The Sun.
London, England, 1844-07-08 00:00:00

M.s.,:eiza,ev held that they were so, and that there
ought to have been a separate indictment for each.
The LOUD CHANCELLOR then left the Woolsack, re-
questing Mr. Kelly to suspend his argument for a short
time, as he (the Lord Chancellor) was obliged to leave
the House in consequence of a communication which he
had just received.
. On She Chancellor's return,
liemorresumedee-He said that he was willing that
this case should be subjected to every possible test that
could be imagined, and therefore he would venture
to remind their Lordships that the very essence
of criminal conspiracy was the existence of one
common object—one object common to all—
one object to which all and each were party, in
which all and each were implicated. But if a
less number of those engaged in a conspiracy chose to
enter into another conspiracy, the latter object was
surely not to be made common to both.
Directly there was a conspiracy, say by three
out of eight, and the object of the three proved to be
different to the object of the eight ; it had to longer the
incidents of the same conspiracy, and it never, either in
law or in justice, could be dealt with as
one conspiracy. But he (Mr. Kelly) would not
deal vaguely with abstract points, but reduce
the case to the most minute dimensions. Sup-
pose these eight persons—and he would pur-
sue the idea of the Lord Chancellor himself—suppose
these eight persons to assemble at the same
time, and in the same room, and agree to
rob a garden—and that then three out of
of the eight—the remainder dissenting—enter into
a distinct and separate agreement to break into
the house and murder the proprietor suppose
(to put the case in the least favourable way)
them to be actually round the same table,
was that one conspiracy—or were there two
conspiracies? The common object clearly was to
rob the garden—not an innocent object certainly—but
the atrocious object was the object of the second con-
spiracy, namely, to murder the inhabitants of the house.
If that be one conspiracy, then was he (Mr. Kelly) most
lamentably at fault in his view of the law.
Could any one be so absurd as to suppose
that evidence against the whole three, or one of the
three, was to be evidence against those who had only
undertaken to rob a garden ? They must be treated as
perfectly distinct—as separate conspiracies—or every
rule of law, of justice, and of common sense,
would be most grossly violated. Again, there-
fore, he repeated that upon a count con:
taining a charge of one crime, no person whatever could
be convicted of two. He could not help calling the at-
tention of their Lordships to a case which recently oc-
curred at the Central Criminal Court, and the
hearing of which was presided over by a judge who had
the longest and the largest criminal experience of any
one upon the bench The case was the one of larceny
at Buckingham Palace, where a great variety of things
had been stolen, the robbery extending over a very
lengthened period of time. But that crime, thus extend-
ing over so long a period, was put into the indictment
as one act of larceny alone, and the Learned Judge very
properly instructed the jury that they must find the pri-
sonir guilty of one specific act of larceny and one only.
He would ask them whether a number of persons in-
dicted for one crime could be convicted of three several
and distinct offences ? The address to the jury'by Mr.
Baron Rolfe on the trial of Mr. Fergus O'Connor and
others bore strongly upon this point. That Learned
Judge said, that in order to convict all or any of the
defendants, they mnst convict them of one and the same
conspiracy. But if they. found that some of the defen:
dents had opposed any violence, and that others had used
no violence, that one had proposed a voluntary absti-
nence from labour, they might convict them all,
but on different counts ; those who had taken part in
the violence would be convicted on the counts re-
lating to violence ; but those who stopped short
of violence, on the other portions of the indict-
ment. He had supposed that certain parties had
entered into a plan to rob a garden, and that a
portion of them had entered into a conspiracy
to murder the inhabitants of the House. He would ask
whether that which took place on the same day in the
same place would be one conspiracy, or would it be two
conspiracies. No doubt that evidence against one
of the eight persons to whom he had alluded, as
to the conspiracy to rob the garden might
might be evidence against the whole, but could it be
contended that evidence against three of those
eight, those three having conspired to murder the
inhabitants of the house without the knowledge of the
other five, was evidence against the whole eight.
five of whom had agreed to rob the garden, but had
never heard of the design. If on the trial a witness
should be called to prove that one of those eight had
committed a certain unlawful act, not at all
with reference to the object which the eight had in
view, but in reference to an act contemplated by
three only, the other five having never heard of it,
would that be evidence against all the five ?
The judge would be bound to receive the evidence, but
lie should caution the jury as to applying the evidence
to that part of the case that related to the conspiracy of
eight, because that evidence related only to another and
different conspiracy, had a different object, and in
furtherance of that different object confined to the three.
His Learned Friend must contend that if persons are
charged in the same indictment, eight with conspiring to
do one thing, and three with conspiring to do another thing,
in furtherance of which they were guilty of somewhat
more criminality, would the evidence against them be
admissable against the eight likewise ? It ' would
be right to admit it if it was one and the
same conspiracy, but he ventured to say
it was an abuse of words to say that a conspiracy by
eight persons to cause disaffection to the Queen's Gte
vernment, was the same conspiracy as a conspiracy by
three out of the eight to bring the tribunals of 1
the country into contempt, and though he .had
so far adopted the suggestion thrown out
that this might have taken place within the same cham-
ber, and at the same time, they must remember it was
perfectly consistent with the finding of the jury, that
the conspiracy of the three might have taken place on
the Ist of January, ancUthe conspiracy of the eight had
not taken place till the Ist of June probably. See then
what the consequence was, if this was treated as one
conspiracy—an act done by one of three persons
who had entered into a conspiracy in January,
that act being done in February, March, or April,
would, according to this, be evidence against the eight
who had never entered into a conspiracy till January.
This was one of the many absurdities that would
follow, if this was taken as one and the
same conspiracy. A conspiracy was either an
illegal agreement to obtain some lawful object by some
unlawful means, or to obtain an unlawful object by
any means whatever ; but one common object was
still and always of the essence of conspiracy. The
he would say with all confidence that an agreement to
obtain one object was not the same thing as an agreement '
to obtain another and a different object. He would not
embarrass the case by any technical illustrations, but he
would suppose an agreement entered into at the same
place, and signed at the same time by the parties in the
same sheet of parchment. Still, he would ask, would
this constitute one agreement or three? Supposing that
upon the same sheet of paper eight persons agree to
rob a garden, three of the eight agree to
murder the inhabitants of a house, and seven of the
eight agreed to rob another person on the highway,
would it make any difference that these three agree-
ments were on the same sheet of paper, or entered into
at the same time? Would it be one or three agreements?
It was perfectly clear they were three agreements for
three different purposes. To carry this a little further,
he would suppose that three persons were indicted for a
conspiracy to compass the Queen's death, and that five
persons were indicted for a conspiracy to overawe the
Legislature, and that the three were found guilty
of high treason, and were pardoned by the Queen.
If it were one conspiracy the party could not be in-
dicted over again if he had been acquitted of the charge
of high treason or had received the Queen's
pardon. In that case the party could not be in-
dicted again for the conspiracy to commit trea-
son. Suppose three of the parties had agreed
together to compass the Queen's death, and four other
parties in the same room, not knowing of this pre-
vious agreement between the three, agreed with
them to do certain acts for the purpose of over-
awing the Legislature, could it be contended
in such a case where three parties had agreed to do one
thing, and those same three, with five others, had agreed
to do a different thing, that it Has one and the same
conspiracy? He would bring it to another test.
Suppose the Sovereign had given the three a
free pardon for the treason, would that free
pardon also be a free pardon for the conspiracy with
the five to overawe the Legislature? Here were eight
persons charged with attempting to create disaffection
in the army. Five were found not guilty. If it were
one conspiracy they were improperly found not guilty,
because three had been found guilty. Now, the same
person could not be guilty and not guilty of one and the
same conspiracy. That led him to the charge which
loci been made:, o the jury. If this were one conspiracy,
as soon as evidence had been given against all the de-
fendants, every act done by one was evidence against
the whole. He would ask, would evidence against
one of these persons who were proved to
have been guilty of conspiring to spread
disaffection in the army be admissible against the five,
-when there was no evidence to convict them with being
parties to that conspiracy ? Suppose eight agreed to do
Nos. 1 and 2, seven to do Nos. 3 and 4, and three to do
No.s—suppose evidence offered against the three on that
charge, could that be admitted as evidence against the
remaining five, on a charge of spreading disaffection
against the Queen ? Would not the judge be
bound to tell the jury that the acts done
by the three, in furtherance of one conspiracy,
were not admissable in evidence against the other five,
who were charged with a different conspiracy ?
The LORD CHANCELLOR—AII this was practicable,
but difficult.

Mr. KELLY—It was so. Learned and able judges had,
in similar cases, separated the evidence which applied
to one defendant from that which applied to another,
but ho,used this argument to show that this difficulty
would not result if one conspiracy only were charged.
jt was because three different conspiracies were
charged that it became necessary to discrimi-
nate the evidence. To try that question, let
them suppose an, indictment framed so as to comprise
the charges on the findings. By that indictment, eight
persons would be charged with conspiring to do Nos. 1
and 2 ; seven, Nos. 3 and 4 ; and three to do No. 5. If
evidence were offered affecting one of the parties to the
last conspiracy, the Judge would have to discriminate
between that evidence and evidence affecting the vvhole
et' !he parties to the other conspiracy. But if
they weie charged with one conspiracy, an aced one
-by, one could be evidence against all. lint the
ease in queation, the indictment charged only one ,
conspiracy, and the finding was for three conspiracies,
He would suppose that any of the eight persons whose
names appeared in this indictment were to be indicted
over again for the matter contained in the first count,

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