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

THE STATE TRIALS.
--COURT OF QUEEN'S BENCH.
MOTION FOR ARREST OF JUDGMENT.

DUBLIN, MAY 27.—Their Lordships having fixed this
morning for hearing the arguments of counsel retained by
the traversers on the motion in arrest of judgment, the Court
presented a crowded appearance. At half-past ten o'clock
Judge Crampton took his seat on the bench, and proceeded to
hear a few short motions of course. The other judges came
into Court shortly afterwards.
The Carer 'Tunic's intimated to the Counsel for the tra-
versers that the Court did not intend permitting the motion
in arrest of judgment to be argued by more than two coun-
sel, the Crown to have the privilege of an equal number of
advocates.
Sir C. O'LOQHLEN stated that he had received instructions
to make the motion on behalf Of Mr. O'Connell only.
The Ca Mrs' JusncE—The grounds of objection, as I un-
derstand them, are common to all the traversers, and the
Court have resolved not to hear more than two counsel.
Mr. O'HAGAN said that in all probability he might wish
to address the Court on behalf 'of 'Mrs 'Duffs,.
Mr. CLOSE observed that 'if the counsel who argued the
question omitted anything that he' considered important, he
should certainly claim the right of being heard:
The CHIEF Junice—We cannot stop' the entire business
of the county. This case has already occupied the attentioi
of the Court too long. More than two counsel on behalf of
the traversers cannot, therefore, be re-heard.
Sir •C. O'Loouratx, Counsel for Mr. O'Connell, having
stated that if rightly hifinmed by his senior Counsel, he con-
sidered each bf the' travetsers were entitled to be heard by
counsel, proceeded with the motion. In 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 an ested upon that ground ; and, in the second
place, that the traversers had not 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 we's 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 indictment bad upon that
ground. The statute allowing Quakers to affirm in place of
taking oaths is the 3d and 4th William IV., cap. 49. The
recent statute, 6th and 7th Victoria, cap. 85, secs 3, only ap-
plies to cases where written documents 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. Ho would now come to the other objections. The indict-
ment contained eleven counts. Tho 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 in 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 (Sth
edition.) "It is essential to the formal validity of an in-
strument, that it contains a direct, positive, single, and defi-
nite charge."—let 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
couuts, 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 sack 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. Trobriclge," Chief Justice Holt said,
" As to the words Juratores ulterius prwsentant, 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 iu each by ulterius prae-
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 a
cottage so erected ; and they arc to have several punish-
ments ; and because 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 prsesen-
taut quod, the cottage was continued against the form of the
statute, because they are several offences."—Crawburn's
case, 13 State Trial, 234. So, upon an information against a
ferryman for taking more than the usual rate from divers
persons for the passage of theniklves 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 226. 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 morethan one ultimate object is
entertained by conspirators there ceases to be a single con-
spiracy : there are, in 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
common design, as the intended result of the 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 which 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 bo 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 indictnient, though
the indictment consisted of a single count, and might be ac-
quitted or all the rest. But that was only when a Cliarge
was in its nature divisible, and the authorities allow a con-
spiracy is not divisible, and that a party to he convicted of
a conspiracy should be proved cognieent 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. "'oilman, 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 next 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 King 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 justify as 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 mot illegal means of accomplishing
the traverser? 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. He 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 have been
alleged in what such opposition consisted. With respect to
the count relating to the Arbitration Courts, he contende4l
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 woulA
ni
hold or assert that any "mbler of persons deserved punish-
ment for endeavouring by
agitation or otherwise to effect
that reformation. The Learned
Counselt thou went through
the remaining counts of the indi and in reference to
the last, which charged the traverserseentwith intimidating the
Legislature, he contended thats there was no precedent oft re-
cord for such a proceeding. Threatening the House 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 EUenborough, the highest prerogative
judge that ever sat en the English bench.
Mr. FITZGIBBON wished to know if their Lordships in-
tended to limit the number of counsel to two ?
The CHIEF Juniors (greatly excited)—Yes.
Mr. FITZOIBBON—Wen, then, my Lord. I contend that
every one of the eight traverse% lifiat right to be heard by