The Sun.
London, England, 1844-09-03 00:00:00

FROM THE MORNING PAPERS OF THIS DAT.

CHRONICLE.—The opinions of the English
judges were delivered yesterday in the House of
Lores upon the eleven questions which had been re-
ferred to them for consideration, in the case of the
Queen v. O'Connell. The House ordered the opi-
nions to be printed, and adjourned over the further
consideration of the case itself to Wednesday morn-
ing, when the final judgment will be delivered. As
the principles involved in the discussion are of as
much importance as even the consequences which
nay follow from the final decision of this extraordi-
nary case, we shall take the liberty of adverting to
the opinions which have been pronounced, with all
the respect which is due to the moral, intellectual,
and professional excellence of the judges of this coun-
try, but with the freedom and fulness which are j us-
tified by the almost unparalleled importance and sin-
gularity of the transaction itself. We shall confine
ourselves to a single point upon the present occasion.
Amongst the arguments addressed to the House of
Lords upon the part of the defendants, it was said
that, as there were some bad counts in the indictment ;
as the defendants had been found guilty upon each ; as
the judgment was general, and the quantum of punish-
ment a matter in the discretion of the judges, it was to
be presumed that a part, at least, of the punishment
must have been awarded upon the bad counts, and
that as it was impossible to ascertain how much had
been, as the whole may have been, so awarded, the
defendants may in fact have been punished for that
which was, in law, no offence. This argument was
adopted by Mr. Justice Coltman and Mr. Baron
Parke, who, upon this part of the case, have ex-
pressed their opinions to be for the reversal of the
Judgment of the Court below. The other six Judges
who attended the House of Lords upon the argu-
ment, have declared, on the other hand, that they will
presume that the Irish Court of Queen's Bench must
have awarded the whole of the punishment upon the
good counts, and none of it upon the bad, inasmuch
as that Court must be presumed to know what counts
of the indictment are bad and what counts are good.
The English judges having made this presumption
in favour of the infallibility of the legal perspicacity
of their brothers in Ireland, proceed to decide
unanimously that the sixth and seventh counts of the
present indictment are " so bad, that if the indict-
ment consisted of those counts alone, it would be im-
possible to give any judgment against the defendants
upon the verdict." We entreat the most particular
attention of the reader to what we are next going to
state. The Court of Queen's Bench in Ireland was
moved to arrest the judgment, upon the ground that
the 6th and 7th counts, as well indeed as all the other
counts in the indictment, were bad. But the Court
refused the application upon the ground, to use the
language of one of themselves, " that the sixth and
seventh counts were unexceptionable." The counts
in question are declared by the Irish judges to be
" unexceptionably good.' The same counts are de-
clared by the English judges to be incurably bad ;
and the English judges having so expressly decided,
presume that the Irish judges, who, in the case ac-
tually under consideration, have declared bad counts
to be good, invariably know the difference between
good counts, and bad! Never in all time was a
presumption more totally annihilated by contradictory
facts ! In delivering judgment upon the motion in
arrest of judgment, Mr. Justice Perrin expressly de-
clared that he concurred in refusing the motion, upon
the ground that the " 6th and 7th counts were unex-
ceptionable." Mr. Justice Crampton thought it un-
necessary to enter into the merits of the first five
counts, upon the ground that the 6th and 7th were
" legally good and sufficient in substance and in
form," whilst the Lord Chief Justice declared every
count of the indictment to be good and sufficient in
law, and " particularly the sixth, seventh, and re-
maining ones." Those counts upon which the Court
in Ireland mainly relied in support of the judgment,
are now expressly and unanimously declared by the
English judges to be illegal and invalid; whilst the
same judges declare that the Irish judges, who have
absolutely, deliberately, and repeatedly, come to a
wrong conclusion upon this point in this very case,
must be presumed to be infallible upon such a point in
every case; and this presumption of general infallibi-
lity is made the ground for supporting the Irish
judgment in an argument by which the same
judgment is proved to be wrong, whilst it is presumed
to be right. In a view to the practical consequences,
this point is even more importantthan as an exhibition
of logical inconsistency, or as the assumption of a state
of affairs in opposition to the indubitable facts of the
case. The English judges take for granted, as the
6th and 7th counts are bad, that the Irish judges did
not award any part of the punishment in reference
to those counts. Now, the part of the charge exclu-
sively contained in those counts, is that of creating
intimidation by the exhibition of great physical force.
In reference to this matter, Chief Justice Penne-
father, in refusing the motion in arrest of judgment,
observed, " Take any one count of the remaining
set," (after the sth) in these counts" (the 6th and
now
e
7th &c.), " those dangerous offences are set out in
a way which, in my opinion, requires no further cer-
tainty. The jury have awarded upon each of them,
and it see not why the judgment should be arrested."
Mr. Justice Burton, in delivering the final judg-
ment of the Court, declared that the " main offence
to the traversers was that they had conspired
to procure the repeal of the union by intimidation to
be produced by the exhibition of great physical force."
From these statements it appears incontrovertible
that in fixing the quantum of the punishment, the
Court of Queen's Bench not only had regard to the
offence which was charged in the 6th and 7th counts,
" mainly" inflicted in
reference
charged in those counts,
whichut
thecounts
to
punishment
a
lavraesd by the English judges
bt t
hr
areoffence
declared
c
to be so deficient in the necessary elements of legality,
that if they stood alone upon the record, no judgment
could be given against the defendants. Such is the
extraordinary position in which the ease and the
parties are placed by only one part of the decision of
yesterday.
HERALD.—Yesterday, the House of Lords re-
assembled to receive the answers of the judges to the
questions proposed to them in the writ-of-error cases
of " The Queen r. Gray," and " The Queen v.
O'Connell and others." Eight of the judges appeared
in person, and the answer of a ninth, Mr. Justice
Coleridge, absent from indisposition, was delivered by
Chief Justice Tindal. In the case of " The
Queen v. Gray," all the judge; present, except Mr.
Baron Parke dissentient, agreed to reverse the judg-
ment of the Court below. In the case of " The
Queen v. O'Connell and others," six of the judges
present, and Mr. Justice Coleridge, agreed to affirm
the judgment of the Irish Court of Queen's Bench.
Baron Parke and Mr. Justice Coltman dissentient,
but upon grounds purely technical. The proper
time to consider the opinions of the judges, and the
elaborate arguments by which these opinions are
severally supported, will have arrived after the
House of Lords shall have pronounced its judg-
ment. At present, however, it may be allowed
to us to observe—First, that the judges are
without exception, unanimous in pronouncing the
repeal conspiracy illegal, criminal, deserving of
punishment, and in the case sufficiently proved. Se-
condly, all the judges, without exception, treat as
idle and invalid those objections to the construction
of the jury which have been made the ground of so
much angry complaint in the Irish Courts, in the
press, and in Parliament. Thirdly, not one of the
objections to which the answers of the judges allow
any weight, much or little, was raised in the Court
below. They all escaped the sagacity of Mr. O'Con-
nell himself and of his nine learned and experienced
advocates ; and whatever, therefore, their value, it
is plain that they were the reverse of obvious—a full
justification of the Irish Court—and ground for a
strong presumption that they are to be ascribed solely
to the difference of practice in the two countries.
TIMES.---A considerable majority of the English
judges have answered the questions propounded by
the House of Lords by affirming the validity of the
verdict and the judgment in the case of "The Queen
v. O'Connell." These opinions, we suppose, may be
considered as the groundwork of the judgment of the
Lords on the Writ of Error, and we may anticipate
that the supreme tribunal of appeal will pronounce
against the reversal of the judgment of the Court
below. We do not of course profess to foretell the
effect which this announcement will produce upon
Irish minds. The moral obliquity of vision with
which everything English is regarded will doubtless
pervert a judicial decision, founded on legal argu-
ments and irrespective of all but legal considerations,
into the expression of a political prejudice and Saxon
hostility. The Nation and its gentle brethren of the
Repeal press will doubtless tell the Irish people, and the
mass of the. Irish people will believe it when they are
told, that the English judges are animated with a
profound hatred of Ireland, and that their refusal to
reverse the proceedings of the Queens Bench in
Dublin is the result of deliberate malignity and na-
tional injustice ! And the fact that no other result
was anticipated after the arguments of the traversers'
counsel had been heard and replied to, will be tor-
tured into a sign of extreme unfairness, bigotry, and
wrong. But we trust that there are persons even in
the Repeal party who will look with a calmer eye
upon the proceedings in the House of Lords, and will
acknowledge the patient attention and lawyer-like
consideration which the case of the traversers has
received from the English judges, both during the
progress of the trial and since its conclusion. That
the judges are not unanimous proves, what it would
be superfluous to prove in England—that party feel-
ing has nothing to do with the formation of a judicial
inference on a question of law; while the high autho-
rity which the eminence and learning of Mr. Baron
Parke give W every sentence be utters on points of

law, makes us more strongly appreciate the value of
the numerical majority by whom his opinions are
overruled. At the same time we are rejoiced to see
that the Irish Court of Queen's Bench has been saved
from the odium and the disgrace of having sentenced
several persons to a gaol on a conviction generally
condemned by sound lawyers for looseness and infor-
mality. The case was fully and ably argued at the
bar of the House; and yesterday the judges entered
into its technical merits with a minute::ess, a particu-
larity, and also a certain degree of disagreement upon
peculiar points of objection, which, taken together,
must preclude the suspicion of apathy or antipathy—
of bigotry or impatience on their part. Supposing,
then, that the House of Lords will square their judg•
ment by these judicial opinions, the traversers will
abide in prison till the expiration of the period for
which they were sentenced, unless the Crown be
pleased to exercise its prerogative in their behalf by
curtailing the duration of their confinement. On
this subject we have already expressed our opi-
nion, and we confess that, having seen the
majesty of the law vindicated, we should have
no objection to seeing its severity relaxed against
those who, while they are suffering its penal-
ties, reject the proffer of mercy with all the
pertinacity of voluntary but ostentatious martyrdom.
O'Connell and his parasites are in gaol; and this is
a strong prima facie evidence of defeat. When a
man is sent to gaol, his opponents may fairly be said
to have the upper hand. A prison is a hard test of
the vitality of a party. O'Connell is in this predi-
cament ; he has been check-mated at the game of
agitation. His imprisonment has been a moral vic-
tory on the part of Government. It has shown a
determined and successful resolution not to tamper
with men leagued to dissolve the integrity of the
empire. . So far it has evinced the courage and con-
stitutional principles of an English Cabinet, bound to
support the union between the two countries. But,
this object attained, it is a matter worthy of consi-
deration, how far it is expedient to continue the pu-
nishment of a man who knows full well that the
sympathies of a people with its demagogues are most
keenly roused by the severity, as they are most effec-
tively allayed by the indifference, of Courts and
Ministries ; and who, if released from his present
situation, would be reduced to the alternative of un-
popular tranquillity, or unmeaning, because fore-
warned, agitation. We do not, indeed, think that
the pacification of Ireland will absolutely turn upon
any conduct of the Government towards the tra-
versers, or upon any other measure; but we think
it generally politic to be generous and forgiving,
when generosity and forgiveness can be exercised
without present loss or future compromise.