The Sun.
London, England, 1844-07-06 00:00:00

Lord BROUGHAM—The words of the finding are " to
meet together in large numbers for the unlawful and se-
ditious purpose," &c.
The LORD CHANCELLOR—As I understand the objec-
.tion, it is', that they are not found guilty of having con-
aoired unlawfully and seditiously to meet for an unlaw-
ful and Seditious object.
Mr. PEACoCK said that was the case. Daniel O'Connell,
"Barrett and Duffy were found guilty of so much of the
residue of the re.nainder as related to the charge of
endeavouring to corrupt the army ; but they:were
=quitted of something, and he contended that this was
-the portion of which they were acquitted. Mr. Tierney
was acquitted of the greater portion. Five were ac-
quitted of that portion relating to the corruption of the
rarmy, and three of the rest ofane charge.
The LORD CHANCELLOR—I-Does not that mean that the
'tree Were found_guilty of all ?
Mr. PEACOCK—No.Tney were acquitted of something—
' of all the residue of the remainder. Now they were
charged with conspiring, unlawfully, and seditiously to
meet: theywere found guilty oreonspiring to cause to meet.
The LORD CHANCELLOR—TO cause them to meet for
an unlawful and sediticees purpose?
Mr. PEAcoCK—Yes my Lord. The jury had pro•
fessed, however, to find them net guilty of that offence;
they had found them guilty of all the residue of the re-
mainder except that, and they must, therefore, have in-
tended to find them not guilty of something. There
was also.another part of the residue of the remainder :
the parties were not only charged with conspiring with
each other, but with Mr. Tierney. It was clear that
such a conspiracy might take place ; but the death of
one of the conspirators could not acquit the others,
and yet by the verdict of the jury all were acquitted
of the charge of conspiring. with Mr. Tierney.,_—Tbey
were found guilty of conspiring with eight persons, and
not with the ninth. Now those very parties might be
indicted to-morrow with conspiring with Mr. Tierney ;
and what had they got to defend themselves with but
the finding of the jury ?
The LORD CHANCELLOR—Suppose they were indicted
with conspiring with Mr. Tyrrell ?
Mr. PEACOCK—The finding of the jury would be a
good answer, but he should have to deal with that more
fully by and bye. Now although the jury had found them
not guilty of that part of the charge, the Court bad given
no judgment of acquittal. The jury had also found Mr.
Tierney not guilty of certain parts of the indictment, and
the Attorney-General had entered a no!le prosequi ; but
there still remained in the indictment five persons who
had been acquitted of attempting to excite discontent
in the army - those persona were John O'Connell,
Mr. Steele, Dr. Gray, and Mr. Ray, and the Court
in giving judgment upon them gave it for that on
which thy had been found guilty, but they had given
no judgment of acquittal. He submitted that on this
finding eight persons had been found guilty of a joint
conspiracy, No. I. Seven were found guilty of conspi-
racy with each other, but not with the eighth, to do No.
2. Three had been found guilty of conspiracy with eeeli
other, but not with any other parties, to do No. 3. He
supposed his Learned Friend the Attorney-General
-would contend that it was an offence to excite discontent
in the army. If that was so, Daniel O'Conuell, Mr.
Deify, and Mr. Barrett had been found only guilty
of it ; and how could that be said to be any portion
of the conspiracy of the eight to do some-
thing else, that was no portion of the conspiracy
of the three to raise discontent in the army ? Unless the
Attorney-General could say that it was an offence—
unless he could do that he could not support the finding
of the jury. The jury had found the parties guilty of
three conspiracies, and the jury had given judgment
against the parties for three conspiracies, in which
they had been found guilty on the first count. Which
of the threw offences was the punishment for, if it was
not for the whole ? And if it was fur the whole then
Mr. O'Connell had been convicted of three offences
under one indictment that only charged him with one.
Was it to be supposed that the Court would give the
same amount Of punishment to a man that was found
guilty of one conspiracy as it would upon a man who had
been fcundguilty of fifteen? The Court, it was true, in
cases of misdemeanour, had a discretionary punishment,
and in the exercise of that discretion they had sentenced
Mr. O'Connell to a year's imprisonment and a large fine.
Mr. John O'Connell not having been flexed guilty of
conspiring to cause discontent in the army, was to have
nine months ; whereas Daniel O'Connell, who bad been
found guilty of the same offence, was to have one year's
imprisonment and pay double the amount of fine. Why
was that ? Was it not because Mr. Daniel O'Connell
as considered by the Court to have been guilty of a
greater number of offences, though th-ir nature was the
same, than Mr. John O'Connell ? The one had been
found guilty of simple conspiracy, the other of endea-
vouring to cause discontent in the army. Therefore he
thought their Lordships must assume that the Court of
Queen's Bench in Ireland, in apportioning the punish-
ment, had taken into consideration the finding of the
istry, and the extent to which the defendants had been
fa,end guilty ; and he submitted that if they had
pas.,ed judgment upon the defendants for se-
veral offences for which they had never been
indicaed, and which bad never been presented
against -them by the grand jury, their punishment had
been aggravated by the finding of the common jury upon
the, first count, and that consequently judgment had
been pronounced against them for a greater number of
offenth% than they had been found guilty of. The jury
having; acquitted some of the parties of a conspiracy, to
cause discontent in the army,. and the petty jury having
found. them not guilty of that conspiracy, he appre-
hendedthat the conspiracy of which the others had been
found guilty was a separate and distinct conspiracy, and
,that the conspiracy to cause discontent in the army was
* separate and distinct' conspiracy from that of which
they were found guilty conjointly with the other five
in the first part of this finding. Suppose seven persons
were to go into one room and conspire to do
certain things. Three of them said " Let us
all conspire to do two things." The other
four said, " No, we'll not go to the extent of
No. 1,. but we'll go the extent of No. 2." In that case,
he contended, the three would not be guilty of conspir-
ing to do No. 1 and No. 2. The conspiracy, in law, de-
pended not on the act, but on the combination and agree-
ecent bet Ween the parties. If seven parties agreed to do
one thing, it was perfectly distinct from an agreement
between three of them to do another thing ; it was a
distinct conspiracy and separate offence. Me thought
he could not better illustrate this than by reading the
charge of Mr. Baron Rolfe to the jury who trieeMr.
Feargus O'Connor. The Learned Counsel then read an
extract from the charge. The Judge said, that in order
to. convict all or three a the defendants, they must con-
vict theta of one and the same conspiracy. If they
thought that all the defendants, or any number
of them, had combined -together for the purpose of
carrying the Charter, and some of them said, " I will
not use any violence, I will give no countenance to any-
thing nut voluntary abstinence from labour ;" and
others said, " I will give my countenance not only to
voluntary, but also to forced abstinence ;" if they found
the parties all agreeing in one act they might convict
them ail upon separate counts. So here, Mr. Daniel
O'Connell, Mr. Barrett, and Mr. Duffy, might have been
found guilty—assuming the evidence to be sufficient—
under separate and distinct counts, of having conspired
together to cause discontent in the army. But having
been found guilty under the first count of one joint
offence, they could not afterwards be found guilty of a
separate and distinct offence.
Lord C.I3IPDELI4—The qUestion is whether it was a
separate and distinct offend', or a part of the general
off.nce.
Mr. PRecocre—Suppose all of them had been found
guilty of conspiring to create discontent in the army,
except Mr. Daniel O'Comiel4 and then Mr. Daniel
O'Gonnell himself had been found guilty of conspiring to
cause discontent in the army. Would that be a good
conspiracy ? One person could not conspire. If
Yr. Daniel O'Connell was found guilty of alone conspiring
to create discontent in the army, that finding was faulty.
With whom did he conspire ? Certainly not with the
others, who were nut found guilty of conspiring with him.
If Mr. Daniel O'Connell had alone been found guilty
of conspiring to cause discontent in the army, the finding
that the other seven were guilty of some other conspi-
racy, would not support the finding as to Mr. Daniel
O'(jorinvil of being guilty of conspiring to cause dis-
content in the army. If that were so, then Mr. Daniel
O'Connell and the others, were found guilty of three
.distiuct offences. Now, the same rule, he believed,.held
An every cue, in civil cases as well as in criminal. If
several persons were charged in an action of trespass,
'wit-it a joint trespass, and some of them were found
guilty of part of the trespass, but all could not be found
guilty jointly of part; each must then bo found guilty of
:.some other part separately. Unless their Lordships
-coud come to the conclusion that a conspiracy be-
tween eight persons to do one thing, was the same as a
conspiracy between other persons to do another thing,
.he thought their Lordships would agree with him in
:what he had stated. The grand jury had presented
tten offences, and the common jury bad found
-the parties guilty of fifteen. In one action
J'er trespass in which several parties are charged
with one joint offence, which is proved against
some of them, and not against another, the jury must
utcquit him. lie quoted, in support of his argument, the
case of Heron, Alexander, and others (3d Campbell's
-Reports, p. 35), in which Lord Ellenborough said, that
they :could not find one prisoner guilty of a separate
offence ; and the other two guilty of one offence. Ile
:believed that the rule was uniaersally adopted in courts
sa justice. It was impossible to cite any case, either
criminal or civil, in which several parties charged with
-one joint trespass, and the whole of them are found
:guilty of a part of the trespass, each of them is found
:guilty of separate parts of the same offence. If a jury
“eould go into that, it might eo into as many conspiracies
.e. 3 it phased ; and by ringing.- the changes on all the
suliarges of the indictment, it might find Mr. O'Connell
:guilty of a hundred conspiracies ; whereas, when the
delendants have been found guilty of one joint conspi-
xsey, this count is, as it were, exhausted, and the jury
lad no right to go on finding them guilty of any more.
31r. D. O'Connell was thus found guilty of three
oewnees, he did not mean to say that he might not have
been found guilty of any one of theist ; he would
.not go into that point., but he contended that
on. party ought to be found guilty of more than one
arena,. He submitted that defendants could not be
found guilty ()lone joint offence and then guilty of sepa-
rate and eistinet offences. The next point was the
Finding on the third count, which charged all the defen-
darts with " unlawfully, maliciously, and seditiously,
contriving, intending, mid devising to raise and create
discontent and disaffection amongst the liege subjects of
our said Lady the Queen, and to excite the said liege
alubjeete to hatred and contempt of the Government and
constitution of this realm as by law established, and to
excite hatred, jealousies, and amongst different
classes of the :aid: subjects, and to create discontent and
silsaffettien amongst slivers of the said subjects, and
4,,reeav litkl'eiiers her Majesty's subjects serving in ber
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CUANCELLifR.—IiiiV you left your 61'31

—Yes, my Lord:

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