The Sun.
London, England, 1844-02-05 00:00:00

IRELAND.

Pr
FIE STATE TRIALS.
SEVENTEENTH DAY.

COURT OF QUEEN'S BENCH.
, DT1131441, FAIDAT, FEB. 2

•
THE QUEEN V. DANIEL O'CONNELL AND OTHERS.
On Mr. Whiteside entering the Court he was received
with loud cheers. The Judges took their seats at ten
o'clock. Mr. Whiteside rose to resume his speech.
The CHIEF JUSTICE—Mr. Whiteside, I beg you will
wait for a moment. ram not now addressing myself to
you, Mr. Whiteside, but I would wish the people in the
gallery would attend to what the Court feel right to say
with regard to the impropriety which took place yester-
day evening, A great deal of cheering and improper
noise took place—a just tribute due to the distinguished
talents of Mr. 'Whiteside, but a great indecorum, and
improperly committed before the Court. Such a thing
canreut be allowed again ; and those who are disposed so
to signify their approbation or disapprobation of what
Bikes.pla,ce in this. Court, must be informed that the
Court is nt-t the place to show any signs of such feeling;
and thev, must hold their tongues, and keep quiet.
MV:tiVHITESIDE then said—l shall draw your attention
130W.,.Gentlemen, to the charge in this indictment on the
suKiect of the Arbitration Courts. This single accuse-
ti•sn •is _spread over a great portion of the indictment,
*and -much dwelt upon by my friend, the Attorney-
C-eneral, in his address to you. I apprehend it would
astonish • you' very much if any of you were pre-
verated serving on this jury on the ground that
you recommended one of your brother jurors not
to go to law. You. must recollect the thing to be
done, and advised to be done, and how it is to be
done--to see if the act itself be legal, and if the means
adopted for carrying out of the act be legal also. I
antimit that it is both a religious and moral duty, if
'ossible, to compromise the subject-matter of
litigation between two parties, and you will find
it in that book, which I am sure is a high
authority in your estimation. Next, it is a moral
duty. In Paley's Moral Philosophy entitled " Litiga-
tion," you will find these words—" But, since it is sup-
posed to- be undertaken simply with a view to the ends
of justice and society, the prosecutor of the action is
bound to confine himself to the cheapest process which
will accomplish these ends, as well as to consent to any
peaceable expedient for the same purpose ; as to a refer-
ence in which the arbitrators can do what the law can-
not, divide the damage when the fault is mutual, or to a
compounding of the dispute by accepting a compensa-
tion in the-gross without entering into articles and items,
which it is often very difficult to adjust separately."
Therefore, the thing recommended to be done is both a
religious and moral duty. The law itself respects arbitra-
tion, and encourages it by every means, and it has occurred
frequently in our experience, that while a suit was pend-
ing, and, after great expense, was brought before a judge
and jury, it has been suggested by counsel or the court
that .the subject-matter of that dispute shall be referred
by Consent to discreet men to adjudicate upon it. The
state to law of the land recognises arbitration. By the
10th William 111. it is provided that it shall be lawful
to refer matters to arbitration.- By two later statutes,
one which is called by the name of the Learned Gentle-
man that passed it, Pigot's Act, 3 and 4 Vie., there are
provisions introduced to facilitate arbitration and compel
the attendance of witnesses. By the sth and 6th Wil-
liam IV., it is also recognised, and by the sth and 6th
Victoria, where the matter in dispute is under 201., the
arbitration awards are relieved from stamp duty. The
statute law recommends arbitration to be adopted where it
makes no positive enactment on the subject. (The Learned
gentlemanahere referred to the Friendly Societies' Act, and
several authorities to show that arbitration was recog-
nised. It was said they did more—they not only induced
parties to refer suits to arbitration, but that those justices
that had been dismissed should be selected as arbitrators.
That has been most strongly pressed by the Attorney-
General, and has been over and over again urged. I
admit frankly that it was said by Mr. O'Connell and
othera that they hoped that those persons being dis Missed
justices residing in some parts -of the country should be
selected or appointed to act on behalf of the people ; and
they hoped-the time would come when the people would
be at liberty to elect their magistrates. It arose from a
matter merely- accidental, and never was intended or con
templated by those whd became Repealers. It was long
afterwards that the -act Was 'done which led to the
appointment of these ex justices as arbitrators, and it
warnot the result of a common design. It
.arose from
the 'act 'of the Government. They saw that a number of
gentlenien of high respectability attended these repeal
meetings; and it. is quite plain, from reading the corres-
ponilence of the Lord Chancellor, that he did not eonsi-
der; they,had thereby done an illegal act. In his letter
of the 28th of May, 1843, he says that it had been- his
earnest determination not to interfere with expression of
opinion by any magistrate in respect. to the repeal of
the Union, although, from his arrival in this country, he
felt it to be inconsistent with his duty to appoint to the
commission of the peace any one who was pledged to
the support of that measure ; but he afterwards assigns
as 'his reason for dismissing them, that after the
distussOns in the House of vLords, and the declarations
made j. Parliament by Sir R. reel, in answer to the
plain and distinct question of Lord Jocelyn, he felt,
it his duty to ask whether they intended to attend
any more of these meetings, and if so, to dismiss them:
That letter plainly showed that attending these
meetings originally was not an illegal act, and his
letter was then merely a warning. Gentlemen, it is not-
my duty, consistent with the high respect I entertain for
that.distinguished functionary, to- enter on a discussion
of the grounds on which he proceeded ; but there were
men of high authority who expressed their opinions upon
it, and, among others, two who had filled the office of
Lord Chancellor—l mean Lord Cottenham and Lord
Campbell—who, in. the .1-louse of Lords, disputed
those grounds, and- said very plainly that it was un-
constitutional to dismiss those magistrates. That
a justice of the peace had the same right to expres
and entertain his opinion as any other man in the
community, and that for having so done it was illegal
andsinconstitutional to dismiss them. When the mem-
bers. of the Repeal Association saw that such high legal
authorities entertained that opinion in reference to the
dismissal of these magistrates, and' considered that the
declaration against repeal, on which their dismissal was
based, did hot come directly from her Majesty, or in any
constitutional shape upon her authority, they did—
and it is not for me to say who was right or who was
wrong—seeing that these gentlemen possessed the con-
fidence of the people, that the people were piqued at
their dismissal, recommended their appointment as ar-
bitrators, and, in the words of Mr. O'Connell, "recom-
mended that all miserable petty-session litigation
should be put an end to, and that all disputes arising
in those districts where the magistrates had been
dismissed, should be referred to.them as arbitrators, and
that he hoped the_ day would come when he should see
the -magistrates appointed by the people." Gentlemen,
I defend that assertion of Mr. O'Connell. He had a
right to make that observation. I have yet to learn
from- Mr. Solicitor-General that it is illegal to express
a wish to walk in the ancient footsteps of the Constitu-
tion, and that a desire to return to the ancient state of
the. wise administration of justice is a combination
and, a conspiracy. The more we investigate the
old- rules of the common law of England, the more
deep:. is our respect for, and attachment to them.
They- were based on the soundest principles of
constitutional freedom, and they only serve to show
hoW strong should be our attachment to those princi-
ples which form the basis of public freedom and liberty.
Gentlemen, the next charge brought against the
traversers is that of endeavouring to excite disaffection
and discontent amongst her Majesty's subjects serving
in the_ army. It is a singular charge, and peculiarly so
from 'this remarkable' circumstance, that it is not
asserted that the traversers undertook or conceived
any project for the purpose of exciting mutiny amongst
the troops, or encouraging the practice of desertion.
It is merely charged against us that we endeavoured
to • excite discontent and disaffection; but it is
not stated amongst whom we - endeavoured to ex-
cite discontent, or against whom disaffection. Mr.
O'Connell's remarks in reference to the army arose,
in the first instance, out of a most tragical transaction
which occurred last summer. A soldier dropped
suddenly dead while on drill, and the Coroner's jury,
which sat upon the body, added to their verdict a state-
ment to the effect that his death was induced by great
fatigue consequent upon excessive drilling. This ver-
dict gave rise to an infinity of public discussion, parti-
cularly in the newspap.ers, some of which contended that
the 'jurors were not justified in appending that state-
ment, for that it was subversive of the discipline, while
others' as Stoutly maintained that the jurors were :.quite
right in doing so, for that it was full time that the griev-
anees of the soldiery should be inquired into. The me-
mory ofthis occurrence was yet fresh in the public mind,
when another equally tragic event occurred. A private
belonging to the sth Fusiliers, a Protestant and an
Englishman, stepped out of the ranks, when on a drill,
and shot the adjutant, a Scotch officer, dead upon the
spot. This dreadful occurrence also gave rise to much
discussion, and men asked each other whether there.
must not be something wrong in the discipline of the
army—something exceedingly oppressive upon the sol-
diery—when a man of good character—who, up to that
time,. bad cOnductedlimself with strict propriety—could
be guilty of is crime so horrible and atrocious: It was
the topic- -of general observation. Mr. O'Connell inci-
dentally, in the course of his speeches, made seine au_
siorf to' it; and a clergyman, of the name of Power, also
wrote a; letter on the subject, which was published in
the Pilot. Of that letter I will say nothing, for Mr.
Foliar is defended here by counsel.
Ouse JusTicE—There is no traverser before the
Court of the name of Power.

Mr. WHITESIDE—Oh, no, my Lord, I am aware there
is net. What I meant to convey was, there is counsel
here for the gentleman who is responsible for the publi-
catiot of that letter. That letter may, perhaps, be fairly
enough adduced in evidence against Mr. Barrett, but I
.deny that it can be adduced in evidence against the
other friversers.; and what I complain of is, that the
iistvfsf legentleman with the scissors should have been
so exceedingly pate 4s to _etitztreducedqvinto 10E-,
indTetinent for the_purpoiwiforiocith, of proving a'dBfl-*
spiragY against . ! No specific act is laid to
Mr.
.O'Conuas charge, designed for the purpoSe of
weaniqgt,he soldiery from their allegiance; and the head
a mtfrout of his offending Consists in his having expressed
it as his opinion, that sergeants ought to be more fre-
quently promoted to commissions. But, Gentlemen,
were it not that I do not wish to weary out your
patience, I could quote you extracts ad infinitum from
military works, written by officers in the army, in which
the'same doctrine is distinctly_ propounded. .For my
part; I pass no opinion upon the subject, but rcannot see
why the right of other parties to do so should be disputed.

Gentlemen, the Attorney-General has called the tra-
versers severely to task for having adopted the resolu-
tion of the old volunteers, and for having quoted in
their speeches the words f some illustrious men, now
no more, who expressed it as their opinion that in point
of constitmtional principle and upon constitutional
reasoning, the Union was null and void. He told you that
what is stated by Members of Parliament against an
Act before it becomes law cannot justify a man in op-
posing that Act of Parliament after it shall have be-
come the law of the land. That is certainly true to a
Certain. extent ; but I cannot help thinking that the
Attorney-General is endeavouring to push the principle
somewhat too far: He finds fault with us for having
quoted the words of that distinguished man, Mr. Saurin,
but I do not think that he had any right to call us to
task for having done so. Why should not Mr. O'Con-
nell refer' to Mr. Saurin's words ? They are public
property—they are the property of the Irish people.
Gentlemen, I will trouble you with one word more—it is
the declaration of the Lord Fitzgerald and Vesci, who at
the time was prime Sergeant of Ireland—a very lucrative
office. He sat in the House of Commons at the time, and
hear what he says—" Posterity will inquire into the means
by which this Union was carried. If the question had never
been Made, I should have declined the discussion of it; but
as it has I must declare that it is not, in myopinion, within
the moral competence of Parliament to destroy and ex-
tinguish itself, and with it the rights and liberties of
those who created it. I acknowledge the competency of
the English Parliament to adopt the union with Scot-
land; because the number of the representatives and the
Peerage only was increased, which, as the Crown, by its
prerogative may do, so may the act of the Legislature.
But after the Union the constitution of England conti-
nued, but -the constitution of Scotland was dispersed. And
of this opinion must the great advocate of constitutional
establishment have been. The House of Lords was
not competent to dissolve the House of Commons,
nor even to dissolve itself, nor to abdicate if it would
its proportion in the legislation of the king-
dom ; that though a king may abdicate in his
own person he cannot abdicate for the monarchy.
The constituent parts of a state are obliged to hold
their public faith with each other. Sueh a com
pact may, with respect to Great Britain, be a union,
but with respect to Ireland, it will be a revolution.
The Scotch Parliament was elected with a notice to the
people that such a measure would be submitted to their
discussion. How different the present case. Will the
measure proposed benefit the country. and _remove the
causes of the discontent ? In my opinion not. It will,
on the contrary, increase the agitation of the one, and
aggravate the other ? Will it tranquillise this great
metropolis, which, so lately as the last summer,
by its valour and spirit, preserved this country
to ourselves and to great Britain, while the
Government of the country lay shuddering in the
Castle ? Whom, then will it gratify ? Not the loyal-
ists,'lbut the United Irishmen. Nine out often of the
men execrate the measure—the women are unanimous
against it. Would to God that they would emulate the
Athenian ladies, and subject the man who would vote for
it to the ban of their displeasure. Will it give you any
stronger claim on Great Britain ? No ; and lam satis-
fied that the honour of the British nation would reject
such an insinuation. Would Great Britain, that arms
for the deliverance of Europe, that seized Prussia, Sar-
dinia, the Emperor, and guarantees his loans, that
makes Egypt an object of his care—will she refuse her
protection to Ireland ?" He concludes—" Posterity
inquire into the means by which this Union is car-
ried," Gentlemen, yon see what that man clearly foresaw.
After numerous references to authorities the Learned
Gentlemen continued:—lt is curious, too, that the Act
of Union contains noprovision that its finality should not
be discussed; and, therefore, the Attorney-General's ar-
gument against the right of the traversers to do so fails.
He then-read an extract from Molyneux's book on the
state of Ireland, quoted the passage in which the writer
questioned the right- of the English Government to de-
prive the Irish people of their ancient privileges, which
they had, possessed for 5.00 years, and proceeded to say:
—The English were so unable to get over the arguments
contained in that book, that they ordered it to be burned
by the common hangman—a circumstance which in-
creases very much my estimation of the work.—( A
laugh.) I will next call your attention to the considera-
tion of what Mr. O'Connell has asserted about the
revival of the Irish Parliament, and T will first, how-
ever; dispose- of his proposition for the "Renewed
action of the Irish Parliament." Mr. O'Connell in that
extraordinary document sets forth the whole of the
Irish population, and states his (ipinion, that household
suffrage -is the best. Why, Gentlemen, that is the
suffrage we have at present in Dublin. Every man who
has a house worth ten pounds possesses a vote,,and there
are very few houses in Dublin that_ are not worth 101.
The Duke of Richmond, who was examined by Mr.
Erskine on the trial of Hardy,' was of opinion that the
whole system of the franchise was corrupt, and that
every man who had not committed a crime ought to
have a vote ; and that there-ought to, be Annual Parlia-:
ments, Vote by Ballott &c.;i14,1 which was very well for
a duke. And in his letter colonel Sharman. he (the
Duke of Richmond) states that he is of opinion-that the
two nations should have -but one Tarliament,-provided
the Sovereign .of England should- reside a reasonable
time in this couittry,-and hold-her Imperial. Parliament
in itAivhitti'he said her Majesty Could do with a scratch
of her pen—and, Gentlemen, I hope
_she may. It is' a
positive insult to the undersea-Ming of wily' man to say
that such a state of things would:: lot be it positive
benefit to the country, improve herarade, her manufac-
„tares, and her resources. -Even :OUT own professiop
would be benefited by- it; for the residence of her most.
Gracious Majesty in this country, would be no bar to her
loyal subjects ' to go to law.—;(Laughter) " -The
Attorney-Genera! adopted the Socratic doctrine
in his argument with
.11i : he ' put queStions to
us.. Now, I am not to, be. held Accountable for the.
doctrines propounded by, others,. who have spoken
before me. But it can be said, its was alleged, that
it is revolutionary to state that every town possessing
10,000 inhabitants should have a representative? Why,
that is but the principle of the Reform Bill. Mr.
O'Connell also says that every man who marries shall
have a vote. 1 think there can be no objection on that
' score—and :that the conspiracy on that ground may be
abandoned ; and certainly such a tjuestion could not be
submitted to a more favourable jury, for yon are all
married.—(Laughter.) Has Mr. O'Connell said that her
Majesty was to be pulled from her throne—the House of
Peers to be abolished—and the House of Commons ex-
tingushed? No. What then has he done? He has
been guilty of the monstrous proceeding of extending
' the Royal prerogative? The Attorney-General—the
legal champion of the Crown—charges it as a crime
against Mr. O'Connell that he said the Queen has a
larger, wider, and more extended prerogative than her
Majesty possesses. Where is the authority in which it
is laid down that the man who propounded such a propo-
sition is to be charged as a conspirator? What authority
is there for saying that Mr. Duffy, Mr. Steele, or any
one else, is to be carged with conspiracy, because when
they heard such a proposition they did not say to the per-
son propounding it cite us some authority—cite us your
case? Suppose Mr. O'Connell, instead of saying that
Parliament should be reformed—that a Parliament
should be given to Ireland—said, Sir, I am of opinion
that Parliament is a humbug—a nuisance ; that her
Majesty has a perfect right to rule, independent of
either House of Parliament. Why, what would be the
consequence ? I cite a case in point. A celebrated writer
in England wrote a book, in which he said that the
House of Commons might be dispensed with. That was
voted to be a scandalous and seditious libel by the House,
and the Attorney-General of the day was directed to
prosecute the writer. He was accordingly prosecuted,
and the case is to be found in Peake's cases in the King's
Bench. It is called the King v. Reeves. Lord Kenyon
there laid it down that the power of free discussion was
the right of every subject of this country—a right to the
free exercise of which we were indebted,. more than to
any other claimed by Englishmen, for the enjoyment of
all the blessings we possess—for the Reformation—
the Revolution—and our emancipation from the ty-
ranny of the Stuarts, &c. &c.—and that in a free coun-
try like this the productions of a political writer should
not be hardly dealt with. He directed the jury to read
through the whole book, and then form their judgment
on the entire work. That was his charge, and do you
wonder that the people of England should be so much
attached to the judicial system under which they live,
when you hear laid down by the Lord Chief Justice of
England a doctrine so constitutional—so favourable to
freedom and the right of the subject as that doctrine?
The jury in that case retired; they had the book
before them; and though they decided that the book
was improper, yet, nevertheless, they thought
that he was not actuated by any bad inten-
.tion; and Lord Kenyon said he approved of
their verdict. That was the doctrine pro-
pounded from the Bench, and the jury having looked
with the eye of men of sense, qualified their verdict by
saying they deprecated what was said by the defendant,
the mode in which he conducted his argumeat, but they
found their verdict of not guilty, and the Lord Chief
Justice said he approved of their decision. Therefore, if Mr.
O'Nutiell said her Majeity may-dispense with the House
of Lordelhe would be safe according to the authority of
that case. `z.-Gentlemen, the power and prerogative of
the Crown to issue writs seems to have been a very ex-
tensive power—at least,. as it was formerly exercised.
In the reign of Elizabeth, she, wishing to have a majo-
rity, sent the writs to -only fifty boroughs and left out
ten. There are very remarkable instances where the
Crown have withheld writs from places entitled to send
representatives to Parliament; -as to numbers. Looking
to the. Parliamentary history; we find the most
elaborate discourse ever spoken. It was by Sir
John Davies, the Attorney-General to King, James the
First, and was to be found in Leland's " History of Ire-
land." In that discourse you will see the right. King
James the First had for what he did—to create forty
boroughs in the north'of Ireland'in one day. It was,
questioned in that Parliament whether he had a right to
do so—the question was discussed—carried over to Eng-
land, and it was decided in favour of his right, and those
persons so elected under his writs sat in Parliament to
the period of the union. The last instance of the kind
was the issuing of a writ for the borough of Newark, and
it was decided in the House of Commons, by a very
large majority, that the Sovereign had a right to create
the borough. Mr. O'Connell's argument was this, that
the Sovereign has still the power to create boroughs in
England. Chitty, in his work on the prerogatives of the
Cretin, enters into that question, and says there was
ilethiag to take away the prerogatives of the Crown in
that respect. Then, if it does exist, the union is in the
power of the Sovereign, and that learned writer says it
is in the power of the Crown to create boroughs as they
did before.

Mr. Justice "'Ewing—What is the date of that work ?
Mr. WarrEtium—lt was published in the year 1820-
since the union. Whether the argument be right or wrong,
which is not the question before you, is a man to be
branded as a conspirator because, without knowing
whether Mr. O'Connell was right or wrong—and Mr.
Duffy will pardon me, for I don't think he has read
sufficiently on the subject—he adopted his opinions ?

THE SUN, LONDON,