The Sun.
London, England, 1844-07-05 00:00:00

wire that a man charged under it shall be adequately,
infonmedehy its terms and shape of the crime iMputed
'lto him, so that he may know how to prepare his defence;
lend one of the most important objects of an indictment
of this kind is that the defendant may have the
charges presented to him in such a form
that this House, as an appellate court, should have the
enpportetnity of seeing and 'judging whether, on the
several-points, a crime has been committed. The charge
involving the crime, may embrace an innocent act, which
could only be made an act of guilt by. leaving the person
charged with-the means of seeing and knowing whether
be was convicted on a charge involving legal guilt, and
to deprive the criminal of appeal in such a case would
not be consistent with the genernl principles of law, and
which should receive great consideration before it re-
ceived the sanction of the House. Looking to the doc-
trine of conspiracy, it was impossible. not to feel the ex-
treme mischief which it had done, and is calculated to
do; the crime of conspiracy does of consist in an act
done; it is complete when -thos intention is formed.
Much is left to uncertainty; it is not like any
other crime. You were left to infer inten,
Cons from acts of a very doubtful nature. Most
of the political cases that -ttniVe occurred in which in-
justice is supposed to have been done, have occurred in
canes of political conspiracy. To say that the party is
protected by the jury because the matter is for the jury,
is to give an answer supposed to afford safety to the sub-
ject. But the whole history -of the country shows. this
to be utterly fallacious. The objects of purzons in the worst
periods of our history have always besn accomplished
through juries. The difference between the safety which
prevailedaat one time, and the insecurity which existed
at another, had been when the peinv:en of appeal to pro,
cure other judgments on the 'questions of law on the
nature and character of the crime, upon the nature and
charaster of the evidence, was when facilities were given
for appeal in those several matters. How stands the
case of conspiracy here ? Your Lordships are aware
of the facts to which this indictment refers, but the
question here is as to the form of the indictment, and I
ask -of your Lordships if such an indictment can-be sus-
tained, what security is there for the subject if those
Patties have been tried and convicted according to law ?
.Fhe charges are of such a nature as to convey
nothing sufficient to enable your Lordships to say
that they constitute an illegal act or not. In the
course of the tile' it was held that those acts
could not be tendered in a case of misdemeanour,
and when your Lordships look to the indictment pur-
porting to, prove those charges, you will find that they
are made up from circumstances occurring from January
to October, a period of ten months, by the selection of
speeches of different persons, not made in the presence
of the others charged, of reports of newspapers, done in
the-ordinary course of business, giving the news of the
day. Oee of-the objects was to procure a dissolution of
the-Act of Union between Great Britain and Ireland—a
great political object, no doubt.; but when in the history
of this country was it, that certain parties did not hold
opinions on some great political subject ? That con-
formity of action should result from coincidence of
opinion, might be naturally expected—not upon any par-
ticular transaction in which the parties had any indivi-
dual interest, not conspiring to obtain goods by fraud, to
affect the character or interests of individualine tint in a
conspiracy to obtain Parliamentary reform, to obtain a
'epee! of the Corn-laws, to prctb"ht Catholic Emancipa•
tion, that was to say, there must be a coincidence of
opinion, lending to uniformity of action upon any great
event affecting the interests of the country. There was
a charge of exciting the subjects of her Majesty to dis-
affection against the Government. In what age of the
country was it that persons had not endea-
voured to excite disaffection against the Government?
Did the Government mean the Constitution, or the form
of the Government, or the persons administering it ?
Why, may not the present Government be charged with
exciting; disaff'ction against the late Government ?
Each of the parties of the present day seemed desirous
of producing disaffection and hatred towards what was
called the Government ? If the parties were guilty of
malting seditious speeches, let them be tried for it. I
would call attention to what was done at the Revolution
in France. There was then a conspiracy to excite dis-
affection against the Government. One drunken woman
uttered a few idle words. tending, it was supposed, to
bproduce hatred towards the Government, and she was
anged for it. I could find many parallels to this in-
dictment, where the parties charged have been hanged. I
would ask cf your Lordships to consider whether a
charge of this kind, seeking to establish guilt by those
means,- can be the subject- of a prosecution ?
But here a course of conduct is permitted to be pet sisted
in for two months—and there is no limit to it—the time
rosy be extended indefinitely until the victim is caught.
There are these transactions allowed to go on, until by
an accumulation of acts, each innocent in itself, it is
sought to take the chance of the weakness, or the in-
firmity,. or the prejudices of the jury, to lead them to a
conclusion, nit that any particular act has been dune,
but to some conclusion which is utterly false and un-
founded—that the defendants met together and con-
spired. Do your Lordships believe that the jury were
told that Government endeavettred to ascertain when and
where those parties entered into a conspiracy ? that
they were not to convict them unless they could come to
the conclusion that there really hail been some common
consent and agreement betweenethe parties ? No such
thing. In an ordinary case, such as a- -conspir-
acy to defraud or obtain • money under false
pretences, if' you see parties acting together for
that common illegal object, it might be evidence to go to
the jui.ennandit might be for them toconsider whether the
so acting together could be considered as proof of some
corn ton agreement. But when a case is on in which
great publio" interests are concerned the principle does
not apply—then the acting in concert cannot be taken as
proof of conspiracy, and it mu,t be shown that the
several parties actually met and conspired. My Lords,
r submit that all the counts of the indictment from the
fifth to the end arc bad—bad for generality. They are
framed in terms unknown to the law, and arc wholly
destitute of legal precision. The fifth count charges that
the said Daniel O'Connell, John O'Connell, Thomas
Steele, Thomas Mathew Ray,' Charles Gavan Duffy,
Thomas Tierney, Peter James-Tyrrell, John Gray, and
Richard Barrett, unlawfully, maliciously, and seditiously
contriving, intending, and devising to • cause and create
discontent and disaffection amongst the liege subjects of
oar said Lady the Queen, and to excite the said .
.subjects to hatred and contempt of the Government
and Constitution of this realm as by law established
heretofore ; to Wit on the'dfirle.Znth day of February, in
'tale year of our Lord one thousand eight hundred and
forty-three, with force and erms, to wit, at the parish of
St. Mark, in the county and the city of Dublin aforesaid,
maliciously and seditiously did combine,
conspire, confederate, and agree with each other, and
w7th divers other persons whose names-are to the jurors
afairesaid unknown, to raise and create discontent and
disaffection-amongst the liege subjects of our said Lady
the Queen, and to excite the said subjects to hatred and
contempt of the Government and Constitution of this
realm, as by law established, and to unlawful and sedi-
tious opposition to the said Government and Constitu-
t on ; and also to stir up jeadoustes; hatred, and
between) different classes of her Majesty's subjects,- and
efpecislly to promote amongst her Majesty's subjects in
Ireland feelings of and -hostility towards and
neainst her Majesty's subjects in the other parts of the
United -Kingdom ; and especially in that part of the
said Unit( d Kingdom called England, in contempt of our
said Lady the Queen and the laws of this
realm. to the evil exa-nple of all others in
'the like case offending, and against the' peace of
our said Lady the Queen, her crown arid dignity.
Now, what is meant by creating discontent and disatrec--
Lion ? What is the legal meaning of these words ? What

is the crime against which a party thus charged is called
to defend himself ? Why, at the time the Bill was pro.
prof granting Catholic Emancipation, there were many
persons who endeavoured to persuade the people that if
the King consented to the measure he would be violating
his coronation oath—that it would introduce Popery,
• and upset the Church. They endeavoured to excite a.
spirit of hostility to the government which supported
that measure. Now, who were those men-Who thus en-
. deavoured to excite discontent and disaffection ? The
words conveyed no legal charge. To what are we in-
debted for every legal change whieti is brought about
but to the attempt made to excite discontent and dis-
affection with the existing state of things ? It is impos-
sible to produce any change except by such means. • Now
ought such words to be intreduced into a criminal in-
• elicement, and left to the jury without any explanation
tf.their legal meaning ? Arc the words to be looked out
in "Johnson's Dietienary," and is the meaning, there
found to be attached to them ? The charge of disaffec-
tion does not necessar4 imply guilt. 'Some of the
.greeteA_ patriots that ever lived might be liable to a
sirhilar charge. They are- also charged with unlawful
and seditious opposition to the Government._ Now,
what is meant by illegal opicaiOn ? Who is to decide
what is meant by seditious Apposition ? Is it to be left
to- the jury ? They wil.detertnine, according to their
]party politics ; if they niire—efethe same party with
the Unverument, they will probably consider all opposition
eeditious ; - if- they are oppose-.l to it, it will be hard
to convince them that any opposition can be seditious.
:But how is a man to know what he is called upon to de-
-fend himself against when he is accused of seditious
.opposition ? It may be a refusal to pay taxes—it may
be ecrue other act which -fa to show that he has been
-guilty of seditious opposition. Now what act except the
coiurnission of the crime of se.lition—a crime to be sepa-
.rately proved—is there to give .meaning to the words
.seditious opposition. If -the Word seditious is to be re-
jected as surplusage, as a word of no meanine, then the
count stands for offering opposition to the Government,
whieli is no crime at all. • Now, your Lordships should
-recollect that you aro now dealing with a criminal charge,
and that, therefore, the most rigid construction is called
fun I submit that the fifth count is of too general a
nature7—that it embodies no legal charge, and that from
the wording of it the party charged cannot tell
what it is that he is called upon to answer. •
It is of the utmost importance, in order to secure the
due administration of justice, that there should be upon
every criminal charge suffiaeolete enable a court of ap-
peal to see more clearly than they could in the present
caso what was attempted to be charged. In the present
case no bill of exception could be tendered to the sum-
ming up of the Learned Judge, and the only course, ex-
cept- coming to that 116useewould be to apply for a new
trial. When they could not bring the charge of the
judge before a higher tribunal,-the indictment ought most
clearly to describe the offence of which the party was
charged. The importance of individuals having a fair
means of defence, and the necessity of the indictment
conveying some definite charge which the party might
grapple with, had been clearly stated by Lord Ellenho-
rough in the case of the King v. Perry. In that case the
.Than suffered his whole imprisonment before his writ of
error was argued, although upon the arguing of that
writ of error, he was found to be an innocent man. (The
Learned Counsel then proceeded to refer to -the state-
ments of Lord Ellenborougkin the case of the King v.
Perry, and then proceeded.) In the count to which
A am- now referring, there are no overt acts
• •