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

the count was bad. If they. charged a man with intend-
ing to intimidate as a criminal offence, and with intend-
ing to use a demonstration of physical force criminally,
the indictment must state on whom the intinidation,
and on whom the demonstration of physical force, was
intended to operate. In indictments for obtaining money
under false pretences, it was always necessary to state
whose money was to be obtained. In indictments for
conspiring to defraud it was necessary to stale who was
to be defrauded, and how the fraud was to be accom-
plished. Therefore he contended that in an indictment
for a political conspiracy in which intimidation was cri-
minally charged, it was necessary to state *hom it was
intended to intimidate. He challenged the Counsel of
the Crown to shew on what ground this count
eould be held good, and why it was unnecessary
to state on whom the demonstration of physical force
was to act. It was bad for generality. Bat he would
proceed to show that intimidation and the demonstration
of physical force were not necessarily illegal, and if he
could put a case in which it was lawful to use intimida-
tion and physical force to assist in procuring a change
in the law, he should prove that this count did not ne-
cessarily charge any crime at all. He besought their
Lordships to dismiss from their minds that the real ob-
ject of these meetings was to procure a repeal of the
union, an object which was opposed to the wishes of the
Legislature, and to the wishes of thd majority of the
people in this country. But let them suppose that this
charge related to a change in the law in favour of which
the Sovereign, the great body of the people, and the ma-
jority of one House at least of the Legislature were
united—a change just and desirable in itself, would it be
unlawful to further that object by the intimidation of
physical force ? Let him suppose that the third
reading of some such measure as the Reform Bill
was fixed to take place in their Lordships' House
that evening, and that a body of 10,000 men were to
_assemble in Spa-fields, and to say we will march down
to the House of Lords, and prevent the Lords from
altering the law, would it be illegal if a body of gentle-
men residing in Whitehall and the different streets
through 'which these men would lave to pass, were to
say let us oppose the progress of these men, and by inti-
midation and a demonstration of physical force, prevent
their going down to the House of Lords? Would that be
illegal or not ? Yet that proceeding would be described
by this count of the indictment.
Lord 13nouGUAM—Why do you not take the case of a
person holding out a pistol to prevent a highwayman
from robbing him by intimidation ? You take the case
of parties engaged in an act almost of high treason, in
which the loyal subjects of the King assemble to prevent
the commission of crime.
Mr. KELLY—That was just the case: yet•these loyal
subjects were, in the words of the indictment, seeking by
intimidation and a demonstration of physical force to
change the law and the Constitution. That
showed how important it, was that the person to
be intimidated. Should be named •in the indictment,
in order that it might be shown that intimidation was
illegal, and that the party accused might know, at once,
what he had to defend himself from. Unless it were
intended to .overrule the principle laid down on the Queen
v. Peck, 9th Adolphus and Ellis, page 626, and to adopt'
a totally new and different principle, this count could not
be sustained. He would, therefore, venture to ask
whether was the intimidation of a large meeting necee•
sarily—for that was the question—illegal ? Was a
meeting to intimidate. evil doers illegal ? There were
many cases in which a meeting to intimidate was attended
with good. He therefore said, it would be necessary to
show what the intimidation was, to show that the
meeting was necessarily illegal, unless their Lordships
were prepared to hold that, In all conceivable cases,
where large, meetings were held to intimidate, no matter
whom, thatall such were illegaL Where was the object
stated here, which object was necessarily illegal? Where
were the means stated, in furtherance of this object,
which were unlawful ? The object was' not illegal.
It 'was to "effect a Change in - the law, and in
the Constitution. That was what was done in a multi-
tude of cases. Every, person who brought in a - Bill in,
Parliament' had' more or less that object in view. It
would not therefore be contended that the object was
illegal. Then, with regard to the means employed, they
would, find, diveiting the count of the multitude of ad-
jectives and' adverbsin which' 'the means were enveloped,
that 'it was'to exhibit physical force, and to intimidate
somebody. Why, if every large "meeting of persons
whereat there was a large physical force exhibited was
illegal, a large number of persons coming forward to be
sworn in as special constables would be guilty of con-
spiracy, because they contemplated a meeting whereat
great .'physical force was to be exhibited, and whereby
some persons were to be intimidated, would be illegal,
though the meeting was for the purpose of exercising
that physical force, and causing that intimidation in
support of the law, and not in violation of thd law..
To the words "unlawful" and "seditious it was im7
possible to giv‘ any precise meaning. He need not refer
to the details of the case of the Queen v. Rowet, already
cited. In that case there was an indictment charging
two persons with being in an open place for certain ille-
gal and very bad purposes, and words were used which
gave a particular character to •the illegality of the acts'
said to be done. But the words were deemed insufficient
to make the actsillegal. So here there was nothing on
the face of the count to show what was illegal. Another.
case in point was that of the King v. Cherer, 4th Berne-
wall and Cressy:TH. The defendant was indicted far
that with force of arias in the churchyard of the parish he
did unlawfully interrupt one Mr. Cecil, a clerk, in reading
the service for the- " Burial of the Dead" over a corpse,
and that he did prevent and hinder the burial.of the said
corpse according to the rites and ceremonies of the Church
of England, and laid violent hands on the said Mr. Cecil,
and there were other counts: The court held that that
charge was too general, observing that every interrup •
tion was not an indictable offence. So here he (Mr.
Kelly) contended that every intimidation was not an in-
dictable offence ; it must be shown how and upon whom
it operated, in order to be indictable. The court said
the defendant must see clearly what he had to answer ;
so also with these defendants. • A meeting to procure
the repeal of the union was perfectly lawful, and, in
order to be made unlawful, it must be shown who were
the parties intended to intimidate ; the count must state
facts, from which it should be made evident that the
meeting was illegal. He would trouble their Lordships
with no other authorities with reference to this count, but
at once submit that it was necessary, in order to establish
a crime of this kind, not merely to state that the acts were
the record circumstances
how they were unlawful.
to consider well the effect
dnuinerlttoopwratlfyuyLe and
nbdtUhetexiotroreLpsloslaide s chewingh ilippson
upon the law, and upon the well-being of the people of
this country in times of political excitement, of their de7
general charges, persons might
cision in this case. He intreated them to consider how
In these times, when there was
ebaostilryo,autedponis.voargiumeionanidi.
freedom of discussion, and freedom of assembly, when,
before a Bill received the Royal assent, meetings were so
frequently held in -Various parts of the country, some for
the Bill and some against it, it did appear to him to be a
strong proposition for that House to, affirm, sitting as a
Court of Error, that every essembly, relating to a change
of tho law, was illegal. Meetings were, and would, be
held in this country for political objects in times of
excitement—prosecutionsthegratification of, private
sometimes
formight be resorted to
ma-
lice—sometimes from party feelings—and it was
impossible to shut their eyes to the, fact that even the
,best of menniust be subject to them, and he ventured
humbly, to beseech their Lordships to pause before they
held that any of the subjects of this realm. must be put
upon their trial on a vague charge like that to which he
referred. it was under these circumstances and upon
these grounds that he submitted to their Lordships that
this sixth count-earid the same line of argument would
apply to the. other. Counts—was clearly too general and
bad in law. He had said that there was only one other
count in the indictment to which hewould call the atten-
possible, more 'extraordinary, when considered as
tion of their Lordships. The eighth count was, if
the subject of a criminal charge, than the
sixth ' count. It - was that these eight persons
aforesaid, unlawfully, maliciously, and seditiously; did
combine, conspire, confederate, .and agree, with each
other, and with divers other persons, whose names are
to the jurors aforesaid, unknown, to bring into 'hatred
and disrepute the tribunals by law established in Ireland
for the administration of justice, and to diminish the con.
fidence of her said Majesty's liege subjects in Ireland in
the adininistration of the law therein, with the intent to
induce her Majesty's subjects to withdraw the adjudica-
tion of their differences with,- and claims upon each
other, from the bognizance of the said tribunals by law
established, and to submit the same to the judgment and
determination of Other tribunals to be constituted and
contrived for that purpose, in contempt of our said Lady
the Queen, and 'the laws of this realm, •to the evil example
of all others in the'like case offending, and against the peace
of our said Lady the
Queen, her Crown, and Dignity."
The, substance of this charge was the bringing some
tribunal or other—what-particular tribunal, is not men-
tioned—Tinto hatred and contempt, and withdrawing the
confidence of the Queen's subjects from them. Now they
could not mean all the tribunals of the country. They did
not mean to bring all the minor courts, or all the courts of
pie-poudre, into contempt. .It must apply to (muds of
other descriptions. Supposing
those courts to be so bad
as to deserve hatred and contempt, and 'honest men de-
sired to effect an improvement in the law, which they
could only effect by holding up these courts in their true
colours, in order that they might by lawful means procure
the interference of the Legislature to alter and amend the
Lord-
ships could not here enter into, the question of whether
law in, this respect,:would that be criminal? Their
or net the courts of law were so odious as to require
that change.
If the vices and . defects of the mode
,in- 'justice was administered was to become
a matter of question in dealing with people's rights
in altering the law, freedom of discussion in this country
would be at en end • could any great 'improvement in
this country, even where it was most needed, be effected
if they were to •be deemed criminal whO agreed
together in any number to hold up a particular
institution to the hatred and. contempt of the
public? If indietineut, which .was framed at
common law were good at the present day, it would have
been good two centuries ago. And if any number of
Englishmen had agreed together to write down the Star
Chamber, or the High Commission Court, and hold them
,up to the hatred and execration they deserved, they
might have been indicted for conspiracy. .
Lord Csseeme---7The overt act being the 'publishing
the proceedings of the Star Chamber.
Mr. KELLY—Precisely. That would have been in
overt act, the effect of which must have been to hold up
.the Star Chamber to hatred and contempt. But was it
illegal? If the courts were such as to deserve the respect
and confidence of the people, they would have it. But the
question was not as to the character of these courts.
Two parties to a ease might come- to very.- different
opinions as to the 'decision- on a Case ;
caw might think
it a very just one and the other the very reverse. But
in a free country like this, where- all the' vices and evils
of an institution might, if- not checked, grow into
and form part'::Was, it cri-
minal for Englishmen to agree together, if they believed