But what was discontent and disaffection
in 1840, when the Learned Gentleman was in office, be-
came legitimate opposition in 1844. However, the case
of the " Queen v. Vincent" was a precedent for them.
The case of the " King v. Hunt" furnished a similar
precedent; and there was another preeedont in the case
of !` Law v. Allan," reported in the 2d Lynch, page
796. That was a precedent for an indictment for
general conspiracy. In that indictment it was al-
leged that Law had conspired to seduce men from their
allegiance, without stating when or by what means.
The Learned Gentleman then quoted the case of the
" King v. De Berenger," as a ,precedent for the present
indictment. The same observations applied to the 6th
and 7th counts of the indictment. The Learned Gentle-
man on the other side had put the case of a mob who
met to intimidite another mob which sought to procure
changes in the law and in the Constitution. But a mob
meeting for this purpose was not a mob meeting for the
purpose of producing changes in the law by intimidation
and the demonstration of physical force.
Lord BROUGHAM—That would not be an answer to
the case put by. Mr. Kelly. He put the case of an
Orange mob coming down to intimidate the Houses of
Parliament, and then he supposed a loyal mob coming
down and saying that they would prevent the Orange
mob from intimidating the Houses of Parliament, in
order that the Act of Emancipation, or any other Act,
might be passed.
The ATTORNEY-GENERAL (for Ireland)—That would
be a mob going down to intimidate the Orange mob, but
it would not be a mob met for the purpose of procuring
changes in the Constitution.

L6id BROUGHAM—Yes, it would, for they came down
to intimidate the Orange mob, in order to procure the
Emancipation Act.
The ATTORNEY-GENERAL (for Ireland) apprehended
that a mob coming down to free Parliament from the
pressure of another mob, would not be a mob convened
to procure alteration and changes in the Constitution.
The LORD CHANCELLOR—But would it be a mob
unlawfully, maliciously, and seditiously convened?
Lord BROUGHAM—Aye, aye, that is another question.
The ATTORNEY-GENERAL (for Ireland)—When their
Lordships came to examine the count they would find
it did not apply to such meetings. There was nothing
dissimilar in it from the count in the case of Feargus
O'Connor, which had been tried before Mr. Baron Rolfe,
in which the judgment was arrested on the count in
which he was found guilty, because the count was with-
out a venue.

Lord DENMAN said there were two counts in that case
on which the defendant was convicted. One of those
counts they considered too general, but they gave no
Judgment, as the party was not broeight up for judg-
ment. They also thought that the venue count was not
good.
• The ATTORNEY-GENERAL (for Ireland)—The Learned
Gentleman on the other side alluded to the words, the
demonstration of great physical force, and said, that they
meant nothing. He would refer their Lordships, on this
point, to the language used by Lord Chief Justice Tindal.
He then read the judgment of Chief Justice Tindal, and
proceeded to say, that though the large meetings might
be for a more innocent purpose than high treason, yet
the holding those meetings certainly amounted to an
aggravated misdemeanour, as it was impossible to say
to what consequences they might not lead. It had been
alleged as an objection to this count, that it was not
stated who were the parties who were to be in-
timidated ; but he contended that this was not
necessary ; in the case of a conspiracy' to defraud
generally, it was not necessary to state who were to be
defrauded. lle next proceeded to the counts which
charged a conspiracy to bring the tribunals of the
country into hatred and contempt. He could con-
ceive no more grave offence than thus endeavouring
to bring the administration of justice into disrepute.
In the case of the riot at the theatre in Dublin, in which
a bottle was thrown at Lord Wellesley, it was decided
that though the parties had a right to express their ap-
probation, yet what was right in the individual, was
illegal when there was a pre-combination for that pur-
pose. In the case of the officers in the East India
Company's service, reported in 4th Burrow, the
parties were all indicted for a conspiracy. Lord Mans-
field held that, although each individual had a right to
say "I will throw up my commission because batta, has
been refused," yet an agreement to that effect constituted
a conspiracy. The Learned Counsel then went on to
show that the indictments in these cases were
similar to the count fur endeavouring to procure a
change in the law by a demonstration of phy-
sical force. and read the count for that purpose.
His Learned Friend had so ably argued that part of the
case that he would not trouble their Lordships by ar-
guing it at greater length. As to the extreme cases
which had been put by the other side, such as the con-
spiring to steal a loaf of bread on one day, and conspiring
to fire a house on the next, he would only say, that no
judge would allow two such offences to be in-
cluded under one conspiracy. As to the ques-
tion of good and bad counts, there was no analogy in
civil and criminal cases. In civil cases there could be a
venire de novo ; but that could not apply to criminal
cases. The court of assize could not make up its record
with such a distinction between good and bad counts.
They could not enter up a judgment non obstante vere-
dicto ; neither could they enter a verdict of acquittal.
It was no matter how many counts there were in the in-
dictment, the question was whether the-party was guilty
of the offence charged in the indictment, and was there
a finding to warrant the judgment ? If the arguments
on the other side were to prevail, it would strike at the
full scope of criminal justice. He trusted their
Lordships would not come to any conclusion that
would do anything to alter the whole mode in which the
criminal business of the country was transacted. There
was another point to which he would slightly ad-
vert, and that was the point raised upon the first
count of the indictment, It was not necessary