The Sun.
London, England, 1844-07-04 00:00:00

quire that a man charged under it shall be adequately,
informed by its terms and shape of the crime imputed
to him, so that he may know how to prepare his defence;
and one of the most important objects of an indictment
of this kind is that the defendupt may have the
charges presented to him in such a f(lriu
that this House, as an appellate court, should have the
opportunity of seeing and judging whether, on the
several points, a crime has been committed. The charge
involving the crime, may embrace an innocent act, which
could only be made an act of guilt by leaving the person
charged with the means of seeing.and knowing whether
he was convicted on a charge involving legal guilt, and
to deprivb the criminal of appeal in such a case would
not be consistent with the general principles of law, and
which should receive great consideration before it re-
ceived the sanction of the House. Looking to the doc-
trine of conspiracy, it was impossible not to feel the ex-
treme mischief which it had done, and is calculated tc
do; the crime of conspiracy does not consist in an act
done; it is complete when the intention is formed.
Much is left to uncertainty; it is not like any
other crime. You were left to infer inten-
tions from acts of a very doubtful nature. Most
of the political cases that have occurred in which in-
justice is supposed to have been done, have occurred in
cases of political conspiracy. To say that the party is
protected by the jury because the matter is for the jury,
is to give an answer supposed to afford safety to the sub-
ject. But the whole history of the country shows this
to he utterly fallacious. The objects of persons in the worst
periods of our history have always been accomplished
through juries. The difference between the safety which
prevailed at one time, and the insecurity which existed
at another, had been when the power of appeal to pro-
cure other judgments on the questions of law on the
nature and character of the crime, upon the nature and
character of the evidence, was when facilities were given
fur appeal in those several matters: How stands the
case of conspiracy here ? Your Lordships are aware
of the facts to which this indictment refers, but the
question here is as to the form of the indictment, and I
ask of your Lordships if such an indictment can be sus-
mined, what security is there for the subject if those
parties have been tried and convicted according to law ?
The charges are of such a nature as to convey
nothing sufficient to enable your Lordships to say
that they constitute an illegal act or not. In the
course of the trial it was held that those acts
could not be tendered in a case of misdemeanour,
and when your Lordships look to the indictment pur-
porting to prove those charges, you will find that they
are made up from circumstances occurring from January
to October, a period of ten months, by the selection of
speeches of different persons, not made in the presence
of the others charged, of reports of newspapers, done in
the ordinary course of business, giving the ,news of the
day. One of the objects was to procure a dissolution of
the Act of Union between Great Britain and Ireland—a
great political object, no doubt; but when in the history
of this country was it, that certain parties did not hold
opinions on some great political subject ? That con-
formity of action should result from coincidence of
opinion, might be naturally expected—not upon any par-
ticular transaction in which the parties had any indivi-
dual interest, not conspiring to obtain goods by fraud, to
affect the character or interests of individuals, but in a
conspiracy to obtain Parliamentskry reform, to obtain a
repeal of the Corn-laws, to prevent Catholic Emancipa•
tion, that was to say, there must be a coincidence of
opinion, leading to uniformity of action upon any great
event affecting the interests of the country. There was
a charge of exciting the subjects of her Majesty to dis-
affection agaiast the Government. In what age of the
country was it that persons had not endea-
voured to excite disaffection against the Government?
Did the Government mean the Constitution, or the form
of the Government, or the persons administering it ?
Why, may not the present Government be charged with
exciting disaffection against the late GoVernment ?
Each of the parties of the present day seemed desirous
of producing disaffection and hatred towards what was
called the Government ? If the parties were guilty of
making seditious speeches, let them be tried for it. I
would call attention to what was done at the Revolution
in France. There was then a conspiracy to excite dis-
affection against the Government. One drunken woman
uttered a few idle words, tending, it was supposed, to
produce hatred towards the Government, and she was
hanged for it. I could find many parallels to this in-
diconent, where the parties charged have been hanged. I
would ask of your Lordships to consider whether a
charge of this kind, seeking to establish guilt by those
means, can be the subject of a prosecution ?
But here a course of conduct is permitted to be persisted
in for two months—and there is no limit to it—the time
,may
.be extended indefinitely ;until- the- vietiaa,is caught.
Here are these transactions allowed to go on, until by
an accumulation of acts, each innocent in itself, it is
sought to take the chance of the weakness, or the in-
firmity, or the prejudices of the jury, to lead them to a
conclusion, not that any particular act has been done,
but to some conclusion which is utterly false and un-
founded—that the defendants met together and con-
spired. Do your Lordships believe that the jury were
told that Government endeavoured to ascertain when and
where those parties entered into a conspiracy ? that
they were not to convict thein unless they could come to
the conclusion that there really had been some comoion
consent and agreement between the parties ? No such
thing. In an ordinary case, such as a conspir-
acy to defraud or obtain money under false
pretences, if you see parties acting together for
that common illegal object, it might be evidence to go to
the jury, and it might be for them to consider whether the
so acting together could be considered as proof of some
common agreement. But when a case is on in which
great public interests are .concerned the principle-does
not apply—then the acting in concert cannot be taken as
proof of conspiracy, and it mu:t be shown that the
several parties actually met and conspired. My Lords,
I submit that all the counts of the indictment from the
fifth to the end are bad—bad for generality. They are
rrarned in terms unknown to the law, and are wholly
destitute of legal precision. The fifth count charges that
the said Daniel O'Connell, John O'Connell, Thomas
Steele, Thomas Mathew Ray, Charles Gavan Duffy,
Thomas Tierney, Peter James Tyrrell, John Gray, and
Richard Barrett, unlawfully, maliciously, and seditiously
contriving, intending, and devising to cause and create
discontent and disaffection amongst the liege subjects of
our said Lady the Queen, and to excite the said
subjects to hatred and contempt of the Government
and Constitution of this realm as by law established
heretofore ; to wit on the thirteenth day of February, in
the year of our Lord one thousand eight hundred and
forty-three, with force and arms, to wit, at the parish of
St. Mark, in the county and the city of Dublin aforesaid,
unlawfully, maliciously and seditiously did combine,
conspire, confederate, and agree with each other, and
with divers other persons whose names are to the jurors
aforesaid unknown, to raise and create discontent and
disaffection amongst the liege subjects of our said Lady
the Queen, and to excite the said subjects to hatred and
contempt of the Government and Constitution of this
realm, as by law established, and to unlawful and sedi-
tious opposition to the said Government and Constitu-
tion ; and also to stir up jealonsies, hatred, and
between different classes of her Majesty's subjects, arid
especially to promote amongst her Majesty's subjects in
Ireland feelings of and hostility towards and
against ber Majesty's subjects in the other parts of the
said United Kingdom ; and especially in that par of the
said United Kingdom called England, in contempt of our
.said -Lady- ~-khes Queen and the laws of this
realm,• to • the evil example of all others in
'the -like case offending, and against the peace of
our' :said. Lady the Queen, her crown and dignity.
Now; What is meant by creating discontent and disaffec-
tion ? What is the legal meaning of these words ? What
is the crime against which a party thus charged is called
to defend himself ? Why, at the time the Bill was pro-
posed granting Catholic Emancipation, there were many
persons who endeavoured to persuade the people that if
the King consented to the measure lie would be violating
his coronation oath—that it would introduce Popery,
and upset the Church. They endeavoured to excite a
spirit of hostility to the Government which supported
that measure. Now, who were those men who thus en-
deavoured to excite discontent and disaffection ? The
words conveyed no legal charge. To what are we in-
debted for every legal change which is brought about
but to the attempt made to excite discontent and dis-
affection with the existing state of things ? It is impos-
sible to produce any change except by such means. Now
ought such words to be introduced into a criminal in-
dict-ment. and left to the jury without any explanation
of their legal meaning ? Are the words to be looked out
in "Johnson's Dictionary," and is the meaning,
.tho--res
found to be attached to them ? The charge of disaffec •
tion does not necessarily imply guilt. Some e4f the
greatest patriots that ever lived !nit ht be liable to a
similar charge. They are also charged with unlawful
and seditious opposition to the Government, Now,
what is meant by illegal opposition ? Who is to decide
what is meant by seditious opposition ? Is it to be left
to the jury ? They will determine, according to their
party politics ; if they are of the same party with
the Government, they will probably consider all opposition
seditious ; if they ~are opposed to it, it will be hard
to convince them that any apposition can be seditious.
But how is a man to know what he is called upon to de-
fend himself against when he is accused of seditious
opposition ? It may be a refusal to pay taxes—it may
be some other act which is to shew that he has been
guilty of' seditious opposition. Now what act except the
commission of the crime of sedition—a crime to be sepa-
rately proved—is there to give meaning to the words
seditious opposition. If the word seditious is to be re-
jected as surplusage, as a word of no meaning, then the
count stands for ofibring opposition to the Government,
which is no crime at all. Now, your Lordships should
recollect that you are now dealing with a criminal charge,
and that, therefore, the most rigid construction is called
for. I submit that the fifth count is of;on general a
nature—that it embodies no legal charge, and that from
the wording of it the party charged cannot tell
what it is that he is called upon to answer.
It is nf the utmost importance, in order to secure the
due administration of justice, that there should be upoo
every criminal charge sufficient to enable a court cog ap-
peal to see more clearly than they could in she present
case what was attempted to be charged, in the present
case no bill of exception, cesuld be tendered to the sum-
ming up of tee, I.earted Judge, and the only course, ex
e,e4.e„; ceeming to that House, would be to apply fora new
trial. When they could not bring the cheep of the
judge before a higher tribuoal, the iodietnaeut ought most
clearly to describe the offence of which the
c.hargett Po importance of ineeee
usoeus of defence, and having a faJar ty was
fair
it
one necessity of the indictment
ne
, ...elle definite charge which the party might
nipple with, had been clearly stated by Lard Ellenbo-
rough in the case of the King v. Perry. In that case the
man suffered his whole imprisonment before his writ of
error was argued, although upon the arguing of that
writ of error, he was found to be an,innocetnt man. (The
Learned Counsel then proceeded to refer to the state-
ments of Lord Ellenborough in the case of the King v.
Perry, and then proceeded.) In the count to which
I am now referring, thee are no overt acts