The Sun.
London, England, 1844-07-05 00:00:00

by law established, and to submit the same ~
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the judgment and determination of other tribit." -*- 7 ' •-•'‘---
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nals to be constituted and contrived for that- purpese.T, •
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That was the charge in the indictment ;it thenasetlioW _ *V.::
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a vast number of overt acts, among which w e itttentoi;
ing and assembling a large number of persona ' eir. t (-----
January and October, 1843, am' making va ••la S_Ai ANT
tious and inflammatery speeches at those meetings, and
during that period causing those speeches to be pub- •
I lished in various newspapers. The overt acts ran to a •
great length, but he had state,l accurately the subject of
the first count. The second count is the same as the •
first, omitting the overt acts. The third count is the
same as the second, save that in the fourth charge the
words " unlawfully, maliciously, and seditiously," are
omitted. The fourth count is the same as the third,
omitting the charge as to the army, The fifth count
contains the first and second charges set forth in the
first count; omitting the overt acts. The sixth count
contains the fourth charge set forth in the first count,
omitting the words " unlawfully, maliciously, and sedi-
tiously," and the overt acts. The seventh count is the
same as the sixth, adding the words, "and especially by
the means -aforesaid to bring - about and accom-
plish a dissolution of the Legislative union
now subsisting between Great Britain and Ireland."
The eighth count contains the fifth charge set forth in
the first count, omitting the overt acts. The ninth count,
contains the fifth charge set forth in the first count,
omitting the intent therein charged and the overt acts,
but adding the following charge (that is to say) : "And,
to assume and usurp the prerogative of the Crown in
the establishment of courts for the administration of
taw." The tenth count is the same as the eighth, omit-
ting the intent stated in the fifth charge in the first count.
Th eleventh count charges the supposed conspiracy to
be to cause and procure meetings in divers places, and at.
divers times, in Ireland, "and by means of unlawful,
seditious, and inflamatory speeches and addresses to be
made and delivered at such meetings, and also, by means
of the publishing and causing and procuring to be pub-
lished, to and amongst her Majesty's subjects, divers
malicious, unlawful, and seditious writings and composi-
tions, to intimidate the Lords spritual and temporal, and
the Commons'of the. Parliament of the United Kingdom,
and thereby to. effect and bring about changes and alte-
rations in the laws and constitution of the realm as now
'by law established." Such were the several counts.
The record then proceeded to state the finding
of the jury .upon the several counts. The parties, when
called upon to plead, pleaded in abatement; they pleaded
that the bill ' was found by the grand jury upon the
evidence of witnesses that had not been properly sworn
in the Court of Queen's Bench in Ireland. These pleas
in abatement were over-ruled,-and the defendants then
pleaded not guilty, and upon that plea issue was joined,
and the trial Was appointed for a certain day. On that
any, on the jury being called, Mr. O'Connell challenged
the array. Mr. O'Connell says "that the said several
lists respectively were by the said Recorder at the said
;pedal sessions duly corrected, allowed and signed by
the said Recorder, pursuant to the statutable enactments
in such case made and provided, and that the several
persons whose names arc hereinafter mentioned
were then and there adjudged by the said Recorder
to have • the_ qualification hereinafter named, and
that the names of the said several persona were
then and there contained- in the said several lists
so corrected, allowed and signed as aforesaid; but the
said Daniel O'Connell says that the said Recorder did
not, as by the said statutable enactments is directed,
cause to be made out from said several last-mentioned
lists one general list containing the names of all persons
whose qualifications had been so allowed, arranged ac-
cording to rank and property, nor did the said Rcorder
thereupon or at all deliver such general list containing
such names to the Clerk of the Peace to be fairly
copied by said Clerk of the Peace in the same order as
by the said statutable enactments is directed, but on the
contrary thereof omitted so to do. And the said
Daniel O'Connell further says, that a certain paper
writing purporting to be a general list, purporting to be
made out from such several lists so corrected, al-
lowed and signed as aforesaid, was illegally and frau-
dulently made out by some person or persons unknown."
T. that challenge the Attorney-General of her Majesty
in Ireland demurred. So likewise the several defendants
all presented their challenges, and to their respective
challenges a like demurrer was filed. The record pro-
ceeded to state that those demurrers
.were overruled, and
judgment given for the Crown. It then proceeded to
state the empannelling of the jury, and their being
sworn to speak the truth. The appearance of the parties
was then set forth. It then proceeded to aver that the
jury found the verdict upon the indictment, which verdict
was contained in page 76 and the following pages. The
first finding was that eight of the defendants (there was
a ninth, who was dead) were guilty of so much of the
indictment as charged that they unlawfully, maliciously,
and seditiously endeavoured to create disaffection among
the subjects of the Queen, and to excite hatred and
eontempt of the Government ; that they " did
conspire - with each other" which words would
'be found material in a future stage of this
' argument—and with divers other persons whose names
were unkown, to raise discontent, and to excite contempt
of the Government, and to create jealousies between
different classes of her Majesty's subjects. In fact, the
whole eight were found guilty of the charges set forth
,n the first and second counts. The Learned Counsel
then proceeded to read the particulars of the finding of
the jury, and the sentence of the Court. In page 80, a
writ of error, coram nobis, was set forth. It appeared
that the Attorney-General did not take issue upon that,
but he joined, and, after the case had been argued, the
Court held that the error was not well assigned, and
that there was no error in truth, and gave judgment for
the Crown. My Lords, continued the Learned Counsel,
upon that judgment, given by the Court below, and also
upon the judgment originally given, writs of error have
been brought. My Lords, upon this record several objec-
tions appear to arise. I will state to your Lordships
what these objections are:—ln the first place, it is meant
to be insisted that these counts are too generally
framed to be properly the subject of an indictment ;
that the judgment was not formed upon evidence sworn
as required by the statute ; that the jury was not pro-
perly constituted ; that judgment had been passed upon
more offences than are charged in 'the indictment, than
have been presented by the grand jury, and than have
been pleaded by the defendants ; and that will apply to
the first, second, and third counts.;- that with respect to
the verdicts of acquittal in certain insances, no proper
judgment has been pronounced.
Lord CAMPBELL here put a question to the Learned
Counsel which was inaudible in the gallery.
Sir T. WILDE—It is insisted that these counts are
bad, for the reason I have stated, their being too gene-
rally framed, and not stating an indictable offence ; and
it is contended that, if any one of the counts is bad, the
judgment must be reversed altogether.
The LORD CHANCELLOR—De you make that a sepa-
rate position ?
Sir T. WILDE—I don't know that it is a separate posi-
tion; it is stated ratherby way of answer to anything that
may be urged, supposing the argument should not sa-
tisfy your Lordships that the whole of the counts are
bad. We mean tosinsist that if any one is bad the judg-
ment cannot be sustained. It is then stated that the
judgment is unlawful, inasmuch as the parties are rc•
quired to be in prison, not only till.-they have paid their
own fines and given their own recognizances, but also
till the others have paid their fines and given their re-
cognizances. Thirdly, the judgment requires the pri-
soners to give security for their good behaviour for seven
years, but it does not say from what period that seven
years is to commence. The judgment is also defective
in its form in not stating where and when the jury was
sworn, and it is also alleged that there is an uncertainty
whether the jury was sworn, or whether they merely
affirmed ; and if they affirmed it is not stated that they
were of 'that description of persons whose affirmation
would qualify them to be upon the jury. It is also stated
that whether the jury was sworn or affirmed they did
not do so in the legal words, " we do solemnly affirm,"
which are in the statute, but "we affirm" simply. It is
also stated that the order for the continuance of
the trial out of term is also informal, and that
there is a discontinuance on the record. These
are the points. that will be presented to your
Lordships, and it is my intention principally to ad-
dress myself to the character of the indictment and the
effect of the finding of the jury, and to insist that with
respect to the finding it is erroneous in several particu-
lars, upon grounds that entitle the defendants to the
judgment of the Court. This, my. Lords, is, I believe,
the first time that an indictment for conspiracy has come
before your Lordships for judgment.
The LORD CHANCELLOR—AIIow me to ask, Sir Thomas
Wilde, if your statement includes -all the points that are
to be argued by all the Counsel ?
Sir T. WILDE—They do, my Lord. I am not aware,
my Lord, that I have omitted any. I was stating that
this is the first time that an indictment for conspiracy
has come before your Lordships for judgment. The
nature of an indictment and conspiracy has always been
the subject of much comment, and I have never con-
versed with any legal :authority wlio did not express
himself with respect to the form of such an indict-
ment, that it was inconsistent with justice.
The foundation of law on this subject seems
to have been the 33d of Edward 1., and I be-
lieve there was no attempt made. to prosecute any one
for a conspiracy from that time down to the trial of the
seven Bishops. They were tried for an offence similar
to one of the charges in this indictment ; the seven
Bishops were tried for attempting to encroach on the
royal prerogative, by the presentation of a certain peti-
tion. There was a charge in this indictment for en-
croaching on the royal prerogative, by creating courts
of justice. From the time of- the seven Bishops to the
year 1796 there was no indictment for any conspiracy
to commit a political offence. Mr. Redhead Yoske was
the first person tried on such an indictment, but one
count of it charged him with a riot, and being found
guilty of that it was useless for him to contest the le-
gality of the indictment. The next case was that of
Henry Hunt, he was charged on one count with attend-
ing an unlawful assembly. Mr. Hunt defended himself,
so was not competent to contest the legal form of the
indictment on which lie was tried. That case brings us
down to a very modern period.
The LORD CHANCELLOR—WAS Mr. Hunt only con-
victed on one count ?
Lord BROUGHAM —Was he sent to prison for 30 months
for attending an unlawful assembly ?
Sir T. NVILDE —For a conspiracy for procuring and
attending an unlawful assembly. When your Lordships
consider the great expense attending the prosecution of
a writ of error before this House, you will perceive that
it is not in the power of many defendants to contest or
impeach the form of an indictment and conspiracy. The
Courts of Westminster Hall would not feel inclined to
deal with such a question, but before this tribunal parties
are justified in bringing it. And it is one of the most
important duties of this House in its appellate jurisdiction
to review the law as it is laid down and acted on in the
courts below, or as it may have been retained and acted
on till challenged as informal. I think the form of this
kind of indictment is utterly inconsistent with justice, and
at variance with all the principles of justice, which re.