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

IRELAND.

THE STATE TRIALS.
SEVENTEENTH DAY.

COURT OF QUEEN'S. BENCH.
DUBLIN, FRIDAY, Fait. 2.

TUE 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. lam 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
cannot be allowed again ; and those who are disposed so
to signify their approbation or disapprobation of what
takes place in this Court, must be informed that the
Court is not the place to show any signs of such feeling;
and they must hold their tongues, and keep quiet.
Mr. WHITESIDE then said—l shall draw your attention
now, Gentlemen, to the charge in this indictment on the
subject of the Arbitration Courts. This single accusa-
tion is spread over a great .portion of the indictment,
and much dwelt upon by my friend, 'the Attorney-
General, in his address to you. I apprehend it would
astonish you very much if any of you were pre-
vented serving on this jury ou 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
submit that it is both a religious and moral duty, if
possible, 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'a 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
compoundingi of the dispute by accepting a compensa-
tion n the gross without entering into articles and items,
which it yis 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
statute law of the land recognises arbitration. By the
10th William 111. it is providad 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 Vic., 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 wh ere it
makes no positive enactment on the subject. (The Learned
gentleman here referred to the Friendly Societies' Act, and
several authoritiei 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
others that they "lived that those persons being dismissed
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 who became Repealers. It was long
afterwards that the act was done which led to. the
appointment of these ex justices as arbitrators, and it
was not the result of A common design. It arose from
the act of the Government. They saw that a number of
gentlemen of high respectability attended these repeal
meetings, and it is quite plain, from reading the corres•
pondence 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 auy one who was pledged to
the support of that measure ; but he afterwards assigns
as his reason for dismissing them, that after the
discussons in the House of Lords, and the declarations
made in Parliament by Sir R. Peel, 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 House 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
and unconstitutional 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 not 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 newspapers, 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 mainta:sed that the jurors were quite
right in doing so, for that it was full time that the griev-
ances of the soldiery should be inquired into. The me-
mory of this 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 e 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, had conducted himself with strict propriety—could
be guilty of a crime so horrible and atrocious. It was
the topic of general observation. Mr. O'Connell inci-
dentally, in the course of his speeches, made some allu-
sion to it; and a clergyman of the name of Power. also
wrote a letter en the subject, which was published in
the Pilot. Of that letter I will say nothing, for Mr.
Power is defended here by counsel.
CHIEF JUSTICE—There is no traverser before the
Court of the name of Power.
Mr. WHITESIDE-oh, no, my Lord, I am aware there
is not. What I meant to convey was, there is counsel
here for the gentleman who is responsible for the publi-
cation 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 traversers; and what I complain of is, that the
invisible gentleman with the scissors should have been
so exceedingly polite as to have introduced it into his
indictment for the purpose, forsooth, of proving a con-
spiracy against my client! No specific act is laid to.
Mr. O'Connell's charge,' designed for the purpose of
weaning the soldiery from their allegiance; and the head
and front 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
patience, i I
t not
couldth acitulotedo y
onotu
extractswi s h to
av ;IT
infinitum
iot
lunnt your
works, written by officers in the army, in which
the same doetrii.e is distinctly propounded. For my
part, I pass no opinion upon the subject, but I cannot see,
why theright of other parties to do E 9 should.be disputed.