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

BRITISH MAGAZINE.

A monthly register of religious and ecclesiastical
information; drawn up succinctly, and adapted to
the tastes of clerical readers, for whom it is chiefly
designed. In the present Number occur some judi-
cious suggestions respecting the " Religious Treat-
ment of Lunatics."

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.

I.I.TILL OF PORK AT DEVONPORT. Saturday
morning a building in the market of this town, which was
supported on pillars, and appropriated for hanging the car-
cases of pigs on the cross-beams attached ,thereto, not being
able to sustain the weight of the dead pigs, in consequence
of the rottenness of the timbers, fell down on a number of
persons who were engaged in business under the roof. The
utmost confusion ensued. When the parties were taken
from the ruins, it was discovered that a pigdealer from the
country had his leg and thigh broken, and otherwise injured ;
an industrious woman, a butcher's wife, had also a leg broken.
Four others were severely hurt, and many slightly. Had the
accident happened half an hour later, some serious disasters
would no doubt have been the result. The parties whose
bones were fractured were taken to the infirmary at the
workhouse, where every .attention is being paid to them by
desire of M. E. St. Aubyn, the steward of the manor.

-
• 7-7,x7-7c.:

ks
II

conspirators were persons who hound themiepligiv oath-- ,Q
to do an illegal act—who bound themselr• ipgether -to k.:
tyranise over others—to undertake malici eiprises.,l4!,y-v,
Such (continued Mr.'Fitzgibbon) was the .1 ion given
of this early statute, for the purpose of i‘s• ng a, final,
definition of conspiracy. He was quite f?* -to adinit
that, in the same book, there were passages Witich
be considered unfavourable to his case, but he 'We. Fiti-
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 usricE--Where is that? •
Mr. Frrzmunost—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 party charged married a
cripple, not for the purpose of matrimony 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 following day. Evi-
dence of these overt acts were offered, and the Ccitirt
allowed them to be given to the jury, because the accused
parties were all member of the same family—all in-
cluded 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.
Mr. Justice BunTox—Where is that ease ?
Mr. FITZGIBBON—It 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 conTiracy was a
crime that consisted either of a combination to do seme
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 there
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 that 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; and 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 ease 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 of 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 of judgment, 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 persobs confederated
together for effecting an illegal psurpOse by legal means,
it constituted the crime of cons Piracy ' • also, that they
were guilty should the object never be effected. Ile
(Mr. Fitzgibbon) cautioned the jury against adopting
text-books of law, which he compared to map-making
—the writers of text-books generally adopting those
which they already found in existence. The Learned
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 an offence.
In vain would they look for such a definition iu the 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 tvidence 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 •
malier 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 haw; 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 Major Westenra produced? He was there
—the pretended Wexford man was there—they were all
in a group, yet the Major wain not produced. He
thought he would be able to shovv them, in the progress
of this case, a little of management. They were now
in the year 1844, and should d o things now a days in
something of a more civilia ed style than in former
days. It would not do that e. man who had been the
suggester of the matters the rged 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 personk—a forward 'Repealer, a
wearer of the repeal cap, it would not do to produce
him, for testimony of that k'nad would not suit for a jury.
No, he had two young men in his employment whose
characters had not been itropeached, 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 /sot there in that evidence of
management, subtlety, and craft; Combine this with-
holding of Holbrooke with tive story of the Wex-
ford man, and was it too mueb to ask the jury to be
lieve that there was here some signs of contrivance on
the part of the Crown.? 'Y. he Attorney-General had
quoted Mr. Justice Coleridge in support of his monstrous
proposition—he merely int d the scissors. and cut out
the dictum of that judge. It was, however, only fair to
the man to give the entire of his judgment. (The Learned
Gentleman here read from: the judgment, to show that,
although the common des'ign was the root of the charge
of conspiracy, yet there should be evidence that
there had been a previous combination to use the
same means for a comm on esnd.) The proposition of
the Attorney-General was a eat, monstrous, and absurd
Version of the law of conspiracy. Ile concurred with
the view of Mr. Justice Cols :ridge, taken as a whole.
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aleaeral was totally unsupported by the judgment of
that Judge. Counsel next referred to the case of the
liEng v. Watson, a case of treason, and quoted from Mr.
Justice Bailey, who, in his charge to the grand jury,..
held that there must be previous consultation and design
to establish conspiracy. The jury should believe
that the parties actually did consult for a criminal
design, before they could hold them guilty of con-
spiracy. He came next to the third proposition of
the Attorney-General, and entreated the attention of
the jury. The Attorney-General said that, provided a
man subsequently came into the common design, he was
equally responsible as if he had been associated from the
beginning, as a criminal conspirator. Perhaps, by-and-
bye, the Solicitor-General would endeavour to explain,
and get the Atturney-General out of this absurdity,
by contending that the parties subsequently coming in
would become responsible by seditious and illegal acts
—by calling large multitudes, and uttering seditious
speeches. The Attorney-General, in support of his
proposition, had quoted Mr. Justice Bayley. (Counsel
read from the opinion of that judge, to show that the
cases were not at all analogous.) He would now deal with
another proposition of law of the Attorney-General,
who had referred to the case of Redford and Births,
which arose out of a far-famed transaction in Manches-
ter, in 1820. They had all heard of the meeting on the 16th
of August, 1819, at Peterloo, in Manchester. Mr. Hunt,
who was in the chair, was arrested, and several persons
were Billed. Hunt was prosecuted, and the indictment
charged him with a conspiracy. There were three counts.
He was ch arged with conspiracy, confederacy, &c., with the
other persons indicted. The Attorney-General of that day
did not think it safe to go to trial merely on three counts
for a conspiracy. He knew it would be a novelty to an
English jury, and, therefore, added a fourth count, for
attending an unlawful assembly. They were tried at
York, and the case occupied ten days. The Crown
strove, by every means, to establish a conspiracy, which
was the very question for trial before the jury—it
not being competent to any judge to declare any man
a conspirator until twelve men on their oaths, who are
not judges, had found him to be so. That tribunal,
the jury, decided that Hunt was not guilty of con-
spiracy. They gave that verdict, not because they were
political partisans, or men of one-sided views in politics;
but they gave their verdict as honest Englishmen on
their oaths. Redford, who had been wounded at the
meeting, brought his action against the man who
wounded him with a sabre. That case was tried. There
was a plea of not guilty, which is as much as to say the
act was not done; but that plea was not always safe,
and there were other pleas, to the effect that the meet-
ing was illegal and the plaintiff, being there illegally,
the defendant only did his duty as a yeoman by assisting
to disperse it. Conspiracy being illegal, it became ne-
cessary to prove it, and a witness was produced who
had been 111-used by a party engaged in drilling pre-
vious to the meeting. That very evidence must have
been given on Hunt's trial, who was acquitted of the
conspiracy ; but when the evidence was tendered on the
civil action, it was admitted by the judge, and the jury
found a general verdict for the defendant. A motion
was made to set that verdict aside, on the ground of the
admission of illegal evidence. The judges refused to
set the verdict aside, and the Attorney-General referred
to the dicta of the judges in support of his view of the
conspiracy and illegal meeting. The judges in that
case only referred to the admission of evidence, as to the
drilling, to go before the jury in a civil action.—
And it was in such a case as this that the Attorney-
General sought a precedent and authority to prove a
conspiracy and illegal meetine. here. Hunt had been
acquitted of conspiracy, and the judges had not, in
fact, the question of conspiracy before them. The
dicta of the judges about the admission of evidence of
drilling in Manchester, had been urged by the At-
torney-General in reference to the Repeaters, who had
no drilling at all. The Attorney-General had only read
a small extract from Lord Wynford; he (Mr. F.) would
read the entire of it, with note and comment. Lord
Wynford referred to the parties engaged in drilling in
Manchester being armed, in rank and file, and firing at
the word of command, being ordered to advance at the
sound of trumpet. Such were the drillings Lord Wyn-
ford spoke of. Was it fair to read the extract the At-
torney-General had read, without bringing under the
notice of the jury the sort of drilling that Lord Wyn-
' lord had spoken of ? A lawyer was bound to state the
"law fairly and candidly—above all, he was bound to do
so in a State prosecution, where a man of his:own rank, in
ills own prof'es,ion, who had peen nearly half a century
di:•tinguislied in his profession, was concerned. The At-
Genv- oral, in such a case, was more especially bound
tom
when a man was concerned who
to state
law faiTly,
had been so
long his admitted superior in. the profes-
sion, and who N'tas charged with a crime for which, if
he were found guilty, he would be conveyed to a dun-
geon in the closing period of his life. If ever there was
a case when it became the duty of a barrister in the
discharge of his public duty to prosecute a brother
_barrister, he ought to do it fairly, justly, honourably ;
but if in the discharge of that public duty, as Attorney-
Genoral or Crown prosecutor, he aims below the mark—
if he cites the law Tor own particular purposes, and omits
passages which he ought not to have omitted—if
lie seek a conviction, no matter by what means it is to
be obtained, he is no longer deserving of public respect
or of public confidence. He (Mr. Fitzgibbon) if he
.had stooped to act in the manner he had described,
Naroulii cease to enjoy his own self-respect. He could
not, consent to earn the guilty wages of professional suc-
cess ; he would feel that he had been guilty of an act of
turpitude, zvhich would fdr ever disable him from raising
his head in solnjetY; The jury. he was quite certain,
of the history of their coun-
could not be totally"outant
try, or of the °Teat eNl'uts which took place in their
hemisphere. 'Rey were nj! ignorant that when Wil-
liam the Conqueror landed in Ent mild, the greater por-
tion of the population of the island were bond slaves.
This was an indictment charging the defendants with
the exhibition of great physical force. It did not
charge them with seeking to attain their Aga by the
use of physical force—the use of it was not at eu con-
. templated. An immense mass of the community were
dissatisfied with a law, and they came forward in large
masses, to express their determination never to cease
their constitutional efforts until that law shall
have been repealed. And the Attorney-General calls
that a crime. Was there a crime in the attainment of
Magna Charta ? Was there no exhibition of physical
force at Runnymede, with the Barons in full armour,
requiring their Sovereign to sign a charter they had
bought ready made ! That is a charter which no At-
torney-General, no Judge, no King would dare to say,
that, because it had been procured in that way, it was,
therefore, void. But there were other instances in
English history of great changes produced by the
very same means. Was there, in fact, any great
change produced without them? Was there no ex-
hibition of physical force at the Clare election ?
The people were discontented with the state of the law,
and they sought, peaceably and in large masses, to
effect a reformation. Why was this a monstrous case?
Became the Ministry of the day sought to get into their
hands a scourge to prevent and repress the expression
of popular discontent. He next referred to the
period of the French revolution, when an indictment had
been preferred against a great man, Horne Tooke. As
in this case, a chaos of papers had been thrown on the
table, and the jury were left to spell their way
through them. That prosecution had been counte-
nanced by the King—it was pressed with all the energy
of the Attorney-General and Solicitor-General
of the day ; but the common sense and honesty
of the jury prevailed—they found a verdict of not
guilty. He (Mr. Fitzgibbon) felt a great responsibility
in this case, from a knowledge of his own deficiency. in
the case of Hardy, public liberty had for ite champion
Mr. Erskine; Hardy was acquitted. They then brought
forward Tooke, and he was acquitted. The Crown still
persevered, but each successive jury defeated their ate
tempts to establish constructive treason, and that was
the last attempt in England.
At this moment (two o'clock) the Court retired for
refreshment.
During the absence of the judges and jury for re-
freshments, a scene of the most singular, remarkable,
and truly unprecedented character took place in Court
which perhaps it ever fell to the lot of a journalist to
record. It was observed that some hasty observations,
and in a very excited tone and manner, passed between
Mr. Fitzgibbon and the Attorney-General, and there
was, to use the language of Mr. Sheil, " a hush of public
expectancy and almost breathless silence ;" when, after a I
much more protracted absence than usual, their Lord-
ships resumed their seats upon the Bench.
Mr. Frrionnsoil rose and said—My Lords, as I was
coming into Court after having, from the effects of ill-
ness, endeavoured to take a short respite in the library,
after an exertion not very seasonable, having regard to
the state of my health, a note was put into my hand,
signed by the Attorney-General, which I ask him now
to read to your Lordships.
A short pause ensued, and the Attorney-General
having made no reply,
Mr. FITZGIBBON continued—My Lords, I hope that
in opening the case, I did very clearly and very plainly
express my Sense of the position in which I had been
professionally placed.. I think I did very clearly and
plainly express what my opinions and what my feelings
were in respect to the gentlemen who here represent
the Crown. I very clearly separated any reference in
whatl said of my private feelings from what I consi-
dered my duty required of me to express, not in refer-
ence to themselves porsofially, but to their conduct in
• this prosecution, tend I do not think that I
travelled out of the .line of my duty in making those
observations. I observed upon no act or thought of a
single one of them, except an act done or a thought ex-
pressed in the course of this prosecution. I said very
plainly and distinctly that I would despise myself if I
left unobserved any point upon which my client might
observe if he were in my position,and defending him-
self as his own counsel, or I n'
traverser at the bar, and defending myself.
a
I pursued what I oonsiderod to be the
course
which my duty indicated, and I don't think I
wbeyond it. Now, my Lords, I ask the Attorney Genet
neral to hand up that no to ; and if he will not, I will tell
your Lordships the substance of it. He tells me in that
note that I have given him a personal offence, and he
calls upon me, if I. do ttot apologise for it, to name a
friend.—(Sensation etrouwhout the Court.) I need not
advert farther to his possitio n or to mine on the present
occasion, nor is it necessary for me to refer to my pecu-
liar position at this mon tent, while defending one of the
traversers here ; but, w ith these observations, I shall
leave it with your Lordsb ips to deal with his conduct.
The ATTORNEY-GENE rAL rose and said, in rather an
indistinot tone—lf Mr. Fitzgibbon has any application
to make to the Court, let', it be made in the usual form.
Let him make an affidavit, setting ftwth all the facts.
Mr. FITZGIBBON (virarmly)—l never will.
The ATTORNEY-GENERAL I then have to state
that he attributed Ito me in this Court—and it
Was so taken dowt in writing by some of my
friends—that my pu, title conduct in the conducting
.and carrying on of tl lose prosecutions was influenced
by rivate and dishont ,urable motives. By the effect
which the result of -th kis prosecution, in its failure or

otherwise, might hare upon myself or my personal inte-
rests. Ido not think any counsel is justified, even in
his public capacity, in attributing such unworthy and
unwarrantable motives to me, as that I could be influ-
cued in this case by any interests with respect to the
political party to which I belong. I did then, and Ido
still, feel very much offended at it —very much irritated
at such an allusion—and I consider that no observation
which could be used could more strongly tend to excite
such a feeling. Certainly, if language of the kind
was not intended to convey a personal imputation
on myself, I cannot conceive anything easier than for
a gentleman to state that he had been misunderstood by
myself and my friends. Those are the circumstances, and
if there is any question to be properly brought before
the Court, whatever its rule may be, I am perfectly cer-
tain it will not sanction any personal imputations on the
counsel who are engaged in conducting it.
Mr. MOORE was about to make some observation, when
Mr. FITZGIBBON again rose and said—l beg your
pardon ; allow me to address the Court. My Lords,
I could very well understand the good sense and pro-
priety on the part of the Attorney-General of calling
my attention to anything which I said that might have
offended him, and I could equally understand the pro-
priety of my acting in accordance with the feelings and
principles of a gentleman, had he permitted me the op-
portunity of taking that course which propriety would
dictate. I will not now say what I might have done
under the circumstances, for that was not the way he
acted ; but, with a pistol in his hand, he says to me,
" I'll pistol you unless you make an apology ; ' and I
cannot help telling him now, that such a course won't
draw an apology from me. _ _ _

Some minutes elapsed without any further observation
having been made on either side, the Court having
been engaged during the interval in consultation.
Cann' JUSTICE—Mr. Moore you were going to make
some observations awhile ago. •
Mr. MOORE—Really my Lord, I am afraid, after
what has lately occurred, of making any observation at
all in the matter. What I was going to take the liberty
of suggesting to the Court, in reference to an occur-
rence which I am sure every individual member of the
bar, and the public, will equally regret, in a case like the
present, where the feelings of every person engaged on
the one side or on the other, are necessarily very much
excited, and in which I should hope every indulgence
might be extended to anything irregular that may
have occurred—what I was going to take the liberty of
suggesting was, that as there appears to exist a very
warm feeling on one side and on the other, an opportu-
tunity should be afforded of allowing that to subside, and
of removing on both sides any misconception that may
have previously existed. That was the proposition I
was going to to take the liberty of making. I cannot
attempt to justify what has taken place, nor am I au-
thorised to interfere in it; but from the position which
I have the honour to hold, and the sincere personal
regard I entertain for both gentlemen, I think it
might be desirable for their own sake, for the interests
of the profession, and the sake of the public at large, that
the Court should allow some interval to elapse, in order
that those feelings may subside, and this most unpleasant
affair may be satisfactorily arranged.
CHIEF JUSTICE—The Court are very much indebted,
and very much obliged to you, Mr. Moore, for the part
you have taken, and the short explanation you have
given. The Court feel themselves placed in a very em-
barrassing and perplexing situation. They feel unwil-
ling to give any intimation of their opinion as to the
propriety or impropriety of what has taken place in
Court, being willing to make allowance for the excited
feelings of the gentlemen concerned in a case of this na-
ture, which may carry them beyond what their cool judg-
ment would approve of. They, therefore, give no sort of
intimation at present of what their opinion is in regard to
the conduct of the gentlemen at either side pending the
trial of' this case. They feel it to be a very embarrassing
case to be required to pronounce any sort of opinion
while a case of this nature, in which the public is so
much interested, is depending before the Court, the jury,
and the public at large ; and they also feel that of all
men in the profession, the Attorney-General is the last
man who ought to have allowed himself to be betrayed
into such an expression of feeling as has been stated to
the Court as having taken place during our absence,
for although we were not personally present, it yet oc-
curred while the Court was sitting in the discharge of its
judicial functions.
The ATTORNEY•GENERAL—I have to state, and my
friends tell me so, that the note was written very hastily;
but considering the position I was placed in, and the
strongly irritated feeling I was under, I concur in what
has been suggested to me, and I have no objection to
withdraw that letter, but I shall make no further turns
about. I feel that I was very badly dealt with, and I
leave it to the Court to consider what course the gentle-
man who used that language ought to adopt in regard to
what is due to me.

The CHIEF JUSTICE—The Court are bound to consi-
der what took place as if it occurred during the business
of the Court, and we can't by any possibility allow it to
go further. It must be put a stop to.:
Mr. Moore—l know how very difficult a position lam
placed in ; but I would take the liberty of suggesting to
Mr. Fitzgibbon, after what has been said by the At-
torney-General, that he should admit that he has fallen
into an error, which any man may fall into ; and I only
suggest to him what I would do myself if I were placed
in the same unpleasant situation.
Mr. FITZGIBBON—Your Lordships have heard—and
all who are now present have heard—what fell from me
in the course of my address to the jury. The Attorney-
General has repeated what he says was taken down as
my language, and he says that I imputed to him dis-
honourable motives—of being influenced in his public
conduct, in regard to these prosecutions, by the love
of place, or desire of place, or personal advantage to
himself. My Lords, that language did not come from
me—l carefully avoided it. I spoke of Lord Coke and
others being influenced by those feelings which every
public prosecutor was more or less influenced by in those
days, and which might appear to influence public
justice ; but I appeal to your Lordships' recollection
whether I ascribed to the Attorney-General one single
feeling dishonourable to him more than what I suggested
was the cause of unusual warmth in a public prosecutor
in all eases of this kind. I regret extremely that
the Attorney-General before he took the course he
did, did not address me, for I stand here uncon-
scious of having either said anything or done any act
with the intention of wounding the feelings of another.
I never imputed personal motives of a dishonourable
nature to the Attorney-General. What I have done,
my Lords, in this case, and what I have said, I have said
and done in the discharge of what I conscientiously felt
to be the duty I owed to my client. I did not speak of
him except in the opening of my address to the jury,
and in what terms did I speak of him then ? I spoke
of him as a gentleman in the best sense of the word—
I spoke of him as a lawyer in the best and most dig-
nified sense of the word. Such is the character and
extent of the language which I applied to him personally.
Did I not say all that in his behalf ; and did I not add
that my personal experience of him fully warranted
me in saying thus much? This was the extent of my
personal allusions to the Attorney-General, and if in
the subsequent part of my address I made any reference
to him, I did so in the discharge of the duty which, as
an advocate, I owe my client, and my remarks were
meant to apply to his conduct in the present case and to
nothing else. lam not disposed to claim as a right the
privilege of canvassing the conduct of the Attorney-
General. If it be a right it is to me a most painful one;
but when I am defending a gentleman who has done me
the honour of anficling to me his defence, where he is
accused of an atrocious offence, I feel it to be my impera-
tive duty to analyse the official conduct of the first law
officer ref the Crown in the present case; but out of the
present case I will not travel. I spoke of the Attorney-
General as a public man, and as such only, in reference
to the present prosecution. I spoke of his conduct in the
present case ; but out of the present case I did not for
a moment travel, nor did I allude to one solitary act of
his life unconnected with this trial ; and am I to be told
that I am to make an apology to a gentleman who
The CHIEF JUSTICEYOU may have misunderstood
the Attorney-General, Mr. Fitzgibbon.
Mr. FITZGIBBON—My Lord, it is totally impossible
that I could have misunderstood him.
The CJUEI JUSTICE—Yes, but, Mr. Fitzgibbon, we
are all liable to fall into error, and it is possible that
there may be misconagtions on both sides.
Mr. FITZGIBBON—Iay Lords, the first emotion of my
mind, when I got his note was—no, I will not say what
it was—my second was to let him out of the difficulty
in which he had placed himself.
[Here Mr. Fitzgibbon was handed in a piece of paper,
in shape not unlike that on which the alleged challenge
was written ; but he tore it across, and flung the frag-
ments under the table.
The CHIEF Juoucz—l was going to say that-the
whole matter had now been under the consideration of
the Court, and that there was no necessity to go any fur-
ther into a statement of the circumstances.
Mr. FITZGIBBON—I have been misunderstood, my
Lord. Ido
CHIEF JUSTICE—The Attorney-General has with-
drawn the note he has addressed to you, Mr. Fitzgibbon.
He has expressed his regret that it was written, and
wishes it to be regarded as if it had never been written.
He misunderstood you.
Mr. FITZGIBBON—My Lords, any man must have
grossly misunderstood me who imputes to me the intention
of attributing base motives to any one in the discharge
of my professional duty. If I could for a moment
imagine that any man could conscientiously suppose me
capable of such gross conduct as that of imputing to
the Attorney-General base motives—l having nothing
on earth to say to his motives—l can only say that such
a man has grossly misinterpreted me. Were I, indeed,
capable of acting such a part I could never again esteem
or respect myself, and the direst punishment that could
befal me would be the self-reproach which would follow
me in every scene of my life. I only spoke of the
Attorney-General in his official character as the law
adviser of the Crown ; and my remarks had only refer-
ence, I again repeat, to his conduct in the present case.
Mr. MOORE rose and said that the gentlemen at both
sides having given every explanation that could be 6Z,
pected from them, of whatever was disagreeable in this
distressing occurrence, he hoped that the matter might
now be fairly considered as set at rest. lie trusted that
it would be passed over in silence and consigned to obli-
vion for ever.
The CHIEF JUSTICE (after consulting with his bre•
thren) said that the Court felt exceedingly obliged to
Mr. Moore• for the part he had taken on this perplexing
andand
the
distressing Court mTst aseiarnon.estTlyhetrunisattel rthwaa was
iptow wouldat rest,not
be necessary hereafter to advert in any t
manner
whatso-
ever to what had taken place. He should hopeitwasno;
necessary to say any more on the matter than had been
already stated.
The ATTORNEY-GENERAL-4 of course acquiesce in
every thing that has fallen from the Court. I have with-
drawn the note, and, inasmuch as I understood Mr,
Fitzgibbon to repudiate the idea of imputing any un-
worthy or personal motives to me, I can only say I am
satisfied.

The CHIET Jun-toil—That this unpleasant matter
may at once be set at rest, the Court think that they
may call upon each gentleman to declare that he is
satisfied to abide by what has just fallen from Mr. Moore.
Mr. FITZGIBBON—I can only say that I did not mean
to attribute any unworthy motive to the Attorney-
General, and I have no other feeling towards him at the
present moment different from what I felt this morning.
Thus the matter dropped.
Mr. FITZGIBBON then resumed, and continued his ad-
dress until a quarter to five •'oloek, when the Court
rose, the Learned Gentleman being still in possession of
their Lordships' attention. When the Judges were
about to leave the bench,

Dr. Gray said, my Lord, I beg leave to know if I oan
offer a few words to your Lordships with respect to
what occurred today in Court.
The CHIEF JUSTICE—We cannot hear you now, Sir,
address the Court. Have you not Counsel, and have
you not been heard through your Counsel ?
Dr. Gray—lf your Lordships hear me for a few mo-
ments, I will not trespass long upon the attention of the
Court.

CHIEF JUSTICE—The Court will not hear any gentle-
men when they have Counsel.
Judge PREMIX—And during the speech of their
C ounseL _
__ _

Cunt JusncE—And during the speech of Counsel.
The Court then adjourned until ten o'clock to-morrow
morning.

SPIRIT of the PUBLIC JOURNALS.
FROM THE DAILY PAPERS OP YINTERDAY.
GLOBE.—The proceedings were resumed on
Monday morning. On the Judges taking their seats,
and the members of the jury answering to their
names, Mr. John O'Connell requested to make an ob-
servation on a remark of Mr. Sheil, in his address to
the jury, which, if not explained, might compromise
his reputation, by seeming to impugn his consistency.
That considerable " sensation" should be caused
among those who heard the declaration—made in such
a place, and under circumstances such as those in which
the declarant stood—can be easily imagined. As an
abstract question, the repeal of the legislative union
may be held, and even discussed, without exposing
the person who holds and asserts it to the penalties of
the law. The point in issue between the Crown
and the traversers is, whether the means by which
they have sought to effect their object have been such
as the law allows, or such as bring them within its
penalties. This is the question to which the attention
of the jury must be confined; because it is the ques-
tion on which they are sworn to return a ver-
dict of "guilty," or " not guilty," respecting each
of the traversers. Mr. John O'Connell might, there-
fore, safely make the declaration which he did with-
out perilling his individual case ; and, if he considered
that declaration due to his consistency, he did right to
repudiate the idea which his counsel suggested, as a
mode by which the Repeal question might he compro-
mised, but in which he (the defendant) could not concur.
The adjournment of the Court on Saturday at the
close of Mr. Sheil's speech, was an act of considerate
justice on the part of the Judges to Mr. Moore, who
would otherwise have had to address the jury for his
client (the Rev. Mr. Tierney) under manifest disad-
vantages. During the protracted trial of Warren
Hastings, a similar testimony was borne to the
powers of Sheridan, then in the meridian of his fame.
At the close of Mr. Sheridan's mightiest effort within
the walls of Parliament—the speech with which he
opened the fourth charge against the impeached
party—Mr. Pitt moved an adjournment ; observ-
ing, " The wand of the enchanter is upon us ;
it is in vain to attempt an application of the judgment
to the charge before us, while under the imme-
diate influence of the fascinating power to which
we have been subjected." Read in connexion with
Mr. Sheil's speech, that of Mr. Moore, as an orato-
rical effusion, will fail to algae the same feelings of
delight. As the close reasoning of a lawyer, whose
duty it was to examine each count of the indict-
ment, and to show how futile had been the efforts of
the Crown lawyers to sustain those counts by the
evidence they had adduced, Mr. Moore's speech is
deserving of no ordinary praise, and will, we
doubt not, be highly appreciated by the bar, and
be carefully scanned by the jury. It cannot
be too frequently brought before the mind of the
public, in order to show how utterly the evidence
brought forward has failed to sustain the indictment,
that the indictment charges " conspiracy," and this
alone, against the parties. Failing to establish " con-
spiracy," the indictment is at an end. There is no
count for attending .unlawful assemblies. The
Attorney-General has not ventured to take issue
on the question, whether the meetings of the Asso-
ciation were, in the legal sense of the term, unlaw-
ful assemblies. There is no count for sedition. But
extracts from speeches are set forth which are
alleged to be seditious, in order to sustain the charge
of conspiracy. Mr. Moore's clear and forcible exposure
of the form of the prosecution, by which constructive
evidence on such a charge is sought to be substituted
for direct testimony, deserves the careful considera-
tion of every man capable of understanding a legal
argument expressed in popular language ; as we hope
and believe it will have from the jury, on whose
verdict the case will be decided. Mr. Hatchell's
address to the jury in behalf of Mr. Ray, the
Secretary of the Repeal Association, was short,
considering the length of the speeches which had
preceded it. It occupied only two hours. The skill
with which Mr. Hatchell dissected the testimony of
certain of the Crown witnesses, and exposed the dis-
crepancy of their respective statements—the suspi-
cion which he cast over the whole case for the prose-
cution, by the refusal, on the part of the Crown, to
adduce evidence which was within their control,
and essential to their case, from a fear lest the ad-
missions of facts, or contradictions of the witnesses
they did call in, in certain statements they had made,
were fine specimens of forensic power, and opened
up a new difficulty to the Solicitor-General in his
reply. The copious reference made to State trials in
this country at different periods, and his application
of the doctrine held by English Judges on those
occasions to the case then under trial, showed how,
laboriously Mr. Hatchell had prepared himself for
his undertaking, and will, doubtless, convince even
the exclusive jury which the Attorney-General has
obtained, that they must be more determined to con-
vict the Repeal leaders than to return a verdict in
consistency with the Constitution, if they bring in a
verdict of guilty, on the indictment before the Court.
STANDARD.-1 he speeches of Mr. Moore and
Mr. Hatchell, at the Dublin State trials, do not call
for any particular observation. We de not say this
in any disrespectful sense, for both the addresses were
able and lawyer-like; but, unlike Mr. Sheil's, they
adhered so closely to the subject matter of the
charge, that to pronounce an opinion of the
degree of success of either would be to
trespass beyond those limits to which a considera-
tion of what is due to the administration -of—justice
confines us, until the verdict shall have been de-
livered. The not inopportune illness of Mr. Fitz-
gibbon on Monday, abridged that day's proceedings
to the extent of enabling Mr. O'Connell to take his
place at the meeting of the Repeal A association,
where he suggested a badge or uniform, to be worn
by Repealers. This is, perhaps, to be a practical proof
of the defence mainly relied upon by Mr. Moore and
Mr. Hatchell, within a few hours before, namely, the
absence of union and concert among the Re-
pealers. In regard to the trials the Whig journals
in England go to lengths far beyond what even
the retained advocates of the traversers have as yet
ventured. If we understand them rightly, there
can be no such thing as a political conspiracy, no
such crime as sedition—a line of defence which,
perhaps, they may safely take, because they are
not responsible to courts, or juries, or to any
authority save common sense ; but which it
would be desperate folly to offer upon an
actual trial. Every book on Crown law tells us that
there is such an offence as political conspiracy, and
reason demonstrates that it may be the highest public
offence short of high treason, and separated from that
highest of all crimes by a very narrow and uncertain
boundary. The practice of the late Government
abundantly proved their sense of the existence of
such a crime ; and we find the very first of Whig
law authorities, the late Lord Erskine, thus de-
scribing it, and showing the perfect compatibility
of the punishment of the offence with even his
most liberal notions of the sovereignty of the people;
we quote from his Lordship's celebrated speech upon
Hardy's trial, where ho recites the law, as
laid down by the Lord Chief Baron Macdonald.
" The question is not what the people have a
right to do—for the people are undoubtedly the
foundation and origin of all governments—but the
charge is for seditiously calling upon the people,
without cause or reason, to exercise a right which
would be sedition, supposing the right to be in them.
For though the people might have a right to do the
thing suggested, and though they are not excited to
the doing it by force and rebellion, yet as the sugges-
tion goes to unsettle the State, the propagation of such
doctrines is seditious. There is no other way un-
doubtedly of describing that charge." This quota-
tion meets the whole case of sedition and of sedi-
tious conspiracy, and it derives additional force
from the liberal opinions of Lord Erskine, and
from the occasion on which it was delivered.
We submit it to the serious attention of our Con-
temporaries, who deny the possible existence of
political conspiracy as an illegal offence, and affect
to treat the punishment of such conspiracy as
fin invasion of the primary right of freemen.
Lard. Erskine plainly thought that there is such
an offence its political conspiracy, and that it may be
ptiishe d, leaa leaving altogether unim-
pairedo
thepeople,"of which he
prosecuted
~
was the ardent votary. In other respects the de-
feuo set up by the Whig journals is foolish ;
for while they admit what, indeed, it 'Would
th e and
sovereignty
be absurd to detiy, the convergence of the whole
repeal agitation to one ,fie.:--namely, the repeal
of the union and to one central authority, the
organised Repeal Association, they 'affect kb era,-
mine the practical proofs of a concerted design 12 to
p I
unsettle the State," 1y u cotplUvol pin oyeent7 i