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

of February next, at the hour of ten o'clock in the fore-
noon ; and that the said Daniel O'Connell, John O'Con-
' nell, Thomas Steele, Thomas Mathew Ray, Charles
Gavan Duffy, the Rev. Thomas Tierney, John Gray,
and Richard Barrett, do again appear at the bar of this
court at that time, in order that the said trial may be
continued ; and now at this day, that is to say, on the
said first day of February, at the hour aforesaid, the
sail Attorney-General for our said Lady the Queen
comes into court here, and the said Daniel O'Connell,
John O'Connell, Thomas Steele, Thomas Mathew Ray,
Charles Gavan Duffy, the Rev. Thomas Tierney, John
Gray,_and Richard Barrett, appear at the bar of the said
court here, as in that behalf directed as aforesaid, and
the said jurors so empanelled and sworn as aforesaid
also come, and the said trial of the said issues
is thereupon continued for a certain time, the
same being necessary for the purpose thereof,
that is to say, until and upon Monday, the twelfth day
of February, in the year of our Lord one thousand eight
hundred and forty-four. And now at this day, that is
to say, on Monday, the said twelfth day of February,
the said jurors, so empannelled and sworn as aforesaid to
try the said issues, upon their oath say, that as to the
premises in the said first and second counts of the said
indictment respectively charged as aforesaid, the said
Daniel O'Connell, John O'Connell, Thomas Steele,
Thomas Mathew Ray, Charles Gavan Duffy, the Rev.
Thomas Tierney, John Gray, and Richard Barrett, are
and each of them is guilty of so much thereof as charges
them for that they unlawfully, maliciously, and sedi-
tiously contriving, intending, and devising to raise and
create discontent and disaffection amongst the liege sub-
jects of our said Lady the Queen, and to excite the said
liege subjects 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 said subjects,
did unlawfully, maliciously, and seditiously combine,
conspire, confederate, and agree with each other, and
with divers other persons, whose names. are to the jurors
unknown, to raise and create discontent and disaffection
amongst the liege subjects of our said Lady the Queen,
and to excite such subjects to hatred and contempt of
the Government and Constitution of this realm as by
law established, and to unlawful and seditious opposition
to the said Government and Constitution, and also to
stir up jealousies, hatred, and ill-will between different
classes of her Majesty's subjects, and especially to pro-
mote amongst her Majesty's subjects in Ireland feelings
of and hostility towards and against her Ma-
jesty's subjects in the other parts of Great Britain and
Ireland, and especially in that part of the said United
Kingdom called England, in the said first and second
counts of the said indictment respectively charged as
aforesaid, in manner and form as therein is so above
charged as aforesaid ; and as to the residue of the said
premises in the said first and second counts of the said
indictment respectively charged as aforesaid, the
said jurors, upon their oath aforesaid, say that
the said Thomas Tierney is not guilty thereof."
On the 15th day of April cometh the Attorney-General
and parties into Court. Now, that was the place where
there was the discontinuance—that, from the time of
the parties being found guilty, there was no mention of
when the parties were to be brought up to receive
judgment.
The LORD CHANCELLOR—The trial was out of term,
under the authority of the Act; it was continued during
the vacation under the authority of the Act.

Mr. I'Fecocx admitted that the trial took place out
of term, but he submitted that the order was not suffi-
nent to meet what was required by the Act
)f the Ist and 2d William IV., c. 31, sec. 3,
.ender which the days for holding terms were altered.
The day originally fixed for the trial was the 15th of
January, and the trial took place during the term. On
:he 13th of January an order was made, not that a cer-
tain number of days should be,fixed for the trial, but an
alternative, or rather a conditional, order, that in case
the trial should not be completed by a certain day, ad-
ditional days should be added. The question was, whe-
ther that was an order within the meaning of the Act of
Parliament—whether the Court ought not, in the first
place, to have appointed a certain number of days for the
trial at bar, making those days a part of the term. The
Learned Counsel then read extracts from the record.
The order for the trial at bar was made in Michaelmas
term. The preceding part of the proceedings showed
that in Michaelmas term the Court gave judgment
against the traversers upon the plea of abatement. Their
Lordships would observe, that before the order of the
15th of January there was an order made in Michaelmas
term, that the trial should take place at. bar.
The order for the trial at bar having been made, the
jury were summoned for that day, and before that day
namely, on the 13th January, two days before the return
of the venire, an order was made that in case the trial,
fixed for the 15th January, should not have terminated
on the labt day of Hilary term, then Thursday, the Ist '.f
February next, and every succeeding day till the sth of
April, should be appointed for its continuation, and such
days should be taken to be part of the term. The ques-
tion was whether, if the Court originally made an order
for the trial at bar to take place on the 15th of January,
they could, on the 13th of January, made an order in the
alternative that, in case the trial should not be concluded'
by a certain day, then that and certain succeeding days
should be added. The words of the Act of Parliament
were, " provided that any trial at bar shall be directed
by any of the said Courts, it shall be competent to the
judges of the Court to appoint such day or days for the
trial as they should think fit." Now, unless the order
were an order within the meaning of the Act of Parlia-
ment the trial at bar was clearly in error.
The LORD CHANCELLOR-The Act is to be considered
as a remedial Act.

Mr. PEACOCK—The question was whether an order
of the court, under that Act, was in compliance with
that Act. He contended that the court should have
made a positive order that these further days should be
added for the trial at bar. In this case it was merely
ordered that in case the trial should not be completed by
a certain day then aiditional days should be fixed.
The LORD CHANCELLOR—WouId it not be sufficient
that the day were fixed for the continuance of the trial ?

Mr. PEACOCK—Yes, but this was not an order that
the days should v. hereby fixed for the continuation,
but that in case the trial should not be completed, then
certain days should be appointed.
The LORD CHANCELLOR—And that the days so fixed
for the continuation shall, accordingly, for the purpose
of such trial, be taken for part of the term.
Mr. PEACOCK said the Court would not say that incase
it should be necessary, then certain days should be ap-
pointed. The trial took place on the 12th of February,
and the jury having given their verdict on that day, the
defendant had no notice to appear in Court on the fol-
lowing term, therefore, whether the days from the Ist of
January to the 12th of February, were days of term,
was immaterial. He referred to " Coke upon Littleton,"
who, having spoken of discontinuance, says,." there is an-
other erroneous proceeding that consisteth in misdoing,
as when one process is awarded instead of another, or a
day given, that wai not a legal day. This is a miscon-
tinuance, and if the defendant does not choose to appear
to it, it is an error ; but, if he did appear, then it was
not a discontinuance." In the present case there is no
continuance at all, and, therefore, it is a discontinuance.
It might be said that this was a technical objection, but
he was not there to say what the law ought to be, but
w hat it was.

The LORD CITANCFLLOR—The question is not whether
it is a technical objection, but whether it is a valid one.
Mr. PEACOCK cited the case of Bradley v. Banks, in
James, 283, which was an appeal against which an ob-
jection was taken. It was moved for the defendant,
that this appeal had been discontinued, because the
writ of appeal was returnable on the 16th of October,
and the capias ought to have been awarded on the same
day, whereas the capias was dated on the 23d, seven
days being thus omitted. It was argued that it was a
manifest discontinuance, and the court so resolved. He
also cited the case of the Queen v. Hutching,
in the 2d of Lord Raymond's Reports, p. 1,061.
The Learned Gentleman also quoted the King v. Wal-
cott, 4th Modern Reports, page 395, and several cases
in 2 Hawkins' Pleas of the Crown, book 2, page 27,
sec. 84. The next point to which he would call their
Lordships' attention, was that no judgment of acquittal
had been given in this case upon the finding of "not
guilty" of the jury, either as regarded Mr. Daniel O'Con-
nell or any of the other parties. The Learned Gentle-
man quoted Viners' Abridgment, and Rolls' Abridgment,
In support of his view upon this point. The next point
to which he would call the attention of their Lord-
ships was that the verdict and the judgment were
bad, inasmuch as it ordered the parties to enter
into recognisances to keep the peace,' and to be of
good behaviour for the space of seven years next ensuing
the acknowledgment thereof. The question was, whether
that judgment was good. It was doubted. At one time,
as: a part of its judgment, the Court ordered parties to
enter into recognisances to keep the peace. That case
was considered before this House, in the case of Hart v.
White, in the 30th vol. of the State Trials, and the part
applicable to the case would be found in page 1334.
The question was, whether the Court of Queen's Bench
had power to send the defendant to any prison beyond
their own jurisdiction, and whether sureties for a rea-
sonable time for good behaviour could be required. The
judges said, they had no doubt whatever as to their
authority to .send him to any prison in England ; and
they were equally of opinion that the court possessed
the authority legally to require such surety for a rea-
sonable time. The question was, whether this
recognizance was one requiring surety for a
reasonable time. He submitted that it was
not. The time fixed was seven years from
the time of the acknowledgment of the recognizance
and the- party was ordered to be imprisoned until the
recognisance should be given. Now if that sentence were
valid, and if the person were unable to find sureties, he
might be imprisoned for the whole term of his life. He
submitted that to make it a reasonable time, the time
ought to be fixed ; for instance, if he had been sentenced
to be imprisoned for one, and then to enter into recog-
nisances to keep the peace for seven years from the time
of his imprisonment, that sentence would be valid, be-
cause if he could not find the sureties, he would be im-
prisoned so long, and at the expiration of that time
he would be discharged, because he would have
in fact fulfilled his recognisances, he would have kept the
peace for seven years, he would have been under re-
straint during that time. But under the present sentence
he never would get released at all, if he could not
procure recoo.misances. (The Learned Gentleman then
quoted the judgment in the case of White and Hart, vol.
30 of the State Trials,page 1321.) In that case the judg-
ment was a legal one, for the parties were sentenced to
enter into recognisances to keep the peace for five years
from the expiration of the term of imprisonment. So
that if they were unable to find recognisances, .they
would be discharged at the end of the five years ; but in
this case it might be imprisonment for life. The sen-
tence upon Daniel O'Connell was in the following
words :—" Whereupon all and singular the premises
being seen and fully understood by the Court of our said
Lady the Queen now here, it is considered and adjudged
by the said'Court here that the said- Daniel O'ConneH
for his offences aforesaid, do pay a fine to our