The Sun.
London, England, 1844-05-29 00:00:00

Sir C. O'Loaiit.E.-1 stated that he had received instructions

to make the motion on behalf of Mr. O'Connell only.
The Cluny JusTicE—The grounds of objection, as I un-
derstand theni, are 'common to .all the traversers, and the
Court have resolved not to hear more than two counsel.
Mr. O'ITAGAN said that in all probability ho 'might wish
to address the Court on behalf of Mr. Duffy.
Mr. CLOSE observed, that if the counsel who argued the
question omitted anything that he considered impied, he
should certainly claini the right of being heard. -
The Crum, JusTrcE—We cannot stop the entire business
of the county. This case has already occupied. the attenticat
of the Court too long. More than two counsel on behalf of
the traversers cannot, therefore, be re-heard.
Sir C. OTOGIILEN, Counsel fur Mr. -O'Connell, having
stated that if rightly informed brkia sertiot;Counsel, he con-
sidered each of the traversers were entitled to lie heard by
counsel, proceeded with the 'motion,. dri this case it was in-
tended to rely- upon two objections :in arrest of jUdgment—
the first arising upon the caption, and the second arising
upon the indictment, or perhaps more strictly speaking,
upon the proceedings of the jury. In the first place, he con-
tended that the caption was bad in form, and that judgment
should be arrested upon that ground ; and, in the second
place, that the traversers had hot been found guilty of any
indictable offence, for that the parts of the indictment upon
which they have been found guilty are bad in point of law.
With respect to the point upon the caption, he did not, in-
tend to dwell upon it at any length. The ground upon which '
he said the caption was bad was of a technical nature. It
was stated in the caption that the indictment was found upon
the oath and affirmation of twelve good and lawful men, then
and there sworn, affirmed, and charged, and that it was
not stated who were sworn and who were affirmed. In the
case of the King v. Dan, Ist Moody's Crown Cases, a similar
case arose, and the Court held the indietreent bad upon that
ground. The statute allowing Quakers to affirm in place of
taking oaths is the. 3d andAtla William IV., cap. 49. The
recant statute, 6th and 7th Victoria, cap. 85, sec. 3, only ap-
plies to cases where written doeunaents are to be. set out, or
where facts are to be stated. At all events it did not apply to
this case, for the Crown had adopted the old form, and having
adopted it; they were subjected to all the incidents attending
it. He would now come to the other objections. The indict-
ment contained eleven counts. The first count' contained five
charges; the second count was the same as the first count,
omitting the overt acts; the third count was the same as the
second, omitting the words " unlawfully, maliciously, and
seditiously" before the words to meet and assemble ; the
fourth was the same as the third, omitting the third charge ;
the fifth was the same as the third, omitting the third,
fourth, and fifth charges ; the sixth, with the exception of
stating the intention of the traversers, was to obtain a repeal
of the Union; the eighth contained the fifth charge of the
third count; the ninth was the same as the eighth, omitting
however the intent, and inserting a new charge of usurping
the prerogative of the Crown. The tenth was the same as the
ninth, omitting the charge of the usurpation ,• and the
eleventh was an entirely different count from all the rest.
His first objection was that the five first counts were bad
from duplicity. In support of this view he read from Ist
Chitty's Criminal Law, p. 227, where it was laid down that
in civil cases, and a fortiori in criminal cases, the pleadings
ought not to be double, as, if the contrary were the case, the
greatest possible embarrassment might arise. Crawburn's
case, reported in the State Trials, vol. 13, p. 234, and the
King v. Carthew, also confirmed this view. In civil cases it
was the general rule that pleadings must not be double, and
the same rule applied to indictments ; so that though several
offences might be joined in the same indictment (provided
they were of the same nature), yet several offences could not
be joined iu the same count. "The rules and principles of
pleading with respect to the structure of a declaration are
applicable to an indictment."—lst Chitty Criminal Law, 167.
" An indictment must not be double, by which it is to be
understood that the defendant cannot be charged with having
committed two or more distinct offences in any one count of
the indictment; for every count should be single, entire, and
confined to one single point of issue, and if a variety of issues
were to be understood, it would embarrass the defendant, the
jury, and* the Court."-2 Gabbett, 234. " The defendant
must not be charged with having committed two or more
offences in any one count of the indictment ; for instance,
one count cannot charge a defendant with having committed
a murder, a robbery, or the like."—Archbold's Pl. p. 51 (Bth
edition.) "It is essential to the formal validity of an in-
strument, that it contains a direct, positive, single, and defi-
nite charge.'%---lst Starkie's Criminal Pleadings, 242. And
the reason of this was obvious, as the. prisoner would be
greatly embarrassed in his defence, if it was permitted to
multiply offences in a single count. If they be separate
counts, the Court could put the Crown to its election, if any
embarrassment was likely to be caused to a traverser by the
number of counts; but if the charges were in the same
count, the Court had 'no such power; and if two offences
might be charged in the same count, why might not thirty,
or fifty? Where was the limit to be.drawn ? Where it was
objected that the words, "the jurors of our Lord the King
further present," should be prefixed to every overt act, and in
the case of" the King v. Trobridge," Chief Justice Holt said,
" As to the words Juratores ulterius prnsentant, that is never
proper when the treason is the same. I find, indeed, there
had been two distinct treasons, the one for compassing the
death of the King, and the other for levying war against
him. In that case they must bring in each by ulterius prm-
sentant, because they are separate offences though com-
prised in one bill, and they are in law two indictments. And
so it was in the case you mention of the cottages. It-is one
offence to erect a cottage, and another offence to continue
cottage. so erected ; and they are to have several punish-
ments ; and beCaithe-they joined them both together in • one
count, that count was held to be nought ;..for by law a count
for erecting a cottage ought to conclude contra formam sta-
tuti, and the jury ought to begin again, et ulterius priesen-
tent quod, the cottage was continued against the form of the
statute, because they are several offences."—Crawbarn's
case, 13 State Trial, 234. So, upon an information against a
ferryman fur taking more than the usual rate from divers
persons for the passage of themselves and their cattle, Chief
Justice Holt said, " In every information a single offence
ought to be laid, because every extortion from every parti-
cular person is a separate and distinct offence, and, therefore,
they ought not to be accumulated under a general charge,
because each offence requires a separate and distinct punish-
ment, according to the quantity of the offence ; but it is not
possible for the Court to proportion the fine and other
punishment to. it, unless it is singly and certainly laid."—
King v. Roberts, Carthew 22G. If a count be bad for du-
plicity the question then arises, does the final count charge
the defendant with one conspiracy or with several. The
final count charges the defendants with a conspiracy to do
five distinct acts, but does not refer them to any common
design. The Crown will say that the defendants, at the time
they conspired, might have contemplated all the five acts and
objects stated in the count. Even if they had they would
still be in point of law five distinct conspiracies, and as such
should be charged in separate counts. 'For a conspiracy,
though it may have several immediate objects, can only have
one ultimate object. When more,than one ultimate object is
entertained by conspirators there ceases to be a single con-
spiracy : there are, th point of fact, several conspiracies.
Thus at the same time parties may, conspire to obtain by
false pretences the goods of A, with intent to cheat A, to
publish libels of B, with intent to injure B, and to threaten
to accuse C of a crime, with intent to extort money from C ;
but then they were several conspiracies, as the acts to be
done were various, and the objects to be accomplished widely
different; on the other hand, if the parties conspired to do
various acts with one common design, there was but one con-
spiracy, as though the acts were several, the design was com-
mon. In the present case the defendants Were charged with
conspiracy to do a variety of acts, but these-acts were not re-
ferred to any particular object, and not only was there an
absence, but there was also substantially a negation of any
commondesig,n, as the intended result of tke traversers' con-
spiring, for in an indictment whatever is not affirmed must
be taken as not to exist. Moreover, the verdict showed that
there were at least three conspiracies charged in this count.
One ivhich included all the traversers, one which included all
but Mr. Tierney, and one which included Mr. O'Connell, Mr.
Duffy, and Mr. Barrett alone ; for if there was but one con-
spiracy, all should be acquitted but O'Connell, Duffy, and
Barrett. It was quite true that a party might be convicted
of only a part of 'the charge laid in the indictment, though
the indictment consisted of a single count, and might be ac-
quitted of all the rest. But that was only when a charge
was in its nature divisible, and the authorities show a con-
spiracy is not divisible, and that a party to be convicted of
a conspiracy should be proved cognizant of all the ob-
jects of the conspiracy. To support an indictment for a
conspiracy, you must prove that all the defendants were
cognisant of the object of the conspiracy * * *. A con-
trary- doctrine would be extremely dangerous."—Lord El-
lenborough, King v. Pollman, 2d Campbell, 234. As, then,
some of the traversers had been found guilty
.of part of the
first count only, there should be several conspiracies charged
in it. The nett case referred to in support of his proposition
Was the Queen v. O'Connor, reported by a short-hand writer,
and revised by Sergeant Murphy as being strictly correct.
He then proceeded to contend that none of the counts in the
indictment disclosed any legal or indictable offence. -He
cited the cases of the Ring v. Turner, 12th East, 228, and the
King v. Richardson, Ist Moody, wherein it was held and
ruled, that the commission of any unlawful act did not show
an agreement to do an 'indictable offence. Sir Colman then
went on to state that there should be a malum prohibitum
to justifrait indictment. A conspiracy should be an agree-
ment to commit an indictable offence, and the indictment
must contain, or be a narrative of, the offence. An indict-
ment for a conspiracy must show, first, who are the parties
accused, andmust aver that they have done something which
is an indictable offence.—Hawkins, 226, 227. If the object
stated be not indictable, then means which are indictable
must be stated.-7th Adolphus. The gist of conspiracy was
the crime, which should be either known by a certain tech-
nical name, and so described; but if not known to the law,
'should be set forth in the indictment by a great narrative
of all the facts forming and constituting the crime. After
citing a variety of authorities, and arguing. the. point with
great ability, the Learned Counsel contended that the
repeal meetings were sot illegal means accomplishing
the traversers' intentions, even if the "intent" had been pro-
perly charged in the indictment, which he denied. Be-
sides,
the charges were so vague and general, that judg-
ment should not be passed. The pleader who had framed
the indictment should not have contented himself by merely
stating that the acts charged were unlawful, but he should
have set out all facts, in order to enable the jury and the
Court to form their opinion. lie also objected that the
manner and means by which '" discontent, excitement, dis-
affection, contempt,- and opposition" was accomplished,
should have been stated; and also that it should leave been
alleged in what such opposition consisted. With respect to
the count relating to the Arbitration Courts, he contended
that to the charge which it contained of bringing the law and
the administration of justice into disrepute was not an il-
legal, and therefore not an indictable, offence. The courts of
justice might require reformation, and surely no one would
hold or assert that any number of persons deserved punish-
ment for endeavouring by agitation or otherwise to effect
that reformation. The Learned Counsel then went through
the remaining counts of the indictment, and in reference to
the last, which charged the traversers with intimidating the
Legislature, lie contended that there was no precedent on re-
cord for such a proceeding. Threatening the llouse of Com-
mons was not an indictable offence at common law ; it was
an offence punishable by the House, which could bring the
offender to the bar, and punish him summarily for breach of
privilege. In conclusion, the Learned Counsel arraigned the
indictment as unsound and unconstitutional, and as calculated
to carry the law of conspiracy even farther than it was ever
attempted by Lord Elleuborough, the highest prerogative
judge that ever sat on the English bench. .
Mr. FITZGIB BON wished to know if their Lordships in
tended to limit the number of counsel to two?
The CIIIEF JUSTICE (-greatly excited)—Yes.
Mr. FrrzGrenoN—Well, then, myLord, I contend that
every one of the eight traversers has a right to'be heard by

counsel, and insist on showing the Court why the judgment;
should be arrested. • •

, .
The ATTORNEY-GENERAL said, in the course of last week
lie had asked Sir William Follett, the Attorney-General for
England, What would be the course there,' and the answer he
received was, that only two counsel would be heard. - -
Mr. FITZGIBBON said, he had no doubt that Sir William
said so, but that did not make it law, or abrogate the right.toP
which the traversers were entitled.
The CHIEF JUSTICE—For my own part I sun determtned
to adhere to the rule.

Judge PEniuk—The strict rule of the-Court is against yen;
Mr. Justice CuAurrox expressed himself to the same effect.
And the Court rose.

Mr. M‘Donough will be heard on the earn° side in the,
morning.

REPEAL ASSOCIATION.
The Association held the usual weekly meeting to-daY at
he Conciliation Hall.
It being generally understood that this would in all proba-
bility be the last occasion on which Mr. O'Connell would be
present previous to the passing of the sentence, the hall was
densely crowded. At one o'clock the Hon. Gentleman enr
tred, and was received with enthusiastic cheering. When
the applause had subsided, he moved that Sir Samuel, Bracb.;,
street, Bart., should take the chair.
The SECRETARY then read the minutes of the last day'i
proceedings. After some business had been gone through,
Mr. O'CONNELL again rose, and said he had to Move that
an address to the people of Ireland, on the present positicn of
.the public cause, be prepared for circulation against the pass-
ing of the sentence. That sentence might, or might not be
carried into effect immediately. They intended appealing to the
House of Lords, and it was onlyjust that the execution should
be deferred until the result of that-appeal was known. The
past, however, gave them little to hope from the leniency
of the Court of Queen's Bench.—(llear, hear.) In any
event it was right that the people should be perfectly pre-
pared, and not be suffered to allow their feelings to over-
come their resolution to be peaceable. They would play the
game of the enemy by violating the law—they should be
made to understand that, and, moreover, that nothing would
be more desirable to certain parties that an opportunity of
turning out the military And police on the unarmed people-
He was sure that tranquillity would be maintained. The
Catholic clergy had taken up the cause—they were the best
peace officers they could have.—(Cheers.) The magnificent
contributions which he had that day handed in were evidence
that they were heart and soul in the cause. The Hon. Gen-
tleman continued to address the meeting at considerable
length. He showed that Ireland was in a worse condition
now than at the time of the union—that the testimony of all
travellers was, that there was more destitution in Ireland (a
country so blessed by nature), than in any other on the face
of" the earth, and attributed all the evils of Ireland to the
want of a domestic legislature. He again implored of the
people to maintain peace and tranquillity, and concluded by
saying that shortening his life was not the way to lengthen
the connection between the two countries. The Hou. Gen-
tleman resumed his seat amidst the greatest applause. - -
Mr. S. O'Basc seconded the adoption of the address, and
then proceeded to observe, that the imprisonment of Ma.
O'Connell would sever the link which binds Ireland to Eng-
land, and -he :could not bring himself to believe that the
Government would have the madness to incarcerate him till
he should be summoned to accompany him (Mr. O'Connell')
to gaol. Much as they would deplore the absence of Mr.
O'Connell and his gifted son, yet it would be found that there
were men amongst the members of the Association capable of
guiding the destinies of the country.—(Cheers.)
Amount of the rent for the week, 5501.