The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1875-03-22

English Ministers may say II IL better to yield
something Of the demand OF those moderate and
legal gentlemen than have all the felons In Ire
land coming numbering at our gates; for they
dare still to term me a felon, although they know
that never was felon; never was tried. never
was convicted never was lawfully imprisoned.
AL this Is matter which needs to be cleared up.
THE PEOPLE WAKING UP.
In the meantime, this contest has reused the
people out OF kind or apathy which seemed to
be creeping over Them and before the present
struggle is over trust every Irishman will un-
derstand the right policy which 1t behooves him
to follow with the English-vlz., TO discredit their
courts, to spit upon the franchise which they pre-
tend to allow US and especially, TO overthrow the
whole system OF Parliamentary representation,
which Is not only the most deadly machinery by
which our oppression is carried on. but also fur
nishes the cunningest excuse for asserting that
we consent to and aid In that oppression.
JOHN Mitchell.
THE LEGAL ASPECT OF THE CASE.
LONDON, March 8. 1875.
To THE EDITOR OF THE HERALD:-
1t seems that neither the heightened debate,
which took place in our House OF Commons ON the
18th OF February nor the various articles ana
letters which have since appeared in our leading
journals, have succeeded by any means in satisfy
Ing the public as 10 the position OF the man whom
the electors OF Tpperary delight to honor. AS the
matter Is regarded your side OF the Atlantic
with an interest only less than that which 1t
creates here, perhaps l may be pardoned If 1 add
a contribution to the voluminous but fragmentary
literature which is already IN existence upon the
subject.
DIsRAEII's TACT.
On the occasion referred to above the Prime
Minister moved resolution to the effect that
John Mitchell had become, and at that time con-
tinued, incapable OF being elected or returned q
member OF the House. He was followed by the
junior member for Limerick, VINO, armed with an
opinion from his leader and colleague (couched.
however. in language SO mild that 1t "might
fairly be argued" that his leader considered the
position anything but tmpregnabe) argued that
transportation" might fairly be interpreted to
mean nothing more than actual punishment out OF
the country and that the term OF Mr.. Mitchel's
transportation having elapsed. he had. therefore
endured his sentence. This free definition out
OF a lawyers mouth created much amusement.
and was combated with some vigor by the Prime
Minister. who quoted In support of his opinion
whether by accident or design we cannot tell, to
except the learned gentleman whose statement he
was controvertlng.
The attention OF the House was next occupied
by the Attorney General OF the late administra-
ton, VINO commenced with remark which, II 1t
meant anything, must have meant that the ques-
ton would have been better referred to the de-
cision of judicial tribunal, and then, not so much,
perhaps for the purpose OF harassing the govern
ment as OF raising discussion OF That sort which
10 dear to the thoroughbred lawyers soul, pro-
ceeded to administer interrogarories to his sue
cessor.
Sir Richard Baggallay, In reply. pointed out that
the House had, in the case OF O'Donovan Rosa,
declared its intention TO retain the right Of de-
Gliding such questions. He might have gone
little further ana SHOWN the impossibility Of
adopting such course as that suggested The
right OF determining all matters touching the
election OF their own members, according to Sir
T. E. May, has been regularly claimed and exer-
clsed since the time OF Queen Elizabeth. This
right was in part resigned by the House, for pur.
poses OF convenience, by the Parliamentary Elec-
tons act 1885, whereby the trial OF election petit.
tlons was handed over to the English and Irish
Courts OF Common Pleas. Those who are Of
opinion. like Sir q. James, that IL would have been
more advisable to refer the question to judicial
tribunal would do well to observe that IN.
der this act the quef slon OF the validity
OF an election can only be raised by
]. Some person who voted or had right to vote
At the election to which the petition relates.
2. Some person claiming to have had right to
be returned or elected at such election
8. Some person alleging himself to have been
candidate 1T sucn election.
And that the government not coming under
any OF these heads, so far had no means OF refer.
ring the matter to judicial cognzance. And further
more. that the only other means whereby such
question could be raised before court OF justice
would be by an arrest OF Mitchell, with view to
compelling him to complete the unexhausted por-
tiou OF mis- sentence.
This rather marsh ana somewhat doubtful step
the government were for several reasons unwill.
ing to take, and the particularly az 1t might
not have decided the Issue before the House.
Mltcnel's condemnation, OF course, would have
settled the question: but an acquittal would have
been simply declaration that the law was power
less to take cognizance Of the procedure whereby
he had relieved himself from the restraint which
II had previously imposed upon him.
WAS HE LIABLE TO PENALTY
It was then admitted by the Attorney General
and re.admitted by the Solicitor General for Ire.
land tnat Mitchell was not liable to any penalty
under the. provisions OF the act. The Solicitor
General for England wisely confined himself TO
the immediate question at issue. With all
difference to sucn high authority I venture
to differ from this opinion. In mitigation OF this
audacity it may be remarked that the opinion in
question does not in reality carry the same weight
OF authority as 1t would seem to DO entitled to
from the position Of It's propouniers, for it Is toll
eraDly well known that the practice OF the English
Attorney General has not lain particularly in the
criminal courts while that Of the Irish solicitor
General has NOS lain particularly in any court at
all. The words OF which the Interpretation il in
question had better be cited here:-
II any person sentenced or ordered to De trans
ported snail he afterward at large within
any part OF the United Kingdom without some
lawful cause, before the expiration or his or her
term OF transportation or Punishment, overy sucn
person shall be guilty OF felony, &c.
The meaning OF the word transportation" is
well discussed by writer In the Times VINO
Judging by the reason OF the thing" has arrived
at Q very sensible conclusion :-''Transporta
includes detention and servltude in the place to