The Sun.
London, England, 1844-01-31 00:00:00

his acts should be attribatel to the legal and innocent tie crass-examination of the witness produced by ehe•Crown ;
,
motive, and not, by straining, to a criminal intent. he had the secretary of the soviet yon the table to interrogate
Gentlemen of the jury, you have a right to go further— him as to the intent and object of it. One of the quest' etas v_;?0!,
accenting to the spirit of the British law if it be question- ''Were the members armed with pikes or muskets: -
able to what those motives are attributable—if there be Did you ever hear anything said in the society about Jukes
doubt upon your minds in judging of the transaction, the or muskets ? —No, never in my li•C. Was there such a th:the,
parties accused are entitled to the benefit of such doabts, as a secret Committee there?—Never. Was not everything
and their acts are to be attributable to honest and just motives, conducted openly and publicly? Was there anything ever
and not to criminal design. Now, gentlemen of the jury, yon took p'ace which could lead you to believe that the inernber,s, .
have heard with great force of expression, and great power of intended to depose or kill the King ?—Oh, no, never: ..
argument, an observation made to you already on the nature Would I not, gentlemen, have been entitled to ask him. if he
of this proceeding. It has been already characterised a was a witness on the table, " Had you any reason to supp)se.
" monster indictment" unprecedented in the annals of English that the members of the Loyal National Repeal Association`
justice or English injustice. No precedent can he found in the intended to excite disaffection towards the Government, or
records of the law of England for such a proceeding as this, to corrupt the army, to affect the administration of fustiave
charging almost traitorous intentions against the parties—mix- or to overthrew the Government 1" Why have we not tlses
ing them up in the transactions of nine month; of their lives— opportunity of asking those questions, which we might haven
fixing the a(•ts ofone upon the others—making each responsible for done if we had the benefit of his testimony. Such was the• .
the acts of the whole, and combining those charges in a volume course that was taken when those prosecutions were
of overt acts—accusations which I say are unequalled in the being carried on in England, at a time when the armies -
history of the law. How is an individual to be competent to of France were sweeping the Continent of Europe, and when
prepare himself for his defence against such multiplied accuse- there were great dissensions at home among the people of_
tions—for though they all tend to one, or two, or three charges England. The Attorney-General and Solicitor-General of .
of conspiracy, yet all the overt acts stated in this indictment that day put the Secretary of the Association upon the table in
are charged as illegal acts to sustain the ultimate charge of order that he might prove the facts—in order that the troth
conspiracy with a criminal intention of assailing the State and might be ascertained. The truth prevailed, and Horne Tooke was,
Con•tit ut ien ? Of the injustice of such a course of proceeding acquitted. What more questions were put to him?—" What
as in the present case has been adopted, you have heard. do you think was the object or intention of the greater pert of
You have been told that no precedent can be found for such the members of that Society ?—To obtain Parliamentary re'
a prosecution as the present. Gentlemen, there is but one form." Do you think there are many among tbema
case on record which bears any analogy to it, and that case who meant more than what they said ?—I do'
ii one which is a blot on English history, and one which not know; I believe they meant what they said." Gen-
has challenged the indignant animadversion of all intelligent tlemen of the jury, I will not go further with this exa-•
men who have ever considered it—the case of Warren Hast- mination. Observe its application to the case of my clients,
ingn When, on occasion of Hardy's trial, Air. Erskine, the the Secretary of the Repeal Association, who discharged his
eloquent advocate of the accused, came to speak of the in- offleiel duties in the ordinary way that the officer of any public
dietmein in that case (which falls fifty degrees short of the society was bound to do? Why is he included in this indict-
perplexity and injustice of the indictment on which the present ment, or why is he now called' upon, after having been per-
traversers have been given in charge) he expressed himself in mitted for seven months past to go on discharging the duties of
language of no common force. Lord Erskine, in page 890, of his situation, to answer here as a conspirator—as one re-
the " State Trials," expressed his sentiments upon such pro- sponsible for all the acts, speeches, and publications of which
secutiona as the present in no ordinary language. He began you have heard so much ? Can you on your oaths, ac honed
by quoting the sentiments of Lord Hale upon constructive trea- and honourable men, say, in the face of the country', that
son, which are as follow :—.. And third, how dangerous it is Mr. Ray. the official of a legal, a recognised Association, did- 710 t%
by construction and analogy to make treasons where the letter discharge his duties as secretary, in accordance with the (tiro"-
of the law has not done it, for such a method admits of no tions of those by whom he was employed; but that he ex- -
li.nits or bounds, but runs as far and as wide as the wit and ceeded his instructions, and combined in doing all those overt
invention of the accusers and the detestation of persons ac- acts which form the charge of conspiracy against him 7. -
cused will carry men." " Surely (continued Mr. Erskine) the you are called upon to say be did not do these
admonition of this resplendent 1 twyer ought to sink deep into things with the intention of discharging his duty, consist-
the heart of every judge and every juryman who is called to ently with his principles; but that he was engaged in a pre.
administer justice uinier this statute ; above all, in the times, concerted plot—in, a settled conspiracy formed between those
and under the peculiar circumstances, which assemble us in gentlemen, for you are to swear upon your oath that you be- •
this place. Honourable men, feeling as they ought for the
s lieved such to have been his intent before you can give a ver-
afety of Government and the tranquillity of the country. and diet against him, and lam to get your answer to that plain
naturally indignant against those who are supposed to have question out of your jury-box; Gentlemen of the jury, it may
brought them into peril, ought, for that very cause, to proceed be seid that Mr. Ray went beyond the regular course of ht., •
with more abundant caution; hut they should not be sur- duty ; it may be said that. he &el not confine himself to attend-
prised by their resentments or their fears. They ing the regular meetings of the Association in the capacity of
ought to advance in the judgments they form by slow secretary. Gentlemen, lam ready to admit, on the part of Mr.
and trembling steps—they ought even to fall back and look at Ray, that wherever there was a meeting of the Association, as , •
everything again, lest a false light should deceive them, of the Association itself, he attended and officiaiM there as se-
admitting no fact but on the foundation of clear and cretary, and that gets rid of all questions upon the indictment
precise evidence, and deciding on nn intention that does not upon that head. But it may be alleged that he was present at Tart
pesult with equal clearness from the fact. This is the universal and at Mullaghmast. Now, on that subject I have ascertained
demand of justice in every case—how much more especially, the fact, that those were the only two country meetings at
then, in this, when the judgment is every moment in danger which he was ever present. The meeting at Tara took place: .
of being, swept away into the fathomless abyss of a thousand the 15,11 of August ; it was I believe chiefly an assemblage
volumes, where there is no anchorage for the understanding, of persons from that immediate neighbourhood ; but a con-
where no reach of thought can look round in order to compare siderable portion of them wero from the county and city of
their points—nor can any memory be capacious enough to retain Dublin, many attracted there from curiosity, and many more
even the imperfect relation that can be collected from them. of course from an identity of feeling with the object for '
Gentlemen, my mind is the more deply affected with this can- which it was convened, and from which to give expref, '
sideration by a very recent example in that monstrous pheno- sion to their feelings on the question of repeal. Thousands •
menen which, under the name of a trial, has driven me out of went out there in carriages, gigs, and cars to see what took
Westmins'er Hall for a large portion of my professional life. place on the 15th of August at the hill of Tara. I don't -
No man is less disposed than I am to speak lightly of know whether you are aware of it, but I believe the fact is .
great State prosecutions, which bind to their duty notorious, that from the number of persons who were''
those who have no other superiors, nor any other control, least going out of Dublin that day, it was regarded as &
of all am I capable of even glancing a censure against those species of holiday through the city. Mr. Ray went there with
who have led to or conducted the impeachment, because I his family, with the females of his family, and in company with
respect and love many of them, and know them to be amongst the members of another gentleman's family, of whom one or
the best and wisest in the nation. I know them indeed so two were females. He did nothing there ;he made no speech -
well as to be persuaded that, could they have foreseen the vast there ,• he did not act as seeretary to that meeting • and, taking
field that was to open, and the length of time it was to occupy, that fact' alone, you might as well have included every' .
they never would have engaged in it—for I defy any man, other person who attended there as Mr. Ray. There can be
not enlightened by the divine Spirit, to say with the pre- no doubt but thousands went there from a mere feeling of
vision and certainty of an English Judge deciding upon evidence curiosity. However, we now find Mr. Ray at Tara, and, as ,
before him, that Mr. Hastings is guilty or not guilty; for who far as I can see, with respect to Mr. Ray as a traverser, on that
knows what is before him or what is not? Many have car- head I have nothing requiring me to justify on his part. ,
tied what they knew to their graves, and the living have He may have gone there with a sympathy for the objects
lived long enough to forget it. Indeed, I pray to God that of the meeting; but does that attach to him the character,
such another proceeding may never exist in England, because of a conspirator? I shall not go into any of the particulars
I consider it a dishonour to the Constitution, and that it brings, of that meeting, fer its peaceable character has been deposed to,
by its example, insecurity into the administration of justice. by the magistrates and policemen who were present—they have* -
Every man in civilised society has a right to hold his life, liberty, told that there was no riot, no breach of the peace, nd tendency
and reputatian under plain laws, that can be well under- to anything like it there. To be sure Captain Despard wa!
stood, and is entitled to have some limited specific part of his examined, but what was his evidence? Why was it given?"
conduct compared and examined by their standard ; but he I will tell you ; it was in order to give a certain colouring
ought not for seven years, no, nor for seven (lays, to stand as a to this case—a colouring of illegality to that great meeting* •
criminal before the highest tribunal until judgment is bewildered and that you might draw inferences from the evidence
and confounded, to come at last, perhape, to defend himself, after obtaining a colouring for it. Well, then, Walker wess.
broken down by fatigue, and dispirited with anxiety." Such was examined, and what did he prove? That he saw peoF"''
the language of the acute and impasioned Erskine in comparing walking, heard bands playing, and saw a few flags or banners;'
the proceedings in Hardy's ease with the proceedings which had and that was all he saw. Was there anything illegal in that .
been instituted against Warren Hastings, and yet I have no hesi- Walker was examined by the Crown on all that he was supposed
tation in ayes ring that in Hardy's ease the parties charged were to know. Well, Captain Despard, who, it will be recollected...
few, and the circumstances were few, as compared with the num- had no great regard or esteem for Mr. O'Connell—for what ,
ber of the accused, and the abundance of the accusations in the reason, I suppose, he knows best himself—but it was quite
present unprecedented prosecution. How monstrous is the injus-
tice to which my client has been made a victim in being called clear that, from his manner and evidence, he had a very strong
feeling against Mr. O'Connell and the meeting. This Captaie
upon to become responsible for the words and actions of other Despard comes from Trim, and he swears he heard the people;
men, beside himself, during the period of seven months. Gen- say .. Keep the step !" I asked him did they keep the step, en°
tlemen, the task is indeed arduous which the Crown has nn- he said they did not. I must here remark that ever
posed upon you. Yuu are called upon to jump at the conclu- man who was examined did, either by design or accident,
sion, but everything that my client did in his capacity of paid endeavour in the strongest manner to give a colouring, which.
officer to the Society, he has done, not in the conscientious dis- they were not warranted in giving, to the whole character•
charge of his duties as a paid servant, but with a criminal intent of the proceedings. Captain Despard said the people came
:o pervert the laws and injure the Constitution of the country. in marching in_
order to the meeting, and by that word he.
wanted t
That you are sworn to try : at that conclusion you are required y police-
That impress something on your minds relative ter
to arrive. Gentlemen, I feel embarrassed in addressing military array. He was obliged to admit that the people
you ; I confess that I am adverse to going over the did not keep the step, nor did they know hew to keep its
same ground that Mr. Moore has traversed in his eloquent He was a military man, and he at once committed himself is
remarks, for lam apprehensive that a repetition of the same his anxiety to colour the case, and give a turn to the whole
topics liy me, instead of being of value to you, or to my proceedings, which were totally different from the facts. It
client, would rather have the effect of weakening the im- was most disingenuous in Despard to use a military term foe
pression that must have been produced upon your minds the purpose of throwing it into your box; but at the same,
by the admirable speech of my Learned Friend. But I can- time it only proves the nature of his temper, and the bias of
not avoid offering a few remarks to which I would fain at- his mind, and his partisanship on the subject. I will ask,
tract your most serious attention, in reference to the particular are men to be branded with being foul conspirators—are
case of my client, Mr. Ray. Gentlemen, look at the position their lives, liberties, and fortunes to be at stake in consequences
in which my client is placed, and have regard to the circums of such evidence as this that I have shown you? The gallant
stances by which his particular case is characterised. Gentle- Captain Despard and Major Westenra were taken for foreigners,
men, Mr. Ray is a humble man with a large family, who ' because," says the captain, " Major Westenra had a mous-
look to him alone for support. He has no other pursuits than Cache, and I had a curl in my lip."—( Laughter.) Well, he gets
those which are connected with his avocation or office. He into a conversation with some lump of a fellow from Stoneybatter
was made Secretary to the Repeal Association on its forma- or thereabouts, who was waiting to see Mr. O'Connell Pass:
lion in the year 1840, and from the day of his appointment and because of this conversation the meeting was stigmatised
to the present hour his time and attention have been totally as illegal. The man told him he came from Wexford, and
engaged by the discharge of the duties incidental to his situa- therefore the meeting was illegal, and the traversers guilty of
tion. He has not given me the slightest instructions to say foul conspiracy.—( Laughter.) This alleged conversation cool"
that the repeal movement did not enlist his good wishes in its have been sustained by evidence, but I think the Attorney'
favour—or that he did not, to the fullest, extent, sympathise General knew nothing at all about it when he opened the case'
with the leaders of the agitation—but what he did he did in or if he did I think he did well to leave it out and not contains"
the discharge of the duties connected with his official character nate his case, bad as it was, with such trash as I allude to. The
—what he did he did in compensation for his salary, as in duty Attorney-General did not allude to 20,000 Shilmalier men,
bound—and yet, gentlemen, you are called upon to view him who marched to Tara. Oh, no, he knew it would be really tee
in the light of a conspirator, and you are told to attribute farcical to do so. The conversation to which he referred, if ever
every act of his—which he has performed in requital for such took place at all, must be treated as a coek-and-a-bqll stor!'
his emoluments—as an act planned and achieved with the or a humbug. Walker was examined before Capt. Despard, in tue
design of subverting the law and the Constitution. If the country, and it was said also that he was near him when the NU'
Association were an illegal society, and if it had been cha- versation took place, yet there was not a word about it, as it ell,
racterised as such by the Crown, then indeed my client too equivocal. 011 ! but the 20,000 Wexford men could 1,7`
might fairly have been made responsible for all his actions in be forgotten by Capt. De.pard. Oh, but that was done for
the capacity of secretary ; but no such doctrine as this has been a purpose—to give a colouring to the case; and well the othee.
ever propounded—nobody has presumed to say that th Assoe side knew that. Why was not Walker asked about it ? 06.
elation is illegal—nobody could say that it is illegal. You find might have corroborated the story. It was disgraceful to bring
my client, Mr. Ray, on principle, no doubt, a Repealer, and
incidentally a member of the Association ; but you also have such a case as that forward, in order to sustain the prosecution.
HeWhy was not Westenra produced to corroborate
'distinct' evidence to show that he is the paid officer of a per-
- • •was not. And well the Attorney-General knew it woo ~
:fectly'legal =association—such is the character in which he truly be ad• •
. the storliA?
dis to the case to introduce such an episode into o"
appears before- you. You find him discharging the routine du- opening- is • 'make Y r'''''
statement. It not my intention to an na
ties of his office, and yet you are called upon to say that his marks relative to the other meetings, because Mr. P {
acts' are not to be attributed to the discharge of his duties-- attended only that at Tara and Mullaghmast, and
are not to be viewed as the deeds of a paid servant who is will leave them to other hands. Why do do I rnentiee
anxious to give value for his salary ; but that they are rather to those things but show that ought y
be attributed to a fell purpose existing in his mind to outrage gs to
the considerafon of this awful case as I am convinced rti
the laws and trample on the Constitution ! You are called
upon by the Crown to view his case in this artificial light. will.. I would not have mentioned' the facts. related. here'
it
but if I left them untouched it would be giving theta .
You are called upon to come to this conclusion ; but as honest weight which they are not entitled to, or which they do n°_:
~, . . .
men—as intelligent men—as men who love justice, and prize
the independence of the mind—l ask you, can you come to possess, and a different construction might be put on them_
that conclusion ? In my humble judgment, it was amen- she Learned Gentleman then proceeded to read the evidence
of Mr. Despard, as follows :—Walker was in coloured clothes;
strous thing to include Mr. Ray in this indictment. He ought Westenra was there also, and is alive at present. as far a 4,
never to have been included in the present charge ; and I I know ; a man asked him to take off his hat for O'Connell
cannot forbear from expressing it as my opinion that the
he was surprised when he bend of the 20 000 Wexford
Crown, in having proceeded against him, have not pursued
men ; and when I asked him did- he believe'the man, hi:
a candid, ingenuous course, either towards him or towards r, is tbs
answer was, I bad only his word for it." I ask,
the other traversers. They have indicted the members of a evidence in this case ? There was the case made by ..,,,,,,
D, ii,

—.-
certain society for a criminalconspiracy, and they have included
in the indictment Mr. Ray, the salaried servant of the Asso-
ciation. I will not apply hard names to this proceeding, I will
not go so far as to say that they were guilty of a dishonest
intention, or that they could be capable of the common,
paltry, pettifogging manoeuvre, of cutting the ground from
the feet of the accused parties, by including the witnesses in
the indictment. I do not mean to impute any unworthy mo-
tive to my friend the Attorney-General, but I am surely at
liberty to call your attention to the disastrous effect which re-
sults to the rest of the traversers from the circumstance of
my client being included in the indictment. While I repu-
diate the idea of attributing an unworthy motive in any
quarter, I am surely at liberty to demonstrate how the
effect of such a proceeding as has been adopted is exactly
similar to that which would have resulted if the paltry ma
emuvre to which I have alluded had indeed been deliberately
had recourse to. By including Mr. Ray in the indictment,
they have deprived the other traversers of the benefit of
his services. He was the acknowledged officer of the
Society—he had in his possession the authenticated books and
documents of the Society, written in his own hand-writing—
he knew the working and machinery, so to speak, of the
Society, and was the only man competent in law to prove the
honest and perfectly legal intentions of its members. lie could
have proved their objects—he could have clearly demonstrated
the means that were resorted to by them for the constitutional
purpose of procuring the repeal of a statute which they conscien-
tiously believed was a grievance to their country—all this he
could have made as clear as sun-light ; but he ( the man who
was in a position to prove all this) has been silenced, arid is
incapacitated from acting as a witness by being included in the
indictment. The Crown might have brought Mr. Ray
upon the table—they might have called for his books, and
examined the man who made the entries, and thus have
furnished themselves with primary evidence of the most au-
thentic character, but this, they had not done, and they were
accordingly obligetfto avallithemselves of the ordinary news-
paper reports, which did not publish all the transactions of the
meetings, but only such as appeared at the time of public in-
terest. They thus were obliged to resort to a species of se-
condary evidence, and in order to make out evidence ad.
missible they were obliged to hare recourse to the left-
handed management of including in the indictment the editors
of the different newspapers in which these reports were pub-
lished. What was the course taken at the trial of Hardy and
of Horne Tooke ? Who was the Attorney-General of Eng-
land in that day ? The late Lord Eldon, then Mr. Scott.
Who was the Solicitor General of that day ? The late Lord
Redesdale, subsequently Lord Chancellor of Ireland, then Mr.
Mitford. How did they proceed against Horne Tooke and the
ether members of those associations which it was the object of
those prosecutions to put down? Who was the first witness
examined against Horne Tooke ? Daniel Adams, who was
snort and examined by the counsel for the Crown. And what
did he prove ? That he was the secretary of this society or
association—that he had held that office for ten years—that be
had made the entries in the books. But the Crown may say
to use here—" Oh ! do you expect we should call a co-conspi-
rator? do you expect that we should give to your counsel the
benefit of his cross-examination ? ' Gentlemen, I hold it to
be a principle—a high, a noble, and inherent principle—
of a Crown prosecution, and more particularly of a
State prosecution, I hold it to be the duty of those who
manage it not to discriminate, to judge, to calculate, to
criticise in what way the evidence may be likely to affect those
who are to be prosecuted ; but it is the duty of the Crown to
call all those witnesses who can depose to facts appertaining to
the prosecution, and then to give the traversers the benefit of
their cross-examination. Mr. Ray is included in this indict-
ment ; he cannot be a witness at, all. I cannot rallhimfor
• . ,a.ruaot, i time 1..• • .21T ,-
half. In Hardy's ease the Crown did not indict the secretary ;
he was the first witness to prove the objects, the intent, and.
the tendency of the associaticn, Horne Tooke was entitled to

pard of the great treasonable design concocted against I._ll`
peace of the country, because he met a man who told himr
came from Wexford ! The only other meeting at which M'
Rav attended was that at Mullaghmast. He went there, n.".
in his capacity of secretary to the Association, but on an irli;
tation which was conveyed to him from the Committee• t
was at the dinner which took place in the evening; and th
was the only place in the whole history of the transactiet:
that Mr. Ray made a speech or said a word. Well, let he;
see under what circumstances he went there, and made t,,-1
speech. Everything done at that dinner was given in
dente, except. that speech of Mr. Ray. In the course of the
evening certain toasts were propose,i, and amongst the reg.,
was the " Loyal National Repeal Association." Mr. Ea/t
spoke to the toast, hut how ? Did he volunteer to speak ?
he did not ; he was called on to reply to the toast as the secretary
of the Association, and he made some observations on the sub'
ct, but of so little importance were those observations that the
were forgotten. The speech was not reported, nor was it given
in evidence on the table—it was merely stated that Mr. flay.rhee
turned thanks on the part of the Association, and that was ,'„,
only time in the history of the whole transaction that Mr. •1"1
made a speech. In speaking of the meeting at Mullaghmal'io
think this is the time to mak a few observations with regar,r„„ts
something which occurred at that meeting. I think 1,1,1.0
reason to complain of the mode in which the prosecution $
been conducted, and my client complains of being raatie.
party to what occurred there—that was the first resoht
lion moved at the meeting, which is one of the °v to
Acts laid as disclosing the criminal intents of the partie;,he
excbe disaffection among her Majesty's subjects. (
Learned Gentleman here read the first and second resolu _f
ng
agreed to at the meeting.) You have had a great deati. 1
of
evidence laid before you as to the numerous asserablageme,
persons who came together at Mullaghmast, but though "%cos
roes, it was proved that this meeting, like the others,
1; "'test'
peaceable and orderly, and that there was not the 5.1 ,as
tendency to commit a breach of the peace. Butts get
deemed necessary, as in the case of Tara, t:rioter
some species of evidence reflecting on the c," ta of
of the meeting, and on the designs and this
thoso who were assembled there. I call attention
_l;es &
fact, because it is one which, I regret to say, di. cc,. fool
management and distorting which ought to be absense__ce
a trial of this description when everything should
_be., Zoe
board and brought forward. What do I allude to ?
.1 allude
board
by
to the catch-penny ballad or placard published and pan f the
a person named Hanvey, whom it was the bounden ill on
Crown to have produced. If it were a case of :7_o,
assault, where there might he a struggle for a forny.°;h3,
ling verdict to carry damages, I would underslna,el.flartt..
he was not produced, but in a State prosecution, a.
(coot
cularly in a State Crown prosecution, I deny that "
_d this
to be kept back. When the Attorney-General opeU,
case, he said that seditious, infamous, and disgraceol 00.
üb'
lications were circulated by themselves and tens the
sands for the purpose of exciting one nation aga'7, and
other, and that my client fabricated the doeumee„rai pro-
had it circulated. Why should not the Attorney-Gfitt „oar-
duce the person who circulated them, that we might
'stied
tan where he got them, and who paid for them ? jueed in
to the document, we thought it unjust to be prou,_ each
evidence on a conspiracy, when it was sought to mar
iratorg.
conspirator responsible for the acts of his co.con pby
Was it to be endured that such a document, circulatedvender 4;f
this person, whose character was blackened as a for
seditious publications, in the outskirts of the 'lStitnlige pefr
profit and hire, should be received in evidence, and the
the
who wa d
son himself not produced? Mr. Brown, „rhste
regular and recogniseco printer of the Association,. docu-
the directions repenl war:lcm, and a rrleq), .
raent.. i.:r - (- • eras close
of his evidence ; but why .did the Attorney- GPI) without
his case, having this document in his
calling the person who sold them to show how
"sentTjgot thein