The Sun.
London, England, 1844-07-09 00:00:00

fourtb3l2bition

SUN OFFICE, Seven o'Cloch.

THE STATE TRIALS.

(FIFTH DAY.)

WRIT OF ERROR.
HOUSE OF LORDS.-(THIS DAY.)

THE QUEEN AGAINST O'CONNELL AND OTHERS.
The ATTORNEY-GENERAL, for Ireland (in con-
tinuation from our Afteinoon Edition), said—The
Challenger stated that fifty-nine names were omitted
which ought to have been returned ; and he then weut
on to state that from the said paper writing a certain
book, purporting to be the jurors book for the year 1844
was made up, from which the special jury list was made
out. It was not denied in the challenge that a general
list was made up by the Recorder—that it was delivered
by him to the clerk of the peace—that the clerk of the
peace made up, in pursuance of the Act of Parliament,
a book from the general list, which he delivered to the
sheriff, and that the sheriff from that made up the special
jury list; yet it was now contended that this omission
invalidated the jurors' book, though the omission might
have either occurred through mistake on the part of the
Recorder's registrar, or at the dictation of one cf the
defendants, or any other person unconnected with the
Crown. He certainly thought their Lordships would
come to the conclusion that it would be impossible for
him, on the part of the Crown, to take issue on an aver-
ment of that kind, and that he should be guilty
.of a
breach of his duty to the Crown if he had joined issue
upon it, and, notwithstanding all the obloquy which he
had been suffering in consequence of it in Ireland, be
was the more strengthened in the opinion that he had
acted properly, becausehis Learned Friend the Attorney-
General was of opinion that he ought not to have done
so. He begged to call their Lordships' attention to sec-
tions 35 and 36 of the Act of Parliament, which would
show in what cases names which were omitted might be
inserted. In the 35th section of the Act there was a
specific provision to meet the particular case of fraud,
and penalties were provided if it was proved that the
collectors had fraudulently omitted any names, and in
that particular case the book was to be corrected, if there
was either a wilful insertion or omission of names, which
ought not to have been inserted or omitted. The 36th
section stated the penalties which should be suffered by
persons who were found guilty in this respect, and it
gave power to the justices before whom such conviction
took place, to certify to the clerk of the peace that such
wrong emission or insertion had occurred, and the clerk
of the peace was to make a list in which such wrong
insertion or omission was to be cured. Thus their Lord-
ships would see that the Act of Parliament had specifi-
cally provided for those cases where there was a wilful
insertion or omission of the names, and the means of
amending such insertion or omission was pointed out ;
yet it was said that he should have made the amendment
in the list in defiance of the Act of Parliament, which
specited those particular cases in which the Act of Par-
liament provided that amendments were to be made.
Lc rd CAMPBELL—Had you consented, with the con-
sent and privity of the traversers, that such a course
sheeald be adopted, could the traversers have assigned for
err ur that the Act of Parliament had not been properly
cc mplied with?
The ATTORNEY-GENERAL (for Ireland) apprehended
that iu that case the jurors' book would not be a good
jurors' book, and if the parties challenged that they were
tried by names not in the jurors' book, his consent would
not be a good plea to the challenge. He submitted that
it was really the object of the Legislature to take
away the challenge to the array, and to preclude
the sheriff from exercising any control over the list.
The next point to which he should call the attention of
their Lordships was that of the pleas in abatement.
Their Lordships would understand, from the manner in
which the record was made up, that all these pleas in
abatement exactly corresponded with each other, without
the slightest difference.. They'all sought to raise •this
question, that the witnesses before the grand jury ought
to have been sworn under the provisions of the 58th of
George 111., that is to say, they ought to have been
sworn in open Court, and that, not having been so sworn,
the proceedings were altogether Now, he con-
tended that all these pleas wet; both insufficient
and informal. Both in England and in Ireland it IN as
necessary that pleas in abatement should be verified.
Now there was no allegation that the names of the wit-
nesses who were sworn were unknown to the plaintiffs in
error. Ile then cited from Comyn an opinion of Lord
Holt on this point, where that learnei authority stated
that a matter could never be assigned as error which the
party might have plea-led in abatement, as it must be
taken for his own folly that he had omitted to do so.
`The whole object of the assignment of errors in fact was
to amend the plea in abatement. For this purpose-only
one error in fact could be assigned though as many
errors in law might Ate- assigned, as a party
pleased. As only one error in fact could be assigned,
they could not allow that to be assigned as an error in
fact at two periods of the same proceedings, which they
.svorild not allow to be assigned as error twice over. Ile
submitted that on the principle laid clon in the authori-
ties already cited, they could not asse'p an error in fact
and use it as a plea of abatement also. It could be
proved by the Journals of the House of Lords, that their
Lordships, on a writ of error, would not investigate
matters of fact in error, and would not, therefore, re-
verse a judgment on a matter of fact ascertained.
Lord CesieneeL—l believe if you look at the books
you will Lind that in nullo est erratum admits the fact,
and if you wish to traverse it, you must deny the fact.
The ATTORNEY-GENERAL (for Ireland)—He would
apply himself to that point. Upon an assignment of
error, the Court of Qin en's Bench could not have denied
any of the facts in dispute.
Lord CAMPBELL—Do you say that if the record were
Crought by writ of error to the superior court, that court
could not review the judgment of the court below, and
overrule the error assigned in fact ?
The ATTORNEY-GENERAL (for Ireland)—l respectfully
•submit that to your Lordships.
The LORD CHANCELLOR—It comes here as a question
-of law.

in a different way. By the fifth count the defendants
were found guilty of unlawfully and maliciously conspir-
ing to create discontent and disaffection among the sub-
jects of the Queen and to the Government. Now the
first case on the subject was the , case of th-. " King
v. Redhead Yorke," reported in the State Trials.
The Right Hon. and Learned Gentleman then quoted
from the 9th volume of Carrington and Payne's Reports,
page 275, the case of the " Queen v;Vincent." Vincent
had been one of the associates of Frost, who bad been
found guilty of high treason. Frost had not been tried
upon the indictment for conspiracy, but Vincent had
been tried. The first count on which he had-been in-
dicted charged him with conspiring to excite discontent
and disaffection amongst the liege subjects of her Ma-
jesty against the constitution, and of endeavouring by
assembling a large number of persons to excite peril and
alarm in the mind of her Majesty's liege subjects, and by
exciting such peril and alarm to procure a change in the
constitution. In that case the j ury had found Vincent guilty.
He had procured a copy of the indictment from the so.
licitor of the Treasury. The indictment had been tried
on the 26th of March, 1840, and the indictments in that
case were identical with the present. One of the
Learned Counsel who had addressed them on the present
occasion for the plaintiffs in error, and who had par-
ticularly directed their Lordships' attention to that
count in the indictment, had been one of the
counsel for the Crown when' Vincent was
tried. But what was discontent and disaffection
in 1840, when the Learned Gentleman was in office, be-
came legitimate opposition in 1844. However, the case
of the " Queen v. Vincent" was a precedent for them.
The case of the " King v. Hunt" furnished a similar
precedent; and there was another precedent in the case
of " Law v. Allan," reported in the 2d Lynch, page
796. That was a precedent for an indictment for
general conspiracy. In that indictment it was al-
leged that Law had conspired to seduce men from their
allegiance, without stating when or by what means.
The Learned Gentleman then quoted the case of the
" King v. De Berenger," as a precedent for the present
indictment. The same observations applied to the Gth
and 7th counts of the indictment. The Learned Gentle-
man on the other side had put the case of a mob who
met to intimidate another mob which sought to procure
changes in the law and in the Constitution. But a mob
meeting for this purpose was not a mob meeting for the
purpose of producing changes in the law by intimidation
and the demonstration of physical force.
Lord Baonamr.3l—That would not be an answer to
the case put by Mr. Kelly. He put the case of an
Orange mob coming down to intimidate the Houses of
Parliament, and then he supposed a loyal mob coming
down and saying that they would prevent the Orange
mob from intimidating the Houses of Parliament, in
order that the Act of Emancipation, or any other Act,
Might be passed.
The ATTORNEY-GENERAL (for Ireland)—That would
be a mob going down to intimidate the Orange mob, but
it would not be a mob met for the purpose of procuring
changes in the Constitution.
Lord BROUGHAM—Yes, it would, for they came down
to intimidate the Orange mob, in order to procure the
Emancipation Act.
The ATTORNEY-GENERAL (for Ireland) apprehended
that a mob coming down to free Parliament from the
pressure of another mob, would not be a mob convened
to procure alteration and changes in the Constitution.
The LORD CHANCELLOR—But would it be a mob
unlawfully, maliciously, and seditiously convened?
Lord BROUGHAM—Aye, aye, that is another question.
The ATTORNEY-GENERAL (for Ireland)—When their
Lordships came to examine the count they would find
it did not apply to such meetings. There was nothing
dissimilar in it from the count n the case of Feargus
O'Connor, which had been tried before Mr. Baron Rolfe,
in which the judgment was arrested on the count in
which he was found guilty, because the count was with-
out a venue.

Lord DENMAN said there were two counts in that case
on which the defendant was convicted. One of those
counts they considered too general, but they gave no
judgment, as the party was not brought up for judg-
ment. They also thought that the venue count was not
good.
The ATTORNEY-GENERAL (for Ireland)—The Learned
Gentleman on the; other side alluded to the words, the
demonstration of great physical force, and said, that they
meant nothing. He would refer their Lordships, on this
point, to the language used by Lord Chief Justice Tiridal.
He then read the judgment of Chief Justice Tindal, and
proceeded to:say, that though the large meetings might
be for a more innocent purpose than high treason, yet
the holding those meetings certainly amounted to an
aggravated misdemeanour,. as it was impossible to say
to what consequences theY might not lead. It had been
alleged as an objection to this count, that it was not
stated who were the parties who were to be in-
timidated ; but he contended that this was not
necessary ; in the case of a conspiracy to defraud
generally, it was not necessary to state who were to be
defrauded. He next proceeded to the counts which
charged a' conspiracy to bring the tribunals of the
country into hatred and contempt. He could con-
ceive no more grave offence than thus endeavouring
to bring the administration of justice into disrepute.
In the case of the riot at the theatre in Dublin, in which
a bottle was thrown at Lord Wellesley, it was decided
that though the parties had a right to express their ap
probation, 3ct what was right in the individual, was
illegal when there was a pre-combination for that pur-
pose. In the case of the officers in the East India
Company's service, reported in 4th Burrow, the
parties were all indicted for a conspiracy. Lord Mans-
field held that, although each individual had a right to
. say " I will throw up my commission because batta has
been refused," yet an agreement to that effect constituted
a conspiracy. The Learned Counsel then went on to
show that the indictments in these cases were
similar to the count for endeavouring to procure a
change in the law by a demonstration of phy-
sical force. and read the count for that purpose.
His Learned Friend had so ably argued that part of the
case that he would not trouble their Lordships by ar-
guing it at greater length. As to the extreme cases
which had been put by the other side, such as the con-
spiring to steal a loaf of bread on one day, and conspiring
to fire a house on the next, he would only say, that no
judge would allow two such offences to be in-
eluded under one conspiracy. As to the ques-
tion of good and bad counts, there was no analogy in
civil and criminal cases. In civil cases there could be a
venire de novo ; but that could not apply to criminal
cases. The court of assize could not make up its record
with such a distinction between good and bad counts.
They could not enter up ajudgment non obstante vere-
dicto ;'neither could they enter a verdict of acquittal.
It was no matter how many counts there were in the in-
dictment, the question was whether the party was guilty
of the offence charged in the indictment, and was there
a finding to warrant the judgment. If the arguments
on the other side were to prevail, it would strike at the
full scope of criminal justice.. He trusted their
Lordships would not come to any conclusion that
would do anything to alter the whole mode in which the
criminal business of the country was transacted. There
was another point ,to which he would slightly ad-
vert, and that was the point raised upon the first
count of the indictment. It was nut necessary
that they should all be pronounced guilty, there was
nothing inconsistent in saying that some might be guilty
of the whole and some in part, and if that was without
the issue it puts an end to the objection. As to the dis-
continuance point their Lordships had received no answer
of any entries that had been made in accordance with
the ancient custom.

The ATTORNEY-GENERAL (for Ireland) thought he
was justified in asserting, that if this matter came on
upon a writ of error in England, it could not stand
for one moment. It was stated in Teesdale's
ease that at Durham it had been the uniform practice
for the foreman of the grand jury to swear the witnesses.
The practice was so stated by Sir Gregory Lewin ; and
if it were not justified by the common law, it never
could have passed without objection. Before the 56th
of George 111. c. 87, a practice had prevailed in many
of the grand juries in Ireland of their finding a bill of in-
dictment without examing witnesses for the crown.
The °Eject of that Bill was to make it compulsory
to swear witnesses in open court previous to the finding
of the bill of indictment. Their Lordships would ob-
Serve that all the pleas in abatement admitted that the
witnesses should have been sworn under the Act of 1816
—the Act to empower the foreman of any grand jury in
Ireland to administr r oaths to witnesses in Ireland.
The Act of 1816 was admitted to extend to every grand
jury in Ireland. The mischief to be remedied was,
that the informations were laid before the grand jury,
and no witnesses were examined viva voce, the object
being to substitute viva voce examinations for written
testimony; and, as one of the Learned Counsel had ad-
verted to the practice in the House of Lords, he sub-
mitted that the swearing of witnesses whilst the pro-
ceedines were going on led to some confusion, and that
the oath so administered was not so impressive as when
adminstered by those who had to receive the testimony.
Persons sworn in court might not he examined for two
or three days, and certainly the impressiveness of an
oath, might lose its force in that interval, which used to '
occur before the Act of 1838. That Act was an im-
portant general remedial measure. The preamble stated SPIRIT of the
.PUBLIC' JOURNALS.
that the practice of swearing witnesses in court was at- FROM THE EVENING PAPERS OF THIS DAT.
tended with great delay and inconvenience. Since that GLOBE.—Among the Parliamentary business on the
time, in alt the commissions that had been issued, and paper for this evening, Mr. Ross will move the House of
tried in the Recorder's Court in Lublin, the witnesses Commons for the production of copies of the corre-
were sworn by the Grand Jury. How, then, would the spondenee• which has passed between the Irish Govern-
case be, if, as represented for the appellants, the Act ment, and any other parties, relative to the re•instatc-
alid not extend to Commissions in which the Judges of • ment of Mr. O'Driscoll in the commission of the
the superior Courts were included ? It frequently hap- peace in that country. As the removal of Mr.
a-tened that the jury had been charged by the Recorder, O'Driscoll from the magistracy was caused by
had retired, examined the witnesses, and found the bills conduct an that gentleman- which drew down
by the time t hat the two Judges came into Court. Now, upon him no ordinary portion of justly-merited
'was it necessary that all the witnesses should be re-sworn censure and reproach, it is only right that the Govern-
in open court before the Judges, and the whole of the ment which has restored him should have an opportm
procep,lings gone over again ? Yet, if this objection nity of showing—either that the imputations cast upon
were good, such would be the ease ; and every man . Mr. O'Driscoll were not justified by the facts ; or
'who had heat ronvicesal _and trsnseorted under these that the conduct charged against him does not dis-
Commisaions was wrongly -iiimportcd. It was a cu- qualify him for the office of a magistrate, however
ricus coineidenee that the first judge who charged a much it may derogate from his position as a gentleman,
grand jury under the Act was Baron Wolfe, whose or his reputation for huniapity. The present state of
slaws was on this bill. public feeling in Ireland is such as to render care and
Lord CAMPBELL—Had he the Act before hm at the caution, in the selection of persons for the office of
time ? magistrates, essentially necessary on the part of the
The ATTORNEY-GENERAL (for Ireland) did not know. Government. Many magistrates, in whom the great mass
Bat he thought that when a judge instructed a jury on of the people had confidence, have been removed from
tho cons; rectum of an Act of Parliament, he would the commission for taking part in meetings of the Repeal
have made himself acqua'nt, d with that Act. In the Association. The number of magistrates for whoseadmi-
tweeting part of the Bell it was enacted, that "In nistration of thelaws the Irishpeasantrycherishedrespect,
rill cases which should come before grand juries has been thus greatly diminished ; and their dependence
in Ireland for their consideration," the witnesses on the impartiality of the Judicial Bench has :been
might be sworn by the foreman or other members of the to this extent shaken. It was, therefore, no less
greed jury, and that the clerk of the crown at assizes, due to the people, whose interest in the character
and the clot kof the peace at BeS'iun, shoOldiCildOrSe the of the magistrates is immense, than it was neces-
TIMM'S of the witnesses on the hack of the bill. Mr. sary for the maintenance of social order and cheer-
Nally laid great stress upon this point. The Right ful obedience to the laws--4oth which the Government
Hon. and Learned Gentleman then proceeded to refer to is bound to promote, and ought, by its administration, to
cases on the subject, in the 2d Institute, pages 393, 394. aim to secure—that the magistrates' bench should be
and 426. lle did not think it was necessary he should free from gross instances of indecorum. No appoint-
tristable- their Lordships with any further ells- ment having a tendency to strengthen and extend
serrations on the assignment in error, except with dissatisfaction with the constitution of the magis-
respect to Mr. Steele's assignment of error in fact, tracy among the Irish people, ought at any time to
and that he ventured to say could not be sustained be allowed to pass unquestioned in Parliament ; but,
fo'r the reasons he had already mentioned. He admitted under present circumstances, it is especially impera-
thnt tel the witnesses had been svtoru, tut the officer i Live that Ministers should be called to a strict account
not having put his initials en the bill, the whole was in- for any marked departure from the rules which ought
valid; now he stihmitted that it was not. He would now to regulate the creation or restoration of individual
shortly call the attvotion of their Lordships to the in- magistrates. Ministers have shown themselves deter-
dittment in the present case. He thought he had some mined to supersede political opponents for attending
grounds to complain of some of the Learned Counsel who political meetings against which they have issued their
appeared on behalf' of thesplainOffe in error, one of them decrees of proibition. By so doing, they have
having adverted to matters_that were not within the diminished the public confidence in the adminis
record. Whoever had instructed the Learned Counsel tration of justice. In many districts the Bench
to' maize the statement he did had instructed him is exclusively occupied by partizans of the Government,
to state that which was not true. Having which has placed itself in antagonism with the
5t44,1 teas
„much he would proceed with his sympathies of the people. In such a state of things
arguments notwithstanding the language that had been as this, could anything be more impolitic—more calcu-
used by one of the Counsel for the plaintiffs of error, who hated to rouse public indignation againstthe Government,
inspsaaing of the vituperative language of some parts of and to engender suspicion among the peasantry, as to the
the indietinent, ssemed to have made use of it himself, impartiality of the administration of the laws—than to
because he said that nothing but confidence in a political see an individual replaced on the Bench, whose recent
jury coaNIjEWS4/A4PlOt indictment to be framed as removal from it had been provoked by his own outrage
it bad )s-,, - • • - opinion could have justified upon the laws, and his intemperate attack upon the
coon el cue •ations. The fifth count of belief) of magistrates, who had, with great reluctance,
ith°tb. 410Vkk, e the first to which an ! convicted him of that savage outrage? Yet such is the
d the reason probably j transaction to which the attention of Parliament will be
to the earlier counts j called this evening.
Al4*ukiti at ct ua ts were embodied I STANDARD.—Mr. Gladstone's admirable speech
- .

The Loan CHANCELLOR said, that if the Hon. Gentle-
man the Attorney-General for Ireland had any point
on which he wished to remark, their Lordships would
hear it when they re-assembled in an hour and a half.
The further hearing was then adjourned to half-
past six.