The Sun.
London, England, 1844-09-02 00:00:00

Olteningmills

LONDON, MONDAY, SEPTEMBER 2, 1844.

A new society, entitled the " Athenic Institution,"
has, it appears, been lately started at Birmingham.
As the origin of this institution is not a little interest-
ing, we subjoin a brief account of it. It seems that
about two or three years ago, four young men of the
working glasses being desirous of cultivating their
minds, decided on the establishment of a society by
which they might be enabled, in their leisure hours,
to engage in intellectual pursuits and rational sports
and amusements. They accordingly—though not
without difficulty—got together some twenty or thirty
young men of their own grade in society, submitted
to them their project, obtained their promise of co-ope-
ration, and then formed themselves into a sort of club
to which they gave the name of the " Athenic Institu-
tion." In this institution they divided themselves into
reading, writing, arithmetical, drawing,and other useful
classes, to which, says the Birmingham journal, they
added arrangements for the enjoyment of the good old
manly, out-door and in-door English sports and
recreations. For some time, as might have been
expected, their society continued on a small scale,
but gradually their numbers increased, the moral
influence of their example began to make itself felt in
the town, and they were at length enabled to take
large rooms, which they fitted up in a most tasteful
manner, and then issued a public address in explana-
tion of the objects of their institution. The next step
of this juvenile association was to choose a patron,
and after some discussion on the subject, they
selected Lord JOHN MANNERS, who replied in
the most flattering terms to their communication,
and accepted an invitation to dine with them on
Monday last, at their new rooms in Birming-
ham. At this dinner his Lordship, who was in the
chair, after expressing his cordial approval of the
objects of the " Athenic Institution," went on to ob-
serve that it was, in his opinion, necessary for the hard-
working men of Birmingham to enter their protest
against the modern dogma which would seem to
assume that no recreation was necessary for the work-
ing people of England, and which appeared to have
idopted for its motto what would, he had imagined,
have been held in universal reprobation—namely, AU
work and no play. "He called it a modern dogma,"
added the Noble Chairman, " because history proved
to demonstration, that every nation of antiquity
deemed it a matter of the highest importance to pro-
vide for the relaxation and amusement of the working
classes." Not only the legislators and rulers of
antiquity had this considerate regard for the health-
ful recreations of the humbler and more industrious
orders, but those of our own country were equally
provident and politic in their views on this important
subject. Both before, and many years subsequent to,
'he age of ELIZABETH, the amusements of the work-
ing classes were protected by Government with a soli-
citude truly paternal. Each season of the year was
allowed its characteristic holiday, when the highest
mingled with the lowest in unaffected good fellow-
ship ; amusements, suited to the period, were provided
both for the summer and the winter evenings ; great
historical events were commemorated with general re-
joicings; and nothing was neglected that could give
a healthy, cheerful, bracing tone to the feelings of the
community at large. The consequence was, that de-
spite the domestic troubles with which she was
so frequently beset, England was really and
truly " merrie England"—a land which could boast
as hardy, as industrious, and as happy a labouring
population as any recorded in history. Is that the
case now ? Can it now be said with any truth of
this country, that her operatives are cheerful and
orderly her peasantry obedient, contented, and
grateful ? Let the midnight vagaries of SWING, and
the rapid spread of Chartism, which is nothing more
than the voice of the poor man's despair, make an-
swer to this question I The higher and the middle
classes have much—very much to answer for, in hav-
ing so long and so perversely neglected the interests of
the lower orders. If the peasant is alienated from the
landholder, and the operative from the manufacturer, it is
the latter, rather than the former, that are to blame for
such estrangement. When men are treated as slaves they
will exhibit the vices of slaves—when they are treated
as mere machines, they will exhibit the insensibility
of machines. To draw forth the kindlier and nobler
feelings of their nature, you must treat them with
respect—with forbearance—with humanity. This is
not only an act of duty, but an act also of the most
consummate policy, since there can be no sure
guarantee for the permanent tranquillity of a
country where the (vast mass of the working
classes are kept in a state of subordination, no
From respect nor gratitude, but solely from an
apprehension of punishment. Fortunately, the higher
and middle classes of society are at length awakening
to a conviction of this truth; and we do hope and be-
lieve that the period is not far distant when the poor,
oppressed workman will no longer be able to say with
any truth, that he is treated with neglect and insult by
those who should be his best friends and benefactors.

For an admirable specimen of " Justices' justice,"
ire refer our readers to our Gravesend police report.
It appears that a Mr. WILLIAM SMITH, a gentleman,
but who, in reality, is the scion of a noble family,
and holds a lieutenantcy in one of the regiments sta-
tioned at Chatham, had, between twelve and one
o'clock on Thursday evening, kicked his heel against
one of the Star steam-packet boards, placed against
the rails in the crescent, and broke it in pieces. A
policeman inquired of him for what reason he had so
wilfully damaged the board. No satisfactory reply was
given, and the policeman then felt bound to take him into
custody, there having been numerous complaints re-
specting the breakage ofseveral steam companies' boards.
The prisoner not being in custody to meet the charge
on the following morning, Mr. OAKBS informed his
brother magistrates that he had been waited upon
early that morning by the friends of the unfortunate
young gentleman, in the hope that he might be li-
berated, as he had to mount guard at an early hour
on that day, and if he was not in attendance the con-
sequence might prove most serious to him. lle,
therefore, consulted with the police as to the offence
the prisoner had committed, and finding that it was
one of those foolish, boyish freaks, he allowed him to
be set at large, so that he might go on duty. They,
therefore, would adjudicate upon the case in the ab-
sence of the accused.

The other magistrate naturally asked if there had
been no security given for the man's appearance on
his liberation from the police, and the report thus goes
on :—" Mr. OAKES (very low)—No, no ; tha police
are satisfied. Now let us hear the evidence." Hav-
ing heard the evidence Mr. OARns delivers judg-
ment in these words : "'Well, we fine the ac-
cused ss. for the offence, and if the officer will go
down to the Falcon Tavern and present my compli-
ments to Mr. FRENCH, stating the amount of the fine,
it will be paid." This is the rich man's law. For the
poor man's law turn we to a case adjudicated
on the same morning, by the same magistrates,
in the same Court :—" A poor donkey-driver was
charged with driving his ass without a,badge empower •
ing him to do so. Mr. OAKEs observed that if the
laws were made they must be attended to, and the
least they could fine the prisoner was the amount of
expenses he had incurred, viz., 7s. 6d., which the poor
fellow reluctantly paid out of his hard-got earnings,
and was then allowed to depart."
Mother COLE, with her Prayer-book, was nothing
to Mr. OAKES. Admire his administration of the law
of jackasses! With what dignified severity doth he
rebuke the delinquent donkey-driver--" If the laws
were made they must be attended to." It is to be
hoped that he made the same observation to " the
unfortunate young
gentleman" before he libe-
rated him at the request of his friends ;

and it is to be hoped that " the unfortunate young
gentleman" was duly penitent, and did not laugh in
his sleeve at Mr. OAKES as he mounted guard that
morning, and that none of the military friends of
" the unfortunate young gentlemen" will be seduced
into running even to Gravesend to have a ss.
" lark," trusting to the kind heart of OAKES to
liberate them in time to mount guard the
next morning, lest the consequences of not being
in attendance might prove most serious to them.
The consequences of non-attendance on his customers
that morning were no doubt most serious to the
donkey-driver ; but then he was not " an unfortunate
young gentleman." We are told by persons in
authority that the poor are becoming every day more
and more demoralised—that they are losing all reve-
rence for the laws, and pay no respect to those who have
heretofore been considered their superiors. Are the
distinctions thus made between donkey-drivers and
" unfortunate young gentlemen" likely to increase the
reverence of the poor man for the laws, or his respect for
those entrusted with their administration. English-
men like justice in all places, and if those in authority
wish to enjoy that respect from their fellow-subjects,
which has heretofore been paid to them, they must
administer the law, fairly and equally to all—
without favour, without affection, and without making
any distinction—" unfortunate young gentlemen" and
other classes of the community.

The news from Spain comes down to the 25th ult.
Accounts from Madrid, to the 24th, represent
that city as perfectly tranquil. Their Majesties, the
two QUEENS, had been waited on by the corps diplo-
matique, to congratulate them on their return to the
Spanish capital.
News of the bombardment of Mogadore had
reached Madrid, at the date of these advices, and the
Prince DR JOINVILLE was said to have returned be-
fore Tangiers. According to the renewed declara-
tion of the Globe, peace had been concluded between
Spain and Morocco.
The other news from Madrid may be thus summed
up :—The Three per Cents. were done at 27 7-16,
it sixty days; the Five per Cents. at 20; and
the Floating Debt at 61.2-, at sixty days.
CORDOVA had been designated to act as Captain-
General of the province, in the absence of M. MA-
ZARRRDE, and QUINTIN VELASCO, a brigadier of en-
gineers, had been appointed military commander.
The grand levee, held at the palace on the 25th
alt., in honour of the feast of the Infant Donna
LulsA, sister of Queen ISABELLA, was of the most
brilliant description ; and the whole assemblage
were struck, we are told, with the healthful ap-
pearance of both QUEENS. M. MAZARREDE was ex-
pected to forward his resignation of the the post of
Captain-General of Madrid, from the Pyrenees,
whither he had proceeded to drink the waters. It is
imputed to.:him that he was the main occasion of the
discontents lately manifested by the troops in garri-
son, at Madrid, owing to his general mismanagement
of affairs; and particularly his suspicious nature,
which is asserted to have kept them constantly on
the qui vivo, without any adepuate motive or justifi•
cation.

We note, with satisfaction, a somewhat modified—
if it be not yet a friendly—tone, in the observation s
of the French journals of Saturday last, on the pro-
gress of events in Morocco, and their influence upon
the relations between France and England. The
Debuts is almost facetious on some of the inconsis-
tencies which it assumes to have detected in the
lucubrations of some of our morning Contemporaries,
here, in their mode of treating these questions. The
Globe eulogises the juster appreciation which has
been formed of them by the men of sounder reason in
both kingdoms. The National somewhat sarcastically
qualifies its congratulations to the English press on
its return to views of " moderation and good sense,"
by the remark that " this return would have been
more meritorious, had it taken place a few days
sooner, and before the battles' of Mogadore and Isly."
The following extracts are sufficiently characteristic.
The Debuts, after observing on the extreme atten-
tion with which the operations of the French squadron
on the coast of Africa are watched, here, adds—
" There is nothing in that which can surprise us, or
at which we ought to take offence. The war which we
wage on the Emperor of Morocco is a far more im-
portant matter to the English than that which they
waged with the Emperor of China could be to us. There
is not, whatever may be said, any parallel to be drawn
between the island of Mogadore and that of Hong-Kong.
If England had thought it right to take possession of
the whole Celestial Empire, we should not have con-
ceived any uneasiness for Marseilles or Toulon; but if
France should occupy in a permanent manner Tangiers or
Morocco, England would assuredly have some reason to be
uneasy. We therefore comprehend perfectly well the
sentiment of disquietude which is manifested by certain
English journals, but we regret for them that they do not
express it more reasonably, and that they do not better
know how to dissemble their jealousy or ill humour. It
must, however, be allowed that they do not all employ
the same language. The more sensible ones, such as
speak to men's reason, and not to their passions, as the
Morning Herald and the Standard, make no difficulty in
avowing that France is in her right—that patience, mode-
ration, and justice are entirely on her side. But there
are others, which not being able to contest the evident
right of France, have recourse to hypotheses,
and take the trouble of reasoning, or rather
not reasoning, on eventualities which to all
appearance will never take place. The Times,
for instance, is disagreeably affected by the occupation
of the island of Mogadore, and that prima facie appears
to it suspicious. However, after reflecting maturely, it
at last discovers that there is nothing to object to. But
if France were to take possession of other points of the
territory, if it should transform its provisional occupa-
tion into a permanent one, if it should turn Morocco into
a second Algeria, oh ! then that would be a grave ease,
and England ought to demand explanations and repara-
tions. Why does not the Times say that if a French
squadron should go and bombard the Tower of Loudon
or St. Katherine's docks, the English Government would
demand explanations ? Since it is in the vein of hypo-
thesis—why stop short when going on so well ? The
French Government has declared ten times over that it
has not the slightest intention to aggrandise its territory,
and that, if it were forced to take it, it would not keep it."
The Globe says :

"It will be seen by our extracts from the London
journals how far the reasoning of men of consideration
in France and England has dispersed those ab3urd va-
pourings of war which have obscured certain heated
brains. The fact is, that great affairs are like the ancient
poets ; they hate a crowd, and retire from it, because it
is passionate and tumultuous, while they have need of
calmness and moderation."

The National remarks that " the English press has
completely ceased joking about the skill of our marine
artillerymen ; the Times itself no longer says that the
tricolour flag has dishonoured itself in Africa, and its
rhodomontades have given place to the most pacific
reflections." And it declares its opinion that except-
ing only two of the London journals, " which fire up
more and more, and which even go so far as to pre-
tend that England cannot, without dishonour, abstain
from repressing by force the occupation of Mogadore,
all the other organs appear to have recovered the use
of reason, and acknowledge—first, that France had
a perfect right to do what she has done ; secondly,
that the victories of our troops, instead of proving a
brand of discord in Europe, are a guarantee for peace."

In Gaily:ant" s Messenger we have this notice :
" Some of the Opposition journals state on the faith
of accounts from Morocco, that munitions of English
manufacture were found both at Mogadore, and among
the stores in the Moorish camp, captured by Marshal
BUGRAED." We take leave to doubt the fact; of the
animus with which the statement is put forward, them
can be no doubt. But even if the case should turn
out to be precisely conformable to the announcement
of the French Opposition journals ; what then ?
Will they point out any treaty or obligation into
which we have entered with France, or any other
European Power, not to supply Morocco, with which
empire we have long had a considerable trade, with
arms and munition of war of British manufacture, if
the Government, or the subjects of the EMPEROR
should need them ? We sp?ak more particularly of
that long interval, but just now interrupted, in which
our ally, the Moroquin SOVEREIGN, was at peace with
almost every other European state as well as our
own. We suspect that military arms and munitions
form a considerable portion of our exports, at all
times, to these African independencies. Besides, the
state parasol captured in the baggage of the EM-
PEROR'S son, turns out to have been made in Paris !
We cry " quits !"

THE BOURSE-SATURDAY, AUGUST 31.

First Highest Lowest
-

Last

Price. Price. Price. Price.
French Five per Csnts ••• • • • 120 55 .. 120 65 .. 120 40 .. 120 65
Three per Cents.• .• • 80 60 .. 80 85 .. 80 40 . • 80 85
Bank of France .. .3045 3045 .. 3045 ..3045
Lattitte Bank, I,ooof Shareslf 80 ..1080 ..1080 .• 1080
5,000 f Sharesso6o . • 5060 • • 5060 —5060
Belgian Fives, 1840
1842 •••• • • • • 196} .. 1061 .. 1061 .. 106 f
Spanish Passive •••• 51 • • 51 • • 51 • • 54
Old Deferred ••• • •. 5f . • 57 .. 51 • 51
Dutch Two and-a-Half •• • • 611 • • 611 • . 611 • 811
Neapolitan •. • . 97 9') .. 98 .. 97 90 • • 98
Roman . .

RAILWAY SHARES.

St. Germain •• B7l 88 877 50 .. 877 50 .. 877 50
Versailles,R.B.•, ...... . 376 25 .. 377 50 .. 376 25 .. 377 50
L.B••••••• ..... 241 25 .. 243 75 .. 241 25 .. 243 75
Rouen.•••••••••••

Rouen to Havre••••
Orleans .. ••••••• •••••••••• 958 75 .. 960 .. 958 75 .. 960

Strasburg to Bale•• •• ••• • •• 238 75 • • 240 .. 238 75 .. 240
RAII•WAY SHARES FOR THE ACCOUNT, 31sT_ OF AUGUST.

St. Germain .• .• .• • • • • •• • • 880

• • 885

- SBO

.. 885

•••••• •••• 376 25 .. 380 •• 376 25 .. 380
L. 8.•• •• •• •••• 243 75 .. 245 .. 242 80 .. 243 75
Rouen... ..... •••••••••••• 967 50 .. 957 50 .. 963 75 .. 967 50

Ronento Havre.• •• •• •• •• •• 732 50 732 50 732 50 732 50
Orleans .......•••
Strasburg to Bale.••• •• •• •• 238 75 .. 233 75 . 238 75 .. 238 75
Avignon to Marseilles.. •• •• 750 .. 750 .. 750 .. 750

THIS DAY'S NEWS.

TIIE CABINET CouNclL.—The Chancellor of the
Exchequer arrived in town early this morning. Lord
Stanley, Lord Wharncliffe, and Sir James Graham,
also arrived this morning to attend the Cabinet
Council, which is appointed to meet at two o'clock at
the Foreign-office, Downing-street. The Lord Chan-
cellor is expected to arrive in town this afternoon to
attend the meeting. The Council is expected to be
attended by most of the members of the Cabinet.
The Duke of 'Wellington and Sir Robert Peel are
staying in town. After the breaking up of the Ca-
binet Council, Sir Robert Peel will, it is expected,
proceed to Windsor Castle.

MARKET NEWS.-(THIS DAY.)

CORN-EXCHANGE.-MONDAY.

The arrivals of all kinds of grain of home produce up
to our market during the past week, have been only mo-
derate ; but those of Foreign Wheat, Barley, and Oats,
have been rather extensive. Rather a large quantity of
Wheat came to hand coastwise, as well as by land car-
riage, and samples from Kent, Essex, and Cambridge-
shire, at least three-fourths of which were of the present
year's growth, and of very superior quality. Owing to
the fine weather for harvest work in the north of Eng-
land—for in the forward districts nearly the whole of the
grain has been secured—the demand for all kinds of
English Wheat was in a very sluggish state, and, in
order to effect sales, a decline in the currencies ob-
tained on Monday last of from is to 2s per quarter was
submitted to by the factors, and a clearance was not effeced.
The accounts which have come to hand to-day, relative
to the progress of field work, arc in the highest degree
satisfactory. The show of free Foreign Wheat was good,
while the sale for that article was excessively heavy, at
an abatement in the quotations of 2s per quarter, while
in Corn under lock scarcely a transaction took place.
No English Barley at market, if we except a few parcels
of new, which were in middling condition. Foreign
parcels were heavy, but we have no alteration to report
in value. The best Malt was in retail inquiry at full
prices. In other kinds next to nothing was doing. The
supply of Oats was not large. Fine potato qualities
were quite as dear; but other kinds were a mere drug.
Beans and Peas moved off slowly, yet previous rates
were supported. The Flour trade was very dull, a'
barely stationary prices. In Seeds we have but few sales
to report, at late rates.
CURRENCY PER IMPERIAL MEASURE.
WHEAT—Essex & Kent, Maur —Ch evaher 630
to—
red..... ..... 403 to 50s am —Yorkshire and
Ditto, white
Norfolk and Lin Potatoe
coin, red 39s to 46s Youghall and Cork,
Ditto white 4os to 538 i black
Irish, red 478 to 508' Cork, white
Ditto white
RTE—Old ........... Zs to 33s BRANS—Tick 268 to 30s
New 36s to 38.11 Pigeons
BARLEY—Grinding 23s to 27s Plus - Grey ........ 31$ to 33,
Malting
Chevalier 32s to 358 White 3ss to 39,
MALT—Suffolk and Nor. Boilers 32s to 3518
folk s6s to 625, FLOOR—Town made 44s to 46„
Brown sos to 548 Suilo'k 34s to 38,
Kingston and Ware 56s to 62s Stockton & Norfolk 33s t. 3, 's
FOREIGN GRAIN AND FLOUR IN BOND.
WllEAT—Dantzic 491 to 561VBEANS 2os to 268
llamburg h 36s to 40s Peas 238 to 770
BARLEY 3OB to 331 FLouz—American
OAT,—New
Feed l4s to 16s
For the time of year the supply of Beasts was very
extensive as to numbers, and of fair average quality.
This circumstance, together with the comparatively
small number of country buyers in attendance, and the
unfavourable state of the weather for slaughtering,
caused the Beef trade to rule excessively dull, at in some
instances a decline in the value of the primest breeds of
2d, while the quotations of the middling and inferior
qualities were 4d per 81bs lower than on this day
se'nnight, without effecting a clearance ; indeed, nearly
400 Beasts left the market unsold. During the past
week the imports of foreign stock into London and the
various outports have been but moderate, they having
consisted of only 60 head from Rotterdam. This im-
portation shows the following result for the present year,
ending on Saturday last:—

Head.
840

THE STATE TRIALS.

WRIT OF ERROR.

HOUSE OF LORDS.—(THIS DAY.)
OPINIONS OF THE JUDGES.
This morning being the time appointed for the
Judges to give their opinions on the points submitted
to them by the House of Peers in the important case
of the Queen v. O'Connell and others, the approaches
to the House of Lords were occupied at a very early
hour by persons anxious to gain admittance. The
doors were opened at ten o'clock, but long before that
hour a crowd of persons had assembled outsi‘le, and
when they were opened there was quite a rush. The
space below the bar of the House was crowded with
spectators and counsel. The Counsel for the Crown
and those who appeared for the traversers occupied
the places in front. All those engaged in the cause
were present, except the Attorney-General ; the re-
mainder of the place below the bar being appropri-
ated to the us of spectators. Several elegantly-
dressed ladies were present in this part of the House.
The galleries were crowded within a few minutes
after they were opened. On our admittance to the
gallery we found the greater number of the Judges
and of the Law Lords present. The Bishop of Lich-
field read prayers. Among the Judges present
we observed Lord Chief Justice Tindal, Mr. Justice
Patteson, Mr. Baron Gurney, Mr. Justice Williams,
Mr. Justice Coltman, Mr. Justice Wightman, Mr.
Justice Maule, Mr. Baron Alderson, the Lord Chiet
Baron, and Mr. Baron. Parke. Among the Law Lords
were the Lord Chancellor, Lord Denman, the Lord
Chief Justice ; Lord Brougham, and Lord Campbell.
Lord Cottenham arrived shortly after the commence-
ment of the proceedings. The Duke of Cambridge
was in the House before the commencement of the
proceedings, as were Lord Beaumont, Lord Redesdale,
the Earl of Dalhousie, Lord Strangford, Lord Boston,
and Lord Tankerville.
GRAY V. THE QUEEN.
Mr. Justice WIGULTAIAN proceeded to deliver his
opinion in this case, in which the question submitted
to the Judges was, whether a party charged with
treason and felony had a right to the peremptory
challenge of a jury after they had been sworn. he
Learned Judge gave his reasons at considerable
length, and was clearly of opinion that the Court in
Ireland ought to have allowed the challenge.
Mr. Justice Coltman and Mr. J ustice Williams
were of the same opinion.
Baron GURNEY said he concurred in the opinion of
the Learned Judge who had preceded him. He did
not think that the distinction of the right of challenge
being allowed only infavorem view was sound.
Mr. Justice PATTESON concurred in the opinions
which had been expressed by the other Learned
Judges, and thought that the peremptory challenge
ought to have been allowed.
Mr. Baron PARSE said that he regretted he felt
obliged to differ from the Learned Judges on the
question put by their Lordships. The question ap-
peared to him to be, what was the rule of common
law in allowing peremptory challenges, whether it
extended to all cases of felony or to capital offences
only ? It was contended, on the part of the prisoner,
that the right of peremptory challenge existed in cases
of felony, whether capital or not; the Crown con
tended that it extended to capital felonies only. Ile
considered this was a question of common law only ;
and, in his opinion, Parliament had not interfered
with the subject at least by any express statute.
The 9th Geo. IV., cap. 54, enacted that no person
arraigned for treason, murder, or any other
felony, should be admitted to the right of
peremptory challenge beyond the number of twenty.
This statute was expressed in negative terms. The
statute of the 10th and 11th of Charles 1., which was
repealed by the statute of the 9th of George IV., was
also in negative terms, and did not enlarge the right
of peremptory challenge. It left it as it existed before,
but it reduced the number from thirty-five to twenty.
These statutes left the question as it was before—a
question of common law. What they had to deter-
mine then was, what the common law on the subject
was, and to ascertain what that was, they
should have recourse to those authorities from
which they derived their information in such
cases. In the first place, the only decisions of the
Courts were those which had taken place in Ireland,
and all those decisions had been in favour of the
Crown, and had been constantly acted upon. He
thought that this was a matter of great weight and
consequence. The practice in Ireland showed that
the privilege of peremptory challenge did not belong to
all felonies, but was confined to those which were capital.
On the other hand, the English practice was to allow
the right of peremptory challenge, but it should be
borne in mind that no objection was ever taken in this
country, the prosecutions in such cases being con-
ducted by private parties and not by the Crown; and
also that a like practice prevailed in cases of mis-
demeanour, no impediment existing to prevent the
defendant from objecting to as great a number of
jurymen as he thought proper. There was consider-
able force in the remark of Mr. Justice Crampton that
this peremptory challenge was a concession and not a
right. It had been said that the right of peremptory
challenge was'not confined to cases affecting life only,
inasmuch as it had been allowed in cases of misprison
of treason. Now it was doubtful if even the right of
peremptory challenge had been allowed in cases of
misprison of .treason. At all events the statute of
Geo. IV., which:related exclusively,to Ireland, made no
mention of misprison of treason. He, therefore,
was of opinion: that the right of peremptory
challenge did not exist in cases of non-capital punish-
ment. He believed that it had not been the object of
the Legislature, when they passed the Act of Geo. IV.,
to take away from the accused any right which he
had befOre possessed, by depriving him of the benefit
of clergy. Such a result had not been contemplated
by the Legislature, nevertheless such had been the
result. It was not however the duty of the Judges
to supply the defendants of the Legislature—it was
their duty to administer the law as they found it, and
in his opinion the challenge had been properly dis-
allowed.
Lord Chief Baron PoLLocx was of opinion that the
Court ought to have allowed the challenge. The sta-
tute of the 9 Geo. IV. placed the law in Ireland on
the same footing as the law in England, and in this
country the right of challenge was regulated by the
statute of 22 Henry VIII. ; by that statute it was
enacted that no person arraigned for any petty treason
or felony should be admitted to challenge peremptorily
above twenty. That by implication gave him a right
of peremptory challenge under twenty. There was
nothing to show that the life of the accused must be
in danger, in order to entitle him to peremptory chal-
lenge ; on the contrary, the practice was al-
ways to allow the peremptory challenge. In
cases in which the law took away capital
punishments he was of opinion that all the privileges
of the accused remained, unless they were expressly
taken away. For these reasons he was of opinion
that the challenge ought to have been allowed.
Lord Chief Justice TINDAL was of opinion that the
Court below ought to have allowed the challenge on
the part of the prisoner. No prisoner could be de-
prived of an important right by implication. Peremp-
tory challenge was always allowed in favorem vitw,
and it was also allowable in all cases of felony, for
anciently all felonies were capital. Now, it would be
dangerous to contend that the right of challenge was
taken away, because a statute had abolished capital
punishment. The punishment of transportation for
life was unknown to our ancestors—had they known
it, a punishment almost as severe as death.itself, it
was impossible to say with what safeguards they
might not have thought it right to invest the accused.
The ground on which the argument on the part of
the Crown in the present case rested was, that the
statute Ist of Victoria must be so construed by impli-
cation as to deprive the prisoner of the privilege of
peremptory challenge. It appeared to him that such
an implication could not be resorted to in the
case of a privilege beneficial to the prisoners, and em-
ployed by him in practice, if not in strict right, for
centuries, unless such implication were unavoidable to
give effect to the statute. No such necessity appeared
to exist. Upon these grounds he humbly offered as his
opinion, in answer to their Lordships' question, that
the peremptory challenge tendered in this ca,e ought
to have been allowed.
The further consideration of the case was then ad-
journed until Wednesday.
STATE TRIALS.
O'CONNELL v. THE QUEEN (IN ERROR).
Lord Chief Justice TINDAL said, the first question
proposed by their Lordships to her Majesty's Judges
was this, namely :—" Are all, or any, and if any,
which of the counts in the indictment bad in law, so
that, if such count or counts stood alone in the indict-
ment, no judgment against the defendants could pro-
perly be entered upon them ?" The answer to this
question would depend upon the consideration whether
all the counts of the indictment were framed with
that proper and convenient certainty, with respect to
the substance of the charge of conspiracy, which the
law required. For undoubtedly, if any of such counts
were framed in so loose, uncertain, or inapt a manner
as that the defendants might have availed themselves
of the insufficiency of the indictment upon a de-
murrer, there was nothing to prevent them from hav-
ing the same advantage from the objection upon a
writ of error. To constitute the crime of conspi-
racy, it was necessary that two, or more than
two, should agree to do in effect an illegal
thing, that is to effect something in itself un-
lawful, or to effect something which, though in it-
self lawful, was sought to be brought about by un-

lawful means. That it Wes an offence unknown to
the common law, and not first created by the statute
of the 33d Edward I. was manifest. That statute
spoke of conspiracy as a term at that time well known
to the law, and professed only to be a definition of
conspirators. It had accordingly always been held to
he the law that the gist and the effect of conspiracy
was the bare engagement and association to break the
law, whether any act in pursuance thereof were done I
by the party or not, King v. Edwards. No serious
eijection appeared to have been made at their
Lordships' bar against the efficiency of any of
the counts prior to the 6th. Indeed, there
could be no question but that the charges contained
in the first five counts did amount, in fact, to the
legal offence of conspiracy, and were sufficiently de-
;cribe,d therein. There could be no doubt but that
the agreeing of divers persons together to raise dis-.
eontent and disaffection amongst the liege subjects of
the Queen, to stir up jealousies, hatred, and ill-will,
between different classes of her Majesty's subjects,
ind especially to promote amongst her Majesty's sub-
jects in Ireland feelings of and hostility to-
wards her Majesty's subjects in other parts of the
United Kingdom, and especially in England, which
charges were found in each of the five counts, wh ch
first occurred in the indictment, did form a distinct
and definite charge in each .against the separate de
Pendants, of an agreement between them to do an
illegal act. It, therefore, became uneecessary to
consider the charge of conspiracy to no other
acts while were allegel to be within the scope of the
agreement. With respect, however, to the sixth ann
seventh counts, in the form in which they stood upon
that record, they all concurred in the opinion that
they did not state the illegal purpose and design of
the agreement entered into between the defendants
with such proper and sufficient certainty as to lead to
the necessary conclusion that it was an agreement to
do an act in direct violation of the law. Those two
counts did in substance state in each of them the
agreement of the defendants to have been to cellso
and procure divers subjects to meet together in large
!lumbers for the unlawful and seditious purpose of
obtaining, by means of the intimidation to be thereby,
caused, and by means of the exhibition and demon-
stration of great physical force at such meetings
changes in the government, laws, and constitution
of the realm. Now, though it might be inferred
From these counts that the object of the defendants
was, probably, illegal, yet it did not appear to them
to be so alleged with sufficient certainty. The word
intimidation" was not a technical word, it was not
vocabula martis, being a necessary meaning in a bad
-ense. It was a word in common use, employed, on
This occasion, in its popular sense, and, in order to
4ive it any force, it ought at least to appear, from the
context, what species of fear was intended, or upon
whom such fear was intended to operate. But these
counts contained no intimation whatever upon what
personsthis intimidation was intended to operate. It was
left in complete uncertainty whether the intimidation
was directed against the peaceable inhabitants
of the surrounding places against the subjects
of the Queen dwelling in Ireland, in general
against persons in the exercise of public au-
thority, or against all the subjects of the realm.
"Ilkley were to king to the obtaining of these changes
by the exhibition and demonstration of large num-
bers, without looking to the using, or threatening to
use, such numbers against any person or bodies of
her Majesty's subjects, seemed to them (the Judges) to
be simply an exhibition not intended to be carried fur-
ther. The ninth, tenth, and eleventh counts the Judges all
concurred in the opinion did sufficiently charge the
defendants with agreeing with others for purposes
which were in violation of the law of the land. He
thought it unnecessary to state authorities for the
opinion that the agreement of the defendants with
ethers to weaken the attachment of her Majesty's
subjects to the lawful institutions of her kingdom, to
bring the laws into disrespect, and to supercede the
lawful tribunals established for the administration
of justice, was an agreement for purposes contrary to
law, and was rightly charged, especially in the 11th
count. As to the 6th and 7th counts, the Judges had
no doubt that they were bad in law, and that if they
stood alone, a verdict for the defendants would pro-
perly be entered upon them. The next question put
to the Judges by their Lordships, "Was there any de-
fect, and if so, of what nature in the finding of the
jury, and the entering of that finding on the record?"
On this question the Judges were all agreed, that the
finding on the first, second, third, and fourth
counts was not supportable in law. In respect to the
first and second counts, they held the finding to be
bad, on the ground that the, jury found the eight de-
fendants guilty of a joint conspiracy on each of these
counts ; but they found certain ones of the eight
guilty of other and separate conspiracies under the same
counts. The finding was bad as to the third count,
because the jury found three of the defendants guilty
of all the charges, all the defendants guilty of
certain other of the charges, and all, except Thomas
Tierney, guilty of others. On the fourth count they
found that all were guilty of all the charges except
Thomas Tierney, who was guilty of part only. The
reason of the Judges for that opinion was that there
was only one unlawful agreement charged in the in-
dictment, and therefore the jury could only find one
unlawful agreement on each separate count, for al-
though it was competent to the jury to find them
guilty of different acts on different counts, it was not
competent for them to find all the defendants guilty
of one unlawful object, and some of them
not guilty of other unlawful purposes,
charged in the same count, for this was a finding of
several conspiracies on a count which only charged
one. In the case of the King v. Russell the de-
cision was strongly in support of this view, for it was
ruled that where only one offence was charged the
jury could.find the defendant guilty of that one only.
The Judges, therefore, were of opinion that the finding
in the preaent case is not authorised by law, and was
incorrectly. entered on the record. The third question
was, " Whether it was the opinion of her Majesty's
Judges that there was any sufficient ground for re-
versing the indictment, by means of any defect
in the indictment, or of the finding, or entering
of the findings of the jury upon the said indictment ?"
That question to a certain extent comprised the same
points as the 11th question; and as there was a differ-
ence of opinion amongst the Judges on these points,
he begged to inform their Lordships that he was
about to express only his own opinion in answer to
that question. In order to arrive at a satisfactory
answer to the question, it was necessary to consider it
as divided into two separate parts—first, whether, in
an indictment consisting of several counts, and the
finding being good on some and not so on others, was
that finding altogether bad on account of its insuffi-
ciency as to some parts ? Now he held it to be the
law, that where the finding is good in the criminal
case upon one count of the indictment, and the sen-
tence authorised by law has been secured, such judg-
ment could not be revised on the greened that the
finding on the other counts were bad in law.
In civil actions, indeed, if some of the
counts were good, and some were bad, and
yet the jury found a general verdict on the
whole, that judgment would be reversed, and a writ
of venire de novo would he issued, because the
damages would be assessed on the bad counts as well
as on the good, so that the Court could not say how
much damage was awarded on the good counts and
how much on the bad, in order to do justice to the
parties, and to ascertain how much damage the plain-
tiff had sustained. The verdict was uncertain in such
a case, as the count could not refer the damages, or
part of them, to the good counts or to the bad ones
separate from the others. That was the rule of law in
civil cases, but it had been always considered attended
with great inconvenience. In the case of Grant and
Assop, Lord Mansfield lamented that it had ever been
established ; and, in another case, the same eminent
person drew a distinction between civil and criminal
cases upon this point, and laid it down that
the verdict in criminal cases should stand
good, even if it were found upon only one
good count.—(He referred to Cooper, 175.) That
decision of Lord ManAelcl was lately confirmed in
the Court of Queen's Bench, when it was ruled that
if one count was good and others defective, that might
be taken to lessen the punishment, but it could not
arrest the judgment. In criminal cases the jury
have no other question but whether the accused be
guilty of the charge in the indictment, and they have
nothing to do whatever with awarding a personal
punishment or assessing a fine, which was the pro-
vince of the Judges only, whether the punishment was
fixed by statute or discretionary. Thus uncertainty
and confusion arose in civil suits because no
assessments of damages could occur in criminal cases
in which there was only one offence of which the
accused could be found guiltr, and in which punish-
ment could be awarded, whether it was fixed or at
the discretion of the Judge. Therefore, in the nature
of the thing itself, he saw no reason or principle for which
the judgement in criminal cases should be reversed
by a writ of error, in consequence of some imperfection
in some counts. The practice of framing an indictment
on several counts was not known to the ancient law in
criminal cases, but it was well known that the intro-
duction of several counts was not for the purpose of
charging several crimes, but for the purpose of pro-
viding for the complexion which the case might as-
•sume in evidence, and to prevent the escape of the
criminal on account of a inisdescription. In the
case of a prosecution for cutting and maiming there
were now usually introduced two counts, the second
charging the accused with the less aggravated offence,
but the corpus delicti was the same. But if upon one
good count the defendant was found guilty and sen-
tenced to imprisonment with twelvemonths hard la-
bour, which was a discretionary sentence, that
judgment would not be reversed, and the of-
fender be discharged from all punishment be-
cause one of the counts was irregular. In
that case the prosecutor was not allowed to have
his election, as in a case of felony, but the trial might
proceed, and evidence might be opposed for the
several offences distinct from each other. But the