THE UNIVERSITY OF ILLINOIS LIBRARY From the collection of James Collins, Drumcondra, Ireland. Purchased, 1918. 9AIS8 Ob6i i'40'sS UBRARY BOUND BY ' JF. ?Pilfe(nBton, ^ I DUBLIN. ^ REPORT OF THE TRIAL WILLIAM SMITH O’BRIPTN, FOR HIGH TREASON, AT THE SPECIAL COMMISSION FOR THE CO. TIPPERARY, HELD AT CLONMEL, SEPTEMBER AND OCTOBER, 1848; WITH THE JUDGMENT OE THE COURT OF QUEEN’S BENCH, IRELAND, AND OF THE HOUSE OF LORDS, ON THE WRITS OF ERROR. BY JOHN GEORHE HODGES, GOVERNMENT SHORT-HAND WRITER, DUBLIN: ALEXANDER THOAI, PRINTER AND PUBLISHER 87, ABBEY-STREET. im. / DUBLIN : PRINTED BY ALEXANDER TIIOM^ 87 , ABBEY-STREET. HunianlUes Preservation Project SZ''3<' (r>b ^ ^ \ I sr SPECIAL COMMISSION, CO. TIPPEP.ARY. 13rest5ing JuUges. THE RIGHT HONOURABLE THE LORD CHIEF JUSTICE. THE RIGHT HONOURABLE LORD CHIEF JUSTICE DOHERTY. THE RIGHT HONOURABLE MR. JUSTICE MOORE. Counsel for tte Croton. THE RIGHT HON. J. H. MONAHAN, HER MAJESTY’S ATTORNEY-GENERAL; THE HONOURABLE JOHN HATCHELL, HER MAJESTY’S SOLICITOR-GENERAL MR. J. S. SCOTT, Q.C.; MR. M. R. SAUSSE ; AND MR. LYNCH. Croton Solicitor. WILLIAM KEMMIS, ESQ. Clerk of tte Croton. HENRY PEDDER, ESQ. Counsel for tfie ^^risoner. MR. WHITESIDE, Q.C.; MR. FRANCIS FITZGERALD; SIR C. O’LOGHLEN; AND MR. T. H. BARTON. Solicitor for t$e ^Prisoner. ROBERT POTTER, ESQ. 4D4 1 l°l I Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/reportoftrialofw00obri_0 contents. Pago Opening the Commission, . ... .1 The Grand Jury, . . . . . .1 The Charge of the Lord Chief Justice to the Grand Jury, . 1 The Queen v. William Smith O'Brien, Terence Bellew McManus, James Orchard, Denis Tyne, and Patrick O Donnell. True Bills found, ...... 7 Indictment, ....... 7 Furnishing Copies of Indictment to the Prisoners, and Assignment of Counsel, ....... 15 True Bills found against Thomas Francis Meagher and Patrick O’Bonohoe, . . . . . . .18 The Queen v. Meagher. Furnishing Copy of Indictment to the Prisoner, and Assignment of Counsel, . . . . . . .18 The Queen v. O'Donohoe. Furnishing Copy of Indictment to the Prisoner, and Assignment of Counsel, . . . . . . .19 The Queen v. Meagher. Application for a Copy of the Jury Panel, . . .19 The Queen y. Edmund Egan and others. True Bills found, ••*... 25 Furnishing Copy of Indictment to the Prisoners, and Assignment of Counsel, ....... 25 The Queen v. William Smith O'Brien. Application to postpone the Trial for non-delivery of Lists of Jurors and Witnesses, . . . . .28 A VI CONTENTS. ground o re House, Judgment of the Court on the application, Plea in Abatement, Application to inspect J ury Panel, Calling over the Panel, . Challenge to the Array, . Plea to the Challenge, Replication to the Plea, Swearing of Triers, Statement of Challenge by Prisoner’s Counsel, Direction of the Court to the Triers on the first Challenge, .... Statement of the Prisoners Counsel of the second ground o Challenge, Evidence of Henry Pedder, Esq., „ Patrick Kirwan, Esq., . „ Mr. Rody Spain, „ Mr. William May, „ Mr. Edward Murphy, „ Mr. Edward Murphy of Ballymo „ Mr. Edward Lalor Cambie, „ Mr. John Lacy, „ Mr. E. L. Cambie recalled, „ Mr. David Clancy, „ Patrick Kirwan, Esq., recalled, „ Richard Pennefather, Esq., Higl „ Samuel Going, Esq., Direction of the Court to the Triers, Finding of the Triers, Application for the Jury to be chosen by Ballot, Swearing the J ury, Challenge to Mr. Richard E. Phillips, Challenge to the Twenty-first Juror, and Argument on right of the Prisoner to Thirty-five Peremptory Challenges, The Jury, ...... Application for Witnesses to be ordered out of Court, The Attorney-General’s opening Statement, Evidence for the Prosecution : — Mr. John George Hodges examined, Objection to Speech of Prisoner being received in Evidence, Speech of the Prisoner at the Meeting of the Irish Confede- ration, 15th March, 1848, . . . . Speech of the Prisoner at the Soiree to the Deputation on their return from France, 15th April, 1848, Sherif Page 46 48 57 58 58 60 61 62 62 74 75 78 79 80 82 84 85 85 89 91 91 92 94 96 102 106 106 108 109 112 119 119 121 151 152 158 179 CONTENTS. vii ?ag0 Evidence for the Prosecution — continued. Speech of the Prisoner at the Meeting of the Irish League, 19th July, 1848, ..... 190 Cross examination of the Witness, . . . .198 Re-examination, . . ' . . . 202 Major-General John MacDonald examined, . . 202 Cross-examination, . . . . .205 Captain James Emans examined, .... 205 Cross-examination, . . f . . 205 Mr. John Gore Jones examined, .... 206 Cross-examination, ..... 209 Sub-inspector Joseph Cox examined, . . .210 Cross-examination, . . . . .211 Constable Michael Mulgrew examined, . . .211 Cross-examination, . . . . .212 Mr. Charles Edward Bagnall examined, . . .212 Cross-examination, . . . . .213 Henry Thomas Burke, Esq., examined, . . . 213 Cross-examination, . . . . .216 Mr. Robert Allison examined, . . . .217 Mr. William Lowe examined, . . . .218 Cross-examination, . . . . .218 William O’Hara, Esq., examined, . . . .219 Cross-examination, . . . . .223 Mr. William Sherman examined, . . . .224 Proposition of the Attorney-General, to read in Evidence the Contents of Prisoner’s Portmanteau, and Argument thereon, 225 William Franklin, Esq., examined, . . . 230 Mr. Robert Walpole examined, . . . .233 Eneas McCurdy examined, ..... 234 Cross-examination, . . . . .235 Miss Mary Anne Keeley examined, . . . '235 Cross-examination, ..... 237 James Stevenson Dobbyn examined, . . . 238 Cross-examination, . . . . .261 Thomas Griffin examined, ..... 287 Cross-examination, . . . . .288 Mark Pender examined, . . . . .288 Patrick McKenna examined, .... 289 Francis Dunlevie examined, .... 289 Cross-examination, . . . . .292 John Dowling examined, ..... 292 Cross-examination, . . . . . 294 Vlll CONTENTS. Evidence for tlie Prosecution — continued. Mr. Peter Blake examined, , . . .295 Edward Stephens examined, .... 295 Cross-examination, ..... 295 Robert Mahony examined, . , . . .296 Cross-examination, . . . . .298 Patrick Coghlan examined, . . . .299 Cross-examination, ..... 302 Re-examination, ..... 305 John Hamilton examined, . . . . .306 Cross-examination, ..... 309 Charles Vernon, Esq., examined, .... 310 Cross-examination, . . . , .310 Timothy O’Sullivan examined, . . . .310 Cross-examination, ..... 320 David Williams examined, ..... 322 Cross examination, ..... 325 Francis Wiggins examined, .... 327 Cross-examination, ..... 330 Michael Tobyn examined, . . . . . 331 AVilliam Egan examined, ..... 334 Cross-examination, ..... 338 John Kavanagh examined, .... 339 Examined by the J ury, ..... 344 Mary Egan examined, ..... 345 Mr. James Norton examined, .... 348 George Sparrow examined, .... 352 Cross-examination, . . , . .356 John O’Donnell called, ..... 359 Refusal of the AVitness to be examined, and his Committal to Gaol, ...... 359 Thomas Burke examined, ..... 360 Cross-examination, ..... 367 Re-examination, ..... 370 Thomas Sullivan examined, «... 370 Cross-examination, ..... 372 Mr. Thomas Walsh examined, . . . . 373 Cross-examination, ..... 377 Duttoin Matthew examined, .... 377 Cross-examination, . ' . . . , 3 §q Richard Shea called, . . . . .381 Refusal of the Witness to be examined, and his Committal to Gaol, 381 CONTENTS. IX Evidence for tlie Prosecution — continued. William Parsons examined, . . . .381 Cross-examination, ..... 383 Thomas Hourilian examined, .... 384 Cross-examination, ..... 384 Captain Charles Joseph Longmore examined, . . 385 Cross-examination, ..... 385 William Cashen examined, . . , .386 Cross-examination, . . . . .389 Mrs. Ellen Lacken examined, .... 389 Cross-examination, ..... 390 William Pimlott examined, . . . .390 Cross-examination, ..... 394 John Pemberthy examined, .... 394 Cross-examination, ..... 397 John Lamphier examined, ..... 397 Cross-examination, .._... 402 Owen Cullen examined, ..... 407 Cross-examination, . . . . .411 Richard Purdy, Esq., examined, . . . .412 Cross-examination, . . . . .412 Sub-inspector Thomas Trant, examined, . . .412 Cross-examination, . . . . .417 Cornelius Mahony examined, .... 424 Cross-examination, . . . . .428 John Moran examined, . . . . .431 Cross-examination, ..... 434 Arthur Robinson examined, . . . .438 Cross examination, ..... 440 Patrick Ford examined, ..... 443 Cross-examination, ..... 445 Re-examination, . . . . .446 George Frederick M^Donogh examined, . . . 447 Cross-examination, ..... 448 Re-examination, ..... 451 Thomas Waters examined, . . . . .451 Cross-examination, . . ... .451 John Hanover examined, . . . . , 452 Cross-examination, . . . . , 452 John Carroll, examined, • . . . . 453 Cross-examination, ..... 432 Mr. Joseph Cox examined, . . . .463 Cross-examination, • • . . . 467 X CONTENTS. Evidence for tlie Prosecution — continued. Page Michael Mulgrew examined, 469 Cross-examination, .... 469 John Norton examined, .... 469 Cross-examination, .... 470 Michael Kennedy examined, 470 Cross-examination, .... 471 Ke-examination, .... 472 John Wilson examined, .... 472 Cross-examination, .... 472 Michael Kirwick examined. 473 Cross-examination, .... 474 William Kenimis, Esq., examined, . Documentary Evidence for the Prosecution ; — 474 Copy of Order in Council, .... . 474 Copy of Proclamation of 20th July, 1848, . 475 Letter from the Prisoner to the Mining Company, . 475 Pencil Tracings found on the Prisoner, Objection to Letter found in Portmanteau of Prisoner; and 476 Argument thereon, .... 476 Letter from Charles Gavan Duffy to the Prisoner, . . 487 Letter from Thomas F. Meagher to the Prisoner, . . 489 Objection to Letter from Philadelphia to the Prisoner, Letter from R. Tyler and others, Philadelphia, to the 489 Prisoner, ..... Address from the John Mitchel Club, Enniscorthy, to the 491 Prisoner, ..... 492 Twenty-nine Balloting Papers put in as read. . 492 Application for a List of the remaining Papers found in the Trunk, 492 Further Evidence for the Prosecution : — Patrick Bennie, examined, 493 Cross-examination, .... 494 Objection to, and withdrawal of, the Speech of Mr. T. F. Meagher, of the 6th June, 1848, 494 Close of the Case for the Prosecution, 496 Discussion as to the Balloting Papers, . 496 Thomas Kemmis, Esq., examined, . 501 Cross-examination, .... 502 William Kemmis, Esq., examined, . 503 Cross-examination, .... 503 Mr. William Dunne examined. 505 Cross-examination, .... 505 CONTENTS. xi Discussion as to the Balloting Papers — continued. William O’Hara, Esq., examined, .... 505 Cross-examination, ..... 50G Decision of the Court as to the Balloting Papers, . . 508 Defence : — Mr. Whiteside’s Speech, . . . . .509 Evidence for the Defence : — William James Hamill examined, .... G82 Cross-examination, . . . . .683 Be-examination, ..... 684 Dr. John Gray examined, ..... 684 Cross-examination, . . . . .690 John Maher, Esq., examined, .... 692 Cross-examination, . . . . .696 Mr. Henry Coulter examined, . . . .697 Mr. Richard Barrett examined, . . . .699 Cross-examination, . . . . .699 Sir David Roche, Bart., examined, . . . .700 Cross-examination, . . . . .700 Re-examination, . . . . . .701 John Bolton Massey, Esq., examined, . . .701 Sir Denham Norreys, Bart., m.p., examined, . .702 William Fitzgerald, Esq., examined, . . .703 The Hon. Cornelius O’Callaghan examined, . .703 William Monsell, Esq., m.p., examined, . . .703 Cross-examination, . . . . .704 Thomas Henry Burke, Esq., recalled and examined, . 7 04 Documentary Evidence for the Defence : — Speech of the Prisoner in the House of Commons, . .704 Letter of Prisoner on his becoming a member of the Repeal Association, dated 20th October, 1843, . . .705 Address to the people of Great Britain, . . .705 Rules of Irish Confederation, . . . .705 Pveport on Organization, and Instructions for the Formation and Government of Confederate Clubs, . . .706 The Use and Capacity of Confederate Clubs, by Charles Gavan Duffy, 708 Mr. Henry Coulter recalled and examined, . .708 Speech of the Prisoner at the meeting of the Confederation, February, 1848, ...... 708 Rules of the Irish League, . . . . .712 Note by Mr. Redington, . . . . .713 Major-General Sir William Napier examined, . . 714 CONTENTS. xii Defence — con t inned. Mr. Fitzgerald’s Speech, , . . . .710 The Solicitor-General’s Reply, . . . . .740 Summing-up of the Lord Chief Justice, . . . 797 Interruption of the Charge, and application of Mr. Whiteside that the Witness Dobbyn be recalled, . . .839 James Stevenson Dobbyn recalled and examined, . . 840 Henry Dalton examined, ..... 843 Cross-examination, . . . . .847 Continuation of the Lord Chief Justice’s Charge, . .857 Questions put by the Jury to the Court, and Discussion thereon, . 884 Retirement of the Jury, . . . . .880 Verdict, ....... 887 Motion in Arrest of Judgment, ..... 887 Mr. Whiteside, ...... 887 The Attorney-General, . . . . .900 Mr. Fitzgerald, ...... 905 The Solicitor-General, . . . . .911 Judgment of the Court, . . . . .912 Sentence on the Prisoner, . . . . .914 COURT OF QUEEN’S BENCH, DUBLIN. William Smith O’Brien {in error) v. The Queen. Writ of Error, ....... 915 The Points for Argument on the Writ of Error, . . 925 Judgment on the Writ of Error : The Lord Chief Justice, ..... 926 Mr. Justice Crampton, . . . . .941 Mr. Justice Perrin, ..... 957 Mr. Justice Moore, . . . . . .970 HOUSE OF LORDS. - William Smith O'Brien {in error) v. The Queen. Judgment on Writ of Error, ..... 983 Tenor of Judgment in above Writ of Error, . . . 983 SPECIAL C03IMISS10N, COUNTY OF TIPPEEARY. Clonmel, Thursday, September 21, 1848. The Lord Chief Justice, Lord Chief Justice Doherty, and Mr. Justice Moore, attended by Kichard Pennefather, Esq., the High Sheriff, took their seats on the bench at eleven o’clock. Her Majesty’s Commission having been read by Henry Pedder, Esq., the Clerk of the Crown, the following gentlemen were sworn on the Grand Jury : — The Right Hon. Lord Viscount Suirdale, Knocklofty, Foreman. Hon. Cornelius O’Callaghan, Shanbally. Hon. Francis Aldborough Prittie, Corville. Hon. Hely Hutchinson, Knocklofty. Sir Edmund Waller, Knocknacree. William Ponsonby Barker, Esq,, Kilcooley Abbey. Stephen Moore, Esq., Barne. John Bagwell, Esq., Marlfield. Ambrose Going, Esq., Ballyphilip. Matthew Pennefather, Esq., Newpark. Lieut.-Colonel Wray Palliser, Herryluskan. John Bailey, Esq., Debsborough. Thomas B. Barton, Esq., Grove. John Trant, Esq., Dovea. John Carden, Esq., Barnane. William Quin, Esq., Loloher Castle. James Butler, Esq., Park. Stephen O’Meagher, Esq., Kilmoyler. Henry Trench, Esq., Sopwell Hall. Caleb Going, Esq., Traverston. Thomas Lalor, Esq., Cregg House. James Lenigan, Esq., Castle Fogarty, and Joseph Cooke, Esq., Cordangan. THE CHARGE. The Lord Chief Justice. My Lord Suirdale, and gentlemen of the Grand Jury for the county of Tipperary, I feel assured that you participate in my feeling, and in that of every person who has the peace and happiness of the country sincerely at heart, in the regret, that Her Gracious Majesty has now, after the lapse of but a few months, found it necessary to issue that Commission which has been just read to you, and by which she calls upon her subjects B 2 SPECIAL COMMISSION, CO. TIPPERARY. to aid her, by performing tlieir duty in tbe administration of the criminal law of the land. Distressing and deplorable as such a measure would be under any circumstances, it becomes so in the last degree, when we know that that measure has originated in machinations and attempts which constitute the crime of high treason — a crime, the highest in degree that a subject of the realm or a member of the community can commit — a crime, whose object is the total destruction of our social system, the subversion of all security for property, and for life — and a crime which no reasonable being can contemplate without knowing that it must lead to the shedding of human blood, and that it must entail on the country all the horrors and aU the miseries of civil and social war. As I have alluded to the former Special Commission, under which the greater number of you were called on to perform your duties in the month of January last, I think it but just, and so far as it is satisfactory, to observe, that the crimes and the out- rages which formed the subject of your investigation at that period, do not appear to have any connexion, as far as I am informed, with the matters which are now coming under your consideration. On the contrary, I have reason to believe, and I do sincerely hope, that the firm administration of the law under that Commission, and at the Assizes which have since intervened, have been attended with the most salutary effects, and will justify a hope of the restoration of peace and order in your county. Gentlemen, the crime of high treason is one, happily, of such unusual occmTence, and one with respect to which there are peculiar provisions, which do not belong to the investigation of other crimes or misdemeanors, that I think it my duty, in order to assist you in the discharge of yours, to point out to you the peculiarities of the law relative to that crime, in order that you may regulate your course accordingly, and see in what way the evidence which may be laid before you is to be applied when you come to consider the indictment. But, in the first instance, in order to make those observations upon the nature and the course of the proceeding perfectly intelligible, 1 think it my duty to give you a general, and a very general outline of the nature of the case as it appears to me upon the perusal of the infor- mations which have been laid before me on the part of the Crown. Gentlemen, it will appear from them, that for some months past a political body — a body or society formed for pohtical purposes — held its meetings and conducted its proceedings in the city of Dubhn. At these meetings there were a number of inflammatory and seditious speeches dehvered by the leading members of the body. About the middle, or towards the latter end of July, these members — I mean the leading members, or CHARGE TO THE GRAND JURY. 3 some of them — appeared in different parts of the south of Ireland, and at last seemed to have determined to make the county of Tipperary the scene of their further operations. Accordingly, large bodies of the people were assembled; they were harangued, and, upon more than one occasion, it was distinctly announced that there was to be an immediate arming of the population, with the view of severing Ireland from the British dominion, and erecting it into an independent kingdom. In pursuance of these instructions, which extended to the procuring of arms, by any means whatever, legal or otherwise, in the last week of July several armed bodies of men appear to have congregated in a pail; of the county. They were marshalled, trained, and officers, upon some occasions of their meeting, nominated. Barri- cades were erected in some parts of the county, which, upon one occasion, had the effect of obstructing the march of Her Majesty’s troops, and which upon that occasion appears to have been de- signed for the protection of a person or persons against whom warrants had been issued by Her Majesty’s Government. On the 29th of July, these proceedings appear, for that time at least, to have reached their consummation. A body of police, on its march to the scene of the disturbance which had taken place, was encountered and nearly surrounded by different armed bodies of men. The result was, that they took shelter in a house ; and there an actual conflict took place between them and the assailants. On the same day, another body of police were similarly assailed. The result in both cases is probably known. This is all which I think it necessary to lay before you, preparatory to the statement of those rules, which, in respect to the law of high treason, are made for your government, the regulation of the Court, and the security of the subject. The indictments, as I am informed, gentlemen, will contain two distinct classes of counts ; and each of these classes of counts relates to a distinct treason. Both are founded on the provisions of a very ancient statute — a statute passed so long ago as the reign of King Edward III. And without troubling you, by de- tailing the language of that statute, it is sufficient for my pre- sent purpose, and for yours, to say, that it contains, amongst others, two provisions relating to the tw^o distinct species of trea- sons which are the subject of the indictment, and which you will have to investigate. The first of those is expressed in the language of that day to be “ the compassing the death of the Queen and that, as I have before given you to understand, is the treason charged by one or more of the counts of the indict- ment which you will have to consider. Gentlemen, by “ com- passing the death of the Queen,” it is not meant merely to impute, nor under any circumstances likely to be laid before you, to impute a design against the personal life, or personal safety of the Sovereign — the Sovereign, whether King or Queen, being in B 2 4 SPECIAL COMMISSION, CO. TIPPERARY. our constitution the representative of tlie State, an attack upon the sovereign power of the State is under this statute to be treated as a compassing against, and an attack on, the person of the Monarch; and, therefore, you will have not to consider whether the personal death or actual injury to the person of the Queen was intended, hut whether the designs, as j)roved by the overt acts stated in the indictment, are of a character which come under the description of an attack on the sovereign power of the State. I shall put before you some instances to show that I have correctly stated the law ; and that by compassing the death of the Queen, you are to understand the term of aiming at the destruction of her sovereign power. And it matters not whether that design be to depose her from her crown — to depose her from her imperial authority over the entire of her dominions — the crime of deposing her, and the crime of compassing her death, will be equally committed, whether the object be to depose her from the whole or any part of her dominions. I shall now read to you, taken from an author of the very highest authority on the law, Mr. Justice Foster, and from the judgment of Lord Tenterden, some passages which wiU show you that I have correctly explained the words, compassing the death of the Queen,” to extend to, and to comprehend attacks on, her impe- rial authority. Describing the crime of compassing the death of the monarch, he says — “ Any thing wilfully or deliberately done or attempted, whereby the King’s life may be endangered ; therefore, measures for deposing or imprisoning him, or getting his person into the power of conspirators, are overt acts of this species of treason.” That is, overt acts of compassing the King’s death, though you will perceive that in none of them is the object personal, but simply to depose or endeavour to get the person of the King into their power. Again, he says, that Other offences which are not so personal have, with great propriety, been brought within the same rule, as having a tendency, though not so immediate, to the same fatal end ; and therefore, the entering into measures in concert with foreigners and others, in order to an invasion of the kingdom, or going into a foreign country, or even proposing to go thither to that end, or taking any steps in order thereto, are overt acts of compassing the King’s death.” Again — “ Many offences falling directly, and by name, under other branches of the statute, may be brought within those of compassing the King’s death; levying war, and conspiring to levy war, are overt acts within this branch of the statute.” That is, within the branch of the statute which makes compass- ing the King’s death high treason. And again — CHARGE TO THE GRAND JURY. 5 It hath been settled by several cases ” This is the language of Lord Tenterden. actually adjudged on by the opinion of text writers on this branch of the law, that all attempts to depose the King from his royal state and title, to restrain his person, or to levy war against him, and all con- spiracies, consultations, and agreements for the accomplishment of these objects, are overt acts of compassing and imagining the death of the King.’^ Gentlemen, I have now closed the observations, and cited the authorities, which I think are sufficient to explain to you what is meant in this statute, and in the indictment which transcribes its terms, by compassing the death of the monarch. I have now to tell you, that the crime of high treason consists altogether in intent. The mere intention, the mere design, against the King’s life or his imperial authority, is the oflence created by the statute. But as intention or design is in all cases, or at least in the generality of cases, to be inferred from acts, and from declarations written or oral, that inten- tion, so to be collected, must have as its basis and as proof of it, the commission of certain overt acts. JYo man can dive into the secrets of his fellow-creatures ; the thoughts of the heart are known but to One; and therefore, intention and design must always be collected from the acts and declarations, and those means and tokens by which, in the ordinary intercourse of life, we judge of men’s intentions. The law with respect to high treason of this kind — which consists in intention — makes it requisite for the Crown to specify particularly in its indictment the overt acts, that is, the acts done and the means used by the party charged for the purpose of effectuating that intention. Ac- cordingly, the indictment which will be submitted to you will contain the various acts, whatever they may be, upon which the Crown relies ; and in support of these the Crown must give you evidence that some one or more of these overt acts has actually taken place, and you must be satisfied by the evidence which the Crown shall so submit to you, that one or more of the overt acts has actually been committed in the manner stated in the indict- ment. But it is farther necessary for you to attend to this, that not only must one or more overt acts be proved, but it is neces- sary that one overt act should be proved by two witnesses, or that if there shall be several acts, at least two be proved by two distinct witnesses. Y ou will not be justified in finding the biU of indictment unless there be two witnesses to prove the same overt act, or two witnesses to prove each a distinct overt act of the same treason. Y'^ou will, therefore, carefully attend to that considera- tion when the witnesses in support of the indictment shall be under examination. And now with respect to that which is the substance of the 6 SPECIAL COMMISSION, CO. TIPPERARY. charge — the intention which is to be inferred, or proved, if it be expressly proved you will have no difficulty, but if to be inferred, my instruction to you is this. It is inferrible, as I before said, from acts, from writings, from speeches, or from declarations. But so far as regards mere oral declarations, not testified in writ- ing, you ought to pay no regard to the intention which they may appear to evidence, unless these words be connected with some design, or some conspiracy, or some direction, or some excitement. Words by themselves do not constitute an act of high treason, it is only in connexion with acts that they become evidence of intention. When you are considering the evidence of intention, the substantive matter of the charge, the only rule which I would have you observe is this — and it is a rule applied in all our deal- ings, and transactions, and intercourse in fife, and which is not simply a rule of law, but a rule necessary to be observed whenever the question of intention or of knowledge becomes the sum and substance of the charge — to presume and intend a man to mean that which is the natural and necessary effect of his own decla- rations and acts. Now, having closed the observations on this branch of the statute, and on this particular charge, I repeat again, that you will take care not to find the indictment unless one particular species of treason be established by two witnesses — two witnesses to the same overt act, or two witnesses to different overt acts of the same treason. The other class of counts, to which your attention will be directed, requires very little observation from me ; and it is that class of counts by which the party charged will be alleged to have levied war on our Sovereign Lady the Queen in her realm. That charge, also, is one which must be, and which will be in the indictment, grounded upon one or more overt acts ; and the rule in this particular is the same which I have just now stated to you. But the levying of war must be evidenced by an insur- rection and actual force ; it is otherwise, not within the meaning of the statute, a levying of war. And, further, it must be a levying of war, not for any private, personal, or particular object, bat it must be for the purpose of some general innovation; and I have no hesitation in telling you, that if it should appear on the evidence to your satisfaction that the object of this insur- rectionary movement was the severance of Ireland as a part of the United Kingdom from the remainder, and erecting it into an independent power, that that would be such a purpose as this statute requires. But the language of the authorities, I may here refer to, for the purpose of further illustrating what 1 have just now told you:— ‘‘ Insurrections and risings, for the purpose of effecting by force and numbers, however ill arranged, provided, or organized, any innova- tions of a public nature, or redress of supposed public grievances, in THE QUEEN i;. WILLIAM SMITH O’BRIEN. / which the parties had no special or particular interest or concern, have been deemed instances of the actual levying of war.” And again — It is essential to the making out of the charge that there must be an insurrection, there must be force accompanying the insurrection, and the object of it must be general in its nature.” These are all the observations which I think it incumbent on me to make for your government or direction. If any difficulty should arise, the Court will be at all times anxious to assist you ; but, 1 believe, I have now pointed out your attention to those peculiarities in the law of high treason, with which, perhaps, you were not before familiar, and to which it will be necessary for you, in the consideration of the indictments which will be sub- mitted to you, to give particular attention. I believe the Crown is prepared to lay those indictments before you, and of course you will proceed to an immediate examination of them. The Foreman. — My lord, some of the Grand Jury have not quite understood that part of your lordship’s charge, with respect to the necessity of two witnesses to the overt acts, whether every overt act must be proved by two witnesses, or whether one of a class must be proved by two witnesses. The Lord Chief Justice — It will be sufficient if there be one overt act proved by two witnesses ; that wiU justify you in finding the indictment, or one overt act by one witness, and another overt act by a distinct witness. The Foreman. — Very well, my lord. [The bill of indictment was handed up to the Grand Jury, who then retired at half-past twelve.] THE QUEEN v. WILLIAM SMITH O’BRIEN, TERENCE BELLEW MACMANUS, DENIS TYNE, AND PATRICK O’DONNELL. [At ten minutes to five the Grand Jury returned into Court.] The Clerk of the Crown. — Gentlemen, have you found any bills. The Foreman. — We have. Against William Smith O’Brien, a true bill ; Terence Bellew MacManus, a true bill ; James Orchard, a true biU ; Denis Tyne, a true bill ; Patrick O’Donnell, a true bill. INDICTMENT. County of Tipperary] The Jurors for our Lady the Queen upon their oath do say and present that Wil- J liam Smith O’Brien late of Cahirmoyle in the county of Limerick Esquire Terence Bellew MacManus late of Liverpool in that part of the United Kingdom called England gentleman James s SPECIAL COMMISSION, CO. TIPPERAMY. Orchard late of Killenaule in the county of Tipperary labourer Penis Tyne late of Crohill in the said county of Tipperary labourer and Patrick O’Ponnell late of Ballingarry in the said county of Tipperary yeoman being subjects of our said Lady the Queen not having the fear of Grod in their hearts nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said Lady the Queen and wholly withdrawing the love obedience fidelity and allegiance which every true and lawful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen on the seventeenth day of July in the twelfth year of the reign of our Sovereign Lady Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland Queen defender of the faith and soforth and on divers other days between that day and the thirtieth clay of the same month of July with force and arms at the parish of Ballingarry in the said county of Tipperary together with a great multitude of false traitors whose name^ are to the said jurors unknown to the number of five hundred and more arrayed and armed in a warlike manner that is to say with guns pistols pikes clubs bludgeons and other weapons being then and there unlawfully maliciously and traitorously assembled and gathered together against our said Lady the Queen did then and there wickedly maliciously and traitorously levy and make war against our said Lady the Queen within this realm and being so assembled together arrayed and armed against our said Lady the Queen as aforesaid did then and there with great force and violence parade and march in a hostile man- ner in and through divers villages towns places and public highways to wit in the said parish of Ballingarry in the county of Tipperary aforesaid and did then and there erect certain obstructions composed of cars carts pieces of timber and other materials erected and built to a great height that is to say to the height of five feet and upwards upon and across the said highways to obstruct and prevent the marching of the soldiers of our said Lady the Queen within this realm and did then and there make a warlike attack upon and fire at a large body of con- stables then and there lawfully being upon their duty as such constables and did then and there with force and violence endeavour to compel the said constables to join them in levying and raising public insurrection rebellion and war against our said Lady the Queen within this realm and did then and there make a warlike attack upon a certain dwelling-house situate at Farrinrory in the said parish of Ballingarry in the county of Tipperary aforesaid and did then and there fire upon a large body of constables that is to say forty constables therein assembled and did then and there maliciously and traitorously attempt and endeavour by force and arms to subvert and destroy the government and constitution of this realm as by law established in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the alle- giance of them the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity [Second Count] — And the Jurors aforesaid upon their oath aforesaid do further say and present that the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell being subjects of our said Lady the Queen not having the fear of God in THE QUEEN v. WILLIAM SMITH O’BRIEN. D their hearts nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said Lady the Queen and wholly withdrawing the love obedience fidelity and allegiance which every true and lawful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen on the twenty-sixth day of J uly in the twelfth year of the reign aforesaid with force and arms at Mullinahone in the parish of Kilvemnon in the said county of Tipperary together with a great multitude of false traitors whose names are to the said jurors unknown to the number of one hundred and more arrayed and armed in a warlike manner that is to say with guns pistols pikes clubs bludgeons and other weapons being then and there unlawfully maliciously and traitorously assembled and gathered together against our said Lady the Queen did then and there wickedly maliciously and traitorously further levy and make war against our said Lady the Queen within this realm and being so arrayed and armed against our said Lady the Queen as aforesaid did then march in a warlike manner in and through divers villages towns places and highways to wit at the parish aforesaid in the county aforesaid and did then and there maliciously and traitorously with great force and violence march to a certain dwelling-house in Mullinahone in said county in which a large body of constables then were lawfully assembled as such constables and did then and there endeavour by force and violence to compel the said constables to surrender their arms and join with them in so levying and making war against our said Lady the Queen within this realm and did then and there maliciously and traitorously attempt and endeavour by force and violence to subvert and destroy the government and con- stitution of this realm as by law established in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity [Third Count] — And the Jurors aforesaid upon their oath aforesaid do further present that the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell being sub- jects of our said Lady the Queen not having the fear of God in their hearts nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said Lady the Queen and wholly withdrawing the love obedience fidelity and allegiance which every true and lawful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen on the twenty- eighth day of July in the twelfth year of the reign aforesaid with force and arms at Killenaule in the parish of Killenaule in the county of Tipperary aforesaid with a great multitude of false traitors whose names are to the said jurors unknown to the number of one hundred and more arrayed and armed in a hostile manner that is to say with guns pistols pikes clubs bludgeons and other weapons being then and there unlawfully maliciously and traitorously assembled and gathered together against our said Lady the Queen did then and there wickedly maliciously and traitorously further levy and make war against our said Lady the Queen as aforesaid did then and there unlawfully maliciously and traitorously erect and build certain obstructions composed of cars carts pieces of 10 SPECIAL COMMISSION, CO. TIPPERARY. timber and other materials erected and built to a great height that is to say to the height of five feet and upwards upon and across the highway leading through the said town of Killenaule whereby then and there unlawfully maliciously and traitorously to obstruct and hinder the march- ing of the soldiers of our said Sovereign Lady the Queen through Killenaule upon and along the said highway and did then and there maliciously and traitorously attempt and endeavour by force and violence to subvert and destroy the government and constitution of this realm as by law established in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said William Smith O’Brien Terence Belle w MacManus James Orchard Denis Tyne and Patrick O’Donnell against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity [Fourth Count] — And the Jurors aforesaid upon their oath afore- said do further present that the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell being subjects of our said Lady the Queen not having the fear of God in their hearts nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said Lady the Queen and wholly withdrawing the love obedience fidelity and allegiance which every true and lawful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen on the twenty-ninth day of July in the twelfth year of the reign aforesaid with force and arms at Farrinrory in the parish of Ballingarry in the said county of Tipperary together with a great multitude of false traitors whose names are to the said Jurors unknown to the number of five hundred and more arrayed and armed in a warlike manner that is to say with guns pistols pikes clubs bludgeons and other weapons being then and there unlawfully maliciously and traitorously assembled and gathered together against our said Lady the Queen did then and there wickedly maliciously and traitorously further levy and make war against our said Lady the Queen within this realm and being so arrayed and armed against our said Lady the Queen as aforesaid did then and there in a warlike manner make an attack upon and fire at a large body of constables then and there lawfully being in discharge of their duties as such constables and did then and there make a warlike attack upon a certain dwelling-house at Farrinrory aforesaid in which a large body of constables that is to say forty constables were then lawfully assembled on their duty as such constables and did then and there fire upon the constables there assembled and did then and there maliciously and traitorously attempt and endeavour by force and violence to subvert and destroy the government and constitution of this realm as by law estab- lished in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tvne and Patrick O’Donnell against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity [Fifth Count ] — And the Jurors aforesaid upon their oath aforesaid do further present that the said William Smith O’Brien Terence Bellew THE QUEEN WILLIAM SMITH O’BRIEN. 11 MacManus James Orchard Denis Tyne and Patrick O’Donnell being subjects of our said Lady the Queen not having the fear of God in their hearts nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said Lady the Queen and wholly withdrawing the love obedience fidelity and allegiance which every true and lawful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen on the twenty-ninth day of July in the twelfth year of the reign aforesaid with force and arms at the parish of Ballingarry in the said county of Tipperary together with a great multitude of false traitors whose names are to the said jurors unknown to the number of five hundred and more arrayed and armed in a warlike manner that is to say with guns pistols pikes clubs bludgeons and other weapons being then and there unlaw- fully maliciously and traitorously assembled and gathered together against our said Lady the Queen did then and there wickedly maliciously and traitorously further levy and make war against our said Lady the Queen within this realm and did then and there maliciously and traitor- ously attempt and endeavour by force and arms to subvert and destroy the constitution and government of this realm as by law established and deprive and depose our said Lady the Queen of and from the style honour and kingly name of the Imperial Crown of this realm in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity [Sixth Couni\ — And the Jurors aforesaid upon their oath aforesaid do further say and present that the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell being subjects of our said Lady the Queen not having the fear of God in their hearts nor weighing the duties of their allegiance but being moved and seduced by the instigation of the devil as false traitors against our said Lady the Queen and wholly withdrawing the love obedience fidelity and allegiance which every true and faithful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen on the seventeenth day of July in the twelfth year of the reign aforesaid and on divers other days between that day and the thirtieth day of the same month of July with force and arms at the parish of Ballingarry in the said county of Tipperary maliciously and traitorously amongst themselves and together with divers other false traitors whose names are to the said jurors unknown did compass imagine and intend to move and excite insurrection rebellion and war against our said Lady the Queen within this realm and to subvert and alter the legislature rule and government now duly and happily established within this realm and to bring and put our said Lady the Queen to death and the said compassing imagina- tion invention device and intention did then and there express utter and declare by divers overt acts and deeds hereinafter mentioned that is to say in order to fulfil perfect and bring to effect their most wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell 12 SPECIAL COxMMISSION, CO. TIPPERARY. as such false traitors as aforesaid on the said seventeenth day of J uly in the twelfth year of the reign aforesaid and on divers other days between that day and the thirtieth day of the same month of July with force and arms at the said parish of Ballingarry in the said county of Tipperary maliciously and traitorously did assemble meet consult and conspire amongst themselves and together with divers other false traitors whose names are to the said j urors unknown to devise arrange and mature plans and means to stir up raise make and levy insurrection rebellion and war against our said Lady the Queen within this realm and to subvert and destroy the constitution and government of this realm as by law established and to bring and put our said Lady the Queen to death And FURTHER in order to fulfil perfect and bring to effect their most wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the said seventeenth day of July in the twelfth year of the reign aforesaid and on divers other days between that day and the said thirtieth day of the same month of July with force and arms at the said parish of Ballingarry in the said county of Tipperary maliciously and traitorously did arm themselves with and bear and carry certain weapons that is to say guns pistols and pikes with intent to associate themselves with divers other false traitors armed with guns pistols and pikes whose names are to the said jurors unknown for the purpose of raising levying and making public insurrection rebellion and war against our said Lady the Queen and of committing and perpe- trating a cruel slaughter of and amongst the faithful subjects of our said Lady the Queen within this realm and to bring and put our said Lady the Queen to death And further in order to fulfil perfect and bring to effect their most wicked treason and treasonable compassing imagin- ation invention device and intention aforesaid they the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the said seventeenth day of July in the twelfth year of the reign aforesaid and on divers other days between that day and the said thirtieth day of the same month of July with force and arms at the said parish of Ballingarry in the said county of Tipperary with a great multitude of persons whose names are to the said jurors unknown to a great number to wit to the number of five hundred persons and upwards armed and arrayed in a warlike manner to wit with guns pistols and pikes being then and there unlawfully and traitorously assembled and gathered together against our said Lady the Queen wickedly maliciously and traitorously did then and there ordain prepare levy and make public war against our said Lady the Queen within this realm And further in order to fulfil j^er- fect and bring to effect their most wicked treason and treasonable com- passing imagination invention device and intention aforesaid they the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the said seventeenth day of July in the twelfth year of the reign aforesaid and on divers other days between that day and the said thirtieth day of the same month of July with force and arms at the said parish of Ballin- garry in the county of Tipperary maliciously and traitorously did con-’ struct and erect obstructions consisting of carts cars logs of timber and other materials upon and across the public highway in order then and THE QUEEN y. WILLIAM SMITH O’BRIEN. 13 there to obstruct the marching of the soldiers of our said Lady the Queen and in order then and there to prevent the arrest of the said William Smith O’Brien while the said William Smith O’Brien then and there was maliciously and traitorously acting as tlie leader in raising makingand levy- ing public insurrection rebellion and war against our said La,dy the Queen within this realm And further in order to fulfil perfect and bring to effect their most wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the said seven- teenth day of July in the twelfth year of the reign aforesaid and on divers other days between that day and the thirtieth day of the same month of July with force and arms at the said parish of Ballingarry in the said county of Tipperary together with a great multitude of false traitors whose names are to the said® jurors unknown to the number of five hundred and upwards then and there arrayed and armed in a war- like manner that is to say with guns pistols pikes clubs and other wea- pons being then and there unlawfully maliciously and traitorously assem- bled and gathered together against our said Lady the Queen did then and there wickedly maliciously and traitorously levy and make war against our said Lady the Queen within this realm and being so arrayed and armed against our said Lady the Queen as aforesaid did then and there make a warlike attack upon and fire at a body of constables then and there lawfully proceeding upon their duty as such constables and did then and there make a warlike attack upon a certain dwelling-house and fire upon certain constables and other the liege subjects of our said Lady the Queen therein assembled And further in order to fulfil perfect and bring to effect their most wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said Wil- liam Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the seventeenth day of J uly in the twelfth year of the reign aforesaid and on divers other days between that day and the said thirtieth day of the same month of J uly with force and arms at the said parish of Ballin- garry in the said county of Tipperary maliciously and traitorously did assemble a great multitude of persons whose names are to the said jurors unknown to a great number to wit to the number of five hundred per- sons and upwards armed and arrayed in a warlike manner to wit with guns pistols and pikes and did then and there proceed to a certain dwell- ing-house situate at Mullinahone in the county of Tijjperary aforesaid in which said dwelling-house divers to wit twenty constables then were and did then and there with force and violence maliciously and traitor- ously demand that the said constables should deliver up their arms to them and did then and there maliciously and traitorously solicit the said constables to join with them in raising making and levying public insur- rection rebellion and war against our said Lady the Queen within this realm And further in order to fulfil perfect and bring to effect their most wicked treason and treasonable compassing imagination invention device and intention aforesaid they the said William Smith O’Brien Terence Bellew MacManus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the said seventeenth day of J uly in the twelfth year of the reign aforesaid and on divers other days between that day and the said thirtieth day of the same month of 14 SPECIAL COMMISSION, CO. TIPPERARY. July with force and arms at the said parish of Ballingarry in the said county of Tipperary maliciously and traitorously did assemble and gather together a great multitude of persons whose names are to the said jurors unknown to a great number to wit to the number of five hundred persons and upwards and then and there maliciously and traitorously drill mar- shal and array them in military order and procession and practise them in military movements in order to fight and kill the soldiers and other liege subjects of our said Lady the Queen and in order to raise levy and make pulDlic rebellion insurrection and war against our said Lady the Queen within this realm in contempt of our said Lady the Queen and her laws to the evil example of all others contrary to the duty of the allegiance of them the said William Smith O’Brien Terence Bellew Mac- Man us James Orchard Denis Tyne and Patrick O’Donnell against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity The Attorney-General. — My lords, it might be convenient now to order those persons against whom these bills have been found to be brought up for the purpose of enabling them to assign counsel if they choose to do so ; and to be furnished with a copy of the indictment. The Lord Chief Justice. — Certainly. [The governor of the gaol was directed to send for the pri- soners.] The Attorney- General. — There are some other cases to go before the Grand Jury. I do not know whether it will be more convenient now or in the morning. We can send up the bill against Mr. Meagher. The Foreman. — The Grand Jury cannot undertake to find any other bill to-night, unless it be a short one. The Attorney-General. — Then it will be better not to send it up till the morning, if your lordship pleases. The Lord Chi^ Justice. — A great number of the witnesses are the same ? The Attorney- General. — Yes, my lord. The Lord Chief Justice. — It will be more convenient to send up the bills at once, and if the Grand Jury cannot find them this evening they can resume the consideration of them to- morrow. The Attorney- General. — Very well, my lord ; Mr. Kemmis will now send up the bill against Mr. Meagher. The Lord Chief Justice. — You understand, gentlemen, that a great many of the matters that you have been engaged in inquir- ing into are common to this and the former indictment. The Foreman. — Shall we have to examine all the witnesses over again ? The Lord Chief Justice. — That is very much in your discre- tion ; entirely so. [The bill was then sent up.] THE QUEEN WILLIAM SMITH O’BRIEN. 15 [The five prisoners against whom true hills had been found were placed at the bar.] The Lord Chief Justice. — William Smith O’Brien, Terence Bellew MacManus, James Orchard, Denis Tyne, and Patrick O’Donnell, the Grand Jury have found a bill of indictment against you for high treason ; it is my duty to inform you, that you are each entitled to a copy of that indictment. Do you desire to have it ? The Prisoners. — Yes, my lord. The Lord Chief Justice. — Then let the Crown furnish each of the parties with copies of the indictment. [A copy of the indictment was handed to each of the prisoners.] The Lord Chief Justice. — I have further to inform you that you are each entitled to have counsel assigned, not exceeding two. Do you wish to have counsel now assigned to you by the Court ? Mr. Potter. — On behalf of Mr. O’Brien, my lord — I believe the Attorney-General will not object to my motion — I apply that James Whiteside, Esq., Q.C., and Francis Fitzgerald, Esq., should be assigned as counsel. On behalf of Mr. MacManus, my lord, Imay mention, he has stated to me that he has not yet elected his agent, and therefore is not prepared to assign counsel, and he prays your lordship to allow it to stand over. The Lord Chief Justice. — You are not at present his at- torney ? Mr. Potter. -^1 am not, my lord. The Lord Chief Justice. — Are you for Mr. Smith O’Brien ? Mr. Potter. — Yes, my lord, I am. Mr. Vere Lane. — My lord, I am concerned for the three last. Orchard, Tyne, and O’Donnell, and they are not at present pre- pared to assign counsel. The Lord Chief Justice {addressing the prisoners). — Then I have to inform you, that at any time previous to your being called upon to plead, the judges of the court will, on your ap- plication, make an order appointing your counsel ; but you must make the appheation through the Clerk of the Crown. I under- stand, Mr. MacManus, that you are not prepared to assign coun- sel or agent at present. The Prisoner. — No, my lord, but within the time allowed I will do so. The Lord Chief Justice. — Then when you are ready to do so, one of the judges will assign you counsel, but you must make your application to the Clerk of the Crown. I have further to inform you that you have each five days to plead — five days exclusive of that on which you have been served with a copy of IG SPECIAL COMMISSION, CO. TIPPERAEY. the indictment, and exclusive of Sunday. In fact, next Thursday will be the earliest period at which you will be obliged to plead. Do you wish to avail yourselves of that privilege ? The Prisoner {MacManus). — I shall avail myself of the time. Mr. Potter. — I wish to know from the Attorney-General whe- ther there are any other documents to be delivered than the one now delivered ? The Attorney -General. — It is the duty of the officer of the court to deliver the documents. The copy of the indictment is the only one under the statute which is to be delivered. The Lord Chief Justice. — There is no other document which the law allows you to have except the copy of the indict- ment. Mr. Potter. — Very well, my lord. The Lord Chief Justice. — You are now severally apprized by the Court that you will be called on to plead on Thursday next, and the trials will then immediately proceed. [The prisoners were then removed.] The Attorney- General. — My lord, it would be well if the Sheriff would announce to the gentlemen of the petit jury that on Thursday morning next the trials will proceed. The Lord Chief Justice. — Gentlemen of the petit jury, you are excused from further attendance here until ten o’clock on Thursday next, and I beg to impress upon you the necessity for a punctual attendance on your part at that hour. Mr. Lane. — My lords, I would apply to your lordships for a copy of the panel. The Lord Chief Justice. — On whose behalf? Mr. Lane . — On behalf, my lord, of Orchard, O’Donnell, and Tyne. The Ijord Chief Justice . — Mr. Attorney- General, three of the parties, namely, James Orchard, Denis Tyne, and Patrick O’Donnell, by their attorney apply to the Court for a copy of the panel. The Attorney- General. — There is no return yet made of the panel. The Sheriff has not been called upon to do so, and it has not been furnished to either party. Mr. Lane. — Mr. Attorney, you are mistaken as to that. I understand it is in the Clerk of the Crown’s office. The Attorney-General. — It is not usual to make the return until it has been called for; and I was not aware that in point of fact it had been returned, but I certainly oppose the application. The Court will sit in the morning, and I will then say finally whether I agree to it or not. I am unwilling to make a precedent, and, as Mr. Kemmis suggests, the application is now made as a right. They are not entitled to it as of right. THE QUEEN v. WILLIAM SMITH O’BRIEN. 17 Mr. Lane . — My lord, I ask it as a favour ; I do not insist on it as a right. The Lord Chief Justice . — You admit you cannot rest your application on the ground that it is a matter of right ; as a matter of favour it cannot be granted except by the consent of the Attorney-General. It must be to him you must make your application, and not to the Court. [The Court was then adjourned till eleven o’clock the follow- ing morning.] Seconh Bav. Friday, September 22, 1848. [Mr. Justice Moore took his seat on the bench at eleven o’clock. The names of the Grand Jury were called over, and all answered.] Mr. Justice Moore . — Gentlemen of the Grand Jury, you will of course proceed to the discharge of your duty. If in the course of the day any question should arise, or if you find any difficulty relative to the matters before you, and should wish to consult the Court, the Court will be ready to afford you every assistance in its power. Be so good as to intimate your desire to the High Sheriff, and one of the judges will attend to advise you. If no such question should arise, let the judges know when you have disposed of any of the hills, and they will come down to receive them. The Foreman . — Shall we inform your lordships when we have disposed of one bill ? We have only one bill before us at present. Mr. Justice Moore . — Act in that respect as suits your own con- venience. I understand that other bills wiU be sent before you. The Foreman . — Perhaps your lordship would think it more convenient that the Crown should send up all the bills, in order that we might dispose of them before we call upon the Court ? Mr. Justice Moore . — I think so. At whatever time you have disposed of all the business sent to you for the day, if you will communicate with the Sheriff, the Court wiU come down. As I have already said, if any difficulty should occur, or if there be any question on which you would wish to have the advice of the Court, if you will communicate the same, we shall be ready to assist you. The Foreman . — Very well, my lord. [Their lordships and the Grand Jury retired.] c 18 SPECIAL COMMISSION, CO. TIPPERARY. FINDING BILLS. [At half-past three the Grand Jury returned into court, and the foreman stated that they had found true bills against Thomas Francis Meagher and Patrick O’Donohoe, for high treason.] The Lord Chief Justice. — I presume, Mr. Attorney, we must make an order to bring up the prisoners ? The Attorney-General. — If your lordship pleases. [The prisoners were directed to be brought into court. In the delay that occurred then: lordships conferred together for a few minutes.] The Attorney- General. — If your lordships are considering about discharging the Grand Jury, I think it right to mention that two other persons have been brought in this morning, and others have been recently arrested. There will he a hill ready to be sent up, for high treason, against some six or seven per- sons in the morning, but there are no more bills ready for to-day. The Lord Chief Justice. — Are you likely to send up any hill to-morrow to them ? The Attorney- General. — I think not, my lord. There is every probability of new parties being brought in every day. [After a short time the prisoners were placed at the bar.] THE QUEEN THOMAS FRANCIS MEAGHER. The Lord Chief Justice Thomas Francis Meagher, the Grand Jury have found a bill of indictment against you for high treason, and I have to inform you that it is your privilege to be furnished with a copy of the indictment if you desire it. Do you desire to be furnished with a copy of the indictment ? The Prisoner. — I do, my lord. [A copy of the indictment was handed to the prisoner.] The Lord Chief Justice. — I have further to inform you, that the Court, on your nomination, is prepared to assign you an attorney and counsel, the number of counsel not to exceed two. Are you now prepared to nominate counsel or attorney ? The Prisoner. — The arrangements with my leading counsel are not yet completed, and I pray your lordship that pending those arrangements you will allow an application to be made to the Court by my junior counsel, Mr. Francis Meagher. The I^ord Chief Justice. — We shall hear any application you desire to be made through counsel. Are you prepared at present to nominate an attorney ? The Prisoner. — Quite so. The Lord Chief Justice Whom do you nominate ? THE QUEEN ir. THOMAS FRANCIS MEAGHER. 19 The Prisoner. — Mr. Kirwan, of Thurles. The Lord Chief Justice. — Then let Mr. Kirwan, of Thurles, be appointed. If Mr. Kirwan, between this time and the day on which you will be called upon to plead, which will be next Friday, will name the counsel to the Clerk of the Crown, the Court wiU thereupon appoint him your counsel. On Friday next the five days, which are allowed by law, will have expired, and upon that day the Crown will be entitled to call on you to plead to the indictment. THE QUEEN t;. PATRICK O’DONOHOE. The Lord Chief Justice. — Patrick O’Donohoe, the Grand Jury have found a true bill against you for high treason, and I have to inform you that you are entitled to a copy of the indictment. Do you desire to be furnished with a copy of the indictment ? The Prisoner. — Yes, my lord. [A copy of the indictment was then handed to the prisoner.] The Lord Chief Justice. — Are you now prepared to nominate an attorney and counsel whom the Court may assign you ? The Prisoner. — I am not prepared to nominate an attorney at present, but I shall be prepared in the course of to-morrow. The Lord Chief Justice. — Are you prepared to nominate counsel ? The Prisoner. — Yes, my lord, — Mr. Francis Meagher. The Lord Chief Justice. — You are at liberty to name a second counsel if you think proper. The Prisoner. — Perhaps your lordships will allow me until to-morrow to do so ? The Lord Chief Justice Certainly ; you can do so any time between this and Friday next. You are now apprized that the Crown will be entitled to call on you to plead on Friday next — not sooner. The Prisoner. — Very well, my lord. [The prisoners were then removed.] THE QUEEN v. THOMAS FRANCIS MEAGHER. APPLICATION FOR COPY OF JURY PANEL. Mr. Francis Meagher. — My lords, I have an application to make on behalf of Mr. Meagher. I understand your lordships have directed the prisoner to be removed, but the application should be made in his presence. c 2 20 SPECIAL COMMISSION, CO. TIPPERAR5f. [The prisoner was ordered to be again placed at the bar.] The Lord Chief Justice. — You are assigned as one of the counsel by each of the parties? Mr. Meagher. — It is not intended that I should be one of the counsel that your lordships will recognise ; but I beg your lord- ships wiU allow me to make a collateral application to the Court on his behalf. The Lord Chief Justice. — On behalf of Mr. O’Donohoe? Mr. Meagher. — On behalf of Mr. Meagher, my lord. I shall not be recognised as counsel for him on his trial, but the assign- ment does not extend to a coUateral application. The Lord Chief Justice. — We have no objection to hear any gentleman of the bar. What is yom* application ? Mr. Meagher. — It is an application, my lords, on the part of Mr. Thomas Francis Meagher, grounded on the affidavit of Mr. Kirwan his attorney, that he may be furnished with a copy of the panel. It is necessary I should open to your lordships the facts which are stated in that affidavit, in order that your lordships may understand the grounds on which the panel is sought for. I am not prepared to press the application, as I understand the Attorney-General disputes it, as a matter of right ; and, without entering into the question of right at all, I make the application, leaving it to your lordship’s discretion. The affidavit of Mr. Kirwan is as follows : — The Queen '| “ Patrick Kirwan, of Tliurles, in the county ! of Tipperary, Attorney for the prisoner, rr T? TVT^ . ^ I maketh oath, and saith, he is informed and Ihomas r. Meagher. t r . .1 1 r • j J believes that the panel ot jurors summoned to this commission is now returned to the office of the Clerk of the Crown ; saith, that for the last fifteen years he has been frequently engaged in the defence of prisoners in said county, and deponent has had considerable experience therein, and is well acquainted with the persons who have usually served and been summoned on juries in said county. This deponent saith that he has made diligent inquiry as to the persons summoned to attend at said commission, and deponent is informed, and which he believes to be true, that a great number of persons duly qualified to serve on juries, and who have for years past been summoned, and in the habit of serving on juries in the said county, have not been summoned to this commission, and are omitted from this panel. Deponent is personally acquainted with many of the said persons omitted at this commission as aforesaid, and saith that they are, and have been always considered to be unprejudiced, upright, and intelligent jurors, and usually sworn on the trial of capital offences, without challenge from the prisoner or objection from the Crown. This deponent saith that he is also informed, and which he believes to be true, that notwithstanding the omission of said several persons, a great number of persons have been placed on said panel either unqualified or greatly inferior in property, education, and intelligence to those so omitted. This deponent saith that the omission of said persons from THE QUEEN i-. THOMAS FRANCIS MEAGHER. 21 said jury panel, and the order and constitution thereof, as aforesaid, would be highly prejudicial to the prisoner, and tend to deprive him of the benefit of a trial before a fair and impartial jury. This deponent saith he is advised and believes that it will be proper for deponent to challenge the array of said jury or to apply to the Court in respect thereof, and saith that in order to be prepared with evidence to sustain said challenge or application, and point to the objections made thereon, it will be necessary that the prisoner should be fur- nished with a copy of said panel ; and saith this affidavit, and the ap- plication to be grounded thereon, and the challenge intended in respect of said panel, is not, nor is any of them, made for the purpose of delay, or in any way to embarrass the Crown on the trial of this cause, but solely to procure for the prisoner a fair and impartial trial before an unbiassed jury. “Patrick Kirwan. “ Sworn before me in open court, this 22nd day of September, 1848. “ Francis Blackburne.” Those are the facts of the affidavit. One of the great objects is, to avoid any delay when the trial conies on ; and the second is, to render any discussion unnecessary, if it should turn out, on a general examination of the panel, that there is not a substantial objection to it. I am prepared to say that the apphcation is not made with the remotest intention of improperly embarrassing the Court with a motion that is not substantial. I would remind your lordships that in England it is a matter of right under the statute, and that in this country it is a matter of discretion. Where there is a gentleman putting forth his belief, and pledging his oath to that belief, in order that to challenge the array suc- cessfully, an apphcation to the Court wiU be necessary, to enable the party to be prepared with evidence to sustain that challenge, we trust it will be allowed. It is necessary to know the nature of the panel, the persons who are on it, and to show that those who are excluded are such as ought to he upon the panel. It is with that view I make the motion to your lordship’s discretion ; and I suggest that an application of this kind cannot prejudice the Crown in the slightest degree, because they have the right to put by every man to the end of the panel, in order that proper persons should be on the jury. It can only tend to the due administration of justice, to have the prisoner tried by a jury in whom he may place confidence, and that he may feel he is having a fair and impartial trial. The Attorney-General . — Has that affidavit been sworn? Mr. Meagher . — It has. The Clerk of the Crown . — There is no jurat Is it sworn ? Mr. Kirwan. — Yes, I swore it. The Attorney- General . — As well as 1 can collect the sub- stance from what has been stated, for we have not had any notice of this application, nor been furnished with a copy of the 22 SPECIAL COMMISSION, CO. TIPPERARY. affidavit, the allegation is this — that from some information the person who has made it has received, as to the persons who have been summoned to serve as jurors at this commission, he believes that they are not those who have been usually sum- moned, or something to that effect. The Lord Chief Justice . — If you wish to have this matter considered to-morrow of course we will let it stand over. Per- haps you are not prepared to go on now. Mr. Meagher . — I hope I do not interrupt the Attorney- General. We would have given notice, but we did not conceive it right to make an affidavit, or to do any thing on the subject, until the bill was actually found. The Attorney-General . — I was not finding fault with the thing not being done. I was merely accounting for myself only being able to collect in court the substance of the affidavit. From what I can collect of the affidavit, the allegation is, that there is an imputation made on the Sheriff. There is a further statement made, that it probably may become necessary, or advisable, to challenge the array, on the ground that this panel has been improperly summoned by the Sheriff on this occasion. As well as I can coUect it, it is confined altogether to an imputation on the Sheriff ; for there is no allegation of any interference, or any thing of that description. So far as I am concerned, on the part of the Crown, I cannot yield to any suggestion throwing blame on a public officer in the discharge of a duty of this description merely from guess. My lords, from what has already occurred, the other parties will be certainly arraigned before Mr. Meagher can be ; and probably a trial will proceed on Thursday, which will give an ample opportunity to the parties — the panel being then returned, and the jurors names called over — of becoming acquainted with it. And, my lords, above all, this is not exactly the time to allow gentlemen who have been summoned as jurors, in the discharge of a very important, but, at the same time, not very agreeable public duty, to be exposed either to intimidation or to any other course that might be pursued. I do not mean to say by Mr. Meagher, who may not have the opportunity, but certainly by persons engaged in the transaction which is the subject-matter of the present inquiry. It is not at all asked for as a right ; it is pressed as a matter of convenience, to enable the party to challenge the array. When the panel is actually fur- nished in open Court, when the names are called over, and when the party will have some better means than a mere guess upon which to make his affidavit, he may then apply to the Court in their discretion to allow him time, for the purpose of putting forward a challenge. I am not aware of any authority, and none has been cited, to show that the party is entitled to it as of right. It certainly is not necessary for the ends of justice to expose the gentlemen who have been summoned to any intimidation, or to THE QUEEN v. THOMAS FRANCIS MEAGHER. 23 any other course that might be taken against them. Therefore, I submit that the Court, in the exercise of its discretion, will not yield to an application of this description. As far as I recollect, there is no authority which says that some weeks before the trial can take place an application of this sort can be granted, on an allegation that on an investigation into it, the party will find ground for challenging the array. The Solicitor- General . — It is perfectly plain, according to the practice, that the whole panel must be called over on the very first trial. That trial will take some time at least. The compo- sition of the panel will be then known ; the jurors will aU be in the town of Clonmel, attending their duties ; and the party, if he has any ground of complaint, which will be a good ground of challenge, will have a full opportunity of meeting the case sug- gested by Mr. Meagher. Mr. Meagher . — I have not the slightest desire to press this unreasonably on the Court. I feel there is one objection made by the Attorney-General which would call for an answer in this case, and that is, that gentlemen ought not to be exposed to intimidation, by reason of having their names known such a length of time before the trial. That might be a reason for not granting a copy of the panel. At present, all I would desire is, that a copy of the panel should be furnished at a con- venient time before it is necessary to hand in the challenge, in order to enable the party to substantiate the ground on which he relies in the challenge. A refusal of this panel would, in effect, amount to a denial of justice. There is no part, in the adminis- tration of justice, of greater or half so much importance, as that the party who is to be tried should be tried before a fair and impartial jury. It gives confidence to the prisoner, and to all parties; and a conviction from such a jury is far more satisfactory than it could possibly be by a jury who might be supposed to have been prejudiced. Suppose it should turn out ultimately that there w^ere grounds for the suppositions put forward in this affidavit, it would be very unsatisfactory to the Crown, to the Court, and to the public, to know that the prisoner w^as denied an opportunity of investigating them. Therefore, without ob- taining this panel, it is utterly impossible to sustain the chal- lenge. Excluding persons from the panel who would be likely to acquit, or putting persons on the panel who would be likely to convict, or otherwise improperly arraying them upon the panel, in point of law, would be a good challenge. Then if in point of fact, several persons have been excluded from this panel, it is only reasonable that we should be afforded an oppor- tunity of seeing whether the entire of the persons put on the panel have been impartially arrayed or not. I do not ask it now, when the panel is not called over ; but unless we get it within a reasonable time, it will be useless. This county is sixty 24 SPECIAL COMMISSION, CO. TIPPERARY. miles from one end to the other ; and some of the jurors may come from the other end of it. Evidence must be produced from the immediate neighbourhood, to prove who they are, and every thing about them; and in order to support the challenge, a body of evidence would have to be collected immediately. So that without a copy of the panel, it is impossible that the prisoner could be prepared, if he was called on, to sustain the challenge immediately on the panel being read. I have no other purpose in calling for it, but the purpose of securing a fair trial. I trust your lordships will think that I am not pressing for a copy of the panel at an unseasonable time, or when it would be im- proper towards any party to get it ; but that I seek to get it at a convenient time for the accused to sustain the challenge. I hope the Court will not think it necessary to refuse to this prisoner what the statute law of England would entitle him to for the same offence if tried in England. The Lord Chief Justice . — This is not an application of right on the part of the prisoner. It is perfectly plain he has no right to a copy of the panel. Then he rests the application on this ground, that it will enable him to decide whether or not he shall challenge the array, or, in other words, whether he shall decide on imputing corruption in the formation of this panel to a public officer. There are no grounds whatever stated in this affidavit to warrant any such imputation, or to induce the Court to grant any means for the purpose of founding that imputation. We must, therefore, refuse the application. [The prisoner was then removed.] The Lord Chief Justice {addressing the Grand Jury ). — Will it suit your convenience to attend to-morrow, gentlemen ? The Foreman . — I understand there are two more biUs to be sent up to the Grand Jury. The Lord Chief Justice . — One only to-morrow. I think it right to inform you that there are other biUs of indictment with respect to which your attendance will be requisite. To-morrow there is only one bill which will be presented. [The Court then adjourned tdl eleven o’clock the following morning.] Saturday, September 23, 1848. [Their lordships took their seats on the bench at eleven o’clock. The names of the Grand Jury were called over, and all answered.] Mr. Justice Moore. — Gentlemen, if you will have the goodness THE QUEEN i-. EDMUND EUAN AND OTHERS. 25 to communicate with the Sheriff when you have disposed of any of the bills, the Court will attend to receive them. The Foreman. — Are there any more bills than those we have at present ? The Clerk of the Crown. — Not for to-day. [The Grand Jury then retired, and at one o’clock returned into court.] THE QUEEN 2;. EDMUND EGAN AND OTHERS. The Clerk of the Crown. — Gentlemen, have you found any bdls? The Foreman. — We have. The Clerk of the Crown. — Against whom ? The Foreman. — We have found true bills against Edmund Egan, John Cormack, William Peart, Thomas Finnane, David Cunningham, John Brennan, John Preston, and Thomas Stack, for high treason. [The prisoners were placed at the bar.] The Lord Chief Justice. — Edmund Egan, John Cormack, William Peart, Thomas Finnane, John Brennan, John Preston, and Thomas Stack, the Grand Jury have found bills of indictment against you for high treason, and I have now to inform you that, if you require it, you are each to be furnished with a copy of the indictment. Do you wish to have a copy of the indictment ? The Prisoners. — Yes, my lord. [A copy of the indictment was handed to each of the prisoners.] The Lord Chief Justice. — Having now been furnished with copies of the indictment, I have to inform you, that on Saturday next, the 30th of September, you will be called on to plead. I have further to inform you, that you are each privileged to name an attorney and two counsel to conduct your defence. Are you, or any of you, ready now to nominate an attorney and counsel ? [The prisoners made no ‘ reply, appearing not to understand the intimation of the Court.] If you are not, you may either do so on next Saturday, or any time between that day and this. [The prisoners still made no reply.] You are aware, I have already told you that each of you are entitled to appoint an attorney and two counsel for your defence : are you prepared to do so now ? 26 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Strahan {Governor of the prison). — They say Mr. Vere Lane, my lord. The Lord Chief Justice. — For all of them ? Mr. Strahan. — Yes, my lord. The Lord Chief Justice — Then let Mr. Vere Lane be ap- pointed attorney for each of them. Mr. Strahan. — Egan, my lord, says he has not made up his mind as to his attorney yet. The Lord Chief Justice. — Then with respect to all, except Egan, let Mr. Lane be appointed their attorney. Egan, you can, between this and next Saturday, or upon next Saturday, name any attorney you think proper ; and upon your doing so, the Court will make an order to assign you such person. Now, with respect to all of you, are you prepared to name counsel to con- duct your defence, or do you wish to defer it until next Saturday, or any intermediate day ? [The prisoners made no reply.] You do not seem to understand me. Let them be informed, Mr. Gaoler, that I have distinctly told them, that they may either nominate their counsel now, or do so between this and next Saturday, or on next Saturday. If your attorney mentions to the Clerk of the Crown, at any time between this and the sitting of the Court on Saturday, that you have appointed any counsel, not exceeding two for each of you, or it may be the same two counsel for each, they will be assigned as your counsel by the Court. The Prisoners. — Thank your lordship. [The prisoners were then removed.] The Lord Chief Justice. — Mr. Attorney, have you any other bill of indictment ready for the Grand Jury ? The Attorney- General. — No, my lord, not at present. I do not think, considering that the petit jury are discharged until Thursday, that it will be necessary to require the attendance of the grand jurors until then; by that time we shall probably have some more bills ready for them. The Lord Chief Justice Then there is no purpose for which the sitting of the Court will be required between this and next Thursday ? The Attorney -General. — I should think not, my lord. The Lord Chief Justice. — Gentlemen of the Grand Jury, you are discharged until Thursday next, when your attendance wiU be required at eleven o’clock. [The Court then adjourned till the following Thursday, at ten o’clock.] THE QUEEN i;. WILLIAM SMITH O’BRIEN. 27 dFourtf) Baj?, Thursday, September 28, 1848. [Their lordships took their seats on the bench at eleven o’clock.] The Attorney-General , — I have to move, my lords, that Mr. William Smith O’Brien, and the other prisoners, against w^hom the first bill of indictment was found, should be brought up, in order to their being called upon to plead. Mr. Potter . — My lords, Mr. O’Brien’s counsel have not yet come into court. Perhaps the Attorney-General will not press for Mr. O’Brien to plead till they arrive. I have sent for them, and expect that they will be here immediately. The Lord Chief Justice . — Are the other prisoners in court ? Mr. Strahan. — Yes, my lord. The Lord Chief Justice Let them be put forward. THE QUEEN i;. JAMES ORCHARD, DENIS TYNE, AND PATRICK O’DONNELL. ASSIGNMENT OF COUNSEL. [The prisoners were placed at the bar.] The Lord Chief Justice . — James Orchard, Denis Tyne, and Patrick O’Donnell, are you prepared to assign counsel ? Mr. Vere Lane {solicitor for the prisoners ). — My lord, I wish to name Mr. O’ Callaghan for each of the prisoners. The Lord Chief Justice . — That is one counsel for each ? Mr. Lane . — That is all, my lord. The Lord Chief Justice . — Then let Mr. O’Callaghan be assigned as counsel for each of the prisoners. [The prisoners retired.] THE QUEEN v. WILLIAM SMITH O’BRIEN. The Attorney- General . — I would wish, my lord, that Mr. William Smith O’Brien be now put forward, that he may be arraigned, and in order that we may know whether he is pre- pared to plead. [The prisoner was placed at the bar.] The Clerk of the Crown . — William Smith O’Brien, you stand indicted Sir C. O'Loghlen . — Wait a moment, Mr. Pedder. [The learned counsel handed a paper to the prisoner, which he requested him to read.] 28 SPECIAL COMMISSION, CO. TIPPERARY. Prisoner {after having looked over the paper ). — I am pre- pared to swear that. [Prisoner signed the paper, and was sworn to the truth of its contents. The affidavit was then handed up to the Bench, and having received the signature of the Lord Chief Justice, was delivered to the Clerk of the Crown.] “IN THE COURT OF OYER AND TERMINER AT CLONMEL. THE QUEEN V. WILLIAM SMITH o’bRIEN. William Smith O’Brien the prisoner in this case maketh oath and saith that he is advised and believes that he is entitled before he is bound to plead to the indictment which has been found against him to a copy of the indictment and a list of the witnesses to be produced to support the same and of the jury and that the same should be furnished to him ten days before the trial and deponent saith that he was furnished for the first time on Thursday the 21st instant with a copy of said indictment and that ten days have not since elapsed and that no list of the witnesses or of the jury have been delivered to him or to any person on his behalf. “William Smith O’Brien. “Sworn before me in open court this 28th day of September 1848 at Clonmel in the county of Tipperary. “ Francis Blackburns.” APPLICATION TO POSTPONE TRIAL FOR NON-DELIVERY OF LISTS OF JURORS AND WITNESSES. Mr. Whiteside . — My lords, perhaps this is the proper time to mention, on the part of Mr. William Smith O’Brien, the reasons why, in my opinion, this trial cannot now be proceeded with ; and that it must be postponed until such time as your lordships may think right, under the due construction of the act of Parliament upon which we make the present application. In the case of the Queen v. Frost, reported by Mr. Gurney, page 47, the objection for want of list of witnesses, was taken at the Special Commission at Monmouth ; and it was there stated by the Court, that it must be made before arraignment. If it were an objection to a parti- cular witness on the ground of misdescription, of course that objection would arise during the progress of the trial. It is a short question, but one of great importance, whether the pris- oner is entitled, under the act of Parliament which now applies to this country, to a copy of the jury panel, and a list of the wit- nesses. That is the question. It is very extraordinary, that living as we do, as it is said, under like laws, that there should be one law in England and another in Ireland in a matter which goes to the very root of the defence of a party accused for high treason. Looking to the recital of the act of Parliament in England, I find it stated that it is absolutely essential for a party accused, in order THE QUEEN i;. WILLIAM SMITH O’BRIEN. 29 to prepare for his defence, that a copy of the panel and a list of the witnesses should be furnished to him. Of course, your lord- ships cannot make the law ; and it is merely a question upon the true construction of this act, whether Mr. Smith O’Brien has the same advantages if tried in Ireland that he would have if tried in England. My lords, the statute 7th William III., c. 6, sec. 3, an English statute, gives to the party accused of the crime of high treason a copy of the indictment ; and also a copy of the panel of the jurors who are to try the prisoner, duly returned by the Sheriff, must he delivered to him two days at least before the day upon which he is to be tried for the offence. The statute 7th Anne, c. 21, sec. 1 1, also I admit, an Enghsh act, enacts, that when any person is indicted for high treason, a hst of the witnesses who should be produced at the trial for proving the indictment, and of the jury, mentioning the names and the professions and places of abode of the wit- nesses, shall he also given at the same time that the copy of the indictment is given to the party indicted. It is just worth observ- ing, my lords, in passing, that the life of Frost was saved upon this nice point : they delivered him a list of the witnesses, and a copy of the panel, and a copy of the indictment, all ten days before the trial ; but they did not deliver them to him at the same time — and a large and respectable minority of the English bench held, that that was not a compliance with the statute ; and his life was spared in consequence. The 36th George III. is the next Act of Parliament, which I also admit to be an English Act. That statute, as your lordships know, was an Act of Parliament which made compassing to depose the King, and compassing to levy war, treason ; and it also re-enacted the old treasons, declared to be treasons, and enacted as such by the 25th Edward III. That act was passed before the Union, and therefore it is an English act. The 57th George III., c. 6, which is an act made since the Union, and upon which chiefly this question will arise, having recited the Act of 36th George III., which was hut temporary, and applied merely to the life of the then King, in section 1 provides : — “ That all and every the hereinbefore recited provisions ” Among which was that of compassing the death of the King. which relate to the heirs or successors of His Majesty, or the sovereigns of these realms, shall be, and the same are hereby made perpetual.” And then section 2 provides that — “ Whereas, in consequence of the daring outrages offered to the person of His Royal Highness the Prince Regent of the United Kingdom of Great Britain and Ireland ” With respect to acts of Parliament since the Union, your lord- ships are aware that the ordinary and universal phraseology made use of is, “The United Kingdom,” because it is — at least it is 30 SPECIAL COMMISSION, CO. TIPPERARY. popularly supposed that there is but one kingdom and one Parlia- ment. Therefore, an act of Parliament passed with respect to the United Kingdom includes all parts of the United Kingdom, that is to say, it includes Ireland. There must be a distinct exception negativing its application to Ireland, in order to exclude Ireland. This section of the act stating, that outrages having been oifered to the Prince Regent, and soforth, enacts — “ it is expedient for the security and preservation of the same. His Royal Highness the Prince Regent, to extend certain of the provisions of the said Act.” Such is the 36th George III. The 57th George III. then enacts — “ That if any person whatsoever, after the passing of this act, during the period in which His Royal Highness the Prince Regent shall remain in the personal exercise of the royal authority, shall, within the realm or without, compass, imagine, invent, devise, or intend death, or destruction, or any bodily harm, tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the same. His Royal Highness the Prince Regent ; and such compassings, imaginations, and soforth, shall express by writing, then he shall be deemed and ad- judged to be a traitor and traitors, and shall suffer pains of death.” By section 4 it is provided — and that is the only other section with which I shall trouble your lordships — “ That all and every person or persons who shall at any time be accused or prosecuted for offences made or declared to be high treason by this act, shall be entitled to the benefits of an act made in the seventh year of his late Majesty King William the Third, entitled, ‘An Act for regu- lating trials in cases of treason, and misprision of treason;’ and also to the provisions made by another act passed in the seventh year of her late Majesty Queen Anne, intituled ‘An Act for improving the union of the two kingdoms,’ save and except in cases of high treason, where the overt acts alleged shall be an attempt upon the life of the Prince Regent, or of the reigning Monarch, or his heirs or successors.” Now, my lords, the simple question here is, does this act of Parliament extend to Ireland ? because if it does there is an end to the discussion. What is there to prevent its including Ireland ? The words of the act are — “ All and every person who shall at any time be accused or prosecuted for any offence made or declared by this act ” Now, Mr. Smith O’Brien is indicted for high treason, declared to be such by this act of Parliament — for compassing the death of the Queen — therefore, he plainly falls within the words of this act of Parliament. The sixth count of this indictment against him is for compassing the death of the Queen ; and the words of this act are declaratory, that is to say, if any person shall be indicted for an offence, not merely made for the first time by this THE QUEEN y. WILLIAM SMITH O’BRIEN. 31 act, but for an offence which by it is declared to be treason, he is to have a list of the witnesses, and a copy of the panel of the jurors. Now, Mr. Smith O’Brien is indicted for an offence declared to be treason by this act. Does that act extend to Ire- land ? What is the rule of law with respect to acts made in the form in which this is ? This is a general act, for I quite admit that there is no section of it which says, “ Be it enacted, that this act shall extend to Ireland.” I apprehend there will not be found a single case since the Union — if there could it will, no doubt, be quoted by my learned friend the Attorney-General — where it ever was held that it required such a clause in the act to make it extend to Ireland. But the point is ruled. In the last edition of “ Dwarris on the Statutes,” page 526, it states — “ Since the Union, all acts of Parliament extend to Ireland, whether ex- pressly mentioned or not; unless that portion of the United Kingdom be expressly excepted, or the intention to except it be otherwise plainly shown. So, if it is intended to except Scotland, there must be an express proviso to that effect, or the intention of the Legislature to except it, must be otherwise sufficiently indicated.” And what is the case quoted in support of the principle ? — The case of the King v. Cowle, 2nd Burrowes, page 853, by Lord Mansfield. Except, therefore, the Attorney-General can make a distinction between Scotland and England since the Union, and Ireland and England since the Union, that would seem to be an authority upon the very point. I quite admit that it might be argued, from the form of the act of Parliament, that it was upon the face of it clearly and distinctly intended to refer only to England. Your lordships will be good enough to observe this statute. The 2nd section, which speaks of persons “ who shall be legally convicted thereof, upon the oaths of two lawful and credible witnesses,” is a positive and enacting section. The section which gives the form of trial by which the party is to be legally convicted, is in the shape and form of a proviso — that is, this section begins with the word ‘"provided.” Therefore, sections 2 and 4 may be read as incorporated. The prisoner here is to be punished ; for what ? For compassing the death of the Queen, if legally convicted in the manner pointed out by this act of Parliament. What is there to exclude Ireland from this statute ? Compassing the death of the King is the same offence in Ireland as it is in England. It is declared an offence by this statute, and Ireland is not excluded. Now, taking the case of the Prince Regent, as he did, in point of fact, visit Ireland — is his life of no consequence in Ireland, and of so much importance in Eng- land ? And if mischief might arise in Ireland, there is no con- ceivable ground why the act ought not to apply to Ireland, if there is no clause excepting Ireland, and if the language of the act is general — speaking of the United Kingdom ; and I shall 32 SPECIAL COMMISSION, CO. TIPPERARY. respectfully ask the counsel for the Crown for the production of a single case excluding Ireland from the beneficial operation of an act of Parliament made for the protection of life. I can understand a case decided upon the Bankrupt Act, where the Court of Exchequer, after a long and difficult argument, held that certain provisions of that act could only be performed in England. There the argument was still insisted upon by counsel, that, because there was no clause excluding Ireland, Ireland was included. The grounds of that decision were, that the machinery of the act applied to the local law of England, and not to the general law of both countries. Here, that reason does not apply ; and I do therefore respectfully submit, upon the construction of that act, even if it stood by itself, but coupled with the authorities, that the case is clear. But if any doubts remain, as to whether that act applies to this country or not, — and I must say, in justice to the gentlemen who framed this statute of the Queen, which I hold in my hand, they never thought there was any doubt about it — the doubt is removed. I have heard it said, that doubts were entertained — I do not know by whom. This 57th George III. has never yet received any judicial decision ; and it will now, for the first time, get a judicial inter- pretation from the Court, there never having been any case of high treason since it was passed, in this country. I would also draw your lordships’ attention to section 2 of the present act of Parliament, 1 1th Victoria, c. 12, for the second head of what I offer to the Court — which is simply this : sup- posing your lordships should be of opinion — and I cannot bring myself to believe that you wiU — that this act does not extend to Ireland, because it says nothing about Ireland, but speaks of the United Kingdom, and the Prince Regent of England and Ire- land ; if your lordships should be of opinion, that upon these grounds Ireland was excluded, then the second branch of the argument arises — which is, that by this act the statute of 57th George III. is expressly and directly made applicable to Ireland, so far as it goes to granting to the prisoner a benefit, which in England, of course, no judge or counsel would for a second deny him. Section 2 of this act provides, and 1 call your lordships’ attention to the fact, that it is a declaratory and enacting section, and that it is drawn up in the very way in which Lord Coke says a declaratory law is always expressed, ‘‘ Be it declared and enacted” — “ That such of the said recited provisions, made perpetual by the said act of the fifty-seventh year of the reign of King George the Third ” That is the act which I have just read to the Court. as are not hereby repealed, shall extend to, and be in force in, that part of the United Kingdom.” That is the correct phraseology : there is but one kingdom ; THE QUEEN v. WILLIAM SMITH O’BRIEN. 53 and this act is to extend to “ that part of the United Kingdom called Ireland.” Now, every crime and every clause which is not expressly repealed of the 57th George III., by this section is made in terms applicable to Ireland. We must now fall back to the preamble, and to the antecedent section, in order to see what is repealed and what remains in force. The antecedent section, with respect to the 57th George III., having set it out, it then states — “ Whereas doubts are entertained, whether the provisions, so made perpetual, were by the last-recited act extended to Ireland ” Now, it is very remarkable, the able men who drew up that law in England, did not believe that it did not extend to Ireland ; but they have introduced the words — “ Whereas doubts are entertained, whether the provisions, so made perpetual, were by the last-recited act extended to Ireland ” If there be a doubt in this case — a criminal case — I am entitled to the benefit of that doubt. It is, my lords, because of these doubts that section 2 is in a declaratory form. The act then proceeds — “ and whereas it is expedient to repeal all such of the provisions, made perpetual by the last-recited act ” That is, 57th George III., c. 6. “ which do not relate to ofiences against the person of the Sovereign, and to enact other provisions instead thereof, applicable to all parts of the United Kingdom, and to extend to Ireland such of the provisions of the said act as are not hereby repealed ” That is as plain as light; that every part of the 57th George III., c. 6, not repealed is extended to Ireland. Then, my lords, the act proceeds — “ That from and after the passing of this act the provisions of the said act of the thirty-sixth year of the reign of King George the Third, made perpetual by the said act of the fifty-seventh year of the same reign, and all the provisions of the last-mentioned act ” That is, the 57th George III., c. 6. in relation thereto, save such of the same, respectively, as relate to the compassing the death of the King, are repealed.” That is aU that it is necessary for me to read. Every thing then relating to the compassing of the death of the King, is by the terms of the antecedent portions of this section directly extended to Ireland. And not merely for the first time, but it is extended D 34 SPECIAL COMMISSION, CO. TIPPERARY. by incorporating in tliis act the 57th George III., c. 6, reciting all the provisions in that act -which refer to the crime — which is still made a crime and extended to Ireland by this act. If that be so, the single question is, whether the prisoner is now indicted for a crime, which by this act is made to extend to Ireland, extending necessarily thereby in terms the 5Tth George III., c. 6, to this country. The crime of compassing the death is excluded from this act. The crime of compassing the death is included in the 57th George III. Every crime, excluding crimes affecting the person of the Sovereign is in terms extended to Ireland. There- fore all the provisions of the 57th George III., c. 6, in relation to it are also extended to Ireland ; because, if your lordships will be good enough to recollect what I submitted to you, upon the 2nd and 4th sections of the 57th George III. ; the 4th section being in the form of a proviso is incorporated with the second ; and when that portion of the 57th George III. which relates to the compassing the death of the King, is made perpetual and extended to Ireland, the necessary and inevitable provisions for the protection of the prisoner are extended to this country also. Now, my lords, I may be met by the answer which I regret to say has been given me more than once in capital cases, and in one very remarkable case, and with a very singular result. Upon the construction of an act of Parliament in the case of Samuel Gray, I sought for leave to challenge a juror, and I was told that the Irish practice, founded upon a certain act of Parliament, did not give that right to the prisoner. That Irish practice went to the House of Lords and was reversed. Here there is no practice, because there has been no decision upon the 57th George III. up to the present time. If therefore it be a matter of doubt, I confidently anticipate your lordships’ decision in favour of the prisoner. It is a fixed rule in the criminal law, that if there be a matter of doubt upon evidence, it is to be rejected where it would make against the prisoner, but it is to be received where it would make in his favour. I want to hear from your lord- ships — I cannot expect to hear it from the Attorney-General — why it should be the law, that in a country which boasts of being governed by one Legislature, and being one United Kingdom ; there should be one law for a party tried for high treason in Eng- land, and another law for a party tried for the same offence in Ireland ; showing that it is a vulgar error, to suppose that there is one law, or like laws, for both countries. My lords, I rely upon the terms of this 57th George III., as giving me what I ask. If your lordships should think that it does not, then, with great deference I rely on the 11th Victoria, c. 12, extending the provisions of the 57th George III. to this country, in so far as the crime for which the prisoner is indicted is concerned, which undoubtedly gives him all that the 57th George III. would give him in England, and that for reasons THE QUEEN i-. WILLIAM SMITH O’BRIEN. 35 wliicli I hope will some day or other be admitted here ; that they have said in England, that a party tried for his life ought to know the names of the jury who are to take that life away. I therefore humbly submit to your lordships, whether upon the resonableness of the request or the construction of this Act, that I am entitled on the part of Mr. William Smith O’Brien to what I ask, he having been sworn upon his affidavit, that neither a copy of the panel nor a list of the witnesses having been given to him — and, that the trial as it now stands cannot be proceeded with. The Attorney-General. — Would your lordships allow us to retire for a few moments, to look into this point which has now been raised. The Lord Chief Justice. — Certainly. [The counsel for the Crown retired, and after a short absence returned into court.] The Attorney-General. — My lords, upon the part of the Crown I have very respectfully to submit, that the prisoner is not entitled to what he now requires ; which is, that he should not be arraigned until he is furnished with a copy of the jury panel, and also a list of the witnesses intended to be produced on behalf of the Crown against him. It is conceded, of course, that at common law no such right exists ; and the only question there- fore is, whether there is any statute in force in Ireland, entitling the prisoner either to the list of the witnesses or to a copy of the jury panel. The first count of this indictment is for actual levying of war, and is altogether under the statute of 25th Edward III. ; also the last count, to which my learned friend Mr. Whiteside referred, is for compassing the death of the Queen, and express- ing that compassing by certain overt acts, all of which overt acts are acts done, and which come expressly within the statute of 25th Edward III. Then, my lords, the question is whether, where a person is prosecuted for a treason not declared either by the 36th or 57th George III., but for a treason declared and enacted by 25th Edward III., there is any thing in the statute 7th William III., c. 3, or the 57th George III., c. 6, or the recent act of Parliament, extending the provisions of the statute of Wilham III. to a case of that description ? I respectfully sub- mit, my lords, that there is not. Lord Chief Justice Doherty . — The statute giving the list of witnesses is an English act, 7th Anne, c. 21. The Attorney -General. — Yes, my lord; it is further conceded that neither the act of Anne, nor the statute of William III., of themselves did extend to Ireland. That is conceded in the first instance. Then the next question is, does the 36th George III. extend to Ireland ? That does not extend to Ireland. It is a statute which declared certain treasons, which were not D 2 36 SPECIAL COMMISSION, CO. TIPPERARY. treasons before, during the life of the King and for a short time after the demise of the Crown. Then came the 57th George III., c. 6 — “ to make perpetual certain parts of an act of the thirty-sixth year of his present Majesty, for the safety and preservation of his Majesty’s person and government against treasonable and seditious practices and attempts, and for the safety and preservation of the person of his Royal Highness the Prince Regent against treasonable practices and attempts.” The 1st section of that act makes perpetual the provisions of 36th George III., c. 7, but does not extend its provisions to Ireland. The 36th George III., c. 7, was a temporary act. It was merely to remain in force for a particular time, and it is con- ceded it does not extend to Ireland. The 1st section of the 57th George III., c. 6, merely made perpetual, and did not at all extend the operation of that which was limited before. Therefore, I think, there can be no question but that it only had the effect of rendering perpetual in England, what was the tem- porary law in England, before the passing of that act, but did not extend that temporary act to Ireland. Then the 2nd section states — “ Whereas, in consequence of daring outrages offered to the person of his Royal Highness the Prince Regent of the United Kingdom of Great Britain and Ireland, in the exercise and administration of the royal power and authority of the Crown of this realm belonging, in his passage to and from the houses of Parliament ” And so on. “ It is expedient for the security and preservation of the person of the same, his Royal Highness the Prince Regent, to extend certain of the provisions of the said act, be it enacted that if any person or persons whatsoever after the passing of this act during the period in which his Royal Highness the Prince Regent shall remain in the personal exercise of the royal authority within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint, of the person of the same, his Royal Plighness the Prince Regent; and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, and declare, by publishing any printing or writing, or by any overt act or deed, being legally convicted thereof, upon the oaths of two lawful and credible witnesses, upon trial or other- wise, convicted or attainted by due course of law, then every such person or persons shall suffer the penalties of high treason.” That is evidently a section which applies merely to the time at which the Prince Regent was discharging his duties ; but it is not a section applying generally to any attempts that may be made against the person of the Sovereign. Then it says, — Be it enacted, that all and every person who shall at any time be THE QUEEN i;. WILLIAM SMITH O’BRIEN. 37 accused or prosecuted for an offence made or declared to be high treason by this act ” What were the offences made and declared treason by this act ? The new treasons introduced into it, for the first time, viz., compassing and imagining attempts upon the person of the Prince Regent. Then this act declares, that all persons, who shall be prosecuted for offences so made by this Act — “ shall be entitled to the benefit of an act made in the seventh year of his late Majesty King William the Third, entitled ‘ An act for regulating trials in cases of high treason and misprison of treason,’ and also to the provisions made by another act, passed in the seventh year of her late Majesty Queen Anne, entitled ‘ An act for improving the union of the two kingdoms,’ save and except in cases of high treason, for compassing or imagining the death of his Royal Highness the Prince Regent, and of misprison of such treason, where the overt act or overt acts of such treason, which shall be alleged in the indictment for such treason, shall be the assassination or killing of any heir or successor of his Majesty, or the assassination or killing of his Royal Highness the Prince Regent, or any direct attempt against the life of any heir or successor of his Majesty, or against the person of the Prince Regent, whereby the life of such heir or successor, or the life of the Prince Regent, may be endangered, or the person of such heir or successor, or of the Prince Regent, may suffer bodily harm.” Now, my lords, upon the provisions of that act I submit that there is nothing whatever altering the law of Ireland, in relation to prosecutions for high treason under the statute of 25th Edward III. Then comes the statute to which my learned friend, Mr. Whiteside, has not referred, which is the 1st and 2nd George IV., c. 24, which states The Lord Chief Justice. — Just go back to the section to which you referred last. The Attorney- General. — Yes, my lord. “ Be it enacted, that all and every person who shall at any time be accused or prosecuted for any offence made or declared to be treason by this act, shall be entitled to the benefit of an act made in the seventh year of his late Majesty King William the Third, entitled ‘An act for regulating trials in cases of high treason and misprison of treason,’ and also to the provisions made by another act, passed in the seventh year of her late Majesty Queen Anne, entitled ‘An act for improving the union of the two kingdoms, save and except ’ ” The Lord Chief Justice. — That section begins by stating that in cases of an indictment under this act, the parties shall be entitled to the benefit of the acts of William III. and Anne, “ except ” What is the meaning of the word “ except?” The Attoi'ney- General. — That is, my lord, to “ except” from the benefit of the acts those cases — 38 SPECIAL COMMISSION, CO. TIPPERARY. “ whereby the life of such heir or successor, or the life of the Prince Regent, may be endangered, or the person of such heir or successor, or of the Prince Regent, may suffer bodily harm.” Then, my lords, the statute of 1st and 2nd George IV. throws some light upon this subject. That act recites the 7th William III., c. 6. It recites some of the provisions of that act, and extends to this country only some of its provisions. There is the legislative declaration that the whole of that act does not extend to Ireland. Whereas by an act passed in the eleventh year of his late Majesty King William III., and intituled ‘ An act for regulating trials in cases of treason and misprison of treason,’ it is amongst other things enacted, that no person or persons whatsoever shall be indicted, tried, or attainted of high treason, wLereby any corruption of blood may or shall be made to any such offender or offenders, or to any the heir or heirs of any such offender or offenders, or of misprison of such treason, but by and upon the oaths and testimonies of two lawful witnesses, either both of them to the same overt act, or one of them to one, and either of them to another overt act of the same treason, unless the party indicted and arraigned or tried shall willingly, without violence and in open court, confess the same, or shall stand mute, or refuse to plead, or in cases of high treason shall peremptorily challenge above the number of thirty-five of the jury; provided always that any person or persons being indicted for any such treason, or misprison of such treason, may be outlawed, and thereby attainted of or for any such offences of treason, or misprison of treason ; and in case of such treasons, when by the law after such outlawry, the party outlawed may be allowed to come and be tried, he shall upon such trial have the benefit of the said act. And it is therein further enacted and declared ” Then certain enactments are provided. “ Whereas in the same aforesaid act it is further enacted, that no person or persons whatsoever shall be indicted or prosecuted for any treason or misprison of treason, that shall be committed or done within the kingdom of England, dominion of Wales, or town of Beriviclc- upon-Tweed, unless the same indictment be found by a grand jury within three years next after the treason or offence done or committed. And whereas the above-recited enactments and provisions of the said act do not extend to that part of the United Kingdom called Ireland, and it is expedient, just, and reasonable that they should be extended to that part of the United Kingdom: be it therefore enacted, . . . . That from and after the first day of January, in the year of our Lord one thousand eight hundred and twenty-two, the above-recited enactments and provisions of the aforesaid act, passed in the reign of King William, shall extend to, and be construed to extend to, and be in force to all intents and purposes whatsoever, in that part of the United Kingdom called Ireland, any law, statute, or usage to the contrary notwithstanding; provided always, and be it further enacted by the authority aforesaid, that in all cases of high treason in compassing and imagining the death of the King and of misprison of such treason, where THE QUEEN WILLIAM SMITH O’BRIEN. 39 tlie overt act or overt acts of such treason, which shall be alleged in the indictment for such offence shall be assassination or killing of the King ; or any direct attempt upon his life, or any direct attempt against his person, whereby his life may be endangered, or his person may suffer bodily harm, the person or persons charged with such offence in that part of the United Kingdom called Ireland, may be indicted, arraigned, tried, and attainted in the same manner, and according to the same course and order of trial in every respect, and upon the like evidence, as if such person or persons stood charged with murder.” Then by the statute 11 Vic., c. 12, it is enacted — “ That such of the said recited provisions, m.ade perpetual by the said act of the fifty-seventh year of the reign of George the Third, as are not hereby repealed, shall extend to, and be in force in, that part of the United Kingdom called Ireland! That does not appear to me to tlmow any light whatever upon the subject ; because if I am right in saying that this section of the 57th George III. merely applies to a new treason, and not to an old treason under the statute of Edward HI., it would follow, of course, that this being a prosecution under the statute of Edward III., the party is not entitled to what is now sought for. Upon these grounds, my lords, I respectfully submit, that there is no reason for complying with this appli- cation. The Solicitor-General. — I believe, my lords, that the Crown is entitled to the reply in this case. Mr. Whiteside. — No, Mr. Solicitor. I submit, my lords, that we are entitled to the reply in every collateral argument that may arise. It was so decided by the full Court, at the special commission in Monmouth, in the case of the Queen v. Frost. You must go on, Mr. Solicitor. The Solicitor- General. — In the case of the Queen v. O’Connell this question arose, and was decided in favour of the Crown. Mr. Whiteside. — I have got a full report of Frost’s case in the House of Lords, which I have referred to, and in every argument that arose pending the trial before Lord Chief Justice Tindal, Mr. Baron Parke, and the rest of the Court, the prisoner’s counsel. Sir Frederick Pollock and Sir Fitzroy Kelly, had the reply in the House of Lords. In “ Cox’s Criminal Cases,” page 414, a discussion arose in the case of O’Connell and the other traversers, upon this very matter. The Crown insisted upon the right of ultimate reply, because it was the prisoner in that case who had appealed. The Attorney-General there said — “ I believe the practice always is for the Crown to have the reply.” Lord Campbell says — “ In cases of writs of error from the Court of Exchequer, where of course the revenue was concerned, the counsel for the plaintiffs in error 40 SPECIAL COMMISSION, CO. TIPPERARY. have the reply. A similar course was adopted in Frost’s case, when I was Attorney-General; and I well remember that the present Attorney- General, who was one of the counsel for the prisoner, had the reply.” The present Lord Chancellor said — “ What we have now to consider is this, that in strictness these parties are all separate, so that they are entitled to he represented by different counsel, and they are therefore entitled in strictness to be heard by seven counsel if they please.” It was finally decided that they should each be heard by their counsel in reply, upon different points of the argument. This is a decision of the House of Lords. I submit, therefore, that the Solicitor-General ought to proceed. Mr. O’Connell had not the reply in the Queen’s Bench in Ireland, but he had in the House of Lords in England. Mr. Justice Moore . — Is there any other counsel for the prisoner? Mr. Whiteside. — Yes, my lord. The Lord Chief Justice . — We will hear you, Mr. Solicitor, upon the same side as the Attorney-General, without deciding who is to have the ultimate reply. The Solicitor- General. — Now, my lords, in addition to what has fallen from my learned friend the Attorney-General, I submit that there is no ground for this application. The indictment in this case, is one framed under the 25th Edward HI. In calling your lordships’ attention to the 36th George III., it is perfectly manifest, that the treasons created by that act were a new class of treasons. What was made treason by the 36th George HI. was not the law of the land till the passing of that act. That new class of treasons, created by the act of 36th George III., being only limited to the person of the then reigning Monarch, and arising from the circumstance of the disturbance of the times. Then came the 57th George HI., c. 6, perpetuating the existence of that class of treasons, which had not been treasons previous to the 36th George HI., annexing to that class of treasons, of course, the penalty of death. Then, in order to protect the person, there is another and substantial section, adding to it, what did not exist before the 36th George III., another new treason, viz. — the compassing the death of the Prince Regent, then exer- cising the sovereign power of the State. This new class of cases of high treason was thus created and perpetuated, but not extended to Ireland, by any express words of that statute, nor could it be, excej)t by express words. The statute of 57th George HI., taking it as an imperial statute, was nothing but perpetuating the existence of that class of treasons as applicable to England alone. If your lordships look to the 57th George HI., having thus made ^perpetual the treasons created by the 36th George III., and having created a new treason for the protection of the Prince Regent, you will observe, it is there, by section 4, pro- THE QUEEN i;. WILLIAM SMITH O’BRIEN. 41 viclecl, that the persons who should thus be subject to the penalties of high treason, under this new class of high treasons, should be entitled upon their trials to all the benefits which they would have if indicted under the statute of the 25th Edward III. Then, with respect to this saving, which I think your lordships’ attention was called to — it is the 4th section of the Act — Save and except in cases of high treason for compassing or imagining the death of his Royal Highness, the Prince Regent, or of misprison of such treason ” This is the particular class of treasons now excepted, in which the party shall not have the benefit of the statute of Anne. “ Where the overt act of such treason which shall be alleged in the indictment for such offence, shall be the assassination or killing of his Royal Highness, the Prince Regent, or any direct attempt against the life of any heir or successor of his Majesty, or any such attempts against the life of his Royal Highness the Prince Regent, or any direct attempts against the person of any heir or successor of his Majesty, or against the person of the Prince Regent, whereby the life of such heir or successor, or the life of the Prince Regent, may be endangered, or the person of such heir or successor, or of the Prince Regent, may suffer bodily harm.” Now, that was nothing but saving from these provisions any person who was indicted under the 36th George III., as perpetu- ated by the 57th George III. What was the sa\fing and excep- tion, as it existed previous thereto ? A person who was indicted for'high treason, where such overt acts alleged a personal attack upon the Monarch, or assassination, was not entitled to the bene- fit of the act of Anne, or to any of those preliminary guards, which were provided by that act upon a person being indicted for high treason. So that if that exception had not been introduced by the 4th section, the benefits given by the statute of Anne would be given to a person indicted under that statute for treason, thus created by the 36th George III.; and a person so indicted, where any overt act was for a personal attempt to assassinate the Sove- reign, would have had the benefits, which, if indicted under the statute of Edward, he would not have had. That was the meaning of that exception ; because there is nothing said about continuing that protection to the person of the Sovereign, making that a species of treason, for which, if a prisoner was indicted, he would not be entitled to the benefits of the act of Anne. That I con- ceive to be the meaning of this exception. Now that was the state of the law in 181 T. The law of high treason being the only law as it existed under the statute in England; the new treasons created in 1796, by the statute of 36th George III., not being high treason in this country. But by persons who were indicted for high treason under the statute of Edward in this country, this grievance was complained of ; and it was a complaint made in the trials of 1803 in Ireland — as has 42 SPECIAL COMMISSION, CO. TIPPERARY. been abeady stated by my learned friend, Mr. Whiteside — that if a man was indicted for high treason in Ireland, he might be convicted upon the evidence of one witness. Mr. Whiteside . — I did not say that. The Solicitor- General . — You were complaining of the inequality of the law. That was the law in 1803, and up to the 1st and 2nd George IV., that one witness was enough to estabhsh a conviction against a person indicted for treason in Ireland, the law in Eng- land being, that it was necessary to have two. In order to remedy that well-grounded complaint, the 1st and 2nd George IV. expressly provides that a party indicted shah, have those peculiar benefits ; that there must be the evidence of two witnesses to any one overt act, or two witnesses to one overt act of the same species of treason. It is remarkable when that act is expressly and specifically passed to give that benefit to a party indicted for treason in Ireland, viz., the benefit of there being two witnesses to prove his guilt, there is no reference whatever, nor any provi- sion to extend those previous provisions of the act of Anne, giving the party the benefit of this claim which is now put for- w^ard, to a copy of the jury panel, and a list of the witnesses. So that, it was plainly manifest, although one benefit was given in that act, that the Legislature did not intend, nor was it the law of the land, that these benefits should be given as now claimed. I contend, my lords, that that is the construction of the 57th George III., and that it did not give the benefit now claimed for the prisoner. But my friend, Mr. Whiteside, adverted to the 11th Vic., c. 12, and endeavoured to spell out by the construction of that act, that it in fact recognises and establishes that the law in Ireland is the same as it exists in England with resj^ect to these rights. Now, with respect to that, you will find, upon looking to that act, that it does not do more than this. The law, as it stood before the passing of this act, manifestly did not exist in this country. A man could not be indicted for that species of treason which existed under the 36th George III., that is, the compassing to levy war, and making certain things, printings or writings, overt acts of that high treason. Then the 1 1th of Victoria does nothing more than this — in the first place, it does not touch that portion of the act of the 36th George III., which affected the personal security of the Monarch ; but it expressly leaves that untouched. And after reciting the whole of the provisions of the 36th George III., it proceeds then to repeal certain portions of it, that of com- passing the levying of war and other matters, and makes the manifestation of those compassings, by printings or writings, or any other overt act, a felony. Having, therefore, changed the character of the crime from being high treason to that of felony, it then extends this felony to Ireland, and nothing more. Your lord- ships will find nothing in the provisions of this act which gives this THE QUEEN WILLIAM SMITH O’BRIEN. 13 right to a party indicted, under the statute of Edward HI., for a treason, which remained untouched entirely hy the previous legis- lation, or which would give him the right in Ireland, to call for those benefits wliich were sought for and claimed as given under the statute of Anne, to a person indicted for treason under the statute of Edward III. I conceive therefore, upon the true con- struction of these several acts taken together, that this right as claimed ought not to be granted. [The learned judges consulted.] Mr. Fitzgerald . — My lords, this case has been so clearly argued by my learned friend, Mr. Whiteside, that it will not be necessary to trespass at length upon your lordships. My learned friend’s positions are perfectly clear. First, he states that the act 57th George III., as originally passed, applied to this country ; and he said, that even if it did not, the portions unre- pealed by the statute of the Queen, passed in the course of the last session, have been expressly extended to this country. He founds his first proposition upon a position which I have not heard questioned ; and certainly it has not been questioned by my learned friends, the Attorney-General or Solicitor-General, in this case — that is, that a statute of the United Kingdom, not in its terms excluding Ireland, is to be held to extend to Ireland, except there be some necessary implication, from the Act itself, that it does not so extend. It cannot be pretended, that Ireland is expressly excepted from the operation of the statute 57th George HI. To get out of that principle, therefore, my friend the Attorney-General would have to show, that Ireland was excluded by necessary implication. Kow, my lords, in addition to what has been offered by my learned friend, Mr. Whiteside, with respect to that, I would respectfully refer your lordships to the 11th Victoria, and ask how it is possible after that act to say, that Ireland is excluded by neces- sary implication from the statute of 57th George HI. You have that act expressly reciting, that doubts are entertained whether the 57th George HI. does apply to Ireland, and so clearly proceed- ing to re-enact a part of it, and that re-enacting section is declara- tory in its form. Can you, therefore, hold that Ireland is excluded by necessary implication from the 57th George HI., with that statute before you ? Look to the section of the act, to which my friend Mr. W^hiteside has already referred, with respect to com- passing the death of the Prince Regent. Upon what grounds could your lordships possibly hold, if the Prince Regent — who did come to this country as George IV. — had come to this country while he was Prince Regent, that a crime committed against his person here, if of the kind described in the 2nd section of that act, was not treason? Upon what possible ground, upon what necessary imphcation in the statute, could your lordships 44 SPECIAL COMMISSION, CO. TIPPERARY, found such an exception? I do most respectfully say, that these provisions of the act do extend to Ireland, and that your lordships cannot make a distinction. Now, the only answer which I have yet heard given is, that this is an indictment for treason under the statute of Edward III., and not under the statute of the 36th George III., made perpe- tual by the 57th George III. Let me beg your lordships’ atten- tion to 36th George III., as recited in the 57th George III. : — Whereas by au act passed in the thirty-sixth year of the reign of his late Majesty King George the Third, intituled ‘ An act for the safety and preservation of his Majesty’s person The Lord Chief Justice . — What is the title of the act? Mr. Fitzgerald . — An act for the safety and preservation of his Majesty’s person and government against treasonable and seditious practices and attempts.” It was among other things enacted — That if any person or persons whatsoever, after the day of the passing of that act, during the natural life of his said Majesty, and until the end of the next session of Parliament after the demise of the Crown, should, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm, tending to death or destruction, maim or wounding, imprisonment or restraint, upon the per- son of his said Majesty, his heirs or successors, or to deprive or depose him or them from the style, honour, or kingly name of the Imperial Crown of this realm, or of any of his said Majesty’s dominions or countries, or to levy war against his said Majesty, his heirs and suc- cessors, within this realm, in order by force or constraint to compel him or them to change his or their measures and counsels, or in order to put any force or constraint upon or to intimidate or overawe both houses or either house of Parliament, or to move or stir any foreigner or stranger with force to invade this realm or any other of his said Majesty’s domi- nions of the country under the obeisance of his said Majesty, his heirs or successors, and such compassings, imaginations, inventions, devices, or intentions, or any of them should express, utter, and declare by publish- ing any printing or writing, or by any overt act or deed, being legally convicted thereof upon the oaths of two lawful and credible witnesses, upon trial or otherwise, convicted or attainted by due course of law, then every such person or persons so as aforesaid offending should be deemed, declared, and adjudged to be a traitor and traitors, should suffer pains of death, and also lose and forfeit as in cases of high treason.” Will the counsel for the Crown say, that compassing the death of his Majesty expressed by any overt act was not treason within the statute of Edward III. ? Is it possible to contend for such a proposition in this court? What does the 4th section of this act state, upon which we rely? It provides — Be it enacted, that all and every person who shall at any time be accused or prosecuted for offences made ” ‘‘ Made ” is the word that the counsel for the Crown rely upon. But what docs the act say ? THE QUEEN i-. WILLIAM SMITH O’BRIEN. 45 “ made or declared to be treason by this act ” Why, upon the very face of this act, it not only applies to treason, as counsel for the Crown contend, “ made ” by this act, but to treasons “ declared” by it. What is the excej)tion and saving out of the provisions, which has already struck your lord- ships ? It is an exception from the provisions of the 4th section, where the overt act is assassination ; clearly showing that the Legislature conceived that it had comprehended within the pre- vious part of the statute that treason wliich is the actual compassing the death of the Queen, and the overt act of which is taking away the life of the Sovereign, or an attack upon the person of the Sove- reign. Is it possible to contend that that is not a treason within the statute of Edward III. ? The statute of Edward HI. is greatly misconceived by my learned friends. That statute directs nothing as to the mode of proceeding in cases of high treason. It declares what shall be treason, but directs nothing wdth respect to the mode of proceeding. The statutes of William III. and of Anne did apply to treasons that were treason under the statute of Edward HI. My lord, the only other objection which I have heard relied upon this branch of the argument, is upon the 1st and 2nd George IV. , c. 24. The argument upon which is this, that the statute contains what my learned friends say is a legislative declaration, that the provisions of the statute of William HI. did not then extend to Ireland. They say that statute being unquestionably passed after the b7th George HI., it would appear to be a legisla- tive declaration, that the Legislature considered that these provi- sions in the 57th George HI. did not extend to Ireland. I apprehend that is altogether a mistake on the part of my learned friends. It was perfectly true, even if the 57th George HI. did apply to Ireland at the time 1st and 2nd George IV. was passed, that the statute of 1st William HI. did not in extenso apply to Ireland, because there are treasons under the statute of Edward HI. neither declared nor made treasons by the statute of 36th George HI., for which these provisions would therefore be necessary. I do not know whether it will be necessary to trouble your lordships any further upon that point. If there could be any doubt, I apprehend that doubt is entirely removed by the statute of the Queen. Then if there could be a possibility of doubt, I do not think your lordships would refuse that which the Legislature in England have considered as necessary for the pro- tection and security of the subject. I do not think, if it rested merely in doubt, that you would dechne to give the prisoner the benefit of it ; but I conceive that doubt is entirely removed by the statute of the 11 Vic., c. 12. That act first recites — “ That whereas doubts are entertained whether tlie provisions so made perpetual by the last-recited act were extended to Ireland ” 46 SPECIAL COMMISSION, CO. TIPPERARY. Then it states. “ it is expedient to repeal all such of the provisions made perpetual by the last-recited act as do not relate to offences against the person of the Sovereign ” The sixth count of this indictment '' does relate to offences against the person of the Sovereign” within this intent of the Legislature. It was not the intent of the Legislature to repeal any parts of those two statutes which applied to any such offence. “ and to enact other provisions instead thereof applicable to all parts of the United Kingdom ” Then, my lords, what follows ? “ and to extend to Ireland such of the provisions of the said acts as are not hereby repealed.” Here you have the Legislature declaring what its intention was in passing this act. It was to repeal all the provisions which did not apply to offences against the person of the Sovereign. It was its intention to extend to Ireland the whole of those provi- sions which did. My lords, is it possible to contend that offences against the person of the Sovereign within the statute of Edward III. were not declared to be treason by the 57th George III., and that the provision in the 4 th section of that act did not apply to treasons so declared ? If it did, I apprehend there can be no doubt upon this case. Then the statute proceeds to do — what ? Ltaving declared its intention to be, to repeal those provisions which did not apply to offences against the person, it declares to be law in Ireland those provisions which did. Upon these grounds, I respectfully submit to your lordships that our motion ought to be allowed. [The learned judges consulted.] The Lord Chief Justice. This is an application made on the part of the prisoner for a postponement of the trial, on the ground that he has not been furnished, and the fact is so, either with the names of the wit- nesses, or with the names of the jury and their residences ; and it is contended under this indictment, and according to the statute law, that the prisoner is entitled to a list both of the witnesses and of the jurors. The indictment contains various counts, five, I think, for levying war, and a sixth count for com- passing the death of the Queen ; and the overt acts of compass- ing the death of the Queen, are not one of them directed against the person of the Sovereign, or her personal safety. The question is, what is the law of Ireland applicable to that THE QUEEN i;. WILLIxVM SMITH O’BRIEN. 47 charge appearing, as I have described it, by this indictment? The charge is manifestly founded on the statute of Edward III. ; both treasons are such as that statute describes and defines. In England, in the reign of King William IIL, there was a statute passed by which, in indictments for high treason, the jiarty charged was entitled to have counsel assigned, to have five days to plead from the time of the indictment found, and to have a copy of the indictment. And an act of Parliament in Ireland, in all cases of indictments under the acfc of the 25th Edward III., entitles the j)arty to a copy of the indictment, and five days’ time to plead. An English act of Parliament, the 7th of Anne, enlarged the privileges of parties so charged, and entitled them to have a copy of the indictment ten days before pleading, and at the same time to be served with a list of the witnesses and of the jurors. And the statute law of England, in addition to this, bound the Crown, as against the party charged, to establish the overt acts by two witnesses. This is generally the state of the law in both countries at this day. An act was passed in the thirty-sixth year of the reign of King George III. by which a variety of treasons were either created or de- clared ; and it is enough, on looking to that act of Parliament, to say, that there were a number of treasons described in the first section, the object of which was to comprise offences where either the actual assassination or bodily harm to the MonarcJi w^as intended. There were other classes of treasons made for the first time by that statute. That act of Parliament plainly was not the law of Ireland. And then came the act of the fifty-seventh year of the reign of King George III., by which all the provisions of the thirty-sixth year of the King, which act was a temporary act, were made perpetual, that is, it made perpetual a statute of the English Parliament. Then came the act of the eleventh of the Queen, and it recited, that doubts were entertained whether the provisions so made perpetual, were by the last-recited act extended to Ireland, and it becomes whoUy immaterial to inquire whether these doubts were w^ell founded or not, for the statute immediately proceeds, and it adds this — And whereas, it is expedient to repeal all such of the provisions made perpetual by the last-recited act, as do not relate to offences against the person of the Sovereign ” And, accordingly, all the provisions of the 3Gth George III., and of the 57th George IIL, are abolished by this act, save such as relate to offences against the person of the Sovereign. The plain meaning of the vrords, ‘‘ person of the Sovereign,” is, to describe treasons, the object of which was, an attack upon the person or upon the life of the Monarch, or upon his liberty, or directly tending to affect his personal security or safety. These, and these 48 SPECIAL COMMISSION, CO. TIPPERARY. only, are perpetuated by this act of Parliament. It is in relation to these, and these only, that any of the subsidiary provisions of the 36th George III. can be said now to exist ; and this being not a charge of compassing the death of the Sovereign by means of an attempt on her life by assassination, by wounding or otherwise, we are of opinion, that it does not come within the provisions of the act referred to, and that the party is not en- titled to the copy of w^hat he seeks. PLEA IN ABATEMENT. The Attorney-General. — My lords, I have now to move that Mr. William Smith O’Brien be called upon to plead. Sir C. O'Loghlen. — Stay a moment, Mr. Attorney. [The learned counsel handed a paper to the prisoner, who signed the same and returned it.] Mr. Whiteside. — My lords, we wish now to put this point upon the record. [The paper was handed to their lordships.] The Lord Chief Justice. — Why is this parchment handed to us ? Sir C. O'Loghlen. — It has an affidavit, my lord, of the prisoner on the back of it for your signature. Lord Chief Justice Doherty. — In order to have it engrossed? Sir C. O'Loghlen. — Yes, my lord. [The affidavit having received the signature of the learned judge, was handed to the Clerk of the Crown, who thereupon proceeded to read the indictment to the prisoner.] The Lord Chief Justice. — Do you require to have the entire of the indictment read over? Mr. Whiteside. — Not at aU, my lord. [The abstract of the several counts of the indictment was then read.] Cleric of the Crown. — How say you, William Smith O’Brien — are you guilty or not guilty ? Mr. Whiteside {to the prisoner) — Don’t answer that ques- tion. My lords, we now hand in this plea in abatement, as a reason why we say that he should not be called upon to answer the indictment. The Attorney-General. — There is a question first, whether it ought to be received. Let me look at it. [The plea was handed to the Attorney-General.] THE QUEEN i;. WILLIAM SMITH O’BRIEN. 49 COPY OF PLEA IN ABATEMENT. The Queen ] And now on this day, that is to say, on I Thursday, the 28th day of September, in o r\i-D ' the year of our Lord, 1848, the said William Smith OBrien comes into court here, in his proper person., and having heard the said indictment read, says, that he ought not to be compelled now to answer the same, because he says that hy the indictment aforesaid, he the said William Smith O’Brien is charged and indicted for, among other offences, conspiring, and imagining, and intending to put our Lady the Queen to death ; and that by the statutable enactment in that case made and provided, and now in force in this realm, every person indicted for compassing, imagining, and intending death or destruction to our Lady the Queen, is entitled to have delivered to him, ten days before his trial, and in presence of two or more credible witnesses, a copy of the said indictment, and at the same time a list of the witnesses to be produced on the trial, for proving the said indictment, mentioning the names, professions, and places of abode of the said witnesses. And the said William Smith O’Brien says, that the indictment aforesaid was found a true bill of the jurors aforesaid, on Thursday, the 21st day of September, instant; and that on the said 21st day of September, instant, a copy of the said indictment was delivered to him, tlie said William Smith O’Brien, in open court, but that no list of the witnesses, or of any witnesses or witness, to be produced on the trial, for proving the said indictment, was then or at any time since, delivered to him, the said William Smith O’Brien. And the said William Smith O’Brien says, that ten days have not elapsed since the delivery to him, the said William Smith O’Brien, of the indictment aforesaid; and this he the said William Smith O’Brien is ready to verify; wherefore he now prays judgment, and that he may not be compelled now to answer the said indictment, and soforth. James Whiteside. {The Crown counsel consulted for a short time.] The Attorney- General . — My lords, this document we say is informal. In it Mr. Smith O’Brien refers to the indictment, and says — That he is charged and indicted for, among other offences, conspiring, and imagining, and intending to put our Lady the Queen to death ; and that by the statutable enactment in that case made and provided, and now in force in this realm, every person indicted for compassing, imagining, and intending death or destruction to our Lady the Queen, is entitled to have delivered to him, ten days before his trial, and in presence of two or more credible witnesses,* a copy of the indictment, and at the same time a list of the witnesses to be produced on the trial, for proving the said indictment, mentioning the names, professions, and places of abode of the said witnesses.” And he says that a bill was found — On Thursday, the 21st day of September, instant; and that on the said Thursday, the 21st day of September, instant, a copy of the said in- E 50 SPECIAL COMMISSION, CO. TIPPERARY. dictment was delivered to him, the said William Smith O’Brien, in open court, but that no list of witnesses, of any witnesses or witness, to be pro- duced on the trial, for proving the said indictment, was then, or at any time since, delivered to him, the said William Smith O’Brien, and soforth.” Now, it appears to me, that this is not exactly the subject- matter of a plea in abatement, but that it is in fact an application to postpone the time of pleading. That would appear to me properly the subject-matter of a motion to the Court, and upon such a motion it could be disposed of. It does not occur to me that there is any precedent or authority to show that this is pro- perly the subject-matter of a plea in abatement. This is not a plea in abatement ; it is not finding fault with the indictment, and praying to have it quashed for any reason, or for its being improperly found ; but it is simply an allegation that he ought not to be called upon to plead to this indictment. The Lord Chief Justice. — Perhaps Mr. Whiteside will state his reasons for putting it in. Mr. Whiteside. — It is, my lords, for the purpose of raising in the most solemn form of argument, what I believe in my con- science to be a very serious question. It is for the purpose of placing that question on the record, and there is no other way that we can discover of so doing. It is a plea in the nature of a plea in abatement. If the Attorney- General is satisfied that it is altogether bad, he has only to demur to it, auv^ he can have the satisfaction of arguing it afterwards. Mr. Scott It is neither a plea in abatement, nor a plea at bar. It is nothing of which the Court can know any thing. Mr. Whiteside. — It is the only plea that the circumstances of the case will admit of. I wish you would frame one for us. The Lord Chief Justice. — We think we cannot receive this. Mr. Whiteside. — With great respect The Ijord Chief Justice. — We should have been glad to have heard you before. Mr. Whiteside. — I was not aware, my lord, that you were about to say that a plea in abatement, on the part of a prisoner, could be rejected by the Court, in a matter which is of such vital importance. I have been concerned in several capital cases, and I never heard that intimation from the bench before. I have put in many pleas, and some very odd pleas have been argued in this court; but it is not for the Court — with great deference — to say that a certain plea, cC 'priori, before it is argued with respect to its form or matter, ought not to he received. I submit, that a prisoner on trial for his life, has a right to put that plea in. I do not mean to say whether it is a good plea, or a bad one ; your lordship has just now intimated your opinion as to that; but is it to be said upon every question that may arise, whether with respect to the jury, or the state of the law, that Mr. O’Brien is to have no power to put it upon the record ? We THE QUEEN 2;. WILLIAM SMITH O’BRIEN. 51 have felt it our duty, in accordance with the decision of Lord Chief Justice Tindal, first to apply to the Court to put off the trial, because a list of witnesses had not been given. We did not say, nor is it once hinted throughout that case of Frost’s, that it was not a proper point to reserve in some shape or other for the House of Lords, whether the lists ought to have been furnished or not, or whether they were improperly furnished. The same question was in principle reserved there, and I insist, respectfully, upon the right of having it reserved here ; and I do not care in what form it is to be done. We can only put in a declinatory plea. We cannot take a bill of exceptions. There is no other mode in which the question can be raised. My learned friends, Mr. Fitzgerald, Sir C. O’Loghlen, and myself, have considered the subject, and we know of no other way of doing it than in the form of a plea in abatement. Your lordship is, I am sure, too confident in the soundness of your judgment, to have any hesitation of its being reviewed by the highest tribunal in the land. Mr. Fitzgerald . — I certainly did not come prepared to argue this question, as I did not anticipate that your lordships would refuse to receive this plea from a prisoner charged with a crime like this. Certainly my conviction is with my learned friend, Mr. Whiteside, that this point is one deserving the most serious argument. I trust, under these circumstances, before your lord- ship decides The Lord Chief Justice. — That, Mr. Fitzgerald, is one matter. The question is, whether it is in such form that we can recognise it as a plea. Mr. Fitzgerald . — With respect to the particular form of the plea, it commences with the prisoner declining to answer the indictment, and it prays the judgment of the Court whether he shall now be called upon to answer that indictment. I am informed by my friend. Sir Colman O’Loghlen — I do not know the matter of my own knowledge — that a plea in abatement in the same form, declining to answer the indictment, and praying the judgment of the Court whether the party should be compelled to answer, was put in and received in the case of the Queen v. Mitchel. If the objection is to the matter of the plea, I apprehend your lordship will consider that a proper ground for demurrer upon the part of the Crown, and not for an application of this kind. In the absence of expectation that a point of this kind would have been raised by the Crown, we are not at present prepared with autho- rities on the subject. I will, however, refer your lordships to the’ case of Fitzharris, 8 State Trials, page 223, in which case a plea was put in wdth respect to the jurisdiction of the Court : and the Attorney-General there, as in this case, though in a very different period of our history, did object to the reception of the plea. E 2 52 SPECIAL COMMISSION, CO. TIPPERARY. That plea was of an impeacliment pending. I now refer your lordship to what the Attorney-General said : — “ Not only for what I have already offered, but for many other rea- sons we can say this can be no way a plea to the jurisdiction of this Court; for upon any impeachment or indictment the King can election to proceed upon which he will; and if there were ten indictments for one and the same thing, if none of them have come to judgment the King may proceed upon which he pleases; as in the case of Ireland, yesterday. If the party were arraigned and ready to he tried in Ireland, yet the King might, if he pleased, try him here. But, my lords, I take it that this is not only a perfectly false plea, but a frivolous plea in itself, being to the jurisdiction of this Court.” The Lord Chief Justice says : — Pray let me speak two or three words to you. Do you speak it against our receiving of the plea ? “ The Attorney-General. — Yes, my lord. We hope you will not admit such a plea. “ The Lord Chief Justice. — That will be hard. Pray, then, consider with yourself whether if it be a sufficient plea (for we will say nothing at present to that), and if the plea be such that no issue can be taken upon it (admitting it were so), if you should not demur to it, before you demand our judgment that we have somewhat upon the whole before us to judge upon.” And then the Lord Chief Justice put it upon the Attorney- General, as I trust the Court will here, not whether the plea ought to be received, hut whether it was a sufficient one or not. Sergeant Jeffries and Maynerd both argue the point. The Attor- ney-General said — “ But I do think that your lordships never found a demurrer which was to be a plea to the jurisdiction. “ The Lord Chief Justice. — Pray, consider of that. “ The Attorney-General. — But if it appear to be a frivolous plea in form or in matter, your lordship will not put us sure to demur. “ The Lord Chief Justice. — If you do insist upon it, that you won’t de- mur, nor do nothing, we will give judgment; but we will take time to consider it if you won’t demur, nor take issue, nor reply.” Ultimately they forced the Attorney-General into consenting to its being received. Upon this, therefore, and the express authority in MitchePs case, and as there is no other mode of tak- ing this objection and putting it on the record, I do most humbly trust that your lordship will not refuse the prisoner the benefit of this application. The Solicitor- General . — If your lordships will look to the form of this plea, you will see that it is nothing more than merely putting on parchment a request that the party may not now be called upon to plead, because he says certain preliminaries have THE QUEEN v. WILLIAM SMITH O’BRIEN. £3 not been complied with. It is not at all like the case cited by my learned friend, Mr. Fitzgerald ; that was a plea of another action, another indictment, or an impeachment pending. That might or might not be a very good plea, and might be received by the Court. But this is. certainly of a novel character. It has nothing of the form or substance of a plea in abatement. It merely states what has already been replied to by the Attorney-General ; repeating the application, and stating the grounds of it, and then it concludes — “ This he, the said William Smith O’Brien, is ready to verify, where- fore he now prays judgment, and that he may not be compelled to answer the said indictment.” What judgment could the Court now give upon such a subject ? Mr. Whiteside. — My lords, the late Lord Chief Justice Tindal, in the case of Frost, reserved every thing which I now conceive necessary for the interests of my client. The Solicitor- General. — Are we to hear more about it? Mr. Whiteside. — Yes, you shall hear more about it, Mr. Solicitor. The Lord Chief Justice. — Have the goodness to address the Court, Mr. Whiteside. Mr. Whiteside. — I will, my lord. The Sohcitor-General ad- dressed me, and if the Crown acts upon that principle, I must do so. The Lord Chief Justice. — Now, counsel cannot interfere with each other. I have to request that during the remainder of this trial counsel will address the Court, and not each other. Mr. Whiteside. — Now, Mr. Solicitor has said that this is not a plea. In Frost’s case it was held, that if the objection had been made in due time, the effect of it would have been the postpone- ment of the trial, in order to give time for the proper delivery of the lists. Therefore it is that the plea states that he should not now be called upon ; it does not furnish any objection to his being called on hereafter. The plea is framed in exact conformity with the very language of Lord Chief Justice Tindal and the judges, in reserving the point that was argued in Westminster Hall, namely, that the only effect of this plea would be, not to stop the whole of the proceedings, but to stop them for a time, and that the parties, if the lists were furnished them, might be brought forward at another time upon the indictment. This plea is framed in exact conformity with the decision of the judges and the course they followed in that case. If this plea is refused, it will be the first precedent of a Court refusing in a capital case to receive a plea. Mr. Justice Moore. — What was the plea in Mitchel’s case ? Sir C. O'Loghlen. — It was similar, my lord, in the commence- ment and the conclusion, viz., that he should not be compelled 54 SPECIAL COMMISSION, CO. TIPPERARY. to answer the indictment, because there was another indictment pending. And another plea was, that the Attorney-General had no right to file an ex-officio information, after having commenced proceedings upon an indictment. The plea in that case was very carefully framed upon the authority of a case in East’s reports. It was there decided that that was a proper commencement and conclusion of a plea in abatement ; and we say that the conclusion and commencement of a plea determines what its nature is. If it is no good and valid plea in abatement, the objection is open to the Attorney-General upon general demurrer to the plea. The Attorney-General. — The case of Mitchel, which has been referred to, has no application to the present one. That was properly the subject of a plea in abatement, because in that the party alleged that he was not to be called upon to answer, or to plead to the indictment found against him. I do not recollect the precise termination of that plea, but certainly it was a subject- matter for a plea in abatement. That plea, however, was argued, and held to be a bad one. But this is not the subject-matter of a plea in abatement, but merely a motion to postpone the trial, and upon that ground, my lord, I submit that this document ought not to be received. Lord Chief Justice Doherty. — Am I to understand, Mr. White- side, that the ground of what you call a plea, is a repetition of the objection which has already been argued upon motion, and which the Court has overruled ? Mr. Whiteside. — It is in substance. Lord Chief Justice Doherty. — Have you any instance where an application to the Court has been overruled upon motion, that the same Court would permit that motion to be placed upon the record ? Mr. Whiteside. — In the case of Frost, my lord, there is an argument upon the question of the jury lists of 150 pages which is similar in principle. After the Court heard that, they reserved it, having intimated their opinion. They then gave the prisoner’s counsel the benefit of it, framed a case for him, and reserved it ; and the argument was heard up on what, in my conscience, I believe to be a very serious point, and I am the more convinced of that, by the arguments I have heard from the counsel for the Crown. I do not mean to say that the objection is well founded, but that some form or mode should be taken for reserving it. I have put it in the shape I have, as I am not aware that there is any other mode of my raising the question. In the case I before referred to, that of the Queen v. O’Connell, in which Mr. Justice Moore was counsel, there were several pleas put in. Did the Court refuse any of them? No, they did not ; and I have no doubt if they did, a higher court would have called upon them to receive them. Sir C. O' Loghlen. — In the case of the Queen v. O’Connell we THE QUEEN t;. WILLIAM SMITH O'BRIEN. 55 first made a motion upon the jury panel, and then we challenged the array ; we then put it upon the record in the shape of a plea. Mr. Whiteside. — And it was overruled joro/brma. [The learned judges consulted.] The Attorney- General. — There is no pretence, my lord, for saying in Frost’s case that it was put upon the record. Mr. Whiteside. — I did not say that it was. Sir C. O' Loghlen. — The objection there was taken after the plea of not guilty. Mr. Scott. — Is it open to a party arraigned now to put in what he calls a plea, in which he may introduce any matters that we know nothing of ? Is he to be allowed to put these in, in the nature of a plea, and call that an answer to the indictment ? Is not the course of the Court, the law of the Court ? Is there any rule of any court of law, to justify a kind of half plea of this nature ? It is merely declining to give an ansv/er to the indict- ment, and nothing more. It is not giving an answer to the indict- ment or disposing of it in any way whatever. It does not state any reason why he should not answer the indictment. I ask then, how is this to appear on the record ? How is it to appear on the record with this ballad of an affidavit appended to it, in the nature of a plea to excuse giving an immediate answer to the charge in the indictment ? I certainly never knew a course of this kind taken before ; and I think your lordships will not feel yourselves justified in admitting upon the record a document of this descrip- tion, which they designate as a kind of plea ; for even my learned friend, Mr. Whiteside, has not been able to state what character of plea it is to be. It is a new kind of plea never before heard of, which your lordships are now called upon to receive and enter upon the record. Mr. Justice Moore. — Suppose that the prisoner had not been furnished with any copy of the indictment at all, and he was called upon to plead, would it not he competent for him to say, you have no right to call upon me to plead to this indictment, or put me upon trial, because you have not given me that to which I am entitled by law? Mr. Whiteside’s argument is, that he is entitled to something more. The Court has decided it whether right or wrong. Has he not a right to say, and to put it upon the record, “ I am not now to be put upon my trial, because by law, before I can be put on my trial, I am entitled to certain matters ?” Mr. Scott. — Clearly, my lord, he has the right ; but the question is, has he the right to do it by what he calls a plea of this kind ? Mr. Whiteside. — How is it to be done ? Mr. Scott. — By an application to the Court, who will protect the prisoner, and not allow him to be prematurely called upon to 56 SPECIAL COMMISSION, CO. TIPPERARY. plead. It is not matter of defence, nor of answer to the charge in the indictment. It is only asking for further time to give in his answer. Is that then to be received as a plea ? We could have no possible objection to a good plea; but this would make nonsense of the whole record, making it such as no record ever appeared before, coming out of any criminal court. If your lordships think that there is authority for it, you may make an order postponing the arraignment ; but is this to be put in as an answer to the indictment, to which it really is no answer at all ? Mr. Fitzgerald. — Your lordships perceive that this is not an answer to the indictment, but a reason why the prisoner should not be called to answer the indictment. I would humbly submit, on the case put by Mr. Justice Moore, that we are entitled to put in this plea. Suppose, in this case, a copy of the indict- ment, to which the law in force in this realm entitles the prisoner, had been refused. I will suppose that before another tribunal, not that before which we now are, we had applied by motion that the trial might be postponed on the ground that a copy of the indictment had been refused, would the counsel for the Crown say in that case, that the prisoner had no means of putting it on the record, for the purpose of a]3pealing to another tribunal ? I trust that your lordships will give us the benefit of reserving this point. If this is not a proper plea in abatement, of course it will be open to the counsel for the Crown to take advantage of that upon general demurrer to the plea. The Lord Chief Justice. — The whole question is, whether the admissibility of this plea, or whatever it is called, should be determined upon motion or upon demurrer. Upon consideration, we think that the best course will be to receive it, leaving the Attorney-General to demur, if he thinks proper, to it. The Attorney -General. — Then we will demur to it forthwith, my lord. Mr. Whiteside. — We will not argue the demurrer. . The Lord Chief Justice. — What do you propose to do, Mr. Attorney-General ? The Attorney -General. — Then we demur to it, my lords, on the grounds that the matters therein stated are not sufficient to prevent him answering the indictment ; and we pray that he may forthwith answer the indictment. Sir C. O' Loghlen. — Hand us your demurrer. The Solicitor- General. — We put it in ore tenus. Mr. Whiteside. — Then the Court gives judgment against us, that he must answer the indictment. The Lord Chief Justice. — Yes. Clerk of the Crown. — How say you, William Smith O’Brien — are you guilty or not guilty ? The Prisoner. — Not guilty. THE QUEEN v. WILLIAM SMITH O’BRIEN. 57 APPLICATION TO INSPECT JURY PANEL. The Attorney-General . — Let the Clerk of the Crown now call over the jury panel. Mr. Whiteside . — My lords, I have no wish whatever to post- pone the proceedings in this case ; on the contrary, I am disposed to accelerate them as much as my learned friend can be. Ac- cording to the English practice, which existed before the statute of William III., it was usual to give a copy of the panel; and I do most respectfully ask the Court to allow the prisoner a copy of the panel for a few hours before the case is proceeded with, in order that we may have an opportunity of looking into it. Before the statute of William was passed, and as soon as they began to have any clear notion of justice in England, it was made the rule to give a copy of the panel to the accused. A memo- rable case of this is to be found in the State Trials. It was the trial of a person of the name of Charnock, for attempting to assassinate William III., who was supposed to have been sent over by the expelled tyrant — hired for that purpose. The case is reported in 12th vol. State Trials, page 1390. The prisoner’s complaint there was to the Lord Chief Justice, before the trial began, that he could not make his challenges. He says — “ That I have not had a copy of the panel till yesterday, and I have been informed that it is usual to have a copy of the panel ten days before the trial ; they are gentlemen whom I have no knowledge of, nor can I come to any account of their qualification, so as to make proper challenges. “ The Lord Chief Justice . — You have the same privilege that is ordi- narily given to persons in your condition. The Attorney-General . — There was an order given for a copy of the panel to be delivered.” That is, in that case the Attorney-General was trying a man who endeavoured to assassinate the King, and there a copy of the panel was given to him before the trial. The Lord Chief Justice there says — “ That it is not of right but of favour, and it is a practice which has of late obtained; but for what you talk of ten days, that never was in any case, nor is it practicable. You have the same favour shown you that all prisoners have, and you can expect no more. But you do not answer the question, whether you will join in your challenges or not.” If the prisoner was tried in England he would be entitled to a copy of the panel ten days before his trial ; and before the statute of William III., I have shown that it was the practice in England to give a copy of the panel to the prisoner. I am a stranger in this county — the prisoner’s attorney is also a stranger in the county, and we know nothing of the persons returned on that panel. I trust, therefore, that the Court will, upon the authority I have referred to, and the practice in England, allow us, for a few hours, to have a copy of the panel, in order to 58 SPECIAL COMMISSION, CO. TIPPERARY. enable us to make inquiries and arrange our challenges, and we will endeavour to use as much expedition as possible. Mr. Justice Moore. — Is there any distinction between a case of treason and any other capital case ? Mr. Whiteside. — All that I know is, that this is a case of high treason. Mr. Justice Moore. — I know that; but if the prisoner was indicted for any other capital offence, would he be entitled to this ? Mr. Whiteside. — Certainly not. It is very curious, in this case, in the reign of King William, the Attorney-General gave the order for the panel to be delivered, and the Lord Chief Justice says that that was the practice, and that practice was made law as soon as William III. came to the throne — and it seems to me the most reasonable practice that can be imagined. Aly applica- tion is founded upon that, and I think that is a direct authority upon the point. The Attorney- General. — As far as I am personally concerned, my lord, I can have no possible objection ; all that I wish is, to see an end to these proceedings, but I certainly can see no dis- tinction between this case and an ordinary capital case. Mr. Whiteside. — I am informed, my lord, that two hours would suffice for our purpose. The panel must be shown to some gentleman acquainted with the county. The Attorney- General. — I am sorry that the application was not made yesterday, or earlier this morning ; there have now been two hours spent already, Mr. Whiteside . — I could not make it until after the prisoner had pleaded. The Lord Chief Justice . — Unless the Attorney-General con- sents, we cannot make an order in the case. The Attorney- General. — They will have an opportunity of hearing all the names called over by the Clerk of the Crown. CALLING OVER THE PANEL. [The Clerk of the Crown then called over the names of the panel.] Sir Colman O’Loghlen. — This, I believe, is the proper time to ask whether the panel has been signed by the Sheriff? The Clerk of the Crown. — It has. The Attorney- General. — How many names are on the panel ? The Clerk of the Crown. — Two hundred and eighty-eight, and two hundred and one appear. CHALLENGE TO THE ARRAY. Mr. Whiteside. — It is now my duty to hand in this challenge to the array. Is it your lordships’ pleasure that I should read it ? The Lord Chief Justice. — Yes. Mr. Whiteside. — It is in this form ; — THE QUEEN WILLIAM SMITH O’BRIEN. 59 “ The Queen v. William Smith O’Brien, m.p. “And the said William Smith O’Brien challenges the array of the said panel because he says at the time of arraying and returning of the said panel there was not nor is there now in existence a jurors’ book for the county of Tipperary for the current year to wit for the year 1848. For the said William Smith O’Brien says that by the statuable enact- ments in such cases made and provided and now in force in this realm it is among other things required that the clerk of the peace in every county in Ireland shall within one week after the commencement in every year of the sessions next hereinafter mentioned to wit the October general quarter sessions of the peace to be holden in each division of each county at large issue and deliver his precept to the high constable and collectors of grand jury cess in each barony or other district of collection and the collectors of the cess or assessment where no grand jury cess is levied requiring such constable to prepare and make out within one week then next ensuing a true list of all men residing within their respective dis- tricts qualified with respect to property and liable to serve on juries and that the high constable and collector or collectors to whom the said pre- cept is delivered shall make out a true list in alphabetical order of all men within their districts qualified and liable by law to serve on juries and return the same to the clerk of the peace who shall lay same before the justices assembled at a special sessions to be holden at a place and time to be fixed by the justices assembled at every October general quarter sessions of the peace to be holden in each division of the county at large and that the justices assembled at such special sessions shall count number and allow and sign the book for the year ensuing which shall be made out and delivered by the clerk of the peace to the sheriff for the time being and brought into use on the first day of J anuary after it shall be so delivered. And the said William Smith O’Brien says that the clerk of the peace for the county of Tipperary did not within one week after the commencement of the general or quarter sessions which were holden in each division of the county of Tipperary in the year of our Lord 1847 or at any time thereafter in the year of our Lord 1847 issue or deliver any such precept as is hereinbefore mentioned to the high constable and collector of grand jury cess in each barony or other district of collection in the said county of Tipperary or to the collectors of any other cess or assessment in the said county to any of the said persons nor was any jurors’ book for the said county of Tipperary for the now current year prepared and made out pursuant to the statutable enactments in such case made and provided. “ And the said William Smith O’Brien says that Richard Pennefather the high sheriff of the county of Tipperary has not returned the said jurors whose names are on the said panel or any of them from the jurors’ book of the said county for the year preceding the now current year nor from the respective jurors’ books of the said county or any of them for any year or years preceding the now current year nor hath the said sheriff returned or empanelled the said jurors in the said panel men- tioned in like manner as has or hath been used or accustomed before the passing of a certain act of Parliament holden in the third and fourth years of the reign of our late Lord King William the Fourth entitled ^ An Act for Consolidating and Amending the Laws relating to Jurors and Juries in Ireland.’ 60 SPECIAL COMMISSION, CO. TIPPERARY. And the said William Smith O’Brien also challenges the array of the said panel because he says that the several panels of jurors which for a long time to wit three years now last passed have been from time to time returned by the respective sheriffs of the county of Tipperary to serve upon juries for the trial of indictments at commissions of oyer and terminer and gaol delivery in and for the said county have consisted respectively of a large number of persons to wit each of said panels of 380 persons duly qualified and liable to serve as such jurors as aforesaid. “ And the said William Smith O’Brien says that of said panels of jurors not less than a certain large proportion to wit one-third of the persons on each of said panels has consisted of persons professing the Roman Catholic religion and that the residue thereof two-thirds of the persons on each of said panels consisted of persons professing the Pro- testant religion and the said William Smith O’Brien saith that of the jurors returned by Richard Pennefather as sheriff as aforesaid to serve at the present commission not more than a very small proportion to wit one-eighteenth consists of persons professing the Roman Catholic religion and the residue thereof to wit the seventeen-eighteenths of said last- mentioned persons consists of persons professing the Protestant religion. “ And the said William Smith O’Brien saith that said last-mentioned panel has been by the said sheriff partially arrayed and returned with reference to the religion of the persons returned on the same to the prejudice of the said William Smith O’Brien and this he the said William Smith O’Brien is ready to verify. Wherefore he prays judgment and that the said panel may be quashed and soforth.” The Attorney -General. — The allegation in the early part of this challenge is with respect to the jury hook. It will he necessary for us to make some inquiry into the matter, in order that we may see what answer we can make to this challenge, of which we have had not the slightest notice. Perhaps your lord- ships would be so good as to allow us to retire for a short time. The Lord Chief Justice. — Certainly. [Counsel for the Crown retired, and after an absence of two hours, returned into court.] The Attorney- General. — My lord, we hand in a plea to this. Sir C. O’Loghlen. — Have you joined issue ? The Attorney -General. — We have. [Clerk of the Crown read the plea.] COPT OF PLEA. “ And the said James Henry Monahan Attorney-General for our said Lady the Queen who in this behalf prosecutes for our said Lady the Queen cometh and saith that for any thing by the said William Smith O’Brien in his said challenge alleged the said panel ought not to be quashed because he saith that there was a jurors’ book for the said county of Tipperary for the now current year prepared and made out pursuant to the statutable enactments in that behalf made and provided and that the said jurors’ book for the said county for the said current THE QUEEN v. WILLIAM SMITH O’BIIIEN. 61 year is now in existence to wit at Clonmel aforesaid And the said James Henry Monahan further saith that the array of the said panel was well equally and impartially made and arrayed from the said jurors’ book for the current year by the said sheriff and his officers according to the duty of his office wherefore he prays judgment and that the array of the said panel may be affirmed and the said challenge disallowed.” Mr. Whiteside. — Perhaps your lordships would allow us to retire for a short time to consult? The Lord Chief Justice. — Certainly. [The prisoner’s counsel retired, and after a short absence returned into Court.] Sir C. O' Loghlen. — We join issue in the words of the plea, and hand in this replication. “ COPY OF REPLICATION. “ And the said William Smith O’Brien by way of replication to the plea filed by the Bight Honourable James Henry Monahan her Majesty’s Attorney-General who in this behalf prosecutes for our said Lady the Queen to the challenge of him the said William Smith O’Brien made to the array of the said panel says that notwithstanding any thing in and by the said plea alleged the said panel ought to be quashed because he says that there was not a jurors’ book for the said county for the now current year prepared and made pursuant to the statutable enactments in such case made and provided nor was the panel well equally and impartially made and arrayed from the said jurors’ book for the current year in manner and form as the said Attorney-General has in and by his said plea alleged and this the said William Smith O’Brien prays may be inquired of the Court here according to law and soforth.” The Attorney-General. — Your lordships wiU now appoint triers. The Lord Chief Justice. — Is there any objection to nominating the triers from the Grand Jury? Mr. Whiteside. — I submit, my lords, with great respect, that the triers ought not to he appointed from the Grand Jury. We can have no objection to any two strangers that your lordships may please. The Lord Chief Justice of the Common Pleas, when upon circuit, sometimes selects them from the bar, and sometimes from the officers of the Court. In Joy’s book on challenges, in a very late case, the Court assigned two triers; the second was objected to, and the Court would not allow any other. I do not think it will be necessary for us in this case to object to any that your lordships may appoint. The Attorney-General. — It is rather a curious objection to take. The triers are merely to find a matter of fact. The Lord Chief Justice. — I really cannot see any objection to the triers being appointed from the Grand Jury. 62 SPECIAL COMMISSION, CO. TIPPERARY. The Attorney- General. — The aRegation is, that there is no jury book in existence. Mr. Whiteside. — That will be almost entirely a question for the Court. [The name of Lord Suirdale, being the first on the Grand Jury panel, was called by direction of the Court.] Lord Suirdale. — My lords, as this inquiry may particularly extend to my own conduct as High Sheriff during the past year, I humbly submit that I ought not to be called upon to decide upon my own acts. Mr. Whiteside. — We may perhaps have occasion to ask Lord Suirdale a question respecting the jury book of last year. [His lordship was excused from serving. The Hon. Francis Aldborough Prittie, and the Hon. CorneRus O’ Callaghan, were then sworn as triers.] Mr. Whiteside. — Gentlemen triers, the first question raised by this challenge turns chiefly upon the construction of the Jurors’ Act ; and I shall open that very briefly to the Court, because the result must depend entirely upon the view of the law which their lordships may take of the act of Parhament. The Lord Chief Justice. — What act is it that you refer to? Mr. Whiteside The 3 and 4 William lY., c. 91. The Lord Chief Justice. — State to the triers the particular terms of the issue. Mr. Whiteside. — The question upon this first part is, whether the jurors’ book was made up for the current year pursuant to the statutable enactments in that case made and provided? The reason why I addressed their lordships was, that this case involves a legal point ; and it will be necessary for the Court to tell you the construction of this act of Parliament. The second question, which is one for the triers alone, is whether this panel had been fairly and impartially arrayed between the prisoner and the Crown. My lords, the act of Parliament upon which the jurors’ book has been framed, from which this panel has been called, is the 3 and 4 William lY., c. 91 ; and the 4th section of that act enacts — I shall only call your lordships’ attention to the material sec- tions in the act — “ For the assistance of the Sheriff in forming the jurors’ book, be it further enacted, that the Clerk of the Peace in every county, and the Clerk of the Peace in every county of a city and county of a town in Ireland, shall ” Now a question may rise upon the construction of this act, whe- ther the word “ shall ” means, he may do it whenever he likes. ' THE QUEEN t-. WILLIAM SMITH O’BRIEN. 63 “ within one week after the commencement in every year of the Mid- summer sessions hereinafter next mentioned, issue and deliver his pre- cept (in the form set forth in the schedule hereunto annexed, or as near thereto as may be) to the high constable and collectors of the Grand Jury cess in each barony, half barony, or other district of collection, and to the collectors of other cess or assessment where no Grand Jury cess is levied requiring such collectors, respectively, to prepare and make out within one month then next ensuing, a true list of men residing within their respective districts qualified with respect to property, and liable to serve upon juries.” The next section to which I shall call your attention is the 8th, which enacts — “ That such high constable and collector or collectors having made out, according to this act, a list of every man within his or their district qualified and liable to serve as jurors as aforesaid, shall within one month from the receipt of such precept as aforesaid deliver a true copy of such list to the Clerks of the Peace of the county, and of every county of a city and county of a town, who shall ” That is, the Clerk of the Peace shall — “ keep the same for a period of three weeks from the delivery thereof, in their respective offices, to be perused by any of the inhabitants of such county of city, or county of town, at any reasonable time during such three weeks, without any fee or reward.” That, your lordships see, covers a period of two months. By section 4 the Clerk of the Peace is to issue his precept within one week after the Midsummer sessions, the lists are to be made out within three weeks, and then within a month, the lists are to be returned. The three weeks, the one week, and the month, make together a period of two months. The period when these duties commence is, “ the first week after the Mid- summer sessions hereinafter next mentioned.” Now, my lords, there is no Midsummer sessions hereinafter next mentioned in the act at all. Section 9 is the next section to which I shall call your attention, and that provides — “ That the justices assembled at every October, general, or quarter ses- sions, to be holden in each division of each county at large, and the justices for or in each county of a city, or county of a town in Ireland, shall, at the sessions to be holden in October, fix the place within such division, and within such counties of cities, and counties of towns re- spectively, and also a time not less than two, nor more than three, calendar months, after the first day of such general or quarter sessions, for holding a special session for the purpose of examining such lists of the jurors, pursuant to the provisions hereinafter mentioned.” Then to pass over the intervening matter. SPECIAL COMMISSION, CO. TIPPERARY. “ When every such list shall be duly corrected by the justices present, at such special sessions or adjournment thereof, and signed by them or three of them.’^ Upon that part nothing arises here. “And the justices shall cause one general list to be made out there- from, containing the names of all persons whose qualifications shall be allowed, arranged according to rank and property; and the presiding justices of such sessions shall deliver the same to the Clerk of the Peace, who shall thereupon cause the same to be duly and fairly copied in the same order in a book, to be by him provided for that purpose at the expense of the county, city, and town respectively, with the proper columns for making the register hereinafter mentioned; and shall forthwith deliver the same book to the Sheriff of the county, city, or town, or his Sub- Sheriflf or Town-Clerk ; and that book shall be called the Jurors’ Book for the year , (inserting the calendar year for which that book is to be in use.)” And then it provides — “ That every Sheriff upon getting this, shall deliver the same to his succeeding Sheriff; and that every jurors’ book so prepared, shall be brought into use upon the first day of January, after it shall be so delivered by the Clerk of the Peace to the Sheriff or his Sub-Sheriff.” Now, our objection is, that the October sessions mentioned in section 9. are, in truth, the sessions mentioned in section 4; and that your lordships must, to make sense of the act, either reject the words “ next hereinafter mentioned,” or the words, “ Mid- summer sessions.” Then, if our construction of the act be the right one, and if you reject the words “ Midsummer sessions,” which you must do, from looking at the date of the act, then this consequence follows, “ that the sessions next hereinafter mentioned,” must be the October sessions; and therefore, that the Clerk of the Peace must have issued his precept one week after the October sessions ; and in point of fact he has not done so, but has issued it in J uly. I now call your lordships’ attention to the other section in this act. The time specified by the 9th sec- tion, within -which the justices are to fix the time for holding the petty sessions, and settling the hsts, is two months. If, then, we refer back to section 4, we shall find that the two months exactly cover the period — the three weeks, the one week, and the one month. It is impossible to give any other reading to this act, , than that the sessions mentioned in section 4, are the October sessions; because the August sessions, which are the summer sessions, are nowhere mentioned. For the best of all possible reasons, your lordships must give this act that interpretation. The act itself is dated the 28th of August, 1833. The Mid- summer sessions were then past ; and if you do not hold our THE QUEEN y. WILLIAM SMITH O’BRIEN. G5 construction of the act, there could be no jurors’ book made out for a twelvemonth. The point, therefore, would seem to be, first, whether this act requires that the jurors’ book should be made by the 1st of January, 1834. The 49th section of the act directs, or rather enacts, that those parts of the act which relate to the issuing of the precept, the return of the jury list, the preparation of the lists, and the formation of the jurors’ book — “ Shall commence and take effect as soon after the passing of this act as the proper time for doing this shall occur.” It is to take effect after the passing of this act. When did this act take effect? Upon the 28th August, 1833. Therefore, the "'sessions next hereinafter mentioned,” in section 4, can- not be the Midsummer sessions, for there was no Midsummer sessions for that year, after the passing of this act. I submit, therefore, that the sessions there referred to cannot mean the Midsummer sessions. The Clerk of the Peace must be governed by this act in the issue of his precept, on which the whole tWg depends, because he has no more jurisdiction than I have to make a jurors’ book. In point of fact, we have ascertained that he has not done so ; nor did the act contemplate that the jurors’ book was to be ready upon the 1st of January, 1834. If that were so, there is an end of the argument. It could not be done, construing section 4 to refer to the Midsummer sessions; and I respectfully submit, therefore, that it must be construed to mean the October sessions. I think we have proved that the act contemplated that there was to be a jurors’ book ready on the 1st of January, 1834; because having discovered this to be a blundering act, they remedied some of the errors in it by the short act, 4 William IV., c. 8, which consists of but two sections. Section 2 of that Act states — " Whereas, in consequence of the difficulty which has been found to exist since the passing of the said recited act, in making up the list of jurors before the 1st day of January, in the present year, the jurors’ book by the said recited act, has not been made up in sufficient time to be delivered to the Sheriff or other proper officer, so as to be brought into use on the said first day of January, as by the said recited act provided.” If, my lords, our interpretation is not the right one, how could the jurors’ book, directed and enacted to be brought into opera- tion — and it was by this act directed to be brought into operation — on the first of January, 1834? How could it, if the Midsummer sessions were past, except by reading section 4 as in truth referring to the October sessions, and none other ? By section 1 1 of the act your lordship finds — F 66 SPECIAL COMMISSION, CO. TIPPERARY. “ That the Sheriflf shall not, in answer to any writ of venire facias or precept for the return of jurors, return the names of any person not contained in the jurors’ book for the then current year. And they say, according to their plea, that there is, according to the statutable enactment, a jurors’ book for this year. We have inquired, and so far as we can discover, there is no precept since July; and the question is, can there he a jurors’ book without a precept in the manner declared by this act? The Clerk of the Peace, instead of issuing his precept, as required by the act of Parliament, after the October sessions, issued it in July ; and if he did, the whole is a nullity. I understand the fact to be as I have stated it ; and indeed I coUect it to he so from the very form of the reply to our challenge. The second objection, my lords, upon which we rely, goes to the merits of this panel. That is a matter, gentlemen, for you. Every question of this nature deeply affects the administration of justice, much more largely than it can affect any individual case. The Lord Chief Justice. — We all think it would be better to dispose of this part of the case before you proceed to the other. The issue is for the Attorney-General. Mr. Whiteside I thought so, myself, my lord. Now we wiU call the Clerk of the Peace, with the precept. George Ponsonhy Prittie, Esg.^ sworn — examined hy Mr. Fitzgerald. You are, I believe, Clerk of the Peace for this county? — 1 am. Have you been served with a subpoena duces tecum, to produce the lists from which the present jury panel has been framed? — I was served to-day. Do you produce those precepts, or any of them ? — I do not produce the precepts, because they are always delivered to the High Constable, who never returns them to me. Do you produce the lists? — I produce the lists as revised by the magistrates at the revision sessions. The Lord Chief Justice. — You say you cannot produce the precepts because they are retained by the Constable, and are not given out of his custody? — Yes, my lord. The Attorney- General. — He does produce that, my lord, which is done by the Sheriff in virtue of the precepts. Mr. Whiteside. — Not at all. Mr. Fitzgerald. — Is it not the fact that the lists are a part of the precept? — No, not at all. The Attorney- General. — He produces what is an answer to the precept. Mr. Fitzgerald. — Are not the lists annexed to the precept and re- THE QUEEN i;. WILLIAM SMITH O’BRIEN. 67 turned? — They are generally appended to the precept. The precepts are not returned. The form for the preparation of the list is returned, but not the precept. Do the lists as returned, which you hold in your hand, contain any date ? — I think they must do. Will you state the date of the returns of any of them ? — This is dated barony of L , west, 12th of August, 1847. Now, will you give us the dates of the others ? — This is for another barony, and is not dated by the High Constable. Is it returned without a date ? — It is. Did you take it without a date ? — I suppose it must have been so returned. Do you know when you got it ? — I know about the time. What time was it ? — I should say, about August ; some time in August last. This is from the barony of Middlethird, also returned without a date by the High Constable, bearing his signature. Can you tell about what time you received that ? — I received it on the 17th of August, 1847. Very well; now give us the date of the next one ? — The next is for the barony of Lower Ormond, and is dated on the 3rd of August. The Attorney-General . — They are all received, I suppose, before the month of October? — Yes, all received before October. Mr. Fitzgerald. — Now, allow me to ask you another question. After receiving these lists did you issue any other precept ? — Certainly not. Mr. Whiteside The point upon wLicli we rely, now appears before tbe Court. Cross-examined hy the Attorney-General. These lists were revised at the January sessions? — They were revised in last December by the magistrates, at a special sessions held for the purpose. Mr. Whiteside . — Were you present at that ? — I was. The Attorney-General . — At the special sessions in the month of Decem- ber ? — Yes. That special sessions was fixed in October ? — It was. And was the jurors’ book prepared from those revised lists ? — It was. Mr. Whiteside . — You must produce the jurors’ book you speak of, Mr. Attorney, as having been prepared from those lists. The Attorney-General. — Certainly. That is all that I will ask him. Mr. Whiteside . — Those are all the precepts that you have for this year ? — They are. Mr. Whiteside . — My lords, on this point it strikes us that that raises the question as to these lists ; whether they were all returned by the collector in the month of August. That must be in a precept by the act of Parliament one month before at least ; that is July, as I have stated. The Attorney-General . — Have you any other evidence? F 2 68 SPECIAL COMMISSION, CO. TIPPERARY. The Lord Chief Justice, — I do not understand they offer any more. The Attorney-General. — There is no question, I respectfully submit, for the triers in this case. The Lord Chief Justice. — I take for granted you produce the jurors’ book. Mr, Whiteside. — Made from those lists. The Attorney-General. — Yes, my lord. In point of fact, they have not proved the non-existence of the jurors’ book. Of course we are prepared to produce it. Mr. Whiteside. — We do not dispute that. What we say is, that it is made from those hsts. Tiie Lord Chief Justice. — I only want to know, whether 1 am to take it for granted that there is a jurors’ book in existence. The Attorney- General. — That is admitted by the present proceeding. The Lord Chief Justice. — Is it further the case that that jurors’ book was made from those lists which were so revised ? The Attorney- General. — That is so, as a matter of fact, my lord. Mr. Whiteside. — I suppose you will call a witness to prove that ; we do not admit it. Lord Chief Justice Doherty. — It was so stated by the witness. The Attorney- General. — I would just call your lordships’ attention exactly to the allegations which are contained in the present challenge, and those portions of them upon which we have taken issue, and the replication or joinder on our issue which has been taken by the counsel for the prisoner. The first allegation here is to the effect, not that no precept at all issued for the purpose of the preparation of the jury lists, but that no precept was issued after the October sessions of the year 1847 — that no precept issued within a week after the October sessions of 1847, or at all subsequently to the October sessions of the year 1847. That is the first distinct allegation. There is, next, an allegation of a distinct matter of fact, that there was no jurors’ book, in fact, prepared, or now in existence at all. Then there is an allegation, assuming that there was no jurors’ book now in existence, that the present panel was not arrayed by the Sheriff from the jurors’ book of the preceding year ; and then it goes on to allege, that such as the panel is, it was improperly arrayed. We have not taken issue upon what we conceive to be altogether an immaterial allegation, viz. — that there was no precept issued subsequent to October, and there is no issue joined on that. There is a distinct allegation in this challenge upon which we have taken issue, namely, that there was a jurors’ book prepared, which is the jurors’ book prepared at the December special sessions, and is the result of the revised lists, made in pursuance of the statutable enactments, which is the only matter that the THE QUEEN WILLIAM SMITH O’BRIEN. 69 Sheriff has any thing to do with. He receives the jurors’ hook, and returns his panel from that. It would occur to me that the presumption of law being, that what ought to be done is done : it lies upon them to prove that there was not a jurors’ book in existence. There is, however, no necessity for raising any ques- tion of that description, because there is a jurors’ book forth- coming, and that book will he produced by the Sheriff. But I think it necessary to call your attention to the issue raised. There is no issue raised by us with respect to there being no precepts at all after the October sessions. We do not conceive, upon the true construction of the act, that we have any thing to do with that. I shall now, with your lordships’ permission, make a few remarks upon the act of Parliament to which Mr. Whiteside has referred. My learned friend has made rather a startling pro- position, — that October means Midsummer. This is an act for consolidating the laws relative to jurors and juries in Ireland. By the 4th section it is enacted — the previous section states, that none but qualified persons are to be returned by the Sheriff, in answer to any precept, persons having a certain amount of pro- perty and of a certain description — “ For the assistance of the Sheriff in forming the jurors’ book, be it enacted, that the Clerk of the Peace in every county of a city and county of a town in Ireland, shah within one week after the commencement in every year of the Midsummer sessions, hereinafter next mentioned ” That is, that he shall issue his precept in a certain form requir- ing the parties to do something here mentioned. My learned friend, Mr. Whiteside’s argument is, that the Midsummer sessions hereinafter next mentioned, mean the October sessions, because it so happens, that there are certain things required to be done by the act at the October sessions. That appears to be quite a mistake on the part of my learned friend. What is required to be done after at the October sessions is altogether a different thing. At the October sessions they are to appoint a time for revising the lists, assuming that the lists had been already prepared; and then comes the section providing that this act of Parliament shall come into force in different parts, as soon as possible after the passing of this act. “ Be it enacted that those parts of this act which relate to the issuing of the warrant and precept for the return of the jury lists — ” And soforth. shall commence and take effect so soon after the passing of this Act as the proper periods for doing those things shall occur.” Then the question is, what is the proper time for doing those 70 SPECIAL COMMISSION, CO. TIPPERARY. things ? We say that the proper period for issuing the precept is immediately after the July sessions, and not after the October sessions. Your lordship knows, as the general law of the land, when the sessions are held. There is one called the Michaelmas sessions, always held in October ; and there is the Midsummer sessions, always held in July. Therefore I should respectfully submit upon this point, which seems rather a curious construc- tion of the words, that if any thing were required for the purpose of showing the meaning of the Legislature, it is to be found in the words, that this act was to c6me into operation immediately. The Sheriffs are to do certain things; they are to return certain persons of a certain property qualification ; and I do very respect- fully submit, that there is nothing whatever in the point now suggested by my friend, Mr. Whiteside. Totally independent of that, a question would arise, my lords, whether this act was not merely directory, and at the December sessions the lists having been revised, no matter when the pre- cept issued, whether there is to be a failure of the criminal justice of the country, because the officer did not issue his precept at the precise period required by the act of Parliament. Upon this, there- fore, I respectfully submit that the Court ought not to decide upon the construction of the act as laid down by my learned friend. The Solicitor- General . — I feel, my lords, that I am scarcely required to say any thing after what has been urged by the Attorney- General. In addition to what he has stated about this expression. Midsummer sessions, necessarily meaning the October sessions, not only of that year, but of every year since the passing of this act ; if that is held, every Midsum- mer that has passed since must be taken to mean Winter and not Summer ; and the precept required to be issued to have the jurors’ book or list corrected in Midsummer in 1847, in fact, meant the October sessions of 1847. We were a little embar- rassed when we saw this month of October stated in the challenge, and we lost a great deal of time in hunting through the statutes fearing that there might perhaps be some act of Parliament altering the period from the October sessions to the Midsummer sessions. That was the reason why we detained the Court so long ; because it was so positively averred in this challenge, that it was the October sessions, and that there was no precept issued within the first week in October ; and that there was no legal jurors’ book and soforth. It is from the jurors’ book that the Sheriff is to take his panel, and for that he is legally respon- sible. He is not to be held answerable for any technical mistakes made by the high constables, or the ofiicers of the different baro- nies, neither are such mistakes to nullify all the proceedings in law. The Lord Chief Justice . — Do you call any body ? The Attorney-General. — Yes, my lord. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 71 Samuel Murray Going, Usq., sworn — examined hy the Attorney-General. Are you Sub-Sheriff of this county ? — I am. What book is that you have in your hand ? — The jurors’ book of the present year. From whom did you get it ? — From the Clerk of the Peace. What is the date of it ? — It is dated the 31st of December, 1847. And this is the j urors’ book ? — It is. The Attorney -General I am confining myself, my lords, en- tirely to the existence of the jurors’ hook. The Lord Chief Justice. — That is quite enough. Mr. Whiteside. — We shall not trouble this gentleman by any question. Mr. Fitzgerald. — The very few words which I shallhave to offer, wiU be to their lordships rather than to you, gentlemen. My lords, the nature of this challenge is, that there is no jurors’ book in existence for this year, according to statutable enactment, and that the default of the Sheriff is, that he has not taken the pro- ceedings in this case, which he ought to have taken, and there is a distinct averment in the challenge that he has not done so. The learned counsel for the Crown have taken issue upon the fact of there being no jurors’ book in existence. I am entitled, therefore, to say that they admit that the Sheriff did not take the proceed- ings which the act points out, and states he ought to have taken, in the event of there being no jurors’ book in existence. That is the default of the Sheriff, and you will find that this challenge is founded on section 11 of the 3 and 4 William IV., c. 91, which states — “ That the Sheriff shall not in answer to any writ of venire facias or pre- cept for the return of jurors, return the names of any persons not contained in the jurors’ book for the then current year, and that where process for returning jurors for the trial of any issue shall be directed to any coroner, elisor, or other minister, he shall have free access to the jurors’ book for the current year, and shall not return the names of any persons not con- tained in the said book.” Then there is a proviso — “ Provided always that if there shall be no jurors’ book in existence for the current year, it shall be lawful to return the jurors from the jurors’ book of the year preceding.” We have averred regularly that the proceedings directed by the act to be taken, in the event of there being no jurors’ book for the current year, have not been taken by the Sheriff, so that the single question before you is, not the fact of whether there be a jurors’ book in existence ; but in the terms of their own traverse, whether there be a jurors’ book in existence for the present year pursuant to the statutable enactment in that case made and pro- vided. I do say it is now shown to you, and proved beyond all 72 SPECIAL COMMISSION, CO. TIPPERARY. doubt, that there is not a jurors’ book for the current year, pur- suant to the statutable enactment in that case made and provided. And that is my case. Now, my lords, your attention has already been drawn to this fact, and your lordships will find it most material in this case — that the 3 and 4 Wilham IV., c. 91, passed on the 28th of August, in the year 1833. The section to which your lordships’ attention has been drawn by the Attorney-General is the 49th section, which appears to me to be conclusive for our case : — “ Be it further enacted that those parts of this act which relate to the issuing of the warrant or precept for the return of the jury lists, the preparation, production, reformation, or allowance of those lists, holding of sessions for those purposes, the formation of a jurors’ book and delivery thereof to the Sheriff, or the preparation of the lists of special jurors, and of the parchments or cards in the manner heretofore mentioned, shall commence and take effect so soon after the passing of this act as the proper periods for doing those things shall occur, and that the rest of this act shall commence, and take effect upon the first day of January one thousand eight hundred and thirty-four.” Now, bearing that section in mind, let me caU your lordships^ attention to the 4th section. “ For the assistance of the Sheriff in .forming the jurors’ hook, be it further enacted, that the Clerk of the Peace in every county of a city, and county of a town in Ireland shall, within one week after the com- mencement in every year of the Midsummer sessions hereinafter next mentioned ” My lords, your attention has already been called to the fact, that there are no “ Midsummer sessions next hereinafter men- tioned” in this act. Now, conceding to my learned friend, the Attorney-General, for a moment, that by the sessions mentioned in the statute, passed on the 28th of August, 1833, Midsummer sessions are meant, when, I ask, would those Midsummer sessions first occur after the year 1833 ? I have called your lordships’ attention to the fact, that the act passed on the 28th of August, 1833, and you will see, from the margin of the act, that that was the opinion of the person who put that margin — that the Midsummer sessions occur in July. The fact is notorious. Then if my learned friend, the Attorney-General’s construction be the right one, the first sessions at which this could issue would be the Midsummer sessions of the year 1834. The subsequent proceed- ings are for the purpose of framing the jurors’ book for the ensu- ing year, and which was to be ready for the 1st of January of the ensuing year next to those proceedings. If, then, my friend’s construction be the right one, there could not be under the act a jurors’ book prepared by the 1st of January, 1834. That appears to me to be demonstrated. I have called your lordships’ attention THE QUEEN i;. WILLIAM SMITH O’BRIEN. 73 to the fact, that there are no “Midsummer sessions next herein- after mentioned” in the act. What necessity, then, does that impose upon your lordships ? You must reject either the words “ Midsummer sessions,” or “ hereinafter next mentioned.” My friend the Attorney-General must choose between them. If the October sessions, which are the sessions next after mentioned, were meant, there would have been ample opportunity to frame the jurors’ book by the 1st of January, 1834. Does not, then, the whole question turn upon this, whether it was the intention of the Legislature that the jurors’ hook should, in comphance with its enactments, be ready by the 1st of January, 1834 ? Can there be a doubt of it, when your lordships’ attention is called to the statute of 4th William lY., c. 8, passed shortly afterwards to amend this act ? What does the second section of that act state ? It states — “ Whereas, in consequence of the difficulty which in certain instances has been found to exist since the passing of the said recited act, in mak- ing up the list of jurors before the first day of January, in the present year, the jurors’ book by the said act prescribed has not been made up in sufficient time to be delivered to the Sheriff or other proper officer, so as to be brought into use upon the said first day of January, so as by the said recited act provided.” Then, my lords, I have here a legislative declaration, that the Legislature did intend, by passing the provisions of the 3rd and 4th of W^illiam lY., c. 91, that there should he a jurors’ book ready by the 1st of January, 1834. Can your lordships doubt that when the choice is put upon you of rejecting the words “ Midsummer” or “ next hereinafter mentioned,” that the words retained must he “ next hereinafter mentioned,” and the word “ Midsummer” rejected ? Suppose, my lords, I am right for one moment, that in the fourth section the sessions mentioned are the October sessions, being the sessions “ next hereinafter men- tioned,” the earliest time at which the lists, in that case, could be laid for revision before the justices of the peace at special sessions would he two months ; because, from the commencement of those sessions, there was to be one week which the Clerk of the Peace had for issuing his precept, one month for the collectors to make out their returns, and there was to be a period of three weeks for the lists to lie in the office of the Clerk of the Peace. So that, supposing the October sessions were meant, the minimum time left for holding the special sessions would be two calendar months, and that is the time mentioned in the act. It does appear to me, my lords, that there is no possibility of answering this. Mr. Justice Moore . — What is the time at which you state the precept ought to be issued ? Mr. Fitzgerald . — Within one week, my lord, after the sessions 74 SPECIAL COMMISSION, CO. TIPPERARY. “ next hereinafter mentioned” in the act, which is the October sessions. Mr. Justice Moore. — How, then, were the lists to he revised in the October sessions ? Mr. Fitzgerald. — They were not, my lord, to he revised at the October sessions. At the October sessions the justices of the peace were to fix a time after the commencement of those sessions, not less than two months, for the purpose of revising them. And I will tell your lordships why they fixed the period of two months ; because, from the commencement of those sessions, being the sessions mentioned in the act, two months were necessary to enable the Clerk of the Peace and the collectors, and the Clerk of the Peace again, when those lists were returned, to have the two months to bring in and prepare the lists. With respect to the question, as to whether this act is merely directory, I would beg to call your lordships’ attention to the eleventh section, where there is no jurors’ book in existence. The statute points out . The Lord Chief Justice. — You need not trouble yourself with that part of the case, because it is quite plain. {Addressing the triers) — Gentlemen, in this case, in the issue which has been joined, and which I shall read to you, it is alleged by the pri- soner “ that there was not a jurors’ book for the said county for the current year prepared and made, pursuant to the statutable enactments in that case made and provided.” Now, it is an admitted fact, that the panel is taken from the names found in that book which has been produced, and which has been proved to have been delivered by the Clerk of the Peace to the Sub- Sheriff of the county upon the 31st of December, 1847, and which book is proved to have been made from the lists revised at the quarter sessions, at which quarter sessions, I need not teU you, that the magistrates preside for the purpose of revising the hsts ; and the lists which they so revise, from which the jurors’ book is compiled, are proved to have been returned by the collectors prior to the month of October, in pursuance of a precept which has not been produced here, but which unquestionably issued before the month of August. And the question now raised for your consideration, and in respect to which it will be our duty to instruct you, so far as it involves a matter of law, is this, whether or not the precept which was unquestionably issued by the Clerk of the Peace before the October sessions, was a precept issued pursuant to the jurors’ act ? Upon the part of the prisoner it is alleged, that it ought to have issued after the October ses- sions in the year 1847, and ought not to have issued at any ante- cedent period. In point of fact, it did issue at an antecedent period. And then the question is, whether in point of law it is pursuant to the act of ParHament ; and that depends entirely on the construction of the act of Parliament, as to which we have THE QUEEN t;. WILLIAM SMITH O’BRIEN. 75 no difficulty in telling you that it does not contain one single word or letter justifying that construction, or warranting you in coming to the conclusion, that the Clerk of the Peace has acted other than pursuant to the act of Parliament ; therefore, the objection is utterly untenable, and we advise you to find against the challenge upon that ground. [The triers found for the Crown and against the challenge upon the first ground.] CHALLENGE TO ARRAY UPON SECOND GROUND. Mr. Whiteside . — Gentlemen triers, the first point of this case having been disposed of, the second objection is for you. It arises upon a simple statement of facts, and you will dispose of it with justice and honour to yourselves and to your country. My client, Mr. O’Brien, is on trial for his life ; and, to speak to you very shortly and very simply, if he is not tried by a fair and im- partial jury, my belief is, that they might as well take him and shoot him at once upon the high road. The question here for you is, whether this panel has been fairly and impartially arrayed. That will turn upon this, whether the panel has been returned in the ordinary and usual course in which it was by the noble lord who was just examined, and the gentleman who preceded him. I have, gentlemen, the high authority of my Lord Chief Justice himself for saying, that the panel which was returned at the last special commission was a panel which discharged its duty honour- ably and faithfully to yourselves, to the county, and to the king- dom at large. I have the conduct of three gentlemen, strangers to me but known to you, who preceded the present very respect- able High Sheriff in the important and arduous office which he fills ; and I have the conduct pursued at the late and present special commissions ; and it will be for you to say whether you are satisfied that this panel has been fairly and impartially arrayed between the Crown and the prisoner. Y ou will be told by the Court, gentlemen, that which nobody ever denied, or would presume, indeed, to insinuate in a court of British law, that there should he no management, no contrivance, no artifice in respect to the concoction of the jury panel. You will also be told that which the law tells us, that all men are equal before the law. Now, what is the fact ? Because we have not only stated in our challenge, as we were bound to do, that this panel was not fairly and impartially arrayed ; but we have stated the grounds upon which we think that it is not. If you are of opinion that the preceding Sheriffs of your county, as we shall prove to you, discharged their duty faithfully, correctly, and im- partially between the Crown and the prisoners who were tried at the assizes and at the special commission during the last three years, it is utterly impossible for you to affirm, by your verdict on your oaths, that this panel is a fair and impartial one. We have 76 SPECIAL COMMISSION, CO. TIPPERARY. stated the grounds upon which we object to it, and it is no mere quibble. The prisoner, Mr. William Smith O’Brien, would con- tradict the opinions of his whole life if he did not raise the present question. The point is a very short one. Upon all the former panels wdthin the last three years, there was a cer- tain proportion observed by the respectable High Sheriffs who returned the panels — and especially for the last special com- mission — and that proportion seems to have been considered a fair one, though I confess I was much surprised, considering the religion of the jurors, at the smallness of the numbers. Upon those panels two-thirds of the jurors who have been generally returned upon the panels for the last three years have been of the Protestant persuasion, and one-third only have been of the Cathohc religion. That gave satisfaction ; and -when you give satisfaction you have done all that can be required of you, what- ever your station in hfe may be. What is the result with respect to the present panel ? It is averred that upon this panel — and it will be proved to you as certainly as that I am now speak- ing to you — that one-eighteenth part only of that panel consists of Cathohc jurors. The very men eulogized by the Lord Chief Justice for the manner in which they discharged their duties at the last special commission — the men who showed that they could not be intimidated, have been, I say, purposely and studiously struck off upon this occasion. I say studiously struck off, in order to save my learned and esteemed friend, the Attorney-General, the pain of telling them openly to stand by when they come up to be sworn. Let me apprize you that there are 280 names returned upon this panel ; and it is settled, though it has been disputed by great lawyers, now on the bench in England, that the Crown may put by 276, or 260, or 264, until they have exactly the twelve men they like, and that they may do by simply utter- ing the words “ stand by.” Therefore, the more numerous a panel is, where the prisoner has but thirty-five challenges, the more reason is there for ascertaining whether the panel is fairly and impartially arrayed or not. In Horne Tooke’s case, Sir John Scott, then the Attorney-General — the late Lord Eldon — went the length of setting aside seven men, and the judge observed sharply upon the number he had set aside, remarking at the same time the number which appeared on the panel. Had he practised in Ireland, he would have been taught a different line of proceeding. Why do I mention that ? Here is a panel of 280 names. It may be that my client has no apprehension that twelve gentlemen of his own persuasion would not try him fairly for his life. But that is not the question. I have no doubt, and he has no doubt, but they would. The question, fairly and honestly, is, whether this panel has been dealt with unfairly and unwarrantably to his prejudice. Now, what has been done ? They have struck off seventeen-eighteenths of the Roman Catholic THE QUEEN i/. WILLIAM SMITH O’BRIEN. 77 jurors of this county. There are several of them , who attended at the last assizes in attendance here, whom we have summoned to give evidence to-day. Now, if you want an authority to know whether that is according to the law or the constitution, I will give you one, and it is no other than the prosecutor in this case, Lord John Russell. Gentlemen, I was engaged as counsel in Mr. O’ConneU’s case, on the part of one of the gentlemen who were then arraigned. Eleven gentlemen were there set aside because they belonged to the Repeal Association ; and that reason, in my judgment, was a just one. They were assailed for having to set them aside in the House of Commons The Attorney-General. — Pardon me for the interruption Mr. Whiteside. — No. I will not be interrupted while I am making a statement. The Attorney- General. — I beg your pardon, but Mr. Whiteside. — I beg yours. The Lord Chief Justice. — What is your objection ? The Attorney- General. — My objection is this. I really do not know, my lords, what Lord J ohn Russell has to do with this. He is not the prosecutor in this case. I am here the prosecutor, as public officer, on the part of the Queen. On the question which has to be tried here, whether this be or not a fair and proper panel, I do not know what Lord John Russell has to do with that. The Lord Chief Justice. — Do not go into any vague question. Mr. Whiteside. — I am not, my lord, going into any vague ques- tion. I am going to state the short point, which is important. In that case they struck off eleven gentlemen who were of that per- suasion, who were equal in the eye of the law; and Lord John Russell arraigned that proceeding as an unconstitutional and un- justifiable one in the case of the Queen v. O’Connell ; and yet the same man — for what is the use of my learned friend telling me that he is acting for the Queen, I do not say it disrespectfully — but the official servant of her Majesty’s prime minister — to he sure he is; and they have struck 100 off that panel, and they have placed a few names in such a place that our right of challenge is a farce. That, gentlemen, is my short case ; and I appeal confidently to the honour of two Protestant gentlemen, to decide that as between William Smith O’Brien, one of their own rank in life, and to give him a fair trial. We will prove these facts ; and it wiU be for you to say whether the Attorney-General is justified in striking off those names. I have one observation more, and I will make it, whether my client likes it or not, that if any of those jurors who were struck off by the Attorney-General are members of any club or confederacy, that would induce them to be prejudiced in favour of Mr. O’Brien, I agree that they ought to be struck off. But if they are not, if they are im- partial jurors, who have been called here as jurors assize after 78 SPECIAL COMMISSION, CO. TIPPERARY. assize, and at special commission after special commission, and have done their duty between your county and the Crown, then, I say, that such striking off has been done designedly and studiously. There are but some 18 or 19 Catholics on this long panel of 288 ; and I will tell you why that has been done. Of the 120 who have been in the habit of attending 100 are gone ; and you will be told presently, I have no doubt, that the Sheriff knew nothing about it. Gentlemen, the best autho- rity I can give you, as to the value of my objection, is the decision of Baron Pennefather, in my hearing, at the last special commission in Dublin : it w^as this, that the religion of any man is no ground of objection ; and if a body of men are kept off studiously and purposely, on the ground of their religion, that, he decided from the bench, was a just ground for impugning the impartiality of the panel. I make no charge against the respec- table High Sheriff of your county. These facts have been stated to me; and I am bound, in justice to my client, who has put his case into my hands — and I wish to God it were in abler and better hands — to bring the matter before you. I will prove these facts to you ; and it wiU not do for the Sheriff to say that he did not know how this panel was made out. It has been made out in that way, that they might not appear on the panel ; for if they were on the panel, the Attorney- General would have had openly to bid them stand by. I do not speak disrespectfully of my learned friend; it would pain him to do it. They are, how- ever, off the panel, and there is not one man scarcely that could by possibihty be called on to serve. I believe at every twenty or twenty-five names there is one Catholic gentleman. Our right of challenge is thus made a mere farce ; and it comes ultimately to this, if this system be continued, while I admit you ought to strike off all men who are Confederation men, and the like — and I admit now that the Sheriff ought to do it — yet, if on the score merely of their religion they are omitted, it would be better frankly and boldly at once to re-enact the penal laws. Henry Pedder, Esq., sworn — examined hy Mr. Fitzgerald. You are the Clerk of the Crown, I believe? — I am, jointly with Mr. Carmichael. Have you been served with a subpoena duces tecum to produce the jury panels of the last three years? — I have. Do you produce them ? — The panel for the South Riding is in the Crown office, the other is at Nenagh. I could not produce that; and I doubt whether I could remove it without an order from the Court, even if I had time to do so. Have you that of the South Riding here ? — I have it in the office ; I will send for it. Do you happen to know how many jurors are upon the present list? —288. THE QUEEN i- WILLIAM SMITH O’BRIEN. 79 Patrich Kinvan, sivorn — examined hy Mr. Whiteside. What are you by profession ? — An attorney. Do you practise in this county ? — Yes. Are you in the department of the criminal law ? — I have practised the criminal law in this county for a great many years. I am told you are well acquainted with the jury panels of this county. Is that so? — I think I have had a tolerable good idea of them for several years. Have you read over this jury panel ? — I heard it read. Have you heard the names called out from this panel 1 — I have. I watched them attentively for this object — I was watching to take down the number of Catholics upon the panel. The Attorney- General . — I do not know whether this is mate- rial, the number of Catholics on the present panel. I do not know myself what number of Catholics may or may not be upon it. The issue is, whether the present panel has been fairly or unfairly empanelled by the Sheriff. Mr. Whiteside. — That, my lords, is the issue; this is the medium of proof. It may be an ingredient in the case, as the matter turns out afterwards. Mr. Whiteside (to witness ). — How many are there on the panel ? — I think, as well as I could take them down, about seventeen or eighteen. Of how many names does the panel consist ? — I did not count the numbers on the panel, but it is admitted 288. Now, confine yourself for a moment to the last special commission. Were you in court at the last special commission ? — I was not. Then do not say any thing about it, but refer to the assizes before that. — I do not think I could particularize any particular assizes for the last three years. All I can say is, that upon an examination of the panel which I heard read to-day The Solicitor- General . — If you are going to give evidence, with respect to the individual^ on any former panel, I submit it is not the best evidence, and that we should have the original docu- ments themselves. Mr. Whiteside . — He has gone for them. (To witness ). — What is the ordinary number of Catholic jurors you have seen attending here, and doing their duty as jurors ? The Solicitor- General . — That is still more objectionable. Mr. Whiteside . — I am asking it as a matter of fact. Mr. Justice Moore When the panel comes, he can look over it. Mr. Whiteside (to witness ). — Is the number of Catholics summoned upon this panel smaller than upon any other you remember ? The Lord Chief Justice . — How can you institute any compa- rison between this panel and the others ? 80 SPECIAL COMMISSION, CO. TIPPERARY. Lord Chief Justice Doherty . — You are making a comparison of two things, one of which is not here. Mr. Whiteside. — Mr. Redder, have you the last special com- mission panel here ? Mr. Pedder . — I have. Mr. Whiteside . — Hand it to me. [The panel was handed to the learned counsel, who gave it to the witness, and requested him to look over it.] Witness . — It will take me a long time to look over the whole of this. Mr. Whiteside . — You may stand down for the present, and when you have gone over it we will caU you again. Mr. Rody Spain, sworn — examined hy Mr. Whiteside. Are you a juror of this county ? — I am. Have you attended as a juror at the assizes, and at the special com- missions held in this place ? — I have attended but one special commis- sion here. What one was that ? — It was about six years ago. But ordinarily have you attended at the assizes 1 — Yes. Were you at the last assizes ? — I was. Did you serve 1 — I did. Have you been always summoned to the assizes h — I have been left off the two last assizes. But except those two occasions you have usually attended — I have. The Lord Chief Justice. — You have not been summoned for the last two years ? — No ; I have been left off. Mr. Whiteside. — And then put on again ? — I was. Were you summoned to attend upon this trial 1 — I was not. What is your persuasion and belief ? — Roman Catholic. Do you know Gregory Fitzpatrick 1 — I do. Is he a juror ? — He is. Have you seen him serve as a juror ? — I have. Have you seen Janies Hanley serve as a juror h — I have. What is his religion ? — Roman Catholic. The Lord Chief Justice — You see, Mr. Wbdteside, unless you can connect the Sheriff in some way or other with some corrupt in- tention, I cannot see the object of pursuing this line of examination. Mr» Whiteside . — It will be a question on the evidence, my lord. I aver that 100 and more names could not he left off by accident. Now I must prove the fact that there are 100 off. Lord Chief Justice Doherty . — That none were left off prior to the time of the present Sheriff. Mr. Whiteside . — He was left off about two years ago, but since two years he was put on, and served regularly. The Attorney-General {to the witness). — You say you were left of for two years, and then summoned ? — Yes. Were you summoned at the last special commission ? — I was not. 81 THE QUEEN WILLIAM SMITH O’ERIEN. Mr. Whiteside . — I Lave not done yet, Mr. Attorney. {To the witness .) — Ho you know Edward Flynn? — I do; I have seen him serve. What is he by religion ? — Roman Catholic. Ho you know Jeremiah Tuohy? — I do; I have seen him summoned frequently. Mr. Scott . — Is the Sheriff always to follow the preceding panel ? The Lord Chief Justice . — You had better not address each other. Mr. Whiteside. — Mr. Scott is laughing at me for my conduct, in what I believe to be a very serious case. {To the witness .) — Have you seen him act as a juror ? — I have. Where ? — At Nenagh. Mr. Whiteside . — The jurors upon this occasion are summoned for both ridings, my lord. ( To the witness .) — What is his religion ? — Roman Catholic. Ho you know John Tuohy? — I do; I have known him summoned. What Is his religion ? — The same. Have you known him to act as juror?— I have. Ho you know George Thornhill ? — I do ; he is here. Have you seen him act as juror ? — I have. Ho you know J ohn Harcy ? — I have known him summoned frequently ; ' he is dead. Very well; then I will not trouble you about him. All these persons you have seen serve from your district ? — I have. Have you seen any of them attending here during this commission ? — • I have not. Are you a member of any club ? — No, I am not. The Lord Chief Justice , — You need not answer that question. Cross-examined hy the Attorney-General. You say you were once on a special commission? — Yes ; I was once summoned here. About six or eight years ago ? — Yes. How many special commissions have you been upon since ? — I believe not any. And you were not at the last special commission ? — I was not. You were generally summoned as a juror in Nenagh? — Yes. But you were left off the last two or three assizes ? — One or two, I cannot say which. Now you mentioned the name of Gregory Fitzpatrick; what is he? — He is a shopkeeper at Nenagh — a tanner. You saw him occasionally at the assizes at Nenagh ? — Yes, I heard his name called. At all the assizes held there ? — Yes, he was summoned regularly at the assizes. I know for the last two assizes, I heard his name called out., G SPECIAL COMMISSION, CO. TIPPERARY. 8 ^ You mean the last two you attended yourself? — Yes. What business is Mr. Hanley ? — He is a shopkeeper. In the town of Nenagh? — Yes. What particular kind of shop does he keep there ? — He is in the skin and feather trade. What is Mr. Flynn ? — He is a gentleman farmer. W’^here does he live ? — In Nenagh. In the town ? — Yes. YVhere is his farm situate ? — Just adjoining the town. Does he follow any other business besides that of farming? — No. Now, Mr. Tuohy, what is he ? — He is a miller. Where does he live ? — About six miles from Nenagh. And who is the other ? — A farmer ; he lives about three miles from town, and he has a set of 120 acres of land. Do you know whether those two are in the habit of attending as jurors at the quarter sessions ? — They are. J/r. Whiteside . — I suppose you have attended too ? — Yes. Grand jurors are they ? — No. The Attorney-General . — Petty jurors at quarter sessions? — Yes. Are they in the habit of attending the assistant-barrister’s court ? — > Yes. Mr. William May, sworn — examined hy Mr. Fitzgerald. Are you a juror of this county ? — I am. Where do you reside ? — At Wexford. Have you served upon juries in this county ? — I have. Did you serve at the last special session as a juror ? — No. Were you summoned as a juror then ? — No. Not at the last special session ? — No. I was at the sessions before. Within the last three years has your name been omitted ? — No, not at assizes. The Lord Chief Justice . — You have not been on the jury panel for the last three years? — I have never been omitted, my lord. I have been serving these thirty years. Air. Fitzgerald . — You mean thirty years serving on juries ? — Yes. Have you been summoned on this panel ? — No. YVhat is your religious persuasion ? — Roman Catholic. Do you know Edmund Murphy, of Ballymore House ? — I do. Have you seen him act as a juror ? — Not since the county was divided. He was a young man then, and I do not know whether I have met him upon any jury. I am in the other division of the county. Do you know Daniel Murphy, of Ballymore Cottage ? — I do. Have you seen him act as a juror ? — I do not recollect. It is a long time ago since the county was divided. Do you know Thomas Henessy, of Thurles ? — I do. Is he a juror of this county ? — Yes. Have you seen him serve upon juries ? — I have. What is his religion ? — Roman Catholic. Do you know Henry Whepney, of Thurles ? — I do. Have you seen him serve upon juries ? — I have known him to be summoned as a juror, but I have not seen him serving upon any jury. I have met him at Nenagh at the assizes, and I have heard from him that he was summoned. THE QUEEN z;. WILLIAM SMITH O’BRIEN. 83 The Solicitor- General . — That will not do then. The Lord Chief Justice . — Unless you have some way of con- necting the matters that you are now giving in evidence with the act of the Sheriff, for the purpose of imputing corruption to him, I cannot see of what value this evidence is. Mr. Whiteside. — Why, my lord, according to the decision of Baron Pennefather, if we prove the fact of the omission it is for the triers then to say, whether the panel was properly framed or not. In the recent trials in Dublin Baron Pennefather said, that the exclusion of any person from the panel on account of his reli- gion was a sufficient cause for setting aside the panel. He said that in my hearing, and in the presence of yours too, Mr. Attorney. There cannot be one law in Dublin, and another at Clonmel. The Lord Chief Justice. — Mr. Whiteside, you had better not niake these observations. If you address the Court we will hear you. Mr. Whiteside . — I only stated that because your lordship was good enough to ask me a question. We are now giving our evidence. Mr. Fitzgerald {to the witness ). — Can you tell me the religious persuasion of Mr. Whepney ? — He is a Roman Catholic, Bo you know John Ryan ? — I know one John Ryan, of Thurles; a shopkeeper there. Have you seen him serve upon juries 1 — No, I have not. I have seen him serve upon petit juries at the assizes. Bo you know Michael Manning 1 — I do. Have you seen him serve upon juries ? — No, I have not. He is in this division of the county, and in my time he was too young to serve. Bo you know Martin Quinlan ? — I do. Is he in your division of the county ? — He is ; I have seen him attend as a juror at Nenagh. Bo you know whether he served there ? — I do not know that. I have heard his name called upon the panel. The Attorney-General . — Where 1 — At Nenagh. Mr. Fitzgerald . — What is his religious persuasion ? — Roman Catholic. Bo you know Nicholas Burke? — I do. Have you seen him serve upon juries ? — I have never seen him serve. Have you heard his name called ? — I have. What is his religion % — Roman Catholic. Bo you know Thomas Cahir ? — I do. Have you heard his name called upon the panel ? — I have ; and I have seen him on juries with me. What is his religion ? — Roman Catholic. Bo you know Michael Hanly, of Cotty ? — I do. Have you seen him serve as a juror? — I have. What is his religious persuasion ? — Roman Catholic. Bo you know John Ryan, of Kirkbelly ? — I do. Have you heard his name called upon the jury panel? — I have no recollection now. Bo you know William Ryan, of Thurles ? — I do. G 2 84 SPECIAL COMMISSION, CO. TIPPERARY. Have you heard his name called upon the panel ? — I have known him to be on a jury with me. What is his religious persuasion ? — Roman Catholic. Do you know Dudley Byrne ? — I do. Have you heard his name called upon the panel ? — I have. What is his religious persuasion ? — Roman Catholic. Do you know Robert Manning, of Shanbally ^ — I do. Have you heard his name called upon the jury panel ? — I have. What is his religious persuasion ? — Roman Catholic. Permit me to ask whether you are a member of any club or any Con- federation ? — No, I am not. Cross-examined hy the Solicitor-General. You have mentioned the names of several persons whom you say you" have seen serve on juries, or heard called upon the jury panel. First, as to yourself, you say that you were not summoned on the last special commission jury ? — No. And that you have served upon juries in the North Riding, and in this riding for the last thirty years, before the county was divided % — Yes. Did you attend the quarter sessions as a grand juror ? — Yes. Have you ever served at the quarter sessions or not as a grand juror? — No. Now, Thomas Henessy, I did not hear you say whether you had ever seen him serve upon juries. Upon your oath did you ever see him upon any jury ? — I do not know that I could say that I have, but I have heard his name called upon the panel. I have been with him upon a jury. Where, at the sessions or assizes ? — At the assizes. This Mr. Whepney, and the other persons, are they persons usually summoned to attend the barrister’s court — Mr. Quinlan and Mr. Burke for example — do they generally attend the quarter sessions ? — I must dis- tinguish, some of them are summoned as grand and others as petit jurors. But either as grand or petit ? — If you couple them together I will give you the answer, that I have seen them there. Some as grand jurors and others only as petit jurors ? — Yes. Mr. Edward Murphy^ sworn — examined hy Mr. Whiteside. Are you a juror of this county ? — I am. Have you served as a juror at the assizes ? — I have. Have you served at special commissions ? — Yes. Plow long have you been on the panel ? — For the last twenty years. Have you been all that time serving as a juror ? — To the best of my recollection. What is your religious persuasion ? — Roman Catholic. Are you upon the panel for this commission?—-! am not. May I ask you as to a few names ? Do you know the neighbourhood of Cashel and Templemore ? — I do know Cashel, but not Templemore. Do you know Daniel Murphy, of Ballymore Cottage ? — I do. Have you seen him act as a juror of the county? — I have. What religion is he ? — Roman Catholic. Do you know another Daniel Murphy ? — I do. Have you seen him act as a juror ? — I have. THE QUEEN y. WILLIAM SMITH O’BPvIEN. 85 What is his religion ? — Roman Catholic. Do you know Edward Murphy, of Woodford ? — I am that person. Do you know J erome Scully ? — I do. Have you seen him act as a juror within the last five years ? — I have. What is his religion ? — Roman Catholic. Do you know a gentleman of the name of John Macks ? — I do. Is he a juror of this county ? — I do not know. Do you know William Mockler, of Cashel ? — I do, but I cannot say that I have seen him act as juror. Do you know Miles Burke ? — He is not in my neighbourhood. Do you know Mr. Desmond ? — He is not in my neighbourhood. Do you know Mr. Stritch ? — No. You have seen the three Murphys'? — Yes. Are you a member of any club ? — No; and never was in my life. Do you know two gentlemen, brothers, of the name of Nicholas and J ohn Doherty ? — I do. Are they jurors ? — Yes. Have you ever seen them act as such h — I have. What is their religion ? — They are both Roman Catholics. Do you know John Green ? — I do. Mr. Pedder . — He is on the panel. Cross-examined hy Mr. Scott. Do you know whether any Protestant jurors, who have been in the habit of serving as jurors, have been omitted from this panel 1 — From my neighbourhood there is not one. Will you say that none were ? — Not that I heard of. Now, are you only speaking of what you heard, or is it what you know ? Do you know whether all these, of whom you have spoken, have been returned or summoned for this panel? — No, I cannot say ; I was not asked that before. Mr. Edward Murphy, of Ballymore House, morn — examined hy Mr. Fitzgerald. Are you a juror of this county? — Yes. Have you been in the habit of serving upon juries for the last five years ? — I have. Were you summoned upon the last special commission? — I was. What is your religious persuasion ? — Roman Catholic. Have you been summoned upon this commission ? — No. Do you know William Murphy — I believe he is your brother ? — He is. Is he a magistrate of this county ? — Yes. I believe, if I am not misinstructed, he is on this jury panel ? — He is. He was called, and answered to his name. He is in attendance ? — Yes. Mr. Edward Lalor Camhie, sworn — examined hy Mr. Whiteside. Have you formerly acted as Sub-Sheriff of this county ?— I have. Have you heard the names of all those gentlemen who were men- tioned by the last three witnesses ? — I have. 86 SPECIAL COMMISSION, CO. TIPPERAKY. Do you know wkether they were jurors of this county? — I have heard the names of those persons called while I was sitting at the table. Do you know them ? — I do not know them. Do you know that they were jurors? — I have known a great many of them to be on juries. You have yourself put them upon the panel as fit and proper persons ? — I have. And they were fit and proper persons ? — Some of them were only put on at petit sessions; others of them as jurors at assizes; and others of them were only record j urors. Were the names you heard mentioned those of fit and qualified per- sons to serve as j urors ? — A great many of them were respectable men ; some rich, comfortable men, who had an interest in the county. Such as ought certainly to have been placed on a jury ? — Such as ought certainly from their position and property. Some of them were only quarter sessions jurors. You are the person who can give me the best information. Now, may I ask you, do you consider out of a panel of 288 names, that eighteen is a fair representation of the Roman Catholic jurors of this county? The Attorney- General. — I do not think that is a legal question. The number of Catholics is a mere assumption. Mr. Whiteside. — I have ascertained the fact. The Lord Chief Justice. — I do not think you can ask the question, what is the fair proportion of the numbers on any jury panel. Mr. Justice Moore. — That is matter of opinion, what is the fair proportion. Mr. Whiteside. — My lords, with great respect, your lordships have not observed our challenge. It is on this ground, which is stated in the challenge, that the jurors’ list before returned to this court, invariably observed a certain proportion. The Lord Chief Justice. — Just observe, the question you ask is, whether a certain number is a fair proportion. Mr. Whiteside. — I will put the question then in another form. {To the witness.) — Have you heard that there are 288 names upon the present panel ? — I heard that stated. You heard the Clerk of the Crown state that? — I think I did. I did not hear the panel read. The Clerk of the Crown swore there were 288. Now, in the course of your practice as Sheriff, during the time you served, out of a panel of 288 names, how many jurors of the Roman Catholic persuasion were ordinarily returned ? The Lord Chief Justice. — Now can you state that? — It is quite im- possible that I could answer that question. I made it a rule to return every man whom I thought ought to be returned, no matter whether he was Catholic or Protestant. Mr. Whiteside . — I do not want to tie you down to fifteen or twenty; THE QUEEN WILLIAM SMITH O’BRIEN. 87 but I am asking you, from your knowledge of a fact that you must be acquainted with, is fifteen or eighteen out of a panel of 288, an honest return of the Roman Catholic jurors of this county ? The Solicitor-General. — We object to that. Do not answer that question, Mr. Cambie. Mr. Whiteside. — State your objection, Mr. Solicitor. The Solicitor- General. — I conceive, my lords, that that is the same question put again, after an intimation from the Court that it ought not to be put. Mr. Whiteside The Court has not yet decided it, and will not decide it without argument. Our challenge here is exactly in conformity with what I heard from one of the Bench may be made out by proof, and that is, that the proportion of jurors on the panel is not a fair representation of the Homan Catholic jurors of the county. How am I to prove that ? By asking a plain direct question. I have produced an official person, who has acted as Sub- Sheriff for some years, who has made the re- turns for this county himself ; and he is the very person of all others who knows the exact fact we want to learn. He has re- turned the former panels, and we aver that the ground of chal- lenge is the difference between this and the former panels. I want to ask whether fifteen or eighteen out of 288 is unusual, or, as I before phrased it, an honest return of the Homan Catholic jurors of this county ? The Lord Chief Justice. — It is to me an utterly incomprehen- sible question. I have had some experience in this, and other criminal courts, and I never heard it laid down that a jury was to be selected in any proportions for its religion. On the contrary, it strikes me that an honest and conscientious Sheriff, well dis- charging his duty, would never investigate the religion of any man. Mr. Whiteside. — Your lordship states exactly what is the law, that no juror ought ever to be selected on the ground of his re- ligion. I can subscribe to every thing that your lordship has so truly said. The Lord Chief Justice. — I do not say that a fair proportion of the religion of jurors is not to be a subject-matter of inves- tigation. Mr. Whiteside. — My lord, my complaint is, that the very thing which your lordship censures has been done. And the question is, how can I prove it, except by showing what was the number of the juror's so returned on the former panel ? If I am not allowed to do that I admit at once that I can do nothing. The Solicitor- General. — That is not the question. You asked him his opinion, and not the fact. Mr. Justice Moore. — You were asking him a question as to his opinion founded on his past experience. Mr. Whiteside. — 1 will put it then as a matter of fact. 88 SPECIAL COMMISSION, CO. TIPPERARY. {To the witness.) — What is the smallest number of Roman Catholics which you have known to be returned upon the panels ? The Solicitor- General. — T object to tbat, because the best evidence of that would be the production of the former panels. On a former occasion, in another place, a similar attempt to this was made, and it turned out that the witness they put on the table, with the panel in his hand, did not know the religion of a single individual. Mr. Whiteside. — That is ground of cross-examination. The jurors’ book does not state the religion of the party. This wit- ness has been the Sub-Sheriff for the last six years. Witness. — No, not the last six years. Mr. Whiteside. — You said you acted as Sub-Sheriff? — Yes, for six years, but not for the last six years. The Solicitor- General. — That is not my objection. I am not at all speaking of the former jury panels returned by this re- spectable gentleman. I object to his giving secondary evidence of the contents of those panels, because the primary evidence can, and ought to be produced ; and when that panel is produced the witness could he asked, with the panel in his hand, whether the facts are so or not. Mr. Whiteside {to the witness). — Have you ever returned, Mr. Cambie, so small a number as twenty Roman Catholics jurors for this great county of Tipperary? The Lord Chief Justice. — Can you state that as a matter of fact ? The Solicitor- General. — That is the same question. Witness. — I cannot state that as a positive fact. Mr. Whiteside. — But, my lord, he can according to the best of his belief. Witness. — Mr. Kirwan has, I believe, prepared an analysis of these lists, and he wiU be able to tell you. If I saw the panel I should be able to state. Mr. Whiteside. — Give the witness the panel in this case. Witness. — Not in this case. I did not return this panel. Look over that panel. {The 'panel was handed to witness.) Mr. Whiteside Is the former panel of the South Riding here ? The Clerk of the Crown. — It is, I believe. Mr. Whiteside . — Hand it to the witness. ( The panel was handed to the witness.) Now the witness can sit down and look over that. I believe your lordship has it on your notes that there are not more than twenty Roman Catholics upon this present panel. Mr. Justice Moore . — Seventeen or eighteen, according to Kir- wan’s evidence. THE QUEEN v. WILLIAM SMITH O’BRIEN. 89 Mr. Scott. — We have had no proof of that yet. We have only had his belief. The Lord Chief Justice. — What do you do next, Mr. White- side? Mr. Whiteside. — I propose, my lord, to put the question in a general way. The Lord Chief Justice. — With respect to the question of whether this is a fair and proper proportion, that cannot he put. Mr. Whiteside That is matter for the triers, no doubt, my lord. I want to lay before them the whole case. Mr. Justice Moore. — The triers are to form their opinion upon facts, and not upon inferences. Mr, Whiteside. — W e have already proved an important fact for them. The Lord Chief Justice. — Who is your next witness ? Mr. Whiteside. — Till this gentleman has looked over this panel I cannot go on. It is impossible to establish a challenge of this sort, because we cannot get at the panel except by a process of this court. It certainly is a very important thing that a panel prepared by any person, however respectable, should be above all impeachment. The Lord Chief Justice. — Nobody has stated otherwise. We are most anxious, Mr. Whiteside, to hear the evidence to sustain the challenge. Mr. Whiteside. — I could not get a copy of the former panel until this day. There are several witnesses, my lords, I under- stand, outside the gate, who cannot get in, and I must request an order from your lordships to admit them. I am informed that they are not admitted without an order from the Sheriff. The High Sheriff. — I have given orders to admit every witness. Mr. Whiteside. — They are informed that they will not be admitted without an order from you. The High Sheriff. — 1 have given orders that the production of the summons should be sufficient to admit any person in all cases. Mr. John Lacy., sworn — examined hy Mr. Fitzgerald. Are you a juror of this county ? — Yes. You have served as a juror ? — I have. For how long a period have you usually attended as a juror ? — For the last twenty years. Have you been summoned upon this panel ? — No. What is your religious persuasion — A Roman Catholic. Are you acquainted with John Murphy, of Irishtown ? — I am. Have you ever either heard him called upon the panels of jurors or seen him serve on panels of jurors in this county? — I cannot say whether I have seen him serve, but I have seen him waiting among the jurors. The Lord Chief Justice — Do you know whether he was summoned ?— I do not, ray lord 90 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Fitzgerald . — Do you know Patrick Quinn, of Clonmel ? — I do. Have you heard him called, or seen him serve % — I have seen him serve. What is his religion ? — Roman Catholic. Do you know John Dunphy, of Main-street? — I do. Have you seen him serve upon juries? — I have. What is his religious persuasion ? — Roman Catholic. I believe Mr. Dunphy is a banker ? — He is a director of the National Bank. Do you know John Lacy, of Main-street? — That is myself. Do you know John Clancy? — I do. Have you seen him serve, or heard him called ? — I have seen him serve. What religion is he ? — Roman Catholic. Do you know William King? — I do. Have you heard his name called, or seen him serve? — I have seen him serve. What is his religion ? — Roman Catholic. Do you know Thomas Holmes, of Dublin-street ? — I do. Have you heard him called, or seen him serve upon juries? — I have heard his name called. What is his religion ? — Roman Catholic. Do you know Thomas Daniel Hearne, of Bagn ell-street ? — I do. I have heard his name called. What is his religious persuasion ? — Roman Catholic. Cross-examined hy the Attorney -General. You are, I believe, an alderman and town councillor of this town ? — I am. Many of those gentlemen whom you have named, Mr. Dunphy and others, are, I believe, town councillors ? — They are. A good many of these gentlemen residing in Clonmel are town coun- cillors — for instance, Mr. King and Mr. Hearne ? — Mr. King is not, nor Mr. Hearne either. Were you one of the gentlemen who applied to Mr. Howley, the revis- ing barrister, to be left off the jury, because you were aldermen and town councillors? — That was off the sessions’ jury. When did you make that application ? — At the last revision. I did not make the application. It was made on your behalf, and on behalf of the others, begging that you might not be summoned on the juries? — Yes. Before Mr. Howley? — Yes. What reason did you assign to Mr. Howley for wishing to be excused from serving as jurors? — On the ground that we were exemjffed from serving on juries by Act of Parliament. And did Mr. Howley agree with you ? — He did. And he directed the Sheriff not to summon you, as you were town councillors. Is that so ? — I don’t know what he told the Sheriff ; but the Sheriff summoned us afterwards to the sessions and to the assizes. Did you ever see those gentlemen whom you have named serve as jurors at the sessions? — I have seen them serve here at the assizes. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 91 Did you ever see Mr. Quin serve at the assizes ? — I have seen him serve. Where ? — At this court-house. When ? — I cannot recollect. How long ago — about how long ? — Within the last two or three years. Now^ you say you have seen Clancy serve as a juror. Where was that ? — At the assizes. When h — Four or five years ago. But not for the last four or five years ? — I cannot say that I have. I believe Mr. Hearne, also, has not served for the last four or five years 1 — I cannot now recollect. Have you heard the present panel called over ? — I have. There were 288, I believe h — I believe so. Do you know any of the gentlemen whose names were called over % — Not all of them; I know some of them. You know a good many of them 1 — Yes. They are, I believe, respectable men, and men of station and property 1 — A good many of them are. Re-examined hy Mr. Fitzgerald. Have you heard many names called here to-day that you have not ordi- narily heard called upon the panel % — I cannot say; I might have heard some who were strangers to me and new; I cannot, however, give any positive evidence as to that. Mr. Edward Lalor Camhie, recalled — examined hy Mr. Whiteside. What is that document you have in your hand ? — This is a document from which I have made an analysis. It is a jury panel. What panel is it ? — It is the panel of the special commission of 24th of January, 1848. With respect to the last commission, then, tell the Court what is the number of persons upon that panel, and how many of that number are persons professing the Roman Catholic religion 1 — There are here, my lords, 331 jurors. Now, have you looked over that list, and are you able to say how many Roman Catholics there are amongst them 1 Was that list returned by the present High Sheriff? — No; I believe by Lord Suirdale. Well, what are the numbers? — There are thirty-four that I am certain of, who are Roman Catholics; and there is one gentleman, out of the 199 upon the panel, as to whose religion I am doubtful. Are those names, or any of them that you have counted, upon the present panel ? — I have not had time to ascertain that fact. There is one man here, Nicholas Doherty, whom I believe is not on the present panel. I have not been able to look over the other panel, to ascertain whether those persons are upon the panel. It would take a long time to enable me to do so accurately. Mr. David Clancy, sworn — examined hy Mr. Fitzgerald. Are you a juror of this county ? — I am. Have you usually served upon juries in this county ? — I have served upon juries for the last twelve years. Were you summoned as a juror at the last special commission ? — I was. 92 SPECIAL COMMISSION, CO. TIPPERARY. Have you been summoned as a juror upon this commission? — No. What is your religion ? — Roman Catholic. Cross-examined hy the Attorney-General. You say you were summoned at the last special commission ; did you attend ? — I was fined for non-attendance ; but I did attend, and answered to my name. But still you were fined for non-attendance? — Yes. And I believe you wanted to get rid of the fine, because you were a town councillor ? — I made that a ground. What sum were you fined ? — I believe it was £2 1 8s. 6c?. Do you live in the town of Clonmel ? — I do. And are you a town councillor and a member of the corporation ? — I am. The Lord Chief Justice. — Is there any evidence of any cor- rupt or improper motive ? Mr. Whiteside. — We have just proved the fact of the last panel. When that is done, we do not mean to trespass further on the Court. The Lord Chief Justice. — It is a very serious charge, and ought not to he lightly made. Mr. Whiteside. — The charge is one of p^rtiahty. The Lord Chief Justice. — I know it is ; and therefore it is one which ought not to be lightly made. Mr. Whiteside. — On looking over the panel, and finding the proportion of Catholics to Protestants to be as I have stated, I thought it my duty to do as I have done. On the instructions laid before me, I would do so again if the same circumstances were to occur ; 1 would do what I thought right for my chent. Mr. PatricTc Kirwan, recalled — examined hy Mr. Whiteside. Have you now examined the two panels that were handed to you ? — I have examined the panel of the South Riding for 1846. For one division? — For this division. State the result of your examination of that panel — Upon that panel there were 192 names; and out of that number there were fifty-one Roman Catholics. That is the panel for this division of the county? — Yes. Now, have you examined any other panel? — I have also examined the panel of the 10th of March, 1846 ; and I find that there were upon that 194 names, and of that number there were forty-seven Roman Catholics. The Lord Chief Justice. — What panel is that ?^ — It is the panel of the 10th of March, 1846, my lord. There are upon it 194 persons, of whom forty-seven are Roman Catholics. It is probable that I may have missed one or two ; I was in a very awkward and crowded position when I made the examination. Mr. Whiteside. — What is the number of Catholics upon the present panel ? — I think about seventeen or eighteen. THE QUEEN z;. WILLIxiM SMITH O'BRIEN. 93 Cross-examined hy the Solicitor-General. When you speak of the number of gentlemen who were upon the former panels of 1846^ do you speak of your actual knowledge of the religious persuasion of the parties'? — I am perfectly positive; I think I can say I know almost every one of them individually. Ho you know whether any of those gentlemen are here to-day ? — There is one on the panel I believe; another, John Green, has left the country ; and a third is, I believe, dead. Ho you know whether there are any more who have died since 1 — I don’t think there are any more ; there is one dead, there may be two. Mr. Whiteside. — That is our case, my lords. The Attorney-General. — My lords, I submit that there is no evidence to go to the triers. The issue is, whether this panel was corruptly prepared by the Sheriff. That is the expression on which issue has been taken and joined. Mr. Whiteside. — That is not the issue. The Attorney- General. — There is a prefatory allegation as to the number of Catholics and Protestants on the panel ; that is introductory, otherwise the challenge would have been demurred to. The challenge then goes on, after a long preface, stating the proportions that were on the former panels, and that there is not a proper proportion observed between the religious persuasions of the different parties. Then, my lords, our answer to that is, that the said panel was well, equally, and impartially arrayed by the said Sheriff or his officers according to the duties of his office. We have not gone into any allegation or statement whatever with respect to the religion of the jurors, of whom we really know nothing whatever. There is an allegation as to certain propor- tions in the present and former panels, but a mere allegation of the proportions would be nothing more than waste paper, if it did not go further, and allege that the panel was corruptly and improperly arrayed to the prejudice of the prisoner hy the Sheriff or his officers. We controvert that : we say, that it was well, equally, and impartially arrayed. Mr. Justice Moore. — And that is what is controverted in the replication. The Attorney- General. — There is no demurrer or plea upon our part that we have omitted these proportions : we know nothing about them, therefore we neither admit them nor traverse them. If the challenge had been confined to that alone, and merely stated that a certain proportion was not observed, we should have demurred to the challenge, upon the ground of its not being a sufficient allegation ; but because corruption was attributed to a public officer, we have denied the existence of that corruption, and we say, therefore, that the Sheriff has discharged his duty honestly and faithfully. For the present, my lords, there is no evidence of corruption or misconduct, of favour or partiality on the part of the Sheriff. That being so, I apprehend that we are not called 94 SPECIAL COMMISSION, CO. TIPPERARY. upon to go into evidence to contradict the allegation. If there was evidence of course we should be compelled to meet it. Ml'. Whiteside. — I submit, my lords, that there is evidence to go to the jury, to sustain our averment. Our case is, that the panel is not a fair and impartial one. The word corruptly has been used, but not by me. I do not wish to use that term to any gentleman bearing the honoured name of the High Sheriff. We say, looking to other panels that have been returned, that this is not a fair and impartial panel. For one division we have a panel of 192 names, with fifty-one Roman Catholics upon it; and in another division we have a panel with 194 names, and forty-seven Roman Catholics upon it. The Lord Chief Justice. — I must say that a question might be left to the triers upon the facts as proved. The Attorney- General. — Then, my lords, we will caU the High Sheriff. Mr. Prittie {one of the triers). — I should like to ask a question of the last witness (Mr. Kirwan). Mr. Patrick Kirwan^ recalled. Mr. Prittie {to the witness). — Do you know whether it is the usual practice in this county for the High Sheriff to make any difference in the panels for the special commissions, and those which are framed for the sittings at the general county gaol deliveries ? — I have always thought that special commissions of any kind had less Catholics left on them than any others. That was my impression, but not having made any calcula- tion I cannot say exactly whether that was so or not. The Hon. Richard Pennefather, sworn — examined hy the Attorney-General. You are the Sheriff of this county 1 — I am. Did you return this panel to this commission ? — I did. Was that panel framed by you, or by your Sub-Sheriff ? — By my Sub- Sheriff. Did you take any part in the formation of that panel ? — I cannot say that I did. I wrote a letter to the Sub-Sheriff Mr. Whiteside. — Don’t tell us what you wrote. The Attorney-General. — Before you returned this panel, did you look over it ? — I did. When did you get the panel from the Sub-Sheriff? — I cannot exactly state the day ; but it was some time ago. I cannot at this moment recall the day I saw it. Did you make any alteration in the panel you received from the Sub- Sheriff? — I struck off about twenty-five names from the panel, because I believed them to be persons who were in such circumstances, that it would be unfair to bring them up from distant parts of the county to Clonmel. Did you strike off any man on account of his religious persuasion, or did you leave any on on that account? — Not one. Or were you at all anxious, or influenced by any desire, to return a jury unfavourable to the prisoner? — Certainly not. THE QUEEN t-. WILLIAM SMITH O’BRIEN. 95 And the panel you returned was done fairly and honestly in the dis- charge of your duty ? — I returned it to the best of my ability. In returning this panel had you any communication, or any consultation, with any one on the part of the Crown, either directly or indirectly? — Neither directly nor indirectly had I any communication with any person connected with the Crown, concerning the panel. And this panel was returned, according to the best of your judgment, as a fit and proper panel ? — It was. Cross-examined hy Mr. Whiteside. You did not prepare this panel yourself? — I did not. Who did ?— The Sub-Sheriff. It was his doing ? — I consider that I am responsible for it. In point of fact, it was drawn up by the Sub-Sheriff? — He submitted to me a rough copy of the panel. He drew it out and brought it to you ? — Yes. Had you the jurors’ book before you when he brought that rough copy ? — I believe I had. What was the date of that ? — I cannot recall the date at this moment. I think it was as soon as possible after the precept was issued. Did you give him any directions upon the subject, how he was to pre- pare the panel ? — I did. I wrote to him. Do not tell us what you wrote. Does the Sub-Sherifif know this county well ? — I suppose he does. Does he know the opinions and position in life of all the jurors in this county, or the principal number of them ? — I should think he ought. How many jurors are upon the jurors’ book of the county ? — I cannot say. How many Roman Catholic jurors are on the book? — I cannot say. You have no notion at all? — Not the slightest. It is not an agreeable book to read. You have not the slightest notion at all ? — Not the slightest notion ; I never counted them. The Sub-SherifiT, I suppose, keeps the book ? — He keeps the book. And he manages all the details ? — Yes. But he showed you the panel before you returned it ? — He brought a rough copy of the panel to me as soon as he had drawn it up. Do you know whether any one assisted him in that ? — Not that I know of; probably his clerk did. What was his name ? — I really do not know. Is he in the county now ? — I really do not know. Did the person who drew up this panel go to Dublin lately ? — I really cannot say. You cannot say whether he lately left to go to Dublin? — Indeed I cannot. Did any of the Sheri jGTs clerks leave the office lately? — Not that I know of. So much for the Sheriff’s office. Who is the Sub-Sheriff? — Mr. Going. Then it was Mr. Going and his clerk who arranged the panel ? — I never said that, Mr. Whiteside. I said that Mr. Going brought me a rough copy of the panel, which I suppose was drawn out by his clerk. Is he alive ? — Yes. 96 SPECIAL COMMISSION, CO. TIPPERARY. When did you last see the clerk of Mr. Going ? — I have seen a young man at the Sub-Sheriflf’s office whom I believe to be his clerk. Who was engaged in the preparation of the panel 1 — I have no means of knowing that. Do you know, in point of fact, whether there are only eighteen Roman Catholics upon this panel 1 — I did not know it till I heard it in evidence in court. Then you were quite surprised to hear that ? — I was. Now do you believe that that is a just proportion ? The Lord Chief Justice, — Mr. Whiteside, that question is a wrong One. Mr. Whiteside . — Do you know the county well ? — I do, pretty well. Can you tell me how many hundred Roman Catholics of substance and respectability there are in the county, who are proper persons to serve on juries 1 — I really could not. Do you know the names of these persons, Mr. Murphy, Mr. Macks, and Mr. O’Doherty ? Do you know them by character ? — I know them by character. I have summoned one, Mr. Murphy. Are they men of substance ? — I would rather not answer that question. Although you summoned one of them ? — You have named three or four persons. You heard all the jurors’ names called here to-day — the Roman Catho- lic jurors’ names that have been on the list twelve or fifteen years ? — I heard some names ; I cannot say that I heard all the names. Do you know whether the gentlemen I have mentioned are men of substance, and fit to be upon the panel ? — I have heard you say that they were upon the j urors’ book. I know very little more about them. Do not misunderstand me; I did not say that. — I can give you no other answer. Samuel Going, Esq. — examined hy the Solicitor-General. Are you the Sub-Sheriff of this county ? — I am. After the receipt of the precept for holding this special commission did you, as Sub-Sherifif, take measures to make out the panel of the jury 1 — I did. Did you prepare any draft and submit it to your High Sheriff? Yes. Was that submitted by you to Mr. Pennefather ? — Yes, by me per- sonally. Do you recollect his having made some alterations with respect to some of the names returned upon that panel by you ? — Yes ; he struck off several persons of a lower class. Did you frame the draft of that panel which you submitted to the High Sheriff from the names on the face of the jurors’ book ? — Yes, I did. There is not a name which appears upon that panel which is not also on the jurors’ book. In framing that panel for the special commission, did you place the names on that panel according to their rank and property, and as you conceived to be a fair and impartial panel, for the purposes of this com- mission ? — I did not leave a single person off that panel whom I thought a fair and respectable juror. THE QUEEN v. WILLIAM SMITH O’BKIEN. 97 Did you, in the formation of that panel, or in preparing the draft for your High Sheriff, have any communication, or did you receive any suggestion, directly or indirectly, from any one whom you conceived to be concerned for the Government ? — None whatever. Or on the part of the Crown ? — Never. Did you prepare that draft from the jurors’ book, according to the best of your own skill and judgment, without any suggestion from any person ? — I did. And as corrected by your High Sheriff the panel was framed ? — It was. And the panel was then engrossed from that draft ? — It was. Cross-examined hy Mr. Whiteside. Now, you have been asked about that draft — where is that draft ?— 1 have not got the original draft with me. Were you served with a subpoena duces tecum to produce the document from which you prepared the present panel? — Not when I left home, yesterday. Were you served with a subpoena duces tecum to produce the document 1 — I was, but it was at such a time that it was morally impossible to obey it. I was on my way here. And you could not send for it ? — I got the subpoena this morning about seven o’clock, when at a distance of about six miles from my own house. Did you not know that the jury panel would be disputed at this com- mission ? — I thought it likely. And you left the draft panel at home ? — I did; no one could get at that panel but myself. In whose handwriting is that panel ? — It is principally in the hand- writing of my clerk. What is his name ? — Charles Morris. Have you any other clerk in your office ? — Mr. Alcock, but he did not write the names in this panel. When did you begin to write the names in this panel 1 — Immediately after I received the precept. Just tell me the day? — I cannot say the day. How long was it before you handed it to your High Sheriff? — I should think about three weeks. Where did you begin to prepare it ? — At my own office. Are you a professional gentleman ? — Yes. Are you an attorney? — Yes. Where do you reside ? — At Littleton. Where is that ? — About seventeen or eighteen miles from here. Were you alone when you made out the panel? — I cannot say. Try and remember. — I cannot say exactly. I was not in company with my clerk. Was there anybody with you at the time you were preparing the panel ? — I cannot recollect. Will you swear that no person was present with you at the time ? — If there was any person there, it was Mr. Gerson, who lives with me ; but he took no part in the formation of the panel. Who is Mr. Gerson ? — He is a cousin of mine. Where is he now ? — I believe he is at present at Balbriggan. Now, on your oath, sir, did he not assist you in framing this panel? — H 98 SPECIAL COMMISSION, CO. TIPPERARY. He might probably have checked off some of the names as I called them over. Was I wrong, then, in saying that this person, who is now at Balbrig- gan, assisted you in the preparation of this panel ? — So far as that can be called assistance, he might have done. Has he any official capacity under the High Sheriff? — No. Is he a complete stranger to the Sheriff’s office ? — Yes. Hoes he ordinarily live with you ? — He has lived with me for five or six years. Was it health brought him to Balbriggan? — Yes. On what day did he set out for Balbriggan ? — Last week. Now, you know this county thoroughly? — I do. How many Roman Catholics are on the jurors’ book ? — I cannot tell you. How many hundreds ? — I cannot tell you. Can you swear that you cannot form a judgment on it ? — Not a notion. Are there five hundred ? — I cannot say. I know there are a great many men on that book who could not write their names ; and there are many names on this panel now before us which I cannot say whether they are Catholics or Protestants. How many names are there on the jurors’ book altogether? — I cannot say. Hid you never have the curiosity to tot up the gross number of them ? ■ — Never. Can you give the Court the least idea whether it was five hundred, or five thousand, or two thousand five hundred ? — I am sure there are two thousand names, without looking in this book, but I never counted them. Had you any other panel before you at the time that you prepared this ? — I think I had the panel of the last special commission. Had you any other document before you ? — No ; I may have had, per- haps, the last book for the assizes. Had you any talk at that time with Mr. Gerson about the opinions of the jurors? — Not that I recollect. Will you swear, on your oath, that you had not ? — I will not swear that I had or had not. While you were making out that list, as an honest man, had you not a conversation with Mr. Gerson about the political opinions of the jurors ? — I am very sure that I had not, because I know the country better than he does. Ho you mean that you had not ? — I do not recollect that I had. Now,had you the curiosity to reckon, out of the two hundred and eighty eight names, how many Roman Catholics are on that panel ? — I attempted to do it, but I have not succeeded, inasmuch as there are thirty or forty names on that panel which I cannot swear whether they are Ptoman Catholics or Protestants. All the rest you know? — Y^es, I think I do; but there are several names on it which I do not know. Hid you ever prepare a panel before for this county ? — Yes. Can you tell me how many Roman Catholics you left upon the panel then; have you not left eighty or one hundred? — I should think not. You have not that to charge your conscience with ? — There were never more than two hundred on any panel; and it would be morally impos- sible to get one hundred Roman Catholics in one riding. In the county Tipperary? — In one riding; that is, such persons, as ought to be put on the panel. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 99 Not one hundred Roman Catholics such as you conceive ought to be upon the panel ? — There are several Roman Catholics who have been left off at their ow*n special request. Mr. Macks was one of them. Can you name any one else ? — Mr. Thomas Henessy, of Thurles. On your oath, to cut the whole business short, did you not purposely and designedly omit from that panel jurors whom you knew had served before, and at assizes, because they were Roman Catholics ? — I did not leave them off because they were Roman Catholics. But did you leave them off? — Yes. If I put on every man who had served before on the panel, it would have amounted to six or seven hun- dred names, probably. Was it you who returned that former panel for 1846, with 194 names for one division, and 47 Catholics; and the other with 172 names for the other division, with 57 Catholics ? Hid you hear that sworn ? — I do not recollect hearing it sworn, but I suppose it was sworn. Have you made any difference between this panel and the others 1 — Yes; I always make a great difference in panels, for this reason; at assizes I summon for this town one riding, or one-half the county ; and at special commissions I summon the whole county. Therefore, that enables me to leave off a great number at special commissions that I feel absolutely necessary to have for the assizes. But you were going to say you had made a difference between this panel and other panels ? — I mean other assize panels. Now, on your oath, does not that difference consist in this, that you left off a number of Roman Catholics who served at former assizes ? — On my oath, I did not leave any person off this panel because they were Roman Catholics. But you have left off names? — Yes, a great number. That have served before? — Yes. And Roman Catholics ? — Roman Catholics and Protestants. Roman Catholics, I am confining myself to. — There are some. Ho you say, Mr. Going — and this is the last question I ask you — for this large county of Tipperary, that twenty jurors out of 288 is an honest jury panel, so far as the Roman Catholic jurors are concerned? Lord Chief Justice Doherty. — We have already overruled that question. It has been decided by the Court that you can- not ask that question. Mr. Whiteside. — Hid you leave off Mr. Lenihan? — Yes; 1 have often ^eft him off before. Hid you know he was a Roman Catholic? — Yes, I did. And a man of substance ? — I do not know any thin§ about his sub- stance; he has been a juror before. And you struck him off? — No, I did not strike him off, because I never put him on. Has that gentleman been struck off ? — He never was on this panel. Now, has that gentleman served as a record juror of this county ? — He has at times, not latterly. Before the county was divided ? — I do not know ; I was not in the office then. You did not strike his name off? — No. Hid you not do that designedly? — No. H 2 100 SPECIAL COMMISSION, CO. TIPPERARY. But you knew what he was when you came to him ? — I did not come to his name at all, because he was not on the panel. You said, Mr. Sub-SherifF, that this gentleman was only bn the record panel. Plave you not put a number of gentlemen on the record panel who are on this panel ? — A great number, almost all I believe. I did not say that Mr. Lenihan was on the record panel. - But has he not served as a record juror ? — He has not latterly. And you struck Mr. Lenihan off ? — I did not. Now, are there in the whole county of Tipperary twenty persons, Roman Catholic jurors, or are there forty ? — Indeed there are, and a great many more. Are there 400 ? — I cannot say. Hid you know how you arranged them on this panel ? Tell me who is the first person of the eighteen ; whereabouts the first is upon your oath ? — The first Roman Catholic 1 Yes. — I cannot say. Ho you swear you do not know? — No. Now, did you not put them low down ? — Very high up. Show me one before No. 26. Is there one before No. 26? — If you will allow me time, I will see. I must inform you that there are three jurors of very high respectability on this panel who sent apologies. Hid you take the apologies? — We called them in court. Hid you put them on ? — I received the apologies. Hid you put them on this panel ? There are two names out of the first fifty you have put on. Just take No. 50. The Solicitor- General . — The first question was as to No. 26. Let him answer one question at a time. Mr. Whiteside. — No. 50 answers both, you know. It will save him the trouble of going through them. The Lord Chief Justice . — Ho you know what question you are pre- paring to answer ? — To ascertain whether there is a Roman Catholic gentleman in the first twenty-six names, my lord. The twenty-seventh name on the panel is the first. Mr. Whiteside — Hid you put that there designedly? — No. Now, is there another name between that and No. 50 ? — There is one within three of that. Now, I am quite content; there are two out of fifty? — That is only thirty. No. 34 is a Roman Catholic, Mr. Butler; that is three out of thirty-four ; and the forty-second is a Roman Catholic gentleman, Mr. Gamble. Now, tell me -what number you place between each, twelve or twenty ? — There are two between two gentlemen here. One out of every forty — is that the way you have arranged it? — No. Or one out of every twenty ? — Francis O’Brien is at twenty-seven ; there is then Mr. Phillips ; and the next name is Mr. Thomas Scully, a Roman Catholic. Is the twenty-seventh the first? — The twenty-seventh is the first. How many make a jury ? — Twelve. You saw the gentlemen who were sworn here to day, the Roman Catholic gentlemen, who appeared here on the table? — Not all ; I have seen some of them. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 101 Did you know them as jurors ? — Some of them; some of the witnesses named several persons as being qualified to serve who were struck oflf the jurors’ book as being disqualified. I cannot put them on again if that were so. Tell me how many there were ? — The two Mr. Marrows. Can you tell me any more 1 — If I had time, I would refer to the book. Can you tell me, in this division of the county, how many Roman Catholic jurors there are ? — No, I cannot ; but I can tell you this, that I did not leave off, nor had I instructions to leave oflP, any respectable Roman Catholic gentlemen. I think I know as much of the respec- tability of the gentlemen as any man. The Solicitor- General . — We have closed, my lord. Mr. Fitzgerald . — I shall now, gentlemen, address to you a few observations on the fact, whether this jury has been partially and unindifferently arranged between the Crown and the pri- soner. That, gentlemen, I think you see on the evidence, forms no question whatever, as the Crown attempted to put it to you, of the corruption or incorruption of the Sheriff. The Lord Chief Justice . — I think partiality is corruption. Mr. Fitzgerald . — I speak now, my lord, merely of the per- sonal question which my learned friend, the Attorney-General, attempted to put to the triers. On the evidence, as to that fact, there can he now no question. It appears to me, however, that a question still remains for the triers, although corruption, as applied to the High Sheriff in any invidious sense, is now out of the case ; for it now turns out, from the evidence of that most respectable gentleman himself, that he left the arranging of the panel to his Sub-Sheriff. No doubt, in point of law, he will be liable for the conduct of the Sub- Sheriff, or anybody who arranged those names or made out that panel. No doubt, in point of law, he will be liable for any partiality on the part of his officer. But what I am here respectfully submitting is, that personally as to that gentleman himself, there was no imputa- tion originally made, and there is no imputation necessarily implied in the issue which is now tendered to you. In point of law, he may be, and is, answerable for the conduct of his officer; and under the correction of the Court, I do submit ta you, that if you shall be satisfied that this panel was unindiffer- ently arrayed by any person, whoever that person may have been, we succeed on the issue of partiality in the Sheriff', but without the slightest imputation on that most respectable gentleman’s conduct. Now, gentlemen, it is a notorious fact, and one which, if it were not notorious to yourselves, appears on the evidence, that the jurors of your county consist of persons of two classes or persuasions. Catholics and Protes- tants. Now, suppose there had appeared on this panel a larger proportion of Catholics than Protestants, the fact unquestion- ably being, as we have proved it, that the proportions on the 102 SPECIAL C0MMISSI02^, CO. TIPPERAKY. previous panels of Protestants and Catholics is larger, could any man have questioned that that panel was unindilferently arrayed? How then could we have proved that fact, if it were to be - proved before you, but by the species of evidence which we have submitted to you? Would there be any possible means by which that fact could he proved, if that fact were in issue before you ? Could you doubt, if the fact were so, that there had been partiality and unindifferency in arranging this panel? Gentlemen, are you to try the question differently, because a question the same in kind is now before you, although the proportions are different ? Now what is the evidence before you. I speak to you as rational men without going into the minutias of the circum- stances? Are you satisfied on your consciences that eighteen men of the Roman Catholic persuasion, supposing this panel was unin differently arranged, would fairly represent the proportion of Roman Catholics that ought to be upon this panel ? If you are not satisfied of that, then on the question of whether it happened by accident or by design, I call upon you to say that the panel has not been impartially arrayed. Could it happen by accident ? You have had the panel of 1846, of the South Riding, before you, that had 194 names upon it, and it was proved that upwards of 50 of those were Roman Catholics ; you had another panel before you which had 192 names upon it, of which 51 were Roman Catho- lics. Can you upon these facts say that this happened by acci- dent? Remember the difficulties we were under. I do not know whether you were present in court at the earlier proceed- ings in this case to-day ; if you were, you must have observed from what then took place, that it was not in our power to have this panel till after the prisoner had been arraigned and had pleaded. Have we under these circumstances done as much, as it could be reasonably expected that we could do, to sustain the averment in our challenge? I hope that you remember, that this question is one between two classes, undoubtedly existing in your county, from which the juries of your county have to be formed. If you are satisfied that there is an undue proportion of one class above the other, with respect to the number of qualified jurors, or the number of persons usually upon the panel, I do respectfully sub- mit that you ought to find for us. The Lord Chief Justice . — Gentlemen triers, the question upon which the Crown and the prisoner are at issue is this, wRether the array of this panel w^as well, equally, and impartially made and arrayed from the jurors’ book, for the current year, by the said Sheriff, and his officers, according to the duties of his office, and the prisoner alleges that it was not well and impar- tially made, according to the duty of the Sheriff and his officers. The Jury Act which regulates the construction and formation of juries, and prescribes the duties of the public officers, in relation to their constitution and formation, contains these words : — THE QUEEN tr. WILLIAM SMITH O’BRIEN. 103 “ That nothing therein contained shall be construed to prevent any Sheriff, or other officer, in making returns to any writ of revise or precept, or exercising his discretion in the franiing of panels annexed to such returns in such manner as he is now by law directed to do, save only so far as to prevent in the insertion on such panel any names not contained in the jurors’ book.” It is not said that there is a name on this panel not on the jurors’ book, nor can it be denied that the Sheriff is invested as a public responsible officer, with the duty and with the discretion of returning a panel consisting of such names, and in such order, as he conscientiously behoves will further and advance the pur- poses of justice. The precept to the Sheriff directs him to return upon the panel persons qualified according to the law — so that with him rests the determining of the question who are to be returned, and what is to be, in his judgment, a fair test of the order in which they are to he returned, taking care, however, not to return any name not in the jurors’ book. N^ow, if the Sheriff has not well and impartially returned this panel, I tell you the charge is corruption ; and although there has been an attempt made to say that the High Sheriff is exempted from all blame in the transaction, and therefore you are not to impute corruption to him, still I am hound to tell you, from the evidence, that the panel is not only the official act, but the very act, of the Sheriff himself. Mr. Going, the Sub-Sheriff, says he prepared a rough draft of the panel and brought it to the Sheriff; the Sheriff inspected it, altered it, adopted it — it is therefore specifically and distinctly the act of the Sheriff, and he has told, and nobody can doubt the truth of it, that in framing that panel, and in the adoption of it from his own officer, prepared as it was in the usual course of business, he was not actuated by any improper motive — that he left no man off on account of his religion, and he put no man on the list upon that account. But if you are to go back and inquire whether there was any corruption in the Sub-Sheriff, he has been cross-examined at great length ; I have heard his evidence, and for my part, I am not able to put my finger upon a single part or tittle of that evidence from which I should think any body of men, whether two or twelve, would be justified in inferring corruption. And let it be recollected, a charge of this kind brought against a man in the discharge of a public duty, in the exercise of that discretion with which the law invests him, is not to be lightly made, nor can it be sustained except by clear, explicit, and satisfactory evidence. What does that gentleman tell you, on his evidence, as to the formation of this panel? He tells you that this panel is taken from the whole county, from the jurors of both divisions. To blend both panels together would extend it to a most unreasonable length ; would produce the greatest public inconvenience, and advance no pur- pose of public justice. When there is to be one panel for the 104 SPECIAL COMMISSION, CO. TIPPEPvARY. county not of exceeding length — when there is to be one gene- ral panel for the whole county, not to exceed in length the ordinary panels, or to contain a greater number than justice requires, it necessarily and unavoidably happens that a fewer number is selected from each division, and a panel containing only the ordinary number summoned from both is that returned ; and of necessity a vast number, who usually attend from one riding and from the other, must be omitted from the panel of a special commission, when on the panel upon ordinary occasions their names would be found inserted. When the charge is made that a proportion of a certain religion is greater upon this occa- sion than upon others, it is a remarkable fact, that in the panel of the special commission of 1848, January last, there were 334 names, a number considerably exceeding that of the present number, returned, and the number of Catholics upon that was, I think, about thirty-four; accordingly if you are to look to that, and in my judgment you ought to look to no such thing, there is really and truly, with respect to proportions, no substantial difference between the panel of the present and the panel of the former special commission. You have been told by the Sub-Sheriff that he was assisted by a clerk, and by a gentleman, who is absent, to this extent, that the names in the jurors’ book and the list made was checked. The mere mechanical operation of checking the names was performed by this person. The formation of the panel itself is the act of Mr. Going; and Mr. Going, unless he has perjured himself, without any imaginary motive, states to you that that panel was prepared, as in the usual way on such occasions, fairly and impartially. Now, what is the evidence on which you are called on to disbelieve Mr. Going and Mr. Pennefather? I must here say that as to a vast deal of the evidence that we have heard here to-day, we were influenced in its reception by an under- taking, at least so understood, that evidence of that kind would be produced. Mr. Whiteside . — My lord, I must correct your lordship. I said, my lord, with great respect, that I would give the evidence, and then it would be for the triers to draw their own conclusions from it. The Lord Chief Justice . — I tell you, Mr. Whiteside, I dis- tinctly understood that you would connect the formation of the panel in some way or other with the Sheriff. Mr. Whiteside . — Certainly as his act, my lord. The Lord Chief Justice . — I now distinctly recollect that you imputed to the Sheriff the formation of that panel, to serve the purposes of the Attorney-General, and that you would prove that, in order to exempt him from the necessity of using his pri- vilege in setting jurors aside. I heard that charge most dis- tinctly made ; it was a charge that I heard with deep pain, although it was my duty to listen to it, and 1 waited expecting THE QUEEN i;. WILLIAM SMITH O’BRIEN. 105 some evidence to justify counsel in making it. There is not the slightest ground for saying that the Crown or the Attorney- General were in communication with the Sheriff, or the Sub- Sheriff ; and that imputation on the conduct of the Sheriff is totally destitute of a colour of proof. But then it is said, assuming that there is a smaller proportion of Roman Catholics on this panel, than there has been usually on other panels, that you are to assume from that that there has been corrup- tion on the part of the Sheriff. JN^ow, review all the evi- dence which has been given to us — review the evidence of the ■witnesses who have been examined — who have spoken of their own omission from this panel, and the omission of others, and I venture to assert, that you will not be able to strike an account, which you are bound to do if you attend to this evidence, or to assure yourselves that any man has been left off on account of his religion. Many of these persons were left off at their own instance. Some were left off as town councillors, others were jurors at sessions. This general evidence is submitted to you for the purpose of justifying a specific imputation, that this panel contains a smaller proportion of Roman Catholics than panels for special commissions usually contain. The question you have to try is, whether the Sheriff, in the particular instance before us, has abided by what was usual and customary, or whether this panel in particular instances corruptly deviates from that ? It is your pro-vince to fix your finger and direct your attention to what that deviation consists in, and what is the nature and extent of it. But having now adverted to the evi- dence, which is to me any thing but satisfactory ; indeed, I should say, to my mind it conveys not the slightest impression justifying the charges brought forward to sustain the allegation of corrup- tion. I protest against the doctrine, that, because a man says he is of this or that particular rehgion, his religion is to be made the test by which you are to try the official propriety of any public officer. I protest against it. I heard the evidence with regret, as I have said ; and I did so, because I confided in the assurance that the Attorney-General would be connected with the formation of that panel, and that to him would be brought home the charge of having directed the panel to be framed as it has been. Gentlemen, I have now stated the case to you, and I will, if you think necessary, read the evidence that has been given. I tell you again, that the charge is corruption ; and whether that corruption is visited on the Sheriff, who adopted the panel, or on the Sub-Sheriff, who originally prepared it and submitted it to the High Sheriff, corruption is the essence of this charge, and is not to be found unless you conscientiously believe that the evidence clearly and incontestably establishes it. The Hon. Francis Prittie {one of the triers ). — We do not require the evidence to be read, my lord. 106 SPECIAL COMMISSION, CO. TIPPERAPY. Mr. Whiteside . — I did not, according to my recollection, make any statement of bringing home corruption to my friend, the Attorney- General. What I meant to have said was, that so far from that, with a view of saving the Attorney-General, or putting him to the necessity of doing any one act that might be disa- greeable to his own feelings, men were left off that panel who ought to have been on it. I did not say, or mean to say, that the Attorney-General had any communication with the Sheriff. Lord Chief Justice Doherty I think that is what the Lord Chief Justice stated. That would he an act of the greatest cor- ruption. Mr. Whiteside . — I did not say that, my lord. I simply stated, according to my instructions, that there Tvere but twenty Roman Catholics upon the panel. I could not help bringing that for- ward, and would bring it forward again. The Hon. Cornelius O' Callaghan . — Some of the jurors stated, I think, that they had served as jurors at assizes and quarter sessions, as I understood them. Mr. Justice Moore . — They served as both. The Lord Chief Justice . — I wdll tell you. William Macks says he has attended at assizes, and that the others usually attended at quarter sessions. [The triers consulted.] The Hon. Cornelius O' Callaghan . — We find, my lord, against the challenge in both cases. [The Court then adjourned till ten o’clock the following morning.] Friday, September 29, 1848. [The prisoner was placed at the bar. The panel was called over by the Clerk of the Crown, on fines of £10 ; and about two hundred jurors answered.] Mr. Whiteside . — My lords, there were a great number of jurors answered yesterday, who do not appear to-day, and I must apply to your lordships that the panel be called again on a higher fine. [The panel was then called over again on fines of £10, and six more jurors appeared.] APPLICATION FOR THE JURY TO BE CHOSEN BY BALLOT. Mr. Whiteside . — In this case, I have to submit to your lord- ships that the jury should be drawn by ballot, as was done in Frost’s case. My lords, in that case, Sir PTederick Pollock, the present Lord Chief Baron of England, applied, and Lord Campbell, THE QUEEN r. WILLIAM SMITH O’BRIEN. lOT who was then Attorney-General, consented. The ground of the application there was — and indeed as the Lord Chief Justice puts it in his judgment it was more favourable to the prisoner — that the panel was alphabetically arranged of persons coming from all parts of the county of Monmouth. I am quoting now from page 29 of Mr. Gurney’s Report. Several cases are referred to, and Sir Frederick Pollock says : — “We have a list of 318 jurors returned; by going through the panel, I perceive that the number struck out is between 70 and 80. There are therefore left, 230 or 240, and your lordships must perceive, that if this course is adopted upon a solemn occasion like the present, the prisoner, with his 35 challenges without cause, and a very small number of challenges with cause, and with the 12 who may be sworn, could hardly dispose of more than 50 or 60 on the panel.” There is a long argument, which I will not trouble your lord- ships with, but the Attorney-General rests on the ground that the course from the earliest times had been to proceed as he was then proceeding. Now then, my lords, he says : — “ It seems to me to be a matter of most perfect indifference, and what- ever your lordships’ judgment may be, I shall receive it with entire satis- faction. But at the same time, my lords, it is my duty to point out to your lordships that from the 7th William III., down to the present trial, I believe that this form of proceeding never has been adopted ; the course has always been to begin with the names standing first at the top of the list, and to proceed, subject to challenges by the prisoner, and by the Crown, till a proper jury was empanelled. “ My lords, these proceedings have been conducted before great and constitutional judges, they have been conducted in cases where the prisoners were defended by advocates of the first eminence, name, and talents, and the rule has come down to your lordships, such as I venture to submit to you. “ Now, the ground upon which it is said that there ought to be now this novel mode of proceeding in cases of high treason is this, that this jury list is alphabetically arranged. My lords, I must say, that in my mind, that is the very reason why, in this case, there is less necessity for proceeding by ballot than in the usual case. I never saw this jury list till I entered the walls of this court, nor was I aware that it had been arranged alphabetically, till my learned friend. Sir F. Pollock, pointed out that circumstance, which is undoubtedly true. It is not strictly alphabetical, but that is the principle upon which the names appear to have been arranged. But, I own, my lords, it appears to me that that can be no reason at all for departing from the usual course, because this shows that instead of there being any selection on the part of the Sheriff, he really has submitted to a mode of arranging the names, which is casual. My lords, it must be supposed that the Sheriff has done his duty; there is no challenge to the array, and it must be supposed that this list is impartially returned ; and therefore the question is, is there now, by reason of there being an alphabetical arrangement, to be a departure from the usual practice 1 If your lordships should think that it will in the slightest degree promote, not only a fair and impartial 108 SPECIAL COMxAIISSION, CO. TIPPERARY. administration of justice, but an administration of justice above all sus- picion — if you should think that any suspicion might attach to this trial if we were to proceed in the usual manner — I concur with the counsel for the prisoner, and pray that there may be a departure from the com- mon rule.” Now, at the desire of the counsel for the prisoner, the Attorney- General in that case did so. The Lord Chief Justice says, in his judgment, that it was manifestly for his advantage, but as his counsel thought it was not, and as the Attorney-General did not object, he thought the proposition open to the Court, and directed the jury to be called by ballot. If the Attorney-General con- sents to that being done I shall make no objection to any one person called, and there will be no challenging on either side. The Lord Chief Justice. — Mr. Attorney, what do you say to this? The Attorney -General. — I conceive, my lord, that my yielding or consenting to an application of this kind would be only on the ground that the Sheriff had not discharged his duty fairly and impartially, or that he arrayed this panel to the prejudice of the prisoner. That has been made the subject-matter of inves- tigation, and the decision has been in favour of the Crown. I will not consent to a departure from what has been the settled practice of the courts in both countries, as long as, either from reading or experience, I have any means of knowing. I do not think I should be discharging my duty as a public officer by yielding to an application of this description. The Lord Chief Justice. — We cannot, without the Attorney- General’s consent, make such an order. ( To the Clerk of the Crown.) — Call the panel. The Clerk of the Crown. — William Smith O’Brien, look to your challenges. You may challenge twenty peremptorily, and as many more as you can show cause for ; if any you do chal- lenge, you must chaUenge them as they come to the book, and before they are sworn. Richard Martin Southcote Mansergh, of Greenane. Mr. Mansergh. — Here. [Mr. Mansergh was sworn.] The Clerk of the Crown. — Jonathan W. Walsh. Mr. Walsh. — Here. Mr. Potter. — Challenged. The Clerk of the Crown. — Edward Crosbie Moore, of Moore’s Fort. Mr. Moore. — Here. [Mr. Moore was sworn.] The Clerk of the Crown. — James WiRington. Mr. Willington. — Here. Mr. Potter. — Challenged. The Clerk of the Crown. — Richard E. Phillips, of Mount Rivers. . Mr. Phillips. — Here. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 109 Mr. Whiteside . — My lords, 1 have a challenge for cause against this juror. We say that he does not stand indifferent as he stands unsworn. ' Lord Chief Justice Doherty . — Swear the two first jurors that have been sworn as triers. [Mr. Mansergh and Mr. Moore were then sworn to try the issue.] Mr. Whiteside. — Gentlemen, the ground of my challenge to the juror who has been now called is very short. Mr. WiUiam Smith O’Brien, the prisoner in this case, is the representative of the county of Limerick in Parliament. The gentleman whose name has just been called is a magistrate of that county. A quarrel sprang up between that gentleman and a native of the county of Limerick — the gentleman I understand charged that person with firing at him — there was some discussion as to wliich fired at the other, hut however the man was tried and acquitted. He then applied to Mr. Smith O’Brien, as the repre- sentative of the county, to bring the matter before the House of Commons. He did so, and he also felt it his duty to bring the matter under the notice of the Lord Chancellor. It is for you to say whether, under those circumstances, this juror should sit on the trial of Mr. O’Brien. The Attorney- General . — I can only say, if there be any foun- dation for the statement, which 1 have now heard for the first time, I do not wish to press the juror. Mr. Potter . — I am prepared to prove the facts. The Solicitor- General . — Without conceding that there is any thing in this challenge, if there is such a feeling on Mr. O’Brien’s mind, we will not press this juror. The Lord Chief Justice . — There will not be any finding then. The Attorney- General No, my lord. The Lord Chief Justice . — Call the next name. The Clerk of the Crown . — Lawrence Cfeagh. Mr. Creagh. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Charles Clarke. Mr. Clarke. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Samuel W. Barton. Mr. Barton. — Here. Mr. Potter. — Challenged. L'he Clerk of the Crown . — Joshua K. Millett. Mr. Millett. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Bichard Gason, of Richmond. Mr. Gason. — Here. [Mr. Gason was sworn.] The Clerk of the Crown . — Hugh Baker. • 110 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Baker. — Here. Mr. Potter . — Challenged. The Clerk of the Crown Henry Langley. Mr. Langley . — I was present at the entire of the taking of the examinations before the magistrates. The Attorney -General . — And you have an objection to be sworn on the jury? Mr. Langley. — Yes. The Attorney-General . — Then stand by. The Clerk of the Crown — William B. Smithwick. Mr. Smithwick . — My lords, Mrs. Smithwick and Mrs. O’Brien are near relatives, and I would rather not be on the jury. 71ie Attorney- General. — Well, I think that is a sufficient cause ; you may stand by, sir. The Clerk of the Crown . — John Going, of Bird Hill. Mr. Going. — Here. [Mr. Going was sworn.] The Clerk of the Crown . — Colonel Henry Dwyer. Colonel Dwyer. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — John D. Hutchinson. Mr. Hutchinson. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Thomas Bunbury. Mr. Bunhury. — Here. Mr. Potter. — Challenged. The Clerk of the Croiun . — Richard Phillips. Mr. Phillips. — Here. ' Mr. Potter. — Challenged. The Clerk of the Crown . — William Going. Mr. Going . — I live in the immediate neighbourhood of where these occurrences took place ; and I am also one of the magis- trates before whom the informations were sworn. Mr. Whiteside . — My lords, we had it down to mention to the Court that this gentleman has taken a part in preparing the case for trial, and, therefore, he certainly ought not to sit on the jury. Lord Chief Justice Doherty . — It is entirely for the Attorney- General ; it is not a strict ground of challenge. The Attorney- General . — If the gentleman has any objection to serve, he may stand by, my lord. The Clerk of the Crown . — Henry W. Briscoe. Mr. Briscoe. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — J ohn Lloyd, of Lisheen. Mr. Lloyd. — Here. [Mr. Lloyd was sworn.] The Clerk of the Crown . — Samuel Perry, of Barrona. Mr. Perry. — Here. THE QUEEN f. WILLIAxM SMITH O’BRIEN. Ill [Mr. Perry was sworn.] The Clerk of the Crown , — John Russell, of Littleton. Mr. Russell. — Here. [Mr. Russell was sworn.] The Clerk of the Crown . — Samuel Cooper. Mr. Cooper. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Edward Pennefather, of Marlow. Mr. Pennefather. — Here. [Mr. Pennefather was sworn.] ' The Clerk of the Croivn . — George Gough. Mr. Gough. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Thomas Sadher, of Ballinderry. Mr. Sadlier. — Here. [Mr. Sadlier was sworn.] The Clerk of the Crown . — William Smith. Mr. Smith. — Here. Mr. Potter. — Challenged. The Clerk of the Croivn . — Jacob Sankey. Mr. Sankey. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — Nicholas Biddulph. Mr. Biddulph. — Here. Mr. Potter. — Challenged. The Clerk of the Crown WiUs Croft Gason. Mr. Gason. — Here. Mr. Potter. — Challenged. The Clerk of the Crown . — James Millett. Mr. Millett. — Here. Mr. Potter . — This gentleman has taken some of the" infor- mations. The Clerk of the Crown. — No, he has not. Mr. Whiteside . — I believe the same objection, my lords, applies to this gentleman, that he has taken some of the infor- mations. Mr. Millett . — I have not. Mr. Potter . — Then we challenge. 2 he Clerk of the Crown . — William Ryan. Mr. Ryan. — Here. Mr. Potter. — Challenged. 'The Clerk of the Crown . — John Langley. Mr. Langley . — I think it right to state to the Court that I am one of the magistrates before whom the depositions were taken. The Attorney- General. — Then, sir, you may stand by. The Clerk of the Crown . — John Tuthill, of Rappla. Mr. Tuthill. — Here. [Mr. Tuthill was sworn.] 112 SPECIAL COMMISSION, CO. TIPPEPvARY. The Clerk of the Crown, — Thomas Godfrey Phillips. Mr. Phillips . — Here. Mr. Potter. — Challenged. The Clerk of the Crown. — Southcote Mansergh, of Gralha. Mr. Mansergh. — Here. Mr. P~otter. — Challenged. The Clerk of the Crown. — Your challenges are out. ARGUMENT ON THE RIGHT TO THIRTY-FIVE PEREMPTORY CHALLENGES. Mr. Whiteside. — My lords, I submit in this case we have a right to challenge. Sir C. O' Loghlen. — We have handed in our challenge to the Clerk of the Crown. I'he Lord Chief Justice . — My Lord Suirdale, and gentlemen of the Grand Jury, I have to inform you, that your attendance will not be required until Wednesday next at eleven o’clock. The Clerk of the Crown {reading ). — “ And the said William Smith O’Brien challenges the said Southcote Mansergh peremptorily, and without showing any special cause why the said Southcote Mansergh should not be sworn upon the said jury, and he prays that the said peremptory challenge may be allowed and so forth.” The Attorney- General. — They have already challenged twenty, my lord. Mr. IVhiteside. — What do you do with the challenge ? The Attorney- General. — I say that the Court will not receive or allow it. Mr. Whiteside. — With the utmost deference to you, I must protest against that doctrine ; if 1 put in a challenge to a juror, unless the act of Parliament requires them to reject it, the Court must receive it. The Lord Chief Justice . — We will not allow the challenge. Mr. Whiteside . — I submit with great respect in this case that we are entitled to a challenge of thirty-five, that is, if we are governed by the law of England. In 2nd Hale, 237, the Com- mon Law of England is stated — “ If a man be indicted or appealed of treason or felony, and pleads not guilty., or pleads any other matter of fact triable by the same jury, and pleads over to the felony because his life is now at stake, he might challenge peremptorily and without cause, any jurors under the number of three whole juries — namely, thirty-five of the jurors returned, and they are to be withdrawn out of the panel; and this was in favorem vitcsC My lord, in Fester’s Crown Law, page 237, this matter is THE QUEEN r. WILLIAM SMITH O’BRIEN. 113 spoken of in the terms one would expect it to be spoken of by a learned and constitutional judge. “Having given this short history of the difficulty which hath been founded on the statute of Philip and Mary, I will take the liberty of offering my own thoughts upon it. I conceive that the clause upon which the doubt arose, ^ That all trials for any treason shall be accord- ing to the due order and course of the common law and not otherwise,’ was intended in favour of the subject, not in the least to his prejudice. It was founded on the same principle, and directed to the same salutary ends, which the statute made but the year before, reducing all treasons to the standard of the 25th of Edward III., had in view. By the one the subject was secured in his journey through life against the numerous precipices which the heat and distemper of former times had opened in his wa}^ j and the other restored to him the benefit of a trial by a jury of the proper county, with all the advantages of defence peculiar to that method of trial, where former statutes had deprived him of it.” Then he adds — “ These acts were derogatory to the due course and order of the common law, and in many instances grievous to the subject. The judges have therefore considered them all as repealed by this general clause, so far as concerneth treasons committed in England or Wales. By this construction the trial by a jury of the proper county, with a peremptory challenge of thirty-five, which is with peculiar propriety called a trial according to the due course and order of the common law, is restored.” The simple question on the construction of the act of Parlia- ment is, whether the common law of England is taken away from Ireland? I apprehend that it is not, and that -we are living under the same law. If this act of Parliament, by the construction of the Court, can receive the interpretation that is popularly given to it, of course my challenge will be overruled. I submit there is a construction possible which wiU preserve to us the common law of England. The act is not an act in relation to the sub- ject-matter of high treason, it is entitled “ An act for improv- ing the administration of justice in criminal cases in Ireland.” This is the preamble : — “ Whereas it is expedient with a view to improve the administration of justice in criminal cases in Ireland, to define under what circumstances persons may be admitted to bail in cases of felony^ and to make better provisions for taking examinations, informations, bailments and recognizances, and returning the same to the proper tribunals ; and to relax in some instances the technical strictness of criminal proceedings, so as to insure the punishment of the guilty without depriving the accused of any just means of defence ” Now as far as that preamble goes, it meant to take away nothing from the party accused of the crime of high treason. All the clauses of this act relate to felony. The second relates I 114 SPECIAL COMMISSION, CO. TIPPEKARY. to proceedings before the person can be charged with felony; the next is the duty of the Coroner in charges of murder ; and then comes the section which is supposed to strip the subject of another of the advantages which, as a matter of mere right, he would have in England, that is section nine, and it provides — “ In all inquests to be taken before any of the courts in Ireland wherein the King is a party, howsoever it be, notwithstanding it be alleged by them that sue for the King, that the jurors of those inquests, or some of them, be not indifferent for the King, yet such inquest shall not remain untaken for that cause; but if they that sue for the King will challenge any of the jurors, they shall assign of their challenge a cause certain, and the truth of the same challenge shall be inquired of according to the custom of the Court, and it shall be pro- ceeded to the taking of the same inquisitions as it shall be found if the challenges be true or not, after the discretion of the Court.” Then comes this proviso — it is the only act of Parliament in tliis country which relates to this question. “Provided always that nothing herein contained shall affect, or be con- strued to affect, the power of any court in Ireland to order any juror to stand by till the panel shall be gone through, at the prayer of them that prosecute for the King as has been heretofore accustomed; and that no person arraigned for treason, or murder, or for other felony, shall be admitted to any peremptory challenge above the number of twenty; and if any person so arraigned for treason, or murder, or for other felony, shall peremptorily challenge more than twenty, such excessive challenge shall be rejected. I submit that means manifestly petit treason ; petit treason is a description of felony. Petit treason was then liable to be tried exactly with aU the advantage of a person who might be subject to the crime of high treason. The distinction between petit treason and felony was not abolished until the 10th George lY., and the words in this “ for treason, murder, or other felony,” show that the act is conversant about that which all the previous sections do refer to, and nothing else. To show you that petit treason is in truth a description of felony, I have only to refer to a note in Hawkins, page 205, and one or two passages in Foster. “ Tlie law considers 'petty treason and murder as one offence, differ- ing only in circumstance and degree ; and the principles that govern in the case of murder are equally applicable to petty treason.” Then he states them. “ For though the offences are to most purposes considered as substantially the same, yet there is at common law some difference with regard to the judgment, and a very material one with regard to the trial. The punishment is, in a man, to be drawn and hanged ; and in a woman it was, at common law, to be drawn and burned. But THE QUEEN r. WILLIAM SMITH O’BRIEN. 115 by 30th George III., c. 48, the punishment of burning is abolished. And, on the trial, the prisoner is entitled to a peremptory challenge of thirty-five.” Now, my lords, as the object of that act of Parliament was evidently to place all cases of felony on the same footing, and as the case of petit treason is scarcely to be distinguished from murder ; the case of a servant kilhng his master, for instance ; I respectfully submit that act, not reciting an intention to strip the subject in this country of his benefit under the common law, is capable of being construed as justice and reason require it, unless in every particular the high treason law in Ireland differs from the law in England. But there are one or two passages in Foster. Now, this is the way in which he speaks of this petit treason in page 327 : — “ Lord Chief Justice Coke having cited the opinion in Dyer, 235, before mentioned, saith, ‘ that petit treason is murder and more.’ And from thence it hath been inferred, that petit treason and murder are, in consideration of law, difierent offences, or that the crime of murder is merged in petit treason. But this inference will not hold, however true the Chief Justice’s doctrine may be. There is undoubtedly, in conside- ration of law, a greater degree of malignity in the one than in the other, arising from that degree of allegiance, however low, which the murderer owed to the deceased at the time the fact was committed or conceived in his heart. But certainly the difference in point of malignity between murder and manslaughter is infinitely greater, and consequently in that respect it may with equal propriety be said, that ^murder is man- slaughter and more.’ ” He then goes on — “ But though I am satisfied that the law considereth petit treason and murder as one offence, differing only in circumstance and degree, yet, whether it may be advisable to proceed upon an indictment for murder against a person plainly appearing to be guilty of petit treason is a mat- ter that deserveth great consideration, and probably determined the Attorney-General to prefer a fresh libel for petit treason in Swan’s case. For though the offences are, to most purposes, considered as substantially the same, yet, as there is some difference between them with regard to the judgment that is to be pronounced upon a conviction, and a very material one with regard to the trial, or person indicted for petit treason ” And this is put in italics by the editor. “being entitled to the peremptory challenge (/thirty-five, I think if the prose- cutor be apprized of the true state of the case — as he may be if he useth due diligence — he ought to adapt the indictment to the truth of the fact. But if, through a mistake on the part of the prosecutor, or through the igno- rance or inattention of the officer, a bill is preferred as for murder, and it should come out in evidence that the prisoner stood in that sort of relation I 2 116 SPECIAL COMMISSION, CO. TIPPERARY. to the deceased which rendereth the offence petit treason, I do not think it by any means advisable to direct the jury to give a verdict of acquittal ; for a person charged with a crime of so heinous a nature ought not to have the chance given him by the Court of availing himself of a plea of auter- fois acquit."' That was a most unreasonable distinction. If, from what Lord Hale, and Coke, and Foster say, in substance the crimes of petit treason and murder are the same, it was a most absurd thing to give an advantage to a person for one offence which he would not have for another. There are several passages in this hook which show what the distinction is between petty and high trea- son. The phraseology of the act of Parliament appears to have caught your lordships’ attention. My lords, the statute of Anne uses the expression, ‘‘ any person indicted for high treason,” all through. In the particular case in question, namely, the Irish act, felony is the only real object aimed at by the act of Parliament, and treason is thrown in for the purpose of making all the clauses of the act consistent, and giving the party tried for petit treason no other advantage than a party tried for felony or murder. There are several other passages in this book to the very same effect. He says in page 229 — “ It will not, I hope, be thought superfluous to have shortly stated how these matters stood at common law, since all high treasons not within the act, and all felonies, in which I include petit treason, stand in these respects upon the footing of common law.” I therefore respectfully submit, under the true construction of that act of Parliament, we are entitled in this case to the number of challenges given by the law of England in cases of high treason. The Attorney-General . — On the part of the Crown, I respect- fully submit to the Court, that there does not appear to be any question to he argued. It is unnecessary at this moment to enter into an investigation of what the common law of Ireland was. There is a statute here of the 9th George IV., passed for the purpose of improving the administration of the criminal law of Ireland. That act, after defining and declaring that the Crown are not to have peremptory challenges, and that they are not to have any challenge except for cause, goes on to state in these terms — “ That no person arraigned for treason or murder, or for other felony, shall be admitted to any peremptory challenge above the number of twenty. And if any person so arraigned for treason or murder, or for other felony, shall peremptorily challenge more than twenty, such excessive challenge shall be rejected, and the jurors so challenged beyond the number of twenty shall be sworn on the inquest, and the trial shall proceed as if such excessive challenge had not been made or taken.” THE QUEEN v. WILLIAM SMITH O’BRIEN. 117 The words “petit treason” and “high treason” do not occur in the act ; but I am not aware, nor have I ever heard it suggested, that the word “ treason” did not comprise within it both high and petit treason. I therefore submit to the Court, that the true construction of the act is that which it has been supposed to be, and that it embraces the present case. The section 1 have referred to is the ninth section of the 9th George lY., c. 54. Mr. Fitzgerald . — I shall not trouble your lordships at any great length. The argument of my friend, Mr. Whiteside, I have not heard the Attorney- General deal with at all : it is founded on the very statute which the Attorney-General has cited. Now, it is undoubted that there is a treason wiiich is a species of felony ; the words of the act of Parliament are used for the purpose of showing that the treason mentioned in the act is precisely that treason which is a species of felony. I may call your lordships’ attention to the words of the act — “ Be it further enacted, That in all inquests to be taken before any of the courts in Ireland, wherein the King is a party, howsoever it be, notwithstanding it be alleged by them that sue for the King, that the jurors of those inquests, or some of them, be not indifferent for the King, yet such inquests shall not remain untaken for that cause.” Then there is a provision that the Crown shall have the right of letting stand by, and not showing its cause, until there is a sufficient number of jurors. And then — “ That no person arraigned for treason, murder, or for other felony ” Now, my lords, I ask is it possible to contend that the meaning of that clause would be precisely the same as if it had been “ for treason, or murder, or felony?” The word “for” is carefully interposed after “treason” and “murder,” so as to make the word “felony” have application to the other crimes of treason and murder. Well then, my lords, we say, with great respect to your lordships, in favorem vitce, that there being a species of treason which unquestionably is felony, which has been held pardoned under a general pardon of all felonies, that the treason intended by this act is a treason of that species. It is not acci- dental. The statute goes on — “ And of any person so arraigned for treason, or murder, or for other felony ” Not accidentally introduced. The word “for” is in both cases interposed, and the word “ other,” immediately preceding the word felony, shows that the intention was to apply that word “felony” to both the crimes antecedent. Then your lordships have it that there was a treason which was a felony before the 118 SPECIAL COMMISSION, CO. TIPPERARY. statute. By the statute of the 6th George IV., in England the crime of petit treason had been reduced to the crime of murder : that was an act antecedent to this ; and your lordships will find that in the corresponding act in England, which reduces the pri- soner’s right to peremptory challenges to twenty, the word “ treason” is left out. Then, the statute in England, where petit treason was reduced to murder, does not provide for the case of treason. This statute was passed while the rights of persons charged with murder or treason were somewhat different as to the right of challenge. My lords, on these grounds it appears to me, in favor em vitce, that you will agree that this is the com- mon right of the subject in England, which had been taken away by the statute of the 28th, and restored by the statute of Phihp and Mary afterwards. The Lord Chief Justice. — We are of opinion that the word “ treason” comprises both high treason and petit treason ; and it is impossible by any sort of construction to cut down the word “ treason” to any one of those cases you have put. The Attorney- General. — Then your lordships will not receive the challenge. Mr. Whiteside. — It must remain ; it wiU appear on the record, vnth the sentence of rejection with it. .r The Lord Chief Justice. — The words of the act are, “ shall not he allowed.” Mr. Whiteside. — My lords, the exact point arose in the trial of Gray. The learned judge there said he would overrule and not receive it; but it was put in — and that was the point argued before the Queen’s Bench. The Lord Chief Justice. — There is no doubt about it. Mr. Whiteside. — Not the least. The Lord Chief Justice. — I am only pointing out what are the words of the statute. The Court refusing to allow the chal- lenge — The Attorney-General. — Just so, my lord ; it will then appear thus — “ It appearing that twenty peremptory challenges have been allowed, it was ordered that this challenge be rejected.” Mr. Justice Moore. — It will be necessary that it should appear upon the record that the prisoner had previously challenged twenty, and then that this challenge was rejected. The Attorney-General. — Certainly, my lord ; it appearing to the Court, the Court will assign that as the cause. [Mr. Southcote Mansergh was then sworn.] The Clerk of the Crown. — Charles Going, of Castle Granna. Mr. Going. — Here. [Mr. Going was sworn.] THE QUEEN WILLIAM SMITH O’BRIEN. 119 The names of the gentlemen who were sworn on the jury were then called over by the Clerk of the Crown as follow : — Richard Martin Soutlicote Mansergli, John Russell. foreman. Edward Crosbie Moore. Richard Gason. John Going. John Lloyd. Samuel Perry. Edward Pennefather. Thomas Sadlier. John Tuthill. Soutlicote Mansergh, and Charles Going. [The prisoner was then given in charge to the jury.] Mr. Fitzgerald . — My lords, I have to apply that the several witnesses who are to be examined in this case should leave the court, and that no communication be suffered to take place between them. The Attorney- General I have no objection to the general order, but there is one witness whom I would wish excepted from that order, and that is Mr. Hodges, who is to take notes of this trial, and also to prove regular notes of speeches ; probably my learned friends will not object to his staying ? Mr. Fitzgerald. — Oh, there is no objection to Mr. Hodges remaining. The Attorney •‘General. — There is another gentleman, Mr. O’Hara, who has been summoned on the part of the Crown, and over whom we have no control. I merely mention this that I may not be deprived of the evidence of those witnesses who may remain in court contrary to our wishes. General Macdonald is also to be a witness. I suppose there is no objection to his being present ? Mr. Whiteside . — There is no objection to such persons as General Macdonald and Mr. Hodges remaining in court. The Prisoner . — My lords, I should be very glad that General Macdonald, or any other gentleman of his high station, should remain in court; but I do object to Mr. Hodges remaining here. Mr. Hodges attended all our meetings, representing himself to be simply a reporter, and present to take notes, so as only to prove that certain words were uttered ; he has now come forward and sworn that those words so uttered are seditious and trea- sonable. I apprehend, therefore, that his character is totally different from that of an ordinary reporter — a man who is prepared to take that course, in order to gratify the Crown, I cannot conceive to be merely a reporter. The Attorney- General I propose to examine Mr. Hodges, my lord, merely for the purpose of proving some speeches at certain meetings, and he will be the first witness on the part of the Crown. We are anxious to have an accurate report of these proceedings, and he is the short-hand writer employed for the 120 SPECIAL COMMISSION, CO. TIPPERARY. purpose of giving us a report of the proceedings. That is my only reason for wishing him to remain. Mr. Whiteside. — W e are ashing for an ordinary, common, and universal rule, which has been rigidly acted upon in all these cases. If the Court makes an order for the exclusion of witnesses, it must be attended with the usual consequences, that those persons who break through that order and remain in court, cannot be afterwards examined as witnesses. The Lord Chief Justice. — There is no stern rule of the kind. They are all subject to be modified by reasonable construction. With the exception of those three gentlemen who have been mentioned, the Court direct that all witnesses on both sides leave the court. With respect to Mr. Hodges, I understand that he attends here professionally to report these trials ; his exclusion, therefore, would frustrate one of the main objects of his attendance here. The others, I understand, are General Macdonald and Mr. O’Hara. The Attorney-General. — There are also, my lord. Major Brownrigg, young Mr. Hodges, and Mr. McDermott, who are subpoenaed here. The Prisoner. — As far as I am concerned, I certainly do not consent to Mr. Hodges remaining in court. He has departed from his character of a reporter ; and, considering the accom- modation we have afforded him on every occasion upon which a meeting has been held, for the pm'pose of reporting the proceed- ings — in fact, treating him as a guest, rather than what he has turned out to be, a spy — I conceive that he is not in such a position that he ought to be allowed to remain. The Lord Chief Justice. — I can see no objection to Mr. Hodges remaining in court. His attendance cannot be followed by any evil consequence to you. The Prisoner. — Then I wish it to be understood that I am overruled by the Court, and that I do not acquiesce in it. Mr. Hodges. — As Mr. O’Brien objects so strongly to my remaining, I will retire. If my son and Mr. M‘Dermott are allowed to remain, they can report the proceedings until after my examination. The Attorney -General. — My lord, I understand that Mr. Hodges, jun., and Mr. M‘Dermott are here to report the proceedings with Mr. Hodges, so that his retiring will be of no consequence. I take it for granted that there will be no objec- tion to those two gentlemen remaining in court. Mr. Potter. — Are those gentlemen to be examined as wit- nesses ? The Attorney -General They are. Mr. Potter. — MerMy to prove certain reports of speeches ? The Attorney -General. — Just so. All the witnesses will then THE QUEEN v. WILLIAM SMITH O’BRIEN. 121 leave the court. Every one who has been served with a summons will retire, wdth the exception of General Macdonald, Mr. Hodges, jun., and Mr. M‘Dermott. [Mr. Hodges retired; Mr. Hodges, jun., and Mr. M‘Dermott remaining in court to report the proceedings. Mr. Lynch opened the indictment.] The Attorney-General. Gentlemen of the jury, it is now my duty to state to you the facts of this case, and the evidence I mean to bring forward, on the part of the Crown, in support of the very serious charge which I have considered it my duty to submit to a jury of this county against the prisoner, Mr. William Smith O’Brien. He is charged with an offence, the highest and greatest in contem- plation of law that a subject can be guilty of — he is charged with the offence of high treason. Fortunately for us, trials for high treason are of very unfrequent occurrence, and, therefore, it will be necessary for me — which is generally not necessary in criminal cases — to state to you what I conceive to be the law of the case, in order, as the evidence shall be produced before you, that you may be able distinctly to apply that evidence, and that you may satisfactorily know the nature of the charge which you are trying. Gentlemen, in very early times — so early as the reign of Edward HI., — an act of Parliament was passed, defining what was to be considered as treason. It is under that act of Parlia- ment that we are now proceeding ; and we charge Mr. Smith O’Brien with that which at common law was, and which by the statute of Edward III. is, declared to be the crime of high treason. That statute was passed in the year 1350 ; and in so far as the present precise charge against Mr. O’Brien is concerned, it will be necessary for me to refer you to only a small part of that statute. It is in these words : — “ Whereas divers opinions have been before this time in what case treason shall be laid, and in what not, the King, at the request of the Lords and of the Commons, hath made a declaration in the manner as hereafter follow eth, that is to say : — When a man doth compass or imagine the death of our Lord the King, or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably attainted of open deed by the people of their condition, he shall be declared to be guilty of treason.” My friend, Mr. Lynch, in opening this case to you, has stated that the first count in this indictment — and, in fact, the four fol- lowing counts may be considered as similar to the first count — 122 SPECIAL COMMISSION, CO. TIPPERARY. charges Mr. O’Brien with the offence of levying war against the Queen. The question which you will have to determine, there- fore, upon the evidence is, whether his conduct be such as amounts to a levying of war. Now, gentlemen, with respect to what amounts to a levying of war, in the legal sense, has been perfectly settled from the earliest times, and by a long train of judicial determinations, and I may say that very little doubt or difficulty can be entertained at the present time, as to what, in fact, constitutes a levying of war. It is now clearly established, as was laid down by Judge Foster, and very recently by Lord Tenterden on the trial of Thistlewood, that the pomp and circumstance of military array, such as usually attend on regular warfare, are by no means necessary to constitute the actual levying of war on the State. Lord Tenterden says : — “ Insurrections and risings for the purpose of effecting by force and numbers — however ill arranged, armed, or organized — any innovation of a public nature, or redress of supposed public grievances in which the parties had no special or particular interest or concern, have been deemed instances of the actual levying of war. .... Rebellion, at its first commencement, is rarely found in military discipline or array, although a little success may soon enable it to assume them.” Then Mr. Justice Foster says — “ An assembly armed and arrayed in a warlike manner for any treason- able purpose, is helium levatum, though not helium percussum. Listing and marching are sufficient overt acts without coming to a battle or action. So cruising on the king’s subjects under a French commission, France being then at war with us, was holden to be adhering to the king’s enemies, though no other act of hostility was laid or proved.” But two things are to be estabhshed on this portion of the case to your satisfaction : first, that there was an insurrection and rising in arms ; and secondly, that that rising in arms was for a public purpose. If we establish these two points by evidence, we have what constitutes a levying of war. With respect, gentlemen, to the other charge contained in the last count in this indictment, namely, that of compassing the death of the Queen, it has been established from the earliest times, that to support such a charge it is not necessary to prove or satisfy a jury that the party contemplated actual violence to the person of the Sovereign. It is fuUy established that a levying of war against the Queen of itself is an overt act to support the charge of compassing her death ; that taking measures for invading the country, taking measures for the deposition of the Queen, for the imprisonment of the Queen, or for restraining her person, through the means of open insurrection or rebellion, of them- selves amount to overt acts of compassing her death. And there- THE QUEEN WILLIAM SMITH O’BRIEN. 123 fore it is that that latter count is introduced into the present indictment, and it is upon the overt acts of levying war and raising an insurrection and rehelKon, that we rely in support of our charge of compassing the death of the Sovereign. The great probability is, that under the direction of the Court, the only matter that you will have to try will be, whether, in point of fact, Mr. Smith O’Brien and those persons engaged with him in these transactions, have been guilty of levying war, and have committed overt acts of that description of treason ; and I take the liberty of anticipating, that in their direction, their lordships wiU inform you, that if you come to that conclusion, we have, in point of law, sustained both portions of the charge which has been brought against Mr. William Smith O’Brien. The actual outrage and rebellion of which we mean to give you evidence did not occupy a very considerable period of time — scarcely more than a week — the last week in the month of July. But in order to understand the object of these proceedings, and the circumstances under which they were had recourse to by Mr. Smith O’Brien, it will be absolutely necessary, both in statement and in evidence, that I should commence at a much earlier period, and be able to trace what I believe that gentleman must himself have really anticipated as the necessary result of his conduct from a much earlier period. Gentlemen, it will appear before you, that so long ago as the month of January, 1847, an association was formed in the city of Dublin Mr. Whiteside . — I beg your pardon, Mr. Attorney. In the language of Mr. Justice Foster, the prisoner has not come here to answer the history of his life. The overt acts are all spe- cified in the counts of the indictment. I wish to apprize my learned friend that if he intends to give evidence of matters of which I have not the most distant conception, and to exclude which the counts containing the overt acts are cautiously framed, and of which there is not a hint in the indictment, I shall pro- test and object at the proper time. There is an intimation in the indictment of falling back upon seditious speeches, as in every precedent — every remarkable trial that I am aware of — and, as it is stated in this book, the object of having every overt act specified, is to prevent the prisoner being called on to answer the history of his life. I submit my learned friend on this in- dictment is not at liberty to give in evidence any of those speeches. The Attorney- General . — My lords, I will state nothing that I do not intend olfering, successfully as I believe, in evidence. It is the first time I have heard that if a man is charged with the commission of a particular offence, the previous arrangements for the commission of that very offence are not to be received 124 SPECIAL COMxMISSION, CO. TIPPERARY. in evidence. Under the counts for levying war, it is perfectly plain that I can give in evidence the previous arrangements, consultations, and plans of those parties which resulted in that levying of war ; and, therefore, I shall not be prevented in stat- ing the case in the way which I originally intended. I stated, gentlemen, that so long ago as the early period of the year 1847 an association was formed in the city of Dublin, called “ The Irish Confederation,” consisting of a great number of members, including Mr. Smith O’Brien, Mr. Meagher, Mr. O’Gorman, Mr. Doheny, and several others whom, by the evi- dence, I mean to connect, as having, at a considerable period antecedent to this recent outbreak, entered into an arrangement amongst themselves for an insurrection, but which insurrection did not ultimately take place until the month of July in the present year. I do not mean to say that I intend to lay evidence before you, to show that in point of fact any plan was actually formed for that purpose, so long ago as the month of January, 1847 ; but what I mean to prove is this, that the members of that association, which was so farmed in the month of January, 1847, and which continued its proceedings from that time up to the month of July in the present year, so early, at all events, as the month of February or March of the present year, did enter into a definite arrangement and plan, the object of which was, by means of force and violence, to effect a separation between the two countries, and to establish Ireland into an independent kingdom. Gentlemen, it is a matter of history, of which we are all aware, that the French revolution took place in the month of February of the present year. The success that attended that revolution held out hopes and encouragemient to those who, for any object, whether to advance themselves to a particular position, or from any mistaken notion of advantage which might be derived by this country, entertained similar revolutionary prin- ciples in regard to this country. Accordingly, it will appear that just about, or shortly after, the occurrence of that revolution became known in this country, meetings were held apparently for the purpose, and with the express intention of voting an address of congratulation to the members of the Provisional Government, which was at that time established in the kingdom of France. It will appear, that on that occasion Mr. Smith O’Brien took a very active j>art in the proceedings ; he did not, I believe, preside, because it was he who actually moved an address to the French nation. The speech in which he moved that address was one of considerable length ; but there are several portions of that speech which, in my humble judgment, it is impossible for any one to read, or hear read, mthout coming to the conclusion, that at that time Mr. O’Brien had settled in THE QUEEN WILLIAM SMITH O’BRIEN. 125 his mind the idea, that the time was shortly to arrive at which it would be necessary — according to his view of the state of public affairs — for the Irish people, of whom he fancied himself the re- presentative, to have recourse to arms, and to sever by arms the union between Great Britain and Ireland, and establish Ireland into a separate and independent kingdom. I do not think it necessary, at length, to refer to the speeches at that meeting. It is enough for me to apprize you that in one of the speeches delivered at a meeting of this Confederation, the members of which I charge as being — and I shall support this charge by evidence — members of a conspiracy formed to effect this treason- able purpose, Mr. O’Brien amongst other matters stated, that although upon a previous occasion he had objected to the people having recourse to arms, upon that occasion he thought the nature of things was changed — and that it would be advisable the people should furnish themselves with arms ; that young men of ability should apply themselves to engineering, and to matters of that description, in order to be enabled to cut off — I think that is the word made use of — supplies from the enemy’s foraging parties, and to take them for the support of their own army. At the same meeting another member of the same Confederation, and a party to that conspiracy, Mr. Meagher, made a speech of a somewhat similar import. A portion of that speech was to the effect, that he should advise a deputation to w^ait upon the Queen ; that if they were refused admission to her, they should bundle up their court dresses, and swear that the next time they would apply for admission it would be as the accredited ambassadors of an Irish republic ; or, if their requests were refused, that they should up with the barricades, and have recourse to the God of battles. I mention these matters because it occurs to me that they are material in assisting you to the conclusion to which you will come, as to the object by which Mr. Smith O’Brien was actu- ated in the outbreak that took place in the month of July, and that you may have before you the previous determinations and resolves of Mr. Smith O’Brien and his confederates ; and if the evidence has not deceived me very much, the several sj)eeches delivered by him and the other members of this conspiracy, as I charge them to be, will satisfy you that such was his object. Now, gentlemen, these matters occurred so long ago as the month of March in the present year, and it may naturally be suggested why or wherefore these proceedings were allowed to go on, and why they were not sooner checked or stopped. You •will see, if I am not mistaken, that from the month of March, 1848, up to the final outbreak in the month of July, there was a constant struggle by the parties engaged in this con- spiracy, as I presume for the present to call it, for the purpose of opposing and evading the law, and for the purpose of being 126 SPECIAL COMMISSION, CO. TIPPERARY. able to effect their objects and their purposes in defiance of the law, and so to act, as that, in point of fact, the law could not effectually reach them. Gentlemen, it is right that you should be aware exactly, what the state of the law was in the month of March, at the time these proceedings took place. At that time, as now, if a party was guilty of high treason and had taken the field, he forfeited his life; but then the mere uttering of speeches, however seditious, or the mere publishing of seditious speeches which did not amount to an overt act of actually levying war, was only a misdemeanour. The delivery of seditious speeches was an offence, for which a party might be tried and prosecuted, but he could not be prosecuted for the crime of high treason. Accord- ingly, I mean to submit to you that Mr. O’Brien and those per- sons engaged with him, being aware of the state of the law, availed themselves of it ; and although the two speeches that I have alluded to — the one of Mr. O’Brien, and the other of Mr. Meagher — were both made the subject of a prosecution, they knew that the then state of the law was such that they could only be made the subject of a prosecution for a misdemeanour ; the effect of which was this, that though proceedings were instituted against Mr. O’Brien and those engaged with him, they were not subject to imprisonment before trial. Accordingly, the use made by Mr. O’Brien of his liberty was, to become one of the bearers of an address to the French nation. The persons who accom- panied him as the bearers of that address were, Mr. Meagher, Mr. O’ Gorman, and a person of the name of Hollywood. One of the matters which will perhaps assist you in the investigation which you will have to enter into, will be this, whether this was reaUy a deputation merely for the purpose of congratulating the French people upon the alteration that had taken place of their own affairs ; or whether the real object of Mr. O’Brien and his friends was not to make such arrangements as would enable them, in the event of an outbreak in this country, to obtain assistance and sympathy from France. Be that as it may, it does appear that some time in the latter end of the month of March, or in the beginning of April, Mr. O’Brien did go to Paris, and after remain- ing there for some time returned. Several measures were about this time suggested by the persons engaged in this conspiracy for the purpose of advancing its objects — at one time they thought of establishing a national guard throughout the country; at another they proposed the establishment of clubs to a very considerable extent, which should be provided with arms ; that these clubs should be sectioned, and that there should be an officer over every minute sub- division of them, so that, in point of fact, at any given moment they should be prepared to rise. THE QUEEN v. WILLIAM SMITH O’BKIEN. 127 Another mode that they had recourse to was this, that mem- bers of the Confederation should establish newspapers for pro- claiming through the country their plans and their arrangements. At that time the publication of seditious newspapers was also a misdemeanour only. Upon the 22nd April, 1848 — just while this very violent agitation was going on, which in fact had risen to such an alarming extent, in consequence I believe of the success of the French revolution — an act of Parliament was passed, the effect of which was, that it rendered it a felony either to compass or imagine the deposition of the Queen, or the making her by force change her measures, and expressing such intention or compassing either by open and advised speaking, or by publish- ing any printing or Tfriting. This win become a material ingredient in the consideration of this case, for it will appear in evidence before you, that about a week or ten days after the passing of this act, a prosecution for felony was instituted against one of the members of this Confede- ration, a Mr. Mitchel; and he was tried at the latter end of the month of May, in the present year, and convicted of felony for having published articles which satisfied a jury that he really did intend and devise, by force and violence, either to deprive the Queen of some portion of her dominions, or by force and violence to make her alter some of her measures. Mr. Mitchel was a member of the Confederation ; he was one of those who attended the meetings of the association ; and one of the matters for which he was thus prosecuted and convicted, was a report in his own newspaper of a speech delivered by himself at a soiree in Limerick — which soiree was given to Mr. O’Brien, Mr. Meagher, and himself, as ^'prosecuted patriots;” because, at that time, a prosecution was hanging over them in the Court of Queen’s Bench, for speaking some of the speeches which, on the part of the Crown, were thought to be seditious. It will also appear, I think, in evidence before you, out of the mouth of one of Mr. O’Brien’s co-conspirators, that immediately before the trial of Mr. Mitchel, when it was supposed possible or probable that Mr. Mitchel might be exposed to transportation ; that consultations were held, and discussions took place, for the purpose of ascertaining whether it would be possible at that time to effect a rising ; that is, whether they should risk the fate of their intended insurrection upon an attempt to rescue Mr. Mitchel, in the event of his conviction. It will also appear that there was a very considerable difference of opinion at that time between the clubs of Dublin, which had been formed and organized to a very considerable number, and some of their leaders, upon that occasion. Some of the leaders thought that under any circumstances Mr. Mitchel should be rescued, even though that rescue was only to be effected by an enormous loss 128 SPECIAL COMMISSION, CO. TIPPERARY. of life ; and that that rescue was to be made the commencement of the rebellion, or, according to some of their own expressions, that such would have been the proper time to erect the barri- cades. Others of the Confederation, however, conceived that the month of ^lay, which was the time when that conviction took place, was premature ; that the harvest was not then ripe ; that there was not food enough in the country, and, that there- fore, the attempt to rescue Mr. Mitchel, and the rebellion to be founded upon that attempt, would be completely unsuccessful, and should therefore be deferred until after the harvest. Now, gentlemen, if lam right in my statement of the evidence, I think it will clearly appear that at that time it was determined that this rebellion should be deferred until the harvest w^as reaped, and the period wdien it was so reaped was to be the time at which the effort was to be made. Then the question w^as, what was to be done in the meantime ? The plan was this, clubs were to be organized all through the country in all the large towns, and, if possible, in the rural districts. These clubs were to be armed and officered, and were to be ready at any notice, however short, to take the field. A simultaneous rising was to take place, but it was postponed until harvest j and, in the meantime, all efforts were to be used for the purpose of preparing materials for a successful rebellion wffien the appointed time should arrive. A circumstance however occurred in the interim, which was this : early in tlie month of July Mr. Duffy and Mr. Martin, two members of the Confederation — I am not quite certain whether Mr. Martin was actually a member, but most certainly Mr. Duffy, the propri- etor of The Nation newspaper, was — were arrested upon a charge similar to that for which' Mr. Mitchel had been transported. The time when Mr. Duffy’s trial was likely to take place — in fact, it would necessarily have taken place had it not been postponed — was in the early part of the month of August. The commission was to hold its sitting, I think, upon the 8th of August ; and therefore, according to the ordinary course of events, Mr. Duffy’s trial — as also the trial of other persons, members of the Con- federation, and charged wdth the offence, of publishing seditious articles in their newspapers, or advice as to the organization of these clubs, or as to the method of levying war against the Queen — these trials having been fixed as likely to take place in the month of August, the evidence I think will satisfy you that a determination was then come to by Mr. O’Brien and the other leaders, that the insurrection for which they were not ready in the month of May, was to occur in the month of August. Accordingly, you will find that the preparations for the pur- pose of effecting the rising, and the exertions necessary for the purpose, were redoubled about that period. You will find that Mr. Smith O’Brien himself went to one portion of the THE QUEEN i- WILLIAM SMITH O’BRIEN. 129 country — to Cork and other places in the south of Ireland — for the purpose, as he himself stated in one of the meetings of the Confederation upon his return, of seeing the state of organization of his men. He stated on that occasion, as I believe vras the fact with regard to the numbers, that he found upwards of 2,000 men, whom he said were as well disciplined and as well arrayed as any men in Her Majesty’s service. Other members of the Confederation, at the same time simultaneously, were pursuing the same objects in other parts of the country — Mr. Doheny in one part, Carrick I think ; Mr. Dillon, a member of the bar, and Mr. O’ Gorman, a young gentleman, with Mr. Dillon accompanying him, through Meath and that district. Therefore, if I am not very much mistaken, 1 think the evidence will satisfy you that these “ expeditions,” as they are called in some of the letters, through the country, were solely and expressly for the purpose of having the arrangement of the clubs so complete, that at any moment the torch might be lighted, they should be ready to rise ; and the object was, to distract the Government and those in command of Her Majesty’s troops, by having simultaneous risings in as many places as practicable. Gentlemen, matters went on in this way until about the 14th of the month of July. Mr. Smith O’Brien about that date returned from Cork. There was a meeting of the council of the Confederation, of which he was a member, held upon the evening of that day, the object of which meeting was — that the members of the different clubs in the city of Dublin should report upon their organization, the state of their arms, and the prepara- tions that they had made, so as to be ready for an immediate outbreak. Your own experience, gentlemen, as jurors in criminal cases, must satisfy you — that persons having the onerous duties of Government imposed upon them, frequently receive informa- tion upon the accuracy of which they can rely ; but which is not sufficient to convict the parties accused. You all know, that however trustworthy the evidence of a party in a conspiracy may be, that that evidence alone is not considered sufficient to satisfy a jury as to the guilt of the accused party. You may, therefore, w^ell understand, that though those having the responsibility of the administration of this country upon them, may have been aware of the resolution that was come to upon the 14th of July, although they had not at that time sufficient evidence to institute a prosecution for treason against the parties who were concerned in it. Gentlemen, you will now see what effect the acts of the Government at that time had upon the proceedings which imme- diately afterwards took place ; and I think a few details which I shall now mention will give you a key to the rising that broke out in the county of Tipperary on Monday the 24th, or Tuesday K 130 SPECIAL COMMISSION, CO. TIPPERARY. the 25th, of J uly. I mentioned to you that there was a meeting of the council of the Confederation upon the 14th of July ; that meeting was attended by delegates, or representatives of the different clubs, who were to state the preparedness of their orga- nization at the next meeting, which was on the following night, or one of the nights immediately after ; and there the period of the rising, and the circumstances of it, were fully discussed. It was then that some of the parties proposed a resolution to have an immediate outbreak, and tliat a day should be fixed for the purpose ; others thought it would be better to postpone it a little ; the fact of the outbreak was a matter perfectly determined upon, but the actual time for tlie outbreak was still a matter for further consideration. Immediately after that determination was come to, namely, upon the 18th July, a proclamation was issued by the Lord Lieutenant, proclaiming Dublin. This is a material cir- cumstance to bear in your recollection — the effect of this pro- clamation was extending to Dublin the operation of an act of Parliament that had some time before passed, and which you are aware is in force in this country, prohibiting the carrying or the possession of arms. The effect of that proclamation would he this, that no parties could legally have arms in their houses without a licence for the purpose ; no parties could carry arms from one club room to another, if they did, the military and police authorities were justified in seizing them. Accordingly, it was considered by the members of the clubs a very material circumstance to know what they were to do in consequence of this proclamation — whether they were at once to resist it, and to make the search for arms the commencement of their resistance ; or wdiether, upon the other hand, they were to conceal their arms, but still to be ready to turn out upon a moment’s notice. I have told you already that the time Dublin was proclaimed was the 18th of July. It is also right to mention, and the cir- cumstances that I shall give in evidence will prove it, that con- temporaneous with that, a resolution was come to by the Government that it was now the time to suspend the operation of the Habeas Corpus Act. You are probably aware that the meaning of the Habeas Corpus Act, when it is in force, is this — if a party be arrested, he has a right to have copies of the infor- mations that have been sworn against him, and he has a right to be brought before a judge, and to be discharged on bail; unless there be a substantial bona fide charge and a trustworthy witness who chooses to come forward and swear informations, and the Court will either bail him or keep him in custody, according to the nature of the offence with which he is charged, and the nature of the evidence that may have been adduced against him. The effect of that is this, that however strong, or however cogent, private information may be, unless the Government has the THE QUEEN v. WILLIAM SMITH O'BIilEN. i:u information from persons who are willing to come forward as witnesses, or who are willing to make informations, you cannot arrest any person while the Habeas Corpus Act remains in force. It was hoped that if the Habeas Corpus Act were suspended, and that if, by reason of its suspension, those who were known to be the leaders of this intended outbreak were arrested, this country would be saved the loss of life, which was likely to result from an armed insurrection and rebellion. Accordingly, it was determined at that time, namely, about the 18th or 19th of July, that together with proclaiming Dublin, an application should be made to Parliament for the purpose of suspending the Habeas Corpus Act. I told you, gentlemen, that upon the 18th or 19th of July it was finally determined that the rising should take place : at that time the council of the Confederation consisted, I believe, of so many as twenty or twenty-one persons. It was then considered that a council of twenty-one was too numerous for actual war purposes ; that if an insurrection was to take place the council should be limited in number. Accordingly, you will find that on Friday, the 21st of July, a meeting of the Confederation was held, at which deputies from the clubs attended, and the object of that meeting was to elect a war directory, which it was arranged was to consist of five persons. Mr. Smith O’Brien himself was not to be one of the five ; he it was supposed would take the field. But Mr. Meagher, Mr. O’Gorman, Mr. Dillon, Mr. Devin Beilly, and one other, whose name I forget at this moment, were to be the five. We will produce as a witness before you upon the table, an individual who was present at, and took part in, that meeting. We shall be able to produce to you, by what I may call an extra- ordinary circumstance — they were providentially found in this county — the balloting papers that were used upon that occasion, containing the names of these five persons as the directory. The meeting consisted of some nine and twenty or thirty persons. We thought that we should be obliged to bring forward this evidence before you, depending for its accuracy merely upon the evidence of the man who took part in the proceedings ; but most providentially, we have discovered with the papers of a Mr. Lalor, who took an active part in these proceedings, the iden- tical balloting papers which were used upon that occasion. It will be for Mr. O’Brien’s counsel to satisfy you as to what was the object with which this change in the constitution of this body was to be made. It will be for his counsel to satisfy you what was the object and purpose for which Mr. O’Brien went to Cork ; what vras the object and purpose for which he intended to have a review of his “ troops,” as he called them, in the city of Dublin ; what was the object and purpose at the same moment of Mr. Doheny being in Garrick, and Mr. Dillon, accompanied by Mr. O’Gorman, being in Meath. K 2 l ?>2 SPECIAL COMMISSION, CO. TIPPERARY. Now, gentlemen, this brings us to Friday night the 21st of July. Though the law was strong, they knew that the Habeas Corpus Act was still the law of the land and unsuspended. Mr. O’Brien knew, and those barristers who were members of that association were able to advise him, that so long as the Habeas Corpus Act was in force he could not he arrested without informations being sworn against him. Accordingly, in order to complete the organization, in order to break new ground in the county Wexford, Mr. Smith O’Brien left town on the morning of Saturday, to go by the day coach to Enniscorthy. He travelled alone. But it so happened that on the previous Friday, the 21st of July, at the very moment that the council of the Confederation were electing their war directory, the first minister of the crown was announcing in his place in the House of Commons, that on the following day, Saturday, the 22nd, he would introduce a bill for suspending the Habeas Corpus Act. This took the war directory by surprise. Mr. O’Brien had left town on the morning of that very day, Saturday ; and therefore when he left town he was not aware that the Habeas Corpus Act was about being suspended, nor did he imagine that there was enough of loyalty in the British Parliament, or rather so total an absence of disloyalty, that no member of the house could venture to obstruct the passage of the measure ; and accordingly, which is almost unexampled, the bill was announced on Friday, on Saturday it passed through the House of Commons, on Monday it passed through the House of Lords, and on Tuesday it was the law of the land. But, gentlemen, the announcement of the intention to bring it in having taken place on Friday, the intelligence was received by telegraphic express in Dublin upon Saturday, after Mr. O’Brien left town. Of course the Government were aware of it ; but it will appear, that the proprietor of The Freeman’s Journal received the intelligence by telegraphic express ; that he communicated it to Mr. O’ Gorman, one of the war directory, and the conclusion that Mr. O’Gorman arrived at was this, “ the object of this is, to arrest Mr. Smith O’Brien. If Mr. Smith O’Brien and the rest of us are arrested, the people will he there, hut there will be no leaders, and no means or opportunity of effecting the revolution.” Accordingly, Mr. O’ Gorman immediately sent off his despatch to Mr. O’Brien, — which despatch we have the means of proving ; it was found either in the trunk or on the person of Mr. Smith O’Brien, — announcing the telegraphic despatch received by the proprietor of The Freeman s Journal ; namely, that Lord John Kussell had brought in a measure to suspend the Habeas Corpus Act, and that a warrant was issued for the arrest of Mr. Smith O’Brien. But that was not all. Others of the directory felt it to he a matter of so much importance, that two of them, I believe Mr. Dillon and JMr. Meagher, left town on the evening of Saturday, THE QUEEN v. WILLIAM SMITH O’BRIEN. 123 for the purpose of conveying the intelligence to Mr. O’Brien, and with the view of taking the field in conjunction with him. I have already informed you that Mr. O’Brien arrived at Ennis- corthy on the evening of Saturday, having travelled by the day coach. On the evening of that same day Mr. Meagher and, I believe, Mr. Dillon left the house of a Mr. O’Hara, who lives some five or six miles from Dublin, on the Kingstown side ; they went from his house, because perhaps they thought it wmuld not be quite safe to take the coach in the city of Dublin, as they might think, — and perhaps they were right in that, — that though the Habeas Corpus Act had not been in fact suspended, the Government might take on itself the responsibility of anti- cipating the passing of it, and arrest those leaders. Accord- ingly, they left the house of Mr. O’Hara, — whom I see in court, and will examine as a witness — Mr. Dillon being, I believe, a rela- tion of his, on that Saturday evening, and took the coach at Lough- linstown, some seven or eight miles from Dublin, and arrived at Enniscorthy the next morning, Sunday, where Mr. Smith O’Brien was. Of course, I cannot produce as a witness, either Mr. Dillon or Mr. Meagher ; but it will be for you, from the facts of the case, to come to a conclusion as to what was their object in leaving town on that Saturday evening so suddenly. Mr. Dillon in the presence of Mr. O’Brien stated, that he conceived the announcement of the suspension of the Habeas Corpus Act so important, as to induce him at once to leave town to com- municate the matter to Mr. Smith O’Brien. Gentlemen, be that as it may, the three gentlemen whose names I have mentioned, went on. Air. Smith O’Brien remained that Saturday in the house of a gentleman of the name of Maher, who lives in the neighbourhood of Enniscorthy; he slept in his house that night, and returned on the morning of Sunday to the town of Enniscorthy. Air. O’Brien addressed the people who were assembled about the car in which he was to travel, in the neighbourhood of Enniscorthy after mass. He told the people that the time was come. I will not weary you by repeating the exact words used by Air. O’Brien ; it is enough for me to say, that unless I am very much deceived, the language was such as will satisfy you, that Air. Smith O’Brien’s object in addressing that meeting w'as, to excite them for an immediate outbreak, and persuade them to have measures con- certed and arranged for that purpose. Mr. Aleagher and Air. Dillon also spoke. One of the expressions used by Air. Dillon in Air. O’Brien’s presence was, that he understood the men of Wexford were men, who, at all events, had their arms and their powder dry ; and that the time was come, when they would be called upon to use them. This occurred on Sunday the 23rd, and the parties left Enniscorthy on that day. 13i SPECIAL COMMISSION, CO. TIPPERARY. Gentlemen, I forgot to mention a circumstance, a minute one, but still one worth mentioning, and it was this, that almost im- mediately before Mr. Smith O’Brien left Dublin, he was very anxious to have correct maps of the southern counties ; he was anxious to know exactly the lie of the different places, and accordingly he provided himself — it is a matter which might be of course innocently done, — immediately before leaving Dublin, with the Ordnance maps of the counties, which, according to my instructions, were intended to be the scene of his operations. I have stated that on Sunday they left Enniscorthy. They proceeded to Graigue, which is distant, I believe, some twelve or fourteen miles from Enniscorthy, and between Enniscorthy and Kilkenny. They went on the same evening from Graigue to Kilkenny, which county was intended to be the scene of a portion of their operations. They remained in Kilkenny on Sunday night, and on Monday morning Mr. Smith O’Brien thought it right to examine the lie of the surrounding country, and accordingly ascended to the top of one of the very high towers in that town, for the purpose of taking views of the surrounding district, and observing the direction of some of the places he intended visiting in campaign. On that morning the Messrs. O’Brien, Meagher, and Dillon, proceeded from Kilkenny to the town of Callan, and arrived at Callan about one o’clock, and addressed large crowds who were assembled there. Some of the persons present when they addressed these crowds will be produced before you ; and, as I understand the evidence which will be adduced, the substance of it will be found to be this, that they apprized the people that there was an end to all peaceable means, and that the time was come for having recourse to open war. In these speeches of Mr. O’Brien, as also in some of his earlier speeches, there seemed to be a supposition on his part that he would be able to seduce either the military or the police, or perhaps both, and, if possible, induce them to take part with him ; and, accordingly, some of the advice he then gave to the people was, not to consider as enemies the constabulary or military, as there were very honest men among them. You will not understand me, when I am making verbal statements of Mr. O’Brien’s speeches, as giving you the exact words he used — the witnesses will do that probably — but I am merely stating their substance, because, I conceive, that they are material to satisfy you what the objects of Mr. Smith O’Brien were. Having staid some time in Callan, the same party proceeded to Carrick-on-Suir, where they arrived between six or seven o’clock on the same Monday, the 24th of July. The course they pursued at Garrick was precisely a repetition of what had occurred at the town of Callan — calling the people together, and informing them that the time was come when they should be ready, and, in fact, THE QUEEN y. WILLIAM SMITH O’BIIIEN. 135 announcing to them that the preparations for the insurrection were in such a state, that it would occur immediately, and that they were to he ready to arm and take a part the moment it took place. Up to this time Mr. O’Brien was accompanied by his friends Dillon and Meagher. I think some of the evidence will show that at a more advanced period Mr. Dillon was called colonel. If it is the Mr. Dillon we suppose who was so spoken of, he certainly never was in the military profession, or entitled to that rank, unless conferred upon him by his associates. On Monday the party arrived, as I mentioned, at Garrick, and somewhere between six and seven o’clock on the next morning of Tuesday, Mr. O’Brien and his friends passed through Killenaule, on their way to Mullinahone. We are not able to trace them exactly in the interval between their going from Killenaule to Mullinahone, or where they slept on the way to Mullinahone. A circumstance, however, will be given in evidence that leads me to believe that they went to the city of Cashel, and I will tell you what that circumstance is. Immediately after the arrest of Air. Smith O’Brien, which took place on the 5th of August, he stated that he had left a portmanteau of his which he had with him when travelling, and which contained some clothes and papers, wdth Airs. Doheny, at Cashel; and that portmanteau was, in fact, found in the neighbourhood of Cashel, and several of the papers that were found in that portmanteau will be produced before you in evidence. But the probability is, that on his way to Alullinahone he passed through Cashel — because I am able to trace Mr. O’Brien through all his other movements up to the termination of these proceedings, and as far as I can judge he had no opportunity of getting to Cashel except upon this Alonday night. Gentlemen, he arrived in Alullinahone about three or four o’clock on Tuesday, the 25th July, and there commenced, at that time and on that day, what I respectfully submit to your better judgments amounted to an actual commencement of levying w^ar; and though every tiling that occurred before, if it stopped there, perhaps would have amounted merely to a plan, preparation, and arrangement, yet upon Tuesday the 25th, in the town of Alullina- hone, commenced that levying of war, to answer the charge of which Air. O’Brien now stands before you. Before his arrival in the town it was known that he was to come there — some mes- sengers must have been despatched to announce the fact of his approach ; and upon his arrival bells were rung, and the people assembled in arms from the surrounding country. You wdll find that speeches of a most treasonable character were spoken. The people were armed with pikes and guns; and I think it will appear that drilling, and inspection, and matters of that description took place. If I am right in my notion of the law — but of course in that you will be guided by the direction you may receive from the 136 SPECIAL COMMISSION, CO. TIPPERARY. Court — even if the matter had stopped there, the assembling of the people in arms, the marching of those people in military array, the addressing of the people that cro^vded together, and the body- guard that w^as established about Mr. Smith O’Brien — those acts of themselves, even if the parties had never gone a step further, would amount to an actual levying of war. Your lordships are aware that in Brendweth’s case there was no blow struck. There was a gathering and an assemblage. There was a marching forward ; but the parties having heard that some troops were coming, and having been disappointed in some of the supplies, dispersed without striking a blow, and in point of fact, nothing more occurred ; and still that was held, and properly held, to amount to an actual levying of war. It is a mistake to suppose, that to constitute a levying of war, an engagement shall actually take' place. Th^ marshalling the people, the arming them, and assembling them in military array, of itself amounts to a levying of war. If therefore, gentlemen, I am right in my notion of the law, the actual levying of war commenced upon the afternoon of Tuesday, the 25th of July, in the town of Mullinahone. Treasonable speeches were addressed to the people by Mr. O’Brien and his friends. It will appear that Mr. O’Brien and those who accom- panied him arrived, I believe, about two or three o’clock; and immediately after them, other gentlemen — or persons apparently of the rank of gentlemen — strangers, and persons whom the evi- dence will show were some of the persons who were implicated in this transaction, and who had no possible business in that town, as we conceive, except to take a part in these proceedings. One of the parties who arrived, not upon this Tuesday the 25th, but upon the following day, in the same locality was a Mr. Terence Bellew M‘Manus, an Englishman. Mr. Whiteside . — I beg your jiardon ; he is an Irishman — he was born in Ireland. The Attorney-General . — He may be an Irishman; but I may call him an Englishman, because he has resided for several years in Liverpool. It will appear before you, that on the 25th of July this person arrived at Kingstown by the Iron Duke steamer from Liverpool. He had a green uniform, which he brought over with him. Whether that was a military uniform, or whether it was an uniform belonging to some political club, I really do not know. He was accompanied from Liverpool by a policeman, who was on the look-out for him. He was supj^osed to be a person who took a very active part in some Chartist pro- ceedings on the other side of the water. The constable however lost sight of him soon after his landing; but his box, containing this uniform — which is the green suit I have mentioned to you — and some fire-arms, was seized. He was one of the persons who THE QUEEN v. WILLIAM SMITH O’BRIEN. 137 took a very active part, with Mr. Smith O’Brien, in the proceedings that afterwards took place in your county, and which I shall now state to you. T mentioned to you what occurred on the evening of the 25th. I believe, after seeing the people, that Mr. O’Brien and some of his friends went out for a short time to take a view of the sur- rounding country, as it was necessary to select some favourable positions for the intended operations. However, he returned to MulHnahone on that evening, and slept at the house of a person of the name of AVright. I think it will appear in evidence, that Mr. O’Brien — I do not know whether on this particular occasion, but certainly on some of these occasions — assumed the right of quartering himself where he pleased. He thought he was in possession of at least that portion of the country ; and he and his associates — but, I think, drawing on their imagina- tion — thought that Mullinahone was a fortified town ; for there was the expression in one of the speeches, “ that the leader of Ireland, or one of its future kings, was then within the walls of Mullinahone. On Wednesday the 2Gth, early in the morning, about eight or nine o’clock, Mr. O’Brien did another act which, in my humble judgment, amounts to a levying of war. He went to the police barrack in the town — that pohce barrack contained only six of the constabulary, and to their credit is to be men- tioned their conduct on that occasion. Mr. Smith O’Brien came armed : he had a pike in his hand, and a parcel of pistols in a belt which he wore ; and he was accompanied by some of his confederates who had followed him from Dublin. One of the persons who accompanied him to the police barrack on this Wednesday, and who did not arrive with Mr. O’Brien, but came after him to the town of Mullinahone, was a person of the name of Patrick O’Donohue. He is a person who, so far as I can understand, has no connexion whatever with this county. He w^as a law clerk, as it is called, and as such, earning a respectable livehhood in Dublin. He however, unfortunately for himself, became a member of some of the clubs ; and was one of those wiio, if my case he true, took the field with Mr. O’Brien, was constantly with him on all occasions, and certainly accompanied him to the police barrack on the morning of AYednesday the 26th of July. Mr. O’Brien there asked the police to join him ; he promised them better pay and better promotion if they should enter his service ; he wanted them to surrender their arms ; he told them that resistance would be to no purpose, and asked them did they not see the display last night ? did they not see the influx of people, and the number of armed men at his com- mand? and he endeavoured to induce these men to join him and surrender their arms. He was armed, as I mentioned to you, himself wfith a pike in one hand, and with a parcel of pistols in 138 SPECIAL COMMISSION, CO. TIPPERARY. his breast. I am very much astray, gentlemen, in my notion of the law, if that act of itself — going about armed, with a large body of people, accompanied by his aide-de-camp and another (for, I believe, there were three of them armed who actually went into this barrack) — does not amount to an actual levying of war. But Williams, the head-constable, told Mr. O’Brien that it would be inconsistent with his duty ; that he would lose his life rather than part with his arms ; and to their credit be it stated, that neither he, nor any of those live men who were with him in this barrack, yielded their arms to the force under the command of Mr. Smith O’Brien. Mr. O’Brien said that he would give the men an hour or two to consider of the matter ; that resistance was out of the question, and that he would return for their ultimate reply. A circumstance occurred, however, very shortly after — Mr. O’Brien thought, I suppose, that it would not be worth his while to force a small party of six to join — which induced him to move from Mullinahone. Accordingly, he sent on an armed body of several hundred people from Mullina- hone to Ballingarry on this Wednesday. He himself followed afterwards on a car, and overtook the party who were going to Ballingarry. I forgot to mention this circumstance to you, that it was considered unsafe that very small bodies of the constabu- lary should be allowed to remain in these out-stations, and direc- tions had been given to concentrate as much as possible ; and, accordingly, the small party of six at Mullinahone had received instructions to fall back upon, I believe, Cashel ; and, in conse- quence of those instructions, as soon as possible after Mr. O’Brien had been there, they left Mullinahone. Mr. Smith O’Brien, however, went from Mullinahone to Ballin- garry. When he ^arrived at Ballingarry, two or three of this party — the strangers, I mean O’Donohue, and some of those — went off in a different direction, towards Garrick. It will be for you to consider what brought them there ; but something occurred on their way to Garrick — I do not mean Mr. O’Brien, but some of those who had been with him — they met a person on horseback (who that person was I am not able to tell you) ; and in consequence of some communication between these persons and the person on horseback, they thought it right to return. They did return to Mullinahone ; and O’Brien having left it, they followed him to Ballingarry, and they all met at Ballingarry rather late in the day of Wednesday the 26th. Mr. Smith O’Brien then had his armed force about him. He spoke to them of the reception he had received in the several places through which he had passed ; he told them all that occurred ; he told them the moment had arrived when they were required to rise as one man — to have a rising generally ; he established a bodyguard about himself; and, in point of fact, the proceed- THE QUEEN y. WILLIAM SMITH O’BRIEN. 139 ings at Ballingarry on this Wednesday amount to an actual levying of war, so far as the organization of a force, having armed men about him, establishing them into sections and divi- sions, amounting to very short of actually attacking ; and the reason there was no attack was, that in point of fact there were no constabulary or military just in that particular locality to be attacked. On that night he stopped, or quartered himself, at the house of a person of the name of John Kavanagh. On the next day, Thursday, he proceeded with several hundred armed men about him, from Ballingarry to Mullinahone, going backwards and forwards between Ballingarry and Mullinahone ; hut, if 1 am rightly instructed, marching at the head of armed bodies, or sending on his people, and in some of these places establishing a guard about himself — in some instances having an advanced guard; but certainly, as far as I can understand, he was arrayed in that military way, that there can be no possible doubt, but that the object was, that it should he the commencement of a rebellion, which would clearly amount to a levying of war. Many of the people had arms, but many had not, and for the purpose of providing those who had not arms Mr. O’Brien directed that if there was any farmer who had arms and would not join, that they should be taken from him ; and in that way he thought he should collect arms for his forces. On this Thursday, after being at Mullinahone for some time they went to a place called Cappoge, which is about a mile, I think, from Mullinahone, towards Nine-mile house. They remained there for some time, and went on, I believe, the same night, to Kille- naule to the house of a Mr. Walsh ; and there, as in the previous places, Mr. O’Brien was attended by armed people ; guards were mounted, and there were sentries walking up and down before the door of the quarters of the general ; and therefore, as far as I can judge from the evidence which will be produced before you from the very first moment of his arrival on the Monday evening, there was a continual levying of war during Tuesday, Wednesday, and Thursday. He was at Killenaule on Thursday night. On Friday he remained there for a considerable portion of the day, guards being mounted as usual. While he was there a scout came in and apprized him that there was a detachment of dragoons on their march. It would not do to let the dragoons arrest Mr. O’Brien, for, if they did, there might be an end to the rebellion then so recently commenced — and, therefore, it was thought advi- sable, on Friday, to erect barricades. We are all aware of what barricades are. On Friday, in Killenaule, by the directions of Mr. O’Brien, barricades w^ere erected across the high road lead- ing into the town of Killenaule, for the purpose of preventing the march of the troops. The dragoons were under the command of a Captain Longmore, who had not received any instructions 140 SPECIAL COMMISSION, CO. TIPPERARY. as to Mr. Smith O’Brien ; in point of fact, the proceedings of Mr. Smith O’Brien, on Tuesday the 25th, and on Wednesday the 26th, had only been received in Dublin on that day, so that no time had elapsed for orders to be conveyed to Captain Longmore. He was on his march from one town to another merely for the purpose of changing his quarters, and not at all looking out for Mr. Smith O’Brien ; but it was thought that his object was to attack this party. Captain Longmore marched up and said, that unless these barricades were removed, he should force his passage. A gentleman came forward, whom, from the description, we beheve to be Mr. Dillon, as the envoy of Mr. Smith O’Brien, and wanted to know whether it was the intention of the officer and his party to attack them for the purpose of arresting Mr. Smith O’Brien ; that if that was his object the barricades would not be removed; but if they did ndt come with a hostile intent the barricades should be removed at once. Captain Longmore replied that they had no orders to arrest Mr. Smith O’Brien, and that they were merely on their march through the country. Accordingly the barricades were removed, and the troops passed on. So far as to actual outrage being committed, there was none. That occurred on Friday, the 28th. That night, after the erection of the barricades in Killenaule, Mr. O’Brien again marched over to the Commons in the neighbour- hood of Ballingarry, with some two or three hundred armed men, and that night he slept at the house of a Mrs. Lacken. He there stated as an encouragement to the people to rise, that he had defeated a troop of dragoons; that Liverpool was up, that Dublin would be up, and that the whole country would be up — in point of fact, that things were all right. This brings us to the morning of Saturday, the 29th of July. On that day it was generally known throughout the country that Mr. O’Brien was in arms. A proclamation had been issued, I think upon the 28th, in Dublin, offering a reward for the arrest of Mr. Smith O’Brien, and several others implicated in these transactions, and on the 29th the proceedings that had been going forward from the Tuesday preceding were known through the country ; and a Mr. Trant, with a force of about forty or fifty constabulary, marched towards the commons intending to attack the rebels, and if possible to disperse them. Arrange- ments had been made, by which Mr. Trant had reason to expect that a large body of constabulary from other districts would have met him about the same time. It so happened, however, that Mr. Trant arrived within view of these people several hours before any other of the constabulary came up. When Mr. Trant found himself in this position, almost surrounded by some two or three thousand armed people — for when the constabulary were known to be assembling, the crowds collected from all THE QUEEN i-. WILLIAM SMITH O’BEIEN. U1 directions ; when Mr. Trant saw that his small party was about being surrounded, he thought it better not to attack the parties assembled. He saw that they were in different divisions and direc- tions, that they were about opposing his march, and that there was every appearance of an intention on their part of attacking him. There were altogether several thousand people, some of them armed with guns and weapons of that description, others with pikes, others with pitchforks, others perhaps not having arms even of that description ; but certainly they were a hostile mob, and calculated perhaps to overwhelm so small a force as he com- manded, which consisted altogether of not fifty men. He thought it inadvisable to attack so large a force. He saw a slate house at some three or four fields from the road, which from its posi- tion he would he able to defend until the arrival of reinforce- ments ; and, accordingly, Mr. Trant desired his men to separate and make as well as they could for this house. They obtained possession of it, and fortified it as well as they could ; they nailed up the doors and put furniture and beds up against them, so that by firing through the windows they should be able to protect and defend themselves from any attack that could he made by Mr. Smith O’Brien and his party. Trant was there for some time when the house was surrounded. Mr. Trant gave positive orders to his men not to fire unless they were fired upon ; but that if they were fired upon to return the fire and protect themselves as best they could. The party consisted of about forty-six or forty-seven men. The house was a two-story house. Mr. Trant himself remained in one of the rooms of the house, and he divided the men as he thought most judicious, having some four or five in each room, in order to prevent any person getting into the house, and in order the most effectually to protect themselves from any attack that might be made upon them. Mr. Smith O’Brien applied to the police, who had directions not to fire, to join him, and told them if they joined him what rewards and encouragements he would give them. Mr. Trant came down for the purpose of meeting Mr. O’Brien, who had asked to see him, but Mr. O’Brien had removed before he came down. After some parleying with the men and trying to induce them to give up their arms and join his party, and pressing on them the uselessness of resistance, Mr. O’Brien, if my instructions are right, himself gave orders to his own men to fire, saying, “ Well, boys, slash away,” which orders were immediately obeyed, and a fire was opened by his followers on the constabulary of the Queen. Of that, gentlemen, there cannot I believe be any doubt. It will be proved beyond question that the order to fire was given by Mr. Smith O’Brien ; but whether the order to fire was given by him or not is a matter perfectly immaterial. He was of the party ; he was the commander of the party ; he was armed ; he was the 142 SPECIAL COMMISSION, CO. TIPPERARY. person who held himself forth as the leader of this force of insur- gent rebels. In his company, by himself, or with his privity and knowledge, orders to fire were given, and these orders were obeyed, and a fire was actually opened. The fire was of course returned. Some few of the country people — I believe two, whether more or not I do not know, but some at least were shot, and there may have been some few wounded; hut most indis- putably this occurred in the presence of Mr. O’Brien, under his eye, by the party of whom he had the command, and by the party whom he had led backwards and forwards armed in the manner that I have mentioned. All that ability and eloquence can do, will be done by my respected friend Mr. Whiteside, in explaining the conduct of Mr. Smith O’Brien ; hut if these facts, this attack on the constabulary, be proved, it will be for you to say whether that was not a levying of war, whether it was not an attack, and whether the object was not for the purpose of a revolutionary character, which gives it the tendency of levying war against the Queen. That occurred at the house of the Widow McCormack, a slate house some short way from the road. It appears, gentlemen — and I mentioned it to you before — that other parties of the con- stabulary were expected to arrive. Mr. Cox, with a party of not more than twenty-two men, marched from Cashel for the purpose of attacking this mob of rebels, and for the purpose of aiding and assisting the constabulary who were coming from other directions. When Mr. Cox and Mr. French, the resident magis- trate who accompanied him, came within some miles of the place, they heard that Mr. Smith O’Brien and his people were at the Commons ; they also heard that the constabulary, to a conside- rable number, under the command of Mr. Trant, were actually besieged in the house of this Widow M‘Cormack, and that the house was surrounded. Mr. Cox and Mr. French, with their small force of twenty-two men, behaved in a most gallant manner, notwithstanding that they saw armed hundreds on either side of them ; still, as they had been informed that a party of constabulary were actually attacked in this house of Mrs. McCormack, they determined, at any risk, to move to the assistance and relief of the party. The moment they approached these people, on their way to the house, they saw preparations made to attack them. They saw parties thrown out from the main body; they saw mes- sengers going backwards and forwards in different directions; they saw that a charge, or something like a charge, of pikes was about to be made upon them ; and Mr. Cox did what he was per- fectly justified in doing — ^lie fired upon those persons who were in arms against the authority of the Queen. Mr. Cox treated them as rebels ; he fired upon them ; he wounded some, I believe. I do not know whether there was one or two ; but the effect of THE QUEEN WILLIAM SMITH O’BRIEN. u;? the determination of Mr. Cox and his small party was this, that the party immediately retired; and Mr. Cox came np to the Widow McCormack’s house, where Mr. Trant and his party had been barricaded. In the meantime, the insurgents, finding that the constabulary were likely to be reinforced, marched off from the Widow M‘Cormack’s house ; so that when Mr. Cox actually came up to that house, he found that though the constabulary were there, the country people had dispersed ; and they picked up several pikes and a gun or two, that had been left there by the country people. This was what occurred, so far as Mr. Cox was concerned. From that time Mr. Smith O’Brien saw that relying upon any co-operation of the constabulary was out of the question. He saw that the assistance, which, from his speeches, it appears he expected he would receive from the constabulary, was nowhere to be found. He found, what I believe to be the truth, that it was the fixed determination of every man in that service to lose his life, rather than swerve from the allegiance he owed to his Queen. That being found to be the case, there was an end to Mr. O’Brien’s expedition. From the time of this unsuccessful attack on Mr. Cox’s party on this 29th of July, Mr. Smith O’Brien was nowhere to be found. I omitted, gentlemen, mentioning a circumstance that occurred on the morning of that 29th of July. A person of the name of Carroll, a policeman, but in coloured clothes, was despatched with a letter or message from Kilkenny to Mr. Trant, who was then in the Widow McCormack’s house. This man was supposed, from his appearance, to be a policeman, or to be a man in the service of the Crown. Accordingly, he was arrested ; and he was desired by the persons who arrested him, to consider himself as a pri- soner. He was dismounted ; and Mr. O’Brien made use of his horse during a portion of these transactions on this 29th of July. After keeping Carroll for several hours, they thought it incon- venient to be burdened with a prisoner ; and, accordingly, they allqwed him to go at large. On his going away, he met Mr. Smith O’Brien mounted on his own horse, which Mr. O’Brien returned to him. But the fact was, that they actually made a prisoner of a man who was in the pay and allegiance of the Queen. Of course he had a full opportunity of observing this armed party by whom Mr. O’Brien was accompanied. Kow, gentlemen, if I am right in the facts I have stated — and my intention has been certainly merely to state, and not to over- state, a single fact — I do not believe that much doubt can remain but that I have established a sufficient degree of force and violence to amount to an actual levying of war. I cannot exactly anti- cipate what will be the course of defence which may be taken by my friend, Mr. Whiteside; but 1 think it very probable, with his 144 SPECIAL COMMISSION, CO. TIPPERARY. very great ability, and knowledge, and judgment, that he will scarcely argue that, in point of fact, there did not occur circum- stances amounting to a levying of war ; that there was not force and violence enough for tliat purpose ; hut, as has been frequently attempted in similar cases, he may endeavour to allege that what was done by Mr. O’Brien was not with a revolutionary intent — that Mr. O’Brien’s object was not to effect a revolution — that it was not to effect any change in the government or the constitu- tion of the country — because, as a lawyer, which Mr. Whiteside undoubtedly is, he must know very well that if such was the object of Mr. Smith O’Brien, no possible doubt can exist, but that what has occurred amounted to a levying of war, within the statute of Edward 111. Accordingly, it is that I have thought it right to mention to you, and I shall prove them in evidence, those antecedent matters and arrangements which will lead you to the conclusion, independently of the facts themselves, that the object of Mr. Smith O’Brien and his companions, in these transactions, must have been for a purpose of a revolutionary character. But, gentlemen, if there could be any doubt whatsoever of the intent, documents were found with Mr. O’Brien in his posses- sion, and a document which will be proved to be in the hand- writing of Mr. O’Brien, that, in my humble judgment, relieves this portion of the case from every possible difficulty. I told you that on Mr. O’Brien’s arrest, which took place on Saturday, the 8th of August, in the town of Thurles, that Mr. O’Brien stated that he had a trunk or a portmanteau which he had left at the house of a Mrs. Doheny; and the way that he happened to mention this circumstance was this. Mr. O’Brien I believe, in consequence of the failure Mr. Whiteside . — This was not after his arrest. The Attorney- General . — It occurred just contemporaneously with his arrest — after his arrest of course. I stated, gentlemen, that he was not to be found; that a reward was offered for his apprehension on the 28th of July. These transactions that I have mentioned having occurred on Saturday the 29th of July, and a reward being offered for the apprehension of Mr. 0’Brien,The armed bodies separated; and I believe, in consequence of the total failure of the enterprise, and a notice or proclamation being issued apprizing the country people of the danger they encoun- tered by harbouring, or succouring, or receiving into their houses the persons who had been engaged in these transactions, this unfortunate gentleman, Mr. O’Brien, found himself placed in a situation really of very great pain and difficulty. His armed followers had dispersed, and he could not of course make any way against the force which was sent to oppose him ; and therefore he had only to console himself for his failure, and manage in the best way he could to avoid arrest. That he did succeed in doing. THE QUEEN WILLIAM SMITH O'BRIEN. 145 notwithstanding all the exertions that w^ere made for his arrest, from Saturday the 29 th of July until the following Saturday, when he was found in the town of Thurles, close to the railway station, I believe with the intention of going to Cahirmoyle, in the county of Limerick, where his residence is. Upon being arrested several papers were found on his person. You of course know enough of the criminal law to be aware of this, that if a charge of a serious nature is made against an individual, and particularly when that charge is treason, that upon his arrest the party is searched for the purpose of ascertaining whether he may have on his person any documents or articles that may be evidence of his guilt. It did so happen on this occasion that on Mr. O’Brien being arrested, there were several papers found upon his person, and I think, amongst those papers was an ad- dress, dated 10th May, 1848, from a meeting of citizens held at Philadelphia, in America, olfering assistance and co-operation, and evidently, as I read it, showing that, in the event of an outbreak of this description, some assistance was to be received from them. Other papers were found, and amongst them the paper which was sent to him by Mr. O’Gorman, which I have mentioned already. It is written on the 22nd of July, and it says — “ My dear Sir, Special sitting of the house. Lord J. R. to move for leave to bring in a bill to empower the Lord Lieutenant of Ireland to apprehend and detain such persons as he shall suspect guilty of treasonable designs. Order for the suspension of the Habeas Corpus Act. Directions to arrest W. S. O’Brien. Such is the express by telegraph, as stated to me through The Freeman, “ Believe me faithfully yours, “ Richard O’Gorman.” That, gentlemen, was the despatch, as I mentioned to you, which was sent to him on the 22nd of July, written by young Mr. O’Gorman, and found upon his person. Other documents were also found upon him — addresses from different clubs and different bodies — amongst the rest there was one from the Ennis- corthy club, where he had gone on the very first day. It is an address from the members of the John Mitchel Club. John Mitchel was a person who had been transported for felony, as I have mentioned to you already. It is as follows — “TO william smith o’brien, esq., m.p. “ Sir, “The members of the John Mitchel Club, at Enniscorthy, beg to offer their respectful congratulations and hearty welcome upon this your first visit to the county of Wexford. They do so as devoted followers of L 146 SPECIAL COMMISSION, CO. TIPPERARY. your manly principles, as ardent admirers of your virtue and patriotism, and as men who cherish deep and lasting gratitude towards you for your great services and greater sacrifice to the cause of our dear native land. They wish also to show you their determination to stand by their country and their country’s friends, in any and in every extremity. They have seen with lively indignation the atrocious tyranny exercised by the Government in the transportation of John Mitchel, the bravest of the brave; in the imprisonment of those true and active patriots, John Martin, Gavan Rufiy, Richard Dalton Williams, and Kevin O’Doherty; and in the prosecutions sustained by yourself and other distinguished and honourable men. They have long felt the oppression and insolence of the Government to be well-nigh unbearable, and they could, for their own parts, be well content to put a speedy end to this tyranny for ever at the cost of their lives. “ To you, sir, above all your able and intrepid co-patriots, the people look for guidance in this time of trial and difficulty. We know that you are a sure guardian of the honour and welfare of Old Ireland, and they feel convinced that no motives of temporary expediency, sickly and half- sided humanity, will ever prevail with you to stand between them and their enemies, and stay the just vengeance of an oppressed and plun- dered people. “ Signed on behalf of the members, “ W. Mooney, V.P. “ R. Williams, Sec.’' That is one of the documents, actually signed on behalf of the members, by their president and secretary, that were found by General Macdonald on the person of Mr. Smith O’Brien. In the trunk there was found a letter written to Mr. O’Brien by this Mr. Charles Gavan Duffy, whom I mentioned to you, w^hich shows to my mind the object of these people beyond a doubt. It is dated “ Saturday;” it has no actual date; but from the circum- stances referred to in the letter it is perfectly plain, and the evidence will satisfy you, that it was written in the latter end of the month of June, or the early part of the month of July, when he was going on this Cork expedition. It says — “ Saturday. “ My dear Sir, “ I am glad to learn that you are about to commence a series of meetings in Munster. There is no half-way house for you. You will be the head of the movement, loyally obeyed; and the revolution will be conducted with order and clemency ; or the mere anarchists will prevail with the people, and our revolution will be a bloody chaos ” Mr. Whiteside . — I object to that, Mr. Attorney, being evidence. The Attorney- General — I mean to submit it as evidence. It was found in his portmanteau, in a portmanteau that was locked, the keys of which were found on his person at the time of his THE QUEEX WILLIAM SMITH O’BRIEN. 147 arrest, it being the act of Mr. Charles Gavan Duffy, his co- conspirator. The letter proceeds — You have at present Lafayette’s place so graphically painted by Lamartine, and I believe have fallen in Lafayette’s error — that of not using it to all its extent and in all its resources. I am perfectly well aware that you don’t desire to lead or influence others ; but I believe, with Lamartine, that that feeling which is a high personal and civic virtue, is a vice in revolutions ; — one might as well, I think, not want to influence a man who was going to walk on thawing ice or to cross a fordless river, as not to desire to keep men right in a political struggle, and to do it with might and main. If I were Smith O’Brien I would strike out in my own mind, or with such counsel as I valued, a definite course for the revolution, and labour incessantly to develop it in that way; for example, your project of obtaining signatures to the roll of the National Guard, and when a sufficient number were procured, and not sooner, calling the Council of 300, was one I entirely relied upon. But it has been permitted to fall into disuse, and would scarcely be revived now. The cliibs, how- ever, might take the place of the National Guard; and the proposal in your letter of a definite number of clubs being formed, would just suit as well if it were vigorously and systematically carried out, each day adding an item to it, and all the men we could influence employed upon it. Forgive me for urging this so anxiously upon you; but I verily be- lieve the hopes of the country depend upon the manner in which the next two months are used. There is not a town in which could not be found a band of missionaries to organize the neighbouring counties. Every club has its active men fit for this work ; and it is only by applying all our force to it that we will succeed.” In what were they to succeed ? In what revolution was it pro- posed that Mr. O’Brien should fiU the place of Lafayette ? What revolution was it that he was to be the leader and the head of, “ loyally obeyed ?” I ask my friend, Mr. Whiteside, to answer that question, when stating the case of this gentleman. You will be told this is not the letter of Mr. O’Brien, but a letter of Mr. Duflfy, written to Mr. O’Brien. I ask you, gentlemen, was this letter acted upon by Air. O’Brien ? Did he follow the advice given to him here ? Did he place himself at the head of the movement. For what object, and for what purpose was he organizing these clubs ? Independently of the fact of organiza- tion, it wiU be proved to you out of the lips of Air. Smith O’Brien himself, that his objects were revolutionary. For what object, when the suspension of the Habeas Corpus Act was known, was the resolution come to to establish a directory of five ? Why was the directory of this body, if they were peaceful and loyally dis- posed, reduced to the number of five ? Because it was thought that one and twenty persons was rather a large number, and that five could manage better when the parties had come to the determination of having recourse to war. But, gentlemen, if there was not a particle of evidence in this L 2 143 SPECIAL COMMISSION, CO. TIPPERARY. case but that which I am now about laying before you, it appears to me that it is of itself conclusive in this case. That is a letter written by Mr. O’Brien himself, in his own handwriting, and dated at the Commons, on the 29th of July, before the attack upon the constabulary, and before the arrival of Mr. Cox. I told you that Mr. O’Brien’s quarters were principally between Mul- linahone, Killenaule, Ballingarry, and the Commons. You are aware that there are a good many coal mines in that district, in which of course there are a number of men employed. A great number of the persons who armed and joined Mr. O’Brien in all the proceedings, from Tuesday the 25th, up to, and including Saturday, the 29th of July, were persons from this colliery dis- trict. Mr. Smith O’Brien thought perhaps that the owners of this colliery might think it a little hard to pay the men, not for doing the work of the company, but for lighting his battle ; and accordingly, he wrote, and delivered himself to one of the agents of the colliery, the letter which I am now about to read. I pray your attention to it. It shall be proved by the man who saw him write it ; by the man to whom it was delivered ; by several who are acquainted with the handwriting of Mr. Smith O’Brien ; and in my humble judgment it is conclusive upon the whole of this case. It was written on the morning of the 29th, at the coUiery, and is as follows : — “ Collieries, July 29, 1848. ‘‘Mr. William Smith O’Brien presents his compliments to the Direc- tors of the Mining Company, and feeling it incumbent on him to do all in his power to prevent the inhabitants of the collieries from suffering inconvenience in consequence of the noble and courageous protection afforded by them to him, takes the liberty to offer the following sug- gestions ” The suggestions are certainly not like what would come from a man in ordinary circumstances. “ He recommends that for the present, the whole of the proceeds arising weekly from the sale of coal and culm be applied in payment of men hy contract, employed in raising coal and culm. “ He recommends that a brisk demand be encouraged, by lowering the price of coal and culm to the public ” So far so well. “In case he should find that the Mining Company endeavour to destroy the people by withholding wages and other means, Mr. O’Brien will instruct the colliers to occupy and work the mines on their own account, and in case the Irish revolution should succeed, the property of the Mining Company will be confiscated as national property. “ On the contrary, if the Mining Company observe a strict and honour- able neutrality, doing their utmost to give support to the population of this district during their present time of difficulty and trial, their pro- perty shall be protected to the utmost extent of Mr. O’Brien’s power.” THE QUEEN t;. WILLIAM SMITH O'BRIEN. 149 Now, gentlemen, personally, I have not the honour of your acquaintance, hut I believe I address men, at least, of ordinary intelligence. A good deal may be said as to the little reliance you are to place upon the evidence of, above all, a man who comes forward to betray his associates in guilt. You will be told that no jury will be safe in acting upon the evidence of such a person ; you will be told that the constabulary, who were rewarded for their correct and brave conduct in some of these transactions, are in the pay of the Government, and that you ought not to believe the colouring that they will give ; you will he told that all the witnesses who will be produced before you are men under the influence of the Crown, and that the Crown are spending money profusely for the purpose of procuring evi- dence to establish the guilt of Mr. William Smith O’Brien ; but I ask my learned friend what answer is to be given to this letter in the handwriting of Mr. Smith O’Brien himself? In what capacity, except as the leader of this revolution, had he a right to dictate to this company as to the raising of their coal and culm, and the management of their collieries ; or what right had he to say, in the event of such and such things not being done, that he would give orders to the colliers to occup}^ and work the mines on their own account ? Now, let me ask you, is that the act of a private individual, or is it the act of a man who fancies himself the leader of a mob — the leader of an insurrection, and who has the right to force his orders to be obeyed ? But, above all, what does Mr. Smith O’Brien mean by this, that in such an event, namely, their interfering with the people, and ordering the mines not to be worked, “ in case the Irish revolution shall succeed, the property of the Mining Company will be confiscated as national property ?” When was this letter written ? On the morning of the attack on the constabulary ; before the attack ; before the constabulary were blockaded in that house of the Widow McCormack ; before Mr. Cox and his party were attacked ? Did not Mr. Smith O’Brien put himself forward in that written document as the leader in this revolution ? And what revolu- tion was he then contemplating ? It is to me immaterial if one of the objects (and on that probably some statement may be made) of Mr. O’Brien was, as I have no doubt it was, to prevent himself being arrested. To be sure if he was arrested he fancied there would be an end to the revolution. 1 say that he here puts himself forward as the leader of the revolution, calls it a revolution, and threatens the man who would assert the rights of private property with a confiscation of his property as national property ; but if, forsooth, they do all that Mr. O’Brien suggests, and thinks right, that in such case, in the event of the revolution succeeding, “ the property will be protected to the utmost extent of Mr. O’Brien’s power.” What power would he have to protect 150 SPECIAL COMMISSION, CO. TIPPERARY. the property, I ask, except this, that he was to be, if not the leader, at least an active member of the new government in this new state of things which was to arise as the elFect of this revolution ? This, gentlemen, is the case of the Crown. I have felt it my duty to state shortly — not intentionally, certainly, over-stating any thing — the facts which I believe will be proved before you. You will probably have but two questions to determine ; first, was there such a rising in arms, accompanied by a sufficient degree of ’Violence, to amount to an actual levying of war ? If I have not drawn altogether on my imagination, the evidence of the wit- nesses will leave no doubt upon that. Then, the second question will be, was the object of a general insurrectionary character, no matter for what that insurrection was to be ? I say confidently if I had not a particle of evidence in this case, except that letter, that it would be conclusive. It is to me a matter of perfect indifference that he wanted to guard against his own personal arrest. I have no doubt that the measures of the Government in suspending the Habeas Corpus Act, expedited the period at which this intended revolution was to have taken place. I believe that it was a cause of complaint that they were obliged to take the field rather earlier than they intended. If the Government had even waited until all the operations were completed, until upon one given note all these places in the country had risen, I do not entertain a shadow of doubt but that the loyalty of the great bulk of the people, the active measures taken by the Government, in pouring into the country the military, the extreme good conduct of the constabulary, would have brought us through it, no matter what arrangements or opportunities Mr. Smith O’Brien and his party had for choosing their time and place. I do believe, and I can only say, it is most fortunate, if such has been the effect, that the suspension of the Habeas Corpus Act expedited the matter, and obliged these rebels to take the field at a time when their arrangements were not completed. And it is a matter of most sincere con- gratulation to us all, that during the whole of these proceedings not one of the constabulary or military, or any person in support of law and order, lost their lives. Unhappily, some two or three, or more of the unfortunate people who did join Mr. O’Brien in this rising, have lost their lives in the open field. That is very much to be regretted, but stiU it is a source of congratulation to us, that the loss of life has not been very considerable, and such as it has been, it has not been on the side of law or order. I find, gentlemen, that I have omitted one document that was found upon the person of Mr. O’Brien ; it is not very important in itself, but still it is a little item in the whole of this case. On his person was found, by General Macdonald, a little pencil map, THE QUEEN t;. WILLIAM SMITH O’BRIEN. 151 containing the situation of the different localities, being evidently a sketch of the portion of the country which was the scene of his operations. It is not in itself, perhaps, a matter of very great consequence, but it is just as well to state it. These, gentlemen, are the facts of the case, and if I shall prove them to your satisfaction, I entertain not a shadow of doubt that you will discharge your duty, however unpleasant that duty may be, by finding a verdict of guilty. If, on the contrary, there is any doubt in this case, of course ]\Ir. O’Brien is entitled to the benefit of it. Mr. John George Hodges, sivorn — examined hy the Solicitor-General. Mr. Hodges, what is your general employment ? — I am a short-hand writer. Do you recollect the first time you attended at a meeting of the Irish Confederation ? — I do perfectly well. Will you tell the jury, if you have a memorandum of it, what was the date of that meeting ? — The 15th March, 1848. Mr. Whiteside. — I suppose my learned friend is about giving in evidence the proceedings of the Confederation ; I submit to your lordships this evidence cannot be given. The Lord Chief Justice. — You cannot object till there is some question asked about it. Mr. Whiteside. — Very well, my lord. The Lord Chief Justice. — It is quite plain, that unless Mr. O’Brien was present at this meeting, and is connected with this Confederation, he cannot be affected by the evidence. Mr. Whiteside. — That is not the ground of my objection, my lord ; it refers to the precise presence at the meeting. The Solicitor- General. — The first few questions I ask cannot affect you; they are merely preliminary. {To the witness.) — You attended at a meeting of that Irish Confedera- tion on the 15th March ? — I did. What hour was that held ; about what time ; morning or evening — In the evening, about seven or eight o’clock ; I am not quite certain as to the hour. Did you on that occasion see Mr. O’Brien there ? — I did. Had you any conversation with him with respect to the business that brought you there? — I had. What was it you stated to him as to the nature of your visit ; for what purpose did you say you came ? — Previously to the meeting I re- quested an interview with Mr. O’Brien, and when Mr. O’Brien came I was introduced to him by Mr. Halpin, I think, or some other gentleman ; and there were several other gentlemen also present at the time. What did you state to Mr. O’Brien ? — I stated to Mr. O’Brien that I had been sent by the Government to take notes of the proceedings, and that my duty was strictly confined to taking notes of the speeches, and to identifying the persons making those speeches. 152 SPECIAL COMMISSION, CO. TIPPERARY. Do you recollect what reply was made by Mr. O’Brien to that com- munication of yours 1 — I really do not exactly recollect the words. Mr. O’Brien received me very courteously, and expressed great confidence in me, and subsequently introduced me to the meeting as attending to take notes for the Government, in very complimentary language, for which I beg to express my thanks to him. Do you recollect the substance of what he said ? — I do not recollect, exactly. However, he mentioned the circumstance to the meeting of your at- tending as a reporter for the Government'? — He did, with great courtesy, for which, in the situation in which I was then placed, I was very much obliged to him. Now, do you recollect, Mr. Hodges, besides seeing Mr. O’Brien there, any other gentlemen who were in the habit of making speeches. I am not asking you what they said ? — I saw Mr. Meagher there. That is Mr. Thomas Francis Meagher? — It is. Anybody else? — Mr. Richard O’Gorman, jun. IVie Lord Chief Justice. — That night, Mr. Hodges? — That night, my lord. There were also present, Mr. Charles Gavan Dufiy, Mr. M^Gee, Mr. Dillon, and Mr. Halpin, who was the secretary. There were many others, but those are all I can speak to. The Solicitor-General. — Did you hear any speech made on that even- ing by Mr. O’Brien ? — I did. Were you accommodated with a position at that meeting of the Con- federation which gave you a facility for taking notes ? — I had the best position they could possibly give me. Then did you take a short-hand note of what was said by Mr. O’Brien on that evening ? — I did. Have you transcribed those notes since ? — I have. Have you that transcript, or as I may call it translation, here ? — I have it here. And have you your original short-hand notes to refer to in case it should be necessary ? — I have not got them here ; I have left them at my lodgings in the town ; and the reason of my doing so was, that on the occasion when I was last examined, one of my books was lost, and therefore 1 thought it better not to bring the original notes into Court ; but if they are wanted I can send my son for them who will get them in a few minutes. You lost a book in Court on the last occasion that you were examined ? — I do not know where I lost it ; I am not sure that it was in Court. Now will you be good enough to take the transcript of the speech and state what Mr. O’Brien said upon any subject at the meeting of the Confederation that night ? Mr. Whiteside. — I object, my lords, to this evidence being- received. I respectfully submit to your lordships that it is quite plain the history of this Confederation cannot now be given in evidence. My lords, if there is any thing at all about the crime of high treason The Lord Chief Justice. — The question is that he should state that speech. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 153 Mr. Whiteside. — Yes, my lord, I quite understand that ; and I shall submit, with great deference, that that speech cannot be given in evidence upon this indictment. Distinction and pre- cision are things required by the law in an indictment for high treason, over and beyond every other crime. The reason of that is stated in a single sentence by Mr. Justice Foster. In page 246 he says — “ The rule of rejecting all manner of evidence in criminal prosecu- tions that is foreign to the point in issue, is founded on sound sense and common justice ; and no man is bound, at the peril of life or liberty, fortune or reputation, to answer at once, and unprepared, for every action of his life. Few, even of the best of men, would choose to be put to it; and had not those concerned in state prosecutions, out of their zeal for the public service, sometimes stepped over this rule, in the case of treasons, it would, perhaps, have been needless to have made express provisions against it in that case, since the common law, grounded on the principles of natural justice, hath made the like provision in every other.” Now, my lords, there are two distinct species of counts in this indictment, one for levying war; and in those counts several overt acts are set out ; and we are quite satisfied to abide by and answer the charge as sustained by those several overt acts. No question arises upon that branch of the indictment. The entire mass of matter now referred to, and the reception of these speeches of Mr. O’Brien, all turn upon the sixth count of this indictment ; that is, upon that one count all this mass of evidence is to be introduced. I venture to assert, that there is not in the whole annals of the criminal law, an instance of such a count, in such an indictment as this, warranting the introduction of this mass of evidence. The sixth count is for compassing the death of the Queen. That, of course, being the intention of the mind, the design or intent to kill the Queen must he made out by some overt acts. Now, all the overt acts are set out in the former counts of the indictment. I make no complaint of that ; but there are hut three lines in this sixth count, upon which all this mass of evidence of speeches is to be introduced ; and where it is to stop I cannot guess. This sixth count, having stated the intent to kill the Queen, goes on to say — “ The said William Smith O'Brien Terence Bellew MAIanus James Orchard Denis Tyne and Patrick O’Donnell as such false traitors as aforesaid on the said seventeenth day of July in the twelfth year oFthe reign aforesaid and on divers other days between, that day and the thirtieth day of the same month of J uly with force and arms at the said parish of Ballingarry in the said county of Tipperary maliciously and traitorously did assemble meet consult and conspire amongst themselves and together with divers other false traitors whose names are to the said jurors unknown to devise arrange and mature plans and means to stir 154 SPECIAL COMMISSION, CO. TIPPERARY. up raise make and levy insurrection rebellion and war against our said Lady the Queen within this realm and to subvert and destroy the con- stitution and government of this realm as by law established.” These are the only words then, upon which I suppose it will be contended that these overt acts of an intent to kill the Queen, can be given in evidence. It is a charge of conspiracy, I sup- pose; and under that happy phrase conspiracy,” in the language of Mr. Justice Foster, the whole history of Mr. O’Brien’s life may be given in evidence against him here to-day. If that is law, of course I will at once sit down, without arguing the ques- tion any further. My lords, we have several instances of trials for conspiracy both in this country, and in England. JYow, suppose that this indictment was for a conspiracy, and these speeches were laid as overt acts, how ought this indictment to be framed ? because it is impossible to suppose, by the use of that single word in the indictment, that there was any thing to lead Mr. O’Brien to believe that such evidence would be resorted to. They are not introduced or mentioned in the indictment as overt acts. Now, in what form have those indictments — those great land-marks of our law — been laid in former cases of treason ? I will give your lordships two or three instances. The latest, and perhaps the best, is an indictment to which, though I, for one, was opposed to it at the time, I conceive to be as honest as any one that can be found in the books. It is the indictment, in the case of the Queen v. O’Connell, for conspiracy. Every one of the speeches was there set out, from the beginning to the end, which were relied upon; and the complaint made of it was, that it was so long; but there was not a speech which by day, time, and place, was not specified. In addition, too, the traverser had his bill of particulars, so that he came to trial prepared to deal with the case alleged against him. If there were no other case in the books, I would ask, what difference is there between the present case and that ? And would it have been justifiable in the case of the Queen v. O’Connell, for the then Attorney-General to draw up his indictment and to say, that the prisoner did conspire and counsel to do something, and then bring up his speeches at Clonmel, at Cork, and over the whole of Ireland, and call upon him to answer them ? I submit, my lords, that is a clear authority for the principle that I submit to the Court. But there are many more cases, and very many important ones ; and I cannot go wrong in stating an objection which was taken by the late Lord Chancellor of England. Sir Charles W etherell and Mr. Copley defended Watson on a charge of high treason. The prisoner was indicted for high treason; he had a waggon in Smith- field, and he made a speech in that waggon before he marched to THE QUEEN WILLIAM SMITH O’BRIEN. 155 the Tower. Now, counsel insisted in that case, that the speech then made by Watson ought not to be received in evidence against him. The indictment in that case had set out, that he did con- spire to do certain acts by, among other matters, seditious speeches uttered by him ; and counsel there contended, that every word ought to have been fully set out — that they ought to have given the whole speech, because it was not enough to set out that he did make a speech, or certain speeches ; they ought to have given at least the substance of the speeches, if not the very words them- selves. And there the Court held, that he had not, from the seve- ral speeches laid in the indictment, a knowledge of the crime that he had to answer, and they were not received. Now, I beg of the Court to consider the distinction between that case and the pre- sent. I perfectly agree that every speech made by Mr. O’Brien, as an exposition of the overt acts charged in the indictment, may be given in evidence against him — that what he said at Ballingarry may be proved against him, because it explains the act done there at the time and charged in the indictment ; but I do submit to your lordships, that Mr. O’Brien is not to be called upon, on a trial for his life, to answer for all the past speeches of his life. There are some other instances to the same effect, my lords, in the books. Hardy and Tooke’s cases, both memorable instances, entirely rested upon a conspiracy. The indictment against them charged, that they did, by various speeches, pamphlets, letters, and the like, conspire to carry out their design. The case of Francia — your lordships may remember it — is a very singular instance of the caution with which they admitted evidence. The indictment in that case was for conspiring and adhering to the Queen’s enemies ; and it set out, that by a certain letter he invited them to invade England. There was a long argument whether that letter could be received in evidence. The defen- dant’s counsel argued that it could not, on the ground that the entire of the letter should have been set out in the indictment. It was ultimately decided, that the averment was large enough to receive it. Here there is no averment at all ; there is nothing of any kind to show the prisoner what evidence is intended to be relied upon — not a tittle. It does not follow the approved precedents, but adopts this extraordinary phraseology in the middle of language referring to other overt acts. They do not use the same words as were used in former indictments, or give us the substance of the speeches, as in O’Connell’s case ; they do not even say that he made a certain speech. What would your lordships consider, as men of sense, that the prisoner would understand by these words, except that the speeches to be given in evidence were the speeches that he made at Ballingarry and MuUinahone, and the district which he traversed between the days named in the indictment ? Could he imagine that they purposed to begin with March, 1848 ? Suppose they had begun 156 SPECIAL COMMISSION, CO. TIPPERARY. with March, 1801 — for where is the line to be drawn — could they be held to be evidence? Why, if so, upon this principle the Attorney-General may give in evidence the whole speeches of his life; and then this consequence follows — that the several speeches made by him, which may not be treason, or even sedi- tion, speeches made upon casual occurrences by him, may at the end of his life be brought in evidence against him on a charge of compassing to levy Avar, or intending to kill the Queen. I submit, my lords, therefore, that all these speeches, contradistin- guishing them from the speeches made at the time of the acts charged in this indictment, cannot be received as evidence against Mr. Smith O’Brien. The Attorney- General. — Now, my lords, I very respectfully submit that this evidence can be received ; it is a speech made by the gentleman himself. It appears to me perfectly plain, that it is not at all necessary to have recourse to the counts of conspi- racy ; it is clearly admissible under the counts for levying war. Your lordships recollect that it is conceded that a count for levying war may merely state that the parties arrayed in a hos- tile and warlike manner did in point of fact levy war. Well, then, every act of the person accused is certainly receivable in evidence for the purpose of showing with what object a man did certain acts. Now, let us suppose that a man is accused of the crime of murder ; it is merely charged that he did on a particular day assault an individual and murder him. I never heard it objected to yet, that the prosecutor could give not in evidence a previous statement of that man, showing his intention to commit that offence, or showing previous ill-will on his part, from which the jury might come to that conclusion. One of the matters here upon the counts for levying war is, with what object aU these acts were done ; it is necessary, therefore, to prove what was Mr. O’Brien’s intention. I cannot anticipate at this moment what the defence will be. Assuming that, we do not give this statement of Mr. O’Brien as any evidence in itself of the fact of levying war, but for the purpose of showing the object and inten- tion in his mind. We think it material to show by what object he was actuated, and as giving a colour to, and accounting for, his subsequent conduct in these transactions. Also, my lords, I think it material — this being a speech dehvered in the pre- sence of several individuals whom we mean to connect with Mr. O’Brien as parties concerned in this outbreak which took place in the month of July — as showing that at the time the speech was dehvered they were making preparations for the object in question. Therefore, upon that ground alone, it appears to me that this speech ought to be admitted in evidence on the count for levying war. In Watson’s case Lord Ellenborough says — “ Can there be a doubt that this is evidence under the overt acts for levying war? It is evidence, quo animo the thing was done.” THE QUEEN t- WILLIAM SMITH O’BRIEN. 157 Mr. Whiteside. — That was spoken at the time of the act. The Attorney-General. — I say that this was spoken with refe- rence to the act of levying war, not at the time of the act, for the time had not arrived ; but it shows that the intention of the parties was to have a revolt at no distant time. The Solicitor- General. — The question is, quo animo the thing was done. The Lord Chief Justice. — W^e think it admissible in evidence, not as proving an act, but as showing the intention by which he was actuated. Lord Chief Justice Doherty. — Will you allow me to say, that though words are not to be taken in reality as constituting in themselves overt acts, they are always evidence of the speaker’s intention in doing any act ; and, in that manner, words which are harmless in themselves, may be considered otherwise. In that case, however, it is to be remarked, that words are not the overt acts ; but the thing done may be properly explained by the words the speaker may have used. In this case the act is levying war ; and the question is, with what intention that was done — whether it was in furtherance of any particular design, or whether it was founded on any preconceived intention of levying war ? Mr. Whiteside. — I never meant, as Mr. Attorney seems to think, to controvert the authority of Watson’s case. Watson made a speech in a waggon in Smithfield immediately before he marched on the Tower, which was sought to be given in evidence. Sir Charles AVetherell and Mr. Sergeant Copley objected to the reading of that speech, as not being evidence quo animo the act. My Lord Chief Justice of the Common Pleas has mentioned, that if a man makes a speech it may be received in evidence to ex- plain an act subsequently done. What I was very respectfully submitting to your lordships was this, that a speech made, not at the time of doing any act, not explanatory of an act done, but made six months before the doing of it, cannot he admitted in evidence against the prisoner ; because, by a like principle, speeches made six years before the time of the doing of the act at Ballingarry, may be made evidence against the prisoner in this case. That, my lords, certainly Watson’s case does not prove. Mr. Scott. — That is a question as to the value of the evidence, but it does not at aU affect the question of its admissibility. The Lord Chief Justice. — It is our opinion that the evidence ought to be received, as showing the intention of the party. Mr. Whiteside. — Will your lordships permit me to remind you that the Court has a power which it did not possess a short time previous to the passing of the recent act — namely, to reserve for the consideration of the full Court any point of evidence on a criminal trial, if your lordships please so to do. Perhaps your lord- 158 SPECIAL COMMISSION, CO. TIPPERARY. ships would be good enough to take a note of my objection, and reserve the point. The Attorney-General . — That is only in cases where the Court may consider it right so to do. The Lord Chief Justice. — Mr. Attorney, we have not at present taken a note. Mr. Justice Moore We will take a note of the objection, and of course the ruling upon it. Mr. Whiteside . — I do not know whether it is proposed that this speech should be read in evidence as having been delivered in furtherance of the treasonable intent. The Attorney-General. — Yes, I stated that. The Lord Chief Justice . — I think it receivable now, upon the assumption that the levying of war wiU be proved ; and that then it wiU remain to show that the purpose was such as to make it criminal. The distance of time at which the speech was de- livered may affect the value of the evidence, but that is no reason why we should reject it altogether. The Attorney-General . — It is only for that purpose, my lord, that we propose to give it in evidence. Mr. Whiteside . — What is the date you begin with ? The Solicitor-General. — 15th March. Mr. Whiteside . — What year ? The Solicitor- General. — 1848. [To the witness). — Now, Mr. Hodges, will you just state from your notes, as transcribed by you, what Mr. Smith O’Brien said upon that evening, at the meeting of the Confederation h The Lord Chief Justice. — Mr. Solicitor, have you copies of these speeches ? It is very important that we should have them. The Solicitor- General . — Your lordships shall be furnished with copies. Lord Chief Justice Doherty . — What is the date ? The Solicitor- General. — 15th March, 1848. Mr. Whiteside. — No, no ; don’t you give it. Witness. — 15th March, 1848, my lord. The Lord Chief Justice. — Now, Mr. Hodges, proceed. Witness {reading) — Mr. Smith OBrien . — A duty has been imposed upon me by the council of this Confederation which I regard as one of the most important that has ever, during the course of my life, fallen to me to discharge. It is, to move an address of congratulation to the French nation in reference to the events which have recently taken place in France. But before I proceed to submit that address for your considera- tion, I feel it incumbent on me to make some observations upon our own domestic affairs. I have, in the first place, to read to you an address which ought indeed to have been submitted to the last meeting, which the council have received* from the Confederates at Youghal. It is most THE QUEEX V. WILLIAM SMITH O’BRIEN. 159 admirably written, and expresses the sentiments entertained by a large majority of the Confederates of Ireland — ” I think it right to state, my lord, that this is a printed address which I have pasted in. I received it at the time from the secretary. Was this an address which Mr. O’Brien read as part of his speech to that meeting ? — It was, my lord. Mr. Whiteside . — Who gave you that printed paper h — I think it was Mr. Halpin.’ The Solicitor-General . — He was the secretary of the Irish Confedera- tion % — Yes. Mr, Whiteside . — Are you sure that Mr. Halpin gave it you in the presence of Mr. O’Brien ? — I think he did. Will you swear it h — 1 will not positively j but it was given to me at the meeting, and Mr. O’Brien did not leave the meeting. The Solicitor -General . — It was given to you at the meeting by Mr. Halpin, while Mr. Smith O’Brien was present? — Mr. O’Brien did not leave the room during the meeting. Mr. Whiteside. — It does not follow that every thing which is thrust into a person’s hand at a public meeting, is to be evidence against a man on trial for his life. The Lord Chief Justice . — Did you hear Mr. O’Brien read that address? — I did, my lord. The Solicitor -Genercd . — You heard Mr. O’Brien read it; did he read it as part of his speech ? — Yes. The Lord Chief Justice . — Did you take a note of what he read ? — No, my lord ; I followed this paper through while Mr. O’Brien was reading it, and I have made one alteration in it which was a blunder in the print, which Mr. O’Brien corrected, and that is how I can prove it to be the same. Are you positive, from having accompanied him while reading it, that it is identically, with that exception, the same as what he read? — A’es, my lord, I am. The Solicitor- General — That makes it clearly evidence. The Lord Chief Justice. — We are of that opinion. Witness {reading ) — “ ‘ Youghal Confederate Club Rooms. ‘ ‘ ‘ Sir — I send you a letter of credit for £4 14s. 6d., subscribed towards the funds of the Irish Confederation, as specified in the enclosed lists, and have to request that the subscribers may be proposed members of the Confederation at the next meeting of the body. “ ‘lam also to inform you that the persons named in the list have formed themselves into a Confederate Club, under the name of the Youghal Confederate Club, and have appointed Jeremiah Jlodnett, Esq., their vice-president; Mr. John O’Brien, secretary ; and myself, treasurer, for a term of three months. “ ‘It not being unusual for those forming your association to put on record a declaration of their principles, perhaps I may be permitted, without being con- sidered presumptuous, to make a profession of faith on behalf of my brother confederates of Youghal, which I beg to do for them and myself as follows : “ ‘ We believe that the soil of Ireland, and every part thereof, and all profits and emoluments to be derived therefrom, of right belong to the Irish people, and not to the citizens of any other country whatsoever. 160 SPECIAL COMMISSION, CO. TIPPERARY. “ ‘We believe that the right to make laws for the Irish nation belongs to the Irish people alone, and that the exercise of legislation for this country by the parliament of England is an usurpation which it is the sacred duty of Irishmen to overthrow. “ ‘We believe that consistently with that duty no Irishman can become the servant, pensioner, or ally of any government professing to uphold such usurped authority of the English parliament, or to administer laws emanating therefrom, “ ‘ We believe in the right of all Irishmen without distinction to equal liberty. “ ‘We believe the undivided allegiance of Irishmen is due to Ireland alone ; and the Irishman who bestows upon any other land that filial devotion which he owes to his own, is guilty of the wmrst description of treason. “ ‘ We believe that every Irishman owes to every other Irishman the affection of a brother, and that whoever by example or teaching inculcates the contrary sentiments, is the enemy of God and his country. “ ‘We believe in the right of an oppressed nation to assert their liberties by arms ’ ” I should state, my lords, that the word in the printed document is arm.” It was read arms” by Mr. O’Brien. I put the “ s,” which makes me identify the document. “ ‘And we believe, under God, in the restoration of our country’s inde- pendence. “ ‘ These, sir, are the opinions and sentiments of the Youghal Confederates, as I interpret them ’ ” Lord Chief J ustice Doherty. — Is that the end of the address ? — Not yet, my lord. “ ‘ and I hope they do not disqualify for becoming members of your associa- tion, in subordination to which we desire to strive for our country’s freedom.’ ” Mr. Whiteside. — To do what ? Witness {reading ). — “ ‘These, sir, are the opinions and sentiments of the Youghal Confederates, as I interpret them ; and I hope they do not disqualify for becoming members of your association, in subordination to which we desire to strive for our country’s freedom.’ ” Mr. Whiteside. — My lords, I submit, that I ought, at least, to have a copy of this speech. There is no bill of particulars, and I aver publicly that unless I am furnished with a copy I can make nothing of it. The Solicitor- General. — There will be no difficulty in getting a copy. The Lord Chief Justice. — I will give you my copy rather than that you should be without one. The Solicitor- General. — Mr. Whiteside, you shall have a copy of every document. Mr. Whiteside. — Oh, this is not the time, Mr. Solicitor, to talk about giving copies of documents. The Lord Chief Justice. — Mr. Whiteside, you shall have copies. Witness (reading ). — “ ‘ As to local details, we are as yet but few, as you will have perceived ; but we hope soon to be numerous. We have opened a reading-room, which is sup- THE QUEEN 2;. WILLIAM SMITH O’BRIEN. 161 plied with some newspapers and a few books. We venture to hope the council and leading members of the Confederation will not forget us when dispensing their patronage, in the shape of books or publications of any kind. “ ‘ I have the honour to be, sir, your obedient humble servant, “ ‘John Ahern. “ ‘To Thomas M. Halpin, Esq., Secretary.’ ” That is the end of the address, and then Mr. O’Brien proceeds — “ I am also instructed to read you an extract from a most powerful address to the Confederation that has been sent by the New York repealers. The document is too long to be presented at full length to-night; besides, it contains allusions to past differences; and as I am desirous to enter heartily intoj the spirit of union which should prevail throughout the land, I think it is not advisable to read the whole of it.” — I cannot swear that that document was read. Mr. Whiteside. — You ought to have told us that before you read it ; you should not have read it. The Solicitor- General. — That is another document. Witness. — It is another document I have here, which was given to me, but I cannot swear it was read. The Lord Chief Justice. — Then do not read it. The Solicitor-General. — After that document was read, did Mr. O’Brien proceed to make any further remarks himself? — Yes. J ust state them. Mr. Whiteside. — He must read the whole of it. The Solicitor- General. — Y es. {To the witness.) — Go on. Witness {reading). — “ I am also instructed by the council to call your attention to a circumstance which took place after our last meeting. A number of those who were present at the last meeting went through the streets shouting ; the consequence of which was, that some apprehensions were created in the minds of the peaceful citizens, and that an impression unfavourable to this association was formed by such clamour. Now, I am instructed by the council to earnestly deprecate any such manifestation in future. If you will reflect for one moment, you will see how exceedingly dangerous such proceedings are; for if half a dozen detectives should intermingle in such a crowd, and should throw a stone and break windows when this crowd had been passing the Castle gates — I understand the guard turned out — if one of those detectives had thrown a stone at the guard, there would have been a butchery of the people, and the credit of the Confederation, and all its future exertions, might have been greatly retarded by that act of imprudence on the part of a few individuals. Now, I trust it is quite unnecessary for me to address even the most humble and the least enlightened of my fellow-countrymen, whether in the metropolis or elsewhere, on the necessity of preserving order in the present crisis of our affairs. Just look at the proceedings in England. There have been, in London, riots most disgraceful — I will not say to the people, for I utterly deny such a sacred name as that of the people, to a mob that is capable of performing such outrages as those that were committed in London, Glasgow, and elsewhere : wanton attacks on property, leading M 162 SPECIAL COMMISSION, CO. TIPPERARY. to disturbances of the peace; producing no result except that of injuring unoffending individuals, and giving thieves and vagabonds the oppor- tunities of perpetrating their OTvn wickedness. Contrast I say — and I say it proudly, knowing my countrymen will imitate it — the conduct of the French people. In the moment of their greatest excess, the humble artisans, the working artisans of Paris, constituted themselves the pre- , servers of order and the preservers of property; and they have won for themselves that credit which has made them objects of admiration to all mankind. For my own part I know nothing in history more noble, perhaps I might say so noble, as the conduct of those humble artisans on that occasion. You must all of you have read in the public papers the account in which we were told that men, in their working dress, many of them, who had not assurance of a single day’s wages, guarded with as much care as if they were the inheritances of their families, the royal treasures, the jewels and gold, that wem found in the royal palaces, and conveyed them to the treasury of the state. That is the example that the Irish people will imitate, and not the example of street rioters and breakers of windows of respectable shopkeepers. “ Now, when I met you last, I told you that I believed the hour of Ireland’s liberation was come (hear, hear). I repeat that sentiment to- night (a voice, ‘ More power to you’). I believe, conscientiously, that if we do not misuse the opportunities which will be presented to us, — provided events abroad be favourable to this country, and that I consider to be an essential condition to our success — but it is my firm conviction that if events be favourable abroad, we have it in our power to win the restoration of the Irish Parliament in this country within twelve months. Now, you will remember that this is the first time that I have ever ventured to state my opinion as to the period within which we were to obtain success. I have told you, not unfrequently, that it was possible you might have to wait for years for its attainment, and I bade you bide your determination during that time ; but I must say this, so far as I can calculate the chance this country has of success, that it will be our own fault if there is not, this day twelve month, a legislature holding its assemblages in Dublin. Provided circumstances abroad be favourable, nothing can, as it seems to me, defeat that hope except our rashness on the one hand, or cowardice on the other. I believe that that hope may be defeated by rashness. I know that in times like these a great deal of enthusiasm is naturally excited, and that there are myriads of ardent spirits who think that it is only necessary to strike a single blow to achieve immediate success. Very likely there are many present with that feeling, but such is not my opinion — and I think it right, to-night, to disburden my mind fully to you. My belief is, that if an insurrection was to take place at present, it would be put down in a week. My belief is, that if it were partially successful, that, under the present circumstances of this kingdom, it would be in the power of the British Government to starve the people, by stopping the supplies of food we are now necessarily deriving from abroad. Under those cir- cumstances, I say, that it would be consummate rashness to attempt to bring this question to issue by an immediate appeal to arms. But do I, therefore, tell you that you ought to encourage the sentiment of cowardice? (Cries of ‘ No, no.’) The feeling I would wish to inspire into every man who hears me, and into the mind of every man who will read what I say, > is, that it is now the business of every Irishman, ay, and of every Irish- THE QUEEN WILLIAM SMITH O'BRIEN. 163 woman too — and I tell you, and with shame I say it, that I believe there is more heroism in the hearts of Irishwomen than there is in those of the men — I say that the sentiment which every Irishman should encourage at the present moment, in his own mind, and those of others, is the readiness to die for his country, if it is necessary. Why, what have we been in the habit of seeing every day in our population — amongst all classes of our population ? Men have been tendering themselves to the British Government, ready to go out and fight in Asia — to encounter the Affghans in their terrible passes — to encounter the dangers of such combats as those which took place on the Sutlej ; and all as the merce- naries of a power — I will not use the expression — all tobecome mercenaries for a shilling a day. If our population are capable of thus misplacing their bravery, shall it be said that they are not ready, if the time should require their services, to die also in defence of their country ? (Cheers.) Irishmen have been deemed frequently too punctilious in the maintenance of their honour; and we see among the upper classes of society frequent examples of men who are ready to shed their blood, and that of their dearest friends, for the sake of revenging a fancied insult ; and shall it be said that the men who thus wasted their lives, and the lives of their fellow-creatures for a trifle, that these men would not, if their country required it, be ready to shed their blood in defence of this land? Myriads, tens of thousands, hundreds of thousands of your fellow-countrymen have, within these last twelve months, lain down in quietness to die, and sur- rendered their spirits to the God which gave them ; and shall it be said that a number, which would have sufficed to fill all the battle-fields of Europe, during the last half century, should thus contentedly surrender their lives, and be unwilling, if the country should demand those lives, to give those lives in a cause, the most sacred, the most holy, that ever was presented to a nation? Eor my own part, although I have seen much during the last two years to make me fancy that the spirit of my countrymen was greatly degenerated (cries of ‘ So it is,’ and ^ No’), yet I cannot believe that if a proper summons be given to them, that they are not still willing to vindicate the character that once was the peculiar character of the Irish nation — of unrivalled bravery. Now, for myself, gentlemen, I make no parade of personal courage — I am not conscious of possessing that high virtue; but I do trust — I say it in all humility — that if, by surrendering my life, either upon the scaffold or in the field, I could thereby secure the redemption of this land from the bondage under which it now suffers, that that life should be cheerfully given (cheers). But, gentlemen, though I trust I should not forbear to make that sacrifice, if it were necessary, I do confess to you, at the same time, I have the utmost possible horror of engaging in a fruitless and an un- successful rebellion. I have seen in this country — I have read in this country’s history so many instances of failure arising — on one occasion from precipitation, on another occasion from division — from a thousand accidents which prudence might have controlled — that I am deeply im- pressed with the opinion, that no national exertion should ever again be made by this country until success may be considered all but certain. And, therefore, it is, I would implore you by the memory of those past failures, not to allow yourselves to be committed to any rash act, or any act of indiscretion, but to proceed in a regular, and in a constitu- tional course, too, for the attainment of your liberties. Let us understand what we want. Now, I will not conceal from myself, and it is right that M 2 164 SPECIAL COMMISSION, CO. TIPPERARY. the Government should know it, that there is a very considerable num- ber of persons in this country who wish for an organic change in the whole constitution of the country. I do not think it necessary to discuss whe- ther a republican form of government, or a monarchial form of govern- ment, is that which secures most effectually the happiness of a nation. I believe if men will read history, they will find that nations have been happy under both forms of government; and the form of government which is best suited to a people depends very much on the circumstances of the times, and upon the genius and character of the people. We see, for instance, in North America, a most noble example of a flourishing republic; whereas, in South America, the same continent, we find, hitherto at least, the experiment of republics seems to have failed ; there- fore, I am not disposed to raise any abstract question on the merits of a republican or a monarchial form of government ; but what I believe the great majority of the repealers of this country want is this — they want a parliament in Ireland, to make laws for Ireland — they want an Irish government responsible to that parliament, and composed of Irishmen — they want the means of protecting those institutions by an Irish army, by an Irish navy, and by an Irish national guard (loud cheers). And, provided such a parliament, and such a government, and such guarantees for its existence be given to this country, I believe, at present at least, they are contented to remain subject to the sovereignty of the British crown. Now, I will take the liberty of inviting the attention of the public of this country, and also of the public of England, to a document which appears to me exactly to convey the demands of the Irish people; it is a document presented by Lord Minto, to whom I alluded upon the last occasion of our meeting, as being engaged in a negotiation between the inhabitants of Sicily and the Government from whom they had recently revolted ; the document I am now about to read to you presents the ultimatum of the Sicilians, submitted through Lord Minto to the Government against which they revolted ; that ultimatum I will now read for you, I take it from The Morning Chronicle of the 10th March, 1848. ^Advices from Palermo of the 19th ultimo state that Lord Minto had addressed an ultimatum to the Neapolitan Government declaring that to give a satisfactory termi- nation to the affairs of Sicily’ — observe, I only ask you to put in the word Ireland instead of Sicily — ‘ it is necessary first that island must become a separate kingdom independent of Naples. 2nd. That it must have a Government and Parliament of its own. 3rd. That the King of Naples may also be King of Sicily. 4th. That the common expenses of the two kingdoms, such as civil list, diplomatic body. Sic., should be settled by a mixed commission of Sicilians and Neapolitans’ (loud cheers). Now I do not know what is your opinion, gentlemen, but for my part that is my ultimatum. Now I told you that it was not impro- bable that opportunities would arise during the course of a few months of which we ought to be ready to avail ourselves, and in order to avail ourselves of those opportunities it is right that I should point out to you what I conceive to be the means available. First, the paramount, essen- tial condition is, that there should be perfect union among the whole body of Irish Repealers (cheers). It is in vain to conceal from our- selves that the power of this country has been greatly weakened — I may say wholly paralyzed — by the divisions that have taken place amongst us. I do not think it necessary now to inquire which party was right, and which party w.as wrong, I merely state the fact. We conceive our- THE QUEEN i- WILLIAM SMITH O’BRIEN. 165 . selves to be engaged in the vindication of what, to our minds at least, appeared to be the only effective mode of carrying on the exertions for securing the independence of this country. And I am happy to say, not only ought we to be governed in our disposition to meet those with whom we differed, by the almost unanimous opinion of this country in favour of such a course, but in point of fact we have now very little to divide us. One after another each of the points for which we contended have been conceded to us. At the last meeting of Conciliation Hall, Mr. John O’Connell did not (a voice — ‘Three cheers for John O’Connell.’ Loud cheers) — did not hesitate to say that he acceded for himself, and so far as he had influence for others, to the principle of abstaining from all solicitation of places from a Government adverse to Repeal, and uncom- promising and perpetual hostility to any such Government. Now it has been suggested by some that under these circumstances there ought to be an immediate coalition of the two bodies (hear, hear). For my own part I should not in the least object to such a coalition if I thought it was the most effective mode of securing union (a voice, ‘ So it is’); but I am afraid of this — I am afraid of such circumstances arising as I am now going to describe. We are undoubtedly resolved to preach to the country that the time has arrived when bold words ought to be followed, if necessary, by bolder deeds; and I am not quite sure that Conciliation Hall is yet prepared to follow in that course.” Then I have got here “A voice: — ‘A cheer for Conciliation Hall’ (great confusion).” Mr. O’Brien goes on : — “ I hope you will understand that it gives me the greatest satisfaction ” Then I have a note to this effect. ‘‘At this period Mr. Meagher entered the hail, and was received with the most tumultuous applause.” The Lord Chief Justice — It was the occasion of Mr. Meagher entering at that time ? — It was, my lord. Mr. O’Brien proceeds : — “ I wish you all to understand that it gives me the greatest possible satisfaction to see here to-night a very considerable number of those who have been partisans of Conciliation Hall. I believe I speak the sentiments of the wdiole of the Confederate body in saying that they are heartily welcome. Now I am afraid that differences of opinion might arise which would prevent the free expression of opinion, but I am prepared to suggest a mode which appears to me to be calculated to secure united action between Conciliation Hall and the Confederation upon all points where our 2)olicy coincides (cheers). There may be some measures which the leaders of Conciliation Hall might think of too strenuous a character for them. With them we do not seek to interfere ; but, on the other hand, there may be other operations of a character with reference to w'hich both bodies may effectively combine. Now I should say one is about to take place within a few days in this metropolis which is of that nature — I mean the aggregate meeting to address the French. I apprehend that all the citizens of Dublin, who at all sympathize with the proceedings in France, are resolved that there should be some great aggregate meeting at which the whole voice of the city shall be embodied together in con- gratulation of the French nation. I am exceedingly sorry myself that it should have been found impossible to have such an aggregate meeting on Saint Patrick’s day. I think it extremely unfortunate that arrange- ments have been made by the leaders of Conciliation Hall for holding parochial meetings on that day, so as to prevent an aggregate meeting 166 SPECIAL COxAIMISSIOjN^ GO. TIPPERAEY. on that day ; but in order to show that we were prepared to yield every thing for the purpose of securing union, we, and I may say I myself individually, took upon myself the great responsibility of disappointing a number of our worthy citizens, who were desirous that the aggregate meeting should be held on that day ; and I suggested, in order to meet the views of the Lord Mayor, who declared he could not take the chair on that day, and in order to meet the views of the leaders of Concilia- tion Hall, who were desirous that there should be parochial meetings on that day — I suggested that it should be held on some other day next week. What may be the best day it is for the citizens to determine, but I trust this meeting will not be abandoned. The country expects that you should present now, in these early days of union, one great assemblage, in which there shall be a fraternization of all classes of Repealers ; and I know no more appropriate occasion, no occasion which is so calculated to invite entire unanimity, as that which the circumstances of the hour connected with foreign affairs now present. Therefore it is that I trust the great aggregate meeting of the citizens will be held to congratulate the French, composed of Young and Old Ireland. There is one condition only that I should think it desirable to annex to that opinion, it is, that if we agree to hold a peaceable and unarmed meeting, that after such an appointment has been made, there should be no retrogradation from that determination. If the citizens of Dublin determine, after selecting a place which they have a right to enter, and no person has a right to obstruct them in their determination to enter — I should say they ought if possible to obtain the use of a field in the neighbourhood of Dublin for the purpose, so as to afford no pretext to the police for saying such a meeting was interfering with the highway, or opposing an obstruction to business — I say if they appoint the aggregate meeting to be held, that they ought to hold that meeting whether there be a proclamation or not (loud cheers). For my own part I utterly deny the right of any Govern- ment to make laws for this country by means of proclamation. The laws that I obey, are laws made by the Queen, Lords, and Commons of the kingdom, and not by proclamation of the Lord Lieutenant; and I con- ceive that I, and you, and every other citizen has a right, peacefully, to assemble, wherever we can do so without obstructing the public con- venience, or injuring our neighbours. Now I am told that it is currently reported that it is intended to have a massacre of the people on that day. I do not believe that there is any such intention. I cannot persuade myself that there is any Government so wicked, as deliberately to resolve that they will send their troops to massacre an unarmed people, meeting to exercise their political rights. But, at all events, whatever may be their determination, I say that it is your right and your pri- vilege, provided you go with a full determination to preserve order, and do not appear with a weapon of any kind, and do not allow any one to raise a stone or stick on the occasion — it is your right to meet in any numbers you please, in such convenient place as you may appoint, there to adopt any resolutions which are not in themselves illegal ; and I think you ought not, under the present circumstances of the country, to sur- render that right. For my own part, I should not have the smallest objection to attend such meeting in the event of a proclamation (cheers). I would earnestly caution the Government, if such a meeting be held. THE QUEEN i- WILLIAM SMITH O’BRIEN. 167 not to send any troops there. My Lord Mayor will preserve the peace of this city; all the citizens will assist him in preserving the peace of the city; the Confederates will assist him. I will venture to say, if we opened a list to-morrow, that several thousand Confederates would be found most willing to offer themselves as peace-preservers on the oc- casion ; and under these circumstances, if he sends a military force with the design of butchering the people, all I can tell him is, that from what I can learn of the present temper of the army stationed in Dublin, that it is more than probable that the first person who will be shot, if any body is shot by the soldiers, will be the officer who gives the word of command (cheers). A very large portion, more than one-third, very nearly one- half, of the British army are composed of our own country- men. I cannot believe that any consideration on earth will induce that section of the army to allow their fellow-countrymen to be butchered, provided they be unarmed and unoffending. All I can say is this for myself, that if you and the other citizens of Dublin will pledge your- selves not to go armed to that meeting, not to allow a stick or a stone to be raised, but to give to the care of the police any detective who may be found inviting the people to mischief, or to commit a breach of the peace, I am quite contented to place myself in the first rank, and to allow them to fire on me if they please; but I will not believe in the name of common humanity, in which soldiers boast as well as ourselves, that there could be found men among the Scotch or English, composing the army, one single man who would allow himself to be made the tool of a despot to fire on an unarmed and unoffending meeting. Such considera- tions may, therefore, deter the timid, but they ought not to deter us. I do not believe they will prevent the great majority of the citizens of this cit}’- from attending such a meeting. Now, with respect to the place of meeting, I do most earnestly solicit that an appropriate place be taken. As I said before, it ought to be a place where we have an undoubted right to enter, and nobody ought to prevent us. For my own part, perhaps, it is my own family recollections, or national recollections, that would induce me to give a preference to Clontarf (cheers). Now, this is the first occasion in which the union of the two parties is to be tried, and I earnestly call on the friends of Old Ireland; I earnestly call on the leaders of Conciliation Hall, to make this the first commencement of a union that all the citizens — all those at least who sympathize with us as to the question of repeal, let them all agree simultaneously and unani- mously, to assemble on that day headed by their national leaders. I cannot but think that such a demonstration, in the present circumstances of the country, will be exceedingly useful in its operations, both on our own people and the British Government. “Now, there is another proposition which, if it is made by Conciliation Hall, I should for one — and I believe I may speak on the part of the council too — be happy to accede to. We do not think it is of any great importance to attend these parochial meetings, we of the council of the Confederation, because for my own part I confess I have very great reluctance to address any more petitions for repeal to either house of Parliament. I consider the authority of the houses of Parliament as an usurpation; and I am exceedingly reluctant, after the insulting man- ner in which they have been in the habit of treating the expression of the opinions of the people of this country, to solicit them in humble guise to grant us our national rights. But we do acknowledge the 168 SPECIAL COMMISSION, CO. TIPPERARY. legitimate power of our Sovereign ; and if the leaders of Conciliation Hall should determine to present an address to the Queen, which should be a national address to thfe Queen, declaring to her the grounds upon which we seek a repeal of the union, and delaring also that we are resolved to be satisfied with nothing less — to use Lord Minto’s expres- sion, that that is our ultimatum — I do not think there would be any objec- tion, or that there ought to be any objection — there would be none on my part at least — to co-operate in endeavouring to obtain for that address, if it be firmly and boldly worded, as many signatures as can be obtained through our influence. I think an address of that kind ought, by way of flnal appeal to our Sovereign, to be signed by upwards of a million of persons; and, in order to produce that number of signatures, it would be necessary that there should be, in all parts of the country, a hearty co-operation for that purpose. “ Another measure upon which I think there may be a perfect con- currence of combined action between us and Conciliation Hall, is with reference to a project which was put forward by the late illustrious leader of the Irish people, Mr. O’Connell (cheers). It was a favoured project of his, more particularly in 1843, that there should be assembled in this metropolis a national council composed of 300 persons, practi- cally representing all portions of this country, at all events all those who sympathize with us : and that that national council should be convened to consult for the common welfare of this kingdom. Now I should recommend the Confederates of the kingdom to lend every assistance to any such project, and it has the authority of being recommended by one whom a large majority of the nation were in the habit of looking up to with unbounded respect. The project is not new, the country is fami- liarized with it, and it is only necessary now to determine whether the time has not come for giving it full eflect. My opinion is that the time has come. Therefore I should hope that in the mouth of May — we have been considering the matter and think the 13th of April will be too early — but in the month of May that there should be persons assembling in Dublin, who should represent every portion of this kingdom practically ; for my own part, I tell you fairly that I have no objection that they should be elected. It has been supposed that the Convention Act offers an obstruction to such an election. Now with respect to this Conven- tion Act, it is right I should mention that there is no such law in Eng- land ; that delegates may be appointed from every parish in England ; and that delegates from the 12,000 parishes in England may all assemble, and sit in council in the metropolis of London, if they so think fit. Therefore it would be straining the law, even if the law were against us, to endeavour to enforce in this country an enactment which does not apply to the sister country — step-sister (laughter). But we have con- sidered the legality of the question, and so far as we can understand, according to our humble interpretation of the Convention Act, we con- ceive that the assemblage of such a body, even though elected, would not be illegal. Now it is not for me to indicate what would be the measures that such a council ought to resolve on. I think if bold men, earnest men, intelligent men were sent up to us from every part of the country, to represent the wishes of the Repealers in the several districts, that such a council would be the best guide, a far better guide, to public opinion than I at all events would venture to presume to be. Therefore I would rather leave to the deliberations of that council the THE QUEEN WILLIAM SMITH O'BRIEN. 169 future guidance of the inovement, than indicate any particular part of it. “ I have mentioned now three points upon which, as a commencement, there may be a perfectly combined action between us ; that is to say, between the Confederation and Conciliation Hall. I offer these sugges- tions for the consideration of the leaders of Conciliation Hall ; and it has been proposed by our committee that in case they entertain them, that there should be a joint-committee formed to meet in the Assembly House, or anywhere else that Mr. John O’Connell may wish (always excepting of course, a place where we might be considered compromised), that a general meeting of that kind should meet and deliberate on all the com- bined movements of the two bodies. “ Now, I know not how far these projects may be acceptable ; but in the meantime we must go on, and our first and especial duty is, to en- deavour to the utmost of our power to procure an entire union amongst Irishmen. We must endeavour to carry out that principle of fraternity which is one of the mottoes of the French Republic, and extend the hand of fellowship to all who will receive it. Catholics must invite Protestants to forget their ancient differences. I believe that the circumstances of late years have greatly tended to diminish those asperities which formerly separated the Protestants of the north from the Catholics, At this moment the Protestant farmers of Ulster, who used to be inveterate Orangemen, feel that the British Parliament is about to strip them of their most cherished inheritance — the tenant-right; and if that Parliament be allowed to continue to legislate for this country, that which they have been in the habit of considering as their property will be rifled from them by such Parliament. Therefore, depend upon it, the Protes- tant farmers of this country have as much interest in asking for a native legislature as you have, to protect their interest. I need not tell you that you ought to promote perfect harmony between those who are of one faith and those who are of another. I think the conduct of this Confederation, during the last year, must have convinced every one, that there is no danger of a Catholic ascendancy in this country after we shall have obtained the Repeal. “ Now, with respect to the landlords of this country, I must say that I have been greatly disappointed, by the course which they have adopted with reference to the national affairs during the last twelve months. I was in hopes that they were disposed to throw themselves upon the Irish people. I conceived such hopes from the great meeting that was held in January, 1847; but those hopes have been to a great extent disappointed. I find that there is a want of courage amidst that class, which is utterly inconceivable to me, and that they would rather allow themselves to be trodden to the earth by English legislation, than confide frankly and fully to their own countrymen. There are some of them I am sorry to say, who do not appear to be capable of feeling generous emotions ; but at all events, we must endeavour, as far as we can, to win that class to us. It is not perhaps unseasonable that I should suggest to them (and these are times in which predictions are sometimes veri- fied), that it will be exceedingly unwise, and exceedingly unsafe, for any of that class to take part against the Irish people. 1 do not appre- hend that my countrymen will resort to butchery or massacre, but I think it exceedingly probable, that if they should be found, in any future collision that should take place of a national kind, to have taken 170 SPECIAL COMMISSION, CO. TIPPERARY. part against the Irish nation, and that the Irish nation should be trium- phant in any struggle that may hereafte-r take place, I think it exceed- ingly likely that their properties will be carried to the national treasury. I think it right to give this hint to them as a friend. “ Now, I will invite you also to fraternize with other classes wLomyou have been in the habit of considering as hostile ; and I tell you it is your duty to fraternize with the soldiers. As I said before, I do not believe that the British soldier, as is sometimes said, divests himself of all sentiments of humanity when he puts on a red coat. I am told that the Scotch soldiers are the part of the army upon which the Government rely chiefly for their operations against the Irish people. Can you and I forget we are children of the Gael ? Can you forget that these Scotch soldiers, these Highland regiments, are, in' fact, like ourselves, children of the Gael ; that they at this moment speak the same language which is spoken throughout a great portion of the South, and West, and North of Ireland ; that they are of the same kindred with ourselves 1 And shall I be told that these noble men are prepared to come to this country, and after receiving all the kindness, and hospitality, and friendship, which ties of kindred and mutual respect create — that these men should be pre- pared to butcher this nation when they are contending for their rights ? I will not believe it; and, therefore, I say, it is your business to frater- nize with the soldiers of the British army. “ You have been in the habit, many of you, of looking on the police force as a hostile force. I say that sentiment ought to be discharged from your bosoms. The police force are Irishmen, like yourselves. There are ten thousand of them. They are as fine a body of men as ever held a musket; and if their energies were properly directed, they would become the safeguard of this country; therefore I will not invite you to consider these men as your enemies. Of course, as long as the present state of things exists, they are quite sure of losing their places if they should manifest any sympathy with the people ; but if they knew that the time was rapidly coming when every exertion made by such a force as that, to vindicate the freedom of this country, would be appreciated and prized, and become the subject of future honour throughout all generations to them and their posterity, I cannot believe that ten thousand Irishmen, clad in their native green, would be found the enemies of Irishmen (loud cheers). Now, gentlemen, I am endeavouring to-night to preach you a lesson on the motto which was presented to you at our last meeting — fraternity. I tell you, also, you ought to fraternize with the repealers of England. There are some of you who are, perhaps, in the habit of cherishing hatred against the Saxon. I invite you to cast aside such feelings. I hate no man. I hate oppression ; and, to use Mr. Kenyon’s expression, I hate the oppressor in his official capacity. But this I know, that there are among the English population, millions who are avowedly friendly to our cause ; and with them you ought to fraternize to the utmost.” Ifr. Whiteside What is this you are reading ? — This is as I have taken it down in my own notes. What extract is it? — An extract from a letter of Ledru Rollin’s. This is the extract. “ And now I come to another class of fraternity, to which I apprehend none of you will object — I mean that we should fraternize with the French. Now, I am sorry to find that some observations that fell from me on the last evening have been misunderstood with reference to a THE QUEEN WILLIAM SMITH O’BllIEN. 171 French invasion. I meant to say this, and I repeat it to-night, that if this country had a Parliament of its own, and that if an unfounded aggression, an unprovoked aggression were made on England, we having such a Parlia- ment, that it is exceedingly probable that the English people would find that the Irish were their best allies whenever the invasion might come. But I said this, and I repeat it to-night, that so long as Ireland has not a Parliament of her own, if England be threatened with an inva- sion, it is my opinion that the people of this country will not lift a hand to assist them (cries of ‘ Never’). I know, for my part, I will not give them any hint to assist them ; and I tell them more, that I believe so long as this country has no Parliament of its own, that the French army would not be considered by the people of Ireland intruders on their soil. But I tell you it is not on foreign aid that you ought exclusively to rely. “ ‘ Hereditary bondsmen, know ye not, Who would be free, themselves must strike the blow.’ “ I have no desire to speculate which is the most agreeable description of servitude — servitude to a British or to a French master ; for my part I am anxious that this country should have no master. Now, although we do not desire that the French should appear here for the purpose of subjecting us, it is not unsatisfactory to remember, that if the present French Government should continue to hold power, and to rule the destinies of that country, we have amongst its most active members, at least three men who are pledged to tender to us the full sympathies of France in aid of our struggle. You are, all of you, acquainted with the letter which was written by Monsieur Ledrn Bollin, who is now one of the leading members of the French Provisional Government, to the Irish people in 1843, therefore it is not necessary that I should read it to you at length, but I have selected one extract from it. “ In that letter he says — ‘ We offer a testimony of sincere and profound sympathy for a peaceful and legal struggle ; but in case the Tory Govern- ment should violate the sanctuary of the law which serves you as a refuge, we believe that France will offer you other aid against augmented dangers.’ I have now to present you with the sentiments of another distinguished member of the French Provisional Government. It is from the history, composed by Monsieur Louis Blanc, an admirable work, who is now one of the Provisional Government of France. He expresses this sentiment : ^ All nations are brothers, and all revolutions afiect the world at large. When a government believes it represents a just cause, it ought to make that cause triumph wherever such a triumph is possible. This is more than its right — it is its duty’ (cheers). I have now to present you with the sentiments of another still more distinguished member of the present Provisional Government of France, Monsieur Lamartine. It is true that this quotation, this extract, which I am about to read, has been already submitted to you ; but it seems to me exceedingly important that it should be engraven on the minds of this people — that it should be engraven also on the minds of the British Government — and it is for that reason that I produce it to-night. Monsieur Lamartine, addressing the representa- tives of the French Republic at foreign courts, says: ‘We declare it openly, if the hour of the reconstruction of nationalities long oppressed’ — meaning thereby, Ireland — ‘ in Europe, or elsewhere, should appear to us to have sounded in the decrees of Providence, the French Republic 172 SPECIAL COMMISSION, CO. TIPPERARY. would believe itself entitled to arm for the protection of those legitimate movements for the greatness and nationality of states.’ “ Now, gentlemen, there is one power v/hich I have hitherto omitted to mention, with which I am quite satisfied you will, individually and collectively, have no objection to fraternize — I mean the inhabitants of the United States of America. We have had abundant evidence, at the time when it appeared to the inhabitants of that country that the agi- tation was likely to produce serious fruits — we have had abundant evi- dence, by testimonies of sympathy and large remittances of money, that the people of the United States cordially sympathize in this struggle. “ I am happy to tell you, also, it is exceedingly probable you will find new allies in the Legislature of the Canadas ; for the result of the last election in that province has been to give a very large majority in the Legislature of Canada to that party which sympathizes with Ireland. We have already had an indication of the rising spirit of America in that address — that noble address of which I read you an extract to- night. They tell you they are about to raise a flame which shall never be quenched until it succeeds in effecting its object, in their union for their country. Now, I should consider myself exceedingly presump- tuous, if I were to attempt to dictate to the people of America as to the course which would be most effectual in aiding us in the achievement of our liberties ; but, knowing that the Government of that country is in the habit of obeying the impulse of the jjopular will, I submit for the consideration of our friends at the other side of the Atlantic, v^hether it would not be exceedingly expedient to urge their executive to provide that republic with a body, such as existed at one time in France, called ‘ The Irish Brigade’ (cheers). I know that some of my friends have a very great objection to any thing that is like countenancing emigration, but when I read, day after day, of the sufferings of the poor in the county of Galway; when I read that they are absolutely allowed by this paternal Government of ours to die in gaols, to which they have taken refuge by committing some trivial crime, to such an extent that there are at this moment not less than 900 persons in the gaol of Galway, which was built for 125 — they come there in the last agonies of death, for the sake of obtaining a meal before they die, and a cofiin after their death — I say I do most devoutly wish that those men had been enrolled in an Irish Brigade in the United States, before they had been reduced to that condition. Now, I conceive, in the event of our obtaining repeal, it would be extremely convenient to this country, to have a force of Irishmen ready disciplined and enrolled to form the nucleus of an Irish army. We have resolved that one of the elements of our national strength, after we have obtained the repeal, shall be the possession of an Irish army ; and there is nothing to prevent, as it seems to me, the men who shall have been so enrolled in an Irish Brigade in the United States, from returning to their country to serve for the defence and guardianship of their native land. Now, I confess I wish very much that circumstances would allow us to send a mission to America on the part of the Confederation. At one time I thought of going myself ; but I am afraid that the circumstance, inasmuch as I should have to stand in the front ranks with you (cheers) — although I have no desire at all to arrogate to myself any claim to leader.ship, all I offer is my humble co-operation — I can scarcely take on myself to say it is consistent with my duty, in the present aspect of affairs in this THE QUEEN WILLIAM SMITH O’BRIEN. 173 country, to go to America, even for so short a time as three months, which is the least period that will be effectual ; but I think it exceed- ingly desirable that some able, eloquent, and discreet man, or two men, should be sent on the part of the Irish Confederation to the United States. I cannot help thinking that such a mission would gather round it the sympathies of the whole population of that country, who would be prepared to receive and reciprocate the kindly sentiments of the two nations. Now, I really am afraid I am trespassing on you too long (cries of ‘ No, no’). This is an occasion which seems to me a very solemn opportunity of discharging a duty which possibly may be attended with some inconvenience hereafter ; therefore, I am desirous of performing it. Now, you will remember in the discussions which took place in the Con- federation, that I deprecated strongly, some six weeks ago, the notion of inviting the people at that time to recur to military training of any description whatsoever, or to the consideration of military afiairs. It seemed to me that in the then condition of the country, the only effect of leading the people’s minds to what was called a guerilla warfare, would be to induce some of those misguided peasantry, who had been committing assassinations, to think that we encouraged them to proceed on a system of murder and crime. Therefore it was that I felt it my duty distinctly to say that I could be no party at that time in giving any such recommendation to the country. But the circumstances of affairs are totally different now; and under those circumstances — under the altered condition of circumstances — I have no hesitation in saying, that I think it exceedingly desirable that all our intelligent young men, par- ticularly those who have been engaged in surveying, engineering, and similar pursuits, should apply their minds to the best mode of taking strong places, and of defending weak ones. These men will probably form, if they distinguish themselves in this line, a portion of the sappers and miners of the future Irish army. “ Now, there is another point to which the minds of men ought to be directed under the present circumstances of the country ; that is, how supplies of food apd ammunition can be cut off from an enemy, and how they can be supplied to a friend. With respect to the ordinary tactics of military manoeuvreing, fortunately, you in Dublin have plenty of op- portunities of learning platoon exercise ; for in the Phoenix Park, and under the barracks, there are daily exhibitions of that kind to remind you that you are an enslaved people. I am not suggesting to you to form companies or platoons for such exercises at present ; but I do suggest this to you, in all seriousness, that I think the time is come — if we are not to be set down in the nations of the earth as a people who are capable only of talking, and boasting, and agitating — the time is come when every man who is prepared to lay down his life for his country, should signify his willingness to be enrolled as a member of a national guard. No man, in my opinion, ought to tender his name as a member of the national guard, unless he is prepared to do two things : one is, to preserve the State against anarchy — that is to say, to preserve social order — which I hold to be the foundation of the well-being of all classes from the humblest ; and the other is, to be ready to die for the defence of his country. Now, I do not know how far my suggestion is likely to be carried out ; but I have no hesitation in saying, that if 300,000 men should be found amongst the millions who have hitherto 174 SPECIAL COMMISSION, CO. TIPPERARY. called tliemselves repealers, who are willing so to enrol themselves pub- licly in the face of day — not by your night walkings, and not by your ribbon societies, which have been the curse of this country — but to tender their names to the authorities as men who were* determined to form a national guard, for the purpose, on the one hand, of preserving order, and, on the other hand, of protecting their country — I say if 300,000 men can be found in this country, the British ascendancy, so far as it has the power of coercing you by military force, will be at an end. “ There is another point on which, perhaps, I am not entitled to speak to you, as it is not altogether of a political character — but it is with refer- ence to temperance. In critical times I think it of the utmost importance that the people of this country should be temperate. You are not safe for a single hour if drunken men get among the multitude ; therefore it is I wmuld most earnestly invite all who are anxious and earnest about this repeal cause, for one year to abstain, if possible, from the use of all intoxicating liquors. Now, you see before you a man who has tried the experiment for four years. Since the 30th May, 1844, down to the pre- sent hour, no intoxicating beverage of any kind whatsoever has entered my lips (cheers). I made a pledge to my country on that occasion that I would not even drink a cheerful glass with a friend until the Union should be repealed. I made that pledge for the purpose of being reminded every day of the duty which I owe to my country, and I am happy to say I have been enabled to keep that pledge. Now, you see it has not disagreed with me (a voice, ^ I hope you will sdon break it’). If I could induce my countrymen to follow my example for only one year, I should be satisfied. Many useful results would arise from it. I confess I should like to see those temperance bands at once playing their own old marches again among the population. I think it would cheer up the hearts of the population. Wherever men are temperate, there would be always found the materials to bring together those bands which used to exhilarate the people so much, and provide a much more amusing substi- tute than the degrading and intoxicating liquors, into which there is a tendency to relax. But there is another great advantage, also, which would result from it ; upwards of one million sterling is paid to the British exchequer in duties upon spirits; that is to say, you give to the British Government, as a means of oppressing you, through the medium of your — I will not call it vice, because it scarcely deserves so hard a name as that, but your indulgence — you give one million additional, as the means of enabling them to oppress and keep down this country. Now, by abstaining from the use of intoxicating liquors you have upwards of one million to apply to other purposes. Now, if any considerable portion of that million were placed at the disposal of patriotic purposes of different kinds, what might it not effect? I have always been exceed- ingly reluctant to make any appeals to the people which could be con- strued into an attempt to induce them to make great pecuniary sacrifices. Since the Confederation has been established, the people have had to suffer great privations, and under those circumstances we did not feel ourselves justified in making such appeals; but all I would ask is this, that those who consent to forego this indulgence, for the sake of keeping their heads cool, and their intellects clear, that they should give a por- tion of that which they were enabled to save by such forbearance, to the THE QUEEN i-. WILLIAM SMITH O’BRIEN. 17o patriotic objects wliicli may be useful in advancing tbeir country’s freedom.” I have not got the rest of that extract ; I did not take it ; I intended to ask Mr. O’Brien for it, but from some reason or other I did not get it. Mr. Whiteside. — Mr. Hodges, it is quite unnecessary to make any apologies. Now, I am going to do that which I believe I never did yet in my life — I am going to end my speech by an extract from a speech of my own made on a former occasion; and I do not know whether I shall obtain your indulgence in that exhibition of egotism, but it appears to me that the time is come for men to be serious, and I am anxious to give a solemn warning to the British Government; and after consideration I do not think I can give it in language more effective or more appropriate than that which I used in Conciliation Hall, among the moral force repealers, in the year 1845, shortly after a speech had been delivered by Mr. Macauley, which few of you forget. I began by reading an extract from a speech by Mr. Macauley to the following effect. Now, observe, this is the declaration of one of the present Whig cabinet — Paymaster of the Forces it is suggested — this is what he declared, in 1845, as his ulti- matum, and the ultimatum of the Whig Government : — ^ We think, and we now state publicly, that Repeal of the Legislative Union would be fatal to this great country,’ meaning thereby England, ^ and we will never consent to it; no, not even were we again menaced by the combined hostilities of Spain, France, and America; no, never, not even though a second Napoleon were to menace us with another camp at Boulogne; no, never, until every chance has been staked and lost; never until England has lost her place amongst the nations of the earth’ (cheers). The British Parliament cheered that sentiment. Then up rose the minister representing the other great party in England, the Tories, Sir James Graham, the then Home Secretary, and spoke in the following terms : — ‘ With respect to the Repeal of the Union, he,’ that is Sir Janies Graham, ‘ agreed from his heart with every sentiment uttered by the right honourable gentleman,’ that is Mr. Macauley. ^ He believed he spoke the almost unanimous sense of the house, and the sense certainly of Her Majesty’s Government, and he believed he uttered the resolution of that house, and the sense of the people of Great Britain, and he thought also of the people of Ireland, when he said he was resolved to resist to the last extremity that fatal attempt to dissolve the Legislative Union ; but even in its last conclusive struggles it must be resisted, although the foundations of the empire should be shaken in the effort for its being maintained.’ Now, Mr. Smith O’Brien is reported in the public journals to have said, in commenting on the above declara- tion, and that declaration was received with cheers by the English Parliament : — ^Now, I do not pretend to be so great an orator as Mr. Macauley, nor perhaps without presumption can one so humble as I am dare to interpret the opinions of the people of this country ; but so far as I have been able to collect the national sentiment, I think I am war- ranted in announcing, that firm as may be the determination of Mr. Macauley, or firm as may be the determination of the ministry of Eng- land — firm as may be the determination of the English House of Com- mons — firm as may be the determination of the people of England — not less firm is the determination of the people of Ireland ’ ” 176 SPECIAL COMMISSION, CO. TIPPERARY. Witness. — Mr. O’Brien read down to the words “ consigned to prison,” and then proceeded. “A very probable circumstance I can tell you, and as it is possible I may be that person, I would only say I trust when one is gone another will appear again, and so on to the end of the chapter, until the eight millions are exhausted. I trust that there will never be wanting, as long as there is a spark in an Irish bosom, some to stand in this tribune and declare that the Repeal of the Union shall outlive all.” Mr. O’Brien then quoted again, ‘Y^es, your leaders may be I have got down to the words, “ ‘ undefended shores of Great Britain.’ You have all heard the Duke of Wellington’s opinion on the subject of the defences of the southern coast of England.” Then there is another quotation — ‘ If an American fleet ’ ” reading down to “ ‘ separate and independent country.’ Every word I then uttered I re-affirm to-night. And I tell the Government that the time may not be far distant when the contingencies contemplated in that speech may happen. And I repeat that then it will be too late to negotiate. Now I have only to apologize for having delayed you so long ; but the importance of the occasion made it neces- sary, at whatever hazard to myself, that I should deliver in plain- spoken language my own sentiments. I know not how far those senti- ments may be in accordance with the sentiments of the people of this country, (cries of ‘Yes, yes,’) but at least it shall not be said that I used any ambiguous language as to my intentions, or my wishes, or my determination. “ And now I have to present you the document which has been intrusted to me by the committee. It will not be necessary for me to advert to it, or to accompany it with comments, because it has been written by myself, and for this document I make myself personally responsible. It conveys in language as appropriate as any I could use, my sentiments with reference to the recent affairs in France.” I should state that this is a printed document, and given me by the secretary, I believe. Mr. Whiteside. — But are you sure h — I may say sure. But do you say sure? — I do say sure; I applied for it to the sec- retary. The Solicitor-General. — Y'ougot it from the secretary of the Confederation. Mr, Whiteside. — The Confederation may give him a hundred papers, hut that is not evidence against the prisoner, Mr. Solicitor. The Solicitoj'-General (to the witness). — You got it from the secretary of the Confederation as an address read by Mr. O’Brien ? — I did, sir. Mr. Whiteside. — That is not the way of proving the conspiracy, Mr. Solicitor. The Solicitor- General. — The secretary is the officer of the Confederation. The Lord Chief Justice. — Do not argue that point now, but put a question. Witness I thought it necessary to state that the paper I am about to read, was a printed address given to me by the secretary. The Lord Chief Justice. — Was your note transcribed from the printed THE QUEEN y. WILLIAM SMITH O’BRIEN. 177 address 1 — I have taken the printed address itself, which was given me by the secretary. jVr. Whiteside . — Did Mr. O’Brien see him give it you ? — I cannot say. Are you able to say whether you checked it at the time? — No, I did not; I received it afterwards. Is there any mark of your own upon it by which you would know it ? — No. The Lord Chief Justice . — When Mr. O’Brien read that did you check it ? — I did not, my lord. But are you sure that he read it ? — I think it is very probable he did read it, my lord. Mr. Whiteside . — We do not want probabilities. The Solicitor- General . — I do not wish to press it as there seems to be a doubt upon it. {To the witness .) — Now after that was there any thing further said ? — Merely a few words — “ My task is now ended, and I have to submit this address for your adoption.” Then of course he sat down on that occasion, after concluding his speech? — I cannot say that. Was there any other speech made ? — No other speech of his. No other speech of his on that night? — Not that night. Was there any speech made by Mr. Meagher ? — There was. Did you take a note of the speech tliat was made by Mr. Meagher ? — I did. It appears by what you before stated, that Mr. Meagher came in while Mr, O’Brien was speaking ? — So it appears from the note that I have made in the centre of Mr. O’Brien’s speech. You took a note of Mr. Meagher’s speech that he spoke after Mr. O’Brien had spoken ? — I did. Do you know whether Mr. O’Brien remained and was present at the time Mr. Meagher was speaking ? — I cannot answer that question. Do you find upon your notes any thing else said by Mr. O’Brien after Mr. Meagher had spoken? — No; not a word. I ought to have stated, that my attention was engaged in writing afterwards, and therefore I could not say whether he was present or not while Mr. Meagher was speaking. The Solicitor- General . — My lords, we shall not press Mr. Meagher’s speech in evidence; we think it is evidence, but how- ever we do not press it. {To the witness .) — Upon what occasion did you next see Mr. O’Brien at any public meeting ? — At the meeting The Lord Chief Justice — What is this ? The Solicitor-General . — Another speech of Mr. O’Brien’s; I want to get the date of it. {To the witness .) — Was there a meeting in April ? — Yes. What date ? — The 5th of April. N 178 SPECIAL COMMISSION, CO. TIPPERARY. Was it a meeting of the same body ? — It was; but Mr. O’Brien was not there ; there were several meetings of the Confederation. I mean the soiree, as they called it, to Mr. O’Brien, of the 15th of April 1 — Yes. Mr. Whiteside. — What part of Ireland was that in ? — The same place, the Music Hall. The Lord Chief Justice. — Mr. Solicitor, what are you proceed- ing with now ? The Solicitor- General . — We are proceeding, my lord, with the next meeting at which Mr. O’Brien was present. {To the vjitness.) — Did you take a note of the speech that w'as made by Mr. O’Brien at that meeting ? — I did. Mr. Whiteside . — I will just repeat the same objection to this speech, namely, that unless it is evidence of the treasonable in- tent laid in the indictment, it is no evidence at all in this case. The Solicitor- General . — That is the same objection. Mr. Whiteside. — Yes. The Solicitor-General {to the witness) — Where was that meeting held? — At the Music Hall. Was that a meeting of the Confederation ? — No; I should say it was not a meeting of the Confederation, because there were Conciliation Hall people there as well as some Confederates. Well, now, will you just read your report of it ? The Lord Chief Justice. — Was Mr. O’Brien there? — He was, my lord. This is the speech : — “ Mr. S^nith O’Brien — Mr. Chairman, ladies, and gentlemen ” Mr. Whiteside . — My lords, I understood my learned friend, the Solicitor-General, w^as about to offer to the Court the speeches of Mr. O’Brien made at this Confederation. My lords, this is a speech made somewhere else. What I was going to submit to your lordships, respectfully, was this, that all speeches made by him as a public man are not evidence in this case. I understand this evidence to consist of a speech delivered by Mr. O’Brien at a public meeting unconnected with the Confederation. I appre- hend if it is to be given in evidence, that it must be in proof of the treasonable intents laid in the indictment. The Lord Chief Justice . — The count for levying war states no intent, but, in order to make that the crime, the object must be ascertained by evidence ; and if those speeches are given for that purpose, they can be received by us for that and no other pur- pose. The Solicitor-General . — These matters are offered in evidence to prove that. The Lord Chief Justice . — In order to constitute the offence under the act of Edward IIL, it is essential that you should prove the purpose for which the war was levied. THE QUEEN v. WILLIAM SMITH O’BRIEN. 179 Mr, Whiteside. — I understand distinctly, that notliing can be clearer than the way your lordship has j)ut it. I admit that it is indisputably true, that the declarations of an accused man accompanying acts are evidence against him ; but the speech made by Watson, in Smithfield, before the outbreak, was not allowed to be received in evidence against him as expounding the acts, on the principle so correctly stated by your lordship. The Lord Chief Justice. — The interval between the period at which the speech was delivered, and the time of the commission of the alleged treasonable acts, may either weaken or strengthen the effect of it. We cannot say that the evidence is not admissible. {To the witness .) — Now go on, Mr. Hodges. Witness {reading ). — Music Hall, \bth April, 1848 . Mr. Smith O'Brien. — Mr. Chairman, ladies, and gentlemen, — Often as it has been my lot to address meetings of my fellow-countrymen, with sentiments of pride and satisfaction, I can truly say, that on no former occasion have I met an assemblage of Irishmen with so much exultation as I feel to-night. I have this day taken out my patent of nobility. It was presented to me in the bill of indictment brought against me by the English Government for loving my country. Proud indeed am I to enjoy the privilege of having my name ranked amongst those who have been exposed to suffering for having espoused — for having, however feebly, endeavoured to sustain the rights of this my native land. In that beautiful emblem which you have presented to me I am flattered by the appellation of being the truest patriot of Ireland. I take the liberty to reject that compliment. I tell you there are thousands of men as true in their patriotism as myself ; and I tell you more, that I should despair for this country if I did not feel assured that such is the case. The liberties of a nation are not to be won by an individual. It may be his pride and privilege to set an example to his countrymen; but unless there be others ready to follow his lead — if there be not others to take his place, in case he should fall — then I tell you that you have no hope of achieving the liberties of this country. But, gentlemen, I see a spirit rising in this country, which I believe nothing can subdue. I did fear — within these last two years I have more than once feared — that the ancient spirit of this land was altogether extinct, and that Irishmen had forgotten the attribute of manhood ; but I see now 'rising a spirit which nothing can quell — a spirit that must subdue and overpower every force that can be brought against it. Gentlemen, on my own part — my fellow-deputies will speak for themselves — on my own part, I thank you for the address which you have presented to us on our return from France. I am rejoiced to find that you do not participate in the opinion which is vaunted, but not felt, in England, that our mission to France was a failure. For my own part, to me every circum- stance connected with that mission was a subject of satisfaction. From the moment I landed on the French shores, I found myself surrounded with circumstances tending to animate and sustain the spirit which prompted me to resort to France in your name. We were talking, at our last assembly in the Confederation, of the forma- tion of an Irish national guard; and I confess to you that my spirit N 2 180 SPECIAL COMMISSION, CO. TIPPERARY. bounded, when I bad the satisfaction of landing at Havre, to witness a review of the National Guard of that district, amounting to not less than sixty or seventy thousand men, — men who, on ordinary occasions, were engaged in all the duties of citizens, but who, upon the day I had the good fortune to see them, appeared in as proud a military array as ever I witnessed in any country. Some of them, indeed, were not clothed in the habiliments of war; the greater number of them were equipped, at their own expense, in a style that would have done credit to any regiment in the service ; but throughout the whole band there was a sentiment of manly dignity, arising from the possession of those arms which ever ought to guard a freeman’s laws (cheers). With respect to our reception by the Provisional Government of France, it is fortunate that that reception has been able to satisfy both the English Government and us (cheers and laughter). I am told that the Government of Ireland has condescended to send round to every police station in Ireland, for the purpose of being placarded, the reply of Monsieur Lamartine to the Irish deputation. I congratulate the great British nation on the magnanimity with which it teaches the people of Ireland to look to the opinions of foreign ministers as the dictum on which their fate shall be determined. Now, with respect to that reply, I have no hesitation in saying, that Monsieur Lamartine could not have spoken in other terms than he did without placing France in a position of direct hostility to England ; and under the circumstances of France, as he him- self said, his lips were sealed with respect to the expression of the ulterior sentiments which were felt by him (cheers) — by every Frenchman, in regard to this country. But having had the good fortune to receive attentions from Lamartine and the other members of the Provisional Government, I am enabled to say that they sympathize fully with the sentiments of the French nation in regard to this people. We did not go to solicit armed succour. Certainly I at least was not the bearer of such a message. I bore an address of congratulation to the French people, testifying our satisfaction — the satisfaction which we felt in the acquisition of their liberty; and I did say in that address, and I said it in private to every man I met, the Irish nation valued the friendship of the French, If we had asked for armed succour, it is perfectly manifest that the French Government, as representing the French nation, under its present circumstances, without even the formation of a regular Government, would not have been justified in giving any definite answer to such a demand. But, gentlemen, from the time I landed in France to the time I left it, I found but one unanimous feeling towards this country. There was, indeed, a lurking feeling displayed by many, that we had not exhibited as much courage as had been shown by other nations, which were suffering less acutely than ourselves from misgo- vernraent; but at least there was this feeling, that the French people recognise the Irish nation as a kindred people to themselves — congenial in their feelings, in their habits, in their sympathies ; and that making every allowance possible for the peculiar difficulties with which we are surrounded, they feel the most intense desire to witness the libera- tion of this country. Among the incidents that occurred during my stay in Paris, it may perhaps not Jbe unacceptable to you to know that we had the pleasure of meeting one whose name carries with it no small portion of respect in this country — one of those who unfortunately failed in ’98 — but who, at the age of eighty-five, retains as genuine a feeling of THE QUEEN WILLIAM SMITH O’BRIEN. 181 patriotism, as ardent sympathies for this country, as any youth of twenty amongst you — I mean General O’Connor (loud cheers). We had the satisfaction, also, of meeting no inconsiderable number of Irishmen, who had been resident for some time, engaged in professional and other occupations, in France ; who feel towards this country an affection which has only become more intense, in consequence of its being con- nected with the feeling, that they are involuntary exiles from the land in which there has been no sufficient scope for those energies and powers which they possess. And believe me, if ever it should become necessary to vindicate the rights of this country by an appeal to ulterior proceed- ings, that you will find flocking into you from every part of the world, Irishmen imbued with sympathies for this land, as warm and as affec- tionate as any you can feel yourselves, and perhaps possessed of a greater determination (cheers) and more accomplished skill than any of us possess. I took the liberty, and it is right in justice to my friend that I should throw on myself the causeof his absence to-night — I took the liberty of suggesting to my friend Richard O’Gorman, who was one of our deputa- tion to France, that it was desirable he should remain in Paris for a few weeks, at all events, until the trials should take place. 1 did so, in order that we might have amongst us one who should perfectly know all the resources which are av'ailable at Paris (cheers). I think we can promise for him, that his time will not be wasted in frivolous pursuits in that city, in that metropolis of pleasure. 1 believe he has already commenced his mili- tary studies (cheers). He has had the good fortune to make the acquaint- ance of some very able men, and very brave men, natives of this country, who are at present in the National Guard of Paris (cheers). He has had the good fortune to make the acquaintance of several distinguished Irish officers in the French army. He has had the opportunity of being placed in communication with several of the leaders of the democratic clubs in France; and if he should think it desirable, he is able to present himself at any of those clubs to awaken the sympathy of the Parisian population in favour of this country (cheers). I think I have said enough (cries of ‘No, no’) to show you that the counsel which I gave him, that he should remain — in which opinion I beg to say, all the members of the deputa- tion unanimously coincided — a few weeks at Paris — I think I have shown enough to satisfy you that that advice was not altogether misapplied. And now I trust you will allow me to add for his benefit and instruction, some additional advice on my part, which is, that he should take care not to commit himself in any way that should place him within the power or operation of the English Government. There is no necessity whatever for sacrifices which produce no result; and amongst your ablest and most efficient men, I regard Mr. Richard O’Gorman, jun. I therefore trust he will not come home, to be put up into prison on his arrival. Perhaps you have some desire that 1 should continue the narrative of my journey. Well then, I have to tell you, that upon leaAung France it was my duty to become witness to a scene of a very different character to those which I had seen in Paris. I am one of those who, without professing personal courage, yet deem it my duty to say in London what 1 say in Hublin (cheers); and, inasmuch, as I had been charged with the utterance of certain sentiments which were reputed in this country to be seditious by the officers of the British Government — the law officers of the British Government — 1 felt it to bo 183 SPECIAL COMMISSION, CO. TIPPERARY. my duty to give tlie House of Commons a frank and fair opportunity of judging how far those sentiments were or were not seditious (cheers). It is scarcely necessary that I should describe to you the scene that fol- lowed. There was a time when Englishmen used to speak of the Plouse of Commons as the first assembly of gentlemen in the world. I will ask my friend, Mr. Meagher, who happened to be present on that occasion, how far he thinks that their conduct on the late occasion sustained that character. All I can say is, that having had some occasion a few months since to complain of the conduct of the butcher boys of Hercules-street, in Belfast, I am now happy to be able to congratulate them upon being infinitely more mannerly, infinitely more generous, infinitely more mag- nanimous than the first assembly of gentlemen in the world. Perhaps I ought to go further, and congratulate the bull-dogs of Belfast on a similar pre-eminence. “ Now you are all aware that a bill is at this moment passing through Parliament, for the purpose of extinguishing, if it be possible to extin- guish it, the rising spirit of this country (hisses and groans) ; and as I think on all occasions it is extremely desirable, that the people of this country who engage in political agitation, should know precisely what are the objects which they are seeking, what are the risks which they are encountering, and that we should cease to maintain that character for bravado, which I am afraid some of our recent history has rather tended to throw upon us — I mean to say the utterance of very strong opinions, without any determination to sustain those opinions by actions — I will take the liberty of reading to you that, which is about the least acceptable description of composition to a popular audience, a portion of this act of Parliament. The principal clause of this bill, which enacts penalties against the Irish people, is as follows And then Mr. O’Brien read the clause. And be it enacted ” You don’t want that read, sir ? Mr. Whiteside. — No, certainly not. Witness {reading ). — “ It is right I should add I am informed by lawyers, that one of the effects of a conviction for felony is, that the person so convicted, forfeits whatever property he possesses. Now, I have no hesi- tation in saying, that if that law had been in force, and had been enacted in 1831, at the time of the passing of the English Reform Bill, Lord John Russell, Lord Stanley, Lord Fitzwilliam, and almost all the other leaders of the Reform party of that day, would have been liable to transportation for life. But be that as it may, the question I have to ask you, gentle- men, and the rest of my countrymen, is this, whether they will allow this great national effort to be put down even by such a bill as that] (Cries of ‘No, no.’) Speaking in your name, venturing to speak on the part of no inconsiderable portion of the population of this country, 1 told them that they would laugh to scorn that bill. And now I want to know whether there be spirit enough amongst you — whether there be spirit enough amongst my fellow-countrymen to render the practical execution of that act impossible] They may indict an individual for felony; but I think it is utterly impossible, if there be an indication of manly spirit in this nation — I believe it to be utterly impossible for them to indict the Irish nation. Do I then, when I counsel you to meet legislation of this kind by determination of the boldest character — do I counsel you to rush into a precipitate and foolish conflict ] Far from it. Have you THE QUEEN t;. WILLIAM SMITH O’BRIEN. 183 read the last article in The Times They absolutely go the length — the writer goes the length, of calculating on our precipitation, as the necessary result of those inflammatory harangues which some of us are supposed to be in the habit of addressing to our fellow-countrymen in the peculiar position which we happen to hold as the leaders of the Irish people. Now it is perfectly manifest that nothing is so much desired by the Government of England, and by all those who abet that Government in its iniquitous domination in this country, as that the people of this country should enter into a premature conflict with a power which they fancy has at this moment a means at its command of eftectually repress- ing the public sentiment. Let us beware how we realize those their wishes. We have still much to accomplish. Eirst of all, the grand de- sideratum, which must be the basis of all our national exertions, has not yet been fully attained — I mean the union of the repealers of this country (cheers). I see indeed in this meeting to-night, at which I believe there are at least as many of those who are followers of what is called Conciliation, as members of the Confederation (Wes, yes,’) — I see in this happy union to-night — I see in similar institutions ” Mr. Whiteside. — “Manifestations?” — No, it is “institutions” in my transcript. Mr. Whiteside. — “ Manifestations ” is the same. Witness {in continuation). — “ I see in similar institutions in all the great towns in the country, in Kilkenny, in Cork, in Limerick, in Water- ford, in Galway, in Newry, in other portions, in Belfast — I see a full inti- mation, that the period is not far distant, when all the repealers, let the leaders say what they please, when the Irish people, when the repealers of all classes and sections, putting aside this leader or that leader, who will not lend himself to the national sentiment — I see a full intimation that the time is not far distant, when that happy union, fraught with blessings to this country, shall be fully accomplished. God send that that day may not be far distant. But there are also other indications, of a character still more cheering than the union of those who have been recognised as adherents to repeal. 1 mean the fraternization of those who have hitherto been opponents to us. Can any one read with- out ecstasy the proceedings that took place the other day at Drogheda ? If I am not misinformed, the Protestants of that town intimated to their Catholic friends, that it was not desirable that they should even present themselves at the meeting which was to be held for the purpose of considering the union of the country; but that the manifestation there to be made in favour of repeal, should be unequivocally and spontaneously addressed to the country, as the sentiments of the Protestants of that part of the country. Happy, happy, indeed is the omen — that from the very seat of those former feuds, the very spot on which now rises a mo- nument to commemorate a battle, where Irishmen were separated from Irishmen — that on that very spot, these A^ery scenes fraught with the memory of past strife, this fraternity should commence, and that Irish- men, Orangemen and Catholics, should meet by the side of the Boyne, to mingle in blessed union for the sake of their common country. Am I misinformed, when I am told, that a similar movement is in progress in Dublin, and that we may expect, within a few days, a manifestation of the Protestants of Dublin in favour of repeal ? Upon that subject I will say nothing. Perhaps words from me, considering the position which I 184 SPECIAL COMMISSION, CO. TIPPERARY. have held, may tend rather to prevent than to facilitate that union. But I am quite sure that there is not one man present here, there is no Catholic especially here, who will not he prepared to give to his Protes- tant fellow-countrymen in this metropolis, every guarantee that men of truth, and honour, and virtue, and courage can give, that for their own sakes, and for the sake of the country, the Protestants of this metro- polis should at last awake to their true interests; should save themselves and their country from the ruin which now menaces it, by uniting with us in fraternal union, which they never shall repent of. Let me tell you, that among the incidents connected with our visit to Prance, there was none to me more interesting, than to find every member of your depu- tation, spontaneously placing upon his breast the emblem of Irish union, and uniting the orange with the green, in connexion with the tri-colour of France. Now, I think it right to avail myself of this, the earliest opportunity of addressing my fellow-countrymen, and imploring them most earnestly, to do all in their power to remove the unworthy fears, the unfounded apprehensions, which prevail upon the part of many who do not know the sentiments which animate your bosoms. There are, 1 am sorry to say, I have heard it upon evidence which I cannot question — there are in the country many who suppose that our object, and the ob- ject of those who participate in this great national movement, is not to attain great national rights — not to obtain the power of legislating bene- ficially for all parties ; but, under the pretext of repeal, to make that agitation, accompanied as it may possibly be, by the exercise of force, .an instrument of pillage, and a means of promoting social anarchy. I believe that sentiment is utterly without foundation- If I thought there was a single man in this assembly who entertained such an opinion or desire, I should ask him to come forward, in the name of manhood, and to state his views here, and allow us to know upon what sentiment of public duty, upon what hope of public benefit, such intentions were founded. I should encounter him as the worst enemy of the country; and I should have no hesitation in saying, that the sentiment of every man who is engaged in this great national effort would be that of un- qualified condemnation of any such attempt. Therefore, I say, that these fears are utterly without foundation, and that these apprehensions are unworthy of those who indulge in them. And now, having asked you to do all in your power to promote that essential union, which must be the foimdatioii of all our national exertions, I am here to remind you, that a large portion of this assembly at least is pledged to the car- rying out of certain measures, as a portion of the national policy of this country, and among these is the formation of a national guard — aii army of volunteers of 1848. I think that the population, old as well as young Ireland, acted pretty extensively upon the advice which was given by the Irish Confederation, that every man in this country should endeavour to provide himself with some description of weapon or another (cheers). I am not at all sorry that those who have advocated the prin- ciple of moral force,’ should see that the time was come, when it is neces- sary to sustain moral force by those implements, which have been hither- to found effective in controlling bad men. Nor do I regret, even although the sentiment may perhaps by some be deemed heterodox — I do not re- gret, I confess, that the Orangemen of the north are obtaining possession of arms. I do not regret that certain of the southerns are obtaining TEE QUEEN t- WILLIAM SMITE O’BPJEN. 1S.> possession of arms. I believe it to be the right of every Irish citizen to possess arms ; and I am quite sure that the country will be much more respected by England, and by mankind in general, when every Irishman possesses arms. Now, with respect to the formation of a national guard, or volunteer array, I have taken, and so I believe have my colleagues in the deputation, a great deal of pains to obtain the existing organization of the French national guard ; and I trust, if I am not in prison, I shall have an early opportunity of submitting in detail to you, not only my own views, but the views of others, which you will justly estimate, upon that subject. I can only say, generally at Ihe present moment, that I think it necessary that in each district of Ireland there should be dis- covered a list of those who are willing, iu the face of day, and in the presence of the authorities, to indicate, if it be necessary, to Sir George Grey, or Lord Clarendon, their intention, should the circumstances of the country require it, to appear upon a given day in arms (cheers). There is another portion of national policy, I was about to forget, that I hold in my hand the flag which once was honoured by being carried by those noble men, who won for this country that legislative independence of which we were afterwards so shamefully defrauded. A more inesti- mable present could not have been made to me than that which has been made to me to-night by the gentleman who has presented me with this flag; and although I may, perhaps, within a few days be conflued within the walls of a gaol (cries of ‘Never, never), I assure you I have a very sincere conviction that this flag will be the flag of a regiment of volun- teers in your city — of a regiment of the volunteers of 1848. Now, I confess I have not as yet had much opportunity of practising military exercises; but, at the same time, I do not acknowledge that there is any thing that any individual in this assembly is disposed to do that I am not disposed to participate in ; and, commencing with my functions as a private in the volunteers, I trust I may expect, if I should enjoy the confidence and good-will of my comrades, to be placed in a position of command in a regiment of which this flag shall be the standard.” 27ie Lord Chief Justice. — Are there many more pages ? — There are twenty-five more, my lord. How many have you read % — Thirty, my lord. The Solicitor- General. — My lord, we do not require any further portion of this sj)eech to he read. j\[r. Whiteside. — I have no desire to make that speech secret ; and therefore, my lords, as part of it lias been read, with great deference I say, they should read the rest of it. I do not know what it is about. The Solicitor- General. — I was only suggesting it as a matter of arrangement. The Lord Chief Justice. — Cannot you give copies ? The Solicitor- General. — No, my lord, we have no copies at present ; I will take care they shall have copies. Lord CJ tie f Justice Doherty. — I understand your proposal to be, to furnish the gentlemen who are concerned for the prisoner with a full copy of the speech, and to allow them in opening 186 SPECIAL COMMISSION, CO. TIPPERARY. their case, to refer to any part of it they may think proper, as if it had been all read here for the Crown. Mr. Whiteside. — If there are five and twenty more pages of that, I do not wish it to be read if I am furnished with a copy of it. Of course, if we use any part that has not been read, we use it as part of the case for the Crown. The Solicitor- General. — Certainly. The Lord Chief Justice. — It was merely with the view of saving time. The Solicitor- General. — It is now to be considered as read as part of our case, and I will undertake that you shall be furnished with a copy of it. Of course it is to be considered as read ; and if it is referred to on either side, we shall be at liberty to refer to it again in reply. The Lord Chief Justice. — Certainly. Mr. Whiteside. — Y^ou will take care to get us a copy? The Solicitor- General. — I will. Witness. — I will take care that you shall have an examined copy. Mr. Whiteside. — I thank you. [The remainder of the speech, which was taken as read by consent of all parties, is as follows : — ] “ There is another portion of our national policy upon which the public sentiment in thiscountry appears to be nearly unanimous, it is the formation of a national council — a national council of three hundred. Now, I am very happy to find that some objections which were raised by astute lawyers to that proposal have been removed ; and I believe I may ask those who represent the repeal secession here to-night — and 1 trust that notwith- standing the veto which has been placed on their appearance amongst us, that we shall find them taking their places as honorary members of the Irish Confederation — but I believe that they will be able to tell you that the members of what used to be called the Old Ireland party, are as anxious for the formation of this national council as we are (cheers). Indeed I have reason to know that nothing is required except some defi- nite plan of organization which shall enable the country to speak its sen- timents in that respect. And I can truly assure those gentlemen who so ably represent the Repeal Association here to-night, that we shall enter into frank counsel as to the best mode which, after all, originated with the late illustrious leader of the Irish people, of carrying that proposal into effect. In the meantime, whilst these great projects are under con- sideration, I would strongly recommend you to organize the formation of additional clubs. There are at the present moment only five or six clubs in this metropolis. There ought to be twenty. “Mr. Barry. — There are ten. “Mr. G'Brien. — Mr. Barry informs me there are now ten. When I left Dublin there were only five. That promises the realization of what I am about to suggest. Every knot of patriots, be they numerous or be they few, ought, for the purpose of obtaining that power which depends on co- operation, to form themselves into local clubs. I am happy to find that THE QUEEN v. WILLIAM SMITH O’BRIEN. 187 there has been one formed since I left Dublin which promises to be very efficient — I mean the Students’ Club. I have not had an opportunity yet of visiting that club. I hope to do so before long; but I shall be very much disappointed if those students do not show that they study the interests of this country, and the means of promoting its interests with effect. I know not how far my advice may be acceptable — perhaps it is very arrogant in me to offer it; but I would strenuously and earnestly supplicate that all who are engaged in this effort with us should abstain from entering into secret societies. I think that history tells us that secret organizations have almost always failed. They place the destinies of the country at the disposal of any traitor who may be disposed to enter; and, under the present circumstances of the country, however much we may confide in each other — and no man more than I would endeavour to inculcate the spirit of confidence in each other — yet, it is impossible to say how far the Government may place, in the different secret societies in Ireland, some person whose duty it will be, first of all to instigate to crime, and then to betray his deluded victims. I believe, therefore, that the circumstances of the times do not require it. I believe that a manly and open effort of this nation, if there be such a thing as national spirit in this land, is enough to achieve our liberty. For my own part, I will never be a jjarty to any proceeding which I should not be prepared everywhere to justify (cheers); and therefore it is I give my unaffected but very humble advice to all who hear me, and all whom you can influ^ ence, to abstain from entering into any of these secret associations. Per- haps I may be permitted to express the deep satisfaction I have felt in finding, that the suggestion that was thrown out by me on the former occasion, has been acted onto a very considerable extent; I mean those who are pledged to the attainment of Ireland’s legislative independence should abstain, until that object has been achieved, from the use of all intoxi- cating liquors. I know not exactly what the circumstances of the case were, but you remember that within the last month a case occurred where a man in a state of intoxication ran about the streets calling out, ‘ pikes, pikes.’ Now, observe, that man probably was a spy (cries of ^He was’). I assume he was a spy; but an honest man might do the same thing, because, after all, when a man becomes no longer master of his senses, it is quite clear that whatever is uppermost in his mind will probably dis- play itself in his address to others. And, under those circumstances, if he should happen to be thinking about pikes, it is not at all improbable he would go about the streets calling pikes, and perhaps doing something very atrocious that would tend to bring into disgrace and discredit the whole of the party with whom he was connected. Therefore, on every ground, I would earnestly recommend you to give effect to that sugges- tion. There are multitudes of men in this metropolis who, being already committed to a pledge of a more general character, can have no difficulty in accepting the minor pledge of self-denial; but, at all events, it would be a great satisfaction to me to meet any number of those who are dis- posed to act on that proposal. And I may take this opportunity of giv- ing a public answer to the solicitation which I received before I left Dublin for Paris, that I should be extremely happy to meet, on any occa- sion, and in whatever numbers, any of those who may be disposed to participate in the pledge which I have made on my own part, and which I have hitherto been enabled faithfully to preserve. 188 SPECIAL COMMISSION, CO. TIPPERAIIY. “ Another suggestion which I have to offer to the country is, that the peasantry in the country, even the humblest of them, should make pre- parations for the effectiA^e tillage of the land during the ensuing year; and that they should endeavour — 1 am not sure whether the word is what they call ‘ legal’ — that they should endeavour to provide before next August what is called ‘a good commissariat.’ Now, I have to apologize for taking the liberty of acting as a sort of public instructor on the pre- sent occasion. I have no pretensions to eloquence. I leave eloquence to my younger friends ; and inasmuch as I have the advantage, such as it is, of having a little more experience in years, all I can tell them is, that I never hear a dazzling sentiment expressed in beautiful language by any one of them, without feeling as proud on its utterance as if it was delivered by myself. I will ask you, before I close, to extend to me your indul- gence and sympathy. I feel that I am placed in a position of great responsibility. I feel that the accident of ill health, want of sufficient nerve — that a thousand casualties over which none of us have any con- trol may, in my person, tend to imperil the great cause in which we are all embarked. It may be some satishiction to you to know that my spirit hitherto has risen with the prospect of the encounter; and so far from being dismayed by those machinations, which may have the effect of consigning me to a dungeon, that they only come to me as a welcome opportunity of exhibiting to the country, that when I joined you in this great national struggle, I did not mean merely to share with you the de- lights of holiday excursions, or the parade of sentiments which were cal- culated to obtain a momentary cheer, or what is called ‘ vulgar popularity.’ I think that was the expression used to-day by the counsel for the Crown on the bench. These are the best expressions which the gentleman appointed as the judge to try the case impartially thinks proper to apply to the motives which animate us. Now, I confess, with reference to a speech I made last Monday, that I displayed an arrogance which, I hope, is unusual with me. I did venture to tell the House of Commons, feeling I was surrounded by men whose lives had been devoted to obtain pre- eminence for themselves and their party — who have resorted, when they have been out of office, and when they have been in office, to expedients calculated to mislead the public as to their real intentions, for the purpose of securing to themselves those opportunities of distinction, of place, and of patronage, which are within the range of public men — I did venture to tell those men that I felt I was their equal in point of good intentions — I might have told them, I believe, that I was their superior. When these men talk to me about a desire of notoriety I tell them that I act advisedly, that I entered into this struggle having nothing to gain — per- sonally speaking, nothing to gain and much to risk — that there was no object of legitimate honour Avhich I might not have been entitled to aspire to, through the ordinary channels of distinction, if I had not preferred to sacrifice myself for this country (loud cheers). And therefore, when Judge Crampton endeavours to raise a prepossession against me in the minds of the jury by acting as a partisan for the Crown — as counsel for the Crown, instead of being, as he ought to be according to the constitu- tion of this land, the counsel for the accused — I fling back the charge ; and T tell him that my motives, in every action of my life, have been, and doubly so are now, as pure as any that ever animated his bosom. Gen- tlemen, I think I am enabled to assure you, that if the present Govern- THE QUEEN y. WILLIAM SMITH O’BRIEN. 189 ment and their emissaries in this country — those unhappy Irishmen wlio make themselves the tools of a foreign Government — that if they should succeed in consigning me to a dungeon, that they will not subdue that spirit which has induced me to take a part in your j)roceedings here to- night. I hope I shall be enabled to assure them too, that they shall not succeed in crushing your spirit, or the spirit of this nation. At all events, you may rest assured of this, that whether I be in prison, or whether I be at large — whether it be my fate to enjoy the good-will and affections of my fellow-countrymen, or to labour under the pain — and pain it always has been — of suffering their disapprobation, that my fondest affec- tions shall ever be given to this people. Truly do I adopt the beautiful language and sentiment of one whom I am sure you will not think the less a patriot, because he happened to be a clergyman of the Established Church ; and I may, perhaps, end this feeble address by lines of no ordi- nary beauty, espousing them as the sentiments of my own heart : — “ ‘ 0 Erin ! 0 my mother, I will love thee, Whether upon tliy green Atlantic throne Thou sitt’st august, majestic, and sublime ; Or on thy empire’s last remaining fragment, Bendest forlorn, dejected, and forsaken — Thy smiles, thy tears, thy blessings, and thy woes — Thy glory and thy infamy be mine.’ ” The Solicitor -General {to the witness ). — Now will you turn to the 19th July — The Irish League Meeting. Mr. Whiteside. — Don’t call it The Irish League.” The Solicitor- General . — I will prove that I am only calling it what you call it yourselves. Witness . — “Meeting of the Irish League, Music Hall, 19th July, 1848.” Mr. Whiteside . — What year? — This year, 1848. The Lord Chief Justice . — What date? — 1 9 th July, 1848, my lord. Where did that meeting take place ? — At the same place, my lord — the Music Hall. The Solicitor -General . — Did you see Mr. O’Brien there ? — Yes. The Lord Chief Justice . — Was there any difference between the Irish Confederation and the Irish League ? — A very great one, my lord. The Solicitor-General . — Did you at this meeting, and in the presence of Mr. O’Brien, hear any statement of this being called a meeting of the Irish League ? Mr. Whiteside . — Hear what called; a statement of what being called the Irish League ? Witness . — I cannot answer that question. The Lord Chief Justice . — Was Mr. O’Brien at that meeting of the 19th of July ? — He was, my lord. Mr. Whiteside . — You were about to explain to the Solicitor-General that you could not answer me what it was called ? — Mr. Solicitor asked me, did I hear it called a meeting of the Irish League. The Solicitor- General. — Don’t answer Mr. Whiteside any question at present ; don’t pay the slightest attention to what Mr. Whiteside says while I am examining you. 190 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Whiteside . — But lie was about to explain to you some- thing that you asked him. Witness. — Mr. Solicitor put a question to this effect, did I hear the meeting of tlie 19th July called a meeting of the Irish Leagye by Mr. O’Brien, or in his presence; I say in answer to that that without he says so in this speech I never heard him say so. The Lord Chief Justice — Is that a note of his speech made on that occasion which you hold in your hand ? — It is, my lord. The Solicitor- General. — Before, my lord, we go to this speech of the 19th of July, there is one question which I forgot to ask when we stopped the reading of the speech at the meeting of the 15th April. [To the witness.) — At that meeting of the 15th of April did you see Mr. Meagher there and Mr. Mitchel ? — I can tell you by referring to a document. Mr. Whiteside. — Was that document written at the time 1 — This is a table made from my notes taken at the time. Mr. Whiteside. — My lord, I object to his refreshing his memory from that document which was not made at the time. The Solicitor- General. — My question, my lord, was this : I asked whether Mr. Meagher was there. He said he was. I asked him whether Mr. Mitchel was there The Lord Chief Justice [to the witness). — Was Mr. Mitchel there? — He was. Mr. Whiteside. — I understood the witness to say that he could tell whether Mr. Mitchel was there if he referred to some document. Witness. — I can answer it without referring to the document at all, my lord. Mr. Whiteside . — Very well, that is the advantage of having a note. Witness. — If Mr. Whiteside wishes, I will just explain. Mr. Whiteside. — Do you mean to tell us that Mitchel was at the meet- ing of the 19th of July ? — Not at all. The Solicitor- General. — This is the meeting of the 15th of April that I am asking him about. Mr. Whiteside. — And you remember that without referring to any paper ? — Perfectly ; I shall never forget it. The Solicitor-General. — Well, having got that, we come now to the meeting of the 19th of July of which you were about to speak. Will you be good enough to state to the jury from your note what Mr. O’Brien said on that day ? Witness [reading). — “ Mr. Smith O’Brien. — Mr. Chairman, I have been honoured by a request that I should propose as members of the Irish League the reverend gentlemen whose names I am about to read — the Rev. THE QUEEN v. WILLIAM SMITH O’BELEN. 191 Richard Ennis, the Rev. Charles Grady, and J ohn Martin of the City-quay. I have also been requested by Mr. John O’Neill, of Cork-street to move that he be admitted a member. And now, gentlemen, I was under the impression that I had during the last fortnight experienced about as intense excitement as an individual is capable of receiving, from meeting large popular assemblages in which he has the good fortune to be greeted with the enthusiasm of a hearty welcome ; but you have outdone to-night all that I have witnessed dur- ing my recent excursion. It may be satisfactory, however, to you to know that your feelings are shared by men in the most remote parts of this island. It is now a fortnight since I left home, and during that period I have visited the county of Kerry, and the western portion of the county of Cork; and I have found in those remote regions as intense an ardour, as patriotic a devotion, as that which I witness here to-night. Shall I add as stern a determination ? I am authorized to communicate to the people of Dublin that the men who dwell in that portion of Ireland which has suffered perhaps more than any other from the disastrous effects of misgovernment acting upon a visitation from Providence' — I mean the district about Bantry — that the men of the west of the county of Cork are prepared to co-operate with you in every endeavour you may undertake. x\t Berehaven, the nearest point to America, I received similar assurances. At Bantry, at Macroom, at Killarney — in short, wherever I passed, there appeared to be but one unanimous feeling that the time was come when one great and simultaneous effort was to be made by the Irish nation to accomplish its freedom. I hope you have read an account of the proceedings at Cork. They call it a review of my troops j but I am happy to assure you that I met two thousand men as well arrayed, as capable of efficient action, as any troops in her Majesty’s service ; and I met at least ten thousand able-bodied men who promised to support and sympathize with them. Observe, I do not wish to speak of the troops in her Majesty’s service as opposed to the men whom I met in Cork. I have had the satisfaction of being welcomed by many of my countrymen who wear red coats also, during this excursion. “ And now, gentlemen, I have just returned this very day from an excur- sion into the county of Meath. On Monday last I had the pleasure of meet- ing a very large assemblage of the citizens of Drogheda — an assemblage comprising all classes of the inhabitants of that town, and individuals belonging to all creeds; for Drogheda has the good fortune of presenting the example to the rest of Ireland of being the town in which religious differences no longer produce any difference in political opinions. I am authorized on behalf of the people of Drogheda to tell you that whenever you call for their co-operation, that co-operation shall not be withheld. Erom Drogheda I proceeded to Navan, and I was introduced into the town of Navan by as well-organized a club as any in the kingdom, or rather by two clubs numbering about five hundred men. I had the pleasure of addressing in the vicinity of Tara a very large multitude at Navan, who appeared to me to be animated by all the enthusiasm which was exhibited at that glorious epoch in 1843, when the Irish nation as it were assem- bled on the hill of Tara. Erom Navan I proceeded to the ancient city of Trim; and there, too, I had the satisfaction of meeting an extremely well-organized club. I, therefore, have the advantage of coming to meet you with the assurance that you are not alone in this great movement. And now you must not expect to hear from me any exciting topics here 192 SPECIAL COMMISSION, CO. TIPPERARY. to-night. I am fully resolved not to bring myself, if it be possible, within the operation of the Felony Act. I owe it also to the gentlemen who have entered into association with us to fulfil the pledge, by which I consider myself bound, on entering this Irish league, that we will, until we find all constitutional methods exhausted, through the agency of this league, unite with them in constitutional efforts. “Now it is not necessary for me to re-argue this question of repeal. There is not one of you that has not had during many years abundant opportu- nities of listening day after day to arguments which have fully convinced your minds as to the necessity of seeking for this country, the power of domestic legislation and self-government. But if I wanted arguments derived from the current course of events I should find them abundantly in the proceedings of the present session. What do we see ? These Whigs when they were suppliants for power — when they sought to obtain your suffrages, and the aid of your parliamentary assistance, in order to row them into office, they were large in their promises of remedial measures which they designed for Ireland. What has been their fulfilment of these promises ? We cannot forget the disastrous events of last year — the year ’47. But look to their conduct during the present session. They were invited almost unanimously by the Irish members to take into considera- tion the question of the poor law, with the view to see whether a more efficient system could not be established, on the one hand, for relieving the necessities of the poor, by employing in a profitable manner the popula- tion of the country; and, on the other hand, protecting as it were pro- ])erty from the enormous pressure of the poor rates which are now squandered without result. That appeal by the overwhelming influence of British majorities they set at nought and overruled. They have deluded us indeed with the promise of a franchise bill. I believe that this is the tenth session during which they have attempted to delude the Irish people with a similar promise ; and, believe me, although they have on various occasions pledged the royal word, and made the Queen, at the opening of the session, hold out to her Irish subjects the belief that a franchise bill would be passed, that promise, too, will be during the present session, as during preceding sessions, violated. Then, again, with respect to tenant-right they bring in a bill professedly for the purpose of securing to the tenant his just rights. And what is the operation of that bill — which by the way has gone to sleep in a committee — been shelved in a committee % ” Mr. Whiteside . — Which bill is this ? — The tenant-right. {Reading in continuation .) — “ The immediate and direct effect of that enactment, if passed into a law, would have been to deprive those Protestant yeomen of Ulster on whose support they are now relying, and whom they are endeavouring to array against their Catholic fellow-countrymen (vain will be their endeavour) — I say the effect of that law proposed by them would be, to filch away from the Protestant and Catholic tenantry of Ulster that tenant-right which they have been in the habit of considering as their property. These are their remedial measures. “ But what are the substantial enactments which they have placed on the statute book? Nothing but measures of coercion. Under the pretext afforded them — alas ! I regret that I am compelled to confess a pretext was afforded to them — by casual murders that took place in two counties in Ireland, they obtained a power of disarming the population. That power they are now applying not for the purpose of suppressing outrage and miir- THE QUEEN v. WILLIAM SMITH O’BRIEN. 193 der, but for the purpose of depriving the Irish people of that constitutional right which we are taught ought to belong to the freemen of every land, the right to bear arms. Within the last twenty-four hours we have had occasion to observe that even this city, in which such a thing as an outrage of the character which this measure was designed to suppress never has occurred, or any outrage — that this city is about to be placed under the operation of those enactments. And now, gentlemen, 1 do not here in this league feel myself called upon to express to you my opinion as to the mode in which you ought to treat that proclamation. 1 believe the most of you know very well what is your interest, and what is your duty. I apprehend that the effort to disarm the population of Dublin will not be found very successful; but I do — whilst I do not invite you to give facilities to the police for invading the privacy of your homes — I do upon my own part, and I must say upon the part of some of your most trusted friends, request that you will not make that proclamation the occasion of a general collision. “ Another of their enactments during the present session has been the Felony Act, as it is called — the Gagging Act — ^an act which enables the Government to transport beyond the seas men who shall by advised writing or speaking endeavour to maintain the rights of their native land ; and under that enactment we now see in the dungeons of Dublin, four of the ablest and most virtuous men in this country lying as prisoners, subjected to every indignity which a bad Government can inflict. Gen- tlemen, for these men I claim your sympathy. And now I feel myself again somewhat fettered, and my lips closed as to the advice I ought to give; but I call upon you deeply to consider what ought to be the con- duct of the Irish nation with reference to the trial of those men. I trust we shall not allow in this country such scenes to be again enacted as those which took place during the trial of Mr. Mitchel. 1 trust there will be an unanimous determination throughout this land that these men shall not be subjected to the same jugglery of injustice ; and that men who have been, after all, but exponents of the sentiments which every man amongst you feels — who have done nothing but that which every patriotic and virtuous man ought to do for his country — that if these men shall fall, the Irish nation is prepared to suffer with them. This will be a very important consideration in every public assemblage which will be held in Ireland during the next three weeks. I will not venture to antici- pate what will be the result of that decision ; but I invite my country- men to consider what is the line of conduct that befits them as men, struggling to be free, as men who have a generous spirit in their bosoms. I am, however, bound to say to the Government, that this is an occasion upon which a solemn warning will not be misplaced; and I speak my own individual opinion when I tell them, that it is my firm belief that if those men should be transported, or if an attempt should be made to transport those men, that the funds, within one week after such trans- portation, will be twenty per cent, below their present price. This is a consideration for the fundholders of England. I have no desire to strike down public credit — far from it. I believe every man amongst you is interested in upholding public credit. I believe, with respect to the banking establishments in this country, there is no part of the world which has firmer mercantile or financial concerns. Therefore I, for one, will not invite you to strike at public credit, I am stating that o 194 SPECIAL COMMISSION, CO. TIPPERARY. which 1 believe to he the general result of the financial condition of the empire. I believe one week after the transportation of these men the funds will be at least twenty per cent, below their present rate. There is, however, one question on which I am bound to relieve my mind, because I have been silent on it for some time, and I rather take blame to myself for being so. I came from a country in which I found a very large portion of the most industrious classes — the working classes — have been suffering very severely from the bankruptcy of some of the saving banks. And if any man asks me what chance there will be three months hence of obtaining money out of the saving banks of England, I tell him freely my opinion is, that there will be a very poor chance of getting it.” Mr. Whiteside . — That is, from the saving banks'? — Yes. The Solicitor- General . — Of England. Witness {in continnation ). — If this, therefore, be any admonition to the Government, I trust they will take the hint. Now, gentlemen, there are many topics upon which I would wish to address you with freedom, but I feel that we are now making a great experiment in which we must keep faith with those who have entered this association. I see many men before me eminently to be respected, whose opinions deserve all the attention which the weight of experience, and position, and virtue, and patriotism can give. They came here to co-operate with us, not for the purpose of effecting any sanguinary revolution, but they came here to see by a last experiment what may be the power obtained by concentreing into one focus the whole will of the Irish nation. I am happy to see here to-night the representatives of the citizens of Kilkenny. I am happy to be able to congratulate you upon the accession of a very considerable number of the Roman Catholic clergy of this country; and I am still more happy to tell you, that I have reason to believe that we shall, before long, have the accession of still greater numbers from that body. I believe I am at liberty to state to you, that I had to-day a long con- versation with one of the most eminent, perhaps the most eminent, of the Catholic bishops of this kingdom, I mean Dr. Maginn, of London- derry. I believe there is no man among you entertains sounder doctrines, with respect to the rights of the people, than he does; but he feels that, as a clergyman, it is his duty to forbear from entering into any association which is formed for purposes other than of constitutional action. And I believe it is the intention of that revered prelate — so eminent for his virtues — so eminent for his distinguished talents — so eminent for his great influence throughout this land — I believe it is his intention, provided you pledge yourselves, as has already been done to-night by the resolution submitted by Dr. Cane, to a course of con- stitutional action, not only to present his own subscription, but to send in the adhesion and subscription of all his clergy. On the other hand, let it not be supposed that any man in joining this association is cpJled upon to enter into any pledge that he will forego his rights of manhood. For my part I confess, though I am of a peaceable disposition, that I should not have been a party to the formation of this League, if I felt myself in any degree whatsoever fettered in regard to any ultimate con- THE QUEEN v. WILLIAM SMITH O’BRIEN. 195 tingencies that may arise in vindicating the honour and the rights of this country. But I am contented to act in the League with those men who are desirous to try every experiment that can be made of another character; and believing that those men, if the hour of trial did come, would be as resolute as the noisiest declaimer amongst us, possibly that they would be more ready than many of us who speak very largely about what we intend to do, to place themselves in the foremost position of danger — I say I enter frankly and cordially into co-operation with those men. Now, let it not be supposed that any thing I say to-night here has a tendency to discourage the formation of clubs. Upon that point we are each of us at liberty to entertain our opinions in this league. Some of the members of the League think it inexpedient to encourage the formation of clubs. That is not my opinion. I believe that the position of this country would be infinitely safer than it is at the present moment if there was a club in every parish in Ireland. I believe that there is no more securer method of obtaining the respect of those to whom you are opposed, than to place yourselves in a position to be able to dispense with their favours and to defy their menaces. There- fore it is I witnesed, with the greatest possible satisfaction, the for- mation of clubs throughout the country. There are some parts adjacent to Dublin, where the organization is not yet perfected ; and I invite each of you, speaking in my own name alone, not on behalf of the League, to assist in perfecting that organization. But, gentlemen, this pledge we have made, and at my suggestion, to those who have entered into- co-operation with us, that these clubs shall be independent bodies, and that the League shall not be held responsible for their actions. I believe that every thing that is necessary to be done through the agencies of the clubs, may be done by them as bodies entirely independent of this association. If we were to affiliate all the clubs of Ireland with this League, the effect would be, that the League would be held morally and legally responsible for any imprudent acts that might be committed by any of those clubs ; and I believe that our central organization here will be infinitely more potential if it is exempt from such liabilities; whilst, on the other hand, I do imagine that the efficiency of the clubs will not be in any degree impaired by standing as they now stand, as independent bodies. “ There are several other gentlemen who are desirous to address you. I am not a little fatigued myself from the exertions of the last fortnight, therefore I shall reserve, till some further occasion, the observations I now feel tempted to make. I thought it necessary to say this much for the purpose of presenting to you my ideas as to the character of this association. I feel perfect reliance upon the good sense, as well as upon the ardour ” Mr. Whiteside . — Is it ‘^ardour” or “order?” — I have it “ardour;” but it is very possible I have made a mistake ; I am not infallible. The Solicitor-General — The same characters stand for “ ardour” and “ order” — don’t they % — They do. Mr. Whiteside. — Well, we will take it OY(\ev’ in favorem mtae. Witness (in continuation ). — “ of the population of Dublin; and I am perfectly satisfied that they will give a generous confidence to the Irish League, as constituted on the principles I have enunciated. I have proposed, and with success, that the next meeting of the League o 2 196 ^ SPECIAL COMMISSION, CO. TIPPERARY. ehould be held at Kilkenny. Kilkenny was the first town to declare in favour of an union of all Irishmen. Therefore, I think we owe them the compliment of going down, and carrying down with us as many of the citizens of Dublin as can conveniently attend at Kilkenny, for the pur- pose of reciprocating the compliment which the gentlemen who appear here to-night have done us in appearing in such numbers ; and also for the purpose of consulting the people of Kilkenny as to their opinions with respect to those important questions of national policy which- cannot but in a short time fail to present themselves for their adjudica- tion. I frankly tell you that the language I should hold to the British government, so far as I could speak in your name, depends very much on the spirit which is evinced by the Irish people. That which would be a mere idle menace or still more idle boast, if spoken as an individual, when it be enunciated on the part of a great nation as the indication of its determination and of its will, becomes no longer mere idle verbiage, but becomes the predecessor of action. And believe me, that if any trying times should arise, as I am afraid Lord Clarendon is determined trying times shall arise at no distant period, believe me, gentlemen, that you will come back to Dublin in a very difierent spirit to that which you entertain to-night, buoyant as you are with enthusiasm, if you are assured that a hundred thousand men from Kilkenny, Carlow, and Tipperary are ready to walk up to Dublin whenever you wish it. The resolution I have to propose is — ‘ That the arrangements entered into at the late conference of repealers, requires that the repeal clubs should continue totally independent of this League ; that this must not be under- stood to imply any disapprobation of local repeal clubs under proper management.’ ” That is the whole of that speech. The Solicitor-General. — Do you know Mr. Doheny ? — I do. Did you see him at any of those meetings of the Confederation or the League ? — I did. Did you see him at each meeting of the Confederation ? Mr. Whiteside. — There are only two meetings of the Confede- ration in evidence. Witness — Without referring to my notes I cannot tell you. The Solicitor-General. — It is quite open for me to ask you this ques- tion, Now, independent of those meetings, of which you have given us speeches, did you attend other meetings of this Confederation % Mr. Whiteside — There is no proof yet given, Mr. Solicitor, with respect to the existence of the Confederation. The Lord Chief Justice. — Was Mr. Doheny at any of the meetings? — Mr. Doheny was present at some of the meetings. Was he present at either of the meetings to which you have referred? —I can tell, my lord, if I refer to my notes. Mr. Justice Moore — Was he present at the meeting of the 15th of April ? — I can tell, my lord, by looking at this table. Mr. Whiteside. — Now, be certain, Mr. Hodges. The Solicitor-General. — I will make it certain, or else it shall not be made evidence. THE QUEEN WILLIAM SMITH O’BRIEN. 197 Mr. Whiteside . — Is it the fact or not, that you can swear positively that you saw him at any of those meetings ? {The witness referred to a paper which he held in his hand.) What is that you are looking at ? — This is the produce of a matter of fact. We want the matter of fact itself; we don’t want the produce of a matter of fact. Was that paper written at the time 1 — No, not at the time. Mr. Whiteside. — Then I object to your refreshing your memory with that paper. The Lord Chief Justice . — Can you, from your own memory, or from a document made at the time, state that he was present % — I can, my lord, independently of this table — I can state that he was there repeatedly. Was he there on the 15th of March? — I cannot say that he was — I know that he was present on the 23rd. Mr. Whiteside . — That is not the question you were asked. The Solicitor -General . — Do you recollect whether Mr. O’Brien was there on the 23rd ? — He was not. Mr. Whiteside I again object to this kind of evidence. The Solicitor- General. — The witness stated that upon a par- ticidar time Mr. O’Brien was not present — I am not putting it beyond that. [. .{To the witness .) — Give the date of that? — The 23rd of March. That is a meeting at which Mr. O’Brien was not present ? — It was. Mr. Whiteside. — Is that evidence ? It is a meeting at which Mr. O’Brien is not present. The Solicitor- General. — I asked the witness if Doheny was present at the meeting of the Confederation on the 23rd of March. The witness said that he was. Then, the next question I asked him was, was Mr. O’Brien present at the meeting? His answer was “no;” and I am not putting any further question on the subject. {To the witness .) — What nights of the week were these meetings of the Confederation usually held on? — There was no settled night of the week: it was Wednesday, I believe, generally. Mr. Whiteside . — “ Generally ” on Wednesday. That is no answer at all. The Solicitor- General. — He says, he cannot recoUect for cer- tainty the nights. {To the witness .) — You cannot give any other answer than that which you have already given? — No, I cannot. 198 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Whiteside. — That is no answer at all. The Solicitor-General. — Do you know, of your own knowledge, how often in the week these meetings were held? — I think not more than once; occasionally once a fortnight; it may have been held weekly, but I do not recollect exactly. Mr. Whiteside. — This is not evidence, with great respect. In any case when a witness says, I think weekly or fortnightly, it is not evidence, and particularly in a case of this magnitude. Lord Chief Justice Doherty. — It is not taken as evidence. Mr. Whiteside. — Very well, my lord, I am quite satisfied if it is not. The Solicitor-General {to the witness). — Now are you able to state whether you attended a meeting of the Confederation on the 6th of June? — I recollect that 1 did. You have stated already that you know Mr. Meagher. Did you see him there that night? — I did. The Solicitor- General. — My lords, in order that we may not get into any debate without first apprizing my learned friend what is the question I am going to ask, I propose to ask the wit- ness this question Mr. Whiteside. — Put your question. I am quite ready. The Solicitor-General. — Was Mr. O’Brien there? — No. The Solicitor- General. — I now propose that the witness should state to the Court and jury the speech that was made by Mr. Meagher on that occasion. Mr, V/hiteside. — That is totally out of the question. The Solicitor-General. — I beg your pardon ; that is a question to be argued. The Lord Chief Justice. — Mr. Solicitor, this is, at all events, premature ; there are not sufficient grounds to let this in at present. The Solicitor- General. — We meant to connect it with further evidence before we made it admissible. Cross-examined hy Mr. Whiteside. Now, Mr. Hodges, you are an experienced reporter? — I will not say that. Oh, yes, but we all know that you are. I believe that you are the best in your profession? — That is a question I will not answer. Is it not a very difficult and arduous pursuit, reporting the speeches of other men? — There is no doubt about it. It requires considerable skill, I believe? — A good many years. How many years would it take a man to be a good reporter? — I cannot answer that question exactly; it depends on the man’s talent. If you were to listen to a speech made in this court to-day, could you THE QUEEN WILLIAM SMITH O’BRIEN. 199 report it out of court, not having made a note at the time, this day- month ? — Not having made a note of it, I could not. It would be a tissue of mistakes and blunders ? — It would, if reported from memory at the end of a month. Such, you know, would be the difficulty of attempting to report a speech from memory'? — Yes. Now, Mr. Hodges, you are experienced, I believe, in reporting the agitation speeches of thi-s country ? — 1 have had some experience. When did you begin? — In 1843. Did you hear all the speeches made by the late Mr. O’Connell ? — I think nearly all that he made during the latter period of his life. Those which you have now read are tame, indeed, compared with what you reported of Mr. O’Connell’s ? The Solicitor- General. — That, you know, is not evidence. Mr. Whiteside. — Well, you reported them all? — A great many of them — most of them. Did you ever prove the first speech of Mr. O’Brien which you have given to this Court and jury against him before? — I did. On what occasion was that? — It was on the occasion of a prosecution against Mr. O’Brien. Eor what? — For sedition. Where? — In the Court of Queen’s Bench, Dublin. What was the result of it? — Now I must speak to a matter of belief. Well, what is your belief? — My belief is, that the jury disagreed. When in England does sedition grow into treason? — I am not very well acquainted with sedition in England. Were you never at any Chartist meetings in England? — No. Were you ever in the House of Commons? — Oh, yes, many times. Did you ever hear gentlemen speak there? — Yes. I beg pardon; I have said I was never at a Chartist meeting; I have attended Chartist meetings occasionally. I could refer you to some pretty stiff speeches made the other side of the water, if I chose. You proved that first speech of Mr. O’Brien’s on another occasion, in my presence? — I did. And you have told me the result of it. But this is the first time you proved this last speech, made on the 19th of July? — Yes, it is. You read a passage in that speech in which Mr. O’Brien stated that in a few days he intended going to Kilkenny, and holding a meeting of the League there? — I did. I believe that is the result of the speech? — Yes. That was on the 19th of July? — Just so. I believe I am right in saying that this body, called the Confederation, was dissolved before this, and the League was the result? — I never knew any formal dissolution of the Confederation to take place. But it was amalgamated with the League? — Yes, undoubtedly. Were you present when the rules of the League were read? — I was not. Did you never hear them read? — I may have done so. Could you give them to the Court and jury? — I don’t think 1 can; 200 SPECIAL COMMISSION, CO. TIPPERARY. and I will give you a reason why ; I was not present at the first meeting of the League. On what day was the first meeting of the League? — It was a day on which I did not attend. I was down in Cork; Mr. O’Brien was down in Cork with me. You were an attentive friend of his? — Not particularly so. Was not the first meeting of the League about the 6th of July? — I believe it was on the 10th of July. The Lord Chief Justice . — Were you there yourself ? — No, my lord. Mr. Whiteside . — What was the second? — The 19th. Then don’t you know, in point of fact, although you were not there, that the first meeting was the 10th? — I believe it to be so. Don’t you know that the rules for the conduct of that society were framed by Sir Colman O’Loghlen? — I don’t know that fact. You have heard the words “constitutional agitation” before, I sup- pose? — I have heard them frequently. You have heard that a long time in Ireland. There is nothing at all new in that? — Nothing at all. It has been used for the last twenty years. Did I understand you to say, Mr. Hodges, that at one of these meetings Mr. O’Brien said, “ladies and gentlemen?” — I think so. 2'he Lord Chief Justice . — That is, the meeting of the 15th of April? — - Yes. And were there ladies there? — Yes, my lord. Mr. Whiteside . — Have you seen ladies there often? — I have seen ladies there frequently. When you informed Mr. O’Brien that you meant to report every thing he said to the Government, you were accommodated with a seat, and given every facility for the purpose of reporting what passed? — The best situation he could find, and the best accommodation be could give, he gave me. There was no concealment in any thing? — No; I think if superior accommodation could have been afforded me, it would have been. And every document you asked for was freely given you by the secretary ? — Yes. And you faithfully transmitted them to the Government? — No, I do not say that. Well, then, they could get them whenever they chose to ask for them ? — Yes. You are employed by the Government? — Undoubtedly. I kept them in my custody. And whenever they asked for them, you gave them ? — Yes. Now, at one of those meetings did you see anybody in a kind of uniform — I mean the ’82 uniform ? — I did. Do you know that in Dublin there was a club called the ’82 Club? — I was present at the first meeting of it. Were there persons present at this meeting, or soiree, of the 15th April, dressed in this ’82 Club uniform ? — There were ; I can give you the names of several of them. Is the colour of it green ? — Yes. Were you ever in the north of Ireland? — I have been as far as Dundalk. Oh, we don’t call that north. — I know you don’t. THE QUEEN y. WILLIAM SMITH O’BRIEN. 201 You were asked, I believe, to try and bring with you some notes of other speeches of Mr. O’Brien ? — I was. Could you tell me the first day, in point of fact, on which you heard him speak within the last year ? — I must refer to my paper again. Let me explain what this is. This is a table, made by myself from my own note-books, stating the names of the principal persons who were present. Just tell me the first day this year that you heard him speak? — The 15th of March. There were, I suppose, at the meeting of the League a great number of respectable gentlemen ? — Highly respectable. The meeting was conducted in an orderly manner — there was no vio- lence ? — I do not recollect, at this moment, any particular violence. The Lord Chief Justice . — I want to know what body you are speaking of. Mr. Whiteside . — The Confederation merged into the League, my lord. The Attorney-General . — The League did not exist till July. Witness . — I understood your question, with reference to the League — Lord Chief Justice Doherty , — The first meeting of the League that you were present at was on the 19 th of July? — Yes, my lord. Mr. Whiteside . — Hid you know a gentleman of the name of Mitchel ? —I did. Ho you not know that there was a violent dispute between Mr. O’Brien and Mitchel, and that Mitchel was expelled from the Confederation on Mr. O’Brien’s motion ? — I do not know that of my own knowledge. But you know it ? — I believe it. The Lord Chief Justice . — How is he to know that fact? Witness . — It is only from hearsay. Mr. Whiteside . — My lord, I thought he was at the meeting when the motion was made. {To the witness .) — Are you able to tell me, from any meeting you were present at, whether there was a dispute on any poliUcal creed between Mitchel and Mr. O’Brien ? — I recollect this being stated at one meeting, that Mr. Mitchel and Mr. Hevin Reilly had ceased to be members. You were present at that meeting ? — I was. Was that a meeting of the Confederation ? — It was. When was that, Mr. Hodges? — I cannot give you the date without going through my books ; it was after the 23rd of March, I can say that. Then you were not at any meeting of the Confederation before the 15th of March? — No. You have just mentioned to me, that Mr. Hevin Reilly and this other gentleman, Mr. Mitchel, you heard stated, had ceased to be members of that society. Hid you not, at the same time, hear that Mr. O’Brien continued a member ; and did you not see him there afterwards ? — I did. One ceased to be a member, and the other remained? — Yes. 202 SPECIAL COMMISSION, CO. TIPPERARY. Were you present at the first meeting of the Confederation at the Rotunda, the large public meeting ? — I think I was. T fie Lord Chief Justice . — What was the date of that? — I do not exactly recollect what date it was ; it was held in the small room of the Rotunda, and Mr. O'Brien did not then belong to it. I think you said that the first time you attended a public meeting of the Confederation was the 15th of March last? — I made a mistake, my lord. I had forgotten this one at the Rotunda, which was some twelvemonth before, my lord. Mr. Whiteside . — Had it been going on in this city for such a length of time as that ? — I suppose so ; I was not in Ireland all the time. You had been at a meeting of the Confederation, or a body calling itself the Confederation, some twelvemonth before that? — Yes. Then, in point of fact, the Government did not begin to have the speeches reported till the 15th of March in the present year? — Not so far as I was concerned. The Lord Chief Justice . — You did not hear Mr. O’Brien make any speech at the Confederation before that date ? — No, my lord. Mr. Whiteside . — I understand that the Attorney-General in- tends to call this witness again as to some other speeches for which special grounds are made. Re-examined hy the Solicitor-General. You have been in Ireland before this time ? — I have. Do you recollect what month it was you left Ireland to return to England ? — I think it was December, 1846. And what mouth did you return? — 10th March, 1848. The Solicitor- General — Now, Mr. Hodges, I am satisfied. The Lord Chief Justice . — Whom do you call, Mr. Attorney? Mr, Whiteside . — It is very near six o’clock, my lord. The Attorney-General . — We are quite ready to go on. Our next witness will be General MacDonald, whom we call for the purpose of proving some documents that were found on the per- son of Mr. Smith O’Brien. Plis examination will be very short, and after to-day we should not require his attendance for the present. Therefore, it would be better to examine him to-night. The Lord Chief Justice . — Very weU. Major-General John MacDonald, sworn — examined hy Mr. Scott, I believe you were in command in a district of this country in the beginning of last August ? — I was. Do you remember the arrest of Mr. Smith O’Brien ? — I do. Is that the gentleman in the dock ? — That is the gentleman. Where were you at that time ? — At Thurles. Did you see Mr. O’Brien after his arrest % — I did. Where ? — In the bridewell at Thurles. How soon after his arrest? — Immediately. About what time of the day was it that you saw him first in the bridewell ? — Why, it was somewhere about nine o’clock at night. THE QUEEN v. WILLIAM SMITH O’BRIEN. 203 Did you at that time demand any thing from him ? — I did not; one of the magistrates present did. Mr. Whiteside. — My lord, if a magistrate was present, and there was an examination or any question put to Mr. O’Brien by the civil power Mr. Scott. — There now, don’t go any further. I shall ask no more. Lord Chief Justice Doherty. — I do not take it that he said any thing. Mr. Scott. — He is simply giving evidence of the fact. {To the witness.) — Did you see Mr. O’Brien give up any thing after he was asked? — I did. What did he then give up ? — I would require to look at the inven- tory of those things, before I can answer the question. Were they papers, or what were they? — There were papers, there were keys, and a variety of articles. Here is a list which was signed by me immediately afterwards. Made at the time when you obtained them ? — Yes. What did you do with the articles which you so got from Mr. O’Brien? . — Those articles Mr. O’Brien declined to give to some person who was present who seized upon them ; and he asked who he was to give them to. I said that any thing he would deliver up to me 1 would faithfully account for. Some person mentioned that I was General MacDonald, and Mr. O’Brien then said he would give me every thing. There was a handkerchief spread upon the table, and Mr. O’Brien deposited the ar- ticles therein. I took that handkerchief with me, and while Mr. O’Brien was taking some refreshment I locked them in a despatch-box, of which this is the key {^producing a hey). What did you do with the articles which you had so taken from Mr. O’Brien ? — The handkerchief and all ? Precisely. — After I had seen Mr. O’Brien off to Dublin by the railway carriage, I then retired to my room with another gentleman, and I opened the despatch-box, and we took an inventory of the articles, and I addressed them to the Under Secretary of State, and having delivered them over to Captain Emans, of the 41st Just state, if you please, to whom you delivered those articles which had been so locked up in your despatch-box ? — To Captain Emans, of the 41st, an officer then acting on special service, and appointed to con- vey messages between me and the Government. Did you give them folded up in that same handkerchief in which you had got them? — No; so far as my memory goes, they were put under cover, but there was, I think, a handkerchief belonging to Mr. O’Brien that I think was sent also. What was done with the keys which you got from Mr. O’Brien ? — Captain Emans got them also. Were they in the parcel ? — They were, for I recollect them slipping out two or three times. We had a deal of work with them, and at last we succeeded in putting them into the parcel. And you have never seen them since? — Never. '204 SPECIAL COMMISSION, CO. TIPPERARY. Did you at all mark the documents that you got from Mr. O’Brien ? — Every one of them that I could mark. Now, will you just look at those different documents, if you please, and if you are certain of them, just state so. The Lord Chief Justice . — You made an inventory, and marked the papers at the same time % — Lieutenant- Colonel Fordyce, of the 74th, made out the inventory, and my Brigade Major was at the same time making out another. This was signed by Mr. Fitzmaurice and me. Did you compare that paper after having put your initials on it ? — I did, at the same time. Was that at the time that you put your initials on it % — At the same time. Immediately after having put my initials this other document was made. Mr. Scott. — Now, look at the original papers, if you please, and iden- tify them if you are able ? — That is my note and mark. No. 11 {taking up a paper.) The Lord Chief Justice . — Are you able to say, on looking at that docu- ment by itself, that that is one of the papers ? — I am. The Attorney- General . — It is right to mention, that we do not intend to put the whole of these papers found on the person of Mr. O’Brien in evidence. Mr. Whiteside . — You will he so good as to put them all in. With great respect to you, if you rely upon the contents of a man’s pocket you cannot take a part and rely on it without the rest. Mr. Scott . — Very well, you shall have the remainder. Witness . — That is another of them {handing in a document). I don’t know what that is, but that is another of them {handing in another document). Mr. Scott . — Is that marked No. 4? — Yes. Is that your signature ? — Yes, that is my signature. This is another; it is No. 18 {handing in another document). The Lord Chief Justice . — What is the total number that were altoge- ther marked ? — I must look at my inventory, my lord. {After looking at the inventory^) But then there were some other articles; and there was money, and various things that were marked. 1 was only asking you as to the number of the papers % — That number comprised seven. There were five keys and a ring, some money, some postage stamps from No. 1 to No. 19. It was a parcel of small things — postage stamps, and various things of that sort. Mr. Scott. — Now, were you present when Mr. O’Brien said any thing about any trunk or portmanteau ? Mr. Whiteside . — Was a civil magistrate present at this ? — I was present. I am a magistrate myself, but there were other magistrates present. Mr. Scott . — It is no matter about any other magistrate being present; did Mr. O’Brien say any thing while you were present ? — I was not pre- sent when Mr. O’Brien said it, but I was told. Mr. Whiteside. — Don’t tell us what you were told. Witness . — I was not present. THE QUEEN v. WILLIAM SMITH O'BRIEN. 20o Cross-examine(} hy Mr. Fitzgerald. I believe Tliurles was your head-quarters at that time? — Yes. There were a great number of soldiers there, I believe ? — Yes, a good many, - Could you tell how many there were there when the arrest of Mr. O’Brien took place ? — Indeed I cannot. I cannot give the number with- out consideration ; I believe there were a good many. Now, I believe it was in the railway station-house at Thurles that Mr. O’Brien was arrested? — I know not; I was told so; hut that is not evi- dence. How much was the money that you found on him ? — I can tell you if you will allow me to look at my paper. Oh, yes ; the sum total, if you please ? — It amounted altogether to £10 1 6s. 2d The Lord Chief Justice. — Is that all you wish to ask? Mr. Scott. — That is all, my lord. The Lord Chief Justice. — Then I believe. General MacDonald, you may retire. [The Court then adjourned till half-past nine o’clock the fol- lowing morning.] Saturday, September 30, 1848. [The names of the jury having been called over, the prisoner was placed at the bar.] Captain James Emans, sworn — examined hy Mr. Lynch. Do you know General MacDonald? — Yes. In August last did you receive any parcel from General MacDonald ? — I did. In Thurles? — I did. What was the nature of the parcel you received ? — It contained things belonging to Mr. Smith O’Brien, I believe. What did you do with that parcel on so getting it from General MacDonald ? — I took it up to Dublin, and delivered it to the Under Secretary, at the Viceregal Lodge. What day was that ? — I am not sure of the day of the month, but it was the day after Mr. Smith O’Brien was arrested. Can you tell me the day of the week ? — No, I cannot. Was it the day after the arrest ? — The day after the arrest. Cross-examined hy Mr. Whiteside. You knew nothing about the contents of the parcel ? — No. You did not know the contents ? — I knew what the contents were, for I saw them. SPECIAL COMMISSION, CO. TIPPERARY. 206 Y'ou did not do any thing with them ? — No. Who did you deliver them to ? — The Under Secretary of State. And the Under Secretary has had them ever since ? — I don’t know. You do not know what he did with them ? — I cannot tell. M)\ Justice Moore . — You delivered them to the Under Secretary in the same state as you got them yourself? — Yes. The Lord Chief Justice . — What sort of parcel was this ? — I think it was a parcel done up in a handkerchief; it contained papers, keys, a purse, and things of that kind, which I believe were found on Mr. Smith O’Brien. Lord Chief Justice Doherty . — Did you get it from the hands of General MacDonald ? — I did. And you delivered it in the same state as when you got it? — Yes. You said, I think, there was a handkerchief? — There was a hand- kerchief. Mr. John Gore Jones, sworn — examined by Mr, Sausse. You are a resident magistrate in this county ? — Yes. Were you stationed at Thurles in the month of August last ? — I wa.s. Do you recollect the night when Mr. O’Brien was arrested ? — I do. Do you remember what day of the week it was ? — On Saturday night. What day of the month was it do you remember ? — I do not remember the day of the month. The Lord Chief Justice . — Do you remember what the first day of August was ? — No. Mr. Sausse . — Have you any memorandum about you that will tell you ? — No, I have not. Was it the beginning of August ? — Yes. Do you recollect the occurrence at Ballingarry Commons? — Yes, very well. How many days after that was it ? — I am not sure. The Lord Chief Justice . — You ought to be able to fix a date. The Solicitor-General . — Did you make any memorandum of it ? — No, I did not. Mr. Whiteside . — We will find that out somehow. Witness . — I recollect it was on the night of the arrest; and that it was a Saturday. The Attorney -General . — Other witnesses, my lord, will prove that. General MacDonald has stated it to be on Saturday the 5th of August. The Lord Chief Justice . — The stipendiary magistrate ought to be able to tell the date. General MacDonald was not present at the arrest. Lord Chief Justice Doherty . — It is rather a memorable event one would suppose. Mr. Whiteside . my lord. Mr. Sausse {to the witness ). — About what hour was it you saw him ? — About half-past eight o’clock in the evening. THE QUEEN i- WILLIAM SMITH O’BRIEN. 207 Where was it you saw him? — I saw him in the bridewell, at Thurles. About half-past eight in the evening? — Yes. When you went there had you seen General MacDonald ? — Not when I went ; I saw him whilst I was there. Was Mr. O’Brien’s person searched, or any thing got from him, while you were there? — Not in my presence. Was there before or after ? — Before. I was told he had been searched. Did you on seeing Mr, O’Brien, say any thing to him? Mr. Whiteside . — I object to the statement of the stipendiary magistrate after arrest. This question has been argued on cir- cuit, and the judges have invariably said, declarations made by a constable or a magistrate Mr. Sausse . — I ask, did he say any thing to Mr. O’Brien. Mr. Whiteside . — That is what I object to. I object to this gentleman’s statement to Mr. O’Brien being evidence against him. Suppose the magistrate asked the question, “ Tell me, are you guilty?” Lord Chief Justice Doherty . — He only asked him whether he had any conversation. Mr. Sausse. — Did you state any thing to Mr. O’Brien ? — I had a long conversation with Mr. O’Brien. State what you said. Mr. Whiteside . — You need not tell us that. The Court has directed you not. Mr. Sausse . — What was his appearance at the time ? — His appearance was that of a person wearied and tired, as if he had undergone great fatigue. Did you get any thing from him ? — I got two letters from Mr. O’Brien. What did you do with the letters ? — I forwarded them. One was for Mrs. O’Brien, and the other was for Mrs. Doheny. Mr. Whiteside. — Y^ou had no business to tell us any part of the contents of that letter. The Lord Chief Justice . — He has not said any thing about them. Mr. Whiteside. — No, my lord, but the direction is part of a letter. The Solicitor -General. — Surely, if Mr. O’Brien desired Mr. Whiteside . — I don’t know about that. I may get the whole contents of the direction in that way. The Lord Chief Justice. — Y^ou know very well there is no danger of that ; we would not allow it. Mr. Sausse. — At, the time he gave you the two letters did he give you any directions about them ? — He did. What were the directions with respect to the letter to Mrs. Doheny? Mr. V/hiteside . — I beg your pardon. My lords, I must ask 208 SPECIAL COMMISSION, CO. TIPPEKARY. your lordships’ opinion with respect to this as a matter of evidence. I say, with great respect, a person is not at liberty, in a civil case, to prove any part of a written paper in this manner. The Lord Chief Justice. — He got two letters from him ; and the question is, whether Mr. O’Brien gave him any directions about them ? Mr, Whiteside. — My lord, the question asked by Mr. Sausse is this, did he give him any directions about the letter directed to Mrs. Doheny ? I respectfully submit, that one part of a written communication is just the same as another ; and, in principle, they might as well give the entire contents of that letter on this occasion, without any notice to produce them. The Lord Chief Justice. — We shall not allow him to say one word about the contents. Mr. Sausse (to the witness). — Now, did Mr. Smith O’Brien give you any directions when he gave you the letters? — He begged of me to have them forwarded. To whom? — To Mrs. O’Brien and Mrs. Doheny. They were both given to me openly. What did you do with the letter that he directed you to send to Mrs. Doheny?— I transmitted it to Mr. Cox, the Sub-Inspector, at Cashel, where Mrs. Doheny resided. When Mr. O’Brien directed you to send that letter to Mrs. Doheny, did he give you any further directions, or state any thing further about the letter ? — The letter was written Mr. Whiteside. — Now, Mr. Gore Jones, let me beseech of you to wait, and not to be going into the contents of that letter. — I am not going to Mr. Sausse. — Did he say any thing about a portmanteau ? — Yes. Mr. Whiteside. — This is not a legal mode of putting the ques- tion. I do not wish to interrupt, unkindly or unnecessarily, any question to Mr. Jones ; *hut my friend should have asked what Mr. O’Brien said. Mr. Sausse. — So I did. Mr. Whiteside. — No, you named the very thing. Mr. Sausse. — I have a right to do so. (To the witness.) — Now, Mr. Jones, just state what Mr. O’Brien said to you about a portmanteau, or any thing else. — Mr. O’Brien was anxious to get his portmanteau. What did he say? — He told me it was in the keeping of Mrs. Doheny. Lord Chief Justice Doherty. — What was in the keeping of Mrs. Doheny ? — The portmanteau, my lord. He asked me if I could get it for him. I said I would do so with great pleasure, if he would tell me where it was. The Lord Chief Justice. — Is that the way he began the subject? — It was. Lord Chief Justice Doherty. — Did he ask you to get his portmanteau? — I told him i would do so with great pleasure. It was in the keeping of Mrs. Doheny. I told him that my messengers must of necessity be THE QUEEN i- WILLIAM SMITH O’BRIEN. 209 police, and Mrs. Doheny would not give the portmanteau to them unless he wrote for it. Mr. Sausse. — Well, what did he say or do on your giving him that answer ? — I also told Mr. O’Brien that any thing he wrote must be read by me before I could transmit it. Then Mr. O’Brien wrote the letter, which I have already stated I transmitted to Mr. Cox. The Lord Chief Justice — Where did this occur? — In the bridewell of Thurles. Mr. Sausse. — Did he say what Mrs. Doheny this was ? — No; I took for granted who she was. Mr. Whiteside . — ; you need not tell us what you took for granted. Mr. Sausse. — Well, you forwarded that letter, you say, to Mr. Cox? —I did. Did you receive any thing from Mr. Cox subsequently ? — I did. What ? — I received a portmanteau. How soon after ? — -The letter was forwarded to Mr. Cox on Sunday morning at a very early hour ; I received the portmanteau about three o'clock on Sunday. The Attorney-General. — The next day? — No; the same day. That is, the same day you got the letter ? — Yes. Mr. Sausse. — Now, what state was the portmanteau in when you received it ? — It was a very large portmanteau with straps, and the straps were aU carefully fastened. Mr. Whiteside . — I dare say Mr. Cox strapped it well. Mr. Sausse. — Had it a lock ? — I did not examine it. What did you do with that portmanteau ? — I gave it in charge to a Mr. Bagnall, an engineer. An engineer belonging to what ? — To the Great Southern and Western line. The Lord Chief Justice. — Was that on the same day? — He received it from me the same day; about an hour and a half after I got it. Mr. Sausse. — Had you any conversation with Mr. O’Brien, with reference to the portmanteau, besides what you have stated, or any thing that was contained in it? — No. The Lord Chief Justice. — Who was it that brought back the portman- teau ? — It was brought by two policemen. Mr. Sausse. — Do you remember the names of them? — No; Mr. Cox will be able to tell you that. Do you know when Mr. O’Brien was transmitted to Dublin ? — He was transmitted on Sunday morning, about one o’clock. One o’clock in the morning ? — One o’clock on Saturday night. Saturday night, in fact, at one o’clock ? — Yes; Saturday night. You transmitted the portmanteau in the same state as you got it? — Yes. Cross-examined hy Mr. Whiteside. You are a stipendiary magistrate ? — I am. You always keep your word? — I do. p 210 SPECIAL COMMISSION, CO. TIPPERARY. Mr. O’Brien was your prisoner at this time? — Yes; he was a prisoner in the bridewell. And when he said he wished to have his portmanteau, you undertook to get it for him ? — I did. I)id you tell him you would prove on the trial against him any thing he said to you while in your custody if he was prosecuted? — No, I did not. Did you, instead of sending that portmanteau to him as you promised, pack it up and send it to the Under Secretary of State in Dublin? — I sent it through the channel, I conceived, I ought to send it to him. Did you tell Mr. O’Brien, when you said you would get his portman- teau with pleasure, the way you would get it would be to pack it up and send it to the Under Secretary of State ? — No. Did you tell him that you would put it into the hands of the police, and have the papers examined ? — I did not know what was in it. And you sent it up to the Under Secretary the next morning? — I did. Did you give a distinct engagement that Mr. O’Brien should receive his portmanteau, accompanying your assurance with every demonstration of courtesy ; and on the faith of that assurance did you get from him a letter ? — Yes. And you sent the letter by the police ? — I did. Mr. Whiteside . — And you kept your word. You may go down. Siih-Inspector Joseph Cox, sworn — examined by the Attorney-General. You are a sub-inspector of police, I believe? — Yes. Where were you quartered in the month of August last ? — At Cashel. Where were you on the first Sunday in August, do you recollect ? — I was at my quarters in Cashel. Do you recollect any thing occurring about a portmanteau at that time ? — I do. What day of the month was it that the circumstance occurred ? — Sun- day, the 6th of August. Do you recollect having received a letter from Mr. Jones ? — I do. What'day did you receive that letter? — On that morning; the morn- ing of the 6th. What did you do with the letter you received from Mr. Jones? — I sent it by a policeman to Mrs. Doheny. Where did Mrs. Doheny reside? — At her own house in Cashel. , Who is this Mrs. Doheny? — The wife of Michael Doheny. Now, after you sent that letter, did you get a portmanteau? — I got a portmanteau before I sent the letter to Mrs. Doheny. Mr. Whiteside — You got the portmanteau first, and then you sent the letter ? — Yes. The Attorney-General . — Those are the facts. What did you do with the portmanteau you so got ? — I gave it in charge to two policemen. I first examined it to see that it was secure. From whom did you get it ? — From John Norton. Who is John Norton ? — He is a builder and architect in the town of Cashel. Did you examine the portmanteau you so got ? — I did, in Mr. Norton’s presence. Was it opened or locked ? — It was locked. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 211 Was it strapped 1 — Yes, it was strapped ; a strong, secure, large, heavy portmanteau ; it seemed to be very heavy, and a large-sized one. I just examined whether it was locked or open, and then gave it in charge to two policemen; I ordered a car, and sent it on to Mr. Jones, in Thurles. Just as you got it 1 — Yes. The Lord Chief Justice. — Who did you give it to — what were the names of those policemen ? — Constable Michael Mulgrew was the man to whom I gave it in charge ; there was another man with him. I ordered a car, and sent it on to Mr. J ones, at Thurles. The Lord Chief Justice. — Have you done with him on this part of the case ? The Attorney- General. — Yes, my lord. It is right to apprize the Court that Mr. Cox is a witness to a much more material part of the case, which occurred several days before the getting of this portmanteau, but we think it will be much more conve- nient not to go into that portion of the case at present. Of course we will reserve the right of recalling him ; but we are going into this evidence now merely for the purpose of letting in some documents. The Lord Chief Justice. — You 'gave it to Mulgrew? — To take to Mr. Jones, my lord. To Mr. Jones, at Thurles? — Yes. The Lord Chief Justice Have you done with him on this part of the case ? The Attorney -General. — Yes. The Lord Chief Justice. — It appears to me, Mr. Whiteside, that there is no objection to the course proposed by the Attorney- General ? Mr. Whiteside. — No, my lord. Lord Chief Justice Doherty. — You said you examined the portmanteau ; you did not examine the contents ? — I did not open it at all ; I merely examined it to see whether it was locked. The Attorney-General. — There was no key to open it ? — No. Cross-examined hy Mr. Fitzgerald. You did not go for this portmanteau yourself? — No. Who was it you sent for the portmanteau ? — I sent Norton for it. Constable Michael Mulgrew, sworn — examined hy the Solicitor-General. Were you on duty at Cashel about the 5th or the 6th of August last ? — I was. Do you recollect getting any portmanteau from Sub-Inspector Cox in charge ? — I do. Where was it— in Cashel ? — Yes. To what place did you bring it ? — To Thurles. To whom did you deliver it? — To Mr. Jones, the stipendiary magis- trate. / 212 SPECIAL COMMISSION, CO. TIPPERARr. Now, did you observe in what state it was, as to security, when you got it from Mr. Cox'? — It was locked. Was there any thing else besides a lock to secure it ? — There were straps on it. Did you deliver it to Mr. Jones, the magistrate, in the same state, exactly, as that in which you got it from Mr. Cox ? — I did. Was there any key delivered with it to you 1 — No. During its transit from Cashel to Thurles, are you able to swear whether it was opened or interfered with by any person whatsoever ? — None whatever. Cross-examined hy Mr. Whiteside. Was the portmanteau ticketed “ Treason” on the outside ? — I did not see any thing upon it. Mr. Charles Edward Bagnall, sworn — examined hy Mr. Scott. Do you hold any situation or office connected with the railway at Thurles? — I did, up to the 1st of September. Do you remember at any time having received any thing from Mr. Gore Jones to transmit or take anywhere? — Yes, I remember receiving a portmanteau from him. Where did you receive that portmanteau ? — At the station-house, at Thurles. When particularly? — On the first Sunday in August — I forget the day of the month. About what hour? — Just at four in the afternoon. Eor wdiat did you receive that portmanteau ? — To be delivered to Mr. Redington. In Dublin ? — Yes. In what condition was that portmanteau when you received it — was it open, or in any way secured ? The Lord Chief Justice. — Mr. Jones has told us that already. Witness. — I don’t know whether it was looked — the straps and buckles ■were fastened. Mr. Scott Did you open it or examine it? — No. What did you do with it after you received it from Mr. Jones? — I put it on the tender of the engine I was going to Dublin on, and kept it there until I got it to King’s bridge, and then I brought it to Mr. Red- ington. To where ? — To his lodge in the Park. On the same evening? — Yes, immediately after I got to Dublin. At what hour did you reach Mr. Redington’s lodge in the Park? — I should say about a quarter after six in the evening. Now did you deliver that personally to Mr. Redington in the same state as that in which you received it from Mr. Jones? — I did. Had it, can you say, been opened, or in any way examined, from the time you got it until you delivered it? The Lord- Chief Justice. — He says he delivered it in the same state in which he received it from Mr. Jones. THE QUEEN v. WILLIAM SMITH O’BRIEN. 213 Cross-exaviined hy Mr. Fitzgerald. When you got this from Mr. Jones what did you do with it? — I brought it to Dublin. What did you do with it, did you carry it in your lap? — No. Where did you put it ? — I put it on the tender of an engine. And you don’t know whether it was locked or open ? — I don’t know whether it was locked or not. And on that tender of the engine it remained until it got to Dublin ? — Yes. Mr. Henry Thomas Burhe, sworn — examined hy Mr. Lynch. Do you know Mr. Redington ? — I do. Were you at Mr. Redington’s on Sunday, the 6th of August? — I was. Hav^e you any employment in Mr. Redington’s office? — I have. What is the nature of it? — I am an extra clerk in the Chief Secretary’s office. You have said you were at Mr. Redington’s on Sunday, the 6th of August ? — I was. While there, did'^any portmanteau come to Mr. Redington’s? — There did. The Lord Chief Justice . — Was this at the lodge in the Park? — Yes. Mr. Lynch . — Did you see that portmanteau delivered there ? — *1 did. About what hour was it ? — I think it was about eight o’clock in the evening. Do you know by whom that was delivered? — By a gentleman belong- ing to the railway. Was that the last witness on the table ? — Yes. Was any thing done respecting that portmanteau when delivered? — It was left in the hall. Mr. Whiteside . — In the hall? — Yes. Mr. Lynch . — Do you know at that time whether it was locked or not ? — It was locked I think. Mr. Whiteside . — You ‘Hliink.]’ Do not give us what you think. Witness — I did not examine it. The Lord Chief Justice . — He did not examine it. Mr. Lynch . — I will not press it. What occurred then ? — Mr. Red- ington asked me Mr. Whiteside. — Mr. Redington ought to come here and let us know how he acted with that portmanteau. My lord, with great respect I object to this. The Lord Chief Justice . — There was no illegal question asked. The witness made a slip, and you may be perfectly sure that those things will not be taken down. Mr. Whiteside . — Do not tell us any thing Mr. Redington said to you. Mr. Lynch . — Did you go anywhere after the portmanteau so came? — I went into town to the Castle. Mr. Justice Moore . — That evening? — That evening. Mr. Lynch . — Immediately after? — Yes. Did you bring any thing from the Castle ? — I did. 214 SPECIAL COMMISSION, CO. TIPPERARY. Tell the Court what you brought. — I brought a little parcel, wrapped up in a white handkerchief. Where did you get that 1 — In a desk in Mr. Redington’s office. In Dublin 1 — In Dublin. Mr. Whiteside . — A white handkerchief? — Yes. The Lord Chief Justice . — Have the goodness to repeat the last answer. You said you brought a parcel in a white handkerchief that was locked up in a desk in Mr. Redington’s office ? — Yes, my lord. Mr. Where did you get the key of that desk from which you took the handkerchief 1 — Mr. Redington gave it to me. Did you bring it with you from Mr. Redington ? — I did. Mr. Justice Moore . — Was it that same night he had given you the key ? — Yes. Mr. Lynch . — Was it on the same occasion the key was given to you ? — Yes. On the arrival of the portmanteau ? — Yes. The Lord Chief Justice . — After the portmanteau was brought and left in the hall you got a key ? — Yes, my lord. Mr. Lynch . — Now when you got that parcel what did you do with it then ? — I brought it out to the lodge. What occurred when you brought that parcel out to the lodge ? — I handed it to Mr. Redington, and we brought the portmanteau into the dining-room. Did Mr. Redington in your presence take any thing out of the parcel % —He did. What ? — {No answer.) The Lord Chief Justice . — Was that the same portmanteau that you had left in the hall ? — Yes, my lord. Mr. Lynch . — Did Mr. Redington in your presence take any thing out of that parcel ? — He did. What ? — A bunch of keys. What did he do with the bunch of keys that he so took out ? — He gave them to me. Had you observed, at that time, whether the portmanteau was locked or not ? — It was locked. When he handed you the keys what did you then do ? — I opened the trunk. With what did you open the trunk ? — With a key from the bunch. Mr. Justice Moore . — Was there any other fastening than the lock ? — There were two straps. Were they open or shut ? — They were shut. Did you unfasten them before you unlocked it ? — I did. Mr. Lynch . — Now having unlocked the portmanteau did you examine its contents ? — I did. Can you tell me what were the contents of that portmanteau % — There were several papers, books, and there were clothes. / The Lord Chief Justice . — What did he say ? Mr. Lynch Several papers, books, and clothes. {To the witness .) — What did you do with any of the books or papers that were in the portmanteau ? — I first separated them from the clothes. What did you do then ? — I then put the clothes in the trunk. THE QUEEN i-. WILLIAM SMITH O’BRIEN. 215 Now did you mark any of the papers that you so took out 2 — I did mark some of tliem. On the occasion of having so taken them out 2 — Yes. Besides those you so marked what did you do with the rest of the papers 2 — I sealed them, and put them into a chest of which I kept the key. Mr. Justice Moore . — Those you marked as well as those you did not mark 2 — Y es, my lord. Lord Chief Justice Doherty . — When you say you marked them, do you mean you initialed them 2 — I initialed them. Mr. Lynch . — Now the rest you say you sealed up; was it that night 2 — Yes, that night. Lord Chief Justice Doherty . — Not the rest. Mr. Lynch Y"es, my lord, aU. {To the witness.) — Now, what did you afterwards do with the papers that you so sealed up ; did you mark the residue 2 — I marked the rest of them a short time afterwards ; three or four days afterwards. Before they parted your custody? — Yes. Now will you look at those; were those three documents amongst those that you found in that trunk {handing three documents to the witness) 2 —Yes. Mr. Lynch . — Hand them in. {The witness handed them to the Cleric of the Crown.) Mr. Lynch . — My lords, he stated he marked them all, though not on the same occasion. Lord Chief Justice Doherty . — Three or four days afterwards, so that they all became marked ? Mr. Lynch. — Precisely. {To the witness .) — Are those what you marked on the first night, or a day or so afterwards 2 — I think there is one I marked a day or so after- wards. Lord Chief Justice Doherty . — Just state did you put a date to the mark 2 — 1 did, my lord, in consequence of there being three of the same date. Mr. Lynch . — What is the date on those? — The 11th of August. Lord Chief Justice Doherty . — I take it for granted these were among the second lot that were marked on the second occasion ? — Yes. The Lord Chief Justice . — You say you sealed them all, and put them into a box I suppose? — Into a chest in Mr. Redington’s room. Who kept the key ? — I kept it. Did that key leave your possession ? — It did not, my lord. Mr. Lynch . — Were you resident in Mr. Redington’s house? — I was. Now you state, Mr. Burke, that you put the clothes back into the portmanteau ? — I did. Did you do any thing with the portmanteau ? — I brought it to the gaol at Kilmainham. When ? — That same night. The Attorney -General . — The portmanteau, my lord, with the clothes. 216 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Lynch . — Did you bring the keys also, do you remember ? — I think I brought the key belonging to the portmanteau. To whom did you deliver it at the gaol ? — To Mr. Alison, the deputy- governor. Cross-examined hy Mr. Whiteside. You are an extra clerk in the Secretary’s office? — I am. The Secretary is living? — Y"es. I suppose you saw him yesterday ? — I did not. The day before ? — No. You would not speak to him now ? — I would if I saw him. Where is Mr. Redington, on your oath ? — I suppose he is in Dublin. Have you any doubt of it? — Not the slightest. Do you not know that there was a correspondence between Mr. O’Brien and him ? — No. Do you not know that he will not come here on this trial ? — I do not know whether he will or not; I cannot say that he is summoned at present. Do you believe he will come ? — I do not believe he will come. No more do I. I agree with you. Now listen to me — he kept the key of this little desk he sent you to? — He did. Those keys were in his custody, not yours? — They were. You don’t know how long? — No. He told you to go down to the Castle, and you, as an obedient extra, went? — I did. And did as he desired you ? — Yes. And took from his desk these keys? — Yes. What he had been doing with them before that you do not know ? — No. This portmanteau had been left lying in the hall of the lodge? — Yes. And it lay in the hall till you came back? — Yes. Have you any domestics in that establishment? — We have. How many ? — We have, I think, four men servants; I don’t know how many maid servants. And how many detectives are lurking outside ? — I cannot say ; I never saw any. You never did ? — No. When you came back, you and Mr. Redington examined the trunk in your presence ? — No, I examined the trunk in Mr. Redington’s presence. He did not look on at all, I suppose ? — He did. He took out the papers ? — No, I took them out. He did not touch them? — No. He never touched one of them ? — No. He would not look at them ? — I do not know whether he did or not. I think he could form a pretty shrewd guess as to what the port- manteau contained ? — I cannot say. Will you swear to the Court and jury you do not know that Mr. Redington knew what was contained in that portmanteau ? — I cannot tell Mr. Redington’s thoughts. Could Mr. Redington, as a matter of fact, tell the Court and jury what was in that portmanteau ? — I do not think he could. Do you swear that? — Yes; before he saw it. After he saw it? — I think he could. THE QUEEN v. WILLIAM SMITH O’BRIEN. 217 Do you think, I meant to ask you, whetlier he could tell the contents of the portmanteau before he saw it. — Yes, I did. What did you do with Mr. O’Brien’s title-deeds? — I don’t remember any. Were there any title-deeds? — I think there were accounts, one book of them, and vouchers. On your oath, this is a plain question, were there any marriage settle- ments or title-deeds? — I think there were. I am pretty certain there were marriage settlements there. Have you any doubt of it? — I have not. What did you do with them? — I initialed them. Where are they? — I gave them in charge to the Commissioner of the Metropolitan Police. Who is he? — Mr. O’Ferrall. That bundle you gave to him? — I gave all the papers to him. Now you produced those three ; give me those three. You never gave back to Mr. O’Brien his title-deeds? — I never gave back any papers to Mr. O’Brien. You kept them? The Lord Chief Justice . — He does not say he kept them. He says he gave them to Mr. O’Ferrall. Mr. Whiteside — You made memorandums. What day was it you examined the contents of the trunk or portmanteau? — The first day; the 6th of August. Of course you initialed what the portmanteau contained that day? — No; I only initialed the papers. On the day you first examined it, you and Mr. Redington, you did not initial the papers? — I did. I thought you meant noted the contents. Not at all; I do not want your note of the contents. On jvhat day did you write that {handing a paper )^ — On the 11th. What day did you write that (handing another pap)er)1 — On the 11th. What day did you write that {handing another paper )% — On the 11th. There is no other mark on them, but the 11th; that is the date? — Yes. During the interval where were they? — They were locked up, and I had the key in my possession. You took four days to consider, and then you noted them ? — No. You noted them on the 11th? — I noted them when I was told. You did what Mr. Redington told you to do? — Yes. Then whatever he told you to do, you did ? — Yes. And then you handed them to the policeman? — Yes. The Lord Chief Justice . — He did not say to the policeman ; he said Mr. O’Ferrall. Mr. Whiteside . — I beg your lordship’s pardon. I thought he did. Mr. RoheH Alison, sworn — examined hy Mr. Sausse. You are deputy-governor, I believe, of the gaol of Kilmainham? — I am. Do you know the last witness, Mr. Thomas Burke? — I do know a Mr. Burke; I have seen him. 218 SPECIAL COMMISSION, CO. TIPPERARY. In the Under-Secretary of State’s office'? — Yes. Do you remember him bringing to you a portmanteau? — Yes. When ? — He delivered a portmanteau to us at twelve o’clock on Sunday night, the 6th of August. Wbat did you do with that portmanteau? — According to my direc- tions I took it up to Mr. O’Brien’s room, and delivered it over to Mr. O’Brien. Did you get any key with it? — The key was enclosed in the letter of instructions. What did you do with the key ? — I handed it to Mr. O’Brien. When you delivered it to Mr. O’Brien, did he say any thing? — No. I told him I had got instructions to give that trunk and that key to him, and he thanked me ; that was all. Did Mr. O’Brien keep that trunk afterwards? — He did. Lord Chief Justice Doherty . — Have you done with this witness? Mr. Fitzgerald . — This was Sunday, at six o’clock? — Twelve o’clock at night. Lord Chief Justice Doherty . — You may go down. Mr. William Lowe, sworn — examined hy the Attorney-General. Do you know Mr. Charles Gavan Duffy? — I do. How long have you known him? — I think about the year 1843 I knew him first. Are you acquainted with his handwriting? — It is a considerable time since I saw him write. Will you look at that document [handing a 'paper to the witness) 1 The Lord Chief Justice . — Have you seen him write? — I have. The Attorney-General . — Look at the name “ C. G. Duffy” at the end of it. Do you believe that to be Mr. Duffy’s handwriting? [The witness examined the paper without answering.) It is not necessary that you should read it all through. — The cha- racters are his ; it is the character of his handwriting. Do you believe it to be his handwriting ? — I believe it is the character of his handwriting ; I cannot swear distinctly that it is his. Are you acquainted with Mr. Duffy’s handwriting ? — I am. Do you believe that to be his handwriting, to the best of your judg- ment? — To the best of my judgment I believe it to be his, from the character of it. Lord Chief Justice Doherty . — How do you mark that ? Is that one of the three documents ? The Attorney-General. — Yes, my lord. Lord Chief Justice Doherty [to the Clerk of the Crown ). — Put No. 1 on that. Cross-examined hy Mr. Whiteside. Mr. Lowe, you surely could not have any reasonable doubt about that letter. Have you not seen it before ? — I saw it this morning. THE QUEEN WILLIAM SMITH O’BRIEN. 219 Where did you see it ? — A gentleman in court showed it me j I do not know his name. When did you see it before that h — I never saw it before. You never saw it before this morning ? — I never saw it before this morning. You did not see it in Dublin ? — No. You never had an opportunity of seeing it before? — No. Who got you to be a witness ? — I was served with a subpoena on the part of the Crown. That is not what I mean. Who was the party that found you out ? — Mr. Rae. Who is Mr. Rae 1 — I understand him to be a clerk in Mr. Kemmis’s office. Were you in business with this Mr. Duffy ? — I had the management of the printing department of The Nation newspaper. When was Mr. 'Duffy arrested ? — {No answer.) Tell me, is he in gaol at present ? — I don’t exactly understand you. When was he arrested, do you know ? — I cannot tell you exactly. You cannot tell ? — No. The Lord Chief Justice . — You cannot tell when Mr. Duffy was arrested? — I cannot. But he is arrested ? — I understood him to be so. Mr. Whiteside . — Were you in communication with the Crown last August ? — I was. Yet it was only this morning that you saw that paper? — Only this morning. And they knew all the time that you were acquainted with Mr. Duffy’s handwriting, I suppose ? — They did. You told them that at first? — I did. That you knew his handwriting? — Yes. And you are quite clear about that paper, that that is his handwriting? — It is nearly three years since I saw him write. Then don’t hesitate ? — I do know the handwriting. Then what is the use of your hesitation ? — It was simply from the fact of its being three years since I was connected with him. There is no doubt about it ? — I have no doubt about it. If I met that in an ordinary manner, I should have no doubt about it. Mr. Whiteside . — You may go down, sir. Wiiliam O'Hara, Esq., sworn — examined by the Attorney-General. You know Mr. Smith O’Brien ? — Yes, I do. I believe that is your handwriting, Mr. O’Hara ; look at that {handing the letter to the witness) ? — I will read it first, if you please. You may read every word of it ; tell me whether it is your own hand- writing and signature ; it is only the handwriting that I want to prove ? — Yes, it is. Give it to me, if you please ? {The vntness kept the letter in his hand.) You need not be afraid ; I am not going to indict you, Mr. O’Hara. — I am not afraid in the least, Mr. Attorney. {The witness then handed back the letter.) 220 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Justice Moore . — What mark do you put upon that ? The Attorney -General. — No. 2, my lord. Mr. Whiteside . — I object to this. The Attorney-General . — This is your handwriting? — It is. What did you do with this letter when you wrote it ? — I gave it to a clerk or servant to put in the post ; at least, I suppose so; but really I do not know. This appears to have been written on the 3rd or 4th of July. Mr. Whiteside . — I heg your pardon, Mr. Attorney; do not tell us the contents. I submit, my lords, that Mr. Attorney- General has no right to give any portion of the contents of that paper in evidence at present. The Lord Chief Justice . — He was not going to. The Attorney-General . — When was that letter written by you? — I strongly suspect it was written on the day it bears date, Thursday. Wiiat is that day? — The 4th of July, 1848. Well, just give me that back . — {The witness handed it to the Attorney- General.) You know Mr. Dillon, I believe? — Yes ; he is married to my niece. You are acquainted with him, of course? — I am. What is his Christian name? — John. John what? — John B. Dillon. Do you know where Mr. Dillon was at the time you wrote this letter? — From the contents of this letter, it appears to me Mr. Whiteside . — Do not tell us the contents; do not state any thing unless you know it as a fact. The Attorney-General . — Where was Mr. Dillon at the time you wrote that letter ? — I strongly suspect, but I have no recollection of the fact myself, that he was in Meath. Mr. Whiteside. — Mr. O’Hara, I beg your pardon for a moment. You say you strongly suspect ; you have no immediate recollection, but only a strong suspicion, that he was in Meath? — Yes. The Attorney- General . — Read that letter, Mr. O’Hara, again, every word you wrote of it. The Lord Chief Justice . — Is that letter in his handwriting? The Attorney- General. — Yes, my lord. {To the witness .) — Do you know where Mr. Dillon was at the time you wrote it ? — I suspect he was in Meath, but I cannot swear that he was. Mr. Whiteside . — My lords, it is a question of belief ; the wit- ness cannot as a fact state where he was. Belief is not evidence. J^ord Chief Justice Doherty . — It is certainly not evidence. Mr. Whiteside . — If anybody saw him, that would be evidence. THE QUEEN v. WILLIAM SMITH O’BRIEN. 221 Witness . — From the absolute way in which it is stated here Mr. Whiteside You need not tell us the contents of that letter. Witness . — I assure you, on my oath, that it is only from the fact of its being stated here, that I have any ground for supposing that he was in Meath. The Attorney-General . — Very well, Mr. O’Hara. The Lord Chief Justice . — We have not taken it down, because he has not stated it as a fact. The Attorney-General . — Do you know young Mr. Richard O’Gorman? — Yes, I do. Are you acquainted with his handwriting? — No. You never saw him write? — I never saw him write, or received a letter from him. Where do you reside Mr. O’Hara ? — At Druid Lodge, in the neigh- bourhood of Killiney; at least, my country house is there. Mr. O’Hara, do you recollect whether you yourself were at home at this place called Druid Lodge on the 21st or the 22nd of July in the present year? — The precise date I cannot say, as in the month of July I went over to London, and in that week I was in the county Antrim ; but, however, I know the fact to which you allude, as I heard your speech. Now, tell me, Mr. O’Hara — you say you heard my speech ? — I did. Do you recollect, Mr. O’Hara, as a fact, Mr. Dillon and Mr. Meagher — or Mr. Dillon we will say — leaving Dublin in the month of July last? — I do recollect that on a certain Saturday evening Mr. Dillon — who was at that time domesticated with his wife in my house, and who came out to dine, and had the privilege of coming to my house whenever he pleased to exercise it — brought out Mr. Meagher. That is, Thomas Francis Meagher ? — Yes, Thomas Francis Meagher, who had been a constant guest at my house. I was ill in bed for three days previously. I was ill in bed at the period that he cafme out; and it was the first intimation that I had of the suspension of the Habeas Corjms Act. They came out in the ordinary course to dine with me, and I was confined to my bed at the time. A Juror . — What was that last answer ? The Attorney- General . — He says, he recollects on a particular Saturday, which will be very material by-and-by. Mr. Whiteside . — You need not tell us so in repeating the evidence. The Attorney- General. — Well, then, on a particular Saturday, Mr. Dillon, with his friend Mr. Meagher, came to the house of Mr. O’Hara, at Killiney. Lord Chief Justice Doherty . — The evidence is, that on a par- ticular Saturday, when Mr. Dillon and his wife were domesticated with Mr. O’Hara, Mr. Dillon came down from Dubhn and brought Mr. Meagher with him. 222 SPECIAL COMMISSION, CO. TIPPERARY. Witness . — He was a frequent guest at my house. The Attorney -General . — I may be at liberty to state that this examination is not at all directed against Mr. O’Hara himself. Witness . — As to that I don’t care. Don’t have the least scruple as to that. I am not at all apprehensive about it. The Attorney -General. — Now, you say that they dined at your house on that Saturday? — Yes. Mr. Meagher and Mr. Dillon ? — Yes. They left your house about what hour that evening ? — They were driven on my car to Loughlinstown. They mentioned to me that they were going down Do not tell us that % — It is necessary for my own justification that I should state it. The Lord Chief Justice . — About what hour in the evening did they leave your house ? — They left my house about half-past seven o’clock; and they were driven to Loughlinstown. Did you see them in the house ? — As soon as I heard that Mr. Meagher was there, I left my bed — although I had been previously confined to my room — to speak to Mr. Dillon and Mr. Meagher. The Attorney-General . — You are not able to say what time this was exactly ? The Lord Chief Justice . — He says about half-past seven. Witness . — It was before they went to Mr. Maher’s, at Enniscorthy. I was aware that they were going down to Mr. O’Brien. Mr. Justice Moore . — You learned that from them 1 — I did, my lord ; they told me they had just heard of the suspension of the Habeas Corpus Act, and that The Attorney-General . — You were not asked about what they told you, Mr. O’Hara. Witness . — I am obliged to explain, my lord, in justice to the whole transaction. The Lord Chief Justice . — I have no objection to your explanation; but I have a great objection to hear from you that which is not evi- dence. The Attorney -General . — I really did not ask the question, my lord, because I did not mean to ask any thing that would not be legal evidence. Lord Chief Justice . — You had no right to ask him as to that. The Attorney- General . — Certainly not, my lord. {To the witness .) — 1 believe the fact is, Mr. O’Hara, that you have not since seen Mr. Dillon ? — I have not. Nor Mr. Meagher ? — I have seen Mr. Meagher. You have only seen him here ? — I saw him in custody. This was on a Saturday, I believe, in July? — It was in the month of July, I know, for it was immediately after I came home from London. Do you recollect what day of the month you went to London ? — No, really I do not. I think I must have gone to London immediately after THE QUEEN WILLIAM SMITH O’BRIEN. 223 this letter of the 4th of J uly. I suppose I did, because in that letter I state I was going to London. Lord Chief Justice Doherty. — Are you able to fix the date of that Sa- turday in July? — I am aware, my lord, that it must have been imme- diately previous to the alleged outbreak on the part of Mr. O’Brien. Shortly after that you heard of the outbreak at Ballingarry ? — Shortly after I heard of the outbreak. On the Saturday evening previous to that they came and dined with me, as I mentioned, and they left my house that day. I feel it indispensable for justice just to mention that they told me The Attorney -General. — Now, stop, Mr. O’Hara; you are not asked what they told you. It is not evidence. Lord Chief Justice Doherty. — You are able, by an event of memorable occurrence in this county, namely, the alleged outbreak at Ballingarry, to fix the date ? — Yes, my lord. The Attorney- General. — JTiat is all we want. Witness. — That may be all you want; but it strikes me, that as you have brought them to my house, I ought to say, for the purpose of my own The Attorney-General — Now, Mr. O’Hara, you are a respectable pro- fessional gentleman ? — I am a professional gentleman. The Attorney-General. — Therefore, you must know that such evidence cannot be legal. The Lord Chief Justice. — The Court will not permit any other but legal evidence to be given. The witness may answer any question you wish to ask, which Mr. Whiteside has no objection to your asking ; but I object to Mr. O’Hara volunteering, what no witness ought to do, to explain matters which are not before the Court. Witness. — If your lordship will allow me, I really am placed in a very peculiar position. The Lord Chief Justice. — But that does not justify, on your part, as a professional man, a violation or departure from the rules of evidence. Witness I do not seek to do so, my lord ; but I believe a witness is always at liberty to give any explanation he may think necessary. I have a deeper interest, if any thing occurs The Attorney- General. — I assure you, Mr. O’Hara, that the slightest imputation on yourself I did not mean to cast, one way or the other. I merely tried to get you to prove a fact. The Lord Chief Justice. — Nor is there any thing inferred. The Attorney- General. — Not the slightest, there was not the least intention. Cross-examined by Air. Fitzgerald. Mr. Meagher and Mr. Dillon dined with you that day, I understand ? — Yes. Mrs. Dillon was staying at your house ? — Yes. * 224 SPECIAL COMMISSION, CO. TIPPERARY. On a visit 1 — She was a member of my family; she always lived with the family; I was her uncle and her guardian. The Lord Chief Justice . — What is that ? Mr. Fitzgerald . — He says, my lord, Mrs. Dillon lived with his family, and that he was her uncle and guardian. {To the witness.) — It was no uncommon thing Mr. Dillon coming to dine with you ? — Oh, it was a matter of course ; he was living with me. Or bringing a friend ? — Oh, no ; quite the contrary. As to Mr. Meagher, he was in the habit of dining with me two or three times a week. Now, Mr. O’Hara, we wish to have no mystery about this; state what they did tell you ? The Attorney- General . — I do not think that ought to be evidence. The Lord Chief Justice — All this arises from you all speaking together. We neither understand the witness nor each other. Mr. Whiteside . — My lord, I fully understood the witness. The Attorney-General gets out a part, and now I am willing that he should state the whole of it, that the jury may know it. I don’t wish it to be left a mystery. The Attorney- General . — There is nothing mysterious about it. The Lord Chief Justice . — We have already given it as our oj)inion that it is not evidence. Mr. Whiteside . — Very well. Mr. O’Hara, you may go down. Mr. William Sherman, sworn — examined hy the Solicitor-General. Where do you generally reside? — In Waterford. I believe you are a professional gentleman ? — I am a solicitor. Do you know Mr. Thomas Francis Meagher ? — I do. You have known him for some time, I suppose ? — I have. Have you ever seen him write, or are you acquainted with his hand- writing ? — 1 have received some letters from him. Would you be able to say, to the best of your opinion and belief, whether that is his handwriting or not islanding a letter to the witness) ? Just look at the signature, perhaps that will tell you best? — I believe that to be his handwriting. The Lord Chief Justice . — Has that been marked? The Clerk of the Crown. — Yes, my lord. No. 3. Lord Chief Justice Doherty. — Allo^v me to ask, is that one of the three documents taken from the portmanteau ? The Attorney- General. — Yes, my lord. The Solicitor-General {to the witness). — Now, will you just look at this other document, Mr. Sherman, and say whether you believe that to be also Mr. Meagher’s ? — I do. The Solicitor- General . — This is not one of the three docu- ments, my lord, found in the portmanteau. THE QUEEN WILLIAM SMITH O’BRIEN. 225 The Lord Chief Justice. — Then, mark that No. 4. The Solicitor-General. — That is all I have to ask you, Mr. Sherman. Mr. Whiteside. — Will you just show me these ? {The documents were handed to the learned counsel.') Mr. Scott. — We don’t read them yet. Mr. Whiteside. — This is what you call No. 4. Mr. Kemmis. — Yes. That is No. 3 {handing another document to the learned counsel). Mr. Whiteside {to the witness ). — Did you ever see these before ? — Never, to my knowledge. Mr. Whiteside. — That is all I will trouble you with. The Attorney-General. — Now, my lords, we propose reading those documents which were found in Mr. O’Brien’s portmanteau, and I will state to your lordships exactly the grounds on which we propose doing so. Mr. Whiteside. — I do not know, my lord, The Lord Chief Justice. — Mr. Whiteside, we will hear you presently. Mr. Whiteside. — Very well, my lord. The Attorney- General. — They are letters, my lords, found in the custody and possession of Mr. Smith O’Brien ; the effect of them, of course will be another thing hy-and-by. The way in which it strikes me they are evidence is this. On the arrest of Mr. Smith O’Brien some communication or statement was made by him, that in a certain way a portmanteau could he received or got. I admit we have not the means of producing Mrs. Doheny ; that is quite out of the question ; it is not in our power. I don’t do that. Mr. Whiteside. — Don’t say that you cannot produce her, Mr. Attorney. The Lord Chief Justice. — The force of your observations is lost when you make them in that way. Do not interrupt the Attorney- General by your remarks. The Attorney- General. — As a matter of fact, I don’t produce Mrs. Doheny ; but I say, my lords, as a matter of fact, The I^ord Chief Justice. — With respect to this trunk, whatever be the value of the objection to proving the contents of it against Mr. O’Brien, it is first in the hands of a person whom you do not produce. A person named Norton delivered it to Mr. Cox; and Mr. Cox is the first person in whose possession that trunk was, whom you produce. The Attorney- General. — Yes, my lord. Lord Chief Justice Doherty. — It is for your own consideration whether you will do that. The Attorney -General. — Well then, my lords, this trunk, such Q 226 SPECIAL COMMISSION, CO. TIPPERARY. as it is, we first get in the possession of a policeman, who got it from a person of the name of Norton. So that Mr. Cox got it from Norton. Mr. Cox transmitted it, and it arrived locked in Dublin. We next have the fact, that a bunch of keys has been found on the person of Mr. Smith O’Brien; and that these keys have been forwarded to Dublin; and that the trunk has been forwarded locked. W e find that the trunk is deposited in the office or in the hall of Mr. Bedington’s lodge, in the Park ; and we then find that Mr. Burke goes to the office of Mr. Redington, in the Castle, and brings from it a white parcel which contains a bunch of keys ; that one of the keys on this bunch opened this trunk, and in this trunk so opened are found the documents in question. Then, my lords, in addition to that, we find that this trunk, con- taining a parcel of clothes, is received and taken to Mr. O’Brien; and the trunk and key are both delivered into his possession. We submit, under these circumstances, that it is for the jury on the whole to form their opinion upon. We have this further fact, that one of the letters found in that trunk was written by Mr. O’Hara, directed to Mr. Smith O’Brien, on the 4th of July. I contend, therefore, on this state of facts, that this is evidence to show, that these documents came to his possession. The effect of them is another thing altogether. He may have acted upon them; but at present it is merely evidence that these communi- cations, such as they were, were made to him. Mr. Whiteside . — I submit it is utterly impossible by any rule of evidence to receive the alleged contents of this portmanteau. There are, as it strikes me, three objections to it; and I think it cannot have escaped the observation of your lordships, that my learned friend, the Attorney-General, has merely recapitulated the evidence, but has given no reason whatever for it in the course of what he has stated to the Court. First, there is that which I meant to touch on, for it has attracted already the notice of my Lord Chief Justice. The great and fundamental thing to prove here is, by the person who got that trunk, first, where he got it, and from whom he got it, and when. Where is the person who got that trunk from Mrs. Doheny ? That policeman is not produced ; and non constat that that valise was opened ten times over in the interval of time that he got it, and delivered it out of his possession. The suppression of evidence has ten-fold weight in this case. Secondly, my lords, Mrs. Doheny is not produced, in whose custody this trunk remained, I don’t know how long. I have only to remind your lordships of the decision in the case of Rex v. Hardy, when a particular document was sought to be proved against Mr. Hardy. In that case Lord Chief Baron Gibbs says : — ‘‘This was found after his arrest: you must show distinctly that it existed before liis arrest.” The Attorney -General proved this affirmative evidence, that the docu- ment in question, found not on the person of the prisoner, but THE QUEEN 2;. WILLIAM SMITH O’BRIEN. 227 in another place, existed, and he proved that it existed before the arrest ; and then the Court received it. Therefore, even supposing that they had produced the policeman, v^hich they have not, that is a ruled case, it is a decided point ; and it is recorded in all the books of evidence as to the effect of a docu- ment produced after the arrest of the party, and not found on his person. And the reason of the rule is clear, any document might be put into the package or parcel, and then if you produce the package, it might be said these are all evidence against him. Thirdly, my lords, I would submit that Mr. Redington should have been produced also, to account for the parcel, and the things contained in it, while in his possession. On these three grounds I submit that the contents of this portmanteau cannot be received in evidence against Mr. O’Brien. Mr. Fitzgerald . — My lords, I have very little to add to what Mr. Whiteside has said. I apprehend all that the fact of the key opening the portmanteau shows is, that Mr. Redington had in his possession a key that would open that portmanteau. We have no account how these keys came into Mr. Redington’s possession, although we have it that they were in his custody. The Solicitor- General . — With respect to the last observation as to the possession of the keys by Mr. Redington, and his non- production, I do not think there can be any weight in that ; because, so far as any thing connected with the opening of that trunk, or the contents of it, the gentleman produced, Mr. Burke, proved every thing that Mr. Redington could possibly prove. What are the facts connected with the keys which came into the possession of Mr. Redington ? Those keys on the morning of that Sunday, on which he is arrested, are taken from the person of Mr. Smith O’Brien. They are, therefore, his property beyond aU question. They are then given to General MacDonald, and they are forwarded to Dublin by Captain Emans. Their perfect security and integrity is not violated. They arrive in Dublin, and are delivered by Captain Emans to Mr. Redington upon that day. Well, then, those keys so taken from the person of Mr. O’Brien, are thus transmitted by an early train, and are delivered in Dublin to the Under Secretary. Then the next evidence that appears in the matter is this, that at a later period, by a different train, brought by Mr. Bagnall the engineer, is this portmanteau, the unquestionable property of Mr. Smith O’Brien ; delivered to him on the night of that Sunday, accompanied by the key, — received, recognised, acknowledged, and identified by him as his property. When did that trunk arrive ? Manifestly it had been separated from those keys, from the moment that those keys had left the possession of Mr. O’Brien, and the keys are found in the city of Dublin, at the Castle. When the trunk arrives, they never having been together, Mr. Burke is despatched to the Castle, and he obtains the key of the trunk which had Q 2 228 SPECIAL COMMISSION, CO. TIPPERARY. been kept in the desk of the Under Secretary, under his private key ; and those keys, for the first time, are brought back to Mr. Redington, and the key of the trunk is separated from the rest, and the trunk is opened. Now, it is perfectly impossible that Mr. Redington, or any other human being, could have had any access to that trunk through the means of that key, or that Mr. Redington could have had access to that trunk by means of any other key. Mr. Justice Moore. — Then you are assuming that those keys, by one of which the portmanteau was opened, were the same keys which were delivered to Mr. Redington ? The Solicitor- General. — I am, my lord ; and for this reason, that they are the keys taken from the person of Mr. O’Brien. Mr. Justice Moore. — How does that appear ? The Solicitor- General. — In this way, my lord. The key which opens the trunk is afterwards sent with the trunk, and both are delivered to Mr. Alison — both that key and that trunk. That key which is detached from the bunch of keys — for it is the identity of that key alone which is material — is received by Mr. O’Brien as the key of that trunk ; and therefore it must, from the time it parted from Mr. O’Brien, have been the same key, in the possession of Mr. Redington, reproduced at the ATceregal Lodge, and returned to Mr. O’Brien in Kilmainham. Therefore, so far as the non-production of Mr. Redington is concerned, I do not think it could make the slightest difference in the case as to the identity of this key belonging to this trunk. Now, with respect to the trunk itself. You see, my lords, this is a question as to the admissibility of the evidence, not as to the weight of it. The Lord Chief Justice. — We think there is evidence that these papers may now be said to be traced to the possession of the prisoner., Mr. Whiteside. — Will your lordships allow me to hand you up that decision which I omitted to read while we were talking? I submit, consistently with that case, this evidence cannot be received. The paper found in the custody of Thelwall was sought to be given in evidence against Hardy, and it was refused. The Solicitor- General. — That does not apply. Mr. Whiteside . — Will your lordships allow me to mention what was said by Lord Ellenborough in the case of Rex v. Watson. There was a great discussion on the admissibility of a point of evidence. Lord Ellenborough said it was doubtful, and he did not give his opinion as to whether it was or was not evidence, but he said, it must be rejected in a capital case of treason. I submit, my lords, the authority of that case, which my Lord Chief Justice of the Common Pleas recollects perfectly, .exactly applies to the case before us. Lord Chief Justice Doherty. — In that case I think the THE QUEEN t;. WILLIAM SMITH O’BRIEN. 229 observations go more to the effect of the evidence than to the admissibility of the evidence itself. Mr. Whiteside, — My lords, in that case the paper was a letter found with a Mr. Thelwall. The objection was immediately taken, that a paper, which was found after his arrest, could not be given in evidence without proving its existence before the arrest. The Attorney-General did so ; and Mr. Erskine, in a very cele- brated case that he spoke in, relies upon it, and it was re-affirmed. I have not the case here at present, but it is the case of Rex v. Blake, 6th Adolphus and Ellis, New Series. The Lord Chief Justice, — The view I take of it is this. Mr. O’Brien states that his trunk was in Cashel, and does not say in whose possession. On the very same day, four and twenty hours after he makes that statement, the trunk is produced, being found in Cashel ; and that trunk is forwarded in the state in which it is found at Cashel, and proved by witnesses to be exactly in the same state when it arrives at the lodge in the Park. Mr. Whiteside. — Not hy the person who received it, my lord. The Lord Chief Justice. — Mr. Cox proves that he never interfered with it, and every one of the other witnesses prove, that down to the time it was deposited in the hall of the lodge in the Park, it was exactly in the same state as it was in Cashel. That is perfectly plain. At the Park this takes place : the trunk being unstrapped and unlocked, the clerk of Mr. Redington goes to the Castle, and with Mr. Redington’ s key opens the official desk, from which he takes a parcel, and from that parcel is taken a key, and then with that key the portmanteau is unlocked, its contents examined and separated, and then that identical key, with the trunk and the clothes of Mr. O’Brien, is brought to Mr. Alison, and he is directed to give the trunk and key to Mr. O’Brien, who receives them, acknowledges them to be his own, and has kept the trunk ever since. Now, the question is, subject to whatever observations you may make, whether we should now allow these documents to be read ? and there is no opinion that we pronounce on the subject, with respect to the matter, which is not, on the question of fact, still open to any observations you may make to the jury. You may contend, and successfully, to the jury that these documents are not sufficiently proved to have been in the possession of the prisoner, so as to entitle the Crown to affect him by them. Mr. Whiteside. — This, my lord, is the very case referred to by the learned persons who passed the Justice Administration Act. The Lord Chief Justice. — That must be a question for us. Mr. Whiteside. — As a matter of evidence, I am quite willing the matter should be reserved. The Lord Chief Justice. — We cannot do that 230 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Whiteside . — I ask your lordships to reserve it, under the Administration of Justice Act. Mr. Justice Moore . — I have taken a note of it. The Lord Chief Justice . — We have made a note of it. Mr. Whiteside . — May I ask the name of the person from whom the policeman got that trunk who has not been called ? The Lord Chief Justice . — His name was Norton. The Attorney- General . — A builder in Cashel. Mr. Whiteside . — Very well. The Lord Chief Justice. — Mr. Whiteside, you understand this — that although we have taken a note of your objection, we do not express any intention of reserving, or not reserving it. Lord Chief Justice Doherty . — The act of Parliament leaves it to be reserved by the Court ; the Court will deal with it, or not, as it thinks fit. The Lord Chie,f Justice. — Besides, you may be perfectly assured of this, that when I come to charge the jury, the same matters which I have stated now I will repeat then, in order that you may not be affected by any document, the identity of which is not proved. Mr. Whiteside . — Your lordship does not understand that those documents are read yet. The Lord Chief Justice. — No; they are notread yet. Mr. Whiteside . — My learned friend began to read them. . The Ijord Chief Justice . — I do not know what they are. Mr. William Franklin^ sworn — examined hy Mr. Scott. Do you hold any situation in the Provincial Bank at Limerick? — Ido. What ? — Manager. Are you acquainted with Mr. William Smith O’Brien ? — I am. Did he keep any account at that bank ? — He did. Are you acquainted with his handwriting ? — I am. I mean by Mr. O’Brien, the prisoner at the bar? — Yes. (A document was handed to the witness.) Be kind enough to look at any document now shown to you, and if you can form a satisfactory opinion as to whether or not it is in the handwriting of Mr. O’Brien, so declare and mark or hand them in. — Am I entitled to read them, to form an opinion ? The Lord Chief Justice . — If you cannot form an opinion without read- ing them, of course you must read them ; but if you can, by an inspec- tion of the document, say that it is his handwriting, that is enough. Mr. Scott . — The signature is enough; it is hardly necessary to read it all. — There is no signature to this; it is a note. Oh, very well. — This I believe to ,be in the handwriting of Mr. Smith O’Brien. Mr. Scott . — Just hand it in, and have it marked. {The witness handed the document to the Clerk of the Crown.) The Lord Chief Justice . — Mark that with the letter A. The Clerk of the Crown. — Yes, my lord. THE QUEEN t;. WILLIAM SMITH O’BKIEN. 231 Mr. Scott . — Will you look at that document if you please and the sig- nature to it {handing another document to the witness) '] — No part of this is in the handwriting of Mr. Smith O’Brien. Look at the signature of it j I was only asking you to look at that. — That I consider to be the signature of Mr. Smith O’Brien. The Lord Chief Justice . — Mark that B. Lord Chief Justice Doherty , — Is the body of it in his handwriting ? — No, my lord. Mr. Scott {to the witness ). — How much of it is his handwriting, or is there any thing more than merely the name ? — Merely what is on this page. What is this merely on the page? — “I remain very faithfully yours.” Well, the name? — “William S. O’Brien.” Do you believe that to be his handwriting ? — I do. Well will you hand it in ? {The witness handed in the document^ That is on a different page from the remainder of the writing to which it is so annexed ? — It is. Mr. Fitzgerald. — Perhaps, my lords, it would be convenient to mark such portions as the witness deposes to. Lord Chief Justice Doherty . — I have taken it very precisely, Mr. Fitzgerald — that the body of the document now produced and marked B, is not in the handwriting of Mr. O’Brien, but that the signature is. Mr. Potter . — They are detached sheets. Mr. Scott . — Not detached sheets, but separate sheets. {Another document was handed to the witness.) Can you form any opinion as to that document ? — {No answer.) Mr. Justice Moore . — As far as your opinion goes. The Lord Chief Justice . — What do you say to that, Mr. Franklin? — There is but one word in this document that I am disposed to swear directly to. Mr. Scott . — Can you form any opinion whether that is in the hand- writing of Mr. O’Brien or not? — I can form no decided opinion. Of any part of it ? — I can of one word. What is that one word ? — The word “Cahirmoyle.” At the head of it? — Yes. Do you say that you think that is Mr. O’Brien’s writing? — Yes. And you can offer no opinion as to the remainder ? — I can offer no decided opinion. We are not asking what you will offer? — I will offer no opinion. Can you form any opinion as to the rest of the signature ? — These are initials; no signature. Can you form any opinion as to the rest of it ? — I cannot. The Attorney-General . — My lords, we will put in this docu- ment as far as the word “ Cahirmoyle ” is concerned. {The witness handed in the document to the Clerk of the Crown.) Sir C. O'Loghlen . — How do you mark that ? 232 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Scott. — C., I suppose. Mr. Fitzgerald {to ike witness). — With respect to the first letter pro- duced, you believe that to be entirely in the handwriting of Mr. O’Brien ; of the second letter produced you believe only the signature to be in his handwriting 1 — Yes. The Lord Chief Justice. — They are marked A. B. C. Lord Chief Justice Doherty. — The document A. is altogether in his handwriting ; B. is the next one you allude to, and, of that, only the signature appears to he in his handwriting ; and as to the third, C., only the word “ Cahirmoyle.” The Lord Chief Justice. — Show me that one. (^The document was handed to his lordship.) Mr. Fitzgerald. — With your lordship’s permission I would wish the document B. to he handed to the witness for one moment. The Lord Chief Justice. — I just want to see exactly how it is. ( Yo the witness.) — Are the words “ Irish League” at the top, in the handwriting of Mr. O’Brien ? — If I am permitted to do so, I would wish to correct my evidence. With respect to this document, I think I men- tioned that I remain very faithfully yours ” That that was in his handwriting ? — I did, my lord; I would correct the fact. The Prisoner. — I cannot hear you. Witness. — I think the words “ William S. O’Brien” only are in his handwriting. I was asked generally with reference to this. Mr. Fitzgerald. — You were. Those are detached sheets ? — They are. The Lord Chief Justice. — Have you any thing more to ask him? Mr. Fitzgerald. — Nothing more, my lord. Witness. — My lord, am I to consider myself released as far as my attendance on this trial is concerned ? The Lord Chief Justice. — You must speak to the attorneys on both sides. There are some more words on that {referring to one of the documents). Do you think the words Thomas Matthew Halpin, Secretary of the Irish Confederation,” are, or are not, in Mr. O’Brien’s handwriting; they are after the signature ? — I dp, my lord, consider those words to be in the handwriting of Mr. Smith O^Brien. Then you consider the signature and the direction are both in his handwriting h — I do, my lord. Mr. Scott. — Will you let me look at that, Mr. Frankhn? (It was handed to the learned counsel.) The Lord Chief Justice. — Mr. Attorney, you will have nothing THE QUEEN WILLIAM SMITH O’BRIEN. 233 more for Mr. Franklin, I suppose? As he is a public officer you had better release him as soon as possible. Witness . — I have very urgent duties calling me elsewhere. If I could consider myself released, I should desire very much to attend to those duties. The Attorney -General . — Very well, you may he released for the present. If we want you we will send for you. Witness . — Then I may proceed to Limerick ? The Attorney- General. — Yes. Mr. Robert Walpole, sworn — examined by Mr. Sausse. You are, I believe, superintendent of police in Dublin ? — An inspector. What have you got in your hand ? — Papers which I purchased in Dublin. Where did you purchase them ? — At Mr. Grierson’s, in Essex-street. Is Mr. Grierson Queen’s Printer? — Yes. Hand those in. {The witness handed in the papers.) The Lord Chief Justice . — What do they purport to be generally? are they copies of acts of Parliament ? — They are copies of The Dublin Gazette, my lord. Mr. Sausse . — Give the dates of them, the first and earliest ? — The first is Tuesday, July 25, 1848. Lord Chief Justice Doherty. — 5th or 25th did you say? — The 25th, my lord. Mr. Sausse . — What is the next date? — The next is The Dublin Gazette of Friday, July 28, 1848. Now, the next date ? — The next is The Dublin Gazette Extraordinary, Wednesday, July 26, 1848. The Lord Chief Justice. — July, what date ? — The 26th, my lord. Lord Chief Justice Doherty . — That is intermediate. Mr. Scott. — Yes, exactly, my lord ; the 25th, the 26th, and the 28th. Mr. Sausse. — Now, go to the next ? — I don’t see the first page of the next ; this is the way I got those papers. Mr. Scott . — It is no matter; just see if you can fix the date by any other page ? — It is printed and published at the Queen’s printing office. The Lord Chief Justice . — Does it state the date ? — 22, Essex-street, July the 25th. We have had that; there are four ? — I got five. Mr. Sausse . — Do you remember the 27th of July? — Yes. Do you remember on that day going to the house of a person named Keeley? — Yes. Where ? — No. 1, Eustace-street, Dublin. Do you know Mr. Halpin ? — No. Did you ever see those documents before {handing some documents to the witness) ? — This is my handwriting on this. Where did you get those documents ? — I got these documents from a sergeant of the name of McCurdy, who accompanied me when searching. Where ? — The house of Mr. Keeley, in Eustace-street. 234 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Whiteside . — You got them from whom ? — I got them from a man named McCurdy. Did you see him getting them ? — I cannot say that I saw him getting these papers, but he gave them into my hands. He gave them to you ? — Yes. The Lord Chief Justice . — How many are there? The Attorney -General . — Those are two of the documents, my lord, that Mr. Franklin gave evidence in relation to. The Cleric of the Crown . — How are they marked '? What letters are on them ? — They are marked with my initials. The Clerh of the Crown . — What letters % Lord Chief Justice Doherty . — You had better look at them yourself, Mr. Pedder. {The documents were handed to the Clerh of the Crown by the loitness.) The Clerh of the Crown . — These are B. and C., my lord. Mr. Sausse {to the witness .) — These are documents that you got from McCurdy, in Keeley’s honse ? — Yes. Do you remember seeing any women, or girls there, at the time you were making the search 1 — I recollect seeing two women. Do you know the names of them 1 — I believe them to be the daughters of Mr. Keeley. Mr. Whiteside . — You believe ! When did you get these papers; what day h — On the 27th of July. Eneas McCurdy, sworn — examined hy Mr. Lynch, I believe you are in the Dublin police % — Yes. Do you remember going with Mr. Walpole on the 27th of July to Mr. Keeley’s house in Eustace-street ? — Yes. Do you remember handing to him any documents ? — I do. Where did you get the documents which you so handed to Mr. Wal- pole % — I found some of them in an open press in the lobby, and I found others of them in a kind of drawers or press in the shop. The Lord Chief Justice . — Did you give all that you found there to Mr. Walpole ? — I gave them all to Mr. Walpole. Mr. Lynch . — Did you mark them 1 — I did. Well just look at those two {handing two documents to the witness) ? — Yes, that letter is- marked by me. Well, look at the other 1 — That was found by me. Lord Chief Justice Doherty . — How are they marked — by your initials? — Yes, my lord. Mr. Lynch. — Well, is that initialed by you {handing a document to the witness consisting of several sheets) 1 Look at the end of it ; surely you would not mark it in the middle ? — Yes, I signed this. This appears to be all one communication. N ow when you got those, was there any person in the house who saw you take them; were any persons belonging to the house present? — There was no person actually present who saw me take them out of the press, but I brought them into a room where Mr. Keeley’s two daughters were. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 235 Do you know the name of either of those daughters ? — One of them is named Fanny and the other Mary Anne. Cross-examined hy Mr» Whiteside. You are a policeman'? — Yes. Had you any authority to go to that house to search for those papers ? — I went Had you any legal authority ? — I had a warrant to search for arms. And under the warrant to search for arms you got all those papers - Yes. You got them in an open press ? — Yes. And nobody saw you get them ? — There was nobody saw me get them. You went into the office, opened the press, and took out the papers '? —Yes. Did you not see a great many ? — Oh, some hundreds. Were there not a great many letters from Roman Catholic clergymen ? * — I cannot say that. With those papers, did you not get a number of letters from some of the first dignitaries of the church ? — I chnnot say who they were from. The Solicitor- General . — That is not evidence ; I object to that. Mr, Whiteside . — I asked the question because aU the papers are not produced ; only two of them are produced. {To the witness .) — Did you not get a number of letters '?'— Some hundreds. What did you do with them ? — I marked them and Gave them to the Under Secretary ? — Not to the Under Secretary. Who did you give them to ? — I handed them to Mr. Guy, the inspector. And those are the only ones that are handed to you here ? — These are the only two produced to me here. Mr. Whiteside . — Very well, you may go down. Miss Mary Anne Keeley, sworn — examined hy the Attorney-General. Where do you reside % — No. 1, Eustace-street. In Dublin? — Yes. Do you know Mr. Halpin ? — Yes. Is he married to any relation of yours ? — To a sister of mine. What is Mr. Halpin’s Christian name ? — Thomas Matthew Halpin. Do you recollect the police coming to your father’s house in Eustace- street, and taking away any papers ? — Yes. Did you see those papers before the police took them away ? — I did. Where did you first see those papers that the police took away ? — In No. 9, D’Olier-street. Who lives at No. 9, D’Olier-street, or who did live there at that time ? — Mr. Halpin. Was Mr. Halpin at 9, D’Olier-street when you saw the papers there ? — He was. What was done with the papers that were at No. 9, D’Olier-street; what became of them ; were they brought to Eustace street ? — Yes. Who brought them to Eustace-street ? — I did. 236 SPECIAL COMMISSION, CO. TIPPERARY. Then you are sure that the papers which the police found at Eustace- street had been brought by you from D’Olier-street to Eustace-street 1 Mr. Whiteside. — I beg your pardon ; was she present ? The Attorney -General. — She was. Mr. Whiteside. — The pohceman swore that he got them in an open press alone. The Attorney-General {to the witness). — Were you in the house at Eustace-street when the police came ? — I was. Did you see the police take the papers? — Yes. Were those the papers that you brought from D’Olier-street? — Some of them I brought. How long before the police came had you brought them from D’Olier- street? — I could not exactly say. About how long was it — a week, or a fortnight, or how long? — I could not tell. You cannot tell? — No. The Lord Chief Justice. — She cannot tell how long? The Attorney-General. — No, my lord. {To the witness.) — What was Mr. Halpin’s business? — He was a secretary. Secretary to what? — To the Confederation. Mr. Whiteside. — I object to this mode of proving it, Mr. Attorney. The Attorney- General. — You do. Mr. Whiteside. — I do. The Attorney-General {to the witness). — Where did Mr. Halpin reside at that time? — No. 9, D’Olier-street. You say that Mr. Halpin was Secretary to the Confederation? Mr. Whiteside. — I beg your pardon, Mr. Attorney. My lords, with great respect this is not the mode in which to prove the existence of the Confederation. The Attorney- General. — We have proved by the Government Reporter, over and over again, that he attended meetings of the Confederation. The Solicitor- General. — And at which Mr. O’Brien spoke. The Lord Chief Justice. — And at which Mr. Halpin was Secretary. The Attorney- General. — Yes, my lord. Mr. Whiteside. — This is the female Secretary, I suppose. The Attorney-General {to the witness). — Now in what part of the house were these papers kept? — In an open press. Was Mr. Halpin in the habit of frequenting your father’s house? — No. . _ You say you brought some papers from D’Olier-street? — Yes, Do you know who brought any other papers? — No. THE QUEEN WILLIAM SMITH O’BRIEN. 237 Do you know what papers you yourself brought? — No, I do not. What kind of papers did you bring, or how did you bring them? — Tied up in a paper, I think. Did you bring all the papers that the police got? — No. Do you know what papers the police got that you did not bring? — Some were got in a press below in the shop. You did not bring those? — No. Now what room were those got in that you brought? — From a press in the lobby. Mr. TVJiiteside . — I distinctly understood the policeman to swear that nobody was present but himself. The Solicitor-General . — He did not see this person, but this person might have seen him ; that is all the difference. The Lord Chief Justice . — I will tell you what he says. The Attorney -General . — The papers that were in the lobby you brought from D’Olier street? — Yes. Lord Chief Justice Doherty . — He distinctly says that he saw two women there at the time of the search. Mr. Whiteside . — My lord, I thought he said that he went into another room, where two women were, and showed the papers to them. The Lord Chief Justice . — This is what he says — There was no person actually present who saw me take them out of the press ; hut I brought them into a room where Mr. Keeley’s two daughters were.” Mr. Whiteside . — That is what he said, my lord. She was not present when he got them. The Attorney-General . — That is all I have to ask this lady. Cross-examined hy Mr. Fitzgerald. I think I understood you that you cannot say how long before it was that these papers, which were found by the police, were brought from D’Olier-street? — No. Where did you put them when you brought them from D’Olier- street? — Into a press. An open press? — Yes. Mr. Scott . — A press in the lobby. Mr. Fitzgerald — There is an office in D’Olier-street? — Yes. Mr. Fitzgerald . — You may go down. The Lord Chief Justice. — Pray, how did you happen to take those papers from D’Olier-street — was the office shut, or what was the cause of it ? — I went to see my sister in D’Olier-street. Your sister lives in D’Olier-street? — She did at that time. Was it at her instance that you took the papers away? — No. Why did you take them away? — Because they were going to Dame- fitreet. 238 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Fitzgerald . — Will your lordship allow me to ask one other question? The Lord Chief Justice — Certainly. A Juror . — I beg your pardon for one moment. {To the witness .) — Is Mr. Halpin here ? — I don’t know. You don’t know whether Mr. Halpin is here or not? — I do not. Mr. Fitzgerald . — What do you believe on that point? — I believe that he is in Naas gaol. The Lord Chief Justice That will not do. A Juror . — Who gave you the papers? — Nobody. Mr. Whiteside. — Ah, she took them of her own accord. The Lord Chief Justice. — Mr. Halpin was quite aware that you were taking them ? — Yes, my lord. The Attorney -General . — Was Mr. Halpin by at the time? Mr. Whiteside . — I beg your pardon, Mr. Attorney, the witness is in the hands of the jury now. A Juror . — How did you know that any papers were there? — They were on the table. Was that the first time that you ever took papers of a similar sort from that house ? — Y es. James Stevenson Dohhyn, sworn — examined hy the Solicitor-General. Where do you reside ? Where have you resided for the last twelve months ? — In Dublin. Were you ever a member of any club in Dublin. — a Confederate club? — I was. What was the name of that club of which you were so a member? — The Red-Hand Club — a branch of the Curran Club. Where did the Red-Hand Club hold its meetings ? — On Constitution hill. That is near the Broad-Stone, I believe ? — Yes, it is. Where did the Curran Club, of which it was a branch, hold its meet- ings ? — In Capel-street. Who was the president of the Curran Club ? Mr. Whiteside I object, my lord, to this evidence against Mr. O’Brien, as the case now stands. I object to the acts of this president, whoever he may be, being evidence against Mr. O’Brien. The Lord Chief Justice . — It is utterly impossible they can be any evidence against him, unless they connect him with them. Mr. Whiteside . — That must be clearly settled, my lord. The Solicitor-General . — I wish to apprize my learned friend that I will ask for no declaration made at that club, or that branch, until I connect Mr. O’Brien directly with them ; but all I will ask is, as to the fact of there being such a president. , THE QUEEN i-. WILLIAM SMITH O’BRIEN. 239 Mr. Whiteside . — I do not object to that. Mr. Justice Moore . — He says he is now going to connect ^Ir. O’Brien with them. Mr. Whiteside . — If he is going, my lord, to connect Mr. O’Brien with them I have nothing to say against it. The Solicitor-General {to the witness ). — When you became a member of that club, in what street did you yourself reside ? — Linenhall-street. That is close, I believe, to Constitution hill ? — In the neighbourhood. What business did you follow, Mr. Hobbyn? — Why, I have been professionally an engineer, but latterly I have been a clerk through a varicose vein in my leg. The Prisoner . — Repeat that answer. The Solicitor- General . — He says he has been a clerk. {To the witness .) — You were an engineer yourself, at one time? — Yes. And latterly you say you were a clerk I think? — Yes. What kind of clerk ; was it a mercantile clerk, or legal clerk, or what? — It was a legal clerk. A law clerk ? A Juror . — That is, an attorney’s clerk. The Solicitor- General. — Yes, that is what we understand by a law clerk. {To the witness .) — Was there any mark upon this house where the Red Hand-Club met to distinguish it ? — There were blinds in the windows with a red hand painted on them and red letters. Now, at the time you joined the Red-Hand Club about how many members were there of it ? — I think on the books and on the roll there were about thirty. Now, are you able to state the number of the Curt*an Club, of which the Red-Hand Club, you say, was a branch. What was the number, or about the number? — About the 22nd of July last there were upwards of 500 j it had been two months in organization. Do you know Mr. Thomas Francis Meagher? — Yes. Have you seen him either at the Red-Hand or the Curran club ? — At the Curran club. Do you know Mr. Dillon ? — Quite well. Mr. Whiteside . — My lords, with great respect, I do not think they can ask who were the members of the clubs. They have not proved that Mr. O’Brien was a member of either of these clubs, or of any club. The Solicitor- General. — Now, just wait for a moment ; I cannot prove every thing at once ; perhaps in three questions more I will bring your client, Mr. O’Brien, directly in communication with the witness, who is now being examined. Mr. Whiteside . — Do you undertake that, Mr. Solicitor ? The Solicitor-General — I am instructed I can do that. Mr. Whiteside . — Then I sit down ; I was instructed differently. The Solicitor- General. — Oh, of course you were. You have put in a plea of not guilty, and you deny every thing. 240 SPECIAL COMMISSION, CO. TIPPERARY. The Prisoner . — I call for the protection of the Court. My honour has hitherto been unstained, and I will not allow it to he assailed here even by a Solicitor-General. The Solicitor- General . — I assui’e you, my lords, if there were not these interruptions Mr. Whiteside . — It is my bounden duty to interrupt, Mr. Soli- citor. I am instructed that Mr. O’Brien is not a member of this or any club. Lord Chief Justice Doherty . — The Solicitor-General announced that he is in progress, by questions, to connect Mr. O’Brien with these clubs. Mr. Whiteside . — Then why not ask was he a member? Lord Chief Justice Doherty. — No, no, not a member. The Solicitor- General . — I did not say he was a member. Mr. Whiteside. — Y^es, you did. The Lord Chief Justice. — Now, Mr. Whiteside, I entreat of you, for your own sake, not to make these interruptions. The Solicitor-General (to the witness). — Now, do you remember the evening of the 15th of July ? — Quite well. Did you on that evening attend a meeting of your own club, as I call it — the Red-Hand Club ? — On the early part of the evening I was sum- moned to attend the council. Never mind the summons; just answer my question. But you attended the club 1 — I did. Do you know where the council of the Confederation held their meet- ings 1 — I do ; in D’Olier-street it held its meetings. Do you remember on the evening of that 15tli of July going to attend a meeting of the council in D’Olier-street? — Yes. Now when you entered that place, did you see Mr. O’Brien there? — I did. What part of the room, or whereabouts was he sitting ? — At what I would call the head of the table. Did you know Mr. Halpin ? — 1 did. Where was he sitting ? — I think, to the best of my judgment at the lower end of it. To the best of your recollection ? — -Y^es, I am quite certain he was. At the foot of the table, at the lower end ? — At the lower end. Now when you went into that room, about how many persons did you find there assembled ? — I think there were about a hundred as near as I can recollect. Now will you tell the Court and jury how you got admittance into that room — whether there was any thing said, or done, previous to your getting admittance into that room ? — I had been Mr. Whiteside . — I object to what took place before he got in. If it was outside in the street, that is not evidence against us. The Lord Chief Justice . — You had better not go into those matters. He said he got in. The Solicitor-General . — Now was any thing said to you in Mr. O’Brien’s presence, or by you to him, or any one there, as to what brought you there ? THE QUEEN v. WILLIAM SMITH O’BRIEN. 241 Mr. Whiteside Stop a moment. This was a large meeting ; and unless this was said to Mr. O’Brien, it is not evidence against him. The Lord Chief Justice . — That is the question asked. Lord Chief Justice Doherty . — Either to Mr. O’Brien or by him. Witness . — What took place was The Solicitor-General . — What took place was in his presence ? — In his presence. Mr. Whiteside . — It is not in his own presence, Mr. Solicitor. The Lord Chief Justice . — He distinctly stated that what he was about to say occurred in Mr. O’Brien’s presence. Mr. Whiteside . — With great respect to your lordships, I sub- mit that that is not sufficient. If any man speaks in my presence I must be in such a position not only to hear him, but 1 must take part in the conversation to make it evidence against me. A man may say I have committed murder ; that is not evidence against me, unless it is addressed to myself. The Solicitor-General {to the witness ). — Now after you were admitted into this room, in the presence of Mr. O’Brien, tell the jury what there occurred. — Mr. O’Brien was sitting at the head of the table with a book in his hand The Lord Chief Justice . — Go slowly, if you please. Lord Chief Justice Doherty . — With a book in his hand % — With a book in his hand in which the clubs of Dublin were registered. Mr. Whiteside. — Well, now I object. The Solicitor-General . — Did he say any thing from that book 1 — He called out the name of the club, and the representative of that club answered. Mr. Justice Moore . — He called out the name of the club, and the representative of the club ? — Yes ; and he came forward. And that representative came forward? — Yes, my lord. The Lord Chief Justice . — He called out the name of the club, and its representative answered? The Attorney- General. — Yes, my lord, that is it. Lord Chief Justice Doherty . — What I have taken is, that Mr. O’Brien called out the name of the club, and its representative came forward and answered ? — The representative whose name was on the book. A Juror . — What was the mode of answering? — He came forward. What did he say ? — He said that he was the representative of that club ; and Mr. O’Brien asked what was the number in the club — that is, the numerical strength of it. The Lord Chief Justice. — Mr. O’Brien asked what was the numerical strength of those clubs? — Yes, my lord. The Solicitor-General. — Now, was the number of the Red-Hand Club called — was your club called ? — It was not. Was it called at any time during the evening? — Not that night. R 242 SPECIAL COMMISSION, CO. TIPPERARY. Well, when the question was put to the representative of the club, as to its numerical strength, what was then said by the representative ? — He told the number of it. That is, the numerical strength ? — The numerical strength. Do you remember what further occurred there between the repre- sentative and Mr. O’Brien ? — Mr. O’Brien then said, was it organized ] The Lord Chief Justice. — What? — Was it organized. Mr. Justice Moore. — Who did he say that to % — The representative of the club. The Solicitor-General. — Did he say any thing more about the organiza- tion? — That is, was it divided into sections, or sub-sections, and was there an officer at the head of each section. The Lord Chief Justice . — Were those the questions he asked? — (A^o answer.) Mr. Justice Moore — Was that the question he asked? — Yes, it was, my lord. Mr. Whiteside . — At that time? — {Ko answer.) The Solicitor-General . — Can you say how much time was occupied that evening in going through those inquiries to the representatives? — Not less than three or four hours ; three hours at the very least. The Prisoner . — Will you repeat that answer again ? Mr. Whiteside. — What did you say, sir ? — I said, I think he was about three hours. The Solicitor-General. — Now, you know the members of the Con- federation Council. Were you in the habit of going there, occasionally, to that meeting ? — I was, occasionally. Now, did you see any of the gentlemen there that were members of that council of the Confederation, on that night that we are speaking of — the 15 th of July? — There were various members of it. Would you name a few of the leading men, as well as you recollect? Mr. Whiteside. — Were you a member yourself? — Of which? The Solicitor -General . — Now do not interfere, Mr. Whiteside. Y on will have an opportunity of cross-examining him afterwards. Lord Chief Justice Doherty {to the witness). — You are asked can you name any of the leading members ? The Lord, Chief Justice. — Who were there that night? — I believe Mr. Whiteside . — But it is not your belief ; you must be positive. The Solicitor-General. — As well as you can recollect ? — To the best of my recollection the room was exceedingly full, and I could not distinctly know them all. But it is only some of them ? — Why, to the best of my recollec- tion — Mr. Whiteside . — I object to that. The Lord Chief Justice. — You must be positive as to the fact of nam- ing the persons. At what time did that meeting commence ? — lu the early part of the evening. I should say about eight o’clock. THE QUEEN v. WILLIAM SMITH O’BRIEN. 243 Mr. Justice Moore. — That is, about the time you went there ? — I did not go at that time, at the very commencement. What time did you go there ? The Solicitor-General. — What time did you go there yourself 1 — About nine. Did you know Mr. Doheny 1 — I did. Did you ever see him at any of these meetings ? — I have seen him ; but not at that time. Do you recollect whether you saw Mr. Dillon or Mr. Meagher there that night ? — Mr. Meagher was not there I know. He was not there that night? — No. [The witness here referred to a memorandum book.) Mr. Whiteside. — Was that memorandum made at the time, Mr. Dobbyn ? — {No answer.) The Solicitor-General. — I have not asked him a question about it. Mr. Whiteside.— It might be made last night ; if it was, it would not be evidence. The Solicitor-General. — Do you recollect what day of the week that w'as ? — Saturday. Do you remember any thing said that night, at that meeting, about the clubs meeting that day ? — (No answer^ The Lord Chief Justice. — Now, when you say “that night,” be sure that it was made either by Mr. O’Brien, or in his presence % — This meet- ing was to make arrangements for a meeting next day, at four o’clock, near Kilmainham — at Mr. Ennis’s yard. The Lord Chief J ustice. — How did that appear; who said that — I believe it was a Mr. Troughton who introduced that place as a fit place. It was a meeting convened for the purpose of making an arrangement for the next day’s meeting, in order that he might be satisfied as to the numerical strength of the clubs, as a difference of opinion existed; some said there were five thousand, some ten thousand, and some three thou- sand in these armed clubs. Mr. Justice Moore. — Was all that said in Mr. O’Brien’s hearing % — Yes, my lord. The Solicitor-General. — Was it in consequence of that difference of statement as to the strength of the armed clubs, that there was to be a meeting the next day at Ennis’s yard, near Kilmainham ? — I will not say that ; at all events, he was desirous of seeing them as to their goodly appearance. Now, you stated that this Ennis’s yard was at Kilmainham ? — Yes. Do you recollect Mr. O’Brien saying any thing as to the situation of Ennis’s yard for the purpose ? — He asked were the walls high, and if there were sufficient gates on it, in order to prevent any person going in except a clubbist. Now, during the course of that evening, you have mentioned that Mr. O’Brien said something about the clubs being organized ; do you recol- lect whether he made any other observation with respect to the object of that organization, or touching organization, that you remember occurred, and can be sure of ? — That is, was it divided into sections or sub- sections. R 2 244 SPECIAL COMMISSION, CO. TIPPERARY. Did he stale for what purpose, or any purpose. Just recall to your recollection any thing he said on that occasion with reference to that organization ? — Not at the time, he did not; but it was to effect the independence of the country. Mr. Whiteside . — That is manifestly his own statement, not what Mr. O’Brien said. The Solicitor- General . — I will ask him. {To the witness .) — Did Mr. O’Brien use those words, “to effect the independence of the country,” at any other time?— Yes, at another time that evening. Did you go to that meeting at Ennis’s yard the next day ? — It did not take place. Do you recollect whether at that time, that evening, about the meeting at Ennis’s, any time was fixed for meeting? — Four o’clock. Did you hear Mr. O’Brien say any thing as to the manner in which they should proceed from their clubs, or proceed towards Ennis’s ? — They were to go in sections of five. Did he assign any reason for that arrangement ? — In order to prevent them coming in contact with the authorities. You say the meeting did not take place at four o’clock on the Sunday following ? — Yes. Do you know how that happened ? — Why, it happened on account of the authorities getting some knowledge Mr. Whiteside . — How does he know that ? The Solicitor-General . — Was the ground pre-occupied ? — It was pre- occupied by the police. Now, do you recollect during the period you were at that assembly, while Mr. O’Brien was at the head of the table, hearing him say any thing as to where he had been himself, and what he had been doing? — Why, he gave an encouraging account of a kind of tour he had been making of the clubs. Where — what places ? — Cork, and other places which he mentioned. Do you recollect his giving any particular account of what passed at Cork, with respect to himself and the clubs there. Was there any thing that you recollect ? — He said that he marched at the head of the clubs, and that he saw their organization; and they were as fine a body as any in her Majesty’s service. The Lord Chief Justice . — Cork clubs or club? — Yes, my lord. Lord Chief Justice Doherty . — Clubs or club, did he say? — He particu- larly marked out the Cork clubs for being so orderly and so well organized. The Lord Chief Justice . — “ That they were as fine a body ” — I forget the words after that ? — As any in her Majesty’s service. The Solicitor-General . — When speaking, that night, of the organization of the clubs, was there any thing said about the state of their arms, or any thing of that kind ? — There was a general conversation as to the state of their arms. The Lord Chief Justice . — Are you sure that Mr. O’Brien heard that, or took any part in it ? — I am quite convinced he must have heard it. THE QUEEN v. WILLIAM SMITH O’BEIEN. 245 Lord Chief Justice Doherty . — Was that conversation sufficiently loud for the person who then sat at the head of the table to hear what was uttered % — Sufficiently loud, and Mr. O’Brien replied to questions on the subject. Mr. Justice Moore . — Questions about arms ? — Yes, my lord. The Solicitor-General . — You spoke of a person of the name of Troughton who was there ? — Troughton gave an account of a tour he had made through England organizing. The Lord Chief Justice . — Who was Troughton ? — He had been engineer to a Mr. Mooney, in Pill-lane. Was this also heard by Mr. O’Brien ? — Yes, my lord. The Solicitor-General . — He gave an account, you said, of his having been through England organizing h — Organizing ; that there were two clubs in England, and that there were 500 men ready to come over at the first notice. Lord Chief Justice Doherty . — That is Troughton’s statement? — That is Trough ton’s statement. The Solicitor-General . — Ho you remember Troughton, with reference to those men coming over The Lord Chief Justice . — I beg your pardon. {To the witness .) — Ready to come over when do you say ? — When the insurrection would break out. The Solicitor-General . — Ho you remember him saying any thing else about arms of any particular description ? — Lie said that they had two swivels also ready to come over. Mr. Whiteside . — Who said this, sir? The Solicitor- General. — Mr. Troughton. The Prisoner . — I did not hear that last answer. The Solicitor- General . — There were two swivels ready to come over. Lord Chief Justice Doherty . — When you say that Mr. Troughton stated this, am I to understand you that Troughton addressed anybody in particular, or said it in the shape of a speech ? — He addressed Mr. O’Brien. And that is not what you have called, in some places, a conversation going on in the room? — It was not a conversation, for all was quiet during that statement. Hid the speaker stand on his legs addressing the chairman in his speech ? — No; he was sitting quite convenient to him. But still he made this in the shape of an address ? — In an address. Mr. Justice Moore . — Was it said so that those sitting round the table could hear ? — Every person in the room could hear it. The Solicitor-General . — Ho you remember, then, with reference to thoso swivels which you have spoken of, Mr. O’Brien making any observation or saying any thing in relation to them ? — Why, he said this — Troughton, at the time he mentioned the cannon, stated, that the great difficulty lay in the way of getting them over. The Lord Chief Justice . — Who said that? — Troughton, my lord. The Solicitor-General — Troughton said that a difficulty lay in the way of getting them over ? — Yes. 246 SPECIAL COMMISSION, CO. TIPPERARY. Well, was there any observation made by Mr. O’Brien in relation thereto ? — Mr. O’Brien instanced where he had been in Bantry Mr. Justice Moore. — What % — Mr. O’Brien made a statement, like a reply to his statement, in reference to the cannon, that he had been in Bantry, where he was met by a boat’s crew, who gave him a hearty cheer, and who would have the country roused in a short time to meet him, on coming into the town ; a boat going across, giving a facility for a gathering of the people, so that there were about five thousand people and clubbists ready to meet him ; and he said that all the clubs in Dublin should have a boat which would answer that and other purposes. The Solicitor-General — Do you know at this time, of your own know- ledge — Lord Chief Justice Doherty. — Is that what you said, that every club should have a boat 1 The Solicitor- General. — That every club should have a boat attached to it, which would answer for that and other purposes. [To the ivitness.) — At that time did you know Mr. Charles Gavan Duffy ? — I did. Do you know where he was at the time of the meeting of this club on this night — the 15th of July? — I think he was in prison. The Lord Chief Justice. — What? — In prison, my lord. The Solicitor-General. — Was there any thing said on that occasion that evening, in the presence of Mr. O’Brien, with respect to Mr. Duffy ? — Mr. Whiteside. — What was the question ? The Solicitor-General. — I was asking, do you recollect any thing having been said with reference to him, or in case of his conviction, or any thing occurring to him ? — You are confounding dates. It is not the same date. Well, do you remember at any time, at any meeting? — Yes, on the 19th, on a discussion on the Arms Bill. The Lord Chief Justice. — Are you going to the 19th? The Solicitor- General. — No, my lord, not yet. I will not ask that question for the present. [To the ivitness.) — Now, confining yourself to that evening that we have been speaking of, the 15th of July, do you remember was there any thing said about any time for an insurrection, when that subject was discussed ? Mr. Whiteside. — That question ought not to have been asked in that form. The Lord Chief Justice. — It is rather a leading question. Mr. Whiteside. — It is as leading a question as was ever put into the mouth of a witness. The Solicitor-General. — Mr. AVhiteside, now do not say any thing. Mr. Whiteside. — I will make observations now, Mr. Solicitor. THE QUEEN t- WILLIAM SMITH O’BRIEN. 247 The Solicitor- General . — Then I will ask it in another form. {To the witness .) — Did Mr. O’Brien say any thing further that you recollect with reference to the state of the clubs ? — Why, he spoke for a considerable time of the organization necessary to effect the object they had in view. Mr. Justice Moore . — At that same meeting ? — Yes, my lord. The Solicitor -General . — Are you able to state any thing more particular with respect to what was said by Mr. O’Brien on that occasion % — He con- sidered at that time that the organization was not perfect, at least he had not inspected Ireland to have proof positive. Do you remember him saying any thing further with reference to that subject % — Yes. What was it, do you recollect % — He said, that he would prefer ascend- ing the gallows, rather than that one should lose his life on his account by a premature step. The Prisoner . — Just repeat that again. The Solicitor-General . — Just repeat that again to the jury? — Why at the time Troughton asked him as to the date of the insurrection, and Mr. O’Brien was speaking, he said that he would prefer ascending the gallows, rather than that any one should lose their lives on his account by a premature step. Mr. Justice Moore . — Let me understand you. Did Troughton ask what was to be the date of the insurrection ? — That was a general con- versation. The Solicitor- General . — Not Troughton particularly, my lord. {To the witness .) — All took a part in the conversation as to the state of the arms, and as to when an insurrection was to take place ? — They were talking of that. Lord Chief Justice Doherty . — Do you mean it was discussed at the particular time when there should be a movement? — Discussed; they were talking each The Lord Chief Justice . — Now just repeat what you say. Mr. O’Brien said what ? The Solicitor-General . — Now repeat what Mr. O’Brien said with reference to that discussion about the time. — There was a discussion as to that. The Lord Chief Justice . — I want you to repeat what you stated in which the word premature” occurred ? — That by a premature step I am not asking you any question, but simply want you to repeat what you said about “ premature step ?” — He said that he would ascend the gallows, rather than one should lose his life on his account. The Solicitor-General . — Go on, now. Lord CMef Justice Doherty . — Is there any objection that you see to my reading what 1 have taken, to see if I have taken it correctly. There is a good deal of questioning backwards and forwards. Mr. Whiteside . — There is this, my lord, that perhaps the wit- ness would repeat exactly the same words, which otherwise he w’ould not. 248 SPECIAL COMMISSION, CO. TIPPERARY. Lord Chief Justice Doherty. — I want to know if this is what Mr. O’Brien said, that he was prepared to ascend the gallows, rather than one should lose his life by a premature movement ; and whether this was stated when they had a conversation through each other at the time of meeting. Mr. Whiteside. — The phrase was, “ on his account.” Witness . — Am I at perfect liberty to correct my statement ? The Lord Chief Justice . — To be sure; just state it over again ? — It is now clear, from the way it was put to me ; I did not recollect perfectly. It was mentioned, also, as to the rescue, and all unanimously cried out in case of the conviction Mr. Scott . — Of whom ? — Of the persons who were in gaol. The Solicitor-General . — Just repeat that again, witness. The Lord Chif Justice . — What did they cry out ? The Solicitor-General . — What did they cry out about the persons in gaol ? — In case they should be convicted, they all, every one, said that they would rescue them. Now, upon that occasion, when those persons spoke of a rescue, do you remember Mr. O'Brien saying any thing in particular ? — His reply in reference to the time and the rescue, was for both cases ; it answered both cases. Mr. Whiteside . — What did he say, sir? That is what you are asked; not that it answered both cases ? — Why, they had, first, as to the time of the movement, and, also, in both cases Just state what he said ? — In case of a conviction that he would as- cend the scaffold, rather than one should lose his life on his account. The Solicitor-General . — Did you know a Mr. Brennan that frequented that meeting? — Yes. What is his Christian name, do you recollect? — I think it was Joseph. Do you remember that there was another meeting on the 19th of July? — A mid-day meeting it was. Was it in the same place? — Yes, in the same place, D’Olier-street. The Lord Chief Justice . — What is the body that you are speaking of ? The Solicitor-General . — What body is it that met in D’Olier-street? — A meeting in D’Olier-street. Of whom? — The representatives of the clubs, and part of the council of the Confederation. Did you attend there as the representative of any club ? — I attended there as the representative of the Red-Hand Club. Lord Chief Justice Doherty . — Will you give the date of that? — The 19th of July. The Solicitor-General . — Were there many persons present; was it a very crowded meeting ? — A very crowded meeting also. Was Mr. O’Brien there on this occasion ? — He was. Have you any recollection whether there was any person, and if so, whom, in the chair on that occasion ? — Why the room was so full that I could not just know properly who was in the chair. Now, when you went into the room you say you saw Mr. O’Brien there, but you are not able to say whether he was in the chair or not ? —No. THE QUEEN t;. WILLIAM SMITH O'BRIEN. 249 Did you see this Mr. Joseph Brennan there on the 1 9th, do you re- collect ? — I did see him. Did he address the meeting in any way, or say any thing to the meet- ing 1 — The meeting was for the purpose of defeating the Lord Lieute- nant’s proclamation as to the Arms Bill. Did Mr. Joseph Brennan say any thing about that proclamation or with that object 1 — Mr. Brennan proposed a written resolution to say that the insurrection should take place at once, and he urged that the people would not be better off at harvest. Lord Chief Justice Doherty . — What did he say about harvest? — He said that the people would not be in a better position. The Lord Chief Justice . — The people would not be what? — In a better position at harvest. The Solicitor-General . — Did Brennan say any thing further, do you remember? — He said that the people would be dispirited, and the Government would take up all the arms they could. Did you see Mr. Dillon there on that occasion ? — Yes, Mr. Dillon, I believe, moved an amendment to that resolution. WTiat was his amendment ? — His amendment was, that the people should conceal their arms, and give passive resistance to the proclamation. Do you remember whether Mr. O’Brien, on that occasion, said any thing ? — Mr. O’Brien said that a break out at this time would be pre- mature. Do you know a Mr. Thomas Darcy M‘Gee ? — Yes, Mr. M‘Gee made a speech also, and wanted the whole of the members present to cast lots, who would advise the people that night, in the Music Hall, to resist the proclamation. You know Mr. Richard O’Gorman, jun., you said? — I do. W^as he there at that meeting? — On that day he was present, and he told Mr. Dillon that resolution was too vague, too indefinite. That is, the resolution about passive resistance? — About passive resis- tance ; and wanted Mr. Dillon to define it to the people present, the representatives. Mr. Justice Moore. — W^as that what Mr. O’Brien said? The Solicitor- General . — This is what Mr. O’Gorman said to Mr. Dillon, my lord, not Mr. O’Brien. {To the witness .) — Was there any thing said about Mr. Doheny by any of the parties at the time when this discussion about the insurrection was taking place — did you hear Mr. Doheny ’s name mentioned ? — I did hear that he was organizing in the country. Do you recollect whether any thing was said about Waterford, at that time ? Mr. Fitzgerald . — Perhaps your lordships will permit me to suggest to the Solicitor-General, to ask whether Mr. O’Brien was present at the whole of this. The Solicitor- General. — Certainly. {To the witness.)— Mr. O’Brien present when Mr. O’Gorman pressed Mr. Dillon to be more explicit about the resolution, as to pas- sive resistance ? — He was there during my time. 250 SPECIAL COMMISSION, CO. TIPPERARY. Lord Chief Justice Doherty — Are we to understand that every thing you have been stating was said in the presence of Mr. O’Brien, and while he was there % — Yes, my lord. The Solicitor-General . — Are you able to state, to the best of your recollection, whether Mr. O’Gorman’s amendment was put to any vote, or any thing ? — It was put twice to the vote. It appeared that when they wanted to ascertain which had the majority, it could not be clearly ascertained, so each divided, and a regular count took place. The Lord Chief Justice . — You said O’Gorman’s amendment, you mean Dillon’s amendment. The Solicitor-General. — Y^es, my lord, Dillon’s. Your lordsliip is quite right. Lord Chief Justice Doherty . — It was put twice to the vote? — It was divided. The Solicitor-General . — That was an amendment to Brennan’s propo- sition ? The Lord Chief Justice . — What was the result of the division? — There was a very small majority, and the minority were greatly dissatisfied. The Solicitor-General . — Majority in favour of what? — In favour of Dillon’s amendment. Mr. Brennan in urging the resolution also said, that they were always waiting until American and French aid came. The Lord Chief Justice — At what time was this said? — When he was enforcing his resolution to resist the proclamation. What did he say? — He was enforcing this that I have just stated, that the people were well armed, and that they would not be in a better position than they were at present; that they would be dispirited, and their arms taken from them ; but, says he, “ you will halt between two opinions — you will halt till American and French aid comes, and till rifles are forged in heaven, and angels draw the trigger.” Then, as I understand, Brennan was not for waiting for any other assistance ? — He said they had the elements of strength in themselves. Mr. Justice Moore . — Was it after the amendment was carried that he made that observation ? — Before it, my lord. Mr. Darcy M‘Gee Mr. Whiteside . — Do you wish to go on by yourself? — I thought it was in continuation. The Solicitor-General. — Well, go on — I am waiting for his lordship to take it down ? — I was going to state that IVPGee said That is, Thomas Darcy M‘Gee ?— Thomas Darcy MGee. He said to the members of the council who were there : “You have been encouraging the people to arm and to organize : now is the time for you to desire them to resist. Let us cast lots, to see which it will fall on to-night to desire the people to resist the proclamation;” and he would be one of them. Lord Chief Justice Doherty . — That was to be stated at the Music Hall that evening? The Solicitor- General . — You are quite right, my lord; that is it. The Lord Chief Justice. — Mr. M‘Gee said, you have been encouraging the people to arm, and resist, and to organize? — Yes, my lord. The Solicitor-General . — He proposed to do it himself, you say, without: THE QUEEN u WILLIAM SMITH O’BRIEN. 251 drawing lots; or was it that you said, that they were to draw lots to state it to the people 1 — And he would be one of them to draw. Jfr. Fitzgerald . — To draw lots 1 — Just so. The Solicitor-General Where was that notice to be given to the people 1 — At the meeting which was to be held that evening at the Music Hall. Have you ever seen any members of the Curran Club with arms'? — Oh, yes. With arms ? — Of course. What kind of arms ? — Muskets. Have you ever seen any of the members of these clubs with any other kind of arms ? — Pikes. Do you know a man of the name of Lawrence Hanlon ? — Yes. Was he a member of any of those clubs *? — He was a member of the Red-Hand Club. The Lord Chief Justice . — What club do you say he was a member of? — The Red-Hand Club, The Solicitor-General. — Have you ever seen him making arms? — I saw him preparing arms, such as filing them, cleaning them, and preparing them for work. What kind of arms ? — Both muskets and pikes. Mr. Whiteside . — He saw Hanlon preparing the pikes. • The Solicitor- General. — Yes. [To the witness .) — What trade was he, do you know ? — He is what you would call a handy man — a carpenter, and general jobber, and work- man. He bought the materials, for instance, the barrel, the stock, and the lock, in various places. And put them all together ? — And put them all together. The Lord Chief Justice . — Were these for that particular club? — Not for one particular club. He would make for the clubbists for thirteen shillings and sixpence. The Solicitor-General — And put them together? — And put them together. Did he provide the materials? — He provided the materials — he should get something for his labour. Thirteen shillings and sixpence provided materials, at a reduced rate, from a party who gave them all those things at a reduced rate, that the people might be armed. The Lord Chief Justice . — Do you know, of your own knowledge, where these various parts of the gun were purchased ? — He told me Mr. Whiteside. — Well, I submit for the present, my lord, that what Hanlon told him is not evidence. The Lord Chief Justice . — You were not present when he bought them? — No, my lord. The Solicitor -General. — Well, now, do you remember attending any meeting at D’Olier-street on the 21st July? — On the 21st? Yes. — On Friday, the 21st July, last. Now Mr. O’Brien was not at that meeting? — He was not. Mr. Whiteside . — Where was the meeting ? The Solicitor- General At D’Olier-street. 252 SPECIAL COMMISSION, CO. TIPPERARY. {To the witness .) — Was it in the same room, in the same house 1 — The same room. The same body ? — The same body. Do you remember who was in the chair on that night ? — Mr. Dillon was voted to the chair. The Lord Chief Justice . — Was it by day or night? — By night, my lord — the evening. The Solicitor ’General . — Was the same course pursued as to the admis- sion of the representatives of the clubs into the room as before ? — The way we were admitted was this : there was a messenger at the door Mr. Whiteside . — I object to this. This is not in the presence of Mr. O’Brien. The Solicitor-General But, my lord, we would submit, that after the proof we have given of the proceedings this is evidence. The Lord Chief Justice . — Why as to the mode in which he was admitted, that does not signify, but the objection remains that you have no right to give in evidence against Mr. O’Brien, the proceedings of that meeting on the 21st. The Solicitor- General . — That is the question, my lord. We propose giving in evidence certain proceedings taken by the members of the council, in that room, on that evening, Mr. Dillon being in the chair. The Lord Chief Justice. — Now, Mr. Whiteside. Mr. Whiteside . — This meeting, my lord, now spoken of was not the result of any adjournment carried or made at any meeting where Mr. O’Brien was. The fact that a man attends one meeting, or may be liable for what other persons say at that meeting, fur- nishes no ground whatever, why he is to be visited with what may take place at a meeting where he is not. The very transaction sworn to by the witness as having taken place at the last meeting The Lord Chief Justice . — I can put an end to this question. {To the witness .) — Did you attend at that meeting of the 21st at D’Olier-street ? — Yes, my lord. Was that a meeting directly of the same body that met before — that Mr. O’Brien attende Ballingarry, in said county, summons- ’ ) server, who being duly sworn and ex- amined, saith, I was at Ballingarry, on Wednesday, the 28th of July last, when a large crowd was assembled going to meet William Smith O’Brien, to Mullinahone. We proceeded towards the church, and stopped at the house of James Norton, of Lower Ballingarry, in said county, and demanded his arms ; I then saw John Sexton, of Ballingarry, come out of the yard, with the aforesaid James Norton’s arms, and proceed along with us. I afterwards saw the aforesaid John Sexton with a gun in his hand, in Ballingarry. I saw the following persons armed, going to meet Mr. O’Brien, to Mullinahone, Edmund Egan, with a gun, James Butler, a gun, Martin Doherty, a pistol, John Linahane, a pike, Richard Mulloy, a pike, James Phelan, a pike, Patrick Cleary, a gun, Patrick O’Donnell, with a pike, James Kenny making a pike for one of Mr. O’Brien’s men. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 369 John Brien, a pike, Martin Kelly, a pike, Thomas Power, a gun, and Edmund M^her with a pistol, all of Ballingarry, aforesaid. I saw Edmund Corcoran with a gun, John Maher with a gun, James Croak with a gun, and playing a flute, all of Tynock, in said county, John Dunn, of Garrinacola, in said county, had a gun, Edmund Dunphy, of said place, had a gun. I w'as at my work, about one mile from the Widow M‘Cormack’s house, on Saturday, the 29th of July last, when I heard the police had gone through Ballingarry towards the Commons, where I heard Mr. O’Brien was. I then went in that direction, and on coming to the Widow MUormack’s house, I saw Mr. O’Brien, and Mat- thew Maher, of Boulin, who was armed with a gun, standing at the window, speaking to the police. Shots were fired immediately after. I saw Patrick Pollard, of Boulin, with a gun, resting on the gate, pointed at the house in which the police were. I saw Michael Lyons, of the Commons, coming from the house wounded, and James Dwyer, of Boulin, and Joseph Pollard, of Garranacole, who were also wounded. John Sex- ton, of Ballingarry, were there with a gun, Matthew Kelly, of said place, with a pike. John Cormack was in the yard, and said he came with a message from Mr. O’Brien. I saw on Wednesday, the 28th, aforesaid, when we met Mr. O’Brien on his way from Mullinahone, David Cun- ningham, in said county, and a person I heard was a schoolmaster, at Martin Fitzgerald’s, of Jessfield, drilling the people, and acting as leader. Taken, sworn, and acknowledged before us, at Ballingarry, this 7th day of August, 1848. Thomas Burke. W. Barker. A. Going. John Going. John Millet. This is the second, and is dated the 12th September. Counties of Dublin & Tipperary, I The further information of Tho- j- mas Burke, of Ballingarry, in said J county of Tipperary, summons-ser- ver, who being duly sworn and examined, saith, I have on the sixth instant seen, at the Richmond Bridewell, amongst several others, a per- son calling himself Terence Bellew McManus ; and I positively swear I saw the said M'Manus at Ballingarry, on Thursday the twenty-seventh day of July last, with a belt around his waist and a pistol in it, drilling the people. I also saw him at the Commons, on Saturday, the twenty-ninth day of July last, armed with a pistol; also, on the same day at Farinrory, breaking in the window of an out-house of Widow Cormack’s whilst the police were in her dwelling-house ; and before the fight began, as alluded to in my former informations. I have also seen, on the seventh instant, at Kilmainham Gaol, amongst several others, a person calling himself William Smith O’Brien, who is the person alluded to in my former information. Informant acknowledges himself bound to our Sovereign Lady the Queen in the sum of twenty pounds to prosecute this infor- mation at the next Commission to be held at Clonmel, in and for said county. Thomas Burke. Taken, sworn, and acknowledged before me this twelfth day of September, one thousand eight hundred and forty eight. H. J. Brownrigg, Magistrate for said Counties. 2 B 370 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Fitzgerald. — Now, you made both these informations when you were in the hands of the police 1 — Yes, I did. Did you say any thing in these informations about the burning of the house? — No, I did not; the question was not put to me. Why did you make the second information? — It was demanded of me. How did they know you had more to tell about McManus ? — I did not say it. They told you, perhaps ? — No, they did not. Did you say any thing about the drilling by Mr. O’Brien ? — No, I think not. Any thing about a man being shot at your side ? — I told them that the man was shot ; whether they took it down or not I do not know — I told them all these questions. Did you swear, just now, that you did not know David Cunningham ? — No, I swore that I heard a man of the name of David Cunningham; I do not know whether I would know him or not. Was that what you swore in your informations? — I cannot tell whether my informations were taken down right; that there was a man called David Cunningham ; I believe it was to Mr. Going I told the other day the same thing when he read it for me. Was it read for you the other day ? — No; he only told me about David Cunningham. Who told you ? — Mr. Going spoke to me about David Cunningham. What Mr. Going is that ? — Mr. Going, of Ballyphilip. Is he a magistrate ? — He is. Where did he see you ? — In the court-house here; he was asking me did I know David Cunningham, I told him that was wrong in my infor- mation. I do not want to swear any thing but what is right on my oath, and must tell the truth. Was it Mr. Going who took you to Dublin ? — I was taken by a police- man to Dublin. Was Mr. Going there? — He was in Dublin. lie-examined hy Mr. Sausse. Before you swore your second information were you brought to identify any person ? — I was. Thomas Sullivan, sworn — examined hy Mr. Lynch. Where do you live ? — At the Nine-mile House. What is your employment ? — Car driver. Do you remember Thursday, at the end of July? — Yes. Did you take your car anywhere that night ? — Yes, I took it to Kille- naule. Where did you take it to from Nine-mile House ? — To a place called Cappogue. How far is Cappogue from Mullinahone ? — It is scarcely a mile. Going from Cappogue to Killenaule, did you pass through Mullina- hone ? — Yes. To whose house at Cappogue did you bring the car ? — To Pat Ryan’s. Did you see any gentlemen at Mr. Ryan’s, at Cappogue, that night ? — I did ; five. Did you see Mr. O’Brien there ? — I did. Did Mr. O’Brien get on your car that night ? — He did. THE QUEEN WILLIAM SMITH O’BRIEN. 371 Did any other gentleman get on your car with Mr. O’Brien 1 — One did, of the name of O’Donohoe, and another gentleman of the name of Dillon. I heard them call him Dillon. At what o’clock was it that Mr. O’Brien and the others so got upon your car at Cappogue ? — Between ten and eleven. At night ? — Yes. Where did you drive Mr. O’Brien and those other gentlemen to ? — To Killenaule. Lord Chief Justice Doherty . — Where do you say you drove them to 1 — To Killenaule. Mr. Lynch . — About what time was it when you reached Killenaule 1 ‘ — About half-past one ; I believe it was two. In the morning? — Yes. Where did you drive them to in Killenaule ? — To Mr. Walsh’s, the hotel. Did you see any arms with these gentlemen ? — I saw arms with Mr. O’Brien, and I do not know which of the other gentlemen had arms; there were two who had arms. There were two that had arms ? — Yes. What arms did you see with those two ? — Guns. After you left Mr. O’Brien and the others at Mr. Walsh’s, at Kille- naule, where did you go ? — I came home. To the Nine-mile House ? — Yes. Did you drive your car out again that day ? — I did that morning. How soon after it had so got back ? — I was only at home an hour or so. With whom did you then set out ? — With Mr. McManus, Counsellor Doheny, and Mr. Mahony. From Nine-mile House — Yes. In what direction did you drive those gentlemen to Nine-mile House ? — To Killenaule they were going. Did you go on to Killenaule ? — I went within less than a mile of it. What stopped you within a mile of it ? — They met some man coming from Killenaule, and he told them that Mr. Smith O’Brien Mr. Whiteside . — I object to what the man told him. Mr. Lynch . — Did they then leave your car within a mile of Kille- naule ? — They would turn, they said. I am not asking what they said ; but did they get off the car within a mile of Killenaule 1 — They did. The Lord Chief Justice . — Was that after they so met the man coming from Killenaule ? — It was. » Mr. Lynch . — When they so got off the car, in what direction did they go ? — Towards Ballingarry. How ? Was it along the road, or across the fields, that they went ? — They went across the fields, and they told me to go round the road, and meet them in Ballingarry with the car. Did you afterwards go to Ballingarry 1 — I did. Did you see those three men in Ballingarry ? — I did. What hour was it when you got to Ballingarry ? — About two o’clock. Did those persons ask you to drive them anywhere else from Ballin- garry ? — They did not ; they went on from Ballingarry on another car, because my horse was tired. 2 B 2 372 SPECIAL COMMISSION, CO. TIPPERARY. In what direction did they go out from Ballingarry? — They said they were going towards Mr. Going’s, of Ballyphilip. Do you know the Commons? Is that in the direction of Bally- philip? — No ; Lisnamrock is in that direction. The Lord Chief Justice . — After they got to Ballingarry, you parted with them, and they got another car ? — They did, my lord. Mr. Lynch . — Was that immediately after you came in, that they took another car ? — It was about two hours after. ' When you went on the first night to Mr. Ryan’s, of Cappogue, did you see any persons outside the liouse ? — Oh, yes, I did. About what number? — To the best of my opinion, there was a quantity in it. Did you see any of those people armed ? — Some of them had pikes, and a few of them had guns. Is that Mr. O’Brien ; look round and see ? — {After loohing round ) — It is. Cross-examined hy Air. Whiteside. So, my boy, you say you drove some gentleman one night to Kille- naule ; what night was that ? — Thursday. That was Mr. O’Brien ? — Yes. And you left him at the hotel? — Yes. Was it after you left him there that you heard he had arms ? — Before. Who told you that he had arms ? — Ted Rice and Timothy Carroll. Y^ou have been telling us that you saw these arms. Do you believe Tim Carroll ? — He told me he had it in his hand. Tim Carroll told you? — Yes ; he thought he had it in his hand. And that is the knowledge you have of Mr. Smith O’Brien. You saw him when you drove him to the hotel? — Yos. A Juror {Mr. Lloyd ). — Did you see any arms with him yourself? — I did not see them in his hand. Did you see them about him ? — They were in the car. Mr. Whiteside . — There were arms in the car? — Yes. Whereabouts ? — Under the cushion. He did not carry them in his hand ? — No. Who took them out of the car? — Some of the servants in Walsh’s hotel brought them out. Did Tim Carroll tell you that? — Tim Carroll did not tell me at all. Who took them out? — When the gentlemen went into the hotel, Walsh’s servants came out, and took in the arms. They stopped the car, and then the servants brought in the arms ? — Yes. Will you swear that you saw any arms with your own eyes ; or do you believe Tim Carroll ? — I saw arms ; two guns. One of them kept the arms in his hand all along. Which gentleman was that? — I do not know which. What hour of the night was that ? — It was about twelve, or half- past twelve o’clock. And you went home then to Cappogue? — To Nine-mile House. And the next morning, as I understand you, you drove three gentle- men towards Ballingarry ? — Towards Killenaule- And they told you they were going to Mr. Going’s, of Ballyphilip ? — THE QUEEN WILLIAM SMITH O’BRIEN. 373 They met the messenger; they told me when I came to Ballingarry afterwards, to have the horse rested again they came back. To go where — To go home. That they would go home with you 1 — Yes. I thought you said they told you that they would go to Ballyphilip ? — Yes. Did they go towards Ballyphilip 1 — They went out towards Bally- philip, but it is not there they went. Did you wait for them I — Yes. Have you been in the custody of the police ever since ? — Yes, I have. Who kept you ? — My father, who keeps the car. How long have you lived with the police ? — About three weeks. Did they give you any paper to read over while you were there ? — No. Do you know what an information is ? — No. Did they not read a paper to you, and talk to you about this trial ; did they not tell you all about it before you came up here ? — They did not tell me any thing. Nothing at all ? — No. Except to be a good boy. I hope they used you welH The Lord Chief Justice . — Did they come back to Ballingarry that night ?— They did. Before you returned? — Yes. Mr. Thomas Walsh, sworn — examined hy the Attorney -General. Where do you live ? — At Killenaule. What business do you follow at Killenaule ? — I am in more than one business. I keep an hotel. You keep an hotel at Killenaule? — I do. Do you recollect the last Thursday in July some gentlemen having come to your house very late? — I recollect the gentlemen coming; I was not up. Next morning did you see them ? — In the morning, I did not. Did you see them next day ? — I saw some of them. These gentlemen had not been in your house when you went to bed the night before ? — No. About what hour did you go to bed ? — About ten o’clock. They were not there at that hour ? — They were not. Do you recollect who the gentlemen were, or any of them, that you saw the next day ? — I do not. Had you ever seen any of them before? — Never, to my knowledge. Do you recollect, some four or five days before, a gentleman stopping at your house for a short time in passing through Killenaule ? — Yes. Do you recollect whether that gentleman, who called at your house some four or five days before, was one of the same persons who came that night ? — I do not know whether he came or not. Did you ever see Mr. Smith O’Brien ? — I was told he was Mr. Smith O’Brien. Will you look about and see whether you see that gentleman in the dock? {The witness looked at each side of the court.) Do you see that gentleman opposite to you? — Yes, I do. Look in the dock. Do you know where the dock is? — I do. {The 374 SPECIAL COMMISSION, CO. TIPPERARY. witness turned round and looked towards the dock for some time.) Do you see that gentleman looking at you 1 — Yes. Look at that gentleman in the dock there. Now tell me did you ever see that gentleman before ? — I could not tell whether I saw him ; I have not a very perfect recollection of things of that kind. Are you near-sighted 1 — No. Have you a good sight ? — Not a good sight. Do you know whether you saw that gentleman in your house on Thursday or Friday in the month of July last ? — I may have seen him; I was entirely engaged in my shop; I was not engaged in the hotel department at all. When I heard the news of a barricade, I shut down my place teetotally, and went out of the town. What day was the barricade ? — On Friday. Do you know the little boy who was examined here just now — the little driver from the Nine-mile House ? — I do not. You do not recollect the circumstance of a car having come to your house late at night ? — I heard of a car coming, and that is all I know about it; I was in bed at the time, and did not get up. On the morning of the barricades did you see any strange gentlemen about your house ? — I did. How many gentlemen ? — I do not know how many. M^ere there more than one ? — ^-Tliere might be. How many do you recollect having seen ? — There were so many going in and out of the house that I could not see them ; I was entirely engaged that morning in my shop. And of course you took very good care to be engaged in the shop all day ? Mr. Whiteside . — I submit, my lord, that this is not the mode to examine a witness on the direct. You may not scold him, or do what you please with him. The Attorney- General . — I do not want to scold him. Mr. Whiteside. — Oh! you may go on just as you please. The Attorney- General . — I think I may. {To the witness.) — Now, Mr. Walsh, I want to ask, do you know how many strange gentlemen were in your house on that Friday morn- ing ? — I do not know how many, nor I never knew almost how many. Was the bill paid that night ? — It was. Who paid it ? — T don’t know who paid it. Who was it paid to ? — To me. You don’t know the gentleman who paid you the bill? — I do not. Nor had the curiosity to ask his name ? — Yes, I heard his name. Mr. Whiteside . — His hearing it from anybody is not evidence here. The Attorney-General . — What amount of bill did you receive from this gentleman next morning ? — As well as I can recollect it was thirteen shillings and something. Did you see the gentleman who paid that bill ? — I did. And you never saw him before ? — No. Would you know him again ? — I do not think I should. There are THE QUEEN t;. WILLIAM SMITH O’BRIEN. 375 many gentlemen call at my house whom I would not know again. I will give you a case in point. There was a gentleman (Mr. Purday) who was with me a month ago, and he paid me his bill; he lay at my house at night; I settled with him about the car, and I saw him afterwards in the hall of this court, and I asked who he was, and I was told he was Mr. Purday. You had the curiosity to ask his name ? — Because I wished to see him. Did you recollect seeing him before ? — I recollected his face, but I did not know him; I do not recollect any parties who come to me. Of course you do not ; you recollected, however, that you had seen Mr. Purday before ? — That is not of course at all. But when you saw Mr. Purday in the court, you recollected that you had seen him at your house ? — Yes. You recollected having seen Mr. Purday at your house when you saw him abroad in the hall 1 — I did not know him. But you did not then know his name ? — I did not. You knew the face, that’s all 1 — Yes. And that is your case in point ? — But I do not recollect every face that comes. Of course you do not. — It is not a matter of course at alt. Well, about what time did those gentlemen leave who came to your house at night ; what time did they leave your house next day ? — I do not know the hour ; I do not recollect the hour. Did you see them leave your house ? — I don’t know whether I did or not. I told you before that I shut the place and went away out of the town. And did you leave those people in the town? — I suppose so; I am not sure. Was it on a car of yours that they left the town next day ? — I believe it was. You did not then see them leave the town ? — I do not recollect. Do you recollect being in the town after they left it ? — I was there all the day after. Do you recollect after those parties, whoever they were, had left your house — do you remember another party of gentlemen having come to your house ? — No, there was a car called at the door. A car with two gentlemen called ? — One or two gentlemen, I do not know which. Did you know the gentleman who was on it? — No. Did you remark what sort of hat or cap this gentleman upon the second car wore ? — I did. What was it ? — A straw or chip hat. Do you know who that gentleman was ? — No, I never saw him before. Do you know upon what day of the week that was ? — I think upon a Friday. Do you know who that gentleman was ? — I do not, I never saw him before. May I ask, have you a driver in your house of the name of William Cashen ? — I have. Did he drive a car of yours, with any gentlemen upon it, on that Friday ? — He did. Was that the driver who took away the gentlemen that came to your house the night before ? — I believe it was. 376 SPECIAL COMMISSION, CO. TIPPERARY. Do you know about what hour your driver, William Cashen, left Kil- lenaule with those gentlemen ? — I took no note of the hour. You do not know whether it was nightfall or not? — I know it was not nightfall. It was after breakfast ? — I know it was after breakfast. You do not know whether it was before or after dinner? — I had not dined at the time. About what hour was it that Cashen, your driver, left your place with those gentlemen ? — I cannot tell you the hour. Could you go within an hour or two of it ? — ^I suppose it might be eleven or twelve ^’clock. Was that before or after the barricades that you have been speaking of were erected ? — I don’t know any thing at all about the barricades ; I have not seen them. I went away when the army came into the town, talking about the barricades; I shut up my place. Was it before or after this that the (Laver had gone away ? — I believe it was after it. May I ask you, this party which you know nothing about, whether you saw any arms with them ? — No, I did not see any arms. Did you see any arms in your own house ? — I did. Were they yours ? — No. You do not know whether they belonged to the party who came on your car at night? — How could I tell you that? What arms were they that you saw ? — I saw a small carbine. What else ? — I think I saw a gun ; I rather think I did. Did you see a gun also ? — It was a gun, I think ; I call it a carbine ; I did not mind it ; I had something else to mind on that day. I know you had. — No, you do not ; but I know myself. You say you do not know whether it was the party that came on the car late at night that brought that carbine to your house ? — What car ? That came on Thursday night when you were in bed ? — If I was in bed I could not tell. Were there any strangers in your house that night, except the party who came after you were in bed ? — There might. Not that you knew of? — Not to my own knowledge. May I ask you, while these people were in your house, did you see any armed people in the street? — I saw a person armed at the hall-door. Do you know who that person was ? — I do. What was his name ? — His name was Orchard. Archer, was it ? — I did not call him Archer ; it was Orchard. May I ask, what was this armed man doing at your door ? — I do not know ; I saw him doing nothing in the worM. What kind of arms had he ? — A small piece. A little trifling piece, I suppose ? — Call it what you like ; you appear to know more about it than I do. May I ask you what was this Orchard doing opposite your door ? — He was walking about with this in his hand. How long was he walking about your door with this gun in his hand ? — I cannot tell. Was it you that placed him there as a guard ? — No, I did not. Did you see more than one armed man at the door ? — I did ; one more. One more ? — Yes. THE QUEEN y. WILLIAM SMITH O’BRIEN. 377 May I ask you who that other armed man was ; was he a stranger to you ? — Yes. Was he there at the same time that Orchard was ? — Yes, I believe he was. Were they marching up and down, or walking, opposite the door ; or did they stand still, each on one side of the door? — I don’t know whether they walked or not. Hid you not tell me just now that you saw them? — It was not my business to be looking on ; I told you before I was engaged in my shop. I know you were. — You do not know it; I know it myself. When you were engaged in your shop, and saw these two men, did you see them walking up and down, or standing still, at your door ? — When I saw them, I thought it was standing they were. You thought so? — I thought so. Ho you think so still ? — I think so still. Was that other gentleman one of the gentlemen that came to your house the night before ? — I do not know ; I did not see them. About what hour on Friday was it you saw these two armed men ? — I cannot tell exactly ; it was after breakfast. It was after breakfast, and before the barricades ? — It is likely that it was. Was it before you heard of the barricades ? — I heard very little about the barricades, and when I heard of them I went away. You saw those armed men before you heard talk of the barricades ? — Yes. Ho you know Mr. Hoheny, the barrister ; the gentleman who lived at Cashel ? — I saw him at my house once. When ? — A long time ago. How long since ? — About two years ago. Hid you see him at your house during this week of the month of July? — No, I did not. Cross-examined hy Mr. Whiteside. Three gentlemen came to your house one night, slept there, and paid you the bill next morning ? — Yes. That has occurred frequently? — Yes. They did not commit any violence ? — No. The Lord Chief Justice — Hid these gentlemen go away on a car? — My hearing is not very good, my lord. You said these gentlemen went away on a car? — Yes. Mr. Whiteside. — They went away on a car the next morning? — Yes. And I hope quietly? — Very quietly. And behaved themselves quietly while in your hotel? — Very quietly, and paid me their bill. Nothing rebellious in their conduct? — I saw nothing of it. Your property was not injured ? — No. Nor any property in the town ? — Not the smallest. I did not hear of the least property in the world being injured. Not to the value of a farthing? — I did not hear of any property at all injured. Dutton Matthew, sworn — examined hy the Solicitor -General. Were you ever in the police ? — I was. 378 SPECIAL COMMISSION, CO. TIPPERARY. But you have retired from it for some time ? — I was discharged for ill health. Where do you live '? — At Killenaule. Did you live there last July ? — I did. Do you remember the day — the Friday — that there were barricades thrown up at Killenaule? — I do. Do you know Mr. Smith O'Brien ? — I do. Did you see him there on that day ? — I saw that gentleman there {identifying the prisoner). About what hour of that day did you see Mr. O’Brien in the village, as near as you can recollect ? — I declare I do not know ; I believe about one or two o’clock. It was early in the day I know, at any rate. Were there any other gentlemen with him ? — There were; I saw four gentlemen with him. Did you hear their names ? — I did. Mr. Whiteside . — Now do not go any further. The Solicitor- General . — 1 am not going to ask their names. (Yb the witness .) — Was one of those gentlemen who were with him dressed in any particular way? — One of the gentlemen wore a plaid scarf like across his shoulders ; another wore a patent belt like, with a pistol stuck in the belt. The Lord Chief Justice . — What did you say about the second? The Solicitor-General . — You said something about a patent belt ? — Yes, a patent belt like, and a pistol stuck between his belt and his body. Did you see that person on horseback that day ? — I did. Did you observe, when you saw Mr. O’Brien, whether he had any arms ? — He had a pistol in his right hand. At any time on that day did you see any of those gentlemen with any guns ? — I saw one gentleman with a rifle on his shoulder. One of those gentlemen you were speaking of ? — One of the four that were along with Mr. O’Brien upon that day. Now, while those gentlemen were in Killenaule on that day, after you had seen them, did you see any persons come into Killenaule on that day? — Yes. State upon what occasion it was where you saw these gentlemen, near what place, what part of the town ? — I saw them at the hotel door first. That is Walsh’s ? — Yes, and I saw them getting down to the barricade after that. Lord Chief Justice Doherty . — What do you mean by ‘^getting down?” — The barricade was at the lower part of the street, and the hotel was at the top, and they were getting down. Going down, in short, to the barricade ? — Yes, my lord. The Solicitor-General . — At what part of the town was the barricade ? — At a place called the Pike. Where there has been a turnpike ? — I have heard there has been ; not to my knowledge. What road does that lead from ? — It leads from this town, Clonmel. Fethard is the next town to it. Now, when you first observed these gentlemen at Walsh’s hotel door, did yon observe any persons there also, near the hotel, or about it ? — I did, several. THE QUEEN WILLIAM SMITH O’BRIEN. 379 Were they armed, any of them ? — I saw one man with a gun, and I saw another with a pike. At Walsh’s hotel door ? — Yes. Now, before you saw those gentlemen moving down towards where the barricade was, did you observe any other persons coming into the town, or did you see any number of persons ? — I saw several persons coming into the town after the chapel bell was rung. Was that before or after they moved from Malsh’s door? — That was immediately before. How soon after the chapel bell began to ring did you observe the persons coming into the town ? — I saw several who were working con- veniently to the town. Were they armed? — They were armed with pitchforks and scythes ; some with slams and guns. Did you observe any pikes ? — I saw but four pikes during the whole transaction. From what direction were the people coming in ? — They came in by two or three different roads. They came from towards the Colliery ; they came from towards New Birmingham, and from a road they call the Cashel Road. Those three places lead to where the barricade was. Did you observe any of the townspeople taking a part in it ? — I did. Mr, Whiteside. — Taking a part in what ? The Solicitor-General. — I will tell you by-and-by. {To the witness .) — Did you observe the townspeople going in any direction, or doing any thing? — I saw them walking down towards where the barricade was erected. I saw them doing nothing more than that. Had those persons any thing in their hands ? — They had. What description of things had they in their hands ? — I saw some with pikes, some with scythes, some with slams, and other weapons on the top of poles. How many of the townspeople should you say you saw collected ? — There were a great many. Did you go down towards the barricade yourself? — No. Did you go near it ? — I did ; I live quite convenient to it. Did you see it when it was making? — Yes. Describe it, how it was made, or what was the height of it? — I should say between four and five feet. There were several cars. About what time was this ? — It was early in the day, just at the very time the gentlemen came into town. I do not think it was more than eleven o’clock when I saw two of the officers pass in a gig ; and imme- diately after the officers passed in the gig, I saw the barricade thrown up, to stop the remainder of the men. You saw two officers pass in a gig? — Yes. From Fethard? — Yes. And they passed through the town without any molestation ? — They passed through the town without any stop at all in the slightest degree. After they passed, then the barricade was thrown up ? — Then I saw a rush made with cars of every description — jaunting cars and other cars — cars with turf, with pieces of timber and turf loads. Are you able to say, at the time of its construction, where Mr. 380 SPECIAL COMMISSION, CO. TIPPERARY. O’Brien and liis friends were standing ? — I could not state their position perfectly ; at that time I could not see any of them. Was it before that they went towards the Pike? — It was. After the barricade was thrown up, did you direct your attention towards it, to Hourihan and William Parsons, privates, j 8th Hussars, now quartered at Ballin- garry, who being severally sworn and examined before me, George Eitzmaurice, Esq., R.M. — Thomas Hourihan for himself saith, that, I accompanied the troop D of 8th Hussars, to which I belong, from Fethard to Thurles on the 28th of July last; and on our arrival at the town of Killenaule, I saw a barricade thrown across the street going into that town, which appeared to be defended by a large mob, several of whom were armed. I saw in the barrack-yard of Ballingarry on yesterday, the 2nd instant, one man among many others who called himself James Orchard, and he, I positively swear, was armed with a gun on that occasion. I also saw in the barrack-yard, at the same time and place, a man calling himself Denis Tyne, armed with a pike, defending the said barricade, and obstructing our march. William Parsons saith, I accompanied the foregoing witness on the occasion in question, and saw the two persons named armed as before described. Informants acknowledge them- selves indebted to our Sovermgn Lady the Queen in the sum of fifty pounds each, to prosecute their informations when called upon. Mr. Whiteside {to the witness ). — ' Taken, sworn, and acknowledged before me at Ballingarry, this 3rd day of August, 1848. Geo. Eitzmaurice, R.M. is your information ? — Yes. 384 SPECIAL COMMISSION, CO. TIPPERARY. You said notiling about “ killing tbe bloody soldiers,” or “ blowing out your brains ?” — No. And you now swear they said they would kill all the bloody soldiers? — Yes. And you knew that at the time you swore your information ? — Yes. And a man told you to stop, or he would blow your brains out? — Yes. You may go down ; you are a credit to the army. — What did you say ? Mr. Whiteside . — You are a credit to the army. The Solicitor- General . — He is a very great credit to tlie army. I think that is a very unjustifiable observation for counsel to make. Mr. Whiteside . — Is your captain here ? — I think he is. The captain who had the conversation at the barricade ? — Yes. The Solicitor- General. — Yes, he is going to be called; he was merely brought to prove the identity. Lord Chief Justice Doherty . — These observations ought not to be made, Mr. Whiteside ; they are quite irregular. The Lord Chief Justice . — I hope you see the impropriety of that observation. Mr. Whiteside . — When a man undertakes to swear an infor- mation, he ought to swear the whole truth. I certainly have seen judges observe on the point blank contradiction between a man’s information and his evidence. Lord Chief Justice Doherty . — There is no contradiction — nothing approaching a contradiction. Thomas Ilourihan, sworn — examined hy Mr. Sausse. You are in the 8th Hussars? — Yes. Do you remember being on the march to Killenaule on the 28th of July last ? — Yes. Were you in company with Parsons? — Yes. Did you and he form the advanced guard ? — No ; I was in front of the troop ; he was in the advanced guard. Did you see any thing to impede your progress as you were going to the town of Killenaule ? — Two barricades to obstruct our line of march; one about twenty yards distant from the other. Did you see any persons about these barricades ? — Two or three hundred persons, all armed. What sort of weapons had they ? — They had guns, pikes, pitchforks, slams, stones, and all sorts of weapons. Did you see any man since whom you saw there on that day? — Yes, I saw one man of the name of Orchard. Did you hear any of the men speak to Parsons ? — No, I could not hear with the noise. How far were you behind Parsons? — We all came up together and halted. Was he not in the advanced guard ? — Yes, the troop came up when he was stopped as the advanced guard. Cross-examined hy Mr. Fitzgerald. How long were you before you were let through the barricade ? — I should say about the space of ten minutes. THE QUEEN v. WILLIAM SMITH O’BRIEN. 380 Mr. Whiteside. — That is all he knows. The Lord Chief Justice {to the witness). — As I understand you, Parsons was alone in advance? — No; there are generally two men form the advance. Was there anybody along with him forming the advanced guard ? — • A man of the name of Hogan. And when they were stopped, you, along with the party, came up ? Yes. You were about five hundred yards in the rere of Parsons? — Yes, at the time they halted we came up to them ; the troop then arrived. Capt. Charles Joseph Longmore, sworn — examined hy Mr. Lynch. Were you in command of the troop of Hussars who were marching through Killenaule ? — I was. Hid you see any barricade erected there ? — I did. What did you do. Captain Longmore, when you saw those barricades ? — I halted the troop and rode up to the barricades, and explained to the crowd that were assembled, that unless the barricades were immediately removed, I should feel it my duty to fire. Hid any person from the crowd address you then ? — Yes. What sort of person ? — A rather tall man, respectably dressed in black, and I think he was of rather a sallow complexion. Had he any arms ? — No, no arms. Where was he ? — He came close to the barricade, in front of the barri- cade; he came out from the crowd by the barricades. What did that gentleman say to you ? — He said that he understood the troop was merely passing through the town, and said the people were determined to resist the arrest of Mr. Smith O’Brien, and asked if I had a warrant for his arrest, and I said, no; he said Mr. Smith O’Brien was then in the town. When you said no, was any thing further said ? — Nothing further, except that the barricades were ordered to be removed. lie ordered the barricades to be removed? — Yes, there was a movement. Hid you hear that man say any thing; you say the barricades were ordered to be removed? — Yes, by his directions, certainly. Were they then removed? — Yes. Hid the troop pass through ? — The troop passed through. And, I believe, proceeded on its march ? — Proceeded onwards with its- march. Cross-examined hy Mr. Whiteside. Mr. O’Brien was not at the barricades ? — No, that is not the person. And was the elpression you said you used, you would proceed to fire or proceed to force ? — I think “fire” was the word I used ; I am not quite certain. The gentleman who addressed you was unarmed? — Yes. And he put the question to you, whether you had a warrant to arrest Mr. O’Brien? — Yes. You said no? — Yes. And then the barricades were removed ? — Yes. No discourtesy was shown to you personally ? — None whatever. I 2 c 386 SPECIAL COMMISSION, CO. TIPPERARY. should mention that this was previous to the Lord Lieutenant’s letter- authorizing armed parties to act alone, and previous to the proclamation for the arrest of several persons who were guilty of high treason. They asked you if you had a warrant for the arrest of Mr. Smith O’Brien ? — Y^es. Y’'ou heard the people say that they would resist the arrest of Mr. Smith O’Brien 1 — I did not hear them say so ; but he said so to me — that they were determined to resist the arrest of Mr. Smith O’Brien. William Cashen, sworn — examined hy the Attorney-General. Do you know Mr. AValsh, the hotel keeper of Killenaule ? — I do, quite well ; so I ought. You are in his employment ? — Yes. In what capacity are you in his einplo 3 Tnent h — Driving. That is, driving his ears? — Yes, and taking care of his place. Do you recollect the Friday that the barricades were erected in Killenaule ? — Yes, I do. Do you recollect driving any gentlemen on a car from your master’s house on that day ? — I did. How many gentlemen were on the car ? — I think there were three. Do you recollect whether any of those gentlemen had any arms; were there any arms on the car ? — I think there was one gun. Did you see any pistols ? — No, I did not. About what time did you leave your master’s at Killenaule that day, with those three gentlemen ? — Exactly, I do not know. Was it long after the troop passed by, and the barricades were removed ? — It was some time after. About how soon after ? — I believe it must have been about a couple of hours after ; I cannot exactly know the time. What road or direction did you take those three gentlemen ? — By the Found. How far did you go with them ? — I went up to the Common with them, and left them there. Do you recollect those gentlemen getting off the car for a while, and leaving you ? — I do ; they got off the car at the bottom of the hill, and walked up the road. Just describe where they got off the car, and what the name of the hill is ? — Beyond the Found. Is there a public house there ? — There is. Has it a name ? — No, above the Found. Where did they go ? — They went up a place called Muckadeeve. Did you follow up with the car ? — I went up the road till they met me at a place called Ballystick Cross. You went from the bottom of the hill up to Ballystick Cross ? — Yes. It is sometimes called Kirwick’s Cross, I believe ? — Yes. Were you at Kirwick’s Cross long before these gentlemen returned to ' you ? — No, I was a little while there before them ; they came up after me. Were they a little before you ? — No, a short time after me. In what direction were they coming at the time ? — The same road I came myself. Did they follow the car all the way ? — They did, when they came out of the fields. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 387 When they went off the road into the fields where did they go to ? — They went the road there that is called Muckadeeve. Did they remain long there ? — No, not long. And after remaining there they went to the Cross, where you were with the car ? — Yes. Now, while you were there at the Cross, did any other cars come to the Cross from any other direction ? — Not at that time. I was at the house lighting my pipe. How far is that from the Cross ? — Only a few perches. Did the gentlemen get on your car when they returned to the Cross 1 — Yes. Where did you bring them to then ? — Towards Dacres, and down by Coalbrook. Towards the Commons ? — Yes. Before you went towards the Commons did any other cars come up in any other direction, and join your party ? — I think they did. Try and recollect and be sure ; how many cars came up ? — There were two cars overtook us. Was this before you left Kirwick’s Cross ? — No, after I left it. In what direction did these two cars come ? — They came the Bally- philip road. Then did the three cars go on ? — Yes. How many gentlemen were on those two strange cars ? — I don’t know, because I did not look at them. There was no one on them at all, perhaps ? — Of course there was. Was there one on each car ? — Of course there was. Were there two on each car ? — Not that I recollect. Where then did the three cars go to ? — Towards the Commons. Towards the Commons of Ballingarry ? — Yes. Did they all travel in company ? — They did, one after the other. Now, where did you part with those gentlemen ; where did you set them down ? — At the Commons. At what house on the Commons ? — I don’t rightly know the name of the house, but I know the house right well. Do you know the man Sullivan ? — Yes. Do you know the Widow Lacken'? — Yes, that is the name; that is where they stopped on the road, at her house. Now, do you know where those gentlemen whom you brought that day to your master’s house were that night? — No. Was it out of the master’s house they came on your car — I mean the Friday that you brought them from your master’s door to the Widow Lacken’s — was it out of your master’s house they brought any travelling things they had ? — No. Or the gun ? — No. Where did the man come from who had the gun ? — Off a street oppo- site my master’s house. The people did not come out of your master’s? Were those gentlemen in your master’s house that morning ? — Of course they were. Would you know any of those gentlemen again ? — I don’t say I would; I never made my remarks to know them at all. You never heard of Mr. Smith O’Brien? — I have heard talk of the name. Smith O’Brien. J ust turn about and look at that gentleman leaning on the dock ; did you ever see him before? — Not to my knowledge. 2 c 2 388 SPECIAL COMMISSION, CO. TIPPEKARY. You never saw him before ? — {The witness turned round and looTced at the gaoler in the dock with the 'prisoner,) Not to my knowledge. The Attorney-General . — That is not Mr. Smith O’Brien at all. Mr. Whiteside . — I object to this mode of examination. That is not Mr. Smith O’Brien I” Is that the usual mode of examining a witness in a criminal case ? It is most extraordinary, and alto- gether without precedent. The Attorney-General {to the witness ). — You never saw that gentleman you drove before? — Not that I recollect. At all events it was from your master’s house you drove him ? — Yes. Where did you remain that Friday night ? — In the house' on the side of the road; I remained in a cabin on the side of the road and gave my horse hay. What road ? — At the Cross of the Commons. The Lord Chief Justice . — You mean that Friday night? — Yes. The Attorney-General . — You slept there that Friday night? — I did; I never went out of the door that same night. Now, the next morning, that is on Saturday morning, did you hear any noise, or see any people ? — To be sure I heard a noise, but I never wanted to look at any one good or bad. Did you see the same gentleman on Saturday that you drove and left at the Widow Lacken’s on that Friday? — No, I never left my horse on Saturday morning. On Saturday morning did you see any gentleman at all or people going towards the Widow McCormack’s house ? — No. I believe it is only a mile from the Cross of the Commons to the Widow McCormack’s house ? — Yes. Did you go home ? — I went home on Saturday evening. When were you paid your fare for the car — was it Friday night or Saturday ? — It was on Saturday. Was it one of the gentlemen who went with you on the car who paid you the fare ? — It was. What time did he pay the fare ? — He paid me on Saturday. What time ? — Saturday evening. Did you bring any of the same party back from the Commons on Saturday evening ? — Where back ? Anywhere; did you bring any people? What time did you go with your car from the Commons ? — I left about eleven or twelve o’clock. On Saturday ? — Yes. In the morning ? — Yes. About one o’clock ? — Yes. Did you carry any passengers back? — Yes, there were three went back. Where did they go ? — Towards Mullinahone. You drove them from the Commons to Mullinahone ? — Yes. Now, in the interval, I mean before your return, did you hear any shots fired on that Saturday ? — I did not. Before you left the Commons — the village ? — I did before I left the village. From what direction were these shots fired ? — Up in that direction ; by Widow McCormack’s house. THE QUEEN v. WILLIAM SMITH O’BRIEN. 389 Do you know wko those gentlemen were you brought back to Mullina- hone ? — No. Were they the same gentlemen, or any of them, that you had driven the day before h — I do not think they were. Do you think they were different people? — Yes. To whose place in Mullinahone did you bring them ? — They did not go to Mullinahone. Where did you part with them ? — I parted with them at the Nine- mile House. Was it near Cappogue? — No. Was it beyond Nine-mile House? — Yes. Near Carrick? — Yes, about half a mile or a quarter below the gate. Cross-examined hy Mr. Fitzgerald. How far is the Widow McCormack’s house from Ballingarry ? — About a mile and a half. You cannot see one from the other? — No, certainly not. The Solicitor- General . — There are the Commons of Balhngarry, and Balhngarry itself ; you had better ask which. Mr. Fitzgerald . — How far is it from the Commons where you stopped that night ? Do you know how far the Widow McCormack’s house is from the Commons ? — I believe it is about three miles; I don’t exactly know. Mrs. Ellen Lachen, sworn — examined hy the Solicitor-General. Do you live in the village of the Commons ? — Yes. ■ Do you keep a shop there ? — Yes, I do. Do you remember the Saturday that the firing took place at the Widow McCormack’s house ? — I do. Do you remember the Friday, the day before that firing ? — I do. Do you remember any gentlemen coming to your house at the Com- mons’ village ? — Yes, there did some gentlemen. Do you know Mr. Walsh, who keeps the hotel at Killenaule ? — I do not. Do you know a man named Cashen, his driver ? — There is a man named Cashen above. Do you remember his driving to your house on that day? — No, I do not. What time did these gentlemen come to your house ? — I think it was very late. Did they stop in your house that night ? — They did. How many stopped there that Friday night ? — I could not tell exactly; they agreed only for five to stop. That is, for beds for five ? — Yes, they only asked me if I had beds for five. I don’t know how many came in, for I went to bed early. Was it through the shop they went in ? — No, I closed the shop, and myself and little children went to bed, I have a headache, which makes me speak this way. Now, did they eat or drink in your house that night ? — No, they did not ; they had nothing till the day following ; they ate nothing to my knowledge that night in my house. 390 SPECIAL COMMISSION, CO. TIPPERARY. Did tliey go in and out of the house, or did they only go in once ? — ■ I don’t know ; I went to bed early, and I only got up once all night. Did you see them at all going into the house h — I did see some of them. Could you say how any of them were dressed ? — -Faith, I could not; I do not remember how any of them were dressed. Would you know any of those gentlemen that came to your house ? — I would not. I was taken to Dublin to know them; and I would not know them. Did you see them the next morning going away from your house 1 — I saw some of them. Did any of them pay you for their lodging ? — They did. Did any of the gentlemen pay you for the lodging 1 — I got money from two of them. Where was it he paid you the money for your lodging — was it in the shop ? — No, the shop was closed all along. You told me you heard the firing at the Widow McCormack’s, or in that direction ? — Yes. Was it before that you were paid for your lodging? — It was before it. Did they come back to your house at all after the firing was over ? — I had a gentleman come back after the firing, but I do not know who he was. Were they gentlemen ? — I don’t know whether they were gentlemen or no; they had good clothes on them. But some gentlemen came back after the firing was over ? — They did. Before the firing commenced did they leave any thing after them ? — What things I got, I gathered all into a place, and put them into a car, and another man who was with them put them into a bag and they took the bag with them. When they were going away ? — Yes. Was that after the firing was over ? — Yes. Whatever things were there you put into a car ? — Yes. All that you could find ? — Yes. And those things had been left by the gentlemen in the morning ? — No, I don’t say that. Cross-examined hy Mr. Whiteside. Did you hear that there was a proclamation out at that time for the arrest of Mr. O’Brien % — I did not. How soon did you hear that ? — I heard it on the Saturday. Mr. Whiteside . — WiU your lordship note that she said she heard that there was a proclamation for the arrest of Mr. Smith O’Brien on the Saturday ? The Lord Chief Justice . — On the Saturday ? Mr. Whiteside. — Yes, my lord. William Pimlott, sworn — examined hy Mr. Scott. Where were you living last July ? — I was living in Bawnleigh. Were you in Mr. Barker’s employment ? — I work in his colliery. Where were you living ? — In Bawnleigh. How far is that from the Commons of Farinrory?— About an English mile. THE QUEEN WILLIAM SMITH O’BRIEN. 391 Do you remember the Saturday on which the firing took place there 1 —I do. The evening before that, the Friday evening, where were you ? — I was on the Commons. Did you see any gentlemen there on that evening ? — I did. About how many 1 — Really, I suppose seven, eight, or nine. Do you know Mr. Smith O’Brien ? — I saw the gentleman. Where did you see him last 1 — In Kilmainham gaol. Look round and see whether you see him in court ; if he is the same gentleman ? — He is {identify ing the prisoner). That is the gentleman ? — Yes. Did you see him on that evening in the village ? — I did. The Lord Chief J ustice . — Where did you see him ? — On the Commons. Mr. Scott . — At whose house did you see him ? — At Sullivan’s. Is that a public-house there ? — It is. How was he dressed ? — He was dressed in a blue body coat, and an overall over that. Whereabouts did you see him ? — Convenient to Sullivan’s door. Was it inside you saw him % — I saw him outside first. Had he any thing on his head ? — He took off his hat and put on a cap. What kind of cap ? — A round green cap with a small little brim. Had it any band round it h — A small little band round it with a kind of peak. What kind of band ? — A little lace band. Were there any other gentlemen with him ? — There were j there were seven, eight, or nine gentlemen. Did you see them in the room ? — I did ; I went into Sullivan’s. Did you see how these gentlemen came ? — I did not. Did they walk or come on a car ? — They were all there before I went. Did you see any cars there 1 — I did. How many ? — I saw two cars j I won’t say positively there were three, but I believe a third car was in it ; I only saw two that the gentlemen were upon. Did you see Mr. O’Brien do any thing ? — I did not see him do any thing. Did you see any letter in his hand ? — I heard him read a letter. Did he read that out ? — He did. Can you recollect the contents ? — I cannot. Upon what occasion was it that he read this letter? Was it outside or inside the house he read it? — It was outside. Did he read it out ? — He did ; I do not remember the contents. Did you hear him say any thing or call any other person by any name? — Yes, after reading the letter a gentleman was standing on the ground, and he called him Mr. Meagher, who immediately stood upon one side of the car. Who stood upon the side of the car ? — The same gentleman. The gentleman he called Meagher? — Yes. After standing upon the side of the car, what did that gentleman do or say ? — He cautioned every person there What did he say ? — He stated to them the nature of what would be the consequence if they were caught. Repeat that again ? — The gentleman told him that there was no person wanting. That was not what you said he told them ; repeat it exactly ? — Mr. SPECIAL COMMISSION, CO. TIPPERARY, 3^2 Meagher cautioned every person there, the same that would happen to themselves would happen them, and told them The Lord Chief Justice. — The same that would what? — The same? would happen to themselves as would happen them. Mr. Scott. — Was Mr. O’Brien standing by when he said this ? — He was sitting down on the car. What more did Mr. Meagher say, or did he say any thing more i — Ho did. J ust state what he said ? — He told them to be in readiness in three weeks, when the wisp would be lit over the hills. Do you recollect any thing more that Mr. Meagher said ? — I do not. Did any one else after Mr. Meagher address the people ? — There was another gentleman who said five weeks. Mr. Meagher said three weeks^ and another gentleman said five weeks. Did you hear that other gentleman’s name at that time ? — I did not. The Lord Chief Justice. — To whom was all this said? — It was to the- people. 2Ir. Scott. — Were there many people at that time present or about them? — Not many at that time. How many when they were speaking ? — There was a crowd, but not so many as from the bustle there appeared to be. A crowd of what number according to your estimate ? — I suppose there were not more than one hundred and fifty. Did you see any arms or any thing with those people in that crowd ? — - I saw a gun with one gentleman. Did you see any other arms of any kind ? — No, I did not. Did you see any thing else, or hear any thing else said by those persons while Mr. Meagher and Mr. O’Brien was there? — Yes, another gentle- man who spoke said five weeks ; he was giving directions then to the people to fight for their country and have it. The Prisoner . — Speak out, sir. 2fr. Scott. — Did he say any thing more, besides telling the people to fight for their country and have it ? — He did. State what ? — To hunt every English b r or beggar to his own side, and let him live there. Did you know Mr. Michael Doheny ? — I do not ; I could not say I know him, I only saw him once. Did you see him on that night there, or the next day ? — Why, I could not say I saw him ; I saw him about seven years before, and I thought it was him. We are not asking you what you thought if you do not know for certain ; I thought you were acquainted with him. This was on Eriday evening that you heard him speak in that way ; was it ? — Yes. Did you see them the next morning or the next day, any of them ? — I did not ; I did not come to the Commons the next day at all till evening. Did you see any of those gentlemen ; did you see Mr. O’Brien after at all ? — I saw him on Saturday evening up by my place. In what direction ? — Towards Kilcooley. How was he going ? — He was walking. Were there any persons in company with him ? — There were two men. Lord Chief Justice Doherty. -^Ahowi what hour? — (Ao answer.) Mr. Scott. — There were two men with him? — Yes. Did ho pass your house? — Yes, he passed convenient. THE QUEEN z-. WILLIAM SMITH O’BRIEN. 393 Did he afterwards pass it a second time 1 — No. What became of him after he passed your house ? — I did not see him after he passed up the road. Zord Chief Justice Doherty . — How did he pass, on foot or on horse- back ? — On foot. Mr. Scott . — And he said there were others, my lord. (To the witness .) — Now was that the day after you had seen him in Mrs. Lacken’s house 1 — It was on the Commons. About what hour was it you saw him pass your house on the Satur- day h — It was in the evening, I should say about five or six o’clock, it might be later or earlier. Mr. Whiteside . — He did not say he saw him at Mrs. Lacken’s house. 2fr. Scott . — Do you know Mrs. Lacken’s house ? — Yes. , Did you see the prisoner, Mr. O’Brien, or any other of the gentlemen at Mrs. Lacken’s house ? — I saw several gentlemen at the Widow Lacken’s. Did you see Mr. O’Brien there ? — I will not confidently swear I did ; I believe I did, but I am not sure. Did you see either of the two other gentlemen who spoke from the car, at the Commons, at Mrs. Lacken’s house 1 — I did not. How long were you at the Widow Lacken’s house on Friday night? — I suppose I was about a quarter of an hour j I might be more, I might be less. State now how many gentlemen you saw there ? — I saw two or three. Did you see no more than two or three there ? — There might be four. Were you speaking to any of them ? — I was. To which of them were you speaking? — To the gentleman who had the gun. Do you know his name ? — Really I do not know him. Did you hear him called by any name ? — I heard him called M'^Manus. Have you seen that man since ? — I have seen a man much the same, but I would not take on myself to say that is the man. Was any gun taken from you at all ? — There was. When ? — On Saturday morning. How was that gun taken from you ? Mr. Whiteside . — Unless this is brought home to the prisoner, it surely cannot be evidence in this case. Mr. Scott . — Was that the morning of the firing of the Commons? — Precisely. Was that taken against your will ? — It was not at home at all; I had it sent away. A party came and I sent the gun away, and I had to send for it. How did you know it was taken ? — Because I went to give it them. Mr. Whiteside . — I object to your heaping this evidence on me in this manner. (To the witness .) — How do you know it was sent away ? — I was the person who went and gave it them. Mr. Scott . — To whom did you give it up? — To James Pollard. 394 SPECIAL COMMISSION, CO. TIPPERARY. Cross-examined by Air. Whiteside. What is it you are that you have such a clear voice ? — By profession an engineer. And where did you carry on your business ? — In Mr. Barker’s colliery. You say there is a tavern there; do you ever visit that tavern ? — Yes. And you console yourself after you have been wet frequently? — Un- doubtedly. I am told you like to keep your inner man warm ? — I could take a little. And perhaps this night you heard the speeches you might have taken a little? — Not before I heard them; afterwards I did. I believe you did not swear any information till the 6th of September; is not that the fact ? — I think it is. The Lord Chief Justice . — When did you swear your information? — Really, my lord, I have not the date. Mr. Whiteside . — What is the date, Mr. Pedder? The Clerk of the Crown . — The 6th of September. Air. Whiteside {to the witness ). — The night you heard the speeches you drank a little ? — I did ; I don’t deny it. Does that improve your recollection ? — Not in the least. Did you not say, that one of these gentlemen said they might be caught ? — No. What was it then Mr. Meagher told the people ? — That any person that was there would bear with the same lashes as themselves if they were caught. He used those words ? — Yes. Mr. Whiteside. — Well, I think you did take a little that night. The Clerk of the Crown . — He swore one information on the 5th of August. Mr. Whiteside . — Are there two ? The Clerk of the Crown. — Yes. John Pemberty^ sworn — examined by Air. Sausse. Where did you live in July last ? — At Mardike. Do you hold any situation in the colliery at Ballingarry ? — I do. What situation do you hold there ? — As an engineer. Do you remember the Friday before the Saturday that the firing was at the Widow M‘Cormack’s ? — I do. Do you know a place called Kir wick’s Cross ? — I do. Were you there that Friday ? — I was. About what hour ? — Between eleven and one o’clock I should think. At night ? — In the day. Did you meet any person there ? — I saw some persons there. Turn about and say if you see one of the persons you saw at Kirwick’s Cross ? — I saw this gentleman {identifymg the 'prisoner). When you saw Mr. Smith O’Brien there, were there any persons with him ? — There were. How many gentlemen, or persons who appeared like gentlemen ? — I think there were four — three besides himself. Did you see any of the four persons, the three who were with Mr. THE QUEEN WILLIAM SMITH O’BRIEN. 395 O’Brien, with arms of any kind ? — I saw a gentleman whom they called M‘Manus with a pistol. Were there any other persons besides the three gentlemen with Mr. O’Brien ? — I do not think there were. How far is Kirwick’s Cross from the Commons ? — I should think about three miles. Did Mr. O’Brien say any thing to you ? — He did. The Lord Chief Justice . — On what day was this ? — On the Friday. Mr. Sausse . — Between eleven and one o’clock at Kirwick’s Cross ? — Yes. You say Mr. O’Brien said something to you? — He did. Was it in public ? — It was not. Was it in the house ? — No. What did he say? — He asked me if I was not one of the superin- tendents of the collieries, and I told him I was. Did he say any thing when you said you were ? — He did. State it. The Lord Chief Justice . — You said you were one of the colliery super- intendents? — I did. JD’.Nawsse.— Now state slowly what he said to you, and what you said to him. — He told me that if the company stood neutral, he would support them; but if they offered to suspend the works in consequence of having any of the men following him, he would take possession of the collieries. Did he say any thing further ? — He did. State it ? — He said that he would have Ireland rescued from the Bri- tish Government in less than a week. Well ? — They were all ready in the towns, and so far as he had travelled in the country he found every one of the same mind. The Lord Chief Justice . — Repeat the last sentence — that they were all ready? — That is all he said. Repeat what you said just now? — He said they were all ready in the towns, and so far as he travelled through the country they were of the same mind. Mr. Justice Moore . — Was it town or towns? — Towns, my lord, as well as I can recollect. Mr. Sausse . — Did he say any thing further ? — He did. Go on ? — He said if he was caught he would be hanged. Did he say any thing further ? — I do not recollect any thing else he said. What did you do then ? — I went to the Commons on my business. Did you leave Mr. O’Brien and the others after you there ? — I did. And you went to the collieries at the Commons ? — Yes. Now do you remember having been in the Commons’ village that day, the evening of that day ? — I do. About what hour ? — I should think between five and six o’clock, as well as I can remember. Did you see any cars come into the village ? — I did. How many ? — I think there were four. In what direction did the cars appear to be coming ? — They came from the direction of Lisnamrock. About how many people were on the cars ? — I should think about four on each car ; I could not exactly say. 396 SPECIAL COMMISSION, CO. TIPPERARY. Did you recognise any of the persons who were around the car ? — I knew Mr. M‘Manus. Any one else ? — And Mr. Doheny. Did you see Mr. O’Brien ? — I did. Where ? — At the Commons. Did you see him before you saw the cars come in or after ? — I saw him coming in with the cars. On the cars ? — On one of the cars. Were they alone, or was any number of persons with them? — There were persons with them. How many persons were there with them ? — I could not say. About how many, thirty or forty ? — I should say fifty or sixty men, women, and children. The Lord Chief Justice . — That came in along with the cars ? — That came in along with the cars. Mr. Sausse . — Did the cars stop anywhere ? — They stopped at the village of the Commons. At whose house ? — Thomas Sullivan’s. Do you remember what was done after the cars stopped at Sullivan’s ; was any thing said by any of the party? — There was a gentleman called Mr. Meagher made a speech. Did any one else speak besides Mr. Meagher? — Mr. O’Brien and another gentleman; I don’t know who he was. Now state what Mr. O’Brien said, or the substance of it? — I could not say what Mr. O’Brien said, but I think he asked the men — — Mr. Whiteside . — If you cannot teU us what he said, do not say it. Mr. Sausse . — Are you sure ? Mr. Whiteside . — He has said he cannot he. The Lord Chief Justice . — We shall not take a note of any thing but words or the substance. {To the witness .) — Now can you recollect what Mr. O’Brien said ? — I cannot recollect the substance. Mr. Sausse . — Can you recollect the substance of Mr. Meagher’s speech ? — I cannot; I can only recollect the introduction. What was the introduction ? — He said, since I have become an outlaw, I have ceased to be a gentleman. Do you know Mr. Doheny? — I do, from eye-sight; I do not know any thing of him. Did you see him there ? — Yes. Did he come in with the cars ? — Yes. Where did you stop that night ? — At Mr. Lamphier’s. That is in the village ? — That is in the colliery yard near the village. Do you know where Mr. O’Brien stopped that evening? — I do. Where ? — At a house I think they call Mrs. Lacken’s. I did not see him go in or come out; I only heard that he stopped there. Did you see any armed persons outside that house ? — I saw persons at a distance ; I did not go near. I think they had some kind of poles in their hands. The Lord Chief Justice . — At what house? — Mrs. Lacken’s. At what time ? — It was about eight o’clock in the evening, my lord. THE QUEEN v. WILLIAM SMITH O’BRIEN. 397 Mr. Sausse. — You slept at Lampliier’s that night ? — I did. What time did you leave the village next morning ? — As well as I can recollect about nine o’clock. Where did you go then ? — I went to Mardike. About your business 1 — Yes. Cross-examined hy Mr. Fitzgerald. It was on the road you met Mr. O'Brien, when the conversation took place ? — Yes. Was there anybody present besides yourself and Mr. O’Brien ? — There was no one convenient, not very near, not so near that they could tell what he was speaking to me. You heard it all yourself'? — Yes, I heard it all myself, I suppose; I do not know. When he had done this he went on, or you went on ? — I went on. And you saw no more of him till evening — I saw no more of him till evening. When was your information sworn ? The Clerk of the Crown . — The 6th of September. John Lamphier, called. The Prisoner. — My lords, I do not think, after nine hours’ sitting, it is doing justice to my counsel, or my case, to proceed any longer to-night with the investigation. It deprives us of the opportunity of consulting in the evening ; and it is so harassing to my counsel, that it is obvious he cannot do justice to himself or to me. It is now half-past six o’clock. The Attorney- General. — The examination of this witness will certainly take some time, my lord. The Lord Chief Justice. — Then adjourn the Court until nine o’clock to-morrow. The Prisoner. — 1 beg to tender my thanks to your lordship for this concession. [The Court adjourned until nine o’clock the following morning.] Tuesday, October 3, 1848. [The prisoner was placed at the bar, the names of the jury called over, and all answered.] John Lamphier, sworn — examined hy the Attorney-General. Where do you live '? — At the Commons’ colliery. What is the name of it — Commons of what place? — Commons of Boulagh. In the county of Tipperary ? — Yes. What situation do you fill ? — Pay clerk, employed by the Mining Com- pany of Ireland to pay the workmen. 398 SPECIAL COMMISSION, CO. TIPPERARY. Do you recollect the evening of Friday, the 28th of July? — I do. Where were you on the early part of that evening? — In the Mining Company’s concerns. Do you recollect seeing any jaunting-cars pass by ? — I do. How many cars were there ? — Three. Where did those cars stop ? — At a public-house kept by Thomas Sullivan. How many persons were on those cars ? — From eight to ten. Do you know any of the gentlemen who were on those cars ? — I did not know them before. Do you know them now ? — I do. Who was one who was on those cars? — A gentleman whom they called Mr. Smith O’Brien. Just look round and see whether you see that gentleman there ? — Yes {identifying the prisoner). After these cars stopped at Sullivan’s where did Mr. O’Brien go to ? — He walked out on the road. What did he do when he walked out on the road ? — He addressed the people who were assembled about the house. Were there many people assembled about the house ? — I could not say the number exactly; there were a great many. About how many ? — Two or three hundred. What did you hear Mr. O’Brien say? — He told them that there was a warrant against him, and £500 was ofibred for his arrest; he told them to arm and to protect him if the military should come to attack him. Well, go on; what else did he say? He said there was a reward of £500 oflfered for his arrest — what did he say after that ? — He said if they would protect him and arm, that Ireland would be free in a fortnight. What else did Mr. O’Brien say ? — Some of those persons said that they had no arms, and he said that stones were very good weapons. Repeat that. You say that some of the people said something to Mr. O’Brien ? Lord Chief Justice Doherty . — Some of them said they had no arms — is that what you say? — Yes, my lord. The Attorney-General . — What did he say to that ? — He said that stones were very good weapons if they had no other arms. He said what ? — He said stones were very good weapons for those persons who had no other arms but stones. Now, did any of the gentlemen who came on the cars, besides Mr. O’Brien, address the people ? — Yes, a gentleman they called Mr. Meagher, and a gentleman they called Mr. Dillon. Did you hear what the gentleman they called Mr. Meagher said ? — I did hear some. Now, what did he say? — He told them to arm and to protect Mr. O’Brien, and they would have Ireland free in a fortnight. A Juror . — What would they have in a fortnight ? — Ireland free. The Attorney-General . — Did Mr. Meagher say any thing else ? — He did. What did he say ? — He told them to drive the Saxons from the soil. Mr. Justice Moore . — Told the people to do so ? — Yes, told the people. The Attorney-General . — Did Mr. Meagher say any thing else ? — I don’t remember. Did the other gentleman you called Mr. Dillon, address the people on that occasion ? — He did. THE QUEEN 2 ;. WILLIAM SMITH O’BRIEN. 399 What did Mr. Dillon say 1 — He said, that if they would arm and pro- tect Mr. O’Brien, they would have Ireland free in six months. Repeat that. — That if they would arm and protect Mr. O’Brien, they would have Ireland free in six mouths. When Mr. Dillon made that observation did either of the other gentle- men make any observation in answer to it? — Not that I remember. Did Mr. Dillon say any thing else ? — I do not remember any other part. Did you see Mr. O’Brien any more that evening ? — I saw him walking up and down the road opposite the house where he lodged. What house did Mr. O’Brien stop in that evening ? — I heard it was You did not see it yourself; what house was it he was walking opposite do you say ? — Mrs. Lacken’s. Did you observe any people about Mrs. Lacken’s house that night, or any part of the night ? — I did. What number of the people ? — I think about forty. Were they armed or unarmed ? — They were armed. What description of arms had they ? — Some had guns, some had pikes. What did you see them doing about Mrs. Lacken’s house? — Walking up and down before the door. Did you see Mr. O’Brien the next day, Saturday ? — I did. About what hour did you first see him on Saturday ? — Between nine and ten o’clock in the morning. Where did you see him at that hour ? — He was on the road with the people. Whereabouts ? — Between Mrs. Lacken’s house and Thomas Sullivan’s. Were there many people with him at the time ? — There was a great many; I could not say the number. Were there many of them armed? — Most of them were armed. What do you mean by a great number — about how many ? Lo7'd Chief Justice Doherty — More than the forty you spoke of? — There were about a hundred at that time. The Aitorney-General . — What were they doing when you saw them between Mrs. Lacken’s and Sullivan’s ?— Walking up and down the road. Was Mr. O’Brien walking with them ? — He was out on the road; he was not walking up and down with them at that time. What was he doing at that time ? — I was about one hundred yards away; he spoke to some of them, I believe, when he was passing. You were not near enough to hear him, were you ? — No. Did you see Mr. O’Brien in the Mining Company’s concerns in the course of that day ? — About twelve o’clock he walked into the concerns. Into the yard I suppose ? — Yes. What did he say brought him there? — He said he came for some carts and boxes. What did he say when he came in — did he ask for any one ? — He asked who was in charge of the Mining Company’s concerns, and I said I was. When you told him you were the person in charge, what did he say ? — He said he came for some carts and boxes that were lying in the yard at the time. Were they lying in the yard at the time? — They were lying inside the gate. Was he alone, or was there anybody with him ? — There was a small boy walking after him. 400 SPECIAL COMMISSION, CO. TIPPERARY. Bid lie say wliat he wanted the carts and boxes for ? — To throw up a barricade ; to help to throw up a barricade across the road. What did you say to him when he asked for these things ? I said I could not give them. What did he say in answer to that ? — He said he would take them by force. What did he do then, or did he do any thing ? — He ordered a man who was standing by to wheel away the cart, but he refused. The Lord Chief Justice. — Stop, he ordered a man who was standing by The Attorney- General . — To wheel out the cart, and the man refused. That is what he said. {To the witness .) — When the man refused, did Mr. O’Brien say or do any thing ? — He commenced to wheel the cart himself. Bid he remove the cart out of the yard? — No, not more than a few yards. Now, while Mr. O’Brien was in the yard, in the Mining Company’s concerns, did any more people come in 1 — No, the people did not come within the yard gate at all. Bid many people come about the yard gate or the place ? — They were about fifty yards from it. And about how many people came to that place, about fifty yards from the gate? — About five hundred. Was that while Mr. O’Brien was in the yard, or after he had left it ? — While he was in the yard. Was there any noise or ringing or any thing of that kind at the time ? There was shouting on the road. Bid any people come into your yard, and do any thing with any of your bells that were there ? — After Mr. O’Brien went out ? After he left the yard ? — Yes. When he left the yard where did he go to ? — Bown the road. Was it where the crowd was ? — Yes. Bid any of the people come into the yard after Mr. O’Brien went out ? — A number of people who were not armed came in after Mr. O’Brien went out, and commenced ringing the workmen’s bell. The Lord Chief Justice . — What does he say ? The Attorney-General . — He says, my lord, that some people unarmed came into the yard, and began ringing the bell. {To the vntness .) — Bid they continue long ringing the bell ? — About a quarter of an hour. Bid you see where these people, whom you said were about five hun- dred, who were with Mr. O’Brien, went to, or what they did ? — They commenced to erect a barricade on the road leading to Ballingarry. Bid they complete the erection of it ? — They did. What did that barricade consist of ? — There was a ladder and some boxes. Some what ? — Some boxes. And what else ? — Some sticks and stones, as well as I could see from a distance. How far were you from it ? — Over one hundred yards. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 401 About what height was it erected ? — About four feet. What did the people do, or where did they go, when they erected that barricade ? — They marched up and down the road shouting. Were any of them armed ? — Most of them were armed. With what description of arms ? — Pikes and guns. Did you remark or see if Mr. O’Brien had any arms himself on that occasion ? — He had a pistol in his hand when he came into the yard. How long did the people remain about or close to that barricade, or close to the place where the barricade was ? — About an hour. Did you see where they went from that road — what direction they went to ? — Towards the Widow MUormack’s house. Before you saw them going towards the Widow MUormack’s house, did you see any police or constabulary going in that direction 1 — I saw a body of police coming up the Ballingarry road as far as Scott’s Cross. When the police got as far as Scott’s Cross, what direction did they take? — They turned up to the right, towards Mrs. MUormack’s house. Did you see Mr. O’Brien himself when the people about the barricade were going towards the Widow MUormack’s house ? — I saw him going through the fields with them. Do you know Mr. McManus ; have you seen Mr. McManus ? — I have seen him in the gaol, but I could not be certain he was the same person who was there that day ; he appeared much taller. Did the police, or Mr. O’Brien and the country people get to the Widow MUormack’s first ? — As well as I could see from that distance the police got first into the house. When those people who were with Mr. O’Brien were going towards the Widow MUormack’s, was there any noise, or did they go quietly across ? — They shouted. Did you hear any firing shortly after, or at any time after, you saw the party get to the Widow MUormack’s house ? — I did. How soon after the party got to the Widow MUormack’s house did you hear the firing? — Immediately after; about a quarter of an hour after. About how many people did you see going across the fields as you described towards the Widow McCormack’s ? — About five hundred. But besides those people that you described in that way, did you see many others of the country people about ? — There were a great many on the hills around ; I could not see whether they were armed. Now, did you, later in the day, see another party of police ? — I did. About what hour — how soon after the firing at the Widow McCormack’s? — About an hour and a half. What direction did that party come from ? — From Boulagh. What town is Boulagh in ? In the direction of what town did they appear to be marching ? — In the direction of Killenaule. On this Friday and Saturday that you speak of, were there any police stationed at the Commons ? — They were withdrawn from the Commons. How long before had they been withdrawn ? — Three or four days. Do you know who owns the barrack in which the police were at the time, and who had the key and charge of it ? — The Mining Company owns it. Do you recollect anything occurring between yourself and Mr. O’Brien about that barrack, or any thing connected with it ? — He said he should have the key of it when he came into the yard. 2 D 402 SPECIAL COMMISSION, CO. TIPPERARY. On tlie Saturday morning ? — Yes. What did he say he wanted the key of it for ? — To station some of his men. Did you give him the key ? — No. Cross-examined hy Mr. Whiteside. How far is the Mining Company’s office, or place where you were, from the Widow McCormack’s house — is it more than a mile 1 — I think it is about an English mile. What was your business; are you their clerk ? — Yes. How long have you been there ? — Seven or eight months. Were there many men employed at the collieries ? — Some hundreds; I do not know the amount. The Attorney-General . — There was one question which I forgot to ask. Do you know a person of the name of John Corinack, and did you see him with Mr. O’Brien on that occasion ? — Yes, he was there the evening before ; I did not see him on the day of the battle. Do you know where Earinrory is ^ — Yes. What is called Earinrory ? — Where the Widow McCormack’s house is. It is in the county of Tipperary of course ? — I think it is. Mr. Whiteside . — You say you have been seven months in the employ- ment of this company? — Yes. Are you in the employment of the company still ? — Yes. Where have you been lately; where have you lived? — On the Commons. You have come from that now ? — Yes. Was there anybody else in the house but yourself ? You were the clerk in charge of the works — was there anybody else? — Mr. Cullen, the acting manager. Was he th^ere ? — He went off to another establishment. Were you alone? — Yes, when Mr. O’Brien came. You were not able to offer any resistance ? — None. Was any other clerk but yourself there ? — There were some clerks about the yard. Was anybody present when this transaction that you speak of occurred? — There was an underground steward of the name of Tobin. Did he hear what passed ? — I think he did. Is he alive ? — Yes. Did he hear all that passed ? — I think he did at the time he came for the cart. Tobin was the man who refused to wheel the cart. You and Tobin are the whole of the company there ? — Tobin is not employed there; but he was there that day. And Tobin was the only person besides yourself who entered into that conversation, or heard what Mr. O’Brien said ? — I think so. I find you made two informations ? — Yes, one at Ballingarry. One in August and the other in September? — Yes. Which was the longest ? The Attorney- General . — Any question about these informations can only be known by the production of them. Mr. Whiteside . — I have a perfect right to ask this question. (To the witness .) — Which was the longest? — I think the last. THE QUEEN 2 ;. WILLIAM SMITH O’BRIEN. 403 The 6th of September. Where did you make that second information ? — At Mr. Kemmis’s office. This gentleman here, the Crown-Solicitor ? — Yes. In Dublin ? — Yes. Had you in the interval seen the magistrates or the police, or had you not ? — I had seen some of the police. And talked over this matter of what Mr. O’Brien had said and done ? —Yes. Gone over more than once the speeches for example ? — When the police came to the Commons that were stationed there You talked with them about it 1 — Yes. And having made one information in the country, six weeks after- wards you went up to town and made a second, and that was the longest. Now you knew the speeches of Mr. O’Brien as well in the month of August, as in September; did you not? — I do not remember much of the speeches, but I remember just now, as well as the day after, what I say. And do you remember in September just as well as in August? — Just. But at best you do not remember much about them ? — No. Do you intend to continue in the office you are in, or will you change ? — I intend to continue as long as I can. You have not any notion of changing for any other department? — No. But you have seen a good deal of police life latterly? — Yes. And do you like it ? — No, I prefer my own situation. A respectable appointment ? — I prefer my own. On this occasion when you had an interview with Mr. O’Brien, what- ever property about the Mining Company’s concerns was guarded, was not injured ? — No. Not the least ? — No. Although there was no one to offer resistance, and the colliers were anxious to protect Mr. O’Brien from being arrested ? — Yes, they were. Was there a large quantity of powder in the stores of the Mining Company ? — Not a large quantity. A quantity ? — About fifty pounds. That day ? — Yes. Was there any attempt made to obtain possession of that powder, or take it from you by force ? — No. It was left untouched ? — It was. Now, you began by telling us of the Friday, I think? — Yes. You saw Mr. O’Brien come up to town on a car ? — Yes. An outside car ? — Yes. And there was no police in the town to offer any resistance ? — No. There were two outside cars ? — Three. You have seen outside cars often before ? — Yes. And when he came, about how many people were there — were there fifty ? — They were running after him. And was he running away from them ? — The car was driving pretty quick; they were obliged to run. When he stopped they got up with him and, I presume, were glad to see him ? — Yes. What were you doing — were you attending to your business ? — Yes. And looking, through curiosity, after ^what was passing in the street? — Yes. 2 D 2 404 SPECIAL COMMISSION, CO. TIPPERARY. Killing two birds with one stone. You were not afraid of any thing? —No. He made a short speech. Are you in the habit of hearing the public orators in that part of the world ? — No. You do not report speeches? — No, I could not. And never have ? — No. You do not carry pen and ink in your pocket ? — No. You have no notes of this? — No. Not a scrap ? — No. You are quite sure you heard Mr. O’Brien say there was a warrant against him for his arrest, and a reward of five hundred pounds for taking him ? — Yes. And then he asked them whether they would protect him if they came to arrest him ? — Yes. And they said they would? — Yes. And who said they had but stones ; was it the people said that ? — The people. Some of them. Very well ; now who said stones would be very ffood ? — Mr. O’Brien. Where they had not arms for that purpose ? — Yes. And it was true there were many people there who had not arms ? — There was no one had arms at that time. And to protect him it was necessary they should have arms ? — Those who came on the cars had arms. I am not asking you about those on the cars ; but the people had no arms ? — No. They said something about stones, and he said stones were very good things if they had not arms ? — Y es. One gentleman said Ireland would be free in a week, and another corrected him and said a fortnight ? — I think it was a fortnight. Was it a fortnight ? — A fortnight. And he having spoken, the next gentleman said that happy consum- mation would take place in six months? — Not immediately after; that was not by way of contradicting him. That is your argument. Ho not answer me. Hid he say that in six months it would take place ? — Mr. Hillon said in six months. O’Brien said it would be a fortnight, and Hillon six months? — Yes. If another witness swore that Mr. O’Brien said that Ireland would be free in a week, that would be incorrect. He did not say that ? — Not in my hearing. Nobody fixed a week ; it was a fortnight or six months ? — Yes. Hid anybody say any thing about any given interval between these two periods ? — No. These were the two periods, a fortnight or six months ? — He made a great many speeches besides the one I listened to ; Mr. O’Brien made two or three speeches I understand. Ho not tell me what you understand. You did not hear him? — No. Could you understand my speech if you did not hear it ? — No. But you have told us that Mr. Hillon said that Ireland would be free in six months; that is, if they would protect Mr. O’Brien ? — Yes, and arm. And protect him ? — Yes. And by protecting him, in six luonths Ireland would be free? — If they would protect him. THE QUEEN WILLIAM SMITH O’BRIEN. 405 From arrest 1 — Yes. And were the police in view at that time ; did you see them shortly after ? — This was the evening. In the usual fashion, Mr. O’Brien was put to bed at Mrs. Lacken’s 1 — No. You told the Attorney-General you saw some people assembled about the door? — Yes, the people had illuminated. That enabled you to see what was going on there ] the illumination ? — Yes. What did you see ? — I saw some people walking up and down. You have seen people do that before? — Yes. Were there a few on guard before the place where he slept? — Yes, there were. Did you go to bed at all ? — I did. And slept ? — Yes. On the eve of a revolution ? — Yes. After hearing those speeches ? — Yes. And awoke in the morning ? — After being well frightened. Do you find that assist sleep ? — No. May I ask what time you went to bed ? — About twelve o’clock. What was the last hour you had been out in the streets to see what was going on ? — About ten. You saw some people, were they committing any act of violence of any kind ? — No. You saw some walking up and down the door where Mr. O’Brien was? — Yes. And others were engaged in the work of illumination ? — Yes. What hour did you get up in the morning ? — I cannot say, I generally get up about half-past six or seven. Did you get up at half-past six that morning ? — I think I did. You saw nothing unusual when you got up. When did you go out ? — I went out immediately j I walked up and down the yard ] I had some business to do. After breakfast what did you do ; did you go out on the road ; where did you see Mr. O’Brien first ? — I saw him on the road ; I was at a distance. Walking up and down was it ? — Yes. Was it after breakfast, or before ? — It was after breakfast. And you had no conversation with him then ? — No, not until twelve o’clock. And having seen him, you went on your business ? — Yes. Now what hour was it ? You did not hear any speaking that morn- ing ? — No. Were there many people on the road at that time, when you looked out; not very many ? — There were. Some ? — Yes. That is all you observed particularly. You say at twelve o’clock that Mr. O’Brien came into your yard ; you mentioned that there were about a hundred people on the road ? — Yes, about a hundred or more. The people were also walking up and down ? — They were. They were not doing any thing mischievous. When Mr. O’Brien came into the yard he asked who was in charge of the concern, and you said you were the gentleman in charge ? — Yes. 406 SPECIAL COMMISSION, CO. TIPPERARY. Well, did any armed party come in witli him ? — No. Mr. O’Brien did not frighten you ? — No. At that time in looking down had you seen, or do you know whether the police were in sight ? — The police were not in sight at that time. Now, he asked you first for some carts and cars to throw up a barri- cade across the road ? — Yes. Was it not for the purpose of preventing the police from arresting him *? — Yes. You said you could not give them? — Yes. And he said he would take them ? — Yes. And Tobin was near at hand, and he would not do it? — No. He partially removed the cart himself a few yards ? — Yes. But did not do it? — No. Do you not believe if he liked he could have got fifty men ? — I think any man employed by the company would not do it. They would not do it ? — I think not. Did you not say to the Attorney-General that there were five hundred men outside? — Yes. Your statement was, that there were five hundred outside, and that if Mr. O’Brien had desired them to roll away the cart they would not do it? — Some of them would not; they were not all employed by the company. Could he have got people sufficient to roll the cart if he chose in spite of you ? — He could. Did he call on anybody to do so by force? — No. And you kept the cart ? — He left it. You and Tobin remained and the cart? — Yes. The people stood all that time fifty yards off? — Yes. And no armed people entered the concern ? — Not one. Or did the least damage to you or it ? — No. After that matter took place, I think you stated to the Attorney- General somebody rang your bell ? — Yes. Who rang the bell ? — I could not say. Was it Tobin? — No. You do not know who rang it? — No. Did they ring it long ? — About a quarter of an hour. But still did no harm to the concern ? — No. Did you see any of your own workmen there ? — Yes, I saw some men there who were disemployed. Had been in your establishment? — Yes. Had you thrown any people out of employment there ? — It is not my business to disemploy them. I mean the Mining Company. Were there any men who had been for- merly employed, but latterly were out of employment ? — Yes. Did you see those men there ? — I remember one of them. How long is it since these men had been removed from employment ? — About three months. It was not in connexion with this business ? — No. Now you actually saw a barricade; there was a sort of barricade erected there of a ladder and some boxes ? — Yes. That was in the way of preventing the police coming up, if they were coming up, towards Ballingarry ? — So I understood. You say when O’Brien came into the yard he had a pistol ? — Yes. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 407 Where was it ? — In his hand. He did not threaten to shoot you ? — No. What became of that little boy : by-the-by who was he ? — I did not know him. He was a sort of body-guard ? — He was too small. He attended O’Brien ? — Yes. He came in and went out with him ? — Yes. You don’t know his name ? — No. You saw the police shortly after coming up towards Ballingarry ? — From Ballingarry. Tell me where Scott’s Cross is ? — About a quarter of a mile off. J ust show it me on that plan (Jianding a plan to the witness) ; just about where it is, as near as you can ? — Here it is. And you had a clear view of them coming from Ballingarry? — Yes, a long way. Where is Kirwick’s Cross ? — I do not know it on the map. And immediately after that the people ran over to Cormack’s house? — Yes. You did not go there ? — No. And you heard some firing immediately afterwards ? — Yes. And a second party of police came up in about an hour and a half? — Yes. Now as to this business about the barrack; I believe the barrack was empty ? — Yes. You were there to defend the Mining Company’s concerns, but there was nobody in the barrack? — No. The barrack was the Mining Com- pany’s property. It was not taken possession of? — No; they attempted to break the door. Hid you see any person breaking that door ? — I saw it after it was broken. Hid you see any person breaking that door ? — I did not. Hon’t tell me what anybody told you afterwards ? — I found the door so that I could not unlock it ; the lock was broken, seeming as if it had got a blow with a large stone or sledge. Was the door shut? — It was; the timber was cracked also. Would it be a difficult business to break it oyjen; was it not locked when you went there to it again ? — It was. And you put the key into it and found it would not turn ? — Yes. You did not give him the key? — No. And he did not take it from you? — No. Where was the key ? — In my house. It was not in your pocket? — No. Was there any injury done to the place when you opened the door? — Not the slightest. There did not appear to have been anybody in it ? — No. And there was nobody to prevent it being opened? — No. Was it in your first or second information you told that story about the barrack ? — I think the first. Owen Cullen, sworn — examined hy the Solicitor-General. Have you any employment connected with the collieries at Boulagh ? — I have. 408 SPECIAL COMMISSION, CO. TIPPERARY. Where do you live yourself; where is your house ? — At the Commons, Is that a small village 1 — A small village. Do you remember the evening of Friday, the 28th July? — I do. Do you know a public-house in the village called Sullivan’s public- house? — I do. Do you know the gentleman at the bar, Mr. O’Brien? You will see him if you turn round. Did you see that gentleman there that after- noon ? — I did. Was it near Sullivan’s public-house that you saw him ? — Yes. Is that convenient to the police-barrack, or at any distance from it ? — - Quite convenient. Did you hear Mr. O’Brien say any thing to the people ? Were there any people near him, or about him ? — There was a crowd of people col- lected round him. I heard him say a few words to them. Where was he standing? — On an old ditch. Repeat that answer again, and speak it louder, that the jury may h'ear, — On an old ditch. A Juror. — Was he standing on it, or at it? — Standing on the ditch. The Solicitor -General. — You said you recollected something what he said. Are you able to tell the jury any part of what he said ; I do not mean do you recollect the whole ? — He asked if there was sufficient force there to keep him from, I think, one hundred or two hundred men. A Juror. — What is that ? — He asked if there was sufficient force there to keep him from one hundred or two hundred men. The Solicitor -General. — Any thing further? — In the course of his address he said he expected this to be a free country, but how that was to come round he did not say in my hearing. I only ask what were the words you heard him use? — Yes. Did you observe any persons with him who were strangers, who were not the country people? — No; they were not with him on the ditch. But in his company any time that evening ? — I heard there were some. I am not asking you what you heard. Did you see any persons in the garb of gentlemen, respectably-dressed persons ? — After he addressed the people I saw a few. You saw a few after he had addressed the people? — Yes. Did you observe any of those persons armed ? — I think not. When I say armed, did you observe any one with a gun ? — I do not recollect that I did. These other persons that you say you saw afterwards, were they near Mr. O’Brien, or did they appear to be in his company ? — When I saw them they were on cars, and they went off immediately after. They were standing on cars ; they were going off. How long were they there — I do not say you were in company with him — how long were they there that you observed them ? — After Mr. O’Brien stopped addressing the people I went to my own house, and returned again ; and when I came near my own place I saw these gentle- men standing on cars, and they went off immediately afterwards. Did you hear any of their names mentioned in Mr. O’Brien’s presence or hearing ? Mt. Whiteside. — Is this the way to prove that he heard it ? Witness — I heard it from the people collected, that there were such and such people there, but I do not know any thing else about it. THE QUEEN WILLIAM SMITH O’BRIEN. 409 The Solicitor- General . — The names of those gentlemen who were on the cars'? — Yes. Now, Cullen, do you remember the morning of the 29th of J uly ? — I do. Did you see Mr. O'Brien on that morning % — I did. Where did you see him ? — I saw him in the house of the Widow Lacken, at the Commons. From any thing that passed between you, are you able to say whether he had sent a man of the name of Hourigan for you'? — Yes, Hourigan told me he was sent. Did you go there in consequence of a message sent for you '? — Yes. And you saw him at the Widow Lacken’s? — Yes. The Lord Chief Justice . — I do not know wliether lie iden- tified Mr. O’Brien. The Solicitor- General.~YQ^, lie did, my lord, the first or second question I asked. {To the witness .) — What room in Lacken’s house was it that you saw him ; was it in a room ? — It was in a room. What did he say to you when you went in, or did he say any thing to you ? — He did, he asked me to sit down, and I sat down. Was there any person present ? — There were two persons in the room at the time with Mr. O’Brien. Were they persons known to you, or were they strangers to you 1 — ■ They were strangers to me. Did he after you sat down do or say any thing, or what passed then between you ? — He read a letter to me, that he wanted me to send for- ward to the directors of the Mining Company. Afr. Whiteside {to the Solicitor-General).— -JisiWQ you a copy of that letter? Will you oblige me with a copy of it? The Solicitor-General . — Just see whether there is any mark of yours on that letter ? — There is. What did you do with that letter ; did you get it from him h — I got it from him. Did you forward it to the company 1 — I did. What did you do with the letter you say you forwarded to the com- pany ? — I forwarded it to the company. To whom ? — To the secretary. Who is he ? — Mr. Purday. Was that the letter that you got from Mr. O’Brien, and which you forwarded to the company {handing a letter to the witness) ? — I think it is. Did he read it out to you? — Yes, he did. Before he gave it to you ; did you observe whether any copy of it was made before it was delivered to you ; was anybody writing there ? Mr. Whiteside . — Did he compare it? I beg your pardon; did he make any copy. You have not served any notice on any one to produce the copy. The Solicitor- General . — All I ask is, whether any person was writing at the table. {To the witness .) — Did you see any person writing at the table ? — I did. 410 SPECIAL COMMISSION, CO. TIPPERARY. Was that other letter before him ; the letter that you haye proved ? — I cannot say. Did you hear the names mentioned in the presence of Mr. O’Brien ; the names of the persons who were there — there were two persons there ? — No, their names were never mentioned in my presence. Did Mr. O’Brien say, after he delivered the letter, or during the time you were there, any thing further to you ? — Nothing that I recollect; he was very kind to me the whole of the time that I was in his company. Was any thing said about a horse of yours ? — That was the evening before. Then on the evening before, at the time you mentioned you heard him speak from the ditch, had you a conversation with him? — Yes. What passed; what did he say to you? — He asked me for the key of the police-barrack ; and he saw one of the company’s ponies going out to water, and he said he wanted it for a night. Wanted what ? — The horse or pony. I said I could not give him either, that I was only the company’s servant; and he at once admitted the justice of my refusal, and said he would not take either. Either what ? — Either the pony or the barrack. The Solicitor- General . — I wish that letter to be handed hack to Mr. Cullen ; the letter that he marked. {To the witness .) — Just look at it yourself {handing the letter to the witness). Is that, at the bottom where you see the memorandum of the receipt, your memorandum ? — It is. You have written there, received on the 29th of July;” that is, the day you got it from Mr. O’Brien ? — Yes. When was that memorandum made on it by yourself ? — The letter was returned to me from Dublin to make that memorandum. Which was sent up by you ? — Yes. And then was returned ? — I made the memorandum and returned it. Mr. Whiteside . — How soon after was the memorandum made ? — Five or six days. Mr. Justice Moore . — ^Was the letter sealed when you received it? — No, my lord, it was open as it is now. The Solicitor-General . — Did you make a copy of that before you sent it up to the company ? — I made a hurried copy, it may not be exactly letter for letter. Mr. Whiteside . — You do not imagine that I admit this gentle- man’s writing against my client ? I only submit that ordinarily what a third person writes is not evidence against the prisoner. I don’t know what he has written, but they go through the form of producing things The Solicitor-General I wish that there should be no misun- derstanding afterwards about the time that memorandum was made ; I only want to ascertain the facts. The Lord Chief Justice . — He said he made it four or five days afterwards. The Solicitor-General . — You know the police-barrack, and you know the Widow McCormack’s at Fariiirory ? — I do. THE QUEEN i- WILLIAM SMITH O’BRIEN. 411 And the hill on the Commons ? — I do. Is that in the county of Tipperary 1 — It is. Cross-examined hy Mr. Fitzgerald. Now, this letter about which you have been speaking, you did not mark it I understand at the time you got it ? — I did not. You sent it up without marking ? — I did, as directed by Mr. O’Brien. And the memorandum which is now on it was put subsequent, and after you sent it to Dublin ? — Yes. How long afterwards 1 — I should say five, or six, or seven days. How far is your office from the Widow McCormack’s 1 Lord Chief Justice Doherty . — IIow far wliat ? Mr. Fitzgerald. — How far is his office from the Widow McCormack’s? — I do not suppose it is an English mile, I think not ; very near it though, to go round the road. How far is your office from Sullivan’s public-house ? — About two hun- dred yards. It was near that that you first saw Mr. O’Brien ? — Yes. As I understand you, you say you heard Mr. O’Brien ask the people if there was a sufficient body to oppose two hundred armed men if they came to arrest him ? — Yes. Were there many people about there at that time ? — There was a good many ; the greater part of them were women and boys : there was a good deal of women and boys, and some of the working classes going home from their work, too. I suppose a great number of people about the streets also ; there was a good many women and boys ? — Yes, they were all women and boys nearly. Those nameless gentlemen of whom you have spoken on the jaunting- cars, when you saw them after the speeches, they were going away ? — They were on the car going away ; in fact, they went away before I rushed up. In what direction now ? — In the direction of Ballingarry. You were in charge of the Mining Company’s concerns, the principal officer of the Mining Company there ? — Yes. They have a good deal of property there ? — A good deal. Had they at this time any gunpowder ? — Yes. Now during the whole of this time was any of the Mining Company’s property injured ? — Not in the least ; we had money and property there, but it never was injured. I believe I remitted one hundred pounds that morning from the mines. There was no attempt made to take any part of it ? — No attempt whatever. I believe you said that Mr. O’Brien’s manner was very kind to you ? — Yes. No threats of any kind? — No. You told him you were a servant of the company ? — And he at once saw the justice of my objection, and said that he would not take either. And demanded no property from you ? — No property. Was that refusal as to the horse and as to the key, after or before the transaction of the letter ? — It was before it. 412 SPECIAL COMMISSION, CO. TIPPERARY. On the evening of the Friday? — Yes. Did Mr. O’Brien say he was apprehensive of arrest ? — Why it appeared to me that he was afraid of it. Lord Chief Justice Doherty , — Of what ? Mr. Fitzgerald . — Of arrest, my lord. Witness — Of arrest. A Juror . — When Mr. Smith O’Brien said he expected that this would be a free country, did he give any definition of what a free country was ? —No. Did he tell you by what means it was to become a free country ? — He did not make any allusion to it, or if he did I did not hear him. Mr. Richard Purday, sworn — exarnmed hy Mr. Scott. Do you hold any office under the Mining Company of Ireland ? — Yes. What office ? — Secretary. Do you remember on the 30th of July last having received any letter from your agent at the mines ? — I do. At Ballingarry ? — I do. Look at that letter and say is that it {handing a letter to the witness) ? — It is. That is the letter ? — It is. At what time did you receive it, and from whom ? — On the 30th of July, Sunday morning, from the company’s messenger, who brought it to my residence in the country. You were in the country at that time, and not in the office? — Yes. On Sunday morning the company’s messenger brought out that letter to you ? — Yes. Cross-examined hy Mr. Whiteside. Mr. Purday, when you got that letter was that memorandum upon it ? — No. Pray what did you do with the letter when you got it first; did you take it anywhere? — I took it to the office on Monday morning. Did you send it anywhere ? — By order of the Board I sent it to Mr. Redington, the Under-Secretary of the Lord Lieutenant. At that time there was no memorandum upon it ? — I sent a copy of it ; he then required the original, and prior to its being sent he required it to be marked by the person who received it at the colliery. And it was by the desire of Mr. Redington that you got the memoran- dum on it ? — Yes. And then returned it back again ? — Yes. Is Mr. Redington alive ? — I don’t know, I am sure. Suh-Inspector Thomas Trant, sworn — examined hy Mr. Sausse. You are sub-inspector of police ? — Yes. Where were you stationed in July last? — In Callan. Do you remember proceeding in any direction from Callan on the 29th of July last? — Yes; I got orders from the county inspector of Kilkenny to proceed out with my company to Ballingarry Commons. Mr. Whiteside . — Do not tell us the orders that have been given you by various people, and soforth, if you please. THE QUEEN WILLIAM SMITH O’BEIEN. 413 Jfr. Sausse . — Did you proceed in that direction h — Yes. Just describe, when you arrived near Ballingarry, what occurred, or what you saw? — Yes. Go slowly. — After I had passed through Ballingarry Lord Chief Justice Doherty . — Begin by stating what hour you left Callan, and on what day? — On the 29th of July, somewhere between nine and ten o’clock on that day. What day in the week ? — Saturday, the 29th of July. Mr. Sausse . — About what time did you arrive near Ballingarry ? — Somewhere close to one ; between twelve and one I should say, at Ballingarry. State what number of men you had under your command ? — Forty-six. Just state slowly what occurred after you got to Ballingarry. — After I had passed through Ballingarry I observed crowds following me along the road, and crowds also passing to my left through the fields. I con- tinued on the road for about two miles. When I had advanced about two miles beyond Ballingarry, towards the Commons, I observed great crowds in my front, and also coming down from all the hills, and a shrill whistling. I met with a road to my right, and I judged it led to Kil- kenny; I inquired, and I found it led to Kilkenny. I wheeled the party up that road, expecting forces from Kilkenny. You wheeled the party up that road? — Yes; up to the right. We ascended the hill, I dare say nearly a mile. The people behind us, from Ballingarry, took the country upon the right when we took the road ; those that were going parallel with us fell into our rere ; and those coming across the Commons were to our left, and we were nearly sur- rounded. When we got to the slate house they were outflanking us. Mr. Whiteside. — It is utterly impossible for mortal man to take down what you say, you are speaking so quick. Lord Chief Justice Doherty . — Suppose you condense. The people weie closing round you? — Yes, my lord. Is that the import of it? — Yes, my lord. Mr. Whiteside I am content. Mr. Sausse . — Were you able to perceive whether any of the crowd you have described had any arms? — Yes; they were armed with pikes and guns. Could you form any estimate of the number ? — I could not exactly form an estimate of the number. Persons carrying guns in a trail you cannot see them at aU at a distance; where my eye rested I saw pikes or guns. You have stated that you saw this slated house ? — Yes. What did you do on seeing the slated house ? — I ordered the men, who were then marching in fours, to break and take possession of that house, and if refused admission to smash into it. It was about two fields from us, on the right. Mr. Whiteside — That house is to the right? — Yes. Mr. Sausse . — Did your men get up to that house ? — The men rushed for the house, and I followed them. As you were getting to the house, or at the time you gave the order that you mentioned, did you remark the people doing any thing? — Just 414 SPECIAL COMMISSION, CO. TIPPERARY. as I ordered tlie men to break a shot was fired ; I looked round and saw the smoke, with the man who fired it, about eighty or one hundred yards to my left. When you gave directions to your men to go to the house, in what direction was this crowd going, or any portion of it ? — They were behind us, and on each side ; completely outflanking us on each side. Were they walking or running? — Running, most of them — running I should say. In about two or three minutes they could have cut us off from the house; they could have got between us and the house; they were outflanking us completely. Was there any attempt made to cut you off from the house ? — They were making what speed they could, each flank behind us. Mr. Whiteside. — That is a mere matter of opinion. Mr. Sausse . — Did your men get into the house ? — Yes. J list describe what you did there ? — When I arrived at the house I was to the left of it; I turned my horse between the house and the stables; I then directed the men to turn in and to throw all the loose things they could up against the windows, and to secure the doors. After you had the house fastened in that wa}”", what next occurred ? — It was in the act of fastening that it was surrounded. I directed the men to take charge of every door and window. I was passing up stairs to see if the arrangements were made, when I heard a voice proceeding from the rere, calling for the officer. Lord Chief Justice Doherty . — What did you hear the voice from the rere say ? — I went to the lobby window ; a man put up his hand — that man was unarmed — and said, For God’s sake let there be no firing ; we want to make peace.” A Juror. — What? — We want to make peace. Mr. Sausse . — What next happened ? — I replied, if the people did not fire we would not fire ; but if a shot was fired from without we would fire as long as a cartridge or a man remained. I do not know whether I may be permitted to explain that. No; just state facts. What next happened, Mr. Trant? — I then gave orders Mr. Whiteside . — I must interpose here. What was said to you ? — My orders to the men To the man outside? — Nothing further with that man. I acted im- mediately. Mr. Sausse . — What next happened? — The next were the orders I gave the men. After you gave orders, what happened after that ? — A call was made to me up stairs ; the words were, “ Mr. O’Brien is below the words were, Tell Mr. Trant, Mr. O’Brien is here.” Lord Chief Justice Doherty . — Was that said by one of your own party within? — Yes, my lord; called up to me by one of my own party. Mr. Sausse . — Did you go down ? — I did. I went down to the window where I was informed he had been, but he had disappeared. What next occurred ? — The men told me of a proposal that had been made. What next occurred? — The directions I gave the men? No; what next occurred ? — I went up stairs again ; I was again called THE QUEEN v. WILLIAM SMITH O’BRIEN. 415 to, that Mr. O’Brien was there, and wished to see me. I then replied, if so, let him come round to the window to me. He did not come. What next happened ? — Immediately after that I heard a crash of stones and shots from without, and a window smashed. What was next done ? — I instantly gave orders to fire, and the firing commenced. How long did the firing continue *? — About an hour from first to last — from the first shot to the last. Were you able to see what was the effect of that firing? — When going on or after ? Either, when going on ? — Why, I saw after it had gone on for a considerable time, the people did not appear on our front or flanks, but still shooting over the wall as well as they could — they did not show themselves in the flanks. We had no command of the rere of that house; they cut us off from the rere view. Lord Chief Justice Doherty . — How many people were there about the house, are you able to say ? — I should say, when we were going up to the house, there were about sixty-five to one, or about three thousand. Mr. Justice Moore . — Were you able to form any opinion as to the arms ; what q[uantity of arms % — I could not form an opinion as to the quantity. Wherever my eye rested I saw arms; but I could not form an opinion as to the quantity. Mr. Sausse . — During the period that you say the firing was going on from the police, was there any firing from the outside ? — Oh, yes, they had possession of the house to our rere, and the command of the lobby window ; and there were some double barrels in the rere of the house. I could hear those double barrels rake our stairs, and go out of the lobby window. Mr. Whiteside . — Did you see them ? — I could hear them ; I could hear the double-barrelled guns quite plain. The shots from those double- barrelled guns raked the stairs and passed through the lobby window. Mr. Sausse . — Are you able to make any rough calculation of the number of persons who were armed with guns or pikes ? Mr. Whiteside. — I beg your pardon, Mr. Sausse, be bas already answered twice or tbrice all be can say on tbe subject, and I do not tbink he bas understated it. Mr. Sausse. — Very well. {To the witness .) — Do you remember while you were in the house, and after the firing had commenced, any policeman coming there ? — After the firing was over Head Constable Carroll, in private clothes, rode up to the house. Lord Chief Justice Doherty . — Before you leave that part of the case will you state what happened ? Were any shots fired at the house ? — Yes. Mr. Sausse. — He did state it, my lord. {To the witness .) — Mill you describe what happened during the firing ? — There were a great many shots fired, my lord. Lord Chief Justice Doherty. — Just get him to detail more par- ticularly. Mr. Whiteside. — Wbat be saw. 41 G SPECIAL COMMISSION, CO. TIPPERARY. Witness . — I heard throughout shots from without as well as from within. Lord Chief Justice Doherty . — Do you mean through the entire hour that you have spoken of? — During the entire time the firing was going on there were shots from without as well as from within, except the lat- ter part of it. I did not hear many for about five minutes before our last shots were fired. Mr, Sausse . — You say you first heard a number of stones crashing the windows, and shots fired from the outside ? What did you next hear coming from the outside ? — Shots from the outside. Were they fired in a volley, or were they dropping shots ? — They were dropping shots as they got an opportunity. They were not in volleys either from within or without. Lord Chief Justice Doherty , — What is your estimate — can you form any — of the number of shots fired from without? — It was impossible, from the part where I was; I could not calculate the parts where I was not ; I could not calculate the number of shots. The Lord Chief Justice . — Was the firing continuous, uninterrupted ? — For about half the time it was very constant firing from within, and with- out for about a third of the time. Lord Chief Justice Doherty . — Were there five, fifty, or one hundred shots can you safely say fired by the party without ? — I should suppose there must have been more than one hundred or two hundred either. Mr, Whiteside — His words are, my lord, that he should suppose. Witness . — I should suppose so; I cannot speak with any certainty as to their firing. A Juror . — Can you state the number of reports that you heard ? — Oh, it is perfectly impossible ; for one-third of the time the firing was incessant from within and without. A Juror . — Would you undertake to say that it did not exceed twenty ? — Indeed I would not. A Juror .' — Would you undertake to say that it exceeded one hundred ? — I should say it might have exceeded one hundred; the probability is, that their shots exceeded two hundred. I cannot go to any thing like certainty. The house is a large one ; and consider me in one part of the house, and shots going on both in front and in fiank — it is perfectly impossible to form any idea. Mr. Sausse . — After Carroll came up to you did you remain in the house ? — Yes. What did you do then ? — Am I to mention what Carroll came for? After you saw Carroll what did you do then ? — After I had seen Carroll I directed the house to be fortified. A Juror . — Who is Carroll? Mr. Sausse . — Who is Carroll ? — He is a constable that came to me from Kilkenny with a despatch, mounted on a horse, in plain clothes. A Juror . — This was after the firing ? — He arrived after the firing had ceased. A Juror . — How many shots did your party fire ? — The head constable will be able to answer that — Head Constable M^Donagh. I know I served over two hundred and thirty rounds to replace what had been fired. THE QUEEN 2 ;. WILLIAM SMITH O’BKIEN. 417 Mr. Whiteside. — That is, to the police 1 — Yes. Two hundred and thirty rounds to each man ? — No, two hundred and thirty rounds to the party. Mr. Sausse — After you fortified the house how long did you remain in the house h — I remained in the house upwards of two hours after the firing had ceased. I was upwards of two hours in it without a shot being fired from within or without; and about that time Mr. Cox’s party from Cashel arrived, about two hours and a quarter after. About what o’clock was it when Mr. Cox’s party arrived ? — About a quarter past five I saw three or four men advancing; I was looking through a loophole on the left hand, and I fired a signal shot for them, and that was the first shot I heard from the time we ceased firing, which was upwards of two hours before. Cross-examined hy Mr. Whiteside. You are in the police stationed at Callan ? — Yes. How many men are stationed at Callan ? — At present % Then, how many ? — Forty-six ; we had called in the out-stations. There were two or three men sick, and two orderlies left at home. That is not an answer ? — Forty-six I mentioned. That is quite enough ; be content with that answer. Is that the ordinary number in a police station, or is it an excessive number in a police-bar- rack ? — It would be an excessive number for a station like Callan, but the out-stations had been called in. Then, at an ordinary police station in the country, what might be the number? — The number for the Callan station would be twelve. Is there any station in this place that we have been talking of, where there would be as many as five hundred ? — No, I do not know of it. Is there any such thing, on your oath ? — No, I do not know of it. By virtue of your oath, and you must answer, do you not believe that there is no such thing in the county of Kilkenny ? — I do not believe that there is any such thing ; I have not known of any such number as five hundred men collected in one barrack. And the police stations are pretty well known throughout the country? —Yes. Was there not five hundred pounds’ reward offered for the arrest of 3Ir. O’Brien ? — I had not heard that that morning. What was the reward for ? — Since that time I have learned. Before this transaction ? — It had arrived at my place that morning. On that morning was not the proclamation, offering five hundred pounds, in point of fact, at Callan ? — It was, but not opened by me. It was after the proclamation arrived, offering five hundred pounds, that you marched to Ballingarry ? — It was. And you were directed to go to Ballingarry ? — I was. And you expected some other parties to be at Ballingarry ? — I did. And you had some object in going to Ballingarry ? — I went according to orders. What newspaper do you read ? — Various newspapers ; I subscribe for one. I am not going to pry into your private affairs, but do you read the Government paper. The Dublin Evening Post ? — I subscribe for that. That is what a Government official ought to do. Hid you get that 2 E 418 SPECIAL COMMISSION, CO. TIPPERAKY. paper that morning before you left home ; did you get the last Post. You did not read it 1 — I do not think that is the morning for it to come. Did you get Thursday’s Post ? — I suppose so ; indeed I really cannot answer that question ; I very often lend it, and do not read it until the evening, according as duties interfere. Was it not blazed all about the country that day, that there was a proclamation offering five hundred pounds for the arrest of Mr. O’Brien ? — I never heard it. Did you hear it that day ? — I did not hear it that day at all. When you saw the rest of the police, they did not tell you? — Yes, when Mr. Cox came up he said we had let five hundred pounds slip through our fingers. Were you not very sorry you had done so ? — I do not remember it ; it would not have been of the slightest consideration to me in the dis- charge of my duty. Would not Mr. Cox like to have had that in his fingers? — I think he would. And if you had marched up the hill you might have got it ? — Up what hill ? Up to the Commons, instead of going into that house ? — Yes. On this occasion, in justice to yourself, you have not underrated any of your services on that day, or the numbers of persons whom you saw? — Not willingly ; in the number I have laid down I have heard disin- terested persons agree. I have the greatest dislike to hear the opinions of disinterested persons not on the table; just give me your own judgment. You said three thousand persons. Is that a moderate calculation ? — I calculated from the ground covered, on the flanks and rere, there could not be less. Was there a thousand coming down from the Boulagh Commons? — I could not calculate ; I could see them coming in every direction except on my right. May I ask, in one direction w'ere there a thousand coming towards the mining concerns? Cannot you answer? — When I wheeled they came in all directions. I want you to be steady ; I do not want you to wheel at present. How many of the crowd that you have spoken of, that is, of the three thou- sand, according to the best of your belief and judgment, came from the collieries; the mining people you know? — From that direction I should say there were some hundreds. Was there a thousand; would you say there was a thousand ? — I should say there were some hundreds. Five hundred ? — Five or six hundred, or more. Was that five or six hundred all armed ? — I have mentioned before that it is impossible to ascertain the number of arms in a crowd ; if they are carrying guns at trail, you cannot see whether they are armed or not. Can you tell the difference in a crowd between women and men ? — Yes. Did you see any there ? — I don’t remember seeing any women about the house during the firing ; I saw three women about the house when the firing got slack. You did not shoot them ? — I gave orders to take care that they should not be shot. THE QUEEN y. WILLIAM SMITH O’BRIEN. 419 During all that firing of so many hundred shots, was there so much as a scrape on the fingers of any of the police ; were any of them injured? — Not one; I took care they should not be. I have the highest respect for your abilities; but you were not wounded ? — No, And you live to-day to tell the dangers that you passed through ? — ■ Yes. Did you see a proclamation posted up as garry ? — No. You will not swear it was not posted up at that very time, as you passed through Ballingarry ? — I will not. Will you swear it was not posted up ? — I cannot swear to what I did not see; it might be there unknown to me. Did you know what you were leaving your quarters for that morn- ing? — I did. From whom ? — From the written orders that I received. From whom? — From Mr. Blake, the County Inspector of Kilkenny. Was Mr. Blake out that morning? — I know he was out. Your orders were to go to Ballingarry Commons? — Yes. Up to the Commons ? — Yes. You knew Mr. O’Brien was there? — I did not know it of my own knowledge. It was by the orders I received ; it was for his arrest. You had a special order for his arrest? — It was in the nature of an order to advance on that place, where I was to be met by military and constables. For the express purpose of arresting Mr. O’Brien ? — Yes. Mr. Whiteside . — Your lordship heard that. He went out for the express purpose of arresting Mr. O’Brien. The Lord Chief Justice. — Yes. Mr. Whiteside . — I think you said you were about two miles from Boulagh Commons; were you? — From Ballingarry. You turned on that road which you thought led to Kilkenny? — Yes. How far might you have been from the Widow McCormack’s house? — - Perhaps an English mile. I never was in that country before or since in the daylight. To the best of your judgment, is it a mile, or half a mile, or what? — From what I have heard, I have heard that the Mining Company’s yard is somewhere about half a mile from where I turned to the right; from a quarter to half a mile. You say you saw three women ? — I did see three. Will you swear there were not three hundred ? — I did not see them. Did you see any children ? — I had children in the house. Did you see any children before you got into the house ? — I did not. Had you any children in the house? — Yes; they were very good hostages ; there were five. Had you any women ? — No. Did the mother of those children appear? — Yes; she did appear. Did she ask for her children ? — After the firing was over she came to inquire after her children. Whether they were dead or alive ? — I told her they were very well. Where did you put them? — They were in the corner of a bed, 2 E 2 you passed through Ballin- 420 SPECIAL COMMISSION, CO. TIPPERARY. Where were you yourself? — I was in a room on the left flank; I was in the room where the bed was. Was there a bed in that room? — There was ; and the children were there. Were you in the bed? — No. I am asking you a serious question. Will you swear that you did not lay down ? — I will. Did you sit down ? — Not at all. Did you take up a bed at all ? — No ; I took up a carbine. Was there any window in the room you were in? — To the left flank; it was the nearest point to the Commons. Here is a little plan {Jianding a plan to the witness ). — I will show it to you. At the back of the house there is but one window. These are the out-offices (pointing to the ptlan) ? — Yes. Here is the back of the house? — Yes. And the out-offices? — Yes. Was not the principal firing that you have talked of from the back of the house ? — I told you that I heard double barrels there. I could not say the principal firing was from the back, there was firing all round the house. Will you say, Captain Trant, that these double barrels were from the back of the house ? — I considered them double barrels from the manner in which they went ofi*. They were from the back of the house ? — Yes. And they were the best weapons in use there? — They are very good weapons. And they were fired all from the back of the house ? — I heard some fired there; there might have been some elsewhere. There was no little window on the bottom flight — on the lower founda- tion of the house — no window? — Under the lobby window there was a passage out to the yard ; I think there was a half-glass door. Just listen to my question. Was there any but one window at the back of that stone house ? — But one window. Was not that window on the second story ? — It was on the first land- ing as you go up the stairs. And any firing that was to injure you was to come in through that one window on the lobby, or on the second story, as I call it? — Yes; it commanded the passage up and down stairs. That was the way you were to be injured; through that? In point of fact, no one was injured. Did you observe many marks on the front of tlie house ? — I never looked at it. I never looked at the outside of the house at all. Is there any mark of a shot on the outside of the house ? — I never examined it. Did you not look, after the victory was won, to see whether there was the mark of a single shot on the outside of that house ? — I did not ; I have answered you several times. Now, in the front of the house there was a little wicket gate? — Yes, leading up the passage. And a little cabbage garden ? — Outside this wall there is, and there is another here. And two windows in the front ? — Two windows on the ground floor in the front. THE QUEEN WILLIAM SMITH O’BRIEN. 421 Large windows ? — Large windows on the ground floor in the front. And three above in the front? — Yes. Then there are three above and two below. Can you say whether there was less firing in the front ? — I cannot say. We must decide that matter. On your oath, according to the best of your belief and judgment, was there not more firing from the back and the back offices than from the front, from the outside ? — I could not answer that question ; a part of the time it was impossible to say whether the shots were from within or without, there were so many of them going. You went up stairs? — I passed up these stairs. What room were you in in front ? — The left flank, next the Commons. That is the second story ? — The second story. It would not be perfectly easy to kill you there ? — Perfectly easy, if they could do it. Ordinarily will a musket bullet penetrate a stone wall ? — Certainly not. It did not that day? — No. Were any policemen shot or wounded ? — Not one, nor hurt at all. Now, from your firing some people were killed? — And wounded. When the Widow McCormack came and asked for her children, did you let them out? — No. Did you see her there during the firing ? — No, I did not. But immediately after it ceased ? — She came to inquire after her children. J ust as the firing began, an unarmed man spoke to you, and asked for peace ? — Yes. And said they were trying to make peace ; did he not ? — Yes. And you answered him, and said, if there was no firing from without, there would be none from within? — Yes; but that if a shot was fired from without, we would return it while a shot or a man remained. W ell you say you heard a crash ? — Yes. What room were you in when you heard that crash ? — The left flank. That is in the front of the house ? — It is not ; it is on the side of the house, on the left flank. You will have that flank ? — I tell you that is where it is. Is it at the corner of the house ? — It is at the side of the house. While you were there was any thing done to that window ? — It was well smashed. At that time ? — I was not in that room all the time. The question is, before the firing began ; were you in the room before you heard any firing, or into which any stones were thrown while you were there ? — The crash was very great. That is a plain question ; you will come back to that general crash. In the room in which you were before the firing began, were there any stones thrown into that room ? — I could not say yes or no. My men in that room tell me I was struck on the breast with a stone, but I do not remember it; my mind was too busily occupied in making arrangements. Well, if you never get a severer wound than that, you will be covered with glory very easily. Who told you that ? — My own men. Pie told you, “Captain, you are wounded, though you do not know it.” Did you get the stone ? — No. Did you look for it?^ — No. Perhaps you have the stone? — No. 422 SPECIAL COMMISSION, CO. TIPPERAEY. Did you report that to your officer? — No, they told me a hall hit the wall hy my head, but I did not see it or examine it. I profess, on the whole, it seems to me to be a very mischievous pro- ceeding, as far as you are concerned. Can you tell me, Mr. Trant, did you see with your own eyes — do not tell me any thing your men told you — before there was any firing out of the house, did you see, into the room where you were standing, any stones thrown ? — I heard a crash, but I cannot tell where ; they came in there as well as in other places. I am asking you a matter of fact as to the room where you were standing. Was any thing thrown into that room before you fired ? — I could not answer for that room in particular ; I heard a general crash. But for your own room you cannot answer ? — No. Was it before or after the general crash that you were called down stairs by a man ? — Before it, by Mr. O’Brien ; before it. When you went down you passed by that window there ? — Yes ; there is another here which you have not described on that map. You went down to that room where the front window was ? — Yes. Into which a man could speak ? — Yes. And might be shot by your men inside ? — Yes. When you went down you were told Mr. O’Brien was gone ? — I did not see him. If a person at that window wanted to speak to a person at the second room, he would have to cross the front of the house ? — Yes, but he might do so with safety if the doors were shut. Both in passing the windows and repassing ? — There was an order at that time, from me to my men, not to fire unless fired upon, but if fired upon to fire at once without any order. You did not proclaim that to the people outside ? — I proclaimed it to my men. Not to the people outside ? — No, it was not necessary. After you came down to that room you then went up again ? — Yes. To your own room above? — Yes. And you looked out there ? — In fact, I was throwing something in a window, which was a small bag of meal, and I said that would stop a ball, and just at the moment I was told again he was below. Now, you went down down a second time? — No, I did not. You did not go down a second time? — No, I did not. When you said that the gentleman should come round to the window if he wanted to speak to you, what window did you mean ? — It is not described at all here (^referring to the plan ) — the window on that side. That was the window you meant ? — I would have answered him from the window above. From above? — Yes. And a person who heard that he was desired to go round to the other window, standing at the front window, might naturally expect that it was this front window on which he might stand and speak to those within ? — I cannot tell what he might suppose. You meant to speak to him from above? — That is what I said. I said if he wants me let him come round. And by coming round you could speak to him out of the second story window ? — Yes. You did not express that plainly? — I expressed what I said, “Come round to me.” THE QUEEN y. WILLIAM SMITH O’BRIEN. 423 And in point of fact, you did not see the gentleman until you saw him in Kilmainham yard ? — I did not see him until I saw him in Rilmainham yard. You were asked by one of their lordships, and by one of the jury, if you could tell the number of the shots that were fired — I am not asking about the police shots. Will you swear there were two hundred shots fired or fifty, now I am asking you ? — Indeed I would. How many of those were fired from the back of the house ? — I cannot answer. Eorty-five ? — I cannot answer you. There was a great many at the back ? — Yes, but it was impossible to distinguish, for a great portion of the time you could not tell whether it was within or without — a portion of them. Did it last half an hour ? — The brisk firing was about a third of the time, and for the next third it was very slack, and for the other third it was very odd shots. And these odd shots came from yourselves ? — Yes. That is, whenever any man appeared you fired at him'? — We never ceased to fire as long as we saw an enemy. After the general firing ceased if anybody appeared within range you fired at him ? — Yes. And that was continued after the general conflict had ceased ? — When- ever any of them were seen changing positions they were fired at. If we had ceased they might have renewed the conflict. They did not renew it, and you were two hours in that house without a shot being fired at all*? — Not a shot I heard for the two hours that elapsed. By-the-by, Mr. Trant, what did you do with the balls that were fired about the house '? — Indeed I did not look for them, or think about any of them. Did you not bring them home with you ? — I did not. Did you find any 1 — I don’t remember looking for one. On your oath, did you find one ? — I made no examination of the front of the house; I told you a dozen times I did not examine the front of the house. Did you find a ball ? — I did not examine it to find it. Did you. find a ball ”? — I did not find it sure, if I did not look for it. Having remained there two hours Captain Cox marched up, and you went away ? — In about two hours and a quarter, and he took away some of the pikes that remained on the ground. I did not ask you about the pikes. You are sworn to answer the questions on your oath. Can a man fire at you with a pike'? — No. You marched home without any further attack being made on you ? — Yes, and got home about eleven at night. The Widow MUormack, did you see her lately? — I did. Where did you see her ? — I saw her in the court-house. A Juror . — When you ordered the men to break, did you mean to run for the house ? — Decidedly, to take it as quickly as possible. Was that after the shot was fired on your left ? — About the very same time. It was about that time that you ordered them to run for the house ? — I think the shot was fired as they were breaking. Mr. Whiteside . — On your march there you told that gentleman it was 424 SPECIAL COMMISSION^ CO. TIPPERARY. a single shot? — Yes, I saw the smoke about the man who fired it, about eighty or one hundred yards to my left. I heard the explosion, and saw the smoke about the man. A Juror . — Did you know the man who lifted up his hands for peace ? — I did not; I never saw him since to my knowledge. Mr. Whiteside . — Of course there were unarmed men there ? — Yes, he was unarmed at the time. A Juror . — Was he a countryman ? — His appearance was that of a decent farmer or shopkeeper. In fact, w^as he dressed in frieze ? — No, he had a brown frock coat on. Cornelius Mahony, sworn — examined hy Mr. Lynch. Air. Fitzgerald . — Did you hear Mr. Trant’s evidence ? — No. Not any part of it ? — No. Mr. Lynch . — Are you in the police ? — Yes. Were you one of Mr. Trant’s party at Farinrory ? — Yes. Were you at the Widow McCormack’s house on that occasion ? — I was. After you got to the house with that party will you state into what part of the house you went ? — I was on the ground floor — the parlour. At which side was that parlour as you entered the house; on your left or right ? — On the left as I went in. Lord Chief Justice Doherty . — The left as you went in? — Yes. Air. Lynch . — How many were there with you of that party ? — Eight or ten. Tell the Court after you first went into the parlour what first occurred. — Why, the people all surrounded the house and shouted, then I observed a man with a military cap get out of a pasture field into the potatoes. Speak out loud. — I observed a man with a military cap getting out of a pasture field into the cabbage garden, and come by a ditch until he came to an out-office that was convenient to the window. Did any person come to the window on that occasion ? — There did. Now state who first came to the window on that occasion. — Why, there was a man came first to the window dressed with a flannel jacket on him. Was he armed ? — He was ; he was armed with a blunderbuss. Lord Chief Justice Doherty . — Armed with what ? — With a blunderbuss, my lord. Air Lynch . — Did that man say any thing to you ? — No, he asked us to give up our arms. Had there been at that time any firing ? — No. Did any person besides come to the window ? — There did. What happened after he had asked you to give up your arms ? — Mr. O’Brien came on the window then, immediately afterwards. Will you turn round and see whether you see Mr. O’Brien in court ? — Yes, I do. Where did Mr. O’Brien come to do you say? — He came to the window. Where did he stand ? — He stood on the stool of the window. At that time, can you tell whether the window was open or shut ? — The window was open ; the upper part of it was let down. When Mr. O’Brien so came and stood on the window-stool, did he say or do any thing ? — He did. State to the Court distinctly what it was Mr. O’Brien said. — He came THE QUEEN t-. WILLIAM SMITH O’BRIEN. 425 up and said that he was an Irishman and a soldier; and he came on the window, and asked us to give up our arms, and he would protect our lives, and he would give us five minutes The Lord Chief Justice . — Stop a moment. Now proceed ; just repeat what Mr. O’Brien said. He would give you what? — He said five minutes to give up our arms. Mr. Lynch . — Did he say any thing further then ? — No he did not ; we told him we would not. At that time had Mr. O’Brien, when he came to the window, any fire- arms ? — I did not see him when he came on the window with any fire- arms, but I saw him before that with a pistol. After he said that to you, where did you see Mr. O’Brien before with fire-arms ?-— I saw him out of a window ; I saw him lying underneath, lying in an out-otfice. The Lord Chief Justice . — Where was he when you saw him with fire- arms before? Mr. Lynch . — Where was he when you saw him with fire-arms ? — I saw him in a cabbage garden, in an out-office getting into a cabbage garden, and he stood there at the end of that house. Mr. Justice Moore . — How far was the cabbage garden from the window where you were? — Not more than about a perch, my lord; about a perch. Mr. Lynch. — What arms was it you saw with Mr. O’Brien ? — A pistol. How did he carry it ? — He had it in his hand. After Mr. O’Brien had so spoken to you on the window-stool, did Mr. O’Brien remain there, or did hegotiway? — He went away. Did you give any answer to Mr. O’Brien, or did any of your party ? — Yes, I did. Did you again see Mr. O’Brien ? — After that ? Yes ? — No, I did not ; I could not say that I saw him ; I may have seen him, but I could not swear to seeing him after. Did you hear Mr. O’Brien, when he left the window, say any thing to the people ? — I heard him speak to the people, but I did not know what he said to them. Up to the time of Mr. O’Brien having left the window, had there been any firing at all ? — The firing commenced immediately after he left the window. Up to the time of his leaving the window, there had been no firing ? — No ; the firing commenced After Mr. O’Brien had left the window, did you hear anything said by any one ? — No. Mr. Whiteside . — Pardon me, that is a question that you have no right to put in that way, if one of the pohce spoke to the other. Mr. Lynch . — Did you hear any thing outside ? — I did not ; I heard him speak, but I could not say what it was. The Lord Chief Justice . — I have not heard either question or answer. Mr. Lynch . — I asked, my lord, if after Mr. O’Brien had left the window he heard Mr. O’Brien say any thing outside ; he says he heard Mr. O’Brien say something. 426 SPECIAL COMMISSION, CO. TIPPERARY. {To the witness .) — How soon after that did any firing commence 1 The Lord Chief Justice . — He says immediately afterwards. Mr. Lynch . — Just state to the Court how the firing first commenced, and from where % — It commenced from the outside first. Now will you just detail what was done after that; just detail the transactions that occurred, both without and on your part, after Mr. O’Brien went away ; just state what was done % — The firing commenced outside then, and up stairs ; they fired their return fire, and so did we below. Was any thing else done from the outside except the firing ? — There were stones thrown. Lord Chief Justice Doherty — After Mr. O’Brien went away, in a very short time the firing commenced % — The firing commenced the moment he got off the window-stool. Are you able to say was it one shot, or two shots, or how many shots % — I could not say how many shots. Before you fired ? — I could not say. Was there more than one % — There was. W as it a volley % — A volley. Are you able to say how many shots % — I could not. But a volley you say % — Yes, a volley, but I could not say the number. Mr. Lynch . — You say stones were thrown ? — There were. Did those stones hit any one? — No, they did not. Then after that volley was so fired at you, did you fire from the house? — We did. The Lord Chief Justice . — What were the stones thrown at ? — They were thrown in at the window. Mr. Jjynch . — Did they come in through the window ? — They did ; they struck the window. Were there many stones thrown, as well as shots fired ? — Indeed there was. Ij or d Chief Justice Doherty . — Did the window where you were con- tinue in the same state as it was when the person spoke at it ? — It was. That was lying down ? — Yes. Did the stones come in through that open window ? — Yes, but not at the window where Mr. O’Brien spoke. At the end window? — Yes. Mr. Whiteside . — Now speak of nothing but what you saw yourself. Mr. Lynch . — Did you see any stones come in through the other win- dow of the room you were in — not the window at which Mr. O’Brien had spoken ? Mr. Whiteside . — That is what I object to. Mr. Lynch . — Do not tell me any thing but that which you saw yourself. Lord Chief Justice Doherty . — He was in a room with two windows, and he said that none came in at the window at which Mr. O’Brien was. ( To the witness .) — Do not tell us any thing but that which you saw yourself. Mr. Whiteside . — Just so, my lord. Mr. Lynch . — Did you see any stones come in through the other win- dow ? — No. THE QUEEN i-. WILLIAM SMITH O’BRIEN. 427 Then you say your party in this house fired out on being fired on ? — Yes. Mr. Justice Moore . — Have you a plan ? Mr. Lynch. — Yes, my lord. Lord Chief Justice Doherty . — Would it interrupt you if I put a question, Mr. Lynch ? Mr. Lynch. — No, my lord. Lord Chief Justice Doherty . — On your oath, did you see any stones come into that room at all 1 — Yes. You saw them yourselH — Yes. Are you able to tell through which of the windows — the one at the front, or the one at the end ? — The one at the end. Mr. Whiteside . — Perhaps your lordship would ask him when he saw it. Lord Chief Justice Doherty . — Was that before a shot was fired by your party "I — It was. A Juror . — Did you see how many stones came in'? — No; there was one came in, but there were several thrown. Lord Chief Justice Doherty — Was there firing at the side at the same time? — No; one stone first. How soon after the stone was the firing? — I could not exactly say; about five minutes I should say. A Juror . — Did you see any balls come in? — No; I did not. In the interval of five minutes, between the stone and the shots, was any shot fired out of the house ? — No. Mr. Lynch . — At that time, before the firing, did you hear any thing striking any of the other windows in the rest of the house ? — No; I did not. After your party had commenced firing, how long did the firing con- tinue ? — I could not exactly say. About how long ? — I think about a quarter of an hour, or more, of continued firing. During that time, can you state that there was firing from the outside of the house upon your party ? — There was. Do you mean continued firing during that quarter of an hour ? — There was. Then, after that quarter of an hour, did your party still continue firing; did firing take place? — It did. Were there still shots fired from the outside of the house? — There were. A Juror . — State how you know that to be the case. Mr. Lynch . — Did you hear it, or see it ? — I saw them firing. W’^here were you placed during the time of the firing ? — I was by the window. A Juror . — Did you see nothing more about the firing ? — That was all. A flash in the pan ? — Yes. Did you see a musket directed? — Yes. Directed exactly at the house ? — Yes. At different parts of the house ? Mr. Lynch . — State how many fire-arms you observed about the house 428 SPECIAL COMMISSION, CO. TIPPERARY. on the occasion — at first, before the firing commenced ? — Why, I could not exactly say. Did you see a large or a small number ? — I saw a small number of arms tliere — what I saw myself. They were all surrounding the house. What I could see myself was at the one window. Did you continue in that house as long as Mr. Trant remained ? — I did ; the same time. Did you yourself observe, among the people around that house, any respectably dressed people ? — Why, I did not ; what I saw of them, they were not respectably dressed. Did you observe, during the whole time, any thing except out of the one window ? — That was all. During the whole time were you at the front window in the room ? — I was at both windows. A Juror . — Were there any bars to those windows'? — No; there were not. How many was your party in the room ? Lord Chief Justice Doherty . — He said ten. A Juror . — Do you know the difference in the sound of the firing of a company, and the firing of a section; you have been some time in the police? — Yes. Would you know the difference between the sound that a section and a company would make firing ? — I would. Was the volley you heard louder than the firing of a section, and was it the noise made by the firing of a company ? — I could not exactly state that; it was a large report. The Lord Chief Justice. — A large what? — There was a large report; a slapping volley. A Juror . — Was that more than would be the report of the firing of a section, suppose we say the section consisted of twelve men ? — It was more than that. Was it as much as if it consisted of fifty men ? — I could not exactly say. How many shots were fired at that time? — I could not say; they were fired at every side of the house. You said you saw the guns ? — Yes; I did. What condition were the parties in ? — They were scattered every way. What was between you and the party firing — was it a ditch or a wall ? — They fired from a wall. Cross-examined hy Mr. Fitzgerald. Where did you come from that morning ? — From Callan. You passed through Ballingarry ? — Yes. What time did you pass through Ballingarry ? — I think it was about one o’clock. Did you see the proclamation for Mr. O’Brien’s arrest there ? — That morning ? Yes? — I did not ; I cannot say I saw it that morning. Did you hear of it before you marched ? — No. On your march ? — No. Had you heard of it at all before you were at the Widow McCormack’s THE QUEEN v. WILLIAM SMITH O’BRIEN. 429 house? — No, I did not hear that there was a proclamation out at all for Mr. O’Brien that day. The Lord Chief Justice — What do you say about the proclamation ? — He is asking me if I knew there was a proclamation for Mr. Smith O’Brien — and I say I did not. Mr. Fitzgerald . — Did you hear of any reward for taking Mr. O’Brien ? — On that day ? Either that day or before ? — I did not. When did you hear it first ? — The day after that, or that evening, I am not certain which. You positively swear you did not know any thing about it before that ? — No, I did not. Were you fired on during your march ? — Yes. Where ? — Getting up to Widow MUormack’s house. Who fired on you ? — The mob, I suppose. How many shots ? — I heard but one. That you call being fired on. Was anybody killed ? — No, indeed there was not. Did you see the person who fired that shot? — No. At which side was the shot fired ? — Behind us. At the back ? — Yes. Now, about this Widow MUormack’s house — the front of the house looks towards Ballingarry ? — No, it does not. In what direction does it look ? — It looks towards Kilkenny partly. The back, then, does that look towards the Commons ? — It does. Towards the Commons ? — Yes. There are four windows in the front of the house — two on the ground floor and two above ? — I cannot say how many windows there are, except in the room I myself was in. You were in the parlour on the left-hand side of the door ? — Yes ; I was not stationed in any part of the house. Did you remain in that room during the firing? — Yes, I did. Then, that is stationed ? — Yes. There were two windows, as I understand you, in that room ? — There was. One at the front and one at the side ? — Yes. At which of the windows were you when you heard the firing ? That was at the front window. Was it at that time that you say you saw the muskets presented ? — Yes. How many panes of glass were broken in that window ? — I think they were all. All the panes — do you swear that ? — I could not swear positively. Will you swear that three of them were broke ? — I will. Positively ? — I will. How many panes of glass were broken in the other window ? — I could not say. Were there more than one? — Indeed there was. Was there more than one pane of glass broken in the other window ? I think there was. Now, when I speak of the front window, the window of which I speak is the window at the left-hand side of the door, immediately next to the door ? — Yes. 430 SPECIAL COMMISSION, CO. TIPPERARY. You will swear that every pane of glass in that window was broken ? — ■ I will not swear every one. Will you swear that there were more than three panes of glass broken in that window ? — I will, positively. Lord Chief Justice Doherty . — The witness spoke of the room he was in, as the window on the left-hand side of the hall-door, and you are now questioning him as to the window on the right- hand side. Mr, Fitzgerald . — He said the left-hand side as he entered the hall-door. Lord Chief Justice Doherty . — It was to prevent you from being under any mistake. Mr. Fitzgerald . — I understood this man as being in the same room during the whole time. I do not know whether I have rightly taken his examination. Lord Chief Justice Doherty. — Yes. Mr. Fitzgerald . — From the sound of the firing could you say whether it came from the back or the front of the house principally ? — I could not say ; I think it came from the back of the house. You could not say it came more from one than from the other 1 — I could not. And how long did the firing last altogether — I am not speaking of continued firing ? — About a quarter of an hour at best. Was a shot fired after a quarter of an hour ? — No, I did not hear it. After a quarter of an hour you heard no shot fired from the outside ? Did the police fire after that quarter of an hour ? — They did not ; the people were not about the house — they went away. Nobody appeared after that quarter of an hour ? — No. I think you told Mr. Lynch you found one of the bullets in that room ? — I found no bullets in it. Was Mr. Trant very frequently in that room during that quarter of an hour — He was not. Was he there at all 1 — He was. How many times 1 — I noticed him once myself. Not more than once yourself that you noticed? — No. The time that you saw Mr. Trant in the room was that the time that he had been sent for; had he been sent for to come into the room? — It was. Was it before the firing commenced ? — I am not sure whether it was before the firing commenced. You are not sure ? — I am not. You have not a very distinct recollection of what occurred? — Indeed I have not; if I had I would have more to tell. Were there shutters to the windows ? — There were. Were they closed? — No. You fired yourself, I suppose ? — I will not answer that. Oh! you are quite safe. The police fired, of course? — Yes. I only wish to know from which window you fired ; the Court will tell you you are perfectly safe in answering. Mr. Whiteside . — The Attorney- General wiU not prosecute you. THE QUEEN WILLIAM SMITH O’BRIEN. 431 Witness . — I fired from tlie front window. Mr. Fitzgerald . — Yon saw from the front window, you say, a good many people ? — Yes. Not many armed — I did not. Did you see many women and children ? — Yes. Now, in the crowd on the way did you see many children and women ? — I did. The Lord Chief Justice . — Did you see them there during the firing? — I did not see them during the firing ; I saw them before the firing com- menced there. Mr. Fitzgerald . — About the house? — Yes. And on the march? — Yes. A Juror . — Do you mean the children belonging to the house? — Noj the children belonging to the house were inside of it. There was a crowd outside? — Yes; there was a crowd in the field about the house. Mr. Fitzgerald . — None of your men were wounded ? — Not one. And you were in the front of the window ? — Yes. And that was open ? — Yes. A Juror . — Was there any thing to prevent balls fired from the outside from getting in ? — Not a hap’orth. In fact, there was no mark of balls, and but one stone ? — Yes. Air. Whiteside . — Was Moran in your room ? — He was. A Juror . — You fired out of the window? — Yes. Did you fire at any one ? — I did fire at random. You saw people when you fired? — There were. And they were firing? — Yes. Mr, Whiteside . — This man, Moran, was in the room with you ? — Yes. John Aforan, sworn — examined hy the Attorney-General. Where were you stationed in the month of July last? — In Callan. Were you one of the party who went with Mr. Trant to Ballingarry and the Commons ? — I was. Were you in the Widow MUormack’s house ? — ^I was. What room were you in ? — I was on the ground floor in the parlour, the room to the left of the hall-door going in. As soon as you got in to that room what first occurred from the outside ? — I saw several people collecting on the wall that was to the front of the gable of the house, that is, a little to the right of the house. Do you know Mr. O’Brien ? — Yes, I do. Did you see him while you were in the room, in the parlour ? — I did. Now, where was Mr. O’Brien when you first saw him? — He had his back against the wall between the gable and the window on the outside. Against the wall of what? — Against the wall of the house in the front of the house ; the gable of the house is here, suppose, and he turned round; here is the wall at the front of the house, and he came half-way between this gable, and his back against the front wall. His back against the front wall of the house? — Yes. Did Mr. O’Brien say or do any thing while he was there ? — Why, I cannot exactly say at that time; I did not hear him speak at that time. Could you observe at that time whether Mr. O’Brien had any arms ? — Not at that time, I could not. 432 SPECIAL COMMISSION, CO. TIPPERARY. When next did you see Mr. O’Brien, or what part of the transaction did you see him next in ? — Why, immediately after he put his back to the wall, one of the men went up stairs to tell Mr. Trant that Mr. O’Brien was below; we heard it rumoured by the people outside that Mr. O’Brien was below. Immediately on Mr. Trant coming down he had disappeared from the place I saw him in. Well, did he appear there while Mr. Trant was in the room ? — No; he did not. After Mr. Trant had left that room or parlour, did you see Mr. O’Brien? — Yes; he came and planted himself in the same position he was in before. That is, against the wall ? — Yes. Did he say or do any thing at that time ? — No. What next did you see him do or hear him say ? — He came up to the window. What part of the window did he come to ? — In the very front of the window. Did he stand on the ground, or did he get up on the window-stool ? — No; he got up on the window-stool. When Mr. O’Brien got on the window-stool what did he do or say ? — The first expression he made use of was, ‘‘We are all Irishmen, we are all Irishmen.” Well? — “We are all Irishmen, boys. 1 am Smith O’Brien, as good a soldier as any of you ;” that is the expression he made use of. What did he say next after that ? — He demanded our arms after that. What answer did he get when he demanded the arms ? — The answer he got was, I was one of the men myself who said it, that we would forfeit our lives before we would give up our arms. When you gave him that answer what did he say or do ? — He certainly seemed disappointed. Did he say any thing, did he remain on the window-stool or did he go away? — I heard him get down off the window-stool, and I heard him make use of the expression, “ Slash away, boys, and slaughter the whole of them.” The Prisoner. — Don’t you know you are swearing falsely when you are swearing that? — No, sir, I do not. The Attorney -General . — How far was Mr. O’Brien from the window when he said that ? — I do not think he could be from the window. Was he off the window-stool? — He could not be. The Prisoner . — Turn round and let me see your face. The Attorney-General . — Was he off the window-stool at the time ? — ^ He had one foot off the window-stool and the other on it at the time I heard him say that. Did any thing occur immediately after you heard him use that expression ? — Immediately after that I heard shots. From the inside or the outside? — They must have been from the outside. From the report could you tell whether the shots were from the out- side ? — From the report it must have been from the outside. How soon after you heard this expression used by Mr. O’Brien, did you hear the first shots fired ? — In two minutes after or a minute after. Could you judge as to the number of shots you heard, as to what THE QUEEN i;. WILLIAM SMITH O’BRIEN. 433 number ? — I could not say what number when the firing commenced or where the shots proceeded from. Was the first shot you heard the shot of a single gun, or were there a number of shots ? — There were one, two, three, or four shots commenced together ; I could not exactly say. , Did you see or perceive any stones thrown into the room where you were ? — Yes, there were several attempts made at throwing stones into the room where I was. Mr. Whiteside. — The question was, did you see stones thrown at you? You answer that by saying ‘‘ attempts.” The Attorney-General . — What do you call throwing stones ? — I saw persons pelt; every man who was loaded when he fired would jump in his place and take a shot out of the window. And was it on one of these occasions that you saw the man pelting stones ? — Yes it was. Now, according to your judgment, how long did the firing continue ? — Why I should think at intervals for three quarters of an hour. I could not exactly say which, three quarters of an hour or an hour. You said something about intervals ? — At intervals the shots were fired. Now, while this firing was going on, did you actually see any number of men with arms outside in the act of firing ? — I did certainly see a great number of men armed with guns, pikes, and pitchforks. I am talking of fire-arms — guns? — Yes, I did. Did you see any man in the act of firing at or towards the house from the outside ? — No, I did not ; I saw one man make an attempt, but he is not present. You say you saw one man make an attempt ? — Yes. What do you call making an attempt ? — By putting a gun over the wall that was in the front of the house, and were it not that he was too low for the wall he would have fired in on us ; the muzzle of the gun did not come exactly on a level to the window I was in. Was that gun discharged? — Not at that time; it might have been afterwards. Could you say how many men you saw outside with guns in their hands ? — I calculate pikes and all I am not talking of pikes, I am talking of fire-arms ; first with guns ? — There were thirty or forty at all events. Mr. Whiteside . — Thirty or forty what ? — Armed with guns. The Attorney- General. — That he saw himself. {To the witness .) — Did you see many people armed with pikes ? — I did, a great number. Could you say what number ; how many about the house ? — Why in all I think there were about five hundred, armed with pikes, pitchforks, and guns, about the house. Now before you and your party had got into the house, was there a shot fired at all ? — There was. Whereabouts was that shot fired, or how long before you got into the house ? — I think it was fired ten minutes before we got into the house ; about ten minutes. Where were you when that shot was fired ? — Coming up the Farin- rory road. 434 SPECIAL COMMISSION, CO. TIPPERARY. This gentleman of whom you have spoken ; is this Mr. O’Brien who is here? — Yes, that is Mr. O’Brien {identifying the prisoner). Now you say you saw him in Dublin, in the gaol in Kilmainham ; did you identify any other person that you saw on that occasion about the house ? — I did. Mr. Whiteside . — I object to that question. I object to the acts of the witness done with reference to any other of the prisoners being evidence against Mr. O’Brien. The Attorney-General . — Do you know any stranger to you that you saw afterwards ? — Yes. Who was it ? — A man who called himself O’Donohoe. Cross-examined by Mr. Whiteside. The last question of the Attorney-General, in answer to which you have stated that O’Donohoe was there, is as true as any thing you have sworn here to-day? — Yes, certainly. You identified him point blank in Dublin ? — I did. And you have no doubt on the matter, that O’Donohoe was there ? — Not the least. And anybody that swears the reverse will swear what is false? — They would. I am satisfied of that. You would not swear against a man that you were not certain of? — Never. In how many months after did you swear to the words that you have used in your information. Was it not on the Gth of September that your information was sworn ? — I could not say. Captain Trant is your officer ? — Yes. When you are in the barrack, can you speak as loud as you do to- day ? — I can. When honest men are speaking truth, they should speak firmly ; and you.are speaking against human life. You left Callan that day at what hour ? — About half-past nine o’clock ; I could not exactly state the hour. You had forty-six armed men with you ? — Yes, forty-six. And expected to meet a great number of other armed men, did you not — police ? — Yes, we certainly expected to meet them. You were all out that day ? — Yes. And other parties were out, who at one time or other would be there ? — We expected them there. You say there was one shot fired ; where was that one shot ? — When we turned ofiP the road leading to this house. Was any one hit with that shot ; I suppose not ? — No. Were there many people near you when that shot was fired ? — There were forty-five other constables. Were there many people ? — Which people ? Country people. How many people ? — There was a number of people following in our rear. How close ? — In our rear about three hundred yards, I think. Was there any other shot but that fired ?—There was another in crossing a ditch. There were two shots? — Yes. THE QUEEN v. WILLIAM SMITH O’BRIEN. 435 If it was stated that there were not two shots, that would be a mis- take ? — There were two shots fired. Hid neither of them liif? — None of them hit. Were the shots fired behind you? — Yes. And who fired them you cannot tell ? — No. Or at whom they were fired you cannot tell ? — No. But you know nobody was hurt or wounded ? — No. You got into the house ? — Yes. You had four children in the house ? — Yes, there were. And the mother of those children was fiye. The mother of those children was outside ? — Yes. You took those four children with the view, of course, of protecting yourselves ? — Yes. And you kept them there, and you would not give them out ? — After we had the door barricaded. She was outside? — She was. Wishing, of course, for the safety of her children? — Yes. Were there not other women there ? — I saw several women there just before the firing, but it was not in the line of making peace ; some of the women Perhaps they were the ringleaders ? — I certainly saw some of them gathering stones. Would you not shoot a woman if you saw her gathering stones ? — I would, if the firing was going on.« Would you have shot a child? — I do not know. Would you have shot all the women there if they had been pelting stones ? — If they deserved it, certainly. You would have shot them all, one after the other ; you admit that ? — I do, certainly. And you saw women there ? — Yes. Hid you see the Widow MUormack outside ? — Yes. Hid you see her talking to Mr. O’Brien ? — I did not. You would have shot her if you could. Now, the height of this wall, you told one of their lordships, or I rather think my learned friend asked about this stone wall; and you said that a man resting his gun level on the wall could not fire in through an open window ; what is the height of the stone wall — that is, in through the parlour window ? — It is near five feet high. And the window, how far is it from the wall? — It is not more than six yards. And if a man rested a gun on the wall opposite the window, you swear you think he could not fire in through the window ? — He could if he stood on his toes ; it is possible he might have fired in through the window. Is not the sill of the window lower than the wall ? — It is. So that it is possible for a man resting his gun on the wall to fire in through a window that is below him ? — Yes. And you were all at that window ? — I was at that window. Was not the other constable at that window ? — He was. Tell me the other men by name that were there? — I could not exactly. Tell me to the best of your ability ? — Rafferty, Robinson, Moore, Byrne, Toner 2 F 2 43G SPECIAL COMMISSION, CO. TIPPERARY. That is enough. Where was your officer when you went into the room? You barricaded the house? — We had not time to barricade the room I was posted at. Your officer was at the back of the house ; he was not in your room ? — He was up stairs. The Lord Chief Justice . — Just repeat tLe last question. Mr. Whiteside . — You cannot tell me where your officer was? — I could not say exactly ; to the best of my opinion he was up stairs. He was not in your room ? — He was not. You are not unwell; try and speak out. Did he come into your room more than once ? — He did ; twice or three times. You are quite sure that he was in the room ? — Yes; I am certain that he was — three, four, five, or six times. He was in that room during the firing ? — During the firing he was up stairs making arrangements for his own protection. The Lord Chief Justice . — Was he there more than once during the firing ? — He did not come in, during the firing, into the room where I was at all. Mr. Whiteside . — Did he come in before the firing began ? — He did ; we were engaged in such a way in barricading the house that I could not tell you which after the firing ceased. After the first quarter of an hour did Mr. Trant come into the room? — I could not answer that. Did he come into the room after that ? — After the firing ceased. Three or four times ? — He did. Now before Mr. Trant came into the room the first time, did anybody appear at the window, except Mr. O’Brien, saying they wished to make peace? — No person had appeared at the window before Mr. Trant came down. Did anybody appear at the window before Mr. Trant came down, saying they wished to make peace ; did such a thing occur ? — It might. You did not hear it, nor see it ? — Nor see it. The Lord Chief Justice . — As I understood that person’s statement, he appeared at the rear of the house, at the lobby window. Mr. Whiteside. — Yes, my lord. {To the witness .) — Did you read your informations to-day? — No; nor since I was sworn in Dublin. This window at which Mr. O’Brien came to speak to the men inside was open; was it not? — There was the shutter closed. Was the window open or shut ? — He certainly came to the window, and gave the shutter a push in. Then it was open ? — The glass was open at the time, on the upper part. And there was a shutter up before that? — The shutter was across; it was not exactly shut. Was it exactly open? — It was not exactly; it was between half and half. When Mr. O’Brien came to the window the shutter was half open and half closed? — Yes; he shoved it in, and could do that from the outside. THE QUEEN i-. WILLIAM SMITH O’BRIEN. 437 Then his person was exposed 1 — He was fully exposed. He was between you, who were inside, and the people who were out- side ? — He was. And had either party fired at that time he must have been shot dead ; is not that so ? — Certainly so. And just at that time, you are perfectly certain that Mr. O’Brien appeared, and he first spoke civilly to you? — Yes. Courteously, like a gentleman ? — He did. And you said you would call the ofiicer to him? — Yes; Mr. Trant. You said you would call the officer to him ? — Yes. And then he wished you to give up your arms. Did he say he would protect your lives if you would give up your arms? — We said we could not give up our arms. You were one of the men ? — Yes. And he immediately said, in a loud clear voice, to the people, “Slash away, boys, and slaughter them all;” did he not? — Yes. Was he looking you in the face and pointing to the people outside ? — Certainly; on his coming up to the window he put back his hand to push back the crowd. When he spoke that, did he turn round and address the people, and say, “Slash away?” — No; he was getting up; there was a number round about him. Of armed people ? — Yes. With guns ? — With blunderbusses. Inside the wall, were they? Will you swear that? — Yes. You swear that positively ? — Yes. And the moment he said that they fired in ? — They fired injwhen the words “ slash away” were used. Fired with their blunderbusses into your room ? — Not my room. Did you fire out directly then ? — Not exactly at that time; till I heard shots I did not fire. But the people who were between the window and the wall, with the blunderbusses, fired the moment Mr. O’Brien spoke? — No; I did not say that. If he remained at the window he would have been shot. Did they fire when he told them ? — I cannot say; I heard shots. Did the people with the blunderbusses fire ? — I cannot say. Will you say they did ? — They might have fired. On your oath, do you not know that nobody fired at that time; on your oath, do you not know it ? — In two minutes. On your oath, do you not know that nobody fired? — No. When he said “ Slash away, boys, and slaughter them all ?” — I heard shots. Will you swear, when he spoke those words, anybody fired into your window ? — There was no shot fired into our window. Had you the power to shoot Mr. O’Brien, to shoot him dead, when he said that ? — I had. Had you it in your power to shoot him when the shots were fired ? — I could; if he had come within my reach I would have shot him. You would have shot him ? — Certainly. And he was fronting the window looking at you when he said that ? — No; he had one foot on the window-stool and one off. One foot on the window-stool and one oflf? — My bayonet was only six inches from his breast. He was armed with a pistol. 438 SPECIAL COMMISSION, CO. TIPPERARY. Could you shoot a man six inches from you — that is my question — could you ? — I could. Did you shoot him ? — No, I did not, because I did not hear him make use You did not hear him say “ Slash away, boys, and slaughter them all ?” — I did hear him say that. What was it you were going to say ? — It does not strike me. At the time he said “ Slash away, boys, and slaughter them all,” he was going down off the window. Six inches from you ? — The bayonet was not more than six inches from him. A Juror . — Did you fire at all ? — I did. What did you fire at ?“At a man. Was it at the man who put his musket over the wall ? — -No ; it was not. At another man ? — It was the man that was exposed on the window facing the gable of the house. It was to the left of the window. I saw a man in the act of pelting stones, and I fired at him. Another Juror . — What prevented you firing at Mr. O’Brien ? — I had not time to fire after I heard the words “ Slash away, boys, and slaughter them all.” He was within six inches of your bayonet at the moment % — Yes. With respect to those words of Mr. O’Brien, where was the other constable who was examined before, at the time that he said that % — He was in the room. How near to you % — I could not say. You say Mr. O’Brien’s foot was on the window-stool? — It was. And that constable was in the window ? — He was in the room along with me. Is it a large room ? — Yes. Did Mr. O’Brien say that in a loud voice ? — Yes. Another Juror . — Were you the nearest man to the window of any in the room ? — Yes. Were the words said in such a tone and loud voice that they could be heard in all parts of the room ? — I do not know. The window was open, you know ? — There was only part of it open, the upper end where Mr. O’Brien put in his hand. What height is the window-stool from the ground ? — The window- stool cannot be five feet. Mr. Whiteside . — I understood the last witness to say he was at the same window, if your lordship will look at your notes. Witness . — He was at the same window. A Juror. — Yes; that is sworn, Arthur Robinson, sworn — examined hy the Solicitor-General. Mr. Whiteside . — Did you hear the examination of the last witness ? — No. None of it at all ? — No. The Solicitor-General — Your name is Arthur Robinson ? — Yes. Were you one of Mr. Trant’s party of police that was at Earinrory on the 29th of July last? — Yes. THE QUEEN i;. WILLIAM SMITH O’BHIEN. 430 Were you stationed at the house ? — Yes. Hid you get into the house ? — Yes. As you entered the house in what room were you placed 1 — In the under room. On the ground floor? — Yes. In which room as you enter the hall 1 — To the left as I went in. Mr. Justice Moore That is the same room as the other ? The Solicitor- General. — Yes, my lord. {To the witness .) — Ho you know constable Mahony ? — I do. And Moran ? — Yes. Were they in the same room with you ? — Moran was. Before any firing commenced, while you were put into that room, did any gentleman come to the window? — Yes. Ho you seeihe gentleman in court; would you know him again? — This is the' gentleman {pointing to the prisoner). Tell the jury, Bobinson, exactly what occurred when the gentleman came to the window. First, before you do that, I want to ask you, with respect to the position of this window, how was it situated — was any portion of the window open ? — There was. Hid the window rise from the bottom, or let down from the top ? — From the top, I think, it came down. About how near was the window-stool to the ground outside ? — I could not exactly say. About ? — I think within three feet of the ground. When the gentleman came to the window, was any part of the sash open? — Yes; there was. Was it the upper sash? — I think so. Well, when he came to the window, state exactly what occurred — what you saw the gentleman do ? — He came to the window-sill and leaned on the sash of the window, and put out his hand. Hid he get on the window-stool ? — I think he was on the window- stool outside, and he put his hand over the sash of the window and said that we were all Irishmen, and all he wanted was our arms, and he would give us five minutes to give them up. Was there a second window in that room ? — Yes; there was. When he said that, did you, or any of the police with you, make any reply ? — Me and another policeman who was by my side. Who was he ? — Moran ; he said we could not, and would not give them up; we would forfeit our lives first. Hid the gentleman say or do any thing else then ? — After we refused giving him the arms, on getting down from the window, he said “ Slash away ” After who getting from the window ? — After Mr. Smith O’Brien ; he gave the word, “ Slash away, boys, and slaughter the whole of them.” A Juror . — What did you understand O’Brien to mean by that, that you should fire on the country people, or the country people fire on you ? — That the country people should fire on us, I understood by it. The Solicitor-General . — Hid any thing then take place ? — The firing immediately commenced outside. At the time Mr. O’Brien returned from the window were you looking out in that direction ? — Yes. Are you able to tell the jury whether you observed 440 SPECIAL COxMMISSION, CO. TIPPERAKY. The Lord Chief Justice . — Repeat the question. The Solicitor-General . — At the time Mr. O’Brien retired from the window you were looking out % — Yes. Did you see any persons about the house % — Yes. Are you able to say whether those persons so about the house were armed or not % — The greater part of them were. Mr. Justice Moore . — Does he mean about the house, or inside the wall or outside the wall ? The Solicitor-General . — Was there an outer wall in the front of the house ? — There was. Were any of the people you saw inside the wall or outside? — They were both inside and outside. You said the firing commenced from the outside? — Yes. Did you see that yourself ? — The firing ? Yes ? — Yes. Did you see from what direction or what people it came ? — I did; I saw them take deliberate aim at the windows up stairs. Lord Chief Justice Doherty . — Were you close up to the window at that time ? — Yes. Are you able to say, from your own knowledge, what had become of the people who were inside the wall before the firing began — where were they ? — Some of them went out through the gate, and others went round out of my sight to the other end of the house. At about what distance was that enclosing wall from the window where you were standing ? — {No answer^ The Lord Chief Justice . — Were the people inside the enclosure removed from that before the firing began ? — Yes. Mr. Whiteside . — I understood before it began they walked out first — they walked out after Mr. O’Brien said “ Slash away, boys, and slaughter them all.” Lord Chief Justice Doherty . — That is what I understood. The Solicitor-General . — Was it before or after Mr. O’Brien had used the words that you have been stating ? — First. Tell the jury what time the people moved away from the front of the house ? — When he gave the word they commenced firing and moving away — some of them. A Juror . — Some of the party inside commenced firing ? — Yes, and others moving about. The Solicitor-General . — Did you yourself fire out from the window ? — Yes, I did. Are you able to say how many shots you fired — how many rounds ? — Four. Were you able to observe the description of arms those people had who were about the house ? — Some had blunderbusses and others fowling- pieces, and others pikes, and some pitchforks, and others scythes. Did this firing continue long at the commencement? — I think about three quarters of an hour. Cross-examined hy Mr. Whiteside. You are in the same barrack with Moran ? — No, not when I am stationed at home. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 441 But you have been? — No. Did you make any deposition of these words at all ? — Sir ? Are you deaf? — No, I am not. Did you make any affidavit at all about these words that you say were used by Mr. Smith O’Brien — did you ? — Only the oath I have taken now. No deposition of any kind? — No. No informations before a magistrate ? — No. You did not sign any document? — No, none whatever. Now, I believe there was some person or persons unfortunately killed by the fire from the police ? — Yes, I understand there was. Did you happen to see the body — was it not outside beyond the wall ? I saw the body carrying off. There was nobody wounded or killed within that enclosure ; anybody that was killed was outside that wall ? — I do not know. Will you tell the jury that you do not know what I ask you — that the person that was killed was killed outside that wall ? — The person I saw carrying off was; I could not tell where he was killed. Do you not know that nobody was killed Within that little enclosure between your windows and the wall? — No one that I could see. Did you see any person killed or wounded in that narrow enclosure between the windows and the wall? — No; I did not see any person. Was nobody killed or wounded as they went out of the little wicket gate ? — I was not in that direction of the house; I could not see that. Were you not in the front of the house ? — I was. Where is the wicket gate ; is not the wicket gate in the front ? — The front gate is in my view; I saw a person shot there. But between that little enclosure and that spot, did you see any- body ? — No. These people that were inside, in the narrow enclosure, at the time Mr. O’Brien said these words, they were armed with blunderbusses ? — Some of them. And with short guns ? — Yes. And fowling-pieces ? — Yes. And then some of them went that way, and some went this way ? — Yes. Some to the right and some to the left, when he said slash away?’^ — Yes. And you were all at the window ? — Yes. !Mahony, the first constable, was within reach of Mr. O’Brien’s hand ; did he not touch it ? — I think he did. And therefore every thing that Mr. O’Brien said might have been heard by Mahony as well as you, if he was not deaf, when he actually touched him ? — Yes; if he was paying attention. I think it was an occasion when men would pay attention. Now, you fired pretty quickly? — Not very quickly. You took your time to consider after you heard these formidable words spoken. Plow many minutes did you wait before you fired; till the people got out of the range of fire ? — No. How soon did you fire ? — I think it was not more than two minutes. At whom did you fire; not the air? — I do not know. In what direction ? — At a man. Where was he ? — Opposite the gable window. Did you kill him ? — I do not know ; I do not think I did. 442 SPECIAL COMMISSION, CO. TIPPERARY. He was not in the front at all ? — Not when I fired at him. The Lord Chief Justice , — How far was he off? — He was about forty yards. Mr. Whiteside — Was it at the gable window you were ? — At the time I fired that shot. In point of fact, you did not fire from the window at which Mr. O’Brien spoke to you ? — I did. Before you went to the gable ? — No. After Mr. O’Brien used these words at the window, you did not fire from that window ? — I preferred goin^ to the gable end. You did not fire a shot at all? — I did. Not from that window ? — Not the first shot; I fired the first shot out of the gable window. You did fire from that window where he said “Slash away, and slaughter them all,” but you went to the other? — Yes. Will you swear there was anybody inside under cover of your musket when you came back ? — Not inside. Then you returned when they were all gone? — They were not all gone ; they were pretty convenient. You know, I mean from the enclosure; in the enclosure, or out of the enclosure ? — Outside. Then you returned from the little gable window when they were all gone out of the enclosure ? — Yes. Did you fire at any women ? — No. You would not fire at women ? — I had quite women enough. Did you see any women picking stones ? — I did. Women were there ? — Yes. Were they ringleaders in this riotous business? — I saw some forcing the men away. And some fathering stones to throw in ? — Yes. Did you fire at the persons they were forcing away? — They were not actually forcing them at the time I fired at them ; they might have been afterwards. As they were going away did you not fire ? — They were not going away; they were moving about? I could not say they were going away. Were they going away ? — They were moving about. Will you swear they were not moving away ? — I will not swear they were not going away ; they were moving about. From the police ? — Moving about from the police ; they were standing. And every man who moved about you fired at? — Yes. How many panes of glass were broken in that window you were at; be precise ? — I could not say. Will you swear there was one ? — Yes. Two ? — Yes. Three ? — I could. Will you go beyond that? — I could not say; but I know there were three, at all events. With stones? — No. Of which window are you now speaking? — The front window; the window in the gable. I am speaking of the front window at which Mr. O’Brien spoke; how many were broken in that one ? — I think two panes of glass. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 443 That is, during the whole conflict there were two panes of glass broken in that window ? — Yes. You are pretty right; quite right. Was it by stones or by bullets 1 — By the bullets of the men inside firing out through the window. So that any panes of glass even broken in the window were broken by the bullets of the men inside, and not by anybody outside ? — I think they were. Did you gather any stones, and bring them away from that window ? — No, I did not gather any. Did you see any; will you swear you saw any? — No; not to my knowledge. Did you see any bullet in that room, or any bullet-mark? — Not one. And all that took place after Mr. O’Brien said “ Slash away, and slaughter them all ?” — Yes. A Juror . — What position was Mr. O’Brien in when he said that ? — He leaned on the window. When he told them to slash away? — No. What position was he in ? — His back was to us then, getting down from the window. Was he down on the gravel when he used those words ? — Getting down from the window. Have you spoken to Moran to-day, or he to you? — We were con- versing. Was any thing said about the evidence? — Nothing more than what has been said in court to-day. You did speak on the evidence to be given to-day? — No. Did you hear his evidence? — No. On your oath, you did not converse with him on the evidence you were to give to-day? — No. You swear that? — I do. Patrich Ford^ sworn — examined hy Mr. Scott. Where were you stationed at the end of last July? — At Callan. Were you of the party under Mr. Trant’s command when he marched to Ballingarry ? — I was. Were you in the Widow MUormack’s house? — I was. Which room of that house were you in ? — In the parlour. Which parlour as you go in at the door ? — As you go in at the door on the left-hand side. Was that the same room in which Moran and Mahony were? — Yes. Now, while you were in that room, do you remember seeing or hearing any thing take place outside or at the window ? — I do. Just answer what? — I saw people coming up to the house ; a young man came up to the window with a flannel waistcoat on, demanding our arms. Had he any arms in his hand ? — I cannot say. What did that man say ? — He demanded our arms, and said I was an Irishman, and that he was an Irishman ; that I had an Irishman’s face, and that I was Pat Ford, from Callan. Where was that man at the time he said that ? — Standing on the window-stool. Was the window open ? — The two panes of the upper part were down. Did you make any answer to that ? — I did. 444 SPECIAL COxMMISSION, CO. TIPPERARY. State what ? — I told him we would not give them up, and for him to go away, as it would be better for him. Now after that, did any other person come up to the window ? — There did. Who was that person ; do you know ? — Mr. Smith O’Brien. Did you know him before ? — I saw him in Callan on the 24th before that. Is that the person {pointing to the prisoner) ? — It is. When he came up did he also get on the window-stool % — He did. Now describe exactly what you saw him do, or heard him say there? The Lord Chief Justice Go slowly, that we may take it down. Witness . — He came on the window and said, “ I come up on honour.” Mr. Scott . — How long was that after the first man ? — Immediately after the first man, who had hardly finished. Begin again and state what Mr. O’Brien said ? — “ On honour and as a gentleman, I come up to you ; I am Smith O’Brien ; I know you are Irishmen ; I only want your arms, and I will protect your lives.” Was any answer given to that? — There was; we told him that we would not give them, that we had an officer, and whatever he would do we would do. Lord Chief Justice Doherty . — Repeat that ; you said that you would not give them, and that you had an officer ? — That we had an officer, and that whatever he would do, we would do. Mr. Scott . — Was your officer at that time in the room ? — He was up stairs. Do you remember how Mr. O’Brien then appeared, what dress he was in or any thing more that you observed about him ? The I.ord Chief Justice. — Just finish the conversation first. Mr. Scott. — I believe it is finished, my lord. {To the witiiess .) — Did he say any thing after you said you had an officer, and whatever he would do, you would do ? — Yes, he asked who he was, and we told him Mr. Trant, from Callan, and he asked where he was. Well? — He was addressing the people out backwards; that is, the little back yard ; and he went on then to go round. A Juror. — Mr. Trant was addressing the people ? — That is what he was told. You told him ? — I did myself. Mr. Scott . — That he was addressing the people backwards in the yard? — Yes, that is what I told him. Can you say, or did you observe how Mr. O’Brien then was dressed ? — He had a frock coat on him with a belt, and two pistols in his belt, and one in his hand. Had he any thing on his head ? — He had a cap with a gold lace band round it. Did any thing more occur after that ?— After leaving the window ? Yes? — There did; very shortly after leaving the window the firing commenced. Did you hear any thing said immediately after his leaving the win- dow ? — I did ; I heard Slash away, boys, we will soon have them all.” THE QUEEN i;. WILLIAM SMITH O’BRIEN. 445 Are you sure you heard those words 1 — I am certain. Can you say by whom those words were spoken ? — No, I cannot. How soon after you saw Mr. O’Brien turn from the window was it that you heard those words ? — I think about a minute or something better. A Juror . — A minute after Smith O’Brien left the window % — A minute or two. Mr. Scott — What part of the room were you in ? — The front window; the window that he came to. Hid you see him put in his hand ? — I did. How soon after you heard these words did you hear any shots, and from what direction 1 — Immediately the firing commenced. From the inside or the outside ? — I think it was the outside ; I am almost sure it was the outside ; it was in that direction ; it was in the kitchen, and not in our room, that the firing first came in. A Juror . — How far was Mr. O’Brien from you when you heard those words? — Not more than seven or eight yards. Another Juror . — He was seven or eight yards when you heard these words? — Yes, he was seven or eight yards. Mr. Scott . — How long did that firing then continue ? — I think it con- tinued nearly for three quarters of an hour. Was there any firing from the room in which you were ? — There was. Can you say whether any shots from without entered the room in which you were ? — There was one shot entered the room. Where did you see the mark of that shot ? — In the grate in the parlour. Hid you see any mark of any other ball in that window, or in that room ? — One mark outside on the window. Ho you mean the window-sash ? — No, on the wall by the side of the sash, that is the side window ; not the front window, in the gable window. Hid you examine any part of the house afterwards? — No, I did not. You say the firing continued three quarters of an hour you think? — Yes, three quarters of an hour. How long did you remain after that? — We remained very nearly three hours afterwards in the house. Were you there when Mr. Cox’s party came up ? — Yes, I was. Hid you see any other person respectably dressed about that house, before or after the firing ? — No, I did not. Cross-examined hy Mr. Fitzgerald. Is the room in which you were a large room ? — Yes, it was pretty large. How many of your men were in it? — We had ten or eleven. How were you placed in the room ? — Standing at the window ; some kneeling down at the window, and some standing at different windows ; there are two windows in the room. I think you said you were at the front window ? — I was at both windows ; I was at the gable window when the men said there was a man coming down in a military dress. Were you there when Mr. O’Brien came ? — I was at the front window. How many were there ?' — Three and myself. Name them? — John Moran, Cornelius Mahony, Thomas Rafferty, and myself. Was Robinson in that room ? — He was. Not at the window ? — He may have been behind me. 446 SPECIAL COMMISSION, CO. TIPPERARY. You did not see him ? — I saw him in the room, but he may have been behind me when I was talking to Mr. O’Brien. Did Mr. O’Brien’s hand touch any one ? — It did. Which of them ? — Rafferty and Mahony. You say you did not see Robinson ? — I saw him in the room ; I did not see him at the time but immediately afterwards. Was Mr. O’Brien accompanied by any one at this time ? — He was. By whom 1 — -I could not tell who they were ; there were two of them whom if I saw I would know; I never saw them since. There were a good number up in the yard and close to the window. Quite close to the window? — Yes, there was one standing on the window along with him. At the time? — Yes, at the time. Did that person remain on the window all the time Mr. O’Brien was up ? — Yes, he did. All the time ? — Yes. On the stool of the window ? — Yes. Where are you stationed now ? — In Callan. Did Rafferty belong to that station ? — He does. Is he stationed there still ? — He is. Do you know where he is now ? — I suppose he is in Callan. And there was a considerable crowd round the window ? — There was. When Mr. O’Brien first asked you for your arms, what was the answer you gave ? — At first there was no answer given, till he put in his hand ; one man put in his hand as if he was going to make a grab at the carbine, and we told him he was not going to get them until the officer That was what you told him. Who told him ? — I told him, and Rafferty. Did Moran tell him ? — I do not know. Although he was standing by the window ? The Lord Chief Justice . — Who was ? Mr. Scott . — My lord, as I understood the witnesg, they said, when Mr. O’Brien asked for their arms, they had an officer, and I asked him if Moran said that. Ee-examined hy Mr. Scott. {To the witness .) — Did you hear Moran say any thing? — I heard him say not to give them up. Did you hear him say that to Mr. O’Brien ? — He turned back to the men in the room, and said do not give them. Did you hear him say that to Mr. O’Brien ? — I am not sure whether I heard him or not ; he may, but I did not hear him. Did you hear anybody from behind say any thing ? — I did. What did he say ? — He said not to give them up. How long after Mr. O’Brien got down from the window, did you hear the firing ? — About a minute and a half. Where were the people who surrounded him then ? — They were in the yard — they were outside in the field, and back in every part of the house as far as I could see. When the firing commenced ? — Yes. What were they doing ? — Arms in their hands just prepared to fire some of them. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 447 Did they fire? — Yes, some of them. Some of the men in the yard were amongst those that fired ? — Yes. They did not commence to move away ? — No. They fired first? — Yes, I think they did. Had you your eye on Mr. O’Brien when these words were spoken ? — No ; I never saw him again until I saw him in gaol afterwards. He had completely left the window ? — Yes. Are you sure of that? — Yes. Had the other man ? — They left the window together. Did you see Mrs. McCormack there ? — I did. Did you see her at that time? — No, not at that time. A Juror . — How far was Mr. O’Brien from the window at the time you heard these words ? — I could not tell, because he left the window and he went on by the wall. You answered a few moments before to my question, that Mr. O’Brien was seven or eight yards? — I think about that when the word was given. Do I understand you that Mr. O’Brien was seven or eight yards from the window when you heard these words made use of? — Yes. Was it from you or from the window ? — From the window ; he was just at the window. Another Juror . — Did you see him at the time ? — No. Another Juror — You distinctly swear that he was seven or eight yards from the window when the speech was made. Did you see any policeman put his bayonet within five or six inches of his breast ? — They were close. Whose bayonet was next to him ? — I think Rafferty’s was as near to him as any; he was just under the window. Another Juror . — Did you see Moran with his bayonet exactly up to his breast ? — It was quite near to him. Mr. Whiteside . — What is the date of this man’s information ? The Clerk of the Crown . — The 6th of September. George Frederick MFonogh, morn — examined hy Mr. Sausse. You are head-constable of police ? — Yes. You were with Mr. Trant at the Widow McCormack’s house ? — Yes. What room were you in ? — I was in the room over where Mr. O’Brien came. Mr. Whiteside . — Is there any information of this witness ? Witness. — No; I swore no information. Mr. Sausse . — You remember Mr. Trant having gone down stairs? — Yes; I accompanied him down. Did you return up stairs with him ? — Yes. When you were getting up stairs did you hear any thing said outside the house just before the firing began? — Not until I was in the room I was in charge of. That was the room over the one that Mahony was in ? — Exactly. When you got into that room did you hear any thing said from tlio outside? — Yes; I heard the words c‘ Slash away, boys, and slaughter the whole of them.” 448 SPECIAL COMMISSION, CO. TIPPERARY. Were you able to see the person by whom they were said? — I could not. How soon after that did any firing begin ? — Immediately ; not a second elapsed until the firing commenced, and stones throwing. Firing from whom ? — Firing from the outside. And stones you say ? — Yes. Now, did any shot come in the room where you were stationed ? — Yes, there did; a ball struck the sash of the window immediately where I stood. Were there any stones made use of? — Not in the room that I was in. Did you see any stones collecting or throwing outside? — Yes; I saw women collecting stones and bringing them in their aprons and laying them down by the side of the men. Did you see any shots fired from the outside besides the one that struck the sash by you ? — No, I did not see any person that fired one; I thought they were concealed under the wall of the house on one side. Did you.hear shots coming from that direction? — Yes, I did. Any number of shots ? — I could not say; a good many fired; it lasted, I dare say, in and about three quarters of an hour. Can you say about the height the wall was from which the firing took place ? — It was in some parts higher than in others. Generally speaking, opposite the window ? — I think it was four feet ; in parts higher than in others. Mr. Justice Moore . — Was this the wall that went round the house ? — Yes. Mr. Sausse . — You are speaking now of the part opposite the window of the room which you were in charge of? — Yes; to the best of my opinion it was four feet high. Cross-examined hy Mr. Whiteside, You are a police ofiicer ? — Head-constable. You have been in this country ever since this transaction took place ? — Yes. With your officer, Mr. Trant ? — Yes. And all these men were under your and his command? — Yes. You never made any information? — Never. Were you ever applied to to make any ? — Never. Never called on ? — Never called on. Till very lately ? — I made no information at all. It was intimated lately to you that you were to be examined — very recently ? — Not recently ; I was examined in Dublin. Who sent for you ? — I think the Inspector-General, as far as I could judge. The Lord Chief Justice . — He says lie made no information ; and I have not been able to take down a single word since. {To the witness .) — What were you sent for ? — I made no information. I cannot tell who sent for me ; but I think it was the Inspector* General, who wished to have the person who could give the best evidence. Did you go to Dublin ? — Yes, my lord. Were you examined there ? — Yes, my lord. THE QUEEN WILLIAM SMITH O’BRIEN. 449 Mr. Whiteside . — The Inspector-General naturally wished for the person who could give the best information, that is the sergeant ? — I cannot say that. When was it the Inspector-General sent for you ? — The 7th or 8th of August. And you then told him and aU the persons in Dublin, all you knew of the matter ? — Indeed I did not. You did not tell all you knew of the matter 1 — No. When did you tell all that you now say was all you knew of the matter j how lately these words about “ slash away, boys ?” — In Dublin. You told these words in Dublin ? — Yes, but not to the Inspector- General. To whom ? — I think the Crown Solicitor’s clerk, Mr. Rae. And you told them to Mr. Rae ? — Yes. You told them to the Crown Solicitor? — No, to Mr. Rae. When your officer asked what passed, you did not tell these words were used by him? — I cannot recollect that I told the Inspector-General; I cannot recollect that I did tell him. Did you not say this instant that you did not tell him ? — I did not tell the words “slash away,” as far as I can recollect. When did you tell the clerk of the Crown Solicitor these words ? — The same day, the 7th. Did he not show you the depositions of the other witnesses ? — No, I was the first that ever gave down a deposition in the case. And did you ever see the depositions of the other witnesses ? — Never. Where is your deposition ? — I cannot say. Did you swear any information ? — No. Although you were examined by the Crown Solicitor’s clerk in Dublin, and by the Inspector-General? — No. Were you in the room up stairs ? — Yes, the first room. Who was in the room with you ; was not Mr. Trant ? — No. Where were you ? — I was in the front room to the right. In what room was he ? — He was in the rere room to the left as we went up stairs, as far I can recollect ; I was in the front room to the right. The Lord Chief Justice . — That was to the left as you went into the house ? — Yes, I was in the room to the right as I went up stairs. On the left of the hall-door ? — Yes, my lord, exactly. Mr. Whiteside Just put your finger on the window of the room you were in ? — It was this {describing it on the plan). You are not sure of the room you were in ? — I will not swear positively to the room I was in. You will not swear positively to the room you were in? — I will; as to the room I will. Will you put your finger on the room you were in ? — There {describing it on the plan). Will you swear positi vely you were in that room ? — To the best of my opinion. You cannot swear positively even to the room you were in ? — To the best of my opinion. Your recollection will not enable you ? — My recollection is perfectly good. Will your recollection enable you to swear positively as to the room you were in at all ? — To the best of my opinion that is the room. 2 G 450 SPECIAL COMMISSION, CO. TIPPERARY. Put your finger on it ? — Here it is {describing it). The upper window ? — Yes. I am very strong in my opinion. What wiere you doing in that room ? — Defending myself and my arms. What was in that room ? — There was a bedstead and a bed. Was anybody in that bed ? — No. Were you in it yourself? — No, never. What was done with that bed ? — It was there, if we required it, to barricade the windows. Was any one in that bed ? — No, not one. Where were you ? — On one side of the window. Which side ? — The near side as I went in at the door. A little way from the front ? — Yes. How many men had you in the room ; will you name them ? — I had Constable Young, Constable Davidson, Constable Armstrong, Constable Deniston, and Constable Ruddle. Are they all alive still ? — Yes. And under your command ? — Yes. And you have been in daily communication with them ? — I think I can safely swear, a word I never uttered with regard to the evidence I have given here to-day. Are those men under your authority ? — They are, as Head Constable. You order and command them ? — Yes. Did Mr. Trant come into your room at all ? — I cannot say that he did. Did he e^er once come into your room ? — Never. During the firing ? — Never. Did he give you your orders about firing ? — He told me not to fire until we should be fired upon, or until we heard the word given by him. But the moment a shot was fired you were to fire ? — We got the word from him. How did you get the word from him ? — He said we were not to fire until we were fired on. How did you get the word ? — He spoke out from the back of the house. And all the men in the other rooms heard that ? — I will not swear that. Mr. Trant did not hear what was said in the front of the house. You told shortly after the words you heard? — Yes. Although you did tell the Inspector-General ? — Indeed I told Mr. Trant the words coming home that day ; indeed I did not know what men would be examined here to-day. Did you fire down instantly when you heard those words ? — Imme- diately. There were a good many men in the little enclosure below ? — Yes. Right under you ? — A great number ; a vast number. Did you kill any ? — I will not swear I did. Did you see any dead bodies in that little enclosure? — No. Not one ? — Not one. Anybody that was killed was far removed from the house outside the wall ? — I did not see anybody killed. Did you not see a body ? — Yes. Was that outside the enclosure ? — It was, and two men and a woman dragging it away. At that time did you fire ? — I fired before that. During the time of this transaction there were several women in the crowd ? — Yes. THE QUEEN v. WILLIAM SMITH O’BRIEN. 451 And you say they brought stones? — Yes. I hope you were not injured? — No. Nor any man iu your room ? — Not one. And the window was open ? — There was not a pane of glass that was not smashed. Were they smashed with stones? — With stones. You did not fire through the glass windows ? — I will not answer that. Did you fire through the glass windows yourselves from the inside ? — I did j not through the glass. Have you any bullets here? — No. Did you find any bullets in the room ? — Not one. Was the greatest part of the firing from the back or the front of the house ? — I cannot say. Do you swear positively that the firing continued fifteen minutes ? — I do, and near three quarters of an hour. Did you fire any stray shots after that? — Not from the time. It was two hours and very nearly a quarter after our firing ceased when I heard a shot fired ; I thought that shot was up stairs j I went out to inquire who fired that shot, and Mr. Trant said he fired it as a signal shot for men he saw coming up. After that there were no stray shots at all except a single shot ? — No. Not for two hours and a quarter ? — No. Re-examined hy Mr. Sausse. You were asked about being examined in Dublin ? — Yes. Can you identify one in a crowd ? — No. Thomas Waters, sworn — examined hy Mr. Lynch. Were you at the Widow MUormack’s with Mr. Trant’s party ? — I was. In what room of the house were you ? — In the upper story. Were you in the room with Head Constable M^Donogh ? — No. Were any shots fired from outside into the room in which you were? — Yes, there were guns pointed in the direction of the window, and mortar knocked ofi* the side of the window on which I stood. Did you at that time hear the firing outside? — Yes, I saw the guns explode in that direction. Cross-examined hy Mr. Fitzgerald. Which room were you in ? — I was in the upper story room of the end of the house facing to the Commons. Just show me on the plan ? — This window {pointing it out on the map). The window of that room ? — The window facing the Commons ; that is, the end window. When did you begin to fire ? — I had no watch, but as far as I can think about two o’clock, ten minutes afterwards or thereabouts. Were you ordered to fire ? — Yes. By whom ? — Mr. Trant. I received the order, being in the room with him ; under any circumstances I would have fired when fired on j that was his order. Was there more firing at the back or the front of the house ? — In the front of the house. Did you see any persons in the enclosure at any time, between the house and the wall ? — I did. What I call the front is immediately in 2 G 2 452 SPECIAL COMMISSION, CO. TIPPERARY. front at both ends, the rere was behind. My window was the end window. Is that what you mean by the front of the house ? — No, both wings. Jolm Hanover, sworn — examined hy the Attorney-General. Where were you stationed in the month of July last? — The latter end of it I was staying in Tipperary. Do you recollect having gone to Widow McCormack’s with General McDonald ? — I recollect going there ; the General was there before me. Do you recollect what day that was ? — It was the Monday following the shooting match ; the shooting match was on the Saturday. Did you yourself examine the front of that house or any portion of the house, to see what state it was iu ? — I did, inside and outside. Just describe whether you saw any marks on the wall inside or out? ' — ^I saw several marks outside, both stones and what I should say were lead bullet marks. Can you say on what portion of the outside of the house you saw those bullet marks ? — The front. Did you examine the inside of the house whether there were any marks ? — I did. Did you find any marks inside ? — I did. Of what ? — Of bullets. On what portion of the house ? — In the inside part of the rere face of the house, like as if they came in at the front of the house and lodged in the back of the house. How high was the house ? — Two stories high. Was it in the upper story of the house you found these marks or the lower story ? — I saw some in the top story and some in the under story. Cross-examined hy Mr. Whiteside. You are a Tipperary man ? — No, Dublin. Have you been at many shooting matches ? — Yes, one. You liked that? — No. You are naturally desirous of being at one. What do you mean by a shooting match ? — When the peasantry and the constabulary come in collision with each other. And the pleasure of the sport consists in the number of combatants shot on each side ? — I think it no pleasure to shoot a man. You were not with Mr. Trant? — I was up about an hour and a half after him. You were not in his party? — No. Did anybody tell you to make an examination of that house? — No. You just threw the eye of a military man over it yourself when you went with General McDonald ? — I did not go with General McDonald ; I was there shortly after. I dare say you know every thing that occurred better than the men that were there ? — I do not. You said you saw things that appeared like the mark of stones ? — Yes, stones always make a larger mark than bullets. You did not take up the bullets? — I saw the children exhibit them to the General. What children ? — The children of the house. THE QUEEN -y. WILLIAM SMITH O’BRIEN. 453 And the General saw that? — He did; one of his officers showed him the buUets. That was the General who was here yesterday? — General McDonald. Was it an apron full of bullets ?■ — I think I did not see more than one. Were you present at the finding of the bullet? — I saw the officer Were you present when the bullet was found? — I was there in the house. Where ? — In one of the rooms ; I really could not tell you which. In the front j just show me the room the bullet was found in? — I saw the officer lift it up. You accurately examined the front of the house with a view of giving evidence? — No, indeed it was not. Tell me the room where you found the bullet ? — I did not find it j it was one of the officers. Is he alive ? — Yes. What is his name ? — I cannot say. What room is it ? — I could not say. See what it is to be accurate. Would you know a police bullet from a peasant’s bullet? — I would not j I would judge of the size of a consta- bulary bullet. You got a bullet there ? — I did not. It was found by another person ? — By an officer. In a room ? — Yes. Did you go through all the rooms ? — I did not. Have you it in your pocket ? — No. Was it flattened ? — It was like as if it struck against a wall. Do you not think it looked like a bullet that was discharged against the police ? — I do not know ; it was like a bullet that was fired against a wall. Was it not like a bullet that was fired at the police ? — If they were in the house very likely it was fired against them. Was it not like a bullet that was fired at the police ? — I could not say. John Carroll^ sworn — examined hy the Solicitor-General. Are you in the constabulary? — Yes. Were you so in July last? — Yes. The 29th of July? — Yes. Do you remember going from Kilkenny to Ballingarry? — Yes. About what time did you leave Kilkenny ? — About twelve o’clock. How did you travel ? — I rode. For what purpose were you going to Ballingarry ? — I was sent by Mr. Green, the magistrate in Kilkenny. To Mr. Trant ? — To Mr. Trant or Mr. Blake. Do you know where the Widow MUormack’s house is? — I do. Did you go in the direction of that house in search of Mr. Trant ? — Yes. Before you got up to that house did you hear any firing at it — any gun shots in that direction ? — Not until I got into the field under the house. Did you have any communication with anybody in the house, I do not ask what it was; did you deliver any letter into the house ? — I did. At the time you went into the house to deliver that letter was the firing then going on, or had it ceased ? — It had ceased when I came to the house. Did you see Mr. Trant at the house ? — Yes. 454 SPECIAL COMMISSION, CO. TIPPERARY. Did you deliver a letter wliicli you were authorized to give to him ? — I gave it to his Head Constable. And he brought it to him % — Yes. In what direction did you return from the house ? — On my way back to Kilkenny mounted On your return did you come up with any persons, any crowd of persons ? — Yes. About how far were you from McCormack’s house when you fell in with those persons ? — I should say in a straight direction between three and four hundred yards. Erom the house ? — From the house. Were those persons armed or unarmed ? — Some of them were armed and some were not. Did any person come up and speak to you h — There did. Will you look at the gentleman that is standing behind you 1 — Yes. Is that the gentleman ? — Yes. Well now, what passed between you and Mr. O’Brien % — He asked me if I was a mounted policeman. Were you in coloured clothes'? — Yes. What answer did you make ? — I said I was. What passed after that ? — Another person came and said I might consider myself a prisoner. Was there any thing remarkable about that person in the way of his dress 1 — He had a belt about him and a gun in his hand. What did you say he said to you ? — He said I might consider myself a prisoner, although at the same time I need not feel any apprehension of insult or injury. Did any other person in the garb of a gentleman come up and join you '? — Not at that time. Then, or shortly afterwards, was any thing further said to you 1 — There was another young man who said that I was there in the capacity of a spy. Was Mr. O’Brien in company % — No, he was not. Lord Chief Justice Doherty . — About how many persons will you say were in the crowd that you fell in with ? — At this time I should say there were about three or four hundred persons, my lord. Had you seen them as they were going to McCormack’s? — No, my lord, I did not see that crowd. The Solicitor-General Do you know who the other person was ? — {No ansiver.) Lord Chief Justice Doherty . — Was this a crowd of three or four hundred persons together ? — They were ; when I came up to them they were all standing on the road, that is, in the direction to where they stood. Mr. Justice Moore . — In what part was Mr. O’Brien ? The Solicitor-General . — Where was he standing or moving with rela- tion to the crowd; was he amongst them or where ? — He was amongst them. And was the person who was armed, and had the belt, amongst them also ? — He was. Was the third person you spoke of amongst them ? — I did not see him at that time. What distance of time elapsed before you saw the third person of whom I am inq[uiriug ? — I should think about an hour. THE QUEEN t-. WILLIAM SMITH O’BRIEN. 455 At that time did you see where Mr. O’Brien was ? — He was amongst them. You know it was an hour after you say you saw this third person ? — Yes. Was Mr. O’Brien amongst the crowd, or this third person, when you saw him an hour afterwards ? — Mr. O’Brien 1 No, the third person who spoke to you ? — Mr. O’Brien was not there when I saw the third person the first time. Did he at any time come up afterwards ? — He did. And join you; did he come to where you and this third person were ? — He passed me where I was standing, and went up and down by me. Before you had this interview — an hour elapsed before you saw this third person — had any thing occurred with respect to your horse 1 There had. After you had that conversation, and your being considered a prisoner, state any thing that occurred with respect to yourself or your horse. Tell the jury. — The party then moved down the road; Mr. O’Brien and Father Fitzgerald moved down the road together, and I was following them. Who is Father Fitzgerald ? — He was a Roman Catholic priest who was there with me. Was he with you when you first went there 1 — He did not come up to the house when I first went up, but he came up a few moments after me. Where had you first met Father Fitzgerald before you got up to MUormack’s house? — I would say a mile and three quarters or two miles. Did he accompany you up to Mrs. MUormack’s ? — Yes. Now come back and tell us what occurred with Mr. O’Brien about your horse ? — They were moving down the road ; I was in rere of them ; there was a great sensation among them, and I thought I was going to be shot, and I was ordered down from the horse by some one in rere of me. Was this about the time that you were told you would be treated as a prisoner, and that you should be under no apprehension ? — This was after that. How long after it ? What occurred or became of yourself after that conversation, when they said you were to be considered as a prisoner ? — It was about four or five minutes after that. What then occurred ? — There was a body of people moving down the road with Father Fitzgerald and Mr. O’Brien, I was in the rere of them ; I thought I was going to be shot ; I was ordered off my horse, and I expressed some wish that Father Fitzgerald or Mr. O’Brien should take my horse ; I thought I was going to be shot. What took place then ; did any one get your horse ? — There did. Mr. Whiteside Let him go on. Witness. — Then Mr. McManus, as I understood the gentleman who arrested me to be, came and took me by the arm and brought me away out of the crowd, and brought me down the field. The Lord Chief Justice. — Well, Mr. McManus, who desired you to con- sider yourself a prisoner, did what ? — Ho took me by the arm and brought me down the fields out of the crowd. Mr. Justice Moore. — On foot? — Yes, my lord. What became of your horse at that time ? — Mr. O’Brien got on my horse. 456 SPECIAL COMMISSION, CO. TIPPERARY. Did he go out of your sight on your horse, or what did he do ? Sometimes he used to leave my sight for half an hour or better j I could not say in fact, and used to come back again. In whose company did you continue during this time; were you in the crowd ? — I was in the crowd. During the time you were thus with these people did any thing else pass ; did you hear Mr. O’Brien say any thing, or any other person in that crowd, or connected with it ? The Lord Chief Justice. — Name who was along with you? The Solicitor -General. — Did this person who took your horse remain with you ? — No, he went away immediately after bringing me down the field, I did not see him after that. Did any person remain with you? — I was placed in charge of four men. You remained in charge of those four men ? — Yes, but I was not placed in charge of them, until I was better than half an hour a prisoner; then I asked them if they -would allow me to go down to the village to get some refreshment, and he said he would, this third person ; it was him I asked, and he told four men to go along with him. Were you permitted to go to the village ? — He said he would let me go, but afterwards I was not permitted to go. During the time you so remained in the possession of these people, did that third person I was inquiring about, that young man, say any thing, or speak to you about what was going forward ? — He spoke to Father Fitzgerald in my presence. What was said ? Mr. Whiteside. — We were not there. Witness. — He wanted Father Fitzgerald to give them his blessing before he attacked the house again. Mr. Whiteside. — That is not evidence. The Lord Chief Justice. — Any declaration made by this party is receivable. Mr. Whiteside. — This is after the transaction occurred, and they were coming away. The Lord Chief Justice. — Just apply yourself to the facts. Mr. Whiteside. — I said that what was said by these parties after that took place, a conversation between one of them and a third person, is not evidence against Mr. O’Brien in this case. I do not object to any thing that he has said, or that he has heard, or that was done by the crowd itself at the time of the transaction, at any one portion of which he was present ; but all this is down a lane or in a field ; and I object to a conversation between the Rev. Father Fitzgerald and this witness. I object to this as evidence against my client. Does it follow that any thing that might be said by anybody coming away from this transaction is evidence ? The Solicitor- General. — I submit this is clearly evidence. The witness is given in charge, and taken prisoner by this party, THE QUEEN i;. WILLIAM SMITH O’BRIEN. 457 of wLom Mr. O’Brien was one. Mr. O’Brien had taken possession of his horse, and was riding about with his horse. Mr. Whiteside. — That is not proved, with deference to you. Lord Chief Justice Doherty. — He said that Mr. O’Brien mounted his horse, and might be out of his sight for half an hour. Witness. — Or better, my lord. Mr. Whiteside. — He must he within his hearing or sight. The Solicitor- General. — Upon the evidence, I submit that the statement of this third person is evidence — evidence of the acts or intentions of the party with which, I submit to your lordship, Mr. O’Brien was connected, and of which he was one. The Lord Chief Justice We are of opinion that it is evidence. The Solicitor- General. — On all the authorities known to the law it is evidence. Mr. Fitzgerald. — Allow me to say one word, my lord. What my learned friend, the Solicitor- General, now attempts to give in evidence is the expression of the intention of a single party. The Lord Chief Justice. — Let us exactly understand. I will read my note. This man, the witness on the table, was taken prisoner, and desired to consider himself a prisoner by M'Manus. M‘Manus and O’Brien were both a part of that same body. After a time it became necessary, for his protection, that he should be put under the care of four men ; four men were accordingly appointed, and he remained in charge of those four men. It is the declaration of one of those four men, so commissioned and charged to take care of him under these peculiar circumstances, which is now sought to be used in evidence. Mr. Fitzgerald. — So 1 understand. A declaration of one of these parties not accompanying any act done. That is the ground upon which I submit it is not evidence. I will put a case — for instance, suppose that four, five, six, or seven men in that crowd had, after that act was done, no subsequent act having been given in evidence, expressed different intentions, and counselled different things, would your lordships say all those different intentions were to he attributed to Mr. O’Brien? Mr. Justice Mooi^e. — I think when a party is assembled together, any thing that is said is evidence to give a character and motive to the transaction. Mr. Whiteside. — I remember your lordship’s argument in the case of the Queen v. O’Connell. A declaration was sought to be given in evidence after a very mischievous meeting was held. It was ruled by the Court of Queen’s Bench, that because it was not spoken by the person at the time of the meeting, and while the transaction was going on, although spoken by a person engaged in an illegal meeting, it was not evidence. It was not within what your lordship has been good enough to state. It did not iUustrate 458 SPECIAL COMMISSION, CO. TIPPERARY. the common intention, and was not in prosecution of the common design of the parties. The Solicitor- General . — That cannot be known until we hear what the evidence is. Lord Chief Justice Doherty . — Do the Crown in this case press this question ? The Attorney- General . — It is not worth while. Lord Chief Justice Doherty . — I am clearly of opinion it is evidence, if you press it. The Lord Chief Justice . — As you do not press the question, let us proceed consecutively, and according to the order of time. Let us know what occurred during the time, and after he was in custody. The last answer he has given is, that he asked for some refreshment ; they said they would let him go, and then afterwards they would not. What followed afterwards ? The Solicitor- General . — Then I was about inquiring what was the statement of that third person, but I shall not press it, as it w^as not a statement made in the presence of Mr. O’Brien. {To the witness .) — Bid you afterwards see Mr. O’Brien during that period ? — I did. How soon after this did you see him again j after you had that con- versation, whatever it was ? — I could not exactly say at any time; Mr. O’Brien was not away from me more than half an hour or three-quarters of an hour at a time. How soon after that third person was speaking to Father Fitzgerald did you speak to Mr. O’Brien again, or did you see him? — I did not speak to him till I met him on the road coming home. Were you allowed to go home? — I was. By the persons who had the custody of you ? — It was not by that party, but another party. The Lord Chief Justice . — He was put in custody of those four men. How long did you remain with them ? — About two and a half or three hours. The Solicitor-General . — After the lapse of that period of time you were allowed to return home, no matter by whom ? — Yes. The Lord Chief Justice . — During the time you were in charge of these men did you remain stationary ? — I could walk up and down through the crowd. Mr. Justice Moore . — Was the crowd stationary? — They were, my lord, as far as I could see. The Solicitor -General . — During that time, while you were moving through the crowd, did you see Mr. O’Brien ? — I did. Did you hear him say any thing to yourself or to any of the people that were about you ? — I did. Did you hear him speak to the people before you were allowed to go home, in that interval while you were among the people ? — I did. State what you heard him say on one or more of those occasions ? — I heard him say at one time, would he give himself up to be hanged — that he did not like to be in that position ; or some words to that effect. Did you hear him say any thing else? — I heard him say at another THE QUEEN i;. WILLIAM SMITH O’BRIEN. 459 time, that he could take the place where Mr. Trant was in an hour. That is all I recollect hearing him say while I was there. When he said that, did any person or persons make any observation ? — When he asked should he give himself up to be hanged or not, they told him not. Was it after he said that, that he spoke about his being able to take the police barrack ? — I could not say whether it was after or before. I meant the Widow McCormack’s house, not the police barrack. Did you afterwards return towards your home 1 — Yes. Before I come to that, will you just recollect yourself; did you hear the people, or any person to whom Mr. O’Brien spoke, say any thing about attacking the police — Mr. Trant’s party of police ? — I could not, because I was not sufficiently near to hear what the people might say. And you did not hear exactly what took place ? — No. Did any thing occur upon your leaving these people upon your return home ; how did you get away ? — There was a man near me, and I asked him to let me get away, and he said he would, and would protect me with his life. He then named three more to go along with me ; when we had got on to the other side of the ditch he told the three to remain, and said that he would go along with me himself. The Lord Chief Justice . — Were they the same that you were first put into the custody of % — They were not, my lord. Lord Chief Justice Doherty . — Was the man to whom you made the application a stranger to you ? — He was, my lord. The Lord Chief Justice . — Then it was another four persons who guarded you through the crowd 1 — In going through the crowd, they were not about me ; but it was the first man that I asked to take me out of the crowd, that accompanied me. The Solicitor-General . — How far did you go in company with the man who took you away ? — I think it was about a mile or a mile and a half that we went. Lord Chief Justice Doherty . — Was that man armed ? — He was, my lord. How 1 — He had a short gun. The Solicitor-General . — Were the other four persons armed whom you were given in charge of ? — The last three I cannot say were. Were the first % — The first four were. Now, on your going away from that party which you said was upwards of a mile, did you at any time observe the approach of any other party of police in that direction % — I saw the cars coming, but I did not see the men on them at the time. At what time was this ; about what time would you say from the time you first joined the party to the time when you say you saw the cars come with the other police ? — At the time I saw the cars I think it was about half-past five or a quarter past five o’clock. When you saw that party of police and the cars come up, in what direction were they coming % — They were coming towards Ballingarry on the road I was coming myself. Did you see any movement amongst the party you had left in that direction when they appeared in sight % — I did, they were getting behind; I heard them say they would attack them. That is, the people you had left ? — Yes. Did you see them make any movement towards that party who were coming ? — I saw them leaving the road to go over the ditches. 460 SPECIAL COMMISSION, CO. TIPPERARY. The Lord Chief Justice . — At what hour was this ? The Solicitor-General . — As well as you can recollect ? — It was after five, my lord ; about a quarter or half-past five. The Lord Chief Justice . — Was this beforeyou escaped? — It was, my lord. The Solicitor-General . — Was this at the time you were walking with the single man that you saw these people coming ? — Before I left the road I saw the cars coming, after I went down the field. Mr. Whiteside . — Was this while you were with that single man ? — Yes. After you were leaving the place in safety ? — Yes. Lord Chief Justice Doherty . — I understood you said, before you left the large body you had seen some cars coming ; is that so? — Yes, my lord. You say that there were police coming on those cars ? — I could not say that ; I did not see them ; I heard the people say that the police were coming on the cars. Was it then that you asked permission to go away ? — It was. To get away from that ? — There was permission given to the people for them to send me away to Mr. Trant or his party, or any place I liked to go to. That is the time I asked this man would he see me safe. Did you hear any firing in the direction in which that party of police was coming? — Yes. The Solicitor-General . — Did you get your horse afterwards ? — Yes. From whom did you get your horse ? — From Mr. O’Brien. How far had you got from the party on your way home when you got your horse ? — I could not say ; I think it was about a mile and a half ; it might be less. Will you state how it was you met Mr. O’Brien; was it on the road ? — Yes, it was on the road. Was he on your horse ? — Yes. The Lord Chief Justice . — Did he meet you, or did you overtake him ? — He met me. Lord Chief Justice Doherty . — Had the man left you before you met Mr. O’Brien ? — Yes. You said he escorted you about a mile and a half? — I think about that distance. Was it immediately on his leaving you that you met Mr. O’Brien ? — About two hundred or three hundred yards I think ; it might be more or it might be less. The Solicitor-General . — When you met him on your horse did you address him first, or did he address you as to what occurred ; just state what happened ? — When he met me first he pulled out a pistol and said it was his life or mine ; was I going to arrest him. I said I was not, that I had no arms, and that he might shoot me if he liked. What did Mr. O’Brien say to that, or did he say any thing ? — He said it was beneath him to do so, or to fire on an unprotected man. Did he say any thing further ? — He said that I should go back with him along the road. When you say go back along the road, in what direction or towards what place ? — Towards the Commons which I was leaving. The Lord Chief Justice . — What did he say ? — Mr. O’Brien said for to come back along with him on the road. The Solicitor-General Did you return back with him along the road ? —I did. THE QUEEN 'y. WILLIAM SMITH O’BEIEN. 4G1 Was he still on horseback ? — Yes. Did you return back with him in the direction towards where you had left the people 1 — I did. At this time had he any thing* in his hand ? — He had a stick. Had he any arms about him at this time ? — No ; he had a pistol in his bosom. Did you observe what he wore on his head at this time when he was returning with you ? — He wore a hat. What kind of hat ? — A common hat. At the time you first saw him, when you parted with your horse, what had he then upon his head ? — He wore a cap. Describe it a little more particularly ? — A cap with a gold band and a peak. Now, how far did you go back with him along the road from the place where you said you met him ? — I could not exactly say. As near as you can guess ? — Between a quarter and half a mile ; I could not exactly say. Did he say any thing to you, or had you any conversation with him, during the time that you were thus returning with him ? — I asked leave to speak with him. Mr. Whiteside . — This is after he got the horse ? The Solicitor- General. — No, he had not got it yet. [To the witness .) — You asked leave to speak to him ? — I asked leave to speak to him as one man might speak to another ; he told me to speak on, or something to that effect; and I then told him, in my view of the case, that it would be impossible for him to carry out what he had undertaken, or some words to that effect ; particularly as the Boman Catholic clergy, as he had seen that day, were against him. How could he expect to meet troops. The Lord Chief Justice . — Just state exactly what you said to him at the time that he gave you permission to speak ; just repeat the substance of what you said ? — I told him, my lord, that it would be impossible for him to carry out what he had undertaken. Lord Chief Justice Doherty . — You said, particularly as the Roman Catholic clergy, whom he had seen there, were against him. Were those your words ? — Yes, my lord. The Solicitor- General . — As he had seen that day, my lord. Lord Chief Justice Doherty . — As he had seen that day ? Witness. — Yes, my lord, as he had seen that day. The Solicitor-General . — Did you say any thing more, or did he then reply to you ? — I said that from the troops that would be brought against him, it would be impossible for him to contend with while such was the case. Mr. Whiteside . — What is this that you are saying about the troops? The Solicitor- General . — He followed it up by saying that troops would be brought against him with whom it would be im- possible for him (that is, Mr. O’Brien) to contend. Witness. — Yes, sir. 462 SPECIAL COMMISSION, CO. TIPPERARY. The Solicitor-General . — Now to that did Mr. O’Brien make any obser- vation, and do you remember the substance of it ? — He said that for twenty years he had worked for his country, and that his country could redeem itself if it liked, or something to that ejTect. Did any thing occur on this, or did he or you say any thing more that you recollect ? — There might have been something more said, but I do not recollect. You do not recollect any thing more ? — I recollect he said also that he wanted no blood. I was saying that this country could not be redeemed except with blood ; he said he wanted no blood ; I recollect him saying that. Did any thing then occur between you and Mr. O’Brien — He gave me my horse immediately after that. That is what I am alluding to ; he gave you the horse immediately after that ? — Yes. He dismounted and you got on ?— Yes. Did you observe in what direction he walked after he dismounted ? — He walked on in the direction I left. That you came from 1 — Yes. The Lord Chief Justice . — What direction was that? — Towards the Commons, my lord. • How far off was the Commons ? Mr. Whiteside . — About how far ? Witness . — I could not say, my lord ; about half a mile or better I should think ; I could not say exactly. The Solicitor -General . — Did you return to Kilkenny ? — Yes. Cross-examined hy Mr. Fitzgerald. You returned to Kilkenny that night ? — Yes. What time did you reach Kilkenny ? — About seven o’clock. What time had you left Kilkenny in the morning ? — About twelve. I think you said when you first arrived at the Widow McCormack’s house the firing was going on ? — When I first came to the field under the house. How far is that from the house ? — I think I came within a couple of hundred yards of the house, or one hundred and fifty yards. The firing was then going on ? — It was. How long did you remain there ? — I turned back; a man caught me by the bridle and said if I came up I should be shot. The Lord Chief Justice . — What do you say? you say the firing was going on when you got where ? The Solicitor- General . — To within one hundred and fifty yards of the house, my lord. Mr. Fitzgerald {to the witness ). — How long was it after that that you went to the house ? — It could not be more than a couple of minutes after. Did anybody harm you in the interval? — No. They turned you back because they said you would be shot by the people if you went on ? — By the police he said. Keep back or you will be shot by the police ? — Yes. And they did you no harm ? — No. How long were you at the Widow McCormack’s house at the time you went up to it ? — I could not be more than between five and ten minutes. THE QUEEN y. WILLIAM SMITH O’BRIEN. 463 Had the firing ceased then ? — It had. And then you returned in the direction of Kilkenny ? — Yes. Now, after you had been left alone with this man whom you have spoken of, I think you said you had walked a mile and a half on the road before you met Mr. O’Brien ? — I calculated upon that, but I could not say ; it might be more or it might be less. That is after you had seen the police on the cars 1 — It was. You had taken a walk of a mile and a half after you had seen them ? —Yes. The Lord Chief Justice. — What direction were they going in ? — They were going on in the direction of Ballingarry, the way I came in the morning. Mr. Fitzgerald. — However, as you walked on you left these parties behind you ? — I did. And then you met Mr. O’Brien on the horse ? — Yes. And he was coming to you 1 — He was. You were going away from him, and he was coming to meet you % — No, I was going to Kilkenny. Mr. O’Brien was then coming in the direction of Kilkenny ? — Yes. The Lm'd Chief Justice. — Is Ballingarry in the direction of Kilkenny ; were you on the Ballingarry road ? — I was on the road between the Commons to Kilkenny through Tullagh. Mr. Fitzgerald. — As you were going in the morning you went through Ballingarry % — Yes. The road towards Kilkenny turns ofi* from that road between Ballin- garry and the Commons? — The road to Ballingarry wheels You turn to the right I believe as you go from Ballingarry to the Commons ? — Yes, I went across the fields until I came to the Commons, and then I went on the Commons’ road. When you met Mr. O’Brien you were going from the Commons? — I was. And Mr. O’Brien when you met him was going towards the Commons ? — He was ? When you met Mr. O’Brien he asked if you were going to arrest him ? — Yes. And when you said you were not he did you no harm ? — No. Now, you said a moment ago that Mr. O’Brien asked you to turn back with him ? — Yes. Is it not the fact that you had asked him for your horse first ? — Well, I believe I did j I cannot exactly say. And when you had gone back with him a little way he gave you the horse ? — Yes. And he did not ask you to go any further with him ? — No. It was during that period that this conversation that you have talked of took place ? — It was. Now, are you sure that you are a very accurate reporter of conversa- tions ; you said you were confused ? — I give it to you as well as I can recollect. There was a great deal more occurred, but it would be impos- sible for a man placed in the position I was, to remember every thing. You are sure that he said he did not want any blood ? — I am sure those are the last words he uttered, Mr. Joseph Cox, sworn — examined hy Mr. Scott. What rank do you hold in the police ? — Sub-Inspector. 464 SPECIAL COMMISSION, CO. TIPPERARY. Where were you stationed on the 29th of July last ? — At Cashel. Did you on that day leave Cashel to proceed on any duty ? — I did. With your force ? — I was immediately before them. What force had you then following you — Twenty-two was the total number; there was a head-constable, four or five constables, and the remainder were sub-constables. About what time did you leave Cashel ? — About one o’clock. In what direction did you go ? — We went to Ballynalty, up to Mr. Langley’s. Is that in the direction of the Commons of Boulagh ? — Yes. At what rate did you go ; fast or slow ? — Fast. What made you go fast; did you receive any intimation that induced you to think Mr. Whiteside . — What induced him to think is not evidence, Mr. Scott. The Lord Chief Justice . — Confine yourself, Mr. Scott, 'within the limits. Mr. Scott — How far had you got before any obstruction occurred ? Mr. Whiteside . — That assumes that there was an obstruction. The Lord Chief Justice {to the witness ). — Did you meet any obstruction on your way ? — I did, my lord. Mr. Scott Do you know the Widow McCormack’s house ? — I dare say we had got within half a mile when I met what I may call the first attempt at an obstruction; when we got within view of the Widow McCormack’s house. Mr. Whiteside . — Does your lordship think this is evidence against my client ? Any obstruction that he may meet on the road, unless Mr. O’Brien is proved to be connected with it, can- not be evidence against him. The Lord Chief Justice . — I take it for granted that there will be some evidence to connect him with this obstruction. Mr. Whiteside . — Until they connect Mr. O’Brien with it, in some way or other, it cannot be evidence. The Lord Chief Justice . — Of course not. Mr. Scott . — It is the obstruction of an armed party. The Solicitor-General . — It was the same party which caused the obstruction. Mr. Whiteside . — Do you connect it in any way with Mr. O’Brien ? Mr. Scott . — Not in the least. The Lord Chief Justice . — Of course it goes for nothing unless it is connected with Mr. O’Brien. Mr. Scott . — I am only now going to connect it with the party up at, or near to, the house of the Widow MUormack. {To the witness .) — Just state now what occurred? — On coming within view of the house, something less than half a mile from it, we saw a THE QUEEN WILLIAM SMITH O’BRIEN. 465 large number of persons formed in line on the hill fronting towards us, and I called the attention of the magistrate to it. What magistrate had you with you ? — I had the Honourable Mr. French. The Lord Chief Justice. — When you came within half a mile of the Widow MUormack’s what did you see ? — A large number of men, my lord, formed in line between us and the house, a little to the left of the road. Mr. Scott. — Can you form any estimate about how many there were in that body? — They appeared as they came down to meet us to be about two hundred. Did they come down to meet you ? — They did, and we went on to meet them. Can you say whether that party that came down to meet you had any arms with them or not ? — I can. Well state the facts ? — When we came near each other they formed themselves into three parties j one went at either side of the road, and a smaller party came down the road to meet us. There were two or three very high ditches just at that spot. They got to the rere of the ditches, and we could see their heads, necks, and shoulders along the potato ridges; and we could see them armed principally with pikes and pitch- forks. Did you see any guns with them? — Not at that time; I did imme- diately after. Now describe what occurred then? — There was a cross-road just at the foot of the hill, and as we came to that cross-road there was a small house, and what is commonly called a haggard to the left; and I remarked that in this haggard Mr. Whiteside. — It is not necessary to give us wliat you remarked. Witness. — 1 only remarked what I saw. In this haggard' there was a Jot of people out and about the potatoes. The Lord Chief Justice. — There was a haggard about the small house? — A small garden, commonly called a haggard, my lord. Mr. Whiteside. — Oli, yes, we all know what that is. Mr. Scott . — You saw a number of people in that haggard ? — About fifty or sixty, as nearly as I could judge. J ust at this time the remainder of the party were forming upon the hill about two hundred yards or a little better from this cross-road in front of us; between us and the Widow MUormack’s house. What did you do ? — I then spoke to the magistrate and received his directions, and after that I fell my men in, examined their arms, and gave them the word of command, and we moved on towards the cross. We were very close to the cross then, we were coming within shot of it; and on coming to that position those people at the cross retired up the hill, and joined a larger party of the people, and immediately they all commenced yelling and shouting. Can you state what time of the day that was? — About half-past four. What more occurred ; what did you do ? — On arriving at the cross I sent five men and a constable to each side of the road, gave them their orders, and I rode with the other men straight up the hill ; I sent those 2 II 466 SPECIAL COMMISSION, CO. TIPPERARY. men on each side, and on coming near the people I called on them to stand back, to clear the way, and that I should get up the hill. Were they across the road 1 — They were, some of them across the road, and the greater portion by far on the hill side of the road ; some few of the people retired, walked off ; and when we came a little closer they all retired about one hundred yards further up the hill; and on our getting up to that position where there was another small house upon the right of the road, they seemed determined to make a stand ; and upon coming there the party on the left of the road as we went up raised a tremendous shout. Mr. Whiteside. — Another shout ? — Another shout ; and rushed forward with their pikes at us, three or four men. Mr. Whiteside. — I do not know any overt act laid in the indict- ment which applies to this. The Attorney-General. — Levying war does. Mr. Whiteside . — I must ask your lordships’ opinion on this point. In the indictment the overt acts are specified; and the time and place of each of them are given, as they were hound hy law to do. This does not apply to any of those overt acts; and I respectfully submit that unless Mr. O’Brien is brought in con- nexion with these parties, this long inquiry is irrelevant ; and if so, according to the principle which governs all criminal cases, it ought to be rejected. Evidence in this case ought to be as clear as light before it is received. Mr. Scott. — I apprehend, my lords, that we have already con- nected Mr. O’Brien with the armed party in that immediate neighbourhood. Mr. Fitzgerald. — Your lordships will remember that the evidence of the policeman was, that full two hours had elapsed before Mr. Cox’s party had arrived. Mr. Whiteside. — Upwards of two hours. The Lord Chief Justice. — W e think this is the act of the same armed party ; hut that is for the jury to judge of. Mr. Scott {to the witness). — Now just describe the next occurrence as you have already very clearly described the others 1 — This party on the left was led on by two or three men who made themselves very conspicu- ous, and came out in the front of them. The Lord Chief Justice. — You must go slowly, as I have to take it down. The party on the left were led by whom'? — By two or three men in particular, my lord ; they came some yards in advance of them, and they shouted to them to come on, which order they obeyed ; and they were rushing towards us when I ordered them to stand back, and said if they came any nearer I would fire upon them. Lord Chief Justice Doherty. — How were they armed ; or were they armed at all % — They were armed with pikes and pitchforks ; some with stones, and some with guns, which I had not seen before up to that time, but they fired on us immediately afterwards. Mr. Scott. — Bid they fire upon you before your party fired? — I did not hear a shot, but one of the men called out that he was fired at. They were yelling and shouting. I did not hear the first shot fired. I ordered the police to fire before I heard a shot fired. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 4G7 Mr. Justice Moore. — How far were they from you % — Some, m.y lord, were within seventy yards, some one hundred, and some one hundred and twenty; they were coming in all directions upon us. This party on your left % — The party on the left were about seventy yards from me, my lord. Mr. Scott. — Can you say what the other parties in front, on the road, or on the right, were doing ? — The party on the road had left it before that ; we had marched on and got nearer them, and they left the road. What did those on the right do ? — I could not exactly tell, for my back was turned. Hid the police then give their fire 1 — They did. Was that fire returned by the other party ? — It was. How long did the contest last h — A very few minutes I believe ; I should say a very short time. What became of the persons ? — I saw one man fall, and there was a pause, then there was a cheer, and a few more shots fired, and they did not come on any more. Then what became of them 1 — Some ran away ; some laid down, and some looked out for their safety as well as they could. What did you do ? — I proceeded up the hill to the Widow McCormack’s house, where I found the party of police. Hid you find them there h — I did. Were you or any of your party injured ? — No. Mr. Justice Moore. — Hid you fire more than one round? — Some of the men I believe fired five or six rounds, some fired three ; there was what is called an independent file firing kept up for a few minutes, and each man fired according to the position he was in. Hid you see whether any injury was done to the house ? — Which house ? The Widow McCormack’s house. Hid you see the marks of any conflict there ? — The house was a perfect wreck inside. The furniture appeared to have been broken in pieces. Hid you see any injury done to the outside ? — I did not. I walked with Mr. French through the rooms, and I saw inside the marks of two or more bullets which had the appearance of having been fired into the house. Mr. Scott. — Hid they look like the marks of bullets which had come through the window from the outside ? — I think they had. Are those marks that could have come from bullets coming through the window, firing through ? — I cannot say. Hid you find any thing at all about the house? — No, I saw a couple of pikes taken up by one of the men, convenient to the house. Cross-examined hy Mr. Whiteside. In examining the house when you talked of it being wrecked, I believe it was wrecked in the furniture ? — I could not exactly say. Is not that your belief ? — The furniture I saw had the appearance of ' having been used as barricades. And you think you saw two bullets ; are you quite sure ? — I am quite certain I saw two marks as of bullets. Marks as of bullets. You did not see the bullets themselves? — I did not. And immediately after that transaction occurred, at least about two 2 H 2 468 SPECIAL COMMISSION, CO. TIPPERARY. hours after it, you relieved Mr. Trant ? — They were in the house when I got there. Had they been there a couple of hours ? — They might have been in the house ten hours for all I know. When you came up to the house, it was then you went into the rooms ? — Yes. Which of the rooms did you go into ? — The upper rooms on the left- hand side. But the outside of the house was all safe ? — I do not say that ; I did not remark any thing on the outside. I think a man of your keen perception would not have failed to remark it if there was. You are the gentleman I believe that Mr. Trant said regretted that the reward of £500 had slipped through your fingers ? — I never regretted it slipped through my fingers ; it was not in my fingers. But you regretted that you had not got it ? — I regretted that he had not got it. Lord Chief Justice Doherty. — He did not say that he regretted it. Mr. Whiteside — You were surprised that he let it slip through his fingers ? — I think he might have got it. It is very likely if you had been there you would have got it ? — It is likely I would have tried for it. You would not have gone into the house I think ? — I do not say that. Did you run into any house ? — Not that I recollect. How many men had you out ? — Twenty-two. I suppose you drew up a despatch ? — Not a very long one. You have given us the contents of that important despatch ? — Indeed I think very little of it. You have given us the contents with a grace of manner that the des- patch could not carry. You have described several shouts. As you went up the hill there was a loud shout ? — Yes. The loud shout did not kill any of you ? — No. It did not affect you ? — Not much. Nor injure you ? — No. Were any of your men injured ? — Not in the least. I suppose when you marched up the hill you shot some of the people ? — I think there were some of them shot. And you gave the word to fire first ? — I did. The great majority of the people had pikes ? — They had. And there were very few fire-arms? — Very few fire-arms comparatively speaking. A great number of the people had only common pitchforks. Would you not prefer a policeman’s carbine to a pitchfork ? — That depends on the distance. At seventy yards ? — I would prefer a carbine. And you arranged all this business quite to your satisfaction ? — Yes. Tell me the name of the person whom you sent to get Mr. O’Brien’s portmanteau from Cashel ? — I sent no one. Who was the person who got it ? — Norton, I believe. What is his Christian name ? — John. Is he alive still ? — I believe he is. Is he here ? — He is here; I saw him here. He told me he had it in his own house, and brought it. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 469 Michael Mulgreiv, sworn — examined hy Mr.. Sausse. Were you with Sub-Inspector Cox on the 29th of July last going towards the Widow M‘Cormack’s house 1 — I was. Do you remember seeing any persons when you were getting close to the house, about a mile from it ? — I do, when within a mile of it. Were they armed? — Some of them were. Did you hear any shot fired before any of the police fired that day ? — I heard the report of a shot. In what direction ? — At the lower end of the house as we got past it. Was that where some of those people whom you described were 1 — Yes. Did you see any thing done by any of the people who were in front of you, or in the rere, or at either side of you as you were advancing ? — I saw them collecting together in the fields on each side of the road. Did you see any thing done by any party of armed men in reference to your own force ? — I saw them coming up to us with pikes in their hands. Were they walking or running? — After the shot was fired from the lower end of the house when we had passed, they came on more deter- mined then. About how many of them should you think were coming towards you with pikes ? — I was situated at the right-hand side. Just tell me how many ? — About fifty of them in the group that I saw. Did some of your party fire on those people advancing in that way towards you ? — They did. Cross-examined hy Mr. Fitzgerald. What house were you speaking of ? — I do not know the name of the occupier of the house. Was it before you came to the Widow MUormack’s ? — Yes. Upon which side of the road was it ? — The right-hand side. The Lord Chief Justice . — Have you done with this part of the case ? The Attorney-General . — We have, my lord ; but we are going to ask a few questions with respect to what has occurred in cross-examination on other portions of the case. John Norton, sworn — examined hy Mr. Lynch. Do you recollect any time in last August having given a portmanteau to Sub-Inspector Cox ? — I do. Where did you get that portmanteau from ? — I could not account for it; I could not say where it came from. It came with some furniture of Mr. Doheny’s to a Mr. Littleton’s, and from there it was brought by my boy to me. Whose portmanteau it was I did not know. Was the portmanteau locked when it came to you ? — It was. Was it strapped also ? — Yes, it was. The Lord Chief Justice . — Ask how long it was in his pos- session. Mr. Lynch . — How long was it in your possession ? — About four days, as near as I can recollect. Did you give it to Mr. Cox in the same state as that in which you got 470 SPECIAL COMMISSION, CO. TIPPERARY. it ? — In the same state as my boy brought it to me. My boy gave it to Mr. Cox in the very same state as I got it in. Cross-examined hy Mr. Whiteside. May I ask you what you are by profession ? — A builder. You reside in Cashel? — Yes. And you cannot tell us under what circumstances this portmanteau came into your possession ; I do not wish to press you ? — I cannot tell. You cannot tell where it was while out of your possession, nor what was done with it during that time ? — No, I cannot. I gave it to Mr. Cox, and I do not know what happened it afterwards. After that you do not know what was done with it? — No. What was the name of the person who brought it to you ? — Michael Kennedy. Is he alive ? — Pie is. Lord Chief Justice Doherty . — Is that the person whom you called your boy ? — Yes. The Attorney-General . — Where is he ? — In court, I believe. Mr. Whiteside . — Was that portmanteau four days in your possession ? — It was about four days. Was it for several days ? — Yes, for several days. And you do not know, I suppose, how long it was in any other per- son’s possession after it was out of the possession of Mr. Smith O’Brien ? — I do not know whether it belonged to Mr. Smith O’Brien at all. What part of the house was it in ? — In my house it lay upon a table of Mr. Boheny’s. Not in his own house ?-^Not in his house, but in mine. The furni- ture was removed from Mr. Doheny’s to my house, to be sold by auction. The Attorney-General . — Whose furniture? — Mr. Doheny’s. Mr. Whiteside . — In what part of the house was this portmanteau? — It lay upon a table. In an open room ? — In an open room ; in the most conspicuous part of my house. Had everybody access to that room ? — Everybody that chose. The room door was not locked? — No, indeed it was not. And it lay there four or five days ? — It did. Were you going to sell it ? — I was not; I had no call for it. But it lay there during that time ? — Yes. You don’t know what was done with it before you got it ? — I do not. And then your boy gave it up to the police ? — I gave it to Mr. Cox just as I got it. I suppose you were out of the house during the day ? — I was not there when the portmanteau came to me at all. You were not there at all? — No. It was brought there when you were out; it was not in your cus- tody ? — The portmanteau was brought there in my absence. And you were often out during the time it was there ? — Yes. Michael Kennedy, sworn — examined hy the Attorney-General. In whose employment are you? — Mr. Norton’s. Were you in his employment in the month of August last? — I was» l)o you recollect bringing a portmanteau to his house ? — I do. THE QUEEN v. WILLIAM SMITH O’BRIEN. 471 Where did you bring it from ? — From Mr. Littleton’s garden. Where does Mr. Littleton live h — At the lower end of the town. In what street 1 — The main street. What is Mr. Littleton? — He keeps a pawnbroker’s shop; a pawn- office. In the town of Cashel ? — Yes. Who gave you the portmanteau ? — His son. Where was this portmanteau at the time you got it ? — It was in a kiln in the centre of the garden. Was it locked at the time you got it ? — Yes, it was. Was it strapped and buckled ? — It was. Where did you bring it to ? — I brought it to my master’s house. That is, Mr. Norton? — Yes. How long was it then before Mr. Cox got it ? — I do not think more than about a couple of days. Hid any one send you for it, or bow did you happen to go to the kiln ? — I was in the act of taking down Mr. Hoheny’s furniture. From where ? — His own place. To where ? — Down to Mr. Littleton’s garden. I was taking the bed- steads asunder, and I happened to go down with the car. Mr. Whiteside . — Into this garden? — Yes. The Attorney-General . — And you found this in the kiln ? — It was in the load coming down, and they left it inside the kiln. It was in the load of furniture coming down from Mr. Hoheny ? — Yes. And was any furniture put into the kiln along with the portmanteau ? — There was ; the most part of it was put into the kiln. What sort of a kiln is it ? — It is near Mr. Lockwood’s house. Could you tell me what portion of the furniture was put into the kiln along with this portmanteau ? — Some beds. I cannot say what else. Where was the rest of the furniture put ? — Into a great many houses in the town. Had the sheriff come at this time ? — No. And was it in this kiln that you afterwards got the portmanteau when you brought it to your master’s house ? — Yes. Were you present when it was given to Mr. Cox’s messenger? — Yes. Where did you bring it from ? — From my master’s house. The Lord Chief Justice . — Where did you first see that port- manteau ? Mr. Whiteside . — He said, my lord, that he first saw it in the kiln. The Attorney- General. — No, no. {To witness .) — Where did you first see that portmanteau ? — I saw it at Mr. Hoheny’s. I think you said you saw it removed with some other furniture from Mr. Hoheny’s house to the kiln ? — Yes. About how long was it from the time you put it in the kiln until you brought it to your master’s house? — I could not say exactly; about half a day. Cross-examined hy Mr. Fitzgerald. Are you sure that you ever saw this portmanteau in Mr. Hoheny’s house ? — I think I did. 472 SPECIAL COMMISSION, CO. TIPPERARY. Whereabouts ? — Above in one of the rooms. Were you removing his furniture? — I was taking the beds asunder. Were there other parties employed ? — There were. I think you said the furniture was taken to different houses in the town ? — It was. After you saw it in the house, where was the next place that you saw it ? — At Mr. Littleton’s kiln. When you were removing the furniture the house was open ? — Yes. Anybody might have gone in ? — Yes. Did you accompany the car in which that furniture left? — No; there were several car-loads gone before I left the house at all. You did not see this upon any car? — No. And the next thing you know of it, after seeing it, as you think in the house, was at the kiln ? — Yes. And you brought it from that kiln ? — Yes. Were there any other trunks or portmanteaus in the house ? — There were boxes and trunks there, I believe two trunks, but this was covered with leather, the rest were not. Re-examined hy the Attorney-General, Was this a limekiln that you were speaking of? — Part of it is a lime- kiln, and the rest of it is used for a store. John Wilson, sworn — examined hy the Solicitor-General. Are you in the Dublin police ? — I am. Do you remember in the months of June and July being stationed at a place called Constitution-hill ? — I was. Did you ever observe any house on Constitution-hill, with blinds in the window, with any thing written upon them ? — I did. Describe, as near as you can, upon what part of Constitution-hill this house was ? — I think it is the next house to Temple wall. Queen’s Inn’s wall ? — Yes. Is it on the right or left as you go up from Church-street ? — On the right. What was it that you observed written upon those blinds in the window of that house ? — The words “Red-hand Club.” Did you see those words more than once there ? — Indeed I did; I saw them for the most part of the month. Of what month ? — The month of J uly. A Juror {Mr. Sadler ). — Did you make any report of it? — Yes. Were you put there to watch that house ? — I was, along with another constable. You were on duty, in fact, to watch the persons going in and out of that house ? — Yes. Cross-examined hy Mr. Whiteside. Did you see those words written up there on the blinds in the month of June? — I cannot say. I was not on duty there then. How long were you upon duty there ? — The greater part of the month of July. What kind of room was this ? — It was a front room. How was it written up; could any person walking along the street see it ? — Any person walking along the street could. Were you ever in Capel-street ? — I was, often. THE QUEEN v. WILLIAM SMITH O’BRIEN. 473 Can you tell me, for my information, wlietlier there is the name of any club written up in Capel-street ? — I cannot say; I was not on duty in Capel-street. Were you ever in Dame-street? — I was. Did you ever see written up there the words, “ Mercantile Assistants’ Club ?” — I will not say that I ever saw it. Were you ever in D’Olier-street ? — I was. Is there the name of any club written up there ? — I do not know that there is. Don’t you know there was not ? — I do not. What part of the town are you stationed in ? — I belong to the Church- street division. Do you know Cumberland-street ? — I do. That does not belong to my division. Did you ever see the words Grattan Club” upon any window there ? — I did not. Are you sure that you did not see it ? — I am not positive. Were those words large or small ? — They were in large letters. What colour were those letters that you speak of — “the Red-hand Club?” — Some of them -were red. Were you ever inside that house? — I was there searching for arms with my inspector yesterday. You got directions since this trial began to go there ? — I did. Do you know whether the orders were sent from here for you to go there ? — I cannot say ; I was on duty. The inspector brought you there along with the other constable ? — Yes. When did you get directions to come down here ? — Yesterday. Was that after you made the search ? — It was. Michael Kirwich, sworn — examined hy the Solicitor-General. You are in the Dublin police ? — Yes. Do you know Wilson, the last person who was here? — Yes. Were you ever o;i duty on Constitution-hill, the upper end of Church- street ? — I was. Do you know the place where the Red-hand Club held their meetings ? Yes. Were you there in July last? — Yes. Are you able to say whether the words “Red-hand Club” were visible from the exterior, or any part of the house ? — I am. Tell the jury where you saw it written? — I saw it on the windows of a house. No. 3 Constitution-hill, the words written, “Red-hand Club.” A Juror {Mr. Sadler ). — Do you remember the first time you saw it? — It was upon the 1st of July. Did you continue on duty there the whole of the month of July ? Yes. A Juror {Mr. Moore ). — In reference to that house ? — Yes. Did you ever point out those letters to any other policeman ? — Yes. Did you observe any persons going in and out of that place ? — Yes. Did you observe those persons going in and out both by night and by day ? — Yes, in the day and in the evening. That was your duty ? — Yes. 474 SPECIAL COMMISSION, CO. TIPPERARY. Cross-examined hy Mr. Fitzgerald. You first saw those words when you were put on duty over that house ? — That was It was the 1st of July when you were first put upon duty there ? — Yes. A Juror {Mr. Sadler) — What was the last time you saw it ? — The last time I saw it was either the 27th or 28th of July. There was no assembly there after, I think, the 25th of July ; but the blinds and the words ‘‘ Red-hand Club ” were there a few days after that. Mr. Whiteside. — A few days after what? — After the 25th of July. A Juror {Mr. Sadler ). — Is it there now ? — It was not there when I left Dublin ; 1 was about there before I left, and it was not there then. Mr. Whiteside. — Were you there with Wilson ? — Yes, Wilson was with me there yesterday. William Kemmis, Esq., siuorn — examined hy the Attorney -General. You are I believe the Crown Solicitor? — I am. What is that you have in your hand ? — It is a copy of an order in council, to try among the rest William Smith O’Brien. What is the date of it? — 18th September, 1848. The Lord Chief Justice . — Did you see that attested ? — I compared it, and saw it attested. Mr. Whiteside. — Let me see it. ( The document was handed to the learned counsel.) The Attorney-General. — Who is the proper officer for attesting this? — The clerk of the council, Mr. Conolly Norman. ^^COPY OF ORDER IN COUNCIL. By the Lord Lieutenant and Council of Ireland. “ Clarendon. “ Ordered that Her Majesty’s justices and commissioners of Oyer and Terminer and Gaol Delivery in and for the county of Tipperary, be at liberty to proceed on the trial of William Smith O’Brien, Thomas Francis Meagher, Maurice Richard Leyne, Patrick O’Donohoe, Terence Bellew McManus, Patrick O’Donnell, Thomas Stack, James Orchard, and Denis Tyne. They or any of them who shall be brought before them. “ Given at the council-chamber in Dublin this eighteenth day of September, 1848. Maziere Brady, Talbot, Edward Meath, Fingall, E. Blakeney, Charlemont, F. F. Kennedy, Bellew, Wm. M. Somerville, W.F.Tighe, James H. Monaghan. “ True copy. “Conolly Norman, clerh of the council.'' The Attorney- General. — We nov^^ put in, my lord, copies of The Dublin Gazette, containing the proclamation issued from the council-chamber in Dublin, already proved. This, my lord, contains the proclamation dated 18th July, 1848. It recites, that hy the provisions of an act recently passed Mr. Whiteside. — What it recites is not evidence ; the fact of the proclamation may he. The Attorney- General . — ^This proclamation states THE QUEEN WILLIAM SMITH O’BRIEN. 475 “ Now we, the Lord Lieutenant, do, by this our proclamation, in pur- suance and execution of the said act, and by and with the advice of Her Majesty’s privy council in Ireland, declare, that from and after Thursday, the twentieth day of this present month of July, 1848, the said act shall apply to, and be in force in and for the county of the city of Dublin.” Then there is another proclamation. Mr, Whiteside. — Is that the one suspending the Habeas Corpus ? The Attorney -General. — No. This is a proclamation, my lords, extending the provisions of the act to the county of Dublin. We put this in as read. There is another proclamation offering a reward for the apprehension of William Smith O’Brien. I do not think it necessary to read that. We now propose to read the letter of Mr. O’Brien, which has been already proved in several ways, and proved to have been in the handwriting of Mr. Smith O’Brien by Mr. Franklin. The letter is marked A. Lord Chief Justice Doherty . — That is the letter, produced to-day, sent to the Mining Company. The Attorney-General. — Yes, my lord. The Clerk of the Crown. — This letter is dated, 29th of July, 1848. “ Mr. WiUiam Smith O’Brien presents his compliments to the Directors of the Mining Company, and feeling it incumbent upon him to do all in his power to prevent the inhabitants of the collieries from suffering inconvenience, in consequence of the noble and courageous protection afforded by them to him, takes the liberty of offering the following sug- gestions : — He recommends that for the present the whole of the proceeds arising weekly from the sale of coal and culm be applied in payment of men employed hy contract in raising coal and culm. He recommends that a brisk demand be encouraged by lowering the price of coal and culm to the public. “ In case he should find that the Mining Company endeavours to dis- tress the people by withholding wages and other means, Mr. O’Brien will instruct the colliers to occupy and work the mines on their own account ; and in case the Irish revolution should succeed, the property of the Mining Company will be confiscated as national property. “ On the contrary, if the Mining Company observes a strict and honour- able neutrality, doing their utmost to give support to the population of this district during their present time of difficulty and trial, that then their property shall be protected to the utmost extent of Mr. O’Brien’s power.” The Lord Chief Justice We shall require to be furnished with copies of these letters, and also of the informations with the speeches proved by the police constable in Garrick. The Attorney- General. — Your lordship shall have copies of them. We now propose to give in evidence these two pencil- tracings, which were found upon the person of Mr. O’Brien, and proved by General MacDonald. 476 SPECIAL COMMISSION, CO. TIPPERARY. The Lord Chief Justice. — Let us clearly understand how these were j)roved ? The Attorney-General. — They were proved by General MacDonald at the time of his arrest to have been found upon the person of Mr. Smith O’Brien ; they were included in the inventory which General MacDonald took of the things so found. Your lordships remember that there was a variety of articles found. These are two distinct documents. The Clerk of the Crown. — This appears to be a tracing of the country. “ Killenaule” is at the head of it. There appears to be a road traced down to the Commons in the centre, and there is a road off to the right to Urlingford, and another road leading up towards the north, and marked with the words “New Bir;” and then there is a road which appears to be from “ Thurles” to “ Balhngarry.” Down towards the left there is a road towards “ Mulhnahone.” In the centre again there is a road to Ballin- garry, and that road is traced on till it comes to Killenaule, and there is a mark here for the collieries. Tliis, my lords, is another pencil-tracing. The names upon it are very indistinct. At the head there is a place called Durragh, and there is a straight line down to a centre point, which seems to be particularly marked ; I cannot see what name it is. Then there is another line which leads to Lisdonnah and Ballygred ; another line down to Freshford ; and another line to Gauran, and down to the Commons into Balhngarry. That is all I think. OBJECTION TO LETTER FOUND IN PORTMANTEAU OF PRISONER. The Attorney- General. — We now propose to read the letter found in the portmanteau of Mr. Smith O’Brien, which we have proved to be in the handwriting of Mr. Duffy. Mr. TVhiteside. — I submit now that it is perfectly plain, upon the evidence given to-day, that this must be rejected. I have with me several authorities, in order to fortify myself in any thing I might have to urge upon this subject, as the Court would not perhaps attach much importance to any thing I might state as my own opinion. The Lord Chief Justice. — Your opinion, Mr. Whiteside, is as much to be received with respect as that of any counsel. Mr. Whiteside. — In the case of the King v. Watson Lord Ellenborough states, page 359, vol. xxxii. of the State Trials, with respect to the admissibihty of the evidence in that case — “In Sidney’s case tlie paper itself had no reference to any given object ; it contained his abstract speculations in the closet. The ques- tion here is, how can you apply this evidence as conducive to effectuating any of the purposes of the conspiracy ? The difficulty which presents itself to me is, how it tends to effectuate any of the objects of the con- spiracy stated in evidence.” And finally his lordship decided upon rejecting it. THE QUEEN y. WILLIAM SMITH O’BRIEN. 477 Now what is the evidence in this case with respect to that portmanteau ? lam not saying that it is not proved to belong to Mr. Smith O’Brien ; but I am submitting that any thing found in that portmanteau which does not appear to be distinctly marked, or in his handwriting, cannot be evidence against him. The grounds upon which I make this objection turn upon the late evidence in this case. It is plain that this portmanteau passed out of his possession for a very long period of time ; that it was in the possession of several persons, and that the custody of it is left loose beyond all belief. It appears to have been at some place in Cashel ; removed from there by somebody who has not been called for the purpose of proving the removal; that the person who had the custody of it tumbled it into a cart with some furniture ; that it was then thrown into a limekiln, and having been left there some days, it is brought to the house of a builder ; it remained there four days, and is then delivered up to the pohce inspector. In that condition of things, it is insisted that the contents of that portmanteau are evidence against Mr. Smith O’Brien. If I show the Court that, consistently with that state of facts, any number of documents might have been put into that portman- teau during that time — and that is my case — then, I contend the Crown must show in point of fact that these documents did exist before Mr. O’Brien was in custody, and that they were actually in his possession before that time. It is proved in this case by one of the witnesses, a detective, that he got four hundred letters in an open press in Eustace-street, in the city of Dublin, where they were manifestly laid for the purpose of being found by him. I want to know, consistently with the evidence in this case, what there was to prevent the transfer of the whole of those four hun- dred letters into this portmanteau ? I want to know what there was to hinder this detective from having either the whole of those letters, or some of them, introduced into that portmanteau? According to the case as it now stands, and as it is now insisted upon by the Crown, the whole four hundred of those letters, un- marked, without any mark upon them or other notification of their ever having been in the possession of Mr. O’Brien, with nothing but the bare fact of their having been found in his trunk, would be evidence against Mr. Smith O’Brien. I admit, my lord, that every thing in that trunk that is in his own handwriting is evidence against him. There is, my lords, the greatest possible distinction, and it is a fundamental princij)le in law that such a distinction should exist, between documents found before and documents found after a person’s arrest. In the case of the King V. Hardy, where the case was infinitely more strong than the present for the reception of the evidence. Lord Eldon, who was then Attorney-General, did not attempt to offer the papers in evidence until he had proved, by independent evidence, that the paper found in the possession of the co- conspirator existed before 478 SPECIAL COMMISSION, CO. TIPPERARY. it was found there. In vol. xxiv. of the State Trials, p. 865, Hardy’s case, the Attorney-General says — I am now going to call a witness to prove that a paper was found in the possession of Mr. Thelwall, and also to prove that another paper of the same sort was found in the possession of Mr. Martin, being of the handwriting of Mr. Martin; these papers were found after the appre- hension of Hardy.” Mr. Gihhs objected to the evidence even upon that, where the Attorney-General proved not only the finding of the very paper in the custody of a co-conspirator, whom he had before proved to he a co-conspirator, but, in addition, that he was arrested before Hardy. Mr. Gibbs there insisted — for the case was argued and decided — that it must he shown not only that it existed before the arrest, but that it was used by the prisoner. In the case of the King v. Watson this question was also argued. The Lord Chief Justice . — Just state the facts in Hardy’s case. Mr. Whiteside . — In that case, my lord, Thelwall was a co- conspirator, and a paper was found in the possession of Thelwall. The paper is not described in the report of the case ; the evidence is not set forth so fully as usual ; but it appeared that another paper of the same sort was found in the possession of Mr. Martin, and was proved to be in his handwriting. The papers appeared upon the face of them to be prepared for the general meeting of the Corresponding society which was to have been held upon the 14th of April, 1794, at Chalk Farm. Mr. Gibbs says — “ Your lordship sees that the evidence offered is, that these papers, after the apprehension of Mr. Hardy, were found in the possession of Mr. Martin and Mr. Thelwall, merely that they were in their possession, and not that they were ever used by them. It does not appear but that they might have got into their possession again, but simply that they were in their custody as a newspaper is in my hands this morning, and may pass into other hands.” Then Lord Chief Justice Eyre says — “ The only ground upon which any paper is objected to as evidence, found after the apprehension of the party, is, that by possibility the paper might not have existed, or might not have been in the hands of the per- son, till after his apprehension.” The Lord Chief Justice . — Apply yourself to this case. That was the case of a paper found in the possession of a third party ; this is a case of a letter which justifies the presumption, of being a paper found in the possession of the prisoner. Mr. Whiteside . — I am going to that directly. I have not for- gotten that, my lord. I merely use this case for the purpose of proving the proposition I was pressing. Suppose it were now proved that the party, in whose custody it was, was a co-conspi- rator, as in the case in which Sir J ohn Scott called the witness, and that it was a paper relating to a common object, to a part of THE QUEEN 2;. WILLIAM SMITH O’BRIEN. 479 the transactions of a corresponding society as in the case to which I have referred, then I conceive that they ought to show that the paper existed before the arrest of the prisoner ; other- wise five thousand papers, not belonging to the prisoner, and not in his handwriting, may all be read as evidence against him upon his trial ; because, it is said that the circumstances in which they were found make it probable that the prisoner was aware or cognizant of them. In the case of the King v. Watson the same principle was contended for by Sir Charles Wetherall. A packet of papers was found there ; but, in point of fact, they did not appear to have been delivered or made use of till after the arrest of the prisoner. He cites this case, and it is admitted by Mr. Justice Bayley, who takes a distinction between the case before the Court and what occurred in Hardy’s case. Mr. Starkie lays down the rule in the same way, under the head “Treason.” That is a plain rule of law, and how does it apply ? I quite admit, as the Lord Chief Justice has said, that it may not apply ; and that is the whole question. And this is the only ground upon which the entire contents of that portmanteau, of which I know nothing, no matter by whom written, or to whom addressed, are to be given in evidence against Mr. Smith O’Brien in this capital case. But what is the evidence ? The Lord Chief Justice . — Just treat the question as it now stands, and it will be more intelligible. This is a letter proved to be in the handwriting of Duffy to Mr. O’Brien ; and there is some evidence, I need not say how much, to connect Duffy and the prisoner. Mr. Whiteside . — That brings it then, my lord, within the principle of Hardy’s case. I will take it in that strong manner against myself. Supposing Duffy was a co-conspirator, which I deny, that is then the case of Hardy. It is a letter not written by Mr. O’Brien; it is the writing of another person. It is found, not in the possession of Mr. O’Brien — if found upon his person, I am ready to admit it would be admissible — but found in a portmanteau. The portmanteau is admitted to be his. He Wiself asks a policeman to get him the portmanteau. It has been out of his possession, I know not how many weeks ; and it was perfectly possible for not one merely, but for five hundred papers to be introduced into it. Is it strapped or locked ? What is the principle asserted by the counsel for the Crown ? Why, my portmanteau may be opened at my lodgings while I am here, and twenty letters, or a thousand, may be put into it, and may be brought against me upon a trial for my life. If I am upon trial for my life, it is not enough to prove that I may admit the portmanteau to be mine ; but the persons who had the custody of it since I left it, must be called to show that nothing could have been done to it so as to introduce surreptitiously into it docu- ments or other matters which may affect me. Now, could that 480 SPECIAL COMMISSION, CO. TIPPERARY. be done in this case ? The portmanteau here is flung into a limekiln carelessly, left there for some time, brought to a house, left there four days, and nobody guarded it. It is certainly a most perilous proceeding, if, under such circumstances, every document is to be brought forward against a prisoner. It is a doctrine which I submit is not known to the criminal law. It must be proved distinctly, positively, and affirmatively that that document did exist before the arrest of Mr. Smith O’Brien ; and if not so proved, it ought not, I contend, to be read in evidence against him. The Attorney- General. — Upon the part of the Crown, my lords, I most respectfully submit, that it is distinctly proved that this document did exist before the arrest of Mr. Smith O’Brien. Mr. Fitzgerald . — Before the Attorney-General proceeds, I wish to mention, that there is one point, as far as I understood what fell from your lordship, which appears to press upon the Court ; that is, with respect to the evidence. The Ijord Chief Justice . — I gave no opinion; I wished that to be considered while the case was being argued. Mr. Fitzgerald . — I was addressing your lordship upon quite a different view. After what fell from your lordship, I wish to hear from the Attorney-General what evidence there is that Mr. Duffy was implicated with Mr. O’Brien. I therefore thought it but fair, that the Attorney-General should not be met by that in reply. The Attorney- General . — I shall very shortly, my lords, state the grounds upon which I submit that this document is receiv- able in evidence against Mr. O’Brien. Whether Mr. Duffy is, or is not, a co-conspirator is perfectly immaterial in the present case. That has nothing whatever to do with it. If I prove distinctly and clearly that Duffy was a co-conspirator, I could make the letter evidence, as being the act of Duffy, though it never came into the possession of Mr. O’Brien at all. I have not proved that that little bit of a map or tracing, such as it was, was in the handwriting of Mr. O’Brien ; but still, it was conceded that in law, quantum valeat, having it in his possession rendered it evi- dence against him, though perhaps it was not written by him, or by a co-conspirator. Having it in his possession makes it a document proper for us to observe upon in the progress of this case. Mr. Justice Moore. — I think the objection is, that this is not shown satisfactorily ever to have been in the possession of the prisoner. The Attorney-General. — My lords, I beg to recall to the atten- tion of the Court the evidence which I conceive is satisfactory upon that point. Your lordship will recollect, that Mr. O’Brien was arrested upon Saturday evening. When he was so arrested upon that Saturday evening he stated that a portmanteau of his had THE QUEEN t;. WILLIAM SMITH O’BEIEN. 481 been left by him — I am speaking from recollection — with Mrs. Dobeny, and gave a letter to Mr. Cox, which we had no means of proving. He told either Mr. Cox or Mr. Jones, that by means of this letter he would get possession of the portmanteau. Mr. Justice Moore. — I think that letter was read. Lord Chief Justice Doherty. — The fact was stated, and some allegation made with respect to it. The Attorney-General. — It was notread, my lord, because we had not secondary evidence of it ; but it was stated as a fact. Lord Chief Justice Doherty. — Mr. Gore Jones said, that in his presence a letter was written, which was sent by him open to Mr. Cox ; and Mr. Cox gave that to a policeman, who delivered it to Mrs. Doheny. The Attorney -General. — Just so; and in that way the port- manteau was got. The evidence to-day went a little farther than that of the last day. We have now traced the portmanteau in the state in which it went to Dublin — at least so far as evidence can trace a thing of that description — from the house of Mrs. Doheny to a limekiln, from that to a Mr. Norton’s, from Norton’s to a police constable ; and from the time it once came into the possession of the constabulary, or the Crown, to the time when it is opened in Dublin, it is proved to be in the very same state as that in which it was received from Cashel, which Mr. O’Brien referred to as the place where the portmanteau was to be got. From the very nature of human testimony, it frequently happens that there cannot be, in matters of this kind, downright, absolute certainty ; but still facts are to be proved, from which the jury and every person will draw certain inferences. If a document or if a matter is found in a man’s house, or a man’s trunk, that is presumptive evidence that it is there with his knowledge and sanction. At the same time there is the perfect possibility of a document of this description being introduced into a man’s trunk without his knowledge ; but that will be a question for the jury to consider, upon the evidence, what weight they are to give to this document. Y om* lordships wiU recollect that this is a letter, which is shown from the contents — 1 will not refer to it further — to have been written to Mr. O’Brien himself ; it is a letter which is forwarded, in fact, contemporaneously with his arrest ; because you wiU recollect he was arrested on Saturday ; the portmanteau is sent for, and is forwarded to Dublin in that locked state upon Sunday morning, or in the course of Sunday, by Mr. Cox and the railway gentleman, who was produced, until it was opened. Your lordships will also recoUect that upon the person of Mr. O’Brien a ring with some keys were found ; those keys are transmitted to Dublin ; and then a young gentleman, a ]\lr. Burke, who is employed in the Secretary’s office, brings a small parcel — I admit that he does not prove it was the identical parcel which was sent to Dubhn by General MacDonald, and 2 I 482 SPECIAL COMMISSION, CO. TIPPERARY. delivered by Captain Emans — but from tbis parcel, which he gets from the desk of Mr. Redington, and which Mr. Redington got the very same day from Captain Emans — the gentleman who brought the bundle to Dublin — a ring of keys is taken, and one of those keys opens the portmanteau, which with the key itself is then returned the very same evening to Mr. O’Brien, who acknow- ledged it to be his, and received it as his own. I submit, there- fore, that there is not only evidence, but conclusive evidence of it, not as the act of a co-conspirator, but as a letter written and addressed to Mr. Smith O’Brien, and, if there is any truth in the transaction at all, long previous to his arrest. I do not mean to say that this is conclusive evidence against Mr. O’Brien, except so far as the jury shall say it is fair evidence in this case. The way I look upon it is, that it is evidence to this extent, namely, that a communication was made to Mr. O’Brien by Charles Gavan Duffy. Upon these grounds, and totally independent of the principle contended for hy my learned friend, I submit that this letter ought to he received. The case referred to by my friend Mr. Whiteside, was decided on a totally different principle. There the question was not, whether a document in the possession of a party himself should be given in evidence against him, but whether a document found in the possession of another should he given in evidence ; and I am not quite sure, that some question did not arise as to whether the document found in the possession of the other was a published document. Your lordships are aware that some discussion did take place upon that subject ; and I am not quite sure whether the document was not connected in some way or other with the Corresponding society. I am not sure that an objection of this kind did not arise in that case. They wanted to give in evidence against Hardy documents not found in his own possession, or brought in connexion with him, hut in that of a co-conspirator. They said there, you cannot give in evidence the acts of a co-conspirator, if at the time the party you give it in evidence against was not acting in furtherance of the common design, because at that time he was in custody. You must show at all events, that the document you so seek to give in evidence, was a document in existence previous to the arrest of the party. If that case were applicable to the present, we have proved this letter to be in existence before his arrest. We have traced Mr. O’Brien from the time he left Dublin with the exception of one night, which was the day after he was found going through Killenaule on his way to Mullinahone ; and though perhaps there is no actual, still there is presumptive evidence that he staid that night at some house in Cashel. But at all events this much is certain, that previous to his arrest he must have either left or sent this portmanteau to Cashel. Upon these grounds, therefore, and without in the slightest degree questioning or conflicting THE QUEEN v. WILLIAM SMITH O’BRIEN. 483 with any thing that has been done in the cases which have been referred to, I submit certainly, with very great deference and respect, that this is evidence. I very frequently mistrust my own judgment, but with respect to the cases cited by my learned friend, I conceive that they have no application to the present case ; and, in the view which I take of it, I certainly consider that this document is receivable in evidence. There is, my lords, a possibility of stolen goods being found in any one of our pockets ; there is an actual possibility of the stolen goods having been introduced by somebody else, as we have known instances occa- sionally to have occurred. That is a possibility, but that does not take away from the effect of the thing being given in evi- dence. It is for the jury to say, whether there was a possibility of this trunk being opened, and of this document being intro- duced, without the knowledge of Mr. O’Brien, by some of the Dublin police, as has been insinuated ; who must have come down to Cashel, and got the letter from Duffy for the purpose of introducing it. I admit, that with respect to that bundle of letters to which Mr. Whiteside referred, found in an open press in Eustace-street and elsewhere in Dublin, we felt that we ought not to give them in evidence, and we did not attempt to do so, because we happened to find them in Eustace-street. Admitting the correctness of the principle referred to by my learned friend, I must repeat, that I really do not see its application to the facts of the present case. [Their lordships consulted.] My learned friend, Mr. Lynch, has just given me a case, which in my opinion, my lords, bears exactly upon this point. Lord Chief Justice Doherty . — Is that an Irish case ? The Attorney- General. — No, my lord, it is the case of the King V. Watson; but there is this particular point in it; it is an observation of Mr. Justice Abbot, to which I would call your lordships’ attention. There was in that case a question, whether a paper could be given in evidence against Watson, when it was found in a locked room of Watson’s. These are the observations of Mr. Justice Abbot : — “ I beg to draw your attention to a very important distinction between Hardy’s case and the present. In that case the papers were found after Hardy’s apprehension in the possession of persons who might, for aught which appeared to the contrary, have first acquired possession of those papers after his apprehension. These papers are found in a room of which the younger Watson kept the key, into which no person had access, and he himself was never known to have been there for the period of a fortnight before the 2nd of December, the day on which the prisoner was apprehended. These papers, therefore, are thus proved to have remained in that room one fortnight before the elder Watson was apprehended, which room is as much marked with secrecy as the strong box in any private gentleman’s house.” 2 I 2 484 SPECIAL COMMISSION, CO. TIPPERARY. It is perfectly possible, that there might have been skeleton keys or false keys for opening that particular door. Here we say is a portmanteau found locked, which is brought up to Dublin in a locked state, which is opened, and returned with the key of it to Mr. O’Brien, who acknowledges it to be his. I refer to this case, for the purpose of showing that I was tolerably right with respect to my apprehension of Hardy’s case, to which my friend Mr. Whiteside referred. I would just mention another case almost substantially the same, the case of Emmett. In that case, my lord, the Lord Chief Justice says : — I take the evidence to stand thus, the witness went to the house, and after examination of the woman, who stated that the prisoner lodged there, and the admission of the prisoner himself that he came there that morning, and the evidence of the son proving that the prisoner lodged in that room, in which this paper is found upon a chair, and it not being in the handwriting of any of the family; J think all these circumstances sufficient to let this paper go to the jury, and that it will be evidence against the prisoner, if they believe it to have been in his possession. This is warranted by Lord Preston’s case.” In the very nature, my lords, of human testimony there is a great deal of evidence which ought to go to the jury, which may admit of a possibility of doubt. If, upon the whole of this case, having regard to the circumstances under which this document is found, the jury come to the conclusion, that it was not introduced by any third party into this portmanteau of Mr. O’Brien, that it is a letter directed to himself, upon that ground, though of course not of so much cogency as a letter written by the gentleman himself, still it is a letter written for a common purpose, and proving as a fact that this communication, such as it was, was made to him by Mr. Duffy. The Solicitor- General . — What I have to add, my lords, to what has fallen from my friend the Attorney- General is The Lord Chief Justice. — We will hear Mr. Fitzgerald first. Mr. Fitzgerald . — I shall trouble your lordships with a very few observations. The question now simply comes to this, whether this letter was in the possession of Mr. O’Brien at any time ? I apprehend that I am relieved from the question sug- gested by one of your lordships, by the admission of my learned friend the Attorney-General, that there is not evidence sufficient to affect Mr. Duffy with it as a co-conspirator. I do not under- stand my learned friend to withdraw that admission. The Attorney- General. — I do not put it upon that ground. The Lord Chief Justice. — It is not rested at all upon that ground. Mr. Fitzgerald . — The question then comes to this, whether there is sufficient evidence to show that this was in the posses- sion of Mr. O’Brien at the time this paper was put into the port- manteau, to enable your lordships to lay this letter before the jury ? I do request your lordships to try it by that test — that is, THE QUEEN i;. WILLIAM SMITH O’BRIEN. 485 whether a document being found in a portmanteau could be ad- mitted in evidence, if no other evidence were given than that of General MacDonald and the person who produced the paper upon the table. If it could not be admitted upon that evidence, I ask your lordships to refuse it ; because, if at any one link of the chain the identification fails, the reason for the identification remains precisely the same. If it was necessary for the Attorney- General to prove that it was in the same condition when it came to Mr. Redington, as it was when in the hands of Mr. Cox, in order to enable you to leave it to the jury, I would ask upon what possible principle can it be said, that it was not equally necessary with respect to the intervening period of its coming from Mr. Doheny’s house and the time that it was found in the possession of Mr. Norton ? I might go farther: the possession of Norton is not accounted for ; it was in his house, in an open room of the house on a table ; he took no care of it ; and the evidence was, that he was frequently out of the house. It is carefully identified from the time it came into the possession of Mr. Cox. Without that identification I think your lordships would not have received it. What grounds are there for the distinction ? The same reason which existed for that identification then, makes that identification necessary for the antecedent period. With respect to the passage cited from Watson’s case, by my friend the Attorney- General, your lordships cannot think that it has any application to the present case. That recognises the principle, that it was necessary to show that the document was in the pos- session of the prisoner. I need hardly say that this case is entirely different. There, the place of deposition of the docu- ment was a place of secrecy, of which the party charged had the custody. With respect to Emmett’s case, that w^as one which I admit went a step farther ; but it has no likeness to the present case, and for this reason — there, the place where the document was found was at the time the residence of the party charged, at which he had been in the morning. It is hardly possible to sup- pose any thing more ludicrous than that the passage cited from Watson’s case, Tvhere the document was found in a place of secrecy and privacy, has any applicability to the present case. The Solicitor- General . — My lords, if I rightly understood the objection of my friend Mr. Whiteside, it w^as this, that this docu- ment not having been discovered or produced till after the arrest of the prisoner, that there should be evidence given of its pre- existence. The Lord Chief Justice . — Will you apply yourself to what Mr. Fitzgerald has stated upon the same side ? He contends that as you have identified the portmanteau after it came into the possession of Mr. Norton, you ought also to have identified it previously to that period. The Solicitor- General . — There is, my lord, a manifest distinc- 486 SPECIAL COMMISSION, CO. TIPPERARY. tion with respect to the point put forward by my learned friend, Mr. Fitzgerald. The absolute necessity of our proving the identi- fication by every link, and every step, from the time it reached the authorities, until it was finally opened with the key in Dublin, rested upon this ground: because the key had been taken from the person of the prisoner himself, and it might be said to have been under the care, or within the power, of the prosecutor. It was incumbent, therefore, upon those conducting the prose- cution to show clearly that the key and the portmanteau, from the time of the arrest, and from the time that they came into the possession of those concerned for the Crown, were kept asunder, and could not by any possibility have met. It was upon that ground, therefore, that we traced the key and the portmanteau with such particularity. Now, this portmanteau being proved beyond all question, and in fact admitted to have been the property of Mr. O’Brien, if it had been found the day before Ids arrest, and that letter had been produced from it subsequent to the arrest, as I understand the question, this objection would not then arise. With respect to what has been quoted from the State Trials, it was there held to be necessary to show that the paper existed previous to the arrest, in order to meet any attempt at fabricating a document for the purpose of bringing it in evidence against the party. This paper must, at all events, have been in existence before the arrest of Mr. O’Brien, for this reason: it appears that the writer of that letter, as was proved by the cross-examination of one of the witnesses by the counsel for Mr. O’Brien, w^as, at the time of the arrest of Mr. O’Brien, in actual custody in the city of Dublin. Mr. Whiteside . — The writer of what letter ? The Solicitor- General . — This letter. Mr. Whiteside . — That is one reason for its rejection. The Solicitor- General. — Mr. O’Brien was arrested late upon the evening of Saturday. Upon Sunday morning the trunk reached the possession of Mr. Cox ; it had come from Cashel by a mes- senger whom Mr. Cox had sent for it ; and the suggestion now is, that the acknowledged and admitted writer of that letter, who was then in the city of Dublin, must have written the letter, arrived at Cashel, put it into the portmanteau, and from thence got to Dubhn, if this were a fabricated or substituted document. It is as clear as possible that the existence of that letter previous to the arrest of Mr. O’Brien on Saturday evening, is established. On the ground of possession, is it not directly proved to the fullest extent that any evidence could prove it? Mr. O’Brien was arrested upon Saturday evening ; he refers to the possession of his trunk. He gave Mr. Jones a letter for the purpose of having it delivered to him. Upon the Sunday morning that trunk is obtained ; and the evidence given here to-day has estabhshed that it came almost direct from the possession of Mrs. Doheny ; for it appears from the testi- THE QUEEN i;. WILLIAM SMITH O’BRIEN. 487 mony of the last witness that he saw that portmanteau in the dwelling-house of Mrs. Doheny ; that he removed it along with some furniture from that particular place to a Mr. Littleton’s garden in Cashel ; thence it was brought and placed in the house of Mr. Norton. And the objection now is, the suggestion of a proba- bility, that this portmanteau, which had been thus locked and strapped, had been opened with a false key, or by some other means, and this paper put into it by some person on the part of the Crown. There never was, in my opinion, a case more clearly established to let in evidence of a document, upon the ground that it existed previous to the arrest of this gentleman. Then subsequently it is traced from the time it came into the possession of the police, whom he had requested to get it for him, and to whom he had applied for the restoration of his property. The Lord Chief Justice. — Whatever observations may be made upon the evidence, by which the possession of this document is imputed to Mr. O’Brien, we are of opinion that we cannot exclude it from the consideration of the jury. Mr. Whiteside. — I have now to apply, my lords, in common justice, that the entire contents of that portmanteau should be stated to the jury, every document in it, on the part of the Crown. I submit on the part of the prisoner, that the Crown ought to produce the whole of the contents of that portmanteau ; whatever they are I know not. The Under Secretary of State pledged himself to return the rest of the papers to Mr. O’Brien ; he broke that pledge. I have his letter to that effect ; and I submit that I have a right to have the whole contents of that portmanteau submitted to the jury, and the nature of each docu- ment in it, in order to show what their character was. The Attorney-General. — Upon the part of the Crown, my lords, I can only say, that it is our desire to have every thing laid fairly before the jury. The Lord Chief Justice. — W"e are now upon this one document, and we must deal with that first. The Clerk of the Crown. — This letter is signed Charles Gavan Duffy, ” and is dated “ Saturday evening.” Mr. Whiteside. — Is there any envelope to that letter, or any direction to Mr. O’Brien upon it ? The Clerk of the Crown. — It does not appear to have any. The Lord Chief Justice. — That will appear upon reading the letter. Mr. Whiteside. — What is the date of it ? The Clerk of the Crown. — The only date is “ Saturday evening.” “ My dear Sir, “ I am glad to learn that you are about to commence a series of meetings in Munster. There is no half-way house for you. You will be the head of the movement, loyally obeyed ; and the revolution 488 SPECIAL COMMISSION, CO. TIPPERARY. will be conducted with order and clemency, or the mere anarchists will prevail with the people, and our revolution will be a bloody chaos. You have at present Lafayette’s place, so graphically painted by Lamartine; and I believe have fallen into Lafayette’s error, that of not using it to all its extent and in all its resources. I am perfectly well aware that you don’t desire to lead or influence others, but I believe with Lamartine, that that feeling, which is a high personal and civic virtue, is a vice in revolutions. One might as well, I think, not want to influ- ence a man who was going to walk on thawing ice or to cross a fordless river, as not to desire to keep men right in a political struggle, and to do it with might and main. If I were Smith O’Brien, I would strike out in my. own mind, or with such counsel as I valued, a definite course for the revolution, and labour incessantly to develop it in that way. For example, your project of obtaining signatures to the roll of the national guard, and when a sufficient number were procured, calling the council of three hundred, was one I entirely relied upon; but it has been permitted to fall into disuse, and would scarcely be revived now. The clubs, how- ever, might take the place of the national guard; and the proposal in your letter of a definite number of clubs being formed, would just suit as well, if it were vigorously and systematically carried out — each day adding an item to it, and all the men we could influence employed upon it. “ Forgive me for urging this so anxiously upon you ; but I verily believe the hopes of the country depend in the manner in which the next two months are used. There is not a town in which could not be found a band of missionaries to organize the neighbouring counties. Every club has its active men fit for this work ; it is only by applying all our force to it that we will succeed.” The Attorney- General, — The next document that we propose to give in evidence is Mr. Meagher’s letter. I do not recollect whether that was also found in the trunk. Mr. Kemniis. — It was. The Attorney -General. — This letter was found in the trunk, and is proved to be in the handwriting of Mr. Meagher. Mr. Whiteside. — I object to that letter being read, unless it appears, as has been over and over again decided in the State Trials, that it distinctly relates to the purpose of the conspiracy. I do not know to what it relates ; and I object to the principle of reading every letter before we know whether it relates or not to the conspiracy which is charged in this indictment. I object to it upon the authority of that case in which the Attorney-General read part of a letter, and the Court decided that the remainder of it should not be read. The Lord Chief Justice. — If it does not relate to the subject- matter charged, the Attorney- General ought not to have brought it forward. Mr. Whiteside. — The Attorney-General is not, my lord, the judge to decide upon that. The Lord Chief Justice. — If it does not distinctly relate to it, the Attorney- General would bo doing a very fruitless thing in bringing it forward. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 489 The Clerk of the Crown. — This letter is signed “ Thomas F. Meagher,” and is dated “ Cahirmoyle, Wednesday evening.” “ My dear Smith O’Brien, I have this moment arrived (it is past nine o’clock), and I sit down for two minutes to give you an abrupt account of myself. “ On Sunday I left Dublin at eleven o’clock, a.m., and arriving at the Thurles station, about three o’clock, found no way of getting to Limerick. It struck me that you might be in Cork — particularly as I had read a speech purporting to be delivered by you to the Rathkeale club there, in which you were made to state that you were going to Cork — so off I went by the mail to my own beautiful, darling city, and arrived there on Monday morning at one o’clock. I spent that day with Barry and Lane, and the half of the next day, leaving it last night. “ This morning I arrived in Limerick, and received your letter. Just think of it 1 I quite forgot that this was Tuesday. I started off to Rathkeale, instead of stopping where I was (as your letter might have suggested — did in fact suggest), and made a flaming speech to the mul- titude from Mr. Fitzgibbon’s windows, after which I gallopped of to this fine old place — finding out, when I was just a mile from the gate, that it was Wednesday not Tuesday; however I still persisted, and here I am. “ Well, then I come to tell you about the American trip. I am off for New York, God willing, on Saturday — “ ‘O’er the glad waters Of the dark blue sea — My thoughts as boundless, And my heart as free.’ What to do ^ To raise money — to invoke sympathy — to, &c., &c., Ac., amuse myself! You will be delighted with the Cork organization. Be so good to mention at the soiree, on Monday night, the object and fact of my departure, “ And believe me your faithful friend, “ Thomas F. Meagher.” The Attorneij- General. — Then, my lord, we propose to read the Philadelphia address, which was found upon the person of Mr. O’Brien. It is dated “ Philadelphia, May 10, 1848.” Mr. Whiteside. — Where was this found ? The Attorney- General. — On his person by General MacDonald. Mr. Whiteside. — In whose handwriting is it ? The Attorney-General . — We have no means of proving that. The Clerk of the Crown. — This letter is signed Robert Tyler” and others. Mr. Whiteside. — I object to that letter. The last one was read on the ground that it referred to the treasonable purpose charged in the indictment; and I submit that this ought not to be read in evidence unless it clearly relates to the same treasonable design. The Attorney-General It occurs to me that it does. 490 SPECIAL COMMISSION, CO. TIPPERAEY. Mr, Whiteside. — I understood you to have argued that; but I contend that tliis paper is not evidence against Mr. O’Brien, unless it is shown to have been used by him, and applied to the purpose of this indictment. It appears most extraordinary that the Attorney-General should now rely upon such a case as that of Sidney’s. In that never-to-be-forgotten case your lordship will remember that papers were found which were proved never to have been made any use of by the prisoner, and they were received in evidence against him. But what is thought of that case ? This paper, which is now produced, is not proved ever to have been made any use of by Mr. O’Brien in any way whatever ; and I most respectfully submit, that it is not evidence against him. I may have a paper, but if I make no use of it, does the mere production of the paper — which is not shown to be in any way connected with the prisoner or any other human being — by the Attorney- General, saying that it belonged to, or w^as upon the person of, the party charged, necessarily make it evidence against him ? I submit that it does not. The Prisoner. — I think it right, in justice to myself, to state, that it is my habit to keep all unanswered letters in my pocket until I have answered them ; and therefore to make me respon- sible for every paj^er which I may happen to receive, merely be- cause I did not deem it worthy of being answered, appears to me to be the height of injustice. Mr. Whiteside. — Most undoubtedly, I can only add, that I would not presume to address the Court upon any question of indulgence or favour. My points certainly have not much pre- vailed ; but I submit, as the matter now stands, that it is not evidence against Mr. O’Brien. Let the Attorney-General make it evidence if he can. It is a long paper from some one in America — I do not know what. Mr. Fitzgerald. — There has been no evidence to show that the person who wrote that letter was in any way connected with Mr. O’Brien. The Lord Chief Justice It is stated by the Attorney-General to be connected with the subject-matter, and was found upon the person of Mr. O’Brien ; I think that being so, entitles the Attorney- General to read it. Mr. Fitzgerald. — The effect of this would be, that anybody, by writing an anonymous letter to Mr. O’Brien, might make it evidence against him if he kept it upon his person. Lord Chief Justice Doherty. — That point has been ruled by a bench of four judges, in a very remarkable case in tliis country, with which I dare say you are famihar. The Clerk of the Croivn. — This is a letter signed “ Robert Tyler” and others: — THE QUEEN WILLIAM SMITH O’BRIEN. 491 No. 10, South Seventh, Philadelphia, ^^May 10, 1848. “Much-respected Sir, “At tlie large meeting of citizens held in this city on the 10th of last month, (a report of which we have already transmitted to you,) an executive committee consisting of twenty-two active, zealous, and respectable persons, were chosen to take into consideration Irish affairs, and to adopt such measures as, under the circumstances, might appear to them most proper and expedient to lend efficient aid in the present emergency to the Irish people. This body has now fully com- pleted its organization, and is selecting its sub-committee, we have been accredited in Committee of Correspondence. “During the last session of the executive committee a resolution was unanimously adopted, instructing us to open a communication with the people of Ireland, through you, one of the most talented and honoured patriots of the country; and to say to them, that we enter fully and intensely into the spirit of their proposed struggle with their oppressors, and that we are willing and prepared to co-operate with them, as American citizens, in any mode they may think proper to designate, provided such mode be within the scope of our ability and our duty as citizens. “ We are at present instructed there is a course of proceeding with a view of raising funds, not only in this city and county, but throughout the state of Pennsylvania, among the friends of the cause ; and we propose to apply such funds as we may raise in the most available manner, in such manner as the Irish nation, through their agents, may point out. We have every reason to believe, from the tone of public opinion here, and from other considerations, that our efforts in this respect will be crowned with unusual success. Societies in favour of Irish liberty are springing up in all directions throughout the union. “We should be happy to hear from you somewhat at large on this subject, and to know what manner we can, in a practical point of view, act most beneficially to Ireland, at this important and interesting crisis. “ With sincere respect, “Your friends and obedient servants, “ Robert Tyler, Chairman. “James Fayle, “John B. Colohan, “J. M. O’Brien, “James Gibbons, “William H. Dunne.” The Attorney-General. — The next document we propose to read is the Enniscorthy address. Mr. Whiteside . — I understand that there is no proof of the handwriting of this paper also. The Attorney- General. — It is not proved. Mr. Whiteside. — Where was it found ? The Attorney-General. — Upon the person of Mr. O’Brien. The Clerk of the Crown This is “To William Smith O’Brien, Esq., M.p.” 492 SPECIAL COMMISSION, CO. TIPPERARY. Sir, “ The members of the John Mitchel Club, Enniscorthy, beg to offer their respectful congratulations and hearty welcome upon this your first visit to the county of Wexford. They do so as devoted followers of your manly principles, as ardent admirers of your virtue and patriotism, and as men who cherish deep and lasting gratitude towards you for your great services and greater sacrifice in the cause of our dear native land. They wish also to assure you of their determination to stand by their country and their country’s friends in any and every extremity. They have seen with lively indignation the atrocious tyranny exercised by the Government in the transportation of John Mitchel, the bravest of the brave — in the imprisonment of those true and active patriots, John Martin, Gavan Duffy, Dalton Williams, and Kevin O’Doherty — and in the prosecutions sustained by yourself and other distinguished and honourable men. They have long felt the oppression and insolence of this Government to be well nigh unbearable, and they could for their own parts, be well content to put a speedy end to this tyranny for ever at the cost of their lives. To you, sir, above all your able and intrepid compatriots, the people look for guidance in this time of trial and difficulty. They know that you are a sure guardian of the honour and welfare of old Ireland, and they feel convinced that no motives of temporary expediency, sickly and half-sided humanity, will ever prevail with you, to stand between them and their enemies, and to stay the just vengeance of an oppressed and plundered people. “ Signed on behalf of the members, “ W. Mooney, K P. “ R. Williams, Sec '' The Attorney- General. — We next propose to put in the bal- loting papers, which were proved. Mr. Whiteside. — I make no objection whatever. The Lord Chief Justice. — This is merely a list of names. I suppose there will be no necessity for reading them ? The Attorney-General. — Certainly not. [The balloting papers, twenty-nine in number, were then put in as read.] The Attorney-General. — We propose now, my lord, to call a witness, whose examination will take but a few moments, as we think it material to prove the county. Mr. Whiteside. — This is perhaps the proper time, now that the documentary evidence is over, to ask your lordship to decide this point. As far as I have always understood, where a document is produced against a party, which is associated with a number of other papers, and from which an unfavourable opinion is to be drawn, such as the production of a document found in a desk or in a trunk, you may refer to the rest to know what character they are of. In this case I do not want the papers to be read ; but I submit that a list of those papers found in that trunk ought to be THE QUEEN t;. WILLIAM SMITH O’BRIEN/ 493 given to me by tlie Attorney-General. I ask this in common jus- tice ; and the ground upon which I apply for it is this, that a man leaving town may have papers in his trunk, of such a character as to make it very difficult to believe that he was setting out upon a revolution, and for that reason I want to know what this trunk contained. The Attorney- General . — I can only say that if it is in my powder you shall have it, or if the Crown Solicitor has such a document you shall have it at once. If it is not here, I will send up to- night to Dublin for a description of every paper which was found in the trunk. Mr. Whiteside. — That ought to have been done before. The Attorney- General. — As far as I could judge there appeared to be nothing in the portmanteau but private papers and deeds. Mr. Whiteside. — I understand from Mr. O’Brien, that his private family papers and account-books were kept from him, although they w^ere promised to be restored to him before the trial. The Lord Chief Justice. — We can know nothing about that. The Attorney- General. — Every exertion in my power shall be used, my lords, for the purpose of giving to Mr. Whiteside what he asks. 1 am not aware that any application was made by Mr. O’Brien to have the papers returned to him. Mr. Whiteside. — I have a letter from the Under-Secretary, in which he promised to give them back. Mr. Patrick Rennie, sworn — examined hy the Solicitor -General. Bo you understand the business of a surveyor and draughtsman ? — Yes. Were you at the Widow MUormack’s house ? — I was. Was that ground-plan and elevation made by you {handing a plan to the witness) ? — It was. Was that made by you correctly according to the best of your skill and judgment ? — It was. Just describe the wall in front, through which the entrance is to the dwelling-house 1 — It is five feet high. Is it pretty uniform all round? — It is. As you enter to the left how is the house bounded ? What is the area between that five-foot wall and the front wall of the house ? — I will tell you exactly {witness referred to the scale on the plans). It is forty-two feet. What is the height of the window-sill of the ground floor from the gravel outside ? — Two feet three inches. How is the house bounded on the left as you enter, or that which would be right of the house 1 — It is bounded by a cabbage garden, with a small gate, entering in front of the house, and nearly in a line with the front wall. How is that cabbage garden bounded in the front 1 — By a quick ditch. There is a ditch all round, with the exception of the part which joins the end of the house, and that is where the wall commences. 494 SPECIAL COMMISSION, CO. TIPPERARY. What is the distance from the fence to the gable-end of the wall ? — One hundred feet. How is the rere of the premises upon the other side of the house enclosed ? — By a stable. Mr. Whiteside . — You should have examined this witness before, so as to have enabled us to cross-examine the other witnesses. The Solicitor-General. — Ho you know the towns of Killenaule, Mul- linahone, and Balliugarry ? — I do. Are they in the county Tipperary ? — They are. Cross-examined hy Mr. Fitzgerald. Ho you know the height of the window ? — I do. What is the height of the window from the ground floor ? — Five feet six inches is the height of the window. Is that the picture at the top of it {lianding the plan to ivitness) 1 — It is. This is the back of the building you have given to me here. Y ou have given me the height from the sill to the ground ; now give me the height from the ground to the stool ? — Two feet three inches. Is that the front? — No, this is the rere. Is there a wicket gate in the front shown there ? — There is. Lord Chief Justice Doherty. — If it can be of any consequence, Mr. Fitzgerald, he stated, I think, that five feet and a half was the height of the window. Mr. Fitzgerald. — I believe I am right ; you first mentioned the height from the ground to the window-sill, and then from the window to the stool ? — Yes. The Attorney- General. — Now, my lords, there is another matter which perhaps your lordships vriU recollect. In the early part of this trial, when I was examining Mr. Hodges, the Government reporter, on behalf of the Crown, I proposed to give in evidence a speech delivered by Mr. Meagher. At that time it was objected to, because I had not sufficiently identified Mr. Meagher, as connected with the transactions which subsequently occurred ; and your lordships were pleased to allow me, if neces- sary, at a more advanced stage of the case to examine Mr. Hodges upon that point. Mr. Whiteside. — Are you going to recall the witness ? The Attorney -General. — Yes; I reserved my right of doing so. I will just state, that the only reason for which I now pro- pose to give that speech in evidence is, because some of the matters which are stated in it I mentioned in my opening to the jury, and I conceive for that reason that I am entitled to give it in evidence. The Lord Chief Justice. — Upon what occasion was it made ? The Attorney-General. — At a meeting of the 6th of June, my lord. THE QUEEN v. WILLIAM SMITH O’BRIEN. 495 Mr. Whiteside. — This is certainly a very alarming doctrine ; because, if this principle be applied, every person connected with that Confederation would be guilty of high treason, and the acts and speeches of Mr. Meagher might he made evidence against my friend Sir Colman O’Loghlen. How is it possible that the speeches of Mr. Meagher can be evidence against us ? I do not see upon what ground the Attorney- General proposes to give it in evidence. The Attorney -General. — The only ground upon which I pro- posed to make it evidence was this, that I supposed the state of the evidence in this case was such, as would satisfy a jury that there was some combination in existence, of which Mr. O’Brien and Mr. Meagher were members, and that this was one of the speeches made in furtherance of a common object. Mr. Whiteside. — It is very easy to say that these speeches were delivered in furtherance of a common object. Under that convenient word conspiracy,” every thing is stuffed into the case which any one may choose to say is in furtherance of the common object. If however there is to be any limit to this, under the law of conspiracy, it is settled in one sentence ; the declarations and confessions of a person not a defendant, not made in the prosecution of the objects of the conspiracy, are not evi- dence to prove the existence of a conspiracy, although consulta- tions for that purpose, and letters written in pursuance of the design, may be admissible. When did this high treason begin? According to the statement of the Attorney-General, somewhere about the 19th of July. The Attorney- General. — It was then I stated that the overt acts began. Mr. Whiteside. — Pardon me for a moment. See, my lords, the effect of this doctrine. This is the case of a society existing, bound together by certain rules, that is to say, this League or confederacy; and every person who entered it, did so upon the faith of those rules. If I become a member of an association upon the faith of rules settled by barristers or legal persons, am I to be held responsible for every speech made antecedent to the time at which I am charged, because my prosecutor says, that they were made in furtherance of the common object, that object not being the one avowed by the society ? Can those acts and declarations made at any time and any place, or the detached declarations and speeches of all the members — and I do not know how many thousand members there were in this society, which is admitted by the Attorney-General to be lawful up to a particular date — can these all be made evidence against Mr. O’Brien upon this charge for high treason ? If the speech of one person is evidence, they all are. The Attorney-General. — I referred to that speech in my opening, upon the supposition that I should be entitled to give 496 SPECIAL COMMISSION, CO. TIPPERARY. it in evidence, otherwise I should not have so referred to it ; and I am, as I conceive, entitled now to give it in evidence. At the smne time I really do not care one jot about pressing that par- ticular speech. Sir Colman O' Loghlen. — Then you do not press it ? The Attorney- General. — No, I do not. The Solicitor-General to the witness (handing him a map). — Is that a correct map of the country ? — It is ; enlarged from the Ordnance Survey. Let it be marked by the Clerk of the Crown. [The map was handed to the officer and marked by him.] Mr. Whiteside. — You are putting in a map after the case is finished. The Attorney- General. — It is merely for the assistance of the Court. The Lord Chief Justice. — I understand, Mr. Attorney, that you have now closed your case. The Attorney -General. — If your lordship pleases. Mr. Whiteside. — It is quite impossible, my lords, for me to proceed with the case to-night. The Lord Chief Justice. — No person dreams of it, Mr. Whiteside. Mr. Whiteside. — At what hour will your lordships sit to-morrow? The Lord Chief Justice. — We will say ten to-morrow, in order to accommodate you. Mr. Whiteside. — I am much obliged to your lordship. [The Court then adjourned till ten o’clock the following day.] Cent!) Wednesday, October 4, 1848. DISCUSSION AS TO THE BALLOTING PAPERS. Mr. Whiteside . — My lords, before I address the jury I wish to mention a matter to the Court, in connexion with the balloting papers. I cross-examined from a parcel given to me, containing twenty-one. Among them was one paper on which was Mr. O’Brien’s name. I put them all seriatim into the hands of the witness Dobbyn. There was one paper proved by him which had the name of Mr. O’Brien on it struck out. That appears, I am sure, on your lordships’ notes. I have got a parcel, which was sent last night, in which the name of Mr. O’Brien is written several times. Now I can state, upon my honour, that in the papers handed to me his name only appeared on one. I therefore require to have the list given back to me in the state in wliich it was when I cross-examined the witness. THE QUEEN WILLIAM SMITH O’BRIEN. 497 The Attorney- General. — I can only say, my lords, on the part of the Crown, and so far as I am concerned, that Mr. Kemmis had in his hand, and handed to the witness in my presence, this bundle of balloting papers, which we took the trouble of counting, and which were numbered consecutively from No. 1 to 29, inclusive. Of the papers, so produced to Dobbyn, he was able to identify only three or four : one as written by himself, another as written by a person of the name of Lalor, another written by a person of the name of O’Higgins, and the fourth I don’t recol- lect by whom it was written. Whether Mr. Whiteside, in taking the papers from the witness’s hands, looked through the whole number of twenty-nine or not, of course I do not know. I take it on his assertion that he looked over twenty-three. Mr. Whiteside. — I looked through all I got. I put them all separately into the hands of the witness, and three gentlemen who were beside me examined each. The Attorney-General. — One moment. We identified, my lord, by the witness Dobbyn only those four which I state. Mr. Kemmis, the Crown Solicitor, has had them all in his possession. They were certainly, as far as I am able to form any opinion, produced. They remain still in the possession of Mr. Kemmis, and of course I can have no other possible means of knowing any thing about them ; but this much I do know, that the twenty- nine documents which were produced last night, were certainly produced in court during the examination of the witness Dobbyn. Mr. Whiteside. — 1 must appeal to the notes of my Lord Chief Justice, or to the notes of any gentleman on the jury. The Lord Chief Justice. — It is quite plain that a bundle of twenty-nine was produced. We did not examine these papers, and our notes will contain no identity of them. Mr. Whiteside. — Surely your lordship’s note contains the answer which was given to me by the informer, that on one only was the name of Mr. O’Brien written, and that was struck out ; and that on seven was the name of Kenyon. The Solicitor-General. — Thatiswhatyou stated, Mr. Whiteside. Mr. Whiteside. — The thing is as clear as light, and I am as certain of it as of my own existence. The Solicitor- General. — Every one of those documents were produced at that time. Mr. Whiteside. — I beg your pardon. The Solicitor- General. — They were here, if they were not looked at by yourself. The Lord Chief Justice. — What is your exact complaint ? Mr. Whiteside. — My complaint is, that when the documents were produced for confirming the witness, and when for cross- examination they were handed to me, I counted them, and put them each separately into the hands of the witness. I laid each of them in turn on that board before me. He picked out one 2 K 498 SPECIAL COMMISSION, CO. TIPPERAEY. with the name of Mr. O’Brien on it, and one only, and he said that was struck out. He identified seven more belonging to Mr. Kenyon ; he identified one or more as to other persons; and the whole number was twenty-one. I made up that parcel and handed it back. I can prove it, because, my lords The Lord Chief Justice, — What is it that is deficient now ? Mr. Whiteside. — I complain that they have added to that parcel. Now there were twenty-nine given to me in the parcel last night, contradicting my notes of the evidence with respect to the name of Mr. O’Brien. I wish to have the list as it was given to me, and as the witness examined it on the table. I don’t say they have done it wilfully ; but the fact is, that there are more papers now than when the witness was under exami- nation, and I appeal to the jury whether that is not so. I will not speak to the case till that is rectified. The Lord Chief Justice. — The witness says that there were seven on which the name of Kenyon appeared, and one on which was the name of Mr. O’Brien. A Juror. — And the name was scratched out. Mr. Whiteside. — I require now to have the list handed back to me. The Attorney- General. — That was, my lord, one of the docu- ments that was handed by Mr. Whiteside to the witness ; but most indisputably the whole tw^enty-nine documents which are here, were produced to the witness, from which he took out the three or four he selected. The Lord Chief Justice. — There were a great number given to him, and the Court did not know the number, nor whether they were ever reckoned in court or not. Mr. Justice Moore. — I will tell you what my note on the direct examination is. He gives in his own balloting paper ; he proves Lalor’s handwriting to another of them, McDermott’s handwriting to another, and also O’Higgins’s handwriting to a fourth. The Attorney-General. — And that was all he identified. Mr. Justice Moore. — He stated in another portion of his direct examination, that they were all unanimous in voting for Mr. O’Brien ; but Mr. Dillon said, that Mr. O’Brien would do more good in organizing the country than if shut up in the council- room in Dublin. He says, as 1 have taken it down — this is part of his cross-examination — Father Kenyon was not elected one of the five, but Duffy wrote from prison to elect Father Kenyon and two other Roman Catholic clergymen ; but the meeting was unanimous that they would not elect a priest, as it was to be a council of war. It appears from the balloting papers that seven persons voted for Kenyon, and one for the Rev. Mr. O’Malley. The Attorney-General. — Yes, my lord. THE QUEEN WILLIAM SMITH O’BRIEN. 499 The Lord Chief Justice. — That is quite right ; and on his direct examination he says, one was signed by James Lalor, another was signed by himself, another by M‘Dermott, and another by O’Higgins. Mr. Justice Moore. — And there were seven for Mr. Kenyon, and one for Mr. O’Malley. The Attorney- General. — Well, my lords, if there be any doubt on the subject. Air. Kemmis, who is the Crown Solicitor, has had these documents, and it is right to examine Mr. Kemmis. Mr. Whiteside. — It is impossible Mr. Kemmis can give us any assistance in this matter. Lord Chief Justice Doherty. — What is in controversy ? Mr. Whiteside. — What I have stated before twice, and what I state on the honour of a barrister, — and I state it with the knowledge of my learned friends here — that when, for the pur- pose of cross-examining the witness, I asked for the papers, they handed me twenty-one. I examined each paper in my hand, and I put them seriatim into the hands of the witness on the table. I asked him to pick out any one signed by Mr. O’Brien ; and he admitted, and told me that his name was only on one, and that was struck out. All that occurred in the presence of my esteemed friend, the Attorney-General. Nobody then denied, disputed, or contradicted it. We prepared an abstract of them ; and last night, owing to your lordship’s kind suggestion, these were sent to us with the other papers proved in the cause, and to our surprise we find not one but nine with Mr. O’Brien’s name upon them. The Lord Chief Justice. — Now see how the matter stands. You state that on the examination of that witness, not twenty- nine but only twenty-one were produced ; on the other hand, it is stated that the whole twenty-nine were produced. Now with respect to that what can the Court do? Mr. Whiteside. — My lord, it is utterly impossible for me to go on under these circumstances, unless I prove the fact here. The Lord Chief Justice. — You shall either have the witness reproduced or Air. Kemmis examined, which you like. Mr. Whiteside With great respect, my lord, Mr. Kemmis cannot give the slightest assistance in this case. I appeal to the Court. Your lordship has read from your notes that only one balloting paper was produced and proved with the name of Mr. O’Brien upon it. The Attorney- General. — Mr. O’Malley Mr. Whiteside. — I want merely, my lord, to have the state of things which was taken down on your lordship’s notes now verified, and to have the papers handed back to me in the same state in which they were when given to me for the purpose of cross- examining the witness. I wish to have added on your lordship’s notes that the policeman who was produced did not identify 2 K 2 500 SPECIAL COMMISSION, CO. TIPPERARY. them, and could not identify them. He found them with Mr. Lalor. He seized a bundle of papers. He did not particularize them. The only number handed to me was twenty-one, and I only want those as they were originally given to me handed back ; that is but just. Mr. Scott. — We say we handed twenty-nine. There we are at issue. The Solicitor- General. — My lords, I do not know how it has happened that the other papers escaped the attention of Mr. Whiteside ; but this I do assert, that I had the other papers in my hand at the time, and saw the name of Mr. O’Brien on several of those papers, and I made a note of the matter to observe on it when it came to my turn to reply, Mr. Whiteside. — Does Mr. Solicitor-General say that the papers were handed to me ? The Solicitor- General. — No, I don’t say that. I only say that the papers were in court. I do not say that they were handed to you by any means. Mr. Whiteside. — I aver that they were not. Hie Solicitor- General. — I merely aver what is within my own knowledge ; whether you got them or not I cannot say. Mr. Whiteside. — My lord, I leave it so. Lord Chief Justice Doherty. — Did not the witness more than once say that twenty- nine or thirty baUoted ? The Attorney- General. — He did. Lord Chief Justice Doherty. — Then if it became important to note any deficiency, why was not a question put to him at the time to point it out ? Mr. Whiteside. — With great respect, my lord, that is a very proper question to ask the counsel for the Crown. I had not the custody of the documents. I knew nothing of them until they came into court. I dealt with all the things I had. Your lordship, when at the bar, did not deal with things which you had not. I am willing now to let the matter go to the jury, that there were but twenty-one produced, and one only, as your lord- ship has it on your notes, with Mr. O’Brien’s name on it. The Lord Chief Justice. — He says distinctly that there were twenty-nine or thirty baUoted. Mr. Whiteside. — Yes, my lord ; I admit that ; but all those twenty-nine or thirty were not produced. The Attorney- General. — I should like to examine Mr. Kemmis, who was the person who handed these papers, in open court, to Sir Colman O’Loghlen himself. It really is not right to have an imputation left on Mr. Kemmis. Mr. Whiteside. — I did not make any imputation on Mr. Kemmis. The Attorney- General. — There really is a very great imputa- tion on Mr. Kemmis. Mr. Whiteside. — Then we will examine Mr. Kemmis. THE QUEEN WILLIAM SMITH O’BRIEN. 501 Thomas Kemmis, Esq., sworn — examined hy the Attorney-General. I believe you are a son of Mr. William Kemmis, the Crown Solicitor? —Yes. And as such, have assisted your father in the conduct of this case on behalf of the Crown ? — Yes. What papers are those you have got in your hand at present ? — They are called balloting papers. How many have you % — Twenty-nine. Are those papers numbered consecutively from one to twenty-nine ? — Yes. Were they so numbered from one to twenty-nine consecutively before the commencement of the present trial ? — Yes. Do those twenty-nine which you have in your hand include all the balloting papers that were ever in your custody, power, or possession, on behalf of the Crown % — I have had the charge of all the documents the Crown have given in evidence in this case personally; my father gave me that particular department to attend to. And these twenty-nine papers have been in your personal possession from the time they were handed over to the Crown Solicitor? — Yes, except so far as going in and out of court, and then I left the key of the box in which they were deposited with my father. And those twenty -nine papers were always kept together ? — Carefully. Had you yourself reckoned them for the purpose of ascertaining the number previously? — Yes; I did not mark them myself, my father marked them. But you saw them marked in consecutive numbers ? — I was present when they were marked by my father. Were you in court here during the present trial? — Yes, most part of the time; I was in and out. Were those nine and tv/enty papers produced during the examination of the witness, Dobbyn ? — They were. Did you yourself hand over those nine and twenty papers to any of the gentlemen on the other side ? — I think my father handed them. Mr. Whiteside — Be accurate now ? — I will be quite accurate. I have a perfect recollection of handing those twenty-nine papers just as Dobbyn had left them, in two parcels; four or five of them were marked by the officer, the others were not. They were bent round like that; and I handed them to Sir Colnian O’Loghlen. That was after Dobbyn left the table ? — It was after they were marked. Tice Attorney-General. — You recollect there was an adjournment of the Court after the examination of Dobbyn; before his cross-examination the Court adjourned, and Dobbyn was removed from the table? — I could not recollect exactly the period I gave them to Sir Colman; my father had the papers, and I was taking care to watch them. The whole nine and twenty ? — The whole nine and twenty papers. And handed them into his hands ? — Yes. I have had those papers ever since, and I gave them to Sir Colman O’Loghlen. There were only four of those papers marked by the officer ? — I can- not exactly say; there were either four or five. You kept them separate from the other papers? — They were separate when I handed them to Sir Colman O’Loghlen, because it was more con- venient to have them separate on account of the course of the exaniina- 502 SPECIAL COMMISSION, CO. TIPPERARY. tion; but I do not say they have been kept separate ever since; they are all in one paper. Mr. Justice Moore . — Who did you get them back froml — At that time from Sir Colman O’Loghlen; but there were several gentlemen examining them at the same time, as far as I saw. Who gave them back to you ? — Sir Colman. Lord Chief Justice Doherty . — Did you get back the whole twenty- nine % — I did not count them, my lord ; but I put them in the paper, and they have since tallied. There are since twenty-nine? — Yes. And your father’s numbers are on the twenty-nine ? — Yes, my father’s handwriting is on the twenty-nine. Are you, on examination, able to swear that ? — Yes, my lord. The Attorney -General . — You can examine them now ? — I have done so since I came into court ; those are the marked ones (producing them). Those that were marked by the officer? — Yes; the four or five. Was it not after you gave these nine and twenty papers over to the counsel on the other side that you saw the gentlemen about there examin- ing them ? — I did. They might have done it before during the course of the examination ; I suspect it was after Dobbyn left the table. Mr. Whiteside . — After Dobbyn left the table? — That is my recollec- tion, certainly ; after they were marked by the officer, and he was not very fast in marking them. Sir C. OLoghlen . — Howmany were marked by the officer? — Ithinkfour. The Attorney-General . — Do you recollect the circumstance of Dobbyn having left the table between his direct and his cross examination ? — Y es, I recollect he was put in that corner. Now do you recollect whether it was after you handed the papers to Sir Colman O’Loghlen that the witness was cross-examined by the coun- sel on the other side ? — I cannot say. Cross-examined hy Mr. Whiteside. Now, Mr. Kemmis, I am the last person in the world who would dis- pute your veracity in any thing. I believe you have stated that these papers — the whole bundle — were handed over after the cross-examina- tion, and after Dobbyn left the table ? — I could not state that. You would not say it was not ? — I would not. Then the twenty-nine were handed over ; was that after I had cross- examined Dobbyn, and after he had left the table ? — I could not say. Were you here during my cross-examination ? — Yes. Were they all unpinned ? — There was no pin in them. Now, I may ask you, about that time did you hear it said that Mr. Kenyon had only seven votes ? — Yes, either six or seven. Did you hear it said that Mr. O’Brien had but one, and that his name was struck out ? — Yes, I think I did. You were staying here all that time? — Yes. And did you not hear it said that two persons had a tie, Lalor and Reilly ? — I heard there were two that had a tie. My attention flags sometimes. You heard all that stated; and you would not say, Mr. Kemmis, as a man of truth, that it was after Dobbyn left the table that this parcel as it is now produced was handed over to one of the counsel here, while I was cross-examining the witness ? THE QUEEN 'y. WILLIAM SMITH O’BRIEN. 503 Mr. Justice Moore . — Bid you give more than one set of balloting papers to Sir Colman ? — They were divided, my lord. Did you give them all at one time, or some at one time and some at another time % — All at one time, my lord, yesterday evening. During the trial % — Only at that one time. Did you get them back all at one time from Sir Colman % — Only one time. Lord Chief Justice Doherty . — Did you give the whole twenty-nine to Sir Colman ? — I gave the whole twenty-nine to Sir Colman, my lord. You are positive as to that ? — I am positive as to that. Mr. Whiteside . — But that was after the cross-examination. Can you tell me who put the papers I cross-examined upon into mj hands here ? — I think my father did. That was in the early part of it. Mr. Whiteside. — Now I might as well be said to have had five hundred ; and I think I ought to he believed when I assert here that I got but the twenty-one ; those that I had, I put each separately into the hands of the informer. The Solicitor- General. — It is not asserted that Mr. Whiteside had any more than he states. The Lord Chief Justice. — Do you wish to examine any further? Mr. Whiteside. — No, my lord, I am quite satisfied. The Attorney- General. — We will just examine Mr. William Kemmis, my lord. William Kemmis, Esq., sworn — examined hy the Solicitor-General. Were you present at the time the witness, Dobbyn, was under exami- nation ? — I was. Were you present when those balloting papers were produced 1 — I was. Now when they were produced was there any selection made by you, or with your knowledge, separating any portion of them from the others before they were handed over ? — To whom ^ Retaining any ^ — No, none whatever. I numbered the papers from one to tweuty-nine; when I got the papers I was told there were twenty- eight, and I numbered them over again with my own figures up to twenty-nine, and either myself or my son handed them across. That is all I know. Was there any selection made with a view of retaining any of them ? — There was a selection so far as asking the witness did he know such a handwriting. And such as he proved was marked by the officer ? — Yes, marked by the officer. And they were kept distinct until they were handed over % — Yes, every one of them. Cross-examined hy Mr. Fitzgerald. Do you remember the balloting papers being handed to the witness during his cross-examination % — I do. By whom were they handed to the witness % — I think by my son ; I might have handed them ; I cannot exactly say. The Lord Chief Justice . — Are you quite sure they were handed to the witness ? — Yes, I am quite sure, my lord. 50i SPECIAL COMMISSION, CO. TIPPERARY. Mr, Fitzgerald. — The papers were handed to him one by one I think? — He put down some papers on the table and examined them. Now will you be quite positive that Mr. Whiteside was not the person who handed those papers to the witness in his cross-examination ? — I don’t know whether he might have handed them in his cross-examination or not, but either I or my sou handed them to the witness. That is on the direct examination you are speaking of. What I ask is, do you remember those papers being handed to the witness on the cross-examination ? — I do not ; he had some of them in his hands, but I cannot say whether he had the whole of them. You do not remember his having them in his hands during the cross- examination % — He had some of them in his hands, but who handed them I cannot say. Mr. Whiteside. — Was it you who handed them to me ? — I declare I cannot say who handed them in cross-examination. The Lord Chief Justice. — What was the last answer ? Mr. Fitzgerald. — My lord, what Mr. Kemmis now states is, that he does not remember their being handed to the witness at all. Mr. Kemmis. — I cannot say who handed them. The Lord Chief Justice. — The way we have it is, that the papers were produced on the direct examination. Mr. Fitzgerald. — I am quite aware of that, my lord. The Lord Chief Justice. — What he now says is, that they were all handed to the witness. Mr. Fitzgerald. — Upon his direct examination. The Lord Chief Justice. — Yes. Mr. Fitzgerald. — I was asking him whether he remembered the papers being handed to the witness on his cross-examination ; I thought at first he said he did. I merely asked the witness if he remembered by whom they were handed on cross-examination. The Lord Chief Justice. — Ho you remember by whom they were handed on cross-examination? — No, my lord, I do not. Mr. Whiteside. — May I ask if your lordship has on your notes any re-examination by the Crown as to the number of those papers after the cross-examination. The Lord Chief Justice. — None. Mr. Fitzgerald. — You do not remember who handed them to the wit- ness then ? — I do not. Can you recollect whether it was Mr. Dunne handed them on the cross- examination ? — I cannot say. Or who handed them to Mr. Whiteside for the purpose of cross-exa- mination ? — I cannot say. The Attorney- General. — With reference to the last question about Mr. Dunne, I should wish to examine that gentleman to prevent any imputation. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 505 Mr. William Dunne, sworn — examined hy the Attorney -General. Are you assisting Mr. Kemmis in the office of the Crown Solicitor in the conduct of these trials % — I have been. You are a solicitor yourself'? — I am. Were you in the court during the examination of the witness Dobbyn % — I was. Did you see those balloting papers which are the subject-matter of this present inquiry % — I did. Are you aware of the number of those balloting papers ? — Yes, twenty- nine balloting papers. Do you know whether the whole nine and twenty were put into the hands of the witness on his examination *? — They were. Are you aware of any examination or selection having been made, or any portion of them being kept back % — Certainly not. Did you happen, during the examination, and before the cross-exami- nation, to see whether those papers were handed over, and how they were handed over, and by whom, to the gentlemen on the other side % — I am not quite aware, but I think Mr. Whiteside took them from the witness. Mr. Whiteside . — That I positively deny ; they were handed to me here. Mr. Dunne . — I only think so ; I give it according to recollec- tion ; I thought they were. Cross-examined hy Mr. Whiteside. Do you swear, Mr. Dunne, that the papers were handed to me from that table, and not by me to the witness on the table % — I saw you take them ; I am speaking from recollection ; I saw you make a selection, and hand some to Sir Colman O’Loghlen and others to the witness. You say I made a selection of the papers given to me, and only put into the hands of the witness a selection % — That was at the time you were looking for the name of the Rev. Mr. Kenyon. On your oath, did I not put into the hands of that witness every paper you saw me get % — I believe you did. Will you swear it was not a gentleman here who handed me the papers ? — I will not ; I said so before. Mr. Whiteside . — I will just examine Mr, O’Hara, my lords. William O'Hara, Esq., sworn — examined hy Mr. Whiteside. You take an interest in these trials % — Yes. Were you standing close by me during the examination of Dobbyn, the witness ? — I was sitting immediately underneath you. Did you see a number of papers handed to me ? — Yes. From what place were they put into my hands? — During the cross- examination, the witness had three or four of the papers, which he had previously established or identified, in his hand j Mr. Whiteside was anxious to see how many had the clergymen’s names on. The Lord Chief Justice . — You ought to state facts; you are now stating what you conjecture. Mr. O'Hara. — Well, my lord, I am only aware of the facts of the case as I observed, and I state them as I observed them. 506 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Whiteside . — Then these papers passed through your hands ? — They were passed in a list, and the whole of the list that passed through your hands you examined, and according as you examined them you handed them to me to examine. I looked them all over, and I swear that on the list that passed through your hands to me the name of Mr. O’Brien was not mentioned. Lord Chief Justice Doherty — Do you recollect whether at that moment the whole twenty-nine came to your hands % — He had three or four in his hand, and I do depose, to the best of my recollection, that I think only fourteen or fifteen were handed to me. Mr. Whiteside . — Were the papers handed to me? — They were handed to you through me. And were they laid down by the witness on the board ? — They were ; the whole of the papers. I can depose that all you received had passed through my hands ; that I examined them strictly, and that the name of Mr. O’Brien was not on them. And there was no re-examination to contradict that fact ? — No. Cross-examined hy the Solicitor-General. I believe the fact is this, that you examined the papers with the view of finding out how many votes were given for Mr. Kenyon ? — Yes, I did. How many were there, do you remember ? — I only looked over them to see if his name was on them ; if his name had been on them I should have remarked them. Y’^ou made a selection of those? — No, I cannot say that. But you handed them up to Mr. Whiteside ? — I handed them through the witness here. Do you recollect how many ? — His name was on seven or eight of them I think. Have you any doubt about that ? — I really cannot say. On any of those you saw, you did not see the name of Mr. O’Brien ? — Assuredly not. Look at those three {handing three of the papers to the witness) ; is not Mr. Kenyon’s name on those three with Mr. O’Brien’s ? Will you swear you did not see those ? Will you look at those papers ? — The name of Mr. O’Brien is mentioned on each of those, and it is mentioned in the same handwriting, I can certainly say. With Kenyon ? — Yes, no doubt. And it has the five names on it ? — Yes ; the name of Mr. O’Brien here is not exactly in the same handwriting as before. But it is one of the five ? — Yes, it is. What would you say, as a matter of computation, if out of the nine and twenty balloting papers seven of them appear for Mr. Kenyon, and upon three of those Mr. O’Brien’s name appears not erased ; what would you say about that ? — I would say on my oath I believe those papers on which that state of things is exhibited did not pass through my hands. Will you swear that? — They did not pass through my hands; most assuredly not. I do believe on my oath I am aware of all the facts of the case, and I could not be mistaken as to the fact, as I was most anxious to see if the name of Mr. O’Brien was upon them. You heard the evidence of Mr. Kemmis having sent over the papers THE QUEEN WILLIAM SMITH O’BRIEN. 507 to the other side, twenty>niiie in number ? — I did ; and I must say that I do not believe that he had twenty-nine papers^ or any such number, in his hand. Those did not pass through your hands, because you will see that Mr. O’Brien’s name is on them ? — I am as satisfied as I sit here from my general notice of the facts of the case, and the great interest I take in it, that if the name of Mr. O’Brien was on any of the papers that passed through my hands that I should have immediately told Mr. Whiteside. I am not disputing the fact, Mr. O’Hara ; you only handed what you inspected to Mr. Whiteside ? — Of course. And he submitted them to the witness ? — No, he had previously examined them and handed them to me, and I went carefully through them. From wdiom did you get them for that purpose ? — I got them from the hands of Mr. Whiteside. But do you know who handed them to Mr. Whiteside ? — I do believe he received them either from Mr. Kenimis I am not asking as to your belief? — I can only give you what I believe ; I did not attach much importance to it. Will you swear, or do you know the fact, from whom or by whom those fifteen — for you say you only recollect fifteen — were handed to Mr. Whiteside for examination ? — -When I say only fifteen I did not reckon them with the view of computation or number. I do not say you did with any particular view ; I only want the facts, did you reckon fifteen ? — I did not ; I have only a general idea that there could not be more than fifteen. I want you to swear to the matter of fact ? — I did not reckon them at all. You did not ? — I did not. Then there might have been eight and twenty ? — I will swear there were not eight and twenty. Will you swear to ten? — I will to the best of my judgment ; I can affirm there were fourteen or fifteen, and no more. But you do not know from whose hands Mr. Whiteside was handed those fifteen ? — He had previously handed three or four, which the wit- ness had identified. Lord Chief Justice Doherty. — How many did you yourself reckon ? — I think, my lord, about fourteen or fifteen passed through my hands. Upon how many of those papers did you yourself see the name of Kenyon ? — I said, my lord, about seven or eight I thought ; I knew it was always a matter of congratulation when Mr. Whiteside discovered the names. It is a little important to confine yourself to numbers j with your own eyes you swear you saw the name of Kenyon on seven or eight ? — I think so, my lord. On how many did you see the name of Mr. O’Brien ? — Of those which passed through my hands I do not believe that the name of Mr. O’Brien appeared on more than one. Will you look at those papers and see how many contain the names of Mr. O’Brien and Mr. Kenyon ? — One contains the names of Mr. O’Brien and Mr. Kenyon ; another contains the names of Mr. O’Brien and Mr. Kenyon, that makes two j and a third contains the names of Mr. O’Brien and Mr. Kenyon. 508 SPECIAL COMMISSION, CO. TIPPERARY. Lord Chief Justice Doherty, — Upon how many of those papers does the name of Kenyon appear ? Mr. Whiteside. — At present eight; seven I handed to the witness ; there are now eight I know. Lord Chief Justice Doherty . — They must have been looked at according to the witness’s own showing. To show how fallacious is an inquiry of this kind, it is now plain to demonstration that this gentleman saw seven with the name of Kenyon, on three of which the name of Mr. O’Brien was. Mr. Whiteside. — Give me leave to tell your lordship, that these are not the ones that were in my hands ; I saw them go into the hands of the informer. Lord Chief Justice Doherty. — As a matter of proof it is demonstration. Mr. Whiteside. — Well, before I begin to speak, what is the decision of the Court on the matter ? The Lord Chief Justice. — That the case must proceed. Mr. Whiteside. — What is the state of the evidence in respect to these papers ? The Lord Chief Justice. — I think they were all produced in evidence. Mr. Whiteside. — I am to argue on the case ? The Lord Chief Justice. — Yes. Mr. Whiteside. — Then, my lord, I must ask for time to con- sider what course to pursue. Am I to be told, that I am to argue on the case as if there were eight names of Mr. O’Brien ? The Lord Chief Justice. — Certainly not. Mr. Whiteside. — Because, if that is so, I shall not address the jury in this case ; I am resolved on that. The Solicitor-GeneraL — There are not eight; I think there were four only. Sir C. ODoghlen. — There are eight now. Theljord Chief Justice. — We consider that the name of Mr. O’Brien is, for all the purposes of this trial, before us only on one paper. Sir C. O'Loghlen. — My lords, Mr. Kemmis has stated, that he handed those papers to me on the cross-examination. I am acting as assistant counsel in this case ; I do not know whether it is the usual course for a counsel to be examined, but I would wish to he examined to state the real facts. Lord Chief Justice Doherty. — For the purpose of the trial, Mr. Whiteside is to deal with this case as it appeared this morn- ing on the evidence, that the name of Mr. O’Brien appeared only on one paper. That is the way the evidence strikes me. The Lord Chief Justice. — Just so. THE QUEEN WILLIAM SMITH O’BRIEN. 509 DEFENCE. Mr. Whiteside. May it please your lordships, gentlemen of the jury — In this case it now becomes my duty to address you on the part of Mr. Smith O’Brien, the prisoner; and, believe me, I never yet addressed a jury more conscious of the solemn re- sponsibihty which devolves upon me. I most unfeignedly assert, that it would have been grateful to my feelings, had Mr. O’Brien selected a counsel more worthy by talents and knowledge to address such a tribunal as I see before me. But it is one of the duties of the honourable profession to which I belong, never to refuse undertaking any trust, however solemn and awful, which in the course of professional duty may fairly he imposed upon him. The very effort to comprehend all the bearing of the evidence in this case, is calculated to disturb the memory and distract the reason. I have, therefore, most respectfully to ask of you to give me the benefit of your assistance, by correcting me where I am wrong, and bearing with me where you think I may not be addressing myself exactly to the matter before us. Gentlemen, we had intended, I avow, to apply to their lord- ships to postpone the trial of my client, but ultimately we thought it the more manly course to proceed ; and his desire was, that he should now know, once and for all, his fate. We intended to do it because we believed he had been prejudged. I have myself read a charge composed for my Lord Chief Justice in the confident anticipation of the guilt of the prisoner, and a vehement appeal to the jury to convict. If I thought what has been so written could influence one expression from the Court, or the mind of any gentleman in the box, I would with- draw and leave Mr. O’Brien, who holds his life under the law, to be sacrificed as a victim on the shrine of political expediency. But too well do I know that the ermine which has been worn by Mansfield, Holt, and Hale, will not be sullied by the distin- guished magistrates who preside on this solemn occasion : one of whom has had a brilliant reputation in the senate — all at the bar ; and I am as satisfied as of my own existence, that they will each and all rejoice if I can convince them of the innocence of my client. Gentlemen, I have to apologize for having delayed a very short time the progress of this trial by an objection to the jury. That objection was not made from any factious or improper motives. Mr. Smith O’Brien did not wish now, in his awful situation, to contradict the opinions of his life. He therefore did submit a question to the Court which has been decided, and I have no doubt rightly ; and I do most unfeignedly rejoice, from the emphatic charge of my Lord Chief Justice, and the verdict of the triers, to find that the jury panel was framed in a manner not only legal but laudable. I am content with the 510 SPECIAL COMMISSION, CO. TIPPERARY. tribunal ; my client is perfectly satisfied with his jury ; and I avow openly and publicly that, whatever may be the result, neither this maligned gentleman nor the humble counsel who addresses you will ever breathe a word of objection to your decision. It never entered into my mind to cast an imputation on the respectable gentleman, the sheriff of your county. He bears a name that I respect, for I have been long accustomed to be taught by the wisdom and the learning of that distinguished judge ; and he is one who, when (I trust it wiU be at a very distant day) he may be taken from the evil to come, will long be honoured and revered by his countrymen. Gentlemen, when I say I have no complaint to make of the jury, I have a complaint to make of the law. Do not suppose that their lordships in overruling, as they have been so frequently compelled to do, my suggestions on the part of the prisoner, did it from any other reason than that they were coerced to do so by the law. They have no power to make, but they are to declare the law. Had Mr. Smith O’Brien been so fortunate as to have been an Englishman, and tried under the law of England, he would have known, ten days before his trial, the name of every juror upon the panel ; he would have known the names of all the witnesses who were to be examined against him, with their titles, professions, and residences. In this country it has been decided that the like law does not prevail ; and a more melancholy example of that unfortunate result never presented itself than in the case you witness before your eyes. A man appeared on that table to swear away directly the life of my client, with respect to whom no human being could give me a suggestion as to who he was, what he was, where he came from, or what was his past life and conduct. Had this trial taken place in England, where I know already this practice has created much surprise, we should have been enabled to come before you — I say not what the result might have been — with evidence, if evidence of that nature did exist, to affect the character or the veracity of that witness. But by the law of this country, an informer, or a man called by that name, may appear on the table, though he has never been even seen by the accused, or by any human being who can advise or assist him ; he may deliver evidence which he will take care nobody can contradict, and destroy innocence instead of establishing guilt. Gentlemen, Mr. Attorney-General has opened this case to you with what he deemed, for his purpose, a sufficient exposition of the law ; but it is not sufficiently complete for the purpose of my client. It will, therefore, become my duty to explain to you clearly — not departing in one letter from what I believe to be the law and the truth — what the question is which you will have to determine, and the principles within which my case wiU fall. And then, as I proceed, afterwards to observe upon the statement THE QUEEN v. WILLIAM SMITH O'BRIEN. 511 of the law officer of the Crown, and upon the evidence which he has given to sustain it — I shall omit nothing — I will consider the entire case against Mr. O’Brien, founded on the past acts of his life — the things that he has done, the things that he has said, and the things that he has written — which have been submitted to you in evidence against him. Gentlemen, my authority is of small consequence. Any thing I say to you (and it will interest you deeply, for we are all con- cerned in a constitutional question) will be bottomed on authority which nobody can dispute or deny. You are proceeding to try the prisoner on an ancient statute, passed so long ago as the reign of Edward III. The people of England, crushed by the intolerable oppression of the former law of high treason, deter- mined that it should be expressed, as it ought to be in a land of freedom, with distinctness and precision ; and in the parliament, which from that day has been described as henedictum parlia- mentum — the blessed parliament — the law was passed under which you sit to decide on my client’s life. What is that law, and what is its simple exposition given by our greatest authority. Coke ? There is no difficulty in it according to the words ; it is very simple and very clear. It is always to be regretted that decisions have been made on it since, which not only contradict its letter but its spirit, and which sometimes defy the ingenuity of man to comprehend. They do not, however, involve the case of my client, though I make the observation. I am quoting now from the 3rd Institute, 1st page : — “ Whereas divers opinions have been before this time in what case treason shall be said, and in what not, the King, at the request of the Lords and of the Commons, hath made a declaration in the manner, as hereinafter followeth, that is to say, when a man doth compass or imagine the death of our Lord the King, or our Lady his Queen, or of their eldest son and heir ” That is very simple. Now, what do you think the framers of that Act of Parliament meant ? That if a man should resolve, imagine, and contrive the natural death of the King or Queen, or their eldest son and heir, which might be proved by the same evidence in reference to each, he was guilty of treason. Or if a man do levy war against our Lord the King in his realm, or be adherent to the King’s enemies in his realm, giving to them aid and comfort in the realm or elsewhere, and thereof be provably attainted of open deed by the people of their condition, he shall be adjudged guilty of treason.” And that parliament was called the henedictum parliamentum. There is a brief exposition of this act in a few lines, which will be sufficient for my purpose, in page 23 of the same book. Before the reign of Philip and Mary, that simple law, made by wise and sagacious men, for the protection of themselves and 512 SPECIAL COMMISSION, CO. TIPPERARY. tlieir fellow-subjects, was frittered away, mystified, and perplexed. Men were put to death for bare words — for what they said, and for what they intended, although no act done was proved against them. In fact, as has been rightly described by a profound lawyer, the courts of law in England were “ caverns of murder,” which is a very strong expression. This Act of Parliament was passed to restore the law which I have just stated to you ; and Lord Coke says — “This act for the better instruction of the reader, to discern what offences be high treason or petit treason at this day, it shall be necessary to add hereunto the statute of 1st Mary, whereby it is enacted, that no act, deed, or offence, being by Act of Parliament made treason, petit treason, or misprison of treason, by words, writing, cyphering, deeds, or otherwise whatsoever, shall be taken, had, deemed, or adjudged to be liigh treason, petit treason, or misprison of treason, but only such as be declared and expressed to be treason, petit treason, or misprison of treason in or by the Act of Parliament or statute made in the 25th year of the reign of Most Noble the King of famous memory. King Edward III., touching or concerning treason.” Then he adds — “ Before this act so many treasons had been made and declared by Act of Parliament since this act of 25th Edward III., some in particular, and some in general, and in such sort penned as not only the ignorant and unlearned people, but also learned and expert men, were many times trapped and snared; and sometimes treasons made or declared in one King’s time were abrogated in another King’s time, either by special or general words ; so as the mischief, before 25th Edward III., of the uncer- tainty what was treason, and what not, became to be so frequent and dangerous, as the safest and surest remedy was, by this excellent act of 1st Mary, to abrogate and repeal all but only such as are specified and expressed in this statute of 25th Edward III.; by which law the safety both of the King and of the subject, and the preservation of the common weal, is wisely and sufficiently provided for, in such certainty, as nihil relictum est arbitrio judicis.^' Nothing is left to the discretion of the judge. “ And certainly the two rules recited in the preamble of the said act of 1st Mary are assuredly true.” Now observe what are these two rules ; observe the simplicity and beauty of them. “ First — That the state of a king standeth and consisteth more assured by the love and favour of the subject toward their sovereign, than in the dread and fear of laws made with rigorous pains and ex- treme punishment for not obeying their sovereign.” And the other — “That laws justly made for the preservation of the common weal, without extreme punishment or penalty, are more often, and for the THE QUEEN y. WILLIAM SMITH O’BRIEN. 513 most part, better obeyed and kept than laws and statutes made with great and extreme punishment.” Then he says — “ These notable things are to be observed ” In a few lines he expounds this great Act of Parliament. The first is what I before said — none are treason except such as come within the act ; every other treason is abrogated. “ Fifthly — No offence is to be treason, petit treason, or misprison of treason, but only such as be declared and expressed to be treason, petit treason, or misprison of treason, by said act of 25 Edward III. Here three things are to be observed : First — that this word expressed ex- cludeth all implications or inferences whatsoever.” No implication or inference. “ Secondly — Here misprison of treason is taken for concealment of high treason or petit treason, and only of high treason or petit treason specified and expressed in the act of 25 Edward III. Thirdly — That no former judgment, attainder, precedent, resolution, or opinion of judges or justices of high treason, petit treason, or misprison of treason, other than such as are specified and expressed in the said act of 25 Edward III., are to be followed or drawn to example, for the words be direct and plain.” Gentlemen, we have the work of a very famous lawyer, who explains with great brevity some principles and decisions which apply, in my judgment, very strongly to this case — that is, the work of my Lord Hale. He explains this Act of Parliament and the cause of it ; and the principle which he lays down is one which I may hereafter advert to ; but I wish that you should first hear it from such high authority. He says — “ Now, although the crime of high treason is the greatest crime against faith, duty, and human society, and brings with it the greatest and most fatal dangers to the government, peace, and happiness of a kingdom or state, and therefore is deservedly branded with the highest ignominy, and subjected to the greatest penalties that the law can inflict ; yet by these instances, and more of this kind that might be given, it appears — 1. How necessary it was that there should be some fixed and settled boundary for this great crime of treason, and of what importance the statute of 25 Edward III. was in order to that end. 2, How dangerous it is to depart from the letter of that statute, and to multiply and enhance crimes into treason by ambiguous and general words, as accroaching of royal power, subverting of fundamental laws, and the like ; and 3. How dangerous it is, by construction and analogy, to make treasons, where the letter of the law has not done it ; for such a method admits of no limits or bounds, but runs as far as the wit and invention of accusers, and the odiousness and detestation of persons accused will carry men.” Now, that is a principle always to be borne in mind in consi- 2 L 514 SPECIAL COMMISSION, CO. TIPPERARY. dering the evidence in a case of high treason falling within the act of Edward. The act is then set out as I before stated it to you, and my Lord Hale explains the exception in that act, for there is an exception, and it is this. It is all drawn up in a few lines ; for our ancestors were simple men, and they expressed what they had to say directly. Modern legislation is a mass of obscurity and perplexity, and often even of absurdity. In this act it is said — If, par case, any man of this realm ride armed, covertly or secretly, with men of arms, against any other, to slay him, or rob him, or take him, or retain him, till he hath made fine or ransom for to have his deli- verance, it is not the mind of the King nor his council that in such case it shall be judged treason, but such shall be judged felony or tres- pass, according to the laws of the land of old time used, and according as the case requireth. And if in such case, or other like, before this time any justices have judged treason, and for this cause the lands and tenements have come into the King’s hands as forfeit, the chief lords of the fee shall have the escheats.” This is put only as an example. One man, or body of men, riding armed to accomplish a purpose on another man, or another body of men, is not treason, nor any case of the like nature, hut it is to he decided by the old law, and adjudged felony or trespass, as the case might be. Gentlemen, I may say in passing, that in this indictment there is one charge against Mr. O’Brien for having compassed the death of the Queen. That crime, you observe, rests in the intention. “ Compassing, imagining, and inventing,” is an operation of the mind. It is impossible to get at the feeling and purpose of the mind but by evidence of what they call an “ overt act,” and which my Lord Coke explains very clearly indeed in our books. The overt act is not merely the evidence of the crime — that is, of the intent — but it is the means whereby the crime is accom- phshed, and it is to the overt act as expressed in the indictment that I wish to call your attention. To that presently you must direct your attention, for the intent is only to be discovered by the proof of the overt act. Now, a conspiracy to take away the life of the King is undoubtedly compassing his death. But what kind of conspiracy? I quote from page 109 of the same learned writer : — “ If men conspire the death of the King, and the manner, and there- upon provide weapons, powder, harness, poison, or send letters for the execution thereof, this is an overt act within this statute.” Now what do you think Lord Hale meant ? What is poison- ing ? You cannot poison a man constructively. He meant the poisoning or killing the King in his natural capacity as king and man. Then he expresses a case in which the crime may be THE QUEEN z-. WILLIAM SMITH O’BRIEN. 515 committed, tLougL not exactly of that nature, and that is the next case : — “ Though the conspii’acy be not immediately, and directly, and ex- pressly the death of the King, but the conspiracy is of something that in all probability must induce it ; this is an overt act to prove the com- passing of the King’s death, which will be better explained by the in- stances themselves.” Now observe his instances : — “ If men conspire to imprison the King by force and a strong hand, till he hath yielded to certain demands, and for that purpose gather company or write letters, this is an overt act to prove the compassing of the King’s death, for it is in effect to despoil him of his kingly govern- ment, and so adjudged by all the judges in the Lord Cobham’s case, and in the case of the Earl of Essex.” You may remember the remarkable historical case of the favourite of Queen Elizabeth who, in the latter period of her reign, compassed to seize her person; and in that case the judges decided, and very rightly, that a conspRacy of that nature was a compassing of her death. '‘But the other conspiracy, which is compassing the Queen’s death ” Understand that is put here in a peculiar print to draw your attention to what has been entirely forgotten in the argument which has preceded : — “ But then there must be an overt act to prove that conspiracy to restrain the King, and then that overt act to prove such a design is an overt act to prove the compassing the death of the King. But then this must be intended of a conspiracy forcibly to detain and imprison the King.” It must be intended the kind of conspiracy which is an overt act of compassing the King’s death is such a conspiracy as is entered into, forcibly to detain and imprison the King. You will find this will have some bearing hereafter. “ A conspiracy to depose the King, and manifesting the same by some overt act, is an overt act to prove the compassing the death of the King within this act of 25 Edward III.” Then, gentlemen, comes a passage in a few lines to which I request your particular attention : — “ Regularly words, unless they were committed to writing, are not an overt act within this statute, and the reason given is ” What is the reason ? " because they are easily subject to be mistaken, or misapplied, or mis- repeated, or misunderstood by the hearers.” And there is a note on that which explains it more fully : — 2 L 2 516 SPECIAL COMMISSION, CO. TIPPERARY. This is one but not the only reason, for another reason was, because men in a passion or heat might say many things which they never designed to do ; the law therefore required, that in a case of so nice a nature, where the very intention was so highly penal, the reality of that intention should be made evident by the doing of some act in prosecution thereof.” Now aU that appears so wise, humane, and consistent with the laws of a free country, that nobody can dispute its propriety, nor deny the accuracy of what I have stated. Gentlemen, we had not gone far in the law when there began the unhappy doctrine of what is called constructive treason; and in process of time the judges made out that there was another levying of war different to that which was contemplated by the Act of Parliament, wdiich was exhibited in the case put by Lord Hale of Hotspur’s father, when the Earl of Northumberland marched with a great force, but it was doubtful whether he meant to assist Hotspur or his king ; because, on hearing of his son’s defeat, he marched back again. In that case all the judges held it was not treason, because, although he Tvas armed, and had a strong force, and paraded it, the treasonable intent was not made out hy any overt act. My Lord Hale says of it, he thinks it was a gentle judgment. But it vras a judgment. There is, however, a levying of war, and I will prove to you presently that it is the very levying of war attempted to be made out in this case, which is called constructive levying of war. And what do you suppose that is? Very seldom have jurors been persuaded to adopt it, because it is repugnant to reason. It has been decided, if a rabble in London broke out, and in- tended to pull down one meeting-house, that that would not be high treason ; but if they intended to break out and pull down a great number, that is treason, not directly but constructively, not because it aims at the life of the Sovereign, but because, by possi- bility or probability, the riot may proceed so far, or because the purpose is general, as it is said, to pull down all meeting-houses, and because it usurps the prerogative of the Crown — a thing I never could understand, for I did not know that the Crown had any prerogative to pull down meeting-houses. If it encroaches on the royal prerogative, it makes out a constructive levying of war, where the purpose is general and universal. That is proved by Damaree’s case ; and their lordships may remember the com- mentary of Mr. Justice Foster on that case, with which he was very much annoyed. The prisoners in that case were found guilty of treason by a mistaken jury, and Mr. Justice Foster records, that they wore the Queen’s livery till the day of her death. They were vexed about some meeting-houses in London, and they burned one of them, and that was decided (I cannot tell why) to be high treason constructively ; and having been found guilty by THE QUEEN y. WILLIAM SMITH O’BRIEN. 517 a jury, they were all pardoned the next morning and restored ta their places under the Crown — for they held situations under the Crown. Now, gentlemen, what must a levying of war be ? To constitute a levying of war there must be three things proved ; there must be a levying of war, it must he a levying of war against the King, and it must be a levying of war against the King in his realm. Lord Hale observes : — This is in truth a question of fact, and requires many circumstances to give it that denomination."’ Now the commentary of the learned judge is this : — “ If new cases happen, for the future, that have not an express resolu- tion in point, nor are expressly within the words of 25 Edward III., that they may seem to have a parity of reason, it is the safest way, and most agreeable to the wisdom of the great act of 25 Edward III., first to con- sult the Parliament and have their declaration, and to be very wary in multiplying constructive and interpretative treasons, for we know not where it will end.” Then, gentlemen, the principle is put, that if a number of per- sons get together to do a particular act, in which the ringleader has any personal or peculiar purpose, that is not high treason, because it is not of a general or universal nature. But for that principle it is said that several riots of a great and notorious nature might have amounted to treason. A vast number of cases are put to prove what are enormous riots, rebellious riots, but not treasons ; and then the learned person comes to the case of a particular act done by a person, and he puts the case of a man against whom there is a legal judgment to take possession of his property. If he bars up his house, if he resists the officers of the law, he may even put them to death, and that is not high treason. Then as to soldiers, or an act done by a party accused in refe- rence to the King’s troops, this principle is laid down : — ‘‘ If the King’s lieutenant, in a time of hostility or rebellion within the realm, be assaulted upon their march or in their quarters as enemies, this is a levying of war ; but if upon some sudden falling out, or injury done by the soldiers, the countrymen rise upon them and drive them out, this may be a great riot, and if any be killed by the assailants it is felony in them, but it is not treason.” Gentlemen, the case, which I think is of great importance in its principle to the present before you, is that commonly known as “The Weavers’ case,” and that I will state to you, because the whole of the judges in England were called on to give their opinion as to the intent of the weavers in London, who were infuriated on account of engine looms : — “ Because thereby one man can do as much in a day as near twenty men without them, and by consequence can afford his ribands at a much cheaper rate, after attempts in Parliament and elsewhere to sup- 518 SPECIAL COMMISSION, CO. TIPPEKAKY. press them, did agree among themselves to rise and go from house to house, to take and destroy the engine looms ; in pursuance of which they did on the 9th, 10th, and 11th of this instant, August, assemble them- selves in great numbers — at some places to an hundred, at others to four hundred, and at others, particularly at Stratford-Bow, to about fifteen hundred.” Now observe what they did. They did in a most violent manner break open the houses of many of the King’s subjects, in which such engine looms were, or were by them suspected to be ; they took away the engines, and making great fires burned the same, and not only the looms, but in many places the ribands made thereby, and several otlier goods of the persons whose houses they broke open. This they did not in one place only, but in several places and counties, viz., Middlesex, London, Essex, Kent, and Surrey, in the last of which, viz., at Southwark, they stormed the house of one Thomas Bybby, and though they were resisted and one of them killed and another wounded, yet at last they forced their way in, took away his looms and burned them. The value of the damage they did is computed to several thousand pounds.” Several proclamations were then published by the Crown. Now observe. ‘‘ This they did after several proclamations made and command given by the justices of peace and the sheriffs of Middlesex to depart; but instead of obeying, they resisted and affronted the magistrates and officers. It is true they had no warlike arms, but that was supplied by their number; and they had such weapons as such a rabble could get, as staves, clubs, sledges, hammers, and other such instruments to force open doors. There was this further evil attending this insurrection ” The learned judge calls it an insurrection. that the soldiers and officers of the militia were so far from doing their duty in suppressing them, that some ” That is, of the officers of the law. though in arms and drawn up in companies, stood still, looking on, while their neighbours’ houses were broken open and their goods destroyed; others ” That is, the soldiers and officers of the Queen. encouraged them ; and others, to whose custody some of the offenders who were taken were committed, suffered them to escape ; so that during all the time of the tumult little or nothing was done to suppress them, until the lords of the council were constrained at a time extraordinary to assemble, by whose directions and orders, as well as the civil magis- trates, as to the King’s guards, they were at last quieted.” The question was then submitted to the ten judges, of whom Lord Hale w^as one, whether that was treason. Five judges were of opinion that it was, and five judges were of opinion that it was THE QUEEN t;. WILLIAM SMITH O’BRIEN. 519 not, amongst whom was Lord Hale himself ; and they were of opinion, that it amounted only to an enormous riot ; and that gross and extensive as it was, spreading over five counties, and accompanied with loss of life and resistance to the officers of the law, it was not a levying of war against the King, because the offenders had a personal object to accomplish. And then it is stated — “ Many of them therefore concluded, that if Mr. Attorney should think fit to proceed as for a treason, the matter might be specially found, and so left to further advice, or rather that according to the clause of 25 Edward III., the declarative judgment of the King and both houses of Parliament might be had, because it was a new case and materially differed from other cases of like nature formerly resolved. Upon the conclusion of this debate we That is, the judges. all departed ; and Mr. Attorney, upon consideration of the whole matter it seems, thought fit to proceed for a riot, and caused many of them to be indicted for riots, for which they were convicted, had great fines set upon them, and were committed in execution, and adjudged to stand upon the pillory.” Then Hale supports the doctrine, that the levying of war is a question of fact, and the cases of constructive and direct levying of war are explained upon the ground which I before stated to you. I shall not trouble you any further by referring to that book. Gentlemen, there are, however, a few short principles which I shall cite to you from a book of equal authority, and which I desire you will take notice of. The book which I am about to quote from is Foster. It is essential to consider the overt act as the thing you are to direct your attention to, in order to establish the crime. When the regicides after the restoration of King Charles were tried for treason, the indictment was in this way — that they compassed to kill the King; and the overt act laid was, that they cut off his head, which was certainly strong evidence of it. That shows plainly how necessary it is to advert to the overt act. Then this learned judge comes to consider the effect of words, as making treason, and I desire particularly to call your attention to what he says on this subject. “ As to mere words supposed to be treasonable, they differ widely from writings in point of real malignity and proper evidence. They are often the efiect of mere heat of blood, which in some natures, otherwise well disposed, carrieth the man beyond the bounds of decency or prudence. They are always liable to great misconstructions, from the ignorance or inattention of the hearers, and too often from a motive truly criminal. And therefore I choose to adhere to the rule, which has been laid down on more occasions than one since the Revolution ” It is the greatest punishment the human understanding can be subjected to, to read the cases before the Revolution. that loose words, not relative to any act or design, are not overt acts of 520 SPECIAL COMMISSION, CO. TIPPEEAKY. treason. But words of advice or persuasion, and all consultations for tb© traitorous purposes treated of in this chapter, are certainly so. They are uttered in contemplation of some traitorous purpose actually on foot or intended, and in prosecution of it'^ That subject, you would suppose, was disposed of by him in one sentence. On the contrary, with the view of guarding against the mischief or danger of relying on words, this writer, backwards and forwards, over and over again, adverts to the same doctrine. In no case can a man be argued into the penalties of the acts by inferences and conclusions drawn from what he hath affirmed. The criminal position must be directly maintained to bring him within the compass of these acts.” Again — “ Nor will every rash, hasty, or unguarded expression, owing perhaps to natural warmth, or thrown out in the heat of disputation, render any person criminal within these acts ; the criminal doctrine must be main- tained maliciously and advisedly T And then he says that he gives a caution to those who may think fit to bring forward prosecutions for high treason in future, which he says ‘‘ May serve as a faithful monitor in the conduct of prosecutions for words or writings supposed to be treasonable, but not relative to any treasonable measure then on foot, or intended to be taken.” It is curious enough, before he discusses the subject he returns, to the same topic again and again. He says — “ Words are transient and fleeting as the wind ; the poison they scatter is, at the worst, confined to the narrow circle of a few hearers. They are frequently the effect of a sudden transport, easily misunder- stood and often misreported.” And then he adds, that in former times “Many persons had suflered shameful death for words only, without other opinion, fact, or deed.” And he thus concludes on the subject of words, and no man can read the State Trials without feeling the justice of his remark : — “ I cannot conclude this chapter without putting the reader in mind of a fine passage which I borrow from the Baron de Montesquieu, worthy the attention of all persons concerned in framing penal laws, or putting them in execution. ‘ Sylla,’ saith that excellent writer, ^who confounded tyranny, anarchy, and liberty, made the Cornelian laws. He seemed to have contrived regulations merely with a view to create great crimes. Thus distinguishing an infinite number of actions by the name of murder, he found murderers in all parts. And by a practice hut too much followed he laid snares, sowed thorns, and opened precipices wheresoever the citizens set their feet.’ ” THE QUEEN WILLIAM SMITH O’BRIEN. 521 Gentlemen, having distinguished between the direct levying of war and the constructive levying of war, he then proceeds to speak of a conspiracy to levy war ; and, as their lordships may recollect, at page 213, section 6, which has a direct application to the sixth count of this indictment, he speaks of a conspiracy for effecting a rising for the purpose mentioned in the two pre- ceding sections, and those are — “Insurrections in order to throw down all enclosures, to alter the established law, or change religion ; to enhance the price of all labour, or to open prisons — all risings in order to effect these innovations of a public and general concern by an armed force, are, in construction of law, high treason within the clause of levying war. For though they are not levelled at the person of the King, ” Because still, by the law, to aim at the hfe of the Sovereign is punishable with death, yet the mercy of our law has made this present treason punishable only with imprisonment and trans- portation. “ they are against his royal Majesty T Then he says — “ Insurrections, likewise, for redressing national grievances, or for the expulsion of foreigners in general, or indeed of any single nation living here under the protection of the King, or for the reformation of real or imaginary evils of a public nature, and in which the insurgents have a special interest.’’ Within which this case falls. And then he says, in section 6, that a conspiracy to levy a war of that kind is not an overt act of compassing the King’s death. Your lordships are aware that the prisoner is indicted in the sixth count for compassing the Queen’s death, and the overt act is, that he conspired to levy war — that is, he imagined the Queen’s death by conspiring her death — an overt act for which I do not think there are many precedents. But suppose the overt act in that form to be good, it means a conspiracy to levy war of a general and direct nature, and not an inter- pretative or constructive levying of war, such as is expressed by Foster in the two preceding cases,. Therefore, if on the facts it appears that the levying of war is constructive, it is not evidence of compassing the Queen’s death ; and as in the sixth count there are no overt acts laid, but all those that are laid in the other five — the erecting the barricades at Killenaule and the like — if these are not acts aiming directly at the death of the Queen, which I do not beheve they will he held to be, they are constructive treasons ; and the conspiracy, as an overt act of imagining the Queen’s death by levying a constructive war, does not support the charge of compassing the Queen’s death, which is the charge in the sixth count of this indictment. It seems to 522 SPECIAL COMMISSION, CO. TIPPERARY. me that that is as clear as any proposition can be. But there is this observation made by Mr. Justice Foster on this head — that is, a conspiracy to levy war for a partial purpose : — Nor will it come under any species of treason within the 25th Edward III., unless the rising be efected'’ That kind of conspiracy for breaking down enclosures, break- ing into prisons, and rescuing the prisoners, or a conspiracy of that nature, would not fall within the Act of Parliament unless the rising was effected. And then, my lords, when there is a rising of that nature, all the conspirators, as well as all the actors, will be equally guilty. Now I wish to explain that to you, gentlemen, as I go on. You heard the Attorney-General say, that the members of this Confederation, to which I will call your attention in a few minutes, were all equally guilty of treasonable practices at the particular time he specified. If they were, they were all engaged in the same conspiracy. If then, one, two, or three break out, according to this doctrine, the breaking out of two or three makes all the members of the confederacy guilty of high treason — that is as clear as light — and the whole country, on that principle, would be deluged with blood. All the persons in the League, of whom there were many thousands, if they were all parties to this conspiracy, which the Attorney- General talks of, and three of the body broke out in the county of Tipperary, then all those that act, and all those in Dublin that do not act, are equally guilty, and liable to be punished as traitors. Gentlemen, before I close this book there is one sentence, in which Lord Coke speaks of the danger of attending to words, to which I will call your attention. “ Divers latter acts of Parliament have ordained, that compassing by bare words or sayings should be high treason; but all they are either repealed or expired. And it is commonly said, that bare words may make an heretic, but not a traitor without an overt act. And the wisdom of the makers of this law would not make words only to be treason, seeing such variety amongst the witnesses are about the same, as few of them agree together.” That is the reason he assigns. Gentlemen, in latter times there have been two or three me- morable instances on the subject of what is levying war. I believe that to be the important part of the case — for unless some- thing may be said by the counsel for the Crown on conspiracy being an overt act of imagining the Queen’s death, upon the evidence, whether this is but a constructive levying of war, the sixth count is totally and entirely out of the case, as I apprehend their lordships will say. But upon the levying of war, quo animo, we have two or three examples so very pertinent and pregnant. THE QUEEN r. WILLIAM SMITH O’BRIEN. 523 that I desire to draw your attention to them. I do not know whether you ever heard of the celebrated case or trial of Lord George Gordon — but I dare say you have — by which I mean the famous case that occurred in England in the reign of George III., when a nobleman was offended with a particular law, and under- took to get it repealed. The mode in which he attempted that was, by assembling a small party of fifty thousand men. He headed that party, he divided them into sections, he gave them colours, he appointed various places of meeting in the city of London, and marched straight down to the Parliament while it was sitting. They sent their petition in, and peremptorily demanded an answer. In other words, they endeavoured to terrify the Legislature, which in itself is an act of treason. They were not quite satisfied with the answer they got — for their object was to abolish all the liberty which had been given by pre- vious acts of Parliament to the Roman Catholic people of England — and, accordingly, they proceeded under the guidance, as it was charged, of this nobleman, to accomplish their purpose in another way. They broke out, for five successive days or more, into the most violent conduct that was ever witnessed in the city of London; they burned houses close to the King’s palace; they burned some of the public establishments; they attacked the peo- ple ; they broke into public institutions, and they threatened the bank. For five days conflagration, rapine, and murder spread through the city of London, the King being there at the time. Row observe the great principle decided in that case of Lord George Gordon. Of course he was indicted for high treason. It is very curious, that in the precedent there is no count for compassing the King or Queen’s death. In that case, the great lawyer who conducted the prosecution, never ventured to say it was evi- dence of compassing the King’s death, although the King was then residing in St. James’s. That levying of war, such as I have men- tioned to you, that actual levying of war, having occurred in the city of London, and a great part of London being laid desolate and destroyed, it was not said that it amounted to a compassing the King’s death. The Crown lawyers did not even put a count in the indictment to that effect, but only one count for levying war. Upon the trial, the learned judge who charged the grand jury, and we have every word of that charge from the beginning to the end, charged them that it was high treason ; in fact, he anticipated the conviction of Lord George Gordon. And to that charge is appended a note by another distinguished person, which will go dowm to posterity. The case came on to be tried, and these facts were proved ; and above all, a letter, written by Lord George Gordon, of a very curious nature. During the riot and conflagration he gave a letter of protection to save the pro- perty of a certain individual, and it was insisted that in the pro- secution of his crime, his assuming power, management, and 524 SPECIAL COMMISSION, CO. TIPPERARY. authority over the property of another person, and authorizing the moh to protect that property in the case mentioned, amounted to a plain usurpation of the prerogative of the Crown, and proved him to be guilty of treason. I cannot repeat, as being applicable to this case, what the advocate for the prisoner said on that occa- sion; it is the most memorable speech ever made in any court in Westminster Hall. He said, that the man who charged Lord George Gordon with high treason for writing that letter was a ruffian. The argument in that case was, that treason is not to be determined by the consequences. The Court dwelt on the con- sequences — the advocate dwelt on the principle of the law. And what is that principle ? That it is the intent, the purpose, the object of the man’s own mind which is the true crime ; and that the levying of war, or the doing of an act, no matter how violent, or how awful the consequences, wdll not decide on the crimi- nality of the accused. And then Erskine argued, that Lord George Gordon had a particular purpose to accomplish ; and although the house of Lord Mansfield, who tried the prisoner, was burned to the ground. Lord George Gordon was acquitted of the crime of high treason on this principle, that the devastation of property, the attack on persons, the marching and counter- marching did not constitute high treason ; but high treason con- sisted distinctly of the intent with which the act was done, and that the moment it appeared the party had a particular intent, as in that instance of going down to the Parliament to get a law repealed, although a most flagitious outrage was committed, still that particular intent at once disposed of the charge of high trea- son, and left the accused to be punished for the lesser offence. Gentlemen, after that memorable trial, there was another, very remarkable indeed, which you may remember, and that is Watson’s case in the city of London. Watson was defended with extraordinary energy, and successfully too, by Sir Charles Wetherell; and it is a curious and remarkable defence. Watson had got pikes, there was marching and counter-marching, and an intention proved by a witness — an informer — to attack the Tower and burn it. They erected hustings in Smithfield, and determined to accomplish certainly a general purpose. I admit there was, in addition to the pikes, a plan and seditious speeches; but only the speeches spoken by Watson at the time of doing the act, were given in evidence against him. The great question turned on a paper found in his pocket. What was that paper ? I do not find that the prisoner’s counsel was called upon to explain it. That is a modern doctrine. That paper was read ; just attend to it. There were to be three divisions formed to meet in London. One division was to go by St. Giles to Chan- cery-lane ; the next division was to form at another place at London Bridge, to march, as might fairly be inferred, in another direction ; the third division was to meet at another place, and THE QUEEN v. WILLIAM SMITH O’BRIEN. 525 march in a third direction. The Bank was specified, and the Tower was specified, under the name of “ the old man and it was insisted they meant to attack the Tower. I will not trouble you with the argument that was urged, because no argument of counsel is of much value. But the things undertaken to be done fell far short of the object of overthrowing the King of England, though criminal acts were to be done, and were done, in London ; though the pikes were proved and produced ; and although the Sovereign was then residing within a very few yards, I ihight say, to some of the scenes of this conspiracy. The great question turned on that letter ; it was not a paper but a letter. Hear what Lord Ellenborough said in summing up : — “ This case does not by any means rest on the evidence of Castle ” He was an informer. it has been put to you as if it all rested upon the solitary testimony of Castle. Evidence has been pointed out to your attention, taken from the very person of the defendant; that paper which appears inex- plicable ” Now he had no right to say that, with the greatest deference to him. “that paper which appears inexplicable upon any supposition of his innocence ” That was just telling the jury to find the prisoner guilty. “ that paper, referring to divisions and appointed places of meeting — the Tower, designated by the name of ^ the old man,’ the Tower and the Bank being specifically mentioned by their proper denominations in the oppo- site column of the paper, the arrangement of stations and barricades followed up in the manner Castle has stated. What earthly reason is assigned for the trying to get Cosser’s house V’ Then he left it to the jury with that statement. They did consider it certainly; and in a very short time they were of opinion that the case — though very suspicious, doubtful, and not satisfactorily explained, especially that paper — was not made out ; they did not follow the advice given them so explicitly, and acquitted the prisoner. Gentlemen, I shall now draw your attention to the last case tried in England on the subject of high treason, the case of a person named .John Frost, wherein, I admit with pleasure, the charge is the very model of judicial propriety — it is the charge of my Lord Chief .Justice Tindal. I want to establish certain principles, because I will argue on them hereafter. Mr. Attorney- General, in your hearing, and in the hearing of the Court, called on me, at least six times during his able speech, to ex- 52(j SPECIAL COMMISSION, CO. TIPPERARY. plain tliis, that, and the other. He really seemed to deal with the case as if it were a Chancery suit, where parties put in a vast number of documents and papers, and then draw up interroga- tories, and put them to their adversaries, and call on them to answer them. What book in the criminal law says that a pri- soner is bound to explain any thing ? What constitutional judge ever laid down that doctrine ? By the law of England you must establish the guilt of the prisoner before he is called on to speak a word; and I tell you whosoever gainsays that position, does not speak the language of our law. If there were twenty papers which were doubtful, Mr. Attorney-General had no right to call on me to explain them. If he had got thirty speeches, and if he had called on me to explain them, I say that, in so doing, he mistakes the law of which he is the first officer. He mistakes this fundamental principle of law; he misapprehends the whole of our criminal procedure, which is founded on this, that the prisoner is called on to explain nothing ; his guilt must be established against him, but when he enters upon his defence, the jury will estimate what is the character of the defence he offers. In the case of John Frost, tried not long ago, as you may remember, in England, the counsel for the Crown let drop that observation, and the counsel for the prisoner, Sir Fitzroy Kelly, (I wish I had his masterly ability,) at great length disputed it, and the Court had to decide it in a special commission con- stituted of three or four judges. Let me call your attention to what that case was. A chartist of the name of Vincent had been condemned, and was in prison. John Frost was the leading agitator in a place called Newport, the county town of Monmouth- shire. There was distinct proof given of a general plan to march upon Newport, and at the same time to blow up bridges between it and Birmingham, which was to break out, and there was to be a general conflagration and rising over the whole kingdom. That plan was clearly and distinctly proved. The case against the prisoner was this: Frost headed a numerous party, he did not meet the constabulary or troops on the high road, but he marched into the county town ; and, with the boldness which characterizes the people of that country when they do rise, they marched straight up to where the magistrates, soldiers, and officers were staying, and drew up before the windows of the hotel where the soldiers were ; they wounded a magistrate, and they were arrested, and tried for high treason. In that remarkable case it was insisted on by the prisoner’s counsel that he was bound to explain nothing ; he relied on it as the law. When my Lord Chief Justice Tindal comes to charge, he says — I am quoting from Gurney’s Report, 689 — “ On the part of the prisoner the learned counsel who appear for him THE QUEEN v. WILLIAM SMITH O’BRIEN. 527 state, and I think they are justified in so stating, that he is not bound to show what was the object, or purpose, or intent of the acts that were undoubtedly done by the prisoner at the bar. His counsel say, the ofience charged against him must be proved by those who make the charge; that he stands only to hear the evidence, the evidence that is given against him; and therefore he is not bound to show at all, or in any way whatever, what his real object or design was.” It must, I am sure, be singularly delightful to you to hear the principles of our law stated and expounded in that tempe- rate manner. He adds — “ Undoubtedly the proof of the case against the prisoner must depend for its support, not upon the absence or want of any explanation on the part of the prisoner himself, but upon the positive affirmative evidence of his guilt that is given by the Crown.” Then he adds. It is not however an unreasonable thing, and it daily occurs in investigations, both civil and criminal, that if there is a certain appearance made out against a party, if he is involved by the evidence in a state of considerable suspicion, he is called upon for his own sake, and his own safety, to state and bring forward the circum- stances, whatever they may be, which might reconcile such suspicious appearances with perfect innocence; and therefore the learned counsel of the prisoner, although he entered his protest against his being necessarily required to make such a statement, proceeds to say, that the case of the prisoner at the bar was one that was perfectly innocent, so far as regards the crime of high treason.” And what was the defence ? That really they marched into the town to rescue by a bold hand Vincent, their brother chartist, from the county gaol. Well, what did he say in that case? He says, the prisoner’s counsel “ Stated that it was never intended by the prisoner either to take the town or to attack the military, which latter act was purely accidental ; that all that was intended was, to make a demonstration to the magistrates of Newport and the county of the strength of those persons who were called chartists, for the single purpose and design of inducing the magis- trates, either to procure the liberation of one Vincent and three other persons, who had been convicted of some political offences, and were then confined in Monmouth gaol ; or, at all events, to procure a mitigation in their mode of treatment whilst under imprisonment. Gentlemen, I have already stated to you, that if that outline which is made by the officers of the Crown is filled up by evidence, there is no doubt whatevei} that the guilt of the party accused amounts to high treason; and on the other hand, if falling short of that offence it amounts to no more than the description which has been given of it by the counsel for the prisoner, although it would be a most grievous .oflTence as a misdemeanour, involving the security of the property, and perhaps of the lives, of many persons in the town of Newport; yet that it would be deficient in the 528 SPECIAL COMMISSION, CO. TIPPERARY. main ingredient of the offence of levying war against the Queen in her realm.” So that if the counsel for the prisoner had made out satis- factorily by proof that the true object of Frost was to march into the town, break through the prison, and take out Vincent, although that would have been a very great crime, it would not have been the crime of high treason, because, on the principle I have before explained to you, and which is so clearly put by this revered judge, there was something personal, there was a peculiar object to be effected, which took it out of that rule of intending to subvert the Government of the Queen, or to kill the Queen. Indeed Frost was not indicted for such a crime. Gentlemen, I now draw your attention to the indictment, which charges, that Mr. O’Brien, on the 17th of July, and on different days between that day and the 30th, at Ballingarry, appeared arrayed with an armed force. Then it proceeds to specify the affair at Mullinahone, which is No. 2, and at Killenaiile, which is No. 3. At Killenaule he traitorously obstructed the marching of troops not saying that they were marching on the Queen’s duty or business. The fourth count specifies the levying of war at Farinrory. The fifth count is general for levying war; the sixth being for compassing to kill the Queen, to which I have before drawn the attention of the Court, and whom Mr. O’Brien certainly did as much compass to kill as the Great Mogul. Gentlemen, Mr. Attorney- General told you that the transac- tion to which this prosecution relates covered the last week in July — that the interval of time to be considered by you is about a week. Having made that statement, he then told you, to my inex- pressible surprise, that with the view of explaining what was the intention of the party in doing those acts in that single week in July, he would begin in the month of January, 1847. I objected, on the ground that Mr. O’Brien did not come here, as Mr. Justice Foster has expressed it, “ to answer for all the actions of his life.” I objected on this principle — that he is a public man; that he has been engaged for many years in political affairs ; that he was not to be prosecuted now for every thing he has said in the course of his life, without any notice of that matter in his indictment — with- out even a hint that seditious speeches would be resorted to on the part of the Crown in proof of levying war, or without having the least idea of that fact. The Attorney-General contends, and success- fully it appears, that he may revert to any period of Mr. O’Brien’s life, and bring up the actions done at any j)eriod of his life to ex- plain the intent with which he committed these acts at Ballingarry. He insisted on his right to do so, although undoubtedly, if we are to believe what the learned judges to whom I have referred say, the great blessing used to be in cases of high treason, and my Lord Coke boasts of it, that the party knows distinctly through- THE QUEEN v. WILLIAM SMITH O’BRIEN. 520 out what it is he has to answer, that in the overt act are specified all the things he is to apply himself to, and, accordingly, they are specified here accurately and carefully ; and then, notwith- standing that, and without any notice of any kind or description on the subject, how is it that the Attorney-General began to make out his case ? He began by calling a reporter, instead of, as I respectfully submitted to the Court, and I am still of that opinion, proving the acts done by Mr. O’Brien. How you must have remarked what took place. Instead of proving the acts done by Mr. O’Brien in the first instance, that is, laying before you what he did at Killenaule, Farinrory, and the other places, and then, having seen the nature of the acts done, and the character of those acts, so as to be able to argue before the bench successfully, and as he ought to have a right to do, whether the speeches and declarations applied to those acts, or were in truth exponents of them, which is the only ground on which they could have been received, he put in all the speeches, the whole history of a political society, in the first instance ; and having sufficiently pre-occupied, and I fear prejudiced, your minds upon that subject, he then proceeded to touch on the proper subject-matter of his case — his indict- ment. Gentlemen, he began with the short evidence of Mr. Hodges, and this evidence deserves your notice. If there is one thing more odious in our law than another, it is that of making out the guilt of treason by what is called cumulative evidence. I will tell you what that means — heaping together an immense mass of matter, and saying this speech is not treason, that speech is not treason, nor is this ; but if you combine them altogether, you can make treason ; as was said once by a witty and clever counsel in England, he did not know that two hundred black rabbits would make a black horse. This is just a case of that nature. I will, says Mr. Attorney, bring a speech spoken by Mr. O’Brien on such a day. Well, what is that? Is that treason? Ho. Mr. Attorney-General tells you that it is not treason. He brings a speech spoken by him on another day. What is that ? Is it sedition ? Ho. I will bring a speech spoken by Mr. O’Brien on a third day. What is that ? It is neither sedition nor treason. But if you take something out of one, and something out of another, and so combine the three, you may compound treason. Being viewed in that light, they seem to be received in direct opposition to the clear settled principles of our law. It is not on such ground they are admitted ; but the Court received the speeches, I presume, on the ground that they explain what it was Mr. O’Brien did several months afterwards ; and I presume, also — for otherwise they could not have been received according to law — that they were spoken, or that there was evidence that they were spoken, at the time, in furtherance of the very treasonable 2 M 530 SPECIAL COMMISSION, CO. TIPPERARY. intent charged in the indictment. I venture to say that there is not one member of my profession in this country, or in England, who would deny that a speech, to be evidence against the prisoner in this case of high treason, must he heheved by the jury to be a speech spoken at the time he made it in furtherance of the treasonable intent then present in his mind. Well, to make out that Mr. Hodges appears, and here is his evidence ; it is very short. He began in March, I think, to attend meetings of a society called the Confederation. He attended there for several months. It was a public body. He said, “ I am the reporter of the Government.” The members said, “Very well, take your seat.” “ I am going,” said he, “ to report every word you say to the constituted authorities.” He is admitted with courtesy; he is treated with respect ; and this honourable reporter prints every day of his life, or rather he records faithfully and truly beyond a doubt, all that passes. Every word he has proved I admit, because I do not believe he would wilfully falsify a letter. He reports truly and literally all the speeches. He delivers them to the authorities every day, and that goes on for months. On his cross-examination he said to me — “ I have had great experience as a reporter for twenty years. I could not report a speech a month after it was delivered if I had not taken notes of it ; a speech so reported would be a tissue of mistakes.” Then he proved this fact, that one of the speeches produced he proved on a trial of Mr. O’Brien for sedi- tion. Now I stop here, for I intend to go through every part of this case step by step. I invite your attention to that fact. I submit to your judgment as twelve conscientious men, you will, by your verdict, reprehend the Attorney-General for bringing that speech in evidence against the prisoner on this trial. When that speech was spoken, as he had a right, he prosecuted Mr. O’Brien for sedition. I admire the wisdom of the first law officer of the Crown in trying Mr. O’Brien now for all the offences of which his wit and talent failed before to convict him. I admire his fairness in saying to Mr. O’Brien, before I come to your treason, I will try you for that on which, before my Lord Chief Justice, I failed to convict you for sedition. The reporter admits to you, that on a trial for sedition in the city of Dublin this speech was proved, and it was insisted on by the Attorney- General that Mr. O’Brien was guilty of sedition on that speech. Is that treason ? And having prosecuted him, the reporter told you there was no verdict ; that the jury disagreed. The jury disagreed upon the character of the speech, as to whether it was sedition at all. The Attorney-General never ventured to pro- secute the party again. He could have tried him by another jury the next morning, and he ought to have tried him if he thought him guilty. It is not for me to lecture those who are my supe- riors — the law officers of the Crown ; but when the Attorney- THE QUEEX t;. WILLIAM SMITH O’BRIEN. 531 General begins a prosecution against a person whom he believes to be guilty, he ought to persevere, until a jury in such a case had pronounced an opinion upon the matter. Mr. O’Brien was willing to be tried by the law, and had he been convicted, he would have allowed no mortal man to have interfered with the punishment which it might have been the pleasure of the Court to inflict. Now, gentlemen, do you think that fair ? Place yourselves for an instant in the position of the prisoner. On such an indictment as that which I have stated, would you suppose that Mr. O’Brien was going to be indicted for sedition, and to be called on to explain a speech, which it took a man an hour and a half to read, of I do not know how many hundred pages, on an investigation of the poor law ? Every thing that may be touched on in the course of a political speech is touched on by the prisoner ; and the jury are called on to believe that that whole speech, or some little bit that may be cuUed out by the law officers of the Crown, was spoken in pursuance and furtherance of, and is within the prin- ciple laid down by the Court, explanatory and illustrative evidence of the acts of Mr. O’Brien at Ballingarry and at Kille- naule. I submit you will never believe that ; or at least that it will require very forcible arguments, and I have heard none from Mr. Attorney- General on that branch of the case. He merely stated that there was a society, that speeches w^ere made, and he pro- duced them. Mr. Hodges proved that ladies attended these meetings ; he also proved that he saw an uniform constantly worn there which was green and gold, and belonged to the ’82 Club ; and that at one of those meetings it was stated, that a person of the name of Mitchel and another person of the name of Reilly had ceased to be members of that body, and that Mr. O’Brien had continued a member. In truth and substance, that a difference of opinion had sprung up between Mr. O’Brien and Mr. Mitchel ; that Mitchel ceased to be a member, and that Mr. O’Brien con- tinued a member. Now what is the law in reference to acts done by a member of a society which exists according to published rules ? That is a matter of some importance to understand. Is Mr. O’Brien and every member of that association responsible, for that was contended, for what every other member either said or spoke ? Is he responsible for any other object than that which was the avowed object of that association ? In the very celebrated trial of Hardy, who wished for parliamentary reform, and said that the House of Commons was very corrupt, and that they would have a convention, and certainly spoke his mind on it a hundred times more strongly than Mr. O’Brien has spoken, a question arose as to the character of the convention to which he belonged. Now what was the principle laid down by the Court ? That where an association exists for a certain object, acting on certain rules, it is to be presumed to be the object of all its members. Each 2 M 2 532 SPECIAL COMMISSION, CO. TIPPERARY. individual enters into that society on the faith of its rules, and he who asserts the converse must make it out by the clearest and most indisputable proof. These are the words of the learned judge: — “ If there be ground to consider the professed purpose of any of these associations, a reform in Parliament, as mere colour, and as a pretext held out in order to cover deeper designs — designs against the whole constitution and government of the country, the case of those embarked in such designs is that which I have already considered. Whether this be so or not is mere matter of fact; as to which I shall only remind you, that an inquiry into a charge of this nature, which undertakes to make out that the ostensible purpose is a mere veil, under which is concealed a traitorous conspiracy, requires cool and deliberate examination, and the most attentive consideration ; and that the result should be perfectly clear and satisfactory. In the affairs of common life ” N^ow this is the reasoning. “ no man is justified in imputing to another a meaning contrary to what he himself expresses, but upon the fullest evidence.” And that learned judge argues, and admits, where the case of a prisoner depended on it, where certain rules existed, where certain principles were published, and you and I enter that association on the faith of those published rules, we enter accord- ing to the principles laid down in that programme of opinion or belief ; and it lies on the party who asserts the converse to prove that it is a mere pretext for another and a different purpose. Now about that there can be no dispute. Gentlemen, I regret beyond measure that Mr. Attorney- General entered on this wide subject, for it compels me, in justice to my client, to explain to you fully and clearly his political career ; how he entered into that association ; what its principles were ; what his opinions were ; and what they are ; and to show you that a more unfounded accusation was never made by any prosecutor for the Crown, than is now brought by my learned friend against Mr. O’Brien in connexion with this society. And you will find, in the progress of my argument that it goes to the whole root of the case ; for I will demonstrate to you, that no one of the matters prove the overt acts charged, and it shows the tact and ability of Mr. Attorney-General, although I cannot compliment him, I must say, upon his fairness in first giving you all these speeches. If he had proved the Mullinahone affair separately, and the Killenaule affair separately, no twelve men ever put into the box would believe that the man who did these things meant to kill the Queen and prostrate the constitution ; and, therefore, by virtue of all the antecedent speeches, Mr. Attorney-General hoped to have made a lodgment in your minds, so that you would apply the acts done to any thing he could pick out of the speeches and of the association which he called trea- sonable. He distinctly asserted that the society at that particu- lar time was a society engaged in treasonable practices. THE QUEEN v. WILLIAM SMITH O’BRIEN. 533 Gentlemen, many years ago Mr. O’Brien entered tlie Imperial Parliament. His ancestors for seven generations have repre- sented the county of Clare in Parliament. With his opinions in the House of Commons I am not going to trouble you ; but in all prose- cutions of this nature, where a man is accused of crime in reference to a political body, it becomes necessary to see what were his real opinions, and how he enforced them. Mr. O’Brien continued in the House of Commons, pursuing his duties as a member of that body, down to the year 1843 or 1844. At that time the body existed from which the Confederation sprung — the principles of which I will presently state to you — the Repeal Association. Mr. O’Brien belonged to that rare class of Irish senators, whose boast it is never to have been bought or sold. His career in the House of Commons was independent — it may be called eccentric. In one sense it was ; he differed with many people, I admit, in that house ; he displeased all parties, because he would not stoop nor bend to any. In reference to this country, about the year 1843, he delivered the speech, now in my hand, to the House of Commons. I would not read it to you, but when he entered into the association in question, that is, the original Repeal Association, this was the statement of his political creed. This document was printed and scattered by the Repeal Association, and contains a statement of the opinions which, through his subsequent life, he has endeavoured to carry out. Now, I must honestly avow to you, that I was prejudiced against all the opinions of Mr. O’Brien. I was taught to beheve, not reading perhaps all the political speeches of the day, that he was an obstinate, impracticable, absurd man, who always broached what nobody could agree with. There are five-sixths of this speech in my hand on the cause of discontent in Ireland, full of truth, full of good sense, full of honourable feeling and tolerant opinion. And I venture to say, if any gentleman on that jmy reads that speech, he will say, whatever may be his opinion on the result of this trial, would to God we had a party, not in the factious sense of the word party, hut a body of honourable men who would carry out the greater portion of the things contained in it. Of course those subjects you are most acquainted with are touched on, and these are the questions of Irish representation, franchise, parliamentary reform, and the exclusion of the Irish peers. This gentleman who is charged with an intention to establish a republic — sometimes it is a republic, and some- times I know not wRat it is — objects to the exclusion of the Irish peers from the English House of Peers ; he says their position is anomalous ; and so it is we all admit. He argues the question of past coercion bills for Ireland ; he argues the ques- tion of the poor law, and he says, and says truly — and I call on you to believe he has spoken the language of truth — that every 534 SPECIAL COMMISSION, CO. TIPPERARY. suggestion made by tbe country gentlemen was cast aside as unworthy of consideration ; and that to a Mr. Nicholl, a perfect stranger to the country, was delegated the task of framing the poor law of Ireland. He sets out all the English Commissioners have reported ; he explains the embarrassment and difficulty of tliat law ; and shows how miserable a thing it is to be legislated for by those who do not understand the character of the country they legislate for. This is the document he scattered as the pro- gramme of his opinions in this very association. He speaks there of what they ought to do for railways ; and, having done that, a passage occurs which, I must confess, fills me with astonishment. Although I knew Mr. O’Brien was a Protestant, I thought he was a party who always reviled the church and its clergy. When he comes to treat of the grievances of his country, he has the manliness and true tolerant feeling to put forward a grievance which consists of this — to my surprise I read it in page 35 — that of the grant made to the National Board of Education wffiich exists in Ireland, he objects that the members of the Protestant church are excluded from a share by reason of their consci- entious opinions, and insists that Parliament should remedy that grievance, and give to them that for which he, as a Protestant, insisted, according to the rules of the faith he professed. This is the wrong-headed, impracticable gentleman who, by the press — the portion of it that exists by slandering him — has always been arrayed as a mad politician, with whom no party could agree. He submitted to these abuses because he wished to try if he could get the Parliament to adopt any of his views before he entered the Repeal Association. He certainly had on this occa- sion 164 votes against 243 but he failed in every thing — he failed in omnibus. At all events, he convinced 164 men, and that is a strong thing to show that he was an impracticable man ! Gentlemen, he was not a personal friend up to that time of the late Mr. O’Connell ; on the contrary, I believe, at a former period between Mr. O’Connell and his family, in Clare, there had been some political difference. While he was out of the country Mr. O’Connell was accused and tried ; and, at the very time that his adversary was in difficulty, at the very time that he was in peril, Mr. O’Brien came forward and gave him his support, which he had not done before, and entered the Repeal Association. He conceived that it was not a right thing to prosecute him for holding all these meetings detailed in that book, when, as he says, he had heard, with his own ears, the very men who were prose- cuting him say, it was a perfectly right thing that free discussion should exist. He wrote the letter which I hold in my hand, and it was also scattered in this association, of which he was a mem- ber, touching this programme of his political opinions and his grievances ; and he states why it was he had entered into this THE QUEEN u WILLIAM SMITH O’BEIEN. 535 association. He had tried the British Parliament, and had failed. His letter is dated from Cahirmoyle. I have not been able to witness this course of events without feeling that the conduct of the British Parliament has fully justified the endea- vour to obtain ” What ? “the restitution of our national Legislature.” That I ash you now to take down ; and if I do not demonstrate to you that every act which he has committed, and every speech which he has spoken, has been directed to that one end, find a verdict against him. He says — “We made a last appeal to the English people. Our warning — the friendly remonstrance of men averse to agitation, and for the most part favourable to the union, was treated with neglect, ridicule, or defiance.” He then says, having considered all these matters he would enter on a career of agitation for this purpose — “In asking for admission to your ranks, I think it right ” Listen to the language of this gentleman. He did not approve of all that Mr. O’Connell had spoken ; and it is one of the most extraordinary things about this gentleman, that whether it be O’Connell, or whether it be Mitchel, or whether it be any other gentleman who broaches a doctrine he does not agree with, although he appears to be bound up in the association with him, he at once disavows those opinions, and will not subscribe to them. Accordingly, in giving his adhesion to this association, he says — “ In asking for admission to your ranks, I think it right to guard my- self against the supposition, that I approve of every expression and reso- lution which have been used in the progress of the repeal agitation.” How is not this very sensible ? “ But in acting with masses of men in pursuit of a great and legitimate object, it is a weakness too fastidiously to condemn every imprudent word which may escape from those with whom we are associated. I am fully persuaded that the calumnies and invectives which are daily launched forth from the Government press against the Irish people have had more effect in kindling animosities, than the strongest language which has been employed by Mr. O’Connell.” Still, he did not like it. He then says at the end — “I cannot conclude this letter without uniting my solicitations to the repealers of Ireland, with those of their other friends, that they will not under any circumstances allow themselves to be tempted to engage in secret associations, or to commit any acts of violence. I am very far from 536 SPECIAL COMMISSION, CO. TIPPERARY. saying that no extremity of misgovernment will justify a nation in resorting to measures of active resistance. To maintain such a doctrine would he to impugn the principles which placed the house of Brunswick upon the throne of England ; it would be to question the right to the crowns of France and Belgium, enjoyed by the sovereigns upon whom our gracious Queen has been advised to lavish those royal courtesies which she had spontaneously desired for her Irish subjects. But, on the other hand, he who adopts measures which may cost the life of a single human being, incurs a fearful responsibility, which nothing but the gravest extremities of national danger can sanction. A month of civil war would produce incalculable miseries to all classes of our population. And if these considerations were not sufficient to deter all good men from reliance upon physical force, motives of policy would be not less overruling. A rebellious outbreak would be fatal to the success of our national cause. In these days great political changes are effected — not by the force of arms, but by the power of opinion. Ours is peculiarly a cause which depends ujjon opinion. Convince the world of the rectitude of your purposes, and of the expediency of your ends, and you may defy the hostile preparations of every foe. Time — the progress of events — the righteousness of our claims — peaceful but untiring exertions to give effect to our invincible resolution — the sympathy of mankind — may we add the blessing of Providence — will infallibly obtain for us final deliver- ance from misrule.” These are the original opinions of Mr. O’Brien. That is quite enough with respect to the Repeal Association. The Repeal Association existed up to the time of the formation of this Con* federation; and it is quite enough, as far as that body is concerned, to have called your attention to what I have done. Gentlemen, I will bring you at once to the month of May, 1846, and the very first document I have before me relates to this event. You may remember, on the advent of the present party to power, that it was thought a fit thing to restore Mr. O’Connell to the commission of the peace. It was thought that all that was brought against that gentleman, with respect to meetings and the association, was bottomed on error, and that his exclusion from the magistracy was wrong. Accordingly, he was restored to the commission of the peace, but Mr. O’Brien was left out, and I will tell you why. Mr. O’Connell had considerable parliamentary influence which he could give to the party who complimented, 2 indi feted, and toasted him ; but Mr. O’Brien was the same im- practicable man, who would vote against Whig or Tory according as the subject to be voted on was right in his judgment. It is an important fact, that twenty-tw^o magistrates of Limerick sent a memorial to the Lord Chancellor, requiring to know on what grounds — which it would have puzzled his lordship to answer — Mr. O’Connell was to be restored to the commission of the peace, and this gentleman, who in very active magisterial life, they say, had acted with zeal and ability, with a knowledge of the poor law, and every other question, was to be shut out of the magis- THE QUEEN u WILLIAM SMITH O’BRIEN. 537 tracy of Limerick. The answer was his restoration to the commis- sion of the peace. Now, gentlemen, the new repeal project began in this way: a most extraordinary discussion arose in the Repeal Association about moral force and physical force. Mr. O’Brien wanted to put an end to the continuance of humbug ; that is to say — I tell it you in plain terms — to men agitating in connexion with the Govern- ment of the day, so as to conduct the agitation with skill, not going too far; to do nothing for their country, and in return getting good places for themselves ; to take preferment from the British Government, or the ministry who misrepresent them in this country ; to receive incomes, and to apply the very incomes they get to preserve that agitation, which wastes the resources and blasts the prosperity of the country. Mr. O’Brien said, that will never do ; because if you are in earnest about repeal you must give up looking for places. Impracticable politician. Yes, said he, and I will begin with you in the right way. You must put out the Bight Honourable Richard Lalor Sheil from the borough of Hungarvan. That, it was replied, is impossible ; he is a friend ; our agitation is going on in a certain way by which we can disturb society, perplex and distract men’s tempers, and never accomplish any thing for the benefit of the State. Mr. O’Brien said, “ Sir, I am in earnest. I believe a local legislature to he a benefit and a blessing to the country, and you will never effect it unless you act in earnest ; and if this gentleman be your friend, that is an additional reason why you should turn him out.” They then get up a discussion about physical force and moral force, and ask you “ are you a physical force man ?” and with this pretext they go on. If you assert in any possible event that a man should be permitted to think of resorting to physical force, they say — “ we will have done with you.” I do not desire the application of physical force ; but my own opinion is, that it has placed the Queen on the throne, and their lord- ships on that bench. Every circuit I pass through that country which established the doctrine of resistance — I pass through that country where King William, hacked by a loyal and bold population, prostrated a tyrant, and conquered Ireland into hap- piness and freedom. That doctrine maintained by Mr. O’Brien is perfectly right, and let no man presume to gainsay it. He would not give it up. He said the expediency of resistance, in extremity, depends on a man’s own conscience as an accountable being. Gentlemen, it was necessary then to open this society, of which the Attorney-General has spoken ; and here is the political creed of Mr. O’Brien, which he circulated in 1846, reiterated. “We conceive that duty to our country is our highest political obligation, and that our primary allegiance is due to Ireland. We honour the Queen as our Sovereign, not because she is descended from 538 SPECIAL COMMISSION, CO. TIPPERARY. a race of kings, who throughout many centuries wronged and afflicted the people of this land; but because we believe that if our interests and liberties were protected by a national legislature, the Irish nation would enjoy happiness and security under her sway.” That is the intent of the revolutionary madman, who desires to kill the Queen, or to do something that must lead to that result, or which must prostrate her Government and her authority in this country. We do not desire to sever the connexion between Ireland and the rest of the empire. We believe that the legislative independence of Ireland is perfectly compatible with the maintenance of that connexion; but if separation be hereafter produced by misgovernment, we are per- suaded that Ireland would suffer much less from Great Britain than from such a contingency. We obey the laws made by the British Parliament, because such obedience is necessary to the maintenance of social order ; but, remembering that the Act of Union never received the sanction of the Irish people, and that it was conceived in perfidy and brought forth in crime, we deny the moral right of the British Legislature to make laws for our nation. We hold ourselves pledged to spare no legitimate exertion which can tend to procure domestic legislation for Ireland.” He then says — The regret whch I naturally feel upon finding myself excluded from an association ” That is, the old Repeal Association. “ with which, under very trying circumstances, I acted, on terms of perfect cordiality, for nearly three years, is greatly diminished when I remember, that many of those whose abilities, patriotism, and disinterestedness, shed lustre upon that confederacy, and won the admiration even of its opponents, have been contumeliously expelled from it. Nor would it have been possible to have avoided collisions of opinions upon other questions connected with the present policy of the repeal movement. The support given by the association to an anti-repeal ministry, accom- panied as it has been ” Now listen to a plain statement of truth. “ by open encouragement of a solicitation of patronage, the pursuit of which tends to render repealers the creatures and dependents of an English Government, must have occasioned perpetual remonstrance on the part of those who spurn the blandishments of English corruption.” That is a statement of his opinions ; and those opinions he never departed from. He was then charged with being an advocate of physical force ; and January, 1847, you may re- member, if you have it not on your notes, is the exact time that the Attorney-General began to refer to this association. We have the opinions of Mr. Smith O’Brien propounded. I have already stated to you that, according to the opinion of the Lord THE QUEEN WILLIAM SMITH O’BRIEN. 539 Chief Justice of England, you are not at liberty to believe that a man’s express declarations and published opinions, are not his real opinions, in an association of this kind, unless you can establish very clearly the contrary. Mr. O’Brien says — ‘‘ As regards myself, I had distinctly placed upon record my views with respect to the right of resistance under certain contingencies, whilst at the same time, I have repeatedly denounced the fatuity and wicked- ness of resorting to physical force, except upon such occasions as would afford a full justification for its exercise in accordance with the view ” Of whom ? “ of the soundest moralists and of the best writers on the British con- stitution.” That is January, 1847. Gentlemen, at that time the best men in this country, among whom were many friends of my own, agreed to try if it were possible to form what was called The Irish Council,” consisting of men of all parties, to do something for this unfortunate country. They applied to Mr. O’Brien, saying — “ You are a member of a repeal body, and you are influential ; will you join in a scheme which does not profess to get repeal, but to accomplish one or two good things for Ireland f ’ You shall hear his answer. He attended that meeting at the Rotundo, in which all the best men of this country were assembled. He was received kindly, and spoke in this way — “ I have felt from the commencement of the undertaking that the whole fortunes of this meeting depended upon that unanimity; and having offered myself as an humble fellow-labourer at your committee, I think they will do me the justice to say, that almost the only point to which my advice had been directed, has been to endeavour to secure that unanimity. It has given me the greatest pleasure to find a number of gentlemen possessing so much intelligence and zeal for their country, devoting themselves day after day to a consideration of the best means of advancing the common interests of our common country.” He then says : — It will be the business of the committee to frame the details and reports of bills, as to the best mode of carrying out our principle, in case the Government should not take upon itself the initiative of legislation. For many years I have sighed for the existence of an Irish party ; and I rejoice that this important meeting holds out a prospect that we shall, indeed, have such a party working together, cordially and earnestly, for the good of our country. If we work together as we ought, we cannot fail to obtain beneficial measures for Ireland; and the knowledge that we are determined to do so will, I believe, cause those measures to be more readily granted.” 540 SPECIAL COMMISSION, CO. TIPPERARY. ISTow listen to the wrong-headed revolutionist ! “ For my part, I shall most heartily co-operate with men whom I have long esteemed for their virtues, and admired for their business habits, though we happened to sit on opposite sides of the house. I will go into council with them as if they participated in my opinions. And if the Irish party wish to sit together as one body in the House of Com- mons, I shall cheerfully give my consent to that arrangement, and take my place beside my friend, Mr. Hamilton, or Lord Bernard, or any other political opponent. I believe we will be in a position, if we use our power as we ought, to dictate the measures that are necessary for the relief of our country, and the amelioration of its condition ; and we shall be unworthy of our position if we do not. What care I for any English party? For my part I care not whether Lord John Russell, or Sir Robert Peel, or Lord George Bentinck, be at the head of the govern- ment.'' These are the opinions of a patriot. I say it advisedly. I care not what ridicule may be cast on this gentleman — I know he has been ridiculed, reviled, caricatured, and slandered ; I know his opinions have been misrepresented and deformed purposely before this trial ; but let Mr. Attorney-General point out to me amongst the whole list of the men of his party one single indi- vidual who has spoken more worthily, more becomingly, more usefully for the country, and more honourably for himself. He abided by that as long as it was possible to accomphsh any thing. He deeply lamented that it failed, for, most unhappily, disunion arose in that excellent body, and it failed in accomplishing any good for the country. The next thing in the career of political crime that Mr. O’Brien was guilty of was taking the great question of absenteeism, and he brought it before the House of Commons Rke a man of sense. Here is the speech, which was also made use of by this criminal association. I am now about the time that the Attorney-General stated he was beginning his career of crime, March, 1847. He states what was the evil under which Ireland groaned — ab- senteeism. The list of those drawing incomes from the country who are absentees is so formidable that it makes a man shudder to read it ; but he says, like a man of truth, and for that I say he is to be particularly praised, that there are amongst them some of the best landlords in the kingdom ; — “ He should refer, in the first instance, to a case which existed in the two counties with which he was more immediately connected — he meant Clare and Limerick. The rental of the estates of the late Lord Egremont in these counties amounted to £25,000 a year. He believed that the late Lord Egremont never saw these estates; and he had reason to believe that the expenditure on those estates by the landlord, beyond the expense of collecting the rents, did not exceed £500 a year. The late Lord Egremont was admitted by every man to have been one of the very best THE QUEEN i;. WILLIAM SMITH O’BRIEN. 541 landlords in England, and if he had resided in Ireland it is probable he would there have fulfilled the same duty in the same way.” Is not that all true ? I tell you that in the prosperous and thriving province of Ulster there are estates which would be principalities in any other country, on which the tenants do not know whether the face of their landlord is white or black. Is that a just ground of complaint ? Did he wish to strip them of their property ? Is he guilty of disrespect to the aristocracy to which in a sense he belongs ? He is as old an aristocrat as nine- tenths of the nobility of the country. He does not say so, but he says — I wish them to come and live in the country, and enjoy the estates w^hich the law of the land gave them. Gentlemen, this Confederation began to hold monthly meet- ings, as Mr. Attorney-General told you. I am now in April, and I will come to the speeches relied on in one moment. An at- temj)t was made to get for this country, through the medium of a nobleman who had as large a heart as ever swelled within any human breast — Lord George Bentinck — a great benefit in the shape of railways. How did Mr. O’Brien, the agitator, act ? He instantly posted to the House of Commons ; he voted night after night behind his back. What does he say when he returns to this Confederation — this guilty, treasonable association? He says — “ I am compelled to tell you that I have been entirely disappointed. On going to London, as one of the few and public representatives of this great nation, I hoped that, although a small and insignificant body com- pared with those who had the interests of England to maintain, still backed, as they were, by public opinion in this country, they would take up a position which would make themselves and the country respect- able.” AVhy is he a repealer ? Is this flattering to repealers ? I ■wish to God the people of this country would read what is written here. A man behind the scenes, and one who has seen and witnessed the conduct of all those who affect to be the leaders of the people, here tells the truth. What is it he saw ? He says — On the very first occasion when the party interests of England were placed at stake, Irish virtue and Irish patriotism were forgotten. Lord George Bentinck brought forward a proposal which would have had the effect of placing a large sum of money, possibly amounting to as much as sixteen millions, to employ the population of this country in works con- nected with railways, which would have not only given immediate employment to the people, but have greatly developed the industrial resources of the country.” Now listen. “No sooner was that proposal made, and welcomed by what was called the Irish party — the combined representatives of both houses connected 542 SPECIAL COMMISSION, CO. TIPPERARY. with Ireland — welcomed cheerfully and approved of by them — no sooner had that proposal been so received, than the English minister raised the cry of distress, told the Irish members that the Government was in dan- ger, and threatened to resign if this proposal for the benefit of the Irish people was carried. And then, alas ! I witnessed a spectacle that made me feel ashamed of being an Irish member. I saw men, who had vowed before God and their country that they never would allow the interests of any country to weigh with them, even to the weight of one feather, against the interests of Ireland — I saw those men record their votes against the project for the benefit of the Irish people. From that moment all hope of good results from the meeting at the Rotunda was utterly lost. The Irish party, as it was called, not only became utterly power- less, but the name of an Irish member of Parliament became a by- word, and justly so, in the House of Commons.” Then he says — “ Their subsequent steps were not calculated to win confidence.” These were the patriotic members as they are called. I am not disposed to join ” The reason I read this is, that one of the speeches relied on here charges him with assailing landlords and their property. “lam not disposed to join, nor would I recommend others to join, in the English howl against the landlords of Ireland ; because that howl has not been raised so much on account of the conduct of the landlords towards the people of this country as to serve parties in England. Let it be remem- bered that the landlord class have been the petted class of English legis- lation ; that they have been the English garrison in Ireland. That howl against the Irish landlords has been raised for the purpose of shielding the British Government from condemnation for their conduct relative to this country. There are many now belonging to the landlord class who have shamefully neglected their duty, while others of them have discharged their duty as well as any man here. But let us be just. I refused to have any thing to do with Lord Monteagle’s resolutions, which were adopted in my absence from the meeting. I have been for many years a strenuous advocate for a provision for the poor of this country. I am not disposed to recede from that opinion now ; and I never gave a vote with more cordiality than the one I gave for making a provision for the support of the poor out of the soil, nor do I believe I ever gave one more useful to the country. But let us not be led to join in the howl against the Irish landlords for entertaining an opinion which many of yourselves, perhaps, entertained or approved of, when put forward by others. This was a question on which the best patriots, as was the case with Mr. O’Con- nell, and his son, Mr. John O’Connell, might entertain a different opinion from mine, and that of others. But let each be responsible for his own acts and opinions. A portion of the press and people of this country have been disposed to attribute every thing that is wrong to the land- lords. I don’t think that is fair.” That is in April. THE QUEEN u WILLIAM SMITH O’BRIEN. 543 Now the next subject was a very delicate subject — the Whig alliance — and that was a subject on which Mr. O’Brien was inexorable. He would not enter into that constitutional compact. I am now in the month of May ; and in that month the question arose, and this doctrine again was discussed, of how the question of repeal was to be carried. He says — “ With regard to the policy of the new association I candidly tell you, that we thought there was no hope for repeal if this country was to become a nation of place-hunters. I do not believe that any nation ever yet won its liberties, or ever will win its liberties, by place-hunting. We, the repeal party, consider ourselves in a position of antagonism to all parties, particularly English parties, opposed to repeal ; and I should like to know what chance there would be of winning any contest in which the combatants on the one side were to begin by asking favours from those on the other side? We are told, forsooth, and this is the pretext, that if the places be obtained by repealers, the hands of repealers will be strengthened, and they can wield the power which they so acquire against their benefactors. Gentlemen, I will not ask an assembly of Irishmen what they think of the chivalry, the generosity, and the magnanimity of that sentiment.” How then was the Confederation to be carried.out ? He says — We do feel earnestly and strongly, that in order to effect by peaceful means the repeal of the union, a confederation of the Protestants and Roman Catholics of Ireland is absolutely necessary.” Gentlemen, this accused man, who is supposed to have desired to throw down one party and establish another, has from first to last in every speech he has made denied it ; and to his eternal honour he has said, what now, if it be understood, will be a lesson to the whole world. “We certainly say, that the repeal ought never to be accomplished except by the consent of the Protestants of this country ; that if it were accomplished against their fears and against their will, it would be a greater evil than a blessing.” These were his sentiments at the moment he is charged by the Attorney-General with uttering treason. Gentlemen, there are many of these speeches denying in the most express terms all desire of accomphshing a separation. Then an important statement is made with respect to his own opinions of this Confederation. I am now in September, 1847, to which I pray your attention. A great number of writings and a great number of speeches were made there by other persons that he did not approve of. “ Eor my own part I have no hesitation in avowing, that speeches are there occasionally made, and documents emanate from it, which do not in all respects represent my opinions.” He distinctly states that over and over again. That difference it is not for me to express in the absence of the man who has been 544 SPECIAL COMMISSION, CO. TIPPERARY. tried and punished on the grounds of it ; but it is enough for me to say, that doctrines were propounded savouring of republican- ism, and with reference to the rights of property, from which Mr. O’Brien utterly and entirely dissented ; and, as he always did, no matter who the men were who propounded an opinion which he differed from ; so in this very association he expressed his dissent from those who broached these absurd theories which have dis- tracted our country within our own knowledge. And what think you of this — I am now in the month of November — which contains the report drawn up by Mr. O’Brien, printed and scattered by the association, and reported no doubt to the Government ? This relates to the charge of anarchy and of desiring to seize on the property of landlords. The date of this is the 13th November, 1847. This is his own composition, and signed by himself. ‘‘We have formally and repeatedly disavowed the imputations cast upon us, that we seek to involve the empire in peril, and our own country in civil war. Although some of us believe that the interests of Ireland would not suffer by a total separation from England, yet we have no desire to effect such a separation. If it ever takes place, it will result not from the disloyalty of the Irish people, but from the arbitrary usurpa- tions of the British Parliament. Forbearing, therefore, from a contem- plation of these extremities, we seek no more than national independence under the sway of the Sovereign of this empire. We believe that this object can be accomplished by means such as the British constitution places at the command of the people of Great Britain ; and we do not doubt that the national will of Ireland can, without recourse to violence, enforce its own determination when it shall be developed in patriotic action, guided by able, firm, and disinterested men.” And does any man tell me, that if a large body of people in this country, in a certain province, were all agreed on a subject that it would not be accomphshed ? It is perfectly absurd to deny it. He says then — “ It is manifest that the primary object of all our exertions ought to be What ? “to produce amongst our own fellow-countrymen an universal conviction in favour of the object which we have in view. We cannot, indeed, hope to attain entire unanimity. There will always be a minority adverse to every national effort, however noble or advantageous. The minority will consist of timid creatures, whom nature has cast in the mould in which slaves are formed; of implacable bigots ; of those whose selfish interest being promoted by the degradation of their country, prefer such personal interest, however fleeting, to the permanent welfare of their children; and lastly, of the minions of British power who choose to be the agents of corruption rather than to be administrators of the affairs of a free nation. It is in vain to hope that we can ever succeed in obtaining the aid of such adversaries as these.” THE QUEEN i;. WILLIAM SMITH O’BRIEN. 545 Then he says — “We have no interests separate from those of our Protestant fellow- countrymen. They are equally with ourselves interested in maintaining the honour, and in promoting the prosperity of this island.” Here is a sentence from a gentleman whom I believe has as much experience of agitation as any man living ; and mark, how contrary it is to the style of language applied to us by the gentlemen on the other side of the water — “ Without their aid we cannot hope, nay, we scarcely desire, to attain a repeal of the union, being convinced that national liberty could be per- manently maintained only by a spirit of patriotism common alike to tho Protestant and Roman Catholic population of Ireland.” Those are his opinions — recorded, written, printed, and dis- seminated by himself. I deny they are the opinions of a revo- lutionist, of an anarchist, or of an intolerant enemy of social order ; and when the Attorney-General in this prosecution has thought fit — how wisely it is not for me to say — to refer back to the past speeches of Mr. O’Brien, for the purpose of convicting him, I trust you, as conscientious gentlemen, will take the whole together, and ask whether the good does not vastly overbalance the eHl? Gentlemen, Mr. O’Brien visited the north of Ireland, and what do you think was his fate in Belfast ? They certainly there have a very different opinion from what their ancestors had. You are aware that many of the gentlemen of that country — the best blood of that country, the most respectable merchants in that town — were all armed Volunteers : there are one or two of them living still, who passed the resolutions at Dungannon and obtained liberty for this country. Unfortunately no one doubts that our liberty was obtained by the sword. In the course of this speech the old Ireland party attacked him. That is the difficulty Mr. O’Brien gets into now, because he has embarrassed, or rather, I believe, he has extinguished Conciliation Hall — which I, for one, do not at aU regret. He says here — “ He would do the Conservatives of the north, and the Whigs of tho north, the justice to say, that the disturbances which had disgraced tho meeting that night did not originate with them, and was not engaged in by them. He was afraid that the annoyance had been caused by a sec- tion of men who were ignorant enough to call themselves repealers. Repealers, forsooth ! Was this the way ” By a public disturbance in the streets and towns. “ Was this the way in which they hoped to obtain a repeal of tho union 1 Was it in this spirit that the public would believe they were anxious to teach that toleration, and that they were determined to have that institution, which would giv'e practical freedom to every man of whatever opinions in politics and religion? The eruption of moral force 2 N 54G SPECIAL COMMISSION, CO. TIPPERARY. principles had told a pitiful tale on the platform that night. ‘ The man who commits a crime strengthens the enemy,’ said the leader of the Conciliation -Hall repealers. They had not exactly committed a crime that evening, but they had undoubtedly strengthened the hands and warmed the hearts of the enemy. There are many who believe that this country is not fit for freedom ; and he confessed that he was very often disposed to ask himself the question, whether it is or is not.” That is plain, bold, honest speaking. “ Persons who could conduct themselves in the manner they had that evening, gave very questionable grounds for supposing their fitness for freedom. The old Ireland mobs, who were conducting themselves in a somewhat similar manner throughout the country, had brought disgrace upon the cause which they seemed to have espoused as their own.” Now hear this sentence, uttered by this treasonable, seditious anarchist. ‘‘ He was a Protestant himself, and he would confess at once that he would have no desire for the repeal of the union, did he not believe that, as a Protestant, he would have the most perfect security for the continu- ance of the civil and religious liberty which he now enjoyed. If the consequences of the repeal of the union should be, that he was to be hunted down because he attended a Protestant church, and was anxious that he should preserve Protestant institutions, he believed he might question, and fairly enough question too, whether the people who would desire to coerce his will, and restrain the exercise of the fullest civil and religious rights and privileges, were ripe for the freedom which he was so anxious that all classes and creeds of his fellow-countrymen should enjoy.” And then he says, that — He could not overlook the fact, that a very considerable proportion of the most respectable, intelligent, and influential people of this country w^ere Protestants ; and that these Protestants had the right to protect them- selves, and that they would assuredly do so as well after the repeal as now.” He afterwards dwelt repeatedly on the subject. This is his theory — that conscientious acting, and disinterested pohtical conduct, will do more for the public than fifty speeches; and I agree with him. Gentlemen, I told you, and it is part of my case, and will be proved to you, that it was essential to show what were the objects and the rules of this treasonable conspiracy, impeached by the Attorney-General, of which some very respectable gentle- men, connected with high persons in the State, are members. There is no doubt of that. It was necessary to draw up rules, and accordingly I will prove to you the rules of the Confede- ration. Now, the rules are these — one or two will be enough to state to you. I am now in February. It w^as formed in January, as Mr. Attorney-General said, and the rules were drawn up some time afterwards. They were settled by a very eminent THE QUEEN i;. WILLIAM SMITH O’BRIEN. 547 counsel, and are the rules upon which this society acted ; and I mean to submit to you, through their lordships, that a man who enters this society on the faith of these rules, is only to be affected by what is done in this society in furtherance of the common object; and the intemperate language of A., B., or C., is not to be estimated by the jury, except it be in furtherance of what is here expressed. Now, is there any criminal design here ? These rules were settled by Mr. Henn : — — That a society be now formed, under the title of ^The Irish Confederation,’ for the purpose of protecting our national interests, and obtaining the legislative independence of Ireland by the force of opinion, by the combination of all classes of Irishmen, and the exercise of all the political, social, and moral influences within our reach. II. — That (under present circumstances) the only hope of the libe- ration of this country lies in a movement in which all classes and creeds of Irishmen shall be fairly represented, and by which the interests of none shall be endangered. “ III. — That inasmuch as English legislation threatens all Irishmen with a common ruin, we entertain a confident hope their common ne- cessities will speedily unite Irishmen in an attempt to get rid of it. “ IV. — That we earnestly deprecate the expression of any sentiments in the Confederation calculated to repel or alarm any section of our feUow-countrymen. “ V. — That we disclaim, as we have disclaimed, any intention of involving our country in civil war, or of invading the just rights of any portion of its people. “ VI. — That the Confederation has not recommended, nor does it recommend, resistance to the payment of rates and rent, but, on the contrary, unequivocally condemns such recommendation. “ VII. — That, in protesting against the disarmment of the Irish people, under the coercion bill lately enacted, and in maintaining that the right to bear arms, and to use them for legitimate purposes, is one of the primary attributes of liberty ” And so they go on. These resolutions were drawn up as the basis of the rules. The rules founded on them were afterwards framed, and hung up in the rooms of this Confederation, and those rules are per- fectly legal in every respect. Gentlemen, the society so formed went on holding its meet- ings, and very shortly after, the witness, Mr. Hodges, began to attend them. Up to this moment of time I have shown you — and I will of course prove all these things, if necessary — that the original object was lawful. I have shown you what the design was. I have given you a brief outline of the opinions for months of the leading members of the association. I appeal to you on this trial for high treason, and ask with what face can the Attorney-General say that those speeches, which he has picked out of the whole mass, are to characterize its object as treasonable, which began lawfully — usefuUy it might be 2 N 2 548 SPECIAL COMMISSION, CO. TIPPERARY. tRought by some — and continued during, at all events, a lawful existence for such a period of time as I have mentioned ? The next meeting that I shall draw your attention to is March the 11th. Mr. Hodges did not attend on that occasion; the first that he attended was the 15th of March. Now all Mr. O’Brien said there was of importance. He enters into the question of Ireland’s position ; he states why he perseveres in this agitation, and he says with respect to hope — Do I derive this hope from any thing I witness connected with the conduct of the British Parliament in regard to this country? No. I am compelled to tell you, that never at any former period of my experi- ence did that Parliament seem to me disposed to treat with more disdain than at present the claims of the Irish people. I need only refer to the most recent example, when, last week, a large majority of the Irish members demanded a committee to investigate into the condition of the Irish poor and the working of the poor law, and to consider how far the present law could be rendered more efficient for preserving the lives of the destitute.” Mr. O’Brien hastened over to the House of Commons to sup- port that. “ That proposition, sustained by not less than sixty-one Irish represen- tatives of every section, with a minority of only eight, of whom three were members of the Government — that mass of opinion, representing such an overwhelming majority of the Irish people, was treated by the Government and Parliament with the most complete indifference.” That is the ground he assigns to justify him in the speech immediately antecedent to the speech first reported by Mr. Hodges. I will put this case on his behalf: — Suppose 105 members ask for a committee on the poor law, and it is refused. Consider this as his argument ; do not take it as mine. He was present at it. No argument was urged against the proposition, which was a most unfortunate thing, but it was refused contume- liously by those who were not affected by the severity of the law. That convinced him that he could not expect much from the House of Commons, and made him come to the determi- nation that he would persevere with this association. Gentlemen, we now come to this ponderous speech put in on the part of the Crown — don’t imagine I am going to inflict it all on you — a speech which took the reporter a very considerable time to read one-third of. By mutual consent it was agreed that the rest of it should be taken for granted. This long speech is the speech that was prosecuted by Mr. Attorney-General for sedition. Taking the whole of it together, a jury refused to believe that it was seditious. And now, by following up all the doctrines I have stated to you, and all the arguments which are put forward here by Mr. O’Brien on the various subjects he has touched on, the Attorney-General thinks, on the trial of the THE QUEEN v. WILLIAM SMITH O’BRIEN. 549 prisoner for his life, that it is a fair thing to submit to a jury, this speech, and to ask them to connect with it — which I do conscientiously believe would be contrary to the truth — the intent and character of his subsequent actions ; calling on the jmy to consider the purpose, and to explain what took place at Ballingarry by what was spoken in March. I do not believe you will gratify the Attorney- General in that respect, and I exhort you not to do so. By doing so, you will re-establish that monstrous doctrine of constructive treason, which has sent so many innocent men to the block. You will enable the Attorney- General to have his reporter listening to and taking down political speeches; getting a copy of them; pondering over them; asking himself what crime is there expressed; prosecuting for sedition, and the jury disagreeing. The law officer allows Mr. O’Brien to walk out of the Queen’s Bench, and never again prosecutes the prisoner for the offence of sedition, as he ought to have done. And when this indictment is brought forward for high treason, it has been said by the Court, that it is evidence of treason for you. I call on you, as twelve rational, just, and fair men, not to allow the Attorney-General to convict Mr. O’Brien, and to take away his life upon any sentence that can be picked out by the wit and artifice of counsel from this long and elaborate speech. In this speech he reads an address from the Youghal Confederates, and this one line, which I have marked, I beheve is the blackest treason you can find in it : — We believe that consistently with that duty no Irishman can become the servant, ” That is, take a place. pensioner, or ally of any government professing to uphold such usurped authority of the English Parliament.” That is the doctrine of the confederates, and they believe in the doctrine of the resurrection of this country’s independence. Now those general vague words are all badges of high treason. When a man says, I will plant the flag of freedom, it is expected that the jury will take the speech in which a man so expresses himself, and pick out some vague passages and twist them into treason. With deference to the Attorney-General, I say it lies on him to prove their guilty intent ; he has no right to throw down speeches to me, and tell me to explain them. I have proved that this is a just argument, and moreover that it is the law, by the highest authority ; and when the Attorney-General says it is for the counsel for the prisoner to explain, I answer I will not explain. I will not explain Mr. O’Brien’s political opinions to the Court or to you ; and unless he makes this speech in furtherance of the treasonable purpose charged in the indictment, which treasonable purpose is, in one respect, that he compassed the death of the Queen ; and, in the other, that he levied w^ar against her — this 550 SPECIAL COMMISSION, CO. TIPPEPvARY. speech is as worthless paper as ever was produced from a lawyer’s bag. The prisoner says that the hope of a local parliament “ may be defeated by rasliness. I know that in times like these a great deal of enthusiasm is naturally excited, and that there are myriads of ardent spirits who think that it is only necessary to strike a single blow to achieve immediate success. Very likely there are many present with that feeling, but such is not my opinion ; and I think it right to-night to disburden my mind fully to you. My belief is, that if an insurrection was to take place at present, it would be put down in a week. My belief is, that if it were partially successful, that, under the present circumstances of this kingdom it would be in the power of the British Government to starve the people, by stopping the supplies of food we are now necessarily deriving from abroad. Under those circumstances, I say, that it would be consummate rashness to attempt to bring this question to issue by an immediate appeal to arms.” Now, that is one of the worst passages in this speech, and I tell you what is sought to be drawn from it. They say it may be implied and argued from that passage that he does not mean to exclude the possibility of, at some future time, appealing to arms. If a man says in 1847, “ I will not say it may not be possible at some time or other I may appeal to arms;” when he is tried in the year 1857, you may resort to that speech, and say, he laid down the abstract doctrine, that it was right at times — at some time — to resist, though he said not at that time — and, by coupling such an assertion wdth an equivocal act long subsequently done, you are to make out high treason. If you do, gentlemen, you may expect to be in the dock shortly yourselves. He goes on to say — • “ I would implore you by the memory of those past failures not to allow yourselves to be committed to any rash act, or any act of indiscretion, but to proceed in a regular, and in a constitutional course too, for the attainment of your liberties.” Now, that is one passage in this speech. If that be the per- vading sentiment of the speech expressed here, what right has counsel to lay hold of one passage here, or another passage there, in which there is something about injuries, and say, I will apply that to my present treason, and the act charged being in itself perfectly equivocal or perfectly innocent, explain it by an old stale speech, and thus make the accused a traitor ? Gentlemen, there is a passage in this speech, which I wish to call your particular attention to, as I have a case in point for it. “What I believe the great majority of the repealers of this country want is this, they want a parliament in Ireland to make laws for Ireland.” And this is the whole pith and marrow of that speech. They want an Irish Government responsible to that parliament ” THE QUEEN v. WILLIAM SMITH O’BRIEN. 551 Will you find tliat treason ? and composed of Irishmen.” What do you think of that ? Whether it is burglary or treason I leave to the law officers of the Crown to discover. ‘‘They want the means of protecting those institutions by an Irish army, by an Irish navy, and by an Irish national guard.” Some twelve years ago the present prosecutor, Lord John Russell, began a career of agitation for the carrying of parlia- mentary reform. One of the projects of the great Political Union in Birmingham, to which he wrote his memorable letter, declaring that reform should never be put down by “ the whisper of a faction,” was, that they should have a national guard. I have the resolution here. Can I have better authority than that of the noble lord who has written an essay on the constitution of England ? 1 will not compliment him. It falls far short of the masterly sense of Foster, or the deep thought of Hale; but still it is clever and learned, and he argues on the doctrine of resistance, and insists on its application if necessary. He wrote himself to that Political Union which threatened to march a hundred thousand men to London if the House of Lords dared to hesitate, ay, and asked a gentleman now living to take the command of that body. I do not say that Lord John did, but I say that a gallant officer was asked to do it. That body, the Birmingham Political Union, existing then, and consisting of one hundred and fifty thousand men headed by Mr. Attwood, a gentleman of great talent and determination, on the very day the Legislature threw out the first reading of the bill — I mean the House of Peers — a body certainly as old, if not older, than the Commons, and without whose existence a fierce democracy would overspread the land, and destroy every institution under which a rational or an intelli- gent being would wish to live — on the day that body pronounced their opinion, the very prosecutor in this case, who himself directs the Attorney-General to prosecute, wrote this letter to the great Birmingham Political Union, whose power and influence was ten thousand times greater than the small Confederation which the Irish revolutionist and traitor established : — “Lord John Russell to Mr. Thomas Attwood, Birmingham. “ Sir, — I beg to acknowledge with heartfelt gratitude ” The Attorney- General . — I beg pardon, Mr. Whiteside. I really, my lords, am not aware that a letter of this description can be read, nor do I see what bearing it has on the case. Your lordships will now decide whether it can be read. I will ask whether the learned counsel conceives that he can make evidence in this case an alleged letter. I do not know whether he has the letter itself, or whether he is reading it from a book, or what he reads it from ; but it does not occur to me that a letter alleged to have been written by Lord John Russell some twelve or fourteen 552 feiPECIAL COMMISSION, CO. TIPPERARY. years ago, cannot have any possible hearing on the question now before us. Under these circumstances, my lords, I really think that it cannot be read by my learned friend. This is the only time I have interposed. I would not presume to have inter- rupted when my learned friend was addressing the jury, hut when he attempts to read such things as this letter I really cannot help it. I have not interfered with him reading speeches delivered by Mr. O’Brien Mr. Whiteside. — I cannot thank you for that, Mr. Attorney. I am defending the prisoner for his life, and you are prosecuting, and I will take my own course. The Attorney -General. — Of course you will. Mr. Whiteside. — Allow me to say, that in the case of the King V. Frost, when this course was taken in the presence of three judges, equally learned with your lordships who are on the bench, there w^as no attempt at interruption. The Attorney- General is under a most grievous mistake, although I have the strongest personal respect for him, if he thinks he will thus stop my mouth when I am defending a gentleman on trial for his life. The Attorney- General. — I assure you, Mr. Whiteside, that I never wish to stop the mouth of any gentleman. Mr. Whiteside. — It is a matter of history. I may refer to the history of this country. The Lord Chief Justice. — What occurs to us is this, we do not think this can be received as evidence. As an historical past event you can refer to it, but we think the more generally you do so the better. Mr. Whiteside. — Yes, my lord, I shall refer to it very shortly. Gentlemen, the question before you is — do not suppose that I wander from the true point — whether an association like that to which Mr. O’Brien belonged, formed for the accomplishment of a great political object, such as the repeal of the union, is treasonable ? The principal passage in the speech, which the Attorney-General read against him, and upon which he mainly relied, I suppose it to be that which refers to the possible forma- tion of an armed national guard. And why ? Because it refers to the possibility of physical force. And it may then be urged, if it be said I deny its reference to the matter of treason, on the ground I before stated, that it does allude to the accomplishment of a political object by force. Now, first, here is the resolution. There is a journal of great talent indeed, which I have taken it from, which expresses the opinion of England, and very much the opinion of Europe. It is distinguished for remarkable ability, for astonishing acquaintance with all political affairs, and you may rely upon its intimate knowledge of the principles of the English constitution. I have only to regret, in passing, that such a journal should have written so severely of my client and his case. Gentlemen, that very journal is now writing to you, to me, and to the Court, exhorting them to overrule the quibbles THE QUEEN t;. WILLIAM SMITH O’BRIEN. 553 that might be offered by the counsel on the part of the prisoner. It states this resolution on 29th October, 1831 ; — “ This advice has struck terror into two classes — the communists and the oligarchs.” And then it goes on — “ Those oligarchs — these self-imagined grandees — constituting the borough-mongers and Tory faction, are no less terrified at the notion of a national armament ” I am alluding, my lords, to The Times of 29th October, 1831, which I am taking it from ; the book is here if it is desired to refer to it. The Lord Chief Justice, — You had better refer to it generally. Mr. Whiteside. — I do, my lord, it is only a few lines. “ They ” That is, the House of Lords. are no less terrified at the notion of a national armament for a reform of law and recovering of power, than the mob are for the consequences of a league for the protection of honour, person, and money, against both sets of robbers ; it is that, if requisite, the people of England ought to stand upon their defence — as for specific arrangements by which that defence might be constituted and guided to its proper ends, they are matter of cool, though not for debating, deliberation. To what extent the ‘ Conservative guard’ ought hereafter to be placed in connexion with, and under the control of, the executive authority of the State, will, of course, be an important question. The principles on which the French National Guard has been framed are well worthy of consideration here.” Now we find these terms used there — tyranny,” “ resistance,” oppression,” “ the liberty of the citizen,” “ the abominable oligarchy,” ‘'the ruin of the borough-mongers,” “the Bill of Rights,” “that the people have a right to arm” — nobody in England presumes to deny it — “ that they had a right to hold a confederation of armed men, in order that they might be prepared for any emergency that might arise.” A run on the hanks is spoken of ; and it was said of a gentleman who was afterwards Lord Chancellor, that he was in “ good fighting order,” and that a right spirit was fermenting among all classes of Englishmen. Then comes a colonel, a valuable man in that time, and very useful, who teaches Englishmen how the household cavalry might be resisted. This is not the person to whom I made a passing allusion before — this is Colonel Jones. He tells them that if the whole household brigade of cavalry came out he would head them, and if the artillery came out he would show them how to take every gun. That is very strong. The short letter to which I referred, was a communication addressed by the present first minister of the Crown, showing by his assent an acknowledgment of the right in the people to insist, by physical combination, on having a free constitution. It is not for the purpose of scoffing at a gentleman of high station and great 554 SPECIAL COMMISSION, CO. TIPPERARY. rank, and the first minister of the Crown, that I read it. I declare, honestly, that I use it because he has written on the constitution of England, and said that the verdicts of juries have moulded that constitution. I have a right to refer to it as I would to a work of Lord Hale. This is the letter — “Lord John Russell to Mr. Thomas Attwood, Birmingham. “ Sir, — I beg to acknowledge, with heartfelt gratitude, the kindness now done me by 150,000 of my fellow-countrymen. Our prospects are obscured for a moment, and 1 trust only for a moment, for it is impos- sible that the whisper of a faction can prevail against the voice of a nation.” What is “the whisper of a faction?” A deliberate opinion of that house where the names of Nelson, Wellington, and Marlborough are honoured. That “faction” consists of a branch of the Legisla- ture of the country which has existed for ages, and will continue to exist, founded in the affections and the attachments of a dis- cerning people. If 150,000 men had marched up to London to accomplish that object, the Lord Chief Justice who sits here would have told the turbulent men that it was high treason to terrify the Legislature. On that occasion it was done. I know how they argue across the Channel ; and there are no people on the earth I so much respect : first, admit to one of our English friends that he is right in every thing, then he will reason with you through the rest of the conversation ; but if you dispute with him about any of his peculiar nostrums for the government of this country, he will think you the most impracticable, wrong- headed man in the world. He will tell you that conduct like that of the people of Birmingham was quite right, as applied to them ; hut that it is the most vulgar conception in the world to apply it to the Irish, and their project for accomplishing the repeal of the union. Now, gentlemen, that is my defence for that portion of the speech insisted on by the Attorney-General ; and, I believe, I am nearly at its close. The concluding passage is the worst ; it is a quotation, and a very well known quotation. There is high treason in this. The Attorney-General never heard it before in his life ; it was never spoken by any great political agitator in this country ; it never was applied to the influence of the masses operating by physical force on the administration of the day. Such a thing was never heard of — “ Hereditary bondsmen, know ye not. Who would be free, themselves must strike the blow.” That is quite new to you. I do not know whether Mr. O’Brien took it from Byron or O’Connell, but it is stereotyped in the language of Irish agitation. It is now in the indictment, and it is one of the strongest things in this speech with which to work up a charge of high treason. THE QUEEN WILLIAM SMITH O’BRIEN. 555 He says at the close of the speech — and this is one of the sentences rehed on — that so long as England refused a parliament to Ireland, if the French invaded this country, he does not think he would fight for England. Is that high treason? A man makes an abstract speech, and says, ‘‘my judgment is, this measure ought to be carried ; and my determination is, that so long as it is not carried I will not support the Government that refuses it.” The Attorney-General says that is high treason. Gentlemen, I submit that to your clear, manly intellects to find out the guilt if you can. In order to make that applicable, there should have been a distinct, positive, plain annunciation of a project to break oilt ; something in a definite form and manner to which it had reference. The whole of that long speech is in reference to the men of Youghal, and twenty other topics. Therefore, I now dismiss it by referring to what I suppose is the exposition, the final resolutions, by which the speech winds up. “We have firmly resolved that this ancient kingdom shall once again be free and independent. “ In imitation of your example, we propose to exhaust all the resources of constitutional action before we resort to other efforts for redress. “ Time will unfold our projects, but we hesitate not to tell you, in anticipation of the future, that your friendship may increase their efficacy, and accelerate their success. “ Our claims to fraternity with you rest upon the proudest traditions of your history.” This is the address to the French nation. “We augur the happiest results to yourselves and to mankind from your determination to found your institutions upon the broadest basis — to place them no longer upon privileged classes, but upon the whole French nation.” I do humbly submit in restoniig this speech to the Crown? with the greatest possible respect to Mr. Attorney- General, that a more mischievous precedent to public liberty was never sought to be established, than endeavouring to force that speech in this case into proof of treason; while I entirely admit, with equal candour, that the acts committed by Mr. O’Brien justified the Attorney-General in putting him on his trial. But I regret he put him on his trial for this offence. He had an act of Parlia- ment passed in favour of human life, the highest punishment prescribed by which is only transportation for life. This prosecution is aimed at the fortune and existence of my client. Gentlemen of the jury, Mr. Attorney-General relied upon two other speeches of which I have got copies. The Lord Chief Justice . — It is now two o’clock, and if it is convenient to you, we will adjourn for a quarter of an hour. Lord Chief Justice Doherty . — Choose your own time ; if this is not convenient say so. .556 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Whiteside — Nothing’ can be more convenient. I am much ohhged to your lordships. [Their lordships and the jury retired for a short time.] Gentlemen, a part of the case relied on by the Attorney-Gene- ral in his speech, and to which the last evidence I observed upon applied, consisted of that section of it wherein he asserted that one of the measures had recourse to by the conspirators was the formation of a national guard, to be composed of the members of the several clubs, who were to be officered, armed, and sectioned, so as to be ready to rise in case of an outbreak. He then made this statement, that another mode had recourse to was this — that is, by the conspirators, and of course by my client, and which I supposed would be followed out by proof — that they resorted to the getting up of seditious newspapers for the purpose of giving circulation to their plans and projects ; and he stated, that seditious writing was at that time matter of misdemeanour, and continued so till the 22nd of April. Now when the Attorney- General thought fit to allude to the conspirators — of course referring to my client as one — carrying out their projects, he ought to be prepared to prove it. But what is the fact ? My client did not write one line in seditious newspapers. He is not a proprietor of, nor a contributor to newspapers. And with one of the principal proprietors, Mr. Mitchel, there was an open, public, violent quarrel, which ended in a declaration by Mr. O’Brien, that either one or the other should quit the Confede- ration ; and the result was, that Mr. Mitchel quitted it, and Mr. O’Brien remained. I therefore call upon you to discard that statement made by the Attorney-General, because it was utterly unsustained by proof. He next broke out into some observations on the French revolution. For nearly half a century that has been a bugbear to English politicians, and the subject-matter of dispute between political parties on both sides, and men of the greatest intellect and genius adopt the one side or the other. Burke and Mackintosh took opposite views on the previous revolution. And although the Attorney-General objects to the French revolution, these men, without being traitors, may be of opinion that there was a great want of wisdom or judgment in those who suffered the grievances to exist which led to it. I have nothing to add to that. The speech in my hand was ushered in by the Attorney-General with some general, rhetorical observations on the French revolution. By the way, I observe in a passage of his speech, which I believe is most correctly reported, that he says he prosecuted Air. O’Brien, and regrets that he failed. He did fail undoubtedly. Then he observes, that the use Air. O’Brien made of his liberty was, to pay a visit to France. Now if he was not convicted by the verdict of a jury, he had a right to go to France if he thought THE QUEEN v. WILLIAM SMITH O’BRIEN. 557 fit ; and unless lie lias committed some crime with reference to this speech which the Attorney-General next relied on, his not having been convicted by a jury rather makes in his favour in the consideration of this tribunal. Gentlemen, Mr. Attorney- General relied on some observations respecting France, made by Mr. O’Brien in this speech, which 1 now hold in ray hand, at the Confederation on the 15th April, 1848. It is the second speech which was given in evidence, and which I believe was not prosecuted for sedition. I do not know whether the speech which was prosecuted, and on which the Attorney-General failed in obtaining a conviction, or the speech which was not prosecuted, contains most treason. That is a nice point to decide. One speech is prosecuted as seditious, a jury will not convict, and that is evidence of treason. Another speech is printed and published, and lies in the hands of the Attorney- General for several months, is not prosecuted at all, and that is more treasonable still. This speech was delivered at a soiree by Mr. O’Brien, in the presence of a number of ladies and gentle- men, in Dublin — I beheve it was at the Music Hall. I have to mention to you, that to this place all sections of repealers — moral force, physical force, and every class — were admissible. I say the text of this speech is, that force is not to be resorted to until the will of the whole nation is ascertained, when the right is justifiable and confessed to exist. Of course the Solicitor- General in reply, will controvert that doctrine if he can. Here is the speech — “ Mr. Chairman, ladies, and gentlemen, — Often as it has been my lot to address meetings of my fellow-countrymen, with sentiments of pride and satisfaction, I can truly say, that on no former occasion have I met an assemblage of Irishmen with so much exultation as I feel to-night. I have this day taken out my patent of nobility. It was presented to me in the bill of indictment brought against me by the English Govern- ment for loving my country. Proud indeed am I to enjoy the privilege of having my name ranked amongst those who have been exposed to suffering for having espoused — for having, however feebly, endeavoured to sustain the rights of this my native land. In that beautiful emblem which you have presented to me ” The ladies, I believe, presented him with a flag. That ought to have been laid as an overt act. I am flattered by the appellation of being the truest patriot of Ireland. I take the liberty to reject that compliment. I tell you there aro thousands of men as true in their patriotism as myself; and I tell you more, that I should despair for this country, if I did not feel assured that such is the case. The liberties of a nation are not to be w'on by an individual. It may be his pride and privilege to set an example to his countrymen ; but unless there be others ready to follow his lead — if there be not others to take his place, in case he should fall — then I tell you that you have no hope of achieving the liberties of this country. 558 SPECIAL COMMISSION, CO. TIPPERARY. But, gentlemen, I see a spirit rising in this country, wliicli I believe nothing can subdue. I did fear — within these last two years I have more than once feared — that the ancient spirit of this land was altogether extinct, and that Irishmen had forgotten the attribute of manhood ; but I see now rising a spirit which nothing can quell — a spirit that must subdue and overpower every force that can be brought against it.” JYow may I ask you, what you think, quietly and temperately, of a prosecution for treason made out by such language as this '? Every word I have read for you from the writings of Foster, Coke, and Hale, apply to such evidence as this with ten-fold force. This speaker must have intended to express the sentiments which are commonly used in society in ordinary speeches. I complain that the Attorney-General did not point out to me distinctly, the paragraph wherein the treason lay, and that he sliould call on me to explain that it was not treasonable, which is the exact converse of the principle of law. Well, then, Mr. O’Brien begins again — “ Gentlemen, on my own part — my fellow-deputies will speak for themselves — on my own part, I thank you for the address which you have presented to us on our return from France. I am rejoiced to find that you do not participate in the opinion which is vaunted, but not felt, in England, that our mission to France was a failure. For my own part, to me every circumstance connected with that mission was a subject of satisfaction. From the moment I landed on the French shores, I found myself surrounded with circumstances tending to animate and sustain the spirit which prompted me to resort to France in your name. We were talking, at our last assembly in the Confederation, ” That is the speech we have just noticed. of the formation of an Irish national guard; and I confess to you that my spirit bounded, when I had the satisfaction of landing at Havre, to witness a review of the National Guard of that district, amounting to not less than sixty or seventy thousand men, — men who, on ordinary occa- sions, were engaged in all the duties of citizens, but who, upon the day I had the good fortune to see them, appeared in as proud a military array as ever I witnessed in any country. Some of them, indeed, were not clothed in the habiliments of war ; the greater number of them were equipped, at their own expense, in a style that would have done credit to any regiment in the service ; but throughout the whole band there was a sentiment of manly dignity, arising from the possession of those arms which ever ought to guard a freeman’s laws.” There is nothing more distinctly and unqualifiedly admitted than that right, not only in our books, but in the opinion of one to whom I have already adverted. “ With respect to our reception by the provisional government of France, it is fortunate that that reception has been able to satisfy both the English Government and us. I am told that the government of Ireland has condescended to send round to every police station in Ireland, for the purpose of being placarded, the reply of Monsieur Lamartine to the THE QUEEN i;. WILLIAM SMITH O’BRIEN. 559 Irish deputation. I congratulate the great British nation on the magnani- mity with which it teaches the people of Ireland to look to the opinions of foreign ministers as the dictum on which their faith shall be determined. Now, with respect to that reply, I have no hesitation in saying, that Monsieur Lamartine could not have sj)oken in other terms than he did without placing France in a position of direct hostility to England; and under the circumstances of France, as he himself said, his lips were sealed with respect to the expression of the ulterior sentiments which were felt by him, by every Frenchman, in regard to this country. But having had the good fortune to receive attentions from Lamartine and the other members of the provisional government, I am enabled to say, that they sympathize fully with the sentiments of the French nation in regard to this people. We did not go to solicit armed succour. Cer- tainly I at least was not the bearer of such a message.” INow, this is the evidence on the part of the Crown. You will be good enough to recollect that the Crown avows and declares its obligation to make out a treasonable intent somewhere lurk- ing in the speech. If we were at war with France, and there was an offer made of giving assistance to France, you could understand what they meant by referring to this speech. If they meant to say that succour was sought by Mr. O’Brien from France, for the purpose of invading this country, here is a dis- tinct, positive declaration, in a speech they rely on to prove it, that no such thing was solicited by Mr. O’Brien. This is what he says he did — I bore an address of congratulation to the French people, testifying our satisfaction — the satisfaction which we felt in the accpiisition of their liberty; and I did say in that address, and I said it in private to every man I met, the Irish nation valued the friendship of the French. If we had asked for armed succour, it is perfectly manifest that the French government, as representing the French nation, under its present circum- stances, wdthout even the formation of a regular government, would not have been justified in giving any definite answer to such a demand.” I have to apologise for reading this, but I cannot help it. I am searching for the crime, which somewhere or other the prose- cutor tells me lurks in this speech. And he says, I shall find the very treasonable intent of compassing the Queen’s death, and levying war within the realm, in a dark corner of this speech. Well, he goes on — “ But, gentlemen, from the time I landed in France to the time I left it, I found but one unanimous feeling towards this country. There was, indeed, a lurking feeling displayed by many, that we had not exhibited as much courage as had been shown by other nations, which were suffer- ing less acutely than ourselves from misgovernment; but at least there was this feeling, that the French people recognise the Irish nation as a kindred people to themselves — congenial in their feelings, in their habits, in their sympathies; and that making every allowance possible for the 5G0 SPECIAL COMMISSION, CO. TIPPERARY. peculiar difficulties with which we are surrounded, they feel the most intense desire to witness the liberation of this country.” Suppose a man says that the French feel a great desire to see the restoration of Ireland, is that treason ? Suppose a man says he wishes to see the restoration of liberty in Naples or Rome, is that treason ? And suppose Mr. O’Brien says, there was a strong feehng among the inhabitants of that country towards this, does that prove the treason alleged in the indictment? I do not know wRether this sentence will he observed upon, but I will read it : — Among the incidents that occurred during my stay in Paris, it may perhaps not be unacceptable to you to know that we had the pleasure of meeting one whose name carries with it no small portion of respect in this country — one of those who unfortunately failed in ’98 — but who, at the age of eighty-five, retains as genuine a feeling of patriotism, as ardent sympathies for this country, as any youth of twenty amongst you — I mean General O’Connor.” Now, Arthur O’Connor was a very ardent man, and made one night, in the Irish parliament, a speech, such as was never made before or since. He left this country. He was seized in England. He was tried for high treason, and acquitted — I do not know what his fate would have been if he had been tried in Ireland — but he got to France, has lived there ever since, and being of the age of eighty-five, Mr. O’Brien speaks of him and says, I admit, that he “unfortunately failed in ’98 but whether that was in the proposition he made to the Irish parliament is not stated, for he did not take the field in this country ; and long before that event broke out, he was tried in England, defended by an eminent gentleman, and acquitted. “We had the satisfaction, also, of meeting no inconsiderable number of Irishmen, who had been resident for some time, engaged in profes- fessional and other occupations, in France; who feel towards this country an affection which has only become more intense, in consequence of its being connected with the feeling, that they are involuntary exiles from the land in which there has been no sufficient scope for those energies and powers which they possess.” That is, there are a number of Irishmen pursuing various pro- fessions in Paris. Spell treason out of that if you can. “ And believe me, if ever it should become necessary to vindicate the rights of this country by an appeal to ulterior proceedings, that you will find flocking into you from every part of the world, Irishmen imbued with sympathies for this land, as warm and as afiectionate as any you can feel yourselves, and perhaps possessed of a greater determination and more accomplished skill than any of us possess.” Now, gentlemen, recollecting what I have told you, that words are no proof of treason — speeches are no proof of treason, and that THE QUEEN y. WILLIAM SMITH O’BRIEN. 561 they are never to be relied on for that purpose, I wish to ask you if a public speaker says, in this country, ‘‘ if an ulterior proceed- ing should be necessary,” are the jury to infer that that necessa- rily means treason? Well, then, he uses words which may or may not be seditious — I do not care whether they are or not. It is the sentence in which he says — “I took the liberty, and it is right, in justice to my friend, that I should throw on myself the cause of his absence to-night — I took the liberty of suggesting to my friend, Richard O’Gorman, who was one of our deputation to France, that it was desirable he should remain in Paris for a few weeks, at aU events, until the trials should take place. I did so, in order that we might have amongst us one who should perfectly know all the resources which are available at Paris. I think we can promise for him, that his time will not be wasted in frivolous pursuits in that city, in that metropolis of pleasure. I believe he has already com- menced his military studies. He has had the good fortune to make the acquaintance of some very able men, and very brave men, natives of this country, who are at present in the national guard of Paris. He has had the good fortune to make the acquaintance of several distinguished Irish officers in the French army. He has had the opportunity of being placed in communication with several of the leaders of the democratic clubs in France; and if he should think it desirable, he is able to present himself at any of those clubs to awaken the sympathy of the Parisian population in favour of this country.” That the gentleman was so received I do not know whether it is true or not ; my only concern with it is to see how it applies to the purpose of the indictment, and that I cannot discover. Then he says — “ I think I have said enough to show you that the counsel which I o^ve him, that he should remain — in which opinion I beg to say, all the mem- bers of the deputation unanimously coincided — a few weeks at Paris, I think I have shown enough to satisfy you that that advice was not alto- gether misapplied. And now I trust you will allow me to add, for his benefit and instruction, some additional advice on my part, which is, that he should take care not to commit himself in any way that should place him within the power or operation of the English Government.” That is, he is not to do any one act of such a nature as to enable the law to lay hold of him. There is no necessity whatever for sacrifices which produce no result; and amongst your ablest and most efficient men I regard Mr. Richard O’Gorman, jun. I therefore trust he will not come home to be put up into prison on his arrival.” Then he says he had been charged with the utterance of certain sentiments, reputed to be seditious by the members of the British Government. He says he felt it to be liis duty to give the House of Commons a fair opportunity of judging whether those speeches were seditious : and he says that he was received in a very violent 2 o 562 SPECIAL COMMISSION, CO. TIPPERARY. manner. He then describes the Treason Felony Bill, which says that a man, by “ open and advised speaking,” may be found guilty of felony. He says — “ It is right I should add, that I am informed by lawyers, that one of the effects of a conviction for felony is, that the person so convicted for- feits whatever property he possesses.’^ Then he makes this very sensible observation on that — “ Now, I have no hesitation in saying, that if that law had been in force, and had been enacted in 1831, at the time of the passing of the English Reform Bill, Lord John Russell, Lord Stanley, Lord Eitz william, and almost all the other leaders of the reform party of that day, would have been liable to transportation for life. But be that as it may, the question I have to ask you, gentlemen, and the rest of my countrymen, is this, whether they will allow this great national effort to be put down even by such a bill as that ] Speaking in your name, venturing to speak on the part of no inconsiderable portion of the population of this country, I told them ” I That is, the House of Commons. ‘‘ that they would laugh to scorn that bill. And now I want to know whether there be spirit enough amongst you — whether there be spirit enough amongst my fellow-countrymen to render the practical execution of that act impossible ? They may indict an individual for felony ; but I think it is utterly impossible, if there be an indication of manly spirit in this nation — I believe it to be utterly impossible for them to indict the Irish nation.” That used to be a favourite phrase with the late Mr. O’Connell. “ Bo I then, when I counsel you to meet legislation of this kind by determination of the boldest character — do I counsel you to rush into a precipitate and foolish conflict ? Ear from it. Have you read the last article in The Times ? They absolutely go the length — the writer goes the length, of calculating on our precipitation, as the necessary result of those inflammatory harangues which some of us are supposed to be in the habit of addressing to our fellow-countrymen in the peculiar position which we happen to hold as the leaders of the Irish people. Now it is perfectly manifest, that nothing is so much desired by the government of England, and by aU those who abet that Government in its iniquitous domination in this country, as that the people of this country should enter into a premature conflict with a power which they fancy has at this moment a means at its command of effectually repress- ing the public sentiment. Let us beware how we realize those their wishes. We have still much to accomplish. Eirst of all, the grand desi- deratum, which must be the basis of all our national exertions, has not yet been fully attained — I mean the union of the repealers of this country. I see indeed in this meeting to-night, at which I believe there are at least as many of those who are followers of what is called Conciliation as mem- THE QUEEN v. WILLIAM SMITH O’BRIEN. 563 bers of the Confederation (yes, yes,) — I see in this happy union to-night — I see in similar institutions in all the great towns in the country, in Kilkenny, in Cork, in Limerick, in Waterford, in Galway, in Newry, in other portions, in Belfast — I see a full intimation, that the period is not far distant when all the repealers, let the leaders say what they please, when the Irish people, when the repealers of all classes and sections, putting aside this leader or that leader who will not lend himself to the national sentiment — I see a full intimation that the time is not far distant when that happy union, fraught with blessings to this country, shall be fully accomplished. God send that that day may not be far distant. But there are also other indications of a character still more cheering than the union of those who have been recognised as adherents to repeal. I mean the fraternization of those who have hitherto been opponents to us. Can any one read without ecstasy the proceedings that took place the other day at Drogheda 1 If I am not misinformed, the Protestants of that town intimated to their Catholic friends that it was not desirable that they should even present themselves at the meeting which was to be held for the purpose of considering the union of the country; but that the manifestetion there, to be made in favour of repeal, should be unequivo- cally and spontaneously addressed to the country, as the sentiments of the Protestants of that part of the country. Happy, happy, indeed is the omen — that from the very seat of those former feuds, the very spot on which now rises a monument to commemorate a battle, where Irishmen were separated from Irishmen ” That is, the statue of William on the Boyne. “ that on that very spot, these very scenes fraught with the memory of past strife, this fraternity should commence, and that Irishmen, Orange- men and Catholics, should meet by the side of the Boyne, to mingle in blessed union for the sake of their common country. Am I misinformed when I am told that a similar movement is in progress in Dublin, and that we may expect, within a few days, a manifestation of the Protestants of Dublin in favour of repeal ? Upon that subject I will say nothing. Perhaps words from me, considering the position which I have held, may tend rather to prevent than to facilitate that union. But I am quite sure that there is not one man present here, there is no Catholic especially here, who will not be prepared to give to his Protestant fellow-country- men in this metropolis every guarantee that men of truth, and honour, and virtue, and courage can give, that for their own sakes, and for the sake of the country, the Protestants of this metropolis should at last awake to their true interests ; should save themselves and their country from the ruin which now menaces it, by uniting with us in fraternal union, which they never shall repent of.” Then he advises that they should unite the orange with the green. He says, in conclusion — “ There are, I am sorry to say I have heard it upon evidence which I cannot question — there are in the country many who suppose that our object, and the object of those who participate in this great national movement, is not to attain great national rights — not to obtain the power of legislating beneficially for all parties ; but, under the pretext of repeal, to make that agitation, ” 2 o 2 5G4 SPECIAL COMMISSION, CO. TIPPERARY. Mark this — • “accompanied as it may possibly be by the exercise of force, an instru- ment of pillage, and a means of promoting social anarchy. I believe that sentiment is utterly without foundation. If I thought there was a single mail in this assembly who entertained such an opinion or desire, I should ask him to come forward, in the name of manhood, and to state his views here, and allow us to know upon what sentiment of public duty, upon what hope of public benefit, such intentions were founded. I should encounter him The man who recommended this violent course. “as the worst enemy of the country; and I should have no hesitation in saying, that the sentiment of every man who is engaged in this great national efibrt would be that of unqualified condemnation of any such attempt. Therefore, I say, that these fears are utterly without founda- tion, and that these apprehensions are unworthy of those who indulge in them. And now, having asked you to do all in your power to promote that essential union, which must be the foundation of all our national exertions, I am here to remind you, that a large portion of this assembly at least is pledged to the carrying out of certain measures, as a portion of the national policy of this country, and among these is the formation of a national guard — an army of volunteers of 1848.” Now, it is quite manifest — I have observed on the words “ national guard” — that the thing in Mr. O’Brien’s contemplation here was a repetition of the scenes enacted in Ulster in 1 7 82, when an army of volunteers existed. And, gentlemen, I may just make the observation in passing, that no counsel will tell you that the existence of a body of men with arms, occasionally appearing in arms in processions, marching with flags, guns, bayo- nets, and muskets, necessarily constitute high treason. If so, there is a very large section of my respectable fellow-country- men, called Orangemen, who will all he sacrificed on the scaffold. I do not speak of it tauntingly — I saw in one place, on the 12th of last July, 7,000 men in procession, and by one gentleman was seen on that day 40,000 men. If, therefore, the meeting of men with arms, every man wearing a handkerchief, and not a scarf, having exhibited on it King WiRiam on a huge black horse cutting down his enemies — if meeting frequently and constantly — if the possession of arms would be proofs of a conspiracy, then the Orangemen of the north are traitors. Now what Mr. O’Brien adverts to here in speaking of “an army of volunteers of 1848” is manifestly alluding to a re-constitution of the volunteers of 1782, who were the instruments of such blessings to their country. Now, observe the wrong-headed man who wishes to trample down a portion of his countrymen ! He says — “ I do not regret, I confess, that the Orangemen of the North are obtaining possession of arms.” THE QUEEN i;. WILLIAM SMITH O’BRIEN. 565 Because he is consistent with his principle, which is, that every man has a right to the possession of arms, and that was the principle of our Constitution. “I do not regret that certain of the southerns are obtaining possession of arms. I believe it to be the right of every Irish citizen to possess arms ; and I am quite sure that the country will be much more respected by England, and by mankind in general, when every Irishman possesses arms/’ AYell, there is no doubt of the propriety of that sentiment, or, if not its propriety, its legality. Now, he speaks of the conduct which The Times says was to afford them a precedent for carry- ing the Reform Bill in 1831 ; and he says, if the verdict had gone against him, he would have submitted and gone to prison in vin- dication of the law. “ I can only say, generally at the present moment, that I think it necessary that in each district of Ireland there should be discovered a list of those who are willing, in the face of day, and in the presence of the authorities, to indicate if it be necessary, to Sir George Grey, or Lord Clarendon, their intention, should the circumstances of the country require it, to appear in a given day in arms.” Then he compliments the ladies and gentlemen who gave him the flag, although he may be in a few days confined within the walls of a gaol. The discovery of the treason here is extremely nice. You see he expected he would be perhaps in gaol in a few days, and that is urged as proof that he contemplated a rising. It would be physically impossible that he himself could rise, but that he expected to be in gaol they say is evidence of a treasonable intent then to levy war, and to break out into an active con- spiracy against the Queen, to compass her death. Then he speaks of the Volunteers, and the National Council of Three Hun- dred, which is only a stale repetition of what O’Connell proposed. He then talks of endeavouring to coalesce with the late Concilia- tion Hall party, and says, that there are several persons of that class present, and he then exhorts them to abstain from entering into secret societies. He then declares that he never would be a party to any proceeding which he could not be prepared everywhere to justify. This is the evidence for the Crown. This is the criminahty established on the part of the Crown against the prisoner on trial for his life — he never will be a party to any proceeding he is not prepared to justify. And, therefore, it is I give my unaffected but very humble advice to all who hear me, and all whom you can influence, to abstain from entering into any of these secret associations.” He then says, that he would wish all who are engaged in the attainment of legislative independence for Ireland — this is cer- 566 SPECIAL COMMISSION, CO. TIPPERARY. tainly very vicious, and it is evidence of some crime or other ; whether it be treason or not I submit to your better judgments — ‘^should abstain, until that object has been achieved, from the use of all intoxicating liquors.” In the annals of the criminal law there is no instance where such a speech as that has been read against a man on trial for such a crime as this. Then he alludes to the atrocious conduct of a man when drunk, screaming about the streets, “pikes, pikes,” and condemns it because it would bring him and the repeal party in disgrace with the whole nation. There is then this passage, which I believe I may pass on to : — “ Another suggestion which I have to offer to the country is, that the peasantry in the country, even the humblest of them, should make pre- parations for the effective tillage of the land during the ensuing year ; and that they should endeavour — I am not sure whether the word is what they call ’legal’ — that they should endeavour to provide, before next August, what is called ‘a good commissariat.’ Now, I have to apologise for taking the liberty of acting as a sort of public instructor on the present occasion. I have no pretentions to eloquence. I leave elo- quence to my younger friends ; and inasmuch as I have the advantage, such as it is, of having a little more experience in years, all I can tell them is, that I never hear a dazzling sentiment expressed in beautiful language by any one of them, without feeling as proud on its utterance as if it was delivered by myself. I will ask you, before I close, to extend to me your indulgence and sympathy. I feel that I am placed in a position of great responsibility.” Then he isays — “Now I confess, with reference to a speech I made last Monday, that I displayed an arrogance which I hope was unusual with me.” Then he goes on — “ I did venture to tell the House of Commons, feeling I was sur- rounded by men whose lives had been devoted to obtain pre-eminence for themselves and their party — who have resorted, when they have been out of office, and when they have been in office, to expedients calculated to mislead the public as to their real intentions, for the purpose of securing to themselves those opportunities of distinction, of place, and of patronage, which are within the range of public men — I did venture to tell those men that I felt I was their equal in point of good intentions — I might have told them, I believe, that I was their superior.” He told this to the House of Commons ; and I must say that I would not be surprised at the gentlemen of that party feeling very much offended with the observation. He does not feel offended with them for that. I would complain of them treating him as a traitor. ' “ When these men talk to me about a desire of notoriety I tell them THE QUEEN WILLIAM SMITH O’BRIEN. 567 that I act advisedly, that I entered into this struggle having nothing to gain — personally speaking, nothing to gain and much to risk — that there was no object of legitimate honour which I might not have been entitled to aspire to, through the ordinary channels of distinction, if I had not preferred to sacrifice myself for this country (loud cheers). And there- fore, when Judge Crampton endeavours to raise a prepossession against me in the minds of the jury by acting as a partisan for the Crown — as counsel for the Crown, instead of being, as he ought to be according to the constitution of this land the counsel for the accused — I fling back the charge ; and I tell him that my motives, in every action of my life, have been, and doubly so are now, as pure as any that ever animated his bosom. Gentlemen, I think I am enabled to assure you, that if the present Government and their emissaries in this country — those unhappy Irishmen who make themselves the tools of a foreign Government — that if they should succeed in consigning me to a dungeon, that they will not subdue that spirit which has induced me to take a part in your pro- ceedings here to-night. I hope I shall be enabled to assure them too, that they shall not succeed in crushing your spirit, or the spirit of this nation. At all events you may rest assured of this, that whether I be in prison, or whether I be at large — whether it be my fate to enjoy the good-will and affections of my fellow-countrymen, or to labour under the pain — and pain it always has been — of suffering their disapprobation, that my fondest affections shall ever be given to this people. Truly do I adopt the beautiful language and sentiment of one whom I am sure you will not think the less a patriot, because he happened to be a clergy- man of the Established Church ; and I may, perhaps, end this feeble address by lines of no ordinary beauty, espousing them as the sentiments of my own heart : — “ ‘ Oh, Erin ! oh, my mother, I will love thee, Whether upon thy green Atlantic throne Thou sitt’st august, majestic, and sublime ; Or on thy empire’s last remaining fragment, Bendest forlorn, dejected, and forsaken — Thy smiles, thy tears, thy blessings, and thy woes — Thy glory and thy infamy he mine.’ ” I suppose, gentlemen, the treason is in the quotation. Now, I am obliged to the Attorney-General for reading that speech to you ; and why am I obliged to him ? I do not speak tliis in the language of disrespect ; it shows the conviction of his mind, that his case, without these speeches, was feeble and unsustainable ; because, if he had a clear and strong case to make out by independent evidence on the table of acts done, he would never weary the Court and jury by giving in evidence long speeches made months before the transactions in this county, except he hoped, by extracting from those speeches a meaning they do not bear, to induce you, contrary to justice, to misapply the language used by the speaker at a different time, for a different purpose, with a different intent, and under altered cir- cumstances, to the acts which occurred atKillenaule orBallingarry. Gentlemen, I have now, before I usher in this last speech that was relied on by the Attorney-General, to explain to you what, 568 SPECIAL COMMISSION, CO. TIPPERARY. in the intervening time, took place. The Confederation ceased to exist. The great discussion between it and Conciliation Hall was brought to a close by a combination amongst the members of both associations. They agreed to form a new association, which would combine the members of both upon a common principle ; and out of that agreement sprung the association of which you have heard so much, called the Irish League. The Confederation ceased to exist in June — about the 21st of June. The council of the Confederation existed for a few days after- wards, to wind up its affairs and settle its accounts. In point of fact, it existed tiU the first week in July ; and thenceforward the association to which Mr. O’Brien belonged, in which he took a prominent part, and where he spoke the speeches relied on by the Attorney-General — particularly this speech of the Irish League — thenceforward the Irish League was the common ground on which aU parties of repealers met — those who were for moral force, and those who were for physical force ; but all agreeing in carrying out the question of repeal. There were also bodies of men called clubs, of which you have heard. There were local associations of different persons scattered over the towns and the metropolis ; and their work was to act separately and apart from the League. They had existed for some time. It was broadly asserted in Dublin that their object — in particular marking them out, contradistinguishing them from the Con- federation — was, by anarchy and civil war, to accomplish the repeal of the union, and to destroy property. The presidents of these clubs, and persons interested in them, resolved to hold a meeting, of which I will presently speak, considering and debating the question of passing public resolutions to be given to the world in the papers. Accordingly, on the 15th of July, a meeting, which you may remember to have heard of by the witness, Dobbyn, of persons connected with the clubs, was held in D’Olier-street. Having accomplished the object they had in view, they passed the resolutions, which were signed by the pre- sident of every club then existing, or known to exist in Dublin ; and those resolutions were published the next day, in the very next numbers of the papers. I call your attention to the avowed, open, public resolutions moved by Mr. O’Brien ; and always applying the sensible rule laid down by the Court in the case I before adverted to, that where a man publicly announces his opinions in a club or society to which he belongs, it is with the responsibility of those opinions he is to be fastened, or by which responsibility is to he fastened upon him, and not things said or done by other persons over whom he has no control. Gentlemen, a resolution was there moved by William Smith O’Brien, Esq., M.P., as follows : — “ The systematic efforts made by writers in the pay of the British Government, to cause it to be believed that the repeal clubs of Ireland THE QUEEN i;. WILLIAM SMITH O’BRIEN. 560 are organized for tlie purpose of pillage and massacre, and for the over- throw of religion and social order, render it expedient that we should define the real objects of the club organization; be it therefore resolved and declared ” This is their public avowal of their opinions. that the purposes and ends of our organization are the overthrow of the power of the British legislation in this island.” Nobody would venture to hint to you that there is proof of treason in that. If he did, you would not pay the least attention to his opinion. Next — “ That while we are firmly resolved to abstain, in our political capacity from any interference in matters of a religious or sectarian character, we are not the less desirous that religion should be upheld, and the legiti- mate influence of its ministers maintained in its integrity.” Now, what does that avow? That so far from desiring a violent and irreligious outbreak, the contrary was to be desired ; and that the legitimate influence of religion should be maintained in its full integrity. “ That so far from desiring to overthrow social order, and to subject our country to universal anarchy, our first anxiety has been, and is, to secure the legislative independence of our country with the least possible injury to any class of its inhabitants; and in the accomplishment of these, our designs, we hope to put an end for ever to the sufferings and the disorders which have never ceased to afflict our people under the sway of Britain.” Those are the resolutions, and they are signed by Mr. Dillon, and various other members of these clubs, amongst which there is no such club mentioned as “ The Red-hand Club” of which, at another time, I will speak. Now, these resolutions were published, and it will be proved to you they were published, at that time, as the acts and announcement of the principles of the leaders of these clubs. Mr. O’Brien was not a president of any one club ; he did not belong to any one club, although he was at the meeting that night, when these resolutions were debated, and moved them. I submit to your better judgment there is nothing contrary to law or good sense in them. Gentlemen, I have mentioned what occurred on the 15th. There was a day meeting of persons connected with clubs to consider what they ought to do in reference to the proclamation of the Lord Lieutenant with respect to arms ; and a resolution, as it was stated by the person who appeared on the table, on the 19 th, was passed in favour of what he termed “passive resistance’* On that same 19th, the Attorney-General professes to prove to you, and I admit the propriety of his proof, that on the eve of this transaction, of which he complains, Mr. O’Brien, une- 570 SPECIAL COMMISSION, CO. TIPPERARY. qulvocally and distinctly, in the speech of the 19th of July, delivered in the League, estabhshed his guilty treasonable intent, and committed the very treason averred in this indictment. Now, observe the title and the date of this speech. It is — ^‘Meeting of the Irish League, Music Hall, Ahhey-street, July 19, 1848.” At another stage of this case I will call your attention to the sentiments of this speech. If you believe the evidence of the Crown it is utterly impossible — as the Attorney-General has asked you to believe this speech — to believe that the treasonable intent existed in the mind of Mr. O’Brien, which the Attorney- General argues did. And remember the principle to which I drew your attention — no man is to be reasoned into treason ; no man is to be argued into it ; it is not to be made out by inference or conjecture ; it is to be proved, in the words of Lord Coke, “demonstratively.” Mr. Smith O’Brien begins the speech in this way : — - Mr. Chairman, I have been honoured by a request, that I should pro- pose, as members of the Irish League, the reverend gentlemen whose names I am about to read — the Rev. Richard Ennis, the Rev. Charles Grady, and John Martin, of the City-quay.” Now, the fact that clergymen of respectability and character of the Roman Catholic church should personally direct Mr. O’Brien to propose them as members of this League, shows very clearly that it is a perilous doctrine the Attorney-General is contending for, which, as I understand it, is this, that all the members of this body were then engaged in a treasonable con- spiracy ; and if they were all engaged in a treasonable conspiracy, and afterwards if any three or four of them broke out, all are guilty of treason ; for the act of the three or four is the act of the whole in carrying out the common intent of the conspiracy ; and, therefore, these two respectable clergymen are conspirators, but there is not the least chance of their being prosecuted for treason. The speaker next proceeds to say — “I have also been requested by Mr. John O’Neill, of Cork-street, to move that he be admitted a member. “And now, gentlemen, I was under the impression that I had during the last fortnight experienced about as intense excitement as an indi- vidual is capable of receiving, from meeting large popular assemblages in which he has the good fortune to be greeted with the enthusaism of a hearty welcome ; but you have outdone to-night all that I have witnessed during my recent excursion. It may be satisfactory, however, to you to know that your feelings are shared by men in the most remote parts of this island. It is now a fortnight since I left home, and during that period I have visited the county of Kerry, and the western portion of the county of Cork ; and I have found in those remote regions as intense an ardour, as patriotic a devotion, as that which I witness here to-night.” I suppose — I am only guessing, for Mr. Attorney has not THE QUEEN i;. WILLIAM SMITH O’BRIEN. 571 explained — that what he meant is, that this declaration is evidence that he traversed the country for some criminal purpose. But it is in exact conformity with the theory on which he was acting. It is that of associating and confederating for the purpose, by a great combination of individuals, to carry out his object. It is consistent with the very thing he had avowed, and if so, it is impossible to make it out to be criminal. He says — “ Shall I add as stern a determination? I am authorized to communicate to the people of Dublin that the men who dwell in that portion of Ireland which has suffered perhaps more than any other from the disastrous effects of misgovernment acting upon a visitation from Providence — I mean the district about Ban try — that the men of the west of the county of Cork are prepared to co-operate with you in every endeavour you may undertake. At Berehaven, the nearest point to America, I received similar assurances.” Now, saying that Berehaven is the nearest point to America is not treason ; it is a geographical fact. At Bantry, at Macroom, at Killarney — in short, wherever I passed, there appeared to be but one unanimous feeling, that the time was come when one great and simultaneous effort was to be made by the Irish nation to accomplish its freedom.” Will the Attorney- General argue that to say that the time was come when one great and simultaneous effort should be made, in order that the Irish nation should accomplish its freedom, is proof of treason ? What was the policy of the late Mr. O’Connell ? Simultaneous meetings were held over the whole of this country. Mr. Wyse has written a history of the Catholic Association ; he describes the process of a great simultaneous meeting ; he says it was the happiest invention that ever was dis- covered to obtain freedom for the Roman Catholics ; and if it was, it is not ground on which to convict Protestants of treason. There is a phrase here that is very wicked. “I hope you have read an account of the proceedings at Cork. That is, the Government press, I suppose. “ call it a review of my troops ; but I am happy to assure you that I met two thousand men as well arrayed, as capable of efficient action, as any troops in her Majesty’s service ; and I met at least ten thousand able-bodied men who promised to support and sympathize with them.” Now, supposing he had said this, “ I had a greater assemblage of men at my meeting than were at the battle of Waterloo,” would you find him guilty of treason ? That used to be said to my knowledge every week of my life. I have all the speeches on that subject in court. Mr. O’Connell was in the habit of saying daily and hourly, and no Attorney- General ever presumed 572 SPECIAL COMMISSION, CO. TIPPERARY. to dispute his right to do so, that he had a greater number of men at those monster meetings than won the battle of Waterloo, and that he could bring an army of brave-hearted Irishmen together, and so forth. And this observation of Mr. O’Brien was not his own ; it was but saying, that persons who commented on the meeting he was at, called it a review of his troops, which is a general figurative expression. The whole of this was based on the doctrine laid down by the Whigs, inculcated ever since, practised in the country for the last twenty-five years, of obtaining every thing through the medium of physical force demonstration and agitation. Surely we all know that. It is not high treason ; it has become the practice, if not the law. I do not think our ancestors ever thought of that doctrine which has sprung up within the last twenty years. When I was in college my greatest enjoyment was to pay a shilling to go into the Catholic Associa- tion and to hear Mr. Shiel speak. But this is the most innocent of the speeches I have read for the last twenty years ; therefore, it has been selected by the Attorney-General for Ireland to make out a case now, after aU that has passed in this country, of high treason. “Observe, I do not wish to speak of the troops in her Majesty’s ser- vice as opposed to the men whom I met in Cork. I have had the satisfaction of being welcomed by many of my countrymen who wear red coats also during this excursion. And now, gentlemen, I have just returned this very day from an excursion into the county of Meath. On Monday last I had the pleasure of meeting a very large assemblage of the citizens of Drogheda — an assemblage comprising all classes of the inhabitants of that town and individuals belonging to all creeds ; for Drogheda has the good fortune of presenting the example to the rest of Ireland of being the town in which religious differences no longer produce any difierence in political opinions. I am authorized on behalf of the people of Drogheda to tell you that wheneveryou call for their co-operation, that co-operation shall not be withheld. From Drogheda I proceeded to Navan and I was introduced into the town of Navan by as well-organized a club as any in the kingdom, or rather by two clubs numbering about five hundred men. I had the pleasure of addressing in the vicinity of Tara ” A significant name. “a very large multitude at Navan, who appeared to me to be animated by all the enthusaism which was exhibited at that glorious epoch in 1843, when the Irish nation as it were assembled on the hill of Tara. From Navan I proceeded to the ancient city of Trim ; and there too, I had the satisfaction of meeting an extremely well-organized club. I therefore, have the advantage of coming to meet you with the assurance that you are not alone in this great movement. And now you must not expect to hear from me any exciting topics here to-night. I am fully resolved not to bring myself, if it be possible, within the operation of the Felony Act.” Now the speaker avows, at a public meeting, his intention of not THE QUEEN i;. WILLIAM SMITH O’BRIEN. 573 bringing liiinself within the treasonable Felony Act. I have the act, and it is just worth mentioning, that it enables the Crown to prosecute what is now called a treasonable felony, which before might be treason, except that it commutes the punish- ment from death to transportation for life. It enables a prose- cution to be instituted for open and advised speaking. But when the act was passed there was a great discussion in Parliament as to aUowing a man to be prosecuted for mere words under this act for felony. It was very hotly debated, but it was ultimately agreed upon, and it is the law, that a man is not to be prosecuted for open and advised speaking, unless informations of the words by which he declares his criminal intentions are given within six days after. It was found to be so perilous to allow an infor- mer to report words six weeks or a month after they were spoken, that those who consented to it — and it was with great difficulty the act was got from the Legislature — insisted that an information should be sworn by the person who heard the- words within six days from the time the speech was spoken. That act was passed. Mr. O’Brien was liable to be prosecuted under it ; he avows his intention and determination is not to violate that law; that he will abstain from all exciting topics; that he will not bring himself within the provisions of the Treason-Felony Act; and that same speech, by some perversion of the human intellect, is made to be proof of the high treason charged in this indictment. The Attorney- General had that speech through his reporter six hours after it was made, and could have decided whether it would have brought him within that act or not ; he could have prosecuted him for it the next morning; he never prosecuted him for it under that statute ; he never called him to account for it; but he says it is proof to-day of high treason. When a man says, I will abstain from all exciting topics ; I will not bring myself within the operation of the Treason-Felony Act; is it likely that at that time, by the same speech, he intended to declare the intent to compass the death of the Queen, and to levy war against the Queen in her realm ? He proceeds : — I owe it also to the gentlemen who have entered into association with us to fulfil the pledge, by which I consider myself bound, on entering this Irish League, that we will, until we find all constitutional methods exhausted, through the agency of this League, unite with them ” In what ? “ in constitutional efforts.” Since the world began was there ever treason like this? The speaker says, I avow to the moral force repealers who come here I will keep my pledge. What is that pledge ? This is the evidence for the Crown. You are to convict on this evidence ; you are to take away the life, fortune, and all that is dear to 574 SPECIAL COMMISSION, CO. TIPPERARY. man, on this evidence. The Attorney-General could get nothing stronger, nothing better, nothing more favourable, nothing more convincing, or, believe me, those who rummaged the portman- teaus of my client, or fished out the private correspondence of young and brave-hearted friends, would have found better evidence, if they could, to get a conviction from a reluctant jury against the honest feelings of their nature. I condemn this evi- dence. I say it would not be attempted in England. I know it would not. What do a noble and free people care about an Attorney-General ? An English jury would not convict Hardy, would not convict Horne Tooke, on all their writings ; and after the judge told them to convict, acquitted them in eight minutes. Does Mr. Attorney-General think this will be endured by those accustomed to freedom in this country ? I say it is unconstitu- tional to drag such a speech into this case ; to pick out an indiscreet phrase, and call it treason. I must comment on it ; I must find out the treason if I can. I put it to the honest heart of every gentleman who hears me, whether he will take away the life of Mr. William Smith O’Brien because he has spoken more moderately, more temperately, more discreetly, than the men who have placed my learned friend — and I admit with credit to himself — in the office that he holds? [Here there were some manifestations of applause.] The Lord Chief Justice . — Any intimation of feehng, or breach of decorum, must be repressed by the Court. Mr. Whiteside. The next passage is — ‘^Now it is not necessary for me to re-argue this question of repeal. There is not one of you that has not had during many years abundant opportunities of listening, day after day, to arguments which have fully convinced your minds as to the necessity of seeking for this country the power of domestic legislation and self-government. But if I wanted arguments derived from the current course of events, I should find them abundantly in the proceedings of the present session. What do we see ? These Whigs when they were suppliants for power — when they sought to obtain your suffrages, and the aid of your parliamentary assistance, in order to row them into office, they were large in their promises of remedial measures which they designed for Ireland. What has been their fulfilment of these promises? We cannot forget the disastrous events of last year — the year ’47. But look to their conduct during the present session. They were invited almost unanimously by the Irish members to take into consideration the question of the poor law, with the view to see whether a more efficient system could not be established, on the one hand, for relieving the necessities of the poor, by employing in a profitable manner the population of the country ; and, on the other hand, protecting as it were property from the enormous pressure of the poor rates, which are now squandered without result. That appeal, by the overwhelming influence of British majorities, they set at nought and overruled. They have deluded us indeed with the promise of a fran- chise bill.” THE QUEEN t;. WILLIAM SMITH O’BRIEN. 575 Here is the revolutionist, the enemy of property, desirous of civil war, wishing to destroy the rich and to oppress the poor — guilty, moreover, of high treason in the opinion of the Attorney- General and the Whigs — here he is, saying he had struggled to get a good poor law, which would be good for the poor and useful for the rich, and when he struggled to get it in Parlia- ment it was refused. Well, that is set aside. It is treason, is it not, that any man should dare to question what is done by man? I remember an instance where I had the honour of appearing for the guardians of the county of Limerick, when displaced by strangers to the county, accompanied with disrespect to Lord Clare and Mr. Monsell, the whole body of gentlemen in that county resigned, until it was apologised for. Is a man not to complain of a law which is hard and oppressive on all of us? If these are the sentiments paramount in his mind on the 19th of July — if these are the opinions which he is then enforcing — if these are the topics which then engross his intellect and understanding — I appeal to you to say, is he at the same moment plotting high treason against the state, levying war against the Queen, intending to break out into ferocious revolu- tionary excess, and to deluge this country with blood ? I thank the xAttorney-General for that speech. He has mistaken the course that a great law officer of the Crown should take. A man is to be tried, not by consequences, but by the intent and purpose of his soul ; and, as he has made out that his intention was innocent on the 19th of July, it will be for him to estabhsh clearly to you when the treasonable intent laid in the indictment sprung up in his mind. I have done with the poor laws. Then comes the next instance of high treason — Irish treason that is. He says, with respect to the franchise bill, they have deluded us with promises. Is not that true ? They talk of it, that is what he says. “ I believe that this is the tenth session during which they have attempted to delude the Irish people with a similar promise ; and, be- lieve me, although they have on various occasions pledged the royal word, and made the Queen, at the opening of the session, hold out to her Irish subjects the belief that a franchise bill would be passed, that pro- mise, too, will be during the present session, as during preceding sessions, violated.” He contemplates what is doing and what is to go on during the then session by the party in power. During that session of Par- liament he undertakes to declare that nothing more will be done ; and the argument of the Crown is, that at that very moment his intent was a treasonable intent. He says — “ Then again, with respect to tenant-right, they bring in a bill pro- fessedly for the purpose of securing to the tenant his just rights. And what is the operation of that bill — which by the way has gone to sleep in a committee — been shelved in a committee ? The immediate and 576 SPECIAL COMMISSION, CO. TIPPERARY. direct effect of tliat enactment, if passed into a law, would have been to deprive those Protestant yeomen of Ulster, on whose support they are now relying, and whom they are endeavouring to array against their Catholic fellow-countrymen (vain will be their endeavour) — I say the effect of that law proposed by them would be, to filch away from the Protestant and Catholic tenantry of Ulster that tenant-right which they have been in the habit of considering as their property.” It proceeds and it rises in guilt as we advance. We have dis- posed of the poor laws, we have got to the franchise bill, and now we are at the very marrow of the charge — the tenant-right bill. Why, Mr. O’Brien need not give himself any trouble about the yeomanry of Ulster. They will not lose their tenant-right ; believe me they wiU not. Believe me the body does not exist which will take it from them. I agree in what was sworn by a witness before the Land Committee, the agent of a large estate in the north, that the British army would not take it from them. But it was an honourable thing for a man who was supposed to be concerned for people in the south, to give it as his opinion that the effect of a legislative measure about to be introduced, would be to strike down that which has raised the province of Ulster to prosperity, and the want of which, or something like it in principle, many thinking men say has left the south of Ireland in misery. And this is the revolutionary traitor ; the man then plotting the destruction of the State ; who is expressing patriotic sentiments for the benefit of all classes of the people in this country. I tell you that speech speaks trumpet-tongued on the part of my client. I tell you that if you look into his heart you would see he had no notion of killing the Queen, or establishing a revolution in this country. No, whatever else may have been his feelings, 1 do not believe you can find him guilty of that. Take it with you — read it — remember the cause — remember you sit to decide on the life of a subject of a free country — and then ask yourselves whether a gentleman, a member of the Imperial Parliament, for delivering that speech, should be sent to the scaffold ? If you convict him of treason on that speech, I tell you your names will go down to remotest posterity, stamped with eternal infamy. WeU, he goes on — “ These are their remedial measure. But what are the substantial enactments which they have placed on the statute book ? Nothing but measures of coercion. Under the pretext afforded them ” By what ? ^‘alas ! I regret that I am compelled to confess a pretext was afforded to them, by casual murders that took place in two counties in Ire- land ” That is, he condemns it. He says that did afford a reasonable pretext for passing a law which strips us all of our rights as freemen. THE QUEEN WILLIAM SMITH O’BIUEN. 577 “ they o}>tained a power of disarming the population. That poM’-er they are now applying, not for the purpose of suppressing outrage and murder, but for the purpose of depriving the Irish people of that consti- tutional right which we are taught ought to belong to the freemen of every land — the right to bear arms.” So it ought ; so say I. I do not think it will be controverted. Unless a man desires to say he will disarm the whole population of the north of Ireland, it is difficult to argue it is not the right of freemen to bear arms. To be sure it is, and sanctioned in express terms by the Bill of Bights. “Within the last twenty-four hours we have had occasion to observe that even in this city, in which such a thing as an outrage of the character which this measure was designed to suppress never has occurred, or any outrage — that this city is about to be placed under the operation of those enactments.” Next he comes to the question of the proclamation. A procla- mation by the Crown does not make law. If Lord Clarendon, without that legislative authority, issued a proclamation, we would treat it as waste paper; although it would be our duty to respect it, we do not commit a breach of any law by violating it. “ And now, gentlemen, I do not here in this League feel myself called upon to express to you my opinion as to the mode in which you ought to treat that proclamation. I believe the most of you know very well what is your interest and what is your duty. I apprehend that the effort to disarm the population of Dublin will not be found very suc- cessful; but 1 do — whilst I do not invite you to give facilities to the police for invading the privacy of your homes — I do upon my own part, and I must say upon the part of some of your most trusted friends, request that you will not make that proclamation the occasion of a general collision.” Now, I suppose what is sought to he drawn from that phrase is, that when Mr. O’Brien says, I do request you not to make that proclamation the occasion for a general collision, that he had lurking in his mind, at some future date, some particular collision. “ Another of their enactments during the present session has been the Felony Act, as it is called That is the act I mentioned to you. “ the Gagging Act — an act which enables the Government to trans- port beyond the seas men who shall, by advised writing or speaking, endeavour to maintain the rights of their native land; and under that enactment we now see in the dungeons of Dublin, four of the ablest and most virtuous men in this country lying as prisoners, subjected to every indignity which a bad Government can inflict. Gentlemen, for these men I claim your sympathy. And now I feel myself again somewhat fettered, and my lips closed as to the advice I ought to give ; but I call 2 p 578 SPECIAL COMMISSION, CO. TIPPERARY. upon you deeply to consider what ought to be the conduct of the Irish nation with reference to the trial of those men. I trust we shall not allow in this country such scenes to be again enacted as those which took place during the trial of Mr. Mitchel.” This is the subject adverted to in that passage of the Attorney- General’s speech, which I have marked here, wherein he refers to the prosecution of Mr. Mitchel. He said it was an important stage in the transaction, in the course of the conspiracy. Mr. O’Brien goes on — “ I trust there will be an unanimous determination throughout this land that these men shall not be subjected to the same jugglery of injustice; and that men who have been, after all, but exponents of the sentiments which every man amongst you feels — who have done nothing but that which every patriotic and virtuous man ought to do for his country — that if these men shall fall, the Irish nation is prepared to suffer with them. This will be a very important consideration in every public assemblage which will be held in Ireland during the next three weeks.” Mark, this is on the 19th of July. This question of Mitchel’s trial is to be an important element to be considered in all the public meetings which he says will be held in Ireland for the next three weeks ; and you are to infer that he had then — this is all evidence for the Crown — at the time he made that speech, that very treasonable intent of levying war against the Queen, which is alleged in this indictment. Then he speaks of the transportation of that person. Now I must state in Mr. O’Brien’s justification — I make no charge whatever against the Attorney- General, it is Mr. O’Brien’s view I am putting forward — that he was present, I believe, in the House of Commons, when a discussion arose respecting the trial of the late Mr. O’Connell. Lord John Bussell, in his own hearing, I believe — I have his own instructions on the subject before me — denounced the trial of Mr. O’Connell on this ground (the only reason that I advert to it is, to explain his conduct here), that his conviction was deprived of all moral weight by reason of the exclusion from that jury of eleven gentlemen who were called and challenged, or set aside, or struck off the special jury, because they were Roman Catholic repealers. The first minister of the Crown argued, with that constitutional ability which distinguishes him, that it was not a right thing to strike them off the jury because they agreed with Mr. O’Connell on the subject of repeal, and were members of the very confederacy, the legahty of which was on trial in that very prosecution. Well, having heard that, and it being very boldly and vehemently denounced by the men of that day, what was done by the Attorney-General of this day ? I am not speaking disrespectfully of the law officers of the Crown ; do not let that be insinuated, or that I make any allusion to THE QUEEN i;. WILLIAM SMITH O’BRIEN. 579 Mr. Attorney- General. What Mr. O’Brien meant was, that it was not consistent for Lord John RusseU to do the very thing when in power that he had abused when out of power; and he complains that the striking off thirty-nine jurors who were called on Mr. Mitchel’s trial, is not in him a very consistent act. It is for you to say whether it was. But the law officers of the Crown did, as they believed, what their duty required them. It is very awkward for a public man to contradict himself ; and there is a just retri- bution in political things that will make political men some time or other feel the necessity of speaking of their opponents with truth, reason, and moderation. Having assailed their opponents for effecting that conviction, on the ground I have mentioned ; having taught Mr. O’Brien, who is now their prisoner, that it was an unconstitutional artifice, he having sat in the same House with them, and beheving aU they said to be founded on the doctrines of the constitution, although he had no personal re- gard for Mitchel, but rather the reverse, just as he behaved to Mr. O’Connell he behaved to him; although he differed with him in his opinions, he said it was an unconstitutional thing to do to the one, as it was deemed an unconstitutional thing to do in respect of the other. Now, that is the case exactly with respect to Mitchel. He says — ^‘This is a consideration for the fundholders of England. I have no desire to strike down public credit ” Now public credit is generally ruined by a revolution. Mr. O’Brien says — “I have no desire to strike down public credit; far from it. I believe every man amongst you is interested in upholding public credit. I believe, with respect to the hanking establishments of this country, there is no part of the world which has firmer mercantile or financial concerns.” That certainly is a sensible and kind observation. There may be great difficulty in mercantile affairs sometimes in Dub- b.n; but he has said, that “there is no part of the world which has firmer mercantile or financial concerns.” That is not the language of a revolutionist. It is the most absurd nonsense that ever was uttered from the lips of mortal man to call this language high treason, or exhibiting a treasonable intent. He says that no man ought to strike down public credit. That is a very sensible observation. We all agree in that. “ Therefore I, for one, will not invite you to strike at public credit. I am stating that which I believe to be the general result of the financial condition of the empire. I believe one week after the transportation of those men, the funds will be at least twenty per cent, below their pre- sent rate.” Well, the funds vary according to the extent of popular dis- satisfaction, according to all the passing events of the day; and 2 p 2 580 SPECIAL COMMISSION, CO. TIPPERARY. if I said the funds would vary by reason of your verdict, until you, gentlemen, decide so, I should say I was not guilty of high treason. There is, however, one question on which I am bound to relieve my mind, because I have been silent on it for some time, and I rather take blame to myself for being so. I came from a country in which I found a very large portion of the most industrious classes — the working classes — have been suffering very severely from the bankruptcy of some of the saving banks. And if any man asks me what chance there will be three months hence of obtaining money out of the saving banks of England, 1 tell him freely my opinion is, that there will be a very poor chance of getting it. If this, therefore, be any admonition to the Grovemment, I trust they will take the hint.” I believe it was perfectly true that there were a great many losses arising out of the saving banks in Kerry and other places, and very many disagreeable and ugly disclosures took place subsequent to it. £52,000 was lost there I am told. “Now, gentlemen, there are many topics upon which I would wish to address you with freedom, but I feel that we are now making a great experiment, in which we must keep faith with those who have entered this association.” The persons “who have entered this association” were the moral force men. It was necessary to keep faith with them, and, therefore, particularly necessary not to break out into treason. “I see many men before me eminently to be respected, whose opinions deserve all the attention which the weight of experience, and position, and virtue, and patriotism can give.” Listen. “ They came here to co-operate with us, not for the purpose of effect- ing any sanguinary revolution, but they came here to see by a last experiment what may be the power obtained by concentrating into one focus the whole will of the Irish nation.” Mr. O’Brien disavows in that sentence, as clearly as man can, that there was an intent of a sanguinary revolution to accom- plish any purpose; and he says that a number of honourable gentlemen entered into that association on that principle, with whom good faith must be kept. “ I am happy to see here to-night the representatives of the citizens of Kilkenny.” And this was a subject of congratulation, because it was a guarantee that nothing but what was temperate and wise would take place. “ I am happy to be able to congratulate you upon the accession of a very considerable number of the Roman Catholic clergy of this country; THE QUEEN v. WILLIAM SMITH O’BRIEN. 581 and I am still more happy to tell you, that I have reason to believe that we shall before long, have the accession of still greater numbers from that body.” That was encouraging. It was a wholesome piece of modera- tion, and surely nothing revolutionary or directed against tho Government or the State. “I believe I am at liberty to state to you, that I had to-day a long conversation with one of the most eminent, perhaps the most eminent, of the Catholic bishops of this kingdom, I mean Dr. Maginn, of London- derry. I believe there is no man among you entertains sounder doc- trines, with respect to the rights of the people, than he does; but he feels that, as a clergyman, it is his duty to forbear from entering into any association which is formed for purposes other than of constitutional action.” That is, this bishop will not enter any society except one intended for constitutional action. “ And I believe it is the intention of that revered prelate, so eminent for his virtues, so eminent for his distinguished talents, so eminent for his great influence throughout this land — I believe it is his intention, pro- vided you pledge yourselves, as has already been done to-night by the resolution submitted by Dr. Cane, to a course of constitutional action, not only to present his own subscription, but to send in the adhesion and subscription of all his clergy.” What think you of such high treason? Why, I tell you, if he did join the society, the bishop in all probability will be hanged, because he has conspired with a treasonable body. There has been an outbreak since, according to the argument, in pursuance of that conspiracy, and they are all, every man of them, as guilty in law as Mr. O’Brien. The bishop did send in his subscription and adhesion the next day. The argument of the Attorney-General is, that this speech, spoken by Mr. O’Brien, was manifestly a speech showing an intent to break out forth- with into a revolution. And the grounds and reasons for sup- porting that happy argument of the Attorney-General are, that several bishops of the Church of Home in this country, and amongst them a highly respectable one, looking to a long course of prospective constitutional agitation, says, “I will join it if I am certain it is constitutional, and I will send in the adhesion of all the clergymen of my diocese.” I am afraid the clergy would be thinned according to this doctrine. I pass to another topic. “ On the other hand, let it not be supposed that any man in joining this association is called upon to enter into any pledge that he will forego his rights of manhood. For my part I confess, though I am of a peaceable disposition, that I sjiould not have been a party to the forma- tion of this League, if I felt myself in any degree whatsoever fettered in regard to any ultimate contingencies that may arise in vindicating the honour and the rights of this country.” 582 SPECIAL COMMISSION, CO. TIPPERARY. That may be bold, but it is not treasonable yet. He says, “ I am of a peaceable disposition ” — that is something very wicked certainly — ‘‘ I love peace; I have a peaceable disposition.” The Attorney-General says that is the strongest evidence possible that be is a traitor, and just on the point of breaking out into revolu- tionary excess. But, be says, though be is of a peaceable disposi- tion, that be would not fetter himself “ in regard to any ultimate contingencies that might arise in vindicating the honour and the rights of this country.” So that if a man says, should any ultimate case arise in which I may feel it my duty to vindicate the honour and liberty of my country, that is ground for im- peaching him of high treason ; or if not ground for impeaching him of high treason, the expression of a patriotic sentiment, inflamed by just and noble feelings, is proof of an intention to subvert the constitution, when the right and the honourable con- struction is, that it is the expression of an intention to uphold and maintain it. Listen to this : “ But I am contented to act in the League with those men who are desirous to try every experiment that can be made of another cha- racter ” That means that a long course of constitutional action was then anticipated. “ But I am contented to act in the League with those men who are desirous to try every experiment that can be made of another character; and believing that those men, if the hour of trial did come, would be as resolute as the noisiest declaimer amongst us, possibly that they would be more ready than many of us who speak very largely about what we intend to do, to place themselves in the foremost position of danger — I say I enter frankly and cordially into co-operation with those men. Now, let it not be supposed that any thing I say to-night here has a tendency to discourage the formation of clubs.” AVhat does that prove ? That there was to be the formation of clubs, a system that would require time and a long course of action. But if a man is declaring that there is to be a long course of future action with reference to his object, it is impossible he can have such a treasonable intent as is alleged in this indict- ment. “Upon that point we are each of us at liberty to entertain our opinions in this League. Some of the members of the League think it inexpedient to encourage the formation of clubs. That is not my opinion. I believe that the position of this country would be infinitely safer than it is at the present moment if there was a club in every parish in Ireland. I believe that there is no more securer method of obtaining the respect of those to whom you are opposed, than to place yourselves in a position to be able to dispense with their favours and to defy their menaces. Therefore it is I witnessed, with the greatest possible satisfaction, the formation of clubs throughout the country. There are some parts adjacent to Dublin, where the organization is not THE QUEEN WILLIAM SMITH O’BRIEN. 583 yet perfected; and I invite each of you, speaking in my own name alone, not on behalf of the League, to assist in perfecting that organization.” That is, to go on with its habit. But, gentlemen, this pledge we have made, and at my suggestion, to those who have entered into co-operation with us, that these clubs shall be independent bodies, and that the League shall not be held responsible for their actions. I believe that every thing that is necessary to be done through the agencies of the clubs, may be done by them as bodies entirely independent of this association.” When that doctrine is positively asserted hy Mr. O’Brien, speaking the sentiments of the League, and when he says we are not to be hound by what may be done by the individual members of the clubs, which it is declared to be a rule of the League, should be excluded and disassociated from it, how can the Attorney-General say that the League and the clubs acted in treasonable concert together? Then he says — ‘‘ If we were to affiliate all the clubs of Ireland with this League, the effect would be, that the League would be held morally and legally responsible for any imprudent acts that might be committed by any of those clubs.” So that he will not connect the League with these clubs ; for if he did, the League might be held responsible for what the clubs might do. Then he says — “ And I believe that our central organization here will be infinitely more potential if it is exempted from such liabilities; whilst, on the other hand, I do imagine that the efficiency of the clubs will not be in any degree impaired by standing, as they now stand, as independent bodies. There are several other gentlemen who are desirous to address you. I am not a little fatigued myself from the exertions of the last fortnight, therefore I shall reserve, till some further occasion, the obser- vations I now feel tempted to make. I thought it necessary to say this much for the purpose of presenting to you my ideas as to the character of this association. I feel perfect reliance ” Mark this language, gentlemen. “ upon the good sense, as well as upon the ardour, of the population of Dublin; and I am perfectly satisfied that they will give a generous confidence to the Irish League, as constituted on the principles I have enunciated. I have proposed, and with success, that the next meeting of the League should be held at Kilkenny.” These meetings were held once a fortnight, and in the country at a more distant interval of time than those held in Dubhn — sometimes once a week, and sometimes once a fortnight. But what is it he says here ? lie says that the next meeting was to he held in Kilkenny, and goes on — 584 SPECIAL COMMISSION, CO. TIPPEKARY. “ Kilkenny was the first town to declare in favour of a union of all Irishmen. Therefore, I think we owe them the compliment of going down, and carrying down with us as many of the citizens of Dublin as can conveniently attend at Kilkenny, ” On the 1 9th of July, a body of the citizens of Dublin are to go down to Kilkenny, for the purpose of holding a meeting of the League, and the innocent and respectable mercantile men of the city, who are repealers many of them, are ail, if they go down to Kilkenny, to be made guilty of high treason. They are to go down in a body. What does that argue or prove ? Does it prove an intent to break out into violence ? No. It proves they were to go all round the country holding publicly-avowed meetings for constitutional open agitation, to work out the objects of the League; and no man living can extract any other meaning out of it. I do not think the counsel exists who would he hold enough, after he had proved this as part of his case, to ask a jury to disbelieve his own evidence. I never heard of a lawyer bringing evidence to support his own case, and then call- ing on a jury to disbelieve the evidence he offered. Well, they are to go down to Kilkenny “for the purpose of reciprocating the compliment which the gentlemen who appear here to-night have done us in appearing in such numbers, and also for the purpose of consulting the people of Kilkenny as to their opinions with respect to those important questions of national policy which cannot but in a short time fail to present themselves for their adjudication.” So you see there was to be a consultation in Kilkenny on all these questions of national policy; and a peaceful consultation between Dublin citizens and citizens of Kilkenny is one of the badges of guilt against Mr. O’Brien. The last is — “ I frankly tell you that the language I should hold to the British Government, so far as I could speak in your name, depends very much on the spirit which is evinced by the Irish people. That which would be a mere idle menace, or still more idle boast, if spoken as an individual, when it be enunciated on the part of a great nation as the indication of its determination, and of its will, becomes no longer mere idle verbiage, but becomes the predecessor of action. And believe me, that if any trying times should arise, as I am afraid Lord Clarendon is determined trying times shall arise at no distant period, believe me, gentlemen, that you will come back to Dublin in a very different spirit ” So that the citizens were to go to Kilkenny, and consult there, and return back to Dubhn. “ in a very different spirit to that which you entertain to-night, buoyant as you are with enthusiasm, if you are assured that a hundred thousand men from Kilkenny, Carlow, and Tipperary, are ready to walk up to Dublin whenever you wish it. “ The resolution I have to propose is ” THE QUEEN r. WILLIAM SMITH O’BRIEN. 5S5 And the resolution is not a hundred thousand times so bad as what was proposed by the Birmingham Association : — “ ‘ That the arrangements entered into at the late conference of re- pealers requires that the repeal clubs should continue totally indepen- dent of this League ; that this must not be understood to imply any disapprobation of local repeal clubs under proper management.’ ” That, gentlemen, is the entire of this speech. I have com- mented on it very fully indeed, because I agree with the Attor- ney-General that it is of very great importance to the case from the beginning to the end. I submit, with great respect, but with the most perfect confidence, to your better judgments, that you would cut off your right hand before you would find a verdict of guilty of this crime on such a speech as that. Not merely would you find a verdict of not guilty, but you would say it covers the whole case of the AttorneyrGeneral with doubt, suspicion, and distrust ; for if a gentleman utters these sensible opinions, these perfectly legal doctrines, these constitutional views, on the 19th of July, it is impossible for you to believe that he had at that time, when he avows his determination of going to Kilkenny with a body of Dubhn citizens, to hold a public meeting, an intention of returning back after it was held with the resolution of breaking out into open conflict with her Majesty the Queen and her officers. Gentlemen, you have observed that in speaking of these meetings, I have purposely abstained from considering the evi- dence given by Dobbyn. You will have remarked that I have not spoken of the colouring which he gave to the meeting of the clubs on the 15th, to the day-meeting at another place, to con- sider what should be done with the proclamation, nor to the challenge which Mr. Attorney-General threw out, as I see by the report, to explain, the Council of Twenty-one, and the Council of Five. Nor do I intend to do so at present. You will permit me to proceed to the consideration of the evidence given on the part of the Attorney-General through the different stages of the case, which rested on the speeches and the acts of the League and the Confederation; and I shall leave my consideration of the informer and his evidence till another stage in the case. Gentlemen, having proved that speech, which I have just laid before you, the Attorney-General began with the parol evidence in the case ; and I think I may abbreviate the first ten witnesses. I shall take them as nearly as I can in classes, and I think I may take eleven witnesses at once, which is convenient for the pur- pose of our discussion — I mean Mr. Hodges. General MacDonald, the captain, the stipendiary magistrate, Mr. Cox, Mulgrew, Bag- nall, the extra-clerk in Dublin Castle, the gaoler, Norton, and one or two other persons who were examined at a later period of the transaction. They prove two things substantially — the arrest 586 SPECIAL COMMISSION, CO. TIPPERARY. of Mr. Smith O’Brien and the little matters connected there- with ; the finding of the portmanteau, and the proof of that portmanteau. So to consider them is a more convenient course than revising the evidence of each man. Gentlemen, of course that evidence was given on the part of the Crown with some assignable purpose. You may take it for granted that the Attorney-General does nothing without good reason. He accordingly proved, through General MacDonald, what property, money and the like, my client had on his person when arrested ; and with great accuracy established the very awful fact, that the man who was proceeding to subvert the British empire had £10 16^. 2d. in his purse. That was the exact amount of the exchequer which was to ruin the British empire in this country. He then proceeded to inform you that he was searched, and several papers (I shall consider all the documents in the case separately, because it will prevent con- fusion) found on his person. Then having given that evidence with great j)ropriety, the general was succeeded by his aide-de- camp, and next appeared Mr. Gore Jones, of whom I shall say a word. Whenever papers or documents are brought forward in evidence against a prisoner, to establish a guilty intent, it is of great importance to discover under what circumstances they have been found. You heard a long argument on the admissibility in evidence of the contents of that trunk ; they have all been proved. But still a very important question remains behind for your con- sideration. It is observable, that having relied on the contents of this trunk, the Crown has proved that Mr. O’Brien himself was the guilty man who informed the stipendiary of the existence of the trunk, and told him where it was, and where it might be be found. Now did you ever hear of a sane man who had a trunk full of treasonable papers at a place where the Crown might not be able to find it, who wisely and considerately informs his prosecutors, ‘‘My trunk is in such a place, send for it and you will get it ?” There is no instance of that in the history of the law. Mr. O’Brien is an educated gentleman; he knows very well the consequences of high treason; he has read history; he knows very well how many lives have been taken away by the produc- tion of a letter or a piece of parchment ; and he, therefore, showed an entire consciousness of his own innocence when he informed the stipendiary magistrate that his portmanteau was at a particular place, and he wished to have it. What is the conduct of Mr. Gore Jones? I make great allowances for the police, and I respect them very much ; they are an excellent and exem- plary body of men, but I do not like to see them overpraised. Mr. Gore Jones is a gentleman. He pledged his honour to Mr. O’Brien that that portmanteau should be restored to him ; he pledged his honour that he would get it and forward it to him. And this righteous case begins by proving as perfect a breach of THE QUEEN i;. WILLIAM SMITH O’BRIEN. 587 faith as could well be proved in any case of the kind. Now do not misunderstand me. I would not blame Mr. Gore Jones for saying to Mr. O’Brien, “You are my prisoner; any document, or paper, or parcel in that trunk it will be my duty to deliver up to the Government.” He says no such thing; he undertakes to restore him his property; he gets a letter from him on that assurance ; he pledges himself as a magistrate and a gentleman that he will perform what he has undertaken, and then steadily and resolutely violates the confidence reposed in him. Now, although 1 admit a police officer would be justified in searching Mr. O’Brien, or in pushing his inquiries wherever he could, to get information against him, I deny that it is the duty of a police magistrate to commit a breach of faith, in order to find out evidence to convict a man who is to be tried for his life. How does he behave ? He sends in search of the portmanteau ; and having procured it, what does he do with it ? He forwards it to Dubhn without the least intimation to Mr. O’Brien on the subject. Mr. O’Brien never hears more of the portmanteau, and after some little time, feeling curious to know what had been done with his property, he writes this letter to a gentleman who ought to have been examined here and was not — the Under- secretary. “ Kilmainham Gaol, August 12, 1848. “Sir, “ I take the liberty of inquiring whether it is the intention of the Government to cause to be returned to me the papers and books which were taken out of my portmanteau during its transit from Cashel to this prison. “ I beg to remind you that my portmanteau came into the hands of the authorities by my own act (not by capture), upon an honourable understanding, guaranteed by General MacDonald, Mr. Gore Jones, and the other police functionaries, at Thurles, that I should receive it as delivered to them by the friend at whose house it was left. The books and papers which have been abstracted consist for the most part of private memoranda, wholly uninteresting to any one except myself or my friends. “ Having also heard at Thurles, that some articles belonging to me were taken by the police, near Ballingarry, I shall be glad to hear whether they will be retained. They are, I believe, for the most part, articles of wearing apparel. — I have the honour to be your most obedient servant, “William S. O’Brien.” This is the reply of the Under-Secretary. “Dublin Castle, 13th August, 1848. “The Under- Secretary begs to acknowledge Mr. Smith O’Brien’s note of the 12th inst.; and in reply to inform him that the papers found in his portmanteau, which are of a public character, cannot be restored ; but directions have been given that all documents connected with Mr. 588 SPECIAL COMMISSION, CO. TIPPERARY. O’Brien’s private affairs should be returned to him. No such under- standing as that referred to by Mr. O’Brien was communicated to the Under-Secretary, either by Mr. Gore Jones, who forwarded the port- manteau, or any other party — neither would it be in accordance with the practice in such cases, that the portmanteau should be forwarded to Mr. O’Brien unexamined. “W. S. O’Brien, Esq., M.P.” Mr. Gore Jones never took the slightest notice of the contract he had entered into with Mr. O’Brien. He did not leave it to the Under-Secretary of State to express his judgment, whether a breach of faith should be committed or not, but he committed it, and suppressed from the Government the fact of the mode by which he had obtained the portmanteau. I suppose it will be a ground for further promotion in the service he dignifies. No man is justified in committing a breach of faith in any case. Notwithstanding the writing of that letter, from that hour to this morning, the papers of Mr. O’Brien never were restored. A list of some documents was delivered to-day through the kindness of the Attorney-General. Mr. Potter. — No, no, not yet. Mr. Whiteside . — My friend told me they would be delivered ; but if they had been of some use to his defence — I aver they were and are — notwithstanding the positive undertaking of the Under-Secretary written on the 13th of August, that they should be restored, notwithstanding the promise of Mr. Gore Jones, that the contents of that portmanteau, which were not useful for criminal purposes against him, should be restored, they never have been. It is of the last consequence for you to consider in this case, first, whether my client is to be responsible for the contents of that portmanteau ; and, secondly, which I will discuss when I am on the subject-matter of the papers, what the effect of that evidence ought to be. Suppose there were in that trunk title- deeds of a near female relative of Mr. O’Brien’s ; suppose there were his books of accounts ; suppose there were his books of ordinary study, of poetry and devotion, did you ever know of a man setting out to commit high treason with the title-deeds of a lady whom he expected to visit put into his trunk, to enable him to carry out the crime ? You judge of the criminal intent of a party by the acts he does at the time he is about com- mitting the crime which is alleged against him. In that vahse were all the private documents, ay, and the account-books of Mr. ^O’Brien’s family, and documents of other members of it and friends ; and I ask, is it likely that a man would stuff what he himself believed to be treasonable papers into company with papers of that kind ? Now what was the evidence upon which Mr. Attorney-General has established his right to read, be it for good or bad, all the THE QUEEN t-. WILLIAM SMITH O’BRIEN. 589 papers in that trunk against Mr. O’Brien ? He gave his keys when he was arrested. By the way, the man who got the keys never was produced. That white pocket handkerchief which was sent up to Mr. Redington he never appeared on the table to identify up to this hour, nor is it proved whether they were the keys that were got from Mr. O’Brien ; but that does not matter much. By experience it is found that the exact sum required to open a portmanteau is fourpence ; a detective will get it done for fourpence. This portmanteau was out of Mr. O’Brien’s custody, whether three weeks or a fortnight I cannot now remember, I do not exactly know how long ; he has no control over it ; it is not set apart ; it is in no confidential keeping ; it is kicked about ; ulti- mately, it is flung into a limekiln; and the policeman, I do not mean to speak unkindly of the man, who got it half filched it away from some one who found it in an open garden. Gentlemen, make the case your own, which is the golden rule in ail these cases. You pass through Cashel; you leave your portmanteau; in a week or so afterwards you are taken up and prosecuted for being a member of a treasonable body; and a portmanteau is produced locked ; and not your own letters, but a number of letters without any cover, without any date, without any mark of your own upon them, are all given in evidence. You say in return, “I am liable for any thing I write myself, and I am willing to answer for it ; but I am not liable for any thing that is in that trunk which may contain letters from men who may be in gaol, and who cannot write, unless what they write is subject to the supervision of those who have authority over them ;” and I hope they are not allowing liigh treason in her Majesty’s gaols. I tell you what you would say, “ Prove that that portmanteau has been kept safely by the person who had it in his possession and custody from the time it left my custody till you read its contents against me, then I am content ;” always admitting, that every thing written by the prisoner himself may be given in evidence against him. Otherwise I tremble for my own safety. My liberty at present depends on the pleasure of Lord Clarendon ; and by the law of this country every person’s liberty is at an end. Suppose, while I am addressing you, a man walks into my lodgings and introduces into my portmanteau three let- ters, without date, locks it, walks away ; and suppose neither he nor the lady of the house is called to prove the safe custody of that since. Four hundred letters might have been put into it ; and then you tell the prisoner — this is the principle now sought to be established — “account you for the contents of that portmanteau.” “ I cannot ; but it is probable it is all right ; it is very likely it is in the same condition.” Was it strapped this morning ? Still, if it is strapped now, you must account for all the things which are put into it. It is not for me to complain of the decision which was given by the Court on this subject, because it is made ; but con- sidering all the cases that may ariseRereafter, and how papers may 590 SPECIAL COMMISSION, CO. TIPPERARY. be obtained from any old trunk, flung into a garden or a limekiln, being on tlie point of destruction by fire, without producing the person in whose custody it was, I really do not know how the most virtuous men in the land could escape a prosecution for high treason, if it was brought against them. Why, Sidney’s case is complained of, because papers which were found in his house were read against him ; and for this reason, that they did not prove he had published them or had used tliem. How does it appear that a man makes any use of papers ? I ask you cannot the detective who got the four hundred letters and papers in an open press in Dublin, while I am speaking here, walk into my lodgings and introduce into my leathern portmanteau as many letters as he pleases ? Where is the portmanteau ? I cannot produce it here, says the Attorney-General. Where is the person in whose custody it was ? And where was it ? Why it was thrown into a back garden, and a policeman walked in and carried it olf. I warn you not to take that for granted in a capital crimi- nal case against the prisoner. I never denied that that portman- teau was Mr. O’Brien’s. What is the evidence on which you may adopt safely the contents of it ; such contents as I have referred to ? Why it is this, that he who himself was conscious of his innocence, conscious that he had written nothing treason- able himself, and not believing that he had received any thing treasonable, says, send for my portmanteau.” Believing in the honour of a gentleman he gives up his keys, and tells him where he can find it. He writes a letter, and when it is sent to him some days afterwards in prison, when the gaoler walks up to him he says, I thank you for my portmanteau.” Before he had opened it ; before he had an opportunity of knowing what was in it ; before he had the power of objecting ; before he could write that letter, he thanks the gaoler ; and that is the evidence to prove the contents of that portmanteau. I believe that to be unmatched in the history of the criminal law. I say that all the numbers of The Felon, The Nation, and every other paper that has been written for the last six months, might have been put into that port- manteau with safety, and all read against Mr. O’Brien in violation of every principle of justice. I call upon you to reject from the evidence every particle of paper in that box, for the lives of many men hereafter may depend uj^on the principle upon which that evidence has been received. It is a misapplication, or a loose application of the laws of evidence, as Judge Foster has said, more than any thing done wrong by the judges who have tried the cases, that has left in our State Trials so many unfortunate decisions. I, therefore, call on you to reject it on the ground I have stated. How would you like to be made responsible for whatever was thrown into that portmanteau, while in an open room, a garden, or a limekiln, on the evidence we have had, that it was in the same state in which it was given to the person who had THE QUEEN v. WILLIAM SMITH O’BRIEN. 591 charge of it ? Suppose it had been locked up in a room, and that there was reasonable ground shown that nobody had access to it. But unless it is impossible to open a leathern portmanteau there is no evidence, on which a conscientious jury, in a case of life and death, will act against Mr. O’Brien, except upon what, properly speaking, is his own. And what is his own ? His title- deeds, his books of account, his bills, the papers of a lady inti- mately related to him, and one document addressed to him, which, however, I will explain by-and-by. Neither of the two papers relied on has date, address, mark, or note. It is enough, God knows, for us, according to the frailties of our nature, to be responsible for every thing we do ourselves. Men are rash ; public men are unthinking or unwise. They receive papers that they never think of. God help those who have a large and extensive correspondence ; who receive papers and letters which they never consider, which they never answer, or possibly, which they never see ; if, when they are brought to trial, on a charge of life or death, loose evidence like this of letters addressed to them can be safely received by a jury against a prisoner. I wonder what chance of his life the late Mr. O’Connell would have had, if all the letters he received from America and elsewhere, had been put into an old trunk, thrown into a huge heap, and read against him. We will speak of the contents of that portman- teau hereafter ; and when 1 have the opportunity, I shall be able to lay before you a list of matters for which Mr. O’Brien is res- ponsible ; I believe some letters from highly respectable digni- taries of the church, and persons of the highest rank, which will show you what ideas he had of a treasonable character. Gentlemen, the next witness was Mr. O’Hara, and the ingenuity of my friend explained to me what he came to prove ; for I did not know whether he came to prove any overt act ; and I believe this is the pith of it, that he addressed a letter, which could not be evidence against Mr. O’Brien — I believe it was a letter to Mr. O’Brien, found in the trunk on the 4th of July. It was not read, but used to refresh his memory, to prove this important fact — which was only proved by refreshing his memory with reference to this letter — that two gentlemen of the name of O’Gorman and Dillon went at some time to Meath. Now, I believe, that is I guess, (and there is a good deal of guessing in this case,) that that is resorted to in order to prove the Attorney- General’s statement ; and indeed he expressed it somewhat figuratively, which is not usual with him, that these persons went through the land lighting or brandishing the torch of rebellion, or something to that effect. I am not quarrelling with the expression ; we understand it. That was to be proved by Mr. O’Hara ; and the mode in which it is proved is, that he did one time or other write a letter to his friend, acquainting him that two other friends had gone down to Meath. Now I suppose I am to explain this, because that is the theory of the Crown 592 SPECIAL COMMISSION, CO. TIPPERARY. lawyers; I am first to discover what that evidence means, to what that letter applies, and then make it have point and application to the evidence before you. I leave it to you to discover, if you can, its object. Gentlemen, it was also proved that on the eve of this des- perate rebellion breaking out, two persons, Mr. Dillon and Mr. Meagher, dined with this Mr. O’Hara, spent the evening with him, and also that they said they were going down to where they believed Mr. Smith O’Brien to he. They dined in the usual manner, and there was nothing very traitorous in their behaviour. I come now to witnesses 12, 13, 14, 15, and I think I may dispose of the witnesses up to 16. I will just enumerate them, 12 is Mr. Sherman — 13, Franklin — 14, Walpole — 15, Eneas M‘ Curdy — 16, Fanny Keeley. I may take all these witnesses together. They only prove the handwriting of the prisoner, and the search for, and finding of documents, which, not having been read or proved against my client, are out of the case. But it is worth observing the evidence which Frances Keeley gave. Not long before the prosecution she went to a particular place in D’Olier-street — and only went on that one occasion; it did not appear who desired her ; it did not appear by whose authority — and took away a great quantity of papers, about four hundred, placed them in an open press in Eustace-street; and then a pohce officer, under a warrant to search for arms, found them in that press. You may take for granted, if there had been one scrap of Mr. O’Brien’s writing in that batch of four hundred papers the Attorney-General would have read it against him. The meeting of the clubs was in D’Olier-street; that is the only ground why I advert to that sixteenth witness on my hst. That search was made for the purpose of getting evidence against Mr. O’Brien, otherwise it would not have been attempted to prove it on the table. And what was it for? To connect the clubs with Mr. O’Brien. Where do the clubs, or delegates of clubs meet ? In D’Olier-street. Where are their documents kept ? Of course there. Who got them? Some female relation of a man named Halpin, who had been the secretary of this Confederation. You can very well understand how a course of treachery can be managed. They may not be able to get at the man himself, who does not wish to be concerned in the prosecution; but he might say, “Speak to my wife’s sister; she is a diligent, useful, and thrifty girl, and got all the letters that were there; they will be brought to a press; you can come to look for a pistol that is not there ; and under a warrant to search for arms you may look for papers.” Had there been any treasonable correspondence of Mr. O’Brien’s with these clubs, you would have had it in evidence before you; but not one scrap has been produced. Gentlemen, I have told you already that for the present, according to the mode I have prescribed for myself, I will pass by the evidence TPIE QUEEN i;. WILLIAM SMITH O’BRIEN. 593 of the witness Dobbyn, and this is the ground on which I do it : I have shown, by the body of evidence 1 have laid before you, that the whole proceedings of those clubs, the Confederation and the League, were perfectly legal, known to the Government, and not interfered with, guided by written rules, acted on by all its mem- bers. We shall see presently whether in the progress of the case it is converted from being a legal into a treasonable and criminal conspiracy by the evidence of Dobbyn; for you will find, when the whole case is exhausted, that there is not a particle of evidence beyond that. Therefore I argue at present by virtue of the speeches, the rules, and the acts done, for the legality of that body. There was a man of the name of Griffin, who arrested Lalor, but he could not prove the number of voting papers he got at Lalor’s house. That occurred on the 22nd of July. The next witness, who is No. 19 on my list, is Mark Pender; and he says, he saw Mr. O’Brien leaving town on the 22nd of July. We therefore have it, that having made a speech on the 19th of July, he packed up all his things, and left town publicly and openly on the 22nd, by the coach, having announced on the 19th in the speech I read you, that he was going down to Kilkenny for the purpose of holding a series of meetings, and that he ex- pected to meet the citizens of Dublin there at the first meeting that was to be held. Gentlemen, Mr. O’Brien had been invited to spend some time with a gentleman who was I believe the member for the county of Wexford, and sat in the House of Commons with him, a Mr. Maher, a gentleman of fortune, living, I believe, a few miles from Enniscorthy, and a deputy lieutenant of that county. Having been invited some time previously to spend some days at that house, Mr. O’Brien left Dublin full of treason, with his title-deeds in his portmanteau, and arrived there on the 22nd. It is quite immaterial to trouble you with the evidence of Patrick McKenna, who took up two young gentlemen at Lough- linstown, and brought them to Enniscorthy. Those witnesses are immaterial; so I have now come down to the twenty-first witness. The fact is, that this treasonable notion is a mere pretence, and does not exist in reality. Mr. Maher had invited Mr. O’Brien to his house, or expected him at his house, for the purpose of visit- ing the parish priest. The parish priest of Wexford was a gentleman of great respectability, and considerable influence in that part of the country ; and he wished to see Mr. O’Brien, to know whether he would join the League or not. Accordingly Mr. O’Brien paid his promised visit to Mr. Maher, for the pur- pose of seeing people in Wexford, and accomplishing that object which he had before resolved on. Mr. Maher and he dined together, and conversed with each other. I may as well mention 2 Q 594 SPECIAL COMMISSION, CO. TIPPERARY. now that Mr. Maher will he produced upon that table, and you will hear from him whether, either from conversation or any one hint dropped, it was possible to believe that Mr. O’Brien was bent on a revolutionary project. He drove from Enniscorthy in the carriage of Mr. Maher; he dined with him, went to bed, and spent his evening there just as an ordinary gentleman would on a visit to a friend. It was on Saturday, the 22n,d of July, about five o'clock, that he arrived there. Meanwhile, gentlemen, the news, as Mr. Attorney-General told yon, of the suspension of the Habeas Corpus Act arrived in Hub- lin, and there was, in point of fact, placarded at the office of The Freeman’s Journal a notification that Mr. O’Brien would be instantly arrested. Now that is a cardinal fact in this case ; that occurred after he left town — he had no notification of it ; he had no idea it would occur ; and every word in that speech I read to you disproves that he had. Accordingly, as soon as this news reached Dublin that the Habeas Corpus Act would be suspended, and Mr. O’Brien arrested, the two young gentlemen of whom you have heard, Mr. Dillon and Mr. Meagher, who had dined — certainly not in the spirit of traitors — with Mr. O’Hara, thought they would go down and give to Mr. O’Brien, whom they knew was on a visit to Mr. Maher, a notification that it was very pro- bable he would be arrested. That was, and is, the simple truth of the whole matter ; and at an early hour between the night or morning these two young gentlemen arrived, and disturbed the house, in order that they might inform Mr. O’Brien that he would be arrested. When Mr. O’Brien heard the news he im- mediately sought out Mr. Maher, and said that nothing would be more disagreeable than that he should be arrested in his house, and that therefore he should leave ; and, certainly, although he had intended to leave him on Sunday, nothing could be more natural. Gentlemen, Mr. Maher, not intending to further the revolution, sent him to Enniscorthy in his carriage so far on the way. Totally unarmed, and unprovided with means, this traitor who had then a fixed design of engaging in war with the Queen, left Mr. Maher’s house in the way in which that gentleman on the table wiU prove to you. When he was deposited at Enniscorthy he made a speech; and henceforward we have a body of police of all ranks and degrees — we have the full constable, the sergeant, and the corporal — all transformed into reporters, and undertaking to swear to speeches, which they put into their informations, seven or eight weeks after they heard them delivered. We begin now to consider the speeches of Mr. O’Brien ; and it is our duty to consider each stage of the transaction, instead of running over the mass of witnesses in a heap, just to see step by step where the treason began. First, it is proved by, I think, Francis Dunlevie, that on the THE QUEEN WILLIAM SMITH O’BRIEN. 595 22nd of July Mr. O’Brien arrived at Enniscorthy. And if speeches are to he judged of by their brevity — if there is treason in a little matter, this will be one of the most treasonable speeches ever uttered, for I believe the first speech consisted in the whole of tliis expression, ‘‘Are you repealers?” — I beg par- don, I must not misstate a single expression — “ Are you all re- pealers?” Constable Dunlevie having heard that, which we have all heard a thousand times before, reported to his officer, and it was incorporated with the deposition he made, I know not when. WeU, that was exactly the thing that he would say. This is a speech which Mr. Attorney-General tells you was for the formation of clubs, carrying out the organization and com- pleting the union of clubs and the like, through the country. Now, it is right you should understand at the outset of this part of the case what I contend for, and then we can apply the evidence to that as we proceed. I say the ruhng object of Mr. O’Brien’s mind was to escape arrest. I say every speech he made from this speech at Enniscorthy, to the last speech proved by •Constable Carroll, expressed the same idea. If in a case of high treason against all the law which I have read to you, against aU the opinions of the wisest men that ever lived or ever wrote, the hasty, unguarded, misreported casual speeches of any individual are to be treasured up by a jury as proofs of guilt, the judge will tell you, when he charges, they are not overt acts of treason ; that is clear. Intolerable despotism is at an end. Therefore, unless they are accompanied by an act done, they are mere idle words, and should not have any weight with you in the consideration of the case. If accompanied by an act done, I admit, they are evidence against the prisoner, always reserving to myself the right to comment upon the character of the person who reports them, upon the nature of the evidence he gives, and upon the probability of the story which he tells. I have this speech at Enniscorthy taken down in a compressed form by myself, and in a more accurate form by a learned friend. Mr. O’Brien on Sunday I think spoke very temperately. It is also to be observed, that if the suggestion of the Attorney- General was right, that at the moment Mr. O’Brien heard what these two young gentlemen informed him he determined on high treason, I appeal to you to say whether the speeches made at first, when he was animated, inflamed by excitement, and vexed at what he thought was a most unconstitutional proceeding, bear out that suggestion. Mr. O’Brien says he knew they would not give him a trial; that Lord Clarendon meant to put him in gaol, and keep him there for nine months without a trial ; that he thought that was unconstitutional; and he was determined to escape arrest, and avoid and resist it. Now I avow that. But that is not high treason. It is clearly decided that that is not 2 q2 596 SPECIAL COMMISSION, CO. TIPPERARY. higli treason, and you will be told that from tbe Bench. The speech begins in this way, according to my note of it — “ That the clubs should be formed ; that he did not know” — mark the first expression — “ but that the pohce might have a warrant for his arrest.” This is it more fully. He said, “ that there was a club formed in the town, but regretted its members were so few.” Compare that with the speech he made on leaving Dubhn. His object was, to complete the organization, that is, the formation of clubs and unions all over Ireland ; and here when, according to the Attorney-General, a treasonable intent prevailed in his mind, he tells them he thinks ‘‘ parish clubs ought to be formed and estabhshed,” so that the future progress of the thing was to be recommended — ‘‘ so as to complete the organization.” He then says, and this has been dwelt on more than once, “ he was happy to see so many policemen there ; they were a fine body of men, all Irishmen, and they should be treated as friends until they proved themselves otherwise ; that he was received very friendly” — that was the expression — “ in many parts of Ireland by a great part of the soldiers. He alluded to the suspension of the Habeas Corpus Act. Pie did not know at that time but that the police had a warrant for his arrest, and called on the people to be pre- pared for any emergency.” I have to say on that speech, first of all, that it is so per- fectly harmless, that I do not care a rush whether it is all believed or not. It states the opinion which Mr. O’Brien then avowed at the first assembly he addressed, that he was afraid there was a warrant against him ; and exhibits the conviction in his mind, that it would be necessary to carry out, by what is termed constitutional agitation,” the course of action recom- mended in that speech of the 19th of July. But suppose there was an observation in it about the police, are you sure that the observation was made ? Is it safe to believe it ? Where is his deposition ? There is none. Where are his notes of that speech ? There are none. He comes up in the month of October to prove that speech spoken in July. What does the experienced reporter, Mr. Hodges, who sits beneath me say ? That if he was to attempt to report a speech, and had not taken notes when hearing it, it would be a tissue of blunders and mistakes. What does the Act of Parliament say ’? With respect to the crime of open and advised speaking, it says, that a man shall make his deposition deliberately, recording every word of that speech, within six days from the time the speech is spoken. I call upon you to carry that all through this case ; and if there are words or expressions reported by these men, in the different speeches which they have given of Mr. O’Brien, they are to be viewed with distrust and suspicion, and to be rejected rather than received by a discruninating jury. However there is nothing THE QUEEN i;. WILLIAM SMITH O’BHIEN. 597 in that speech but ‘‘ Are you repealers/’ and “ I am afraid of arrest.” Now, gentlemen, they seek to make Mr. O’Brien responsible for the next speech that was made (and the first part of the case was all speeching) — the speech of Mr. Meagher, which is so much better given. There is something figurative in this speech. If you were to take my life for it, bid me hear two men speak, and ask me a month afterwards to tell you exactly what they said, I could not do it. I must take a note to give the words. Tou might remember the idea, and he able to give it; but to report a casual speech, spoken in the streets of Enniscorthy, some six weeks or two months afterwards, without the possibility of inaccuracy, would require the skill of this gentleman (Mr. Hodges), by whom our words are taken down with so much pre- cision that he never errs, and accordingly we made no question of any thing he has reported ; but to allow a policeman, who never reported before, who made no depositions or affirmation setting forth the speech, to allow that man’s evidence to be taken as clear and conclusive against Mr. O’Brien at the end of two months, is about the most dangerous kind of evidence it is pos- sible to produce, where the law says no words are overt acts of treason at all, because they may be idle, and very often unguarded and careless. However, here is the speech this man makes for Mr. Meagher : “He always was, and ever would be, the enemy of the British Government. He had the honour of addressing the people of Tipperary, and they, he believed, were well prepared. Then he alluded to the difference he had with the late Mr. O’Con- nell, and said, the best way he could make amends was, to bring the flag of liberty and plant it on his tomb.” Why, that “ flag of liberty” has waved in Ireland a long time — and a great many liberties have been taken with that flag — one man saying he will plant it in one place, and another man saying he will plant it in another place. This speaker desires to plant his flag of liberty over the tomb of Mr. O’Connell ; and the Attorney-General says that is proof of high treason. What is the meaning of this boyish, declamatory, vague, puerile speaking ? Is that to be evidence against this gentleman to-day ? It is quite clear that it is not against the Queen, for it is notorious that Mr. O’Connell was the apostle of the moral force agitation. I leave you to judge which was the worst, or which the best of these two ; and if this gentle- man meant to affirm an agreement in that opinion, it is against the case the Crown has made here to-day. Then another gentleman comes forward, Mr. Dillon. This policeman undertakes to report the whole three, one after the other ; and I verily believe he would report thirty. “ He heard the Wexford men were not good for making speeches or holding pohtical meetings; but they were aU brave and determined — they had aU a gun in a corner, and kept their powder dry, and were sure to hit the mark.” Now, 598 SPECIAL COMMISSION, CO. TIPPERARY. they have a toast in the north of Ireland about a man keeping his powder dry, in allusion to King William. Surely the expres- sion of a man keeping his powder dry does not necessarily prove that he is going to blow up the Queen. Now, that is the speech- ification at the first treasonable meeting of these parties in Enniscorthy. Gentlemen, the next witness the case conducts us to is a man of the name of Dowling ; and this man’s evidence is important in this respect: he takes us to Graigue. But this man honestly avows that he could not hear the speech, because he was in the crowd. Nothing can be more just than his observation, but I pray you to remember it ; he said that being kept back by the crowd, or the people moving backwards and forwards, it was impossible to hear Mr. O’Brien speak. Now, that occurred at every meeting, and the same reason applies. Well, if he did not hear his speech, he heard some of Mr. Meagher’s ; and I beg to draw your attention to that speech. My extract of it is very brief, and it is to this effect : that Meagher told them to “ beware of the law, and commit no breach.” Now, the Attorney-General says that you are to read that backwards, and that, “ beware of the law and commit no breach” means just the reverse — “ be sure to commit a breach, and be sure to com- mit high treason.” Here it is more fully. He was a young man entering political life, and one of the young generation addressing one of the old.” Now, there was a little incident occurred in the examination of this witness. This witness was what would be termed “ true-blue” in some parts of Ireland; and not liking a gentleman who has a place near there, who is called “ General” Cloney, he said, very coolly, that he was “ an old insurgent of ’98.” I make that observation by way of showing how safely you may rely on the evidence of a person who, unasked, thought fit to express that opinion of one who is now living in the rank of a gentleman, and has some pro- perty, but who, according to the unwarrantable observation of the policeman, was an old insurgent leader in ’98. Mr. — I believe I may call him General — Cloney was a great friend of the late Mr. O’Connell’s, and was a friend of all the useful leagues with which the inventive capacity of that gentleman from time to time favoured the country. He was elected to the office of repeal warden — I do not know what year. This man goes on : “ He had been travelhng through the different towns in Ireland, and that there were clubs formed in a great many. There was a club formed in Enniscorthy, and also in Kilkenny ; and he heard they were about to form one in Graigue- namana, and that he had no objection to the formation of one.” Now, what does that prove ? That they could not have had a treasonable intent at that time. Where were their arms ? Where was the ammunition ? Where was the array ? Where THE QUEEN ^r. WILLIAM SMITH O’BRIEN. 599 was the intent expressed even in fleeting, transitory words ? He then says, he had no objection to the formation of a club in that town, which shows that he is looking to a peaceable organization in the country. He then says “ that the Habeas Corpus Act was suspended ; that it was in the power of the Government to take the noblest man in the land, put him into prison, and keep him there ; and then he advised them to beware of the law and commit no breach.” Now, gentlemen, imagine the way in which this case is conducted. Mr. O’Brien is dogged from one hotel, and from one spot to another. It is notorious to the police that there is an anxiety to convict this gentleman ; and here are the speeches ; and the worst speeches that can be made out are those which he makes at the very moment he first hears that there is a warrant issued to arrest him, from which it is impossible for the fertile wit of the Crown prosecutor to discover even a scintilla of e\fidence to make good his assertion, that Mr. O’Brien had then a treasonable intent. The same witness reports Dillon. Dillon speaks very openly. Tliis wdtness reports three speeches in a string. Now remark this, and carry it with you all through. Mr. O’Brien, in the first speech that he made, and the other speakers (he is not heard here at all) both of them on this occa- sion refer to the same topic present in their minds, an appre- hension of the arrest of Mr. O’Brien. Dillon said there was a warrant in the hands of the police for the arrest of Mr. O’Brien, and asked if they would be satisfied to let him go. The crowd said, no. He then told them that as many as would not let him go to put up their hands, and they aU did so; and then Mr. O’Brien and his party drove off to Kilkenny. Now, gentlemen, in trying to discover the intent of the prisoner, may I ask you if you have found, as far as we have gone — I ask myself as I proceed — a word against the Queen ; a word against the sovereignty of the Queen ; a word against her power, her majesty, her superintending authority in the land ? Not one word. The idea never crosses his mind ; and yet he is indicted for compassing the Queen’s death. Do you find one word said against the constitution, against England, or any vulgar diatribe on the part of Mr. O’Brien ? Certainly not. And so ends the second stage in this treasonable march. We come to Kilkenny; and, gentlemen, certainly I approach this part of the case with considerable hesitation and alarm. The revolution strengthens apace. The wicked and ferocious conduct pursued by the arch-traitor in Kilkenny has seldom been surpassed in the annals of human wickedness. It is proved that he walked down the streets of Kilkenny quietly, to which the policeman objected, with Dr. Cane’s son; and that he was left walking with two other gentlemen in the streets of Kilkenny. And then up came Edward Stephens, who gave a piece of evidence which ought never to be forgotten in the 600 SPECIAL COMMISSION, CO. TIPPERARY. annals of the criminal law. It was ushered in with aU due solemnity by the Attorney-General, with a gravity that nothing can disturb. ‘‘ Ah ! ” said my learned friend, ‘‘ I will satisfy your consciences of the criminal designs of the prisoner ; he went out resolved to take a view, in a military fashion, of the whole sur- rounding country, to consider what part of it he would destroy, and what part of it he would spare. And, accordingly, while the cattle show was going on, in a spirit of remorseless wickedness that has no parallel, he ascended the round tower in Kilkenny.” He did ; he went to the very top of that round tower, came down again, watched by the little boy, who is paid by the inspector for preserving a faithful record of that awful fact for the first law officer of the Crown. Henceforward a round tower will be an object of apprehension and alarm to me through my life ; and whenever I think of those memorials of the faith of an ancient people, I shall think of Mr. Attorney-General and the law of liigh treason. What defence is to be made for the pri- soner ? Ay, it may be said, in his reply, by my sagacious friend, the Solicitor-General — who has defended more prisoners than any man living — “there is a meaning in it; it is a Guy-Faux transaction.” He went up without arms — without having spoken a word — and, which is the climax of human wickedness, he went in to see Dean Vignoles at the bottom. I could have endured the case if he had only gone up the round tower ; hut both going up and then descending to visit Dean Vignoles, is too much for human nature to endure. I remember a gentleman who defended himself in a very peculiar case, when they proved a great number of things of this ridiculous nature against him, turning round to the jury and saying, “ Gentlemen, how am I to defend myself, when my acts of innocence are brought up as proofs of guilt against me ?” And he gained his cause. I never forgot it. The jury felt the force of that argument ; it touched their hearts, as well as convinced their reason. Every act of this gentleman is watched; every movement is noted down and commented on; every word that drops from his lips is treasured up by the police. A casual visit to a friend in the church is brought forward by the Attorney-General for Ireland to give colour to an innocent trans- action ; and the climax of his wickedness is, that he went up to visit and inspect one of the round towers of Ireland, concerning which, in the Academy to which this gentleman belongs, and of which I have the honour of being a member, many very fine essays have been written. I certainly shall communicate to my friend, Mr. Petrie, the danger he stands in; for as he has ascended every round tower in Ireland, he is an arch-traitor. How, gentlemen, have we discovered yet where the treason begins? You see we are following step by step ; and unless you are of opinion that the treasonable intent entered his mind on the round tower, where will you he able to find it ? That is the THE QUEEN t;. WILLIAM SMITH O’BRIEN. 601 highest point he has ascended yet. I suppose it existed in the imagination of the learned counsel for the Crown ; but I think giving those little incidents in evidence against Mr. O’Brien is of great importance. I tell you why. If, watched and observed in every corner and every hotel, they can get nothing better than that against him up to the 24th of July — I have only three days to account for altogether — I should like to ask the Court respect- fully — I should like to ask my friends, the counsel for the pro- secution, and you, gentlemen of the jury, who are to decide this case, where you can discover the proof of high treason ? Is not this the fact ? That Mr. O’Brien, on the day the cattle show was held in that town, walked peacefully, tranquilly, and without exhibiting any emotion, into the deanery to visit a gentleman with whom he has been long acquainted, where in truth he breakfasted The Prisoner. — No, no. Mr. Whiteside . — But to visit a gentleman with whom he had been long acquainted ; and then had the curiosity to expend a sixpence in ascending the round tower. Is it not a very painful circumstance to dwell upon ? Of all things in the world, in a free country, we hate the system of the spy. There is nothing that fills the mind with so much detestation, as the notion that the ordinary transactions of life are to be viewed, noted, criticised, and treasured up to be twisted and perverted into monstrous and unnatural offences at some distant day, when a serious imputation is to be levelled against the life and fortune of an accused man. And I think the Attorney-General would have done wisely if he had not attempted to give some prepos- terous bearing to that the most innocent act any man could commit in the ordinary and daily walk of life. Gentlemen, we now proceed on Monday the 24th to Callan ; it is the same day in point of fact; and at Callan, which is the next stage in the transaction, a speech was made, and the name of the witness who reports that speech is Constable Mahony. Now the observation I made before, I make now. This man who undertakes to report words made no deposition whatever. A man who wrote down immediately after he heard the speech might preserve it, but it is not so as to this speech. Mr. O’Brien says, according to this reporter, ‘'My friends, policemen, and soldiers, I am glad to meet you here. I am proud to be received here in such a manner at so short a notice. He also said he had to put a question to them — would they let him go ?” Now you see the same idea exactly prevails in Mr. O’Brien’s mind. “ Would they let him go if he should be arrested ?” The same ruling idea all through. “ Would they suffer him to be taken under a warrant that would thrust him into prison, and insure him no trial ?” He also said, “ he was glad to see policemen there, they had Irish hearts ; they would be better under an Irish than under 602 SPECIAL COMMISSION, CO. TIPPERARY. an English or Scotch government ; and he called on them re- peatedly to organize the clubs, for the time was at hand.” Not that they should reject the English or Scotch government, hut simply that they would be better under an Irish one. What is the idea that Mr. O’Brien always advocated? That an Irish govern- ment, and an Irish administration, responsible to an Irish parlia- ment, would be the very best form of constitutional government. He has always maintained that ; and to tell j)olicemen that they would be better under an Irish government than under an Eng- lish or Scotch one, surely is not any thing against the Queen or her authority, and it is not appealing to arms. I admit he asks them, “ Will you allow me to be arrested?” That was the very thing that caused him to move about in the way he did, to avoid and escape arrest. Gentlemen, this man who makes no depositions undertakes now to report the speech of Mr. Meagher. “ He was glad to see so many amongst them wearing the green; that he expected to wear it soon himself. They should trust the green as brother Irishmen ; their fathers, brothers, mothers, and sisters were among them. There were only two alternatives, either to lie down and have the halter placed round their necks, or to make one bold and determined effort to make Ireland a free and inde- j)endent nation.” Another man has it — ‘‘ to throw off the British yoke.” Why, “to make Ireland a free and independent nation” was what Mr. O’Connell never omitted in any speech he made on the repeal of the union. That is not treason, and you will be told so by the Court. We have not therefore yet found out where the treason lies. WeU, from Callan they pass on to Carrick-on-Suir. We are still on the 24th of July. There are two witnesses here, a person of the name of Coghlan, and another of the name of Hamilton ; and I beg to remind you of the curious manner in which the witness Coghlan gave his evidence. This person delivered the speech like a school-boy. He spoke to the jury with a degree of fluency that quite surprised us, but after a while we discovered what the truth was. The notes with which he refreshed his me- mory were written since he came to Clonmel ; and he says that these notes were a true copy of the original notes, that is, his information. So that he spouted for you the contents of his information, which he had laboured at morning and evening, but, not expecting to be called on to speak Meagher’s speech, he failed. That is the most powerful evidence that can be given of the dangerous character of this testimony. If a man was obliged to read, six times, on the very eve of the trial, an information made long before, with the view of refreshing his memory, what clear and accurate recollection of the facts, independently of that paper, could he possess? None whatever. And accordingly he ran on in a dull interminable style, spouting the speech which he had THE QUEEN 2 ;. WILLIAM SMITH O’BRIEN. G03 committed to memory like a school-boy, taught, I suppose, by his brother constables with a copy of the information. Six times he swore he read it before he made the depositions ; and he also said he had read Mr. O’Brien’s speech that very morning, and not having read Mr. Meagher’s he gave a thing to Mr. Meagher which, in truth, the other witness correctly did not give. This speech this man describes he heard in a crowd; that he had neither pencil, paper, pen, nor ink ; and that the people were moving backwards and forwards. The speech which he so poured out to you, is a speech upon which you are called to act against Mr. O’Brien. He said, ‘‘ Mr. O’Brien was surprised and delighted to see so large a concourse of people here to-day, particularly as I appear here amongst you so unexpectedly. I see and admire yom’ enthusiasm ; but the best way I can test or judge of the feelings of your hearts is by calling you at once to the field.” That is so unlike every thing that Mr. O’Brien has spoken up to that day ; it is so exactly contrary to what took place at Kilkenny, Callan, and Enniscorthy, that it is impossible to believe it, unless there was the clearest and most indisputable evidence of disinterested witnesses by shorthand writers or Government re23orters. It is not the duty of the police to report speeches. The man told me he never reported a speech before in all his life. This man appeared to be a dull heavy log ; he had studied at school for the last few days, and had read six times in succession the information that he might be able to spout it. And he told you, by the way, that Mr. Gore Jones was present in the crowd. Kow Mr. Gore Jones is a stipendiary magistrate ; Mr. Gore Jones is a gentleman of education ; he had his ears about him : you may rely on it Mr. Gore Jones had no affection for Mr. O’Brien; he would give either the contents of his trunk or his speech against him. Accordingly Mr. Gore Jones allows the ignorant policeman to come and j)rove that speech ; and although he is in court, he is not produced himself to prove it. Now suppose he had been produced, and did not hear it, what becomes of the evidence of the Crown ? I mean in relation to the speech; and if Mr. Gore Jones was there, or any other respectable man of the rank I address, and a policeman ignorant and unaccustomed to the art of reporting — which is difficult, and, as you may 2 )erceive, requires the most extraor- dinary scrupulous accuracy and diligence, particularly where people speak fast, and just after one another — I tell you it is one of the most dangerous things that ever took place in a court of justice, to adojR every word, and swallow every expres- sion these men may think fit to give you, in a crowd, remember, and under the circumstances which I have mentioned. Look to the rest of the speech; it contains the same ruling idea — “ I am about to be arrested.” He begins every speech with that remark ; and if you believe that was the prevalent idea — and you must 604 SPECIAL COMMISSION, CO. TIPPERARY. take a just and humane view of this case — these men prove nothing whatever against Mr. O’Brien but what I admit — that he was anxious and desirous of escaping arrest, did resolve unwisely to resist, and did get people to keep about him. Every act he did, every speech he made, and every place he went to is utterly irreconcilable with the notion of an intent to kill the Queen, or to set out on a great revolution ; hut it is perfectly consistent with my case from first to last. Well, he says, “he is about to be made the victim of English domination.” Then he says, and this is a boast which he might have made, “ that there was a time gone by, when if any of my blood, or my ancestors, were about to be seized on, there would be strong arms and stout hearts that would not allow it. I now ask you, will you allow it ?” That was what he apprehended. He was not thinking of the Government ; he was not thinking of the Queen ; of nothing general or universal ; it was partial, because it was personal and confined to himself, and the position in which he then stood. He says, “ I am about to he seized. If any of my ancestors were about to be seized, no matter by whom, there were strong arms and stout hearts that would not allow it. You have strong arms and stout hearts. I stand here and tell you that I want not place or emolument, that I have sacrificed near and dear family ties, and that I am now determined with you to sacrifice life itself. This is not the time for speeching.” Gentlemen, this sort of talk is not treason. If every observation was written down by the most careful shorthand writer, telling them they have strong nerves and stout arms, is not treason. Suppose they had, does he tell them to apply them to prostrate the power of the Queen ? Does he point to any other purpose than self-defence and protection? What other object could he have had ? What means or what money had he to effect a revolution ? What artillery had he ? None ; but the expectation of two swivels, of which I will speak hereafter. Was there ever a revolution made out in this way? Did ever mortal man begin to revolutionize a state in such a fashion as this ; going about sometimes attended by a little boy, and sometimes dismissing his army, and going to an hotel to sleep ? Gentlemen, Mr. Meagher says, “ when last I was with you it was on business connected with my country that is what this heavy constable puts into his mouth ; “ but now I am on Government business. The base and bloody Government has advanced one step lately. I will meet them step by step.” Now it is not likely this expression was used by Mr. Meagher. It is very unlike the other speeches ; and there is not a single observa- tion or word throughout the speeches like it, that is, “ the bloody Government of England.” It is totally unlike the language used by Mr. O’Brien, and very unlike the language used by Mr. Meagher ; because he appears on some former occasions to have THE QUEEN i-. WILLIAM SMITH O’BRIEN. 605 spoken with great eloquence and good taste, and that is a very coarse and vulgar mode of expression. But even if he did make use of those words, had taste is not high treason. Well, he goes on. ‘‘ That Government has trampled on all law ; that Govern- ment has refused to give us law, hut now we are prepared to give that Government no law.” And again he puts in a word on which you will suspend your judgment in my opinion. “ With packed juries and bloody judges they deprived you of the most gifted, and one of the most talented, citizens of Ireland. I tell you there is no law in the country, that is, I tell you everybody is now liable to be arrested.” That is wdiat he tells them. “ They threaten us with punishment, and the scenes of ’98 are talked of, but they can only punish us wdth death. I am ready to meet it in defence of my country.” Then comes the story which this unfortunate policeman so totally mistook and misapprehended, the allusion to the French fire-ship. Lord Chief Justice Doherty . — What was the part the jury were to suspend their judgments on ? Mr. Whiteside . — The part about the ‘‘ bloody judges,” my lord. I do not think that the word “ bloody ” is likely to have been used twice by any respectable man, or applied to the judges ; and I do not think it was made use of. In any case it is very coarse and brutal. But, on the trial of Hardy, a very offensive song, found in the pocket of Mr. Hardy (which the darkness prevents my reading), about packed juries and judges, was received and read against him, and I do not think Sir John Scott said it was treason. The orator tells the story of the French fire-ship. This clever reporter has altogether misapprehended it. There happens to be a book in towm which contains the allusion of the speaker. The policeman hearing the words might recollect fire-ship, but he would misapply it and misunder- stand it. So far from the allusion meaning treason or revolution, it refers to a beautiful incident told in the history of a naval engagement, taken from a popular work of great merit, “ The History of the Girondists,” by Lamartine. It is from the third volume, page 405. Six republican vessels were separated from the fleet, and marked by Howe’s ships. The morning must shine upon their surrender or confla- gration. The French admiral wished to save them, or be burned with them. Reflection had moderated the representative of the people, Jean Bon St. Andre. The fleet had done enough for the republic. The representative ordered a retreat. They accused him of cowardice ; they wanted to throw him into the sea. The La Montagne was nothing more than an extinguished volcano. This ship had received three thousand shot in her hull. All her officers were wounded or dead. Hardly a third of her crew survived. The admiral had his quarter-deck carried from under him. All the gunners were prostrate upon their pieces. The Vengeur, surrounded by three enemy’s ships, still fought; her captain was GOG SPECIAL COMMISSION, CO. TIPPERARY. cut in two, lier officers mutilated, her sailors decimated by grape, her masts shattered, and her sails in rags. The English ships kept clear of her as of a body whose last convulsions might be dangerous, hut which could not escape death. The crew, intoxicated with blood and powder, carried the pride of the flag even to suicide en masse. They nailed the colours to the stump of a mast, and obstinately refused all quarter, awaiting only until the water, which, from minute to minute, increased in the hold, should shelter them under its wrath. As the hull submerged gradually, plank by plank, the intrepid crew launched forth the broadside from every gun the waves still left uncovered. The lower tier extinct, they ascended to the higher, and discharged that upon the enemy. At last, when the sea swept clean over the ship, the last broad- side blazed forth on a level with the water, and the crew sank with the ship amidst cries of ‘ Vive la Eepiiblique* The English, struck dumb with admiration, covered the sea with their boats and saved a great part of them.’’ You now perceive what this young orator is alluding to, that it has no sort of reference or application to any definite plan, or to any distinct movement ; and it lies on the Attorney-General to establish what the treasonable intent was. My lords, I am afraid it would be difficult for me to proceed much further to-day. The Lord Chief Justice . — I think it would be better if you would just finish these witnesses. Mr. Whiteside . — I have done with Carrick-on-Suir, my lord. The Lord Chief Justice Then, perhaps it wiU be better to adjourn now. Mr. Whiteside. — Yes, my lord. It is just the place to break off, and by classifying the rest of the evidence by to-morrow we shall save time. The Lord Chief Justice . — I thought you might have had some more observations to make on that point. Mr. Whiteside. — No, my lord, I have finished on that point. [The Court then adjourned till ten o’clock the following morning.] Thursday y October 5, 1848. [The names of the jury were called over, and all answered. The prisoner was placed at the bar.] Mr. Whiteside . — Gentlemen of the jury, in the course of what I addressed to you yesterday I endeavoured to convey to you the principle upon which the case of the prisoner rests, and I stated to you, more than once, that by the law as it exists, supposing Mr. O’Brien had been convicted in Dublin when he was tried for sedition, supposing he had been sentenced and put into prison, THE QUEEN u WILLIAM SMITH O’BRIEN. 607 to break into that prison and take him out would not be high treason ; and, therefore, much more strongly and clearly to endeavour to escape arrest, does not fall within the law of high treason. My lords, I omitted to mention a case before Lord Hale, which I have abstracted from Ventris’s Reports. It is the case of Captain C . “ A captain of a company in Colonel Russel’s regiment of foot guards, and a sergeant of liis company, were brought into court upon the prose- cution of the sheriffs and other citizens of London j and the offence alleged and moved against them was this — that one Daubert, a butcher, and freeman of London (who had broke), having listed himself a soldier in this company, and being afterwards arrested in London for debt, and laid in the Compter ; and thereof he having given the captain private notice, the following design was resolved upon and executed for his rescue, there being a privilege among the freemen of London, that they may, by a customary precept or warrant (called a duci facias, but by the common people called a horse), remove themselves from any other prison where they are, in London, to Ludgate, where it seems they have better accommodation (there being maintenance allowed to the prisoners of that place). Such an one Daubert got, and gave notice to the cap- tain at what time he should be carried from the Compter to Ludgate thereby. Before this time the captain commanded this sergeant to take twenty or thirty soldiers with him, and waylay the prisoner, and rescue him from the bailiffs and officers of the Compter as they were bringing him along.” It was clone thus : a judicial order was got to carry the pri- soner from one prison to another, and then the soldiers rescued the prisoner from the officers of justice as they were bringing him along. “ Accordingly the sergeant and soldiers went, and lay in or near an ale- house about Pope’s Head Alley in ambuscade, till the prisoner should be brought by ; and when they had notice from one whom they had placed as sentinel that he was coming, they sallied out and drew their swords (for the sergeant had given them orders so to do, and if any opposition were made, that they should kill the first man). And by this means they rescued him, and carried him away. Hereupon complaint being made to the captain, he answered that his soldiers had done well, and he would justify it. Lord Hale asked ^ what he had to say in justification.’ The officer said ‘ that he did not know the law, but he ever thought that a soldier could not be arrested without leave of his officer.’ Lord Hale then says, when the military were brought before him — ‘ You arc grown very headstrong ; but you ought to know, that every officer and soldier is as liable to be arrested as a tradesman or any other person whatsoever, and you ought to give full obedience to the King’s commands, signified by his writs of process.’ Wylde said — ‘ That may be served upon you when you are at the head of your company.’ Lord Ilale further said — ^ You are the King’s servants, and intended for his defence against his enemies, and to preserve the peace of the kingdom not to exempt 608 SPECIAL COMMISSION, CO. TIPPERARY. yourself from the authority of the laws.’ He then said — ‘ If men will take on them to rescue all soldiers that are committed, it may be within reach of high treason, because of the universality of the design against the King’s authority ; hut this being but for one particular, it cannot be treason, but it is a rank misdemeanour.’ ” Those are his words. Now, gentlemen, what I have just cited to their lordships cer- tainly seems to have been a very startling case. The sheriff of London had arrested a broken merchant for debt ; he then, by imposture practised on the court, got an order to remove him to another gaol ; the officer commands the sergeant to take a body of soldiers, and cut down the officers of the law if they resist. They do, in point of fact, make an ambuscade ; they do, in point of fact, assail the officers ; they rescue the party who had the judgment of law against him, and the learned Lord Chief Justice says that is not high treason, but rank misdemeanour. It was not high treason, because it referred to a particular individual who wished to escape, because it wanted that which, in this form and this species of the crime of high treason, constitutes it — universality of design. To make an agreement to break into all prisons to rescue all prisoners would be high treason. To combine to rescue a single prisoner is not. To agree to take all men out of the hands of the civil power might approach to high treason ; but to agree to protect one man undoubtedly is not treason; and if that be your judgment on the facts of this case, an acquittal on this charge would follow as a matter of course. Gentlemen, we will now pursue the train of our investigation. I left off yesterday at Carrick-on-Suir, and I drew your attention to a long speech represented to have been made by Mr. Meagher, which contained language so very gross, that I called on you to disbelieve that he uttered it. It is not likely that any one in the rank of a gentleman would apply language such as he is said to have used to the judges of the land — it being at the same time foreign to the subject-matter on which he spoke — it is not likely that the words, which I do not repeat, were uttered by him. In very many cases this sort of evidence has been attempted to be given to swell out a charge of high treason. Now, for example, in the memorable case in my hand, in which the Attorney- General behaved in a very different manner to that in which things are now conducted. There was a society existing in London, which Lord Eldon, then at the bar, thought he might make out to be treasonable. He arrested every man belonging to it, and having arrested and secured their persons, he then applied to the House of Commons for a suspension of the Habeas Corpus Act in respect of the very persons whom he so arrested, naming particular individuals who might fall within the like rule; and he immediately proceeded to try them for that offence, of which they were acquitted. There were many docu- THE QUEEN t;. WILLIAM SMITH O’BRIEN. 609 ments and speeches of this nature — calling the House of Com- mons “a scoundrel house,” vihfjing the House of Peers, declaring ‘‘there was no use in seeking justice from them,” and all to that effect. On the person, or in the house of Hardy, was discovered this kind of production, which will show you the character of the evidence on which it was sought to spell out high treason : — “ Why should we vainly waste our prime, Repeating our oppressions '? Come rouse to arms, ’tis now the time To punish past transgressions. ’Tis said that Kings can do no wrong, Their murd’rous deeds deny it; And since from us their power has sprung. We have the right to try it. Come rouse to arms, &c. “ The starving wretch who steals for bread, But seldom meets compassion. And shall a crown preserve the head Of him who robs a nation ? Such partial laws we all despise. See Gallia’s bright example; The glorious light before our eyes, We’ll on every tyrant trample. Come rouse, &c., &c. “ Proud Bishops next we will translate Among priest-crafted martyrs ; The guillotine on Peers shall wait, And Knights we’ll hang in garters ; These Despots long have trod us down. And Judges are their engines; These wretched minions of a crown Demand a people’s vengeance. Come rouse, &c., &c. “ Our Juries are a venal pack. See Justice topsy-turvey ; On Freedom’s cause they’ve turned a back Of Englishmen unworthy. The glorious work but once begun, We’ll cleanse the Augean stable, A moment lost, and we’re undone. Come strike while we are able. Come rouse, &c., &c. “ The golden age will then revive. Each man shall be a brother, Fraternization ! In peace and harmony we’ll live. And share the world together ; 2 R 610 SPECIAL COMMISSION, CO. TIPPERARY. In virtue train’d, enlightened youth Will love each fellow-creature, And future ages read this truth, That man is good by nature. Come rouse, &c., &c.” Now, there were many documents of that kind found, the case fills a volume. How did the then Attorney-General proceed ? He got the secretary of the association and the officers, put them on the table, and examined them to get at the true history of the association. That was the fairest course which any man could possibly take. It is perfectly true. Hardy and his allies did say many things which ought not to have been said, and wrote many things which ought not to have been written, that were gross, scandalous, and false, but still their advocate succeeded in satisfying a jury that it was not a case of high treason. There is a curious circumstance recorded of that trial. The Attorney-General took five days to make out the case; and it is reported that one of the English jurors said, when he went to consider, that he would never convict a man of high treason when it took a week to prove him guilty. Gentlemen, the next stage in our transaction is that which relates to Mullinahone, and we have now arrived at the 25th of July. I think, if I recollect the statement of the Attorney-Gene- ral rightly, he said the levying of war began clearly in Mullinahone ; therefore it is an unportant stage in the transaction. Up to this moment you perceive nothing has been done. Whatever speeches were made at Enniscorthy, Callan, or Garrick, no act was done, no transaction took place at that time, or at those several times, and no particular thing w^as expounded or explained by these speeches. They were vague, unmeaning, referred to nothing, and were general declamations ; but in every one of them, from first to last, is stated, that JMr. O’Brien was apprehensive of being arrested and wished to escape from arrest. Now, I have not overstated them in the least. When we arrive at Mullinahone we have three witnesses to consider — Williams, W^iggins, and a person named O’Sullivan. Now it is worth observing, that what- ever took place in Mullinahone, no living human being of that town has been produced to prove it; no inhabitant, no resident, no shopkeeper, no householder. The evidence in relation to Mullinahone consists of two particulars — what is called marching up and down the streets, and the visit to the police barrack. Respecting the visit to the police barrack but two witnesses have been called ; and one of those witnesses, or rather I believe it is O’Sullivan, speaks of a conversation in the streets of the town between the priest and Mr. O’Brien. Now it is very remarkable that the priest is not called. It seems to me very curious. These gentlemen just appear for an instant on the scene and then van- ish. You just hear of a priest appearing for a moment to protect, THE QUEEN t;. WILLIAM SMITH O’BRIEN. 611 as it were, tlie civil power and save them from destruction, and then he vanishes. The chapel bell is generally rung, which one would suppose would waken his reverence to what was going on, and yet he is never called to explain to us any thing which took place. His evidence would have been received with respect, for we must sui^pose that he is a man of truth ; and it is never to he forgotten, that to poll the constabulary one after another, who drew up their informations as to words, six or eight weeks after the transanction occurred, is not a satisfactory kind of evidence on which exclusively to rely. I think it is not satisfactory, and it is to he regretted, that no one inhabitant of this town or dis- trict has been called to speak to this transaction. Now we have Williams, who says that he saw Mr. O’Brien at five o’clock on the 25th of July. There were then about — how many do you sup- pose when the revolution began? — twenty persons present. He saw him standing against a wall. In the evening at Wright’s there were about two hundred persons present, and then he reports this speech. “ Mr. O’Brien said that a warrant was out for his arrest, and if taken, he thought he should be hanged. He wished to ascertain from the people whether it was their wish that he should surrender himself; if not he was prepared to resist any attempt that might he made to arrest him. Mr. O’Brien saw witness and said that he had no anxiety whatever to shoot a policeman ; that he had a great respect for them, that he wished the people to treat them with every degree of courtesy and civility ; in fact to treat them as brothers till they should merit the contrary, and then to meet them openly, but by no means” — mark these words — “but by no means to take any advantage of them.” That is, not to be guilty of any act of cruelty or treachery towards them. “ He then said, there would be another form of government in less than six weeks.” The witness in passing says, “ that is not in my information.” Now just weigh that single admission of the witness. He throws in a sentence wdiich is quite equivocal, which is often said in ordinary, casual conversation ; but suppose it w^as to have a criminal meaning, this man when called on to state every thhig that passed, should have stated that fact, and not introducing it when he makes the information on the 6th day of September, which is a good wdiile after the transaction of the 25th of July; he is not to be allowed to freshen his recollection as he proceeds, and to add a treasonable item each time he thinks it right to refer to the transaction. Now, Mr. O’Brien followed up this expression by another sentence which the policeman gave, and it is in these words — “ all vacancies would then be tilled by Irishmen.” Why, that will be a happy day, w^henever it arrives, with regard to the poor law and all the other establishments of the country. That last sentence, if he ever sjDoke it, means that when there was an Irish administration, such as he has alw^ays contended for, the situa- tions and vacancies in this country would be filled by Irishmen. 2 R 2 612 SPECIAL COMMISSION, CO. TIPPERARY. The substance of that speech is given by another witness, named O’Sullivan, who speaks to the transactions of the two days, and who gives it in these words, he says : — “ He spoke from the w'all and said, that now was the time for the people to rouse and seek for their rights ; that the Government was very near a change ; that there was a warrant against himself, and that he hoped the people would not let him he arrested; that Irishmen could hold their own places and their own government and situations in place of Englishmen.” In which I am sure the Attorney- General most heartily agrees. Now in such a speech as that, what is there said to justify the pretence of a treasonable intent ? What is there said about the form of Government ? What is there said about whether there should be a monarchy or a republic ? What is there said about a republic at all ? What is there said against the Queen? What is there said against the House of Peers? What is there said against the connexion of England in the sense in which he has always contended for? Nothing. It is a mere personal object that is alluded to from first to last. It is not connected with any general purpose. No general plan is stated ; no general mode of action is pointed out, but what is paramount in the mind of the speaker is, “I am apprehensive of being arrested.” That is the single topic referred to ; that is the sole subject-matter of the discussion. “ Will you suffer me to be arrested ?” They said they would not. I apprehend there is no book, case, dictum, nor decision, in which a speech of that kind was ever held to be a proof of a treasonable intent in the mind of the speaker. One of these men remarked, that “ there was nothing further done.” That is the whole of what then passed. No act whatever took place founded on that speech ; no outbreak ; no instigation to outbreak ; no desire to invade property ; no wish to interfere with property ; no wish to treat anybody with disrespect. It is so totally different to the case I referred to, that it seems to me one of the most mitigated transac- tions in which it would be possible for a gentleman, circumstanced as Mr. O’Brien was, to participate. O’Sullivan (the other two men were policemen), describes himself as a policeman who had left the force. Those were the entire witnesses, all drawn from the constabulary. He says Mr. Cahill met him, and Mr. Cahill, who knows the matter better than the policeman, does not appear to corroborate the story. Now, gentlemen, as to the method of what they called “ march- ing in the street.” He says “he saw Mr. O’Brien marching through the streets, that other persons walked with him.” Then he is pressed to tell in what manner they walked, and he says, “ two deep.” That is not proof of treason or any crime — and that is all the proof — unless connected with some treasonable purpose. He says, “he returned to Wright’s after dusk.” Then he says, “ the people after that period of time had increased, THE QUEEN v. WILLIAM SMITH O’BRIEN. 613 and Mr. O’Brien told them to get their arms that he might see their strength.” He says he saw arms with Mr. O’Brien, which he describes, and that some of the people had arms. Now sup- posing this evidence to be true, it all confirms my case. He says there were five thousand persons in the town. The Solicitor- General In Mullinahone ? Mr. Whiteside. — Yes. The Solicitor-General . — You said Garrick. Mr. Whiteside . — I beg pardon then, I meant Mullinahone. He describes the crowd as altogether about five thousand men. I do not mean to impute to the man, because he made a mistake, a wilful disregard of his oath ; but when you find a man making such an assertion, and exaggerating in such a remarkable man- ner the truth of the case, you see very clearly, if he exaggerates in one particular, how possible it is that he may do so in another. The other witnesses to the same transaction say, perhaps two thousand. Now he says he saw people go up and down the street, and he says, which I thoroughly admit to be possible — for it is quite consistent with my case, from first to last — that armed people were about Wright’s house. Wright’s house was where Mr. O’Brien went and slept, and he says he heard Mr. O’Brien give directions to guard him that night. One of the jury then asked a question in respect to what was to be done with the armed men. He said “ Mr. O’Brien wished to be guarded that he might not be arrested.” So you see, to whatever point we turn in this transaction, that the idea is paramount in the mind of Mr. O’Brien, that he would be arrested ; and that even when he went to sleep in the house of Wright he thought he might be taken there; and consequently the armed men are paraded up and down the door, as the witness told the juror, to guard Mr. O’Brien in order that he might not be arrested. Next, gentlemen, we come to the transaction of the visit to the pohce barrack. This is a transaction which the Attorney-General thought of a very serious nature. Observe what his case is. His allegation is, that the prisoner was bent upon a revolution. Men that once engage in a revolution must be bold and daring ; their actions must be well conceived and sudden, if they mean to have success. It is not by politeness and civil speeches they are to succeed ; there is no instance of that in the history of the world. What takes place is, that Mr. O’Brien, according to the evidence of O’Sullivan, had a large body of men in Mullinahone, who would be likely to act under his control ; that he had men guarding him to the number of twenty and not beyond that ; and twenty, as appears in several stages of the transaction, as I will show you, may have been there. At all events he had a sufficient force to effect what he desired in Mullinahone. Now, the argu- ment on the part of the Crown is, that he intended to effect what he wished ; that having the power he had the wish ; while the G14 SPECIAL COMMISSION, CO. TIPPERARY. fact is, as I have shown, that having the power, he had not the wish. They say to you, that you must believe Mr. O’Brien had the treasonable intent to accomplish by force what he desired. They then show that he had a sufficient force to do what he wished in Mullinahone, and that he did not do it. The fact that he had that number of persons under his command, or willing to act to protect him. and that he did not employ that force for any purpose whatever in opposition to the police, is the strongest and best argument I can possibly put forward; because it is one derived from the facts of the case, which cannot err, and which is very unlike the account that a slippery memory gives of past speeches. What follows here as to this barrack ? I believe the whole force in it consisted of but six men ; I believe there were but four in the house. Now, of those four they have called but two, and I certainly do regret that the Attorney-General did not call a third, that we really might have known whether one of those two men was in the barrack at all, which is very doubtful. Why did not they call the rest ? Others of the police, we understand, were brought up to Dublin, and swore informations ; and it is very remarkable, that on this simple transaction, of great importance, as the Attorney-General alleged, that they did not call the other two, or the two that were in the street ; two were in the barrack and two were in the street. Now that is very curious and sin- gular indeed, wffien particular words are sworn to in the subse- quent month of September. But, at all events, the barrack-door lay open, there was no obstruction to anybody walking in. ere the police in any alarm from what passed the night before ? If so, what was their conduct ? They left the door of the barrack open, and put their arms up stairs. They began to prepare their things for packing, and they had not, I believe, arranged their breakfast. Now that was the position of things. Does that look like an armed revolutionary proceeding, or a levying of war in the town of Mullinahone? It is impossible that you, twelve rational men, can believe it, because, you must refer to and compare the evidence of his conduct with the statement of the Crown prose- cutor ; and if that evidence of conduct does not correspond with the statement, you must at once dismiss it from your minds. But Air. O’Brien does enter the barrack, and the observation of the policemen was, and indeed they have repeated it two or three times, that he was dressed “ something like a military officer.” Now what is meant by “ something like a military officer” is this, that he had a cap of a certain club — but that form of cap has been worn by a great number of persons in Dublin, I believe they call it the ’82 club. Air. O’Connell wore a cap, and I remember hear- ing it said, but it was not generally believed, that he meant to be crowned with it at Tara. He used to raise that cap, and put it on at particular times, I have to tell you, subject however to be corrected, that if a man wears a cap it is not in itself a badge THE QUEEN v. WILLIAM SMITH O’BRIEN. 615 of Ligh treason ; and if any of yon choose to buy a cap and wear it in preference to a hat, even if you choose to wear gold on it, or on your coat, is nothing to the matter, unless you do some- thing to bring you within the language of the law. The witness says, ‘‘ Mr. O’Brien had a stick with a spear in his left hand ; that he had three pistols ; that there were two persons with him ; that one had a double-barrelled gun, and that Mr. O’Brien came in and said, I want your arms.” The policeman said, “ I cannot comply with your request ; we can only part our arms with our lives.” Mr. O’Brien observed, “ did you see the display here last night ; had you not better give up your arms ?” I now come to a sentence which I flatly deny, and will prove, too, by extrinsic circumstances, never occurred. “ Follow me to Callan, and I will place you under pay and this is the observation, “ that a barrack would be attacked that day with five hundred men in it.” Now this is addressed to the policemen. We will first speak of the latter part of this sentence. I have asked the police, who have been called through the various stages of the transaction, what barrack in the country had five hundred men in it. There is not one ; that is, to the knowledge of the person ; but we all know that there is not one. So that to say, we are going to attack a barrack,” which must mean a police barrack, “ with five hundred men,” they being policemen whom Mr. O’Brien ad- dressed, must have known that to be a pure fiction. Six or eight is about the number that are in the out-stations ; and I think the officer said forty or fifty would be a very large number. Therefore, a foolish bravado of that kind never could have taken place ; because it could have had no effect on the minds of the persons to whom it was addressed. If you desire to impose on a man who has it in his power to comply with your wish, you will address to him such an argument as is consistent with his knowledge, his position, and the circumstances in which he stands. If you said to a policeman, I will attack a place where there are ten, twelve, or fifty, it is quite consistent ; but to say you ■will attack a station where there are five hundred men is rank nonsense, and cannot be true. It means nothing, he knows it, and it would produce the very contrary effect on his under- standing. Then he adds this other observation, “ come follow me to Callan.” I ask you to disbelieve that. Was Mr. O’Brien going to Callan? That is an addition to the story. He did not intend to go to Callan, and the policeman knew that he did not move one step towards Callan. His party had not expressed an intention of going to Callan. In the speech he made in Mullinahone he did not intimate that he intended to go to Callan, therefore they might as well have put in that he intended to go to Cork. I therefore call on you to reject that on the same argument that I applied before. Here is a police- constable — I do not cast any reflection upon the veracity of the 616 SPECIAL COMMISSION, CO. TIPPEKAPY. members of that most valuable body — but I say a man in his rank of life coming forward on the 6th of September to state these words, must be listened to, as to words, with the utmost doubt and suspicion. But now, what is it he said in answer to that ? He said in reply to that, ‘‘ I would be unworthy the name of an Irishman if I gave up my arms.” Then Mr. O’Brien said, “he would give him an hour to consider of his proposition, and when the hour arrived he would have five hundred men up there with him.” Now just remark that. He had the men according to the statement of the Attorney- General. 1 do not know whether it was not five thousand that he had at his command. He tells the policeman, I wdll be back in one hour with five hundred men to take from you your arms. Now, if he wanted to take the arms per force, of course it is natural to expect that he should do something like it if the police remained. Why, the police remained four hours longer in the town of Mullinahone. What doing? Packing up their furniture, and pursuing their ordinary avocations, and they afterwards breakfasted. And this conquering revolutionist, who was to have seized the kingdom, forgot to perform his promise and come back for the four muskets. But that is not all. He might not desire to come back to the barrack, but he might intercept them on the road. They march on the high road fifteen miles, and no human being meets, molests, or accosts them, and the hostile revolutionary party disappear. That is levying war. That is clear, actual, proof, says the Attorney- General, of levying war. But, gentlemen, the circumstances of the visit are a little curious. The room into which it is said Mr. O’Brien entered is the ground floor. The men were preparing their things below, and their arms were above ; they were unarmed, and the police- men (you may be sure they do not diminish any fact), with a view to show their own heroism, have described the three persons who went in, one as armed with a double-barrelled gun, another with a different form of gun, and Mr. O’Brien with three pistols. So that you have two armed men, and Mr. O’Brien saying, he wants the arms and will take them. What does he do ? He walked up, stood beside the fire-place, and the entire transaction lasted two minutes. The levying of war began and ended in two minutes, putting the title of Queen Victoria to the crown in imminent jeopardy. Two minutes! They cannot go beyond that ; when they are pressed, how long did he remain there ? they all answer, two minutes and no longer. I ask you, can you believe seriously that that is proof of this overt act of high treason ? The Attorney-General stated it was one of the most important, or the most important one, and it is indeed the only important one, because there is nothing before but mere talk, and that never was held to be criminal yet in the sense of high treason. THE QUEEN v. WILLIAM SMITH O’BRIEN. 617 But will you believe such a curious visit of two minutes to a police barrack establishes the Attorney-General’s propo- sition contained in his indictment, of a clear overt act of levying war, which is a fact to be proved by clear indisputable evidence, not merely of levying war, but levying war against the Queen ? Appearing in arms, as I told you before, is nothing ; having arms is nothing ; marching with arms is nothing. If it was, every one of the Orangemen of the north of Ireland might be indicted for high treason at the next assizes for the doing an act against the Queen ; and do you believe that visit of two minutes establishes clearly to your satisfaction an overt act of high treason within the language of this indictment ? And then one of the jury, to whom I am indebted for it, asked the witness about this pike. It was certainly a ferocious proceeding on Mr. O’Brien’s part, for the witness says he put the head of the pike to the ground ; in order to carry his manoeuvre witli a high hand, he trailed it on the ground, and he is not quite certain whether it was not a walking- stick or a thicker form of stick. But was it a pike ? Quite the reverse, from the description given of it. And lest it might possibly be conceived that he had the intent which Mr. Attorney- General ascribes to him, he carries this so called pike with the point to the ground ; and that is one of the pieces of testimony upon which you are called to say that he meant to levy war. They do not levy war that way in France. My friend starts with horror when I mention France ; but when the French workmen began to overturn the throne, it was not by carrying their pikes on the ground that they did it. It was in a very different fashion indeed. By-the-bye, I have the answer of one of those men with reference to that stick, I am now speaking of Wilhams, who said that it might be used as a walking-stick. He did not present it at any body ; he did not use any force. But there was one closing circumstance with respect to this visit, for which I am also indebted to a few questions put by one of your- selves, to explain what I meant. Now it is ushered in by a flag. In all the cases which I have referred to there were flags borne in procession. Lord George Gordon had many flags. There is no objection to your having a flag, if you think fit, of any colour you please, notwithstanding what has been said on this subject, and I may walk out now and carry any flag I please on my stick. But the reasoning here given to it I admit had point ; and my learned friend was quite justified in referring to it if it sustains his alle- gation. What was his allegation? You ought always apply the evidence given of each transaction to the statement of the Attor- ney-General, and then see, coupled with the indictment, whether the allegation is made out. His allegation was that there was a levying of war. To sustain that it is necessary to make out that there was a marching, and a marching in a military fashion, and for that purpose the flag was introduced. They marched with a 618 SPECIAL COMMISSION, CO. TIPPERARY. flag. Very well; what kind of flag? Why, unfortunately for the indictment, this overt act, and my friend’s argument, he has again perverted an innocent circumstance, just like Mr. O’Brien’s ascent to the tower, into a badge and proof of guilt. In answer to a juror, the witness said it was a Scotch shawl. The Attorney- General . — A sash the witness called it. Mr. Whiteside . — I wrote down the words; the witness said, like a Scotch shawl. Lord Chief Justice Doherty . — That is in reference to the sash. Mr. Whiteside. — Well, a sash — the military sash of the leader of the revolution, in order to point out the leader of the party from the rest of the troop. A sash, take it now with my learned friend’s correction, worn for military purposes ; a sash worn to denote a hostile bearing, manner, and intention against the Queen. I think I rightly state it. And what is the sash which the Attorney- General perverts into a proof of guilt ? In answer to a juror the witness said it was a Scotch shawl, such as is frequently worn by gentlemen. Just see in what a manner this prosecution is endeavoured to he made out. Innocent facts and circumstances are endeavoured to be twisted, perverted, and coupled with an undoubted fact, in order to give to that fact, which is relied upon as proof of high treason, a guilty meaning and complexion which, in its own intrinsic nature, it never could bear. The alle- gation is, that Mr. O’Brien left town on this revolutionary campaign without any arms, with this portmanteau which you have heard of. They have not proved that there was in that portmanteau any daggers, pikes, blunderbusses, pistols, or any other weapon, powder, or hall ; and you may rely on it they would have been preserved in the limekiln if any such things had been. Consequently he had no arms. All he wanted was to have a j)i’otecting party to guard him from arrest. I should have wished to have heard the evidence of the other two men as to this transaction, for it is not satisfactory in a short transaction of this kind, wliich could not have occupied more than five minutes in the recital of it on the table, to have the evidence only of those two men who were examined. It would have been much fitter for the Crown to have produced the other two ]nen as witnesses, than to have upheld their cause by a dozen witnesses who proved nothing to support it, but only obscured it. Now, gentlemen, remember the allegation of the Attorney- General; and I dwmll on it, because this is his first overt act of levying war. The witnesses have disproved positively that it was levying war. They wanted arms and would of course express their object. One of you asked whether they said for what purpose they wanted the arms, and the man answered, “ no, they did not.” From that you are to infer that their object was treasonable. It is not in the Attorney-General’s power to say, “ I will give probability.” He must give demonstration ; and wdien you THE QUEEX WILLIAM SMITH O’BIilEN. 61 ^ asked the witness, “ did they say for what purpose the arms were wanted and he answers no, they did not,” then it is per- fectly plain the purpose may be innocent, and you are to infer in favour of innocence rather than guilt. He adds, that from that time he never saw them again. And what became of this army that was levying war against the Queen ? It does not appear that these persons who were attacked in this warlike manner can give you any account, for they never saw them more on that day. Gentlemen, that is the entme in substance, ^nd I think also as to particulars, of the MuUinahone transaction. You remark no interruption of the police ; no confirmation in the narrative of the police in any thing ; no attempt to take arms by force ; no march to attack any police barrack of any kind or description at any time or place in which the civil authorities were, as occurred in the case to which I referred you yesterday, of John Frost, who boldly marched into the town, and shot the magistrate although he did not kill him. There is nothing of that kind here. I again draw your attention to the fact, that they rely here on the equivocal statement of two policemen as to what was said in the barrack. There was nothing continued, no act done, no act relied on by the Crown but what I have stated to you. I, there- fore, with great respect submit to your better judgment that you will not, and cannot adopt the Attorney-General’s strained and forced construction of that evidence, and hold it to be a levying of war. In reference to that cap, which I before adverted to, I find at the end the cross-examination of the witness Wiggins — I do not think it necessary to read his evidence, because in sub- stance it is the same as Williams’ — that he says the cap Mr. O’Brien w^ore was like O’Connell’s cap. He says also that the whole transaction did not last two minutes. That is the second man’s account of the transaction. I have also to draw your attention to this fact — that w^e not only proved that information was given of these words in September, but we j^roved that Wiggins took no note whatever of what was said by Mr. O’Brien. [ can understand a man not making an information for some time, and being able to produce the original paper on which, at the earliest opportunity, he wrote down the words spoken. This witness admitted he took no note whatever of what was said by Mr. O’Brien. Try it by your own memory. Could you this instant give accurately a casual conversation which you may have had with any person six weeks or two months ago ? This gen- tleman, who sits under me, the reporter of the Government, who is one of the most skilled men in his profession, if he tpok no original note, would not presume to do it. And when the con- duct, and acts, and every thing that passes between parties in reference to what was spoken, or alleged to be spoken, contra- 620 SPECIAL COMMISSION, CO. TIPPERARY. diets this allegation, it is impossible for a jury, with any degree of satisfaction, to rest upon this as a piece of testimony in a prosecution for high treason. Gentlemen, we now come to a witness named Michael Tohyn, and his evidence is certainly very obscure, hut it is not of much consequence. He says, ‘‘I brought a car to my master’s house, and two men got on the car, and then they went away, and drove towards Garrick,” forsooth, “ and then they came back to Mullinahone, and then drove towards Ballin- garry” — driving backwards and forwards. Then he says that six miles from Mullinahone these persons overtook some people on the road with arms and pikes, and the gentlemen got off the car, and went among the crowd, and so proceeded to Ballingarry. Some one spoke aloud on Bishop’s car. Now that evidence, if it does relate to Mr. O’Brien, just leads me to make one obser- vation. The crowd there spoken of was not a crowd with him, but a crowd coming to meet him. He was leaving Mullinahone and going to Ballingarry, when the persons spoken of by this car-driver met Mr. O’Brien, and they were not persons who were under his control or authority going from Mullinahone to Ballingarry. Give me leave to say that if, without previous concert or conspiracy, a number of persons marched out to meet O’ConneU, or any other popular favourite, the fact that they came out to meet him would not prove, by any means, that he organized and arranged that meeting. And this witness describes those people as a crowd, and with individuals of that crowd he saw arms and pikes. That is all he said on this subject. They did come out, and they all went into Ballingarry. And now, gentlemen, we are at Ballingarry, and from that town we have originally two witnesses, to both of whom I must direct your attention, named William Egan and Thomas Burke. Egan certainly falls within the class of witnesses whom I before submitted to you might have been called from each town. He is an inhabitant of the town ; he is not connected with the police force, nor interested in the prosecution, and, therefore, w^e may advert to his account of this transaction at Ballingarry, where we now have arrived, and see what it is he states. First, he says ‘Tie lives in Ballingarry, and knows Mr. O’Brien, and saw him ill Ballingarry two or three days before the fight. He was coming in the direction of Mullinahone up the street with many persons. Having passed the Cross, he says, when he saw him first there were no arms then amongst the crowd.” It appears to me, and the evidence of this witness strengthens the belief, all through this proceeding, which is relied on to establish high treason, that the armed men first make their appearance when it is necessary to afford protection to Mr. O’Brien from arrest. This man swears that “ at first there were no arms ; he saw a pistol or something Rke it in his breast, which he might have for his protection.’^ THE QUEEN v. WILLIAM SMITH O’BRIEN. 621 And tlien lie proceeds to give the first speech of Mr. O’Brien, and what is it? It is the same thing over and over again, and it really seems as if the first speech made at Enniscorthy might have been stereotyped for the entire of this week. He begins — “ Mr. O’Brien said he was in dread of being arrested, that there was a warrant out against him, and asked would the people stand to him.” I make again the same remark, what proof is there of a general design ? what proof is there of general treason, of a revolutionary object or plan ? It is for the Attorney-General to make out that plan ; and this accounts for his attempt to connect all the ante- cedent proceedings of the League, which I will show you, when I come back to the evidence of the informer, is the only thing they have to stand on here to make out a general plan. This speech proves that up to this moment of time Mr. O’Brien was adverting to the same single, isolated, predominant idea in his mind as to his arrest ; for I avow to you he thought the suspen- sion of the Habeas Coiyus Act unconstitutional, and that Lord Clarendon meant to lay hold of him and put him into gaol, not to try him, but with the purpose and intention of keeping him in prison for a twelvemonth without a trial, and he wished to escape that. Where is his speech proved by the witness for the Crown ? Now let me make this remark to you : if there is any difference between Egan and the other witness for the Crown whom they have called, and the speech is more favourably given by one than the other, you must adopt the most favourable construc- tion of it, if you believe it was spoken at all; because it is evidence brought forward by the Crown, and each of their witnesses may be entitled to a like measure of belief He says that a person named Dillon made a speech, and that speech of Dillon is certainly important. He cannot give you the language of the speech, but he swears it was to the same effect. And what was that effect ? To guard Mr. O’Brien from arrest. There it is again. If I wanted evidence to establish the proposition with which I set out yesterday and this morning, this is the most important that could be given on the table. Thus the second speaker says, that the object is to protect Mr. O’Brien from arrest. There is no general purpose, no allegation against the Queen ; in fact her name is never mentioned during these proceedings from beginning to end. He then adds, that Mr. O’Brien says, wdth respect to the night he w^anted — what? He w^anted so many men for the night to guard him ; twenty or thereabouts was to be his guard for the night. Now in all your experience, in all your historical reading, did you ever in your life know, or is it possible for the wit and ingenuity of man to conceive, a person embarked in a treasonable project against the State, having large bodies of men who are supposed to act with him, saying, “ I don’t w’ant your assistance, but I want twenty G22 SPECIAL COMMISSION CO. TIPPERALY. men to guard me here to-night ?” What does that prove ? I beseech of you to carry this in your recollection all through this case. It proves that he only wanted a body-guard to protect him ; that he did not want an armed force for any other purpose; and as twenty would guard him, the rest might go to their respective homes. And, according to Egan’s testimony, there were twenty men selected for the purpose of guarding him during the night. He goes on to say, “ he cannot say he saw armed men coming from the cliapel yard” — this is in Ballingarry — “ hut he did not hear him saying any thing ; they went up the hill.” How he did not see Mr. O’Brien again that evening. It therefore appears that Mr. O’Brien — mark the revolutionist I — went to bed. Having got a body-guard, dismissed his army, and settled every thing to his entire satisfaction, he went to bed, and he slept. Why, gentlemen, heroes of revolutions do not sleep ; they are wakeful, watchful, projecting, and planning what may he the next movement in the campaign ; what city they may storm ; what barrack they may assault. What is the evidence ? That he went to bed, slept soundly, got up in the morning, and walked out as many gentlemen do. Burke does not speak to this transaction, therefore I may come to the next morning. This witness says he went out in the street, savf Mr. O’Brien, and no person was with him. He afterwards, in the course of the day, saw three or four persons with him about the village, hut cannot swear to them, they were strangers to him; one is called by one name and another by another name. He is asked then about what was done and what took place in re- spect to the persons in the streets. He says Mr. O’Brien went up with the mob in the village, and that they came up and down the town. He calls the people a mob. He says some, that is, of these gentlemen, went into the house, others not. He says they all passed his door; some of the j)eople went before the rest. He is then asked whether he saw any arms, and he says he did not see arms at that time, but he looked down the street after him — I think this was in answer to one of the jury — and he saw some guns and pikes at the time they were leaving Ballingarry and going towards Killenaule. And in answer to a question by a juror, he says, he saw the guns and pikes as they were leaving the town. I wish to remark that you should cautiously observe this man’s evidence in attending to the other witnesses on the same subject. He speaks of no drilling or military manceuvreing. He lives in the town ; he has an opportunity of seeing all that passed ; these men walked by his door ; he observed them ; he saw arms and pikes with them on their leaving the town; but the truth was, they went a certain distance, exactly consistent with my case from first to last, to guard Mr. O’Brien, and then they left him. They protected him while he was in the town ; they had THE QUEEN i;. WILLIAM SMITH O’BRIEN. G23 guarded him during the night ; he dismissed the army ; and if that is a mode of levying war I leave to your judgment to decide. Now, gentlemen, there is another witness with reference to this next day Lord Chief Justice Doherty. — Sparrow is the next. Mr. Whiteside. — He is not the next in order of time, hut as your lordship suggested, it would have been much more con- venient if he had been called at another stage of the case. Gentlemen, Kavanagh is the next witness in point of time, but the person I wish to draw your attention to now is Sparrow. This is the witness whom I may describe to you as the drilling wntness ; he is the witness who proves the drilling ; and that is one of the elements of the Attorney-General uj)on wdnch he relies to establish crime. This man’s account relates to Ballingarry ; he identifies Mr. O’Brien ; he says there were four hundred per- sons with him in the street about twelve o’clock on Thursday ; but amongst them what does he pick out ? Thirty armed men. That is the number he picks out — thirty. Now I before called your attention to a curious fact, that throughout this case I constantly find the number of armed men who are trusted about Mr. O’Brien are twenty or thirty. He said the others had pikes, pitchforks, and old scythes. Those are just the weapons that men will lay hold of who rush out to accomplish a purpose in haste, which I am not saying is right or legal ; I am only con- tending it is not high treason. This is the way he describes Mr. O’Brien as being engaged ; he says ‘‘ he was engaged in drilling the men.” Now, one man’s notion of what wms drilling and another man’s notion may vary ; and if a person who is not a soldier or a policeman says it was drilling, he must give some particulars ; and, accordingly. Sparrow gives this extraordinary account. He says the body was divided into three parties; they marched up and down, and Mr. O’Brien — who is not a soldier, and I suppose never was ; I am not aware that he ever did a mihtary act in his life, and this cap is the most military badge he had on that day — divided them into sections. Mr. O’Brien had one under his command, and these troops went into a house. I believe this was to establish the case Mr. Attorney- General has stated of house-drilling, and I think I state it truly. The witness says that those who had the guns when they went into the house presented them out of the door ; they then came out altogether. Then the rest, that is the pikemen, remained across the street. You see the number of armed men with guns was not very large. They were two hours exercising in that fashion up and down the street. This began at eleven o’clock. Then there was something about a belt and a case of pistols. He heard a man called Meagher, but did not know him ; heard him — not Mr. O’Brien — appoint a person, named Cormack, to be commander of the mob ; he w^as to act wiienever he was called C24 SPECIAL COMMISSION, CO. TIPPERARY. on. He was made commander of Ballingarry, and Heutenant- colonel of the mob. Then, having described that transaction of the army being drilled, and the troops in readiness for con- quest, this is his account of the matter — that Air. O’Brien got upon a car and drove off, leaving the troops, not all at that parti- cular spot, but conducting them to a place named, or driving along before them, they following close after the guard to some place called Bryan’s Cross, where the army that was to revolu- tionize the State dispersed or returned, and Mr. O’Brien went on his way to where he was going. Now that is the case Sparrow states, and he gives this account of himself: that on that day he went to the village to get a letter ; that he staid there to see all that took place ; and he afterwards was near Air. O’Brien when he received a letter at Bryan’s Cross, and then went away. Now the armed party kept with Mr. O’Brien, he says, but the mob — these are his very words — went away. Now you observe that his account of that transaction, so far as the drilhng is concerned, is not confirmed by Egan. The third wit- ness gives another account of this drilling, in which he describes those that were drilling ; that he saw the men marching three deep ; that Air. O’Brien ordered the men with fire-arms to go — where ? Into a garden and cock their guns, while the pikemen staid on the road. This Sparrow describes it as “ house-drilhng.” The other witness, Burke, says they were sent into a garden. N ow, is a garden a good place for drilling ? Did you ever know a soldier, or military man, put troops into a garden for the pur- pose of drilling them? And if the fact of house-drilling took place, and Burke was there, as he swore he was, do you think such a curious and strange fact as men popping in and out of houses, and putting the muzzles of their guns out of the houses, and then starting in again, could have escaped his notice ? How does this fact of the house-drilling stand? Egan does not prove it at all, and he lives there, and is a householder; Sparrow proves it; and the other witness, Burke, disproves it. It is impos- sible the same thing could have occurred, described by each witness in a different way. But now let us come to the account Sparrow gives of himself. It seems a very singular thing, that if there occurred in a town of this nature a transaction of this sort, not one householder is brought here to prove that fact. The only man produced of that character is Egan. But in a town of so many inhabitants, where is the postmistress or post- master ? Where are the persons in any pubhc estabhshment not connected with the police force, to prove there was such a house- drilling as that which is sworn to ? Where are the inhabitants of the town? Nowhere, for the purpose of the prosecution. We must, therefore, look at the evidence of Mr. Sparrow with very extreme care indeed. And the account he gives of himself is, that having no land, no employment, and, I suppose, a limited THE QUEEN v. WILLIAM SMITH O’BRIEN. 625 correspondence, he went for a letter that day wliich he did not get. He is then asked a very plain question, which is this, having no land, no business, no employment, no profession of any kind or description, what he expects ; did he expect a sum of money ? Now I do not say he said he did not; but he distinctly said he would not swear, and I commend him for it, that he would not take a sum of money after this trial is over if he gets it. Who is he living with ? With a constable of police ever since this trans- action passed ; with him he has resided from that hour to the present ; and not declaring that he will not take a sum of money, and that he does not expect a sum of money, he wishes you to believe the story contradicted by the two witnesses to whom I have adverted. He was then asked about this lieutenant-colonel, and what he did; and his expression with respect to the lieu- tenant-colonel was very odd as to the drilling. He says he went through the mob, or through the crowd ; taking it either way, it is just as unlike the duty of a colonel as one can well conceive a thing to be. It only shows you that a man of that kind sees some facts, from which he draws a conclusion, and gives you his inference and conclusion instead of the facts upon which he founds it. When you come to inquire what he did, he says he went through the crowd. That is the very opposite to drilling ; for if there was a crowd there could not be drilling ; or if a man ran through a crowd there could not be what we understand by the word drilling. He says he was very close to Mr. O’Brien when he got the letter ; he cannot say whether it was sealed or not. Gentlemen, you see that, as far as we have gone, there is no act done; no levying of war; no declaration of hostility to the Queen; no intention of subverting the Government ; no molestation of property ; no interference with the rights of any human being. The one and the only idea that as yet appears in this unfortunate transaction is, the idea of wishing to escape arrest, and a desire that a certain number of persons should protect him from it. Now, gentlemen, he is conducted from this place towards Mul- linahone ; and what I conceive a very curious part of the case is this; at this Cross, as I before stated, the whole bulk of what is called the mob disappear ; they return to their various places of abode ; the armed men continue with Mr. O’Brien ; and he drove with twenty men tow^ards Mullinahone. Now I w’ill revert to the witness named by my Lord Chief Justice of the Common Pleas just to clear the ground. And here three or four witnesses might be classed together. Mary Egan and Kavanagh speak in relation to the place where Mr. O’Brien passed the night. I have only to make one observation in vindication of Mr. O’Brien on this part of the case. It w^as broadly asserted by the Attorney-General that he behaved like a marauder ; that he went about, and quartered himself where he 2 s 026 SPECIAL COMMISSION, CO. TIPPERARY. pleased, and paid nobody; that lie availed himself of his right as a conqueror and a revolutionist, took possession of houses, and gave nothing to the people -whose quarters he seized. Now in this house there was a room to be let ; and supposing it proved he was the person, why then what takes place ? That four or five gentlemen take a temperate meal, and drink nothing but water — these ferocious revolutionists drink nothing bu"t water — and the next morning pay the lady a sovereign for the trouble she has had. Did you mark the pains of Mr. Sohcitor- General to discover the interesting particulars of the hotel bill of Air. O’Brien ? Why he was a full quarter of an hour torturing his own witness, in a style of direct examination, which we do not often see exhibited in a capital case, to know w^ho paid the bill, what was the amount of the bill, about what hour he paid the bill, and did he really pay the bill ; all to try, out of a body of innocent circumstances, to patch up a preposterous alle- gation against Air. O’Brien, that he was a man setting out on a marauding expedition — an allegation which has not a shadow of truth. He got his bill the next morning, and paid it ; tliirteen shillings and sixpence is the exact amount, which I am sure the short-hand writer has preserved as one of the most fearful facts in this appalling case. Now, gentlemen, it is not necessary to dwell longer on the testi- mony of these witnesses, John Kavanagh and Mary Egan; and, therefore, we will proceed to the next stage in the transac- tion, and that is what occurred at Killenaule. You will be good enough to observe, that the facts on which you are to find m}^ client guilty of high treason are the overt acts specified in the indictment, and Killenaule is one of them. If the case was doubtful before, on any thing that arises in the proof, the Attorney-General says he has made it perfectly clear now, and 1 agree with him. I agree with him he has made it perfectly clear to demonstration ; and I shall submit to you, in stating the evi- dence truly, of what passed at Killenaule, that it is impossible for twelve men to say that this gentleman meant to commit the crime of high treason ; and it is all a matter of intention for you. I think, there appeared somewhere hereabouts a car-boy, Sullivan by name, who took up Air. O’Brien and drove him into Killenaule. Now I want to call your attention to this fact ; he found him after he left Ballingariy in the way we have described. The mob, as they were called, retreated. By the way, the twenty armed men seem only to have gone a certain distance with Mr. O’Brien ; he presumed he would be protected wherever else he went, and he did not take these men with him. This is his progress in levying war against the Queen, for that is what you are to believe. He got on an outside car towards dusk, and the man drove them to the hotel in Killenaule. Now in the course of your lives heard you ever, or can you by possibility imagine, a THE QUEEN v. WILLIAM SMITH O’BRIEN. G27 more ridiculous abortion of proof on this part of the case than the evidence which has been given ? I ought to mention, gentlemen, and I am obliged to my learned friend for reminding me of it, that they marched back to Mullina- hone before they finally dispersed ; and having marched back to Mullinahone there was some bread purchased. Now this evidence was given with a view to see whether the bread was paid for. First of all a doubt arose as to whether this bread was purchased, for I quite admit that revolutionists generally invade private property ; and that is the reason why any sane man in the world will resist them, for you may rely upon it, that private property will always be violated more or less by them. In the Weavers’ case there was a rising in four great counties, and property to the value of many thousand pounds burned before the eyes of the authorities, the police and the soldiers assisting and confederating, yet that was not high treason. But in this case what is done ? There is not the value of sixpence taken from any man ; and that is most unfairly relied upon as a proof of crime in Mr. O’Brien. That is like the hotel bill ; that is to be added to the tower. Put the hotel bill, the tower, the sovereign, and the stock- ings together, and there is a case of high treason such as ought to convince the most sceptical jury in the world. I really thought on the direct examination that they had fired their shots at the time they were marching and drilling ; and I am indebted to a juryman for asking when it was they fired the shots. It was proved to be after they had dispersed and were content. I wish to God they always could get bread ; there would not be so much distraction in the country if they could; and that our legislators would sometimes, in addition to their services in the way of prosecutions, think also of something to relieve the miseries of the people. Well, after they had so dispersed, what did they ? They fired some shots. W"hat signifies that in this allegation of high treason ? If they had marched, and fired at the troops of the Queen, one could understand it ; but having accomplished the object which they had in view, of guarding the person of Mr. O’Brien, he having given them some bread to eat, out of the very moderate sum he carried — just such a sum a gentleman would take with him who is going to make a short excursion, I believe about £10 altogether — having fired off a few shots, as the witness said in answer to a juryman, on their dispersing, there is an end of that armament. The next thing we hear of Mr. O’Brien is, his getting on an outside car, as proved by this man Sullivan, the car-driver. The Attorney- General’s case is inexplicable. His case is of an armed force, ready to march and to levy war against the Queen. We are now arrived at the 27th of July, the very eve of the close of the whole transaction, and where is the evidence of marching against the Queen ? I come now to the moment Mr. 2 s 2 628 SPECIAL COMMISSION, CO. TIPPERARY. O’Brien stepped on the outside car. .1 appeal to your reason, and nothing hut your reason ; I have no right to appeal to any thing else ; and I ask you to compare the statement of the Attorney- General w^ith the sworn and proved facts. Where is the army ? It is gone. Where is the body-guard ? Dismissed. Where is the leader ? He gets an outside car to drive to a hotel where he can sleep comfortably for the night. What becomes of the arms ? There is a great question as to what arms there were on the car. I rather think the result of the man’s evidence is, that there was a carbine or gun, but it was simply of such a length that it could be placed under the cushion of the car. So you have the ringleaders of the revolution dismissing their army, abandoning their body-guard, placing their blunderbuss, or what- ever it was, under the cushion of a car, and driving into Kil- lenaule. JSTow we come to the old inn-keeper, who was pretty well cross-examined by the counsel for the Crown, who summoned him on the table. Gentlemen, the Attorney-General undertakes to make you beheve that all that passed at Killenaule establishes the guilt of high treason. What did pass there ? That is the first thing to inquire about. The next is, what is the overt act charged in the indictment ? The third is, how does the proof establish the guilt? Now, the inn-keeper, Walsh, says, that he being an elderly man, and having a shop, and attending chiefly to the shop, went to bed. There is no harm in that. He says that his shop was shut up, and that some gentlemen came after he had gone to bed, ordered beds, and went to bed. They did not sit up to plot against the Queen ; hut desirous, I admit, of get- ting as far as they could from the place where they were known to some place where they might be safe, they did move about from one place to another, in one narrow corner of this great county, ultimately diverging towards the collieries, where it would have been difficult to arrest Mr. O’Brien. That is the real truth of the case. In the morning, Walsh says, his bill for lodging was paid ; it was thirteen shillings ; and he says, when asked about the arms, that he did not see the party armed — he saw, however, a small carbine. Now, that is his evidence. Of course we shall now have another policeman ; I guess that, before we find his evidence ; he is either an existing policeman, or a discharged policeman ; for in each stage of the case one or other of these functionaries is sure to appear. Here is the great overt act described by Dutton Mathew. Mr. O’Brien went to bed, got up the next morning, and walked out. This is a discharged policeman. This is my note of his evidence, to which I beg to draw your particular attention ; for this is immediately before the grand outbreak, and you are bound to consider each overt act that is laid before you separately. The indictment stands or falls by these overt acts ; and you cannot THE QUEEN 2;. WILLIAM SMITH O’BRIEN. 629 find the guilty intent unless you find these overt acts are proved to be done with the treasonable intent alleged, of making war against the Queen. Mathew, the discharged policeman, iden- tifies Mr. O’Brien early in the day. This is Friday. There was a plaid scarf here ; this unfortunate scarf is dragged in again ; it is a Scotch handkerchief ; and take treason out of that if you like. “ The second had a patent belt and a j)istol in it ; and one of them had a pistol in his right hand ; saw one of the four persons with a rifle.” He first saw this gentleman at the hotel door. Now, there was nothing remarkable, unnatural, or treasonable in that, inasmuch as Mr. O’Brien slept there the night before ; having arms for his protection of course he would have them in his hand. Then he says, I saw these gentlemen getting down to the barricade.” By that I understand moving towards the barricade. “ The barricade,” he says, “ was at the lower end of the town, near the turnpike road. Fethard is the next town to Pyke-street.” He says he saw one man with a gun and one with a pike at Walsh’s door. That is the number of the armed body. He saw the people coming in as usual after the chapel bell rang. When the men did come in, what was the number of the pikemen which the discharged policeman, or the man who discharged the police, take it which way you like, saw? Four pikes. That is my note of his evidence. Four pikemen are beginning this day to make war against the Queen ; Mr. O’Brien having the night before driven on an outside car, in order that he might intercept a regiment of dragoons. “ The rest were armed with any thing they could get — some with scythes ; saw the townspeople walking down to the barricade.” He himself did not go near the barricade. ‘‘ The barricade was made with creels, filled with turf, and cars.” And now, gentlemen, we come to a matter which explains the whole of what occurred, and makes it absolutely, utterly, and morally impossible to impute guilt to Mr. O’Brien from what passed — that is, at least the guilt of treason ; for any other offence, if he committed it, he is liable to prosecution just as an ordinary person would be. He states that he saw two officers suddenly drive up in a gig ; they passed through the town ; and no barricade, you will be pleased to observe, existed until these officers arrived. After the officers passed through the towm the barricade began to bo made. The two officers passed without any interruption whatever. Now, what took place ? Does Mr. O’Brien desire the people to make a barri- cade ? Does Mr. O’Brien deliver a speech and say, “ we will resist the Queen’s troops?” Does Mr. O’Brien say, ‘Oiow I have an opportunity for beginning the revolution I intended ?” He speaks not a word. 1 draw your attention to that fact, for this is charged as an overt act. He does not direct the peoj)le to make that barricade ; he is at the hotel door when seen by 630 SPECIAL COMMISSION, CO. TIPPERARY. these witnesses ; and the barricade is made at the other end of the town, towards the turnpike. Why was it made ? The very instant the people saw two officers passing through the town, they were certain that the military were coming to apprehend Mr. O’Brien, who, I admit, was a favourite with a great number of people in this country ; and wishing to protect him, what is it they get ? Turf-carts, cars, bits of stick, whatever they could pick up and set on the road. That, says Mr. Attorney-General, is high treason. I deny it ; point blank, I deny it. I deny that a sudden act, done by men under the impulse of the moment, to prevent the arrest of a man, was ever held, or will be held, to be high treason. I deny that. They did it suddenly on the spur of the moment, not expecting the troops to come. The chapel bell was rung when the officers passed through to get assistance. But observe what follows. The witness adds, that the timber and the turf were suddenly thrown up. This is what he states : he saw Dillon conduct and, I think, cheer the officer through the town. The whole thing occupied twenty minutes. Mr. O’Brien walked up the town; some walked up before, some after ; there was a crowd ; and they retired imme- diately afterwards to their own homes. Now, in the name of common sense, consider this transaction. Treason consists of a guilty, resolved purpose. This treason of levying war against the Sovereign is a most serious crime. When Lord Northum- l)erland marched, with I do not know how many thousand men, the judges held it was not high treason, because the guilty intent was not shown. What guilty intent is shown here? None whatever. The whole movement lasted twenty minutes ; and when the personal and partial object of protecting Mr. O’Brien is accomplished, the army retire to their own homes. That is the evidence for the Crown — it is not my evidence; it is the evidence of the Attorney-General, the best he can give after rummaging the country, with the whole constabulary at his back. Consider what passed. I desire to read, first, the evidence of the two soldiers, and second, the more important evidence of the captain, every word of which I rely on for my case. I have only one remark to make on the evidence of the two soldiers, and I do not know whether it is worth while wasting your time about it. They made a sworn information, which was pro- duced, and read; and this will show you the danger and the madness of relying on the accounts of words given on this table by such reporters as these. The information was read. Three weeks after it had been sworn, these two men put these words into the mouth of some one by the side of the barricade, whose conduct was not directed, controlled, or suggested by Mr. O’Brien ; and the words were, that “ they would kill all the bloody soldiers.” By the way, there was only one soldier called, THE QUEEN t;. WILLIAM SMITH O’BRIEN. 631 Parsons, and there was with him a man who was not called. It is of the last consequence, that if there was one with him he should have been called. According to Parsons, however, some of the people declared, “they would kill all the bloody soldiers.” There are no such words in the information which was made shortly after the transaction occurred. I appeal to you to say are not those words, which if they had been uttered, would have been put in the report to his officer, by a soldier who professed to give an accurate account of the transaction as it occurred ? I quite admit, when they came up to the barricade they did not pass, because the barricade was erected for the purpose of protecting Mr. O’Brien from the military. Captain Longmore tells us the truth of the transaction ; and to liis evidence, which closes the whole history of the rebellious movement at Killenaule, I therefore draw your attention. A person, I believe it was Dillon, said to Captain Longmore, “ I understand the troops are merely passing through this town; but Smith O’Brien is here, and the people are determined to resist his arrest.” Here is the whole subject disclosed to you by an officer, who, being a British officer, would not vary one word from the truth, whether the truth made for or against the Queen, and certainly not against the prisoner. DiUon then asked, “Have you a warrant to arrest Smith O’Brien ?” Captain Longmore replied, “No, I have not.” “ Then pass on ;” and he states that the barricade was at once removed, by the orders of that person, and the troops were courteously conducted through the town. Why, they were in the power of the people. I thank the Attorney-General for this evidence ; it puts him out of court up to this moment. I rely on it as the most potent evidence that could be given on the part of the Crown. I beg of you to remember the allegation, which is, that Mr. O’Brien made war upon the Queen, and in order to make war upon the Queen, he did the very thing that is stated in our books — that is, he attempted to kill her troops. You will recollect that is what Frost did. When he saw the troops drawn up he fired on them, with the English rebels that were with him, and shot several of them. I can understand that. The object, therefore, of the Crown is, to make out that Mr. O’Brien was engaged in war and rebellion against the Sovereign, and one mode of carrying out that war is to kill her troops. The troops march to the town where he says there is a barricade erected ; there are men inside that barricade who have rifles, guns, and every weapon they can lay hold of ; they are determined to resist the troops ; the captain is asked the question, “ Are you on your ordinary business ? we have no quarrel with the Queen or her troops; we are not going to quarrel with you.” This is the substance of it — “ we are not making war against the Queen ; we are not disputing her authority ; we are not desiring to subvert the sovereignty of Her Majesty Queen Victoria, but we desire 632 SPECIAL COMMISSION, CO. TIPPERARY. not to allow Air. O’Brien to be arrested ; have you any warrant to arrest him ?” “ No,” said the officer, I have not.” The barricade is removed forthwith in one instant ; the entire trans- action does not last twenty minutes ; not a trigger is drawn, not a stone is thrown, not a pike or a bayonet is raised ; and the troops march through the town. The indictment does not charge that these troops Avere marching on the service of the Queen. It is said, that Mr. O’Brien is guilty of treason, because while he was at Killenaule, people, who are not shown by the evidence to be connected in the least, directly or indirectly, with the Mullinahone or Ballingarry people, choose to act in the way these people did. They are persons on the spot, and in the immediate neighbourhood. And why do I say that ? Because the cliapel bell was rung, and this ex-policeman says, that the moment the transaction was over, the town resumed its ordinary appearance, and the revolution ended almost as quickly as it began. That is, on Friday the 28th day of July. 1 have one day more to account for, not blinding my eyes to the evidence in this case. I confidently appeal to you, gentle- men, to decide this case as if you were twelve rational English- men in that box ; and I am as satisfied, as that I am a living man, that there are not twelve men in that magnanimous nation, who would hesitate one second. They Avould ask, what is this man charged with ? High treason — a dreadful great crime ; let us see how you prove it. I prove it by one overt act at Mullinahone, says the Attorney- General, which is all he has to go on as yet. I prove it by another act at Killenaule ; and here is the act. Where is the resistance ? Where is the obstruction ? Is this to stop a man from being arrested ? Why, he may be rescued from the officers of justice a hundred times ; that is not high treason. He had not been tried — that is my complaint against the Govern- ment — and they never meant to try him. The association as it existed in Dublin, the Attorney- General avows, was legal. They meant to arrest him before he was guilty of a crime. If he was guilty why did the Attorney-General not arrest him ? If he was not satisfied with the proceedings of that association, it was his duty to arrest him ; it was bis bounden and sacred obli- gation to assert the majesty of the law, and to put down illegal confederacies against its power. The law is strong enough to put them down, with deference be it spoken ; and we have many examples of men who have filled that high office, not out of this court, who enforced the laAV, without special acts of Parliament, and Avho thus quieted and tranquillized the country. Before I part from this business at Killenaule, this trumpery affair, I Avish to ask, (and I shall have something to say on that when I come to the words “ slash away, boys,”) do you believe when behind the barricades the whole population of the town was assembled, and might have cut him aown and THE QUEEN i;. WILLIAM SMTIH O’BRIEN. 633 taken him prisoner instanter, that the Mr. O’Brien who had the power to speak the word, and certainly could have shot that officer dead in one second behind the barricade, wished to hurt a finger of one of her Majesty’s troops, or to spill one drop of blood ? Do you believe it on that evidence ? Kememher, this is the counsel for the Crown claiming the life and the fortune of my client. Remember, this is the counsel for the Crown who asserts that war was levied against the Queen. Remember, he says the most terrible offence known to the law has been com- mitted; and the testimony by which he proves it, not as my Lord Coke says, probably, but to demonstration, is this : that the officer, when he said he would not arrest Mr. O’Brien, was treated with courtesy and respect ; the troops received with civility, and conducted from one end of the town to the other ; and so far from being insulted, they were escorted with cheers. The criminal law presents no case of high treason hke this. I deny not that they might have been indicted for riot, or a rank and enormous misdemeanour, and a sufficient and ample punish- ment for the invasion of the dignity of the law might be inflicted. My argument rests entirely on this, that her Majesty, Queen Victoria, with reference to her life, was just as safe when that barricade was up, as when it was taken down ; and the attempt to preserve the person of Mr. O’Brien from a fancied insult, was the entire cause of that sudden and unexpected movement, and nothing else. I have cited to you the case of a captain of the guards who had the audacity to lay an ambuscade against the civil power, whose troops drew their swords, assaulted the sheriff, and would have cut him down, yet that was not held to be high treason. If they had cut him down they would have been guilty of murder no doubt. They were fined for their offence, and punished heavily, but it was not high treason, because it was an isolated case. Here is a case where nobody was resisted, hurt, molested, or injured ; this the Attorney-General says, on a solemn trial of life and death, is clear and irrefragable evidence to a jury of a revolutionary movement and a levying war against the Queen of England. The Queen of England ! Oh, defend us from construc- tive treasons. No thought ever crossed the breast of Mr. O’Brien against the dignity or just authority of the Queen of England. In what speech, in his most excited moments, does he refer im- properly to her venerated name ? Where does he speak in terms of disrespect or discourtesy of a lady and a queen, whom it ought to be the object of every honourable and chivalrous nature to respect, admire, venerate, and love ? Where does he speak one word against the Queen ? I quite agree that it would be a very serious element in the case if he had ; but where does he do it ? There is not even a hint of it ; not even suggested by the imagi- nation of the police, backed by the ex-policemen, constables, 634 SPECIAL COMMISSION, CO. TIPPERARY. sergeants, and all who might be able to estabhsh that fact. And now, gentlemen of the jury, I have done with Killenaule, and there- fore we have arrived very nearly at the close of this transaction. I do not know whether your lordships have it on your notes at what time Captain Longmore said he was at the barricade ; I took it dowm at two o’clock. [Their lordships referred to their notes.] A Juror. — It was twelve o’clock. Lord Chief Justice Doherty. — Yes. Mr. Whiteside. — It was two hours after the barricade that he left. I brought it to two o’clock when Mr. O’Brien left Killenaule. About twelve o’clock Mr. O’Brien ordered a car, and proceeded to drive towards the Commons. Two hours after, the barricades were removed and the town resumed its ordinary tranquillity. We have now arrived at this stage of the transaction, and there are two witnesses to be disposed of here — one of the name of Cashen, and the other a person named Pemberty; but before w^e come to them there is a matter of time which strikes me as most remarkable, and to which I beg to draw your attention. We have established that it was two o’clock when Mr. O’Brien quitted Killenaule on the outside car. The Solicitor- General. — Between eleven and twelve the wit- ness says. Mr. Whiteside. — Two hours after the barricade was removed is the evidence. Mr. Justice Moore. — It was about two hours after the soldiers passed. Mr. Whiteside. — Yes, my lord, and they passed about mid- day ; that makes it two o’clock. Gentlemen, except for one purpose it is entirely immaterial ; but you will find it has a hearing in considering the evidence of one witness. Cashen drove this gentleman towards the Commons ; and they introduce here, in a very remarkable manner, a conver- sation on the road-side during the progress of the journey from Killenaule to the Commons. This car-driver smokes a pipe at some particular place, and three gentlemen walk up the hill while he was driving the car, and a certain conversation is alleged to have taken place between Mr. O’Brien and a person named Pemberty. Now, gentlemen, Pemberty fixes the hour of that conversation at eleven o’clock, or between eleven and twelve. I venture to say that my Lord Chief Justice will find The Lord Chief Justice. — It is between eleven and one. Mr. Whiteside. — Very well, my lord, be it so ; I thought it was between eleven and twelve. Lord Chief Justice Doherty. — No, between eleven and one. Mr. Whiteside. — Very well, my lord ; I am much obliged to THE QUEEN y. WILLIAM SMITH O’BRIEN. 635 your lordship. It was five miles the car had to go ; that car would go at the rate, I suppose, of four or five miles an hour, or some- thing to that effect. That would still bring him to this place at the hour I mentioned — about half-past two or three o’clock, not sooner certainly. Pemberty appears to have given this singular evidence, that he had a conversation with Mr. O’Brien alone on the road-side, between, as my Lord Chief Justice has now corrected me, eleven and one o’clock, at a place called Kirwick’s Cross. The Lord Chief Justice He was at Kirwick’s Cross between eleven and one. Mr. Whiteside. — Yes, my lord, just so. Now if the car did not, in point of fact, leave Killenaule until two, and if it had five miles to go, it is utterly impossible that this transaction, thus mentioned by this person, could have taken place at all. Then I draw your attention to the fact, that he was asked in whose presence it occurred. He says in the pre- sence of nobody. He says it was alone with Mr. O’Brien. Now he did not leave Killenaule alone ; he left it in company with two other persons ; and this conversation, pressed into the case on the part of the Crown, is said to have arisen on the high road ; it must have been on the high road ; but in any case between Killenaule and Boulagh Common. I have got the date of his deposition, and it is something later than the ordinary depositions that have been sworn. The person who swears to this conver- sation did not date it until the 7th day of September, ordinarily they are dated on the 6th. But having given that singular account, fixing it at the hour he mentioned to the Court, which was an hour when it ’was literally impossible it could have taken place, he says he found Mr. O’Brien alone, and had a conver- sation with him. He first separates him from the three persons. He states that Mr. O’Brien addressed him and said : “ You are superintendent of the collieries ; if the company stood neutral he would support them ; if they suspended the works he would take possession of the collieries, and have Ireland free in a week.” Now he also said : “ They were all ready in the towns, and of one mind in the country; and that if he was taken he would be hanged.” Now I object to that conversation on the prin- ciple that I have so often read in our books ; and if I was to say I have had rather more experience than I could desire of nisi prius trials, of all kinds of evidence upon which a jury can act, I say what I have heard stated over and over again by the judges, and what I have read over and over again in our books, and it is founded on common sense, that of all evidence, the most dangerous on which a jury can act, with reference to the ordinary affairs of life, is upon the evidence of a casual — supposing it did take place — unexpected, private conversation, under peculiar circumstances, with some person who undertakes to give you 636 SPECIAL COMMISSION, CO. TIPPERARY. the exact particulars, when no mortal living can contradict him. If it was important he ought to have noted it down. He did not note it down. If it was important he ought to have sworn the depositions within a week ; and under the Treason-felony Act this conversation could not be given in evidence, and the prisoner could not be prosecuted for it, because there was no information made within six days. Therefore, under every circumstance, com- paring it with the time, and the dates at which Mr. O’Brien left the one place and arrived at the other ; remembering he left with three persons ; remembering this person separated him from those three persons ; and remembering no act was done corres- ponding to what w'as stated to have taken place, shows that this must have been a fabrication. Always recollect that mere words in a case of high treason are not high treason, nor overt acts of high treason ; they are only evidence to explain the intent of a party in the doing of an act. Now this observation about having Ireland free in a week, if ever made, show^s most clearly, in connexion with the sentence that precedes it, what was the intent of the speaker as to what he would do if the colliery suspended the works. Why, the persons who at Balhngarry had protected Mr. O’Brien were the colliers. A witness on the table proved that a short time before this three hundred of them were dismissed. Mr. O’Brien was, I suppose, naturally desirous that they should not be left without work ; and the very fact that he wished they should have work, and that they should be employed, is the most striking evidence which could be given that he did not mean to overturn public credit or the ordinary employment of the working classes of the country. And when we add to that the sentence, which is just the same thing that he had said over and over again twenty times, that if he was arrested he would be hung, we have still the same idea of arrest paramount in his mind, and the idea of taking measures to prevent that arrest. The persons who had given him protection were chiefly these colliers, and he desired that they should not be turned off from their employment for that reason. I say couple that explanation with the very equivocal evidence of the witness, with the discrepancy as to time, to which I have adverted, with the interval that elapsed before his deposition is made, and you will find it impossible to rest upon a loose conversation, so liable to be misreported, as Lord Hale says, to be added to, diminished, or, as Lord Coke says, so very easily to he forgotten. Now, gentlemen, we come to the important evidence of Lam- phier, who is another agent of the Mining Company ; and we find when we come to his evidence, that we arrive at Boulagh Common on Friday, the 28th of July. I do not observe on the evidence of Mrs. Lacken or Pimlott, because I do not think they are mate- rial ; therefore I pass them over. Gentlemen, the agent of the company — I think he is an agent of the company — Lamphier is THE QUEEN WILLIAM SMITH O’BRIEN. 637 on Boulagli Common on Friday, the 28th, and heard Mr. O’Brien speak. We have arrived now at the most critical moment of the transaction, if my argument is good for any thing at all. The Lord Chief Justice. — Is it Pimlott you are speaking of? Mr. Whiteside. — There are two persons, my lord, deposing to the same thing — William Pimlott and Lamphier. The Lord Chief Justice. — They both state the same ? Mr. Whiteside. — Yes, my lord, they do. I take Lamphier, as I think he seemed the most respectable. Gentlemen, he says that he heard Mr. O’Brien make a speech, and that he declared there was a proclamation out for his arrest. A^ou see there is the same idea in his mind everywhere, according to the unanimous testimony of all the witnesses. He does not say, “ attack the Queen, kill the troops, seize Clonmel, blow up the barracks but “ there is a proclamation out for my arrest, and if you will protect me, and arm, Ireland will be free in a fort- night.” If yow protect me ! showing that the thing he aimed at was personal protection for himself ; and as to his saying that “ Ireland will be free in a fortnight,” did he say what he meant by the country being free ? No, he did not. Mr. O’Connell would have been hung a hundred times, if saying Ireland would be independent and free, or how that independence was to be accomplished, was evidence of high treason. Mr. Meagher said Ireland would be free in a fortnight. Mr. Dillon said if they would only arm to protect Mr. O’Brien, they were to be free — when ? In six months. So according to this rebellious movement, then in full progress, one says, only protect Mr. O’Brien, and Ireland will be free in a week ; another says, Ire- land will be free in a fortnight ; and the third, who is the most wicked speaker of the party, postpones the day for six months. He says armed men were walking about Mrs. Lacken’s that night. That is what we always admit; and I do not deny, that in order to protect him from arrest, when he went to bed, which I pre- sume he always did, these armed men went up and down outside. That is quite consistent with my case, but not consistent vrith the case of the Attorney-General, because his allegation is, that the whole armed body were always in motion, and the facts dis- prove whatever he has said on the subject. I ought to mention, that in the fuller note which I have of this speech, when the people were asked would they protect him, they said they had no arms. This is most natural, and it show^s how absurd it is to talk of this being a movement against the State. The people said they had stones. It is manifest what the thing was. Did you ever hear of a body of men with stones going to demolish the monarchy of England ? “The people said they had stones. Mr. O’Brien said stones would be very good.” That is, for his purpose ; but they would be very bad for the purpose to which the Attorney- General 638 SPECIAL COMMISSION, CO. TIPPERARY. refers — a revolutionary movement. Riots have occurred every day, and people have been assaulted with stones, but that has never been alleged to be treason. “ He said that stones would be very good weapons for those who had not arms to protect him” — that is, arms would be better to protect him ; but if they could not get arms, stones would be very good to protect him. So that they were to protect him with fire-arms, if they had them ; but if not, stones would do. Now, is that the mode in which you would proceed to overthrow the power of the Queen of England ? It is quite true they had an object, and that was to protect this gentleman from arrest ; but it is utterly impos- sible to reconcile their conduct with any rule of human reason upon any other hypothesis than mine. But this man Pimlott says — he reports it somewhat differ- ently — “that Meagher cautioned the people, that what had happened to them” — that is, to Mr. O’Brien and himself — “ might happen to themselves” — that is, to the people — “ and told them to be ready” — when ? In three weeks — not that I want you now — “ when the wisp would be lit upon the hills” — that is a figurative expression. Another gentleman “ said five weeks, and told the people to fight for their country, and have it, and then hunt every English beggar to the other side of the water.” Why, to convict a man of treason on that vague language is quite preposterous. Public speakers, to my own knowledge, have said that Englishmen should not hold situa- tions in this country ; that has been said with reference to the highest post in our law a hundred times in my hearing ; and that is not high treason. That is Pimlott’s account of this trans- action. We have another witness named Owen Cullen, who has an equal opportunity of hearing this speech, but he does not give it at aU. He says that “ on the 28th of July Mr. O’Brien stood on an old ditch, and asked if there was suflicient force to keep him from two hundred men.” Why, if I wanted evidence to clear the case, I could not have more desirable evidence than this. Is that the force of the Queen of England ? Is that the force that is in this country ? Is that the force that might be employed against him? No, but it is the force that it is likely would be sent against him to arrest him. To talk of two hundred men being the armed force of the British people in this country is nonsense. And accordingly Cullen, who is the third witness of the Crown to this transaction, swears that Mr. O’Brien stood on an old ditch, and asked — what ? Did he say, when you come out, let us assail the Queen, and overturn the empire? No. What he said was, have you sufficient force to keep me from two hun- dred men ? Now I admit that. That was his object ; that does not prove high treason, but, on the contrary, it disproves it. The peculiarity of the Attorney-General’s case is, that when he THE QUEEN i;. WILLIAM SMITH O’BRIEN. 639 calls one witness to prove a fact, he calls another witness who disproves it. The next sentence is, “ that he expected Ireland would be a free country” — I wish to give you every word he said according to my note of Cullen’s evidence — but how that w^as to be effected he did not say. Now I venture to say that is an accurate note of what he swore. “ He did not see the other gentlemen armed ; recollects some well-dressed men there with guns, but they went off immediately.” I think I see some of the Court intimating that I have not read the whole of this speech as proved by Cullen ; therefore I will repeat it : “ Mr. O’Brien asked the people had they sufficient force to protect him from two or three hundred men, and said he expected Ireland to be a free country.” On cross-examination this wit- ness stated, “that Mr. O’Brien appeared to him to be afraid of arrest and then he said, in answer to a juror, “ he did not say how Ireland was to be a free country ; he did not say wffiat he meant by a free country, or what means were to be used to make her free.” That is an accurate account of it, and I wonder which of the Court will tell you that that is proof of high treason. He wishes Ireland to be a free country. So do I — I say so now ; and I might suggest means to make her so very different to those attributed to Mr. O’Brien. I might wish to see her free in thought, free in mind, free and independent in action — I would certainly use that expression ; and if I do not say I mean to appeal to arms and physical power, of course it is an innocent expression. But when in a case of life and death the Crown is seeking to establish a treasonable intent, at this critical moment of the transaction, this is their witness. Why, in an ordinary case between man and man, if the party who is bringing the action, calls three witnesses, and one of them gives an account unfavourable to the person who adduces him, I never saw an instance yet in which the jury did not find in favour of his adversary. Cullen is the Crown’s witness; they search him out ; by relying on his evidence they admit him to be veracious and worthy to be believed ; they say he is faithworthy, and when they submit him to the jury, his account of that transaction is, that he went to Mr. O’Brien at the last mo- ment before this conflict takes place ; that Mr. O’Brien wants to know whether they have got him a sufficient power to protect him from tw’o or three hundred men, and he expresses his hope that Ireland will be a free country. I say a man may express a wish to see his country free without meaning to levy war upon the Queen. The Solicitor-General, when he comes to reply, may try to make that out to be high treason, but I do not believe a jury will be of opinion that it does exhibit that clear, proved, trea- sonable intent which the law imperatively demands. Gentlemen, it appears that Mr. O’Brien slept that night at 640 SPECIAL COMMISSION, CO. TIPPERARY. Mrs. Lacken’s, and these men remain keeping guard over him, as they promised, and so the matter rested for that night. On Saturday morning we have, speaking to the transaction in the early part of the day, Lamphier again, and more particularly Cullen. AVhile at the Commons’ village Mr. O’Brien asked Lamphier for materials for a barricade to protect himself, for the key of the police barrack, and for the use of a. pony ; and when they were refused, he admitted the justice of the refusal, and declared he would not take either. I shall dwell on that in a moment. On Saturday morning Lamphier says he was on the road at nine o’clock. This clerk of the Mining Company went to bed — not in the least alarmed at the progress of the revo- lution — slept soundly, and got up in the morning about nine o’clock. He then saw, I think he swears to about a hundred men on the road, and says that Mr. O’Brien spoke to them, hut he did not hear what was said. He then states that Mr. O’Brien, about twelve o’clock, came into the yard and asked him who was in charge of the mining concerns. Pie said he was. Mr. O’Brien walked in — and I pray your attention to this fact — attended by a little boy, who was, I suppose his body-guard on that occasion. The men by whom he might have employed force were left fifty yards off. That is pretty clear proof that he did not mean to com- mit violence, and that there was no such intention present in his mind. Lamphier goes on to say, that Mr. O’Brien said he wanted the carts and things to help to throw up a barricade across the road ; and here is his narrative exactly of what passed : “ I said I could not give them ; then Mr. O’Brien said he would take them by force ; and then he ordered the man Tohyn” — who ought to have been produced for the purpose of proving this part of the transaction — “ to wheel away the cart. Tohyn declined, and he then com- menced moving the cart himself, but did not move it more than a few yards. No person entered, and there were five hundred people, who stood fifty yards Off. After Mr. O’Brien went away, some unarmed people came in and rang the hell, and commenced erecting a barricade of old ladders and some boxes ; and began to shout, or went up and down the road shouting. Mr. O’Brien had a pistol when he came into the yard ; and he afterwards saw them going towards Mrs. McCormack’s house.” He said he then saw the police coming towards Ballingarry, and at Scott’s Cross they turned towards Mrs. McCormack’s, Mr. O’Brien following ; and he heard firing shortly after. About five hundred people crossed the fields. He then says that in about half an hour afterwards he saw another party of police. The pohce had been withdrawn from the barrack at the Commons belonging to the company ; and when Mr. O’Brien came into the yard, he said he wanted to station some of his men there, but he did not give him the key. Cormack was with Mr. O’Brien the evening before. THE QUEEN v. WILLIAM SMITH O’BRIEN. 641 And that is the whole of it. In his cross-examination this man says, “ he lodged two informations, and the longest of the two was made the latest, on the 6th of September.” Gentlemen, always understand and remember my case and the Attorney-General’s case, and then compare each part of the evi- dence with the hypothesis of each disputing party. I say Mr. O’Brien’s object was to escape and prevent arrest. The Attorney- General says it was to levy war upon the Queen. Very well. I say erecting the barricade at Killenaule was to prevent arrest ; and that is proved, in my judgment, if you believe the evidence of the Crown. I assert now, the intent to erect the barricade here, was distinctly to do the same thing, and therefore my case is proved. But the Attorney-General says, no ; the rest of the evidence will make out that it was with the intent of levying war on the Sovereign. And in this mode he makes it out. On cross- examination, Lamphier says that there was a quantity of gun- powder in the establishment of the Mining Company. That gunpowder was not taken ; and there was nobody to protect it, I believe, but Tobyn and this boy.” They wanted ammunition, of course, for a general warfare. Nobody asked for it ; nobody attempted to take it. Of course every collier knew the gun- powder was there, and the colliers were just fifty yards from the establishment. I rely on that fact most forcibly. I insist upon it, that if the intention of the prisoner was to make war on the Queen, that barrels of gunpowder would be the very best things he could obtain for the purpose. If his object was to throw up a hasty barricade to protect himself against arrest, he would ask for carts. I leave it to your judgment and discernment to say which of the two is the more probable story. He then says he had no pen and book to report any thing, and did not report any thing. He then says the colliers wished to protect Mr. O’Brien ; and that shows how perfectly well it must have been known at that time ; before that unfortunate transaction at Mrs. McCor- mack’s, everybody must have known of it. The witness for the Crown swears that Mr. O’Brien said that £500 had been offered for his arrest. And the very expression that this man gives in a speech of Dillon’s is, that Ireland would be free in six months if Mr. O’Brien was protected from arrest. He says “ he slept soundly on the eve of a revolution. The barricades were erected to protect Mr. O’Brien from arrest ; and he swore that there were some men there who had been unemployed by the company for three months.” He attempted to give some evidence as to the key, but he admitted to me that there was no damage done, except that, to either the inside or the outside of the building. Gentlemen, Owen Cullen is subpoenaed by the Attorney-Gene- ral, and examined to the same matter of the 28th. I have already stated that part of his evidence which relates to the speech made 2 T 642 SPECIAL COMMISSION, CO. TIPPERARY. by Mr. O’Brien ; but he also deposes to a subsequent matter which took place on the morning of the 29th, at Mrs. Lacken’s, with refe- rence to a letter. He says ‘‘ he remembers the morning of the 29th, when he was at Mrs. Lacken’s ; that Mr. O’Brien asked him to sit down, and he read a letter that he wished should be for- warded to the Mining Company ; that names were mentioned in his presence during the time he was in his company.” And then he says — it is in this part of the evidence I have it, and, therefore, you will excuse me reading it now, although it relates to the transaction of the antecedent evening — ‘‘ that the evening before. Air. O’Brien asked for the key of the police barrack, and seeing a pony going to water, asked for it, and said he wanted it for the night ; I said I was only the servant of the company, and could give him neither the key nor the pony ; he admitted the justice of my objection, and did not touch either.” He admitted the justice of my objection, and did not touch either! How, is that of any value in this case ? Revolutionists, I before re- marked, do not respect private property ; there is no instance of their doing so. Lord George Gordon’s mob devastated Lon- don, and burnt the house of the chief justice who tried him. There is no instance of men, let loose from the restraints of law and religion, respecting private property. I admit he asked Cullen for the key to put some of his body-guard into this place, which was only a station for six men. It is not granted. What would be the ordinary conduct of a man having the power to re- solve aut nefas to assert it ? That he would do the act he had the power to do. Hid you ever hear of a man coming to you to commit a burglary — you are unarmed — he is strong ; he says, give me your money; you dechne — why? It belongs to the Alining Company. I admit the force of your objection — good morning ? That is a very polite way of committing.a crime. Ho you know of any crime committed in that way except treason ? He asks the loan of a pony which was going to water ; the witness declared he could not give the pony because it belonged to the Mining Company, and could not give the key because he would be brought into trouble with his employers. “ That is a very reasonable and just objection ; I do not ask you further, and I walk away.” Is that a proof of the treasonable purpose laid in the indictment ? What is that treasonable purpose ? To levy war against the Queen. Then, says the Attorney-General, he wanted the barrack for his troops. Why did he not take it then? Who was to prevent him if he had chosen to take it ? The single clerk. The single clerk swears he did not take it, and there is an end of the whole matter. How as to the letter. I will only mention a fact to you — he says that the letter was sent back to him to make a memorandum upon it, and that he did so seven or eight days afterwards. ‘‘ Mr. O’Brien asked if there were men THE QUEEN i;. WILLIAM SMITH O’BRIEN. 643 enough there to protect him from two hundred men. There were a number of men and boys about the place coming from their work.’* Therefore the business of life was going on as usual. Then he states this fact, which I think is w^orth your recollec- tion — “ that the business of the company did go on as usual ; that he had £100 in money, and gunpowder,” which I have spoken of before, and they were never touched.” The ammunitions of war — artillery and money, two things without which you cannot go far — are wdthin reach of the revolutionist ; he has it in his power to seize either, and he declines to touch one or both. The witness swears that he remitted £100 that very day; that the powder was not touched ; that the manner of Mr. O’Brien was kind and courteous, and not the slightest particle of injury was done to the property of the Mining Company. And it seemed to me that Mr. O’Brien was afraid of being arrested.” Now that is the case as to that transaction of Saturday morning. The next is Mr. Purday, an immaterial witness, Avho proves the receipt of that letter in Dublin, and that he immediately for- warded it to the Castle. So, gentlemen, we come now to Mr. Trant. The witnesses we have as to the closing scene in the transaction are Sub-Inspector Trant and the following policemen — Mahony, Moran, Robinson, Ford, and M‘Donogh. The evidence of Inspector Cox is very immaterial to the purpose, and arose after the other transaction had occurred, and does not really touch the merits. Mr. Trant tells you he had orders to proceed to Ballingarry on this morn- ing. Mr. Cox, who appears certainly to be a very good and clever officer, was also bent on the same business, and did very much regret that the £500 had slipped through their fingers ; and I quite agree with them. Mr. O’Brien was wishing to escape arrest. I have shown that very clearly by the last words stated by the last witness. I have called your attention to what he swore, that at the time that letter w^as written it seemed to him that the appre- hension on the mind of Mr. O’Brien was that of arrest. That is the last evidence given by the Crown. Mr. Trant says that he had orders to proceed ; that he set out with forty-six men ; that he passed Ballingarry and saw crowds. Now I have an observation to make on that. The only body of persons in any force, that was under the control of Mr. O’Brien, were those that were near him, the colliers, that the witness Lamphier has spoken of, and those employed about the mining concerns that ran after him. There is no evidence that he sent for them. There is no evidence that ho desired them to come. There is no evidence of combination or conspiracy. Now I have the greatest possible respect for General Trant, but I believe that the whole of his military glory, or the principal part of it, rests in his achievements on this day. I am told that he drew up a despatch which, if printed, might take its 2 T 2 644 SPECIAL COMMISSION, CO. TIPPERARY. place with Gurney’s Despatches of the Duke of Wellington ; and that he commenced it with a verse as follows : — “ Who takes the foremost foeman’s life, Himself shall conquer in the strife.” Such was the fashion in which he drew up the despatch to his officer. Now if he and his party had marched up the hill instead of taking possession of the slated house, I really think that, in all human probability, this sudden and very painful trans- action would never have arisen — the prosecution would have been without its grand overt act. But here it is that treason bursts out in all its fury and malignity. Mr. Trant says, “he saw crowds in the fields, and when he advanced two miles he heard a shrill whistling. There was a crowd on the left, and a crowd before and behind and in the middle of this scene hear what takes place. One shot is fired. Now from Trant’s statement it seems as if this crowd of people were close to him, and could have destroyed him if such had been their wish. They had arms, he says. What took place, Inspector Trant, which so terrified you that made you make this movement ? Because the armed crowd was close on him ; I forget whether he said sixty or eighty yards. He heard a shot. They were then closing in on him, and had fire-arms, and their object was to destroy his party. Did they do it ? No ; no more than they destroyed Inspector Cox and his party. One shot was fired. The smart policeman says he will not swear it was fired at them, but. that he heard the sound of it; and supposing the shot was fired, and the whole people fired that day, only one shot is proved to be fired by Trant, His aid-de-camp says there were two. He says, just as I gave the order to the men to break a shot was fired. The people outflanked them ; but he ordered his men to seize the house, and in the act of doing so the people surrounded them. And now we find him in the stone house. Mrs. McCormack’s house was two stories high, with one window in the back, and therefore it would be very difficult for the people to hit anybody inside ; five windows in the front, three above and two below, a little enclosure in front of the house, and a stone wall surrounding the enclosure ; and there is a wicket gate in the centre of the stone wall, which was commanded by the front window, and — I do not know whether the precise distance is marked down on the plan — the breadth between the little house and the yard is forty- two feet. There we have the whole party assembled. Now let us proceed with the narrative. It is immaterial for the j)urpose of the intent, in a great measure, but most material to consider this part of the case, I fully admit, with a view to Mr. O’Brien’s conduct and character in the transaction ; because, as to the treasonable intent, a sudden outbreak is not treason (many sud- THE QUEEN t;. WILLIAM SMITH O’BRIEN. 645 . den conflicts have occurred between the people of this country and the police) — and unless it were coupled with antecedent transac- tions, or explained by prior transactions, this struggle, no matter what took place, could not be high treason. Observe, the people in Ballingarry or on Boulagh Common expected the police that morning; and the moment they heard of or saw them, knowing of the proclamation, they thought they would succeed in preventing them taking Mr. O’Brien by throwing up a barricade across the road. Therefore it was for a sudden unexpected purpose ; it was for the same purpose that animated them all through — the per- sonal protection of Mr. O’Brien. JNow, was violence desired in the first instance ? With respect to this I have considered it very carefully, and I have great doubts this moment who was in the wrong. 1 have great doubts who really fired first in earnest. It will be for you to say if you have any doubt. What is the first thing done ? An unarmed man comes up, and says, “ For God’s sake let us have no firing.” That is proved by Inspector Trant. Does that look like the determined malignant purpose of attacking the police, when it is quite manifest they could not be hurt or harmed? They seized the furniture of Mrs. M‘Cormack, locked up her children, had the command of the windows, and I believe had three hundred ball cartridges. We want to make peace, said this person ; this is Trant’s account of it ; he replied that if they did not fire the police would not fire, but that if one shot was fired from without they would fire as long as a cartridge or a man re- mained. Immediately after that first appeal for peace, and that warlike declaration of Inspector Trant’s, a call was made from below, and what he heard was, “ Tell Mr. Trant Mr. O’Brien’s here and when he went down Mr. O’Brien was gone. He then returned to the upper room, and he was again called down and told that Mr. O’Brien was there, and he called to Mr. O’Brien to come to the window. Now there is something for you to observe on this part of the case. On the direct examination I thought he meant the window at which Mr. O’Brien had spoken first; but it is quite manifest he meant no such thing, and that he did not mean to hold any conversation with him, except in perfect safety from the upper window. The window he meant Mr. O’Brien to come round to, was that at which, standing in an open enclosure, he might see Mr. Trant putting his head out from above. I admire the judgment Mr. Trant showed in that transaction ; for if, when asked by Mr. O’Brien to come down and speak to him, as a sensible and judicious man would have done, very likely this transaction never would have occurred at all. He was asked to come dowm and speak to him ; he told him to go round to the window. In point of fact, Mr. O’Brien went round to the window, and Mr. Trant was up above ; and it is a remarkable fact, that he does not swear to the words, or that he heard the w^ords, that are so much pressed against Mr. O’Brien 646 SPECIAL COMMISSION, CO. TIPPERARY. at that place at all. What he says is — and, gentlemen, you may rely on it that this is given with full force — that he heard a crash. I asked him what that was ; but he still kept repeating that word ‘‘crash, crash, crash.” Well, I thought he meant that which would convey to my understanding of the word “ crash,” a shat- tering of all the windows of the house. He had, in fact, ordered firing, if there was a shot ; and he swears — now you may rely upon the accuracy of Inspector Trant — that this firing continued for one hour. On his direct examination he swears that the firing ’ continued one hour ; but he says that in a very little time the people disappeared, and the police continued firing at anybody who showed his face or head for a considerable time afterwards. He spoke of Carroll. And then he was asked how many shots were fired, and he says he cannot tell whether there were one hundred or two hundred ; he cannot say how many exactly. He says after Carroll came he served two hundred and thirty rounds to supply what had been used. So that we may calculate that in this brief warfare the police made use of two hundred and thirty rounds of ball cartridge. We will see now what damage was done to the police. He then admits that for two hours not a shot was fired at all. That is the entire amount of the examination of Mr. Sub -Inspector Trant. He was pressed, on cross-examination, as you may possibly recollect, during such a murderous warfare as this, on one side or other, as to where were the bullets that the people fired ? There is not one found. Where are the marks ? He did not observe any. Where are the stones ? He got none. How many panes of glass were broken ? He cannot say. All we can get from him is, that he heard a crash. What is the crash? There was a crash. The house is there still. It re- quires a microscope, I am told, to discover any injury done to the front of that house, and I will prove to you, that the principal panes of glass which were broken were broken by the police themselves firing out of the house. Now when a police officer comes up on the table to give an account of such a transaction to the jury and their lordships, they naturally wish to know what was the precise amount of the injury done by the malignant assaults of the people. It is a cardinal fact in the case. They wished for peace beforehand. That is plain. The person who fired first may have alluded to this, but Trant’s account of the matter is, that there was a crash. I ask, have you found out what that crash was ? Was it bullets ? Where are they ? Did the police find one ? What were they doing for two hours after that battle was over? You remember the expression Mr. Attorney-General gave utterance to in the examination of one of his witnesses as to what occurred at Ballingarry. “ Was that,” said he, “ before the row on the Commons ?” It was just exactly what describes it. “ Was it long before the row on the Commons ?” It w^as the happiest phrase to describe the transaction that could be used. THE QUEEN u WILLIAM SMITH O’BRIEN. 647 None knew it more critically than the Attorney-General, and none could describe it more happily. Mr. Trant wears this day, certainly, his blushing honours upon him and long may he do so. Mr. Trant was asked whether he was hurt or wounded. He does not know ; but he was told that he was. Whereabouts ? I cannot say ; it might have been here, or here. Did you feel much pain *? I did not. But some policeman told him, do you know what, captain, you are positively wounded, although you never thought or heard of it. And he told that with all the gravity of a man, like Inspector Cox, stating the truth. I asked him, did you go to bed? But this he indignantly denied, although I am not at all sure that he did not take a nap. Where there was any firing it did not appear to me that the valiant inspector was in the thick of it. W e endeavoured to trace him from room to room, and at last we find him ensconced in a back room up stairs. That is the place I would like to go to ; and I would rather like to have the firing from the back of the house, because I do not think a ball will come through a stone wall even where there are five windows in front. When the policemen were asked, “ While the firing was going on, pray did Inspector Trant come in and give you any orders ?” They said “no ; but they saw him after the thing was over.” He was most busy, zealous, and indefatigable in gathering up all the remains and trophies of this most brilliant campaign. Where are the bullets ? In the vision and imagination of the police. Where are the pikes ? Now I beheve he says he saw a pike, or two, or three. It is very odd they did not keep them. I say it was a sudden irruption made on the police in prosecution of what I admit was an illegal object, but not a treasonable object; and if the police had behaved like men of sense, they would not have had any conflict ; and when the conflict did begin, they had it aU to themselves. Gentlemen, you are not to be deceived by the evidence given ; you are too shrewd ; you know the police ; you know the country ; and you know the people. What proof has been given of a murderous attack on the pohce? Where are the proofs? In the bullets. As soon as we made that remark, the Crown imme- diately sent about to find any flippant constable to ask him, “ could you not say you saw something like the mark of a ball ; just give us one ?” And after a search they found out a man who was not at the battle, who went some days afterwards with the general. I think General MacDonald knows as much of military matters as Inspector Trant himself. He accounted for every farthing of money that was in the pockets of Mr. O’Brien; returned every thing ; and gave his evidence like a British officer, directly and to the point, and whose veracity no man would presume to question. He is on the table ; he marches into that house immediately after ; he took possession ; and 648 SPECIAL COMMISSION, CO. TIPPERARY. I watched to see if the Crown would ask him, whether any damage had been done to that house as a military man. The Attorney-General allowed the best witness that could be got in the kingdom to quit the table, and never asked him a single ques- tion to corroborate the evidence of the loquacious inspector. But he had a body of soldiers with him, who could tell in an instant whether any bullets had struck the windows. Was any one of those called? No. But a policeman says, he saw some - children that were playing with some a couple of days after. Why is a policeman called instead of a soldier? I think I wdll show you from the evidence of this man that he would have shot them all. Now this policeman said that he saw one of these children playing with a bullet ; he believed it to be a bullet ; and he saw that bullet, and it looked like a policeman’s bullet, and he fancied and imagined that it had been fired up against the house. That is the utmost that can be discovered. But they make a map of the house. They map it, they examine it, they search it, they break all the Widow McCormack’s furniture. Where is the mark of a bullet ? Well, then, the police were exactly facing open windows — big strong men, fine marks at a short distance — not more than five yards ; well fed, well paid, I rejoice to say looking in vigour and health, and there was not a scrape upon any one of the whole body. That is very unlike John Frost’s case, where he and the English marauders fired on the police while they were standing at the window, and soon scattered them more or less, and the magistrate was shot who after- wards was knighted by the Queen. But here is a body of men who are standing four hours opposite an open window, exposed to a murderous fire of artillery and musketry, and there is not one who can discover where the stones or bullets are ; and the officer only imagines or guesses, through the very doubtful evi- dence of his constabulary, that he was wounded upon the breast with a stone. He cannot find the stone, and has forgotten the wound. Now that is the case of violence they make. I forgot to mention to you, that they sent a person to map over these premises; and that they had Mrs.M‘Cormack, and did not examine her. We got out from one of the witnesses that she was sum- moned here, and yet she has not been examined. She was there ; and I call upon you to recollect that there were many women and children there in that crowd, and I tell you that men do not go to levy war on the Queen with women and children in their company. Now there are several witnesses speaking to this transaction at the window, and I have no doubt whatever what the result will be about the veracity of these men. I desire to vindicate Mr. O’Brien from words which, as a gentleman and a man of honour, he instructs me he never uttered, and those are the words “ Slash away.” It is the testimony of the four constables who were at the window, which becomes important on this part THE QUEEN t;. AVILLIAM SMITH O’BRIEN. 649 of the case. The Attorney-General stated he would distinctly prove the use of the words by Mr. O’Brien, Slash away, hoys, and slaughter them all and having made that assertion, he was bound to establish it, and not leave it in doubt, uncertainty, and depending on conflicting and disputing testimony. Now there are four persons who were examined as to these words — Mahony, Moran, Ford, and Rafferty. Those are the four persons who were at the window. Mr. Scott . — And Robinson., Mr. Whiteside. — No, he was behind. Mahony swears he was on the ground parlour to the left with eight or ten men. The people surrounded the house. He observed a man with a mili- tary cap in the cabbage-garden, who came to the side window. First, a man in a flannel waistcoat came to the window, and asked us to give up our arms ; then Mr. O’Brien came to the window immediately after it was open. Now there can be no doubt that this man had an opportunity of hearing all that passed, because the hand of Mr. O’Brien touched his arm. That is proved by several witnesses, and so the Crown introduced him first, perhaps thinking that he was their best witness. He goes on to say, that Mr. O’Brien said he was an Irishman and a soldier ; that if they gave up their arms he would protect their lives, and that he would give them five minutes to consider. Now, this man did not make his deposition as to the five minutes till nearly two months after — not till the 6th of September. They all came up in a body on that day, en masse, to make their depositions of this transaction, although at the time seven magistrates were there. I think you will observe that it is a remarkable thing there were magistrates close beside them ; why did they not go next day, and say these things occurred ; Mr. O’Brien said so and so, and there is my deposition? Why did they not produce the memorandum of these important words made that night at the time the transaction occurred ? Then he says he did not see any fire-arms with Mr. O’Brien, but he saw him before with arms in a cabbage-garden, standing at the out-house, about a perch from the window. He had then a pistol in his hand. He did give an answer, but he could not swear that he saw him afterwards. He heard him speak to the people, but could not hear what he said. Now that is his testimony. There are men whose consciences vary very much; but the Crown are giving an account of this transaction, and by the evidence they give themselves they must be bound. It is impossible for Mr. O’Brien or his counsel to be called on to contradict them ; and, therefore, every rule of justice, every principle of law, of reason and humanity, require that the jury should view with the most scrupulous accuracy the consistency of the narrative given by these men. If you happen to be drawn into conversation with three men, you are in their power. I have seen some 650 SPECIAL COMMISSION, CO. TIPPERARY. appalling instances of that. They may say you intend to kill the Lord Chief Justice. There is one mode of getting at the truth, and that is, by taking the testimony of the different witnesses, examining it piece by piece, and seeing whether, in their account of a short and simple transaction, they vary in particulars — whether they vary in the words, the substance, the manner, or the matter. That is his account. He says imme- diately after he left the window firing was began by persons from the outside, and stones were thrown in a voUey, and struck the win- dow again. Then there is this question put: “did any stones come into your room?” He says — and I think you will never forget this in judging of his veracity — one stone was thrown. He thinks one stone came in through an open window. An infuriated multitude, a quantity of stones, a crash, according to the inspector, and one stone came in, is the most the policeman swears to. If he could have screwed his courage to the sticking point, he would have said two stones. That is a most extraordinary stone. It did not hurt anybody. It did not break a pane of glass. I think it must have been the stone that struck the inspector on the breast, and wounded him without his knowing it. This man makes it five minutes after the shots were fired. Then we ask him, “ did you see any thing come in ?” No, he saw no ball come in. He is then asked about this “ crash;” and his account is, that he heard no crash in any other part of the house. Therefore the crash must have been in this room, at this window, and there was no ball found at all. The captain swore that the firing continued an hour. He swears to a quarter of an hour. After a quarter of an hour’s continued firing — that is, from those inside, for there was no firing outside. He says he saw a small number of fire-arms. That is very remarkable ; it just tells the entire truth of the case. I do not believe Inspector Trant when he tells me there was a great quantity of guns and muskets ; for if there were, would not the bullets have been found ? There were but a few; there could not be a great number of balls; very few fired, and no balls were found at all in the house, for none entered ; if there had, they would have been found. He says he saw no respectable persons about the house, and he says the persons were scattered who fired. That is his direct examination. He then, on his cross-examination, admitted that after a quarter of an hour he heard not a single shot from the outside of the house. He says the police did not fire, and the people did not fire after a quarter of an hour ; contradicting, point blank, the other wit- nesses, who make it an hour. Trant was in the room once ; he is not sure that he saw him. There were not many armed men. He saw women and children about the house immediately before the firing. Then a juror asked whether there was any mark of a bullet — this is in the room at the window of which Mr. O’Brien stood, and desired the mob to pour in a volley of stones and THE QUEEN i;. WILLIAM SMITH O’BRIEN. 651 musketry. The question was put by a juror in the way in which they do very often put a question that goes to the merits of the matter. He says no ; no mark of balls in that room, and there was but one stone. I have underlined those words, so that I have got it established by the evidence of the Crown so far as Mahony is concerned. Gentlemen, we now come to Moran, who was the next witness examined in point of time, and he swears that Mr. O’Brien came to the window armed. That is the first contradic- tion. Mahony swears he came unarmed, Moran swears he came armed. He then says that Mr. O’Brien seemed disappointed. Now when a man makes an observation of that sort, without being asked a question, you discover his feelings at once. “ Mr. O’Brien seemed disappointed. Mr. O’Brien” — he is very pre- cise — “had one foot on and the other off the window-stool. As soon as he was refused the arms, Mr. O’Brien said, ‘ Slash away, boys, and slaughter them all.’ In a minute there was firing and he swears that firing continued for three quarters of an hour, the first witness having made it one quarter of an hour. He was then asked “ what was it he saw of the firing ?” That was a natural question for my learned friend to put ; and what is his answer? To my amazement and infinite astonishment this is his answer — I suppose you wrote down the words — “ I saw one man making an attempt to fire.” A desperate discharge of musketry for three quarters of an hour against the devoted army of police ! “I saw one man making an attempt to fire, but the wall was too high for him. He made his information on the 6th of September, and not before.” The remark that I made before I have here to make again. Seven magistrates were there ; this transaction must have been told to them ; they knew its import- ance ; and not one man amongst them ventures to swear to it at the time. Then he says in cross-examination he heard two shots ; Trant swore to only one. And then there came this piece of evi- dence which I regretted to hear from one of that respectable force. He said that he saw women in the crowd, and that if he had seen women picking up stones at the time of firing, he would have shot them all. He swore that. He then says that the sill of the window is lower than the wall. These are the men whose evi- dence is important ; Rafferty, Mahony, Ford, and himself, Moran. He says that Mr. O’Brien shoved in the shutters, his person was fully exposed, and he says if anybody had fired — that is from the outside or inside — he must have been shot dead. This gentleman was standing on the sill of the window ; he used words that might have brought instant death to the police ; he was with his breast close to the witness, and if anybody had fired from the inside he, Mr. O’Brien, must have been shot dead. Can you believe that Mr. O’Brien would go to that place unarmed, make use of a monstrous and inhuman declaration, and then 652 SPECIAL COMMISSION, CO. TIPPERARY. survive one second ? If he had said it, he would not have survived one moment ; the next moment would have been his last, and deservedly so. There were four policemen at the window with loaded muskets, and bayonets fixed, and there were one or two behind who had orders, if they were themselves injured, to fire in an instant. If Mr. O’Brien used those words they would have been justified, and ought to have instantly shot him dead. I admit that. Well, he goes on to say that if any one had fired, he must have been shot dead. I pray your attention to this. He said that there was a crowd armed with guns round Mr. O’Brien inside the wall — a crowd of armed men inside the little space between the window and the wall. Then he is asked what shots were fired after Mr. O’Brien said, “ Slash away, boys, and slaughter them all.” No shots were fired into our room when he said Slash away;” not one. He fills the little space with armed men, and when tliey are desired to fire, not one shot is fired. He then says that he could not shoot Mr. O’Brien after that. “ How far was he from you ?” Here is an answer of Moran’s which ought to be conclusive in the estimation of any twelve rational beings in the world — ‘‘ His breast was six inches from the point of my bayonet.” He was within six inches of his bayonet ; he made an attempt on his life ; he told the men who were armed beside him to shoot the police ; the bayonet nearly touched him ; he had only to push it into him if he did not choose to fire. We asked him “ why did not you fire ?” His answ^er was, “ I did not hear him make use ” then he stopped suddenly, and he would not complete the sentence. That is the evidence of that young man, Moran. I should add, that he swore that Mahony must be deaf if he did not hear those words. He admitted that. He was asked if Mahony had as good an opportunity of hearing them as he had, and he swore that he had. How does the evidence now stand between the Crown and the prisoner in this important case ? Two witnesses are produced ; one does not swear to the treasonable words, although he belongs to the same force and has every motive to induce him ; although he was in the same position ; although his hand was touching the speaker, he will not swear distinctly he heard any such words. So that there is one against one, as the matter now stands. And that is the affirmative case on the part of the Crown, who are bound to make it most consistent and clear. Gentlemen, we will now pass to the testimony of the next person, Robinson, who was not one of the four persons that were close to the window ; he was at the back. Robinson says, that Mr. O’Brien put his hand into the window and asked for the arms, and Moran and I said we could not give them. Then he says the words were given, “ Slash away ;” and when these words were spoken some went to one side and some went to the other. He was then cross-examined, and he says nobody was killed in THE QUEEN WILLIAM SMITH O’BRIEN. 653 the enclosure. He took two minutes to consider, and then went to another window and fired. Two panes of glass were broken in the window where Mr. O’Brien stood, by the firing of the police from the inside. I thank that respectable man, Robinson. There was no crash in any other part of the house. The crash that occurred here is the crash of the two panes of glass — mark, gentlemen of the jury — broken by the firing from the inside. That is the crash made by the attack from the inside. Mr. O’Brien had one foot on the gravel when he spoke. Now, that person admits he was at the back of the room, and of course was not in the same position as the two first witnesses ; because I admit, that Moran had as good an opportunity as Mahony, although he was not the person touched. Gentlemen, Ford then comes forward, and he says, when they were asked for their arms, Mr. O’Brien said “ Slash away, boys.” He varies the form of the expression. It is very curious. It is not, “ Slash away, boys, and we will slaughter them aU ; ” but it is, ‘‘ Slash away, boys, we shall soon have them all.” Now, the words are of last consequence in this case ; for these men all live to- gether. “ Slaughter them all” is a brutal expression, I admit ; and if those words were used nobody would forget them. But this witness states that he said, “ Slash away, boys, we shall soon have them all,” and dropped the word slaughter.” How many were at the window? He says, “Mahony, Ralferty, Moran, and himself, and Robinson might have been behind. Mr. O’Brien’s hand touched Rafferty and Mahony.” Then he gives this extra- ordinary piece of evidence ; he makes out that there was another man standing on the window-stool -all the time Mr. O’Brien spoke. It is a curious narrative. I can account for this sort of blundering — because the informations are drawn up two months after the transaction occurred, which affects the life of my client now on trial. Ford made no depositions at all. He brings another man, the other two witnesses having distinctly swore that Mr. O’Brien was there, and not having said one word about another man, or that another man stood on the window-stool all the while with Mr. O’Brien. When asked for the arms, he said they had an officer, and whatever he did they would do. Then he says Moran went back to the men in the room and told them not to give up the arms. He describes Moran, not as speaking to Mr. O’Brien, but as turning back to the men in the room, and advising, or exhorting them not to give up their arms, which is a flat contradiction of Moran ; for Moran’s statement throughout was, that he told that to Mr. O’Brien. Then he says, to make the thing more extraordinary, the people who were in the little space in the yard fired first. We have tried in vain to find out the marks of the firing. They were not pop-guns that were used, and they all fired — and then he adds a most extraordinary thing. You know that Moran, that wicked witness of whom I will speak a 654 SPECIAL COMMISSION, CO. TIPPERARY. word just before I close the case, swore that Mr. O’Brien had one foot on the sill and another on the gravel when he made use of this abominable expression ; this witness swears, by way of proving the case clearly, that Mr. O’Brien had completely gone away from the window when the words were spoken. He had completely gone away from the window ! This is the con- sistent narrative of three policemen to this matter. One says, “ the words were spoken, as I looked at him, with one foot on the window;” and the next swears, that they were spoken when ‘‘he had completely gone away from the window.” One swears they w^ere spoken when his bayonet was within six inches of Mr. O’Brien’s breast ; and the other when he had gone away completely from that spot. Then he says, the people were within the enclosure ; and this witness says they fired first of all. He says there was a gentleman by the side of Mr. O’Brien. That gentleman might have been shot dead, and ought to have been shot dead. He walked away from the enclosure, and so did the people — the people were all under the range of the guns. There is a crash; the instant the words are spoken the police fired at the men under their very muzzles. Not one human being is hurt; not one human creature is wounded; notone human being is killed; and the jury, in this case of life and death, against the evidence of their senses, are called on to believe the allegation of the Crown. What care you, twelve rational, discerning men, for any evidence given by men on the table if it is not consistent with truth and the admitted facts of the case ? The proved facts of the case are, that a number of armed men w'ere in this forty-two feet, within the wall, penned up right under the window with fire-arms to kill the police ; told to slaughter the police ; not a man raises his gun or fires, or he must have shot them dead. The rudest peasant that ever held a gun must have shot the police on that occasion if he had fired. Not a man obeyed the command; not a man fired; not a wound was given; not a baU was found ; not a pane of glass was broken ; not a remnant of this battle appears except what is told by the police. I call on you, in the presence of those facts, which speak trumpet-tongued, to give me the benefit of your doubt, if you have any doubt after the evidence of Mahony, who has sworn on that table that the words were not used by Mr. O’Brien. But that is not all. There were four persons at that window. Where is Rafferty ? I have no notion of the Attorney-General telling me in this awful case that I am open to call the other fifty in the presence of their lordships ; that I could call the whole fifty witnesses who were with Mr. Trant on that day. I never said that would be necessary, but I said there were fom’ men at that window, and that one conflicts with the others. I said Rafferty’s hand was touched by the speaker. Rafferty is in the THE QUEEN u WILLIAM SMITH O’BRIEN. 655 power of the Crown, and I say Rafferty is not examined on the table by the Crown. I call on you to believe, if Rafferty had been examined on that table, that he would have sworn with Mahony. If Moran and Robinson have sworn the other way, what is the jury to do between them ? I have always remarked in my experience at the bar, and whatever limited knowledge I have of human nature, that the suppression of a witness is infinitely more important, in a doubtful or questionable matter on the merits of the case, than the production of two, three, or four. Here is Moran and Mahony conflicting. Moran and Mahony both appeal to Rafferty. Moran and Mahony both swear Raf- ferty could speak the truth. Moran and Mahony both saw that he was touched by the hand of Mr. O’Brien. Rafferty is alive, and has been examined, for do you believe he has not been examined? I will stake the issue of this tremendous case on that question. Do you believe the Crown did not appeal to him ? Do you believe he has not been asked that question ? I say the Crown were bound to produce every thing in that trunk. If I had the books here I could cite cases where English judges compelled the prosecutors to produce witnesses who were ex- amined before the grand jury. I say Rafferty ought to have been produced. I say his non-production speaks trumpet-tongued ; it is more potent than twenty witnesses. Rafferty might have decided the matter one way or other. I will ask you, do you believe the Crown, who rummaged the city of Dublin to procure evidence against my client, wdth that policeman within call, would not have placed him on that table if he could have sworn to the abominable and atrocious words which Mr. O’Brien never uttered — “ Fire away, and slaughter them all ?” Did he pull one trigger against the police ? Did he wish to shed one drop of the blood of her Majesty’s troops or officers ? Who have suffered but the unfortunate men who were within range of the police guns ? If you have a doubt, judge of the value of Moran’s testimony by his base and cowardly statement on that table ; judge of that man by what he swore, that he would have shot down every woman in that crowd, though no woman in that crowd could have done more than pick up a stone to assail him. I say he is a disgrace to the noble force to which he belongs. I say he is an assassin ; and I call on the jury to reject the evidence of the man who, armed for the defence of his country, paid by a free people, in a miserable conflict of this kind, in a stone house, with an armed party beside him, says — “ I would have shot down every woman within the range of my musket,” though perhaps she was there to carry away her unfortunate husband from the conflict. I call on you to disbelieve it — I appeal to the noblest and best feelings of your nature — I call on you to reject the evidence of a man who teUs you, I would have imbued my hands in my fellow-creature’s blood, not because he shot at me, not 656 SPECIAL COMMISSION, CO. TIPPERARY. because he fired at me, not because he was a man engaged in a manly conflict, but a poor, feeble, miserable, defenceless woman, rushing about to rescue her husband or her child from death ; yet that policeman says he would have shot her and every woman in that crowd, remorselessly, relentlessly, and cruelly. I ask you not to believe him. Gentlemen, there is another flat contradiction as to this matter to which I ought to have called your attention. Ford is asked where Mr. O’Brien was when he spoke these words. He says, Mr. O’Brien had completely left the window when the words were spoken; the other man says he had one foot on the sill and the other foot on the gravel when he uttered the words. He says the people left the enclosure ; this fellow says they fired. Then comes the closing witness in this most disagreeable and certainly painful part of the case, and that is the sergeant — the man of information, the man of respectability, the man of truth, the man of correct habits, the man of business-hke deportment — and I admit he was a most respectable man. Indeed it is very seldorn we have occasion to censure any member of that most excellent body. I am sure I never saw a gentleman give his evidence more fairly than Mr. Cox, or in a more straightforward and simple manner. James M‘Donogh, the sergeant, says he was up stairs. He was asked what room he was in, and he could not tell ; he could not pick it out of the four ; but being up stairs he heard the words. Where was Mr. Trant ? Of course being a valiant man he was at the window ? JNTo. Did he hear the words? We naturally look for M‘Donogh’s information, but there is no information whatever. We then look to inquire when he told this story, and then this extraordinary fact appears, which I think will be quite decisive in your judgment on his evidence — the inspector-general sent for him. The inspector- general in Dublin, the head of the force, an accomplished gentleman — Colonel MHregor, an ofllcer of the highest repute and character — wished to have, I suppose, for the best reasons, which we very rightly need not inquire into, the most accu- rate information for himself; and the sergeant was bound to tell him the whole truth correctly, for of course Colonel McGregor wanted to act on it. As we have no information, no note of it, we ask, “ what did you tell Colonel M'Gregor when you went to town ?” And here is his account. “ I did not tell the inspector-general that Mr. O’Brien used the words, ' Slash away, boys, and slaughter them all.’ The inspector-general wished to have the best information ; he sent for me and asked me what passed, and I told him a lie.” He ought to have told all that passed, and if he did not tell it, then I put it to your good sense with perfect certainty as to the result. Would you think subsequent events and conversations with his men have refreshed his memory ? When a man tells you, on an important occasion THE QUEEN r. WILLIAM SMITH O’BRIEN. 657 he was called on to speak the truth, when his superior officer asked for a narrative of what took place, when he warned him to give an account as a faithful person on a matter of business in his department, and he does not teU the aU-important fact of these words having been made use of by Mr. O’Brien, I call on you in justice to the character, the whole conduct, nature, and disposi- tion of the prisoner, and every thing that has been proved against him in this case, to disbelieve that those words were used by him. I call upon you to disbelieve it on stronger grounds — on all the evidence given in the case, by which it appears that none of you, nor their lordships, with all the care they took on this branch of the case — and I must say since I began to speak, on every branch of the case, in justice to the prisoner — notwithstanding aU their care and anxiety, could discover any real evidence of injury done to that house, from the effects of a discharge of musketry, or even of a discharge of stones. This very man whom I have just disposed of, and who is the last witness on this part of the case, saw the men in the yard beneath him ; he fired down into it, and yet nobody in the enclosure was hurt or killed. Do you think this man wished to commit slaughter? You remember the evidence of Carroll. The country people told him, ‘‘ Don’t ride up there, or you will be shot and they really pre- served his life, although his evidence, from the way in which he moved backw^ards and forwards, was extremely confused, and of not much importance in this case. Now, gentlemen, there is one witness who was examined, and that is a person named Hanover, who spoke to what he called ^‘a shooting match,” and as to his finding a bullet. The only other witness who was produced, with the exception of Mr. Cox, of whom really I have nothing to say, and who does not advert much to this case, is the man named Carroll, who made no information of the words he heard used till they were all marched up on the 6th of September, en masse. I suppose it was all drawn for one, and to what each man said the other men said “ ditto.” I could not myself discover, in the lengthened examination of the Solicitor-General, what this man was doing. Sometimes he was in the field with two men ; then he appeared with one man ; and at another time on horseback ; but nothing happened, no injury was done, and at last Mr. O’Brien rode up in a very distracted and confused state on his horse, and suddenly asked CarroU, “ Are you going to arrest me ?” though he had seen him and got the horse from him a short time before. The same thing that he said from the first speech in Ennis- corthy to the last speech he made at Boulagh Common — Are you going to arrest me ?” “ Why,’’ said Carroll, “ I am un- armed, I have no povrer to arrest you, you are armed.” The man who is represented to have said “ Slash away, boys, and slaughter them all,” instantly observes, “ that it would be a cruel 2 u 658 SPECIAL COMMISSION, CO. TIPPEIIARY. and unmanly thing to assail an unarmed man.” He converses with him, and certainly the man gives a very extraordinary account of the conversation. It seems very strange. I do not wish to say any thing harsh of the man, but Carroll really did not seem a very firm or steady witness, and in his address to Mr. O’Brien — of course there is some allusion to the priests, for they are always introduced in the progress of a trial — he told him that they were opposed to this matter, which is very gratifying, and he would advise him not to proceed further ; but Mr. O’Brien said he was working for his country, and he was afraid he would be taken and hanged — you see it is always arrested — and this matter then ends. The revolution which lasted for the number of days I have mentioned, ended by the ringleader descending from the horse, giving back his property to the policeman, and conducting him safely to his quarters. Carroll said, “it was impossible in his view” — it is a curious remark — “ to carry out what he had undertaken, when, as he had seen that day, the Roman Catholic clergy were against him, and that troops would be brought against him whom it would be impos- sible for him to contend with.” Mr. O’Brien said, twenty years he had served his country, and his country could redeem itself if it liked. Carroll said it could not be redeemed except by blood. Carroll then put on it the interpretation, that Mr. O’Brien meant that it could only be rescued or redeemed from the power, that is, the authority of the Parliament of England, except by blood. Then he most solemnly swears, “that Mr. O’Brien said he wanted no blood.” Those were his last words, and then he gave up his horse. That is the evidence on the part of the Crown. Their witness says that he stated to Mr. O’Brien, if you are about to redeem the country — that is a general or universal design — you will never accomplish that but by blood. He says, according to this man’s narrative, “ I want no blood and you are called on to believe that the man who used those words in perfect sincerity a few minutes before, desired the slaughter of forty-six of his fellow-creatures, I apprehend, on taking the whole of the evi- dence together, you will not entertain a doubt that the interpre- tation which I have submitted to you is the right one. [Their lordships and the jury here retired for a short time.] Gentlemen, several documents have been given in evidence against the prisoner. One consists of a little tracing of a map which has been produced, and I am called on to explain what it means. That I dechne to do ; and I leave it to the Solicitor- General to make out guilt from the possession of either that map, an Ordnance map, or any other map. There is, however, a document, the importance of which I certainly do not deny, and upon which I shall first address a few remarks to you ; it is that document which is connected wdth the THE QUEEN WILLIAM SMITH O’BKTEN. 659 evidence of CuUen, the officer of the Mining Company, and which has been made use of on the part of the prosecution. This letter is dated 29th July, 1848, and, as the Attorney- General asserted, was written before an intended battle. Now, from the evidence you have heard, it appears that that conflict was purely accidental. It appears that at the time this letter was written no such conflict was in the contem- plation of the party. It is impossible it could have been written with reference to a resistance of the forces of the Crown by Mr. O’Brien. A gentleman, whose name has been men- tioned, but whom it is not necessary here to particularize, and another gentleman, had, in fact, left the company of Mr. O’Brien altogether — Mr. Meagher and another gentle- man — before this transaction took place. The truth is, that they had agi'eed and determined to separate. Mr. O’Brien thought that he might still escape arrest by moving up towards the collieries. Mr. Meagher and another gentleman had gone at the time this letter was written, and nothing was more remote than the conflict which arose by the presence and appearance of the police. Under these circumstances this letter was written. Mr. O’Brien had been led to expect that he might still find freedom from arrest in the collieries. It is dated 29th July, 1848; and of course in construing this paper we must take the whole of it together ; we must endeavour to discover what the real intent of the party was, for there could not be a more unjustifiable mode of construction than to fasten on a particular word, and give to that expression a criminal or treasonable intent. I will take it section by section. “ Collieries, July 29, 1848. Mr. William Smith O’Brien presents his compliments to the directors of the Mining Company, and feeling it incumbent on him to do all in his power to prevent the inhabitants of the collieries from suffering inconvenience in consequence of the noble and courageous protection afforded by them to him, ” AVas the remark I made this moment well founded? I say it was written in consequence of the protection which the working people in one spot — the colheries as they call it — had afforded to Mr. O’Brien, and whom he was apprehensive had been turned out of their employment ; and he felt, if he could, that he ought to prevent these men from suffering a loss of work and wages on his account. Does he say they had assisted him in subverting the constitution, attacking the troops of the Queen, or levying war on the Queen ? No, but it is the same personal matter that has been touched on, and referred to, all through his speeches. He feels indebted to them for the noble and courageous pro- tection afforded by them to him. He then says — “ he takes the liberty to offer the following suggestions. 2 u 2 660 SPECIAL COMMISSION, CO. TIPPERARY. He recommends tliat for the present the whole of the proceeds arising weekly from the sale of coal and culm be applied in payment of men by contract employed in raising coal and culm.” This is any thing but a revolutionary observation. He con- templates the continuance of the working of the collieries. He then says — in truth, it is entirely local — that the men wish to be paid by contract and not by daily wages. He contemplates the continuance of the works; he manifestly understood and sup- posed the collieries were to be worked; they are not to be suspended or interrupted; and his first proposition is, that henceforward they should pay the men by contract. And that, in point of fact, is the practice which they have since adopted. I have just been informed that they now pay the men by contract. Now, there is nothing the least criminal in that. Men who are engaged in revolutions do not begin by settling the price of coals. Men who have a large universal measure to accomplish would not begin by writing on such a subject as this, to regulate the payment by contract of the men who are to raise the coals for your supply. I really think that that single clause in the letter completely explains what the writer meant. He next observes, which shows very clearly that he did not contem- plate any destruction of the bonds of society — “ He recommends that a brisk demand be encouraged, by lowering the price of coal and culm to the public.” He recommends that the price of coals be lowered. It is a curious production — a very singular and strange one ; but that a gentleman engaged in the work of endeavouring to destroy all the ligaments which hold society together, should propose to the company that they should reduce the price of coals to you and me, is not the observation of a person who is disposed to esta- blish anarchy in this kingdom. On the contrary, that clause shows that the meaning I put on it is the true one — that it was intended to effect a personal benefit to the colliers and the public. Unless the price of coals is reduced, in the next clause he proceeds to state what he will do ; it is not that he will do any thing absolutely, it is conditionally. It is a perfectly local matter. If the Mining Company will not comply with these conditions — it is not that he will do any thing absolutely : — “ In case he should find that the Mining Company endeavour to dis- tress the people, ” All along his object was to benefit those men who had pro- tected him. “by withholding wages, and by other means, Mr. O’Brien will instruct the colliers to occupy and work the mines on their own account ” That does not mean any thing forcible, but it is a threat by this particular body of men, separate and apart from the rest of THE QUEEN tr. WILLIAM SMITH O’BRIEN. 6G1 society, in which he says, if they do not comply with these two propositions, of paying the men by contract, and reducing the price of coals, he will tell the men to take the collieries, and work them on their own account. And then is added this, I admit, unjustifiable statement — And in case the Irish revolution should succeed, the property of the Mining Company will be confiscated as national property. On the contrary, if the Mining Company observes a strict and honourable neutrality, doing their utmost to give support to the popula- tion of this district during their present time of difficulty and trial, their property will be protected to the utmost extent of Mr. O’Brien’s power.” Now, gentlemen, the first rule in construing any paper is, that you read the whole of it ; and if you discover from the first sentence and passage that the real object of Mr. O’Brien was to do a service to those men among whom he was then hving, and to frighten the Mining Company by that mode of expression, to produce an impression on their minds, it is the most natural thing that he, in his then position, should write in this way, as the effect of it would be most likely to gain that which he desired for these colhers. But it is utterly absurd to suppose that, circumstanced as he then was, he used this as evidence of an intention to levy war upon the Queen. If he meant to apply it in that sense, he never would have written it at all. It is written, as you have seen, about wages, culm, coal, contract, and lowering the price of coals to the public, which is not the manner in which men write who are engaged in a revolution. Young Emmett did not talk about the price of coals, and he was a man who intended to subvert the Government, to seize on the Lord Lieutenant, and to kill the Queen. But it is not evidence on this indictment of the intent to levy war. The prisoner says here, that he wishes they should give support to the population of the district in this time of difficulty — that is, that they shall continue to employ the colliers. I admit he meant that; I admit that he wanted to frighten the company into employing the colliers, and paying them. But he had not usurped the functions of the Queen ; and the very man who got this letter from his hands swore that it appeared to him when he was writing it, that his whole object was to secure himself from arrest; and you have it clearly shown to you, that that was to be done through the medium of the colliers. If his object had been the injury or destruction of property, he had it in his power ; but instead of that, you have it proved that, as far as he was concerned, his advice always was, meddle with no man, and touch no property. That was the evidence of Cullen. Now all the speeches show clearly that that statement is right. “ It seemed to me,” said Cullen, “ that Mr. O’Brien was apprehen- sive of arrest. Nothing was more courteous and kind than his 662 SPECIAL COMMISSION, CO. TIPPERARY. conduct.” It is an endeavour on his part to oblige those who had obliged him. That is the meaning of it. And he used expressions that were meant to represent him in that light to the persons to whom the letter was addressed, which would be most likely to effect that purpose. Lord George Gordon wrote a letter to the people engaged in burning London, which was a letter of protection to a certain person’s property, and it was protected, and that letter did influence the judgment. In the case of Watson, the paper which the judge thought was inex- ])licable on the supposition of innocence was a letter to attack the Tower and the Bank, and divide the parties into three distinct and separate divisions or battalions, and to carry out war against the King. In this case, I repeat, the use of the word ^'revolution” does not cast upon me the necessity of explaining to your judg- ments what the true intent of Mr. O’Brien was, which I do not think anybody in the world could. By taking the first clause and the last you might understand the word “ revolution” to mean a moral revolution. The Catholic Emancipation Act was a revo- lution ; the Reform Bill was another revolution ; the repeal of the Corn Laws was a revolution. The phrase is often used without meaning a criminal and bloody revolution ; and, as all the evidence shows, Mr. O’Brien would not have blood, and would not have force, the only argument that could be rested on that letter is this — that it was an interference with property — an assumption of dealing with property which he, as an individual, had no right to assume. I admit that ; but I say his true object was to prevent the company dismissing the workmen who pro- tected him. Now that is my interpretation of that letter, which is the important document upon which the Crown relies. Gentlemen, the next document which I shall come to — I use the papers of most importance — is that document of which I have obtained a copy, found in the portmanteau of Mr. O’Brien. This is the portmanteau, upon the custody and contents of which I have already addressed you ; and I beg to remind you of what I have said on that subject, and to ask whether you are satisfied that the contents of that port- manteau, not proved to have any endorsement or writing of Mr. O’Brien, are to be admitted by you as conclusive evi- dence against him? Now, while 1 admit the difficulty of endeavouring to explain every word of the last letter, I am not at all in the like difficulty with respect to this. There is the greatest difference in the world between a letter written to a man, and by a man. There is not a public man breathing the breath of hfe who has not received, in the course of his public career, letters of a kind which he would never condescend to answer ; letters of a kind on which he never acted ; letters of a nature on which he did not intend to act ; letters unjustifiable and unwarrantable, but which he has no power of preventing being delivered to him. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 663 Now, first of all, what is the date of this letter? I cannot tell you; it has no date. You see how powerfully that assists my argument, that it is very questionable on the evidence, how it got into the portmanteau, or when it got into the portmanteau. How did it come ? I cannot tell. Where is the cover ? I do not know. If it was in an envelope, where is the envelope in which it came ? It is not here. Did it come by post ? I do not know. Was it delivered by anybody? That I cannot say either. If it was intended to be preserved as a letter, where is the cover ? If it came by post we could have seen the date ; but here is a piece of paper without date, without any thing to mark or denote the time it was put into the hands of Mr. O’Brien,, pressed into this case by the Attorney-General, to establish the guilty intent charged in this indictment. Now, suppose you are accused of a crime ; the question is your intent. And how is your intent established ? By what another man writes to you ? How is my intent at this very moment, while I address you, to be explained by a letter which might be addressed to me by a distant person ? The only thing that can be urged on the matter of this letter is, that it may be inferred or concluded a man will not keep a letter unless he adopts its contents. That is not true. There is not a man in that box who has not received letters by the score, of which he disapproves, or a great deal of which he disap- proves ; and I will show you before I close, how much that applies to Mr. O’Brien. The only date is “ Saturday'’ and it begins — “ My Hear Sir, “ I am glad to learn that you are about to commence a series of meetings in Munster.” I stop at that passage, if this is evidence at all; because, with great submission, all the letters that may he written to a man, that are in his trunk, are not evidence against him ; for instance, letters that you and I might write on business. But this is pressed into the service as evidence of the guilty intent charged, of levying war at Ballingarry, Killenaule, and Mullinahone. “ I am glad to learn that you are about to commence a series of meet- ings in Munster.” Whenever it was written there was intended to be held a series of meetings all over Munster, for discussion. Does that look as if Mr. O’Brien was about to be engaged in a sudden rebellion ? I submit to you that it does not. The next passage is — “ There is no half-way house for you.” In fact, it is a stimulating letter, written by a man in what position he was we do not know ; how he was circumstanced we do not know ; how that letter came to Mr. O’Brien we cannot tell; what the object of the writer was we cannot know. I 664 SPECIAL COMMISSION, CO. TIPPERARY. have only to say, on the part of my client, that he has be- trayed nobody, and has instructed me to accuse nobody. Hovr that letter came into that trunk I know not. Have they found the reply to it ? Have they ferretted through all the news- paper offices in Dubhn? Have they produced any acknow- ledgment of that letter ? Have they produced any receipt for that letter? They have not. It is a naked production in a man’s portmanteau, without date, time, or direction. He tells the officer of justice where that portmanteau is, and begs he will get it for him. The letter goes on — “ You will be at the head of the movement, loyally obeyed, and the revolution will be conducted with order and clemency, or the mere anarchists will prevail with the people, and our revolution will be a bloody chaos.” Now, if I am arguing on the writings of another man, I am at liberty to assume that that revolution must mean the opposite of a revolution of blood ; it must mean a moral revolution through the medium of the series of meetings that were to be held all over Munster. The next sentence is — You have at present Lafayette’s place, so graphically painted by Lamartine — and I believe have fallen into Lafayette’s error of not using it to all its extent and in all its resources. I am perfectly well aware that you do not desire to lead or influence others ; but I believe with Lamartine, that that feeling which is a high personal and civic virtue, is a vice in revolutions. One might as well, I think, not want to influence a man who was going to walk on thawing ice, or to cross a fordless river, as not to desire to keep men right in a political struggle, and to do it with might and main.” This is another man insinuating his views, or writing them if he wrote it. I entirely deny that Mr. O’Brien is to be bound by it. “ If I were Smith O’Brien, I would shape out in my own mind, or with such counsel as I valued, a definite course for the revolution, and labour incessantly to develop it in that way. For example, your project of obtaining signatures to the roll of the national guard, and when a suffi- cient number were procured, and not sooner, calling the council of three hundred, was one I entirely relied upon.” I stop to make this observation. Mr. O’Connell, for years of his life, insisted on the project of getting together a council of three hundred to be the exponent of the will of the nation. If that sentence is to bind Mr. O’Brien, which I deny it ever ought, what does it mean ? That there is to be a long enrolment of people signing their names as a national guard. I touched on that before, as being the mode by which the Reform BiU was carried in England, or was to have been. The writer thought this was an advisable mode of proceeding with their moral force revolution. That was the view held by Mr. O’Connell, and he held it on the very ground that it was the opposite of physical force. That was the plan the writer entirely relied upon. THE QUEEN WILLIAM SMITH O’BRIEN. 665 “ But it has been permitted to fall into disuse, and could scarcely be revived now. The clubs, however, might take the place of the national guard, and the proposal in your letter on union of a definite number of clubs being formed, would just suit as well if it were vigorously and systematically carried out, each day adding an item to it, and all the men we could influence being employed upon it.” Now, if any such letter was written — and the writer of this paper is in the custody of the Crown — and if he had a news- paper they had a right to search his office, hut they have found no scrap of writing that was spoken of by Mr. Attorney-General. He spoke of seditious newspapers, but has not produced a scrap of writing addressed by my client to any one of the newspaper editors adverted to. If the meaning of the national guard was to get a great national roll signed by people in favour of the repeal of the union, that is a prospective affair — that is an affair that will require a long time to accomplish — that looks to the physical organization of the masses of the people through the medium of these associations and confederacies, and avowedly for the object of accomphshing their favourite project. Then he says : — “ Forgive me for urging this so anxiously upon you ” Observe, this writer is urging on another man that which he apprehends the other man wiU not quite assent to, and therefore he presses it on him forcibly. “ but I verily believe the hopes of the country depend upon the manner in which the next two months are used.” It is all important to know the date of it ; it might have been written last January, or Thursday twelvemonth. M Juror. — Saturday. Mr. Whiteside . — Whether it is dated Thursday or Saturday does not mend the matter a bit; hut suppose it was written Saturday two or three years ago, what becomes of its application to the subject-matter of this indictment? How do you know what year it was written in? What is my objection to that letter binding Mr. O’Brien ? Has it been shown to exist before his arrest? We have just got this day from my friend the Attorney- General, which he gave courteously and kindly, but I would much rather that it had been done long ago, a list of all the papers found in Mr. O’Brien’s trunk. There were letters in that dated 1843 ; they have all been examined and nothing found but this ; this is the only paper out of a great mass of innocent correspondence of 1843 and 1844. I will state one of them presently, one pubhc document, which has not been brought forward against him. How do you show they existed before his arrest ? There is so much of what is called duplicity, so much of treachery in the world, that I say, in a case of life and death, a document which is found in a portmanteau in a limekiln should 66G SPECIAL COMMISSION, CO. TIPPERARY. be shown from tlie date of it to have existed before the period of the man’s arrest. The last passage is — “There is not a town in which you could not find a hand of missioneries to organize the neighbouring counties. Every club has its active men fit for this work, and it is only by applying all our force to it that we will succeed. “ Believe me, my dear sir, very truly yours, “ C. 0 . Duffy.” That is, get a number of men to organize the neighbouring counties, which is the plan of the association. They were to get all the clubs of Ireland to agree in this project, and if they could the project must succeed. That is a future thing ; that is a prospective thing ; that is not preliminary and with reference to the present rebellion ; and because it explains the treasonable intent in this indictment, it is read against the prisoner. If it is not evidence on that subject it is evidence of nothing. Now, gentlemen, those are the tw^o principal documents that have been read against Mr. O’Brien ; but I will not conceal from you any thing ; there are I believe three more. There is one which I honestly confess I could not have expected my learned friend would have relied on. God help us in these prosecutions, if what is written by other men, on which a man makes no note, memorandum, or entry, which he does not say he will or will not answer, is to be evidence to explain his intentions. If a man in America or Nova Scotia writes to him, it is his intention ; if a man writes to him from the end of the globe, it is evidence of Mr. William Smith O’Brien’s intention in the dock. Here is one of these papers ; it is an address from the Enniscorthy Club, and I cannot find any date to this either. It is directed to “William Smith O’Brien, Esq., M.P.,” without date, time, or hour. I have not read it as yet ; I do not know what it contains, but you shall know. “ To William Smith O’Brien, Esq., M.P. “Sir, “The members of the John Mitchel Club, Enniscorthy, beg to offer their respectful congratulations and hearty welcome upon this your first visit to the county of Wexford. They do so as devoted followers of your manly principles, as ardent admirers of your virtue and patriotism, and as men who cherish deep and lasting gratitude towards you for your great services and greater sacrifice to the cause of our dear native land.” I will commit that to your safe keeping as a passage that is particularly wicked and criminal in this case. The next passage is — “ They wish also to assure you of their determination to stand by their country and their country's friend in any and every extremity. They THE QUEEN t;. WILLIAM SMITH O’BRIEN. 6G7 have seen with lively indignation the atrocious tyranny exercised by the Government in the transportation of John Mitchel, the bravest of the brave, in the imprisonment of those true and active patriots, John Martin, Gavan Dufiy, Richard Dalton Williams, and Kevin O’Doherty, and in the prosecutions sustained by yourself ” That is the thing that occurred in April. “ and other distinguished and honourable men. They have long felt the oppression and insolence of this Government ” That is, the ministry. “ to be well nigh unbearable ; and they could, for their own parts, be well content to put a speedy end to this tyranny for ever at the cost of their lives.” Talking of tyranny, government, demonstrations, and prose- cutions, and saying that men will put an end to the oppression that grinds them down, has been said, and written too, a thousand times ; and as it applies only to a particular and specific object to be accomplished, it is nothing. The last passage is — “ To you, sir, above all your able and intrepid compatriots, the people look for guidance in this time of trial and difficulty. They know that you are a sure guardian of the honour and welfare of old Ireland ; and they feel convinced that no motives of temporary expediency, sickly and half-sided humanity, will ever prevail with you to stand between them and their enemies, and to stay the just vengeance of an oppressed and plundered people. Signed on behalf of the members, “ W. Mooney, Y.F. R. Williams, Nec.” I really regret the Attorney-General did not apply that in some distinct and definite manner to my client. 1 have to submit to you, that if people choose to present an address to a man, and he throws it into his trunk, that does not express his intent. I do not know with what object it was written. If I may judge of the contents, it refers to the trial of a person named John Mitchel. If that vexes and offends these people, and they think fit to address that letter to him, I would ask how does that express his intent? Suppose a gentleman next year wrote a long letter, and sent it to The Freeman’s Journal newspaper, and The Free- man’s Journal editors kept it for a month, how would that be evidence of intent? And that is just this case. Gentlemen, there is another document in the shape of an ad- dress sent from Philadelphia, and this has a date. It is dated May, 1848. It is in the shape of an address from people whom Mr. O’Brien never saw or corresponded with — to whom I believe he never wrote a line, and who thought fit to address him. The Attorney-General says in this important and solemn trial that the production of this address, drawn up by a body in America, and sent to Mr. O’Brien, is evidence on this indict- 668 SPECIAL COMMISSION, CO. TIPPERARY. ment. I put that to the right feeling and good sense of every gentleman in that box, and every man who hears me ; and one, whom Mr. Attorney-General once defended, would have been in a very unpleasant predicament, if all the letters addressed to him as a public man had been read against him. This is as follows : — “ No. 10, Soutli Seventh, Philadelphia, May 16, 1848. Much-respected Sir, At the large meeting of citizens held in this city on the 10th of last month (a report of which we have already transmitted to you), an executive committee, consisting of twenty-two active, zealous, and respectable persons, were chosen to take into consideration Irish afiairs, and to adopt such measures as, under the circumstances, might appear to them most proper and expedient, to lend efficient aid in the present emergency to the Irish people. This body has now fully completed its organization, and in selecting its sub-committees we have been accredited in committee of correspondence. “During the last session of the executive committee a resolution was unanimously adopted, instructing us to open a communication with the people of Ireland through you, one of the most trusted and honoured patriots of the country, and to say to them that we enter fully and intensely into the spirit of their proposed struggle with their oppressors, and that we are willing and prepared to co-operate with them as Ameri- can citizens in any mode they may think proper to designate, provided such mode be within the scope of our ability, and our duty as citizens.’' So that a body of men in Philadelphia say, with regard to the struggle which he had agreed to enter upon, and which was spoken of in the resolutions of the League, if you persevere in that, whatever we can do within the scope of our ability and our duty as citizens we will do for you. That does not authorize them to embark in war in this country ; and as they except doing any thing hut what is within their duty as citizens, that means within their proper, right, and legal duty, and has no application to the matter of this indictment. “We are at present instructed there is a course of proceeding with the view of raising funds, not only in this city and county, but through- out the state of Pennsylvania, among the friends of the cause, and we propose to apply such funds as we may raise in the most available manner, in such manner as the Irish nation ” Which they did before, by the way, very largely and muni- ficently. “through their agents, may point out. We have every reason to believe, from the tone of public opinion here, and from other considera- tions, that our efforts in this respect will be crowned with unusual success. Societies in favour of Irish liberty are springing up in all directions throughout the union. “ We should be happy to hear from you somewhat at large on this subject, and to know in what manner we can, in a practical point of THE QUEEN WILLIAM SMITH O’BRIEN. 669 view, act most beneficially to Ireland at this important and interesting crisis.” This vague paper is sent to him, and there is no proof of any reply ever having been sent to it, if it ever came to him. I make this remark as I did on Duffy’s letter, though not with equal force, because it has a date. But still it came from America. If he threw it into his portmanteau, there are no twelve men who went into that box who would treat it with the slightest respect. The last letter, gentlemen, relied on, was one which throws, I think, considerable light upon the entire prosecution. This is a letter, dated Cahirmoyle, and I do not know whether there was any direction on the letter, any cover ; I will assume there was. But it is dated, “ Cahirmoyle, Wednesday evening,” and I must say, I regret the Attorney- General found it necessary to read this letter ; but of course my friend required the assistance it would give ; it was necessary to get up something or other to express those overt acts which I have discussed, and this was found in the portmanteau of Mr. O’Brien. This letter is fished out of the trunk, and read to-day against him, to which I beg to draw your attention. My Dear Smith O’Brien, “ I have this moment arrived (it is past nine o’clock) and I sit down for two minutes to give you an abrupt account of myself.” According to the modern doctrine, if a gentleman sits down in a hurry for two minutes to write a hasty line to a friend, that is to be treasured up in order to expound an indictment charging a levying of war, nobody knows how long after the date of that letter. I put that to the good feeling of men of honour. Here is the writer’s account of himself. “ On Sunday I left Dublin at eleven o’clock, a.m., and arriving at the Thurles station about three o’clock found no way of-getting to Limerick. It struck me then that you might be in Cork, particularly as I had read a speech purporting to be delivered by you to the Bathkeale Club there, in wkich you were made to state that you were going to Cork — so off I went by the mail to my own beautiful darling city, and arrived there on Monday morning at one o’clock.” Here is a treasonable publication ! I suppose when an ardent- spirited young gentleman leaving Cork says he ran off by the mail Mr. Lynch. — Waterford. “ I spent that day with Barry and Lane, and half the next day, leaving it last night. This morning I arrived in Limerick ” The Solicitor- General . — You are right ; it is Cork. Mr. Whiteside . — I believe it is Cork ; Cork is always called the beautiful city. “ I spent that day with Barry and Lane, and the half of next day, 670 SPECIAL COMMISSION, CO. TIPPERARY. leaving it last niglit. This morning I arrived in Limerick and received your letter — just think of it, I quite forgot that this was Tuesday — I started off to Rathkeale ” There is a deliberate villaiiy in this publication that shocks me ; he forgets it was Tuesday ! This gentleman does not know where to find Mr. O’Brien, nor does Mr. O’Brien know where he was. The allegation on the part of the Crown is, that this gentleman and Mr. O’Brien were plotting a revolution, yet you will see that he does not even know where Mr. O’Brien was. “ I quite forgot that this was Tuesday. I started off to Rathkeale instead of stopping where I was (as your letter might have suggested — did ill fact suggest), and made a flaming speech to the multitude from Mr. Fitzgibbon’s windows, after which I galloped off to this fine old place ” He seems to he very rapid in his movements, that is, to Cahir- moyle. ‘^finding out when I was just a mile from the gate that it was Wednes- day and not Tuesday ” I think that is an overt act certainly in itself ; for this writer says he believes Tuesday was AYednesday, or Wednesday was Tuesday ; but that does not establish that Mr. O’Brien had any control over him, or any guilty intent. “ however I still persisted, and here I am. “ Well then I come about the American trip — I’m ofi* for New York, God willing, on Saturday. “ ‘O’er the glad waters Of the dark blue sea, My thoughts as boundless And my soul as free.’” I do not know whether my learned friend objects to the quotation. “ What to do ? To raise money, to invoke sympathy, to, &c., &c., &c., amuse myself.” There is great force in a shake of the head, hut that cannot be put into a count of an indictment ; but here are &c., that is one, &c., two, three. The rest of the letter is positively harm- less. The law of the land has not yet decided that a gentleman may not go to America if he thinks fit; and if he throws in a quotation which is happy and felicitous in reference to his voyage, which is an innocent and harmless thing in itself, although he may add, “I am going there to, et cetera, et cetera, et cetera,” that makes no treason where there was none before. But he adds, to amuse myself, after the et ceteras, which I think takes the malignity from them. “You will be delighted with the Cork organization. Be so good to mention at the soiree on Monday night the object and fact of my departure, “ And believe ever your faithful friend, “ Thomas F. Meagher.” THE QUEEN WILLIAM SMITH O’BRIEN. 671 I present that to my learned friend, Mr. Solicitor, to make what use he can of it, upon the trial of this indictment. There is one piece of evidence remaining, which 1 do not in the least gainsay the importance of, and that is the evi- dence of Dobbyn. I have reserved it for the last, and for this plain reason, that having taken you through the whole of the proceedings of the Confederation, of the League, the speeches and resolutions that passed at those meetings, the entire conduct of the party, Mr. O’Brien and the persons accused, from that hour to the present, I have endeavom-ed to prove to you that there is no such crime as treason committed. It has nothing whatever to do, I wish you to understand, with his trial or his punishment for any other offence ; it has merely to do with this one crime against the Queen. It has nothing whatever to do with any crime against the pubbc peace, or the public authorities ; it has only to do with the crime against the Queen ; and his acquit- tal here would not prevent his prosecution to-morrow morning, although it would not take away his life. Now, things harmless in themselves may be covers for the blackest wickedness ; and I quite agree, that a certain meeting, held apparently for one pur- pose, may be proved by clear evidence to be but a cover and a mask for a treasonable purpose ; and such things have occuiTed. But then the persons who assert that must prove it. In Hardy’s case it was said, and successfully, that the meetings were held in reabty for a convention to depose the King and establish a republic, but ostensibly they were held for the purposes which Hardy contended for ; and then the judge said, you must make out, by the most indisputable evidence, that these resolutions and papers were not published and framed for the object for which they appear to have been held. Now, Dobbyn is in the character of a spy ; that is clear. To use his own phrase, “ I went to plot ; while they were plotting I was counter-plotting.” We have a rule of law, never departed from, that a witness who comes forward in that capacity must, as to some important element of his story, be confirmed. The jury are not to believe the evidence of a man who either acts as a spy, or as an informer, unless he is confirmed. And my first objection to the evidence of Dobbyn is, as an informer, that there is not one particle, when his evidence is considered, of confirmation from beginning to end. What is it he says ? There was a club, which he calls the Red-hand Club, and he, as a member, or president, or something of that club, attended three meetings — the meeting of the 15th, the meeting of the 19th, and the meeting of the 21st of July. What evidence is there that he did attend any one of those three meetings but his own story ? Where is the evidence ? I will reserve the balloting papers for the last, but we will see what they prove in a moment. Where is it ? I want to ask you that. Consult your notes ; weigh every thing carefully 672 SPECIAL COMMISSION, CO. TIPPERARY. and scrupulously. Where is the confirmation of a meeting having been held on the 1 5th ? Where is the confirmation of the meet- ing at Ennis’s yard, which he says he got the police to inter- fere with? Where is the confirmation of the meeting of the 19th? Where is the corroboration of the meeting of the 2 1st? It rests entirely on his single testimony. I wish I had Dobbyn now on that table. Now, I know that he was an engineer, and that he ceased to be an engineer. What he told about him- self on that table is true ; he descended into the capacity of an attorney’s clerk, and I cannot tell you how or why. But what corroborates his story ? He is in connexion with some one whose name he would not disclose. To be sure he would be compen- sated ; for would any man descend to the meanness of being a spy without being rewarded for his services ? But I can understand a loyal subject of the Queen saying, I will go to a certain meet- ing on the night of the 15th, I will discover treason, and I will inform the officers of the Crown of that treason. I can understand his doing all that. What is to prevent the Crown confirming the testimony of that man ? What person proved a meeting to be held on the 15th? He tried to get out of the effect of the resolutions. I admit there was a public meeting held on that day. We have the resolutions here, and will prove them, passed by the clubs, for the very purpose of declaring their opinions, which they did openly, manfully, and in audacious language. I do not deny that. They conducted it on the approved principles on which this country has been misgoverned. I want to know why was he not corroborated as to the meeting of the 15th. There are able, skilful lawyers conducting the case on the part of the Crown ; and I do not complain of any thing that the Attorney-General or my friend the Solicitor-General has said. They have conducted themselves with the greatest deco- rum, and gentleman-like feeling ; but they are able men. What have my learned friends done in this case to corroborate the evidence of their spy — not theirs, but the spy of their case ? I do not mean any discourtesy to my friends at all. But was he confirmed? No. Who saw him there ? Nobody. Who heard him there ? Nobody. Who witnessed him going in or coming out? No one. How many of the constabulary do you think there were outside ? Why, notoriously there never has been a meeting held of these clubs in the city of Dublin, and very rightly too, that the constables were not at the door preserving the public peace, and, as I am informed, noting down every man that went in and out, and were able to lay their finger on any person when they chose to arrest him. Who saw him go into that meeting ? Now, my allegation is, that there was a meeting on that day, when public resolutions, that we put into his hand, were passed ; and he wanted to make out, when he saw them, that there must have been another meeting on that day. His par- TPIE QUEEN i;. WILLIAM SMITH O’BRIEN. 673 ticular meeting, who confirmed it ? Nobody. He told you the history of a meeting which one hundred and ten, or one hundred and fifty, people could have confirmed. Do not misun- derstand me. I do not mean confirmed him in every particular, but as to some material fact in his story. What I would admit to be a very material fact would have been the policeman or detective at the door saying, “ At that hour of the night there was a meeting ; I saw Mr. O’Brien go in there ; I saw all the per- sons go in there ; and I saw, above all, the informer Dobbyn go in there.” Do you think they forgot to seek for that evidence ? Do you think an astute, able, and experienced counsel, like my friend the Attorney-General, and one of more experience in criminal matters, my friend the Solicitor-General — do you believe my friend, who has had the first place on this circuit for twenty or thirty years as a criminal lawyer, did not understand the importance of that testimony ? To be sure they did ; but what could they do? Where were they to get a witness? Where there was nothing to be had, you can make nothing of it. There was a meeting held ; and Mr. O’Brien walked publicly and openly into it ; and resolutions were passed, and they are here to be proved, and no other. The informer says, “ There was another. I was at it and they will not produce a human creature on the table to corroborate him. I had no list of witnesses. I knew not that Dobbyn was to be examined. He was like a spirit. Mr. O’Brien never heard his name. Nobody in this town could tell who he was. He did not declare they knew him, or he them ; and he was brought up on the table, and he might have sacrificed his victims by the score if he pleased. Let us now pursue the train of the investigation. He says there was a meeting agreed to be held at Ennis’s yard. Mr. Ennis is a respectable gentleman I understand. It was to be a private meeting. Now all Mr. O’Brien’s speeches, and the very speeches the Attorney-General has proved, demonstrate that he never would participate in a secret meeting ; and he spoke openly in the presence of this gen- tleman — this respectable gentleman who reported them. But then the informer says that it was intended to be held in a certain yard. That is very good ; nothing can be more specific. Why is he not confirmed ? Where is Mr. Ennis ? Where is anybody in Mr. Ennis’s establishment ? But the poHce went and occupied the ground. Where are the police ? Why did not somebody come and tell us, I know that man ? Dobbyn came to us and gave us information ; we went, in consequence of something he said, and occupied the ground. There is no evidence of that kind either to corroborate his story. Well, then, we come to the meeting of the 19th. That was the one in reference to the proclamation, as to whether they should give passive resistance, or submit to the authorities or not ; and he said they recorded a vote of passive resistance ; and having 2 X 674 SPECIAL COMMISSION, CO. TIPPERARY. carried that vote, in forty-eight hours afterwards carried a reso- lution for war. That is his story, inconsistent, manifestly so. Why not corroborate him as to that? That was held in Capel- street, or D’Olier-street, a most important part of the city of Dub- lin, in daylight, at two o’clock, on the very day that Mr. Hodges heard Mr. O’Brien make that speech in the evening which he re- ported, and which he has proved. Did not the authorities know of that meeting ? Dobbyn told the poRce every thing, I tell you there could have been vital evidence to have shown, not by anybody in the meeting, but by the police who stood at the door, who knew that man Dobbyn, that the meeting was held, and who might say they saw him walk up stairs. Even that shred of confirmation is not given. Do you think they would not try the police ? They sent up to Dublin for two policemen, during the time of the trial. They knew very well this point would be made, and in order to confirm him on a point that is nothing to the case, they set up two men, and they allow the two men to go down without asking either of them, “Where you saw the name ‘Red-hand Club’ did you see Dobbyn go in or out of that meeting ?” Did you observe that ? I remarked it. I thought, as a matter of course, these skilful men, for they are so, had a person to come up and say he was there — I know there was a detective walking up and down, and very right it was, and it may tend to put down all these contrivances to evade and baffle the law that the police are so active day and night — and to have told you there was a red hand, on which I will say a word, outside. I thought they were sent for to prove that ; but they were not. Did you know Dobbyn ? Never. Where is the owner of the house ? Where is anybody that ever was in it with him ? Where is the owner of the next house? Not a soul to say they ever saw Dobbyn going into it. So much for the meeting of the 1 9th, which if it ever was held at all, there is no resolution published, there is no account of it in the books ; but there is of the 1 5th, and of the resolutions passed at that meeting. Now as to the 21st, he has it all to himself also. So far as any living witness is concerned nobody corroborates him. I know what is said about certain papers, on which in one instant I will proceed to speak; but I wish to draw your attention to this important meeting where Mr. O’Brien was said to be. I tell you, under the direction of my Lord Chief Justice, that if a meeting is held, and public resolutions are passed, it lies on the party who says that is not the true character of the meeting to estabhsh it by irrefragible proof. He says the object of that meeting was to call over the clubs. When I asked naturally “ AYas your club called ?” he answered “ No, it was not.” I am sure it was not called, for there is no such club. Whatever resolutions these men came to, wdiether seditious or not, they signed them. “ I was there,” says he, “ and the Red-hand Club was never called at all.” THE QUEEN v. WILLIAM SMITH O’BRIEN. 675 Then he says there was a sort of dry conversation about arms, about men being armed, and what they were to do. He stood amongst the crowd. But I wish to draw your attention to a particular thing, after the general conversation about the state of the arms, about what could be done with them, and various questions put and answered, he said I am not sure whether every- body heard what was said. He then comes to Mr. Troughton — a violent name. Why is not Troughton examined ? Troughton makes a speech and says he has two swivels to be brought over in three ships ; and then he puts this speech into the mouth of Mr. O’Brien, that all the members of the clu1)s ought to get pleasure yachts, and money is to be expended for the purpose of buying them, in order they may sail about the bay, and bring over the two swivels in them. I never heard such a strange story. Who can contradict him ? If he had said that Mr. O’Brien meant to kill the Queen, and cut olf her head, who is to contradict him ? If he lays the scene of a certain meeting in the night, if his name and business are concealed from the men whom he prosecutes, and nobody is brought to confirm him, he might convict the whole twelve men on that jury. What is to prevent him saying, I saw all the jury there, and tliey stood behind Mr. O’Brien’s back ? Then he talks about a rescue, he says that con- versation passed ; he could not write any thing that occurred ; and, of course, the insurrection was generally spoken of, and the proclamation, and Mr. O’Brien said that he would not allow any one to lose his life in rescuing him. Now, gentlemen, the great corroboration of his story, as will be told you by the Solicitor-General, depends on the balloting papers ; and if any thing were wanting to clear the case for the prisoner, it is the production of the balloting papers. Now just observe how the evidence stands as to them. The papers are not identified at all as having been found at Lalor’s. They are not marked by the constable at the time, and they could not be read for that reason. When the informer appeals to these docu- ments, and proves them legally, they are admissible. Then you can only argue on the effect of the evidence, because as he establishes such papers did exist, as he says it, they may produce them. They are produced, but who has proved the papers? The informer’s own story. How does the informer, telling you here are ten papers that I wrote my name on — how does the informer, saying he wrote his name on ten, fifteen, or twenty papers, confirm the informer ? That is what I want to know. All the papers are taken out of a box and put into the hand of the informer. He lays down one and says — “ That is mine ; ’ that is agreed. ‘‘ Here is another, that is mine.” What is to prevent him giving fifty ? The informer might write pieces of paper every night and then produce them. I admit there is the handwriting of other persons on them. Who has proved the 2x2 676 SPECIAL COMMISSION, CO. TIPPERAIIY. liandwritiBg of any one person to those balloting papers ? What have the counsel for the Crown done ’? They have admitted they could not prove the handwriting ; they were bound to prove the handwriting; it was possible to prove the handwriting of the various persons who have signed those papers if genuine. They have some of them in their power ; they know the legal necessity of establishing a corroboration of the witness ; they put in the balloting papers ; they examine him on those balloting papers ; I cross-examined him ; and a long argument arose, and we perhaps intruded too much on the patience of the Court in respect to them ; and yet not one policeman is produced to prove the hand- writing of seven or eight and twenty, or thirty persons, said by the informer to have signed those papers. So that the man they produce on the table — first avowing himself to be a spy, and saying they were plotting and I was counterplotting — could say here is one, this is mine ; your name is to one, Mr. Attorney- General’s is to another, mine or Mr. Fitzgerald’s to a third, and Sir Cohnan O’Loghlen’s to a fourth ; he has only to turn round and get a friend whose handwriting is to that balloting paper, and he can say it is the handwriting of Mr. So-and-So, but nobody comes up to prove it. Have they confirmed one ? They have not. Do not you believe they would if they could ? They have not done it ; and I call on you as tliere was a means of corroboration in the power of the Crown, and as they have not given one iota of corroboration, not to believe those balloting papers a whit better than the statement of the informer, and the statement of the in- former rests on himself — it is all a sham. The evidence given to , confirm it is that of a policeman who comes up. I have no doubt that man wrote it down in the little book he had, that he saw hanging out of the place, “ The Red-hand Club,” just exactly the premises covered by the informer from such a day in July to such another day, but never before or since. Why, the clubs existed for months. All these resolutions were signed in the hooks boldly. Nobody seemed to have gone in there with the excep- tion of a man named Hanlon ; but Hanlon is not produced. And what is the story he tells of the meeting of the 21st, with reference to these balloting papers? That this was a council of war which met together to elect a body of men. I would not venture to deny — I admit at once — that that was downright, plain, and plump treason to make war upon the Queen. They had met two days before and agreed not to make war against the proclamation. They met on the 21st, and, according to his story, were to elect five men to make war on the Queen. Very well, Mr. Attorney-General says, “ let me explain; the Confederation altered their rules and plans,” assum- ing all the time the story of the informer is literally and entirely true ; but I have endeavoured to show you that the whole of this matter occurred just as the Confederation or the League had gone THE QUEEN v. WILLIAM SMITH O’BRIEN. 677 on for months, therefore his story resting on his own uncor- roborated or unassisted evidence, goes for nothing. He says this, Mr. O’Brien was not there at all. That is one overt act. ‘‘ By- the-bye,” says Air. Attorney-General, “ explain to me how the council was altered.” I do not want to explain it. The Con- federation ceased to exist, and the League was formed. It was necessary to have a governing body ; it was quite manifest that a new body had sprung up ; that the council of the old one was gone ; and it was quite manifest that these clubs were a separate and distinct body from the League, and required their own council, if there is a word of truth in what he has said. But, gentlemen, now for the balloting papers, which I humbly submit to your better judgment, if you have any doubt on the matter, determines that doubt in favour of the prisoner. I swear, says the informer, that before we went to vote, it was agreed that no clergyman was to be balloted for. Now that was as distinct, as clear, as positive, and as precise as any statement that ever came from the lips of a witness in a court of justice. All the balloting papers are produced; they are put into his hands ; and there appear out of the twenty-one — with which number I am alone bound to deal — eight for the Rev. Father Kenyon, and one for the Rev. Mr. O’Malley. Mr. O’Brien’s name is written on one, but it is scored out, and his life is to be taken away on this evidence, for it gives a colour to the entire proceeding. Which supposition is right — mine, that Mr. O’Brien is innocent ; or the Attorney- General’s, that he is guilty ? That, I submit to your discerning judgment, is enough to destroy the evidence of the informer ; but taken with the rest of the case, supposing they did meet, I say then it was an innocent meeting. I hope for the priests’ sakes it was. I say the men balloted for on that paper, or card, were all innocent men, elected, and chosen to conduct the affairs of their clubs. No guilt appears on the face of the document — no treason is mentioned — but suppose there was ? I ask that question. Does the Government expect you to convict the Protestant agitator in the dock, while the Roman Catholic priest walks abroad at liberty in all the fresh- ness of health and freedom, administering ghostly consolation to his flock ? Is the man who had no vote, whose name was struck out, to be fixed with the responsibility of the treasonable meeting at that place, wliile the priest who had eight votes walks free ? I tell you, you will not do that. And I will vindicate the Attorney-General, and the Crown, and Lord Clarendon’s Govern- ment ; I vindicate the British minister when I say that cannot be so. Every man elected of that batch, and voted for, was mixed up in that meeting. Father Kenyon was a leading and prominent man ; but I say he was innocent. I say, if he was guilty, the Crown are prosecuting one man who is not so guilty, for he had no vote ; and they are not prosecuting another, who was elected, or nearly elected, a member of the council of war. 678 SPECIAL COMMISSION, CO. TIPPERARY. Gentlemen, if you expect to have equal laws and impartial liberty in this country, I call on you to take your stand on behalf of the entire people of the realm. Let us have no partial, one-sided administration of the law. Let the Protestant be convicted if he is guilty ; but unless you mean to live under the basest despo- tism that ever disgraced free-born men, be resolved to have one inflexible and impartial law for all men. The Rev. Father Kenyon is free. The Rev. Father Kenyon has been balloted for on this council of war; and I say the Rev. Father Kenyon is innocent, else I would appeal from this court to you — I would appeal to the free and magnanimous nation under whom we live, who are deeply interested in the administration of justice and the protection of the people of this country, to see that justice be done. I ask for nothing more. I appeal to your honest natures, whether one man is to be struck down and another spared ? Is the Roman Catholic priest — who is nothing but a man — at least in my judgment, and in the judgment of those who think with me (for we assert the right of private judgment, and vindicate the independence of the human mind) — is that man not to suffer for his crimes, as well as that prisoner in the dock ? And is he to be spared and protected, while my client is struck down and sacrificed? But I do not make a charge against the advisers of the Crown. I acquit them all. 1 acquit the law officers heartily in my soul. I acquit the Govern- ment. I acquit the prosecutors, for they did not know, and did not believe, that Father Kenyon was a member of an illegal, guilty, treasonable conspiracy against the Queen ; and therefore, as an innocent man, he is not prosecuted. And if he, who had eight votes in his favour, is not guilty, is the man in the dock, whom even the informer said nobody would vote for, to be made responsible for that act ? Gentlemen, I have spoken to this case ; I have gone over the entire evidence, and it is for you to say whether the charge brought forward against the prisoner is made out. That charge is high treason — that he did compass the death of the Queen, and levy 'war against her in her realm. I have explained the principles on which the case rests. I have showed you that appearance in arms is not enough to constitute treason ; a seeking of protection from arrest is not enough; the crime proved must be treason within the indictment, or else you are bound to acquit the prisoner. I have observed upon the evidence, and considered, so far as my humble ability would permit, the great question involved in this solemn trial — namely, the guilty intent of the prisoner. Even although the explanation of his conduct may be in some respect unsatisfactory, yet if it fall short of the tremendous guilt of treason, acquit him you must. Well do I kno'vv and feel the wcigldy difficulties of his case. With some, prejudice has blocked up the avenues to tlie understanding ; in others, calumny has THE QUEEN i;. WILLIAM SMITH O’BRIEN. 679 done its work. The impracticable poKtician has been condemned to a fate he has provoked and deserved. Driven to excesses he did not contemplate, in order to preserve his personal liberty, he must pay the forfeit of his life. Had he been a hypocrite who assumed patriotism as the mask of selfishness, he would ere now have received the rich reward of political baseness. Had he been willing to sell his principles, he would have been promptly paid his price. He had only to cheer on inconsistency when most flagrant, to applaud what he had condemned, and to condemn what he had applauded — to unsay what he had said, and to say what he did not honestly believe, and the attainted traitor would have been a patriotic placeman. He might have flourished in indi- vidual prosperity after he had traded with sufficient tact on the miseries of his country. But he is now hooted by all parties, for he has flattered, and he has stooped to none. This offence against party is worse than his intent to kill the Queen — for he has unmasked faction and exposed meanness and corruption. lYhither can he turn for sympathy? From whom expect justice? Slandered, blackened, and vilified, his motives maligned, his con- duct misrepresented ; nicknamed traitor, anarchist, the foe of social order, proj)erty, and law — whither can he look for refuge ? A price was set upon his head ; he lias been caricatured, hunted through his native country — no epithet of abuse was too gross to be applied to him. Where can he expect a temperate con- sideration of his motives and entire political career ? His hope must alone be where the law has placed it — in the honour, the integrity, the discernment, the humanity of a jury. A ram- part of defence that jury was designed to be to accused men, prosecuted for political conduct or political excesses, by the weight and power of the Crown. Judges must be unbending ; juries may regard the frailty of human nature. Juries — sprung from the people — should cast the ample shield of their protec- tion around their fellow-subject, where they can believe his heart, his motive, and his purpose were not guilty, equivocal although certain of his acts may be. Sucli is the high office designed for you in that famous constitution, whose foundations have been laid in the deepest wisdom, which has been through successive ages cemented by the patriot’s blood, and consecrated in the martyr’s fire. Your countryman, your fellow-mortal, is in your power. Seek not, with severe anxiety, for proofs on which to send him to a bloody death ; rather regard the evidence which enables merciful men to save what may yet prove a useful life to his family and his country. The boast of British law is, that it abhors the shedding of human blood. Yield to its benign prin- ciples, to the generous impulses of your nature, and stand between the prisoner and his grave. Review his life. From his mother’s breast he drank in a love of country — from a father’s patriotic example the passion grew to a dangerous height. He 680 SPECIAL COMMISSION, CO. TIPPERARY. has indulged, perhaps, a vision, to the peril of life, that Ireland might be a nation, and you her guides to wealth and greatness. Is not death upon the scaffold a terrible punishment for the belief, although misguided, that Irishmen had intellect enough to rule the country of their birth ? In his childhood he heard that the union with England was carried by corruption. He heard it from an Irish senator whom money could not purchase — whom a title could not bribe — who gave his honest vote, and would have freely given his life, to save the perishing constitu- tion of his country. That father recounted to my client what Plunket, Bushe, and Grattan spoke on the last memorable night of our national existence. How he had been persuaded by the gravity of their arguments, transported by their eloquence, and borne away by their patriotic ardour. His youthful imagination, fired by a sense of Ireland’s wrongs, dwelt on the days when we had a gentry and a senate with intense constancy, and the passion grew that he might restore a parliament to the land he loved. This was the source of all his errors. Bitter dis- appointment has crushed his ardent hopes ; hut a parliament- ary constitution he wished and meant to have given to Ireland. No man’s property wmuld he have touched — no law of God or man would he have broken. Loved by those who knew him, generous, disinterested, utterly unsel- fish through life, humane and tender-hearted — he now stands at the bar of his country to answer for having meant to kill the Queen, and subvert the constitution which in heart he adores. His true offence is, that he courted for you what is England’s glory, and blessing, and pride. Deeply he may have erred in pursuit of this darling object — will you avenge his mis- directed patriotism by a dreadful death ? You may do so, and no earthly inducement will tempt me to say, if you pronounce the awful sentence of guilty, that you have not given the verdict conscience commanded. If his countrymen condemn my client, he will be ready to meet his fate in the faith of a Christian, and with the firmness of a man. The last accents of his lips will breathe a prayer for Ireland’s haj)piness, Ireland’s constitutional freedom. The dread moments that shall precede his mortal agonies will be consoled if, through his sufferings and his sacri- fice, some system of government should arise — such as I aver has never here existed — wise, comprehensive, impartial, and above all, consistent, which may conduct to wealth, prosperity, and greatness, the country he has loved, not wisely, perhaj)s, but too well. Would to God Mr. Smith O’Brien were my only client. The future happiness of an honourable, ancient, loyal family is here at stake — the church, the bar, the senate furnish relatives near and dear to this unhappy gentleman, who, although they differ with him in political opinion, have hastened to give to him THE QUEEN WILLIAM SMITH O’BRIEN. 681 brotlieiTy consolation this melancholy day. Ireland has been the scene of their benevolent exertions — the source of their joys, their pride ; her misery has been their affliction, her gleams of j)rosperity their delight. With broken hearts, should you consign the prisoner to the scaffold, they must henceforward struggle on through a cheerless existence, labouring in sorrow for the land they love. A venerable lady, who has dwelt amidst an affectionate tenantry, spending her income where it was raised, diffusing her charities and her blessings around, awaits now, with trembling heart, your verdict. If a verdict consigning her beloved son to death — that heart will quickly beat no more. Alas! more dreadful still — six innocent chil- dren will hear from your lijjs whether they'are to be stripped of an inheritance which has descended in this family for ages — whether they are to be driven, fatherless and beggared upon the world, by the rigour of a barbarous and cruel law — whether they are to be restored to peace and joy, or plunged into the utter- most depths of black despair. There is another who chngs to hope — hope, may it be blessed, in you! Her life’s blood Avould be gladly shed to save the object of her youthful affec- tions — you wdll not consign her to an untimely grave ! — In a case of doubt, at the very worst, let a father’s pity be awakened — a husband’s love be moved. Let justice be administered — but justice in mercy. In no pitiful strains do I seek compassion for my client, even in this case of blood. I ask it solemnly in the spirit of our free constitution — in accordance with the rooted principles of our common law. In this great cause between the subject and the Crown, those great principles ought to shine out in glorious perfection. A verdict of acquittal in accordance with those divine doctrines, will not be a triumph over the law% but the triumph of the law. When the Sovereign seals, by her coro- nation oath, the great compact between the people and the Crown, she swears to execute, in all her judgments, justice in mercy. That same justice you administer — no rigorous, remorse- less, sanguinary code — but justice in mercy. Where, as here, the crime consists in the intent of the heart, and you can believe that intent not treasonable, or even doubtful, then, by the solemn obligation even of coldest duty, you should yield to mercy. In nothing, though at an immeasurable distance still, do men on earth so nearly approach the attributes of the Almighty as in the administration of justice. Divine justice will he tempered with mercy, or dismal will be our fate. As you hope for mercy from the Great Judge, grant it this day. The awful issues of life and death are in your hands — do justice in mercy. The last faint murmur on your quivering lips will be for mercy, ere the immortal spirit shall wing its flight to, I trust, a bettor and brighter world. G82 SPECIAL COMMISSION, CO. TIPPERARY. EVIDENCE FOR THE DEFENCE. Mr. William James llamill, sworn — examined hy Mr. Fitzgerald. Did you know an association in Dublin called the Irish Confederation % — Yes. Did you at any time hold any office in it % — I was the original secre- tary. How long did you continue secretary? — Six months from its first commencement. Do you know the rules of the Irish Confederation ? — I do. Just read those over to yourself {handing a paper to the witness), and tell me whether those are the rules ? — Those are the original rules. {The paper was handed in to the Clerk of the Crown, who marked it.) The Lord Chief Justice . — Are those the original rules of the Irish Confederation ? Mr. Fitzgerald. — Yes, my lord. {To the witness .) — Were you present at the meeting at which these rules were agreed upon ? — I was; it was held in Radley’s hotel, in Dame- street, Dublin. Was that a public meeting? — It was not called by advertisement; it was called by a circular sent round by the heads of the party. I am speaking of the public meeting at which the rules were adopted ? — That was a public meeting held in the Rotunda. Was that the preliminary meeting which you referred to, when they were first agreed upon? — They were first suggested there; they were agreed upon by as many as were present, and they were afterwards to be submitted to a public meeting in order to be sanctioned. Now, can you tell me whether, at tliat preliminary meeting, Mr. O’Brien was present ? — He was. Do you remember in what form the rules were laid before that preli- minary meeting, in proof or in manuscript ? — I think there were proofs of them; I think they had been printed for that particular meeting, but I am not quite certain ; I understood there were resolutions in manuscript also. You believe they were in proofs ? — I believe they were in proofs also. Will you look at that {handing a 2^uper to the wit7iess) ? Does that refresh your recollection ? Did you see a document of that kind at any meeting ? — I cannot say exactly whether they were in proofs or in manu- script. I think they were in proofs, as far as my recollection serves me. However, those rules were the rules adopted at the subsequent meeting at the Rotunda ? — They were. Mr. Justice Moore. — Where was the meeting held ? — At the Rotunda. Mr. Fitzgerald . — What is that pamphlet {handing some papers to the witness) ? Did you ever see a document like that circulated amongst the members of the Confederation ? — I did; it is “A Lecture on the Use and Capacity of the Confederate Clubs, delivered at the Dr. Doyle Club-room, Dublin, by Charles Gavan Dufiy.” The Solicitor- General . — What is it ? Mr. Fitzgerald . — It is a letter by Duffy. The Attorney- General . — Without exactly knowing what it is, I cannot see in what way it can he evidence. Mr. Fitzgerald . — We are not reading it yet. THE QUEEN i;. WILLIAM SMITH O’BRIEN. G83 {To the ivitness .) — What is the other document'? — It is “ A Report on tlie Organization, and Instructions for the formation, of Confederate Clubs, by Charles Gavaii Duffy.” Who is that printed by? — “Printed by William Holden, 10, Abbey- street.” Was he the Confederation printer? — He did some of the printing. The Attorney -General . — You did not belong to the society at all at that time ? — No. The Lord Chief Justice . — What do you call this ? — “ A Report on the Organization, and Instructions for the formation, of Confederate Clubs, by Charles Gavan Duffy.” Mr. Fitzgerald . — Have you seen that in circulation amongst the mem- bers of the Confederation? — Yes, I have; but it was subsequent to my connexion with the Confederation that I so knew of it. Mr. Justice Moore . — You cannot say, if you did not belong to it. When did you cease to be secretary? — In June, I84G. June, I84G? — June, 1847. Mr. Fitzgerald . — May I ask you whether you were subpoenaed here as a witness on behalf of the Crown ? — I was. Cross-examined hy the Attorney-General. When was this association formed which you speak of? — On the I5th of January. What year? — 1847. Do you recollect who the original members were ? — The original mem- bers of the Council of the Confederation ? Y es ? — I can tell a great many. Tell us as many as you recollect at this moment ? — Mr. Smith O’Brien, Mr. Duffy, and Mr. Dillon The Lord Chief Justice . — What was the number of the council at the original constitution ? — I cannot exactly say. I think twenty-one. The Attorney-General . — Give me some more names ; as many of them as you recollect ? — Mr. Doheny, Mr. Gavan Duffy, Mr. John Mitchel, Mr. Devin Reilly, Mr. John Martin, Doctor Cane, of Kilkenny, and Mr. Varian, of Cork. Mr. D’Arcy M^Gee, was he a member? — Yes, I think he was. The Lord Chief Justice. — Who? — Mr. D’Arcy M‘Gee, my lord; I am not certain that he was an active member. The Attorney-General . — Was he in the habit of attending the meet- ings ? — He attended the meetings. Was Mr. Brennan a member? — No. Sir C. O'Logldm . — All the names of the members are men- tioned at the head of the rules. The Attorney- General . — Do you mean tliis paper from which you have taken the rules of this council ? Sir. C. O’Loghlen. — Yes. The Attorney-General {to the witness ) — Did you know Mr. Lai or; was he one of them ? — I am not sure. You v/ere secretary, I believe, for a few months ? — The first six. And did you, after the first six months, cease to have any connexion with the body? — Yes, except for the first two or three mouths after 684 SPECIAL COMMISSION, CO. TIPPERARY. leaving. I had some little intercourse, and was present at that meet- ing of the Dr. Doyle Club to which I alluded, when the lecture was delivered. . When did you attend that meeting of the Dr. Doyle Club ? — About two months after my leaving. I think in July or August. In July or August of the year 1847 ? — Yes. I believe you did not attend any of the meetings since August, 1847 h — No. You knew nothing of the proceedings of the body ? — Not at that time. You stated you were subpoenaed on behalf of the Crown ? — Yes. Re-examined hy Mr. Fitzgerald. You have given the names of several of the council; can you tell me whether there were any clergymen on its council? — Yes. Many? — The Rev. Mr. Meehan was a member. Were there any others ? — The Rev. Mr. Kenyon. Any others? — I do not recollect just now; but if I had time I would know them. You stated to the Attorney-General that you were present when that lecture was delivered ? — Yes. You have read that since? — I have. Is that the substance of the lecture {handing a paper to the witness) ? — It is, positively. Dr. John Gray, sivorn — examined hy Sir 0. ODoghlen. I believe you are the proprietor of The FreemaJs Journal 1 The Attorney- General . — This gentleman has been in court during the whole of the proceedings, and there was an under- standing that the witnesses should be out of court. I do not make any objection in a case of this description, hut certainly it would be advisable for the witnesses to be out of court. Mr. Fitzgerald . — If an objection is made, I will yield to it. The Attorney- General . — I expect if there are any more wit- nesses to examine that even now they should leave court. Mr. Potter . — I cannot control the witnesses ; there are several members of Parliament to be examined, and I cannot control them. Sir C. O'Loghlen . — At the time the rule was made we were not aware that there would have been any necessity for calling upon Dr. Gray ; it arose in a subsequent part of the case. Lord Chief Justice Doherty . — I do not understand the Attorney-General to persevere in his objection. The Attorney- General. — No, my lord. Sir OLoghlen {to the ivitness). — Are you the proprietor of The Freeman's Journal ? — Oue of the proprietors. Do you recollect the formation of the Irish League in July last? — I recollect the contemplated formation of the Irish League ; the arrange- ments that were made preliminary to the formation of the Irish League. Were you present when the rules of the Irish League were settled and adopted ? — I was. THE QUEEN WILLIAM SMITH O’BRIEN. G85 Look at those rules {handing a paper to the ivitness) ? — There are ten rules. Those were afterwards adopted by the League '? — Yes. Hand those in to be marked. Were you a member of the Repeal Association 1 — I was. Look at that document {handing a document to the witness). Was that document circulated to your knowledge by the Repeal Association 1 — It is a speech made by Mr. O’Brien in 1843. Mr. Justice Moore . — The first are the rules of the League. Sir C. O'Loghlen . — I ask him now whether he was a member of the liep)eal Association. {To the ivitness .) — What is that document you liave in your hand? — It purports to be ‘^A speech of William Smith O’Brien, M.P., on the cause of discontent in Ireland, delivered in the House of Commons, 4th July, 1843.” Mdiat is the other document attached to it? — A. letter of William Smith O’Brien en joining the Association.” Was that report and letter circulated by the Repeal Association ? — It was. Y ou got a copy of it as a member ? — I did. Ho you recollect seeing the manuscript of that paper of Mr. O’Brien’s from which it was printed ? — I was present at the public meeting of the Association, before it was printed, when it was read; it is dated October, 1843. Were you present at the first meeting of the League ? The Lord Chief Justice . — You have not given the date of it. Sir C. O'Loghlen . — The 10th July, 1848, was the first. {To the ivitness .) — Were you present at the first public meeting of the League ? — No, not at the first public meeting. Were you present at the last meeting of the Confederation ? — I think not; I am not aware that I was. You have been some time acquainted with Mr. O’Brien ? — I have known him since 1844. Have you conversed with him on political subjects ? — Very frequently. Have you ever heard him express disloyalty to the Queen, or use any language disrespectful to royalty at all? — Never. Hid you ever hear him express opinions with respect to constitutional agitation ? — I have heard him repeatedly express his determination The Attorney- General . — I do not know really, my lord, whether this is evidence. Sir C. O'Loghlen . — The class of evidence we have now to offer was objected to, and there was a very long argument on the subject both in the cases of Hardy, Horne Tooke, and after- wards in the case of Quigly v. O’Connor, and also in the case of the Queen v. O’Connell, in which one of your lordships was counsel. The Attorney- General . — It was not opened by Mr. Whiteside, and I cannot see the object of it. Mr. Justice Moore . — State the general nature of it, and the examination you propose to enter into. 686 SPECIAL COMMISSIOx^, CO. TIPPERARY. Sir C. O' Loglilen. — The line of examination we propose to offer is, to show from persons acquainted with Mr. O’Brien for a long time, that they have never heard him express opinions disloyal to the Queen, and that his opinions have been always in favour of constitutional agitation. A similar line of defence was adopted in the cases of Hardy and Horne Tooke. It was adopted in Hardy’s case, and expressly admitted by the Court after a very long argument. Similar evidence was brought forward in the case of O’Connor, who was tried, and witnesses, including Lord John Russell and several noblemen and gentlemen, were brought forward, who all gave evidence to the same effect. The Attorney-General. — I have a perfect recollection why the evidence in O’Connell’s case was admitted. The case, according to my recollection, was this, that it was alleged on behalf of the prosecution that some of O’Connell’s speeches, though nominally bearing one construction which was put upon them, that that was not really the true intention with which those speeches were spoken. Then they wanted to show that he did mean by those speeches what he said ; and, as evidence of that, for the purpose of supporting that view of the case, they were allowed to go into evidence of a speech made several years before to show, at an early period of his political life, that he did really and hona fide profess himself an advocate of legitimate agitation for the purpose of obtaining political changes. That, according to my recollection, was the ground on which this description of evidence has been admitted in most of those cases. In this particular case we do not at all impute any meaning to words or speeches made by Mr. O’Brien, except what is plainly expressed in the speeches themselves. I do not object to general evidence of character. Lord Chief Justice Doherty. — Does not this amount to general evidence of character ? Suppose he puts the question : from your intercourse with Mr. O’Brien do you believe him to be a man attached to the Queen and constitution? To general evidence of character of that kind there could be no objection. Mr. Justice Moore. — In Horne Tooke’s case they admitted a letter addressed to the Corresponding Society. Mr. Fitzgerald. — We are not conceding that the meaning put by the Attorney-General on the speeches is the correct one ; that is a question for the jury. The Attorney- General. — I do not want to put any other construction upon them, but what the documents themselves bear. The Lord Chief Justice. — We think it right to ask the general question as to his attachment to the Queen. Sir C. O' Loghlen. — I did not hear you, my lord. The Lord Chief Justice. — We will allow you to ask the general question as to the attachment of Mr. Smith O’Brien to the Queen and constitution. THE QUEEN v. WILLIAM SMITH OmiEN. GST Sir C. O Loghlen . — The question I was asking was the question which was allowed to be put in those cases. Mr. Justice Moore . — We are not expressing any opinion as to the admissibility of tlie documents you projDose to give in evidence. They stand altogether perhaps on a different ground. Sir C. O’ Loglilen (to the witness). — From the opportunities you have had of a knowledge of Mr. O’Brien’s sentiments, can you state what was his opinion of constitutional agitation ? The Lord Chief Justice . — We do not understand that word here ; you must ask as to the loyalty of Mr. O’Brien, and his attachment to the Queen. Witness. — I have frequently heard him say he would rather give up life than be a party to any unconstitutional agitation. Sir C. O Loglilen. — Bo you recollect any dispute that arose between Mr. Mitchel and Mr. O’Brien in the Confederation % The Lord Chief Justice . — I do not know how that can be evidence. Sir C. O' Loglilen . — We submit that the public acts of Mr, O’Brien are clearly evidence in this case. The Solicitor- General . — It would be trying another matter. The Lord Chief Justice . — At present we do not think you can go further. That question may possibly be asked at a future stage ; but at present, we think you cannot. Mr. Justice Moore . — Fix the time, place, and circumstances, before you ask the question. Sir C. O Loglilen {to the witness ). — Bo you recollect any public dispute between Mr. Mitchel and Mr. O’Brien? — It was a matter of public notoriety. The Solicitor- General . — You are asked a question as to a matter of fact ; do not answer it unless you know it as a matter of fact, of your own knowledge ; do not speak of matters of public notorietyi Sir C. O’ Loglilen. — Bo you recollect the month of May last ? — I do. Bo you recollect a dispute which then took place between Mr. O’Brien and Mr. Mitchel ? — I remember speaking to Mr. O’Brien about that dispute, and hearing him express himself very strongly against the opinions expressed by Mr. Mitchel. The Attorney -General . — That will not do. Sir C. O' Loglilen . — We shall be able to show by a person, who was present when the dispute took place, what the dispute was about. It is not, perhaps, strictly evidence, hut we will afterwards show what that dispute was about ; we think it very material in this case. Mr. Fitzgerald . — As I understand the statement of the 688 SPECIAL COMMISSION, CO. TIPPERARY. Attorney-General — and he seeks to hind the prisoner at the bar by it — it is, that in tlie month of February or March, 1848, a member of an association entered into a treasonable con- spiracy, as he was pleased to call it, for the purpose stated in this indictment. He has, under that, attempted to give in evi- dence against Mr. O’Brien, the acts of various members of that association. What we propose to do is, to show, with respect to acts and opinions expressed, with the intent, or any thing like the intent, the Attorney-General stated, they were disavowed by the prisoner. Mr. Justice Moore. — The question is with regard to what Mr. O’Brien said ; we are not deciding at all how far you may give evidence on the transactions that took place in the Confedera- tion. You are proposing to ask the witness about what Mr. O’Brien told him. Sir C. O'Loghlen. — W e will show it, my lord, in another way. (To the witness.) — Take that documeut into your hand ; it is one of the documents read by Mr. Whiteside. The Attorney- General. — What are you reading it for ? Sir C. O'Loghlen. — We will show you in one moment. Witness. — It is a letter from himself directed to me. Sir C. O'Loghlen . — Did you see that letter in manuscript before to-day ? — I did. The Solicitor-General. — Is that a paper of your own, The Freeman! s Jowrnal, having the original manuscript, or is it from another manu- script ? — This is an exact copy of the letter written to me by Mr. O’Brien. It is printed in The Nation newspaper, my lord. It is a remarkable document, and I could not be mistaken. I remember read- ing it in The Nation, in The Freeman, and in manuscript. Sir C. O'Loghlen — Where is that manuscript? — Destroyed, to the best of my belief. I am under the impression that it is destroyed according to the usual custom. Is it the usual custom to destroy the documents printed ? — It is. That last answer requires some explanation. They go out of my possession, and after a few months I never inquire for them, and never hear more of them; and my belief is, that they are used as waste paper by other people for their own purposes, such as selling them to grocers and other tradespeople as waste paper. Sir C. O'Loghlen. — If the Attorney-General objects to that evidence, we cannot go further. We thought it right to bring it forward, as it was stated by Mr. Whiteside : but if it be objected to, we will not press that letter, my lord. (To the witness.) — Dr. Gray, do you recollect Saturday, the 21st of July last? — I cannot say that I recollect any thing particular occurring on that day. Do you recollect a telegraphic despatch arriving at your office on that day? — I recollect a telegraphic despatch arriving at my house about that day; I presume that is the day. THE QUEEN v. WILLIAM SMITH O’BRIEN. 689 Mr. Justice Moore . — That was about the Habeas Corpus Suspension Act ? — Yes. Sir G. CLoghlen . — Was there a placard exhibited outside your office on that day? — There was. What has become of that placard? — I think it was burned the day after. Was there a statement on that placard that a warrant had been issued against Mr. O’Brien ? — There was. Did you see Mr. Dillon and Mr. Meagher on that day? — They called on me that day with reference to the statement on that placard. Did you show them the original telegraphic despatch ? — I did. Take that document in your hand {handing a paper to the witness). These are the resolutions of the 15th of July, my lord. The Solicitor -General . — Unless Dr. Gray was present at the passing of those resolutions, or produces the original manuscript, or somebody connected with drawing those papers, we must object to their being received in evidence. Sir C. O’ Loghlen {to the witness ). — Look at those and read them over. The Attorney-General . — He cannot do it. We object to putting a newspaper into the witness’s hand in order to refresh his memory. Mr. Fitzgerald . — My friend has a right to put a paper into the witness’s hand, and ask him to read it for one moment. The Attorney- General . — And then to examine him on it. Witness . — I recognise this as a reprint of a resolution sent to me by the members of a club. Sir C. O Loghlen . — Did you see the resolution in manuscript? — Yesj it is an accurate copy, except some slight typographical error. Where is that manuscript ? — It was returned to the members of the club ; it was an original document sent to my office, and I left directions that it should be returned to the messenger who called for it again. Do you recollect who it was brought it to your office ? — It was handed to me by the foreman printer. You do not recollect who brought it there? — I declined putting it in, not knowing that it was authentic ; I afterwards gave him directions to put it in. Sir C. O' Loghlen . — It is the best evidence we can give of the fact. We propose to show that Dr. Gray saw this in manuscript. They were received from the place he usually received advertise- ments from, and he published them in The Freeman's Journal. He saw the original manuscript ; and I was going to ask him about the original manuscript. The Solicitor-General . — Can Dr. Gray swear in whose handwriting it was ? — 1 recognised the authenticity of the document by the signatures, some of which I knew. My attention was drawn to the document by the foreman. The Solicitor- General . — I am raising no difficulty about it. 2 Y 690 SPECIAL COMMISSION, CO. TIPPERARY. Witness . — He was employed in my office at one time, and I knew his handwriting. /Sir C. OLoglilen . — Among the names there appears the name of Mr. Meaoy? — Yes. He was a reporter in your office ? — He was for many years a reporter. Did you publish that document in your paper % — I did. And you do not know what has become of the original paper since ? — I gave directions for it to be given to the party who left it, as it was an original and not a copy. Is that a correct copy? — Yes. Sir C. O'LogJilen {to the Clerk of the Crown ). — Then mark it as proved by Dr. Gray. The Solicitor- General . — I consider it not proved at all. Cross-examined hy the Solicitor-General. You state that the League was formed on the 10th of July, 1848? — I did not state any thing at all about the first meeting; wliat I stated was, that the arrangements for forming the League I was present at. A preliminary meeting ? — No ; there were at least twenty meetings ; they were all held in my office and I was present. You were present at a number of meetings called for the purpose of forming the League ? — Yes. Do you remember when all the parties having conflicting opinions ultimately arranged the terms on which the League was to be consti- tuted? — i do. When was the first meeting of the League ? — I do not remember the exact date ; it was ten days before that meeting that Sir Colman asked me about; the terms were then ultimately agreed on by all parties. That was the 10th of July ? — It was a little earlier than that; I do not recollect the first meeting. Were you yourself a party to this discussion as to coalition ? — I was; I was present at every meeting of the parties. That was a coalition between the members of Conciliation Hall and the members of the Confederation ? — A coalition of two parties of repeal- ers, who fancied they differed very much, and found they did not differ. One party consisted of the advocates of moral force? — They were all advocates of moral force. As distinguished from the advocates of physical force ? — They were all advocates of moral force. They were called in the language of the day, moral and physical force parties ; but when they came together and con- versed on the matter, they found they were all the advocates of moral force. Was it such an amalgamation as included in itself a portion of the moral force and a portion of the physical force supporters? — Not at all; the repealers were proposed to be formed into a League. Am I to understand that the physical force advocates had conceded their opinions, to enable them to become members of the League, to the moral force men ? — There was no concession on either side ; both parties conceded phraseology which they thought might be misunderstood by the other. And was it a concession of phraseology without disclosing the real state of the opinions of the parties ? — I did not state that. What am I to understand from it ? — ^There were certain phrases used by both parties which were misunderstood by the other ; and on coming THE QUEEN v. WILLIAM SMITH O’BRIEN. 691 to understand each other’s meaning, they found that they had misunder- stood each other. And their difference, that is their separation, arose through a misunderstanding, and not because of any real difference as to the principle on which the repeal agitation should be conducted. Now, am I not to understand this, that one of the parties objected to its being considered that members of the League should have any connexion whatever with the confederate clubs ? — Both parties agreed in that. That is, all the members of the League. Did they denounce — I will not say denounce — but did they all decline any connexion with the confede- rate clubs 1 — I do not understand what you mean by that. Was it a necessary incident to their character, as members of the League, that they should have no connexion whatever with the clubs ? — It was understood that the Irish League was to be a separate and distinct body ; totally distinct from all others. Did that amount to excluding from their body members of clubs ? — It did not amount to excluding the members of the Repeal Association or any other association except place-hunters ; that was the only exception made. Was there not also an understanding that the members of the clubs were not to be excluded; was there no exclusion with the exception of persons who, being repealers, would accept office or look for it? — There was no recognition or exclusion of any parties save three members of the Confederation ; members of the Repeal Association were admissible, but place-hunters were all excluded. Was there, however, an understanding that none of the members of the League were considered to be responsible for any acts or opinions of the clubs ? — None of the members of the League were to be considered responsible for any of the acts of any other parties. As associations? — Associations or any other parties ; they were respon- sible for their own acts only. That telegraphic despatch came on the 22nd of July to your office ? — Yes. That was exhibited by you? — Yes; and Mr. Dillon and Mr. Meagher called for the purpose of seeing it; and when I showed it to them they told me the use they intended to make of it. You showed them the original telegraphic despatch ? — They asked me for the original despatch; I asked them what they wanted to see it for,' and then they told me. I want to know whether there was any such thing in existence as the original despatch, if it is not prying into the secrets of the office ; I want to know what this original despatch was, that is, the communication transmitted from Liverpool ? — I presume you mean the original copy transmitted from London to me by my agent. Then there was an original telegraphic despatch sent to you from Lon- don ? — There was a message sent to me from London. There was what is technically called a message sent by telegraph ? — • Yes ; you may call it what you please. That is, it is communicated to Liverpool by telegraph, and then brought over in the vessel? — Yes; the analogy is obvious. Was there such an original telegraphic communication sent to your office on that day, as you have stated ? — There was a message transmitted by my agent in London to my agent in Liverpool, and the agent in Liverpool transmitted that to me, and the manuscript of my agent I showed to Mr. Meagher and Mr. Dillon. 2 Y 2 €92 SPECIAL COMMISSION, CO. TIPPERARY. Was that placarded in the front of the office ? — It was. Was that communicated to the public by placard ? — It was. What were the words, as well as you recollect, as to the Habeas Corpus Suspension Act ? — The purport was, that Lord John Russell had moved for the suspension of the Habeas Corpus Act, and that a warrant was issued for the arrest of Mr. Smith O’Brien. Was the first sentence of that, a telegraphic despatch, and the addi- tional words, “ Warrant issued,” &c., added at your own office by yourself? — No. That was part of the message transmitted from London by your agent ? — That was part of the message sent to me. That could not have been true ? — I believed it to have been true. You found afterwards it was not ; the act had not passed, it was only notice given of bringing in the bill ? — My telegraphic despatch did not say an act had passed, but that it was about to be passed. J ust look at that {handing a paper to the witness) ; see whether there is any mark there. Do you see the words I have underscored in black ink ? — I do. Did that ever appear in your paper ? — I am not in the habit of looking over paragraphs of that class. That is enumerating the clubs and the formation of them ? — I very rarely look at insignificant paragraphs of that sort. Suppose it appeared in your own paper that there was a club formed on Constitution-hill, would your connexion with the political world in- duce you to inquire what would be the nature of that club that had been so formed on Constitution-hill ? — It would not. Mr. Fitzgerald . — Does your lordship think this is a proper cross-examination ? Witness . — It could not have led me to answer any question. The Lord Chief Justice He is not asking any thing about the contents of the paper. The Solicitor-General {to the witness). — In fact, you know nothing about the Red-hand Club? — Not any thing of it; nothing to my knowledge. Sir C. O'Loghlen . — All the authorities are collected in that case in the argument of Mr. Erskine ; it arose on the exami- nation of the Duke of Richmond. John Maher, Esq., sworn — examined by Mr. Fitzgerald. Are you deputy-lieutenant of the county of Wexford ? — I am. You were also member of parliament for that county ? — I was. Are you acquainted with the prisoner, Mr. Smith O’Brien ? — Yes, I have been for many years. Do you remember his being at your house in the month of J uly last ? —I do. Can you state the date ? — I think it was the 22nd of July he came to me ; it was on a Saturday. Lord Chief JiLstice Doherty. — The 22nd? — Yes, Saturday was the day certainly. Mr. Fitzgerald. — Do you remember at what time he arrived? — He THE QUEEN r. WILLIAM SMITH O’BEIEN. 693 arrived in Enniscorthy about half-past five in the afternoon; be arrived at my bouse with myself in my carriage at seven or balf-past seven. Am I to understand you that be came from Enniscortby with you in your carriage ? — Yes. May I ask you whether that visit was by invitation ? — It was an invitation made to him a long time before. Look at that letter {handing a letter to the witness). — Yes, that is my note and handwriting. The Attorney- General. — We have given a list of all the docu- ments we found. Witness. — This is a letter written by me to Mr. O’Brien on the 21st of April, 1848. Mr. Fitzgerald. — He came on invitation ? — He bad received an invi- tation a long time before; it was renewed in that letter; he did not come at that time, and it was subsequently renewed the week before be came to me in July. Lord Chief Justice Doherty . — Is that one of those which have been given up to-day by the Crown ? The Attorney- General . — Yes, my lord, we gave a list of all the papers we had ; and such as they required to use we handed them. Sir C. O' Loghlen. — We have got all the public papers ? The Attorney -General. — You have got aU we have in Clonmel. Mr. Fitzgerald {to the witness) — Hid Mr. O’Brien remain at your bouse that night? — He remained that night. What time did he leave it ? — He left it about ten or half-past ten the following morning. State the circumstances under which he left it — A servant came to my dressing-room about eight in the morning, to say Mr. O’Brien wished to see me. I immediately went to his bed-room in my dressing-gown, where I found he was in the act of dressing. The Attorney-General. — One moment. I do not know whether all the private statements of Mr. O’Brien to this witness are to be evidence. Mr. Fitzgerald. — Surely I am entitled to give this in evidence. One of the arguments relied on by the Attorney-General, is founded on the intent with which Mr. O’Brien left Dublin on this very occasion. He seeks to found intent on the speeches and declarations of Air. O’Brien. Surely I am entitled to show from Mr. O’Brien’s own declarations and speeches, as a part of that act, on which the Attorney-General is relying, what the intent was. Your lordship knows a familiar case in bankruptcy which says, that all the declarations of the bankrupt, on the eve of it, are evidence against him. This act is put forward in front. The Lord Chief Justice. — We have gone so far as this, that Air. O’Brien appears to have gone on an original invitation, then renewed, and that appears to be proved by the evidence. Mr. Fitzgerald. — I am now showing the intent wdth which he 694 SPECIAL COMMISSION, CO. TIPPEEARY. left. As I understand, the whole case of the Attorney-General, as far as relates to the overt act of levying war, is founded on the acts of Mr. Smith O’Brien at certain periods. He says he left for this particular purpose. Surely I have then a right to trace him through the different steps of those acts, and to show declarations at the time each of those acts was done, in order to show the intent with which each of those acts was done. Mr. Justice Moore. — Was there any evidence on the subject of his leaving Mr. Maher ? The Attorney -General. — Not the slightest. It is now stated that he arrived in Enniscorthy on Saturday evening, and that he went to the house of this gentleman, Mr. Maher. He came in next morning from that house to the town of Enniscorthy. He addressed some people after mass, and he, Dillon, and Meagher, left the town of Enniscorthy on a post car. That is the whole of the evidence. Mr. Fitzgerald. — That is not all, with great respect. What I am about to prove is tliis, that from this gentleman’s house, at Abbey feale, Mr. O’Brien returned to Enniscorthy. The first speech proved against Mr. O’Brien is the speech made by him at Enniscorthy. Even before that, one of the declarations relied upon by the Attorney-General, was a declaration in Enniscorthy on his arrival or previous to his going to Abbeyfeale. Every one of these in succession are stated to the jury by the Attorney- General, as the acts of Mr. O’Brien in pursuance of his treason- able intent. I have met one of them already. I have shown that on leaving Dublin he had another intent. 1 have shown by his acts, and otherwise, that his intents were not treasonable. Surely that evidence is not objectionable. The Lord Chief Justice. — The Attorney-General has not ex- amined as to any thing that occurred at Mr. Maher’s house, which might admit declarations on that occasion of Mr. O’Brien. Mr. Fitzgerald. — Surely, my lord, he stated those acts as different steps. Lord Chief Justice Doherty. — You may meet it by the acts, for instance, of Mr. Meagher going up to Mr. O’Brien. Ilr. Fitzgerald {to the ivitness). — Had any other persons come into your house ? — In the bed-room of Mr. Smith O’Brien I found two other gentlemen who had arrived that morning by the mail from Dublin. Who were those gentlemen ? — Mr. Thomas Francis Meagher and Mr. John Dillon. The Solicitor- General. — They have now the full benefit of what they wanted. The Prisoner. — May I be allowed to ask, in common fairness, whether every speech made by me subsequent to my leaving Dublin, which happens to be reported in such a fashion that I never believe speeches were reported before, by every common pohceman, should be taken as evidence of my intent ; and the declaration of a private friend, of what I said to him in the THE QUEEN v. WILLIAM SMITH O’BRIEN. 695 progress of my journey, should not be allowed as evidence. It does seem to me the most monstrous decision I ever heard of. Mr. Fitzgerald Does your lordship think, having brought other members who are charged as co-conspirators into con- nexion with Mr. O’Brien, that I am at liberty to give evidence as to the intent with which they left ? The Lord Chief Justice. — No, we do not. The Prisoner {to Mr. Fitzgerald ). — Perhaps you would save yourself the trouble of going any further ; it is quite a farce to attempt it. I call upon you to give up the defence. Let the case go as it is to the jury ; I am quite satisfied ; I look upon it as a substantial violation of all the principles of justice, and I call on my counsel to give up the case. Mr. Fitzgerald . — I beg your lordship’s pardon, but your lordship knows the heavy importance of this case ; perhaps the Court will wait till Mr. Whiteside arrives ? Mr. Justice Moore. — Yes, certainly, we -will wait. Mr. Fitzgerald. — In order to save time, I will ask one or two other questions of the witness to which there can be no objection. {To the witness .) — At what time did Mr. O’Brien and Mr. Meagher leave your house? — From ten to half-past ten o’clock. Did those two gentlemen you spoke of go with him ? — They did. Did you go with them ? — No. • Have you been long acquainted, Mr. Maher, with Mr. O’Brien ? — My acquaintance with him dates from 1835. Are you acquainted with his sentiments, political and otherwise ? — His political sentiments — of course I have some acquaintance with those, as I should say the rest of the world have. His private senti- ments, on various matters, when we have come together, I have also known ; we have spoken together on political matters. Do you believe him to be a person attached to the Queen and consti- tution ? — I should say distinctly so. Did Mr. O’Brien dine at your house that day? — He did. Was a Dr. Sinnott there? — No. Was any arrangement made with Mr. O’Brien on the next day as to what was to be done, before these gentlemen came ? — I told Mr. O’Brien that I had asked Dr. Sinnott, who is president of St. Peter’s College, Wexford, and the vicar to the Roman Catholic bishop, and my own parish priest, and I think a curate of the bishop’s, who was then absent at Harrowgate, to meet him the day following that Sunday at dinner. The Prisoner . — My lords, I beg pardon again ; I must once more appeal to your lordships, to know whether the conversation I held with Mr. Maher on the morning of my departure is to be received by the Court ? The Solicitor- General . — As the rejection of the question appears to press on Mr. O’Brien’s mind, and he feels that the question ought to be answered, we withdraw our objection. The Lord Chief Justice. — If you have no objection, of course it may be answered. The Solicitor- General . — We have no objection to it. 696 SPECIAL COMMISSION, CO. TIPPERARY. The Attorney- General. — It is not to be taken as a precedent. The Lord Chief Justice. — Any transaction which is evidence on the part of the Crown of conversations and communications with Mr. O’Brien, they had the fullest right to examine as to his own declarations in the course of this transaction ; but this being a perfectly distinct one, with reference to which the Crown offered no evidence, w^e thought he had no right to do so; but as the Crown waive their objection, you may proceed, Mr. Fitz- gerald. The Attorney -General. — Certainly, my lord. Mr. Fitzgerald {to the witness). — Now state what passed on the morning of the 23rd ? — About eight o’clock a servant came to my dress- ing-room, and stated that Mr. Smith O’Brien wished to speak to me. I went to his bed-room, and found him in the act of dressing ; he immediately said, “There are two other gents in the house for whom I think you are not prepared : Mr. Meagher and Mr. Billon arrived this morning by the mail, and bring the news of the suspension of the Habeas Corpus Act, ” The Lord Chief Justice. — Meagher and Billon 1 — Meagher and Billon. “ And that a warrant for my arrest has been issued, which they think may probably have come down by the mail by which they came them- selves and he then said, “ My dear Maher, I did not come to your hous^ to disturb its peace ; get us some breakfast, and send us on our way. I do not wish that any arrest should take place in your house. Send for a car, that we may go towards Kilkenny, where we have some friends with whom I wish to consult in this crisis.” I told him they should have my carriage to take them to Enniscorthy, and, in the mean- time, I would send a messenger to have a car ready to forward them on their arrival. They breakfasted, and left within an hour. Now, had there been any appointment previous to this for any thing to be done on the next day h — On the next day I think I had projected to take Mr. O’Brien to see Wexford and its harbour, and the mud lands of Wexford, which were in the course of reclamation, in which he expressed a considerable interest. Cross-examined by the Attorney -General. You met Mr. O’Brien on his arrival at Enniscorthy? — Yes. Bid you meet him on his leaving the day coach on which he came down? — My carriage met him, and brought him up to the house. You were not by when he made the speech in Enniscorthy? — He made no speech in my presence. You were not by when he got down from the coach ? — No. It was the next morning, of course, that those two gentlemen arrived at your house ? — On Sunday morning. Both Billon and Meagher? — Yes. At a very early hour, I suppose ? — Yes. May I ask you whether you recollect what description of travelling apparatus Mr. O’Brien brought with him ? — Mr. O’Brien had a large leathern portmanteau, I am aware. You stated already, and the circumstances prove it, that that morning you did not expect either Billon or Meagher? — No. Kilkenny he said he was going towards? — Yes. THE QUEEN 'y. WILLIAM SMITH O’BRIEN. 697 Mr. Henry Coulter, sivorn — examined by Sir C. O’ Loghlen. I believe you are a reporter ? — Yes. A short-hand writer? — Yes. Connected with The Freemaris Journal at present? — Yes. Do you recollect the month of February last ? — I do. Do you recollect having been present at the meeting of the Confedera- tion held at the Rotunda, at which a discussion arose between Mr. O’Brien and Mr. Mitchel ? — Yes; I recollect the meeting very well. Did Mr. O’Brien speak on that occasion ? — He did. Did you report the speech ? — A portion of it. Have you seen that report lately ? — Yes; I saw it this morning. As far as you recollect, is that a fair report of Mr. O’Brien’s speech on that occasion ? — It is. What date was the meeting held ? — I cannot tell the date. It was held on Wednesday, February 2nd or 3rd. Do you recollect a resolution having been moved by Mr. O’Brien at that meeting ? — I do recollect a resolution having been moved by Mr. O’Brien. Do you recollect what the purport of that resolution was? — Yes. State to their lordships what the purport of that resolution was. — It was to the effect, that certain letters having been published which the public might consider were expressing the opinions of the Irish Con- federation, they deemed it advisable to lay before the country their original rules. Do you see that resolution there {handing a newspaper to the witness) ? —Yes. From recollection, can you state whether that is the resolution brought forward and proposed by Mr. O’Brien ? — It is. Was that resolution opposed by any particular gentleman ? — An amendment was moved by Mr. Mitchel. By whom was that amendment seconded, do you recollect ? — I think it was Mr. Devin Reilly; I do not recollect, but I think it was Mr. Reilly. Was there an adjournment of that debate ? — There was. Were you present at the adjournment? — I was present when the meeting was adjourned, but I was not present at the next meeting. Were you present at the third meeting? — Yes. Did you hear Mr. O’Brien speak on that occasion again, in support of his resolution and in condemnation of Mr. Mitchel’s amendment ? — I cannot exactly state. The original meeting was held on Wednesday, there was an adjourn- ment till Thursday, and there was a final adjournment until Friday? — Perhaps I was present at all three meetings. You were at the first and last? — Yes, I was. The first meeting was Wednesday, February 2nd ; and the second, the 3rd; and the last, Friday, the 4th; and at the last meeting you heard Mr. O’Brien reiterate the sentiments of the first day? — Yes. Was Mr. O’Brien’s resolution, or Mr. Mitchel’s amendment, carried ? — Mr. O’Brien’s resolution was carried. Sir C. O'Loghlen . — Will the Clerk of the Crown mark that passage ; it is the resolution and the amendment ? {To the witness.) — Look at the report of that speech there, and state when was the meeting held ? 698 SPECIAL COMMISSION, CO. TIPPERARY. Mr. Justice Moore. — Did this witness report that also ? Sir C. O’Loghlen. — Yes, my lord. Witness. — I think it was held on the 1 3th of May. I8I6?~1847. Sir C. O'Loghlen. — That is anterior in point of date, but it is one of the speeches read by Mr. Whiteside. (To the witness .) — Were you present when that speech was delivered ? — I was. And reported that speech ? — I reported a portion of it. Have you read over that speech lately? — I have not; I have looked at the speech. Then I will content myself with the speech of May, 1847. Hid you read those passages that are underlined there? — Yes. Ho you recollect those passages underlined being spoken there ? — Yes, Ido. Sir C. O'Loghlen. — It is a speech made by Mr. O’Brien at the Irish Confederation in 1847. Mr. Whiteside read it to the jury. The Lord Chief Justice. — Just read it. Sir C. O'Loghlen . — “ With regard to the policy of the new association, I candidly tell you, that we thought there was no hope for repeal if this country was to become a nation of place-hunters. I do not believe that any nation ever yet won its liberties, or ever will win its liberties, by place-hunting. We, the repeal party, consider ourselves in a position of antagonism to all parties, particularly English parties, opposed to repeal; and I should like to know what chance there would be of winning any contest in which the combatants on one side were to begin by asking favours from those on the other side ? We are told forsooth — and this is the pretext — that if the places be obtained by repealers, the hands of repealers will be strengthened, and they can wield the power which they so acquire against their benefactors. Gentlemen, I will not ask an assembly of Irishmen what they think of the chivalry, the generosity, and the mag- nanimity of that sentiment.” And this, my lord — “ Now we think it absolutely necessary — and I speak on the part of the council as well as on my own part — we look upon it as essentially necessary to combine all classes and creeds of Irishmen — ay, to unite even orangemen with us in our struggle — those men who have often employed physical force injuriously for themselves and the country, but who never abdicated the right to wield the sword. We do feel earnestly and strongly, that in order to effect, by peaceful means, the repeal of the union, a confederation of the Protestants and Roman Catholics of Ireland is absolutely necessary.” The Lord Chief Justice. — Let me have a copy of that. Sir C. O’Loghlen. — I am afraid, my lord, I have not a copy of it here. The Lord Chief Justice. — You can copy it in the course of the evening. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 699 *S'tV 'C. O' Loghlen. — Yes, my lord, we will. There are three lines which I wish to read, which I did not underline, hut which were read by Mr. Whiteside. “ There was another resolution proposed hy us, and I think it right that the Protestants of this country should know that it was not sug- gested by a Protestant, but by Roman Catholics. That resolution was to the effect, that in the proceedings of the new body, there should he a strict avoidance of all topics of a sectarian or purely religious nature. Perhaps some felt over-sensitive on this point, and its importance may have been exaggerated. I think it has; but the fact cannot be con- cealed, that there are many Protestants and Catholics who consider that there was in the proceedings of the Repeal Association that which gave it rather the appearance of a Catholic association than of a national body of Irishmen, including men of different creeds.” And what I read to your lordships. We propose to read the speech of 1848 when we come to read our documents. The Lord Chief Justice . — Is it very long? Sir C. O'Loghlen . — It is the speech with respect to Mr Mitchel — it is a column ; hy-and-by we shall have to read it. The Lord Chief Justice . — You had better read it now. Sir C. O'Loghlen . — It is February, 1848, my lord. Mr. Richard Barrett, morn — examined hy Mr. Fitzgerald. You are editor, I believe, Mr. Barrett, of The Pilot newspaper ? — Yes. Are you acquainted with the prisoner, Mr. Smith O’Brien h — I am. I have not met him for some time, but I am acquainted with him. Were you a member, Mr. Barrett, of what is called the ’82 Club? — I was. Was Mr. Smith O’Brien a member ? — He was. Do you know what they called the confederate clubs ? — Yes. I believe the ’82 Club was not one of them? — No. Do you know the dress ? — I do. Is it a green dress and a cap with a gold band ? — It is. I have one of them myself. You have worn it occasionally ? — I have never worn it but once. How long did you say you have been acquainted with Mr. Smith O’Brien? — I think the first time I saw him was in 1844, when I was imprisoned with Mr. O’Connell. I think that was the first time I saw him, when he came to the prison. Plave you had an opportunity of knowing his political opinions ? — I have travelled with him and Mr. O’Connell, and I have had opportunities of conversing with him on political subjects. Do you think him attached to the Queen and constitution ? — He pro- fessed principles which I think involve attachment to the Queen ; and if he had expressed contrary sentiments I should have recollected it. Cross-examined hy the Solicitor-General. You were a member of the ’82 Club ? — Yes. Were you a member of any confederate club ? — Not one. Have you had the means of knowing how many of them were in existence in Dublin in the first week in July last? 700 SPECIAL COMMISSION, CO. TIPPERARY. Sir C. O'Loghlen . — My lord, this cannot be evidence ; he says he vras not a member. Wit7iess. — Not the slightest. Sir David Roche, Bart., sworn — examined hy Sir C. O'Loghlen. I believe you were formerly member of Parliament for the city of Limerick 1 — I was. Y ou have known Mr. O’Brien for many years ? — Eighteen or twenty years. I believe he is a grand juror of the county of Limerick? — He is a grand juror of the county of Limerick. You have had occasion to converse with him on political subjects ? — Frequently. Now, from his general character, and the knowledge of him you have acquired by those conversations, do you consider him a friend to the Queen and constitution, or the contrary? — I am quite sure that Mr. O’Brien, as far as I know, never entertained an opinion against the title and dignity of the Queen. With respect to the constitution, if you mean the constitution of the union, I think he was opposed to it in this country. But not in any other way except the restoration of the Par- liament to this, country, and upon that point he entertained strong opinions. You know what a republic is, I believe? — I have heard. You never heard him express an opinion favourable to a republic? — I never did. From your knowledge of his general character do you believe him to be a man who openly expresses his own opinions without dissimulation ? — I believe he is a very determined man in expressing his own opinions. Is he accustomed to speak openly or to conceal his real opinions ? — I think he speaks very openly. I understood you to say you never heard him speak disrespectfully of the Queen or royalty? — Never, and I was on intimate terms with him. Have you ever heard him express opinions with respect to consti- tutional agitation ? The Solicitor- General . — I object to that ; I think that such a question cannot be put. Sir C. O' Loghlen. — It is identically the same as that which was put to the Duke of Richmond in Horne Tooke’s case. {To the witness.) — Have you ever heard him express opinions with respect to constitutional agitation ? — I think I have heard him say that the only way to obtain political changes was by means of constitutional agitation. And you have had frequent intercourse with him for the last twenty years? — Frequently, both privately and publicly. Cross-examined hy the Attorney-General. You considered him rather a determined man in carrying out his opinions ? — In carrying out his own opinions. Have you had much intercourse with him since the month of March, in the present year ? — In the early part of the year I think I had. That is, about January or February? — After March — April. THE QUEEN WILLIAM SMITH O’BRIEN. 701 Sir C. O'Loghlen . — I beg your pardon, Mr. Attorney, I forgot to ask this question of the witness. {To the witness .) — Were you a grand juror with Mr. O’Brien at the last special commission ? — I was High Sheriff. That special commission was held in the month of January of the present year ? — Of the present year. Have you ever had any intercourse with Mr. O’Brien on political mat- ters since that month of January or February? — I am not sure ; but about that time a letter was written to him by Mr. Mitchel or Mr. Devin Reilly, which I believe I showed to him in a newspaper. A letter written by whom ? — By Mr. Mitchel or Mr. Reilly j I pointed it out to Mr. O’Brien, who declared his great personal hostility to the principles of that letter, and said he would separate from them. Was that letter written after the special commission ? — I am not sure as to the date, but I think it was about the time. The Attorney-General . — I think it was just about the time of the special commission ; it was in the month of February ? — I did not take any particular notice of it. You say that he openly spoke his sentiments and opinions ? — Certainly, as far as he had any conversation with me. Did you ever attend at any public meeting at which he was ; I mean political meeting ? — I was at one of the Dublin meetings — a large meeting in the Rotunda ; I think Mr. O’Brien was there. When was that held? — It was a very celebrated meeting; I forget the time. Was that the one at which he spoke of the address to the French nation ? — Oh ! no ; it was a great meeting of the noblemen and gentle- men of Ireland to relieve the distress; that was the object for which it was called. Was it a meeting of the Irish Council? — Yes, I think it was; but I never attended any of the meetings which you alluded to. You kept clear of them ? — I did. The Attorney- General . — You were quite right, I think. Re-examined hy Sir C. OLoghlen. You were present at that meeting at the Rotunda? — I was. Did you hear Mr. O’Brien speak on that occasion ? — Well, I think so. Sir C. O'Loghlen . — I think it would be much better if observa- tions were not made ; I certainly object to that last observation of the Attorney- General, that it was better to keep clear of those meetings. The Attorney- General . — He said he did not attend any of those meetings. Witness . — Certainly not. John Bolton Massey ^ Esq., sworn — examined hy Mr. Fitzgerald. I believe you are a grand juror of the county of Limerick? — I have been for a great many years. Are you acquainted with the prisoner, Mr. Smith O’Brien?— Yes; I know him very well indeed. Have you known him very long ? — I knew him when I was a boy. 702 SPECIAL COMMISSION, CO. TIPPERARY. A great intimacy existed between his father’s family and mine. One of his brothers has married a first cousin of mine. You have known him intimately ? — Upon my word, yes; there is a great intimacy between our families. You have had frequent communications with him ? — We used to meet very often. From your knowledge of his sentiments, do you believe him to have been attached to the Queen and constitution ? — I never could collect any thing that was hostile to the constitution, that is, the Queen, Lords and Com- mons; he certainly was a repealer, and was very anxious on that subject. Sir Denham Norreys, Bart., M.P., sivorn — examined hy Sir C. O’Loghlen. I believe you are a member of Parliament*? — Yes, I am. And have been a member of Parliament for many years 1 — For many years. Were you a member of Parliament in the year 1843 *? — Yes, I was. Mr. O’Brien was a member of Parliament in the year 1843 with you*? — Yes, he was. I need hardly ask, are you acquainted with Mr. O’Brien *? — I am. Do you recollect his making a speech in that year in the House of Commons, relating to the causes of discontent in Ireland ? — Yes, I do. Is that the substance of the speech he then delivered {handing a pamphlet to the witness) ? — I believe it is a perfectly correct report of the speech he then delivered. Ho you recollect the meeting that then took place of the Irish mem- bers after that speech ? — Yes, I do. There was an address, I believe, to the people of Great Britain, pre- pared at that meeting ? — Yes, there was. Will you look at that document {handing a document to the witness) ? — This is one of the documents found in Mr. O’Brien’s trunk, my lord. {To the witness .) — Ho you recollect being present at the meeting at which that address to the people of Great Britain was adopted? — Yes; it was adopted at several meetings. Can you state from memory who drew up that address ? — Mr. O’Brien I think drew up the draft, but several members who met together, cor- rected and altered it. Ho you see your own name to it ? — Yes, I do. I believe that is your own name and handwriting? — That is my name and handwriting, and I think this is Mr. O’Brien’s handwriting. You say you have known Mr. O’Brien for many years ? — For twenty years. Have you had frequent opportunities of conversing with him on political subjects ? — Yes. From those conversations, and the general knowledge you have of his character, do you consider him to be a man attached to the Queen and constitution of the kingdom, meaning by the word constitution,” Queen, Lords, and Commons ? — Certainly. Hid you ever hear him express sentiments of disloyalty to the Queen ? — Certainly not. Or in favour of a republic ? — Certainly not. The contrary, I believe. Ho you consider him, from your general knowledge, to be a friend to anarchy, or to social order? — To social order. Have you ever heard him express an opinion in favour of or against the rights of property ? — Never against the rights of property. THE QUEEN v. WILLIAM SMITH O’BRIEN. 703 From your knowledge of Mr. O’Brien, do you think he would speak one thing openly and another thing privately ? — Certainly not ; very far from it. William Fitzgerald, Esq,, sworn — examined hy Sir C. O’ Loghlen. I believe you are a grand juror of the county Clare ? — Yes. And I believe you are connected by marriage with Mr. O’Brien’s family ^ — Yes. Have you known Mr. O’Brien for many years ? — I have known him intimately for twenty years and upwards. Have you heard him speak on political subjects, and do you know his political ideas ? — Constantly. Ho you consider him to be a person attached to the present form of Government, the Queen, and constitution of the country, or to a repub- lic ? — I have not the slightest doubt of it. Is he attached to the present constitution ? — Yes, certainly. You never heard him express sentiments of disloyalty to the Queen ? — Never, indeed. I believe I may state also, that he is a person who speaks his senti- ments openly? — I am quite sure he never concealed his political senti- ments. From your general knowledge of his character, do you consider that he is a friend to social order or to anarchy ? — I believe him to be a friend to social order. He has every thing to lose by the one, and nothing to gain by the other. Ho you consider him, from his general character, to be at all blood- thirsty ? — I believe him to be quite the opposite, as much so as any man in existence. Ho you believe him to be humane ? — I believe him to be humane and tender-hearted. The Hon. Cornelius O Callaghan, sworn — examined hy Mr. Fitzgerald. I need hardly ask you, are you deputy-lieutenant of this county ? — I am. Are you acquainted with the prisoner, Mr. Smith O’Brien ? — I am. I believe you are a member of Parliament ? — I am not now ; I was not very long in the house. Were you at the same time with Mr. Smith O’Brien ? — I was. How long have you known Mr. Smith O’Brien ? — Eight or nine years. From your knowledge of him do you believe him to be a man attached to the Queen and constitution ? — I do. Wm. Monsell, Esq., M.P., sworn — examined hy Sir C. O Loghlen. I believe you are the colleague of Mr. O’Brien in the representation of the county of Limerick % — I am. Have you known Mr. O’Brien for many years ? — I have known him since I was a boy. And have you had conversations with him on political subjects ? — Constantly. From your knowledge of Mr. O’Brien’s character, do you consider him to be attached to the Queen % — Certainly; I never heard him express any disloyal sentiments. You never heard him express sentiments against social order or in favour of anarchy ? — I have constantly heard him express sentiments in 704 SPECIAL COMMISSION, CO. TIPPERARY. the strongest way in favour of social order, and against communism, socialism, and all those things which were mooted at the time of the establishment of the French Revolution. I need scarcely ask you, has he an open, or a deceitful character ? — I think his chief characteristic is, that he never disguises any thing. Cross-examined hy the Attorney-General. You have had a great many opportunities of communicating with Mr. O’Brien ? — I have. On political subjects ? — I have, ever since I had a thought on political subjects myself. How long ago ? — Since I was a boy. Did you ever hear Mr. O’Brien’s opinion on the subject of physical force, or any thing of that description ? — I really have no distinct recol- lection of discussing those sort of questions with him, not generally agreeing with him in politics; I do not think they were questions which arose between us. Air. Thomas Henry Bnrke^ recalled — examined hy Sir C. O'Loghlen. Is that Mr. Redington’s handwriting {handing a letter to the witness) ? — Yes, it is. Sir C. O’Loghlen. — This refers, my lord, to the contents of the portmanteau. {To the witness.) — Will you look at this document also {handing a paper to the witness)^ — It is a letter written by Mr. Redington to Mr. O’Brien, and bears date, Dublin Castle, 13th of August, 1848. Lord Chief Justice Doherty. — Is that in reference to the con- tents of the portmanteau ? Sir C. O’Loghlen. — We propose to read the document, my lord. Mr. Fitzgerald. — My lords, I think it my duty to mention, before I call the witness, as I rather apprehend there may be a doubt whether your lordships will receive the evidence, that we propose to call Major-General Sir William Napier, as to the transactions of the Reform agitation in 1831, in England; it is to prove the transactions with respect to that agitation. The Solicitor- General. — Mr. Whiteside did not state any spe- cific intention of proving any circumstances connected with that transaction. He spoke of it as a matter of history, and referred to some letter which appeared in a public newspaper. We did not interrupt Mr. Whiteside in his reference to that in his general statement, because we understood him to refer to it as matter of history. Their lordships’ opinion clearly was, that Mr. Whiteside had a right to allude to it only as a matter of history. The Lord Chief Justice. — It is better to go through the form of calling the witness on the table, and then discuss it when the question arises. Mr. Fitzgerald. — Very well, my lord. Sir C. O’Loghlen. — The next document which we propose to enter as read, is the speech of Mr. William Smith O’Brien, proved by Sir Denham Norreys to have been delivered in the THE QUEEN t;. WILLIAM SMITH O’BRIEN. 705 House of Commons, and proved to have been circulated as a speech of Mr. Smith O’Brien by the Repeal Association. The Lord Chief Justice. — There is no necessity to read that at length. The counsel on the other side can refer to such portions as they think proper. The Solicitor- General. — You can give us a copy of it, I suppose ? Sir C. O'Loghlen. — You shall have a copy. We propose also to enter as read, the letter of Mr. WilHam Smith O’Brien, dated 20th October, 1843, upon his becoming a member of the Repeal Association. The Lord Chief Justice. — This is the letter which I believe is attached to that speech, and forms a part of the same pubh- cation. Sir C. O'Loghlen. — It is, my lord. There are only three lines which I wish to be read, my lord. The Lord Chief Justice. — That is, of the letter accompanying that speech. Sir C. CLoghlen. — Yes, my lord. Previous to reading that letter, I should have entered as read, in point of date, this address, on the motion of Mr. Smith O’Brien, to the people of Great Britain, and which appears to have been signed by Sir Denham Norreys. That should have been the first in point of date. Now, my lord, we propose to read the rules of the Irish Con- federation, resolved upon at the meeting held at the Rotunda, on January 13, 1847. We think it necessary to read them, my lord. The Attorney -General. — Were they proved ? Sir C. O' Loghlen. — Yes, they were proved by Mr. Hamill, the secretary. My lords, the rules are as follow : — I. That domestic legislation is now, as it has been for forty-six years, the great and urgent want, as well as the inalienable right, of the Irish nation ; and that the helpless and dependent condition of Ireland, under the calamity of this present season, has made that necessity more apparent and more imperative. “ II. That circumstances having rendered it impossible for us to co- operate, as members, with the existing association, which was instituted to seek this great national object, it becomes our duty to make for our- selves a separate sphere of activity in which we may humbly strive for our country’s independence in the way that seems to us best suited to attain it. But we desire to have it clearly understood, that in taking this step, we disclaim all antagonism to the association already in exist- ence, to which we wish success in every honest effort it may make in furtherance of repeal. “ III. That a society be now formed under the title of ^ The Irish Confederation,’ for the purpose of protecting our national interests, and obtaining the legislative independence of Ireland, by the force of opinion 2 z 706 SPECIAL COMMISSION, CO. TIPPERARY. by tbe combination of all classes of Irishmen, and by the exercise of all the political, social, and moral influences within our reach. “IV. That a council be appointed, to be called the ‘ Council of the Irish Confederation,’ to conduct the business and promote the objects of the society, with power to add to their numbers. This council to be em- powered to make by-laws, to admit members, and to call general meet- ings of the society at such periods as shall seem expedient. “V. That the basis and essence of ‘The Irish Confederation’ shall be absolute independence of all English parties ; and that any member of the council accepting or soliciting, for himself or others, an office of emolu- ment under any government not pledged to effect a repeal of the union, shall thereupon be removed from the council. “ VI. That inasmuch as a combination of Irishmen of all classes and creeds is essential to the obtainment of legislative independence, the introduction of subjects of a religious nature into the debates of the Confederation is to be sedulously avoided; but this will not prevent any member from introducing the consideration of any civil grievances under which any class of religionists may suffer. “ VII. That inasmuch as the essential bond of union amongst us is the assertion of Ireland’s right to an independent legislature, no member of the Irish Confederation shall be bound to the adoption of any principle involved in any resolution or promulgated by any speaker in the society, or any journal advocating its policy, to which he has not given his special consent, save only the foregoing fundamental principles of the society. “ VIII. That no subscription shall be demanded from any person on being enrolled a member of the Irish Confederation ; but to defray the expenses incurred by the operations of the society, voluntary subscrip- tions of any amount will be received. “ IX. That all expenditure shall be made under the sanction of the council, before whom a weekly abstract of the accounts shall be laid; and that the treasurers shall publish the state of the accounts every six months, duly audited by auditors to be appointed by the council; and Richard O’Gorman, sen,, and James Haughton, Esqrs., are hereby ap- pointed joint-treasurers for the first year.” Then, my lords, we propose to enter as read “ The Report on Organization,” and “Instructions for the Formation and Govern- ment of Confederate Clubs.” Mr. Justice Moore . — That is in 1848 ? Sir C. O’Loghlen. — July, 1847, my lord. As that report is a long one, I will not trouble your lordships by reading the entire of it, hut embodied in the report are the rules of the confederate clubs. In the report the objects of the clubs are stated, and then come the rules and recommendations. The rules are — “ I. That every member of the Irish Confederation residing in , shall be entitled to be a member of this club, on undertaking to comply with its regulations, and none but members. “ II. That the following be the officers and committee for the local THE QUEEN WILLIAM SMITH O’BRIEN. 707 management of tlie club for the first six months: — vice-president, treasurer, , secretary, , committee, , with power to add to their numbers. “ III. That the rooms of the club be open to members from o’clock until o’clock each . “IV. That in the absence of the vice-president (or president) the members of the committee take the chair in rotation, to preserve order and method in the conduct of the proceedings. “ V. That no sectarian discussions be allowed in the club-rooms under any pretence whatever. “ VI. That no member be expelled from the club without a hearing, and the vote of a clear majority, at a regularly convened meeting. “ VII. That a quarterly report of the statistics of the club be forwarded to the secretary of the Confederation. “ VIII. That all sums collected by the club collectors for the use of the Confederation, be forwarded at least monthly to the treasurer of the Confederation.” Those are the whole of the rules of the clubs. Then come the recommendations. “ When the provisional committee is formed, a place of business pro- cured, the rules read, adopted, and posted up, and the secretary of the Confederation informed of the existence of the club “ It is recommended that the vice-president read the list of original members, and ascertain if each has procured one other member. “If considerable progress in enrolling members has been made, a pre- sident may be chosen, and permanent arrangements, as to collectors, days of meeting, &c., entered into. “ The report on organization is then recommended to be read in full meeting, that the members may know the objects for which the con- federate clubs are established, and the modes of effecting those objects.’^' It then goes on, my lords, to state the objects. “The first object is organization for the repeal of the union, spreading the principles and increasing the numbers of the Confederation. “The second object is conciliation, spreading the doctrines of toleration and brotherhood, overcoming prejudices, and healing up ancient animo- sities. “ The third object is education, to teach the members to know and maintain tlieir rights, and perform their duties as Irishmen. “This last object may be efiected by classes, lectures, and reading.” That is all of those recommendations which appear to me to be important, and the rest may be taken as read. Then there is at the end of them, which is material — “ The following gentlemen have been appointed inspectors of con- federate clubs for their respective provinces : — Munster — W. S. O’Brien, M.P., and T. F. Meagher. Ulster — John Martin and John Mitchek Leinster — C. Gavan Duffy and John Edward Pigott.” My lord, appended to this document is also a report of the 2 z 2 708 SPECIAL COMMISSION, CO. TIPPERARY. lecture which was read at a meeting of the Dr. Doyle Con- federate, Club, stating “The Use and Capacity of Confederate Clubs, by Charles Gavan Duffy.” It was proved by the witness that he heard it, but it is part and parcel of the same tracts cir- culated by the Confederation for the use of the clubs. The Lord Chief Justice . — What do you say to that, Mr. Attorney ? The Attorney- General The gentleman said, as near as I recollect, that he knew nothing at all about it. Sir C. O'Loglilen. — Your lordship recollects that it was the first secretary who said that he was present at the meeting of the Dr. Doyle Confederate Club when the lecture was read. He also stated that he had seen those reports. The Lord Chief Justice. — I apprehend that is a dissertation on the constitution of the confederate clubs. The Solicitor- General. — It does not follow that every one of his auditors agreed with the lecturer. Sir C. OLoghlen. — It was circulated by the Confederation. Mr. Justice Moore. — It is an exposition of the principles and rules. The Lord Chief Justice. — We think it ought to be received. Sir C. O' Loghlen. — Will your lordship allow me, on a point of chronology with respect to the date of the last meeting of the League, to ask Mr. Coulter one question more ? The Lord Chief Justice. — Certainly. Mr. Henry Coidter, recalled — examined hy Sir C. OLoghlen. Were you present at the last meeting of the Confederation'? — Yes, I think I was. Do you recollect when that was '? — I do not recollect the date. How long was it before the meeting of the League ? — About a fort- night or three weeks ; I do not recollect exactly ; I believe it was the 21st of June. You remember that the Canfederation was dissolved, and that a reso- lution was passed for its dissolution? — Yes. Before the formation of the League ? — Yes. Lord Chief Justice Doherty. — That fact was established on the part of the Crown. Sir C. OLoghlen . — Well now, my lord, we propose to read the speech of Mr. O’Brien at the meeting of the Confederation, in February, 1848, with respect to Mr. MitchePs policy. It wiR only be necessary to read three or four lines. The Lord Chief Justice. — What is the date ? Sir C. OLofilen. — February, 1848, my lord. The few lines which I am going to read commence with — “ What the Confederation have a right to deal with is simply this question, whether or not the sentiments contained in these letters com- THE QUEEN WILLIAM SMITH O’BRIEN. 709 iiiitted this Confederation in any manner that can render its efforts to obtain a repeal of the union less effective than they would otherwise have been ? Now, I am bound to tell you, that amongst men of all classes — amongst the most earnest friends of this association, as well as amongst its most active enemies — there is an impression which, I con- ceive, it is our business to remove — that the Confederation adopts the propositions set forth in the letters of Mr. Mitchel and Mr. Reilly (cries of ‘ no, no,’ and loud counter-cries of ^ yes, yes’). I trust that we shall not have a repetition of the conduct of the Belfast mob. It will be necessary to reason calmly questions of the greatest importance, not only to this Confederation, but to the country at large ; and, I do trust, that a body which, from its existence up to the present time, has contended for the right of free discussion, will be disposed to listen to whatever may be urged, however unpalatable to individuals, and no matter from what party those remarks may proceed (hear, hear). Now, I say authentically, that the welfare of this Confederation — perhaps I may say its existence — depends on the question, whether or not the Confede- ration adopts the sentiments contained in Mr. Mitchel’s and Mr. Reilly’s letters. I am authorized to state, that two of the ablest men in the south of Ireland, Mr. Shea Lalor and Mr. Shine Lalor, one of whom took the chair at our first meeting, and the other, a gentleman avIio is well known in the south of Ireland to be a man of the highest character and respectability — I am able to say, that their adhesion to the Confede- ration depends on the decision which you may give with reference to that question. I believe I may say that there are many others whose adhesion to this Confederation depends upon your decision ; and I have no hesitation whatever in stating, that my own continuance in connexion with this body depends upon it also.” Then it goes on to discuss the question of the poor law ; and I need not trouble your lordships with any further portion of that speech. My lords, these are the resolutions moved by Mr. O’Brien, which we think it necessary to read : — “ I. Resolved — That inasmuch as letters published by two members of this council have brought into question the principles of the Irish Con- federation, and have given rise to an imputation, that we are desirous to produce a general disorganization of society in this country, and to over- throw social order, we deem it right again to place before the public the following fundamental rule as that which constitutes the basis of action proposed to our fellow-countrymen by the Irish Confederation : — ‘‘ RULE. ‘‘ That a society be now formed under the title of ‘ The Irish Confede- ration,’ for the purpose of protecting our national interests, and obtaining the legislative independence of Ireland, by the force of opinion, by the combination of all classes of Irishmen, and the exercise of all the political, social, and moral influences within our reach. “ II. — That (under present circumstances) the only hope of the libera- tion of this country lies in a movement in which all classes and creeds of Irishmen shall be fairly represented, and by which the interests of none shall be endangered. “ III. — That inasmuch as English legislation threatens all Irishmen 710 SPECIAL COMMISSION, CO. TIPPERARY. witli a common ruin, we entertain a confident hope their common neces- sities will speedily unite Irishmen in an eflTort to get rid of it. “ IV. — That we earnestly deprecate the expression of any sentiments in the Confederation calculated to repel or alarm any section of our fellow- countrymen. V. — That we disclaim, as we have disclaimed, any intention of involv- ing our country in civil war, or of invading the just rights of any portion of its people. “VI. — That the Confederation has not recommended, nor does it recommend, resistance to the payment of rates and rents ; but, on the contrary, unequivocally condemns such recommendations. “ VII. — That, in protesting against the disarmment of the Irish people under the Coercion Bill lately enacted, and in maintaining that the right to hear arms and to use them for legitimate purposes is one of the pri- mary attributes of liberty, we have had no intention or desire to encou- .rage any portion of the population of this country in the perpetration of crimes such as those which have recently brought disgrace upon the Irish people, and which have tended in no trifling degree to retard the success of our efforts in the cause of national freedom. “ VIII. — That to hold out to the Irish people the hope, that in this present broken and divided condition, they can liberate their country by an appeal to arms, and consequently to divert them from constitutional action, would be, in our opinion, a fatal misdirection of the public mind. “ IX. — That this Confederation was established to attain an Irish par- liament by the combination of classes and by the force of an opinion exercised in constitutional operations, and that no means of a contrary character can be recommended or promoted through its organization while its fundamental rules remain unaltered. “ X. — That while we deem it right thus emphatically to disavow the principles propounded in the publications referred to in the resolutions, we at the same time equally distinctly repudiate all right to control the private opinions of any member of our body, provided they do not afiect the legal or moral responsibility of the Irish Confederation.” % Sir C. O' Loglilen . — Then it is stated at the adjourned meeting that Mr. O’Brien spoke again. Your lordships will see that that resolution, on which Mr. Mitchel moved an amendment, was car- ried by a large majority — 129. Mr. Justice Moore . — What is the date of that ? Sir C. O'Loglilen . — The date of the paper, my lord, is Feb- ruary 5th; the date of the resolution is February 3rd, The amendment moved by Mr. Mitchel, and seconded by Mr. Devin ReiUy, was — “ That this Confederation does not feel called upon to promote either a condemnation or approval of any doctrines promulgated by any of its members in letters, speeches, or otherwise, because the seventh funda- mental rule of the Confederation expressly provides, ‘ That inasmuch as the essential bond of union amongst us is the assertion of Ireland’s right to an independent legislature, no member of the Irish Confederation shall be bound to the adoption of any principles involved in any resolution, or promulgated by any speaker in the society, or any journal advocating its THE QUEEN v. WILLIAM SMITH O’BRIEN. 711 policy to wliicli he has not given his special consent, save only the fore- going fundamental principles of the society.”’ The original resolution was carried by a large majority, and the amendment was rejected. Lord Chief Justice Doherty. — Have you got any separate copies of those papers ? Sir C. O'Loghlen. — I wdll get them all copied if I can, my lord; we will give them to the Crown. We will get the resolutions copied to-night. Lord Chief Justice Doherty. — If you do it will be very satis- factory. Sir C. O'Loghlen. — ^The date is the 3rd of February. I believe, my lord, we have now come chronologically to the dissolution of the Irish Confederation, and to the rules of the Irish League. My lord, in point of chronological order — I do not know whether the Crown objects to its reception — there is a letter which has been handed to us by the Crown, found in Mr. O’Brien’s port- manteau, purporting to be a private letter of Mr. Smith O’Brien’s, sent to Mr. Halpin in July, 1848. The Attorney -General. — That certainly cannot be evidence. Sir C. O'Loghlen. — Except upon the principle of being one of the documents found in the portmanteau. It explains those other documents which have been read, which were found on Mr. Smith O’Brien. The Attorney-General. — These are unpublished letters. Sir C. ODoghlen. — It is the fact that this letter was pub- lished, but it is not in evidence, I admit. But in point of law, upon the ground referred to, upon which the other documents were admitted, namely, because they were considered in point of law to be the declarations of Mr. Smith O’Brien as being found in his possession, I submit that your lordships ought to re- ceive it. The Lord Chief Justice . — What does the letter refer to? Sir C. O’ Loghlen. — It is in reference to Mitchel. The Attorney-General. — This is, as I understand, a letter purporting to be written by Mr. O’Brien himself; and of course, my lord, if it had been forwarded it would have been evidence ; but it is a draft of something that was sent. Sir C. O’ Loghlen. — It is the printed copy of it. The Attorney- General. — It is perfectly plain to my mind, that if so, there should be some identification. We did not propose to read any unpublished communication, except those found in the trunk. Mr. Fitzgerald. — I have just one word to add, my lords : that the entire of the contents of the trunk, wholly independent of the assumption that any papers were contained in the trunk, would be evidence, I respectfully submit, to go to the jury, as 712 SPECIAL COMMISSION, CO. TIPPERARY. to the intent with which Mr. O’Brien was upon his journey at the time that trunk was dropped at Cashel, as alleged by the Attorney-General. The Lord Chief Justice. — I think if it explains any of the contents of the portmanteau, which have already been given in evidence, it ought to be received. Sir C. O'Loghlen . — It is a letter, my lord, threatening to resign in case Air. MitchePs amendment was carried. The Lord Chief Justice . — Then I think we ought to receive it. Sir C. O’Loghlen. — I find it is not in Mr. O’Brien’s hand- writing. The Prisoner. — It is a copy. Sir C. O' Loghlen . — I find I made a mistake, my lord ; it is not in Air. O’Brien’s handwriting ; it is a copy of a letter. Then, my lord, there is a proof of the original rules of the Confedera- tion, found in the portmanteau, as corrected by Mr. O’Brien. Certainly I think it material to put them in as read. Then we have also the fundamental rules of the ’82 Club. I propose to enter them as read, to show what the club uniform was ; that one of the fundamental rules of the club was, that there should be an uniform. Mr. Justice Moore. — That has been already proved. Sir C. O' Loghlen. — Yes, my lord ; that has been proved by Air. Barrett. Aly lord, we next read the rules of the Irish League. The date of the first meeting of the League was the 10th of July, 1848. That it is expedient that a new repeal organization be formed, and that the two existing bodies — viz., the Repeal Association and the Irish Confederation — he adjourned sine die. “ That the rules of the new organization shall he as follow; — I. — The name of the association shall be ‘ The Irish League,’ for the attainment of the legislative independence of Ireland. “ II. — The object of the association shall he to obtain the restoration of the legislative independence of Ireland by the union of all Irishmen, and the concentration of public opinion in favour of that measure.” Then it defines that the members of the association shall be unlimited ; and every person who has contributed a certain sum shall be a member ; and no man shall be bound by the opinion expressed by any member. “ IX. — The basis and essence of the Irish League shall be absolute independence of all English parties; and any member of the committee accepting or soliciting for himself or others, an office of emolument from any administration not pledged to effect a repeal of the union, shall thereupon be removed from the committee. “ X. No topics of a sectarian character shall be introduced; but this is not in any way to be understood to prevent the discussion of any matter which may, by the members of any religious denomination THE QUEEN v. WILLIAM SMITH O’BRIEN. 713 throughout the country, be considered a grievance against which public opinion should be directed.” That has been marked. The only other document we have (and before I read it I will call your lordship’s attention to what it is) is the rules and reso- lutions which we allege were adopted at the meeting of the delegates of clubs, on the 15th of July, which were put into the witness Dohbyn’s hand, and which he denied as having been passed at that meeting. The evidence we offer with respect to them, has been the evidence of Dr. Gray. Your lordships will recollect he got the original manuscript of those rules ; to that original manuscript the names of the different members of the clubs were signed ; and he was acquainted with some of the names and handwriting, and knew they were authentic; that the foreman brought them to him, and he directed them to be published in The Freeman's Journal. They were read by Mr. Whiteside in his statement. The Attorney- General . — That we object to, on this ground : he describes that numbers of persons were present at that meet- ing. I object to my friend giving secondary evidence of what some members of that association, not on the roll, choose to say did occur at that meeting. I ask for some of the persons to be produced, to show that that resolution was entered into. This is stated to have occurred on a particular evening. Dobbyn, my lords, has been examined, and he swears to what occurred at that meeting in his presence. I respectfully submit he is not to be contradicted by the unsworn evidence of persons who are not produced. The Solicitor- General . — They may have done that ; and they may have done a great deal more. Mr. Fitzgerald . — Y our lordships remember the informer swore that he did hear something of resolutions of that kind being passed in the day, although he denied that they were passed while he was there ; he also stated that he was not present at the commencement of the meeting. If there was proof that such rules were published in a newspaper of the date, I apprehend that would make them evidence. The Attorney- General. — No, no. The Lord Chief Justice . — There is no evidence of their being the original resolutions. Dr. Gray proves that the copy of the manuscript was brought to him by his foreman ; but there is no other way of connecting them with the meeting of the clubs. Mr. Fitzgerald . — We cannot bring further evidence of it. Sir C. O'Loghlen . — As the Attorney-General objects, we withdraw them. We enter as read the note by Mr. Kedington, read by Mr. Whiteside in his speech. Now, my lord, we propose to examine Major-General Sir William Napier. 714 SPECIAL COMMISSION, CO. TIPPERARY. Major-General Sir Wm. Napier, sworn — examined hy Sir 0. O’Loghlen. I believe you are an officer in her Majesty’s service ? — Yes. And the author of “ The History of the Peninsular War — Yes. Do you recollect the years 1831 and 1832 ? — Yes. Were you in England in those years'? — Yes. Do you recollect the agitation that was going on with respect to the Reform Bill ? — I do. Do you recollect a certain society called the Birmingham Political Union ? — I know it by name. Were you a member of that society? — No. Did you know, of your own knowledge, the London Political Union ? — I know it existed. You were not a member of it? — No, I refused to be a member of it. Did you know, of your own knowledge, that that body was divided into sections, or club members ? The Attorney-General . — You were not a member of it? — I was not a member of it. Sir C. O’ Loglilen . — Do you know, of your own knowledge, that it was divided into sections and local unions ? — No. Were you present at any of the meetings of the Birmingham Political Union, or of the London Political Union of 1831 or 1832 ? — No. Do you recollect, when the Reform Bill was thrown out, as matter of history, when the then ministers were beaten on a committee in the House of Lords on the Reform Bill ? — I do. Do you recollect having received a certain letter a short time after that ? The Attorney-General . — If you have it, produce it. Sir G. O’ Loglilen . — Do you recollect receiving any letter ? — I received many letters. Do you know Mr. Thomas Young? — I do. Do you know what Mr. Thomas Young was? — He was at that time the private secretary of Lord Melbourne in the Home Office. Do you know a Mr. Parkes ? — I have met Mr. Parkes once for about two minutes ; he was introduced to me by Mr. Young. Was Mr. Parkes a member of the Birmingham Political Union ; did he take a part in the agitation ? — Whether he was a member of the Political Union I cannot aver of my own knowledge ; I know it only by report. The Attorney -General. — The letter would be evidence of that. I should like to see it. Sir C. O Loglilen . — Have you any letter from Mr. Young about you at present ? — I have, two. You were served with a subpoena duces tecum to produce those letters ? — I have that subpoena in my pocket. Where were you when that was served ? — Not in England ; the com- munication was made to me to come in England. Do you produce those letters? — I can produce Mr. Young’s. Produce it, if you please. — I beg leave to say, that one of the letters which I produce, and which is, probably, the one you want, has only the initials to it j and the other letter is a private letter, I conceive ; but I brought it, in order to prove the handwriting where the name Is to it. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 715 Show me the one with the initials to it ; that is the one I wish ? — Here it is (Jianding the letter to the learned counsel). I see the initials “ T. Y.” Do you know who “ T. Y.” is 1 — Yes, I knew it was Thomas Young. Do you see the letters “ H. 0.” ? — I knew it was from the Home Office. Hare you lost the cover ? — I must have thrown it aside at the time I got it. Do you recollect whether it bore the Home Office mark? — Yes. Signed by the then Secretary of State ? — I cannot say. That was the practice ? — I cannot exactly say. Mr. Young was not a member of Parliament at that time ? — No. I received several letters from him. Lord Melbourne was then in the Home Office ? — Yes. Was Lord John Russell a member of the Cabinet at that time? — Yes. And Lord Brougham was Chancellor ? — Yes. Can you state when you received that letter? — Yes, I must have received it about the 26th or 27th of June, 1832 — probably the 26th. Had you taken any part in the Reform agitation at that time ? — Yes, a great part. At Bristol, I believe ? — At Bath and Devizes. You were an advocate of what was then called the Reform Bill ? — Yes. Now, did you make any reply to this communication which you received from Mr. Young? — I did. State what was the proposition made to you by Mr. Young? The Attorney- General. — Now, my lords, if there is to be any limit to evidence, 1 think, with great respect, that it would apply to this. There was no statement made as to what the nature of this evidence was to be. There was nothing stated about it. I think, my lords, that a correspondence between Mr. Young, a gentleman’s private secretary, and Sir William Napier, sixteen years ago The Lord Chief Justice . — It cannot be evidence. Mr. Fitzgerald . — The only ground on which I can submit it to he evidence is that which I have already stated — that these facts, as matters of history, if stated, may be proved. The fact was stated and opened by Mr. Whiteside. The Attorney -General . — I was in court, I believe, during the whole of ^Ir. Whiteside’s speech, and I did not hear it. Mr. Fitzgerald . — I do not wish to repeat it, as it is to be rejected. The Lord Chief Justice . — We cannot receive it. Sir C. O’Loghlen . — In the case of Horne Tooke, and in Hardy’s trial, the Duke of Richmond was called to give evidence of a certain letter which he had written, advising the very course which was subsequently pursued by Horne Tooke and Hardy. Therefore I submit this is evidence of a similar nature, to show acts done by public men on particular subjects; and it is evidence on the same ground on which that was admitted in those cases. 716 SPECIAL COMMISSION, CO. TIPPERARY. Lord Chief Justice Doherty. — Was not that advising the very course for v^hich the prisoner was on his trial ? The Solicitor- General. — The very thing for which the prisoner was indicted. Mr. Justice Moore. — To show that he advised a convention to which was attributed a different motive. Sir C. O’ Loghlen. — If the letter cannot he received, we can- not offer further evidence. There was a letter of Lord John Russell stated by Mr. Whiteside as a matter of history. The Attorney- General. — I admit it was stated by Mr. White- side as a matter of history. The Lord Chief Justice. — You may go down, Sir William. Mr. Fitzgerald. — Then we close on behalf of the prisoner, my lord. Sir C. O’Loghlen. — May I ask whether these are the docu- ments your lordships wish to be furnished with — the rules of the Confederation, the rules of the clubs, the rules of the League, and those extracts from the speeches of Mr. O’Brien, particularly the speech of 1848, which was read? Lord Chief Justice Doherty. — Particularly of February, 1848. The Lord Chief Justice. — What is the course that will be pursued now ? Mr. Fitzgerald. — My lord, as this is a case of high treason, the prisoner is now entitled, by his counsel, to speak to the evidence. The Lord Chief Justice. — Then you will go on to-morrow? Mr. Fitzgerald. — If your lordship pleases. The Lord Chief Justice. — Then we will hear you to-morrow at the sitting of the Court. Lord Chief Justice Doherty. — Would ten o’clock in the morning be convenient to you ? Mr. Fitzgerald. — Quite convenient, my lord. [The Court then adjourned till ten o’clock the. following morning.] Bag* Friday y October 6, 1848. Mr. Fitzgerald. My lords, and gentlemen of the jury, it is now my duty to address you last on behalf of the prisoner, of whose life it has pleased God to make you, in this case, the arbiters. Therefore, although I feel most sensiljly the deep responsibility of my own position, I shall not presume to trouble you with one word personal to myself. Your own far deeper responsibility must, I THE QUEEN t;. WILLIAM SMITH O’BRIEN. 717 am persuaded — I am sure it ought — too entirely to engross your minds, to permit you to waste one thought upon me. Awful, indeed, as is the responsibility of every individual con- cerned in this solemn proceeding — from my lords upon the bench down to myself, the meanest and the most incompetent actor in it — what is the responsibility of all the rest compared with yours ? Gentlemen, it is not merely that one word of yours may con- sign to an untimely and an unhonoured grave a man in the prime of manhood, and of birth and station, to rank with the foremost amongst your countrymen ; it is not merely that one word of yours may make a wife a widow, and children orphans ; it is not merely that on one word of yours may depend the liberties of your countrymen, and the preservation of that law which is their only safeguard — that law which hves, and moves, and has its being in the spirit of an intelhgent, impartial, and fearless jury, and not in the worthless parchment on which it is written — it is not merely this, though God knows there is in each and every one of these matters involved an amount of responsibility at which the stoutest-hearted amongst you must shudder ; but there is a responsibility, not less momentous, though far less obvious, arising from the nature of this case, and the circumstances under which you sit there to try it. This case, from its nature, demands a severe exercise of your judgment on a question of intent, perplexed by legal distinctions. To the benefit of the least doubt in your minds my client is entitled. That the existence of a cause of doubt should escape you by any default of attention is one, and no small part of your responsibility. Gentlemen, the crime with which my client stands charged is a purely artificial one — a mere creation of the law. Doubtless, it involves heinous offences of an obvious kind, and of my client’s guilt — of those more obvious offences — you must be satisfied before you can convict him of the crime with which he stands charged. But what makes the distinction between them is, as I have truly said, a mere creation, and in many cases a mere fiction, of the law. Those more obvious offences are, as you are aware, the subject of a distinct kind of prosecution, attended with very different results, and involve no perplexing question of the kind I have been mentioning. Why my client has not been prosecuted in this manner — why he has not been prosecuted for these, the more obvious offences, it is not for me to conjecture. Before the late statute, to which you heard allusion made, I could have understood it ; for had it happened v/hen a party was put on his trial, that he w^as proved guilty of the higher, he must have been acquitted of the lesser offence. The statute to which I have alluded, removes that difficulty ; and I do say, that to every man of common sense — to every man other than a lawyer and an Attorney-General — the plain obvious 718 SPECIAL COMMISSION, CO. TIPPERARY. intent of that statute would appear to be, to reduce the law of treason to its primitive simplicity, and to abolish every kind of treason, except the plain one directly offered at the person or the majesty of the Sovereign. Whether the explanation of adopting this mode of proceeding has been reserved for the Solicitor-General, or whether any explanation at all will be given, it is not for me to say; but on the reason, whatever it may have been, may depend the life, the property, the all of my client. But, gentlemen, what are the circumstances under which you sit to try this case? 1 am not here to extenuate the dan- gerous consequences to life and property of such acts, considered apart from treason, as my client stands charged with. Such dangerous consequences do naturally result, I admit, in aU cases in which the means of using force are put into men’s hands. The men by whom he is to be tried, are the men who would be most immediately affected by such consequences if they had arisen. To their fancies those anticipated conse- quences start up at once, and half convict him before he is put on his trial. There are a thousand matters connected with this case — matters of feeling precisely similarly circumstanced. Sup- pose for a moment — I think after what you have heard from my learned friend, it can be but a mere supposition — that that hideous call to bloodshed and massacre, which has been imputed to my client, had been actually uttered by him — and I saw the thrill of horror that ran through the Court when these words were first imputed to him — would that have affected your feel- ings ? And yet, in sober truth, supposing that charge to be true, as it is hellishly false, it could not fairly be an element of deter- mining the j)articular intent in question here. Such is the nature of the question you have to try, and the circumstances under which you are to try it. My learned friend the Attorney-General tells you, that the acts which he attributes to Mr. O’Brien, such as a levying of war, were not attended with the pomp or circumstance of war. Unquestionably, he has not proved them to have been so — and so far something that might work on your fancy is removed. But had there been no levying of war in this realm for months ante- cedent to any act proved by the Attorney-General ? Is it not the fact that your fields were covered with encampments — that your towns were filled with troops — that your slumber was broken by the rattling of artillery through your streets ? Do you, or do you not, in your own fancies and imaginations, connect the intent, for which these mighty preparations appeared to prepare, and which they seemed to be anticipating, with the intent which is imputed to my client? Would that be common justice? And yet is there one of you whose fancy or whose feelings is wholly uninfluenced by the anticipations involved in THE QUEEN WILLIAM SMITH O’BRIEN. 719 these mighty preparations ? That even is not enough. Before this, at all events, at the moment when the accused stood upon his trial, the voice of slander was hushed for a moment, and it was unheard of before this trial, that his conviction should be assumed and urged while he was actually upon it. I am not asking you to attend to what passes vfithout ; I am not going to detail to you what does so ; but I have a right to ask you, sitting in that box, how your minds stand affected ? Has the nature of the duty of a juror ever crossed your minds for one moment? Is there one of you whose mind this thought has crossed but for a moment, that you woidd not be doing your duty if you did not convict? Has the fear of man, or of man’s opinion, that it should be said, that you are one of the disagreeing, the doubting, the acquitting juries, ever crossed your minds? If it has, I know that if it openly addressed itself to you, it would be rejected with the scorn and indignation of honourable men; but who can tell how far an unguarded feehng may unconsciously influence the mind which it has but crossed for a moment ? Do I overrate your responsibility ? After all there does remain, I know, what no efforts, no exer- tions can suppress, that natural sympathy, which men feel with one whose all is so deeply perilled as my client’s. In ordinary circumstances it might have a tendency to mislead the judgment — here there can be no such danger. The weight of these mighty influences needs this merciful provision of our nature to counterbalance it; and common justice demands of you that sympathy with my chent which, in his name, I now respectfully require of you. Gentlemen, by the indictment before you my client stands charged with two kinds of treason — with levying war against the Queen, and with compassing her death. The acts by which it is aUeged he endeavoured to effect this compassing, consist of the crimes or charges in the first head of treason, with the addition too of a conspiracy to levy a war of that kind. He is charged with levying war, and in effect, under the charge of compassing the death, he is charged with levying war, and with conspiring to levy it. Upon the indictment, therefore, as it stands, it would appear to me that there are two questions for you — first, whether he had levied war against the Queen ; and secondly, whether he had conspired to levy such war. It is my duty to sub- mit to you, under the direction of the Court, that so far as the second charge is concerned, it is, upon the evidence now before you, wholly out of the question; that is, the charge of compassing the Queen’s death. It occurs to me, under the direction of the Court, that the levying of war must not be a levying of war, by construction only, against the Queen to constitute an overt act of the treason of conspiring her death. I need hardly say that if that be so, a conspiracy to levy such war, constructively, against 720 SPECIAL COMMISSION, CO. TIPPERARY. tlie Queen is even less so. The only levying of war against the Queen, of which a scintilla of evidence has been presented to you, is a levying of war by construction. If, therefore, I have been right in the positions, which, under the direction of the Court, I have submitted to you, the overt acts of compassing the death of the Queen are not sustained by any evidence whatsoever. Gentlemen, I am not intending to argue the point, but I wish to refer to authorities. I cite from vol. i. of Lord Hale’s Pleas of the Crown, i^age 152. ‘^A levying war against the King therefore is of two kinds, either expressly and directly, or by way of interpretation, construction, or exposition of this act.” That is, the act of Edward III., of which you have heard. “ The former is, when a war is levied against the person of the King, or against his general, or army by him appointed, or to do the King any bodily harm, or to imprison him, or to restrain him of his liberty, or to get him into their power, or to enforce him to put away his ministers, or to depose him. Many instances of this kind may be given, such as was, in Luth, the riding of the Earl of Essex into London, armed with swords and pistols; his soliciting of the citizens to go with him to remove from the Queen her ministers and counsellors ; his fortifying his house against the Queen’s officers, which were in truth a levying of war, though his indictment was upon the first clause of compassing the Queen’s deadi, which was more clearly included within these actions. Constructive or interpretative levying of war is not so much against the King’s person as against his government.” If any levying of war has been proved before you, if any evidence has been given of a levying of war, it is a levying of war against the Government, as distinct from the person of the Queen. “If men assemble together more guerrmo to kill one of His Majesty’s Privy Council, this hath been ruled to be levying war against the King, p. 16 Car. I, cro. 583, Bensted’s case before cited; and accordingly was the resolution in the House of Lords, 17 K. 2, Talbot’s case above men- tioned. So in the case mentioned by Lord Coke in the time of H. VIII., Co. P., p. 1 0, levying war against the statute of labourers.” What is the levying of war and the object of it here charged ? If it be any thing it is to repeal the act of union, neither more nor less : I know of no evidence which the Attorney-General has presented before you of any other. I apprehend there can he no doubt that the only levying of war of which any evidence has been laid before you is, the levying of war thus construc- tively against the Queen only. Well, then, in the same book, page 123, it is laid down : — “ But if it be a levying of war against the King merely by interpreta- tion and construction of laws, as that of Burton and others, to pull down THE QUEEN v. WILLIAM SMITH O’BRIEN. 721 all enclosures, and that of the apprentices of London to pull down all bawdy-houses, de quih^is infra; this seems not to be an evidence of an overtact to prove compassing the King’s death when it is so disclosed upon the proof, or if it be so particularly laid in the indictment.” It is not particularly laid in the indictment here. We have no reason to complain of too great particularity in the indict- ment ; but on the proof, I do submit to you, under the direc- tion of the Court, that there is no evidence of any thing but a constructive and interpretative levying of 'war against the Queen, in the sense of Lord Hale, and as laid down by Foster. The passage has been cited by Mr. Whiteside. If I am right on this, the single question for you will be, whether war has been levied by the prisoner against the Queen ? It is not necessary for me to confuse you by mentioning the other overt acts, because it is precisely on the same evidence, as I understand it, that both the charge of levying war and the conspiracy is offered to be sustained. And now let me call your attention to what the Crown have attempted to prove in this case, and let me compare it with the statement of the Attorney- General. Upon his first point we are both agreed, the institution of a body called the Irish Con- federation in the month of January last. Gentlemen, the rules of that Confederation, of which my learned friend the Attorney-General stated so much, we have proved be- fore you. I believe they were read to you yesterday ; I shall, therefore, only call your attention to one of them. “That a society be now formed under the title of ^The Irish Con- federation,’ for the purpose of protecting our national interests, and obtain- ing the legislative independence of Ireland, by the force of opinion, by the combination of all classes of Irishmen, and by the exercise of all the political, social, and moral influences within our reach.” That is the object of this Confederation. Upon what ground, with respect to this particular association, does Mr. Attorney- General ask you to believe that it ever had any other? Where is the evidence? One speech delivered in this body by the prisoner at the bar has been put in; a single speech by one mem- ber. What is the Attorney-General’s case as stated in respect to this? He states that it continued its proceedings until July, 1848 — we have shown you that he was misinstructed as to this — but its members, at all events, in February or March, 1848, entered into a definite arrangement and plan, the object of which was, by means of force and violence, to effect the separation of the countries, and to establish Ireland into a separate kingdom. In February or March, 1848, the allegation of the Attorney- General is, that this society or association, whose rules have been proved before you, and which, stating its object, and the means by which that object was to be effected, 1 have just read to you, was converted into this nest of traitors. Where is the evidence 3 A 722 SPECIAL COMMISSION, CO. TIPPERARY. of conspiracies in this body ? Where is there one thing which the Attorney- General has shown to you of what was done in that body, except the single speech of Mr. O’Brien in the month of March, 1 848 ? He told you it would appear that about the period of the French Revolution, that is, February or March, 1848, a meeting was held for the purpose, and with the express intention, of voting addresses of congratulation to the members of the Provisional Government in France ; and it would appear that Mr. O’Brien attended, and took an active and prominent part in these proceedings. As proof of this he refers you to this speech of March, 1848. That was a meeting, unquestionably, for the pur- pose of congratulating the people on the French Revolution. Was the feeling peculiar to the members of this association? Were they the only men in these countries who beheld that Revolution at its outset, whatever they may think of it as it has proceeded, with feelings of joy and congratulation? I know not what your sentiments are, they may be mine, they may he those of the Attorney-General, they may be those of the prisoner at the bar in this respect ; but at all events to congratulate a peo- ple on attaining to what men, whether erroneously or'not, believe to he their liberty, is no evidence that they have entered into a treasonable conspiracy against their own. Gentlemen, I shall not trouble you by going through that speech which was read to you at length by Mr. Whiteside ; I perceive how carefully you have attended to these proceedings. That speech distinctly states, in express words, what the object of the repealers was. You are to take the substance of the speech, not detached passages. It states what that object was ; it states the means by which Mr. O’Brien conceived that that object was to be effected. What is the object? It is, in distinct words, her present Majesty as our Queen, an Irish House of Lords, an Irish House of Commons, an Irish army, an Irish navy, and an Irish national guard. What would be the effect of a repeal of the union ? W ould it not be the restoration of the constitution of 1782, being that very thing described in it ? But that is not all. He goes on at great length to show the means by which this was to be effected; and you will find that the whole speech consists in showing, that, in order to effect that purpose, there must be an agreement of all repealers as to its necessity, there must be the assent of the national will, and the exhibition of that assent will make resistance useless. Is that, or is it not, the principle of our constitution ? Is not all government based on opinion ? Be they what they will, upon that they must depend; and if they be free governments, as I trust ours yet is, the will of the nation when manifested must be obeyed. Gentlemen, I differ personally, as widely as my learned friend the Attorney- General, from the prisoner at the bar, as to the mode in which that public opinion is to be ascertained THE QUEEN z;. WILLIAM SMITH O’BRIEN. 723 and manifested. I care not for that; hut is it any new doctrine that public opinion is to be manifested by the array of the power which is to carry it into effect ? It is to be exhibited; that is the modern doctrine. I am not here to argue whether it is right or wrong ; but the existence of the national will is to be manifested by the persons who entertain and have that will. Read that speech through, and ask yourselves does it do more than state, that men must be so combined as to exhibit that power which represents the national will? Well, then comes the new doctrine, that this power is to be exhibited in men arrayed, in men mar- shalled, in men put into something of military array ; because, if it be once admitted that an exhibition is to be made of physical force, I know not how it can be done, if something of military order, if something of military arrangement, (and which from necessity must be called by those names, because they are the proper names in our language for expressing the thing,) be not adopted. How can it be otherwise ? If these exhibitions of public opinion, if these exhibitions of the national will, by showing the persons of the men who entertain it, their multitudes and their numbers, be once sanctioned, the only security for peace, the only security for order is, that something of military discipline be introduced among them. When, therefore, my learned friend the Attor- ney-General seizes hold of military phrases and terms to im- press you -with the notion that all this marshalling of men, to exhibit the national will, is the arraying an army and a threat of force, why, my answer is this — these are the only words in our language to express that species of order which is absolutely necessary where large bodies of men are arrayed. Then, is it not one of the most natural things in the world, that when this language is used it suggests the thoughts with which it has been usually associated ; and is every casual expression of feeling which these words may have suggested, to be seized on to convict a prisoner ? What is the substance of that speech ? That is what you have to consider. Its object is declared. It follows out the terms of this resolution ; it is to obtain by the union of all Irishmen a repeal of the union, by the fraternization, between themselves, of all bodies of repealers, and by the exhibition of the national will in the form of organized bodies of men. These matters the Attorney-General tells you occurred in March, 1848, and he then proceeds to explain why measures were not taken by the Government for putting a stop to them. The explanation with reference to this particular speech and this particular case is singularly curious ; because he tells you, that in point of fact a prosecution was instituted against Mr. O’Brien. He did not introduce that for the purpose of telling you that the prosecution failed ; for of that he told you nothing. He did not tell you that the very speech produced, and relied on, was the subject of that prosecution. But I wiU mention what he did teU 3 A 2 724 SPECIAL COMMISSION, CO. TIPPERARY. you ; he told you that the law of misdemeanour did not authorize the imprisonment of a person before trial, and that Mr. O’Brien took advantage of his liberty to go over with an address to France ; and the next document he gave in evidence was a speech delivered by Mr. O’Brien on his return, stating that he had that day received a bill of indictment. Now observe, the only evi- dence whatever of a deputation to France, that there ever was such a thing in rerum natura, is founded on this single speech of Mr. O’Brien in the month of April, 1848 ; there is no shadow or particle of evidence besides. All you know from the evidence of there having been such a thing as a deputation to France, is from the speech of Mr. O’Brien, who has openly disclosed this act, as he has every thing ; who told it in the presence of that respectable gentleman examined before you, to whom as the Government reporter, and known as such,' he had given every accommodation in his power. Now, how does Mr. Attorney- General put this treasonable deputation to France before you — that is all you know of it ? The Attorney-General knows more. One of the matters which will perhaps assist you in the investigation which you will have to enter into, will be this, whether this was really a deputation merely for the purpose of congratulating the French people upon the alteration that had taken place of their own affairs ; or whether the real object of Mr. O’Brien and his friends was not to make such arrangements as would enable them, in the event of an outbreak in this country, to obtain assistance and sympathy from France.” Where is the evidence on which you are to enter into this minute and careful examination ? Where are you to learn any thing of this deputation except from the speech of Mr. O’Brien, who distinctly tells you that he went with no such purpose ? Is this the way in which a prosecution ought to be got up ? Ought you to be told of matters such as these, wholly unsustained by even one scintilla of evidence, and then asked gravely to consider whether these do not show the clear intent of my client, and con- vict him capitally ? After stating the return of Mr. O’Brien he proceeds — ‘‘Another of the measures or objects had recourse to by the conspira- tors was, the formation and establishment of a national guard, to be com- posed of the members of the several clubs; and they were to be officered, armed, and sectioned, so as at any given moment to be prepared to rise in outbreak.” Now, gentlemen, except the statement of the informer, to which I shall come by-and-by, what evidence is there of all this ? ’ Do not misunderstand me, the clubs I have proved to you Tvere in existence so long ago as the month of August, 1817. I have proved to you that they were a body in existence, and as an instrument to be worked for the Confederation, so long ago as the month of August, 1847. How were they to be worked ? As THE QUEEN WILLIAM SMITH O’BRIEN. 725 I have told you, in the mode in which the late revolutions have been conducted, in which Catholic Emancipation was obtained, in which Reform was obtained, by which the Corn Laws were repealed. All these have been by the exhibition of the national will through the persons of those who held it. If it is to be exhibited by presenting their persons, by bringing them substan- tially into view, it cannot be done otherwise than through organ- ization. And can there be such an organization without something in the nature of military arrangements, and which would neces- sarily be called by that name? I do not dispute that there was an organization of the clubs ; but where is the evidence of the intent ? Now, gentlemen, I come to what really does appear to me a serious part of this statement, and I pray your attention to it. The Attorney-General says — “It will appear in evidence before you, that a Mr. John Mitcliel was tried in May, and convicted for having published and written violent and inflammatory articles; so violent and inflammatory that the jury felt convinced that his object and intention was to depose the Queen, or per- haps to deprive her of a portion of her dominions, or at least coerce her to alter her measures by force and intimidation. John Mitchel was a member of the Confederation.” The Attorney-General had no right to tell you the result of that trial. He did not tell you that the speech produced of Mr. O’Brien’s of March, 1848, was the very subject of his prosecution ; nor did he tell you the result of that prosecution ; but he had no objection to tell you the result of this, and “ that John Mitchel was a member of the Confederation.” And you were to take that into consideration against my client. I have proved to you that so early as the month of February, 1848, a meeting of this Irish Confederation was held ; that resolutions condemnatory of the opinions of John Mitchel were moved, debated with all force by Mr. Mitchel himself, and that the result was, that Mr. O’Brien’s motion of condemnation, entire condemnation of them, was carried by a majority. Gentlemen, I shall not trouble you with reading that speech at length. He states however in it, after discussing the opinions at full length — “ I have no hesitation whatever in stating that my own continuance in connexion wdth this body depends upon it also.” That is, depends on the disapproval by the association, the Confederation which he was addressing, of the opinions of John Mitchel. The whole of the four resolutions passed, I believe, have been read to you. I shall call your attention only to the fourth and fifth. “IV. — That we earnestly deprecate the expression of any sentiments 726 SPECIAL COMMISSION, CO. TIPPERARY. in the Confederation calculated to repel or alarm any section of our fellow-countrymen. “ V. — That we disclaim, as we have disclaimed, any intention of involving our country in civil war, or of invading the just rights of any portion of its people/’ Gentlemen, tliis John Mitchel, so convicted, the Attorney- General tells you was a member of the Confederation which, in the very month in which this discussion took place, had formed this treasonable conspiracy, but in the same month had passed these resolutions. That is not all. Now I do pray your attention to this. “ It will also appear, I think, in evidence before you, out of the mouth of one of Mr. O’Brien’s co-conspirators, that immediately before the trial of Mr. Mitchel, when it was supposed possible or probable that Mr. Mitchel might be exposed to transportation; that consultations were held, and discussions took place for the purpose of ascertaining whether it would be possible at that time to effect a rising; that is, whether they should risk the fate of their intended insurrection upon an attempt to rescue Mr. Mitchel, in the event of his conviction. It will also appear that there was a very considerable difference of opinion at that time between the clubs of Dublin, which had been formed and organized to a very considerable number, and some of their leaders, upon that occasion. Some of the leaders thought that under any circumstances Mr. Mitchel should be rescued, even though that rescue was only to be effected by an enormous loss of life; and that that rescue was to be made the commence- ment of the rebellion, or, according to some of their own expressions, that such would have been the proper time to erect the barricades. Others of the Confederation, however, conceived that the month of May, which was the time when that conviction took place, was premature; tliat the harvest was not then ripe ; that there was not food enough in the country, and that, therefore, the attempt to rescue Mr. Mitchel, and the rebellion to be founded upon that attempt, would be completely unsuccessful, and should therefore be deferred until after the harvest. Now, gentlemen, if I am right in my statement of the evidence, I think it will clearly appear at that time that it was determined that this rebellion should be deferred until the harvest was reaped, and the period when it was so reaped was to be the time at which the effort was to be made. Then the question was, what was to be done in the meantime ? The plan was this, clubs were to be organized all through the country in all the large towns, and, if possible, in the rural districts. These clubs were to be armed and officered, and were to be ready at any notice, how- ever short, to take the field. A simultaneous rising was to take place, but it was postponed until harvest; and, in the meantime, all efforts were to be used for the purpose of preparing materials for a successful rebellion when the appointed time should arrive.” This, gentlemen, is stated in opening a charge of high treason against my client. More than that, it is alleged that it will be proved upon the evidence of a conspirator. It is alleged the question of intent is to be determined by the inferences which you are to draw from the facts proved. I need not tell you how the inferences may be affected, even by what you hear stated, THE QUEEN v. WILLIAM SMITH O’BRIEN. 727 when you compare what is here stated with what is proved. Where is the shadow of evidence that any such consultations ever took place at all? Not by the informer, Dobbyn; he speaks of no such thing. His evidence you will find stated in a subsequent part of the Attorney-General’s address ; it has no reference to this period. Where is this evidence ? Where is the conspirator who could prove it ? We have one of them ; we have no opportuni- ties of knowing whence he came, what he was ; but any one of the facts which he has proved has been deposed to by no other witness. But they had another — they have another — they have one w"ho could have proved, I presume, this statement of the Attorney-General, this high-coloured statement, tending to in- volve my client with John Mitchel — John Mitchel, whose opinions he had condemned, and the condemnation of whose opinions he had procured by the association of which he was a member. Where is that conspirator ? If we could have done nothing else through him, we would, at least, have had two of these informers before you, whose accounts we could have compared. Where is he ? Is it fair to state the fact — is it fair to allege that they have such a conspirator, to keep him back from you, and to deprive us, who know nothing of the man produced, of the privilege of comparing their evidence ? The Attorney -General. — I am perfectly sure my learned friend, Mr. Fitzgerald, does not mean to misrepresent any thing that I stated. I state distinctly that in no part of my address did I refer directly or indirectly to the evidence of a second person to be produced. I am utterly incapable of making any statement that I did not mean to give evidence of. I never, from the very beginning to the end of my statement, referred to the evidence of a second person to be produced. I did refer to a piece of testimony which I offered in evidence, but which was rejected by the Court; and I ask my learned friend has he read that piece of evidence, and whether it would not have supported my as- sertion ? Mr. Fitzgerald. — As to the terms of my learned friend, the Attorney-General’s speech I make no objection. I am far from stating that in terms he said there were two conspirators to be produced. I have compared this report, which seems almost verbatim, very carefully with my own notes, and I have compared it with the notes of my learned friend, and I do aver that the Attorney- General stated that it would appear from the evidence of one of Mr. O’Brien’s co- conspirators — I care not whether it was Dobbyn or another — that it would appear by the evidence of a conspirator that at these meetings these resolutions were come to with regard to the rescue of John Mitchel. The Attorney- General. — It is quite a mistake. Mr. Fitzgerald. — Is the question whether this was to be done by two conspirators or by one ? If Dobbyn was the witness by 728 SPECIAL COMMISSION, CO. TIPPERARY. whom the Attorney-General intended to prove that, I arraign the evidence even still more strongly. If he knew that the witness whom he produced could prove the facts that he himself had stated, does that mend the matter ? The Attorney-General then states — A circumstance, however, occurred in the interim, which was this early in the month of J uly, Mr. Dufiy and Mr. Martin, two members of the Confederation — I am not quite certain whether Mr. Martin was actually a member, but most certainly Mr. Duffy, the proprietor of The Nation newspaper, was — were arrested upon a charge similar to that for which Mr. Mitchel had been transported.” Gentlemen, the Attorney-General then states — “ It will appear to you, at that time that a resolution was come to by the prisoner of effecting his treasonable purpose by a rising after harvest. Accordingly, you will find Mr. O’Brien went to Cork, that other mem- bers of the Confederation were at the same time pursuing a similar course. Mr. Doheny went to Carrick. Mr. Dillon, a member of the bar, was in another district; and Mr. O’Gorman was in Meath ; and the evidence will fully satisfy you that these expeditions through the country were undertaken solely and expressly for the purpose of ren- dering the arrangements amongst the clubs so complete as to be able, whenever the torch of rebellion was lighted, to rise in a single moment.” Where is the evidence of all this? By one speech he has proved that Mr. O’Brien was in Cork, and reviewed, as the Attorney-General calls it, the clubs there. Where is the evi- dence that simultaneously with, this Mr. Doheny was in Carrick, Mr. Dillon was in Meath, and Air. Aleagher was somewhere else, all for these purposes ? Air. O’Hara is put on the table to prove from his memory, refreshed by a letter put into his hand, that somewhere about this month Air. Dillon was in Meath. You are to draw the inference that he went there on a preconcerted plan to drill, arrange, and organize the clubs. A letter of Air. Aleagher ’s is found without a date in the trunk of Mr. O’Brien ; you are called on to infer that it was written about this time; and because Mr. Meagher states that he made a flaming speech in Rathkeale, you are to determine that he, O’Brien, Doheny, and all the rest, were in a conspiracy about this date and time to organize the clubs throughout the country for the purpose of breaking out into rebellion in August. That is the evidence on which this serious charge is made, and which, according to my notion, is the only evidence by which it is attempted to be sustained. “ The object was, to distract the Government and those in command of her Majesty’s troops, by having simultaneous risings in as many places as practicable.” AVhere does my learned friend, the Attorney-General, find this THE QUEEN t;. WILLIAM SMITH O’BRIEN. 72!) stated ? Not even in the orations of his witness, Dohbyn. No- where else is it to be found. Now I come to another. The Attorney-General then states — “ You may therefore well understand, that though those having the responsibility of the administration of this country upon them, may have been aware of the resolution that was come to upon the 14th of July, although they had not at that time sufficient evidence to institute a pro- secution for treason against the parties who were concerned in it ” I must pray your lordships’ attention to this particularly. — “ I mentioned to you that there was a meeting of the council of the Confederation upon the 14th of July; that meeting was attended by delegates, or representatives of the different clubs, who were to state the preparedness of their organization at the next meeting, which was on the following night, or one of the nights immediately after ; and there the 23eriod of the rising, and the circumstances of it, were fully dis- cussed.” Is there any evidence before you of this meeting of the 14th of July ? There can be no mistake ; evidence is given of the meeting of the 15th. Dobbyn, and Dobbyn alone, proves it. He proves these consultations between the parties, if you believe him, of which the Attorney-General speaks. Where is the evi- dence of the meeting of the 14th of July ? We could not know whether the Attorney-General had one conspirator or two. We could know nothing about it. When Dobbyn was put on the table and proved this meeting of the 15th, in the manner in which you heard him, we knew not but that some other was to come and prove the transaction of the 14th. What is it? The Attorney- General states to you that it had alarmed the Government. Where is the evidence of it ? Why are you not told of what was done there ? Why are you not told of all that passed ? Why are those acts to be stated, and stated as creating such tremen- dous apprehensions, and why are they not proved ? Observe, that the more the informer proved, the more was our chance of convicting him if he swore falsely. Why is the fact stated ? If he could prove it why is it not proved ? If he could not prove it, why is not the person produced on whose evidence the state- ment was made ? And now, gentlemen, I shall trouble you but very shortly after the able speech of Mr. Whiteside on the evidence of this person Dobbyn. Up to this period the case rests on the three speeches of Mr. O’Brien himself. And now, when a confederation or association of persons, of whom a large body of members have been proved to be clergymen, is charged with forming a treason- able conspiracy in the months of February or March, 1848, let me ask you, whether, independently of the evidence of the informer, it is satisfactory to throw down three speeches, and to prove no other meetings of them ? Speeches made when ? 730 SPECIAL COMMISSION, CO. TIPPERARY, One of them made at a most exciting period, that of the French Revolution ; another made at another exciting period when the treason-felony act was passing ; and the third made on the 19th of July when Dublin was proclaimed. Besides the evidence of the informer of this treasonable conspiracy, by acts antecedent to the transaction in July, in your own county, the only evidence which the Attorney-General gives you are those three speeches. He asks you to take those speeches — speeches delivered at these exciting periods of time — as evidence that this association, in March, 1848, had formed the treasonable design of separating the countries by force and violence. Is that the fair mode of proving conspiracy ? If these are material as showing the in- tent of acts with which my client is charged, as done in your county — if these be material to make out that intent, I say with confidence you never will convict him on this evidence. Now, gentlemen, the last speech of these cited, is that of the 19th of July, 1848. Through this speech, as through the ante- cedent speeches of Mr. O’Brien, if one thing is put more pro- minently forward than another, it is his determination to have nothing whatever to do with secret proceedings. All is to be open, and above board, or he will have nothing to do with it. Y"ou have heard the evidence of the respectable witnesses whom we have examined; they have deposed to that fact which I might almost call a fact of history. Mr. O’Brien has been before the public for a long time. Let men think of him as they will let them suppose his projects absurd, visionary ; nay, let them suppose that he designed open rebellion against the Queen, I am persuaded there is not one who knows a particle about him who would believe that he is capable of publicly pledging himself to open proceedings, while at the same time another and a secret purpose was being carried out. But, if you believe the informer, Dobbyn, you must think otherwise. You must believe that while that speech of the 19th of July, 1848, was made for the purpose of showing that repealers of all classes, those who are called moral force and those who are called physical force, might con- sistently unite in the purposes of the League, Mr. O’Brien was, to use the phrase of the Attorney-General’s witness, Dobbyn, underplotting” a rebellion in the month of August. I ask you as men of honour, T ask you as gentlemen, whether any thing has been proved by one other witness in the case which could induce you to believe this possible ? 1 say the testimony which his friends have borne to his character refutes it ; I say his acts refute it ; and I say all he has done, and all that is known of him, renders it impossible. Now the evidence of this informer, Dobbyn, the three speeches of Mr. Smith O’Brien, and a letter to which I shall call your atten- tion presently, possibly — I know not, but I presume it will be alleged by the Solicitor-General it is so — constitute the whole THE QUEEN r. WILLIAM SMITH O’BRIEN. 731 evidence against Mr. O’Brien, antecedent to that fatal week in July, 1848. Is Dobbyn confirmed in one single instance? He says be was a member of a club called the Bed-band Club ; he states that the name of that club was written on the blinds of a house. Perhaps so. Is that a fact that gives credibility to its existence? If it did so it would he established by other evidence than that produced before you. Who tells you of that fact ? Per- sons informed of its existence through Government who had that information from Dobbyn. What is the evidence of the police- men ? They teU you they saw it first when they were stationed to watch that place by the Government. These two men saw it then for the first time. Who told the Government ? Was it not Dobbyn ? Is that called confirmation of his evidence ? What you want to be confirmed is the existence of that club. What he tells you is, that its name is on a blind in a place, I dare say, of which Mr. O’Brien never heard. But these policemen tell you another fact, that from the time they were placed there, up to the time, I think, at which the name was taken away, they were continually watching this house. Have they proved that a single meeting was ever held there ? Have they proved that fact ? If they could do so, why were they not asked ? Not one syllable about it. We cross-examined Dobbyn as to the existence of the club ; we apprized them that we disputed it ; they called the pohcemen placed over it by the Government, on Dohbyn’s information of its existence, to watch it ; they do not prove that a single meeting was ever held there. Do they even swear they ever saw him there ? Now, gentlemen, I say not only this witness is not confirmed, but I say he is not confirmed in part of his testimony where it was plainly in the power of the Crown to have confirmed him. He was in communication with the Government ; he went to these places for the very purpose of underplotting. The Govern- ment knew then that these three meetings, which constitute the main part of the case against my client, as I understand it, up to the July in which he came into this county — they knew that each and every one of these meetings, the 15th, the 19th, and the 21st, w^ere to be held. Have they proved that they ever were held? Not one syllable of evidence have you now that any one of these three meetings ever was held except the evidence of this man Dobbyn. We attempted, but we failed — our evidence was rejected — in showing that there was a meeting on the 18th of a very different kind. Where then is the evidence other than that of Dobbyn, that there was any meeting upon the 15th, upon the 19th, or upon the 21st, or that there even was a meeting ? I say nothing now of what passed at them, but they knew of them; they had the means of confirming the evidence of this man, not merely as to the fact of the meetings, which could be proved by indifferent persons, but if they did not venture to call the per- 732 SPECIAL COMMISSION, CO. TIPPERARY. sons who, as conspirators, were present at that meeting, think you they had no other informer there ? But as to the fact of the meetings, if those meetings took place, they could have had no difficulty whatever. But, gentlemen, is that all? Now, I know the objection that may be stated. It may be said, at all events, as to what passed at those meetings, you cannot expect that we should give you evidence of that. One informer is enough for us ; we have called him ; the other persons who were present were implicated in the treasonable plot ; you cannot expect us to call them to criminate themselves. I ask you now to fix upon one material fact in those meetings. Some of the most treasonable language, some of the most treasonable hints used at those meetings, according to the evidence of Dobbyn, was what fell from Troughton, an English- man. These clubs w^ere watched by their detectives. Dobbyn knew Troughton. Did he tell them what Troughton said ? Did he tell them of Troughton, of wdiom we know as little as the man Dobbyn ? Did they tell him who he was ? Could any thing have been easier than to prove that such a person was in rerum natura ; that such a person was an Englishman ; that such a person was over here ; that such a person was at that meeting ? It is not merely that the evidence is unconfirmed ; it is that you can see in each and every part of it, in each and every of the most material portions of it, where, if there were a syllable of truth in it, it might be confirmed. Will you act on that testimony ? If you do not act — and I call upon you not to do so — upon this evidence, wholly unconfirmed, wffiat is there from which you can impute an intent to Mr. O’Brien of the kind stated by the Attorney-General, other than those three solitary speeches given to you as samples of the proceedings of the association, of which he shows you no other proceedings what- ever, and which were delivered each at periods of extraordinary excitement ? That is the whole evidence of treasonable intent up to the 22nd of July. Gentlemen, now I come to that part of the case which I am persuaded you will consider the most important ; but I do wish you could separate it wffiolly from the antecedent period. If I am right in what I have submitted to you, the whole evidence, up to the antecedent period, upon which an honest jury could act, is the evidence of those three speeches. I will not repeat them to you ; but having heard them read, is it not plain that the whole substance and plan is, the effecting of a repeal of the union by a manifestation of the national wdll ? It is also clearly stated, that it must be such a manifestation as would make resistance impossible. Organization of clubs, I admit, was used for this purpose. It was used for the purpose of exhibiting the number, multitude, power, and strength of those who held those opinions, and who represented the national will. There are, THE QUEEN v. WILLIAM SMITH O’BRIEN. 733 doubtless, allusions to an ultimate appeal. Upon what, let me ask you, is this principle of agitation founded ? Is it not that the national wWl cannot be resisted because power is with it ? For ■what purpose is it, in any of the great agitations which have taken place in these countries for the last twenty years, that efforts are made to exhibit the national will by this array of large bodies? Is it not for the purpose of showing that resistance would be ineffectual ? If it be not, it is absurd. I say not that this is right, or that, according to the original principles of the constitution, this could be maintained ; but I say, at this time, that it is impossible to make treason of it. If their meaning and intent Tvas to exhibit the national will by such an array of force, by such a union of all the mind and will of Ireland as would make resistance impossible, then I do say, that that is the mode in which every revolution in this country, for the last twenty years, has been effected — by wUich Emancipation, the Reform Bill, and the Repeal of the Corn Laws were carried — is Mr. O’Brien to be the only person singled out to be convicted of treason ? I omitted to mention to you that the last speech was delivered at a meeting of the League. Of that body we also proved the rules. They have all been read for you, and the second is — “ The object of the association shall be, to obtain the restoration of the legislative independence of Ireland by the union of all Irishmen, and the concentration of public opinion in favour of that measure.” A meeting of the body, of which this was the professed object, and which Mr. O’Brien pledged himself to the world was the object, was held two days before he left Dublin. His speech professes his intention of going away to carry out the design and object for which he pledged himself. Do you believe he had any other ? Now, gentlemen, the question you will have to try is, whether the several acts, the events, and transactions which occurred subsequently to Mr. O’Brien’s leaving Dublin upon the 21st of .July, 1848, were done with the criminal intent imputed to them by the Attorney-General; or done, as we allege and aver they were, for the personal protection of himself and the friends who were with him ? That is really, as it appears to me, the impor- tant question in this case. As for conspiracy, as for antecedent design founded on the acts and speeches in this association, or founded on the evidence of Dobbyn, which I call on you to reject altogether, because it is wholly inconsistent with the open acts proved by Mr. O’Brien, and because he is unconfirmed and uncorroborated — the whole evidence consists in three speeches, one of them already prosecuted, and that prosecution unsuccessful. Now with respect to this the Attorney-General has stated that he cares not whether it appears that Mr. O’Brien had 734 SPECIAL COMMISSION, CO. TIPPEEARY. manifested the intent, by his acts and declarations, of avoiding arrest. I admit the Attorney-General is so far right, because the fact of proving that he had this intent, provided that the Attorney-General proves that there was an intention in those acts of effecting the treasonable purpose which he alleges, would not avail him. But, upon the other hand, let me separate for one moment the antecedent evidence of which I trust I have dis- posed ; let me separate the declarations proved by these drilled policemen as lessons got off by heart ; let me separate these for one moment in your minds froni the acts proved. This hard journeying from place to place ; the putting up of barricades when troops and policemen appeared, and removing them the moment they passed; the unfortunate and accidental conflict at Ballingarry — taking those facts alone, without the declarations, without the letter to the Mining Company, is there one of you who could have a doubt, when forming your judgment on the facts themselves, that the thing intended was not a general rebellion, but a preservation of these parties from personal arrest ? Could any of you have a doubt of it ? Is there any thing consistent with a general rising or insurrection ? Look at the acts themselves — bodies levied, melting away almost instantly — not one fact proved, though dogged by policemen through all his travels, of a design against any particular place or person — no marching here to attack, no marching there to defend — no object stated ; but, on the contrary, a mere following of the person of Mr. O’Brien — at one time altering the numbers who attend — when lodged in an inn two men guarding, and all the rest dismissed. They go with the person of Mr. O’Brien; they are watched by policemen; their acts and declarations are stated; where is there one of them who shows a design of attacking this place, or of taking that, of doing injury to any person, of seizing on property, or any thing even of the most ordinary kind, which would accompany an insurrec- tion for a general purpose ? They merely follow the person of Mr. O’Brien; he alters their numbers according to the place in which they are found; but is there any thing like a plan of war- fare ? None whatever. They erect barricades at Killenaule; when the military appear, and say they have no warrant for his arrest, they let them pass, and the barricades disappear. They erect barricades at fcllenaule the witnesses tell you for the declared purpose of preventing his arrest when a body of police are seen approaching. At Ballingarry it is precisely the same. This is not for defence against an attacking force ; if it were so these would have been permanent, and the erection of them would have been the first act on going into these towns. And let me ask as to the drilling which has been deposed to, who would think for one moment, if his object were a general insur- rection, of drilling people to what is called house exercise in obscure villages ? If it were in large towns I could understand THE QUEEN r. WILLIAM SMITH O’BRIEN. 735 this : but if the purpose was the permanent defence of petty villages, is that consistent with a general insurrection ? Every one of these facts is quite consistent with our case. That their business should be to attend the person of Mr. O’Brien ; that this barricade should be erected for protecting him when military or police appeared in sight, and then removed so as not to interrupt public business — all these are quite consistent with our case, and utterly inconsistent with that of the Attorney-General. But, gentlemen, is that all ? The Attorney-General has the speeches, as reported by his policemen, put up on the table to repeat them after six lessons, rote by rote, word by word. These ignorant, illiterate men are called on to give you what they remember, after this extraordinary sort of teaching, of what was said. It is most important that you should collect their meaning. I do put it to you as men of common sense, whether this getting off by rote is not even worse than if you had the unassisted memory of these men after so long an interval ? I put it to you whether it is not the fact, that if you get off a particular part of a speech by rote, if you learn it off by heart, the very e&rt of attention which fixes upon you those particular expressions, calls your mind away from every thing else that passed ? It fixes those, but the very effort of rote-learning excludes all the others. That is the sort of evidence on which it is suggested to convict this man, dogged through every town by these policemen. Now, gentlemen, although it is not my duty, it is the Attor- ney-General’s, and the Court will tell you so, to demonstrate, independent of any thing that we may show, what the intent of Mr. O’Brien was in doing these acts. If I am right, the evidence, independent of these declarations, shows an intent inconsistent with that stated by the Attorney-General. If it did lie on me to show even from these declarations and speeches themselves that such was his intent, I have strangely deceived myself, if, with the exception of one single document to which I shall call your attention presently, it is not clearly shown by these speeches themselves. Is there one of them in which the most prominent notion does not appear to be, the warrant out for his arrest, and the necessity for his protection ? There are expressions, possibly, in each and every one of them — I believe not in all of them — having reference to the repeal of the union, and to the revolution — call it what you will — which Mr. O’Brien all through his life has expected and looked for — the restoration of the independence of 1782. Is that inconsistent with the intent which we attribute to Mr. O’Brien ? Is it necessary for me to show that a man has forsaken the principles which he has held from his childhood when he addresses a multitude, in order to prove that that man has a particular intent? If that be so, how could I prove that Mr. O Brien had that particular intent ? He relied for his protection on the attachment and devotion of these 736 SPECIAL COMMISSION, CO. TIPPERARY. men. Upon what was it founded ? Was it founded upon this, that they believed him to be the ardent, uncompromising, and incorruptible advocate of the repeal of the union ? Was he to have gone to them and said, “ I have forsworn all these opinions, and now the word repeal shall never pass from my lips again ; my only intent is to ask your help, in order to be delivered from arrest ; I call on you to do it, because I have forsaken those opinions, because I never intend henceforth to utter one word of repeal or revolution?” Well, there are allusions in these speeches to repeal, and to his hopes of effecting it. Could any thing be more natural than that there should be? He relied on these men; these followers were the persons who were to protect his person. What was his recommendation to them ? He knew them not personally. You find in every one of these speeches, indications of revolution, of repeal; that is, revolution in the sense of the restoration of the Irish constitution of 1782. But if the prominent notion of these speeches was, “ will you pro- tect me from arrest ; will you allow me to he carried to prison ; will you permit me and my friends who have laboured for you to be arrested ? ” — can you say that these declarations evidence another intent, because they contain frequent, ardent allusions to the repeal of the union, and the carrying of it ? Why should Mr. O’Brien, if his particular intent was to protect himself from arrest, decline to use that language which for all his life antece- dently he had been using ? But where is there any one of these, if you consider the circumstances under which they are reported, which shows you that the acts resorted to were to have refer- ence to this object ? The acts themselves, separated from the declarations, I have shown you are inconsistent with such an object. By whom are they reported ? I do not wish to speak disrespectfully of these unfortunate men, who do but as they are bid. They do not voluntarily intrude themselves into this office of reporter for which they are entirely unsuited. Unfortunate I call them, because it is unfortunate that men dressed in half military array should be put up here to make that unhappy exhibition of school-boys saying lessons off by heart. But observe now the state of their minds at this time. That there should be allusions to repeal; that Mr. O’Brien should call on the followers by whom he sought to obtain protection from arrest ; that he should mention, too, the subjects on which he had been insisting all his life, was the most natural thing in the world; but what was the state of the men who heard him, who come here under all these ^ disadvantageous circumstances to report his sayings ? Why, from the mighty preparations antecedently made, what did they antici- pate but this very general insurrection and rising in the country ? These men listened to him with minds pre-occupied. They hear these allusions — for such allusions we take it for granted there were — and their minds applied them at once to this. Why ? THE QUEEN i;. WILLIAM SMITH O’BRIEN. 737 Because preparations had been for months going on before you, on the anticipation that such attempts were to be made. They hear these appeals, and they refer them to the assemblages of troops they see before them. Can you act on such testimony ? That there should be such allusions is most natural ; it would be almost impossible to conceive there should not be, because these ex- hortations were the only ground that Mr. O’Brien had on which to appeal to his foUowers for protection. It was his consistent advocacy of these ideas that made them his friends. It would be absurd if he had not alluded to them. But these men hear them with a different reference; and without intending it, (I don’t wish to impute perjury to any man,) they apply all in their minds to that. That is all very natural. But look to the speeches which they do report, and you will find the beginning and end of them is, “ will you permit me and my friends to be arrested ?” Gentlemen, it would be absurd for me to take up your time by going through, in detail, that which has been read almost wmrd for word to you by my learned friend Mr. Whiteside. I ask you as men of honour and conscience — if there be any weight in the observations I have respectfully submitted to you, if I have succeeded in conveying what I meant to you — whether there is any one of these declarations, acts, or transactions to which those observations do not apply ? Could you act then on testimony so founded ? Now, gentlemen, there is one occasion, at all events, on which there appeared an opportunity for an actual collision between the troops of the Queen and Mr. O’Brien. He had armed men about him. The body with whom he might have come into collision were cavalry, determined, as their duty was, to force the barri- cades erected in the town of Killenaule, if resisted. I have every respect for the valour and courage of her Majesty’s troops ; perhaps it is certain they would have succeeded in their attempt ; but can you doubt they were at great disadvantage ? Here is a body of cavalry to force barricades erected in the village ; armed men about them and in the houses. If Mr. O’Brien’s intent was the one attributed to him by the Attorney-General, could he have had a fairer opportunity ? At Ballingarry it is alleged that he commenced the attack. Here he was in the favourable posi- tion that the police of Ballingarry were in when they received the attack. Here he was covered, and the troops exposed — a species of troops most unfit for the service necessary. A single demand is made, “Do you mean to arrest Mr. O’Brien?” The moment the answer that they do not is given, the troop passes by unharmed and applauded, no man touching them. Could there be an instance to work conviction as to Mr. O’Brien’s intent more strong than this ? Gentlemen, what does the transaction at Mullinahone amount to ? Now suppose that those men are telling the precise and 3 B 738 SPECIAL COMMISSION, CO. TIPPERARY. exact truth — I am saying nothing of the illegality of Mr. O’Brien’s measures in seeking to arm people to protect his person from arrest — but I think the Court will tell you distinctly, if you believe that to have been his object, his acts do not constitute high treason. If he did require that his followers should be armed, he could not defend himself by armed men if men had not arms. Now, it would be a most illegal thing, unquestion- ably, to demand arms for that purpose from the police, or to take them by force ; but if Mr. O’Brien was a rebellious or traitorous person, would he have hesitated to take them by force ? If his intent was what w^e represent it, it W'as natural and consistent with his character, that when they were declined, that when he could not procure them by mere intimidation, he should hesitate to shed blood for his own personal purpose. That is what he does. Is it at all consistent with the purpose alleged by the Attorney-General ? Is it at all consistent with the purpose wdiich the Attorney-General attributes to him ? Then this levying of Avar, considered as an act, is consistent Avith the intent we attribute to it, and it is inconsistent with the intent attributed to it by the Attorney- General. “INow, gentlemen, I ask you whether, in its commencement at least, to that unfortunate affair at Ballingarry, the same account does not apply as to Killenaule *? There, too, you have it dis- tinctly proved that it was upon the appearance of a large body of police the barricades w^ere erected. Having heard the story of Killenaule, what is the inference which any rational man wmuld draw as to the intent with which they were erected ? But you are left in no doubt, because you are told by the Avit- nesses in the mine, to whom Mr. O’Brien applied for the cart, the giving up of Avhich he did not enforce when it was refused, that the object for which he sought them was his protection from arrest. The barricades, then, were originally put up on the Commons for the same purpose as they were put up in Kille- naule. What was the difference between the two cases ? The police did not advance. If they had advanced, they could not have given the answer which Captain Longmore did, for they went out for the very purpose of arresting Mr. O’Brien. But they do nothing approaching to it ; they take to something between a retreat and a flight ; and I ask you what was the effect likely to be produced, wholly independent of Mr. O’Brien’s intent, on the people by that movement? Now I do not at all say that Mr. O’Brien may not be answerable for the conse- quences of bringing armed men together, whatever be the intent for which they are gathered together. A man must be answer- able for the consequences of his act, but he is not answerable here, except that intent was treasonable. Now, was not this a most natural and ordinary thing to occur, in this country espe- cially? Here is an armed body of peasantry assembled as I THE QUEEN -y. WILLIAM SMITH O’BRIEN. 739 assert — assembled as I say the facts at Killenaule and the other facts in the case show — for the purpose of protecting Mr. O’Brien from arrest. They see the police, as it were, flying before them, and I ask you, could Mr. O’Brien have restrained them following? I assume that he could not, and I tell you why — because, though the people rush at once (and that is the evidence) when they see the police waver and break line, the first act of Mr. O’Brien is a peaceful demand of their arms. Who quieted them in the meantime ? Is there, then, up to this part of the transaction, any thing inconsistent with the single intention of these parties being originaBy the protection of Mr. O’Brien? Gentlemen, the fatal events that subsequently occurred, I know not Mr. O’Brien, if they are not, and must not ever be, the occasion of bitter anguish to him. Be that as it may, how do you find him act ? Precisely as he had done at Mullinahone. He demanded the arms ; and unless you believe those witnesses who swear to the words used by him, it is perfectly plain, from the facts which occurred, and from the position in which he was, that he could be no party to the fire that then took place. He was himself between both parties. Unless he used those words in a moment of passion, in a moment of heat, it was utterly impossible that any man in his cool senses could have given that order. I have told you that it is wholly immaterial to the charge here, whether he gave that order or not. Consistently with the intent which we represent to have been Mr. O’Brien’s, ^ if this unfortunate occurrence had happened, it might have hap- pened as consistently with that intent as with the intent attri- buted by the Crown. It is said that he ordered his followers to take the lives of the police. If such order he gave, it would be equally consistent with that intent. Why, then, is it that we have laboured it so much ? Because we believe, and our client has instructed us, that his life itself is not so dear to him as that his character should be cleared. If he ordered them to give that fire, it no more proves that his intents were treasonable than any other act proved in this case. Now, gentlemen, what is the evidence on which you are called on to believe that ? The window at which he is stated to have uttered these words, was that at which he had been standing but the moment before, if the evidence is to be believed. He had not yet left it, according to the evidence of one of the witnesses, when the word was given. At that window there were four policemen. Of their names there can be now no doubt. Of these men, one, and one only, heard these words. What is his evidence ? Observe its inconsistencies with the evidence of the other men. A witness, not in the window, but of whom I admit there is some evidence that he was in the room, states that the answer which these men gave was, that they would 3 B 2 740 SPECIAL COMMISSION, CO. TIPPERARY. surrender their arms with their lives only. One of the witnesses in that window, and who is produced, standing next to this very man, states to you that the answer given to Mr. O’Brien’s address was one wholly different. It was, that they would apply to their officer, and do as he did. Now, he is standing beside Moran ; he states that when the question was asked, so far from Moran and Cunningham addressing them- selves to Mr. O’Brien at all, that Moran turned back from the window, and addressed himself to the policemen. Now observe, these men, Moran and Cunningham, were in one story — “we will not give the arms except with our hves,” and they swear that that was addressed to Mr. O’Brien. Here is another man standing actually beside them, who says that Mr. O’Brien did not utter the words, because if he uttered them at all upon the evidence, it was as descending from the window, and that man tells you that when the words were uttered Mr. O’Brien was at a distance from him. Thirst, then, gentlemen, you have these men coming upon the table to give an account of themselves, for their own personal exaltation, which is false. False, I say, because directly the contrary is proved by an indifferent person. And I trust you never will forget the closing scene of the cross- examination of this man. “ Why did you not shoot him ?” says my learned friend. “ Because I never heard him use .” Gentlemen, are these the only contradictions ? Can you put any faith in this testimony ? It appears — what you never heard until the last witness was called — that a second man was actually standing on the stool of the window all the time Mr. O’Brien was there ; and yet these men undertake to swear positively, under the circumstances, that Mr. O’Brien used those expres- sions; when throughout this case, if the treasonable purposes alleged against him by the Attorney-General be true, there never was a man so unfit for them, from his horror of shedding blood and invading property. The Attorney-General introduces him to you with a speech deprecating the shedding of blood and civil war ; and Carroll, his last witness, leaves him to you saying he would not have a change of government purchased with blood. Gentlemen, after the length which this case has been spoken to by my learned friend, Mr. Whiteside, the extraordinary exer- tion which he has used, and the surpassing power with which he has spoken, I shall not attempt to go more minutely through the case. I have reserved for the last, the defence of the letter to the Mining Company ; and I protest it does strike me that if that letter to the Mining Company were out of the case, there would not be a shred ot evidence to go to you to sustain the charge of the Attorney- General — I mean a shred of evidence on which reasonable men could act. Now, when you come to the consideration of that letter, consider it as standing entirely by itself in startling distinction to every other thing proved indhe case THE QUEEN t;. WILLIAM SMITH O’BRIEN. 741 against Mr. O’Brien. The protection of property seems to have been his main object. This very Mining Company is supplied with powder and cars, both of which he needed, their officer declines to give them to him, and he makes no attempt to take them. This man, who is represented as quartering himself and his companions upon the country, did not go into a single house without paying for their lodging and what they got, and did not even permit his fol- lowers to be supplied with bread without paying for it. Supposing I could offer no explanation whatever of this letter, standing by itself and being inconsistent with every other fact in the case, I do say, I should be entitled to call upon you to disregard it, when the life, the fortune, the property, the all of my client is at peril before you. If my case be a true one — to this extent it is true, that a reward was offered for the head of Mr. O’Brien, and that his only reliance was upon these men who had gathered for the pro- tection of his person — if my case be a true one, and that his inten- tion was that which I represent, would it be wonderful that there should be one, that there should be two, that there should be many acts difficult to be explained? With respect to a man under such circumstnces, seeking where to lay his head, knowing the antecedent preparations which had already assumed him to be a traitor, would it be a wonderful thing that one solitary letter of his could be produced which his counsel, defending his life, was unable to exj^lain ? Gentlemen, I have endeavoured to deal with the other evidence. I have endeavoured to show that you can place no reliance on it as evidence of the intent attributed by the Attorney-General. If I be right in this, and cannot ex- plain this letter, can you convict my client upon it ? Now let me call your attention to what the letter is. Observe now that this letter w^as WTitten on the morning of the day upon which the barri- cade was erected upon the Commons ; abarricade erected expressly, upon the evidence of the Attorney- General’s own witnesses, for the purpose of protecting Mr. O’Brien from arrest ; a barricade for the erection of which the property of this Mining Company had been refused — observe that — and not forcibly taken. Upon that morning that letter was written. Now, about the former part of the letter, if one sentence was excluded it would be power- ful evidence in my favour. What is it ? “Mr. William Smith O’Brien presents his compliments to the directors of the Mining Company, and feeling it incumbent on him to do all in his power to prevent the inhabitants of the collieries from suffering incon- venience in consequence of the noble and courageous protection afforded by them to him, takes the liberty to offer the following suggestion.” This is the letter of a man intending to carry out a revolution by armed force and violence, and to set himself at the head of it. First, he states his object, and he addresses the parties in these respectful terms. Now, whatever may be the force of other expres- 742 SPECIAL COxMMISSION, CO. TIPPERARY. sions in that letter, the question for you is, the animus of the man. Is that then consistent with the treasonable intent imputed to him by the Attorney- General ? On the other hand, I assert, it is powerfully consistent with the intent which I attribute to it. He recommends, that for the present the whole of the proceeds arising weekly from the sale of coal and culm be applied in payment of men by contract employed in raising coal and culm. “ He recommends that a brisk demand be encouraged by lowering the price of coal and culm to the public.” Now, what necessarily was Mr. O’Brien’s mode of proceeding, if the intent attributed to him be the right one ? If he sought protection in the illegal way in which I admit he sought it, from the armed hands of these colliers, and they gave it him, is it wonderful that he should be desirous to protect them, as between them and their employers, from the consequences of this their devoted attachment to his person ? Was it incon- sistent with it that he should endeavour to impress on this Mining Company the doing of acts which would tend to their relief, and which would prevent them from being injured? That that was the purpose for which this letter was written cannot be questioned. Well, what is the part relied on ? It is the means which Mr. O’Brien proposed in the following passages for effecting his object ; for remember that is the object of the letter. Now, remember that. What he intended and designed was this — and I should say the letter relied on against him shows it — that those workmen should not suffer for their generous devotion to his person. Now, that is his object and intention. It is for that purpose that he directs the Mining Company to do these acts — recommends them I should rather say — but he enforces that recommendation by a threat. What vras the prominent object in his mind ? Was it to effect a reduction for general purposes? Was it to show his authority over these men? Was it, as the Attorney-General put it to you, assuming the voice of a leader, a commander, or an em- peror ? No such thing. His object, his intent, that which was prominent in his mind, which his letter says was so, which the facts show was so, was the protection of these men. It is no assumption of authority ; it is an humble recommendation ; that is the way he puts it. But it contains a threat ; and upon that threat it is sought to convict him of high treason. Now, what is it ? “ In case he should find that the Mining Company endeavours to dis- tress the people by withholding wages ” Now observe this. What is the object still? The object the particular men devoted to him, their sufferings in consequence of their devotion, no general plan, no advantage of the public for the good of the nation, but the protection of the protectors of his person. THE QUEEN v. WILLIAM SMITH O’BRIEN. 743 by withholding wages and by other means, Mr. O’Brien will instruct the colliers to occupy and work the mines on their own account ; and in case the Irish revolution should succeed, the property of the Mining Com- pany will be confiscated as national property.” There is the whole on which you are to convict him of high treason. Now bear with me for one moment. What was there anticipated for months before this took place, and on what grounds was it anticipated ? I confess I did expect from this trial to learn something of those grounds and reasons. It was expected that there would be a real revolution ; that armed forces were mustering, and this country was crowded with troops. Were those reasons the three speeches of Mr. O’Brien’s which were produced in evidence on this trial ? But what was the effect of those preparations upon each and every one of us ? Was it not this — that when we knew nothing of this mining letter, when we had not heard of it, long before it was written, the moment that we heard of the proclamation and that Mr. O’Brien was in arms, wm believed that the revolution against which these mighty pre- parations had been made had broken out. Do you believe it now ? Were these three speeches of Mr. O’Brien, and the infor- mation of Dobbyn, the only ground for these preparations ? But it was necessary that Mr. O’Brien should threaten these men in order to insure the protection of his followers. He does so, by presenting himself to them in the shape in which their fears had already represented him to them ; their fears wrought on by the expectation common to us all. The very letter itself shows that his immediate object and true design was the protec- tion of these unfortunate men who had risked their lives in protecting him. If this explanation is not unsatisfactory to your mind, it appears to me that it is one of the most natural modes of accounting for it ; but suppose it were not, is it not equally inconsistent with the rest of the case of the Attorney-General as to these movements? Now, remember, it is the Attorney- General’s duty to make out the intent ; it is no part of my duty to explain that letter. It is the Attorney- General’s duty to make it consistent with the rest of his case ; it is not my duty to make it consistent with mine. Unless he satisfies you, unless he con- vinces your consciences, that that letter is consistent with the rest of the case which he has established, you are bound, as you will answer it at the last day, to acquit my client. The onus is not thrown on me of explaining it. I have gone through the case, and I have endeavoured to explain it as best I could. It appears to me I have given the natural explanation ; but it is no part of my duty, it is the Attorney-General’s duty, to make it consistent with the rest of the evidence in this case. If he leaves uj^on your mind a shadow of doubt, you are bound to acquit the prisoner. 744 SPECIAL COMMISSION, CO. TIPPERARY. Gentlemen, I find I have omitted in its place another letter, written we know not when, found in Mr. O’Brien’s portmanteau. It is the letter of Mr. Charles Gavan Duffy, of whom the Attorney- General has stated, and I presume the fact is so, that he is now, and has been for some time, in prison. I shall not detain you many moments on it. I am unable myself to see its bearing upon the case. If the mere caUing the object which Mr. O’Brien had in view, a revolution, is to convict him of high treason, I admit this letter will be pregnant evidence against him. But I admit that Mr. O’Brien did intend a revolution; I admit that he intended to restore to this country, if he could, the constitution of 1782, instead of that under which we now live. That was to he effected by the repeal of a single act of Parlia- ment. That Tvas the revolution he suggested ; I know of no other. I have proved that that is the object to which he had pledged himself when he became a member of the Confederation, when he became a member of the League, the body instituted in the same month in which he left Dublin. I admit that a revolution of that kind he did wish to effect. I admit he was considered the leader of the party seeking that revolution. When a revolution is to be effected in free countries, it always is by the expression and manifestation of the national will. There always must be a hazard of the die. If the leaders of the move- ment, the persons who represent the national will which is to he ultimately successful, linger behind the progress of their follow- ers, the natural and ordinary result is, that the more violent party of their body obtain the lead, and bloodshed is likely to ensue. You cannot take up the commonest book of politics without seeing that trite proposition stated. It is that trite proposition stated with reference to this very thing which is the staple of the whole treasonable charge. These parties were seeking to effect a repeal of the union — call it a revolution if you will — and they sought to effect this through the exhibition of the national will, by assembling bodies of men, showing the power, the number, the multitude of the men with minds who had that will. That is the way all revolutions are carried. Mr. O’Brien was the leader of that movement. Mr. Duffy considered him as the leader. He thought, too, that he was behind his followers, and he apprehended the ordinary common danger insisted on, and evidenced by every history, spoken of in every political work, that if he kept behind, the friends of anarchy and confusion would get the lead, and a bloody chaos would be the consequence. Is my client to be convicted because Mr. Duffy, in a letter to him, expresses the commonest, tritest sentiment in every histo- rical work ? That is the whole letter; read it over and you will find it urging that. There is an allusion to Lafayette who, like O’Brien, was the leader of a multitude on the eve of revolution. Who is ignorant of the cause of Lafayette’s failure ? It 'was THE QUEEN t;. WILLIAM SMITH O’BRIEN. 745 because he could not move (very like Mr. O’Brien unquestionably in that respect) beyond what he had fixed as the measure of his own opinions. What was the consequence ? According to the representations of historians, he ceased by degrees to be the leader; others who were not like him, who were not the friends of order, peace, nor property, consequently obtained the lead in the revolution, which terminated in a very chaos. Head the letter and see whether its very object is not a caution to Mr. O’Brien. What is the onward step to which he excites him ? Is it any thing treasonable ? No, it is continued exertion in the organization of these clubs, which were by their union, and ex- hibition as men in substance — as men to be seen — as men to be touched to demonstrate what the national will, what the multi- tude, what the union of repealers was in Ireland. Having stated that, let me read the letter, and see if I have truly represented it. “ I am glad to learn that you are about to commence a series of meet- ings in Munster. There is no half-way house for you. You will be the head of the movement, loyally obeyed; and the revolution will be con- ducted with order and clemency, or the mere anarchists will prevail with the people, and our revolution will become a bloody chaos.” Then he reminds him of the instance of Lafayette. Is there one of you who does not know that if any man takes upon him- self — and some man must take upon himself — the office in the affairs of the country, of leading or heading the people, repre- senting their will, their wishes, and their wants, if acted on by the sentiments of his followers, he cannot hold back? For no such man is there a half-way house. The effect of not advancing towards the step which he has in view, which may be perfectly legal, and for a perfectly righteous object, is that those who hang about the skirts of his followers, and those there are in all great parties, who follow for plunder and pillage, not only among re- pealers, but every political body, would get the lead, and hence the revolution end in a bloody chaos. For what purpose does Mr. Duffy warn the prisoner that he is to prevent this bloody termination ? He says, you are behind this movement, proceed, or the revolution will end in a bloody chaos. Gentlemen, I have now brought to a conclusion the observa- tions which it occurred to me to make on the evidence in this case. I shall not attempt, 1 could not do it, to appeal to your feelings as was done by my learned friend yesterday. The topics which he presented to you I think it impossible for you to forget. They were not appeals to your mercy merely ; justice is what my client seeks ; to be convicted, if he be convicted, according to law. These matters cannot be before you without impressing on your minds the awful necessity of weighing this mass of evidence before you convict my client. He stands there not to deny what 746 SPECIAL COMMISSION, CO. TIPPERARY. he has done, but to deny the intent attributed to him. Of that intent, and that intent only, you must be convinced before you convict him. I told you at the commencement that this question of the intent was perplexed with legal decisions. Doubtless you will have the assistance of the Court ; doubtless all that can be done by the learned judges to inform you upon this subject will be done ; but the question is emphatically yours, and, if 1 am not mistaken, the Court itself will tell you, that the very difficulty of determining this case arises from judicial decisions which have complicated the simplicity of the original statute. After all, ambiguities and doubts which have been introduced by words, can but be explained by words, and upon your consciences must remain the peril of the decision. The Lord Chief Justice . — William Smith O’Brien, I have now to inform you, that if you mean to address the jury you are at liberty to do so, and that you cannot be heard after the Solicitor- General replies. This is now your time. If you wish to consider whether you will address them or not we shall retire for a short time to enable you to consult your friends on the subject. The Prisoner . — I can answer that question at once. I am quite content to leave the case as it stands to the decision of the jury ; and I am anxious to add my thanks to them for the patient attention which they have given to the evidence and arguments in the case. REPLY. The Solicitor- General : — May it please your lordships, gentlemen of the jury : — This case, wffiich has undergone so serious and deliberate an in- vestigation, is now nearly drawing to its close, and the duty has devolved upon me of making some observations upon the whole of the case, as it has appeared in evidence. I think we all must feel indebted for the very serious and marked attention which you have paid to the case. It shows that you feel the importance of it, and the extent of those responsibilities which have devolved upon you, in the trial of such a case. It is a question which we must all feel, which you must sensibly feel, is one in which not only the gentleman at the bar, but also the dearest inte- rests of society are deeply concerned. The offence with which the prisoner is charged is the highest known to the law. It involves so many important and serious interests of society, and the consequences are so penal, that it does in proportion to the enormity of the crime require from you the most painful consideration ; and it requires that you should be satisfied, upon unquestionable and unambiguous proof, of the guilt of the party charged. At the same time, if they should be satisfied, and feel convinced, without a reasonable, honest, and rational doubt THE QUEEN t;. WILLIAM SMITH O’BRIEN. 747 of the guilt of the party charged with this offence, it is the hounden duty of a jury, at all risks, and regardless of all conse- quences, by the duty they owe to society of which they are mem- bers, not to compromise with their oaths, but to give a fearless and a just verdict. My learned friend who last addressed you called upon you for an impartial and just verdict. Surely those who are concerned for the Crown can ask you for nothing less, or if there be a doubt, that you should give a merciful one. Gentlemen, in this case you must feel that I have a very different duty to perform from that of my able and learned friends who are concerned for the gentleman who now stands at the bar. Every latitude that the law can by possibility allow, they are fairly entitled to indulge in, to accomplish, if he be entitled to it, the acquittal of their client. The duty I have to perform is a dry, and ought to be an unimpassioned one. I fear that, as I am bound to discharge that duty to the best of my ability, I shall be but discharging a duty which must be irksome to you, because I shall be obliged to occupy a considerable por- tion of your time in considering the facts of this case as applicable to the charge now made against Mr. O’Brien. I therefore beg of you to bear with me whilst I go through the consideration of the facts of this case. It will be the last appeal or address which will be made to you by counsel on this occasion. When I have concluded, the duty will devolve upon the Court of laying before you the law, and of submitting to you the facts of the case impartially and justly as standing between the Crown and the prisoner. Whatever feelings there may have been, either of the advocates who have appealed to you on behalf of the prisoner, or which may be on the minds of those prosecuting on behalf of the Crown, the law will be submitted for your consider- ation, and you wdll then say upon' the whole of the case, under the direction of this high tribunal, what ought to be your honest verdict upon the solemn obligation of your oaths. The gentleman at the bar is charged, as I have stated, with the offence of high treason. It appears to me — because I intend to confine the charge, in order to simplify it as much as it pos- sibly can be for your consideration, to its plain, intelligible, unso- phisticated meaning — that Mr. O’Brien committed the offence of high treason by actually levying war against the Queen — and which I submit to you has been sustained by the evidence of the conduct of that gentleman, as it was expressed by my learned friend, in that fatal week, the last week of July. You have heard a great deal, and particularly from my friend who last addressed you, lipon the subject of the exhibition of the public will, and the manner in which the national will may legally be exhibited and enforced. I shall not venture upon that dangerous sea of definition as connected with such proceedings. The risk and hazard of men assembled together, as propounded 748 SPECIAL COMMISSION, CO. TIPPERARY. by my learned friend, Mr. Fitzgerald, in a numerous body, and as he would say their right to be organized and armed for the purpose of exhibiting their will, may be constitutional, and may be legal, but one step beyond that would involve every man among them in the guilt of high treason. I am not here to discuss that ; and with reference to the gentleman at the bar, and the evidence that has been given of his former opinions and course of life, the question here is not whether a party may avow principles and political opinions, and institute clubs or associations for the purpose of expressing them. Mr. O’Brien, it has appeared, and I am ready to admit it, was and is an ardent repealer. That he has been a gentleman expressing liberal opinions not only upon that, but upon a thou- sand other questions connected with the state of the country, appears from the evidence given on his behalf. I do not come here to quarrel with that ; but I do say, admitting those to have been his opinions and principles, that if carried away either by pride or prejudice, zeal or ambition, he, or any other man, exceeds the just limits of the law, and commits the offence with which he now stands charged, that it is no defence for him that he professed, on former occasions, opinions which do not amount to that crime. No doubt every man is entitled to the benefit in his favour of testimony as to the innocence, and fiiirness, and the constitutional enjoyment of opinions of a liberal character; and where there is doubt, as in other cases, the prisoner then is entitled to the bene- fit of that testimony. But, as in other cases, if the case is made out satisfactorily upon evidence, that he is guilty of the offence with which he stands charged in the indictment, those former opinions or courses of life cannot weigh a feather in the scale. Gentlemen, the offence, as I have told you, with w^hich Mr. O’Brien is charged, is the crime of levying war. Now, that crime has been submitted to you, and definitions of it have been laid before you. My learned friend who last addressed you, told you that it was an artificial crime. What he meant by that I do not exactly understand. Treason, under the statute of Edward III., is a plain defined offence ; it is as old as that statute. It is a plain definite charge ; and it is incumbent on the Crown to make that out, subject however to this consideration, which I am quite ready and willing should be submitted to you, that the war must appear to have been levied for a general purpose. That has been already observed upon. If it be not levied for a general purpose, but merely to assert a private interest, or to avenge a private wrong, no matter with what force or violence it may be attended, it would not amount to the crime of high treason. But if the war be levied for a general purpose, to assert general rights ; if it be levied for the purpose of effecting the redress of either real or imaginary pubhc grievances, although connected with it there may be some particular private or personal object THE QUEEN t- WILLIAM SMITH O’BRIEN. 749 to attain, yet I say if it be for a public general purpose, it is the crime of high treason within the meaning of levying war against the Crown. Xow, gentlemen, it will be my duty, and I feel it to be abso- lutely necessary, to call your attention to the manner in which this charge of levying war is sought to be established against Mr. O’Brien. My learned friend, the Attorney-General, opened the case, and stated that he sought not to go beyond the month of March, 1848. The charge against Mr. O’Brien is connected with the transactions of the last week in July of this year; but in order to ascertain with what object, with what intent, and what were the purposes of that insurrection, with that view alone, it becomes absolutely necessary that I should bring you back to what has been already, over and over again, pre- sented to your attention; the speech of March, 1848. The consideration of that speech is most important for this purpose, because it appears to me that it distinctly, plainly, and unambi- guously makes out this state of facts, that in the short interval which had transpired between the beginning of the month of February and the middle of March, a change had come over the political feelings and opinions of Mr. O’Brien ; and, at the time of that Revolution, which has been already alluded to, the Revolution in France, which has drawn after it so much human misery and so much national calamity, — at that period the minds of men were warped and influenced, and changes in political opinions led men to extremities of which they had not formed the slightest notion previously. Gentlemen, the speech has already been adverted to and observed upon, but it will be necessary for me to call your atten- tion again to some parts of that important document, because I think you will find upon reading it, that Mr. O’Brien then for the first time propounded and publicly stated what were the principles on which he was about to act, what were his objects, and what were the measures by which he would seek to carry them out. It appears that Mr. O’Brien and those who enter- tained similar opinions with him, had formed the resolution of going over to France with an address to the French people ; and before doing so he made the speech in the Music Hall, Dublin, which I have already adverted to. 1 submit that the whole of this speech is important for your consideration; it is not from detached parts that you are to collect what were the objects, opinions, and projects contemplated by Mr. O’Brien, at this period when he made that speech. I think it would be impossible for you, on reading the passages to which I shall now call your attention, not to come to the conclusion that they are inconsistent with his former opinions, the course which he had previously taken, and all those resolutions which you have heard in connexion with the clubs ; that he had formed a new 750 SPECIAL COMMISSION, CO. TIPPERARY. notion with respect to what should be his course in political life, and he propounded those views in this speech delivered at the Music Hall on the 15th of March, and the measures by which they were to be carried out. It will require your serious consi- deration, because you will find in the short interval of three or four months, which elapsed between that and the last week in July, that so far from retrograding from this advanced position which he had taken, the whole evidence shows you that he was impelled forward until he took that fatal step which we say involved him in the crime of high treason, by raising an insur- rection in your county. He says this, — “ For my own part, although I have seen much during the last two years to make me fancy that the spirit of my countrymen was greatly degenerated (cries of ^ So it is,’ and ‘No’), yet I cannot believe that if a proper summons he given to them, that they are not still willing to vindi- cate the character that was once the peculiar character of the Irish nation — of unrivalled bravery. Now, for myself, gentlemen, I make no parade of personal courage — I am not conscious of possessing that high virtue ; but I do trust — I say it in all humility — that if, by surrendering my life, either upon the scafibld or in the field, I could thereby secure the redemption of this land from the bondage ” You will find by-and-by what he means by the word “bon- dage.” “ under which it now suffers, that that life should be cheerfully given (cheers). But, gentlemen, though I trust I should not forbear to make that sacrifice, if it were necessary, I do confess to you, at the same time, I have the utmost possible horror of engaging in a fruitless and an un- successful rebellion.” You will find from these speeches and the other evidence which has been given in the case, what was the object that Mr. O’Brien had in view ; and as to effecting it by force and insurrection, that that was only a question of time. If that was not so, what is the meaning of the expression, that he had “ the utmost possible horror of engaging in a fruitless and unsuccessful rebellion ?” “ I have seen in this country — I have read in this country’s history so many instances of failure arising — on one occasion from precipitation, on another occasion from division — from a thousand accidents which pru- dence might have controlled — that I am deeply impressed with the opinion, that no national exertion should ever again be made by this country until success may be considered all but certain.” You will find from the evidence that on no occasion did Mr. O’Brien ever speak of the object he had in view as to a revolution in Ireland, or of its not being carried out ; hut the only question was, whether the occasion had arrived when that object could be effected. Again, he says — and this is a most important part of the profession of his political faith, stating the object to be attained — THE QUEEN WILLIAM SMITH O’BRIEN. 751 “ I am not disposed to raise any abstract question on the merits of a republican or a monarchial form of government : but what I believe the great majority of the repealers of this country want is this — they want a parliament in Ireland, to make laws for Ireland — they want an Irish government responsible to that parliament, and composed of Irishmen — they want the means of protecting those institutions by an Irish army, by an Irish navy, and by an Irish national guard (loud clieers).” Now, gentlemen The Prisoner . — Finisli the sentence. The Solicitor- General . — “ And provided such a parliament, and such a government, and such guarantees for its existence be given to this country, I believe, at present at least, they are contented to remain subject to the sovereignty of the British crown.” “ At present at least !” Now it has been stated in evidence, and I assume justly, that Mr. O’Brien was a gentleman who avowed his real prin- ciples, and who never thought one thing and said another. Here is, at all events, an exposition of what, in his opinion, he sought to obtain for the benefit of his country. He says he believes that what the great majority of repealers want is a parliament in Ireland, and an Irish national guard. My friend Mr. White- side asked, whether the Attorney- General meant to say that this speech was treason. We are not prosecuting this speech as an overt act of treason ; but we are submitting to you, when you have to consider what ^vas the object of the insurrection in Tipperary, which lasted from the 24th to the 29th of July, what was the object of Mr. O’Brien in resorting to that district of your county, and raising, as w^e say, that insurrection, whether he was or not endeavouring to effect and to carry out by force what he here puts forward as the object which the great majority of the repealers of Ireland required ? “ Now, I will take the liberty of inviting the attention of the public of this country, and also of the public of England, to a document which appears to me exactly to convey the demands of the Irish people ; it is a document presented by Lord Minto, to whom I alluded upon the last occasion of our meeting, as being engaged in a negotiation between the inhabitants of Sicily and the Government from whom they had revolted; the document I am now about to read to you presents the ultimatum of the Sicilians, submitted through Lord Minto to the Government against which they revolted; that ultimatum I will now read for you, I take it from The Morning Chronicle of the 10th of March, 1848. ‘ Advices from Palermo of the 19th ultimo state that Lord Minto had addressed an ultimatum to the Neapolitan Government declaring that to give a satis- factory termination to the affairs of Sicily’ — observe, I only ask you to put in the word Ireland instead of Sicily — ^ it is necessary first that island must become a separate kingdom independent of Naples. 2nd. That it must have a Government and Parliament of its own. 3rd. That 752 SPECIAL COMMISSION, CO. TIPPERARY. the King of Naples may also be King of Sicily. 4th. That the com- mon expenses of the two kingdoms, such as civil list, diplomatic body, &c., should be settled by a mixed commission of Sicilians and Neapoli- tans’ (loud cheers). Now I do not know what is your opinion, gentle- men, but for my part that is my ultimatum.” Now read that. What was his ultimatum? That Ireland must become a separate kingdom independent of England ; that Ireland must have a government and parliament of its own ; that the Queen of England may also be the Queen of Ireland ; and that the common expenses of England and Ireland must be settled by a mixed commission of Englishmen and Irishmen. Mr. O’Brien, when going to France on that occasion with the deputation, announced to the people of England and Ireland, that that was, in his opinion, what the majority of the repealers of Ireland required ; that that was his ultimatum. I impress that upon your attention to explain the acts and transactions of his life for the next three or four months. That is the exposition of his political sentiments in the month of March, 1848. He then propounds, as has already been stated to you more than once, some of the means whereby that ultimatum was to be attained ; and two of those means are, the constitution of a national guard and the election of a national council of three hundred persons in the city of Dublin. It is an exposition of his feelings, intentions, and wishes, and what he recommends the people of Ireland to act upon, in order to carry out the attainment of these objects. He says, in order that he may secure the combination of every imaginable aid that could effect his objects — “ I will invite you also to fraternize.” After speaking of the landlords of Ireland, he expresses his disappointment with respect to their conduct during the last twelve months, and then he adds this — “ It is not perhaps unseasonable that I should suggest to them (and these are times in which predictions are sometimes verified), that it will be exceedingly unwise, and exceedingly unsafe, for any of that class to take part against the Irish people. I do not apprehend that my country- men will resort to butchery and massacre, but I think it exceedingly probable, that if they should be found, in any future collision that should take place of a national kind, to have taken part against the Irish nation, and that the Irish nation should be triumphant in any struggle that may hereafter take place, I think it exceedingly likely that their properties will be carried to the national treasury. I think it right to give this hint to them as a friend.” I call your attention to this passage in order to satisfy you, when you compare it with the testimony that was given by the highly respectable gentlemen who appeared on the table, that a very violent change, indeed, had taken place in the opinions of Mr. O’Brien upon every important question affecting the people of this country. A gentleman like Mr. O’Brien, of family. THE QUEEN v. WILLIAM SMITH O’BEIEN. 753 station, and fortune, Laving propounded Lis political views in a speecL, Lefore tliat assemLlj, Lazards tLat expression of opinion witL respect to tlie rigLts of property in case of a political convulsion in tlie country. 1 draw your attention to it now, and I may find it necessary to recall it to your attention at anotLer portion of tLis case. TLis is also a most important pas- sage wLicL I am going to read, Because it is a corroLoration of tLe testimony wLicL Las Been given, as to tLe oLjects of Mr. O’Brien on coming into tLis county : — Now, I will invite you also to fraternize with other classes whom you have been in the habit of considering as hostile ; and I tell you it is your duty to fraternize with the soldiers. As I said before, I do not believe that the British soldier, as is sometimes said, divests himself of all sentiments of humanity when he puts on a red coat. I am told that the Scotch soldiers are the part of the army upon which the Government rely chiefly for their operations against the Irish people. Can you and I forget we are children of the Gael ? Can you forget that these Scotch soldiers, these Highland regiments, are, in fact, like ourselves, children of the Gael; that they at this moment speak the same language which is spoken throughout a great portion of the south, and west, and north of Ireland; that they are of the same kindred with ourselves? And shall I be told that these noble men are prepared to come to this country, and, after receiving all the kindness, and hospitality, and friendship, which ties of kindred and mutual respect create — that these men should be prepared to butcher this nation when they are contending for their rights?” Every word of that passage contemplates a collision and appeal to arms — a revolution to be effected by force. Whatever might be the form of government to be effected by that revolution, it is certain that a revolution was contemplated. It might be- come necessary to enforce the object which the parties had in view, and therefore he tells them to fraternize with the soldiery. If the soldiery be the friends of the persons engaged in such an enter- prise, of course I need not tell you that the Government or executive, to whom we look for the protection of our lives and properties, could not be sustained for one moment in the country. But does it stop there ? He says : — “ You have been in the habit, many of you, of looking on the police force as a hostile force. I say that sentiment ought to be discharged from your bosoms. The police force are Irishmen, like yourselves. There are ten thousand of them. They are as fine a body of men as ever held a musket ; and if their energies were properly directed, they would become the safeguard of this country.” That is, directed against the executive of the country who would employ them in case of a collision, or their passing over to the forces of those who would be in armed insurrection against the Government established by law ; and so, “ if their energies were properly directed, they would become the safeguard of this country.” He goes on — 3 c 754 SPECIAL COMMISSION, CO. TIPPERARY. “ Therefore I will not invite you to consider these men as your ene- mies. Of course, as long as the present state of things exists, they are quite sure of losing their places if they should manifest any sympathy with the people ; but if they knew that the time was rapidly coming, when every exertion made by such a force as that, to vindicate the freedom of this country, would be appreciated and prized, and become the subject of future honour throughout all generations to them and their posterity, I cannot believe that ten thousand Irishmen, clad in their native green, would be found the enemies of Irishmen.” Now, why do I call your attention to this? Because this is an exposition of the sentiments and feelings of this gentleman upon this important occasion, when I say a revolution had completely taken possession of his mind, and will he found to he a key to every one of the addresses which he afterwards made when he came into this county; and that the project which he was there contemplating by fraternization with the soldiery and police, ex- plains what I shall hereafter call your attention to, when 1 com- ment on the evidence from the time he went through the town of Callan to Mullinahone. But there is another important portion of this address — indeed it is all important — which will be corro- borated. This was only a declaration ; this was only a speech ; there was nothing done here ; but it was laying down the plan of operations for the next four, five, or six months, or whenever this unfortunate outbreak should take place. And how was that to be carried out ? It was by appealing to foreign aid for assist- ance. In speaking of France what does he say? “ I have no desire to speculate which is the most agreeable description of servitude — servitude to a British or to a French master ; for my part I am anxious that this country should have no master. Now, although we do not desire that the French should appear here for the purpose of subjecting us, it is not unsatisfactory to remember, that if the present French government should continue to hold power, and to rule the des- tinies of that country, we have amongst its most active members, at least three men who are pledged to tender to us the full sympathies of France in aid of our struggle.” What was to be the straggle ?” What was it at that time but the ‘‘ultimatum” which I have already stated to you ? It was to be a struggle for that. That is propounded unambiguously, and no question can be raised that that was the object. But what are the means ? A national guard, a national council, fraternization with the soldiers and police, appealing to France, and also, as I will show you in his next proposition, to America. He then refers to the letter of Ledru Bollin, “ who is now one of the leading members of the French provisional government,” to the Irish people in 1843, and he reads an extract from that letter of the member of the French provisional government : — “ ‘ We offer a testimony of sincere and profound sympathy for a peaceful THE QUEEN i;. WILLIAM SMITH O’BRIEN. 755 and legal struggle ; but in case the Tory Government should violate the sanctuary of the law which serves you as a refuge, we believe that France will offer you other aid against augmented dangers.’ ” That “ other aid,” need I tell you, would be a French force to carry out the objects that the party had in view. He men- tions another member of the French government, and then refers to the celebrated declaration of Lamartine, with respect to foreign courts, and goes on to say — ‘‘ Now, gentlemen, there is one power which I have hitherto omitted to mention, with which I am quite satisfied you will, individually and collectively, have no objection to fraternize — I mean the inhabitants of the United States of America. We have had abundant evidence, at the time when it appeared to the inhabitants of that country that the agita- tion was likely to produce serious fruits — we have had abundant evidence, by testimonies of sympathy and large remittances of money, that the people of the United States cordially sympathize in this struggle.” Now you will see the object I have in view in drawing your particular attention to where he speaks of foreign aid from America. He says — “Now I should consider myself exceedingly presumptuous if I were to attempt to dictate to the people of America as to the course which would be most effectual in aiding us in the achievement of our liberties; but, knowing that the government of that country is in the habit of obeying the impulse of the popular will, I submit for the consideration of our friends at the other side of the Atlantic, whether it would not be exceedingly expedient to urge their executive to provide that republic with a body, such as existed at one time in France, called ‘The Irish Brigade.’ ” And then he says — “ I conceive, in the event of our obtaining repeal, it would be extremely convenient to this country to have a force of Irishmen ready disciplined and enrolled to form the nucleus of an Irish army.” He then repeats that if repeal is obtained, there will be an Irish army. Again — “ Now, I confess I wish very much that circumstances would allow us to send a jnission to America on the part of the Confederation. At one time 1 thought of going myself; but I am afraid that the circumstance, inasmuch as I should have to stand in the front ranks with you (cheers) — although I have no desire at all to arrogate to myself any claim to leadership, all I offer is my humble co-operation — I can scarcely take on myself to say it is consistent with my duty, in the present aspect of affairs in this country, to go to America, even for so short a time as three months, which is the least period that will be effectual.” Observe. “ But I think it exceedingly desirable that some able, eloquent, and discreet man, or two men, should be sent on the part of the Irish 3 c 2 756 SPECIAL COMMISSION, CO. TIPPERARY. Confederation to the United States. I cannot help thinking that such a mission would gather round it the sympathies of the whole population of that country, who would be prepared to receive and reciprocate the kindly sentiments of the two nations.’^ I call your attention to this, because you will find that steps were taken on the part of Mr. O’Brien, and those connected with him, to carry out the very object which was so expressed by him in the month of March, 1848. Now, gentlemen, you will remember that your attention has been called, both in evidence and statement, for the purpose of exonerating Mr. O’Brien from the charge now made against him, to certain resolutions which were passed when he had a difference with Mr. Mitchel — peace resolutions 1 think they were called — and one of them, the seventh, I shall now read to you, says — “ That in protesting against the disarming of the Irish people under the coercion bill lately enacted, and in maintaining that the right to bear arms, and to use them for legitimate purposes, is one of the primary attributes of liberty, we have no intention or desire to encourage any portion of the population of this country in the perpetration of crimes, such as those which have recently brought disgrace upon the Irish people, and which have tended in no trifling degree to retard the success of our efforts in the cause of national freedom.” That is one of the resolutions passed at the meeting in Febru- ary, 1848, which was passed in conflict with John Mitchel. That is one of the resolutions relied upon by the counsel for Mr. O’Brien, to show you that up to February, 1848, these were his principles and objects ; and that they were utterly inconsistent with the treasonable intent which we charge he entertained when he embarked, as we say, in that insurrection against the Queen. That is in February. Now hear what he says on that subject in his speech in March. ‘^Now, you will remember, in the discussions which took place in the Confederation, that I deprecated strongly, some six weeks ago, the notion of inviting the people at that time to recur to military training of any description whatsoever, or to the consideration of military affairs.” That was the cause of the split which took place between him and John Mitchel. “ It seemed to me that in the then condition of the country the only effect of leading the people’s minds to what was called a guerilla warfare, would be to induce some of those misguided peasantry who had been committing assassinations to think that we encouraged them to proceed on a system of murder and crime.” That is a positive, direct aRusion to that resolution. Therefore it was that I felt it my duty distinctly to say that I could be no party at that time in giving any such recommendation to the country.” THE QUEEN v. WILLIAM SMITH O’BRIEN. 757 He could be no party to Mr. Mitchel’s views at that time. But the circumstances of affairs are totally different now ; and under those circumstances — under the altered condition of circumstances — I have no hesitation in saying, that I think it exceedingly desirable that all our intelligent young men, particularly those who have been engaged in surveying, engineering, and similar pursuits, should apply their minds to the best mode of taking strong places, and of defending weak ones. These men will probably form, if they distinguish themselves in this line, a portion of the sappers and miners of the future Irish army.” Does not all tliis distinctly prove to you, that up to this period Mr. O’Brien had made up his mind to abandon, or to recede from, that coimse of pohcy, that mode of expressing his opinions, and the means of carrying them out, which had distinguished all the former periods of his political life? We were asked, “Is this treason; is Mr. O’Brien indicted for this treason?” Gen- tlemen, this is not an overt act of treason, nor has it been treated by us as such. It is to account for the altered purpose and change of political feeling and opinion which appears to have now operated on the mind of this gentleman, and which led him to pursue those courses which he afterwards adopted for a period of two months ; and after an active, restless endeavour to carry out those objects, by the meanswhich he here propounded, at the termi- nation of four months we find him in actual insurrection against the Queen. Surely it was necessary for the Crown to take this course. Here there was a gentleman of education, of great ability and high connexions, of fortune and influence, who had publicly and openly expressed his opinions ; who had never concealed them ; who had connected himself with clubs and associations, and who it was not suspected or supposed would have entertained any object or purpose but the assertion of his liberal political opinions,, no matter whether they were moderate or extreme, but whatever they were, that they would at all events only be enforced by the constitutional course which he had always adopted through a long period of his life. Was it not therefore absolutely necessary on the part of the Crown, to endeavour to account to the satis- faction of a jury, for this most extraordinary, and greatly-to-be- regretted violation of the law, and I say undisguised, open, and declared war against the authority of the Crown? It was with that view only that it became absolutely necessary, indeed it became imperative on the Crown, to show how this revolution, in the mind and opinions of this gentleman, had taken place within the short period of one month. I ascribe it to that mania, that frenzy which has swept thousands to their graves — I mean the revolution of France, with all its train of measureless misery to Paris, and the metropolis of almost every country on the con- tinent of Europe. Gentlemen, if you should think there is any thing in this speech explanatory of the rest of the evidence, I beg you will give 758 SPECIAL COMMISSION, CO. TIPPERARY. it tRe value it deserves. You -will consider the 'whole of it, and the comments made upon it by my friends, Mr. Whiteside, and Mr. Fitzgerald. I submit to you this view on the part of the Crown, that it is the key and solution of every difficulty in this case, if there be any. Gentlemen, the next piece of evidence is the speech delivered on the 15th of April, after the return of these gentlemen from France. There is a very short portion of it with which I shall trouble you. In consequence of those alarming times, and the prevalence and disclosure of the political views such as I have stated to you, the Crown and Government Security Bill was brought into the House of Commons for the purpose of restraining, if possible, this growing evil of the country by the force of a new law. That is referred to in this speech. It is my duty to speak to the evidence, and the evidence only. I think I would be violating my duty if I went out of the record — if I did not confine myself to the evidence, and call your attention to that alone ; because it is upon that, after all, that you are to act, on your oaths, in deciding this case. I have already stated to you, that one of the means which Mr. O’Brien calculated upon was foreign aid; and, of course, one of the first countries to he looked to for that aid would be France. Your attention has been called to different portions of this speech which was made on the 15th April, upon the return of the deputation from France. That deputation consisted of Mr. Smith O’Brien, Mr. Thomas PYancis Meagher, and Mr. Richard O’ Gorman, jun. In the then state of France, it was perfectly natural that the Minister for P" or eign Affairs, Lamartine, did not like to get into any difficulties with foreign courts; and Mr. O’Brien in his speech refers to that, suggesting that the people of these countries considered that there had been a triumph obtained over the deputation by the repulsive answer which it was said the French Minister for Foreign Affairs had given to the Irish deputation. 1 think you will find, on reading this speech, that Mr. O’Brien intended to convey, that although in public the Minister of France had discou- raged the deputation, yet privately they had received the encou- ragement they desired. The Prisoner. — No. The Solicitor- General . — I should be very sorry to give any strained interpretation to it ; and I withdraw that observation if, on reading the passage, you do not find it bears it. “ I am rejoiced to find that you do not participate in the opinion which is vaunted, but not felt, in England, that our mission to France was a failure. For my own part, to me every circumstance connected with that mission was a subject of satisfaction. From the moment I landed on the French shores, I found myself surrounded with circum- stances tending to animate and sustain the spirit which prompted me to resort to France in your name.’^ THE QUEEN WILLIAM SMITH O’BRIEN. 759 There is a passage further on, which it is right I should read, as it was read by Mr. Whiteside. “ We did not go to solicit armed succour. Certainly I at least was not the bearer of such a message. I bore an address of congratulation to the French people, testifying our satisfaction — the satisfaction which we felt in the acquisition of their liberty; and I did say in that address, and I said it in private to every man I met, the Irish nation valued the friendship of the French.” You will ask yourselves, was it not to seek the aid of France for revolutionary purposes that those gentlemen went as a depu- tation to France. As an expression of sympathy it might appear to some persons as unobjectionable, yet it startled the loyalty of the country ; and at all events was an unwise and dangerous proceeding. “ If we had asked for armed succour, it is perfectly manifest that the French government, as representing the French nation, under its pre- sent circumstances, without even the formation of a regular government, would not have been justified in giving any definite answer to such a de- mand. But, gentlemen, from the time I landed in France to the time I left it, I found but one unanimous feeling towards this country. There was, indeed, a lurking feeling displayed by many, that we had not exhibited as much courage as had been shown by other nations, which were suffer- ing less acutely than ourselves from misgovernment ; ” So that the French people had a lurking feeling of that kind. In the way I read it, I should say that the meaning intended to he conveyed to the auditory was, that the French people were dissatisfied with the Irish, because there had not been so much courage shown by them as in other places on the Continent. ‘‘but at least there was this feeling, that the French people recognise the Irish nation as a kindred people to themselves — congenial in their feelings, in their habits, in their sympathies; and that making every allowance possible for the peculiar difficulties with which we are sur- rounded, they feel the most intense desire to witness the liberation of this country.” Now, what liberation of this country was there to witness? What was the extent of that liberation ? I shall not at present say that it was a disorganization; but at all events, remember the “ ultimatum.” It went, at aU events, to the extent of that ultimatum. “ Among the incidents that occurred during my stay in Paris, it may perhaps not be unacceptable to you to know that we had the pleasure of meeting one whose name carries with it no small portion of respect in this country ; ” I do not know who they are in this country. “ one of those who unfortunately failed in ’98 — but who, at the age of 760 SPECIAL COMMISSION, CO. TIPPERARY. eigLty-five, retains as genuine a feeling of patriotism, as ardent sympa- tliies for this country, as any youth of twenty amongst you — I mean General O’Connor.” Now, who was Arthur O’Connor ? The part which he played, and the circumstances attending it, are matters of history. My learned friend, Mr. Whiteside, did refer to a case where Mr. Arthur O’Connor, Coigly, and others, were tried at Maidstone, in Kent, in 1795 or 1796. But we find from this speech itself, if we have nothing more, that it is perfectly plain that Arthur O’Connor must have been engaged, in 1798, in something that unfortunately failed. “ One of those who unfortunately failed in 1798 ; but who, at the age of eighty-five, retains as genuine a feeling of patriotism, as ardent sympathies for this country, as any youth of twenty amongst you — I mean General O’Connor.” That certainly is a passage which I ought to read, because it has been already referred to by my friend, Mr. Whiteside; and no doubt you remember the observations he made upon it. I shall not trouble you any more with that speech, which is the second piece of evidence that has been observed upon by my learned friends on the other side. I am only submitting it to you as exactly one of those means whereby the object he had in view was to be effected by Mr. O’Brien. I merely offer it as a matter that wMl, perhaps, enable you to come to a proper decision of the question which you may ultimately have to consider. Now I read for you, from the speech of March, 1848, an expression that showed it was the wish of Mr. O’Brien for a mission, or an address, or a communication with America ; and accordingly that was the object which the Crown had in offering ill evidence this address from the American citizens, dated the loth of May, 1848. The speech of Mr. O’Brien in March, would have reached America about that time ; and it is for you to say — and I now submit to you, for your consideration — what is the nature of the reply to that manifestation of feeling put for- ward by Mr. O’Brien in his speech of March? It is from Phila- delphia, and is addressed to Mr. O’Brien himself. “ Much-respected Sir, “ At the large meeting of citizens held in this city on the 10th of last month (a report of which we have already transmitted to you), an executive committee, consisting of twenty-two active, zealous, and respect- able persons were chosen to take into consideration Irish affairs, and to adopt such measures as, under the circumstances, might appear to them most proper and expedient, to lend efficient aid, in the present emer- gency, to the Irish people. This body has now fully completed its organization, and in selecting its sub-committees we have been accredited in committee of correspondence. During the last session of the execu- tive committee a resolution was ^unanimously adopted, instructing us to open a communication with the people of Ireland through you, one of the most trusted and honoured patriots of the country, and to say to THE QUEEN t;. WILLIAM SMITH O’BRIEN. 761 them that we enter fully and intensely into the spirit of their proposed struggle with their oppressors, and that we are willing and prepared to co-operate with them as American citizens, in any mode they may think proper to designate, provided such mode be within the scope of our ability and our duty as citizens. We are at present instructed there is a course of proceeding with a view of raising funds, not only in this city and county, but throughout the State of Pennsylvania, among the friends of the cause; and we propose to apply the funds we may raise in the most available manner, in such manner as the Irish nation, through their agents, may point out; we have every reason to believe from the tone of public opinion here, and from other considerations, that our efforts in this respect will be crowned with unusual success. Societies in favour of Irish liberty are springing up in all directions throughout the Union. We should be happy to hear from you somewhat at large on this subject, and to know in what manner we can, in a practical point of view, act most beneficially to Ireland at this important and interesting crisis.” Gentlemen, I think that is a plain intimation from these sympa- thizers of America that they were willing to contribute aid either by money or otherwise, within the scope of their duty as citizens, to Mr. O’Brien and his friends in carrying out their project for a change in this country. I read that, that you may carry in your recollection what it was when I come to read the letter referable to the very same subject of Mr. Thomas Francis Meagher, and addressed from Cahirmoyle to Mr. O’Brien, forming part of the same plan, by which it appeared that Mr. Meagher had been selected as the missionary to go to America to collect those funds, and enter into negotiation with those American sympathizers. He was about to start on Saturday, in the second week of July, for that purpose, when other matters coming to a crisis, his journey to the United States was cut short, and he became involved in the outbreak in this county at the latter end of that month. That is my object in reading it. So much for the month of April. The month of May witnessed the trials of Mr. O’Brien and Mr. Meagher, in the Queen’s Bench, and the struggle with Mitchel. Mitchel was tried and trans- ported for his offence. This brings us to the month of June. There then existed, we are told, the Confederation, and the Conciliation-hall repealers ; the one is dissolved and the other is suspended — and a new society called the League is about to be formed, for the purpose of combining all repealers. At that League you will find that Mr. O’Brien was one of the principal speakers. Tliis most important document is read in evidence to show you, that at the end of June, one month before this insurrection in Tipperary, this letter of Mr. Duffy was addressed to Mr. O’Brien to stimulate and urge liim on, if he had any backwardness. If the recollection of his former opinions, if his good sense and experience, and the obligation he owed to society, made him unwilling to advance with rapid 762 SPECIAL COMMISSION, CO. TIPPERARY. steps to this most formidable and dangerous goal to which they were approaching, he had an insidious adviser who pressed him on — Charles Gavan Duffy, the editor of The Nation news- paper. Ilis letter is in evidence, and I will show you that it was written in the last week in June. Mr. Whiteside* could not find the date, and I admit it is not dated ; but I will fix the date, and show that it was sent to Mr. O’Brien, operating upon his pride and ambition, to accept the leadership which had been assigned to him, and urging that he should take that step which finally proved fatal to him. It begins — “ Saturday. My Dear Sir, “ I am glad to learn that you are about to commence a series of meetings in Munster.” Now the document I shall give you will fix the date beyond a question, because Mr. O’Brien in his own speech shows you that he commenced those meetings in the first week of July. “There is no half-way house for you. You will be at the head of the movement, loyally obeyed.” What movement ? “And the revolution will be conducted with order and decency.” Mr. Whiteside . — “ Clemency” is the word. The Solicitor- General . — “Order and clemency.” Both my learned friends have endeavoured to exclude this letter from your consideration. They knew the value of this piece of evidence, and the efforts made to exclude it you have witnessed. But their commentary on it is this — and they addressed this argument to gentlemen of your knowledge and experience — that all this referred to the revolution of 1782 . They might as well refer it to the revolution of 1688 . I assert that it was a revo- lution of another character that was contemplated — that was about to be carried out. I ask you whether that overt act of high treason was not to effect that object? “ And the revolution will be conducted with order and clemency, or the mere anarchists will prevail with our people, and our revolution will be a bloody chaos.” Is it not manifest that Mr. Duffy had the first French revolu- tion in his eye when he was writing that letter, because he imme- diately refers to the character of some of the personages who were distinguished in that revolution ? “You have at present Lafayette’s place.” That was the celebrated marquess who took a distinguished part in the first French revolution, but he halted between two opinions. He wished to save the King’s life, but he halted be- THE QUEEN WILLIAM SMITH O’BRIEN. 763 tween the proceedings of the moderate party, and those of the regicides. He lost his place, and Robespierre and the govern- ment of terror prevailed. Duffy says, — “ Unless you take the lead in this movement, loyally obeyed, the revo- lution will be a bloody chaos. You have at present Lafayette’s place, so graphically painted by Lamartine — and I believe have fallen into Lafay- ette’s error, that of not using it to all its extent and in all its resources.” I wish Mr. O’Brien had not listened to this diabolical tempter who was pressing him to his destruction. The Prisoner . — It is not fair to speak of Air. Duffy in this manner in his absence — he is not present. The Solicitor- General . — I do believe Mr. O’Brien was un- willing to take this step. His honour, his position, his feelings, his education were against it, but he was urged on by bad ad- visers. I regret The Prisoner . — I must say that it is wrong, at the time that gentleman himself is awaiting his trial, to take this opportunity of prejudicing the public mind against him. I beg most distinctly to repudiate any such observation of the Solicitor-General. The Solicitor- General , — Gentlemen of the jury, although Mr. Duffy is not on his trial, I read his letter as evidence of this treasonable conspiracy. The letter speaks for itself. “ I am perfectly well aware that you don’t desire to lead or influence others — but I believe, with Lamartine, that that feeling, which is a high personal and civic virtue, is a vice in revolutions. One might as well, I think, not want to influence a man who was going to walk on thawing ice, or to cross a fordless river, as not to desire to keep men right in a political struggle, and to do it with might and main. If I were Smith O’Brien, I would shape out in my own mind, or with such counsel as I valued, a definite course for the revolution, and labour incessantly to develop it in that way. For example, your project in obtaining signatures to the roll of the National Guard, and when a sufficient number were procured, and not sooner, calling the Council of Three Hundred, was on© I entirely relied upon ; but it has been permitted to fall into disuse, and could scarcely be revived now. The clubs, however ” And this, gentlemen, I call your particular attention to, because you will see at once that the plan of operation was through the organization of those clubs. The clubs, however, might take the place of the National Guard, and the proposal in your letter on union of a definite number of clubs being formed would just suit as well, if it were vigorously and systematically carried on, each day adding an item to it, and all the men we could influence employed upon it. Forgive me for urging this so anxiously upon you, but I verily believe the hopes of the country depend upon the manner in which the next two months are used. There is not a town in which you could not find a band of missionaries to organize the neighbouring counties — every club has its active men fit for this work — 764 SPECIAL COMMISSION, CO. TIPPERARY. and it is only by applying all our force to it that we will succeed — Believe me, my dear sir, very truly yours, C. G. Duffy. You will see from the context of that letter that it was writ- ten about the latter end of June, although it hears no date; for it refers to a tour through the south of Ireland that Mr. O’Brien was about to commence for a series of meetings in Munster. It speaks of the suggestion of having these clubs carried out vigorously, and you will find that almost immediately after this suggestion was acted upon; and that every exertion was then being made by Mr. O’Brien, and also by Mr. Thomas Francis Meagher, for the purpose of carrying out that plan of organizing clubs in the country. I think it will appear very plainly from the speech which Mr. O’Brien addressed to the League on the 19th of July that I have ascertained the true date of that letter. The next piece of evidence is this letter of Mr. Meagher’s, which I submit to you for two purposes — first, because he states the time he left Dublin, and his having proceeded, hearing Mr. O’Brien was then in the south of Ireland, on that tour for the purpose of organizing the clubs, of which he gives an account in his own speech on the 19th of July. You find him in two or three different towns, in Cork and Rathkeale ; and you will find him addressing speeches to different portions of the people of that district. Then he states his intention to start for New York, in America, ‘‘ to raise money, to invoke sympathy, and, &c., &(?., &c., amuse myself.” It is for you to say whether that was in connexion with the American address ; whether it was to forward the views which were then entertained with respect to obtaining foreign aid for carrying out the purposes of the party in this country. Now, gentlemen, it will appear that about the 8th of July, after this, Duffy and other persons were arrested. Mr. Whiteside. — I do not know, Mr. Solicitor, where that appears. The Solicitor- General. — It appears before the 15th, because it is spoken of at the 15th. Now, gentlemen, I have so far brought the matters down to the commencement of the month of July. Mr. O’Brien, it will appear had set out from Dublin about the 5th of July, to make this tour through the south of Ireland for the purpose of organizing the clubs. You will find that he himself states that he was in Limerick, Kerry, Bantry, and that he went to Cork, and, as he said, reviewed two thousand armed members of the clubs. , The Prisoner. — No, no. Mr. Whiteside, — No, not armed members ; members of the clubs. The Solicitor- General. — However, that is in liis speech. I THE QUEEN WILLIAM SMITH O’BRIEN. 765 will refer to it. He said, two thousand as fine a body of men as any in her Majesty’s service ; and he refers to ten thousand men whom he said were ready to hack them. They have given evi- dence of some resolutions passed at that meeting on Saturday the 15th, which was immediately on the return of Mr. O’Brien from the south. If he left Dublin on the 5th, which I say will appear by his speech, he was certainly hack on the 15th. Mr. Whiteside . — And you objected to it, Mr. Solicitor-General, and it was received. The Prisoner.— 1 left Cahirmoyle. The Solicitor- General . — On the 15th there was a meeting of the clubs in D’Olier-street. And now, gentlemen, I come to the testimony of Dobbyn with respect to the meeting of the 15th of July, in D’Olier-street. Dobbyn himself stated that he was a member of a club called the Red-hand Club, which was a branch of the Curran Club; that there was a meeting in D’Olier-street, which the representatives of those clubs attended ; that Mr. O’Brien was there at the head of the table. There was a secretary ; there was a calhng over of the clubs and their representatives ; and there was an ascertainment of their numerical strength. You heard the evidence of that person. He told you that at that meeting the numerical strength of those clubs was ascertained. How I do not mean to say, even with those opinions and those feelings, and the object Mr. O’Brien had in view, that there was any definite period in his mind when there would he a resort to force to effect that object. It will appear I think by all the evidence in the case, up to the time he left Mr. Maher’s, he was rather backward, and that he did not consider the time had arrived when a resort to force publicly and openly ought to take place ; and when others urged an immediate insurrection or outbreak, his obser- vation was, that he was against a premature step being taken. How this testimony of Dobbyn, with respect to the meeting of the 15th of July, has been Very strongly observed upon on the part of Mr. O’Brien, by his counsel. First, by the cross- examination of Mr. Whiteside, the testimony of Dobbyn was impeached, and it was denied that there was any such club as the Red-hand Club — that it ever had any existence. You will be pleased to recollect that Dobbyn was the first witness who gave parole evidence on any material part of the case ; he was put forward by the Crown on Saturday, and his testimony was before the jury and the public ; and he alleged facts as to place, time, and persons, which, if he was swearing falsely, he did at the risk of being contradicted on the following Monday or Tuesday. The cross-examination having suggested that there was no such club ever in existence as the Red-hand Club, you remember the course taken by the Crown to satisfy you that there was such a club in existence. Two Dublin police- 766 SPECIAL COMMISSION, CO. TIPPERAKY. men were subsequently examined, who proved the fact, that on Constitution-hill that lied-hand Club, so far as the exhibition of its title on the blinds of the windows, had an existence at that time. Dobbyn also referred to the meeting of the 15th of July. He stated that there were nearly one hundred persons there. He named several persons who were there, and he stated he was there himself. My learned friend says, and presses it, “ you have not produced any other of the persons who were there, to prove that he was there or that such a meeting took place.” Remem- ber where it was held — in D’Olier-street, in the place where the Confederation met, in the very house, with the servants and owners of the place residing in it at the time. If he swore what was not true, was it not perfectly competent for my learned friend, on Monday, Tuesday, Wednesday, or even yesterday, to have produced one, two, three, or twenty witnesses, to show that there was no such meeting held there that night ; that it did not continue there up to twelve o’clock ; that those persons were not there, and that this was all a fabrication. We alleged that it was a guilty meeting, and that Dobbyn was there on the part of the public, watching their proceedings for the purpose of having them defeated. Does not the argument cut ten times more forcibly the other w^ay in favour of the Crown, that every word this witness was telling was the truth? He could have been contradicted, and if he has sworn falsely might have been prose- cuted for perjury ; and up to this hour there has not been a single person from the city of Dublin to volunteer their testimony, that no such meeting as that took place upon that night, where one hundred persons were stated to have assembled. Then it was asked, “why was not Troughton called who was stated to have been the English missionary?” From the evidence it appears that he was an engineer employed in Mr. Mooney’s, in Pill-lane. I take for granted that he was an Irishman. He goes to England, and, on the evidence of Dobbyn he was there forwarding the project of those who were engaged in effecting this revolution in Ireland, because Troughton speaks of what he had been doing in England, and states that he had come over to that meeting to report progress to the assembled delegates of these clubs. Then we are challenged and it is said, “ we ought to produce Troughton. Why do you not produce Troughton ?” If this man’s statement be true, Troughton was one of themselves. Then again, there is a public fact stated by Dobbyn; I call your atten- tion to it, because an impeachment is made of the credit of this man — that there was an appointment made that the clubs should meet at Ennis’s yard at Kilmainham; and the Government having discovered it, the ground was pre-occupied with police. This is a notorious public fact. Mr. Whiteside . — Excuse me ; you have no right to refer to that. THE QUEEN WILLIAM SMITH O’BRIEN. 767 The Lord Chief Justice. — You cannot state it as a public fact. The Solicitor-General. — I am merely saying that he stated it as a fact. The Lord Chief Justice. — Yes. The Solicitor-General. — If Dobbyn stated wbat was untrue, could it not be contradicted ? I am throwing out these obser- vations because it has been said that the counsel for the Crown should have done all those things in order to set up their wit- ness ; that is, we were to set up a witness, whose credit we relied on, to prove a certain state of facts, and because they doubted his credit we were to call a number of persons to prove that he was telling the truth. We rely on liis evi- dence, subject to your consideration according to the probabi- lities of the case, whether he was telling the truth as to what occurred that night. If he stated these public notorious facts as to time, place, and persons, it is perfectly plain, and there was plenty of time for doing it, they might have shown that all he stated was false. JNow, gentlemen, so much for the meeting of the 15th of July. I will cal] yonr attention now to the meeting of the 19th of July, which is deposed to by the same witness, Dobbyn. We have given in evidence this fact, that on the 18th of July, the following Tuesday, the Government issued a proclamation putting the city of Dublin under the provisions of the Arms Act. If Dobbyn had detailed what occurred on Saturday the 15th, and it was known to the Government that there were armed clubs of great numeri- cal strength, which could assemble together at a given point, within a given time ; if it was stated at that meeting, that there were fifty clubs, or thirty, or forty clubs of five hundred each, I ask you, was not that, if they were armed, a great cause of alarm for the citizens of Dublin ? The Government issued the proclamation on the following Tuesday, putting the city under the Arms xict, enabling the authorities to disarm these dangerous societies if they existed. That fact is unquestioned. That pro- ceeding of the Government, if the facts be as I have stated, must have disconcerted considerably the plans and operations of those organized clubs ; and that they were disconcerted by it, I think the speech of Mr. O’Brien upon the 19th of July, the very day after, proves. These facts, when you come to look at them, and to read these speeches, corroborate the testimony of Dobbyn as to what he had stated. I beg and entreat your consideration to these documents, because, as I conceive, they must lead you inevitably to the just conclusion, as to the intent and motives which influenced the parties who assembled in the county of Tipperary on the 24th and 25th of July. Now remember the constitution of this Irish League. Concilia- tion HaU was closed, 1 think, early in July, and the Confederation, as the Irish Confederation, was dissolved. Dr. Gray’s evidence 768 SPECIAL COMMISSION, CO. TIPPERARY. discloses to you that there were negotiations for a combination of all classes of repealers going on for some eight or ten days. I shall read this speech of the 19th, because I say, out of his own mouth Air. O’Brien states facts which corroborate every thing I have been detailing to you for the last half hour. He says — ‘‘ It may be satisfactory, however, to you to know that your feelings are shared by men in the most remote parts of this island. It is now a fortnight since I left home, ’’ Take those fourteen days from the 19th of July and he must have left home on the 5th of July. Duffy said he understood he was about to take a tour in Munster, and he writes him that letter. Is not that evidence that Duffy’s letter was written about the end of June or the beginning of July ? Does not the con- text fix the time ? ‘‘ It is now a fortnight since I left home ” That is, the 5th of July. ^^and during that period I have visited the county of Kerry, and the western portion of the county of Cork; and I have found in those remote regions as intense an ardour, as patriotic a devotion, as that which I • witness here to-night.” We find, gentlemen, and the whole history of Mr. O’Brien’s life shows, that in the pursuit of any object he is indefatigable. He started from Dublin on the 5th The Prisoner, — jNo, no. The Solicitor- General . — As far as I can collect it, or perhaps “home” means Cahirmoyle. “ Shall I add as stern a determination ? I am authorized to communi- cate to the people of Dublin that the men who dwell in that portion of Ireland which has suffered perhaps more than any other from the disas- trous efiects of misgovernment acting upon a visitation from Providence — I mean the district about Bantry — that the men of the west of the county of Cork are prepared to co-operate with you in every endeavour you may undertake. At Berehaven, the nearest point to America, I received similar assurances. At Bantry, at Macroom, at Killarney — in short, wherever I passed, there appeared to be but one unanimous feel- ing that the time was come when one great and simultaneous effort was to be made by the Irish nation to accomplish its freedom. I hope you have read an account of the proceedings at Cork. They call it a review of my troops ; but I am happy to assure you that I met two thousand men as well arrayed ” I thought it was “ armed,” but the word is “ arrayed.” “as capable of efficient action, as any troops in her Majesty’s service; and I met at least ten thousand able-bodied men who promised to support and sympathize with them.” Remember my observations on the speech of March. T69 THE QUEEN i;. WILLIAM SMITH^O’BRIEN. “ Observe I do not wisli to speak of tlie troops in ber Majesty’s service as opposed to the men whom I met at Cork. I have bad tbe satisfaction of being welcomed by many of my countrymen wbo wear red coats also during this excursion. And now, gentlemen, I bave just returned this very day from an excursion in tbe county of Meatb.” What meaning, what object, what construction, can you, or any man put on it who reads this account of Mr. O’Brien’s visit to Cork, and his afterwards going through these districts of Leinster ? “ On Monday last I bad tbe pleasure of meeting a very large assem- blage of tbe citizens of Drogbeda — an assemblage comprising all classes of tbe inhabitants of that town and individuals belonging to all creeds; for Drogbeda bas tbe good fortune of presenting an example to tbe rest of Ireland of being tbe town in wbicb religious differences no longer produce any difference in political opinions. I am authorized on behalf of tbe people of Drogbeda to tell you that whenever you call for their co-operation, that co-operation shall not be withheld. From Drogbeda I proceeded to Navan, and I was introduced into tbe town of Navan by as well-organized a club as any in tbe kingdom, or rather by two clubs numbering about five hundred men. I bad tbe pleasure of addressing in the vicinity of Tara a very large multitude at Navan, wbo appeared to me to be animated by all the enthusiasm wbicb was exhibited at that glorious epoch, in 1843, when the Irish nation as it were assembled on the bill of Tara. From Navan 1 proceeded to tbe ancient city of Trim ; and there, too, I bad tbe satisfaction of meeting an extremely well- organized club.” Is it not as plain as possible, from this history of his own pro- ceedings, that Mr. O’Brien was carrying out that project of effecting the objects which he had in view through the instru- mentality of well-organized clubs; that he had gone through the south of Ireland ; that he had returned, and gone through the district of Leinster ? “ I, therefore, bave tbe advantage of coming to meet you with the assurance that you are not alone in this great movement.” Gentlemen, there is an important part of the speech that I now have to observe upon, which will require your most serious consideration, because there are portions of this speech upon which the gentlemen on the other side rely, as it were, cutting down, qualifying, and in fact, putting an end to the effect of the previous statement of the Crown. How was that League constituted ? Men who had different notions of how matters were to be carried out in Ireland who became members of that League, were not to be compromised by any thing said by an independent member, or any thing done by the members of the clubs; and Mr. O’Brien, knowing that state of facts, says, ‘‘So far 1 have been speaking of those clubs, but I must tal^e care that the members of this League are not to be compromised by 3d 770 SPECIAL COMMISSION, CO. TIPPERARY. what I have said touching the clubs, and they are not to be im- plicated in any transaction that the clubs may have reference to.” ‘‘ And now you must not expect to hear from me any exciting topics here to-niglit. I am fully resolved not to bring myself, if it he possible, within the operation of the Felony Act. I owe it also to the gentlemen who have entered into association with us ” Those are the gentlemen who are not to be compromised. “ to fulfil the pledge, by which I consider myself bound, on entering this Irish League, that we will, until we find all constitutional methods exhausted, through the agency of this League, unite with them in con- stitutional efforts.” That is, so far as the League was concerned, nothing was to be done, or even propounded in that League, that was not to he according to the old system of acting by constitutional agitation — moral force agitation. “ Now it is not necessary for me to re-argue this question of repeal. There is not one of you that has not had, during many years, abundant opportunities of listening day after day to arguments which have fully convinced your minds as to the necessity of seeking for this country the power of domestic legislation and self-government. But if I wanted arguments derived from the current course of events I should find them abundantly in the proceedings of the present session. What do we see ? These Whigs, when they were suppliants for power — when they sought to obtain your suffrages, and the aid of your parliamentary assistance, in order to row them into office, they were large in their promises of remedial measures which they designed for Ireland. What has been their fulfilment of these promises'? We cannot forget the disastrous events of last year — the year M7. But look to their conduct during the present session.” Then he goes on to state the proceedings of the Government with respect to the measures of the House of Commons. “ Within the last twenty-four hours we have had occasion to observe, that even this city, in which such a thing as an outrage of the character which this measure was designed to suppress never has occurred, or any outrage ” This was referring to the city of Dublin being put under the Arms Act. “ that this city is about to be placed under the operation of those enact- ments. And now, gentlemen, I do not here, in this League ” In this League ! “ And now, gentlemen, I do not here, in this League, feel myself called upon to, express to you my opinion as to the mode in which you ought to treat that proclamation.” THE QUEEN t;. WILLIAM SMITH O’BRIEN. 771 In that League he was not to propound any thing by which the proclamation of the Government would be treated disre- spectfully. “ I believe the most of you know very well what is your interest and what is your duty. I apprehend that the effort to disarm the popula- tion of Dublin wdl not be found very successful ; but I do — whilst I do not invite you to give facilities to the police for invading the privacy of your homes — I do upon my own part, and I must say upon the part of some of your most trusted friends, request that you will not make that proclamation the occasion of a general collision. Another of their enact- ments during the present session has been the Felony Act, as it is called — the Gagging Act — an act which enables the Government to transport beyond the seas men who shall, by advised writing or speaking, endea- vour to maintain the rights of their native land ; and under that enact- ment we now see in the dungeons of Dublin, four of the ablest and most virtuous men in this country lying as prisoners, subjected to every indig- nity which a bad Government can inflict.” That is the evidence which I said proved that previous to this meeting those persons had been arrested. “ Gentlemen, for these men I claim your sympathy. And now I feel myself again somewhat fettered, and my lips closed as to the advice I ought to give ; but I call upon you deeply to consider what ought to be the conduct of the Irish nation with reference to the trial of those men.” Remember, Dobbyn states it was projected also at this meet- ing that those men were to be rescued. I trust we shall not allow in this country such scenes to be again enacted, as those which took place during the trial of Mr. Mitchel. I trust there will be an unanimous determination throughout this land that these men shall not be subjected to the same jugglery of injustice j and that men who have been, after all ” Now Duffy was one of those. Duffy had written that letter. Mi\ WJdteside . — I do not see how that is so ; you say that. The Solicitor- General . — He was one of the four persons. Mr. Whiteside . — You did not prove who the four were. The Solicitor- General . — Dobbyn stated it in his evidence, and I ask am I drawing an unreasonable inference, when I say Duffy was one of those four? Mr. Vernon also proved it. “ And that men who have been, after all, but exponents of the sentiments which every man amongst you feels — who have done nothing but that which every patriot and virtuous man ought to do for his country — that if these men shall fall, the Irish nation is prepared to suffer with them.” Does that corroborate Dobbyn ? “ This will be a very important consideration in every public assemblage which will be held in Ireland during the next three weeks.” Three weeks ! 3 D 2 772 SPECIAL COMMISSION, CO. TIPPERAKY. “ I will not venture to anticipate wliat will be tbe result of that decision; but I invite niy countrymen to consider wliat is the line of conduct that befits them as men struggling to be free, as men who have a generous spirit in their bosoms. I am, however, bound to say to the Grovernment, that this is an occasion upon which a solemn warning will not be mis- placed ; and I speak my own individual opinion when I tell them, that it is my firm belief that if those men should be transported, or if an attempt should be made to transport those men, that the funds, within one week after such transportation, will be twenty per cent, below their present price.” Now I make no observation or commentary on that. I leave to your own consideration what was the meaning of his saying, that such a fall would take place in public credit, in case the Govern- ment should act on the law of the country, and carry out the law against the persons who were then in confinement. This is a consideration for the fundholders of England. I have no desire to strike down public credit — far from it. I believe every man amongst you is interested in upholding public credit. I believe, with respect to the banking establishments in this country, there is no part of the world which has firmer mercantile or financial concerns. Therefore I, for one, will not invite you to strike at public credit. I am stating that which I believe to be the general result of the financial condition of the empire. I believe, one week after the transportation of these men, the funds will be at least twenty per cent, below their present rate. There is, however, one question on which I am bound to relieve my mind, because I have been silent on it for some time, and I rather take blame to myself for being so.” Then he speaks of the savings’ hanks. “Now, gentlemen, there are many topics upon which I would wish to address you with freedom, but I feel that we are now making a great experiment in which we must keep faith with those who have entered this association.” Who are the “ we” who are to keep faith with the men who enter this association, to broach no topic, suggest no public opinions that would compromise the members of the new League, or make them responsible for any opinions that might be broached there, or any acts done by the confederates ? My learned friend, very properly did rely on it and it was a powerful argument, when referring to some clergymen, Mr. O’Slalley and others, that if any one of the members of that League committed an act of high treason growing out of this assemblage, every man would be guilty and liable to be tried for high treason. Observe how the leaguers, as leaguers, are kept out of this predicament. Observe what was passing behind the scenes. “We must keep faith with those who have entered this association. I see many men before me eminently to be respected, whose opinions deserve all the attention which the weight of experience, and position, THE QUEEN i;. WILLIAM SMITH O’BRIEN. 773 and virtue, and patriotism can give. They came here to co-operate with us, not for the purpose of effecting any sanguinary revolution, but they came here to see by a last experiment what may be the power obtained by concentering into one focus the whole will of the Irish nation.” That would be perfectly harmless, and a protection to every member of that League who was not a member of a confederate club. He then says — “ I am happy to see here to-night the representatives of the citizens of Kilkenny. I am happy to be able to congratulate you upon the accession of a very considerable number of the Roman Catholic clergy of this country ; and I am still more happy to tell you, that I have reason to believe that we shall, before long, have the accession of still greater numbers from that body.” He then referred with high compliments to Dr. Maginn of Londonderry. He says — “I believe there is no man among you entertains sounder doctrines, with respect to the rights of the people, than he does ; but he feels that, as a clergyman, it is his duty to forbear from entering into any associa- tion which is formed for purposes other than of constitutional action.” I beg your attention to that. “ And I believe it is the intention of that revered prelate — so eminent for his virtues — so eminent for his distinguished talents — so eminent for his great influence throughout this land — I believe it is his intention, provided you pledge yourselves, as has already been done to-night by the resolution submitted by Dr. Cane, to a course of constitutional action, not only to present his own subscription, but to send in the adhesion and subscription of all his clergy.” Then, having said that, and publicly exonerated the mem- bers of the League, as mere members of the League, but feeling that it would prejudice the operations of the clubs if they were not recognised and encouraged, he goes on — On the other hand, let it not be supposed that any man in joining this association is called upon to enter into any pledge that he will forego his rights of manhood.” That is a very intelligible phrase ; but if it stood alone I should not think so much of it. “ For my part I confess, though I am of a peaceable disposition, that 1 should not have been a party to the formation of this League, if I felt myself in any degree whatsoever fettered in regard to any ultimate con- tingencies that may arise in vindicating the honour and the rights of this country.” Does he not draw a plain and manifest distinction between himself standing there, as a member of that society, connected with these confederate clubs, distinguished from being a member of the League ? 774 SPECIAL COMMISSION, CO. TIPPERARY. “ But I am contented to act in the League with those men who are desirous to try every experiment that can be made of another character.” What was ‘‘the experiment of another character?” It was the opposite of the experiments that he was trying. He was content to act with those men in the League. “ And believing that those men, if the hour of trial did come, would be as resolute as the noisiest declaimer amongst us, possibly that they would be more ready than many of us who speak very largely about what we intend to do, to place themselves in the foremost position of danger — I say I enter frankly and cordially into co-operation with those men. Now, let it not be supposed that any thing I say to-night here has a tendency to discourage the formation of clubs. Upon that point we are each of us at liberty to entertain our opinions in this League. Some of the members of the League think it inexpedient to encourage the formation of clubs. That is not my opinion. I believe that the position of this country would be infinitely safer than it is at the present moment if there was a club in every parish in Ireland. I believe that there is no more securer method of obtaining the respect of those to whom you are opposed, than to place yourselves in a position to be able to dispense with their favours and to defy their menaces. There- fore it is I witnessed, with the greatest possible satisfaction, the forma- tion of clubs throughout the country. There are some parts adjacent to Dublin, where the organization is not yet perfected.” Then he goes on to say, that he spoke in his own name, and not on behalf of the League. I shall not detain you with any more of this speech, as you will have it before you. I have drawn your attention to it in case you should, on consideration of the evidence, appear to be embarrassed by any of the verbiage of this speech, with a view of comparing the position of the parties called the League, and the members of the League as distin- guished from the confederate clubs. The view I have taken of this document ought not to embarrass you as to the evidence of Dobbyn, and the other transactions of the case ; and I submit that this speech, instead of contradicting Dobbyn, corroborates him to the fullest extent in every thing he has stated. [At this period their lordships retired for a short time.] Gentlemen, I have been drawing your attention to the meeting of the League, on the 19th of July, at the Music Hall; and I told you there was a variety of topics adverted to in that speech, which you will be good enough to take into consideration, with respect to the view I have presented to you. I have called your attention particularly to these words — I will read them again, and you will see why I do so — with reference to the j^ro- clamation that appeared on the 18th of Julj^ the day before the meeting. “ I apprehend that the effort to disarm the population of Dublin will TPIE QUEEN WILLIAM SMITH O’BRIEN. 775 not be found very successful; but I do — whilst I do not invite you to give facilities to the police for invading tlie privacy of your homes — I do upon my own part, and I must say upon the part of some of your most trusted friends, request that you will not make that proclamation the occasion of a general collision.” Now, carr}^ with you those words, and the sentiment as expressed on the evening of that day at the meeting of the Music Hall. You remember on that day, before the speech was made, that there was a mid-day meeting, in D’Olier-street, of those confederate clubs; and at this meeting, says Dobbyn, of the representatives of clubs and the council of the Confedera- tion, he attended as a representative of the Red-hand club. Mr. O’Brien was there on that occasion. The meeting was for the purpose of defeating the Lord Lieutenant’s proclamation, as to the Arms Bill. Mr. Brennan moved a resolution, that the insur- rection should take place at once, as the people would not be in a better position at harvest than they were then. He said the people would be dispirited, and the Government would take up all the arms they could. Mr. Dillon moved an amendment, that the people should conceal their arms, and give passive resistance to the proclamation. Mr. O’Brien said that an outbreak at that time would be premature. Thomas D’Arcy AUGee made a speech also, and wanted the members present to cast lots to see who would advise the people that night — that was, at the meeting of the League in the Alusic Hall — to have an insurrection in conse- quence of this proclamation. Now, that took place before the meeting of the Music Hall ; all that passed there ; Dobbyn has sworn it passed there. Brennan moved a resolution for an insur- rection in consequence of the proclamation; and he gave his reasons for it. D’Arcy MHee having made a speech, and expressed a desire that it should be carried by lot who should be the person to advise the people, w^e have Mr. O’Brien in a few hours saying, “ I apprehend that the effort to disarm the people will not be found very successful ; but I do — whilst I do not advise you to give facilities to the police for invading the privacy of your homes” — that is, passive resistance — “ I do upon my own part, and I must say upon the part of some of your most trusted friends, request that you will not make that proclamation the occasion of a general collision.” Now, when did he get the opinions of those trusted friends ? He got them a few hours before. Who were his trusted friends ? Dillon and those who suj)ported the amendment, of passive resistance, to Brennan’s motion. ‘‘ I request that you wiU not make tliat proclamation the occasion of a general collision.” Docs not that corroborate, with powerful expression, the evidence of Dobbyn, as to the facts that he detailed of Brennan’s motion, to make the proclamation the occasion for a general collision ; and that he was over- ruled 776 SPECIAL COMMISSION, CO. TIPPERARY. by Dillon, who moved an amendment advising passive resistance ? Accordingly we see Mr. O'Brien, this very same night, advising the people not to give facilities to the police for invading the privacy of their homes ; and he makes that disclosure which I say amounts to conclusive corroboration. What Dobbyn swore on that table here, he has stated in detail. It is acted upon and disclosed that very night at the Music Hall. So far then, gentle- men, I have done — having recalled your attention to that speech, and to that formidable motion made by Brennan, to make the proclamation of the Lord Lieutenant, disarming the clubs, the moment for an immediate insurrection. That was on the 19th. The Government must have known that on the 20th ; and the communication must have reached London on Friday, the 21st ; and on the evening of that day Lord John Russell, the first minister of the Crown, goes down to the House of Commons and demands the suspension of the Habeas Corpus Act in this country, as it was plain to the authorities, from that communi- cation, that no time was to be lost to save the Government and the country. On Friday, the 21st, that motion is made in the House of Commons. Dobbyn has stated, that the meeting, after that motion was rejected, adjourned to the following Friday, for the purpose of electing a war council. Now, he swears that that meeting took place on that very day. Mr. O’Brien, I admit, was not present. He had left before, on the previous evening Mr. Fitzgerald. — I think the witness did not use the words ‘‘ war council executive council” was the expression. The Solicitor- General. — What did I call it ? Mr. Fitzgerald. — War council.” The Solicitor- General. — Well, executive council. Gentlemen, you remember, as I stated, O’Brien said that an outbreak at that time w^ould be premature. It is manifest that he was advising such a step that night. He did not attend the meeting of the 21st ; but, however, that meeting took place ; and there were pre- sent at the meeting of the 21st, as the witness states, Mr. DiUon, Mr. Lalor, Mr. Meagher, Mr. M‘Gee, and a Mr. M‘Dermott. You see how these events were concurring. On that same evening of Friday, the 21st, while the motion for the suspension of the Habeas Corpus Act in Ireland was being made, they were proceeding, if Dobbyn stated the truth, to elect this execu- tive council. There was a Mr. Lane, from Cork, in the room ; and in consequence of his not being a representative of a club, his presence was objected to. Dillon called out the names of the representatives of clubs. They went into an adjoining room until all left the room ; and when this w^as done, Mr. Lane and some others were compelled to leave the apartment. The repre- sentatives of the cluhs then returned to the same room, and they THE QUEEN WILLIAM SMITH O’BRIEN. 777 at once proceeded to elect the executive council. Some of the representatives proposed that it should consist of three members ; others, of five ; and others, of seven. The council at that period consisted of twenty-one ; and the proposal that it should consist of five was carried. He then proceeds to state that there was a ballot, and the result is, that the persons present, who were twenty-nine in number — he himself having balloted — elected Mr. Dillon, Mr. Meagher, Mr. O’Gorman, Mr. M‘Gee, Air. Reilly, and ^Ir. Lalor. The two latter having received an equality of votes, a new ballot was held, and the result was in favour of Reilly. Then there was a proposal by Lalor and McDermott, that each of those elected should give a pledge, that they would incite the people to an insurrection before the 8th of August. Mr. Aieagher stated that he would use all his heart and soul to induce the people to an insurrection even before the 8tb ; Dillon made a similar statement, and added, so help him God he would ; and AI‘Gee said, that both by speaking, writing, and action, he would hasten the insurrection. The meeting continued to within a quarter of twelve that night. Having given that evidence, Dobbyn then identified four of those balloting papers, Now, it will be for you to say whether he is corroborated, as I sub- mit he was, as to his statement of the previous meetings. The manifest result of that was, that the vigilance and prudence of the Government to meet the projected disturbance of the public peace, step by step, as it progressed, was known; and the adjournment having taken place on the 21st for this purpose, it was manifest the crisis had arrived when the Government should take that measure which they considered would alone preserve the peace of the country. The Prisoner . — Will you allow me to ask the names of the five. The Solicitor- General The five were Mr. Aleagher, Mr. Dillon, Air. O’Gorman, Air. M‘Gee, and Air. Devin Reilly, who was ultimately elected. Gentlemen, you will remember we had a lengthened contest about admitting in evidence these balloting papers. They were of the greatest value on the part of the Crown, only so far as they went, if they were examined, to cor- roborate the testimony of Dobbyn, who proved his own signature to one of them, and Lalor’s, whom he saw putting his name to it ; and that was remarkable, for he says the name of any of the persons balloting ought not to have been put to it. The two others he swears to are O’Higgins’ and the man’s of the name of AI^Dermott. That is all he could speak to ; but they are of the last importance to satisfy your minds that Dobbyn was then speaking the truth, having reference to those documents. He had no interference with them ; they had not come into his possession ; they had been left in the balloting room ; and we 778 SPECIAL COMMISSION, CO. TIPPERARY. proved that these papers were afterwards found in a hag on a table in the room where Lalor was sleeping. Mr. Fitzgerald. — I apprehend there is no evidence of that kind whatever. The policeman who produced the hag of papers which he alleged to have found at Lalor’ s, stated that they had been out of his possession. The Solicitor- General. — I understood he swore positively to the papers. Mr. Fitzgerald. — The Lord Chief Justice asked the Attorney- General at the time, have you any further evidence of this? whereupon Mr. Attorney said he had not. The Lord Chief Justice. — Here is the evidence of the witness, Constable Thomas Griifin. He arrested Lalor at Ballyhane ; he was in bed ; there was a black bag on the table in the room in which Lalor was present, and in it he found a roll of papers, which he now produces. The Solicitor- General. — That is what I understood. Mr. Fitzgerald. — That is on his direct examination, my lord. Subsequently, on his cross-examination, he cannot identify them. The Lord Chief Justice. — He cannot identify them, he says, on his cross-examination. llie Solicitor-General. — So far as to the way they were found. However Dobbyn swore positively to them, wherever they came from. The Lord Chief Justice. — Dobbyn identified several of them — four. The Solicitor- General. — Yes, my lord, he did. Dobbyn positively swore that from the time he put his name to his own balloting paper, he had never seen them till two or three days before he was put on the table. Now, that made these docu- ments of the very last importance, if any impression had been made on your minds by the observations of the learned coun- sel as to the discredit which was to be attached to the testi- mony of Dobbyn ; and of course he endeavoured to divest the case of that corroborative evidence. Certainly my learned friend, Mr. Whiteside, did answer that, as he answered several other mat- ters which required a difficult answer, and that was by an effort of his great mind, pouring out a brilliant burst of oratory with respect to these balloting papers. He said that they were forgeries, and not authentic ; that if they were authentic, the Rev. Mr. Kenyon, whose name appeared upon them, ought to have been prosecuted as well as Mr. O’Brien, whose name did not. But, however, I will do my friend, Mr. Whiteside, the justice to say, that he would not add the impress of his high station, or the credit of his fair name and character, to give currency to the calumny, that either the law officers of the Crown, or the Lord Lieutenant, as the head of the Government, was endeavouring to screen a delin- THE QUEEN v. WILLIAM SMITH O’BRIEN. 779 qiient priest. He would not, I say, lend Lis credit to give cur- rency to such calumny, which is as foul as it is false. I am sure you will give me credit when I say, that if evidence could be procured, and a prosecution with reasonable success he instituted against any man of the community, whether layman or clergyman, no matter of what religion, that such a prosecution ought and would be instituted, and the conviction of the delinquent obtained, as far as the law of Ireland would justify it. Having said so much on behalf of the Government, my learned friend, the Attorney-General, and of myself, a very humble ser- vant of that Government, I hope you will excuse me from further adverting to what was thrown out. My friend, Mr. Whiteside, observed with great power and ability, on the grounds either of the inappheability, or the discredit which was to be attached both to this witness or to those documents. I have taken the liberty of submitting to you the evidence as it stands, and such obser- vations as have occurred to me upon the credit of the witness, and the evidence offered in corroboration of his testimony. The question of his veracity entirely rests with you, and it will be for you to say, first, whether the evidence in itself is, or is not, of the last importance — I mean the evidence as to the meeting of the 21st of July — and whether, if it be of importance, you have been satisfied that the facts detailed by him as to that meeting have been made out. Gentlemen, we have now, in the consideration of this case, closed the very serious and interesting narrative of the proceed- ings which occupied the parties concerned for three or four months. I have stated to you that Mr. O’Brien was not at that meeting of the 21st. It appears that on the morning of Saturday the 22nd, Mr. O’Brien went on a visit to his friend Mr. Maher, at Enniscorthy, in the county of Wexford. He was there in the society of that gentleman and his family, as respectable as any in the county. What next occurs ? After he had left the city of Dublin, this express, which you have heard spoken of by Dr. Gray, the proprietor of The Freeman’s Journal, reached Dublin on Saturday, announcing an appheation to the Imperial Parlia- ment for a suspension of the Habeas Corpus Act; and in addition to that was annexed what was untrue, but still it was connected with the other fact, according to Dr. Gray’s testimony, that a warrant had actually issued for the apprehension of Mr. O’Brien. How that must have naturally alarmed, not only the party who was in Dubhn connected with those movements, but the per- sonal friends of Mr. O’Brien. Accordingly Mr. Dillon and Mr. Meagher who were, I believe, two of the most enterprising of the persons whom we charge to be concerned in these transactions, determined to go down to him. They must have known, of course, that Mr. O’Brien was on a visit to Mr. Maher. They accordingly 780 SPECIAL COMMISSION, CO. TIPPERARY. proceeded by mail. At a very early Lour, the coach arrives iu Enniscorthy ; and, therefore, they must have reached Mr. O’Brien’s bed-room at a very early hour of the day. Mr. Maher tells us that about eight o’clock he was sent for by Mr. O’Brien to com- municate to him what he had learned from these gentlemen, and that he did not conceive it right that any thing of that descrip- tion, namely, his arrest, should take place in his house, and that of course, he must take an immediate departure. Up to that period of his departure from Mr. Maher’s, we do not allege — save so far as Mr. O’Brien participated in these three meetings, at which the representatives of the confederate clubs assembled — that any overt act, certainly no direct overt act, of actually levy- ing war took place. I think I may very fairly concede to Mr. O’Brien, that up to the period of his leaving Mr. Maher’s, or seeing those two gentlemen at Mr. Maher’s, he had not con- ceived, planned, or contemplated an immediate outbreak. It would appear that the matter was under consideration, and which arose from the imprisonment of those persons, and was not contemplated to take place till about two months afterwards. Brennan and the other fiery spirits were for an immediate insur- rection, and thought they had a good excuse in the reason they assigned for it; but Mr. O’Brien considered that any such pro- ceeding would be premature. Meagher and Dillon were the persons, I believe, who moved the amendment for passive resist- ance, so that they themselves were still waiting for events. But the communication of the act of the Government in applying for the suspension of the Habeas Corpus Act, must necessarily have fallen like a thunderbolt, and filled with dismay those persons who were projecting an outbreak at any future day, because, under the provisions of that act, whatever information the Government might have derived, or suspected as to the treason- able j)ractices of any persons, the powers of the act are so great, that under the Lord Lieutenant’s warrant those parties could have been arrested and put into gaol. If the presidents and vice-presidents of those organized clubs, or the leaders of the sections or sub-sections, were apprehended and imprisoned, it is perfectly manifest that the whole organization for an insurrection at any period of the year must have been at an end. Whatever motive may have influenced Dillon and Meagher in apprizing Mr. O’Brien of the fact, they on the night before had been elected two of the executive council which was to administer and regulate the proceedings of the clubs. They immediately followed Mr. O’Brien to his retirement, and found him at Mr. Maher’s. They quit Mr. Maher’s and go to Enniscorthy; and evidence has been laid before you as to what was done and said by those three gentlemen when they met the people at Enniscorthy after prayers. I shall not delay you, except merely THE QUEEN v. WILLIAM SMITH O’BRIEN. 781 to refer to the phraseology of that Enniscorthy address, which was laid before you, and to the testimony which was taken down of what those gentlemen said as to their ultimate proceedings. They go to Graignamana in the county of Carlow, and then pro- ceed to the city of Kilkenny. They arrived there on Sunday, and remained a portion of Monday. Now, the real issue that has been put forward for your con- sideration, and upon which the acquittal or conviction of Mr. O’Brien or any other person connected with this insurrection must he founded, is, what was the intent, meaning, and object of that outbreak in Tipperary ? That is, if there was no levying of war, no high treason committed by the actual levying of that war, because it was not for any general public purpose, the redress of grievances real or imaginary, to erect Ireland into an indepen- dent country and republic, or qualified monarchy, or to obtain a repeal of the union, if it was not for any of those objects, and was a mere outbreak or insurrection, for preserving the security of Mr. O’Brien’s person, and his alone, not one of the persons who accompanied him in that expedition, or who were concerned in the outbreak, could be guilty of high treason at all. They could only be guilty of a rank riot and misdemeanour, for which they might be prosecuted and punished as such by fine and imprison- ment ; therefore, the character of that insurrection is the main issue which you will have to try. It is that to which you are to apply your plain sound sense, the exercise of your ordinary common understanding; and you are to ask yourselves, upon your oaths, and upon all those responsibilities which my friend Mr. Fitzgerald has put to you, that you owe to yourselves, to the gentleman at the bar, to society and your country, to answer to yourselves upon your oaths, was there that limited, qualified, personal object of Mr. O’Brien? Was that the object of the insurrection, or was there another general purpose to which that might be incidental ? But if it was a general purpose for the redress of any grievance, or for procuring the repeal of any law, no matter how oppressive that law might be, such an outbreak with force and violence, for the alteration of the law, you will be told, and I speak it I believe under the authority of the Court, would be a levying of war against the majesty of the Crown, and high treason within this indictment, and the act upon which it is founded. Now, gentlemen, what do we find occurring after the de- parture of Mr. O’Brien from Mr. Maher’s house ? Mr. O’Brien, accompanied by those two gentlemen, Mr. Dillon and Mr. Meagher, go to Enniscorthy, to Graignamana in the county of Carlow, and cross over to Kilkenny. Now if escape or prevention of arrest was Mr. O’Brien’s object, why did they not proceed to Wexford or Waterford, thence to England, and so to France? But the 782 SPECIAL COMMISSION, CO. TIPPERARY. three gentlemen passed to Kilkenny, remained there for the night, and Mr. O’Brien was seen next morning in company with Dr. Cane’s son. Dr. Cane was a gentleman who appeared at the League with some of the citizens of Kilkenny, according to Mr. O’Brien’s own speech on the 19th, and formed part of the assembly which he addressed on that occasion. They remained there, and walked through the streets of Kilkenny. It was Monday, and the London papers of Saturday night would have been in Kilkenny on the Monday morning. There is no evidence, certainly, that they read the papers, and perhaps I ought not to have made that observation. They remained in Kilkenny ; and where do these gentlemen go for the purpose of preserving the person of Mr. O’Brien from arrest? Why, they go to Callan, and ascend some public platform, instead of secreting his person from arrest — instead of absconding from the execution of the warrant on a criminal charge — they address the people saying, that they were to be prepared for any emergency. Where was the necessity of his going to Callan to make a public exhibition of himself and his two friends, and addressing and fraternizing with the police ? I would call back your recollec- tion to the plan of action that was to be adopted, not only at Callan, hut I believe at every other place where the police were addressed. They were addressed as brothers and friends, upon whose aid and assistance Mr. O’Brien and his companions de- pended to enable them to carry out their objects, whatever those objects were. Now, I am addressing myself to you as men of common under- standing. Any one of you make it your own case. Suppose you were apprehensive of being arrested, on a criminal charge by the authorities of the Crown and Government ; that your friends came down post-haste to communicate to you the peril of your position ; that you are within two or three hours’ journey of one of the most convenient outlets from Ireland, the port of Waterford, from whence packets are sailing every five or six hours, establishing a communication between the two kingdoms; would you not naturally say, I will take myself to England, and if I have no pro- tection in England, I will take myself to France? Instead of taking that natural course, Mr. O’Brien and his friends stop in Callan to harangue the people. They pass from Callan, hut where to ? To Carrick-on-Suir. Remember they pass through Carrick- on-Suir, and you get an account of their appearing publicly in the window of the hotel, and I believe some other public places, and each and every one of them haranguing the populace ; and by each and every one of them do you find those words put forward to conciliate the police, who are the authorities for preserving the public peace. Ask yourselves what is the object of those addresses to the police. Ask yourselves what is the meaning of THE QUEEN i;. WILLIAM SMITH O’BRIEN. 783 tReir going to Garrick, and making those public speeches in a town surrounded by multitudes of the populace and the police, and causing considerable excitement by their exciting appeals to the populace. What is the meaning that they want you to put upon those speeches? They want you to say that all these were things done for the personal security of Mr. O’Brien. I rather think that was a strange way of seeking his personal security. The construction I put upon it, and 1 am sure the construction you will put upon it, is this ; that Mr. O’Brien, from his leaving Mr. Maher’s house until he reached Callan, in co-operation with those two gentlemen, Mr. Dillon and Mr. Meagher, had then deterjnined in his own mind that the crisis had arrived when this planned insurrection was to be effected, and that the rallying cry of that outbreak was to be the security of the person of Mr. O’Brien from apprehension. Could there be one more effectual and more exciting — taking into con- sideration the popularity of that gentleman, considering him as the leader of his party — than for the people to be told in the declamatory language of himself, Mr. Meagher, and Mr. Dillon, that his security, perhaps his life, depended on their adhesion to his cause, and their rallying round him, and consequently obtaining the reward of that rally, the change in the position of the country and the state of the law which they desired, and that to be done by a revolution. I am putting this to you for your consideration; I suggest it to you. It is the important issue which you really have to try, unaffected by the powerful speech of my learned friend Mr. Whiteside, and the equally ener- getic and solemn appeal made to you by Mr. Fitzgerald. Ask yourselves the question upon the important issue sent to you whether that insurrection can be attributed to such a motive as the mere personal protection of Mr. O’Brien under the circum- stances I have stated to you ; or whether it was not based upon that speech of Mr. O’Brien’s which he made in March last ; and whether he was not seeking to carry out the ultimatum which he then propounded ? I could well imagine that if the case had stopped at Callan and at Garrick, that Mr. O’Brien — from his own knowledge and from the information of Dillon, who might have been competent to have given him advice upon tlie subject, from something that he might have learned in Kilkenny — might have said, “ this warrant is not out against me,” or, “ it cannot be out against me until this act passes into a law ; I shall there- fore meet the people at Callan and Garrick, state my grievances, and press upon them the policy which I have been urging all along ; but then from Garrick I will go to either Cork or Water- ford, and withdraw myself from this country until better times, until the suspension of the Habeas Corpus Act expires ; my presence is not required here for any purpose which can be 784 SPECIAL COMMISSION, CO. TIPPERARY. effected, and I will retire.” But what is the evidence? The night closes at Garrick, and we have nothing more in evidence of where Mr. O’Brien had gone. Mr. Maher stated distinctly that Mr. O’Brien brought a large portmanteau to his house The Prisoner. — Not a large portmanteau — a portmanteau. The Solicitor-General. — A portmanteau. Lord Chief Justice Doherty. — A large leathern portmanteau. The Solicitor- General. — That portmanteau upon Mr. O’Brien’s own statement, when he wanted to recover it, was in the pos- session of Mrs. Doheny. Now, the inference I would draw from that is — hut it is for you, gentlemen, not for me — that inasmuch as Mr. O’Brien and his friends did not appear in the village of Mullinahone in the county of Tipperary, until the following day, that they must have crossed over to Cashel, and spent the night in their friend Mr. Doheny’s house. Now I only suggest that upon the evidence I have stated to you ; it may or may not have been so ; but it is a matter for your own con- sideration. They come back to Alulhnahone, and whether he went to Cashel with his friends, which is, I believe, twenty miles or thereabouts from Callan, or whether he went direct to Mul- linahone, which is ten or twelve miles from Carrick, you will naturally ask yourselves what brought a gentleman of his position and his two friends to such a place as Mullinahone? Could that add any thing to his security, or prevent his arrest under a warrant if it were out? You will have to ask yourselves those questions. You will have to try it by your own experience, and say whether that is the course any gentleman would be likely to pursue, who was placed in his position. I ask you can you, or any human being explain, why these gentlemen, who professed to have in view the mere personal security of one of them from arrest under a warrant, should go about the country for the time they did? Was not the plain course for them to take to go to Waterford, or Cork, or to leave the country until they could return unmolested by any proceedings on the part of the Govern- ment. But you are called on, as men of sense, to reconcile the extravagant proposition to your own understandings, that this gentleman himself, and the two other gentlemen, resorted to the town of Mullinahone, caused that public insurrection of armed men there, and that these men were assembled in that manner, merely to do that which in itself must be utterly absurd and ineffectual, unless followed up by a general insurrection and rising throughout the country. How long was Mr. O’Brien to be left unmolested, either in the village of Mullinahone or at the base of Slievenamon? How long was he to be left there in this position, or secreted in the collieries of Ballingarry ? Ask your- selves these plain questions. They must be answered ; they can- THE QUEEN WILLIAM SMITH O’BRIEN. 785 not be passed by ; they are notorious facts ; they are proved to you. You have to ask those questions, and not allovr yourselves to be carried away by this delusion, that these gentlemen who were assembled there in open arms against the power of the Govern- ment, not for the purpose of effecting that object which I brought before your attention, which was broached in March, and prose- cuted down to July, but that it was merely that he should have a protection from arrest between the three towns of Mullinahone, Ballingarry, and Callan. Gentlemen, you cannot answer it to your consciences in any other way than in that which I have submitted to you. It is impossible. I hope I am not trespassing on you too much ; I am entitled to a portion of your time and attention, for the discharge of my duty on the part of the Crown ; and I Avill noAv endeavour, as well as I can, to give you a general outline of the evidence, although you must be familiar wuth it. Every detail of the circumstances has been interesting, and must have made an impression on your memories. Gentlemen, Mr. O’Brien, accompanied by Mr. Dillon, and I believe a Air. O’Donohoe, arrived at the village of Mullinahone ; the people collected there, and the bells were rung at night. The circumstances attending that visit are divided into two portions. In the early part of the day a number of people are assembled, and addressed by Air. O’Brien, and of course you heard what they stated, “Will you allow Air. O’Brien to be arrested?” AVas not that a call on the people to resist the Government, to effect a general purpose? The capture of Mr. O’Brien was connected with this ; if the leader be taken, the revolution falls to the ground. The night comes on. and to prevent his arrest under the warrant, this gentleman, v/ho it is said is merely secreting his person in an obscure village of the county of Tipperary, has hundreds of persons ready armed rising as it were from the earth, with the instruments of civil warfare, guns, bludgeons, and pikes. They assemble there — hundreds of armed, and thousands of unarmed persons ; they are addressed, the chapel and church bells rung, and bonfires lighted on the hills. One of the witnesses, I think, said so, but it is immaterial to us whether it Avas by the colliery bell or a private bell, that the alarm was given to assemble the country people. They pour into the town of Mullinahone, they are there addressed, and a guard of honour, which may also have been a guard of security, if I am right — ■ I do not Avish to delay you by looking into details — is mounted at the residence of Air. O’Brien, who slept that night at a Air. AVright’s. Gentlemen, I Avill not trouble you with the speeches reported by the police from Callan and other places. You heard them proved, and of course have them on your notes, and you have 3 E 78G SPECIAL COMMISSION, CO. TIPPERARY. heard my observations. I will now recall your attention to the exposition of those principles on the 1.5th March with respect both to the soldiery and police. This is at Mulhnahone on the 25th. They arrived about twelve o’clock, and addressed one hundred and fifty persons. Mr. Cahill, a clergyman, remonstrated with Mr. O’Brien on his proceedings, and after two hours he addressed the people. I am just giving you an outline, and want to be accurate and not misstate any thing. He used these words, “ rise and fight for your rights,” and said, “ that now was the time, and that a warrant was out against him.” The people moved through the town. Mr. O’Brien told them to get arms. Mr. O’Brien and the people were armed; there were pikes and guns, and three hundred armed persons were marching. The main body, which I understand was armed, was about five thousand. Mr. O’Brien went amongst the people and separated the armed from the unarmed — I am stating the evidence of Sullivan — and he said none should be in the ranks save those who were armed. Now, the evidence of Sullivan is long; I select a few portions of it to give a general outline. He said that was the conduct of those gentlemen. Ask yourselves what could be the meaning of all this? Is it to be said that these gentlemen were to assemble in a village in that way, for the purpose which I have already mentioned to you? Then the next morning Stephens and O’Donohoe, who were perfect strangers to the place, accompanied Mr. O’Brien to the police barrack. I need not detain you with the evidence of what occurred at the police barrack. Did you ever in your lives hear a more extravagant assumption than that all this was done to prevent a gentleman being arrested on a warrant that had not been issued, and which at any time he could have evaded from the time he left Mr. Maher’s house at Ballinakeele ? He made a proposition to the police to give up their arms, and that is con- sistent with every other part of the case and with the conduct and declarations of Mr. O’Brien. He asked them to put themselves under pay and go to Callan. Strong observations were made by my friend Mr. Whiteside on that. He asked, why go to Callan ? I do not know. There might have been a suggestion that he should go to Callan, which is within two or three miles of Ballingarry. Callan might be the place where the insurrection was to break out. However, be that as it may, there is no ques- tion raised, and I think you wiU not disbelieve that that was a pro- position to draw those men from their allegiance to the Crown, under whose pay they were. After having made that display of tampering with the police and endeavouring to withdraw them from their duty, there is the statement, which is quite consistent with Mr. O’Brien’s feelings, that where it was possible the slightest injury could be avoided, it should not be clone to any human V THE QUEEN y. WILLIAM SMITH O’BRIEN. 787 being, or a drop of blood spilt, if bis object could be effected without it. I am quite satisfied, and give him full credit for it, that he would not unnecessarily spill one drop of blood to effect his object of a revolution in the country, if it could be done by any other means. If the constabulary had all deserted their duty, and if the military had mutinied, and gone over to the people ; if either one or the other had fraternized wfith the leaders of this intended revolution, whether at Callan, Garrick, Clonmel or else- where, is there any one here who can doubt for a moment, that Mr. O’Brien would have been highly gratified if he could effect bis object of levying war against the majesty of the Crown, with- out even the ordinary result, of the loss of a single human life ? But that does not change the character of his offence ; and if he had succeeded in that general object in seducing every one of the constabulary he addressed, or in seducing the troops from their stations and quarters, and was effecting his object by those means, he would be just as guilty of high treason, and levying war against the Crown, as if he had slaughtered two-thirds of the troops. That is the law. That is the protection a civil Govern- ment has for the security of the lives, interests, and liberties of its subjects. What further occurs ? The 25th and 26th are spent in the manner I have told you. An armed body of men, in considerable numbers, on the morning of the 26th, is found at Mullinahone. AVhere they came from, where they got their arms, and there were arms of no questionable character, how they were sup- plied, is all a mystery. They are found in open rebellion — they march from the town of Mullinahone an immense body, armed in the manner I have stated, and they are headed by ]\Ir. O’Brien. He is amongst them, he is at the head of them ; and they march to Ballingarry, five or six miles off. They arrive at that village, and you will find upon the evidence, that soon after the party arrive at Ballingarry you have speeches made which you will have to consider. Are they not perfectly consistent with this being a rising of the people to rally about this gentleman and his associates ; and is not this language the watchword by which the people were to be induced to rally round his standard, and to say, unless we protect the life and person of Mr. O’Brien, we have no chance of freedom for our country ? Now, what takes place at Ballingarry on the evening of the 26th? How is that evening occupied ? He entered Ballingarry armed, went to the chapel gate and addressed the people. He said he was afraid of arrest, and asked if the people would stand to him. They w^ent into the chapel yard. He said there was a warrant out against him, and he was in dread of being arrested, and wanted to know whether the people would stand by him if an attempt was made to arrest him. Dillon also spoke. 3 E 2 788 SPECIAL COMMISSION, CO. TIPPERARY. After the speeches were over they went into the chapel yard. There was a guard of twenty persons for the night. I ask you whether the guard of twenty men being placed on the place where Air. O’Brien was sleeping for the night, was not a mere pretence? Why, if there was a warrant to be exe- cuted on Air. O’Brien by the powers of the Government, is it not a farce to say that twenty men of this county, with their pikes and scythes, were to be a guard to protect him from the apprehension of arrest? A^ou will ask yourselves whether this was not the mockery of a commanding officer with a guard of honour mounted on his house? Do you not find it to be the pageant resorted to wherever this gentleman sleeps for the night ? It was to give effect ; and these things have their effect on the minds of the multitude, no matter how lowly or igno- rant they may be. The idea of military organization is that which of all others captivates the peasantry of this or any other country. Mr. O’Brien, Air. O’Donohoe, and Mr. AI‘AIanus were there, and slept at Kavanagh’s house. Now, gentlemen, my learned friend addressed to you some strong observations, in order to show that the Crown brought forward defective proof. He said it was extraordinary that, with the exception of one place or so, the Crown had not produced any of the respectable shopkeepers or townspeople to give evidence, and that we have relied on the police to prove every thing. Should we otherwise have had a particle of evidence as to what the declarations may have been of that insurrectionary mob? From your knowledge of this country, and the state of things passing about us every day, although the peace of the country was in peril, should we have had a chance of obtaining evidence from the townspeople, who, either from sympathy or fear would hesitate as to giving their testimony? Had we not a striking instance of that in the case of Kavanagh. Here was a respectable townsman and shopkeeper, who entertains seven or eight gentlemen for the night, wdio passed through his shop in the midst of an insurrection, and he came on the table and swore that he did not see any of the gentlemen who frequented his house. They came there in the daylight ; they had a guard on his house wdth the whole move- ment of a military array, they dine in his house, and yet neither he nor his servant could identify a single individual. And w^e are asked why are not those the class of persons whom w’e bring forward to give evidence in a case of this character, which interests the feelings and apprehensions of the whole community of this country ? There is not one of them who would have given straightforward evidence. Do you remember the extra- ordinary expression that fell from him. The man w^as really in terror while he sat on his chair. He was asked wdiether he was TliE QUEEN t;. WILLIAM SMITH O’BRIEN. 789 paid any thing for the accommodation he afforded, and what did he say ? Mr. Fitzgerald . — I do not know how Mr. Solicitor-General can use this language. It is a very unusual topic for a counsel to comment on his own witness. The Solicitor- General . — I am commenting on the very forcible observations of my friend Mr. Whiteside, that the Crown were bottoming their case on the testimony of few others besides the police, and that we had not resorted to the testimony of the townspeople ; but I say that accounts for our not being able to produce witnesses of that class. Now the war was commencing and the bells were ringing. There were a couple of witnesses to this day’s transactions. I am now about to call your attention to a most important part of the case which cannot be got over. Do you remember the evidence of Sparrow and Burke, as to the 27th ? There was drilling, street firing, pike parties, and all those proceedings in the nature of a military array in the town. Can you escape that or shut your eyes to it ? I need not go through it ; but can anything be more decided? To what is all this to be attri- buted ? Up to this hour there was no pursuit, no warrant, and no search for this gentleman. He might have gone to any part of Ireland he liked; and yet you are called on to say that he remained in Mullinahone and Ballingarry for the pro- tection of his person, and that that insurrection was raised for that and no other purpose. Do you recollect what was given in evidence ? Some more active members of the people than others were nominated colonels or commanders, and they did in point of fact take the command of certain divisions of the people. Remember that they marched back that day from Ballingarry to Mullinahone ; that there was a body of two and thirty armed men in front, like an advanced guard of the regular army of the Queen ; that that advanced guard was headed by a person on horseback ; that afterwards, with the main body of those people you find Mr. O’Brien and the other two gentlemen, I believe Dillon and O’Donohoe ; and you are called on against your com- mon sense and understanding, to say, that this gentleman had no insurrectionary motive or object for effecting a rising in the country. Perhaps I am dwelling rather too much on this part of the case, but these are the observations which it occurs to me to make. But we will go back to Mullinahone. There is the scene of providing bread for those j^eople, and their breaking up for the night. What became of them? They broke up and went to their own quarters, for they were quite prepared, and subsequently met their leaders in another portion of the country. What was done then? Remember the district of 790 SPECIAL COMMISSION, CO. TIPPERARY. country. Observe the position that this gentleman had taken up. I beg to remind you our charge is, that he raised an insurrection for the great purpose which he had in view. He takes up his position at Ballingarry, Mullinahone, and Killenaule, with the population in arms at different quarters ready for him. He goes to Cappogue and sleeps at Ryan’s house. Mr. Whiteside . — Excuse me. The Solicitor- General . — He does not sleep there, he stops there. When they broke up, he and two other gentlemen went to Ryan’s at Cappogue, and late in the evening the car-driver at Nine-Mile House, who was sent out, comes to Ryan’s of Cappogue, takes up these three gentlemen, and arrives at one or two o’clock in the morning, at Walsh’s, the hotel keeper of Killenaule, carrying some of their arms in the car. Then he sleeps there that niglit. We are asked why do we not produce the townspeople and tradesmen? Ho you remember Walsh appearing on the table ? He did not recognise one of the persons in his house that night. I apply the same observation to him as I did to Kavanagh. Mr. Whiteside.— Y ou have no right to comment on your own witness. The Solicitor- General . — Most assuredly I have, in reply to your argument. Well, what took place there? That is the day of the barricades and the arrival of the military, which is most conclusive evidence of the object with which these gentlemen were assembled at Killenaule. In your lives did you ever hear or read of such a monstrous proposition, that this gentleman, to protect himself from arrest under a warrant, had thus marched and countermarched from town to town, with armed bodies ; had then dismissed his array for the night ; had gone to Killenaule where you find another body with a sentinel or two, and a man of the name of Orchard with a gun, standing as sentinel over his lodgings ? And then you find, on the approach of the Queen’s troops in the morning, a regular display of military tactics, and throwing up of barricades, and the objection to their passing. The troops however pass, and because the people did not commence warfare with them, and did not make that the crisis by a collision with them, that, forsooth, must be taken as evidence that this is all a private and personal object, and not a general plan for raising a rebellion in the country. If it w^as necessary I could recall the observations I made with respect to fraternization with the troops, and the unwillingness of Mr. O’Brien, perhaps equally so of some of the gentlemen with him, unnecessarily to draw blood in a collision. I ask you, whether you will not come to the conclusion, that all this marching and countermarching, and the dispersion of those different persons, their coming at different hours, and their THE QUEEN v. WILLIAM SMITH O’BRIEN. 791 travelling about at others was not in furtherance of this treason- able project which they had in view ? For what were they about ? They arrived on the morning of Friday, the 28th. They pre- pared to go — where? To cross by another direction almost forming a triangle from Killenaule, Ballingarry, and the Com- mons, or rather to the Collieries, and they started an hour or two after the soldiers left the town. I have looked into the evi- dence of the soldiers since, and it is perfectly correct ; the pas- sage of the troops was between nine and ten — and Pemherthy swears it was between eleven and one; and so far as his recollection goes that respectable man, Pemherth}^, had that most important interview, which I should say is conclusive on this case, with Mr. O’Brien, whom he met about half-way between Killenaule and Ballingarry when he got off the car at Kirwick’s Cross. Tiiere they left the town, and Pemberthy’s is the only evidence with which I shall trouble you with any degree of particularity, because I think it is conclusive. You saw that witness’s position in life, and his manner ; I ask, can you disbelieve one particle of what he uttered ? Ko human being could do it, unless he was determined to shut his eyes to light, and close his ears to sound. “ John Pemberthy was at Kirwick’s Cross on Friday; saw some persons up there with Mr. O’Brien ; saw a gentleman they called M‘Manus with a pistol. Mr. O’Brien spoke to him and asked w’as he not the superintendent of the colliery ? He answered that he was. Mr. O’Brien then said, that if the com- pany stood neutral he would support them, but if they offered to suspend the works in consequence of any of the men following him he would take possession of the collieries ; that he would have Ireland rescued from the British Government in less than a week ; that all was ready in the towns, and that as far as he had travelled in the country they were of the same mind ; and added, that if he was caught he would be hanged.” There is the conversation. Does that disclose the objects ? Are we to shut our eyes, our ears, and the evidence of our senses ? Is not this proof to demonstration as to the objects of these gentlemen, when coupled with the extraordinary circumstance of their being found there at all? What could have brought and detained them there except it was for the puiq^ose of exciting this outbreak ? Then they come into the Commons village, to Mrs. Lacken’s, the widow, who could not identify one of them, and slept there till Saturday. There were other interviews with these colliery- men. You remember the interviews wdth Pimlott, Lamphiere, and Cullen, wdio all speak to the same effect. I put it to your common understandings, is it possible that you can get over this evidence ? The great talents of my learned friends may affect it, but there are some things insurmountable and unanswerable. 792 SPECIAL COMMISSION, CO. TIPPERARY. Now, you remember what passed, I shall not trouble you with a detail of what was passing on Friday evening, because you wdll find, when you come to look at it, that it is nothing but a repetition of the same proceedings — the same body-guard, the same forms gone through, the same drilling, the same shouting and speeching ; in fact, it is all of the same character. Lamphiere was a respectable man, and he saw both Dillon and Meagher who were remaining there all this time ; they addressed the people, and one said the country would be free in a fortnight, and they would drive the Saxons from the soil. Then another said Ireland would be free in six months. What is the meaning of that? To efiect the total independence of the country. This war of independence might or might not last a week, ten days, a fortnight, or six months. If there had been one simultaneous outbreak throughout all the great towns ; if Limerick, Cork, and Waterford had broken out on hearing the rallying cry of Mr. O’Brien being about to be put into gaol by the viceroy of the country, we cannot contemplate what the consequences would have been. These things were said. Do you believe them ? W ere they fabricated by these respectable men who have no interest in it, who would be willing and ready to soften down and extenuate rather than add to or exaggerate their testimony ? But there are things which require the utmost ingenuity of the ablest man in the land to attempt to answer. I call on you to look to that letter which has been so often read. I ask, can you accede to the attempt to get rid of this deliberate act ? Mr. O’Brien appeared to be carried away by the notion of the force he had marshalled, and the impunity with which he had acted for three or four days, surrounded by the armed population of this county. On one occasion, it appears dis- tinctly, at Ballingarry, there were no less than seven or eight of these gentlemen collected together ; three of them went, after the barricade transaction, to Killenaule, upon a car, two with Mr. O’Brien, and arrived at Ballingarry, on the Commons. Do you remember the evidence afterwards given of another car ? That is important. After Mr. O’Brien and his party left Byan’s, at Cappogue, some of their party must have gone some- where else. fc5ome of them must have been absent before Mr. O’Brien and the other two started on the car from Cappogue. Three of them only started from Cappogue to Killenaule, and some time after they had gone, another car, wfith three other gentlemen, and I think you will see that one of them was Doheny — wdiere they came from it is not for me to say — followed towards Killenaule, and when they came within a mile of it they turned to the Commons village. These gentlemen then got off the car and crossed the field, and when they arrived at THE QUEEN t;. WILLIAM SMITH O’BRIEN. 793 Killenaule we find these six — Mr. O'Brien, Meagher, Dillon, O'Donohoe, Doheny, and another. Do not forget this fact, if you believe Dobbyn, how many members of that executive council were there on the spot, at the head of that insurrection. Meagher and Dillon unquestionably were there. And you are to ask your- selves, on this body of evidence, can this be answered by the wild suggestion, irreconcilable with any of the ordinary transactions of human life, unexplainable on any principles of the conduct of rational beings, and irreconcilable with any thing but the conclu- sion in the minds of honest, intelligent men, with common under- standings, that these parties had assembled there for the purpose of conducting that insurrection, for the general purpose to which it had been leading; and that Mr. O’Brien, unfortunately for himself, after he had left Mr. Maher’s, under some influence or other, was induced to go to Mullinahone, and to make that district of country his head-quarters, heading that insurrection against the Queen and Government, which has led to results at which every man must feel sorrow and regret. Gentlemen, I will not trouble you by reading the letter to the Mining Company, because his lordship will read it to you. I say it is impossible you can give it that constrained construction which my learned friends contend for. Revolution is written in the letter. A contemplation of control over the property of the Mining Company is regarded by this gentleman according to his notion of what was right. He conceived it was a just and proper thing if they did not act under his control to confis- cate their property to the national treasury. Are not those the very same sentiments expressed in the speech of March, 1848, which I would not have read if I had not the purpose of bringing it as an auxiliary to your consideration of that letter to the Mining Company ? You will find there almost the very words he used when, in March, he gave the caution to the landlords of Ireland, that if they contended with the people, and any collision should arise, their property would be carried to the credit of the national treasury. Now, gentlemen, I come to that unfortunate morning when the conflict with the police took place. I agree with my learned friend, Mr. Fitzgerald, that no man can doubt that there was a conflict between the police and the people — the people headed by Mr. O’Brien, and the constabulary enclosed in this stone and slated house. I do not care whether there was bravery or cruelty exhibited upon the one side or upon the other, or whether there was humanity in the negotiations. The object was the same with Mr. O’Brien, I think dictated by feelings of humanity which I am perfectly willing to give him credit for. He thought that he could have induced those constabulary to surrender their arms ; and if they had done so, they would have deserted their 794 SPECIAL COMMISSION, CO. TIPPERARY. colours and joined tlie insurgents. If he could have accomplished that object he would have achieved a triumph without the loss of a single life. I say, therefore, I am perfectly satisfied to reject the rest of the evidence — if it were not for the character of the witnesses on the table, because three or four of them prove the fact — as to those words that were used just before the commence- ment of the attack upon the house. But, remember, there was, according to the evidence of one or two of the police, another person on the window-stool along with Mr. O’Brien, at the par- ticular period. If you take the character of Mr. O’Brien’s mind, his education, and position, no matter what his offence and delin- quencies may have been under this charge, and give him the benefit of that — you may believe that he never did use that expression, but that ,it was used by the man who accompanied him at the window, and that the police were under a mistake when they attributed words to him that were pronounced by another. So far I agree with Mr. Fitzgerald for the sake of the character of Mr. O’Brien, which I have no doubt is very dear to him, and am willing to concede that he did not use that expression, but that some less educated man, with less feelings of humanity or discretion, pronounced those w^ords, which led to the com- mencement of that fatal conflict, so far as it affected the lives of some of the persons who fell in it. You remember the cross- examination inflicted on those policemen, and you can have the map. Perhaps there w^as, and could not be found, a farm-house of that character; a stone and slated farm-house, w^hich, when it was once taken j)Ossession of by an armed party of constabulary, enclosed by its commanding walls, was a position in which few persons could have been molested, and outside of which few persons could have been injured even by those within. It was a remarkable position, for n6 one would go to the front of that house to be shot by the police when they had a five-foot wall to protect them. And again, the principal firing was from the gable-end window, because, at the distance of forty yards or so, you will find there was a high hedge or a quick-set fence, under which the country people sheltered themselves, and the constabulary were unable to hit them, exce23t by some odd shots, while they could not hit the constabulary who were at only one end of the house. Unfortunately there was a conflict. It was an attack by the insurgents on the regular forces of the Govern- ment, and hfe was lost on that occasion. I now wish to draw your attention to a remarkable scene in this most extraordinary drama, and that is the testimony of Carroll, the mounted policeman. That there was an armed party there, commanded by Mr. O’Brien, that he was amongst them, and that the other gentlemen who accompanied him were also engaged in the unfortunate enterprise, is as plain as possible. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 795 Carroll thought he was about to be shot. He gives an account of something that would appear to be rather uneasy in the manner of Mr. O’Brien. I think it is very likely Mr. O’Brien felt dismayed and afflicted at the consequences of that engage- ment with the constabulary. , Lives had been lost ; the people were excited ; the constabulary were enclosed in this house ; and it w^as not certain how soon the conflict would have recom- menced. Carroll travels towards home, his horse having been taken from him ; and at the distance of a mile and a half from the scene of action he meets Mr. O’Brien on his horse. Mr. O’Brien was in a state of great excitement, and had a pistol in’ his hand. He sees this man, and tells him he must return with him. He presents the pistol in order to terrify him, as if he was about to shoot him. They then return, and are on the best of terms. Being anxious to remonstrate with him, the man says, “ May I speak to you?” Mr. O’Brien said, “ Yes.” And have you any reason to doubt what the man says Mr. O’Brien stated about his object and plans with respect to the country ?' You have taken notes of that evidence ; you will read it. Perhaps it is the most important testimony in the case, because it describes every thing that happened after this conflict was over. I have marked it as a most important piece of evidence, but I shall not trouble you with the whole of it. You remember the fact of his being made prisoner, that men were given in charge of him, that he was treated as if he was a prisoner of war ; and that he was kept in custody until, by the interference of some individual, he was allowed to depart home. Oh his way he meets Mr. O’Brien, and has this extraordinary conversation with him : — “ I returned back with him in the direction in which 1 left the people. He had a pistol in his hand, and a stick. He wore a cap with a gold peak. ■ I went back with him about a quarter or half a mile. Luring the time 1 asked leave to speak with candour, and he replied, ‘ Speak on.’ I then told him in my opinion it was impos- sible for him to succeed as the Roman Catholic clergy were against him, as he had seen that day.” Manifestly showing, that there had been an interference and remonstrance by the Roman Catholic clergy. “ I added, that it would be impossible for him to contend with the troops that would be brought against him. Mr. O’Brien said in reply, ‘ I have been working for my country for twenty years, and it can redeem itself if it likes.’ I said the country could not be redeemed with blood, and he said he wanted no blood.” Now that is the evidence of Carroll. You will take the whole transaction into your consideration. The only thing I have to add is with respect to the facts which took place afterwards, showing the insurrectionary character of the whole affair. Before Carroll left, and whilst the people were still in a state of great excite- 796 SPECIAL COMMISSION, CO. TIPPERARY. merit, he observed Mr. Cox’s party approaching in the direction from Thurles or Cashel, and he then hastened home. The police approach, and a renewed conflict takes place between the Govern- ment officers and the armed peasantry, which ended in the way you have heard stated. You may be sure the result of those conflicts opened the eyes of the people, and most likely opened the eyes of the gentlemen and Mr. O’Brien too. They saw it was altogether a hopeless and desperate enterprise, because they were for four days surrounded by multitudes of armed insurgents, and yet no communication arrived of a single outbreak in any other part of the land. Gentlemen, wdiether that would or not have taken place with- out those provisions which were made for the protection of the country, our properties and lives, it is for you to say. I mention that, because there ’was an observation made by my learned friend, Mr. Fitzgerald — in which he complained that the pre- cautions taken in garrisoning towms by the troops of the Crowm, * and providing for the security and protection of the people, did in themselves, as it were, operate to the disadvantage of Mr. O’Brien, by anticipating or presupposing that he was guilty of this act of high treason. 1 am sure men of your experience will throw every consideration of that nature entirely out of the case. No matter with what object the insurrection or outbreak was got up, it was the bounden duty of the Government, answerable as they are for the lives and properties of the inhabitants of this country, to take the most effectual means for securing the peace and tranquillity of the country, and to defeat any movement of the kind. Gentlemen, I thank you for the patience with which you have listened to me in the discharge of my duty. You will now hear the law applicable to the case stated by his lordship. I have submitted my view of the facts of this most important case, which I think ought to meet the common sense and ordinary understanding of any rational man. On the only issue now sent to you, consistently with the ordinary transactions of life, it would be impossible to say that Mr. O’Brien and the other parties were assembled for a private purpose, to protect himself from arrest, and that it was not to create an insurrection, which, had it been successful to any extent, might have communicated the flame of rebellion through the whole country ; and who can tell, with what melancholy consequences it might have been attended before peace and tranquillity could have been restored. THE QUEEN i-. WILLIAM SMITH O’BRIEN. 797 SUMMING UP. The Lord Chief Justice. Gentlemen of the jury, as the senior member of this high tribunal, it now becomes my duty to offer you the assistance which you have a right to ask, and which it is my duty to render you in the investigation of this most difficult and most momentous case. That it will receive from you the calm, dispassionate, and conscientious consideration which its importance demands, your conduct since you were empanelled in that box affords to me and to the public the most entire confidence. I will not attempt to impress, because 1 feel it to he unnecessary, the importance of the case, or its claims upon your patient and anxious consideration. I shall pass immediately to the discharge of my duty in express- ing a confident hope that your attention will be fixed exclusively on the evidence which you have heard; and that nothing that you knew, or became acquainted with, before you entered that box, and undertook the high trust that is now confided to you, will have the slightest influence on your determination, but that your verdict will be founded, as it ought to be, solely upon a consci- entious view of the evidence which you have heard. The charge against the prisoner is that of high treason ; and it will be my duty, in the first instance, to simplify the subject, so as to enable you distinctly to apprehend what the law is, and having understood that, to enable you accurately to apply it to the case. There are two distinct species of treason stated in this indictment. The first five counts are for levying war against the Queen in her realm. The last count is for compassing the death of the Queen. I shall at once relieve you from any consideration of the. last count, because, though there is, what in strictness of law must be considered as evidence to sustain that count, that evidence is so much more clearly and distinctly applicable to the count for levying of war, that your attention may be confined altogether to that charge — the charge of levying war against the Queen in her realm. In order to sustain that charge you must he satisfied that there was an insurrection — an insurrection with force, and that the object of that insurrection was a general object. It has been thought and contended at the bar here, on the part of the prisoner, that there has been some extension of the doctrine of high treason to cases which are properly, as it is said, not within the meaning of levying war against the Queen. 1 do not mean to enter into any consider- ation of that argument ; but whether the words of the act of Edward III. may or may not have been extended by a constrained construction is not the question now, because if the evidence which the Crown relies on, sustains any of the allegations which they adduce it to support, there was unquestionably an object of a general kind in the case before us. But whether the object of 798 SPECIAL COMMISSION, CO. TIPPERARY. the irisurrection was to effect the repeal of the Act of Union, or whether it was to effect any change in the constitution of the Government, or of the realm, or whether it was to dismember the empire, by effecting a separation of the United Kingdom, and con- stituting Ireland into a distinct sovereignty; whether anyone, or all of these were the objects, it was plainly general within the mean- ing of that term, as I before stated it to you, and therefore the levying of war for its attainment would be plainly high treason. I need not advert to authorities which have been cited in the course of the consideration of this case ; but there is one pas- sage from the judgment of my Lord Tenterden wliich is very distinctly applicable to the case before us. Pie says : — ‘‘ Insurrections and risings, for the purpose of effecting by force and numbers, however ill arranged, provided, or organized, any innovations of a public nature, or redress of supposed public grievances, in which the parties bad no special or particular interest or concern, have been deemed instances of the actual levying of war.” Gentlemen, in stating the definition of high treason, or the crime of levying war against the Queen, and in citing the words of this authority, I have probably led you to the consideration of the very distinction which it will be of importance to keep in mind, and upon which distinction the defence of the prisoner was rested. He asserts that the object of recurring to the use of force, and the end and object of all the exertions which are detailed in the course of the evidence, was this ; not to effect any general object or political purpose whatever, but that it was solely and exclusively to protect his person from arrest. And I have to tell you, that if the object of all these meetings and all this force was solely and exclusively to protect Mr. O’Brien’s person, or the persons of those who were in his company, from arrest, that he is entitled to your verdict. You will therefore at once see, that in order to understand either the charge or the defence, it will rest with you, upon the consideration of the evidence, to come to one or other of two con- clusions — was the object of this insurrectionary movement a general object, or was it a limited, particular, personal object to protect the person of Mr. O’Brien? Now, you will observe that I have stated to you the proposition that the personal or particular object must be exclusive ; because if in addition to protecting the person from arrest there was the other and general purpose, which the Crown contend for, the existence of the particular object is of no importance whatever, for the moment the general object is established that instantly becomes high treason. So that you will observe, in the consideration of the case, you will not only have to fix your attention upon that which constitutes the defence of the prisoner, namely, was the object to protect him- THE QUEEN v. WILLIAM SMITH O’BRIEN. 799 self from arrest, but you will have to say whetlier it was exclu- sively the object of all these movements and all this force. Gentlemen, the question, no doubt, is one of intention. Did Mr. O’Brien, and those who assisted him — did he intend simply to effect his own personal security from arrest — or did he intend, by this force and by these movements, an object of a general character — whether a change in the Government, or a repeal of the Act of Union, or the separation of Ireland from Great Britain ? It has been complained of, on the part of the prisoner, that this indictment does not set forth the evidence on which the Crown rely in support of that intention which it imputes to Mr. O’Brien,, and which it is bound to establish. The law does not require that it should do so ; the law does not require that the Crown shoidd state the evidence which it intends to adduce oT the in- tention. It does require the Crown to state what acts were done, and not only to state the acts which were done, but that any one or more of these acts should be estabhshed by two or more credible witnesses. And the acts which are stated in the indictment, you will find as follow : — The parading and march- ing in a hostile manner through divers villages, towns, and other pubhc highways; the erection of obstructions of cars, carts, pieces of timber, and other materials, erected and built across the highways, to obstruct and prevent the marching of the soldiers of the Queen ; the making a warlike attack upon and firing on a large body of constables, being in the execution of their duty, and endeavouring with force and violence to compel the con- stables to join them in levying and raising public insurrection and rebellion against our Lady the Queen ; the making a warlike attack upon a certain dwelling-house, in the county of Tipperary, and firing on a body of constables therein assembled. These are the overt acts. These, or one of them, must be j^roved by two witnesses ; but as to the object — which object depends on inten- tion — that is left to be disclosed by evidence, of the value and weight of which you are the exclusive judges. In the case which is now before us you will observe, that at the period at which one class of evidence is said to terminate, another is said to commence. The evidence antecedent to the actual outbreak at Ballingarry, on the 25th, is, in some respects, contrasted with the evidence subsequent to that period. The evidence antecedent to that period cannot have any relation to the apprehension of arrest ; because, during that antecedent period, no arrest was, or could have been contemplated. The evidence subsequent to that period is connected with that appre- hension of arrest ; and I need not tell you, that the latter is the period of greater importance, and that from the time this insur- rection commenced, on the 25th of July, at Ballingarry, every one of the transactions that occurred are to be minutely and critically examined. It is during that period that we are to con- 800 SPECIAL COMMISSION, CO. TIPPERARY. sider whether the acts of Mr. O’Brien, and of those whom he put in motion — his own declarations — the conduct of those who were assisting him — manifest exclusively the object of effecting his personal safety, and nothing else ; or whether, upon a review of these facts and transactions, they do not manifest an ulterior and general purpose — that is, the purpose of effecting a revolu- tion in this country. Then the question is, what was Mr. O’Brien’s intention at and after the 25th of July? The intention imputed to him on the part of the Crown is, that he then and thereafter meditated a general purpose, and that purpose was revolutionary in its character. When that is asserted on the part of the Crown, at the same time they say, that, looking to the conduct of Air. O’Brien for a period of four antecedent months, they are able to satisfy you of the existence of a revolutionary scheme, and the means and preparations adopted by him for carrying that scheme into execution. And it cannot be objected, in point of law, to the Crown, nor has the prisoner any right to complain, that during the period that intervened from the 15th of March to the 25th of July, his conduct, his acts, his speeches, and his declarations are brought forward as evidence, for the purpose of showing what his intention was. In truth, in a large portion of our cri- minal law many crimes are found to consist altogether in inten- tion ; and I know no limit to the period at which evidence is admissible of previous conduct, or declarations from which inten- tion may be inferred. If I were called on to instance a case of the most famihar occurrence, it would be the case of murder. A homicide is committed ; and, in order to show malice on the part of the person charged, declarations of ill-will made by him at any antecedent period are every day admitted, as plainly according to the principles of justice. Therefore it is impossible to complain, consistently with the existence of the rules of law on the subject, that Mr. O’Brien’s speeches and declarations antecedent to the occurrence of these transactions are now brought in evidence against him. Gentlemen, I shall now call your attention somewhat in detail to the evidence comprised in the first of those periods ; that is, to the evidence which terminates with Mr. O’Brien’s departure from Dublin. And the first of the documents, or acts, which are given in evidence is his speech on the 15th of March, 1848. Before I advert to that speech, it is due, in justice to Air. O’Brien, to state, that from all the evidence which has transpired, and been adduced on his behalf, at that period there seems to be no ground whatever to impute disloyalty to him, or any treasonable practices or intentions. It is also right to state, that with regard to the proceedings of the confederates, their rules, and their acts, as far as they have transpired, there does not appear to have been any thing revolutionary in the constitution or the objects of THE QUEEN 'i- WILLIAM SMITH O’BRIEN. 801 that body. This document is a report of Mr. O’Brien’s speech upon the 15th of March, the accuracy of which cannot be doubted or questioned : it has been proved by the Government reporter. It was a speech delivered at the Music Hall ; and at the dehvery of that speech were present, Mr. Dillon, Mr. M‘Gee, Mr. O’Gorman, jun., Mr. Duffy, and Mr. Devin Beilly, wdiose name you have so often heard. During the delivery of that speech Mr. Meagher came into the meeting. It was delivered upon a remarkable occasion. The French revolution had taken place within the preceding three weeks, and this body determined to present their congratulations to the French government upon that event. Mr. O’Brien was commissioned to prepare, and did prepare, an address to the French nation, and was afterwards one of the deputation which went to Paris, and presented that address. This is a document of considerable length, and I wish you to take it with you. Your judgment ought to be pronounced on the perusal of the entire of that document. The counsel on both sides have referred to as much of it as they thought suited their purposes. On the one hand, on the part of Mr. O’Brien, it is contended, that, taking the entire of this document, it does not manifest any treasonable purpose, or any disloyal principles ; that it contains nothing derogatory to the dignity of the Queen. On the other hand, passages have been read from it, which, if the Crown’s construction be the correct one, do show that that was not the case, but that there were actually treasonable designs there formed, and an intention to carry them into execution. Not that there was any definite plan at that time, or any period fixed upon for carrying it into execution ; but that, taking the various passages in this document as stated by the Solicitor- General, they warrant that construction of the Crown. Gentle- men, it is for you exclusively to form your opinion, and to decide between these constructions, which are of such opposite nature. I take it for granted, that as each party has referred to this speech, that some document — some copy — will be agreed upon ; other- wuse, I must go through the details of it. The Attorney -General. — No written document was proved ; a mere verbal report was given in evidence, my lord. Lord Chief Justice Doherty — My Lord Chief Justice speaks formally in that w’ay. The Lord Chief Justice. — It was proved and read at full length to you by the reporter — there can be no doubt that it is a correct report — but perhaps I had better go through it. As it is relied on, I shall point your attention to the passages generally. In the first place, you will find after stating this Mr. Whiteside. — That we may understand, and that we may not have the least discussion after your lordship closes, I may remind your lordship, that sometimes in criminal cases it is not the practice to send documents to the jury. That occurred, on 3 F 802 SPECIAL COMMISSION, CO. TIPPERARY. the objection of Mr. Justice Moore, in the case of The Queen v. O’Connell. I have no objection to all the documents being sent to the jury, if it be understood that all the documents on both sides shall go up. If there be any selection, then I object to any thing going up. The Lord Chief Justice , — I thought it might possibly have met Mr, Whiteside , — I am quite willing they should go up on both sides, if they agree to have our documents also. The Lord Chief Justice , — It is much better to read the evi- dence to the jury. Gentlemen, the first sentence expresses dis- approbation of any sort of rioting or shouting in the streets of Dublin by the persons who were members of the Confederation. He inculcates strict forbearance and order to them in going through the streets ; and he holds out to their example the con- duct of the Parisians, during the course of that revolution of which he was speaking, respecting the rights of property, who appear not to have plundered any of the public places which were accessible to them. He then says — “Now, when I met you last, I told you that I believed the hour of Ireland’s liberation was come (hear, hear). I repeat that sentiment to- night (a voice, ‘ More power to you’). I believe, conscientiously, that if we do not misuse the opportunities which will be presented to us, — provided events abroad be favourable to this country, and that I consider to be an essential condition to our success — but it is my firm conviction that if events be favourable abroad, we have it in our power to win the restoration of (he Irish Parliament in this country within twelve months. Now, you will remember that this is the first time that I have ever ventured to state my opinion as to the period within which we were to obtain success. I have told you, not unfrequently, that it was possible you might have to wait for years for its attainment, and I bade you bide your determination during that time; but I must say this, so far as I can calculate the chance this country has of success, that it will be our own fault if there is not, this day twelve month, a legislature holding its assemblages in Dublin. Provided circumstances abroad be favourable, nothing can, as it seems to me, defeat that hope except our rashness on the one hand, or cowardice on the other. I believe that that hope may be defeated by rashness. I know that in times like these a great deal of enthusiasm is naturally excited, and that there are myriads of ardent spirits who think that it is only necessary to strike a single blow to achieve immediate success. Very likely there are many present with that feeling, but such is not my opinion ; and I think it right to-night to disburden my mind fully to you. My belief is, that if an insurrection was to take place at present, it would be put down in a week. My belief is, that if it were partially successful, that, under the present circumstances of this kingdom, it would be in the power of the British Government to starve the people, by stopping the supplies of food we are now necessarily deriving from abroad. Under those cir- cumstances, I say, that it would be consummate rashness to attempt to bring this question to issue by an immediate appeal to arms. But do I, THE QUEEN v. WILLIAM SMITH O’BKIEN. 803 therefore, tell you that you ought to encourage the sentiment of cowardice (cries of ‘ No, no’)? The feeling I would wish to inspire into every man who hears me, and into the mind of every man who will read what I say, is, that it is now the business of every Irishman, ay, and of every Irish- woman too — and I tell you, and with shame I say it, that I believe there is more heroism in the hearts of Irishwomen than there is in those of the men — I say that the sentiment which every Irishman should encourage at the present moment, in his own mind, and those of others, is the readiness to die for his country, if it is necessary.” In another passage he says, — “ I have the utmost possible horror of engaging in a fruitless and an unsuccessful rebellion. I have seen in this country — I have read in this country’s history so many instances of failure arising — on one occasion from precipitation, on another occasion from division — from a thousand accidents which prudence might have controlled — that I am deeply im- pressed with the opinion, that no national exertion should ever again be made by this country until success may be considered all but certain. And therefore it is, I would implore you by the memory of those past failures, not to allow yourselves to be committed to any rash act, or any act of indiscretion, but to proceed in a regular, and in a constitu- tional course, too, for the attainment of your liberties.” That passage I heheve was dwelt upon by the prisoner’s counsel, and it is important for you to keep in your mind. There is a distinct intimation so far, of approbation of a constitu- tional course, of what is meant by their liberties. “Let us understand what we want. Now, I will not conceal from myself, and it is right that the Government should know it, that there are a very considerable number of persons in this country who wish for an organic change in the whole constitution of the country. 1 do not think it necessary to discuss whether a republican form of government, or a monarchial form of government, is that which secures most effec- tually the happiness of a nation. I believe if men will read history, they will find that nations have been happy under both forms of govern- ment; and the form of government which is best suited to a people depends very much on the circumstances of the times, and upon the genius and character of the people. We see, for instance, in North America, a most noble example of a flourishing republic; whereas, in South America, the same continent, we find, hitherto at least, the experi- ment of republics seems to have failed ; therefore, 1 am not disposed to raise any abstract question on the merits of a republican or monarchial form of government; but what I believe the great majority of the repealers of this country want is this — they want a parliament in Ireland, to make laws for Ireland — they want an Irish government responsible to that parliament, and composed of Irishmen — they want the means of protecting those institutions by an Irish army, by an Irish navy, and by an Irish national guard (loud cheers). And, provided such a parliament, and such a government, and such guarantees for its existence be given to this country, I believe, at present at least, they are contented to remain subject to the sovereignty of the British crown.” .3 F 2 804 SPECIAL COMMISSION, CO. TIPPERARY. There is then the passage which you have heard read to-day with respect to Lord Minto. And he says, — “ It is a document presented hy Lord Minto, to whom I alluded upon the last occasion of our meeting, as being engaged in a negotiation between the inhabitants of Sicily and the government from whom they had recently revolted ; the document I am now about to read to you presents the ultimatum of the Sicilians, submitted through Lord Minto to the government against which they revolted; that ultimatum I will now read for you, I take it from The Morning Chronicle of the 10th March, 1848. ‘Advices from Palermo of the 19th ultimo state, that Lord Minto had addressed an ultimatum to the Neapolitan government declaring that to give a satisfactory termination to the affairs of Sicily’ — observe, I only ask you to put in the word Ireland instead of Sicily — ‘ it is necessary first that island must become a separate kingdom independent of Naples.’” If you were to read that document inserting the word “Ireland” instead of “Sicily” it would run thus — “To give a satisfactory termination to the affairs of Ireland, it is necessary first, that island should become a separate and independent kingdom.” The Prisoner . — Aly lord, would it not be right to state the other conditions? If you substitute the word “Ireland” for “ Sicily” in the one case, you ought to substitute it in the other. The Lord Chief Justice . — “Second, that it must have a Government and Parliament of its own. Third, that the king of Naples may also be king of Sicily.” That is the whole document. Then, there is a large portion of this, in which he proposes a meeting of the inhabitants of Dublin, for congratulating the French nation. I need not go through the details of it ; it is of considerable length, and does not bear on the present subject. There is then a portion, respecting the formation of a body of three hundred. I will not read any more of it to you, gentlemen, simply because, you have recently heard it read, but would merely recall your attention to those passages which have been read at full length relating to the landlords of Ireland, the soldiers, the constabulary, and the repeal of the union. The passage about America has also been read to you. It is of considerable length, but perhaps it is better to read it again. “I am happy to tell you, also, it is exceedingly probable you will find new allies in the legislature of the Canadas ; for the result of the last election in that province has been to give a very large majority in the legislature of Canada to that party which sympathizes with Ireland. We have already had an indication of the rising spirit of America in that address — that noble address of which I read you an extract to- night. They tell you they are about to raise a flame which shall never TPIE QUEEN t;. WILLIAM SMITH O’BRIEN. 805 be quenched until it succeeds in effecting its object, in their union for their country. Now, I should consider myself exceedingly presumptu- ous, if I were to attempt to dictate to the people of America as to the course which would be most effectual in aiding us in the achievement of our liberties ; but, knowing that the government of that country is in the habit of obeying the impulse of the popular will, I submit for the consideration of our friends at the other side of the Atlantic, whether it would not be exceedingly expedient to urge their executive to provide that republic with a body, such as existed at one time in France, called ‘The Irish Brigade’ (cheers). I know that some of my friends have a very great objection to any thing that is like countenancing emigration, but when I read, day after day, of the sufferings of the poor in the county of Galway ; when I read that they are absolutely allowed by this paternal Government of ours to die in gaols, to which they have taken refuge by committing some trivial crime, to such an extent that there are at this moment not less than 900 persons in the gaol of Galway, which was built for 125 — they come there in the last agonies of death, for the sake of obtaining a meal before they die, and a coffin after their death — I say I do most devoutly wish that those men had been enrolled in an Irish Brigade in the United (States, before they had been reduced to that condition. Now, I conceive, in the event of our obtaining repeal, it would be extremely convenient to this country, to have a force of Irishmen ready disciplined and enrolled to form the nucleus of an Irish army. We have resolved that one of the elements of our national strength, after we have obtained the repeal, shall be the possession of an Irish army ; and there is nothing to prevent, as it seems to me, the men who shall have been so enrolled in an Irish Brigade in the United States, from returning to their country to serve for the defence and guardianship of their native land. Now, I confess I wish very much that circum- stances would allow us to send a mission to America on the part of the Confederation. At one time I thought of going myself ; but I am afraid that the circumstance, inasmuch as I should have to stand in the front ranks with you (cheers) — although I have no desire at all to arrogate to myself any claim to leadership, all I offer is my humble co-operation — I can scarcely take on myself to say it is consistent with my duty, in the present aspect of affairs in this country, to go to America, even for so short a time as three months, which is the least period that will be effectual ; but I think it exceedingly desirable that some able, eloquent, and discreet man, or two men, should be sent on the part of .the Irish Confederation to the United States. I cannot help thinking that such a mission would gather round it the sympathies of the whole population of that country, who would be prepared to receive and reciprocate the kindly sentiments of the two nations.” The next is an important passage. “This is an occasion which seems to me a very solemn opportunity of discharging a duty which possibly may be attended witli some incon- venience hereafter ; therefore I am desirous of performing it. Nov/ you will remember in the discussions which took place in the Confederation, that I deprecated strongly, some six weeks ago, the notion of inviting the people at that time to recur to military training of any description whatsoever, or to the consideration of military affairs. It seemed to me 806 SPECIAL COMMISSION, CO. TIPPERARY. that in the then condition of the country, the only effect of leading the people’s minds to what was called a guerilla warfare, would be to induce some of those misguided peasantry, who had been committing assassinations, to think that we encouraged them to proceed on a system of murder and crime. Therefore it was that I felt it my duty distinctly to say that I could be no party at that time in giving any such recom- mendation to the country. But the circumstances of affairs are totally different now ; and under those circumstances — under the altered con- dition of circumstances — I have no hesitation in saying, that I think it exceedingly desirable that all our intelligent young men, particularly those who have been engaged in surveying, engineering, and similar pursuits, should apply their minds to the best mode of taking strong places, and of defending weak ones. These men will probably form, if they distinguish themselves in this line, a portion of the sappers and miners of the future Irish army.” I have not only heard this read, but have read it through two or three times since it was read on the table, and I do not find in it any other passages which I think it necessary now to lay before you, nor were any other passages adverted to, that I am aware of, either by the counsel for the Crown, or by the counsel for the prisoner. You have the matter of it now before you, and you wiU say, whether or not, according to your construction of these words, they sustain the allegation of the Crown, or that of the prisoner. It appears that Mr. O’Brien proceeded to Paris ; and the next evidence which was given was the speech which he made on his return, on the 15 th April, at the Music Hall in Dublin; at which were present Mr. Meagher, Mr. Mitchel, Mr. Doheny, Mr. M‘Gee, and numerous other persons. A great deal of this speech has already been stated to you — passages which show that he had been in intercourse with persons in Paris ; and I don’t think there are any passages which have not been recently read to you, which are important to lay before you, except one, which relates to Mr. O’Gorman. He says — “ I took the liberty of suggesting to my friend Richard O’Gorman, who was one of our deputation to France, that it was desirable he should remain in Paris for a few weeks, at all events, until the trials should take place. I did so, in order that we might have amongst us one who should perfectly know all the resources which are available at Paris (cheers). I think we can promise for him, that his time will not be w^asted in frivolous pursuits in that city — in that metropolis of pleasure. I believe he has already commenced his military studies (cheers). He has had the good fortune to make the acquaintance of some very able men, and very brave men, natives of this country, who are at present in the national guard of Paris (cheers). He has had the good fortune to make the acquaintance of several distinguished Irish officers in the French army. He has had the opportunity of being placed in communica- tion with several of the leaders of the democratic clubs in France ; and if be should think it desirable, be is able to present bimself at any of THE QUEEN WILLIAM SMITH O’BRIEN. 807 those clubs to awaken the sympathy of the Parisian population in favour of this country (cheers). I think I have said enough (cries of ^ No, no ’) to show you that the counsel which I gave him, that he should remain — in which opinion, I beg to say, all the members of the deputation unani- mously coincided — a few weeks at Paris. I think I have shown enough to satisfy you that that advice was not altogether misapplied. And now I trust you will allow me to add for his benefit and instruction, some additional advice on my part, which is, that he should take care not to commit himself in any way that should place him within the power or operation of the English Government. There is no necessity whatever for sacrifices that produce no result ; and amongst your ablest and most efficient men I regard Mr. Richard O’Gorman, jun. I there- fore trust he will not come home to be put into prison on his arrival.” Then he proceeds, I believe, to the political topics, to detail proceedings in the House of Commons; and I do not think there is any thing more, that is important for me to trouble you with. isow, gentlemen, these speeches are of vast importance ; they show the then state of mind of Mr. O’Brien, and they certainly indicate the intention to take some measures towards the attain- ment of the object which he had in view. Gentlemen, the next document which is given in evidence is one of the several which were found in the portmanteau. Mr. Whiteside . — Before leaving the speeches will your lord- ship he good enough to mention one fact to the jury — that it appears that the speech was prosecuted for sedition, and the jury did not agree. The Lord Chief Justice. — Yes, so far as regards the p)resent case. The Attorney-General commenced a prosecution against Mr. O’Brien for that first speech ; that prosecution has not ter- minated, but there can be no doubt of the right of the Crown to use that speech in evidence on the present occasion. No legal objection is made as to its admissibility, and it is perfectly com- petent to you, having heard it, to act on it, as legitimate evidence in the case. In point of fact, however, as 1 stated, it is the subject-matter of a pending prosecution. Gentlemen, the next document in order is the copy of the letter from Philadelphia, which was found in the portmanteau, and it is of importance that you should, before you decide on the effect of this document, be satisfied upon the evidence that it is to be used at all against Mr. O’Brien. Upon a charge of this kind papers found in the actual possession, or upon the person of the party charged, can be given in evidence. And it is insisted, on the part of the Crown, that they have done that which ought to satisfy you that this was, in fact, in the possession of Mr. O’Brien. We allowed the documents to be read, but we. reserved for your consideration the question — whether the circumstances attending the finding and the production of these papers ought, 808 SPECIAL COMMISSION, CO. TIPPERAIIY. in your judgment, to have the effect of fixing Mr. O’Brien with the possession of them? Because, if you should be of opinion that he was not to be considered as in possession of them, you ought not to attend to them. The evidence, wdth respect to these papers, is this — I do not mean to read it in detail to you, but I shall state its results, for that will he enough to enable you to come to a conclusion upon it. Mr. O’Brien w^as arrested on Saturday, the 6th of August; when in custody, his keys were delivered to General MacDonald, and they w^ere transmitted by General MacDonald to Dublin, and in Dublin, at the Castle, they were locked up in a drawer or box. He, after his arrest, applied to Mr. Jones for his portmanteau, and he stated that it was in the possession of Mrs. Doheny, at Cashel. He wrote a letter, which he gave to Mr. Jones, Mr. Jones having stated that there must be a letter, as his messenger must be a policeman, and he promised to procure the trunk for him. Mr. Cox, at Cashel, received on Sunday, the following day, a trunk — that was Mr. O’Brien’s trunk — he received it at Cashel, from a person of the name of Norton; it was not received from Airs. Doheny: and Norton w'as examined, and his servant boy w^as also examined, and this is the effect of the evidence of both : — that the boy had brought it about four days before to Mr. Norton; that it remained, with other property of Air. Doheny ’s, at Norton’s, and the boy stated that he had brought it from a limekiln in the garden of a pawnbroker, and that he himself had seen it about half a day before, and had originally brought it there when he was taking down furniture in Air. Doheny’s house. There is no doubt whatever that that was Air. O’Brien’s portmanteau, for when the key and the portmanteau w^ere brought to him he received both; and there is no question w^hatever but that the portmanteau w^as his. But it is contended, on the part of the prisoner — and this is a point to which your consideration should be directed — that that portmanteau was not produced under such circumstances as to make its contents, and the possession of its contents, equivalent to actual possession by him; for they say that the portmanteau was out of the possession of Air. O’Brien, and it might have been opened by any body while it was out of his possession and before it came into the possession of the Crown, or while it was in the possession of the Crown it might have been opened and these papers placed in it. Now that is in the nature of things perfectly possible; but it is for you to consider, that during the entire time that trunk w^as in the possession of the Crown, the trunk and its contents are satisfactorily accounted for, and no impu- tation of tampering with its contents can be made. It is for you to say whether you have any rational doubt that these papers w^ere in it at the time Air. O’Brien parted with it. On what ground can you say they were not? AVhat fact of the case THE QUEEN i;. WILLIAM SMITH O’BRIEN. SOO warrants suspicion, or, much less, leads to that result? It is then again said, that the existence of the papers before Mr. O’Brien’s arrest is not proved. It is perfectly plain, with respect to the letter of Mr. Duffy, which bears date Saturday, that must have been in existence at the time Mr. O’Brien deposited the trunk with whomever he left it in the town of Cashel. So that having the facts before you, and having the question which I have propounded to you, you will say whether you think the contents of that are satisfactorily traced to the possession of Mr. O’Brien. There is also the letter of Mr. Meagher, which must have been written a considerable length of time before the Philadelphia address, dated the month of May. All these are evidence that they did exist before his arrest. If you are satis- fied they were put into his portmanteau by Mr. O’Brien, then, of course, you are to visit him, so far as the nature of things justifies you, with the possession of these documents and with the construction that may naturally arise from them. But, as I said before, if you think Mr. O’Brien is not, upon any reason- able doubt you may entertain of the question I have suggested to you, fairly chargeable with the possession of these papers, you should exclude them altogether from your consideration. But if you think, on the other hand, that he is satisfactorily fixed with these, just as much as if they were actually found on his own person, and that there is no reason to doubt that he put them there and kept them there, then you will consider how far they ought to bear on the charge which you are at present investi- gating — that charge being, that he, at that time, from his corres- pondence with other persons and communications made to him, harboured and entertained the treasonable intention which is imputed to him by the Crown, namely, the project of a revo- lution. The first of the documents, in point of date, is the letter from Philadelpliia. It is dated the 10th of May, and must have been received, probably, in the ordinary course, about three weeks afterwards, and it says — “ At a large meeting of citizens held in this city on the 10th of last March, (a report of which we have already transmitted to you,) an executive committee, consisting of twenty-two active, zealous, and respec- table persons, were chosen to take into consideration Irish affairs ” So that, according to this, there is a body there acting on the subject of Irish affairs. “ and to adopt such measures as, under the circumstances, might appear to them most proper and expedient, to lend efficient aid in the present emergency to the Irish people. Their body has now fully completed its organization, and in selecting its sub-committee we have been accredited a committee of correspondence.” 810 SPECIAL COMMISSION, CO. TIPPERARY. So that here is a body formed in America, having been lately appointed for the purpose of managing Irish affairs and carrying on correspondence on the subject. “ During the last session of the executive committee a resolution was unanimously adopted, instructing us to open a communication with the people of Ireland, through you, one of the most trusted and honoured patriots of the country, and to say to them that we enter fully and intensely into the spirit of their proposed struggle with theifr oppressors ; and that we are willing and prepared to co-operate with them, as American citizens, in any mode they may think proper to designate, provided such mode be within the scope of our ability and our duty as citizens. “ We are at present instituting a course of proceeding, with a view of raising funds, not only in this city and county, but throughout the State of Pennsylvania, among the friends of the cause. We propose to apply such funds as we may raise in the most available manner, or such manner as the Irish nation, through their agents, may point out. We have every reason to believe, from the tone of public opinion here, and from other considerations, that our efforts in this respect will be crowned with unusual success. Societies in favour of Irish liberty are springing up in all directions throughout the universe. / “We should be happy to hear from you somewhat at large on this subject, and to know in what manner we can, in a practical point of view, act most beneficially to Ireland at this important and interesting crisis.” This is the paper found on Mr. O’Brien, and this is a commu- nication from a foreign country, and states that means and exer- tions will be used for the purpose of forwarding the cause of Irish liberty. It is for you to consider whether that means any constitutional effort, for the purpose of obtaining, by constitu- tional means, any species of reform ; or whether it has any reference to proceedings of a revolutionary character. What- ever may have been the intention of those resolutions, or the person to whom they were addressed, it appears very plainly from the following letter, found hlso in the same way, that Mr. Meagher was about to proceed to America ; and you are already aware, in one of the former speeches, a mission to America is distinctly alluded to by Mr. O’Brien. “ Then I come to tell you about the American trip. I am off for New York (God willing) on Saturday — ‘ ‘ ‘ O’er the glad waters of the dark blue sea, My thoughts as boundless, and my soul as free.’ “ What to do 1 To raise money, to invoke sympathy — to,” &c., &c., &c. These two documents, connected with the declaration of an intended mission to America in the speech of Mr. O’Brien, are most important for your consideration, as showing what was the object and tendency of his mind at this period. THE QUEEN v. WILLIAM SMITH O’BRIEN. 811 The next document is an important one, and that is the letter of Mr. Duify. Gentlemen, taking each of the documents by itself, they are by no means devoid of importance, but it will be for you to consider them altogether ; because, in a case of this kind — I may say this of every part of the case that you have to consider — it is not from isolated or detached facts that you are to derive your inferences ; you should look at the whole mass of the evidence, and see whether they admit of, or suggest, the conclusion which is contended for by one or other of the parties. This is a letter dated “ Saturday.” You have heard it read before, but it is of great importance, for it shows in the mind of the writer, with regard to Mr. O’Brien, what the position occu- pied was, and what was the nature of the movement then con- templated — whether it was to obtain repeal by constitutional means, or whether the object was revolution or rebellion. “ I am glad to learn that you are about to commence a series of meetings in Munster. There is no half-way house for you. You will be the head of the movement — loyally obeyed ; and the revolution will be con- ducted with order and clemency, or the mere anarchists will prevail with the people, and our revolution will be a bloody chaos. You have at present Lafayette’s place — so graphically painted by Lamartine — and I believe have fallen into Lafayette’s error, that of not using it in all its extent and resources. 1 am perfectly well aware that you don’t desire to lead or influence others — but I believe with Lamartine, that that feeling, which is a high personal and civic virtue, is a vice in revolutions. One might as well, I think, not want to influence a man who was going to walk on thawing ice, or to cross a fordless river, as not to desire to keep men right in a political struggle, and to do it with might and main. If I were Smith O’Brien I would strike out in my own mind, or with such counsel as I valued, a definite course for the revolution, and labour inces- santly to develop it in that way. For example, your project of obtaining signatures to the roll of the National Guard, and when a sufiicient number were procured, and not sooner, calling the Council of Three Hundred was one I entirely relied upon, but it has been permitted to fall into disuse, and could scarcely be revived now. The clubs, however, might take the place of the National Guard; and the proposal in your letter on union of a definite number of clubs being formed would just suit as well, if it were vigorously and systematically carried out, each day adding an item to it, and all the men we could influence employed upon it.” So it vrould appear from this that the plan was the formation of great bodies of persons to effect their object of reform through the medium of the clubs. “ Forgive me for urging this so anxiously upon you, but I verily believe the hopes of the country depend upon the manner in which the next two months are used. There is not a town in which you could not find a band of missionaries to organize the neighbouring counties. Every club has its active men fit for this work, and it is only by applying all our force to it that we will succeed.” 812 SPECIAL COMMISSION, CO. TIPPERARY. This is, as you observe, a letter from Mr. Duffy to Mr. O’Brien, found in Mr. O’Brien’s portmanteau. Whatever he the value of it, it is plain it contemplates a state of revolution, and considers Mr. O’Brien as the person w^ho is to be at the head of it. The next evidence in point of order are those events which are deposed to by Dobbyn. Now, Dobbyn’s account of himself is one which has given rise to objections to the reception, or rather to the belief, of his testimony. And it is contended that Dobbyn comes forward before you as an accomplice, and that you ought not to attend to his evidence unless he be confirmed in some material and important part. If you take Dobbyn’s state- ment to be true he does not stand in the light of an accomplice. An accomplice is a person who actually engages in the illegal act which he comes forward to depose to ; but he did not, according to his own statement, become a member of this society with any intention of actually carrying forward or executing its objects or plans. Pie became, he says himself, a member for the purpose of “ counterplotting” their plotting ; in other words, he should rather be called a spy than an accomplice. Whether you regard him in the one light or the other, my direction to you would be, scrupulously to examine the evidence, and see how far it is accredited by the various matters with which it stands in connexion ; and first of all, to examine him by himself. He represents himself to have been present at three meetings, most important meetings, with reference both to time and the nature of the business to which those meetings refer. He says he himself had become a member of the Red-hand Club which met at Constitution-hill in the city of Dublin ; that he attended the three meetings to which he deposes, and that he did so either at the instance of a person whom he does not name, or that having acquired his information, or communicated with this person, he from time to time attended the meetings at his instance. In the first instance the Court was of opinion that it could not compel him, and ought not to compel him, to reveal that person’s name ; but it is perfectly plain, in the sequel, that he was privileged and excused from naming him, because the person with whom he communicated turned out to be the medium of communication with the Government itself — in truth, he w^as acting as, and on behalf of, the Government. It was quite plain under those circumstances the name was not to be disclosed. He represents a very remarkable transaction. On the third of the meetings there was a ballot for an executive committee ; he describes all the persons who met, twenty-nine or thirty in number ; the balloting first for the number of which the com- mittee should be composed, and afterwards of individual members; and he says there were twenty-nine or thirty balloting papers. That took place on the 21st of July ; and on the 28th, at a distant place, they found the balloting papers produced upon the table, THE QUEEN y. WILLIAM SMITH O’BRIEN. 813 which, although not particularly identified by the witness who found them, are proved to be found in the lodgings of Mr. Lalor, ■^’ho was one of the executive council elected, in a bag in the room in which he was sleeping. He was one of the candidates, a disappointed candidate. I must read Dohbyn’s evidence through. Now, there can be no question whatever that that evidence has been properly received. The question, gentlemen, whether you believe it or not, is a matter altogether for your consideration. If you have reason to believe that he is telling a story of his own fabrication, and that no such transactions occurred as he represents, you should dismiss the evidence altogether from your minds ; but if you find that that evidence is reasonable and probable by itself, accredited by the acts of those persons, and by the acts of Mr. O’Brien himself — if you find it consistent with those acts, — if you find he is telling that, which in the ordinary nature of things would be part and parcel of the same arrangement, to a portion of which he deposes, then it will be for you to consider whether he is entitled to your belief. On the other hand, if you think he is a spy — that he went to meetings, and had either partially, or in the whole, invented the story detailed to you, you should dis- charge the whole from your minds, and not give credit to any part of it. It is very important to remark, that if none of these meetings, which were all deposed to last Saturday, ever took place at diflPerent houses, except from his statement, that such statement could be contradicted. That there was a club in Dublin called the Bed-hand Club is perfectly true. Two policemen proved that the sign of the house, the red hand on the blind of the win- dows, was exliibited there, and that they saw persons going in and out as members of that club ; so that, so far, his testimony was unimpeached by the suggestion, that there was no such body. He having been examined so long ago as last Saturday, and deposing to a series of transactions in three different places, three months ago in the city of Dublin, there was ample means of contradicting him if he was not telling the truth. Mr. Whiteside . — My lord, with the greatest deference I submit, pending a trial which it is impossible to say when it may conclude, that the prisoner is not to be affected by not producing all the evi- dence that might be produced if he had the list of witnesses before him. I did not know what we might have to speak to. The Lord Chief Justice . — The very authority you cited shows exactly how the law is on the subject: — “ Undoubtedly the proof of the case against the prisoner must depend for its support, not upon the absence or want of any explanation on the part of the prisoner himself, but upon the positive affirmative evidence of his guilt that is given by the Crown.’’ Then folloAVs this which was not stated before : — 814 SPECIAL COMMISSION, CO. TIPPERARY. “ It is not, however, an unreasonable thing, and it daily occurs in in- vestigations, both civil and criminal, that if there is a certain appearance made out against a party — if he is involved by the evidence in a state of considerable suspicion, he is called upon for his own sake, and his own safety, to state and bring forward the circumstances, whatever they may be, which might reconcile such suspicious appearances with perfect inno- cence; and therefore the learned counsel of the prisoner, although he entered his protest against his being necessarily required to make such a statement, proceeds to say, that the case of the prisoner at the bar was one that was perfectly innocent — that is, perfectly innocent so far as regards the crime of high treason.” Now, I do not think it is by any means to be expected, that it is a requisition that you have a right to make, that because this man was examined last Saturday, that therefore the prisoner is bound now to show that he was telling what was not true. I do not mean to assert at all that there was that obligation on the prisoner, but I say there was that possibility ; and I say more, in the absence of any evidence to the contrary, if you beheve the story this man tells, and you find it accredited by other parts of the transaction, there is no reason why you should not pay at- tention to his evidence. Mr. Whiteside . — In that case, which your lordship has cor- rectly cited, the prisoner had the hst of witnesses who Avere to be examined against him eleven days before trial. My client had no such opportunities given to him. The Lord Chief Justice . — That is perfectly true ; and that which the prisoner possesses here, would have enabled him to contradict this witness if he thought proper. But I confess, that after the consideration of the subject I should be very much dis- posed to see and advise you to examine minutely the testimony of this witness ; and see whether there is not, from the story which he tells, some presuruption, looking at the other facts of the case, that it is true in its main particulars. Gentlemen, Dobbyn’s evidence 1 shall read for you word by word. It refers to three distinct dates. He says he was a member of the Red-hand Club, which was a branch of the Cur- ran Club; that this club met on Constitution-hill. The Curran Club met in Capel-street. He resided in Linenhall-street, and had been an engineer ; was latterly a law clerk. The club-house was marked with a red hand on the blinds of the windows. There were thirty members of the Red-hand Club ; and in July the members of the Curran Club had increased to five hundred. He says Mr. Meagher and Mr. Dillon were members of this club — that is, the Curran Club. On the 15th of July he had been at a meeting of the Red-hand Club ; and the council of the Confederates held a meeting in D’Olier-street, and that he went there that evening about nine o’clock. He went to attend a meeting of the council, and he saw Mr. O’Brien there. He says Mr. O’Brien THE QUEEN i;. WILLIAM SMITH O’BRIEN. 815 was at the head of the table, and Mr. Halpin was sitting at the foot ; one hundred persons and more were assembled. Mr. O’Brien had a book in his hand The Prisoner . — A what? The Lord Chief Justice . — A book in his hand, from which he called out the names of the clubs, and their representatives; and as he called out, each of the persons w^ere asked the numerical strength of the clubs, and reported its strength. He says the Hed-hand Club w^as not called. He says Mr. O’Brien asked each representative of a club whether his club was organized ; whether it was divided into sections and sub-sections, and officered. Three hours were occupied in this process. He says he went occasionally to the Confederation council ; he saw there the dif- ferent members of the council. The above meeting w^as to fix a meeting for the next day at Ennis’s yard, at Kilmainham, in order to inspect and ascertain the actual strength of the armed clubs and their appearance. Mr. O’Brien asked if the walls of the yard were high, and had sufficient gates to prevent the entrance of any except the clubs. Mr. O’Brien during that evening stated to the effect, that the object of their organization was to effect the independence of their country. He says four o’clock was the hour fixed for meeting the next day; and Mr. O’Brien advised them to come in sections of five, in order to avoid contact with the authorities. He says the meeting did not take place, the ground having been pre-occupied by the pohce. Mr. O’Brien said he had to give an encouraging account of his tour through Cork, where he said there had been an inspectidn. And you wdll find in that particular the statement is consistent with what occurred ; for Mr. O’Brien said, according to his speech which you heard read just now, that he had been making an inspection in Cork ; that he had inspected the Cork clubs, and they were orderly, and well organized, and as fine a body as any in her Majesty’s service. He says there was a conversation about their being sufficiently armed ; and questions were asked about the arms, and they were replied to by Mr. O’Brien. Mr. Troughton gave an account of an organization by him in England; and he said that there were two towns in which there were five hundred armed men ready to come over when the insurrection should break out ; that they had two swivels ready to come over. He says that aU this report was addressed to Mr. O’Brien, and that there was a general silence when the person was speaking; every person present could hear what was said. Troughton said there was a difficulty in getting the swivels over. Mr. O’Brien then said that he had been to Bantry, and ho had met a boat’s crew who had facilitated his meeting, so that he had been able to meet about five thousand at once ; and he said that each of the clubs in Dublin should have a boat to answer that or any other purposes. Duffy was at this time in prison. Mr. O’Brien spoke for a con- 81G SPECIAL COMMISSION, CO. TIPPERARY. siderable time on the organization necessary to effect the object they had in view, and said that it was not then sufficiently perfect ; at least, he had not inspected Ireland so as to have proof positive. As to the date of the insurrection, he stated that he would ascend the gallows, rather than any one should lose his life on his account by a premature movement. There was a conversation about the rescue of those in gaol, and all cried out that if they w^ere convicted they would rescue them. Mr. O’Brien’s above reply, with respect to the premature breaking out, was as well with respect to the insurrection as to the rescue. Then he goes on, and states another meeting on the 19th of July, the day after the proclamation under the act, by which all persons were prohibited from having arms except licensed. He says there was on that day, in the middle of the day, a meeting of the representatives of cluhs and of the council of the Con- federation. The meeting was greatly crowded. Mr. O’Brien was there. He cannot say who was in the chair. The object of the meeting was to defeat the proclamation. Brennan proposed an immediate insurrection, and said that the people would not be in a better position in harvest time, and would be dispirited by delay, while the Government would take up all the arms which they could. Dillon moved an amendment, that the people should conceal their arms, and should give passive resistance to the execution of the proclamation. Mr. O’Brien said a break-out at that time would be premature ; and then M‘Gee proposed lots should be cast to see who should advise the people that night at the Music Hall to resist the proclamation. Richard O’Gorman spoke, and told Dillon his amendment was too general. It was then stated that Doheny was organizing the people in the country. He says all this occurred in Mr. O’Brien’s presence and hearing. DRlon’s amendment was put twuce ; there was a small majority for Dillon’s amendment — the minority w^ere greatly dissatisfied. Brennan said you will halt between two opinions ; if you wait to depend on American or French assistance, you might as well wait till rifles are forged in heaven, and angels draw the triggers; you have the elements of success in yourselves. M‘Gee said, you have been encouraging the people to arm and organize, and now advise them to resist, and then proposed as above stated, that is, who should advise the people to resist ; he said he would be one of them. He says he has seen members of the Curran Club armed with muskets and pikes. He said that Lawrence Hanlon was a handy man, a member of the Red-hand Club; saw him preparing arms, both guns and pikes ; he bought barrels, locks, and stocks, and put them together for 13^. Qd., charging the clubbists something for his trouble : the different parts of the guns he got at reduced rates. That is his account of wdiat occurred at the meeting of the 19th, in the morning. The next relates to another transaction — that of the 21st of July, which THE QUEEN i- WILLIAM SMITH O’BRIEN. 817 was at night. He says there was a meeting of the same body in tlie same room in the evening, and Mr. Dillon was in the chair. He said that at the meeting of the 19th, in Mr. O’Brien’s presence, an agreement had been come to that there should he a meeting next day but one, to consider about the management of the clubs, and that every one in the room on that occasion heard of tlie appointment. He says that Dillon, Meagher, M'Gee, M^Dermot, and Lalor were there ; Halpin was there also. The meeting of the 21st was an adjournment of the meeting of the 19th, for the formation of a sub-committee. He says that Dillon was in the chair on the 21st. Several men were present, who were not members of clubs, and who had no right to he there ; and different members objected to proceed to the election of the executive council, until these persons, who had no right to be there, left the room. Dillon called out the names of the representatives, and they retired to, and remained in, an inner room till all the others went away. Dillon, in the meantime, had remained seated in the chair, and when the clubbists returned from the inner room, Lalor produced a letter, and they proceeded to elect an executive council ; and at first, some were for seven members, and some were for three, and some were for five. The former council of the Confederation had been constituted of twenty-one. Each of these suggestions for three, five, and seven, were put to the vote, and ultimately it was agreed that five should be the number. Then there was to be a ballot, and each of the persons present put a slip of paper with five names upon it into a hat ; and many wanted to elect Mr. O’Brien, but Dillon objected to his election, as he could do more good organizing in the country, than working with them. Twenty-nine or thirty balloted, and he himself. Each wrote the names of the five he voted for. The balloting papers were removed by two scrutineers into the next room ; and they returned, and declared the result of the ballot : Dillon, Meagher, O’Gorman, and M‘Gee — Lalor and Devin Reilly had equal votes, and on a second ballot Devin Reilly was elected. Then occurred a very important transaction: — Lalor and M‘Dermot proposed that each of the persons elected should give a pledge to have the insurrection at the latest by the 8th of August ; they said that the prisoners were in gaol, and must be liberated ; on which Meagher said he would not take the pledge, but would do all in his heart and soul to hasten the insurrection, even before the 8th of August ; Dillon said, so help him God, he would do so also ; and M‘Gee said he would, by speaking, writing, and action, hasten the insurrection. They remained until a quarter to twelve, and he views a balloting paper which he wrote, and he states that he viewed another paper which he saw, signed by James Lalor, and tw^o other papers, one by O’Higgins, and another, I think, by M‘Dermot, and in the handwriting of those two. He never saw these papers from the 21st of July till within the last 3 G S18 SPECIAL COMMISSION, CO. TIPPERARY. tliree days, and they were then in the possession of the Crown- Solicitor. He is then cross-examined and states, that he was a member of the club from the 16th of June ; that he did not speak there. He says there were certain rules of the clubs, and all, whether members of the Confederation, or not, were admissible. He was a member of the council ; that there was a large number of representatives of each club ; that he went on the 19th, in con- sequence of a message that was brought to him, to the club that he was attending, that is, the Red-hand Club. There was no resolutions after he was at the club. Dillon was not in the chair ; resolutions stated were not entered into ; that is, it appears there were resolutions entered into on that day, and they cross-examine him as to whether these resolutions were entered into in his presence, and he utterly denies that they were. He says, the reason why his club was not called was, because it was a branch. He says he never spoke to Mr. O’Brien. He says Mr. O’Brien desired them that night to leave in sections of five, and they did so going down stairs. He cannot say how many flights of stairs, but that it was on the first floor they were. He could scarcely get into the room at first, but at last he got in through the crowd. He says he heard of the meeting of the 15th of July at noon ; that he attended but one meeting on that day, and that was in the evening. He says there were some groups in the room talking amongst themselves, and one would occasionally speak for the rest. He says the Confederation had ceased a fortnight before, and was succeeded by the League. He never saw the rules of the League. The meeting of the 1 9th was to defeat the ends of the proclamation. He cannot remem- ber the words of the requisition ; did not know a detective ; will not tell who told him of the meeting. He gives as his reason, lest he might be assassinated if he were known by the members of the clubs. He is asked to name the person who informed him of the meeting of the 19th, and declines to do so. He says he met that gentleman, his informant, in Sackville-street, casually, on the day of one of the meetings, and this person reminded liim of it ; he is a gentleman of character and hereditary loyalty. He says the meeting took place about two o’clock ; stood in the crowd ; that many were by ; he got in easily, and did not speak a word. He saw his friend that night and told him what he heard. He says that this gentleman is the medium of his com- munication with the Government. He says that Mr. O’Brien did not vote ; cannot say how many were there. He wrote a report of this proceeding to the same person ; saw the members of the Curran Club going into Capel-street ; had no corres- pondence with the police ; the Curran Club had arms about ten o’clock at night ; he saw pikes with his own men ; saw men of the Curran Club armed before he became a member. He says THE QUEEN v. WILLIAM SMITH O’BRIEN. 819 Hanlon made arms, and the police visited his (Hanlon’s) house, but he had removed the arms. He is then examined as to the different objects, and he says, there were five objects, but they were all for the same general purpose. He says that O’ Gorman and Reilly both spoke of the intended meeting of the 21st ; tliat Mr. O’Brien was not at the meeting of the 21st, nor a member of the clubs. The Confederation had ceased in form, as he says, but still continued to exist. The meeting of the 21st ended at twelve o’clock at night. Dillon objected to Mr. O’Brien’s election on the executive, on the ground before stated. Father Kenyon was not elected. Mr. Duffy had written a letter that Fathers O’Malley, Kenyon, and another priest, should be elected. It was resolved unanimously not to elect the priests, as it was a council of war. Mr. Whiteside. — Before they went to the ballot. The Lord Chief Justice. — Before they went to the ballot. There is an observation made on that, that Kenyon had seven votes, although they agreed that no priest should be elected, and O’Malley had one. That amounts to this, that notwithstanding what they resolved, they voted for those two candidates. How far that is an explanation of it, it is for you to say ; whether they voted unanimously afterwards, when there were seven votes given for one of the persons. Seven of the papers contained the name of Kenyon. He himself was proposed by Hanlon. O’ Callaghan was secretary of the Red-hand Club, and has gone to America. Is a Protestant. He began life as a surveyor, in Galway, two years ago, under the Board of Works; was a law clerk of Mr. Montgomery, up to eight or ten days ago, at fifty pounds a year. Mr. Montgomery has another clerk in his service. Mr. Montgomery was not the person who sent him to the meet- ing, but he was sent in June ; received and stipulated for nothing, but he expects protection. He went in to counterplot and defeat their ends ; never swore an information ; two days before he was served with a subpoena ; knows Halpin ; heard of his arrest, but did not see him since the 21st. I have read all the particulars of his evidence to you, and perhaps it may be as well to break off here. If you look over your notes between this and any hour to-morrow morning Mr. Whiteside. — There is one little fact which your lordship has omitted, which is, that Mr. O’Brien’s name was only on one paper, and that was struck out. The Lord Chief Justice. — Yes, that is exactly so ; it appeared only on one paper, and that was struck out. Mr. Whiteside. — Yes, my lord. A Juror. — He said when his club was called over, it was not called the Red-hand Club. How comes it that he has a vote in the council ? None but those who represented a certain club 3 G 2 S20 SPECIAL COMMISSION, CO. TIPPERARY. had a vote there. How did he get in at all ? I do not see how that was. The Lord Chief Justice. — He was there on the 21st; there was an election on the 21st. A Juror. — Yes, iny lord. The Lord Chief Justice. — And the 15th was the day of the representatives of clubs. The day of the representatives, or the persons representing the clubs, was the 15th, and those are what are called the representatives of the clubs. They were not, as I understood, exclusively so. A fTuror. — How did he become so if he was not acknowledged on the 15th ? The Lord Chief Justice What he says is this — “ I was not acknowledged a representative of a club. My club is a branch ; I was, therefore, not acknowledged as the representative of a club; but I was a member of the Committee of Council.” A Juror . — The council, we understand, was composed of the presidents of the clubs. The Lord Chief Justice. — Gentlemen, will you look over your notes in the meantime, and see how that is. Mr. Whiteside. — I will tell your lordship what we have on our notes — that it was ordered that all but the representatives of the clubs should leave the room. My Lord Chief Justice has that ; and I have now read it to you. A Juror. — So I have it on mine. The Lord Chief Justice Just wait a moment, I will see that — “ Dillon was in the chair on the 21st. Several men were present, members of clubs, who had no right to be present; and several members objected to proceed with the election of the executive council till they left the room. Then Dillon called out the names of the representatives who retired to, and remained in, an inner room till all the others went away. Dillon had remained seated in the chair.” The Prisoner. — Alay I be allowed to call the attention of the jury to one remark that fell from your lordship, with respect to the possibility of bringing evidence to contradict what has been stated by this witness. The jury must know that every member of the council of the Confederation, or any who have taken a leading part in the management of the council, have been hunted down by the Government, .and are now endeavouring to protect themselves from arrest. Therefore, it is utterly impossible to induce any of them to come here. A Juror. — It does noi appear whether Dobbyn says he is one of those who were allowed to remain, or was one of those who were turned out. THE QUEEN WILLIAM SMITH O’BKIEN. 821 The Lord Chief Justice . — He voted. A Juror . — Then he must have been one of the recognised members of the clubs, because all those were Tvho were not turned out. Another Juror . — And he before said he was not — on the lirstday. The Lord Chief Justice . — You have taken full notes, gentle- men, and you wiU look at them between this and to-morrow morning. [The Court was then adjourned until nine o’clock the following morning.] CljirtmUfj Bait* Saturday, October 7, 1848. [The names of the jury were called over, and they all answered.] The Prisoner . — Before your lordship resumes your review of the evidence, perhaps you will permit me to say a few words in explanation of an expression that fell from me on a former day, and which, I understand, has given pain to a very respectable gentleman, Mr. Hodges, the Government reporter. Your lordship may recollect, that I stated that he had been treated at every meeting as a guest, not as a spy. Now what I wished to intimate was, that I thought he dealt rather unfairly by us in appearing as a Crown witness, prepared to swear that our speeches and de- clarations were seditious and treasonable. We thought from his representations to us that he appeared in his official character of a Government reporter, prepared to swear to his notes ; but I did not mean to say that he ever concealed it, or ever appeared in a disguised character, which most unquestionably he never did. I do not, therefore, consider him in the character of a spy ; and I wish to withdraw that expression. The Lord Chief Justice . — When we separated last evening, I had read over to you the evidence of Dobbyn, who is, unques- tionably, an important witness, and with respect to whose credit it will be for you to decide. I do not intend to enter into any details of those matters by which the Crown insist that his testi- mony has been comfirmed and corroborated; — I allude to the proof of the existence of the Red-hand Club; and I allude also to such corroboration as the balloting papers afford. You have heard what I have to urge on the subject, and what has been urged on the part of the Crown, and you will observe, that in these particulars whatever we say is simply for the purpose of directing your attention to the subject, and not of controlling your judgment in any degree whatever. It is for you, and you exclusively, to say whether to any, and what extent these circum- stances corroborate his testimony, and entitle him to credit. 822 SPECIAL COMMISSION, CO. TIPPERARY. But one of the jurors having asked a question, which was one of vast importance, and which relates to a particular part of his evidence, my learned brethren on the bench are of opinion, in which I entirely concur, that I ought again to read my notes of his evidence to you, and you will see as you go along whether or not, as detailed, there is any ground for the imputation which the discrepancies suggested by the juror would naturally suggest. Now, his testimony is this: — He says he was a member of the Red-hand Club, which was a branch of the Curran Club ; it met on Constitution-hill ; the Curran Club met in Capel-street ; the witness himself resided in Linenhall-street ; had been an engi- neer, and was latterly a law clerk. He said that the club-house was marked with a red hand on the window blinds ; that there were thirty members of that club, and that in July the numbers of the Curran Club amounted to five hundred ; that Meagher and Dillon were members of the Curran Club. He then says that on the 15th of July, on Saturday, he was at a meeting of the Red- hand Club. He said the council of the Confederates — you observe, the council of the Confederates — held a meeting in D’Olier-street on that evening, at about nine o’clock. He went to attend that meeting of the council. He saw Mr. O’Brien there. And he says that he saw Mr. O’Brien at the head of the table, and Halpin, the secretary, was at the foot. There were one hundred or more persons assembled in the room ; that Mr. O’Brien held a book in his hand, from which he called out the names of each of the clubs and its representative ; and each representative came forward when called, and was asked the numerical strength of his club, and the strength of it was reported to him. The Red-hand Club was not called. Mr. O’Brien asked each if his club was organized ; whether it was divided into sections and sub-sections, and officered. Three hours were occupied in this business. He (the witness) went occasionally, he says, to the Confederation council. There he is speaking alto- gether of the council of the Confederation, which council con- sisted of twenty-one. He saw there different members of the council. He says the meeting of the 15th was a meeting also called for the purpose of appointing a meeting for the next day, which was proposed to be held at Ennis’s yard, at Kilmainham, in order to inspect and ascertain the actual strength of the armed clubs ; that Mr. O’Brien asked if the yard walls were high, and if there was sufficient gates to prevent the entrance of any except of clubbists. Mr. O’Brien during that evening stated to the effect that the object of their organization was to effect the inde- pendence of their country. Four o’clock was the hour fixed for the meeting next day, and Air. O’Brien told them to come in sub-sections of five, in order to avoid contact with the authorities. The meeting, he says, did not take place, for the ground was pre- occupied by the police. Air. O’Brien said that he had to give an THE QUEEN y. WILLIAM SMITH O’BRIEN. 823 encouraging account of tlie clubs in Cork, where, be said, he had been on a tour of inspection; that he had inspected the Cork clubs, and that they were orderly and well organized, and as fine a body of men as any in her Majesty’s service. And there was some con- versation about their being sufficiently armed ; and questions were asked about the arms, and replied to by Mr. O’Brien. Troughton gave an account of the organization which had been effected by him in England, and said that there were in two towns five hun- dred armed men ready to come over here when the insurrection should break out ; and that they had two swivels ready to come over here. All this was addressed to Mr. O’Brien, and then there was a general silence. When any speaker addressed him, all present, he said, could hear that statement. Troughton said there was a difficulty in the way of getting over the swivels. ]\Ir. O’Brien said he had been at Bantry ; that he met a boat’s crew that facilitated the meeting, so that they enabled him to meet there five thousand clubbists. He said each of the clubs in Dublin should have a boat to answer that and other purposes. At this time Duffy was in prison. Mr. O’Brien spoke for a long time on the organization necessary to effect the object they had in view, and said that it was not then sufficiently perfect, at least he had not inspected Ireland, so as to have proof positive as to the date of the insurrection. He said that he would ascend the gallows rather than any one should lose his life on his account by a premature movement. There was a conversation about the rescue of the persons who were in gaol, and Ml the people cried out that, if convicted, they would rescue taem. Mr. O’Brien’s above reply was both as to the time of tlie insurrection and of the rescue. Now, gentlemen, observe this, on the 19th of July, on Wednesday, at midday there was a meeting of the representatives of the clubs, and the council of the Confederation. Mr. O’Brien was there, and he cannot say who was in the chair. The object of the meeting was, to defeat the proclamation. Brennan proposed an immediate insurrection, and said that the people would not be in a better position in harvest, and would be dispirited by the delay, and the Government would take up all the arms they could. Dillon moved an amendment, that the people should conceal their arms and give passive resist- ance to the proclamation. Mr. O’Brien said, that a break-out at that time would be premature. M‘Gee proposed to cast lots to see who should advise the people that night at the Music Hall to resist the proclamation. Bichard O’ Gorman spoke, and told Dillon his amendment was too general. It was stated that Doheny was organizing the people in the country ; and this was all said in Mr. O’Brien’s presence. Dillon’s amendment was put twice to the vote ; and there was a small majority for the amend- ment, and the minority were dissatisfied. Brennan said, you will halt between two opinions, if you wait for aid from America 824 SPECIAL COMMISSION, CO. TIPPEKARY. and France, you might as well expect rifles to be forged in hea- ven, and angels draw the triggers : you have the elements of suc- cess in yourselves. M‘Gee said, you have been encouraging the people to arm and organize, now advise them to resist, and then propose the above proposition — that is, as to who should advise the people to resist — and cast lots for it. He said he would be one of them. He has seen members of the Curran Club armed with muskets and pikes. Then he tells about Lawrence Han- lon, a handy man, wdio was a member of the Eed-hand Club ; saw him preparing arms, both guns and pikes. He bought bar- rels, locks and stocks, and put them together for 135. he bought them for the clubbists, and he got the parts at reduced rates. On the 21st of July, Friday, there was a meeting of the same body, in the same room, in the evening — that is, a meeting of the representatives of clubs and the council of the Con- federation. This is, as 1 have taken it, after what I have heard — On Friday there was a meeting of the same body in the evening, and Dillon was in the chair. This was a meeting of the same body. There had been at the meeting of the 19th in Mr. O’Brien’s presence, an agreement that there should be a meeting on the day but one after, to consider about the management of the clubs. Every one in the room heard of the appointment. Dillon, Meagher, M‘Gee, M‘Dermot, and Lalor were then present. Halpin was there also. The adjournment of the 19th was, in order that a sub-committee should be arranged, and that it should be an adjournment of the same meeting. Dillon was ii the chair on the 21st. Several men were present who were not members of the clubs, and who had no right to be preseiTt, and several members objected to proceed to the election of an executive council until they left the room. Dillon called out tlie names of the representatives, who retired to, and remained in, an inner room till all the others went away. Dillon had remained seated in the chair ; and when the clubbists returned from the inner room Lalor produced a letter, and they proceeded to elec', an executive council. Some were for seven members, and others for three, and five ; and ultimately it was determined that five should be the number. The council of the Confederation had been twenty-one in number. Then he says there was a ballot for the five, that each put a slip of paper with five names upon it, and that many wished to elect Mr. O’Brien ; but DiUon objected, as he could do more good by organizing in the country than work- ing in town in a room. He said twenty-nine or thirty balloted ; he himself voted. He wrote the names of the five he voted for. The balloting papers w'ere removed by two scrutineers into the next room. They returned and declared the result of the ballot that Dillon, Meagher, O’Gorman, M‘Gee, Lalor, and Devon Reilly had been elected, and Lalor and Devon Reilly had an equal number of votes. On the second ballot Devin Reilly was elected. THE QUEEN v. WILLIAM SMITH O’BRIEN. 825 Lalor and M^Dermot then proposed that each should give a pledge to have the insurrection at the latest by the 8th of August ; he said that the prisoners were in gaol, and must be liberated. Meagher said he would do all in his heart and soul to hasten the insurrection even before that time. Dillon said, so help him God, he would do so too. M‘Gee said he would, by speaking, writing, and action, hasten the insurrection. They remained together till a quarter to twelve. He then says he views the balloting paper, he wrote it as his, and he proves the others as you have heard. He never saw those papers since the 21st of July until within the last three days, when he saw them in the possession of the Crown Solicitor. Now, he is cross-examined, and he says he was a member of the club from the 16th of June, and he did not speak there; but there were certain rules of the clubs, and that all, whether mem- bers of the Confederation or not, were admissible. And he says, that he (the witness) was a member of the council, that there was a large body of representatives of each club, and that he went on the 19tli to the club on a message, at the first meeting that he attended ; that there was no resolution after he was at the club ; that Dillon was not in the chair; that the resolutions stated. were not entered into ; his club was not called on, as it was a branch. He never spoke to Mr. O’Brien. That night Mr. O’Brien desired them to leave in sections of five, and they did so going down stairs ; cannot say how many flights of stairs there were, but the meeting was on the first floor. He could scarcely get in at first, but got in at last through the crowd. He said he heard of the meeting of the 1 5th at noon, and he at- tended but one meeting that day, and that that was in the evening; that there were groups in the room. This was the meeting at which Mr. O’Brien was in the chair ; that they talked among themselves, and occasionally some person would come forward and speak for the rest. He says the Confederation had ceased a fortnight before, and was succeeded by the League ; never saw the rules of the League. The meeting of the 19th was, to to defeat the ends of the proclamation ; he cannot remember the words of the requisition for that meeting, and did not know a detective, and will not tell the person who informed him of the meeting : and I need not go over the evidence which relates to this person whom he informed. Then, to resume the subject of his' evidence, he was at the meeting about two o’clock, and stood in the crowd; many per- sons were by ; he got in easily ; did not speak a word. He saw his friend on that night, and that friend was the medium of his communication with the Government. He says that Mr. O’Brien did not vote ; cannot say how many persons were there; he wrote a report of the proceedings to the same gentleman. He saw the members of the Curran Club going into Capel-street; 826 SPECIAL COMMISSION, CO. TIPPERARY. liad no correspondence with the police. The Curran Club had arms at ten o’clock at night ; he saw pikes with his own men ; saw men of the Curran Club armed before he became a member. Hanlon has made guns. The police visited Hanlon’s house, but he had removed the arms. He then states that the objects of the meeting were various. He says both O’Gorman and Reilly spoke at the meeting intended for the 21st; Mr. O’Brien was not at the meeting of the 21 st 5 nor was he a member of the clubs. The Confederation had ceased in form, but still con- tinued to exist. The meeting of the 2 1 st ended at twelve at night. Mr. Dillon objected to Mr. O’Brien’s election to be a member of the executive council on the ground before stated. Father Kenyon was not elected. A letter was written by Mr. Duffy, naming Fathers O’Malley, Kenyon, and another priest, pro- posing that they should be elected; and it was resolved unani- mously not to elect a priest, as it was to be a council of war. Some of the papers contained the name of Kenyon seven times. He says he does not know any thing of Kenyon ; and he himself was proposed by Hanlon. He was a member of the committee of council ; and whatever way he may have alluded to that, there is no necessary contradiction in sapng that there was a unani- mous resolution not to elect a clergyman, for that resolution might have been adopted, and still any member on the ballot Mr. Whiteside. — Will your lordship let me mention the way I wrote it down ? He swore that before they went to the vote the clergymen were not to be on it. Lord Chief Justice Doherty. — That was the reason. Mr. Justice Moore. — Yes. The Lord Chief Justice. — He says clearly it w^as before the voting of that resolution. He does not know any thing of Kenyon. O’ Callaghan was secretary of the Red -hand Club ; is gone to America. He says he is a Protestant. He began to act as a surveyor at Galway, two years ago, under the Board of Works. Mr. Whiteside. — He added, my lord, that there was no pre- sident of the club he belonged to. The Lord Chief Justice. — He did. He was law clerk to Mr. Montgomery, up to eight or ten days ago, at a salary of £50 a year. Mr. Montgomery has another clerk in his service. It was not Mr. Montgomery who sent him to the meetings, but he was sent in June last. He has received and stipulated for nothing, but expects protection. He went to counterplot and defeat the ends of these persons. He never swore an information, and two days before he came he was served with a subpoena. Knows Halpin ; heard of liis arrest, and has not seen him since the 21st. Now, gentlemen, having read the entire of that evidence to you, what the man swears is this — that the first meeting of the THE QUEEN WILLIAM SMITH O’BRIEN. 827 15th July was a meeting of the council of the Confederation. He did not state that he was a member of that council until he was cross-examined; but he states positively that he was a mem- ber of the council. He states, also, that the meeting of the 19th was a meeting both of the council and of the representatives of clubs ; that it was a meeting, therefore, composed of two distinct classes of persons ; and he swears, with equal distinctness, that the business which was to be transacted upon the 21st was to be transacted by this united body, he being a member of one or two bodies ; so that, according to that, if the election was to take place by the representatives of the clubs and the council, he, as a member of the council, would have a right to vote. That is his account of the transaction ; we have it from himself only ; and the question is, as I said before, and again repeat to you, entirely for your consideration. I shall say nothing more, gentle- men, with respect to his evidence, than simply to say, that the object of the first meeting was to have an accurate account of the force of these clubs ; and the object of the second meeting was to ascertain how the proclamation, which had been issued, might be evaded or frustrated; and the object of the third meeting, according to his statement, was to elect an executive committee, as he calls it, but which upon his cross-examination he states was to be a council of war, and being a council of war, was the reason why no clergyman should be elected upon it. Gentlemen, this is important evidence, but it would be perfectly untrue were 1 to represent to you that the prosecution, or the charge against the prisoner, depended entirely on your belief of it ; it is for you to believe it or not ; if you believe it, it goes to sustain the case of the prosecution ; but supposing that you do not believe it, or that 3mu have any rational doubt as to the truth of the testimony of this man, in either case, I tell you explicitly, to reject it from your consideration and not to act upon it, and to give your verdict as if you had never heard it. Gentlemen, I shall now call your attention very shortly to another document which remains to be stated, independently of the address of congratulation at Enniscorthy to Mr. O’Brien, which I shall not trouble you with. You have heard it before, and this is the only other document to which I shall refer. This is a report of a speech at the meeting of the League at the Music Hall, on the 19th of July, in the evening. Observe, the witness, Dobbyn, states the meeting, with respect to evading the pro- clamation, to have taken place in the middle of the day of the 19th, and this speech was afterwards delivered by Mr. O’Brien in the evening of the same day at the meeting of the Irish League. Now you all know perfectly well, from what has tran- spired, and I need not go into any detail on the subject, for it is fully in evidence before you, and particularly on the part of Mr. O’Brien, that there had been two bodies, this Confederation and 82S SPECIAL COMMISSION, CO. TIPPERARY. the members of a society which met at Concihation Hall. There were treaties for a union of these two bodies, which ultimately ended in an agreement that both should be dissolved, and that one body, called the League, should be composed of the members of both, or such of the members as thought proper to join in that new alliance. It was upon the occasion of addressing the League that Mr. O’Brien made that speech, which, both on the part of the Crown, and on the part of the prisoner, has been so fully commented on before you ; but with respect to my duty, having heard it so lately, I do not feel that it is incumbent on me to repeat it to you. But this is perfectly plain, that in a part of that speech Air. O’Brien refers to his having reviewed the clubs in the south of Ireland. He says — “ I hope you have read an account of the proceedings at Cork. They call it a review of my troops ; hut I am happy to assure you that I met two thousand men as well arrayed, as capable of efficient action, as any troops in her Majesty’s service ; and I met at least ten thousand able- bodied men who promised to support and sympathize with them.” And you will find in the concluding part of the speech, though the new members of the body, or many of them, were known to be adverse to the formation of these clubs, that he distinctly asserts his own right, and the right of others who thought like him, to continue the same system of organization, and does not profess the slightest intention of abandoning the formation or the organization of clubs. The Solicitor-General adverted to a passage in the speech which has distinct reference to the procla- mation, and which is in these words : — ‘‘ And now, gentlemen, I do not here in this League feel myself called upon to express to you my opinion as to the mode in which you ought to treat that proclamation. I believe the most of you know very well what is your interest and what is your duty. I apprehend that the effort to disarm the population of Dublin will not be found very success- ful; but I do — whilst I do not invite you to give facilities to the police for invading the privacy of your homes — I do upon my own part, and I must say upon the part of some of your most trusted friends, request that you will not make that proclamation the occasion of a general collision.” The Solicitor-General argues — you will judge whether there is any thing in it or not — that that appears to be a recognition of the advice which had been given them in the course of that morning at the meeting which is deposed to by Dobbyn. Mr. Whiteside . — Will your lordship allow me to mention two short sentences ? The Lord Chief Justice — Certainly. Mr. Whiteside . — “ I owe it also to the gentlemen THE QUEEN y. WILLIAM SMITH O’BRIEN. 829 The Lord Chief Justice. — Gentlemen, listen to Mr. White- side. Mr. Whiteside . — I owe it also to the gentlemen who have entered into association with us to fulfil the pledge, by which I consider myself bound, on enter- ing this Irish League, that we will, until we find all constitutional methods exhausted, through the agency of this League, unite with them in constitutional efforts.” Contemplating the visit of the citizens of Dublin to Kilkenny, he says — “ I feel perfect reliance upon the good sense, as well as upon the ardour, of the population of Dublin ; and I am perfectly satisfied that they will gjve a generous confidence to the Irish League, as constituted on the principles I have enunciated. I have proposed, and with success, that the next meeting of the League should be held at Kilkenny. Kil- kenny was the first town to declare in favour of a union of all Irishmen. Therefore, I think we owe them the compliment of going down, and carrying down with us as many of the citizens of Dublin as can con- veniently attend at Kilkenny.” The Lord Chief Justice . — There can be no manner of doubt, so far as regards the League, its constitution, and its acts, that Mr. O’Brien professes an entire determination, as a member of the League, to act up to, and pursue, that constitutional course. It is equally certain that he reserved to himself unlimited power with respect to the clubs. Now, gentlemen of the jury, we have arrived at what I may call the termination of the first stage of the evidence. You may recollect in the few observations I addressed to you in the open- ing of the charge, I told you that there was a marked distinction between the evidence, as it related to one of the periods, and as it related to the other. Up to the present time — that is up to the time when Mr. O’Brien left town, which is the period we have now reached — there was no notion or apprehension of his personal arrest, or of any attempt to molest his person ; and therefore you will observe, that up to that time you cannot ex- pect, and certainly it was not to be found, that there was a word said which had the least tendency to promote any measure for his personal protection or safety. Whatever occurred before, had for its object general purposes and designs, whether they were to effect a repeal of the union, a modification of the constitution, or a change in the Government, or to effect a total separation of Ireland from England. Whether there was one or the other, or whatever was their nature or character, they were general and national objects. It is equally true that these objects, general in their nature, it was contemplated to effect by an organization of as many of the people of this country as could be prevailed upon to join the clubs. These clubs, their formation, and their 830 SPECIAL COMMISSION, CO. TIPPERARY. co-operation, were to be the means, the force, or the power by which the general objects, or whatever was to be the general object, was to be achieved. And if that were so before Mr. O’Brien left town, it will be for you to say whether what subse- quently occurred was in furtherance of that object ; whether that object was abandoned, or whether it was persisted in ; whether what subsequently occurred had no reference to the prosecution of that object, or whether it was directed to another and a totally different object. If it was, then of course this antecedent evi- dence can be of no value whatever. But with reference to the testimony of Dobbyn, if you believe him, he has advanced the case on the part of the Crown one step further than the other evidence. It is not that he has shown an object different from that which the other evidence establishes, he has proved the object to be the same ; but he has gone further in proving the progress of a conspiracy ; and he has given evidence that mat- ters had proceeded so far, that they were determined, by arms, within a very short time, to break out into actual rebellion. And that a military council, called an Executive Committee of Five, had, by its members, pledged itself that the outbreak should take place before the 8th of August at the very furthest. Now, sup- posing that you do not believe him, and that you expunge from your memory and pay no regard whatever to any part of his evidence, there will still remain, notwithstanding that, what I before pointed out to you upon the confession of Mr. O’Brien himself; there would stiU remain the general purpose or object ; there would still remain the formation and the exertions of clubs for the attainment of that object. Therefore when we commence the second series of this evidence, you will keep what I have stated to you in mind, because according to the view that you take of it, it will render your conclusions the more or less certain, so far as those conclusions arise from the subsequent transactions ; that is, if you find the same means used, the same means em- ployed and persisted in, and the same object professed, then, in truth, it is but a continuation of the same plan ; and though evinced by different elements, and running over different periods, it will stiU be the same project, the same object to be effected, of the same national and general character. Gentlemen, I shall very minutely go through the evidence which bears upon this important view of the case, and you will remember, and I must repeat it, it is essential to the prisoner’s defence, that you should keep constantly before you this sub- ject — that you are now inquiring whether the insurrection and the force had a general object, or whether that insurrection and force were limited and confined exclusively to the prevention of the arrest of Mr. Smith O’Brien. These are matters for your consideration ; and it is upon the result of these questions wRl have to depend the prisoner’s guilt or innocence. THE QUEEN WILLIAM SMITH O’BRIEN. 831 Gentlemen, I will not trouble you witli the detail of matters, or the testimony which occupies time and space, and does not tend in the slightest degree to elucidate the questions which you have to consider. For remember that Mr. O’Brien left Dublin on the morning of Saturday, the 22nd, and arrived at Enniscorthy about five o’clock ; and the testimony 1 shall first read to you is that of Francis Dunlevie. He says that he saw Mr. O’Brien at Enniscorthy, at five o’clock on the evening of the 22nd ; that there were about a hundred people about him, and he inquired of them if they were all repealers. He saw him again the next day, the 23rd, Sunday, between eleven and twelve o’clock ; he saw him again in Enniscorthy. You are aware he went to Mr. Maher’s ; he was overtaken at Maher’s, or joined by Dillon and Meagher ; and then you have heard accurately described by Mr. Maher what occurred. Mr. O’Brien being aware, or having been informed, that a warrant was issued for his arrest, he said he did not hke to disturb the peace of Mr. Maher’s house, and Mr. Maher sent him in his carriage to Enniscorthy ; he had a car engaged for him there, and he afterwards went to Graignamana, he saying he wished to go to Kilkenny, to consult some friends on the course he should adopt. I will read it for you, if you wish. A Juror. — No, we do not, my lord. The Lord Chief Justice . — I am now speaking of what occurred on the Sunday morning. On Sunday morning, the 23rd, he came in Mr. Maher’s carriage, and Dunlevie saw him on that day between eleven and twelve. He was standing on a car, and addressing about five hundred people. He said he was glad there was a club formed in the town, but regretted that the members were so few ; he regretted that it had not received the support that might be expected in such a populous town. That a club should be formed in every town ; and also parish clubs should be formed, to complete the organization. That he was happy to see so many of the pohce present ; that they were a fine body of men, and all Irishmen, and should be treated as friends until they proved themselves otherwise. That he was received very friendly in many parts of Ireland by a large portion of the soldiery. He spoke of the Habeas Corpus Act, and said that he did not know at that moment but that the police had a warrant for his arrest ; and he called on the people to prepare for any emergency. After him, Mr. Meagher spoke, having been introduced by Mr. O’Brien. He said he always was, and ever would remain, the unrelenting enemy to the British Government. That he had the honour, a short time ago, of addressing fifty thousand Tipperary men, and that they were prepared to do their duty. The Prisoner . — There must be a mistake there about the fifty thousand Tipperary men. 1 do not think the witness said they were Tipperary. 832 ‘ SPECIAL COMMISSION, CO. TIPPERARY. The Lord Chief Justice — Fifty tliousand Tipperary men, and that they were prepared to do their duty. He said the best way he could make amends to Air. O’Connell would be, to bring the flag of liberty and plant it on his tomb. Dillon then spoke, several persons having called for him. He spoke from the same car ; the prisoner was by. He said he heard the AVexford men were not good for making speeches and holding political meetings, but that they were brave and determined ; that they all had a gun in the corner, and kept their powder dry, and were sure to hit their mark. The three left on the car about one o’clock, and proceeded towards Carlow or Kilkenny. He is then cross- examined, and he said he is head constable, and made no depo- sitions. That he was in the crowd. That he had no writing materials with him. That they all went quietly away ; and Air. O’Brien spoke of the Habeas Corpus Act. Now, gentlemen, with reference to this circumstance of his making no deposition, or making no note at the time, I wish, once for all, to make an observation to you, which will apply to a similar objection which has been stated and relied upon in other parts of the evidence. Unquestionably, in reporting con- versations, it would be very satisfactory if in every case a note was either made at the time or immediately after, by the person who heard it ; but that seldom happens. In the ordinary course of human events we are obliged to trust to the recollections, imperfect and frail as they must be, of our fellow- creatures ; and all that we can expect is, not that there should be a literal repe- tition of the words, but that we shall be satisfactorily assured, that in substance the words deposed to were actually spoken. And if, in any of those cases, you see, from the delay in making the deposition, or from the demeanour of the witness on the table, or from any infirmity either of temper or of memory, that you cannot safely confide in what he states, as to the substance of the declaration he has heard made, you ought not to act on it. I tell you, once for all, if you have a reasonable doubt of the accuracy, as to the substance of what is deposed to by this or any witness, you ought not to act upon it. That doubt is one to the benefit of which the prisoner is entitled ; it is his right, and you are bound to give it to him. On the other hand, I am bound also to say this: — if this be not the case, and if you find similar sentiments and language professed and repeated at other times by the prisoner, speaking on the same subject, that circum- stance — if you believe the language faithfully reported in sub- stance at other times — tends unquestionably to make it probable that the man who delivered these sentiments on one day, also delivered them on the other; at least, that the person who swears it derives from that some credit for the accuracy of his statement. Now without going more fully over that, you see that, as far as I can judge — but that is entirely for you — the THE QUEEN v. WILLIAM SMITH O’BIIIEN. 833 general object is here professed and detailed. The means for achieving that object are still professed and retained; and one of the speakers, in very strong language, not only professes himself to be, but that he ever will be, the unrelenting enemy of the British Government ; and he actually states that a short time ago he had been addressing fifty thousand Tipperary men, and that they were prepared to do their duty. Now the next witness brings him to Graignamana. And police constable John Dowling states that he was stationed at Graigna- mana ; that he saw Mr. O’Brien, with two others, that is Meagher and Dillon, about four o’clock in the evening of Sunday, the 23rd. They stopped there an hour. There was a crowd of three or four hundred persons; and Mr. O’Brien spoke to them at the rere of the town, at Air. Cloney’s. Air. Aleagher addressed them first. Air. O’Brien being by his side. He says he wrote out the speech, on the retirement of Air. O’Brien, on the 23rd. Aleagher said he was young in political life, and one of the young gene- ration. He then turned to Air. Cloney, and said that he had been travelhng through the different towms of Ireland, and that there were clubs formed in a great many. There was a club formed in Enniscorthy and Kilkenny, and he heard they were about to form one in Graignamana, and that he had no objection, as it was a very good movement. That the Habeas Corpus Act was suspended, and that the Government could take the noblest man in the land and put him into prison, and keep him there. He then told them to beware of the claws of the lav^, and to commit no breach of it. Dillon spoke, and said there was a warrant for the arrest of Air. O’Brien, and asked them if they would be satisfied to let him go, and the crowd said no. He told them that as many as would not let him go should hold up their hands, and they all did so. They then came to the hotel door, and drove off towards Kilkenny. This is the first occasion on which any appeal is made to the people on the subject of Mr. O’Brien’s protection. He passed the evening of Sunday there, and proceeded on Monday morning to Callan. Then John Dowling was cross-examined, and states that he did not swear any information, nor did he take any notes. You will keep that in your mind, observing — if 1 was to repeat them, it wmuld only delay your time — the same cautions on all these occasions, with respect to the witnesses and the accuracy of their reports. Robert Mahony, stationed at Callan, says the prisoner arrived with Air. Aleagher, about one o’clock. They came together, and the people collected to the number of eight or nine hundred, and were about to light a bonfire for them. He says they addressed the people ; and O’Brien said, “ Aly friends, policemen and soldiers,” (he himself made a note of this at the time,) “ 1 am glad to meet you here, I am proud to meet with such a rcce])tion 3 H 834 SPECIAL COMMISSION, CO. TIPPERARY. after such a short notice.” He stated that he had travelled from Enniscorthy, and would put the same question to them as he had done before — if he was arrested would they let him go. He also said, that he was glad to see the police there ; that they would be better under an Irish Government, than under English- men or Scotchmen. He called on them to organize their clubs, and be ready, for the time was at hand. Meagher afterwards spoke, and said, he was glad to see so many amongst them wearing the green. He expected before long to wear it himself, and he called on the people to treat the police as brother Irish- men, that their fathers and brothers were amongst them. He said, there are now only two alternatives, the one to lie down until the halter be put round their necks, or make one bold effort to throw off the yoke and make Ireland a free and inde- pendent nation. Gentlemen, it is not my duty to comment upon this evidence. It is only my duty to put you in possession of it, and to leave it entirely for your own consideration. I wish to state here, both with reference to the last deposition you have heard, and all the depositions in which the personal protection of Mr. O’Brien is alluded to, when you hear it, keep in your mind these two matters, and keep these two questions constantly in your contemplation. Does the language here used convey to your mind the impression, that the personal safety and protection of Mr. O’Brien was the sole and exclusive object ? Or does the language in its fair, natural, and manifest import convey to your minds the impres- sion, that there was an ulterior, and another purpose, a general purpose, a purpose of the kind suggested by the evidence itself, a purpose which may be expressed in the language of this speaker, of making Ireland a free and independent nation ? And I repeat again, if, on the consideration of the whole of the evidence, not of any other particular part or portion, but the whole of that evidence which is entitled to your belief, that is, upon the whole of the evidence which you can select as worthy of your belief, and as sound, upon which to found your judgment — if you believe the object to have been exclusively the protection of Mr. O’Brien from arrest, he is by the laws of the land entitled to your acquittal, no matter what other character his conduct may deserve ; no matter what other crime in point of law he may have committed. Of high treason, in that view of the subject, you cannot find him guilty. But if your view of all these deposi- tions, having regard to the persons who spoke them, the persons to whom the speeches were addressed, the surrounding circum- stances, the array of force, and the array of that force for other and distinct purposes than personal protection ; if from all these you are able conscientiously to collect, that it was a general object, and not the particular personal object contended for by THE QUEEN 7;. WILLIAM SMITH O’BRIEN. 835 the prisoner’s counsel, it will be equally your duty, without regard to consequences, to pronounce that the prisoner is guilty of high treason. This constable says, he swore informations on the 6th of Sep- tember, but he is a person who made a note of the matter at the time. On his cross-examination he says, Mr. O’Brien said, you are doing your duty under an English Government. The meet- ing lasted an hour. They remained until the temperance band conducted them out of the town, about three o’clock. Mr. Fitzgerald. — My lord, the way I have it on my note is, that the police were doing their duty under an English Govern- ment. The Lord Chief Justice Yes, that is what he said. You are doing your duty under the English Government. I shall be much obliged for any thing in which you can correct me. I can never be sure of being perfectly accurate. Lord Chief Justice Doherty. — That is exactly accurate. The Lord Chief Justice. — The next witness is Patrick Coghlan, and he brings us to Garrick. He states that he was stationed at Garrick. There was a meeting about four or five o’clock in the streets of Garrick on the 24th ; and it appears that Mr. O’Brien went from Kilkenny to Garrick. They were addressed from the balcony, and the number assembled was from four to five thousand. They were first addressed from the balcony by Mr. O’Brien. He said he was surprised and delighted to see so large an assembly, as he was not expected ; but he saw and admired their enthusiasm ; but the best way I can test the feelings of your hearts is, by calling you at once to the field. Are you ready ? I am about to be made a victim of English misrule and domi- nation — Mr. T. H. Barton. — May I ask your lordship to suspend your charge for a very few minutes? The Attorney- General. — What is the reason of your request ? The Lord Chief Justice. — I cannot have my charge to the jury interrupted. The Solicitor- General. — There must be some reason assigned. Mr. Barton. — Both the learned counsel who were assigned to Mr. O’Brien, are engaged in very anxious consultation, my lord, this moment. The Lord Chief Justice. — I cannot stop the trial. He says, I am now about to be made the victim of English misrule and domi- nation, but there is a time gone by, when if any of my blood, or if any of my ancestors were about to be seized on, there would be strong arms and stout hearts that would not allow it. I now ask you, will you allow it ? The Prisoner. — My lords, I apprehend that the Gourt is not fully constituted in the absence of the third judge, Mr. Justice 3 H 2 836 SPECIAL COMMISSION, CO. TIPPERARY. Moore. From what I am led to believe, my counsel are at pre- sent engaged with him ; and the Court cannot proceed. The Lord Chief Justice. — We wiU certainly wait for Judge Moore. But it is a mistake to suppose that the Court is not fully constituted, one of the judges being absent. One of the judges would be sufficient. The Prisoner. — Perhaps I made a mistake. Mr. Barton. — I am not aware of the fact that Mr. O’Brien has stated, but perhaps he mentioned this as a reason for your lordship to postpone your charge until the return of Mr. Justice Moore. The Lord Chief Justice. — We are waiting. [After a short period Mr. Justice Moore came into court.] The Lord Chief Justice. — Perhaps I had better begin again. Patrick Coghlan states, that he was stationed in Carrick. There was a meeting about four or five o’clock, in the streets of Car- rick, on the 24th. They were addressed from a balcony by Mr. O’Brien, and the people collected were about four or five thou- sand. He said he was surprised and delighted to see so large an assembly, as he was not expected ; that he saw and admired their enthusiasm : — “ But the best way I can test the feelings of your hearts is by calling you at once to the field. Are you ready? I am about to be made the victim to English misrule and domination. But there is a time gone by when, if any of my blood or my ancestors were about to be seized on, there would be strong arms and stout hearts that would not allow it. I now ask you, will you allow it ? (‘No, never.’) I know you also have strong nerves and stout arms ; and I stand here and tell you, that I want not place or emolument ; that I have sacrificed near and dear family ties ; and am now determined with you to sacrifice life. But this is not the time for speeching.” He then concluded and retired from the window, but remaining close to it. They were next addressed by Mr. Meagher, from the balcony, Mr. O’Brien remaining at the window on one side. Mr. Meagher then said — “ People of Carrick — When I was last amongst you I was on business connected with my country, but now I am upon Government business. The Government has advanced a step lately ” He then spoke of the arrest of Mitchel, and his transportation. He said that one of the most gifted men had been sent away, and there were five others, almost equally gifted, under arrest ; and he said it was by means of packed juries and bloody or perjured judges. That for every step the Government advanced he would advance one step to meet them. — “ The scenes of ’98 are talked of, but they can only punish us with death. I am ready to meet it in defence of my unhappy country.” THE QUEEN i;. WILLIAM SMITH O’BRIEN. 837 He then, he says, compared Ireland to a French fire-ship which had sunk for a moment and risen again into a glorious republic ; and said, “ Hurra for the republic” — and the crowd shouted. Mr. Barton . — VYill your lordship allow me to make a sugges- tion. I am instructed that Mr. Meagher never intended — and I think it is quite consistent with the context of that speech — to adopt the sentiment, “ Hurra for a republic.” The Lord Chief Justice . — We cannot hear any thing now. Mr. Barton . — The passage occurred in allusion to an historical incident. The Lord Chief Justice . — It is impossible that 1 can discharge my duty if I am interrupted in this way. We cannot hear that ; the time has gone by for it. ‘‘ The time is come when we must strike the blow — it is decreed, not here but above. I tell you that I am ready ; but we must not do any thing hurriedly or in a confused manner. I give you a few hours to deliberate, and again tell you that I am ready.” Mr. O’Brien was there all the time, and John O’Mahony was amongst them. He is then cross-examined, and he says, he wrote the notes of this since he came to Clonmel, from original notes; that he is not an author; that Mr. Jones, the magistrate, was near the house among the crowd ; that at the time he had not the use of pen, ink, or paper. The original note the ma- gistrate has taken. His original information is read, which hears date the 25th of July, the day after the transaction, but there is only a part of this speech stated in it. He states, on re-examination, that he did mention to Mr. Jones the passage about the French ship, which is the passage omitted in his information. Now, it is requisite, with respect to this, and other witnesses, whose testimony goes beyond what they have stated in their informations, to make this observation, that the magistrate is, in truth, generally speaking, the person who judges of what is, and what is not material ; and the magistrate takes down only so much, and is hound in duty only to take down so much, as he considers pertinent and material to the charge. If he makes a mistake, the witness having told him several matters which he thinks not material, and which he has not thought it proper to put down, it is no impeachment whatever of the witness. Now, J ohn Hamilton is examined on the same matter ; and it appears John Hamilton wrote his own informations, and he gave his evidence verbatim from the informations, from which he refreshed his memory. I have taken a note of the evidence, and if you have taken a note also, I should like you to read it over while I refer to the informations of Hamilton. They were read, and you heard them. He was stationed at Carrick. On the 24th of July saw Mr. Smith O’Brien in the town of Carrick-on- Suir, in the county of Tipperary — that is, Monday, the same 838 SPECIAL COMMISSION, CO. TIPPERARY. day. He heard him address a large crowd of people to the following effect : — “ My friends, I am surprised to see so many of you here to-day, I being entirely unexpected by you. I doubt not of the enthusiasm of your cheers, but the way I will now test your courage is, by calling you at once to the held. Are you ready to accompany me there (cries of ^ we are’) ? I am about to be made the victim of English vengeance, but will you permit it ? In times gone, if any of my blood were about to be seized on, no matter by whom, there would be stout hearts and strong arms to support them. Now, does the same spirit that animated your forefathers predominate in you h Are your hearts stout, are your arms nerved to stand by me in the coming struggle ? I saw one of the bravest of Ireland’s sons thrown into a felon’s cave, and transported by the basest machinations that ever disgraced the meanest trickster, for loving you, for loving his country; and, not content, they have seized on hve more, and thrown them into the same place. But will you acquiesce in their designs ? No. If the populace were ready, I for one am ready to strike the blow for their and their country’s freedom. When first I advocated your cause I did so without any design to aggrandize myself. On the contrary, I sacrificed the dearest ties and family connexions, in the common cause of my country, and for which I am now ready, if necessary, to sacrifice my life. Thomas Francis Meagher then came forward and said — Men of Garrick, when I parted with you last Sunday week I did not expect to see you again so soon ; but the base and bloody Government of England has made another step in her work of destruction. For every step she makes I will make another, until we meet her face to face. Are you ready to stand against her military ? When I visited you last I came on business, and now I come on Government business. That Government has trampled on all law; that Government has refused to give us law, but now we are prepared to give that Government no law. With packed juries and bloody judges, they have prosecuted the bravest of Ireland’s young citizens with demon vengeance. What we are about to do requires a few hours’ deliberation. We must not be carried away with the enthu- siasm of our feelings. To make our ship sail steadily, we must have ballast, we must have sails; we must have a stout arm at the helm; we must have stout hearts to man her. Now is the time to strike the blow to make Ireland for her lovely sons. Are you ready with nerved arms to give effect to that blow % I am ready with those stout and stalwart bodies, those stout hearts, those nerved arms, through good or ill success, to strike that blow. If we fall we shall sink like the fire-ship of the French republic, which sank from view with one cry of ' long live the republic The Prisoner . — My lord, I did not hear him use those words. The Lord Chief Justice . — The passage is this — “If we fall we shall sink like the fire-ship of the French republic, which sank from view with one cry of ^ long live the republic,’ which arose to the hearing of generations then unborn. There are many of you here who have children who, if you fall, will rise in thirty years to come to avenge the bloody graves of their fathers. What care I for all their force. They may threaten us with death — they may tear from us our lives; more they cannot, for they have already deprived us of all else THE QUEEN i;.^WILLIAM SMITH O’BRIEN. 839 besides. Death is the worst they can inflict — death is the utmost bounds of their threats. They are again renewing the bloody deeds of ’98 ; then, too, we had men of talent of the country to stand by us; then, too, they prosecuted those talented men; then, too, they had packed juries and bloody judges; then they had a suspension of the Habeas Corpus Act; then the judges, who, with folded arms, presided over those scenes, red with the blood of their victims, retired to their festivities with the satis- faction of having done their duty to their Government. But I tell them, that the time is now come when the mown down grass shall spring again, and here it is. I tell them that that grass which I now see grow here this day beneath me shall rise in one rapid sway, and bury beneath its over- whelming growth the destroyers of our lovely island.” He stated, on his cross-examination, that he himself wrote his information out. That is sworn on the 25th of July, the day after. He was allowed to take this information in his hand, being a note made, in his own handwriting, of the transaction so closely after it, from wliich he was entitled to refresh his memory ; and he has sworn on the table to the accuracy of the statement which that contains. Mr. Whiteside. — Before your lordship proceeds further with your charge, I ask you, as a favour, to hear a short application The Lord Chief Justice. — Is it in another case 2 Mr. Whiteside. — N’o, my lord ; in this. I do not feel it right to mention it in court ; but if my learned friend, the Attorney-Gene- ral, win step into chamber, 1 will mention it there. The Attorney -General — I have no possible objection, my lord. [Their lordships, the counsel for the Crown, and the prisoner’s counsel, retired to the chamber, and after about a quarter of an hour had elapsed returned into court.] Mr. Whiteside. — My lords, in this case of the Queen v. O’Brien, I have an application to make to your lordships, for which I am indebted to the Court and to my learned friend, the Attorney- General ; it is that the witness, Dobbyn, may be recalled on one subject-matter. The Lord Chief Justice What do you say to it, Mr. Attorney ? The Attorney -General. — From the statement made by Mr. Whiteside of matters having come to his knowledge since the cross-examination of Dobbyn on a particular part of the case, I shall not oppose it. The I^ord Chief Justice. — Then you consent to it ? The Attorney- General. — Yes, my lord. The Lord Chief Justice. — Because the application is very un-. usual. Mr. Whiteside. — I think it right to state, that the Attorney- General and Solicitor-General are entitled to the highest honour for their conduct in the adminis1|^’ation of justice. AYe will call Dobbyn as our witness. 840 SPECIAL COMMISSION, CQ. TIPPERARY. James Stevenson Dohhyn, recalled — examined hy Mr. Whiteside. Mr. Whiteside . — Is it necessary to^ repeat the oath ? Lo7'd Chief Justice Doliei'ty {to the witness). — You are reminded that you are sworn. Mr. Whiteside. — Just attend to my questions, and let the jury hear you. Do you remember being at a tavern about the middle of June, at the corner of Gt. George’s-street, on a Saturday evening or any evening about the middle of June — a public-house or tavern *? — No. You were not in it? — No. Do not misunderstand me; let us have no dispute. Were you in that tavern or in a public-house discussing the public grievances of Ireland, in company with two other men, any evening in the middle of June ? — I do not recollect that I was. Will you swear you were not ? — I do not recollect it. The Lord Chief Justice. — I will take that; just go slowly. Mr. Whiteside Certainly, my lord. {To the witness.) — Was there a fourth gentleman ? I believe the name of the house is O’Neill’s. Did you know a house of the name of O’Neill’s ? — I did not ; I do not. The Lord Chief Justice . — The house of O’NeiU’s, in what place ? Mr. Whiteside . — At the corner of George’s-street, Stephen- street. The Lord Chief Justice {to the ivitness). — You say you do not know that house. Is that what you say ? — I do not, my lord. Mr. Whiteside. — Was there a fourth person present reading the news- paper, whom you afterwards discovered to be of the name of Dalton ? — I do not know any person of the name at all ; I never heard the name at all introduced at any particular meeting of any sort. I am not asking you about any particular meeting of any sort. — I do not know the name. The Lord Chief Justice. — You do not know the name of Dalton, and never heard the name of such a person mentioned ? — I do not, my lord. Mr. Whiteside. — Did you enter into any discussion about the best mode of advocating the freedom and independence of Ireland? Did you never on that occasion, or any such occasion, in that house, in the presence of any person? — Never, never. The Lord Chief Justice. — You never entered into a discussion? Mr. Whiteside. — In this place, my lord ? Lord Chief Justice Doherty In this or any other place. Mr. Whiteside. — I am confining it to this place. Lord Chief Justice Doherty. — In this place, O’JYeilPs public- house ? Mr. Whiteside. — Yes, my lord. {To the witness .) — Did any two persons say they were advocates of the policy of the late Daniel O’Connell, of emancipating Ireland by moral force; did that occur ? — -Never. ^ THE QUEEN i;. WILLIAM SMITH O’BRIEN. 841 Did these two men represent themselves to you, or any two men there, as Roman Catholics ; and did you represent yourself to be an Orangeman and a Protestant, from the north ? — Never. Did you say on that occasion Mr. Justice Moore . — Were the two men alleged to be in his company ? Mr, Whiteside. — Yes, my lord ; and a third gentleman sitting in the room, at a distance, reading the newspaper. (To the ivitness .) — Did you say there was but one way to rid the country of British dominion, and that was, by force of arms? — Never. Did you refer to the success of the late revolution in France, and pro- claim that you were for the republic, and were a disciple of John Mitchel '? — Never. Did these three persons I have spoken of then apply to the fourth gentleman, who had been reading the paper, to decide the controversy amongst them; did any such thing occur ? — No such thing; I never was in the presence of any one; I never saw a newspaper reading in a public- house in that way. Never in your life? — I might go into a public-house to read a news- paper, but never had any conversation in that way. Such a thing did not occur ? — Such a thing did not occur. I did not ask you whether you ever read a newspaper, but whether you saw the gentleman there reading the newspaper ? — The thing never occurred. Now did any such thing occur as three of you turning round to the fourth gentleman ; did you afterwards wink at that gentleman to follow you — the man whom I say is named Dalton; did you on that occasion; did you on your oath ? — I did not. Why did you hesitate in giving me an answer? — I did not hesitate a moment. Did you speak with him alone when leaving that house; did you ask him to go and have supper with you ? — I did not. Did he reply that it was too late ? — I never was in conversation with the man at all. Did you say to him, “you are a right fellow, but those two are damned papists ?” — No. “ I am sorry you did not humour them as I did ?” — I said no such thing. Did you ultimately go with that person into a house to have some re- freshment that same night ? — I did not. Dalton byname? — I did not. Did you tell him you were a law clerk by business ? — I did not. And did you take down his residence and business as a student of Trinity College? — No. Did you add that you would call on him again ? — I did not. Did you request him to join a club upon one of these occasions of which we have been speaking ? — I did not. Did he say in answer that he should be expelled from college if he did ? — I never heard any such thing at all. Did you say that this Dalton ought to know what he meant — that is, 842 SPECIAL COMMISSION, CO. TIPPERARY. what you meant. Did you use these words to Dalton — “You ought to know what I meant;” and would he not prefer a Government situation to college ; did you not say that ? — Never. Did you add that he would easily obtain one by joining you in a system of information to make a case similar to Titus Oates, of conspiracy and high treason ? — On my oath, I never used language of that kind. Or to that effect 1 — No, never. Did you add that it would he charity to come at the rogues of priests ? — Never. Did you meet him by accident some three weeks afterwards, this same person, Dalton, in Trinity-street? — No. Did you say to him, “ You have passed me without speaking to me and did he reply, “ I have no knowledge of you T — I never heard any thing at all on the subject. Did you say, “ Then don’t you remember Dobbyn in the argument you had at the tavern V — No. Did you say you were arranging matters with Colonel Browne ? — Never, never. When I say Colonel Browne, I mean the police magistrate? — Yes, I understand. A highly respectable man he is. Did you say that he, Dalton, was a clever fellow, from the masterly manner in which he had confounded the repealers ; he could be useful in drawing up resolutions at clubs, and getting people to sign them ? — Never. Or any thing like that ? — Never. Or becoming president in drawing up clubs, and getting other persons to sign, and then giving their names to the police ? — Never. Or any thing to that effect ; that will save trouble ? — Never. Did you say to him, until the priests were exterminated, and popery put down, things would never be right in Ireland? — Never. Did you allude to a Protestant, and Mr. O’Brien by name, who had joined the movement, and say he w^as more criminal than the papists? — Never. Did you on that occasion ask him to go and take a glass of punch ? — Never. Did you go into the place and take it, and had not money to pay for it ?— No. Did you ask him if he ever read a book called Dens’ Theology ? — Never. Did you explain to him the principles of Dens’ Theology ? — No. Did you say, according to that book, it was lawful for a papist to per- jure himself against a Protestant, and receive absolution; and, therefore, you wouhl not consider yourself sinful in perjuring yourself against them ; that one man would not be believed on the trial unless backed by another, but that Dalton would be a proper person, as Government was looking out for such ? — Nothing of the thing, on my oath, ever occurred. Did he say in reply, he would not be guilty of such villany for the Lord Lieutenancy, or the Lord Lieutenant’s income ? — Nothing of the sort. Did you answer, a man in distress will do any thing to get money ? — Never. Did he call you a rascal ? — No. Did he tell you to quit his company ? — No, THE QUEEN v. WILLIAM SMITH O’BRIEN. 843 Did you say you were only trying him, and that you were surprised that a man of liis education should not know that you were only humbug- ging him? — Nothing of the sort. Did you add in another tone that the landlords of Ireland were tyrants and villains, and that if every man was like you there would soon be an end to the British yoke in Ireland? — Never. Nothing of that kind occurred in substance ? — Never, from beginning to end. [The witness was directed to remain on the table.] Henry Dalton, sworn — examined hy Mr. Whiteside. A Juror . — May I ask him a few questions? The Lord Chief Justice. — Yes, by-and-by. Mr. Whiteside . — Have you travelled here all night by the express train ? — Yes. What hour did you leave town last night ? — I think it was in the morning about three or four o’clock. And you got down here recently? — Just now. What was your father ? — He belonged to the cathedral of Cashel. Was he a clergyman ? — He was vicar choral. What has been your business ? — I am a literary teacher, and belong to Trinity College. Did you teach at Mr. Huddart’s school in Dublin ? — I did. Any thing in Dungannon ? — Yes. Have you had any tuition in this county ? — 1 have had. In whose house have you taught ? — I have been resident tutor in the house of Mr. Pennefather, of Marlow. Latterly you have been at college ? — Yes. Are those certificates here of yours ? — Yes. The Attorney -General . — That is not evidence. Mr. Whiteside . — You say you support yourself by teaching. Do you recollect being any Saturday evening, or any night about the middle of June, at a house, or tavern, or public-house, at the corner of Stephen-street, reading? — Yes, I went into the house, for the purpose of reading the newspaper, and not for the purpose of drinking. It is no matter for what, were you there ? — I was. Were you engaged in reading a newspaper ? — I was. While you were so seated reading the newspaper did three persons appear in the room ? Mr. Justice Moore . — Does he mention the name of the house ? Witness — I think a man of the name of O’Neill keeps it; it is at the corner of George’s-street, cutting George’s-street at right angles with Stephen-street. Mr. Whiteside . — While you were so seated reading the paper, were there three persons in that room ? — I had been about five hours in the room before three persons came in ; a female first came in. Lord Chief Justice Doherty . — How long ? — Four or five hours. I was reading the history of the late outbreak in France, my lord. Mr. Whiteside . — Did any discussion arise in your presence, while you 844 Sl^ECIAL COMMISSION, CO. T1PPERA14Y. were reading, about politics in Ireland ? — Yes, my attention was attracted from the newspaper to three persons who came in about four hours afterwards. After you had been there ? — Yes, after I had been there. What persuasion are you h — I am a Protestant. By religion — Yes. Look round, and tell me if that person behind you [pointing to the wit- ness Dohhyn) was one of the persons 1 — That gentleman was, upon my oath. Tell the jury shortly what passed on that occasion, before you took any part in the conversation ; what the conversation was that passed between that gentleman and the two persons you saw there ? — Two of the gentlemen had been advocating a repeal of the union ; they said it could be obtained by no other means than by the steps pointed out by the late Mr. O’Connell, and they contended that it was all to no purpose to look for repeal by any other means, that England was too powerful for them. Did this gentleman say any thing? — This gentleman then said to them that he was a Protestant and an Orangeman from the north, and that, unless by force of arms, the independence of Ireland never could be obtained. Pie also made the remark, that it would be useless to depend on foreign nations, unless on ourselves alone. A Juror . — Would you repeat that ; what did two of them say first? — The two first contended that repeal should be obtained by peaceful means, or by moral means, as they called it. Well? — And gave reasons for it. Mr. Whiteside. — Well, what did he say — ;just tell the jury what he said? — He said that it was useless to look for it in that way; by no other means could it be obtained unless by force of arms; and that unless the Irish people exerted themselves, it was also of no use to depend on France or America. Was any thing said about John Mitchel ? — Yes, he said the time had come now — the time had now arrived when a repeal of the union would, perhaps, not be obtained, and that a republican government, on the prin- ciples of John Mitchel, was what would benefit Ireland. He had formerly believed the repeal of the union would do best ; he was convinced nothing less would do ; and he mentioned the name of Mr. Smith O’Brien, and said his policy was too tame. Up to that time, had you taken any part in this conversation ? — I had not. Did they then appeal to you to give an opinion on the merits of the controversy? — Yes, this man asked me what my opinion was. What did you say ? — I said that, in my opinion, agitation was the bane of Ireland, and that I attributed my present sufferings altogether to it ; and I said I would also admit openly that the repeal agitation, and a repeal of the- union, would be the curse of Ireland, and I, for one, was against it, and I signed the repeal petition, as a student of Trinity College. Against it ? — Against it. Did Dobbyn do any thing on that? — Yes, I noticed him distorting his face to me. To you ? — I could not say, but he made some distortions of his face. 84:5 THE QUEEN v. WILLIAM SMITH O’BRIEN. Did you immediately after that leave the house ? — Yes, the party walked out of the house ; the two men went before, and I was going home. Did Mr. Dobbyn accost you as you were going home — did he overtake you 1 — He did. Tell me what he said to you “? — I had gone about nine yards, or so, from him at the time, and he followed me, and said the men wished me to have supper with them. Well, what did you say 1 — I said it was too late, and I wanted to go home. Did he make any reply ? — He said I must come. Did you, in point of fact, go to any house with him ? — Yes. 3fr. Justice Moore . — Did either of the two men go into the house also % — All four went into the second house, or an eating-house. Lord Chief Justice Doherty . — Where was the second house ? — It was in Stephen-street. Where ? — I cannot say what number. Was it a tavern ? — It was a kind of eating-house. The Solicitor-General . — Which side of the street ? — It was opposite to that Stephen-street which leads to Grafton-street. Mr. Whiteside . — That is going up to the Castle, I suppose ? — Yes, in that direction. Was any proposition made to you about joining any club by Dobbyn ? — I should have mentioned that, on leaving it, he said I was ‘‘ a right fellow.” ' Was that after the conversation you have described ? — Yes. Lord Chief Justice Doherty . — After leaving what ? — After leaving the first tavern, or public-house, my lord. Mr. Whiteside . — Had you any conversation with him afterwards, that night, about any club — He then said the two men who had gone before were damned papists. This was while you were alone with him ? — Yes, this was while I was alone with him. That I should have humoured the conversation as he did. Did he afterwards, that night, say any thing to you about joining a club ? — Yes, he did j he asked me had I joined a club, and, if not, why I should not. Did you make any reply? — I told him I would not join any club; that a notice was up on the gates of the college, to the effect, that any student would be expelled who joined a club, and that I intended to go in for a scholarship the following year. Now, after you said that, did he say any thing to you about informa- tion, or assisting in informing? — Yes, I told him I would lose all colle- giate prospects; he said that though I might here, I would not elsewhere ; that a Government situation w'ould be better, and, as I was fit for it. Government could appoint me to the head of a colonial college — some colonial college. Mr. Whiteside {to Dobbyn). — Mr. Dobbyn, you need not make those faces which have just been spoken of by the witness ; take my advice, and do not. {To the witness .) — Was any thing said by him to you of Titus Oates ? 846 SPECL\L COMMISSION, CO. TIPPERARY. — Yes; he said that the times were similar to those in England at that time. Did he mention the words ? — Yes, he mentioned the name Titus Oates, Did you separate shortly after from him that night — We remained till one o’clock in the place. After that you separated 1 — After that I could not say we separated ; we remained about ten minutes together opposite the place, while the picket of soldiers passed by; he alluded to them, and pelted gravel at them. Will you swear that 1 — Yes. Did you separate after that ? — Yes, we separated after that, and I went home. Did he ask you your address ? — He followed me a second time, on my way home, and asked me for my address, which he took down by lamp- light in pencil. He said he would call on me next day, which would be Sunday, and arrange about what club I should join. [The witness here asked for a glass of water, as he had been travelling all night.] How long was it before you saw this man again ? — About three or four weeks. Where did you see him on the second occasion ? — It occurred at the corner of Trinity-street. Did he accost you on that day, or did you remember him; did he speak to you, or you to him ? — He tapped me on the shoulder, and asked me did I not know him. I said I did not. What did he reply ? — He replied that he was Dobbyn, and did I not remember the discussion in the tavern, and I said I did. Did he ask you to go anywhere with him on that occasion ? — He asked me to go and have a glass of punch with him. Now, on that occasion you went into a place with him ? — I did. In point of fact, did he or you pay for whatever refreshment you had “? — I paid for it. [The witness asked for some more winter, saying he was sub- ject to nervous palpitation of the heart.] Now, on that occasion, tell me what he stated to you ; did he say any thing of this matter about Mr. O’Brien. I presume you have never spoken to Mr. O’Brien ? — I have never seen him in my life. Nor his attorney? — Never. Now, tell us what passed on that occasion ? — Why, he was then talk- ing of the nature of divinity questions, and those things. Was there any thing mentioned about a person; was the name of Dens mentioned ? — Yes, it was. Mr. Justice Moore. — What tavern was it you went into; where was it ? — At the corner of Trinity-street somewhere. Mr, Whiteside. — Now, on that occasion, what did he say to you ? — He asked me if Dens’ Theology was read in college. What did you say ? — Not to my knowledge. What did he say with reference to the question of giving informa- tion ? — He said that by it a Roman Catholic was qualified to swear, and get absolution from the priest for any information, false or true. THE QUEEN y. WILLIAM SMITH O’BRIEN. 847 Did lie say any tiling as to wliat that was ? — He said of course the only way to counteract it was to swear counter against it. Did he say any thing about one man only giving information ? — Yes. What did he say 1 — He said if I joined a distinct club from him^ and both our statements of information agreed, credit would be attached to it, and the more the better. And he likewise said this could be well managed by my drawing out what I called propositions for my club. Resolutions 1 — Yes, resolutions, and getting signatures to them, and communicating with him, and that he would communicate this to the detectives. Now, when he made that proposition to you what did you do ? — I called him a rascal and a blackguard. Will you swear that ? — I do. What did he say then in reply to that ? — I told him to leave the place. And did he change his manner or tone, and say any thing ? — He went out and came in again, and smiled, and said he was surprised that a man of my learning could not perceive that he was humbugging. Now, did he add any thing to that; did he say any thing about your education or capacity for drawing up resolutions ? — He thought I was a very useful person ; and he said that such persons were wanted and were encouraged. Now, after he said that a man of your education ought to have known he- was humbugging, did he say any thing about the landlords of Ire- land ? — Yes; he said that it was a plan of his, in order to take true men into the club, to sound them, for there were spies going in all directions. He then said the landlords were the bane of Ireland; they were tyrants; and that if every man was like him every thing would be right in Ireland. Did you ever see him, in point of fact, after that 1 — I did not till now. When did you read his evidence in the paper; on what day? — Thursday. I believe you then drew up a letter ? — I should have stated that some of these facts I mentioned to two or three persons at the time they oc- curred ; and on reading the paper, they said, “ Oh ! do you remember what you told us about Dobbyn ? ” And you have been brought down just as you were yesterday? — Yes. Cross-examined by the Attorney-General. You say you gave your address, and that Dobbyn took it down by the light of the lamp? — Yes. What address did you give? — 27, Bishop-street. How long have you lived at 27, Bishop-street? — Off and on for three years. Who owns the house ? — A man of the name of M^Dermot. What business does he follow? — He appears to have made some money, and he is also in the dealing line. What do you call the dealing line? — He sells provisions. He is a huckster, I suppose? — Yes, you may call him so. Sells provisions, flour, bacon, and things of that sort? — Exactly. How long have you lived there? — Off and on for about three years. 848 SPECIAL COMMISSION, CO. TIPPERARY. What do you call off and on? — I have not resided there three years continuously. Where have you resided the remainder of those three years off and on? — Sometimes I have been engaged in tuition, and sometimes re- moved my lodgings. And where did you remove to? — I was at No. 19, Digges-street. When did you lodge at No. 19, Digges-street ? — I cannot say exactly when it was. How long are you now lodging, or living at M^Dermot’s house? — At this present time I am there from since about April last. April of the present year? — Yes. And where did you lodge immediately before that? — I had been a while in England. Where in England were you? — In Liverpool. What were you doing there may I ask? — I had applied for a situation. And got it? — Well, I did get it, but afterwards did not obtain it. I mean to say, it was engaged to me. And you dismissed it I suppose? — No. It dismissed you ? — Well, I cannot say that either. The circumstances were these, — that I had agreed with a gentleman of the name of Dove, whose school was in Making-place Hall. In Liverpool? — No, far from it; and on going over there, I received a letter to know whether I was an Irishman. I replied that I was, and a freeman of the city of Dublin ; and he said an Irishman would not suit. Would not suit? — Precisely. Where were you at the time he engaged you? — I was a while in Liverpool. At Literpool? — No, I cannot say the letter relative to the last circum- stance came to Liverpool ; it came to Dublin. And after bringing you over from Dublin he asked you, were you an Irishman ? — Y es. And because you came from Dublin he suspected you were an English- man? — I don’t say when I came over to England; I say, I looked upon the engagement as concluded, and I went over, on my way paying my own expenses. Have you that letter about you? — No. Where is it? — Indeed it would be hard to find it ; what would I keep it for ? That is your own affair not mine. How long did you remain in England on that occasion ? — I think I was three or four months. How did you live or support yourself in England; where did you lodge? — In difterent places. Just give me the names of some of them? — I lived in a place, I think, called Peaover-street. What part of Liverpool is that in ? — Somewhere out towards the country. On what road? — Towards Everton. Is it near the cemetery there? — Well, I cannot say it is. Did you ever see the cemetery ? — I did. Whereabouts is the cemetery? — I cannot well describe it; I am not very well acquainted with it. How long were you in Liverpool ? — Three or four months. And you never had an opportunity of looking at the cemetery? — No. THE QUEEN v. WILLIAM SMITH O’BRIEN. 849 How were you supporting yourself in Liverpool? — I had a little money. How much? — Two or three pounds. And that supported you for three or four months ? — No, not altogether that. Hid you earn any thing while you were in Liverpool? — I did. How much? — Three or four pounds. By what trade or profession ? — By a school. Hid you set up a school? — I did, a night school. Of your own ? — Yes. May I ask you where you set up this night school ? — It was in England. What town ? — Liverpool. What street in Liverpool? — It was in Stanhope-street. The house was all your own? — No, it was not. Who was the landlord, or whose house did you set up this night school in ? — It was a place some person got for me. What was the name of the man in whose house you held this school ? — A man named Lloyd sometimes How long did you keep the school in Lloyd’s? — About a month altogether. What other house did you set up this school in ? — They used to come to my place, and I to them sometimes. In whose house? — I think it was occupied by Mrs. Wright. Are you quite sure ? — I think that is the name. What street ? — Peaover-street. And what street did you say Mr. Lloyd lived in ? — Well, he lived down on the quay, some place. What was the name of the street ? — I do not remember now. You told me the name within the last five minutes ?— Stanhope-street. What business did Wright follow ? — He was, I think, a sailor; some- thing to do with ships. A sailor ? — He was a mate on board some vessel or other. Had he a wife and family ? — He had a wife. Had he children ? — One daughter, I think. What age was she ? — Six or seven. Who was this Mrs. Wright, in whose house you were ? — I cannot tell; I never spoke eight or ten words to her scarcely. What name did you pass by in Liverpool ? — My own name. Mr. Halton ? — Yes. There is mo mistake on that subject ? — No, not the slightest. What other house, besides this woman’s, and this other gentleman’s, Lloyd’s — what other house did you live in in Liverpool ? — I resided in a man’s house of the name of Herrick. Hid you keep a school there ? — Partly. What do you mean by keeping a school partly ? — I could not say I kept a school in it, but I got a few persons to come in. AVhom you taught ? — Yes. What street did he live in ? — I think it was a street off Tilebarn- street. And how long did you remain in that house ? — I think somewhere about four or five weeks. Ho you remember the number of the house in Tilebarn-street that 3 I 850 SPECIAL COMMISSION, CO. TIPPERARY. you were four or five weeks in ? — About number fifty, I think ; it was off Tilebarn-street. Can you call to mind the name of the street ? — It was off Tilebarn- street. When was it you returned from Liverpool ? — Somewhere in April. The month of April last? — Yes. Had you ever been in England except on that occasion ? — No; I had been in Scotland. Not in England. Since your return do you recollect any of the public meetings that were going on in Liverpool about that time ? — Yes. Did you attend any of them ? — None. You did not form any acquaintance with the gentry there? — Not many; a few. Since your return in the month of April you have constantly lived in M‘Dermot’s house ? — Y es, I might say I have. I want to know as a matter of fact ? — As a matter of fact I resided in another house about a week before. Well, whose house ? — I think her name was Kelly. Where did she live ? — She lived near Redmond"s-hill. What is the name of the street ? — Well, it is near Wexford-street. Tell me the name of the street? — I cannot tell; it cuts down and joins Dame-street. What is the woman’s name ? — Kelly. What business ? — She sets lodgings. Is it a private house ? — No, it is what they call a lodging-house. She has no shop or house of entertainment ? — No. Is it near Peter’s-row ? — No, it is the opposite side. Is it French-street? — No, it is not French-street. You only lodged a week with Mrs. Kelly ? — About that time. And then you went to M‘Dermot’s house ? — Yes. What do you pay M‘Dermot for your lodgings ? — Three shillings and sixpence a week. And you have constantly lodged with her since the month of April? — Yes. Do you teach a school there ? — No. How do you support yourself at present ? — By pupils. Do they come to you ? — No, they are rather too humble for that; I go to them. I think there is no discredit on me; I just hold as high an opinion of myself as my examiner. And a great deal higher, I am sure? — Not higher. This meeting took place or occurred in O’Neill’s tavern? — I think that is the name. Could you tell us what month that was ?• — I think June. In the month of June last? — Yes. What time in June ? — Somewhere about the middle. A good deal of the conversation was about the conviction of Mitchel ? — No, a good deal of it was not. Some of it was, I think you said ? — Yes. Was any of it about the conviction of Mitchel? — Yes. He had been tried and convicted at that time ? — He had. Do you recollect when he was tried and convicted ? — I cannot give you the date exactly; I do not register the dates of modern events. THE QUEEN WILLIAM SMITH O’BRIEN. 851 You register dates of ancient history, I suppose ? — Yes, of antiquity. Mr. Whiteside . — What the witness said was, that Dobbyn said he was a disciple of John Mitchel. The Attorney- General . — I know. [To the witness .) — I ask was there any conversation about John Mitchel ? — None whatever. This was about the middle of June % — Yes. What day of the week ? — It was Saturday. In the middle of June? — Yes. And you stated you had been there three or four hours ? — I had, previously to the party’s arrival. Five or six hours previously to the party’s arrival ? — I cannot give you the exact hour I went in there. What hour did you go in ? — Somewhere about three o’clock. And this occurred about seven or eight ? — Three or four I went in; this occurred a little later. What hour did these other persons come in ? — Somewhere about eight o’clock. And you remained in the house from three to eight ? — I had been there from three to eleven. And this was about the middle of June ? — Yes. x\nd you were reading in the newspaper a history of the French revolution? — Not that particularly; I read every word in the news- paper. What was it that occupied you for the four or five hours ? — I think it was mostly about the French. Hid you state just now that it was reading an account of the French revolution ? — Well, I state so still. And it was reading the account of the French revolution ? — Reading the whole paper; I read the whole newspaper. What paper was it, may I ask you ? — The Freemari s J ournal. And did it give a very interesting account of the French revolution? — It did at the time. When did the French revolution take place ? — Now I beg your pardon, the French revolution is not the circumstance altogether. It is that late attack that was made after the republican form of government was established, when Lamartine was put out. When did that matter take place, as a matter of history ? — I cannot give you the exact date. You do not register these modern events? — No, of course not. Ho you recollect the month it was you went into this tavern? — Yes. Can you recollect which day of the month ? — I cannot say I recollect the day of the month; I recollect the month. What time in June? — Somewhere about the middle of June, I bound it by the review in the Park ; somewhere about that time. That was, I suppose, the anniversary of the battle of Waterloo? — Well, I suppose so. It was on Saturday just at that time? — It was somewhere about that time. You had never seen Hobbyn before? — I had not. Who came in first ? — I did not pay much attention who came in first. 3 I 2 852 SPECIAL COMMISSION, CO. TIPPERARY. Do you know who they were ? — I do not remember their names. Did you know their names 1 — I think one of their names was Kavanagh^ or some name of that kind. Have you ever seen him since ? — I saw him in the streets on the Monday following. Where did he live ? — I cannot say. Did you ever speak to him since ? — I did once. When did you speak to Kavanagh ? — I only spoke three minutes to him. Where ? — At the corner of Bishop-street. Who told you his name 1 — One of the other men ; the other man who was with him. Who was the other man ? — I do not know ; I never asked him his name. But he told you Kavanagh’s name ? — Yes. What was Kavanagh’s Christian name ? — I cannot say; I do not know this man’s Christian name. You do not know what trade or business Kavanagh was"? — No, I do not. And you had never seen him before? — No. And you do not know the name of the other man ? — I told you not. I wish for a drink of water. And you never saw him since? — No, I did not. When was it you asked him what was Kavanagh’s name ? — I did not ask him; I heard him saying it was Kavanagh. Who did he say it to ? — To me. Did he say “that man is Kavanagh?” — No; he said in the conversa- tion that Kavanagh might call on me. Who said that ? — The other man did. Not Dobbyn ? — No. Therefore you had a conversation with that third man ? — Yes, I said a few words to him. What was that conversation about ; this conversation with this third man ? — The third man said he thought it was something about clubs. And that Kavanagh would call on you on the subject ? — That he might. Did you give him your address ? — What ? Did you give Kavanagh your address ? — I did not. Did you give the third man your address? — I did. You did? — Yes. Who was that man who wanted you to give your address, this third man ? — I do not know his name, I told you. Did he tell you for what he wanted your address ? — He did not define his particular object. What did he say ? — I understood it was for joining in some club or other. You understood that this man wanted you to join in a club? — Yes. Is that so ? — Yes. And that Kavanagh would call on you for the purpose ? — That he might ; he might not. And you do not know who that man was ? — No. Did he take down your address under the lamp-post ? — No, he did not. Where did he take it down ? — I told it to him. He did not make a little memorandum? — No. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 853 Where did you tell it to him ? — In a house in Stephen-street. In the house at the tavern ? — No, after coming out of it. Was this before you all went to the supper-room ? — No, it was after- wards. After you had come out from supper ? — From supper. The whole four of you supped together ? — We took something together. What did you take? — We took some meat — a little meat and bread. What hour of the night was it that you had supper of meat and bread ? — Between eleven and one o’clock. And you had never seen any one of these three people before? — No, I had not. And which of you paid for the supper ? — I did not pay; I cannot tell. Was it Dobbyn paid for it ? — I cannot tell. Did you leave the house without paying the bill the whole four of you ? — No. Did you see the bill paid ? — I did not. Was it paid by any of you before you left the house ? — I am sure it was. You that are so very clever, if you are sure it was, was it paid in your presence ? — No, it was not. And you all left the house together ? — Why we walked out of the house, and stopped a little time about the door there; and the man of it was very friendly going out. I remained in while the other three were settling the affair. I see, I see. The other three were settling the bill between them ? — Yes ; they were paying it. And the other three wanted you, in fact, to join in a club; is not that so ? — Yes; they were talking of it. The whole three ; is not that so ? — I will not say the whole three ; two of them. Now, what two wanted you to join in a club ? — What two what ? You say two of the three wanted you to join in a club. Which two of the three ? — Kavanagh and this man. Kavanagh and Dobbyn — both together? — Yes; that night. And Kavanagh also began to talk of Titus Oates? — No; he did not. Not at all? — No. Now, you never saw that third man since? — The third man, whose name I did not know ? Yes? — I met him once. Where? — Near Ship-street barracks. Did you speak to him ? — I did. What did you say to him ? — I said to him, I was very glad that I had no hand in any club. When was that ? — It was rather late. When ? — I think it was in the month of ; it was rather late. When ? AVhat month ? — Three or four weeks after this ; late in July. And you congratulated yourself on not having any thing to do with the clubs? — Yes ; I told him it was a very fortunate circumstance. What did he say to you about it? — He said it was; he had not joined them either. Although he wanted you to join them? — He did not distinctly. The man whose name you did not know, he wanted you to join ? — No. 854 SPECIAL COMMISSION, CO. TIPPERARY. Did neither of the men want you to join 1 — I told you two of them asked me to join. Which two ? — Kavariagh and this man. But the other man never didl — No; he did not. Did you ever meet him except on that second occasion? — No. Did you ever meet Kavanagh since ? — At the corner of Bishop-street. Where does Kavanagh live ? — I cannot tell you. Nor never asked? — I never asked the man. Did you know Dobbyn’s name on that occasion ? — On what occasion ? On the occasion when you met him at the tavern ? — He told me his name afterwards. When ? — Going home the second time, at one o’clock ; he said he was a law clerk. Did he tell you where he lived? — No; he did not. You did not ask him ? — No; I did not. You do not know the man at all whose name you never heard ? — No. Never saw him since ? — Never saw him since. You have no suspicion what his name is? — No ; I have not. Nor where he lives? — No ; not the slightest. Dobbyn did not tell you where he lived ? — He did not. He told me he was a law clerk, and Dobbyn was his name. You told him your name? — Yes; I did. And you told him where you lived ? — Yes. And he called on you ? — He appointed to call on me, but he did not do so; he met me in Trinity-street. He met you in Trinity-street? — He did not meet me either; I was standing in Trinity-street, and he tapped me on the shoulder. Wliat did he say on the second occasion ? — Why, he asked me to take a glass of punch. That you have no objection to I suppose? — Well, I have not; I am not attached to it. Did you take a glass ? — I did. What did he say to you then ? — He asked me what system of divinity was pursued in college. And he asked you whether they taught Dens’ Theology in college ? — Whether it was read. You told him you objected to that altogether? — Objected to what? To these clubs. On the first occasion that you saw him, you told him that you objected to these clubs altogether ?’ — Yes. Did not you ? — I spoke against the clubs — against the repeal agitation, I told you. May I ask you, did you graduate in college? — No; I did not take my degree. When did you enter ? — I entered What year? — I entered as a pensioner in the year 1846. You have since regularly attended, I suppose? — I have not since regularly attended ; I took my name off the books. When did you take your name off the books ? — Well, I cannot say that I took my name off, but my name was struck off. When was it struck off? — I cannot say — some time after May. After last May. Do you mean the May of the present year ; since you came from Liverpool? — Yes; it might be. As a matter of fact ? — I cannot tell. I had not paid the £7 lOs,, and THE QUEEN t;. WILLIAM SMITH O’BRIEN. S55 I do not know wlien my name was struck off. I did not call on my tutor about it. 3Ir. Whiteside . — It was for non-payment of your fees? — Yes. The Attorney-General . — While Hobby n was under examination, I believe you came in here to look at him, to be sure you knew him ? — No; I did not. Were you standing there ? — Yes. And you came in to look at him ? — No; I did not. What brought you into court during Hobbyn’s examination ? — I was told I was wanting. And you were placed opposite Hobbyn, and then brought out again ? — That is the fact, that I was brought out again, decidedly; but I did not come in to see Hobbyn, or any other person. Of course not. Was he pointed out to you ? — No. Hid you see him sitting in that chair ? — I saw three men brought in here. Were you sitting there just where that little old gentleman is now sitting during a portion of Hobbyn’s examination ? — I did not hear any portion of his examination. Hid you come in to look at him 1 — I did not. What else on earth brought you in ? — Some gentleman brought me in, and said I was required. And who told you the very moment you saw Hobbyn to be off again ? — I cannot say. Who brought you out ? — I cannot say who brought me out. Or who brought you in 1 — Some persons brought me in, and said I was wanting. Hid they say you were going to be examined ? — Yes, that was what I understood. And you found that was all a mistake ? — It did not strike me. I walked in, and when I found I was not called on, I walked out again. On your oath, did you not place yourself sitting just where that gentleman is now ? — I did not know there was any person here. On your oath, did you see a person sitting on the chair on which you are now sitting ? — I did. Hid you hear the learned counsel examining the man who was sitting on that chair ? — I did not. You did not hear him ask him a question ? — I did not hear him ask a question. What were we doing here, when you were sitting there ? — I was not one moment there ; I heard some persons say two or three words. What did you hear them say ? — I could not say, on my oath. On your oath, you tell me as a matter of fact, you do not know for what purpose you were brought into court ? — On my oath, as a matter of fact, I thought it was to be examined. At that moment ? — At that moment. On your oath, do you believe that now. Ho you now believe you were brought in for the purpose of being examined ? — On my oath, I do. And not to show you the man you were to identify? — Yes, I swear that on my oath. 31r. Potter {solicitor for the prisoner ). — I brought him, and my counsel desired me to take him out. The Attorney-General . — Ho you know this gentleman {pointing to Dohhyn) ? — Yes. 856 SPECIAL COMMISSION, CO. TIPPERARY. {To Dohhyn .) — Do you know this gentleman? — On my oatli, I never saw him. A Juror There is one question I wish to ask him. Lord Chief Justice Doherty. — I have not heard how he came to know of this trial. Mr. Whiteside . — I asked that question. He came down last night by the special train. He had never spoken to the attorney or to Mr. O’Brien. A Juror {to the witness ). — Did you give evidence of your own accord before any body, before you came down here? — Yes. To whom ? — I mentioned to some person, that I was almost convinced this was the person who appeared to me, and that I thought it right to publish an account of it in the newspapers. And I will swear on my oath I never expected to be brought here. Mr. Whiteside — Is this the letter you sent on purpose? — Yes. It was by sending to the editor of a newspaper. Is that a true narra- tive ? — Yes, I sent that to the newspaper to be published. A Juror. — When was it sent ? Mr. Lynch. — He sent it last night. A J uror — What date is the letter ? — I did not date it. When did you write it ? — I wrote it on Friday morning, I read the circumstance only on Thursday, of a man of the name of Dobbyn. It struck me he was the person, he being a law clerk ; and there were other circumstances he had mentioned to me regarding himself, from which it appeared to me that it might have been the same person ; and I suggested this to some persons to whom I had told this at my first acquaintance ; to whom I mentioned that those persons were to call on me to join a club at my first acquaintance, and they said I ought to publish it in a newspaper. Some persons advised me to it, and other persons dissuaded me from it, and ultimately I wrote a copy out and sent it to the paper. The Attorney-General . — What paper ? — The Freeman! s Journal. Has it been printed or published? — No, not yet. On going to The Freeman! s Journal office, and reading the narrative, they forced me, in fact, down here ; and I swear positively on my oath, I had never the most remote idea that I would be here this day, this time yesterday. A Juror . — Was it yesterday you wrote that, or yesterday week? — On Friday, at the hour of about nine o’clock. I read the circumstance on Thursday, and I mentioned it, and I came to the resolution of sending the account either to the Saunders or Freeman. And when I had written it I went to Doctor Gray’s office, and they came to the resolution that I should come down, which I did reluctantly. Mr. Whiteside . — They brought you straight to the railway? — Yes, and further I consider myself at a serious loss by coming down. Mr. Whiteside {to the jury). — Is there any other question you •v\^Ish to ask, gentlemen ? A Juror . — Was it true that Amu wished to have it published? — Yes, it was my wish to send it to the paper. Mr. Whiteside . — Is it all in your own handwriting? — Yes it is. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 857 Did you describe Dobbyn’s person before you were brought here ; did you describe it to the person who brought you here 1 — On my oath, I did. I wished to give the information. A Juror {to Dohhyn). — Mr. Dobbyn, I wish to ask you a question. You said that Mr. O’Brien did not know you — never spoke to you ? — Never spoke to me. Now, you were a member of the Council of Twenty-one ? — Yes. Was he equally unacquainted with all the oLher members of the council ? — No, he was not. I beg your pardon, I was not a member of the Council of Twenty-one. I say I came to the meeting as a repre- sentative of a club. You said distinctly you were a member of the council. I ask you whether or not you were a member of the council ? — I was not a mem- ber of the council. I went to the meeting as the representative of a club. A representative of what ? — The representative of a club which met at the council; which formed the council. The Lord Chief Justice. The interruption that has taken place requires me to observe upon the position in which this question of Dobbyn’s credit is now placed. At the instance of the prisoner’s counsel permission, by the consent of the Attorney-General, was given by the Court — The Prisoner. — I beg to make my acknowledgments to the Attorney-General for the concession. The Lord Chief Justice. — To call Henry Dalton, for the pur- pose of contradicting Dohhyn ; and Dalton has given you a detail of transactions, representing himself to have met Dobbyn on a particular occasion ; to have continued in his company for some hours ; to have met him afterwards ; and to have had various communications with him on the different topics which you have heard stated. Dobbyn is produced, and confronted with him ; and if what Dobbyn says be true, the whole of that statement of Dalton’s is a pure and absolute fabrication. Now, which of these witnesses speaks the truth it is for you, and you exclusively, to decide. If you think Dalton tells the truth, I would advise you not to pay the slightest regard to the evidence that was given by Dobbyn ; to deal with the case as if you never heard a w^ord from his lips. But beyond that, the rejection of his evidence ought not to operate with you. For you will still, as I before told you, remember that Dobbyn has been impeached. I sub- mitted to you fully the grounds on which the Crown contended that his testimony was sustainable, and I told you, even upon those grounds, if you thought that you could not safely trust to his evidence, or that you had a reasonable doubt of his accuracy or truth, that you ought to deal with the case as I have told you now you should deal with it, if you give credit to the statement of Dalton. If, on the other hand, you believe Dobbyn to have been now telling the truth on the subject, upon which he is con- 858 SPECIAL COMMISSION, CO. TIPPERARY. tradicted by Dalton, I would still advise you not to allow the result of that contradiction to influence your judgments upon the question, whether if you had never heard Dalton he is en- titled to credit. Deal with that question precisely as if Dalton had not been examined, and try that independently of any con- tradiction. Gentlemen, the kiterruption took place in the course of the statement of the evidence of John Hamilton, the policeman, who deposes to one of the speeches referred to at Carrick-on-Suir. This is the 24th of J uly, and you know that on the 25th he appeared at Mullinahone. And it is a period at which it appears right to me to make this observation to you, that you should consider how far the course pursued by Mr. O’Brien on the five following days, was a course which would have been ordinarily directed by a desire to avoid arrest. Whether, if he desired to avoid arrest, he would have adopted a different course, and whether the course that he did adopt was one that showed his own personal safety was not the cause, or the motive of his con- duct in those five following days. As has been observed, if his object was escape, he might have effected it. He never attempted it ; but instead of doing so, he goes to this part of the country, where it does not appear he had residence or occupation, and you will hear in the sequel how those five days were spent, or were occupied ; and you will say, upon your oaths, whether they were so spent and occupied in devising means for his own per- sonal safety. The first witness on this part of the case that I call your attention to is, Timothy O’Sullivan, who lived at Mullinahone. He saw the prisoner there on Tuesday, the 25th of July, about twelve or one o’clock. Dillon was with him. He was addressing the crowd in the street. Their number was about one hundred and fifty. He remained moving along the streets for a few hours, and the crowd increased. He then went towards Kickam’s, a shopkeeper, and thence to Wright’s ; and he heard him speaking to the Rev. Mr. CahiU. He told him he was Smith O’Brien, and held a letter in his hand to show that he was. Cahill said he was totally against Mr. O’Brien’s proceedings. He afterwards went to Wright’s, and remained an hour and a half there, and came out about two o’clock. There was then a crowd assembled. Mr. O’Brien stood on a wall and addressed them, and he said, now is the time for the people of Ireland to seek for their rights. The Government was near a change. That there was a warrant against himself ; and he hoped the people would not let him be arrested. They said they would not. He said that Irishmen should hold their own places instead of Englishmen, and spoke more which the witness could not recollect. Dillon then addressed the people for about half an hour to the same effect, and he cannot recollect the substance of his speech. THE QUEEN v. WILLIAM SMITH O’BRIEN. 859 Then Mr. O’Brien went into Wright’s and remained there some time, and came out in about an hour and a half, and he saw him go through the town with two hundred men two deep, up to Garrick. They all came back in the same w^ay in a quarter of an hour. After dark he came out of Wright’s. By this time the crowd had increased to several hundreds. He told them all to get their arms, that he might see their strength. Mr. O’Brien then had a large pistol in his left breast pocket, and two or three hundred had weapons of all kinds ; guns, pikes, swords, and pitchforks. There are some of these weapons which you ordi- narily find on people of the country ; but certainly pikes are not among the number ; those who make pikes must make them for mischievous and destructive purposes. He did not see any fire- arms until after dusk. He marched through different streets, and went to Wright’s, and there met the main body, which at that time had increased to five or six thousand men. I observe we are now in the county of Tipperary, where the policeman states truly Mr. Meagher said he had reviewed 50,000 Tipperary men. There was a separation of the armed and unarmed part of the force. Mr. O’Brien said none should fall into the ranks but those who were armed. After this he saw some of the unarmed men go off. This body remained in the streets the greater part of the night, going up and down. There were armed people about Wright’s, guarding the place. He heard Mr. O’Brien give them orders to remain the most of the night to guard himself lest he might be arrested. That night Mr. O’Brien stopped at Wright’s. The next morning, which was the 26th, Wednesday, he saw him between seven and eight o’clock coming from Wright’s, and going into the police barrack. Two persons were with him, O’Donohoe and Stevens. One of them had a double- barrelled gun, and the other a single-barrelled gun. Mr. O’Brien ■ had a pike, and wore a cap with a gold band. He saw him come back from the barrack to Wright’s. He says he afterwards saw about two hundred persons collecting, and Mr. O’Brien address- ing them from the wall opposite Wright’s. They were armed with a number of pikes. He left Mullinahone about eleven or twelve o’clock, and the witness saw most of the people marching with their pikes towards Ballingarry, which is five or six miles from Mullinahone. He then goes to the 27th. About twelve or one he saw him coming from Ballingarry into Mullinahone. He was leading on foot a body of two hundred and fifty armed men, marching four deep, and had a pike on his shoulder. There was an advanced guard of twenty or thirty armed men, but Mr. O’Brien was at the head of the main body. The advanced guard was led by a man mounted, with a pistol in his hand, and a small sword attached to a belt. The advanced guard ^yas about twenty yards before the main body. O’Donohoe and Stevens were with the main body, armed as before. The main body was four deep. 860 SPECIAL COMMISSION, CO. TIPPERARY. The advanced guard halted then at a baker’s shop, and ordered, and got bread for the men. When they had got it, they joined the main body, and ate the bread. Mr. O’Brien halted with the main body. He says they broke out of ranks, and one or two shots were fired after they broke out of ranks. Mr. O’Brien remained about half an hour, and then went on foot towards Garrick, with twenty or thirty armed men, marching in rank two or three deep, and took the direction to Cappogue. He had a pike, and was at their head. He was not with the men when the shots \vere fired. Dillon, O’Donohoe, Stevens, and the man on horseback went along with Mr. O’Brien. He says the bells of the chapel and church were rung both on the 25th and 27th ; and there were fires lighted at Slievenamon and other places — ten or twenty in number. It is perfectly obvious from that state- ment, that not only were the people armed, but that they were prepared by signals — ringing of the bells and the lighting of the fires — to assemble wdienever these same signals were understood by them. He is cross-examined, and he says he counted the numbers as near as he could. That he made his information on the 1 2th of September. That the bread was bought. That Mr. O’Brien was received willingly by Wright’s son, whose name was Thomas. He said he told the magistrate what he has said about Mr. Cahill. Mr. Cahill lives outside the town ; and he is per- fectly sure five thousand men were there that night. He says he has been in the police ; that he left it voluntarily. He said he would not go back at present. He was not dismissed ; not charged with any offence ; keeps a bakery ; resigned his place in the police of his own accord ; resigned to Young. Was not married when in the police, and was not at the time in good health. He never reported any speeches before. That is the testimony of O’Sullivan ; and it will be for you to say whether or not these accounts that are given of the assembling of these forces — the array of them there — the marching, and counter- marching, and drilling ; I say once for all, it is entirely for you to say whether you believe the constables who depose to them. David Wilhams, the head-constable, gives important evidence well deserving your attention. It is due both to the prosecution and the prisoner to repeat it to you, and I hope it will not be necessary to do so again ; that on reading this evidence, you are to read it with these questions, to be answered by you when you understand it. Was the object of this or that meeting the personal protection of Mr. O’Brien, or was it a general purpose of a revolutionary and illegal character ? David Williams is a head-constable of police, and with six men was stationed at Mullinahone. On Tuesday evening the 25th, he saw Mr. O’Brien, at five o’clock, near Kickam’s house. There were twenty or thirty people with him. The chapel bell was rung, and the people were gathering. He heard him speak from a wall THE QUEEN y. WILLIAM SMITH O’BKIEN. 861 opposite Wright’s, addressing the people, then in number about two hundred. He had a pistol in his left breast. He said a warrant was issued for his arrest, and if taken he thought he would be hanged. He was anxious to know from the people, whether it was their wish that he should surrender himself, for if not, he was prepared to resist any attempt that might be made to arrest him. A Juror. — Surrender himself ? The Lord Chief Justice. — If not, he was prepared to resist any attempt that might be made to arrest him. He saw witness and said, “ he had no anxiety to shoot a policeman, that they were brothers, and should be treated as brothers till they merited the contrary; and then, they were to be met openly, hut by no means to take advantage of them.” It has been observed, and I think it is worth an observation too, in speaking and communi- cating with the police and soldiers, there seems to he a pre- valence of the same views and opinions towards them as those which are very distinctly stated in the speech of the 15th March. He said “ there would be another form of government in six weeks, and that the vacancies should be filled up with Irishmen.” A person of the name of Dillon was with him, who had a plaid round his left shoulder. He, the witness, remained in the town, and saw what was going forward. The crowds of people in- creased, some with fire-arms, some with pikes, and some with pitchforks. He saw not less than two thousand from the barrack, where he remained, with his party, up all night. He heard shots fired during the night. On the 26th, about eight o’clock, Mr. O’Brien came into the barrack with two other persons. The arms of the men were up stairs. He wore a cloth cap, with a band like a military officer’s. He had a stick and spear. A Juror. — With a spear on it. The Lord Chief Justice. — The spear in his left hand, and the pistol in his right ; and he says, he saw three pistols in the breast of his coat. One of the others, a young man, had a double- barrelled gun and a stick. Lord Chief Justice Doherty. — A dirk. The Lord Chief Justice. — The other, O’Donohoe, had a gun. Mr. O’Brien said to the witness, “ I want your arms and the witness said he could not comply with his request — and they would only part with their arms with their lives. He remon- strated, and replied, “Did you not see the display last night?” The witness said he did. Mr. O’Brien said, that a barrack, where there were five hundred men, was to be attacked that day, and that it was better for them to give up their arms and come with us to Callan. He added, and “ I’ll ” or “ we will put you under pay.” A Juror. — Place you. 8G2 SPECIAL COMMISSION, CO. TIPPERARY. The Lord Chief Justice . — He asked witness what he was deter- mined to do. He said he would be unworthy of the name of an Irishman if he gave him up the arms. He then said he would give them an hour to consider ; and in that time he would have five hundred men, and resistance would be useless. He, and the other two gentlemen, then left the barrack. In five or six minutes the witness and his party went out of the barrack, but re- turned immediately afterwards, and remained in Mullinahone until about twelve o’clock, when the whole party marched olf to Cashel, pursuant to orders. He is then cross-examined, and he says, there is but one story in the barrack. It is but one story high. This conversation was in the room, and the men were preparing their things for a journey ; their arms being up stairs. He says there are not five hundred policemen in Callan. The number of pohce at stations vary. He says Mr. O’Brien was not more than two minutes in the barrack. He marched his men out and met Mr. Corcoran, and afterwards returned and remained in the town four hours ; and made his information on the 6th of September. This is most important evidence on the question, whether Mr. O’Brien Tvas meditating merely the means of personal safety, or whether he was meditating a change or revolution in the Government ; and if that witness speaks the truth, it is hard to understand that the latter is not the true construction of this part of the evidence ; because, to disarm the soldiers and put them under any pay, but that of their Sovereign, was as unequi- vocal an act — an overt act — of high treason as was possible to be stated ; and is one of the acts stated in the present indictment. He says to a juror, the handle of the weapon was about three and a half feet long. That there was at the end of it a spike, about eighteen inches, and that he kept the spike down. The sash which he described, was a plaid shawl. He said no threats were used, nor were there any armed men at the time outside, nor was any purpose stated for which they wanted the arms. Francis AViggins, one of the same party, deposes to the same transaction. He is one of the party. He says he was on the 25th of July at Mullinahone. He saw the prisoner at five o’clock in the evening with two gentlemen, named Dillon and O’Donohoe. They came out of Kickam’s house. He says his party remained up during the night, and the chapel hell rung about seven o’clock, and the number of people in the town increased. Next morning Mr. O’Brien, O’Donohoe, and another came into the barrack. They were all armed as before stated. Mr. O’Brien addressed the head-constable and said he wanted the arms. AVilliams refused. Mr. O’Brien said, “ Did you see the men last night ? There is to be a barrack attacked this day where there are five hundred men and that it would be better for them to give up their arms and march to Callan, and that he would put them under pay. Williams again refused, and said he w^ould not be THE QUEEN i;. WILLIAM SMITH O’BRIEN. 8G3 worthy the name of an Irishman if he did. Mr. O’Brien said he would give him an hour to consider, and if refused he would have five hundred men, and resistance would be useless. The two others with Mr. O’Brien after three minutes went away. Mr. O’Brien wore a cap with a gold band round it. Immediately after that the party left the barrack and went about thirty yards, and afterwards Mr. Corcoran went with them out of the town, at twelve o’clock. On his cross-examination he says, he made his information on the 6th of September. That he took no note of the words. That he breakfasted, and afterwards they marched off. Mr. Whiteside. — With their arms. The Lord Chief Justice. — That Mr. O’Brien had four pistols, and he was two or three minutes in the room near the fire. He named Callan as the place which they were to go to. He was speaking to Williams, and saw O’Donohoe at Kilmainham. He did not leave the barrack after ten o’clock at night. The handle of the weapon he wore was not a walking-stick, and the spear was pointed down. He says to a juror that the caj) that the gentleman wore was not a gentleman’s travelling cap. Now, gentlemen, that is the evidence of so much as these two constables depose to, connected with what they saw on the night or evening of the 25th, and the morning of the 26th of July, when the barrack was visited. I pass over the testimony of Michael Tobin, the car driver, because the manner in which parties pass from one point to another is not of the slightest importance. Mr. Whiteside. — Perhaps your lordship will just say, with reference to that, that the carman did not drive to Callan. The Lord Chief Justice. — I will read it if you like. Mr. Justice Moore. — He did not identify Mr. O’Brien at all. Mr. Whiteside. — He did not go to Callan. There is no neces- sity to read it. The Lord Chief Justice. — Michael Tobin did not identify Mr. O’Brien at aU. This is one of the papers found on the person of Mr. O’Brien at the time of his arrest ; and you will find on looking into it, 1 do not know whether accurately or not, it marks out the dif- ferent places which are the subject-matter of the evidence — the Commons, MuUinahone, Killenaule, and various other positions about which the evidence is conversant. William Egan says that he lived in Ballingarry in July last. He is steward to the out-door relief works. He knows Mr. O’Brien, and saw him in Ballingarry some two or three days before the fight. He was coming in the direction of MuUinahone up the street with many persons. He was coming from the cross towards the chapel. Saw no arms at that time. Saw something like a pistol in his breast. Mr. O’Brien spoke, and said he was in dread of being arrested ; 864 SPECIAL COMMISSION, CO. TIPPERARY. that there was a warrant against him, and he wanted to know if they would stand by him. Another person, Dillon, addressed them to the same effect. Then he and some of the people went into the chapel yard, and Air. O’Brien said he wanted so many of them for the night to guard him. He saw other gentlemen with him on that day, and amongst them was Doheny. Air. O’Brien went up the hill with Doheny, and the rest remained down by themselves in a road. Cannot tell when they returned. The next day he saw Mr. O’Brien in the street walking alone. He afterwards saw him with three or four gentlemen who were strangers. He has since seen two who were with him ; one who was called AI‘AIanus, he saw in gaol, and the other, O’Donohoe, he saw in gaol also. They went up with the mob outside the village on a rise. They then came down. Some of them were going in and out of their houses. They passed his door, and he saw no arms with them at that time, but he saw guns and pikes with some of them when they were leaving Ballingarry. He did not see Air. O’Brien after he left Ballingarry ; that is on the Killenaule road. He says to a juror that they had arms, and he was near enough to see that they had them. John Kavanagh is a shopkeeper of Ballingarry ; Mary Egan is his servant ; and it does not appear to me that any end can be answered by stating their evidence at length, because they do not prove any thing that is not proved by other witnesses, but more especially because they do not identify Air. O’Brien or any of the parties. The next witness is James Norton. He lived in the month of July half a mile from Ballingarry, and had a farm. On the 26th of July, Wednesday, heard the chapel bell ring in the morning ; had heard it the night before. This was not for any ordinary purpose ; this was not for prayers. He says on Tuesday night there were fires lighted on the hills, blazing in the immediate neighbourhood. He saw about one hundred and fifty men coming from Alullinahone, and at the time he saw them he was at his wicket gate. He saw a man armed with a gun. One of the persons armed came to him, and he saw a party moving from Ballingarry to Alullinahone. He knows the piers of the chapel gate, but does not know Mr. O’Brien. He saw a gentleman on the wall there, and heard him speak, although he cannot say what he said. Did not see Mr. O’Brien at Ballingarry. Did not see how the man who spoke was dressed. George Sparrow is the next, and his evidence appears to relate to Thursday, the 27th. He says he saw the prisoner there on that day between eleven and twelve o’clock, and there were four or five hundred men with him. He saw about thirty of them armed with guns, pistols, and blunderbusses ; the rest were armed with pitchforks and scythes. Air. O’Brien was drilling the men, who were divided into three parts. Air. O’Brien was THE QUEEN i;. WILLIAM SMITH O’BRIEN. 8G5 drilling them all at first. Dillon and Meagher were also drilling. They were marching them up and down the street. He gave the armed men, who were in the middle of the street, the word of command, and they divided and went into the houses on each side, and presented their arms out of the doors of the houses, and then came and joined the rest ; the pike-men during this time remaining across the street. This practice lasted for two hours. Dillon had a belt and a brace of pistols in it. Mr. O’Brien had a belt and a brace of double-barrelled pistols, and a Hke pistol in his hand. He heard one of the persons called Meagher who was there. Mr. O’Brien wore a green cap with a tassel. He heard him name John Cormack as one of the com- manders — to be the lieutenant-colonel of the Ballingarry men ; and he was to have them ready when called upon. He called David Cunningham, and Mr. O’Brien said he was to be one of the commanders. Cunningham desired about thirty of the armed people to take arms from the people who would not give them, and to have their arms, if they refused, marked. Mr. O’Brien left the town about two o’clock, upon a common car drawn by a mule, belonging to George Gamble, and proceeded in the direc- tion of New Birmingham. He turned back at Brien’s Cross, three-quarters of a mile from the town. Dillon went with him on horseback. The armed men marched before the car, and the pike-men after it, to the number of four or five hundred. He saw some gentleman with a letter meet Mr. O’Brien, and when it was delivered to him he read it, and they turned off towards Mullinahone. The armed men were kept with Mr. O’Brien, and the rest went away. He saw in Dublin one of the gentlemen who was there, and is called M‘Manus. On his cross-examination he says, that he fives with liis father-in-law, who is in the police, and on money which he got for his land. He cannot say whether money will he given to him ; and cannot say he will take it if offered. He says he made two informations ; the second at the instance of Mr. Fitzmaurice. He says he went into Ballingarry for a letter. He is at present in no occupation. That the money which supports him he got from his landlord for giving up his ground. He says there were thirty men as he best calculates. That Cunningham was in front of the armed party. That he did not see Cormack 'that day. Some of the men dispersed at the Cross, and went to their own places. None, save the armed party and the pike-men, remained ; they went in and out of the houses and shops. Thomas Burke deposes to the 26th and 28th, which was Wednesday. He saw some persons come into Ballingarry, and went aU towards Mullinahone, and many left. He thinks to the number of fifty men had gone before. The people who went were armed with guns, pitchforks, and pikes. The first body left about ten o’clock, and went to meet the party from Mullin- 3 K 866 SPECIAL COMMISSION, CO. TIPPERARY. ahone ; they came back, and he identifies Mr. O’Brien as having been with the party, coming with the party to Mulhnahone; several gentlemen were with him, and met the Ballingarry party. The MuUinahone party was armed in the same manner as the other. John Cormack was with Mr. O’Brien, and Cormack was commanding the men. He heard Mr. O’Brien tell the people to take arms by force from any one who would not give them, and keep them; that the time was now come when they were to use them. This he said from the pier of the chapel gate ; and he stopped that night at John Kavanagh’s, of Ballingarry. There is but one John Kavanagh in the town. He saw about fifty armed men follow Mr. O’Brien into the chapel-yard; most of them were armed. A man on horseback came to Mr. O’Brien. Witness went into a house. Saw people about Kavanagh’s late in the evening — about twenty or thirty armed, going about the house. The next day, Thursday, he saw Mr. O’Brien and others in the street ; the people were collecting ; he saw them come out of Kavanagh’s about nine o’clock ; some of the people were armed. M‘Manus rode in about ten o’clock. M‘Carthy was drilling the men. The men, fifty or sixty, were on or about the streets, not more than twenty together, but they were collect- ing from time to time ; about eleven o’clock there was more than a hundred, and about sixty were armed. Mr. O’Brien was drilling the men; one of the gentlemen, Mr. McManus, was armed with a pistol; the others marched three deep. Mr. O’Brien brought them behind the ditch of a garden, and they presented arms over the ditch, and the pike-men ran up the road. The drilling continued for about an hour and a half. Mr. O’Brien left Ballingarry about two or three o’clock, with three or four hundred men, some armed, and some not. Witness did not go with them. Saturday, after twelve o’clock, witness saw him at Farinrory. Went to Mrs. McCormack’s house about twelve o’clock, about two miles and a half from Ballingarry. The police were in the house. The men — the country people — were about the house, and there were about sixty or seventy armed men near the house, and about three or four hundred in all. He saw four or five gentlemen armed. Mr. O’Brien and Mr. M‘Manus were there. He saw the small gentleman whom he describes with a dagger, and he says that he is in Kilmainham ; he had been drilling the men. They were trying to make the pohce give up their arms. He saw John Cormack there, not armed. He saw the people firing into the house, and saw a man shot dead from the inside. He saw Mr. O’Brien on the window- stool, speaking to the police, and there was a man with him. When the firing was taking place, he heard Mr. M ‘Manus call on them to set fire to the house. He did not hear Mr. O’Brien say any thing. A Juror . — He was to fire away. THE QUEEN y. WILLIAM SMITH O’BRIEN. 867 Mr. Justice Moore . — That was his own expression. The Lord Chief Justice . — He says, on cross-examination, he went out with them on Wednesday. He is a process-server at sessions. He was sworn twice, and was not told he would be prosecuted, but he was taken up in Ballingarry. That he had got nothing, and had been for some time in custody. His infor- mations are read to him — sworn the 7th of August, and the 12th ' of September. He did not say any thing about burning the house, but he told them that the man was shot. He says he saw a man named David Cunningham distributing ammunition. Now, Thomas Sullivan is the next witness, and he is the person who is the car driver from Nine-mile-house to Killenaule, and I need not trouble you with his evidence, neither wiU I trouble you with the evidence of Thomas Walsh, the innkeeper, of Killenaule. But the next witness is Dutton Matthew, who had been a policeman. He says he lives in Killenaule, and saw Mr. O’Brien there early on the day of Friday. He had four gentlemen with him. One wore a plaid scarf across his shoulders. Another had a patent waist-belt and a pistol in it. He saw him on horseback. Mr. O’Brien had a pistol in his right hand, and one of the four had a rifle on his shoulder. He saw them first at the hotel door and afterwards coming down to the barricades, which were erected at a place called the Pike,” on the road leading to Fethard. He saw a man with a pike and another with a gun at Walsh’s door. The chapel bell rang just before they left the hotel, and he saw the people coming in from the country in all directions wdth staves, scythes, forks, and amongst them four pikes. The townspeople went to the place with pikes. There were a great many collected. He saw them erecting a barricade, and saw two officers passing through the town in a gig. Then there was a rush with cars of turf and beams of timber and the barricade was constructed. Mr. O’Brien had gone before to the Pike. The military approached and the barricade was afterwards • removed, and Dillon walked out of town with the officer, and the people cheered the military. This occupied fifteen or twenty minutes, and he saw Mr. O’Brien and the others returning from the barricade. There was a large crowd assembled for some time afterwards, and he saw a man of the name of Orchard with a gun. I may here repeat the remark, that so far as regards the mihtary there seems every disposition to keep on perfect good terms with them. He says they were erecting barricades before he saw Mr. O’Brien. Now, William Parsons says he was on his march with his troop. Met an obstruction of a barricade. They were about five hun- dred yards at the time in advance of the main body. They were stopped at the barricade, and there was between two and three hundred armed men about it, some in front, and others between 3 K 2 868 SPECIAL COMMISSION, CO. TIPPERARY. the first and second barricades. At first a man with a pike and another with a rifle came up to them, and one said if he did not halt he would blow his bloody brains out. They then halted until the captain came up. He said they would kill all the bloody soldiers. That man is in custody, and his name is Orchard. The troop was delayed ten minutes. He made an information dated the 3rd of August ; this information was read to him, and as there was an observation to his discredit, it is right I should state to you that observation was that he had not stated any of these threats used to him. It is right I should state to you how the information runs. It was made the 3rd of August, 1848, before Mr. Fitzmaurice, the stipendiary magistrate. They were the joint informations of this man Parsons and Hourihan, whom you heard examined. In the first part you find — County of Tipperary, S.R., j The joint information of Thomas Hou- >rihan and William Parsons, privates, 8th ) Hussars, now quartered at Ballingarry, who being severally sworn and examined before me, George Fitzmaurice, Esq., R.M,, Thomas Hourihan for himself saith, that I accompanied the troop D of 8th Hussars, to which I belong,* from Fethard to Thurles on the 28th of July last; and on our arrival at the town of Killenaule, I saw a barricade thrown across the street, going into that town which appeared to he defended by a large mob, several of whom were armed. I saw in the barrack-yard of Ballingarry, on yesterday, the 2nd instant, one man among many others, who called himself James Orchard, and he, I positively swear, was armed with a gun on that occasion ; I also saw in the barrack-yard, at same time and place, a man calling himself Denis Tyne, armed with a pike defending the said barricade, and obstructing our march.” That is the deposition of Thomas Hourihan. Well what does William Parsons swear? He says: — “ I accompanied the foregoing witness on the occasion in question, and saw the two persons named, armed as before described.” So that it does appear that he was sworn jointly to the trans- action. The magistrate did not think proper to ask him a ques- tion on the subject ; there is no contradiction when he is sworn on the table to his information ; but he has omitted, because he was not required to state it by the magistrate, what he has stated on the table. There is not the sbghtest imputation on his credit. The other witness, Thomas Hourihan, says he was in front of the troop, and he saw the barricade. You have heard already what the information contains. He says the troop was in the rere about five hundred yards, and came up during the time they were obstructed. Captain Longmore is then examined. He was the commander of the troop. He halted, and came up to the barricade, and told THE QUEEN WILLIAM SMITH O’BRIEN. 8G9 the crowd unless the barricade was immediately removed his men would fire. A tall man, not armed, came out from the crowd and said he understood the troop was merely passing through, but that if they came to arrest Mr. Smith O’Brien, who was then in the town, he w^ould be resisted ; and asked whether he had got a warrant for his arrest ; the witness said he had not. No more was then said, but he ordered the removal of the barri- cades. They were removed, and the troop passed through. 3Ir. Whiteside . — That is, the man ordered them, not Captain Longmore. The Lord Chief Justice . — At that time there was neither a proclamation for the army to act on their own responsibility, nor had any proclamation for the arrest of Mr. Smith O’Brien been published. Now, that is the particular transaction that is stated to be one of the overt acts by the indictment, and the obstruction of the Queen’s troops is as unequivocal an act as it is possible to imagine. But even that act, if the sole object was that of preventing the arrest of Mr. Smith O’Brien, would not be an act of such a character and quality as would amount to high treason. But you are not to consider this, or any other circumstance by itself, as either decisive of the case generally, or as decisive of the consideration which this particular part of the evidence deserves. For if upon other grounds, and upon other evidence, you think that upon that occasion they were part of that force assembled and congregated for a general purpose, though acting on that particular occasion for a particular one, the act would still retain the quality and character of a treason- able act. Now, William Cashen is a car driver. The next who is sworn is the person at whose house they lived, and it can serve no purpose to trouble you with it. But the next is an important witness, his name is William Pimlott. He says he was working at the colliery of Mr. Barker, and lives at Bawnleigh, one mile from Farinrory. He says, on Friday evening he was at the Commons, and there saw seven, eight, or nine gentlemen. He saw Mr. Smith O’Brien that evening at SuUivan’s. He wore a blue coat overall, and took off his hat and put on a cap with a band. There were other persons with him in the room. They were all there. He saw two cars. He did not see Mr. O’Brien do any thing. He read a letter out; does not remember its contents. He heard one of them called Mr. Meagher, and Mr. Meagher stood on the car and cautioned every one that the same that happened to them would happen to themselves. Mr. O’Brien at this time was sitting on the car. He told them to be in readiness in three weeks when the wisp would be lighted over ihe hills. Another said five weeks. This was addressed to a crowd of one hundred and fifty people, and he saw one gentleman with a gun. Mr. Meagher told them to 870 SPECIAL COMMISSION, CO. TIPPERARY. fight for their country and have it, and to drive every English beggar to his own side. He saw Mr. O’Brien pass by "on Satur- day evening walking with two men. He saw three or four gen- tlemen at Mrs. Glacken’s. He was there about a quarter ol* an hour, and he spoke to the gentleman with the gun. He says a gun was taken from him on Saturday. He is an engineer, and swore his information on the 6th of September. He. is cross- examined as to whether he drank that night, and he cannot say whether he did or not. That is a remarkable speech, directing the people to be in readiness in three weeks upon signals. John Pemberthy lived in Mardyke CoUiery ; is an engineer. On Friday, the 28th, was at Kirwick’s Cross between the hours of eleven and one ; saw Mr. O’Brien there, and there were other per- sons with him. M‘Manus was one. He had a pistol. Mr. O’Brien asked him if he was not one of the superintendents of the colliery, and he said he was. He said, if the company stood neutral he would support them ; but if they offered to suspend the works in consequence of any of the men foUowing him he would take pos- session of the collieries. That he would have Ireland rescued from the British Government in less than a week. That all was ready in the towns ; and, that as far as he had travelled in the country they were of the same mind. He said, if he was caught he would be hanged. The witness went to the collieries on business. On the evening of the same day was in the village. He saw four cars come into the village Lisnamrock. Four gentlemen were upon each car ; he knew amongst them Mr. M‘Manus, Mr. Meagher, Mr. Doheny, and Mr. O’Brien. AU came in on the cars. There were fifty or sixty men and women came in with the cars. They stopped at Mr. Sullivan’s. Mr. Meagher was caUed on to make a speech. Mr. O’Brien spoke. Cannot remember more of Mr. Meagher’s speech, than that since he had become an outlaw he had ceased to be a gentleman. Saw persons with poles about Mrs. Glacken’s at about eight o’clock. He slept in the viRage, and met Mr. O’Brien on the road. No one could hear what Mr. O’Brien said at the distance he was. There is most important evidence in that. I forbear to repeat what I told you before, and which you cannot forget, with respect to the construction which you are to put on this evidence. John Lamphiere lives on the Commons in Ballingarry; is the pay-clerk of the Mining Company of Ireland. On Friday even- ing, the 28th July, he was in the concerns,, and saw three jaunting- cars pass. They stopped at Sullivan’s public-house. There were from eight to ten gentlemen on the cars. Mr. O’Brien was one, and he walked out on the road ; and he addressed the people who were assembled, to the number of two or three hundred ; and said there was a warrant out against him, and a reward of £500 for his arrest ; and if they would protect him and arm, Ireland would be free in a fortnight. Some of them said they THE QUEEN v. WILLIAM SMITH O’BRIEN. 871 had no arms ; and he said that stones would be very good weapons for those who had no other arms. Two gentlemen, called Meagher and Dillon, were there. Mr. Meagher told them to arm and protect Mr. O’Brien, and they would have Ireland free in a fortnight. He told them to drive the Saxon from the soil. Mr. Dillon said, if they armed to protect Mr. O’Brien, they would have Ireland free in six months. He saw them walking up and down about Mrs. Glacken’s door that night, and observed about forty men armed with guns and pikes. They were walking up and dowm before the door. That is his account of Friday. He says, on Saturday, between nine and ten o’clock in the morning, he saw Mr. O’Brien on the road between Glacken’s and Sullivan’s. There was a great number, about a hundred, along with him — most of them armed. About twelve o’clock he came into the yard of the company, and asked who was in charge, and witness said he was. He said he came for a cart and some boxes that were lying in the yard ; and he wanted them to throw up a barricade across the road. Witness said he could not give them, and then he said he would take them by force. He ordered a man who was standing by to wheel away the cart ; the man refused, and he com- menced to wheel away the cart himself ; he only moved it a few yards. The people outside were five hundred, and were fifty yards from the gate, while Mr. O’Brien was in the yard. They were shouting. Mr. O’Brien went to the crowd; a number of people un- armed came in and rang the bell for a quarter of an hour. After this the men began to erect a barricade on the road leading to Ballingarry, and completed it to the height of four feet. The people marched, shouting up and down the road, most of them armed with pikes and guns. Mr. O’Brien had a pistol in his hand. When he came to the yard, the people remained about a quarter of an hour at or near the barricade. They afterwards went towards the Widow McCormack’s house, and he saw a body of police coming on Ballingarry road. The police turned to the right at Scott’s Cross. This was the body commanded by Mr. Trant. They turned to the right at Scott’s Cross ; saw Mr. O’Brien going with the people in the fields. The police reached the house first. The people shouted, and soon after they reached the house, in about a quarter of an hour, he heard shots. He said about five hundred people crossed the fields. Great numbers of the people were assembled on the hiUs around, but he cannot say they were armed. About half an hour afterwards he saw another party of police ; this was Mr. Cox’s, coming in from the direction of Kil- lenaule. He says the police stationed at the Commons had been withdrawn three or four days before ; and he says the Mining Company owned the barrack, and when Mr. O’Brien came into the yard, he asked for the key to station some of his men there ; the witness refused it. John Cormack was with Mr. O’Brien the evening before. He is then cross-examined, and says the office is 872 SPECIAL COMMISSION, CO. TIPPERARY. about a mile from Mrs. McCormack’s, near Farinrory. He says that the company employed several hundred men. At the time Mr. O’Brien came into the yard, witness was not alone, for Tobin was present, and was the man who refused to take away the cart. He made two informations, the last was the longest, and he made it on the 6th of September at Mr. Kemmis’s. He saw the police, and talked with them about it. He remembered that day as well as he does now the particulars of the transaction. He says that no property was injured ; that the miners were anxious to protect Mr. O’Brien ; and he then had actually fifty pounds of powder in the stores, and no attempt was made to take it, or injure any property. And unquestionably, whatever may be the value of the fact, and directly affecting the charge you are now trying, it is perfectly true, so far as regarded the preservation of property, not a single act of injury appears to have been committed in the whole of these proceedings. He says the people were running after him ; he never reported a speech, and has no notes of the one he heard ; that at the time he spoke none but the men on the cars had arms ; that no one fixed on a week for the insurrec- tion, or namxcd a week. Then he heard Mr. O’Brien speak two or three times. He says the house was illuminated ; there were men on guard ; was out at ten o’clock ; got up at half-past six, and had no conversation tiU about twelve. The barricades were to prevent his arrest. He thinks none of the people of the col- liery would have removed the cart ; others might have done so. No injury was done. He says he saw one of some of the men in the crowd who had ceased to be employed by the company. He saw people at Scott’s Cross, about a quarter of a mile from the town ; the people attempted to break the door of the barrack. He says he found that the lock was injured, and that the door itself was split, but did not see by whom it was done. A Juror. — It was not broken down ? The Lord Chief Justice. — Owen Cullen is a person employed in the collieries, and lives in the village of the Commons ; he knows Sullivan’s ; saw Mr. O’Brien on Friday evening ; saw Sul- livan close to the barrack, and a crowd was collected. Mr. O’Brien stood on an old ditch, and asked if there was sufficient force to keep him from one or two hundred men. He said in the course of his address, he expected this would be a free country. After this he saw a few persons ; thinks they were not armed ; they were standing on cars, and they went off immediately in the dffection of Balhngarry. This was after he had gone to his own house, and heard Mr. O’Brien. He expected this would be a free country soon. Mr. Whiteside. — He did not say by what means, my lord. The I^ord Chief Justice. — No; the words are, “he expected this would soon be a free country.” Mr. Whiteside. — Yes, my lord. THE QUEEN WILLIAM SMITH O’BRIEN. 873 The Lord Chief Justice . — Then he says — On Friday evening saw him at Mrs. Glacken’s ; two others, strangers, were in the room. Mr. O’Brien read a letter to him, which he wanted wit- ness to send forward for him to the Mining Company ; he gave witness the letter, who sent it to the Mining Company, and now identifies it. One of the other two present wrote at a table. The evening before, Friday, he asked witness for the key of the bar- rack, and he saw a pony, and said he wanted it for the night ; witness said he was only the servant of the company, and could not give him the key of the barrack or the pony, and Mr. O’Brien said he was quite right not to do so. Mr. O’Brien behaved very civilly. Made a memorandum of receipt five days after the letter was given to him. The letter was given open to him, and he made a rough copy. He says the Widow McCormack’s house is in the county of Tipperary. He is cross-examined, and says he did not mark it until re-sent by Mr. Purdy. The office is a mile from the Widow McCormack’s house. There were women and boys in the crowd who were collected about him. There was property, gunpowder and money, in the company’s store ; and he actually remitted £100 that morning. He says that no threats of violence were used, and that Mr. O’Brien appeared to him to be afraid of arrest. Now, gentlemen, whatever may be the conclusion which this evidence may justify, it cannot be doubted that the document which I am about to state to you, and which, whatever its con- struction, must be taken as a true index of the actual intention of the party, is a most important document. I shall read it to you again, and perhaps you may remember its contents. This is dated the 29th of July : — “ Mr. William Smith O’Brien presents his compliments to the Directors of the Mining Company, and, feeling it incumbent upon him to do all in his power to prevent the inhabitants of the collieries from sufiering inconvenience, in consequence of the noble and courageous protection afforded by them to him, takes the liberty of offering the following sug- gestions : — He recommends that for the 'present the whole of the proceeds arising weekly from the sale of coal and culm be applied in payment of men employed hy contract in raising coal and culm. “ He recommends that a brisk demand be encouraged by lowering the price of coal and culm to the public. “ In case he should find that the Mining Company endeavours to dis- tress the people by withholding wages and other means, Mr. O’Brien will instruct the colliers to occupy and work the mines on their own account; and in case the Irish revolution should succeed, the property of the Mining Company will be confiscated as national property. On the contrary, if the Mining Company observes a strict and honour- able neutrality, doing their utmost to give support to the population of this district during their present time of difficulty and trial, that then their property shall be protected to the utmost extent of Mr. O’Brien’s power.” 874 SPECIAL COMMISSION, CO. TIPPERARY. I shall do no more than read that letter to you. If it admitted any construction but one, it would be my duty to suggest it, and leave that construction for your consideration. But you are just as competent to judge of the actual meaning of that document as I am ; and, recollect, it is not only that you are as competent, but you are exclusively the judge of the construction which that paper warrants. Now we proceed to a part of the transaction as to which there is a great deal of evidence, I mean the attack upon the house at Farinrory. I would have you, in considering that evidence, not embarrass yourselves with attention to minute and particular details, because it is not upon the minute particulars of that transaction, or by them, that its real character is to be pro- nounced. The question is, whether there was on that occasion and previous to it, an actual array of force against the constabulary, which is one branch of her Majesty’s force ; and whether shots were fired by command or without ; whether Mr. O’Brien gave the command, or any other person gave it. It is a fact that is of importance, that an armed body arrayed in great multitudes made an onslaught on the forces of the Queen, compelled them to take refuge in that house ; and there compelled them, in their own defence, and in defence of the property of the Queen, to fire those shots by which unhappily human life was sacrificed. Mr. Thomas Trant, the sub-inspector, states that he is stationed at Callan. That he proceeded to Ballingarry on the 29th of July, between the hours of nine and ten, and he arrived there with forty-six men about twelve or one o’clock. That he saw crowds following him, and crowds in the fields when he was about two miles in the direction of the Commons. That the crowds were also in front, and coming down from the hills, and that there was a shrill whistling. He says, there was a road to the right, and instead of going directly forward, he wheeled up that road, and ascended the hill for about a mile. The people were in the meantime closing upon him, with the view of outflanking him. In this state of things he saw a slated house. He says, the parties who formed these bodies were closing in upon him. This in itself is an act of aggression. He saw those parties armed with pikes and guns, and in consequence he ordered his men to break, and take possession of the house at the time when he was about two fields from it. A shot was then fired about eighty or one hundred yards to his left. And it does not signify whether the shot was fired or not, or where it was fired. He says, most of them were running, and in two minutes they might have been cut off from the house. The men arrived at the house, and they turned into it. The witness was last in, having been on horse- back. When they were in the act of securing the house he heard a voice saying, the officer was wanting. He went to the rere, and a man put up his hand and said, “ Let there be no firing ; THE QUEEN i;. WILLIAM SMITH O’BIIIEN. 875 we want to make a peace.” Witness said, if the people did not fire the police would not do so ; hut that if a shot was fired from without that they would fire as long as a cartridge or a man remained ; and he gave this order to the men. He then heard a voice call out, “ TeU Mr. Trant Mr. O’Brien is here.” He went down to a window, but Mr. O’Brien was not there. He returned up stairs, and was again told that Mr. O’Brien was there, and wished to see him ; and he told him to go round to the back of the house, but he did not come. He then says, there was immediately a crash of the windows, and shots from without — a crash of stones and shots from without. He ordered the men to fire, and the fire lasted about an hour. There were three thousand persons seen by liim when they were approaching the house, and he saw arms with all. There were men in the rere, in houses there, who fired at the lobby windows. He heard frequent discharges of a double-barrelled gun in that direction. He heard also shots from a rifle. Heard shots from the outside without intermission for a quarter of an hour. The shots were not in volleys. Half the time the firing was continuous. He supposed there were one hundred or two hundred shots. The fire was inces- sant, and two hundred and thirty rounds were issued to supply the ammunition expended by the party of police. He remained in the house about two hours, when Mr. Cox arrived, about a quarter after five. Constable Carroll came up afterwards in coloured clothes and delivered him a letter. He is then cross-examined, and says, twelve is the number of men stationed at Callan, and five hundred is not the number of any one station. This is for the purpose of throwing a contradiction on the witness who stated, that a barrack containing five hundred men was to be attacked that day ; and the construction I put on that is, that no barrack ever contained five hundred policemen. The question is, whether the witness had stated the truth in saying that Mr. O’Brien had said so; that is the only question, not whether there was such a thing or not, but whether the man was accurate in saying that Mr. O’Brien said so. A reward of £500 had been offered, but he did not know of it. Went by orders to BaUingarry. When Mr. Cox came up, they said they had let £500 slip through their fingers. He believes there were five hundred men coming from the Commons. It is impos- sible to estimate the amount of arms. None of the police were injured. They got an order to go to the Commons to arrest Mr. O’Brien. He saw only three women in the crowd. Saw no children. There were four children in the house. After the firing their mother came for them. There was but one back window, and that commanded the way up stairs. He did not examine the marks outside the house. He says, there were two large windows below and three above in front. The policemen killed and wounded some of the people. Kept the children as hostages. He answered the man, that if the people did not fire 876 SPECIAL COMMISSION, CO. TIPPERARY. he would not. He went up and down stairs while the firing was going on. Cannot say there was a crash in the room he was in before the firing. Was in a room wdth a window to the left flank. Did not go down a second time, hut ordered them to come round. There were many shots. The fire was brisk for a third of the time ; the second third it was pretty hot ; but for the last third there were only odd shots fired. He says to a juror, as they were retreating he heard a single shot. The man who held up his arms was a stranger, and wore a brown frock coat. I repeat again the observation I made before, that if you believe that that tumultuous force, armed in the way described, seeing the police, attempted to obstruct and pursued them to this house, and there assailed them, it does not signify, with regard to the present case ; it signifies nothing whether the police were wounded, whether the shots entered the house, how many shots were fired, or what the particulars or details of the transaction were ; it is from its nature a transaction of that kind which can scarcely be ever described by two witnesses exactly in the same terms. In the confusion, and hurry, and all the attend- ing circumstances of such a matter, it is impossible that men can accurately observe, or accurately recollect afterwards all the particulars. But the main question is this, do you believe that there was that armed assembly there that day ? Do you beheve that they were armed for the purpose of obstructing the march of that body of police ? If they were not, why did they pursue them into the house ? If they were not, why did they assault or fire at them ? If you believe these facts, it is quite plain that the overt acts, this being one of them, are distinctly proved, and proved over and over again by a variety of witnesses. Cornelius Mahony was one of Mr. Trant’s party. There is, however, another very important fact remaining behind, which is, I think, told by Cornelius Mahony. He was one of Mr. Trant’s party in the parlour on the left. There were eight or ten men stationed along with him. The people surrounded the house and shouted. He saw a man in a mihtary cap come from a field into the garden, to an out-house near the window. A man came to the window dressed in a flannel jacket, armed with a blunderbuss. He called on them to give up their arms. There was no firing before that. Immediately after Mr. O’Brien came to the window and stood on the window-stool. The window was partly open; the upper part let down. He said he was an Irish- man and a soldier ; and if they gave up their arms, he would pro- tect their lives, and that he would give them five minutes to consider. They said they would not give up their arms. This is a material and important part of the case. Was that demand, in point of fact, of the arms of her Majesty’s servants, her Majesty’s property, made at that period? If it was, I can scarcely conceive, no matter what the intent was, an act of a more decided and unequivocal character than disarming the THE QUEEN tr. WILLIAM SMITH O’BRIEN. 877 Queen’s troops, and calling on tLem to put themselves under protection. What protection, gentlemen? What protection could they put themselves under ? How was the power to pro- tect them to be created, procured, and exercised ? He did not see him with fire-arms, but had seen him before with arms in a cabbage garden, standing at the out-house, about a perch from the window. He had then a pistol in his hand. Did not see him afterwards, but heard him speak to the people. Imme- diately after he left the window firing began, and a volley was fired from without, and was returned. Stones were thrown at and through one of the windows into the room where the wit- ness was, but none through that at which Mr. O’Brien had appeared. He did not hear any of the other windows struck. For about a quarter of an hour there was continued firing from within and without. Here is another remarkable incident : these men are supposed to represent a transaction of this kind. This man says the firing continued only a quarter of an hour, and others say three-quarters of an hour, and Mr. Trant says it was an hour. There is no substantial difference with respect to this. The question is, did the firing take place ? Is that the fact ? He says, that after that shots were stiU fired from without. He was near to the windows; saw the muskets directed, and the flash. He saw only out of one window, and saw but a small number of armed men. He saw no person respectably dressed. There was also a second window at which he was. There was a large report, more than there would be from twelve men. The men outside were scattered in all directions, and fired from a wall. Then he is cross-examined, and says, he passed through BaUingarry, and did not before the battle hear of the reward. He heard the shot fired behind them; and he says he was in the same room during the firing. He believes that all the panes in the front window, and more than one in the flank window, were broken. After a quarter of an hour no shots were fired from the outside, nor by the police. Found no bullets. Mr. Trant was once in the room, when he was sent for ; and he has not a very distinct recollection of what happened. There were shut- ters, not closed ; and he fired from the front. Saw women and children in the crowd up in the field, but none at the firing. There were no balls in the house, and but one stone. He fired at persons he saw outside. Now, John Moran, stationed at Callan. I think I might dis- pense with reading more of these depositions, except it were for one circumstance, which, in my judgment, is not of any value whatever when you consider what the main substance and value of this part of the evidence consist in. John Moran, stationed at Callan, was in the same room with the other witness. He saw several people collecting on the hill in front of the gable. He saw Mr. O’Brien, and he was standing with his back to the wall 878 SPECIAL COMMISSION, CO. TIPPERARY. close to the window. Could not say whether he was armed. A man went up for Mr. Trant, but Mr. O’Brien had disappeared. Mr. O’Brien returned to the same place. He came up to the window and got upon the stool, and said, “We are aU Irishmen. I am Smith O’Brien, as good a soldier as any of you. I demand your arms.” He said they would give up their lives before they would give up their arms. He got down from the window, and said, “ Slash away, boys, and slaughter them all.” He had one foot on, and the other off, the window-stool when he used those words. He says, then, there was a report of shots from the outside; in a minute two, three, or four shots, he cannot exactly tell which. There were stones thrown at the window at the gable end. He saw the men pelting as he took his turn at the end window. At intervals the shots continued for three- quarters of an hour. He saw a great many men armed, but none that actually fired. One man presented a gun at the house. Thirty or forty armed with guns were outside, and a great many were armed with pikes — altogether about five hundred. He heard a shot when he was coming up the road. He saw a man called O’Donohoe there. Then he is cross-examined, and says, he identified O’Donohoe in Dublin. His information was sworn on the 6th of September. They expected to meet other parties. Numbers were in their rere. Two shots were fired from behind. The children’s mother was outside, and asked for her children. Saw several women gathering stones ; and he said he would have shot the women who were pelting stones. The wall is about five feet high, and six yards from the window. Cannot tell where his officer was. Mr. Trant did not come into the room while the firing was going on. He came in three or four times after the firing. Has not lately seen his information. Mr. O’Brien shoved in the shutter, and he was exposed. He said their lives should he saved if they gave up their arms. When he gave the com- mand many men who were inside were armed. He heard shots immediately afterwards. Mr. O’Brien was armed with a pistol, and he was within six inches of his bayonet. He says to a juror, that he fired at a man whom he says he saw pelting stones. He was nearest the window when the words which he states were uttered. Then Arthur Robinson says he was at the same window ; that the upper sash was let down. The stool was about three feet from the ground. He leaned on the sash — that is, Mr. O’Brien — and said “ We are all Irishmen,” and all he wanted was their arms, and he would give them five minutes to give them up. Witness and Moran said they could not and would not give up their arms if they forfeited their lives. After refusing them, as he was getting down from the window, he called out, “ Slash away, boys, and slaughter the whole of them.” This was an order to the country people to fire, and the firing accordingly commenced. THE QUEEN i;. WILLIAM SMITH O’BRIEN. 879 When Mr. O’Brien retired, witness was looking out, and saw armed men about the house, both inside and outside the wall, and saw them fire after taking deliberate aim at the windows up stairs. Some of them walked out of the gate, and others re- moved to the road ; they fired as they moved away ; he himself fired four shots. He saw blunderbusses, guns, pikes, and pitch- forks, and the firing lasted for three quarters of an hour. Then he is cross-examined, and he says he made no information. He saw a body being carried off outside the wall. Saw none killed between the windows and the wall. Mahony was close to Mr. O’Brien. He might have heard the words. He fired as soon after as he could at a man forty yards off. He saw some women gathering stones, and some were inducing the men to go away. Two panes were broken in the front window by bullets from the inside. In answer to the question of a juror, he says he did not communicate with Moran, or Moran with him, about liis evidence. Patrick Ford, the next constable, was in the room to the left, and saw a man in a waistcoat come and stand on the window- stool, and said he was an Irishman, and knew witness was one ; he had an Irish face, and was Pat Ford, from Callan. Witness told him he would not give up his arms. Immediately, Smith O’Brien came and stood on the stool, and said, “ On honour, and as a gentleman, I come up to you. I am Smith O’Brien. I know you are Irishmen. I only want your arms, and 1 will protect your lives.” This is the same tone and style with which, whenever Mr. O’Brien came in contact with the police, he adopted, endea- vouring by fair means to obtain possession of their arms ; and, in truth, to put them at his mercy. He said they had an officer, and whatever he did they would do. He asked who he was, and witness said, Mr. Trant, from Callan. He asked where he was, and he said he was addressing the people at the back of the house. ]VIr. O’Brien had a frock coat on, and a belt with two pistols in it, and one in his hand, and a cap. He left the window, and at the same time he heard, “ Slash away, boys, we shall soon have them all.” It was a minute or two after he left the window. The wit- ness was at the front window, and the firing immediately com- menced from the outside. Mr. O’Brien was seven or eight yards from him w^hen he heard the words. One shot came into the room, and struck the grate, and another struck the wall at the gable window. Then he is cross-examined, and says there were ten or eleven in the room ; some were standing, and some were kneeling down to fire ; four were at the window, Mahony, Raf- ferty, Moran, and himself ; Robinson might have been behind witness. Mr. O’Brien’s hand touched both Rafferty and witness. A person stood with Mr. O’Brien all the time on the window-stool. It is a remarkable fact, I think, on the testimony of the witness, that I have read before to you, that he was accompanied by a man on the stool ; and this is the evidence of one of the police- 880 SPECIAL COMMISSION, CO. TIPPERARY. men with respect to that fact. “ There was a crowd about the window, and he seemed to be putting in his hand to grasp the carbine. He heard Moran say not to give them up. The firing began in a minute and a half afterwards. The people were in the yard, and fired first. Had not his eye on Mr. O’Brien when the words were uttered ; he and the others went away.” Now, I am bound to say — if it is of any importance, but it really is not, to decide what the words were — I believe myself some of the parties made a mistake there ; they were not uttered by him, but by somebody else. It matters not by whom they were uttered. There was one party engaged in one common illegal act, and the acts of that party, and the command given by one of that party, is as much the act of all the others as if pronounced by their own tongues. And more than that, it is wholly immaterial whether the word of command was given or not ; it is wholly immaterial to consider whether the people fired by command or without com- mand ; they were there with arms, assembled for an illegal pur- pose, and every person there is responsible for the acts of those who fired, whether by command or without. I need not trouble you by going through the evidence of George M‘Donough, who is a witness examined, and who was in the upper room, and he heard the words from the upper room. Thomas Waters saw the guns pointed at the room in which he was posted. He saw guns explode, and saw the mortar knocked off the walls near the window where he was. He says the firing commenced by the command of Mr. Trant. Now, there is another witness, named John Hanover, on whom it seems, however, there was some doubt thrown, who appears to have come up with another party of police ; and he says, on ex- amination of his own, he saw marks of both stones and buUets in front ; inside there were marks of bullets, and he found some bullets in the house ; and whether he did or did not is perfectly immaterial. I cannot pass from that affair of Farinrory without calling your attention again to the question, was all that done by way of personal defence alone ? Now, gentlemen, the next witness is, perhaps, about as important as any in the case, and his name is John Carroll. John Carroll states he left Kilkenny at twelve o’clock on the 29th. He was sent to Mr. Trant. He went to McCormack’s house in search of him. When he was in the field next the house he heard firing. It had ceased when he got there. He saw Mr. Trant and delivered him a letter, and was returning on his horse to Kilkenny, when he came up with a crowd consisting of three or four hundred people standing on the road. Mr. O’Brien was amongst them, and they were about three hundred yards from McCormack’s house. Some of them were armed, and many not. Mr. O’Brien came and asked him if he was a mounted THE QUEEN WILLIAM SMITH O’BRIEN. 881 policeman, and he said he was. Another party came up and told him to consider himself a prisoner, but not to apprehend insult or injury. He says he had not seen that crowd when he was on his way to McCormack’s, and an hour afterwards saw a third person whom he does not name. That third person was the man by whom his escape was effected. The crowM moved down the road, and Mr. O’Brien and Father Fitzgerald, who had come with witness, for a mile and a half, were in the rere, and he got off his horse thinking he was going to be shot. McManus took him by the arm down the field, away from the crowd, and Mr. O’Brien mounted his horse, and rode him, and sometimes came back to witness; and after about half an hour he, the witness, was placed in charge of four men. He asked if he would be allowed leave to go to the village to get some refresh- ment. He was not ultimately permitted to go. He saw Mr. O’Brien, who was not out more than half an hour, and he himself was in custody for two or three hours. He saw Mr. O’Brien in the crowd, moving up and down in all directions. He says he saw and heard him speak to the people. He asked them if they would like him to give himself up to be hanged. He did not like to be in his present position. He heard him on another occasion say, he could take the place where Mr. Trant was in an hour. When he asked if he should give himself up, they said not. A man near witness said, he would protect witness with his life, and that man and three others, to whose custody he was committed until he let them go saying, he did not want them ; that is, the single man allowed the others to go off, he saying he would take care, by himself, of the prisoner. This man alone accompanied him a mile and a half, and he says he cannot say whether the other three were actually armed. The first four were. He saw cars coming with the police. He heard the people say they would attack them. This was about half-past five, and before he escaped. He saw the cars, but not the men; and when the cars appeared they let him go to join Trant, or go home. He got his horse afterwards from Ml. O’Brien. About a mile and a half he met him riding his horse. The single man who had assisted the escape had left him a short time before. When Mr. O’Brien met with him, he pulled out a pistol, and he said, your hfe or mine ; are you going to arrest me ? The witness said not, that he had no arms, and he might shoot him if he liked ; but he said it would be beneath him to do so, or to fire on an unprotected man. He desired him to come back with him, and witness did so accordingly, going towards the place where he had left the people. Mr. O’Brien had a stick in his hand and a pistol in his bosom. He wore a cap first, and at this time a hat. He walked with him a quarter or half a mile, and witness asked leave to speak to him as one man might to another. Mr. O’Brien said speak on, and witness said it would be impos- 3 L 882 SPECIAL COMMISSION, CO. TIPPERARY. sible for Rim to carry out wRat Re Rad undertaken, particularly as tlie Roman CatRolic clergy were against Rim, as Re Rad seen tRat day. TRat tRe troops would be brought against Rim, with whom it would be impossible for him to contend ; to which Mr. O’Brien replied, that he had for twenty years worked for his country, and it could redeem itself if it liked. The witness said the country could not be redeemed without blood; and Re replied, and said, he wanted no blood. He then dismounted and walked towards the Commons, which were half a mile off. He was then cross-examined, and said he came to Kilkenny at seven o’clock. The firing was going on, when he got within two hundred yards of the house. At that time a man told him to keep back or he would be shot by the police. He was five or ten minutes at the Widow McCormack’s. He was going towards Kilkenny at the time he met Mr. O’Brien, who was coming from that direction, and asked him for his horse. Gentlemen, I need not tell you that upon the general or par- ticular acts this evidence is all material. I reluctantly advert to the expression so often repeated, because I am quite sure it is unnecessary for me, and it is only from the paramount necessity of keeping it constantly before the view of your intellect, that I repeat it. The next witness is Mr. Joseph Cox, who is sub-inspector. He left Cashel on the 29th of July, with a force of twenty-two men, and marched to the Commons. He knows the Widow M‘Cormack’s house, and, when within half a mile of it, he saw a large number of persons formed in line to the left of the road. Now I am bound to tell you on the evidence, this was plainly a part of the same body; whether Mr. O’Brien was pre- sent or not is immaterial ; it does not appear he was present, but it is part of that force of which he was one, and of which he plainly assumed the command, and over which he exercised control ; so that whatever are its acts they are his also. They were in a hne to the left of the road. About 200 of them came down and met him. They formed themselves into three bodies, one came down on each side, and one in the centre. They formed themselves on the ditches. They had guns. There was a cross- road, and a small house or haggard, and there were posted fifty or sixty men. This appears to have been as an advanced post. The other bodies were at this time forming. He received orders from the magistrate, and he examined the men’s arms ; and, on advancing, the men who were stationed at the house began to yell and shout. This was about half-past four. On arriving at the house, which had been abandoned, he sent six men on each side of the road, and the rest marched down. He called out to the people to retire, and some did, and then the rest did so for a short distance, and then they seemed determined to make a stand. A party on the left were led by two or three men in THE QUEEN WILLIAM SMITH O’BRIEN. 883 advance, and they were rushing on with pikes, stones, forks, and guns. The guns he had not seen before. He ordered the police to fire when they were about seventy yards, or upwards, in front. The fire was returned, and he saw a man fall, and they dispersed. He says the firing was what is called independent file firing, kept up by his men for a period of three or four minutes. He saw marks of two or three bullets fixed in the house — that is, McCormack’s house. He says there were few fire-arms among the people. Then he says, John Norton brought him the port- manteau. Michael Mulgrew, of Mr. Cox’s party, heard the shot at the end of the house. It was a single shot. They saw the men with pikes, and they fired on them. Now, that is the entire evidence of these unfortunate and ruinous transactions. The evidence, on the part of Mr. O’Brien, which I before adverted to, consists of general evidence, with respect to his attachment to the Crown and his constitutional principles ; and upon that general evidence there can be no manner of doubt, that upon any part of this case where your minds might entertain doubts or difficulties as to the intentions and as to the objects that are imputed to him, it would be important for you to examine it, and to attend to it, and to give it all the weight that it deserves. But in the particular case before us, we are dealing with facts; and it does appear that Mr. O’Brien himself, in that speech wffiich he made in the month of March last, had undergone some change in political opinion, and that ideas then suggested themselves to his mind which he had not entertained before. The Prisoner. — Never. The Lord Chief Justice . — Whatever be the value of that testimony to his character, God forbid that I should attempt to keep you from giving it aU the consideration it merits. The other evidence which he has adduced relates to the pro- ceedings of the Confederation. Its rules are perfectly legal, and I can discover nothing whatever in them which could fix on them either criminality or suspicion. They appear to be, if strictly and rigidly observed, not repugnant to any principles of our law, or open to any sort of animadversion. So, with respect to the League, which was formed of the two bodies, the members of the Confederation, and the members of Conciliation Hall ; their rules appear to have been perfectly right, and not obnoxious or open to any observation whatever. But the question is, whether these rules were abided by by him, or was a course of conduct plainly at variance with them adopted by him at the same time that he was a member of those bodies, and professing to act on these principles? In the speech which he dehvered on the 19th of July — a remarkable speech, delivered on a remarkable occasion — he reserves to himself, and to all who thought along 3l 2 884 SPECIAL COMMISSION, CO. TIPPERARY. with him, the right, uncontrolled by any engagement he could make, or had made, to use these clubs, and to pursue his own course through the instrumentality of these clubs, to effect the purpose which he had in view. I again submit to you the awful duty you have to discharge — and a most laborious duty it has been — and a painful duty it must be if you should take a view of the evidence unfavourable to the prisoner ; and I indeed shall rejoice, if seriously, soberly, and conscientiously, you can come to the conclusion that the prisoner is not guilty of the charge. But, on the other hand, if soberly and conscientiously you think him guilty of it, there is no con- sideration which can justify any human being in doing other- wise than what the obligation of his oath demands, and, he the consequences what they may, of finding a verdict in that way, and upon these motives, in accordance with his oath. A Juror {Mr. Lloyd). — You mentioned, my lord, about Mr. O’Brien’s escape — that he might have escaped arrest. Now, suppose he did not vidsh to escape arrest, but meant to resist arrest, and that he had armed these men, and attacked the police with that view, would that be high treason ? ' The Lord Chief Justice. — I simply threw out that remark in this way. The object which it is stated he had in all these transactions was his own personal security ; well, if his own personal security was his object, and his only object, there is no reason to say that he might not have escaped ; but he never attemj)ted to escape. But it is an observation wdiich must be taken in connexion with all the others I have made to you, and give to it only such weight as you think it deserves. Mr. Whiteside. — My lord, in point of law, with respect to the juror’s question, if that was the motive in his own mind, I appre- hend your lordship would have no objection to tell them that was not high treason. The Lord Chief Justice. — Gentlemen, if in all these transac- tions, I repeat it again, the sole and exclusive object and motive was to escape arrest, if there was no general purpose influencing his conduct, intention, or mind, then you ought to acquit him. But if he had a general purpose of effecting a revolution, of effecting a repeal of the union, or any other general purpose of a political kind or character, then that general purpose gives to his acts that which makes them high treason. A Juror {Mr. Lloyd). — Supposing he meant not to escape, but to resist ; suppose he chose to resist a warrant by force of arms, would that be high treason ? The Lord Chief Justice. — In resisting, whether it be by the exhibition of force or actual violence, if stiU the only motive and object of that resistance he his personal security, then, of course, it will not be high treason. A Juror {Mr. Sadler). — Suppose that personal object was for THE QUEEN i;. WILLIAM SMITH O’BEIEN. 885 a further object. I wish merely to set myself right so as clearly to understand the case. If a man resists the law purely for his own interest, and if he resists it on the ground of what enables him to commence a revolution — I merely state it in that way — how are we to separate his interest ? The Lord Chief Justice. — If, though his own personal safety be one object, he has by the same acts another and a general purpose, that is high treason. Mr. Whiteside. — That is, the purpose stated in the indictment. The Lord Chief Justice. — It will not become less high treason because he intends to effect his own personal security by it. A Juror {Mr. Sadler). — I have not taken down the evidence, though 1 watched it attentively ; but it appears to me the prin- cipal expression was, ‘‘ Protect me for such an object.” All tlu’ough it has appeared to me to be, “ Protect me for such a purpose.” Mr. Whiteside. — From arrest. The Lord Chief Justice Protecting him for the purpose of effecting a general object is high treason. Mr. Whiteside. — That is, the general object laid in the indict- ment ; because a general object generally, would not do. The Lord Chief Justice. — As you are about to retire, gentle- men, you may have some refreshment before you retire, but not afterwards. A Juror. — We should be very glad of it, my lord. The Lord Chief Justice. — Then have the goodness to retire to your room for one moment. [The jury then retired.] Mr. Whiteside. — Will your lordship allow me to suggest, if you do not think it unsuitable, that you should state to the jury that they must believe, without doubt, that he had the treason- able object stated in the indictment, in order to find him guilty. The Lord Chief Justice. — In the count for levying war there is no particular object stated. Mr. Whiteside. — Levying war for a treasonable purpose. [The jury returned into court.] The Lord Chief Justice. — Gentlemen, I stated to you before, that it is for levying war against the Queen, and various acts are stated as overt acts ; for instance, the arraying, marching, and drilling ; the attack on the police ; the attack at Farinrory ; the barricades constructed, and soforth. The charge is quite gene- ral ; and I am afraid that the indictment will not enable you the more distinctly to understand it. I would rather explain it to you as I do now, than puzzle you with law forms. Mr. Whiteside Yes, my lord, that will do. 886 SPECIAL COMMISSION, CO. TIPPERARY. The Solicitor-General. — I do not know whether your lordship intends that the jury should get refreshment. The Lord Chief Justice . — Yes. Lord Chief Justice Doherty. — We think they should get refreshment ; it is quite reasonable and right. [Some discussion then took place between the Crown counsel and the judges, as to whether the jury should he permitted to take the refreshment in court or out ; and at the suggestion of the Attorney-General, the jury were directed to take it in court. The prisoner requested permission to withdraw, which was granted. At a quarter past three the jury retired. At twenty minutes to foiu* returned into court. The prisoner was placed at the bar.] Lord Chief Justice Doherty. — Do you wish to wait. Sir Colman ? Sir C. O'T^oghlen. — I should wish to wait for Mr. Whiteside, my lord. We have sent to his lodgings. If he does not come directly, I will not ask your lordships to wait. Lord Chief Justice Doherty. — Do not misunderstand me ; there is no desire to hurry you. Sir C. O' Loghlen. — Mr. Whiteside is in the other court, my lord ; he is robing. [Mr. Whiteside shortly afterwards took his seat.] The Foreman. — My lord, the jury are very anxious to know, whatever the finding may be, are we to find on the five counts, for or against, as one count, or as five ? The Lord Chief Justice . — There were six counts, hut one is withdrawn. The Prisoner. — I cannot hear you. Speak out, gentlemen. The Foreman . — The question is, whether we are to find — no matter what the finding is — on either of the five counts that are sent to us, or on a single count ? The Attorney- General . — One, my lord, is withdrawn; but with respect to the others, they must give, on the whole five, a verdict of guilty or not guilty. The Foreman. — Are we to find on the one, or the five. The Tuord Chief Justice . — A general verdict on the whole, of guilty or not guilty. The Attorney- General. — Guilty or not guilty on the five, but not guilty on the sixth. [The prisoner was removed. The jury then retired, and at half-past five returned into court. The prisoner was placed at the bar. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 887 The names of the jury were called over, and they all an- swered.] The Clerk of the Crown. — Gentlemen, have you agreed to your verdict ? The Foreman. — We have. The Clerk of the Crown. — How say you, gentlemen — is William Smith O’Brien guilty or not guilty ? The Foreman. — Guilty ! ! My lord, we have a recommenda- tion, which I will read; or perhaps you will read it for me, Mr. Pedder. The Clerk of the Crown . — “We earnestly recommend the prisoner to the merciful consideration of the Government, being unanimously of opinion that, for many reasons, his life should be spared. “ For self and fellow-jurors, “ Richard M. S. Mansergh.” The Attorney- General. — Is the verdict not guilty on the sixth count, and guilty on the other five ? The Foreman. — There was only one issue given. The Attorney- General. — To prevent any misunderstanding, the sixth count was abandoned. The Clerk of the Crown. — The verdict is, not guilty on the sixth, and guilty on the first five counts. The Attorney- General. — That is what I understood. The Lord Chief Justice. — Adjourn the court until ten o’clock on Monday morning. [The court then adjourned.] dFourteentf) Monday, ^th October, 1848. MOTION IN ARREST OF JUDGMENT. The Attorney-General . — My lords, in the case of the Queen v. Wilham Smith O’Brien, I have humbly to move for the judg- ment of the Court. The Lord Chief Justice . — Put forward Mr. O’Brien. [The prisoner was placed at the bar.] The Clerk of the Crown . — William Smith O’Brien, you hereto- fore stood indicted, that you with others Mr. Whiteside. My lords, I believe this is the proper time to make the application to the Court which I have to submit in arrest of judgment. On reference to the Act of Parliament to which I before 888 SPECIAL COMMISSION, CO. TIPPERARY. adverted, I find that the proper time to make any application to the Court as to the reservation of a matter which occurred during- the progress of the trial, is after conviction. The words of the statute are — When any person shall have been convicted of any treason or felony, the Court may in its discretion reserve a question of law.’' As it now seems to me to he the proper time, I respectfully ask your lordships to reserve the three questions which I before mentioned — first, whether the speeches of Mr. O’Brien in March and April were admissible in evidence against him. Secondly, whether the account of that meeting of the 21st of July was admissible against Mr. O’Brien. On two grounds we say it was not, assuming that Dobbyn was not confirmed, and that Mr. O’Brien was absent. The third question is the admissibility in evidence of the contents of the portmanteau. There might be a fourth, according to the opinion your lordships may entertain on the motion I am prepared to make, and which I shall do very briefly. My lords, the prisoner is convicted. I move in arrest of judg- ment on Mr. William Smith O’Brien on the grounds which I shall state to your lordships. The indictment charges the prisoner with having compassed the death of the Queen, and with having levied war against her in her realm. Of the crime of compassing the death of the Queen he has been acquitted. Of the crime of levying war, which crime is stated in the first five counts of the indict- ment, he has been convicted. The first proposition I have to submit, respectfully, to your lordships is, that no such treason as levying war against the Queen is indictable in Ireland. In order to constitute this offence of levying war against the Queen three things are essential — first, that there should be a levying of war; secondly, that it should be against the Queen ; and, thirdly, that it should be against her in her realm. Accordingly, in the five counts of the indictment on which the prisoner has been con- victed, it is laid that this war was levied against her Majesty in her realm. The word “realm” in the old statute of Edw^ard meant England only. I need not refer to authorities to support that familiar proposition ; and therefore, if a man had committed treason in Ireland he could not have been tried under the statute of Edward for that treason in England. To remedy that defect, by a subsequent statute, namely, the 35th of Henry VIII., cap. 2., it was enacted that a person might be tried in England for such treason, that is, treason committed in Ireland as a treason committed out of the realm. Your lordships may remember the remarkable case of Lord Maguire, the Irish lord, who was tried in England under that statute for a treason committed in Ireland ; and it was stated to be treason out of the realm. Now, that proves not only that Ireland is not within the statute of Edward THE QUEEN i-. WILLIAM SMITH O’BRIEN. 889 as to the treason of levying war within the realm, but that the latest decisions in England have declared it to be without the realm of England. My lords, it is perfectly true that the statute of Edward III. is extended to Ireland by Poyning’s Act, 10th Henry VII., cap. 22. Therefore we admit that there is a statute that would make, in Ireland, a levying of war in her Majesty’s realm treason. It makes the levying of war in her Majesty’s realm treason, hut the question remains, whether the word “realm” in this statute can have any larger operation and effect than it could have had under the old statute of Edward III. ? That will of course depend on the words of the Act of Parliament to which I shall refer. I submit that the true meaning of this is, to do what was before done in England, to make a levying of war in England triable in Ireland; and the realm of England, which is laid down in all the books to refer to England only, has not, and cannot have by this act any larger or greater operation. The words of the act are — “ Item, prayen the commons, that forasmuch as there hath been many diverse good and profitable estatutes late made within the realm of England.” And then when it comes to speak of Ireland it says — “ So would this land, if the said estatutes were used and executed in the same : wherefore it be ordeyned and established by authority of this present Parliament, by the assent of the lords spirituall, and temporall, and commons assembled in the same, that all estatutes, late made within the said realm of England, concerning and belonging to the com- mon and publique weal of the same, from henceforth be deemed good and efiTectual in the law, and over that be acceptyd, used, and executed within this land of Ireland in all points, at all times requisite according to the tenor and eflfect of the same; and over that by authority aforesaid, that they and every of them be authorized, proved and confirmed in this said land of Ireland. And if any estatute or estatutes have been made within this said land, hereafter to the contrary, they and every one of them by autho- rity aforesaid, be adnulled, revoked, voyd, and of none effect in the law.” I respectfully submit that the distinction there taken between “ the realm of England” and “the land of Ireland” is manifest; and no larger operation can be given to that word than it had by the statute of Edward, as declared by Lord Coke and Lord Hale to be confined exclusively to England. In truth, it did just what the other Act of Parliament did in England — enabled them to try in England an offence committed in Ireland. So my lords, we think this Act of Parliament enables them to try in Ireland a treason committed within the realm of England. It is a curious thing, on looking through the Irish cases, I do not find any dis- tinct case where a party has been tried for levying war in the realm. They are all for compassing the death. We admit the words in the old Act of Parliament of Edward do not apply. Supposing it should be urged, that whatever may have been the 890 SPECIAL COMMISSION, CO. TIPPERARY. case before the union, since the act of union this argument is untenable, I have only to mention and refer your lordships to a solemn decision in Westminster Hall, where they have laid down that Ireland is a foreign country. In an action on a hill of ex- change they have refused to notice Dublin judicially; declaring that Ireland was a foreign country. That is the first point on which it is unnecessary to trouble the Court at any greater length. My lords, the next point is one, perhaps, of more importance in principle, and is shortly this, that the crime of levying war, of which the prisoner has been convicted, is not now indictable as a substantive treason, but is a felony only. This turns mainly on the construction of the 11th of Victoria, cap. 12. But to comprehend its effect we must first consider what was the state of the law anterior to the passing of that statute of the Queen, and in what manner, if at all, it has been affected by that act. Your lordships remember that the statute of Edward declares — “ If a man do levy war against our Lord the King in his realm, and thereof be provahly attainted by open deed by the people of his condition,” he shall be declared guilty of treason. Now, my proposition is shortly this, that the offence here consists of two things, of the intention, and of the fact to be made out by the overt act or deed. Your lordships will see in a moment, to charge in an indictment that A levied war, would be bad. It is bad because the crime consists of the intent, and the levying of war is but the overt act. The being armed, arrayed, and levying war, is but the overt act ; and the overt act is not the crime. Therefore the intent, or the compassing, is the crime, and the intent is expressed by the word ‘‘compassing;” and the levying war is the overt act that proves it. My lords, it is erroneously supposed that “ compassing to levy war” was first known in England — and this is the error upon which I respectfully submit the argument on the other side will turn — that these words, “ compassing to levy war,” were first introduced into our law by the 36th George III. ; and if that be so, of course there would be great force in the objection, but that is the fallacy in the argument, because I will prove to your lordships, “compassing to levy war” was the charge under the statute of Edward. Now I wiU shortly prove that fact to your lordships. In the course of precedents I do not intend to refer to any case subsequent to the 36th Geo. III. ; for as that Act of Parliament uses the words “ compassing to levy war,” it might be said, that any case since the passing of the 36th Geo. III. referred to its language. But if I show your lordships that, according to the form of the most approved precedents, and in the most important cases, a compassing to levy war was always charged, or an intending to levy war — the intent, and then the proof of that intent is the fact of being arrayed in open arms THE QUEEN WILLIAM SMITH O’BRIEN. 891 and levying war — then I would respectfully submit that the statute of the 36th Geo. III. must be referred to the approved style of precedents, and that the precedents which occurred before the passing of that statute cannot possibly be referred to the subsequent statute. But there is a case in Mr. Justice Foster’s hook, page 213, to which I wdsh to refer. He says, in reference to this case of Damaree, that it was a case of constructive levying of war, and he wishes to be precise in stating it, because it was the last that appeared in print, and he was present at the trial : — “ The indictments charged that the prisoners withdrawing their alle- giance, and conspiring and intending to disturb the peace and public tranquillity of the kingdom ” Did what ? “ did traitorously compass, imagine, and intend to levy and raise war, rebellion, and insurrection against the Queen within the kingdom ; and that in order to complete and effect those their traitorous intentions and imaginations they on the day of at with a mul- titude of people to the number of five hundred, armed and arrayed in a warlike manner, &c., then and there traitorously assembled, did traitorously ordain, prepare, and levy war against the Queen, against the duty of their allegiance.” Therefore, according to this very important precedent stated by the learned judge, the crime consists of two things: the intend- ing and compassing, and the doing of the act in pursuance of that intent — that is, before the 36th Geo. III. I have got the indict- ment itself, which is very important indeed. It is reported in the 15th volume of this edition of the State Trials, page 526. The indictment runs thus : — “You stand indicted by the name of Daniel Damaree, late of the parish of St. Clement Danes, in the county of Middlesex, labourer; for that you, not having the fear of God before your eyes, nor weighing the duty of your allegiance, but being moved and seduced by the instigation of the devil, the love, and true, and due obedience which every true and faithful subject of our Sovereign Lady Queen Anne, by the grace of God, of Great Britain, France, and Ireland, Queen, defender of the faith, &c., towards our said Lady the Queen, should and of right ought to bear, wholly withdrawing and conspiring, and with all your strength intending the peace and common tranquillity of this kingdom to disturb, the first day of March, in the ninth year of the reign of our said Sovereign Lady the Queen that now is, at the parish of St. Clement Danes aforesaid, in the county of Middlesex aforesaid, falsely, unlawfully, devilishly, and traitorously did compass, imagine, and intend open war, insurrection, and rebellion, against our said Lady the Queen, within this kingdom of Great Britain, to raise and levy ; and your said treasons, ” That is, the treason. “ compassings, imaginations, and intentions, to fulfil and bring to effect, you the said Daniel Damaree afterwards, that is to say, the said first 892 SPECIAL COMMISSION, CO. TIPPERARY. day of March, in the ninth year aforesaid, .in the said parish of St. Cle- ment Danes, in the county of Middlesex aforesaid, by force and arms, against our said Sovereign Lady the Queen, your Sovereign and undoubted liege Lady, with a great multitude of men, to the jurors unknown, to the number of five hundred persons armed and arrayed in a warlike manner, that is to say, with colours fiying, swords, clubs, and other weapons, as well oflfensive as defensive, unlawfully and traitorously being assembled and gathered together, public War against our said Lady the Queen, at the parish aforesaid, in the county aforesaid, the day and year aforesaid, traitorously did prepare, begin, and levy, against the peace of our said Sovereign Lady the Queen that now is, her crown and dignity, and against the form of the statute in that case made and provided.” Therefore that is a precedent. Now I will draw your lordships’ attention to a decision which, of course, must be very important if it has any application, as it was decided by the twelve judges of England. It is page 546, in the note to the 15th volume of the State Trials. Two persons were indicted, Damaree and Purchase. “ The indictment against Purchase and Damaree for pulling down meeting-houses, charged that they, with a multitude to the number of five hundred, to the jury unknown, armed and arrayed in a warlike manner, with clubs and staves, and other arms, offensive and defensive, levied war against the Queen. No exception was taken to the indict- ment by Damaree’s counsel, but on behalf of Purchase it was objected that there ought to have been an overt act laid of the treason.” That was his objection — because there being such a variety of facts, which amount to levying war, if the particular facts intended to be brought forward against the prisoner were not alleged he could not know how to make his defence.” Now, my lords, what is the resolution of all the judges ? “But it was resolved by all the judges, upon conference, that the in- dictment was good, and that levying war beiug an overt act of itself, no other overt act need be alleged.” Now, levying of war, therefore, is the overt act ; it cannot be the crime, for it is the means by which the crime is effected. “ They agreed however, that it ought to appear sufilciently upon the indictment that a war was levied, and that they appeared in such warlike manner; and that an indictment generally, that A levied war, is not good.” Because that might be an outbreak. The intent must be shown, and the act depends on the intent. Then they cite three cases to the same effect. “ The indictments in Benstead’s case, and in the case of the apprentices for pulling down bawdy-houses were framed as this is. And they were all resolved that the statute 7th William III., did not make the laying an overt act necessary where it was not so before.” THE QUEEN i/. WILLIAM SMITH O’BRIEN. 893 All charge the traitorous compassing and intention, and the levying of vrar as the act done in pursuance of that traitorous intention. My lords, I will only refer your lordships to one case more on this point, which, in my opinion, is a very important one; and that is one of the most celebrated cases in our books — Lord George Gordon’s. Now it is of great consequence to see how the indictment was framed against Lord George Gordon. Your lordships perceive that all the cases to which I have referred were before the 36th Geo. III., which uses the word “ compass.” This case was in the 21st of Geo. III., and the indictment contains but two short counts. “ The jurors for our Lord the King upon their oath present, that George Gordon, late of the parish of Saint Mary-le-bone, otherwise Marybone in the county of Middlesex, esquire, commonly called Lord George Gordon, being a subject of our Sovereign Lord George the Third, by the grace of God, of Great Britain, France, and Ireland, King, defender of the faith, Ac., not having the fear of God before his eyes, nor weighing the duty of his allegiance, but being moved and seduced by the instigation of the devil, and entirely withdrawing the love, and true, and due obedience, which every subject of our said Sovereign Lord the King should and of right ought to bear towards our present Sovereign Lord the King, and wickedly devising and intending to disturb the peace and public tranquillity of this kingdom, on the second day of June, in the twentieth year of the reign of our Sovereign Lord, the now King, at the parish of Saint Margaret, within the liberty of Westminster, in the said county of Mid- dlesex, unlawfully, maliciously, and traitorously did compass, imagine, and intend to raise and levy war, insurrection, and rebellion against our said Lord the King within this kingdom of Great Britain; ” And then — “ and to fulfil and bring to efiect the said traitorous compassings, imagi- nations and intentions of him, the said George Gordon, he, the said George Gordon afterwards (tliECt is to say), on the said second day of June, in the twentieth year aforesaid, with force and arms, Ac., at the said parish of Saint Margaret, within the liberty of Westminster, in the said county of Middlesex, with a multitude of persons whose names are at present unknown to the j urors aforesaid, to a great number, to wit, to the number of five hundred persons and upwards, armed and arrayed in a warlike manner (that is to say), with colours flying, and with clubs, bludgeons, staves, and other warlike weapons, as well ofiensive as defensive, being then and there unlawfully, maliciously, and traitorously assembled and gathered together, against our said Sovereign Lord the King, most wickedly, maliciously, and traitorously did ordain, prepare, and levy public war against our said Lord the King, his supreme and undoubted Lord, contrary to the duty of his allegiance.” The second count is more concise, but it states the same compassings — that he “ did compass, imagine, and intend to raise and levy war, insurrection, and rebellion against our said Sovereign Lord the King, within this 894 SPECIAL COMMISSION, CO. TIPPERARY. kingdom of Great Britain, and to fulfil and bring to effect the said last- mentioned traitorous compassings, imaginations, and intentions of him, the said George Gordon, he, the said George Gordon, on the said second day of June, in the twentieth year aforesaid, and on divers other days and times, between that day and the tenth day of the same month of June, with force and arms, &c., at the said parish of Saint Margaret, within the liberty of Westminster, in the said county of Middlesex, with a great multitude of persons whose names are at present unknown to the jurors aforesaid, to a great number, to wit, to the number of two hundred per- sons and upwards, armed and arrayed in a warlike manner (that is to say), with colours flying, and with swords, clubs, bludgeons, staves, and other weapons, as well offensive as defensive, being then and there un- lawfully, maliciously, and traitorously assembled and gathered together against our said present Sovereign Lord the King, most wickedly, ma- liciously, and traitorously did ordain and levy public war.” This course of precedents shows plainly what was the doctrine held with respect to the statute of Edward, which alone existed up to the time to which I have drawn the attention of the Court, clearly, and in exact conformity with our whole criminal law, which makes the intent the crime. The intent is the crime, and consequently, although the words of the Act of Parliament are, shall levy war against the Queen,” any outbreak, as between the police and the peasantry, would not, of course, be treason. It must he shown that the party had a treasonable intent, accord- ing to the course of precedents to which I have already drawn your attention, which was invariably done by the able and pro- found lawyers of that time. Now, my lords, that brings us shortly to the Act of Parliament of the 36th George III. By the statute of Edward, your lordships will observe, the only overt act which would prove the crime of levying war, was the actual fact of levying war ; whereas your lordships perceive, by the 36th George III., other overt acts were introduced besides that which before prevailed of levying war. Now the words of this act are — “ If any person or persons whatsoever, after the day of the passing of this act, during the natural life of our most gracious Sovereign Lord the King, (whom Almighty God bless and preserve with a long and prosperous reign,) and until the end of the next session of Parliament after the demise of the Crown, shall, within the realm or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint of the person of the same our Sovereign Lord the King, his heirs and successors, or to deprive or depose him or them, from the style, honour, or kingly name of the imperial Crown of this realm, or of any other of his Majesty’s dominions or countries; or to levy war against his Majesty, his heirs and successors, within this realm, in order, by force or constraint, to compel him or them to change his or their measures or counsels ” And then — THE QUEEN i;. WILLIAM SMITH O’BRIEN. 895 “ such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed.” Therefore this act has a twofold operation : it is declaratory of the old treason of the statute of Edward III. ; and it is, I admit, in part enacting, by the introduction of those new overt acts of printing and writing, whereas before, the intent of levying war must have been proved solely by the act of levying war. This little act of the 11th of Victoria, in the book I hold in my hand, is drawn up by Mr. Cox, a barrister ; and in page 1 4 he says — “ The 36th George III. is the next of importance, which is in fact the one upon which the existing law of treason is based ; for in truth it includes those treasons which were known as treasons before, under the statute of Edward.” Now, my lords, we come to the statute of the 11th Victoria, which is the last Act of Parliament to which I shall have to call your lordships’ attention, and that recites — “ Whereas it is expedient to repeal all such of the provisions made perpetual ” That is, of the 36th George III. “ by the last recited act as do not relate to offences against the person of the Sovereign ” That is the object — to repeal all the provisions of the 36th George III. as do not relate to offences against the person of the Sovereign. “ and to enact other provisions instead thereof, applicable to all parts of the United Kingdom; and to extend to Ireland such of the provisions of the said act as are not hereby repealed ” Then it provides that the provisions of this act of the 36th, made perpetual by the 57th, and all the provisions of the last- mentioned act in relation thereto — save such of the same respectively as relate to the compassing, imagining, inventing, devising, and intending death or destruction, maim or wounding, imprisonment or restraint of the person of the heirs and successors of his said Majesty King George III., and the expressing, uttering, or declaring of such compassings, imaginations, inventions, devices, or intentions, or any of them, shall be, and the same are hereby repealed.” I have shown, by the precedents to which I before drew your attention, that the compassing to levy war, and the intending or compassing was required, as well as the doing of the act ; and the very same thing required by the cases is embodied in this 896 SPECIAL COMMISSION, CO. TIPPERARY. Act of Parliament, which must have been framed in reference to the various decisions. My lords, every treason, by this Act of Parliament in my hand, save such as relate to compassing the death of the King, is repealed; and, consequently, this must he evident, that com- passing to levy war, provable by any overt act or deed, is no longer a treason. That is as clear as light. Compassing to levy war must be manifested by some overt act or deed, and that is no longer punishable as treason but as felony. Now, to apply this, before I close the few words I have to add on this part of the subject. The indictment here charging Mr. O’Brien with compassing and intending to levy war, and laying, as the overt acts of it, what occurred at Mullinahone, Killenaule, and Ballingarry, he must at once he acquitted, because compass - ing to levy war, provable by overt act and deed, by this statute, is no longer treason, but merely felony. Then the question will remain, can the same acts, when this word “compassing” is dropped from the form of the indictment, make that treason which, by the Act of Parliament, is but felony in the other cases to which I have adverted ? If in levying war is necessarily involved the intent, and the compassing, that is impossible; because the compassing to levy war is proved by overt acts. For example — the two minutes’ visit to Mullinahone, and what occurred at Killenaule, is clearly only felony ; and the question therefore is, if the indictment drops the word “compassing,” and says he levied war, whether that makes any difference ? I ought to have cited the charge of Lord Mansfield, in the case of Lord George Gordon. In that case he left it to the jury, on the indictment, in this way, at page 646 — “ The question always is, whether the intent is by force and violence to attain an object of a public and a general nature.” . That is, upon that indictment which charged Lord George Gordon, under the statute of Edward, that he compassed and intended to levy war, and that he did it. The Lord Chief Justice of England, Lord Mansfield, says the question turned on the intent. Therefore it is the intent which constitutes the crime ; and whether the indictment be as here, with deference be it spoken, absolutely to levy war, or that he compassed and intended to do it, and then that he levied the war, there being the same overt acts in each case, it occurs to me it is no longer treason hut felony. It may be said, I am aware, that the 6th section of this act seems to say that treason is the same in both countries ; that in England and Ireland every thing that aims against the per- son of the Sovereign is treason still, but that the crime that does not aim at the person of the Sovereign is not treason — and there is good sense in the distinction. The section which creates crimes under this new act is the 3rd section, which says— THE QUEEN i;. WILLIAM SMITH O’BRIEN. 897 “ If any person whatsoever, after the passing of this act, shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our most gracious Lady the Queen, her heirs or successors, from tlie style, honour, or royal name of the Imperial Crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty, her heirs or successors, within any part of the United Kingdom, in order, by force or constraint, to compel her or them to change her or their measures or counsels; or in order to put any force or constraint upon, or in order to intimidate or overawe both houses or either house of Parliament, or to move or stir any foreigner or stranger with force to invade the United Kingdom, or any other her Majesty’s dominions, or countries under the obeisance of her Majesty, her heirs or successors; and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed, every person so offending shall be guilty of felony.” Now it is worthy of notice, that the learned gentleman who has drawn up this little compilation, in page 23 observes on that section — “ It is not merely, as some have supposed, a re-enactment of an exist- ing law ; it is, in fact, a collection of all the treasons recognised by the law, not included in those that consist of offences against the person of the Sovereign ” Then, in a parenthesis — and which still remain treasons under the unrepealed portions of 36 George III., c. 7, reducing them to felony, mitigating the punishment from death to transportation, and extending them to Ireland.” I do not wish to refer to the report in the newspaper, as it maybe incorrect ; but if what I have heard of the learned judges in another country he correct, that is their understanding in England, that all treasons, except those which affect the life of the Sovereign, are reduced to felonies, and are summed up in that section. I am quite aware that my learned friend, the Attorney-General, will, of course, rely on the 6th section of this Act of Parliament, and will say, that this defeats the prior section, which he must maintain to carry his point. The 6th section says — Provided always, and be it enacted, that nothing herein contained shall lessen the force of, or in any manner affect, any thing enacted by the statute passed in the twenty-fifth year of King Edward the Third, a declaration which offences shall he adjudged treason^ My lords, that is to he read in connexion with the antecedent section ; and the 25th of Edward III., according to my argument, is preserved in its full force, by understanding it to preserve as treasons every thing it made treason, as affecting the life of the Sovereign. An antecedent section says it is the intent of this 3 M 898 SPECIAL COMMISSION, CO. TIPPERARY. Act of Parliament to abolish the punishment of death for all offences which do not relate to the person of the Sovereign ; and then, because those offences were declared by the statute of Edward IIP, it says in section 6, that nothing shall affect the operation of the statute of Edward III. — that is, all the treasons declared treasons by the statute of Edward III., which affect the life of the Sovereign, shall be treason still. Then it may be said, what do you do with the substantive offence of levying war ? I am speaking, my lords, of a direct levying war against the Queen. With great deference, that does not affect my argument in the least, because, I respectfully submit to your superior judgment, the substantive offence, the offence of levying war, was before evidence of compassing the Queen’s death ; and therefore, as by that 6th section, the offence of compassing the Queen’s death still remains just as it was before, the overt act of levying war directly against the Queen, will still continue as the overt act, to prove the compassing the Queen’s death. That I understand to be the meaning of the 7th section, which provides, that upon trials of felony under this act, though the facts proved might amount to treason, still that shall not entitle the party to an acquittal. So that if the overt act was a substantive levying of war against the Queen, although it is treason, it is still evidence of compassing to take away the Queen’s life, and evidence under that clause of the 25th Edward III. ; and although it be proved on a prosecution for felony, still you are liable to be punished by the 7th section, taken in connexion with the 6th section. I think that preserves the intent of the Legislature, which seems to me to have been to abolish the pun- ishment of death for all crimes which did not affect the person of the Sovereign. For example — I venture to think the learned framers of that Act of Parliament, if they were asked the question, would not say that they ever meant that the punishment of death should be preserved in such a case as the Apprentices’ case in London. Of course your lordships must construe the act according to its meaning. The true operation of it was to reduce the law to its ancient simplicity and force, as it existed under the statute of Edward, which, by construction and interpretation, was pushed / beyond that which neither the law nor the spirit of it intended. And now, no such case as that of the Apprentices of London destroying certain houses, or the Meeting-houses’ case, can be considered a levying of war, punishable with death as such. It is rightly reduced to felony, and the substantive crime of levying war is not to be indicted as a levying of war, but may be rehed upon as an overt act of compassing the King’s death. But suppose your lordships should be of opinion that this argu- ment, such as I have endeavoured humbly to submit to your better judgment, is not w^ell founded, and should still think that levying war directly against the Queen remains as a substantive THE QUEEX WILLIAM SMITH O’BRIEN. 899 treason ; that I am not at liberty, in moving in arrest of judg- ment to assume, as the indictment stands, that it has not been a case of direct levying of war against the Queen, then I wish to call your lordships’ attention to the facts of which you ha^e judicial notice. The prisoner has been acquitted of compassing the Queen’s death. Why? Because he has not levied war directly against the Queen. If he had levied war directly against the Queen he would have been guilty of compassing the Queen’s death, because it was what is called levying war constructively, which is an unhappy phrase. He is found not guilty of compassing the Queen’s death. The overt acts in the sixth count for compassing the Queen’s death, and the overt acts in the first five counts for levying war, are identically the same, and your lordships have judicial knowledge of that fact. I am quite aware that I am not at liberty, in moving in arrest of judg- ment, to refer to the Killenaule in the sixth count, as the Kille- naule in the other five, hut your lordships know it is so, and cannot gainsay the truth. AVell, then, what follows ? On the face of the indictment, whether the levying of war be direct or con- structive, cannot appear from the language of the indictment, and although those very cases which I have drawn your lordships’ attention to, of Hamaree and Purchase, were cases of levying war constructively, yet the indictment left it to appear as if it w^as a levying of war generally ; and it appears upon the evidence as the trial proceeds what kind of levying war it is, whether direct or constructive. Here the levying of war by the verdict on the sixth count has been declared and decided by your lordships’ judgment to be constructive. Now, although it might be held that the levying war directly on the Queen still remains a substantive offence, yet I apprehend that the Court or tribunal before whom it will be argued will never hold that the levying war constructively still remains punishable with death. Well, if the indictment were that he did compass and intend to levy war against the Queen, and all those facts were set out in the indictment, he must necessarily be acquitted of treason. I therefore respectfully submit to your lordships on the second branch of the argument, that the true intent and meaning of the Act of Parliament is, to reduce to felony every thing which does not aim at the person of the Sovereign. Although your lord- ships might think that levying war directly might be held to aim at the person of the Sovereign, because it is evidence and an overt act of compassing the Queen’s death, yet as you have judi- cial notice that the facts proved in this case do not amount to levying war directly, but merely constructively, that manifestly falls within the principle of this Act of Parliament, is reduced to felony and is only punishable with transportation for life — a very severe punishment God knows. If this argument be unfounded, the consequence will be, that if the same identical facts were 3 M 2 900 SPECIAL COMMISSION, CO. TIPPERARY. put into a formal indictment, charging Mr. O’Brien that he did compass and intend to levy war, and in proof of that traitorous intent did certain overt acts in Mullinahone, BaUingarry, and Killenaule, he must be acquitted of that charge, because the charge of compassing, which ought to he proved by an overt act under the 36th George III., is now made felony. Is it capital, upon the same state of facts, by merely dropping the words “ com- passing and intending,” when in the progress of the trial that same compassing and intending must he proved ? I respectfully submit, my lords, the second part of the case, if the first part should fail, is in any event worthy of being reserved for argument. The Attorney -General. My lords, on the part of the Crown I shall follow my learned friend as well as I can, and submit, with great defe- rence to his judgment, and the very ingenious argument he has offered, that there is no doubt whatever but that the levying of war is a distinct treason still, and as such we are entitled to the judgment of the Court. The first question that has been raised by my learned friend, Mr. Whiteside, is, that inasmuch as the statute of Edward is an English statute, and merely at the time of its passing was confined to the levying of war within the realm of England — “within this realm,” being the words used — that therefore there is no statute making it high treason to levy war directly against the King in Ireland. In the first place I very respect- fully submit to your lordships that the effect of Poyning’s Act is to transfer to Ireland the statute of Edward ; and whatever offence, if committed in England prior to the passing of Poyning’s Act, would be a treason, is made a treason in Ireland by the effect of that act. That, as I understand, has been the universal construction given to Poyning’s Act from the time of its passing, as far as any of the records have reached, up to the present time, that any act that extends to England generally, extends to Ireland by the force of Poyning’s Act, although of course the English act before had reference only to the realm of England. If I wanted a legislative declaration as to what the intention was, I have it in the Irish act of the 10th Henry VII., cap. 13. Your lordships will recollect that in the very same session of Parlia- ment Poyning’s Act was passed ; and at that time all acts of Par- liament had reference to the session, and not to the parti- cular day upon which they received the royal assent. Your lordships will find that act assumes that a levying of war against the King is a high treason, because it makes the levying of war against the King’s lieutenant as much a treason as if an insurrection had been levied against the King himself. There- fore I respectfully submit that independent of what certainly The Lord Chief Justice . — Just read the words of the act. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 901 The Attorney -General . — The words are these, it is chapter 13th : Item, forasmuch as diverse persons have assembled with banners dis- played against the lieutenant and deputy of the said land, supposing that it was not treason so to do, and many times the deputy hath bin put to reproch, and the common weal set in adventure ; therefore it be ordayned and enacted by this present Parliament, That whatsoever person or persons from this day forward cause, assemble, or insurrection, conspiracies, or in anywise procure or stirre Irishry or Englishry to make warre against our Sovereign Lord the King’s authority, that is to say, his lieutenant, or deputy, or justice, or else if any maimer person procure or stirre the Irishry to make warre upon the Englishry, be deemed trayter atteynt of high treason, in likewise as such as assemble an insurrection had been levied against the King’s own person.” Therefore it appears to me that that assumes that an insurrec- tion, or levying a war against the King was of course treason at the time ; and this takes away any distinction that might arise whether the war was levied against the King, or against the King’s lieutenant. But independent of this Act of Parlia- ment, I certainly think so far as my recollection goes, that the meaning of any reference which has been made is this, that without distinction any act in force in England at the time of the passing of Poyning’s Act, was by that extended to Ireland. Then my friend, Mr. Whiteside, seems to be under the im- pression that there is no course of precedents in Ireland, of men being attainted or convicted of treason for levying war within the realm of Ireland. I am not aware that that is well founded, because your lordships will find that all the indictments in 1803 did contain counts, and the parties were convicted for levying war within the realm. Mr. Whiteside . — On the count of compassing the death. The Attorney-General . — There was a count for compassing the death, but there were separate and independent counts for levying war against the King or Queen in Ireland, in 1803 ; and upon aU these the parties were convicted as well as upon the other counts. Then, if I am right that the statute of Edward is extended to Ireland, there is another statute which assumes that the statute of Edward is in force in Ireland, namely, the 5th Geo. III., cap. 21, which enacts that. Whereas it is highly reasonable and agreeable to the nature of our excellent constitution that persons prosecuted for high treason under the statute of 25th of Edward the Third, should be allowed all proper means for defence of their innocence : in order thereto, and for the better regu- lating 6f the trials of all such persons, be it enacted by the King’s most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and commons in this present Parliament assem- bled, and by the authority of the same, that from and after the 1st day of August, 1766, all and every person and persons, v/ho shall be accused and indicted for high treason under the said statute, shall have a true 902 SPECIAL COMMISSION, CO. TIPPERARY. copy of the whole indictment delivered to them, or any of them, upon request, five days at least before he or they shall be tried for the same ; whereby to enable them, or any of them, respectively, to advise with counsel thereon to plead and make their defence.” Then it goes on to show what privileges and advantages per- sons prosecuted for treason under the statute of Edward are to have. Therefore I very respectfully submit, that there can he no doubt whatever but that the statute of Edward is in force in Ireland. If I am right in that, then the next question that is sug- gested by the argument of Mr. Whiteside, is this — Mr. Justice Moore . — What are the words of Poyning’s Act? Mr. Whiteside . — It is very short. The Attorney- General . — These are the words, my lord: — “ That forasmuch as there has been many and diverse good and pro- fitable estatutes late made within the realm of England by great labour, studie, and policie, as well in the time of our Sovereign Lord the King, as in the time of his full, noble, and royal progenitors, late kings of England, by the advice of his and their, and their discreet counsail, whereby the said realm is ordered and brought to great wealth and pros- perity and by all likelyhood so would this land, if the said estatutes were used and executed in the same : wherefore it be ordeyned and established by authority of the present Parliament, by the assent of the lords spirituall and temporall, and commons assembled in the same. That all estatutes late made within the said realm of England, concerning or belonging to the common and public weal of the same, from henceforth be deemed good andeffectuall in the law,and over that be acceptyd, used, and executed within this land of Ireland in all points, at all times requisite according to the tenor and effect of the same ; a,nd over that by authority aforesaid, that they and every of them be authorized, proved and confirmed in this said land of Ireland. And if any estatute or estatutes have been made within this said land, hereafter to the contrary, they and every of them by authority aforesaid be adnulled, revoked, voyd, and of none effect in the law.” It appears to me that the effect of that statute is, that any acts that were previously the law in England, passed by the English Parliament, are extended to Ireland, precisely the same as if they were passed by the king, lords, and commons of Ireland at that time. The next argument, my lords, is, that in point of fact, if it be so, even though I am right in that argument that the statute of Edward was in force in Ireland, that the direct act of levying war against the King is no longer treason, but by the statute of the 1 1th Victoria is reduced to felony. Now, in order to render that argument at all sustainable, my friend, Mr. Whiteside, was obliged to commence with what certainly appeared to me to be rather a startling doctrine, which was, that in point of fact, notwith- standing the words of the statute of Edward, all offences under the statute of Edward were annulled, and the real offence was not the compassing to levy war, but the actual levying of war. THE QUEEN t;. WILLIAM SMITH O’BRIEN. 903 Mr. Whiteside. — That is confounding the two things. The Attorney -General . — Excuse me. Although I may not use the exact words, that was the view that his argument presented to my mind ; and, accordingly, tlie learned counsel referred to prece- dents to this effect, in which I admit he is well founded, namely, that some of the precedents antecedent to the 36th George III., Vvdiere a party was charged with actually levying war, also contain a distinct charge that he compassed to levy war, and in further- ance of his compassing, that he did actually levy war. Take a case of this description, where a man intends to murder another, and that intending to murder him, he did in fact murder him. I ask respectfully for any precedent before the 36th of George 111., of a count for compassing to levy war, without a fur- ther distinct allegation that, in point of fact, tlie war was levied ? dTie distinction between the two branches of the statute of Edward, in my humble apprehension, is as plain and intelligible as any matter can be. In the one case, namely, the compassing the death, the offence is committed if any overt act whatever be done towards accomplishing the object, although the act itself, namely, the death of the Sovereign, be not achieved. But that was not so under the statute of Edward, with respect to levying war. No matter how complete the plan of the intended traitors ; no matter what arrangements they had made ; no matter that all the plans for an outbreak were completed ; no matter that a pro- visional government was, in fact, appointed, unless a step had been taken, namely, an armed or a forcible rising or insurrection, there would have been no actual levying of war. Therefore it w^as that the 36th George III. was introduced, which made a distinct treason, in addition to the treasons of Edward, of compassing to levy 'war, wdien that compassing was evidenced either by printing or writing, or by any overt act or deed. It is a very great mis- apprehension — I may be wrong in using that word — but it is cer- tainly a very great mistake of my learned friend to suppose that the overt act — I am now putting the writing and printing out of the case — in order to the conviction of a person for felony under a count for compassing to levy war, must amount to an actual levying of war. We all know that within the last few days people have been convicted for compassing to levy war. They had their preparations and arrangements made, plans laid, munitions of war collected ; but there was no overt act of levying war. Then I submit that even the effect of the statute of the 36th George III., although it made the compassing to levy war an act of treason, did not repeal the statute of Edward, but explained and reserved it in full force. Your lordships will find that all the approved precedents in England, even since the passing of the 36th George III., did not contain such a count at all as compassing to levy war ; but, in fact, made a direct charge of levying war. That your lordships will find in the precedent in Frost’s case ; and that 904 SPECIAL COMMISSION, CO. TIPPERARY. is the most recent case of conviction in England upon that charge. Your lordships will find, in page 13 of the report, that the charge there was, not that the parties compassed to levy war, but that parties, in fact, assembled together, and did levy war against the king. Your lordships will find in Brandreth’s case, which was, I believe, in the year 1817 or 1818, precisely the same thing, namely, the charge of direct levying of war, the distinction between the statute of Edward and the statute of George III. being as I have just mentioned ; in the one case making the mental act the crime, and in the other not making the mental act, but the actual levying of war itself, the crime. Then, if I am right, that such was the law both of England and Ireland prior to the passing of the 11th of Victoria, cap. 12, the only question remaining is, has this statute altogether repealed the statute of Edward so far as relates to the substantive treason of actual levying of war? Now, my lords, I respectfully, and in express terms, deny that it has done any such thing ; but it has made the compassing to levy war felony in express words. It first repeals certain provisions of an act, and then says — “ That if any person whatsoever, after the passing of this act shall, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our most gracious Lady the Queen, her heirs or successors, from the style, honour, or royal name of the Imperial Crown of the United Kingdom, or of any other of her Majesty’s dominions and countries, or to levy war against her Majesty ” That is, if they shall compass to levy war against her Majesty, not generally, but if they shall compass “ to levy war against her Majesty, in order, by force or constraint, to compel her to change her measures or counsels, or by open and advised speaking, or by any overt act or deed ” That is, if they shall compass to levy war for a particular pur- pose, and shall evidence that by any overt act or deed, such per- son shall be guilty of felony. If the act had stopped there, there might be a very considerable difficulty in obtaining convictions under the Act of Parliament at all, provided the charge was that the party compassed to levy war, and in pursuance of that com- passing that he actually levied the war. That would be showing, in your indictment, that the man committed treason ; and if you brought forw^ard on that a charge of felony against the party, the argument of counsel would be, “ All that is wrong ; he is only indicted for felony, whereas the offence with which he is charged appears to he treason.” Now this exigency is provided for by the act itself. The Lord Chief Justice . — What section ? The Attorney -General . — It is the 7th section, my lord, which says — THE QUEEN WILLIAM SMITH O’BRIEN. 905 “ Provided also, and be it enacted, that if the facts or matters alleged in an indictment for any felony under this act shall amount in law to treason ” AVhich is admitting that such may be the case. “ such indictment shall not, by reason thereof, be deemed void, erroneous, or defective ; and if the facts or matters proved on the trial of any per- son indicted for any felony under this act shall amount in law to trea- son, such person shall not, by reason thereof, be entitled to be acquitted of suqh felony; but no person tried for such felony shall be afterwards prosecuted for treason upon the same facts.” That makes the compassing to levy war a felony. It farther provides, that if you charge a compassing to levy war in your indictment, and prosecute the party for felony, such prosecution is not to fail, though the facts may amount to treason ; but it does not compel you to have recourse to the Felony Act for the greater offence, where the charge amounts to high treason. Ac- cordingly, it is provided by this section — “ That nothing herein contained shall lessen the force of, or in any manner affect any thing enacted by the statute passed in the twenty-fifth year of King Edward the Third, a declaration which offences shall he adjudged treason.'" That, my lords, leaves the i)arty to proceed under the statute of Edward III. for any thing that is declared treason, notwith- standing the compassings of this act. It makes a felony what was not treason in Ireland, but what was treason in England. It then provides, that you are not to be embarrassed if you choose to prosecute for felony, because there is an allegation that the facts to be proved on the trial may amount to treason ; but it leaves the act of levying war, as it stood before, a distinct and substantive treason. I believe that these are the points, at least I am not aware of any others, put forward by the very ingenious argument of my learned friend, Mr. Whiteside ; but I respectfully submit, there are no grounds whatever for this motion in arrest of judgment. Then with respect to the other portion of the case, namely, an application to your lordships Mr. Justice Moore . — That is not before us. Mr. Fitzgerald. My lords, I am on the same side with my learned friend, Mr.Whiteside, in this case ; and I do think my learned friend, the Attorney-General, has misapprehended both the questions that have been stated to the Court by my friend, Mr. Whiteside. The first proposition which we submit to your lordships is this, that the crime of levying war in Ireland is not a crime indictable in Ire- land as treason. The mode in which the Attorney-General has met that is, by stating that that argument assumes that the statute of 906 SPECIAL COxMMISSION, CO. TIPPERARY. tlie 25th Edward is not extended to Ireland by Poyning’s Act. Such is not onr proposition. We admit that the statute of the 25th Edward III., in every part of it, is, by the effect of Poyning’s Act, extended to Ireland ; hut what we do question is, the extent of it as applied to Ireland. The first treason wdiich is created a treason by the statute of Edward III. is compassing the Queen’s death — the death of the Crown, or the Sovereign. In the part of the act which applies to that treason, there is not one word said of “ within his realm and the consequence is, so far as that treason is concerned, Poyning’s Act, extending the English statute of Edward III. to Ireland, made the compassing of the Sovereign’s death treason in Ireland. On the other hand, the second treason, which is the only one with which we are concerned now, is levy- ing war against the Sovereign in his realm. My lords, we do not dispute that Poyning’s Act, extending this provision of the statute of Edward III. to Ireland, made the levying war against the Sove- reign in his realm a treason indictable in Ireland. We do not question that proposition. But the real question raised by our objection is this — what is the meaning of the words “ within his realm,” in the statute of Edward ; because all that Poyning’s Act does is to extend the provisions of that statute, whatever their meaning was, to Ireland ? This is a criminal act, having reference to the highest crime known to the law, or that can be committed by a subject, and your lordships will not give it a larger construc- tion than you are obliged to do. What was the meaning, then, of the words “ within his realm,” in the statute of Edw^ard III. ? It was clearly and expressly held, that a treason committed in Ireland under the statute of Edward was not indictable in Eng- land. Why? Because Ireland was not within the meaning of the words “ wdthin his realm” in that statute ; and the only way in which a treason committed in Ireland could be indicted as trea- son, was by the subsequent statute of Henry VIII., which made it a treason within the realm ; and under that, as your lordships know. Lord Maguire, O’Borke, and others were indicted for a trea- son committed without the realm. Then the question is, whether Poyning’s Act, which merely extends the 25th Edward III. to Ireland, by the extension, put any other meaning on those words, “within his realm?” Observe, the words in this indict- ment are not “ within his realm,” for they do not even follow the words of the statute here — they do not say, “ within his realm,” but “ within this realm.” Now, those words bear a very different meaning from what they did while in the statute of Edward III. I apprehend the very form and phrase in which Poyning’s Act is worded shows a plain distinction between his Majesty’s realm of England and this land of Ireland ; because your lordships remember that it was not until long after the time of Henry VIII. that the title of King of Ireland was assumed by the Kings of England, or that Ireland did, in THE QUEEN WILLIAM SMITH O’BRIEN. 907 fact, become a part of tlie King’s realm. The King of England was only Lord of Ireland, as your lordsliips know, before that time. But the statute would be deprived of all effect in Ireland, because it is perfectly plain, that under the statute, as extended, a treason committed in England, which is within the realm of the Sovereign, would be indictable in Ireland under that statute, when extended, which it had not been before. We therefore give effect to the act, and we ask your lordships not to extend it further than the meaning of the words warrant. That is our proposition, and not the proposition as stated by the Attorney- General, that we gave no effect to the extension of the statute of Edward III. in this country. Now, my lords, with respect to the other argument of my learned friend (and it really appears to me to bear against him if it has any bearing at all), that if Poyning’s Act is not in form a declaratory act, though he states that it is now made law, that a war levied against the Queen’s deputy or lieutenant in Ireland is treason. It enacts further that certain offences shall be treason. My lords, the indictment here, if there is any thing in it, does not pursue the form of that statute ; it does not state “within his own realm.” Your lordships are aware that a levying of war of that kind would have been an overt act of high treason directly affecting the person of the Crown. Now my learned friend has said there have been counts framed in Ireland (I do not mean to question that) in trials for treason under the sub- sequent statutes, that is levying war within the realm, and ad- hering to the King’s enemies, in both of which treasons the words “within the realm” occur. I admit there have been indictments containing counts for levying war and adhering to the King’s enemies within the realm ; but I apprehend there has been no actual conviction on the count for levying war. Now with respect to all in which there have been convictions, what- ever they are, your lordships will find that they are convic- tions upon indictments which in addition to those counts contain counts for compassing the death of the Sovereign. Y our lordships are aware that it w^as only till very lately that it was admitted that a man being convicted on one count of an indictment, vitiated a general verdict and prevented judgment being given on the whole. I apprehend, therefore, those cases could not be relied upon. This is what occurs to me to submit upon the first branch of the argument. Now with respect to the second, which appears to me cer- tainly to be the most important branch of my friend’s argument, I apprehend the Attorney-General has to a certain extent misap- prehended the proposition put by my learned friend, Mr. White- side. As I understand the proposition, it is based on this, that the treason of levying war created by the statute of Edward III., 908 SPECIAL COMMISSION, CO. TIPPERARY. so far as it is a treason distinct from compassing the death of the Sovereign, is, I apprehend, comprehended and comprised in the statute of the 36th George III. My learned friend does not in the least question that the statute of the 36th George III. extends it further. All that is necessary for our proposition is, that the treason of levying war, considered as a treason distinct from the compassing the Sovereign’s death, as declared such by the statute of Edward III., is comprised and contained in the statute of the 36th George III. That is our proposition. It is not our proposition that the statute of the 36th George III. does not make treason, in respect to levying war, that war which was treason before ; but that, whether it does so or not, it compre- hends and includes in it the treason of levying war which was comprised in the statute of Edward, considered distinct from the treason of compassing the King’s death. Is it possible to look at that statute and see that it does not say that compassing to levy war against the Sovereign, if there was an actual levying of war, constituted a treason under the statute of Edward III. ? Can that proposition be disputed by the counsel for the Crown ? I a 2 :)prehend it cannot be. Now see what are the treasons which the statute of 36th George III. deals with. “If any person shall, within the realm, or without, compass, imagine, invent, devise, or intend death or destruction, or any bodily harm tending to death or destruction, maim or wounding, imprisonment or restraint, of the person of the same our Sovereign Lord the King, his heirs and suc- cessors, or to deprive or depose him or them from the style, honour, or kingly name of the Imperial Grown of this realm, or of any other of his Majesty’s dominions or countries ; or to levy war against his Majesty, his heirs and successors, within this realm, in order by force and' con- straint to compel him or them to change his or their measures or counsels, or in order to put any force and constraint upon, or to intimidate or over- awe, both houses or either house of Parliament ; or to move or stir any foreigner or stranger with force to invade this realm, or any other of his Majesty’s dominions or countries, under the obeisance of his Majesty, his heirs and successors, and such compassings, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by any overt act or deed ” That is declaring one treason. But does my learned friend mean to contend, or can it be for one moment contended, that the inventing and intending to levy war against the Queen, and expressing that by a particular overt act — an actual levying of war — is not included in that section ? If it be included in that section can it be questioned that it was a treasonable levying of war under the statute of Edward III. ? In order to constitute the treason of levying war, under the statute of Edward III., three things were necessary : there vras necessary, unquestion- ably, an actual levying of war, which I admit is not necessary THE QUEEN t;. WILLIAM SMITH O’BRIEN. 909 under any treason created by this statute of the 36th George III. ; there was necessary an intent against the Queen ; and it was necessary that if should be within the realm. But the intent against the Queen with which that war was levied, and the com- passing the levying of war against the Queen, was plainly the essence of the crime. Is not that included in the statute of George III., which says that if a party shall compass, imagine, invent, devise, or intend to levy war against the Queen, and shall express that intent by any overt act or deed, he is guilty of treason? Is not that a treason under the statute of Edward ? Mr. Justice Moore . — Is there, in the 36th George IIL, any section at all analogous to the sixth section of the 1 1th of Vic- toria ? I understood the Attorney-General to say there was. Mr. Whiteside . — Your lordship will find the 36th George III. recited verbatim in the preamble. Mr. Justice Moore . — I do not think the whole of it is there. Mr. Fitzgerald . — The preamble is set out in the 11th of Victoria. Mr. Justice Moore . — I understood the Attorney-General to say, that in the 36th George III. there was a similar provision in effect. The Attorney-General . — I do not think I said that exactly, my lord. Mr. Justice Moore . — I want to know whether there is any thing at all in the 36th George III. having a direct reference to the statute of Edward ? Mr. Fitzgerald . — My lords, if I am right in saying this, I think I have touched a part of the case with which the Attorney- General has not dealt. The case with which the Attorney- General dealt was this, as if the object of the 36th George III. was simply enacting a new treason of levying war ; whereas, if I have been right in what I have submitted, it does in this case, as in the case of compassing the Queen’s death, not only point to a new treason created by that act, to be evidenced by a par- ticular class of overt acts which it states, but also the treason of levying war under the statute of Edward IIL, the essential part of which was, that though the actual war was necessary, it must be the intent against the Queen with which the war is levied. If that be so, can your lordships have any doubt that unless the sixth section of the act, which professes to keep whole the statute of Edward IIL, has an application against our argument, there really is no question to be raised at all upon this statute, because in effect the provisions of the statute of George IIL, except so far as it relates to the case of compassing the Sovereign’s death, are repealed by this statute. Now, my lords, I apprehend that there is no rule of construction more settled than that you are not, unless constrained so to do, to construe the proviso of the statute so as to overrule the preamble. Can your lordships 910 SPECIAL COMMISSION, CO. TIPPERARY. give that section the construction contended for by the Attorney- General without doing so ? If the provisions of the statute of George III., repealed by this act, include the treason of levying war, which w^as a treason under the statute of George III., and make it a felony, is not that lessening, or in some w^ay affecting, the statute of Edward III. ? Well, then, you must give the construc- tion the full force which my learned friend, Mr. Whiteside, con- tends for. The effect of the statute of Edward III. was to make certain offences treason. It is impossible to say that you do not lessen, or in some manner affect the provisions of that statute by making some of those offences felony. It is perfectly true, that the seventh section of the 1 1th of the Queen does provide for a case of treason being proved under an indictment for felony. But, my lords, there is a great difference between the crime being a substantive treason, and the acts that amount to that crime being primary treason. Your lordships will remember, that with respect to the levying war in the statute of Edward, there were two classes of levying war, which were distinct treasons under that statute. A proof of one of those classes w’ould have been a party compassing the Queen’s death, which would not be a proof of the other. Your lordships know that if a treason was constructively maintained, as it was in Damaree’s case, the proof of that would not have amounted to the proof of levying war, as I apprehend, and would not be relied upon as an overt act of compassing the death of the Sovereign. But if, as we think, this act does intend to make felony both classes of levying war, then it might readily happen, that the levying of war, which would amount to proof of such, would have proved the treason of compassing the Queen’s death. That is the case which the seventh section of the act is intended to meet. Your lordships will see if, under an indictment, w^e proved such acts as amounted to treason — that is, if we proved such an act of levying war as would be an overt act of the particular treason of compassing the Queen’s death — that would not set aside the indictment. So that your lordships see by that construction, and I apprehend it is the rational construction of the act, we give full operation to every clause, and every section in it. I apprehend, under those circumstances, it is to be inferred, that the intention of the Legislature was to do away with all treason, except the direct attempt against the person of the Sovereign, and that that is the operation, if it be at all consistent, which your lordships will give it. My lords, I have already trespassed too long on the time of the Court ; but with respect to the last point, your lordships will have little doubt in reserving it at all events, as a question to be considered hereafter; that is, that now, in point of fact, the treason proved under this indictment is simply a constructive treason, and not that species of treason which would have THE QUEEN r. WILLIAM SMITH O’BRIEN. 911 amounted to an overt act of compassing the Queen’s death. If, therefore, we are right in our argument, that the substantive treason of levying war is wholly done away with, then this par- ticular count cannot he held to he a substantive treason consist- ently with this act. I do not know whether your lordships’ attention has been drawn to the fact, that they do not follow the words of the statute of Edward in this indictment, the words in the indictment are ‘‘within this realm.” The Solicitor- General. My lords, I have very little to add to what has fallen from the Attorney-General. I think there is no foundation whatever for the first objection, that the statute of Edward III. does not extend to Ireland. I think that has been fully answered by the reference to the act called Poyning’s Act, and that the extend- ing of that statute to Ireland would have been utterly fruitless and a nullity, if it was not intended to take place with respect to the punishment of treasons committed in this part of the King’s dominions; and that, therefore, when the act said that the law of England, that is the 25th Edward III., was to be the law of Ireland, it was plain and manifest that the act was to take effect with the intent of punishing treasons committed within this realm. The second objection taken by Mr. Whiteside — and which he was obliged to labour very much — is, that this indictment, which is a charge of levying war as a substantive treason, is not valid, but that it ought to have followed some other precedent, and charged for compassing to levy war. He found it absolutely necessary to maintain that position. If he could not succeed in that, he felt at once he could not sustain himself against the argument arising out of the statute of Victoria, because it is only in cases of compassing to levy war to which it can be con- tended the act of Victoria extends. Therefore, Mr. Whiteside felt it absolutely necessary for his purpose to argue, that the indictment must be for compassing to levy war. But no indict- ment could be preferred for an actual levying of war, as stated upon the face of the statute of Edward III. Now, the act of the 25th Edward III. makes that a substantive, direct treason, and the precedents are to that effect, which is a charge of levying war ; and then the overt acts of that levying of war are in this indictment detailed, and in which the prisoner had taken a part. Now with respect to Lord George Gordon’s case, to which my friend Mr. Whiteside referred, it is perfectly plain why that form of indictment was adopted in that case. It was to that form of indictment the acquittal of Lord George Gordon was owing. They could not have indicted him, or they did not think it advisable to indict him for an actual levying of war, because although he might have been found guilty of compass- ing to levy war, that is, compassing to levy war, and of laying the 912 SPECIAL COMMISSION, CO. TIPPERARY. foundation of all those riots, and the destruction of property by his conduct in bringing up large parties to present petitions to the House of Commons ; yet upon the evidence it was perfectly plain, so far from Lord George Gordon taking a part in those riots, that he had 'made every endeavour for the purpose of putting an end to them. Therefore it was the only form of indictment which could be brought forward ; but the evidence which was brought to sustain it led naturally to the acquittal of the prisoner. That being the case, not only according to law but according to pre- cedent, we contend that this indictment is perfectly well-founded. An indictment will lie for a substantive treason under the statute of Edward III. for an actual levying of war; and then you show on the face of the indictment the overt acts of that treason. Then it is contended that the statute of Victoria was merely enacted to relieve the subject from the penalty of treason for compassing to do certain things which by that act are made felonies ; that that act altogether repealed the statute of Edward, and abolished the penalty attached to the substantive treason for an actual lev3dng of war. It was considered a species of substan- tive treason, and it was thought advisable by the Legislature to make that distinction between the actual aiming at the life of the Sovereign, and the actual levying of war not affecting the person of the Sovereign, as distinguished from what would constitute in conspiracy a charge of that character. That distinction was manifestly drawn ; and, therefore, the substantive treason has always remained untransferred with the substantive treason of compassing the death of the Sovereign. It is the overt act of actually aiming at the personal security of the Sovereign, and also the substantive treason of actually levying war. For these reasons I submit to your lordships that the indictment is per- fectly good in form and substance, and that these objections ought to be overruled. [Their lordships consulted for a short time.] The Lord Chief Justice. The motion in arrest of judgment is founded upon two objections to the indictment. The indictment in substance is a charge under the statute of Edward III., of levying war against the Queen in her realm. These are the very words of the statute of Edward III., and an indictment following the words of the statute — the very words of the statute — is always sufficient. The first objection is, that the act of Edward III. is not the law of Ireland. To that it is replied, that by “ Poyning’s Act” it is extended to Ireland, and the words of Poyning’s Act are — “ That forasmuch as there have been many and diverse good and profit- able statutes late made within the realm of England by great labours, etudie, and policie, as well in the time of our Sovereign Lord the King, as THE QUEEN z;. WILLIAM SMITH O’BRIEN. 913 in the time of his full noble and royal progenitors, late kings of England, by the advise of his and their discreet counsail, whereby the said realm is ordered and brought to great wealth and prosperity, and by all lykelihood so would this land, if the said estatutes were used and executed in the same ; wherefore it be ordeyned and established by authority of this present Parliament, by the assent of the lords spirituall and temporall and commons assembled in the same, that all estatutes late made within the said realm of England, concerning or belonging to the common and publique weal of the same, from henceforth be deemed good and efFectuall in the law, and over that be acceptyd, used, and executed within this land of Ireland, in all points at all times requisite according to the tenor and effect of the same ; and over that by authority aforesaid that they and every of them be authorized, proved, and confirmed in this said land of Ireland. And if any estatute or estatutes have been made within this said land hereafter to the contrary, they and every of them by authority aforesaid be adnulled, revoked, voyd, and of none effect in the law.” It is admitted that that statute must refer to the act of Edward III. ; but that its construction is merely to subject persons who have committed treason in England to be tried in Ireland. It appears to me that the plain meaning of the statute is, that there should he the same law in both countries, and that that which is treason in England should be treason in Ireland. The next objection is founded upon the construction of the recent act of the 11 & 12 Vic., c. 12. That construction we find it impossible to accede to. The treason created by the act of Edward III. was that of levying war. Then comes an Eng- lish statute, the 36th of George III., by which the compassing to levy war, where that was for certain purposes, should be treason. The statute of Edward III. made the actual levying of war the crime ; this made the intention to levy war the crime. Such was the act of the 36th of George HI., which did not extend to Ireland, and the act which does extend to Ireland, is now held to convert that which was treason under the act of Edward III. to felony, under the recent act of Victoria. It does no such thing. I repeat, the act of Edward III. makes the treason consist in the actual levying of war, and this act makes the intention and compassing of war felony. The two things are perfectly distinct. The crime in one case is the act ; the crime in the other is the intent ; and no doubt can prevail upon the construction of the statute, when we find that the sixth section provides : — That nothing herein contained shall lessen the force of, or in any manner affect, any thing enacted by the statute passed in the twenty- fifth year of King Edward the Third ; a declaration which offences shall be adjudged treason.” So that the two statutes are conversant with two distinct crimes ; the act being the crime in one, and the intention being the crime in the other. Therefore, in our judgment, it is per- fectly plain that neither of these objections can be maintained. 3 N 914 SPECIAL COMMISSION, CO. TIPPERARY. With respect to the points which occurred in the course of the trial, we have over and over again most maturely considered them, and we are satisfied that the opinion which we have formed on those points is correct, and it is not our intention to reserve them for the opinion of the judges. SENTENCE. [The prisoner was then asked in the usual form what he had to say why the sentence of the law should not be passed upon him.] The Prisoner . — My lords, it is not my intention to enter into any vindication of my conduct, however much I might have desired to avail myself of this opportunity of doing so. I am perfectly satisfied with the consciousness that I have performed my duty to my country ; that I have done only that which, in my opinion, it was the duty of every Irishman to have done ; and I am prepared now to abide the consequences of having done my duty to my native land. Proceed with your sentence. The Lord Chief Justice — William Smith O’Brien, after a long, patient, and laborious trial, a jury of your country has found you guilty of high treason. Their verdict was accompanied by a recommendation to the mercy of the Crown. That recommenda- tion, as is our duty, we shall send forward to the Lord Lieu- tenant, to whom, as you must know, exclusively belongs the power to comply with it. It now remains for us to perform the last solemn act of duty which devolves upon us, to pronounce that sentence by which the law marks the enormity of your guilt and aims at the prevention of similar crimes by the example and the infliction of a terrible punishment. Oh ! that you would reflect upon that crime and dwell upon it with sincere repentance and remorse. Oh ! that you would regard it as it is regarded by every rational being — that you would feel and know that it is really and substantially as repugnant to the interests of humanity, the prospects and spirit of the divine religion which you profess, as it is to the positive law of revelation, and which is now attended by the forfeiture of your life. The few words that you have addressed to the Court forbid me — I say it with pain and distress — from proceeding any further with this subject ; it now only remains for the Court to pronounce the sentence of the law. That sentence is, that you, William Smith O’Brien, be taken from hence to the place from whence you came, and be thence drawn on a hurdle to the place of execution, and be there hung by the neck until you be dead, and that afterwards your head shall be severed from your body, and your body divided into four quarters, to be disposed of as her Majesty shall think fit. And may the God of mercy have mercy upon your soul ! [The prisoner w^as then removed.] COURT OF QUEEN’S BENCH, DUBLIN, November 21, 1848. WILLIAM SMITH O’BRIEN (in error) v. THE QUEEN. WRIT OF ERROR. A Writ of Error being brought in this case, the judgment was made up and returned into the Queen’s Bench as follows : — County of Tipperary | pj. remembered That at a Special Sessions iQ yjii / of Oyer and Terminer and General Gaol Delivery } bolden in and for the County of Tipperary at Clonmel in the said County of Tipperary on Thursday the twenty-first day of September in the twelfth year of the reign of our Sovereign Lady Queen Victoria by the grace of God of the United Kingdom of Great Britain and Ireland Queen Defender of the Faith and soforth and in the year of our Lord one thousand eight hundred and forty-eight before the Right Honourable Francis Blackburne Chief Justice of Her Majesty’s Court of Chief Place in Ireland the Right Honourable John Doherty Chief Justice of Her Majesty’s Court of Common Pleas in Ireland and the Right Honourable Richard Moore fourth Justice of Her Majesty’s Court of Chief Place in Ireland Justices and Commissioners of our said Lady the Queen of Oyer and Terminer within her said County of Tip- perary nominated and appointed to inquire into hear and determine all and all manner of Treasons Murders Manslaughters Burnings Felonies Robberies Crimes Contempts Offences Transgressions Evil-doings and matters and things whatsoever by whomsoever done committed or per- petrated within the said County of Tipperary as well against the peace and the Common Law of Ireland as against the form and efiect of any Statute or Statutes Acts Ordinances or Provisions theretofore made ordained or confirmed and also nominated and appointed from time to time as need should be to deliver the gaols of our said Lady the Queen of the said County of Tipperary of all prisoners and malefactors therein saving to our said Lady the Queen all americiaments thence arising and accruing being by virtue of a Commission under Letters Patent of our said Lady the Queen under the Great Seal of that part of the United Kingdom of Great Britain and Ireland called Ireland bearing date at Dublin the first day of September in the twelfth year of the reign of our said Lady the Queen to them the said Francis Blackburne John Doherty and Richard Moore and others in the said Letters named directed by the Oaths of Richard John Hely Hutchinson commonly called Lord Viscount Suirdale the Honourable Cornelius O’Callaghan the Honourable Francis Aldborough Prittie the Honourable Richard Hely Hutchinson Sir Edmund Walles Baronet William Ponsonby Barker Esquire Stephen Moore Esquire John Bagwell Esquire Ambrose Going Esquire Matthew Pennefather Esquire Wray Palliser Esquire John Bayley Esquire Thomas Barker Barton Esquire John Trant Esquire John Carden Esquire William Quin 3 N 2 916 COURT OF QUEEN’S BENCH, DUBLIN. Esquire James Butler Esquire Steplien O’MeagLer Esquire Henry Trench Esquire Caleb Going Esquire Thomas Lalor Esquire James Lanigan Esquire Joseph Cooke Esquire good and lawful men of the body of the said County then and there impanelled sworn and charged to inquire for our said Lady the Queen and for the body of the said County of Tip- perary It is presented in manner and form following that is to say [Here the Indictment is set out at full length, see page 7.] And thereupon then and there on the said Thursday the twenty-first day of the said month of September in the twelfth year of the reign aforesaid the delivery of the Gaol of our said Lady the Queen for the said County of Tipperary and all and singular the further and other pro- ceedings of the said Special Sessions of Oyer and Terminer and General Gaol Delivery are adjourned by the said Justices and Commissioners until the morrow to wit Friday the twenty-second day of September in the twelfth year of the reign aforesaid to beheld at the tenth hour before midday of the said day at Clonmel aforesaid before the Justices and Com- missioners aforesaid to do further as the Court there should consider and soforth and upon the said Friday the twenty-second day of the said month of September in the twelfth year of the reign aforesaid the said delivery of the Gaol for the said County of Tipperary and the further and other proceedings of the said Special Sessions of Oyer and Terminer and Gaol Delivery are held by the said adjournment for the said County at Clonmel aforesaid before the said Justices and Commissioners of our said Lady tlie Queen And thereupon th^n and there on the said Friday the twenty-second day of the said month of September in the twelfth year of the reign aforesaid the said delivery of the said Gaol of our said Lady the Queen for the said County of Tipperary and all and singular the further and other proceedings of the said Special Sessions of Oyer and Terminer and General Gaol Delivery are adjourned by the said Justices and Commis- sioners until the morrow to wit Saturday the twenty-third day of Sep- tember in the twelfth year of the reign aforesaid to be held at the tenth hour before midday of the said day at Clonmel aforesaid before the Justices and Commissioners aforesaid to do further as the Court there should consider and soforth and upon the said Saturday the twenty-third day of the said month of September in the twelfth year of the reign aforesaid the said delivery of the Gaol of our said Lady the Queen for the said county of Tipperary and all and singular the further and other proceedings of the said Special Sessions of Oyer and Terminer and General Gaol Delivery are held by the said adjournment for the said County at Clonmel aforesaid before the said J ustices and Commissioners of our said Lady the Queen And thereupon then and there on the said Saturday the twenty-third day of the said month of September in the twelfth year of the reign aforesaid the said delivery of the Gaol of our said Lady the Queen for the said County of Tipperary and all and singular the further and other proceedings of the said Special Sessions of Oyer and Terminer and General Gaol Delivery are adjourned by the said Justices and Commis- sioners until Thursday the twenty-eighth day of September in the twelfth year of the reign aforesaid to be held at the tenth hour before midday of the said last-mentioned day at Clonmel aforesaid before the Justices and WRIT OF ERROR. 917 Commissioners aforesaid, to do further as the Court there should consider and soforth and upon the said Thursday the twenty-eighth day of the said month of September in the twelfth year of the reign aforesaid the said delivery of the Gaol of our said Lady the Queen for the said County of Tipperary and all and singular the further and other proceedings of the said Special Sessions of Oyer and Terminer and General Gaol Delivery are held by the said adjournment for the said County at Clonmel afore- said before the said Justices and Commissioners of our said Lady the Queen And thereupon then and there on the said Thursday the twenty- eighth day of the said month of September in the twelfth year of the reign of our said Lady the Queen at the said delivery of the said Gaol aforesaid and at the said Sessions of Oyer and Terminer and Gaol Delivery held by the said adjournment for the said County at Clonmel before the said Justices and Commissioners of our Sovereign Lady the Queen comes the said William Smith O’Brien in his proper person in the custody of Richard Pennefather Esquire High Sheriff of the said County of Tipperary to whose custody the aforesaid William Smith O’Brien for the cause aforesaid was before that time committed and the said William Smith O’Brien being brought to the Bar of the Court here in his proper person and he the said William Smith O’Brien having heard the Indict- ment aforesaid read and forthwith concerning the Treasons in the Indictment aforesaid above specified and charged upon being asked how he the said William Smith O’Brien would acquit himself thereof He the said William Smith O’Brien says that he ought not to be com- pelled now to answer the same because he saith that by the indictment aforesaid he the said William Smith O’Brien is charged and indicted for amongst other offences compassing imagining and intending to put our Lady the Queen to death and that by the statutable enactments in that case made and provided and now in force in this realm every person indicted for compassing imagining or intending death or destruction to our Lady the Queen is entitled to have delivered to him ten days before his trial and in presence of two or more credible witnesses a copy of the indictment and at the same time a list of the Witnesses to be produced on the trial for proving the said indictment mentioning the names pro- fessions and places of abode of the said Witnesses And the said William Smith O’Brien says that the indictment aforesaid was found a true bill of the Jurors aforesaid on Thursday the twenty-first day of September instant and that on the said Thursday the twenty-first day of September instant a copy of the said indictment was delivered to him the said William Smith O’Brien in open Court but that no list of the Witnesses or of any Witnesses or Witness to be produced on the trial for proving the said indictment was then or at any time since delivered to him the said William Smith O’Brien And the said William Smith O’Brien says that ten days have not elapsed since the delivery to him the said William Smith O’Brien of the indictment aforesaid and this he the said William Smith O’Brien is ready to verify Wherefore he prays judg- ment and that he may not be compelled now to answer the said indict- ment and soforth And thereupon The Right Honourable James Henry Monahan Attor- ney-General for our said Lady the Queen who for our said Lady the Queen prosecutes in this behalf to the said plea of the said William Smith O’Brien by him above pleaded saith that the same and the matters 918 COURT OF QUEEN’S BENCH, DUBLIN. therein contained in manner and form as the same are above pleaded and set forth are not sufficient in law to prevent the said William Smith O’Brien from being now compelled to answer the said Indictment and that our said Lady the Queen is not bound by the Law of the land to answer the same And this he the said James Henry Monahan who pro- secutes as aforesaid is ready to verify Wherefore for want of a sufficient plea in this behalf he the said Janies Henry Monahan for our said Lady the Queen prays Judgment and that the said William Smith O’Brien may be compelled now to answer the said Indictment And the said William Smith O’Brien saith that his said plea by him above pleaded and the matters therein contained in manner and form as the same are above pleaded and set forth are sufficient in law to prevent the said William Smith O’Brien from being compelled now to answer the said Indictment and the said William Smith O’Brien is ready to verify and prove the same as the said Court here shall direct Wherefore inas- much as the said James Henry Monahan for our said Lady the Queen hath not answered the said plea nor hitherto in any manner denied the same the said William Smith O’Brien prays judgment and that he may not be compelled now to answer the said Indictment W HEREUPON all and singular the premises being seen and by the Court here fully understood it is ordered considered and adjudged by the Court here that the said plea above pleaded by the said William Smith O’Brien in manner and form aforesaid and the matters therein contained are not sufficient in law to prevent the said William Smith O’Brien from being compelled now to answer the said Indictment And that the said William Smith O’Brien do now answer the said Indictment And the said William Smith O’Brien being then and there again asked how he the said William Smith O’Brien would acquit himself thereof saith he is not guilty of the treasons in the Indictment aforesaid above specified and charged or any of them and thereof for good and ill he puts himself on the country and soforth And the said Janies Henry Monahan Attorney- General of our said Lady the Queen who for our said Lady the Queen in this behalf prosecutes doth the like and soforth Whereupon the said Sheriff of the County of Tipperary is by the Court here commanded that he cause immediately to come before the Justices and Commissioners aforesaid at the said Sessions of Oyer and Terminer aforesaid at Clonmel aforesaid a J ury of honest and lawful men of the body of the said County and soforth by whom the truth of the matter may be better known and who are of no affinity to the said William Smith O’Brien to recognise upon their oath whether the said William Smith O’Brien be guilty of the treasons in the said Indictment above charged and specified or any of them or not guilty and soforth Because as well the said William Smith O’Brien as the said James Henry Monahan Attorney-General of our said Lady the Queen who for our said Lady tlie Queen in this behalf prosecutes have put themselves thereof upon that Jury and the Jurors of that Jury by the said Sheriff of the said County for this purpose impanelled and here returned being called thereupon come And thereupon the said William Smith O’Brien challenges the array of the said panel and for cause of challenge saith that by the statutable enactments in such case made and provided and now in force in this realm it is amongst other things required that the Clerk of the Peace in every county in Ireland shall within one week after the commencement in every WKIT OF ERROR. 919 year of tlie October General or Quarter Sessions of tlie Peace to be liolden in each division of each county at large issue and deliver his precept to the High Constable and Collectors of Grand Jury Cess in each barony or other district of collection in such county and to the collectors of other cess or assessments where no Grand Jury Cess is levied requiring such collectors to prepare and make out within one month then next ensuing a true list of all men residing within their respective districts qualified with respect to property and liable to serve on Juries and that by said statutable enactments it is further required that the High Constable and Collector or Collectors to whom said precept is delivered shall make out a true list in alphabetical order of all men within their districts qualified and liable by law to serve on Juries and return the same to the Clerk of the Peace by whom such precept was issued and that the said Clerk of the Peace shall lay the same before the J ustices assembled at a Special Sessions to be holden at a place and time to be fixed by the Justices assembled at every October or General or Quarter Sessions of the Peace to be holden in each division of the county at large and that the Justices assembled at such Special Sessions shall correct number allow and sign the same and from the lists so corrected numbered allowed and signed the Jurors’ Book shall be made out and delivered by the Clerk of the Peace to the Sheriff for the time being and brought into use on the first day of January after it shall be so delivered And the said William Smith O’Brien says that the Clerk of the Peace for the County of Tipperary which said County of Tipperary is a County at large did not within one week after the commencement of the October General or Quarter Sessions which were holden in each division of the said County of Tipperary in the year of our Lord One Thousand Eight Hundred and Forty-seven or at any time thereafter in the year of our Lord One Thousand Eight Hun- dred and Forty-seven issue and deliver any such precept as is hereinbe- fore mentioned as required by the statutable enactments in such case made and provided to the High Constable and Collectors of Grand J ury Cess in each Barony or other district of collection in the said County of Tipperary or to the Collectors of any other cess or assessment in the said County or to any of said persons nor was any Jurors’ Book for the said County of Tipperary for the now current year prepared or made out pur- suant to the statutable enactments made and provided nor was nor is any such book for the now current year in existence to wit at Clonmel in the County of Tipperary and the said. William Smith O’Brien says that although for the reasons aforesaid there was not in existence at the time of the arranging and returning of the said panel a J urors’ Book for the current year to wit the year One Thousand Eight Hundred and Forty-eight and to the said Richard Pennefather the High Sheriff of the County of Tipperary was not returned pursuant to the statutable enactments in such case made and provided the said persons whose names are on the said panel or any of them from the Jurors’ Books of the said County for the year preceding the now current year nor from the respective Jurors’ Books of the said County or any of them for any year or years preceding the now current year nor hath the said Sheriff returned or impanelled the said Jurors on the said panel mentioned in like manner as was and hath been used and ascertained before the passing of a certain Act of Parliament made in a session of Parliament holden in the third and fourth years of the reign of our late Lord King William the Fourth entitled an Act for consolidating the Laws relative to Jurors and Juries in Ireland 920 COURT OF QUEEN’S BENCH, DUBLIN. and therefore the said William Smith O’Brien challenges the array of the said panel and the said William Smith O’Brien also challenges the array of the said panel because he says that the said panel has by the said Richard Pennefather High Sheriff as aforesaid been arrayed and returned with reference to the religion of the J urors returned on the same to the prejudice of him the said William Smith O’Brien and the said William Smith O’Brien says that the several panels of Jurors which for a long time to wit three years now last past have been from time to time returned by the respective Sheriffs of the County of Tipperary to serve upon Juries for the trial of Indictments at the Assizes and other Com- missions of Oyer and Terminer and Gaol Delivery in and for said County have consisted respectively of a large number of persons to v/it each of said panels of three hundred and eighty persons duly qualified and liable to serve as such Jurors aforesaid and the said William Smith O’Brien says that of said panels of J urors not less than a certain large proportion to wit one-third of the persons on each of said panels consisted of persons professing the Roman Catholic religion and that the residue thereof to wit two-thirds of the persons on each of said panels consisted of persons professing the Protestant religion and the said William Smith O’Brien saith that of the Jurors returned by the said Richard Pennefather Sheriff as aforesaid to serve at this present Commission not more than a very small proportion to wit one-eighteenth consists of persons professing the Roman Catholic religion and that the residue thereof to wit seventeen- eighteenths of said last-mentioned persons are persons professing the Protestant religion And said William Smith O’Brien saith that said last-mentioned panel has by the said Sheriff been arrayed and returned partially and unin differently in manner aforesaid with a view and inten- tion to injure and prejudice him the said William Smith O’Brien in his trial in this case and this he the said William Smith O’Brien is ready to verify and therefore he prays judgment and that the said panel may be quashed and soforth And thereupon the said James Henry Monahan Attorney-General for our said Lady the Queen who in this behalf prose- cuteth for our said Lady the Queen cometh and saith that for any thing by the said William Smith O’Brien in his said challenge alleged the said panel ought not to be quashed because he saitfi that there was a Jurors’ Book for the said county of Tipperary for the now current year prepared and made out pursuant to the statutable enactments in that behalf made and provided and that the said Jurors’ Book for the said county for the said current year is now in existence to wit at Clonmel aforesaid And the said James Henry Monahan further saith that the array of the said panel was well equally and impartially made and arrayed from the said Jurors’ Book for the current year by the said Sheriff and his officers accord- ing to the duty of his office wherefore he prays judgment and that the array of the said panel may be affirmed and the said challenge disallowed. And the said William Smith O’Brien by way of replication to the Plea filed by the Right Honourable James Henry Monahan Her Majesty’s Attorney-General who in this behalf prosecutes for our said Lady the Queen to the challenge of him the said William Smith O’Brien above made to the array of the said panel says that notwithstanding any thing in and by the said Plea alleged the said panel ought to be quashed because he says that there was not a Jurors’ Book for the said County for the now current year prepared and made pursuant to the statutable enactments in such case made and provided nor was the panel well WRIT OF ERROR. 921 equally and impartially made and arrayed from the said Jurors’ Book for the current year in manner and form as the said Attorney-General has in and by his said Plea alleged and this the said William Smith O’Brien prays may be inquired of the Court here according to law and sofortli And the said Janies Henry Monahan who prosecutes on behalf of our said Lady the Queen doth the like and thereupon the Honourable Cornelius O’Callaghan and the Honourable Francis Aldborough Prittie by whom the truth of the matter may be better known and inquired into and who are of no affinity to the said William Smith O’Brien are duly appointed by the said Justices and Commissioners and duly sworn as triers to try and inquire upon their oath whether there was a Jurors’ Book for the said County for the now current year prepared and made pursuant to the statutes in that case made and provided or not and further to try and inquire on their oath aforesaid whether the panel of Jurors returned by the Sheriff and his Officers at this Special Sessions of Oyer and Terminer was equally and impartially made and arrayed by the said Sheriff and his Officers according to the duties of the office of the said Sheriff or not And the said Cornelius O’Callaghan and the said Francis Aldborough Prittie having heard the testimony of witnesses given upon oath in open court do find upon their oath against the said chal- lenge and that there was a Jurors’ Book for the now current year pre- pared and made pursuant to the statutes in that case made and provided and further that the panel of Jurors returned by the said Sheriff at this Special Sessions of Oyer and Terminer was equally and impartially made and arrayed by the said Sheriff according to the duties of the office of the said Sheriff Whereupon all and singular the premises last aforesaid being seen and by the Court here fully understood it is further ordered considered and adjudged by the Court here that the said challenge of the said William Smith O’Brien so taken as aforesaid to the array of the said panel for the causes aforesaid be overruled and disallowed and that the said panel of the said Jurors is good and sufficient in law and that the same do stand arrayed as aforesaid and thereupon Richard Martin-Southcote-Mansergh Edward Crosbie-Moore Richard Gason John Going John Lloyd Samuel Perry John Russell Edward Pennefather Thomas Sadlier and John Tuthill ten of the said Jurors being called come and in due form of law are sworn on the said Jury and James Willington Lawrence Creagh Charles Clarke Samuel William- Barton Joshua Robert-Minnett Hugh Baker Henry Dwyer John Dawson- Hutchinson Thomas Bunbury Richard Phillips Henry Whitby-Briscoe Samuel Cooper George Gough William Smith Jacob Sankey Nicholas Biddulph Edward Wills-Gason James Millet William Ryan Thomas Godfrey-Phillips twenty of the Jurors aforesaid are thereupon also called and severally answer to their names and thereupon the said William Smith O’Brien challenges the said James Willington Lawrence Creagh Charles Clarke Samuel William-Barton Joshua Robert-Minnett Hugh Baker Henry Dwyer John Dawson-Hutchinson Thomas Bunbury Richard Phillips Henry Whitby-Briscoe Samuel Cooper George Gough William Smith Jacob Sankey Nicholas Biddulph Edward Wills-Gason James Millet William Ryan Thomas Godfrey-Philips peremptorily severally as they and each of them come to the book to be sworn and without show- ing any special cause of challenge to the said Jurors or to any or either of them and the challenges so made to the said last-mentioned twenty Jurors are by the Court here allowed 922 COURT OF QUEEN’S BENCH, DUBLIN. And thereupon and after tlie said twenty last-mentioned Jurors had been peremptorily challenged and after the said twenty challenges had been by the Court here allowed as last aforesaid Southcote Mansergh one other of the said Jurors also is called and answers to his name and there- upon the said William Smith O’Brien also challenges the said Southcote Mansergh peremptorily and without showing any special cause why the said Southcote Mansergh should not be sworn on the said Jury and prays that the said last-mentioned peremptory challenge be also allowed and soforth And thereupon the said Right Honourable James Henry Monahan Attorney-General for our Lady the Queen who for our Lady the Queen in this behalf prosecutes says that the said challenge should be rejected inasmuch as the said William Smith O’Brien has already challenged peremptorily and without showing any special cause twenty of the Jurors aforesaid whereupon it appearing to the Court here that the said William Smith O’Brien 1ms already challenged peremptorily and without showing any special cause twenty of the Jurors aforesaid it is ordered by the said Justices and Commissioners of our said Lady the Queen that the said challenge to the said Southcote Mansergh aforesaid be rejected and that the said Southcote Mansergh be allowed to be of the Jury to try between our Lady the Queen and the said William Smith O’Brien and thereupon the said Southcote Mansergh and Charles Going being called come and in due form of law are sworn on the said Jury And the Jurors of the said Jury so impanelled as aforesaid being duly elected returned and sworn to speak the truth of and concerning the i^remises in the Indictment aforesaid above specified and charged do say upon their oath aforesaid that he the said William Smith O’Brien is guilty of the treason in the said first count of the Indictment aforesaid above specified and charged in manner and form as the same is charged and alleged against him the said William Smith O’Brien in the said first count thereof {with a similar finding ofi guilty on the second^ third, fourth, and fifth counts) And the Jurors aforesaid do further say upon their oath aforesaid that the said William Smith O’Brien is not guilty of the treason in the said sixth count of the Indictment above specified and charged in manner and form as the same is charged and alleged against him the said William Smith O’Brien in the said sixth count thereof Upon which it is demanded of him the said William Smith O’Brien whether he now hath any thing to say for himself wherefore the said Justices and Commis- sioners ought not upon the premises and verdict aforesaid to proceed to judgment against him the said William Smith O’Brien for the said treasons in the said first second third fourth and fifth counts of the said Indictment above specified and alleged who nothing further says than he had before said Whereupon all and singular the premises being seen and by the said Justices and Commissioners here fully understood And it is considered and adjudged by the Court here that he the said William Smith O’Brien for the said treason in the said first count of the said Indictment above specified and charged be taken from the Bar of the Court where he now stands to the place from whence he came the Gaol and that he be thence drawn on a hurdle to the place of execu- tion and that he there be hanged by the neck until he be dead and that afterwards his head shall be severed from his body and his body divided into four quarters to be disposed of as Her Majesty shall fliink fit {with a similar sentence on the second, third, fourth, and fifth counts) WRIT OF ERROR. 923 And it is further considered and adjudged by the Court here that he the said William Smith O’Brien for the said treason in the said sixth count of the said Indictment above specified and charged go thereof without day and soforth And now that is to say on Friday the seventeenth day of November in this same Term conies the said William Smith O’Brien into the Court here of our Lady the Queen before the Queen herself in his own proper person in the custody of Richard Pennefather Esq. High Sheriff* of the said County of Tipperary by virtue of a Writ of Habeas Corpus duly issued in that behalf and immediately says That in the Pvecord and proceedings aforesaid and also in the giving the Judgments aforesaid there is manifest error in this to wit that by the Record aforesaid it appears that Judgment was given upon the Record aforesaid for our said Lady the Queen Whereas by the laws of this realm Judgment ought to have been given thereupon for the said William Smith O’Brien and against our said Lady the Queen and therefore in that there is manifest error There is error also in this to wit that it does not appear by the Record aforesaid that the Justices aforesaid by whom said Indictment was taken and before whom the same was tried were duly authorized in that behalf to take or try the same and therefore in that there is manifest error There is error also in this to wit that by the Record aforesaid it appears that the Letters Patent in said Record mentioned appointing and nominating Justices and Commissioners of Oyer and Terminer and Gaol Delivery for the said County of Tipperary were directed to the Justices by whom the said Indictment was taken and others in said Letters Patent named but it does not appear in or by said Record that any power or jurisdiction was given to any number of the Justices and Commis- sioners to whom the said Letters Patent were directed less than the whole number of said Justices and Commissioners to take Indictments or to hear and determine the off’ences in said Indictment charged and yet by the Record aforesaid it appears that said Indictment was taken by and tried before three only of the Justices and Commissioners to whom the said Letters Patent were directed and therefore in that there is manifest error There is error also in this to wit that it does not appear by the Record aforesaid that the Justices aforesaid by whom the said Indict- ment was taken were duly or at all in manner by law required assigned to hear and determine offences within the said County of Tipperary or to deliver the Gaols of said County and therefore in that there is manifest error There is error also in this to wit that it does not appear by the Record aforesaid that the said Indictment was found by the Jurors afore- said a true bill by and upon the oaths and testimony of two lawful wit- nesses pursuant to the statutable enactments in such case made and pro- vided and therefore in that there is manifest error Trere is error also in this to wit that by the Record aforesaid it appears that J udgment was given for our said Lady the Queen against the said William Smith O’Brien upon each and every of the first five Counts of the said Indictment Whereas by the laws of this realm judg- ment should have been given for the said William Smith O’Brien upon each of said first five counts each of said first five counts being insufli- 924 COURT OF QUEEN’S BENCH, DUBLIN. cient in law to warrant judgment thereon for our said Lady the Queen against the said William Smith O’Brien and therefore in that there is manifest error There is error also in this to wit that Judgment was given for our said Lady the Queen upon the demurrer put in by Her Majesty’s Attorney- General to the plea pleaded by the said William Smith O’Brien on the twenty-eighth day of September aforesaid whereby he the said William Smith O’Brien prayed judgment whether he should be compelled then to answer the said Indictment Whereas by the laws of this realm judgment should have been given upon said demurrer for the said William Smith O’Brien and therefore in that there is manifest error There is error also in this that by the Record aforesaid it appears that a copy of the Indictment aforesaid was not delivered to him the said IVilliam Smith O’Brien ten days before his trial upon said Indictment pursuant to the statutable enactments in that behalf made and provided and therefore in that there is manifest error There is error also in this to wit that by the Record aforesaid it appears that no list of the witnesses or of any witnesses or witness to be produced on the trial for proving the said Indictment was delivered to him the said William Smith O’Brien ten days before his trial on the Indictment aforesaid pursuant to the statutable enactments in such case made and provided and therefore in that there is manifest error There is error also in this to wit that it does not appear by the Record aforesaid that any Precept or Writ for the return of the Jurors who passed upon him the said William Smith O’Brien was in that behalf issued to the Sheriff of the said County of Tipperary and therefore in that there is manifest error There is error also in this to wit that it appears by the Record afore- said that the Venire Facias Juratores awarded to the Sheriff of the said County of Tipperary by the Justices aforesaid was not a proper Venire Facias Juratores in that behalf and conformable to the statutable enact- ments in such case made and provided and therefore in that there is manifest error There is error also in this to wit that by the Record aforesaid it appears that the Challenge of him the said William Smith O’Brien to Southcote Mansergb one of the Jurors aforesaid who passed upon him the •said William Smith O’Brien on the Indictment aforesaid was disallowed by the said Justices and Commissioners Whereas by the laws of this realm said last-mentioned Challenge ought to have been allowed and therefore in that there is manifest error There is error also in this to wit that it does not appear by the Record aforesaid that the verdicts above given upon the said first five counts of the said Indictment respectively or any of them were or was found upon the oaths and testimony of two lawful witnesses and therefore in that there is manifest error There is error also in this to wit that it does not appear by the Record aforesaid that it was demanded of him the said William Smith O’Brien in manner in like cases used and accustomed and by law required what he had to say why execution should not be awarded against him and therefore in that there is manifest error There is also error in this to wit that the Judgment aforesaid in manner and form as the same is also given is insufficient in law and therefore in that there is error WRIT OF ERROR. 925 There is error also in this to wit that the process and proceedings aforesaid in manner and form as the same are above set forth are not sufficient in law to warrant the judgments aforesaid given against him the said William Smith O’Brien and therefore in that there is manifest error And the said William Smith O’Brien prays that for the errors aforesaid and divers other errors in the Record and proceedings afore- said the judgments aforesaid may be reversed annulled and altogether holden for nought and that he the said William Smith O’Brien may be restored to all things which he hath lost by the judgments aforesaid and soforth Robert Potter Attorney Francis A. Fitzgerald And the Right Honourable James Henry Monahan Attorney-General of our said Lady the Queen in the Court of our said Lady the Queen before the Queen herself who for our said Lady the Queen in this behalf prosecuteth being present here in Court and having heard the matters aforesaid above assigned for error in manner aforesaid for our said Lady the Queen saitli that neither in the Record and proceedings aforesaid nor in the giving of Judgment aforesaid is there any error therefore the said Attorney-General of our said Lady the Queen for our said Lady the Queen prayeth that the Court of our said Lady the Queen now here may proceed to examine as well the Record and proceedings aforesaid and the Judg- ment thereon given as aforesaid as the matters above assigned and alleged for error and that the Judgment aforesaid may in all things be affirmed William Kemmis Crown Solicitor James H. Monahan The points for argument on the Writ of Error were as follows William Smith O’Brien {Plaintiff in Error) V . THE Queen. ] On the argument of the Writ of Error ! in this case it will be contended that the { judgment should be reversed for the following j reasons: — First. — That the caption is insufficient, as it does not show that the justices before whom the Special Sessions of Oyer and Terminer and General Gaol Delivery for the county of Tipperary was held, had due authority in that behalf to hold said sessions, and to take and try the indictment on which the plaintiff in error was convicted. Second. — That the five counts on which the plaintiff in error was con- victed are insufficient in law to support the judgment thereon given, in- asmuch as the offences therein stated are not treason in Ireland. Third. — That if they be treason, yet the said several five counts are insufficient in law to support ^aid judgment for not charging the offence in the words of the statutes for not expressly averring that the war therein respectively mentioned was levied in Ireland, and for concluding against the form of the statute, in place of form of the statutes, &c. Fourth. — That the judgment on the demurrer to the declinatory plea, pleaded by the petitioner in error should have been given for him, and not for the Crown. Fifth. — That there was a mis-trial inasmuch as it appears from the record that the petitioner in error had not delivered to him a copy of the indictment, and a list of the witnesses ten days before his trial pur- suant to the statutable enactments in such case made and provided. Sixth. — That the process under which the jury was returned who 926 COURT OF QUEEN’S BENCH, DUBLIN. tri.ed tlie case was insufficient and informal, as the writ of Venire faciaa Juratores, under which the jury was returned, appears to have been issued by virtue of a base reward, and not, as it ought to have been, by virtue of a particular precept ; and moreover said writ appears not to have been in the form directed by 3 & 4 Wm. IV., c. 91, sec. 10. Seventh. — That the challenge to the juror, South cote Mansergh, should have been allowed. Eighth. — That the allocutus before judgment entered on the record is informal and insufficient in law, inasmuch as it does not appear thereby that the plaintiff in error was asked why the Court should not proceed to judgment and execution against him upon the verdict therein mentioned. Francis A. Fitzgerald. Robert Potter, Attorney. January 16, 1849. in airvor. O’Brien v. the Queen. M‘Manus v. the Queen. O’Donohoe v. the Queen. Meagher v. The Queen. JUDGMENT. The Lord Chief Justice. In these several cases Writs of Error have been brought to reverse the judgments and convictions for High Treason pronounced at a special sessions under a Commission of Oyer and Terminer and Gaol Delivery for the county of Tipperary. The errors assigned, and which have been argued, are the same in all, and I shall consider them in the order in which they have been argued at the bar. The first is to the caption of the indictment, that it does not show with sufficient certainty that the commissioners of oyer and terminer and gaol delivery, before whom the convictions were had, had authority to hold the special sessions. The caption states that at a special sessions of oyer and terminer and gaol delivery before the two Chief Justices and Mr. Justice Moore, nominated and appointed to hear and determine, and from time to time, as need should he, to deliver the gaols by virtue of a commission under the great seal of Ireland, directed to them and others, it was found and presented. It is contended that this represents the commission as conferring a joint authority on the three judges named, and others. If this were so, the objection would be well founded ; hut I think this is not the import of the caption. It contains two averments, each independent of, and distinct from, the other : one, that the three judges were nominated and appointed to hear and determine ; the other, that the commission whereby they were so appointed was directed to JUDGMENT ON WRITS OF ERROR. 927 them and to others. Each of these refers to a different matter : one, the direction and address to all the commissioners; the other, to the operative part of the instrument : so distinct are these from each other, that the address contains not the least intimation of the contents of the patent, or of the authority it confers. Both of these being matter of record cannot be averred against, and must be taken to be true; nor is there any reason why they should not be both, in fact, true. A commission may be directed to many, and authorize them to fulfil its duties severally as well as jointly. The arguments for the plaintiffs in error assume that, because the commission was directed to others besides the three who acted, the statement, that those three were nominated and appointed, is necessarily falsified. But there is no contradiction between them ; and it would be against all right and reason that one should be used to disprove the other, both standing on the same authority, and being, therefore, entitled to the same credit. Nor are the consequences of the assumption we are required to make to be lightly regarded ; they are no less than the inculpa- tion of the officer in making a false entry, and of the judges in the illegal usurpation and exercise of the authority of this com- mission. There is no authority to warrant such an assumption ; and it appears to conflict with the rule of law, in favour of judicial and official acts, omnia ‘presmn'pta rite solemnita acta — a rule which might very reasonably be applied in the present case if it were necessary (which it is not) to maintain the proceedings of the high court, which is contended to have inquired and decided without jurisdiction. English precedents have been referred to, to show that the caption in the present case deviates from them in form. Now, we must remember, that the caption is the minute or record of the Clerk of the Crown of the proceedings in court, and of the com- mission which is delivered to him by the particular judges, to whom it is issued by the Crown to be executed, and is then read by him in open court. As the contents of such commissions may vary in a vast variety of particulars, so must the forms of the captions. The precedents of commissions in England show that they differ from the forms of commissions in Ireland. We have judicial knowledge that the commissions for the circuits here are joint and several, and may be executed by one, two, or more judges. I have had a search made for the forms of commissions in the Hanaper Office, and except in commissions for counties of cities and towns, in which, as in general in English commissions, there is a quorum clause, all commissions of oyer and terminer and gaol delivery, whether general or special, are joint and several, and authorize their execution by one, two, or more of the judges named in them. I have also had a search made for the captions of indictments in this court returned on writs of error and certiorari; and, althougli in a great many cases the ground 928 COURT OF QUEEN’S BENCH, DUBLIN. of objection that is assigned to the present case does not exist, yet there are sixteen precedents in the form of that before us in the certiorari returns, and within a very short time, eight exactly similar captions of indictments are returned on writs of error, and in none of those was the matter of this objection ever alleged to be error. It is, therefore, very obvious from the precedents of commissions in use in Ireland, that a commission in the ordinary form would be truly described and recorded, if it were stated to be a com- mission directed to three and others, whereby three were nomi- nated and appointed to execute it. It is not improbable that the present form was adopted to suit that of the commission ; and for these reasons I think these captions are not erroneous. As I am the legal depositary of this commission, I think it is not impossible that if I were silent as to its contents, it might be erroneously supposed that this caption is upheld by reasoning and arguments which the production of the commission would refute. I think it right to say, that any one, two, or more of the judges are expressly authorized to execute it ; and there is no foundation, in fact, for the objection, that the Court below had not jurisdiction. The second objection is, that it is not, and never was, high treason to levy war against the Sovereign of these realms in Ire- land. As I entirely dissent from the position and grounds on which that is rested, and think it is important, and mean to state my reasons for doing so, I shall not dwell on the answers suggested by the numerous precedents of indictments in Ire- land on which convictions have been had, and which contain counts for levying war ; nor shall I do more than express my concurrence in the position that this was treason at the common law, of which the 25th of Edward III. was only declaratory. I come, therefore, at once to consider the proposition, whether the 25th of Edward III. became tbe law of Ireland by the act of the 10th of Henry VII., c. 10, called Poyning’s Act. That that act made the 25th of Edward III. the law of Ireland, with respect to the treason of compassing the death of the Sovereign, is admitted ; but it is at the same time denied that the offence of levying war, also declared to be treason by the same act, became treason in Ireland, because, as is said, we must read Poyning’s Act as if it contained the words “ his realm,” and used them in the same sense as that in which they were used in the statute of Edward — that is, as meaning England, then the only realm of the King. If we yield to this argument, Poyning’s Act must be understood and read to enact that it shall be treason to levy war against the King in his realm — that is, in England — which would be utterly nugatory and absurd. What could be the use or meaning of enacting, by an Irish statute, that that was, or should be, treason in England, which was, and had been always so by the common law, or, at all events, from the reign of Edward III. ? JUDGMENT ON WRITS OF ERROR. 9l>9 The Irish Parliament had no right to declare what was, or to enact what should be, law in England. But if we must read Poyning’s Act as if it used the very words his realm,” and if they cannot, without leading to the most absurd consequences, be understood to mean England, I can see no reason why they should not be held to mean Ireland as the King’s realm or ter- ritory, over which he exercised sovereign authority by any style or title, and for which it was in the power of the Irish Parlia- ment to legislate. That this is the effect of Poyning’s Act, is established by the authority referred to in the course of the argument by my Brother Perrin, Coke v. Littleton, 141, B. That states that Poyning’s Act enacted, that all the statutes made in the realm of England before that time, should be in force and put in use in this realm of Ireland. And to the same effect is the passage in 1st Hale, 147, which refers to the statute of the 25th of Edward III. as one of the affirmative acts which were introduced into Ireland, and made it treason to levy war therein. That this is the true meaning and effect of the statute, will be so obvious as to preclude all doubt on simply referring to its language. After reciting that — There are divers good and profitable statutes made in the realm of England, whereby the said realm is ordered and brought to great pros- perity, and by all likelihood so will this land if the said statutes were used and executed in the same, it is enacted, That all statutes of late made within the said realm, concerning and belonging to the public weal, shall, from henceforth, be deemed good and effectual in the law; and over that, be accepted, used, and executed in this land of Ireland in all points and at all times, according to the tenor and effect of the same, and over that by authority aforesaid, that they, and every of them, be authorized, proved, and confirmed in this land.” The mere perusal of this language makes it impossible to doubt that it was intended that the same offence which would be treason in England should be treason if committed in Ireland. But if any doubt still remained on the subject, it would be removed by the 5th George III., cap. 21, the Irish statute, which enacts, that any person indicted in Ireland under the 25th Edward III., shall have a copy of the indictment, and counsel assigned to defend him. This recognises and acts on the lia- bility of a party to be indicted in Ireland for any of the offences which, committed here, are declared to be treason by that act, and of course includes the levying of war against the Queen. For these reasons, 1 think that the second cause of error is utterly insupportable. The next cause of error is, the disallowance of the pleas. These indictments contain six counts, the first five are for levy- ing w^ar against the Queen, and the sixth is for compassing the death of her Majesty. This sixth count states various overt acts, all of levying war or conspiring to levy war ; and the two first 930 COURT OF QUEEN’S BENCH, DUBLIN. overt acts are concluded with averments, that the purpose was to bring or put our Lady the Queen to death. The plea of Wilham Smith O’Brien to this count, alleges that the prisoner should not be compelled now to answer the indictment ; because he says, he is thereby indicted amongst other offences for com- passing, imagining, and intending to put our Lady the Queen to death ; and that by the statutable enactments in that case made and provided, and now in force in this realm, any person indicted for compassing death or destruction to our Lady the Queen, is entitled to have delivered to him, ten days before his trial, in the presence of two or more credible witnesses, a copy of the indictment, and at the same time a list of the witnesses to he produced on the trial, mentioning their names, professions, and places of abode. It then avers, that the indictment was found on the 21st of September, on which day a copy of it was delivered to him in open court ; hut that no list of witnesses was then or at any time delivered to him, and that ten days had not elapsed since the indictment was so delivered. It concludes with a verification, and prays judgment that he may not now he compelled to answer the indictment. In the case of Meagher v. the Queen the plea is the same, with the addition of an allega- tion, that he ought to have been, and was not, given a copy of the panel of the jurors who were to try him. The pleas in the other two cases aver, that by an act of the Parliament of Great Britain in the seventh year of Queen Anne, it was enacted, that where any one should be indicted for high treason, a list of the witnesses and a copy of the jury panel should he delivered to him, and a copy of the indictment, ten days before trial ; and it avers, that no list of the witnesses was furnished to them. The commencement and conclusion of all the pleas are the same. The Attorney-General demurred to all, and the demurrers were allowed. On the form of these pleas there has been a great deal of controversy and argument. Amongst other objections, the Crown has strongly insisted, that the matter of them was ground of motion, not of plea. If we should decide, that the pleas on that ground only, or on any matter of form, are invalid, the judges who presided below, and who refused the application by motion to postpone the trials, would undoubtedly adopt a course, by which the consequences of their mistake would be obviated. So that I feel myself bound to consider what are the real merits of the case made by the pleas ; that is, were the prisoners entitled to be served with copies of the indictments, and hsts of the witnesses and panel, ten days before they were called upon to plead ; or as two of the pleas put it, to the benefits given to persons charged with treason by the English act of the 7th of Queen Anne, cap. 7. The counsel for the plaintiffs in error contend, they are so en- titled by the 4th section of the act of the 57th George III., cap. 6. This act of the Imperial Legislature, they argue, is unrepealed and JUDGMENT ON WRITS OF ERROR. 931 in force in Ireland. On the part of the Crown it is insisted, that this section of that act did not and does not extend to Ireland. The counsel for the plaintiffs in error, in the second place con- tend, that even though this section of the act of the 57th George III. did not originally extend to Ireland, yet that by the act of the lltli Victoria, cap. 12, it has now become the law of Ireland. This is controverted by the counsel for the Crown who also insist, that were the effect of the 11th Victoria such as it is contended to be, the present indictments are not so framed, as that the plaintiffs in error can take any benefit from it. These are the three distinct propositions which I now proceed to consider. In considering these important questions it is necessary to refer to the state of the law both in England and in Ireland when these different statutes were passed. The act of the 25th Edward III., amongst other things declared it to be treason to compass the death of the Sovereign. The actual death of the Sovereign, in the literal sense of the word, is, and was alw^ajs, held to be what the statute meant ; but in administering this law it was always held to mean and include, not only an attempt meditated directly against the person, but designs to subvert the authority and power of the Monarch, the accomplishment of wliich would naturally put his life in peril. Both w ere equally designs against the person, and equally treason. The English act of the 7th and 8th William III., cap. 3, in cases of treason, made it necessary to prove the overt act or acts by two witnesses, entitled the party charged to a copy of the indictment five days before trial, and to have counsel assigned to him for his defence. The English statute of Queen Anne, which is referred to in two of the pleas, and is the foundation of the others, entitled ]3ersons so charged to a copy of the indictment, and a list of the names of witnesses and jurors, ten days before trial. This latter act was not followed by any act of the Irish Parliament. The only act passed in Ireland before the Union on this subject was the 5th George III., cap. 21 ; this was an act for the better regulating trials in cases of high treason under the 25th Edward III., and thereby every person so charged is entitled to a copy of the indictment five days before trial, and to have counsel assigned. The next statute is the English statute of the 36th George III., cap. 7, entitled ‘‘ An act for the safety and preservation of his Majesty’s person and government against treasonable and seditious practices and attempts.” The provisions of the 1st section of this act must hereafter be particularly referred to, and therefore I shall only observe of them here, that they were as to some treasons declaratory, and as to others enacting ; that the treasons it deals with appear to be divisible into two distinct classes — one relating to treasonable attempts as against the person of King George III. or of his heirs, the other to treasonable practices and attempts against his government ; that the act was temporary — to continue for the life of his then Majesty, and until the end of the session 3 o 2 932 COURT OF QUEEN’S BENCH, DUBLIN. of Parliament next after his demise ; and, lastly, that although the offences thereby made treason will have that character, whether committed within the realm or without, yet the persons charged with them were triable only by courts of competent jurisdiction in England. The 5th section provided, that every ' person who should be indicted for any offence, made or declared to be treason by that act, should be entitled to the benefits of the acts of King William and Queen Anne, as I before stated. This enactment in relation to persons charged with a treason, as to which the act was declaratory, would seem to have been unnecessary, for the acts of King William and Queen Anne were, and continued, in full force, and were made for the benefit of persons who might be charged with the acts of which this was declaratory. But it is more important to remark, that this act made the course of proceeding in England in all cases of treason precisely uniform, and put all persons charged with offences made treason by that act upon the same footing as persons indicted under the 25th Edward III. Soon after the passing of this act the English Parliament found it necessary to deprive of the benefits of the acts of King William and Queen Anne, persons who should compass the death of the then King, and commit an overt act of direct violence against his person ; and, accordingly, the 39th and 40th George III., cap. 93, enacted, that when the overt acts were assassination or direct attempts against the life or person of the Sovereign, the person charged should be tried .as in cases of murder. Such in England was the law under these temporary acts at the time when the 57th George III., cap. 6, was passed ; it is entitled, “An act to make perpetual certain parts of the act of the 36th George III., and for the safety and preservation of his Royal Highness the Prince Regent against treasonable and seditious practices and attempts.” The 1st section recites the 1st section of the 36th George III., and that it is necessary and expedient that such of the provisions of the said act as would expire at the end of the session of Parliament next after the demise of the Crown, should be further continued and made perpetual ; and it enacts, that all the recited provisions which relate to the heirs and successors of his Majesty, the Sovereign of these realms, should all be, and the same are thereby made perpetual. The 2nd section extends to the Prince Regent the same protection which the 36th George III. enacts, in relation to the then Sovereign, making it treason to compass his death ; and the 3rd extends the provisions of the 39th and 40th George 111. to the case of direct attempts against the Regent’s person. The 4th section enacts, that any person who shall at any time be accused, indicted, or prosecuted, for any offence made or declared to be high treason by this act, shall be entitled to the benefit of the acts of King William and Queen Anne, save in cases of high treason, in compassiiig the death of any heir or successor of his JUDGMENT ON WRITS OF ERROR. 933 Majesty, or the death of the Prince Regent, where the overt act alleged shall be assassination or any direct attempt against the life or person. This section is a repetition of the 5th section of the 36th George III., but it excludes from its operation the cases of treason specified in the 39th and 40th George III., without however providing, as that act did, that they should be tried as cases of murder. It is perfectly obvious, that this, the 4th section, had reference to persons who might be indicted when and after the operation of the 1st section should com- mence, that is, at the end of the session of Parliament next after the demise of King George III. The question therefore is, could an indictment after that time be maintained in Ireland for any of the offences made treason by the 36th George III. ? In support of the affirmative it is contended that Ireland is included, because it is not excluded in express terms by the enactment of the first section. The rule of construction on which this argument rests, must obviously be understood with a great deal of qualification. However general the words of the act may be, the object and nature of these enactments may make it necessary to read and construe them in a restricted sense, and to hold that it could not have been intended, that they should operate according to their very letter. We must, therefore, see whether it was, or could have been, intended to include Ireland in the first section of this statute. Whatever be the value of the omission of the words, of express exclusion, it is certain that the statute does not contain any indication of an intention so to extend it, or to extend it in a manner to include any subject or confer any power which the 36th George III. would not have done, had it been perpetual ab initio. The title, the preamble, the recital of all the English acts have all one single, common, and I think exclusive object — namely, to continue and perpetuate the recited provisions of the English statute. That object is strictly and simply executed in terms, which show that there was no second or ulterior purpose. Indeed I cannot reconcile the plain meaning of the words ‘‘ continue and perpetuate” with any other idea or intention, than that the law as it was, should so continue after the time limited for its duration, from which time its dura- tion was to be enlarged, and it was to become perpetual. Not only is any other intention at variance with the proper and common sense of the words used, but their meaning and effect in relation to the very subject are established by authority to be exactly the same. Lord llardwicke says, in the case of Rex v, Morgan, 2nd Strange, p. 1066 — “ When an act is continued, every one is estopped from saying that it is not in force.” And in Dingley v. Moore, Crooke, Elizabeth, p. 1750, it was held, that when an act which created an offence was made perpetual, without any new addition or alteration, the offence may well be sup- 934 COURT OF QUEEN’S BENCH, DUBLIN. posed against the form of the first statute, for that is made to con- tinue. This is the very case before us, for not the least addition or alteration is made in the nature or character of the offences recited and continued. But suppose it possible (which I confess I do not) to doubt the meaning of this section, can we ascribe to it the object contended for, that of making all these offences treason, and cognizable by the legal tribunals of Ireland, and that of assimi- lating the proceedings here, to those which are established by the English statutes of King William and Queen Anne? We must keep in mind that the act of the 36th George III., was not to expire until the end of the session of Parliament next after the death of King George III. Until that time it was to continue to be the law. Until that time the 57th George III., extending it, could have no immediate, present, or practical effect in England. Was it then to have immediate effect in Ireland ? There is nothing in the act to warrant the position or assumption, that it was to have a different period for its com- mencement in each country. If, then, its effect is to commence in both countries at the same time ; that is, at the end of the session of Parliament next after the demise of King George III., that postponement is utterly inconsistent with the alleged inten- tion to assimilate the law and practice of the two countries ; they would remain in the meantime as dissimilar as they had always been. Indeed if any such an assimilation was intended, I cannot conceive any rational object of deferring in Ireland the operation of provisions made, and in present force in England, for the safety of the person of King George III., his heirs and government, for the period during which the postponement must necessarily take place. But not only would the assimilation be future and reversionary, but at the utmost it would be partial and highly inconvenient. It would assimilate the proceedings in Ireland only when the treason is one of those in the 36th George III., so that in all other cases, that for example of levying war, the persons charged would be only entitled to the benefit of the acts which regulate the proceedings in Ireland. So if the levying of war be laid as an overt act of compassing the death of the Sovereign, as it may, the course of proceedings will be different from that where the same fact is charged as a substantive treason. These, the necessary results of the construction contended for by the counsel for the plaintiffs in error, form the most decisive and striking contrast to the practice in England ; the assimilation to which is the object imputed to the Legisla- ture, for there the practice and proceedings are uniform in all prosecutions for treason, as the statutes of King William and Queen Anne comprise and extend to all the treasons in the act of FIdward III. I cannot, I confess, bring myself to think that a construction of the words of this act is rational or possible, which leads to such consequences as I have referred to. JUDGMENT ON WRITS OF ERROR. 935 Opposed to this construction, and corroboratory of the view I have taken of it, is the further important consideration, that the provisions of the act, the 36th George III., which it is contended extend to Ireland are penal in the highest degree, and therefore not to be extended by construction. Best, Chief Justice, in the case of Fletcher v. Sondes, 3rd Bingham, p. 580, says — “‘Penal Laws’ are to be construed strictly, that no case should be holden to be reached by them, but such as come within both the letter and the spirit of the law.” Were we to suppose the case of a person indicted in Ireland under this act, I cannot discover on what grounds it could be contended that he was within the spirit and letter of a law, which was not at its origin the law of Ireland, which there was no intention expressed of extending to Ireland, and which by being perpetuated as it was, fulfilled all that we can reasonably imagine the Legislature to have contemplated. Great stress has been laid by the counsel for the plaintiffs in error on the recital of the act of the 11th Victoria, cap. 12, that doubts are entertained, whether the provisions of the 36th George III., made perpetual by 57, extend to Ireland. These doubts, it is to be observed, do not relate to the 4th section of that act, or to the question, whether persons indicted in Ireland for compassing the Queen’s death, under the 25th Edward III., are entitled to the benefits of the English statutes of King WiUiam and Queen Anne. But it has been argued, that the expression of these doubts, as to the 1st section, and the omission of any such expression as to the 4th, show that there was no doubt that the latter section extended to Ireland. This is attributing to omission an effect perfectly arbitrary, and it may be met by as positive an assertion on the part of the Crown, that no doubt was expressed for a very opposite reason, — namely, because it was plain that the 4th section did not extend to Ireland. But we have what at once decides, not only which of these infe- rences or assertions is the correct one, but is almost decisive of the whole matter in controversy. The act of the 1st and 2nd George IV., cap. 24, is conversant of the very subject of the course of trials for high treason in Ireland. It begins by reciting two of the provisions of the English statute, the 7th WiUiam III., cap. 3, — one requiring two witnesses to the overt act or overt acts of treason ; and the other, that no person shall be indicted unless the indictment be found within three years after the treason committed. It then recites that these recited enact- ments do not extend to Ireland, that it is expedient, just, and reasonable that they should, and it enacts that they shall be so extended. This directly contradicts the assertion, that this statute of King V/illiam had already and theretofore been extended to Ireland ; and at the same time, refutes the same assertion as to the act of Queen Anne, as both rest on exactly 936 COURT OF QUEEN’S BENCH, DUBLIN. the same grounds; and if the act of the 57th George III. did not so extend the one, it could not possibly have extended the other. These various reasons have induced me to come to the conclu- sion, without any doubt, that the 1st and 4th sections of the act of the 57th George III. do not extend to Ireland, nor is the conclusion in any degree weakened by the circumstance, that some of the other sections of the act do or may relate to Ireland. The section before us is, in my opinion, by its terms, and the plainest tests by which we can arrive at the intention of the Legislature, limited to one definite purpose, which may be defeated, but cannot be advanced, by any presumptive intention derived from other sections of the act enacted for purposes equally distinct and equally independent. I now proceed to consider the second question, which is the argument in support of the plea founded on the provisions of the act of the 11th Victoria, cap. 12. The first section of this act repeals all the provisions of the act of the 36th George III., made perpetual by the act of the 57th George III. ; and all the provisions of the 57th in relation thereto, save those which it enumerates, and which are all before set forth in the recital of the 36th George III. The 2nd section of that act declares and enacts, that such of the said recited provisions made perpetual by the act of the 57th George III. as are not thereby repealed, shall extend to, and be in force in Ireland. What the recited provisions of the act of the 36th George III. not thereby re- pealed are, there is not the least difficulty in ascertaining. They are such as relate — I copy the very words — to “ Tlie compassing, devising, or intending death or destruction, or any bodily harm tending to death or destruction, maiming, wounding, im- prisonment, or restraint of the person of the heirs or successors of King George III., and the expressing, uttering, and declaring such compassings as therein.” These are the recited provisions, and the only recited provisions of the act of the 36th George III., which the act of the 57th makes perpetual, and of necessity they are the only provisions which by the 2nd section are made law in Ireland. The 4th section of the act of the 57th George III., is not, and could not, be amongst them ; so that it is impossible to say, that it became the law or of force in Ireland. But it has been argued, that although the 2nd section does not in terms include or refer to the 4th section of the 57th George III., yet, that that section is not repealed by the 1st section of the 1 1th Victoria, but is included in the excejRion, and is therefore still in force, and available to persons that may be indicted in England ; and from hence it is inferred, that it is also in force in Ireland. But no such inference can, in my opinion be made, for, giving to the exception the effect contended for, and, assuming that the 4th section of JUDGMENT ON MERITS OF ERROR. 937 the act of 5Tth George III. is included in the exception, the consequence is not that it is to be in force in Ireland, but the consequence is, that the law in that respect is to remain un- changed, and that the 4th section must continue to be, as it had been, the law of England. Any other construction would be repugnant to the language and intention of the Legislature ; while tliis, adhering to the words of the act, continues the course of the proceedings in both countries as it had been there- tofore regulated by the several statutes^ which have been so often referred to. This closes the observations I have to make on the second of those questions. But before I leave it, it is necessary to notice the argument according to the construction which has been argued by the counsel for the plaintiffs in error. They contend that if the 4th section of the 57th George III. be not held to extend to Ireland, a person indicted here under the 11th Victoria, cap. 12, for any of the treasons created by the 36th George III. — for example, the treason of compassing to maim or wound — could not in his defence have any benefit from the Irish statutes, and must be sentenced to undergo the barbarous punishment of treason at the common law. I cannot adopt this view of the case as affording grounds for questioning the conclusion which I think is the plain and just result of such a great number of considerations. But though I think, from the terms in which the 5th George III., cap. 21, is expressed, there might be some question, whether a person so indicted should have the benefit of its provisions, I think he would, at all events, be entitled to the benefit of the act of the 1st and 2nd George IV. ; and I further think, that whatever may have been the reason for the introduction into the act of the 57th George III. of that of the 54th, the plain meaning of the 54th George III. was, to substitute the sentence prescribed in all cases in which, according to the existing law, the sentence for high treason was, or would be, that which it was the object of the statute to abolish. I now come to the position contended for by the Crown, and I think successfully, that even if a person indicted in Ireland under the 11th Victoria, cap. 12, could be entitled to the benefit of the English statutes, the plaintiffs in error cannot be so, as they are not so indicted — the indictments not containing any overt act of personal violence, either actual or intended. I have already stated that 36th George III., cap. 7, appears to me to refer to two distinct classes of treasons — the first class having for its object the protection of the person of the Sovereign, the other the preservation of his authority and government. I think that these two classes are unequivocally recognised and distinguished by the act of the 11th Victoria, cap. 12. After a full recital of all the treasons made or declared by the 36th George III., the preamble states that its object is to repeal such COURT OF QUEEN’S BENCH, DUBLIN. 938 of these provisions, so recited, as do not relate to offences against the person of. the Sovereign. This is a plain declaration that some of them do, and that others do not, relate to such offences that some are in their nature personal, and others not so. The enactments that follow are in conformity with, and in exact exe- cution of, the preamble. The 1st section preserves and continues the first class, by excepting it from the effect of the general repeal ; and that every one of the offences so specified and excepted, is, in strictness and in the common acceptation of the words, an offence against the person, whether by violence actual or intended. It is most important to observe, that the words which describe the treason of compassing the death of the Sove- reign are not those used in the act of Edward III., but are, the compassing the death or destruction of the person ; for these latter words at the conclusion of the enactment must be made to apply to every antecedent member of it. The 3rd section of the act makes all the offences comprised in the second, or repealed class, felonies, and amongst them there is not one which can be properly termed an offence against the person. I therefore have come to the conclusion, that though now, as before the recent act, the charge of compassing the death of the Sovereign may be sustained under the 25th Edward III., by overt acts directed against her imperial authority, as well as against her person ; yet the 11th Victoria is confined to the latter species of treason ; and as this indictment is framed, it cannot be con- sidered as founded on its provisions so as to let in these pleas, if in any view of these statutes the matter of them could have been made available to the plaintiffs in error. I have already, how- ever, assigned my reasons for thinking that it could not. The result is, for these various grounds, and the reasons which I have stated, that 1 consider the demurrer to these pleas to have been properly allowed. The next error assigned is, the rejection of the peremptory challenge of a juror, twenty having been already challenged peremptorily. The counsel for the Crown insist that the right is limited to twenty by the 9th George IV., cap. 54, sec. 9. The words of that act are — That no person arraigned for treason, murder, or for other felony, shall be admitted so to challenge, or to challenge more than twenty per- emptorily.” On the other hand, the counsel for the plaintiffs in error contend, that the words “ or for other felony” show that the section is conversant with felonies only, and that, therefore, we must read and understand the word treason as intended to signify the felony of petit treason. If this were the intention of the Legislature the use of the word treason would have been superfluous, for accord- ing to this argument, petit treason as a felony would be included JUDGMENT ON WRITS OF ERROR. 939 under the words “ or for other felony.” But it besides appears to me, that the word treason is to be taken in its common, which is also its legal sense, as defined by Blackstone and other writers. Treason is the general appellation made use of by the law to denote, not only offences against the King and his government, 'but also that accumulation of guilt which arises whenever a superior reposes confidence in a subject or in an inferior. In Coke Littleton, 133, B, it is said, if any do compass the death of the Queen, and declare it by overt act, the very intent is treason. I have looked through a great number of statutes, in order to ascertain the sense in which the word treason is used and under- stood, and I have found, that the word without addition and standing by itself, has uniforijily been used to signify high trea- son. I have not discovered one in which it meant petit treason where that term has not been added to it. In many of the acts which I have examined, treason and high treason are used as convertible terms : for example, in the 10th Henry VIL, c^p. 13 ; the 13th Henry VIII., cap. 1 ; the 28th Henry VIIL, cap. 7 ; and the 33rd Henry VIIL, session 1, cap. 1. The act of 3rd and 4th PhRip and Mary, cap. 11, is entitled “An Act whereby certain offences are made treason and so is the title of 2nd Elizabeth, cap. 1 ; and 1 1th James I., relating to admiralty commissions, enacts, that all treasons and felonies shall be tried as therein. The 10th Charles L, session 2, cap. 18, enacts, that the justices before whom any party shall be brought for any treason, murder, or manslaughter, shall take examinations. And the 10th and 11th Charles L, cap. 9, on this very subject, is entitled “ An Act for limiting peremptory challenges in cases of treason and felony.” There are various other statutes in which the word treason is used to signify high treason. The act of William III., relating to the observance of the Sabbath provides, that warrants for treason may be executed on the Sunday; and the 33rd George HI., cap. 45, is an act for the trial of treasons committed out of the King’s dominions. The very title of one of the acts referred to, that of William III., is for the regulating of trials in cases of treason. There is a recent act, the 1st and 2nd George IV., cap. 33, which enacts, that when on the trial of any person charged with treason, murder, or any other offence, it shall appear he was insane when the crime was committed, that certain proceedings shall take place. The very act before us, the 11th Victoria, cap. 12, in the 7th section, uses the word treason as describing high treason, no less than three times ; and the 6th section quotes the statute of Edward HI., and uses the same words. But if a more certain test of the exposition of this word was required, it is supplied by other sections of this very act, in which its meaning is the subject of inquiry. In the 8th and 11th sec- tions the word treason is not only used in its largest sense, but as contradistinguished from felony. There can be no reason for 940 COURT OF QUEEN’S BENCH, DUBLIN. giving it in tlie 9tli and the intervening sections, a construction not only narrower than its natural import, and different from that in which it is used in such a vast number of statutes, but also at variance with the sense in which it is used in other parts of the very same statute. 1 have only further to remark, that the act of the 9th George lY,, cap. 54, did not introduce for the first time the restriction of the right of peremptory challenge. That restriction had existed from the time of Charles I., and was enacted by one of the very statutes to which I have already referred. So far, therefore, as regards that objection, I think there is no ground for it. The last error assigned is in the allocutus, that it was demanded of the prisoner whether he had any thing to say why the Court ought not on the premises and verdict to proceed to judgment. It is contended that it should have added, to judgment of death, or to judgment and execution ; and several precedents have been cited wdiere these forms have been used, but none have been cited in which the judgment in the present form has been held to be void. The prisoner must have an opportunity afforded him by the Court, either of moving in arrest of judgment or pleading a pardon, but when he is demanded to show cause why judgment should not be pronounced, he has that opportunity fully afforded to him. The demand made is the plainest intimation, that unless he can allege matter of law or fact as cause, such judgment as the Court has power and is bound to pronounce, will be pro- nounced. The judgment here is that which is prescribed by the 54th George III., which does not use the word execution, and uses the word sentence as synonymous with judgment. I cannot attribute, as the counsel for the plaintiffs in error contended w^e should, any technical meaning which makes the use of the word execution absolutely indispensable. It would neither add to the sense, nor explain the meaning of the word judgment ; in that word are comprehended all the details that are to constitute the punishment, and there is no imaginable end to be answ^ered by the enumeration of them. If, however, precedent and authority be required to sustain the present proceeding, I can refer to some. In 4th Blackstone, chap. 29, he says : — ‘‘ The verdict being found, the prisoner is asked by the Court why judgment should not be awarded against hirn.” In Comyns’s Digest, title, Indictment, N, the form stated to be proper is : — ‘‘ Si quid dicere habeat quare judicium non,” &c. In the case of Rex v. Royce, 4th Burrow, 2086, the question was, why judgment should not be pronounced uj)on him, and sentence awarded against him. Now, when sentence and judg- ment have the very same meaning, as the statute here shows they have, this is an authority against the position which it was cited to establish. Two of the other cases cited for the plaintiff's in error, viz., Rex v. Stack, in Comberbach, 144, and Betscomb’s JUDGMENT ON WRITS OF ERROR. 941 case, in 3rd Modern, 265, were cases in wliicli there was no allocutus at all. In the former case, the very error assigned was, that the prisoner was not asked why judgment should not be given against him. There is besides the authority of the highest court in this kingdom, that of the House of Lords, in the Duchess of Kingston’s case, for the very form which has been adopted here. For these several reasons I think this, as well as the other errors assigned, should be disallowed. Mr. Justice Crampton. At the risk of repeating much of the arguments and ob- servations of my Lord Chief Justice, and with much less effect than they have come from him, I shall now take leave to state my reasons for concurring in his lordship’s judgment in all its parts ; and I do so, not from any sense of intrinsic difficulty in any part of it, but from the great importance of the case, both to the prisoners and to the public. Five objections or causes of error have been relied upon by the prisoners’ counsel as showing that the conviction in the present case or cases is a had conviction. I shall state those several objections, and observe upon each, not in the order perhaps in which they have been argued, and in which my Lord Chief Justice has taken them, but in the order in which I am now about to mention them. First, it is alleged that the caption of the indictment is erroneous. Secondly, it is argued that the sentence is erroneous, or at least the allocutus which precedes the sentence. Thirdly, the disallowance by the Court of the prisoner’s claim to challenge more than twenty of the panel is said to be error. Fourthly, the first five counts of the indict- ment, on all of wffiich the prisoner was found guilty, are said to be had. On the sixth and last count he was acquitted. Fifthly, that the allowance of the Crown’s demurrer to the prisoner’s declinatory plea, as it has been termed, is also erroneous. Of these the fourth, or that which aUeges error in the indictment, is the only one that would lead to a direct acquittal of the party. The otlier four would terminate, if successful, each of them in a venire de novo. Kow, first, as to the caption. The question upon the suffi- ciency of the caption is certainly a question of jurisdiction, but, as it comes before us, it seems to resolve itself very much into a question of construction. The principles applicable to that question are not controverted. It is conceded on all sides that the caption of an indictment should show that the prisoner was tried by a legal tribunal having competent authority to try him. That is the principle upon which the argument of the prisoners’ counsel is founded, and that principle is conceded on the part of the Crown. In the present case it appears by the record before us, that the prisoner was tried before three of the judges of the 942 COURT OF QUEEN’S BENCH, DUBLIN. superior courts of law under a special commission held in Sep- tember last, at Clonmel, for the county of Tipperary. The objection is, that these three commissioners, sitting alone, do not appear to have had jurisdiction by virtue of the commission under which they sat, inasmuch as it appears by the caption that the commission was directed not to the three only, but to others, not named, along with them. It must be admitted that the jurisdic- tion of the Court was derived from the commission, and the com- mission only — and that if the commission appear to be, in fair construction, a joint commission merely, the trial was certainly coram non judice; and this objection ought to prevail, for under such a commission (a joint commission) all the commissioners must have sat together in order to constitute a legal tribunal. On the other hand, it is equally clear, that if the commission was a joint and several commission, giving authority to all the com- missioners, or to one or more of them, to sit, the objection is removed. The caption does not aver the commission to be a joint commission, nor does it aver it to be a joint and several commission. The commission is not set out in the caption, nor perhaps even its exact legal effect stated. It is a short minute, according to the course usually adopted in such cases. We are, therefore, left to determine the legal character of this commis- sion from the brief notice which the record gives us of it. The question is then, what is the fair import of the words of the caption itself, according to their grammatical meaning? Is it that the commission was merely a joint commission, or does it, appear to have been a joint and several commission? The cap- tion appears to me to allege these three facts, that the indict- ment was found before the three commissioners named in the caption at the time and place there stated ; that these three commissioners were nominated and appointed to hear and deter- mine all the treasons, felonies, &c., and to deliver the gaols in the county of Tipperary ; that such nomination and appointment was by virtue of a royal commission dated the 1 st of September, 1848, and directed to them and others. Now, I take it, that the fair import of these allegations is, that the trial, first, was held before the three commissioners only — that was part of the argu- ment of the prisoner’s counsel ; secondly, that the three special commissioners were the only commissioners who were nominated and appointed to deliver the gaols at Tipperary ; and thirdly, that that nomination and appointment was made, not by the terms of the commission itself, but by virtue of the commission. In the case of a joint commission merely, all the commissioners, as I before observed, must sit together to make a legal tribunal. In the case of a joint and several commission one or more com- missioners sitting constitute a legal tribunal. In the latter case, the commission erects the tribunal; but who are to sit? Not all, unless all are called on so to do. It remains for the Crown JUDGMENT ON WRITS OF ERROR. 943 to nominate one or more of the commissioners specified in the commission, to he the acting commissioners. This nomination I take to be substantially made in this country by the delivery of the commission to the selected judges. Now, if we suppose the present commission to have been a joint commission merely, the statement of the caption, that the three commissioners were nominated and appointed to deliver the gaols, would he false. They were not so nominated according to this supposition, hut those tliree with others were so nominated. Whereas, if we take the commission to have been a joint and several commission, which it may be compatibly with the statement, then all is con- sistent, the commission is, in fact, according to this caption, directed to the three named and others. That proposition is satisfied. So far all are equally and generally authorized to sit ; but three only of the tribunal are nominated by the Crown specially to act under the general commission. As I before stated, I take that nomination or selection to be by the delivery of the commission to the special commissioners. No other commissioner named in the commission presumes to sit, not having been called on so to do, or nominated by the Crown for it. There are then the two things here, — there is the authority given by the commission itself, and there is the selection from amongst the commissioners, which is an act of the Crown’s pre- rogative, and therefore the language of the caption is, that the nomination of the commissioners is hy virtue of the commission. I take the language to mean, not that these three special com- missioners were nominated to sit alone hy the terms of the com- mission, hut that by virtue of the commission and the inherent power of the Crown they are so nominated. Now the English commissions and the captions founded on them, form no precedent for us on the present occasion. They are directed to commissioners named in the commission, of whom certain are to form a quorum, the others are merely associates, sometimes indeed made so hy a separate commission. And the caption, therefore, describes the proceedings as being before the quorum or a sufficient number of them by name, or before them and others not named, who are the associates. With us, the half-yearly circuit commissions are uniformly directed to the twelve judges and certain of the law officers of the Crown without any quorum clause, (except in a few cases in which the mayor is associated in cities or in towns,) and they are, in fact, uniformly joint and several commissions in the very terms of them. I have no less than thirty of them in my own possession, directed to myself and other commissioners with whom I have been named. Now the caption in England describes the com- mission as directed to the quorum and others, and states the proceedings to he before that quorum and others. In Ireland the caption describes the commission as directed to all the judges 944 COURT OF QUEEN’S BENCH, DUBLIN. nominated to the particular duty and to others not named ; but states the proceedings as being before the judges nominated, or before them and others according to the fact. The cap- tion in both countries states, or should state, the facts accord- ing to the truth, that is, the short minute merely of them. The .word “ nominated ” is not found in the English captions at all. I observe the term used there is always ‘‘ assigned.” We use the words “nominate and appoint” to express the selection or nomination of the particular judges, and w^e say that nomination takes place by the delivery of the commis- sion. In England the course is different ; there is a previous nomination by fiat from the Crowni. Every assize commission is the result of a fiat of the Crown, nominating the particular individuals to whom the particular commission is to be directed ; and the commission is to be directed only to those named in that fiat ; and sometimes there is a new fiat to include an additional name. This will be found in Mr. Chitty’s book. Now, I observe that the writ of error which has been sued out in this case is confirmative of the view which has satisfied my mind that this caption is sufficient. I own I had some dif- ficulty at first — and indeed it is the only part of the case on which I ever entertained any difficulty — but the writ of error sued out by the prisoners’ attorney is confirmative of this view. For what is that writ of error? The writ is directed to the Right Honourable Francis Blackburne, Chief Justice of the Court of Queen’s Bench, and the other tw^o judges who sat at the commission, Chief Justice Doherty and Judge Moore. “ Three of our justices appointed to hear and determine all treasons, felonies, and trespasses committed within our county of Tipperary, and to deliver the gaols.” And what is the requisition ? “ We command you, that if judgment be given thereupon, you send to us, distinctly and plainly, under your seal, or the seal of one of you What is the meaning of “ under the seal of one of you?” A case was cited by Sir Colman O’Loghlen which shows the mean- ing of that. If all the commissioners must have sat to make a legal tribunal, the return must certainly have come from all who sat at that commission. Here the writ goes to the three who did sit, and following the character of the commission itself, it suggests that the return may be made either by three or by one. Now, I would say (secondly, though we cannot perhaps, in a legal point of view, look outside the record), looking to the commission itself, it certainly is satisfactory to know that the construction which the Court is noAV putting upon this caption is in exact accordance wdth the truth of the facts. The very com- mission has been produced to us — I mean to the judges of this JUDGMENT ON WRITS OF ERROR. 945 court — by my Lord Chief Justice, he having the commission in his custody ; and we find it to he a joint and several commission, directed to all the judges and law officers as usual, including, of course, the three judges who sat at Clonmel. And, as I before intimated, we know from our judicial experience that such is the usual and established form of commission for the assizes,^ and there is no difference between what is called the form of a special commission in this respect, and the ordinary commission issued at every assizes. We also know, judicially, that it is the usual and ordinary course for the Crown, under such special commis- sion, to select two or more of the judges in whom they may have especial confidence, and to nominate and appoint them to be the special commissioners. So that the course of judicial experience — the special commission, if we are now to look at it — all are in agreement with the deductions which I have been making from the terms of the caption itself ; and unless we make that deduction from the terms of the caption, we are obliged to make one part of the caption contradict the other. But I should say further for myself, 1 hold it would be the duty of this Court, if there were a formal error in this return — if the act of the officer had made this return an informal and incor- rect return, it would be the duty of this Court to make the amendment, if it became necessary so to do, and the Crown called for such an amendment. The caption we all know is no part of the indictment. It is but the ministerial act of the officer, the Clerk of the Crown, giving to the Court its proper title, and showing the time and place of the proceedings which took place before the judges. It is not doubted, and it has never been doubted, that a formal error in the caption of an indictment such as this, upon a ‘conviction for murder, or for any other crime except treason, would be amended by the Court. The authorities are express on the subject. Atkinson’s case in 4th East, and Kex. V. Marsh, in 6th Adolphus and Ellis, are quite decisive on this subject. But it has been suggested by one of the counsel who argued this case on behalf of one of the prisoners, that the ComT has no such power in cases of treason alone. No authority or precedent whatever has been cited for the distinction that ' was assigned ; but this argument was addressed to the Court, that as a prisoner on trial for high treason was entitled (along with the copy of the indictment) to a copy of the caption also, that the caption cannot after the copy has been delivered to the prisoner be altered or amended. But that is an argument which cannot be for a moment acceded to. By the terms of the statute giving this privilege, both to prisoners in England and Ireland, the words used are, “ a copy of the whole indict- ment;” and by an early construction in favorem vitm made by the judges upon this statute, knowing that the caption was as necessarv for the prisoner as the indictment itself to enable him 3 p 94G COURT OF QUEEN’S BENCH, DUBLIN. to plead, they made this liberal construction — that he should not only have a copy of the indictment, but also a copy of the caption, as the caption might be necessary to enable him to show a want of jurisdiction in the Court, or in the Grand Jury who found the hill. It is also however held, that the prisoner after pleading cannot object to the sufficiency of the copy. The plea admits the copy to be correct. Thus the giving of the copy is merely to assist the prisoner in framing his plea, and so say the authorities ; and that having been done, the objdct of giving the copy is complete ; and the subsequent amendment in matters of mere form, and the act of the officer, cannot in any degree affect the plea or defence. Therefore there can he no such distinction. Now, it is unnecessary for me to refer to the precedents for this caption after what my Lord Chief Justice has stated, hut they are numerous in this court, and I think 1 may add, that some of them have passed the ordeal of the Lords without being objected to. It therefore appears to me for these reasons, that the objection to the caption in this case ought not to prevail. The second objection in the order I have stated them, is to the form of the allocutus. That there is abundant precedent for the form is admitted ; and upon principle the objection ought not to prevail. For when the prisoner is asked, as he appears to have been upon this occasion, before his sentence is pronounced, whether he had any thing to say why the Court should not pro- ceed to judgment against him for the treasons of which he had been found guilty (that is the form in which the question is put), he is substantially asked, why the Court should not proceed to judgment of death against him, for judgment in treason necessarily by law imports judgment of death. The next question that I notice is, whether the prisoner had a right peremptorily to challenge thirty-five of the panel, or only, as decided by the Court below, twenty ; for the effect of the Crown’s demurrer being allowed by the Court was, to decide that the prisoner’s right or power of challenge was limited to the number of twenty. The statute of the 9th of George IV., cap. 54, sec. 9, appears to me express upon the point : — ‘‘If any person so arraigned for treason or murder, or for other felony, shall peremptorily challenge more than twenty ” The consequences stated by the Act of Parliament follow. Now, the argument of the prisoner’s counsel is, that the generic word “ treason” means in this section petty treason to the exclusion of high treason ; that the class described, means the secondary species belonging to the class, and means to exclude the principal. That is the argument of counsel, and it is founded very much upon a verbal criticism on the words of the section which I do not notice, as it has been already observed on by my Lord Chief Jus- JUDGMENT ON AVRITS OF ERROR. 047 tice. But I would ask, how can we restrain, as we are called on to do, the legal and comprehensive meaning of the word ‘‘ trea- son,” of which there are, or rather were, two species (for one of them has been taken away by a late statute), high treason and petty treason, especially when we find in all the statutes, both ancient and modern, on the subject of treason, the word ‘‘ trea- son” is used to signify either the two classes of that crime, or high treason only ? There is not a single statute (unless this is an exception) in which the word treason is ever employed to signify petty treason exclusively. But again, there are two other sections of this statute in which the word treason is used manifestly in the same enlarged sense, in the general and legal sense. The 8th section says — “ If any person being arraigned upon, or charged with, any indict- ment or information for treason, felony ” And so on. refuses to plead ” Is it to be contended that high treason is not comprised within that 8th section ? Again, in the 11th section — “ That where any person shall be indicted for treason or felony, the jury empanelled to try such person shall not be charged to inquire concerning his lands, tenements, or goods, nor whether he fled for such treason or felony ” And in the case of that late statute to which my Lord Chief Justice referred with respect to insane persons, can it be con- tended for a single moment that it was not meant by that statute to apply the word treason to high treason as well as to petty treason ? But independently of these observations we should recollect that the statute of the 9th of George IV., to which I have just adverted, is a consolidation statute. It recites a num- ber of statutes in its preamble, and it repeals those statutes either totally or partially. One of the statutes so recited, and so repealed for the purpose of being re-enacted, is this statute of the 10th of Charles 1. Now, what are the terms of that statute ? It enacts — That no person arraigned for any offence or offences of high treason, petty treason, murder, manslaughter, or any other felony ” In the very language (except that the words high treason are omitted) of the section that is now the subject of observation. he shall not be permitted to challenge peremptorily above the number of twenty.” That is, in high treason and petty treason. These two classes are consolidated into the generic word treason. From the time of 3 p 2 948 COURT OR QUEEN’S BENCH, DUBLIN. the 10th Charles I., chapter 9, down to the time of the enactment of the 9 th of George IV., the law of treason as regulated in Ireland was emphatically, that the prisoner in cases of high treason and petty treason could challenge peremptorily only twenty. In England it is otherwise, we know ; and indeed the great foun- dation throughout the argument of this case has been, that the object of all or many of these statutes has been, to assimilate the practice of Ireland to the practice of England, and the law of Ire- land to the law of England ; and yet we find manifestly a differ- ence between the law of Ireland and the law of England, on this subject and many other subjects. Assimilation may be a very desirable thing, but assimilation must be done by the Legislature, and not by interpreters of the law ; and when it comes to be con- sidered whether there shall be a complete assimilation, it will be a subject of serious consideration, whether many portions of the Irish code of laws, may not get the preference over portions of the English code of laws on the same subject. In England the right, the power of challenge, in the cases of high treason stands on the common law. There is a section in the Jury Act of England which w^as referred to, by which in all cases of felonies the prisoner is allowed to challenge only twenty peremptorily. We have not adopted in the Irish Jury Act any such section. The law in Ireland stood on one footing — and still so remains, according to my judgment, — and in England on another footing. Therefore I think there is no difficulty whatever with respect to this objection. The fourth objection in the order in which I am noticing them is, that the first five counts of the indictment are bad in law. These counts charge the prisoner with levying war against the Queen in her realm of Ireland ; and it has been gravely argued by five learned counsel in succession, earnestly and strenuously no doubt, that it is not treason to levy war against the Queen in Ireland. Now I must say, this is as startling a proposition as I ever heard put by counsel to a Court ; and I must own it came upon me with very great surprise, with as much surprise as the assertion would, which perhaps is only kindred to it, that there never had been a traitor, and that there never had been a rebellion, in Ireland. The argument is this, that the 25th of Edward III. applied only to war levied in England ; and the extension of that statute to Ireland by Poyning’s Act, can only therefore apply to war levied in England ; and it leaves the levying of war against the King in Ireland unprovided for. The old construction, which has been uniformly held and acted on in this country, was, that the effect of Poyning’s Act, in extending the 25th of Edward III. to Ireland, was to apply it to treasons committed in Ireland. The 25th of Edward III. was a beneficial statute for the subject. It removed the vagueness and uncertainty of the common law of treason, defining with accuracy and precision what, and what only, should constitute the crime of treason ; therefore it was JUDGMENT ON WRITS OF ERROR. 94J certainly a benefit to extend that law to Ireland. And now I would ask, can any thing be more absurd in statement, than the practical result to which the arguments of the prisoner’s counsel would bring the enactments of this statute ? They say it has been made an imperial act, embracing England only — a mere hrutum fidmen. It was not to apply to Irish treasons at all ; it was to apply to English treasons, and English treasons which could not be tried in Ireland. Any thing more monstrous or more absurd in the way of suggestion, as to the meaning or intention of the Legislature, I own I never heard. But I would say, secondly, in order to adopt this perfectly novel construction, we must do vio- lence to the language of Poyning’s Act itself. Poyning’s Act re- quires that the English statutes referred to in the preamble of it, one of which is the 25th of Edward III., shall be used, exe- cuted, and accepted in this realm of Ireland according to their tenor and effect. Now how could these English statutes be executed within the land of Ireland, if Irish treasons were not triable by them under the 25th of Edward IIP, or if no other practical conclusion was arrived at than the making the 25th of Edward III. an imperial act ? But, above all, how could the reason for introducing it into Ireland be satisfied? For what is that reason ? Because it says, that the object was to bring Ireland like England to wealth and prosperity. How such a practical result could be achieved by the construction of the learned counsel I cannot understand. Surely the object of the Legislature was, to suppress crimes and disorders in Ireland by the introduction of this wholesome statute, and thereby to bring wealth and prosperity to the country. There is a statute which I beheve is strongly illustrative of the true meaning and construc- tion of Poyning’s Act. I refer to the act of the 28th Henry VIIL, cap. 7, which is called an act of slander. This statute recites the whole of the English act of treason called the act of slander, and at the close it extends to Ireland that act of slander, almost pre- cisely in the terms in which Poyning’s Act would extend the 25th Edward III. also to Ireland ; and it recites, as is done in Poyning’s Act, the beneficial character of the statute. Considering this statute, mace in the realm of England, is most bene- ficial and expedient to have due execution within the King’s land and dominion of Ireland ” AYhy ? Especially in respect of the high lebellion here lately committed, and that the odible infamies against the King and Queen ’’ And so on. However, there is another view of the subject, which I think is quite decisive. The act of the 5th George HI., chap, 21, which 950 COURT OF QUEEN’S BENCH, DUBLIJ^. was passed in the year 1765, appears to me to put an end to all difficulty or question, if any could arise on this subject. The re- cital of that statute is, that the 25th Edward III. is the existing law of treason in Ireland — “ Whereas it is highly reasonable and agreeable to the nature of our excellent constitution, that persons prosecuted for high treason under the statute of the 25th of Edward III. should be allowed all proper means for defence of their innocence ” Here, then, is an express statement by the Legislature, that the act of the 25th Edward III. does apply to Ireland ; that it is the law of Ireland ; and on that supposition it makes an enactment with respect to regulating the practice of trials of indictment founded upon that statute. At the time when the 5th Geo. III. was passed, there were no other treasons in Ireland but those under the statute of 25th Edward III. ; and the language of this statute, and the reason in the preamble, seem to me to he so strong, that I would not consider it to be a construction doing violence to the intention of the Legislature ; but, on the con- trary, carrying that intention into execution, if this statute were to be considered as having the effect of meeting all cases that should thereafter become the subject of prosecution for treason in an Irish court, and making them aR subject to the regulation and enactment of that statute. However, that is another matter. I therefore think there is nothing in this objection ; and indeed one of the learned counsel for the prisoners admitted, although he argued strenuously in support of the objection, that it was an objection apparently against common sense; and I certainly, for my own part, am disposed to agree in that part of the learned counseTs argument. Now I come to the fifth and last objection which I have to notice ; and that arises on the decHnatory plea, as it has been called, and the demurrer to it. And two questions seem to me to arise on this plea, without entering into any discussion on the mere terms of it : first, whether the principle of the plea be well founded ; secondly, whether, if well founded in principle, such matters as are suggested in it be at all the proper subject of a plea. The principle of the plea is, that the prisoner was entitled to a copy of the indictment against him ten days before his trial, whereas in fact he had the copy only five days before his trial. Now, the solution of the question raised by this plea depends on the consideration, whether the trial of a prisoner for high treason in this country is to be regulated by the Irish statutes of the 5th George HI., and the 1st and 2nd George IV., or by the English statutes of William HI., and the Tth Anne, cap. 21. The Irish act of the 5th George HI., cap. 21, enacts that every person tried in Ireland for any treason under the statute of Edward JUDGMENT ON WRITS OF ERROR. 951 in. sliall have a copy of the v^hole indictment delivered to him five days at least before his trial. That is the Irish regu- lation. The act of the 1st and 2nd George IV. extends to Ireland certain of the provisions of the 7th William III., cap. 21, (by- the-bye, an useless and absurd proceeding, if the objection be well founded,) because that act must have applied, according to the argument of the prisoner’s counsel, previously to Ireland; therefore it would be absurd and unnecessary to make any portion of it the law of Ireland. Now, under these Irish acts the trials of the prisoners were conducted ; and the argument of their counsel is, that the trials should have been regulated by the Enghsh statutes, the latter of these statutes, the statute of Anne, entitling the prisoner tried under its regulation to a copy of the indictment, not five days, but ten days, before the trial. It is admitted, because it cannot be denied, that the Irish acts regulating the trial of treason in Ireland have never been repealed. Now, that is a strong statement, leading to a conclusion on this objection. They have never been repealed ; but it is suggested that there is a species of implied repeal in the acts of the 57th George III., and the 11th of the Queen, or one of them. The argument of the prisoner’s counsel is what I have just stated, that the English acts were, by the 57th George III., cap. 6, or the 11th Victoria, or one of them, extended to Ireland, and therefore these statutes should now regulate the trial of treason in Ireland, superseding the unrepealed Irish statutes to which I have before referred ; or at least it is urged that the trial of all treasons founded on the late act of the 11th Victoria, cap. 12, should be so regulated. Now, I tliink there are two false assumptions on which this argument rests. First, the 57th George III. did not extend to Ireland the English acts regulating trials ; but, secondly, if it had it would not avail the prisoners on this argument. The act of the 1st and 2nd George IV., cap. 21, furnishes a decisive contradiction to the notion that the 57th George III., cap. 6, embraces Ireland in its provisions. What is that act ? That act recites certain provisions of the 7th William III., and ifc then goes on to recite — ‘^And whereas the above-recited enactments and provisions do not extend to Ireland, and it is expedient, jnst, and reasonable, that they should be extended to Ireland ” The argument for the plaintiffs in error is founded on the assumption, that all these recitals in this statute are a mistake of the imperial Legislature, for that four years before the English acts had all, by the 57th of George III., been extended to Ireland. This is a strange construction undoubtedly, which we are called upon to adopt ; a construction directly in contradiction to the express statements of the Legislature in that 1st and 2nd of George IV. Now, see what the Legislature has deliberately done by this act of the 1st and 2nd of George IV. It makes 952 COURT OF QUEEN’S BENCH, DUBLIN. certain of the provisions of the 7th of William III., regulating trials for high treason, applicable to Ireland ; certain others it does not make applicable to Ireland. The important pro- visions that are not made applicable to Ireland by this statute, had been made applicable to Ireland before by the 5th of George III. Those are, therefore, passed over ; and the recital is, that certain provisions do not extend to Ireland. Now, what becomes of the statute of Anne ? If the statute of William did not apply to Ireland, it is impossible to contend that the statute of Anne applied to Ireland, because the same reason applies to both. But the Legislature deliberately omitted to make the statute of Anne applicable to Ireland, though it studiously, and, according to the argument of the counsel, un- necessarily and absurdly proceeds to make the act of William applicable to Ireland after the passing of the 5Tth George III. Then, there is the 2nd section in that act of the 1st and 2nd George IV., chapter 24, which I think tends very much to fortify the argument on this subject. By that 2nd section tjie Legislature extends to Ireland, without mentioning the act of 39th and 40th of George III., its provisions with respect to personal treasons against the Sovereign ; it makes the enactments of the 39th and 40th of George III. the law of Ireland, adopting the very words of the act, but studiously omitting the reference which that 39th and 40th of George III. contains to the statutes of William and Anne. Why ? because those were statutes in daily use in England, and because they did not apply to Ireland. Can any reason for this omission be suggested beyond that which I have stated, that the Legislature knew perfectly well, that the law regulating the trial of persons for high treason in Ireland was a different law from that regulating the trial of persons for high treason in England ; one being regulated by Irish statutes (more apphcable perhaps to the state of things in Ireland than the English law), and the other regulating the trials of English treasons. But I would say that an examination of the different sections of the 57th of George III. demonstrates that that act of Parliament did not, and could not, extend to Ireland, and never was contem- plated, as an act extending to Ireland. It must be admitted, to be sure, that Ireland is not expressly excluded from its operation. It is also true, that Ireland is not expressly included. We must, therefore, look to the terms, and the subject-matter of the enact- ments, to judge whether this statute of the 57th of George III., or any section of it, included Ireland. My opinion is, that not one single section of it is applicable to Ireland. The first section of it does no more than continue and perpetuate a portion of the act of 1796, which recites certain provisions made by that act of Parliament, establishing treasons of a particular character. That was the temporary act of the 36th of George HI. ; and then the 57th of George III. goes on to recite, that it is neccs- JUDGMENT ON WRITS OF ERROR. 953 saiy and expedient tliat such of the provisions of the said act, as would expire at the end of the next session after the demise of the Crown, should be further continued and made perpetual. Suppose it had been a continuation for ten years, or for twenty years, would it have been said that by that continua- tion the acts were made applicable to Ireland ? What is the perpetuation of an act, but the continuation of it indefinitely — a perpetual continuation of it ? It was to be extended in point of time, and in point of time only. It was not to be extended in point of locality. There is no such contemplation or view at all attributable to the Legislature in the terms of this first section of the statute. Well, if that be so, it gives us a key to all the rest. What is the 2nd section? The 2nd section is an extension in a different way. The Prince Regent was not included within the terms of the act of 1796, nor would he come within the terms of the perpetuation of it ; and, accord- ingly, the 2nd section extends those provisions to the Prince Regent during. his office. That is merely an extension of an English act of Parhament to an individual not comprised within the purview of the temporary act. Then comes the 3rd section — what does it do ? Why it extends the provisions of the 39th and 40th George III. in the same way exactly, so as to include the Prince Regent in their operation during his office as Prince Regent. And what is also remarkable here is, that the very sub- ject of this 3rd section is the subject of that 2nd section of the act of 1st and 2nd George IV., making the 39th and 40th George III. apphcable to Ireland in the manner I have before adverted to. Then comes the 4th section, on which I may say that the whole fabric of the argument upon this objection has been based. Now what is that ? To my understanding nothing can be plainer than that it does not go one atom beyond the pro- visions which have been made the subject of a former section. That 4th section provides, that where persons shall be indicted for any offence, made or declared to be high treason by this act, that is, by the 57th George IIL, they shall be entitled to the benefit of the act of William, and the act of Anne, except in particular cases. But who are they? Persons accused or indicted on the perpetuated provisions of the statute of 1796, or upon the extension of that and the other statute to the person of the Prince Regent ; that is the whole enactment — to them it is extended, and to no others. Now the subsequent sections. The 5th and 6th, the concluding sections of the act, are merely consequential to the sections to which I have before adverted. There is nothing whatever in the act, to lead one to the con- clusion, that Ireland was in the remotest degree in the contem- plation of the Legislature. On the contrary, the Legislature knew perfectly well, that the law regulating high treason in England, was different in several respects from that in Ireland. 954 COURT OF QUEEN’S RENCll, UURLIN. The 6th section appears to me to have been added pro major i canteld. However, it is argued in addition, though I think not so strongly pressed, that the act of the 11th Victoria, cap. 12, has extended the acts of William and Anne to Ireland. I own I can see nothing in that statute to lead my mind towards that conclusion. This act, by its 2nd section, has done nothing more than enacted that the recited provisions, made perpetual by the act of 57th George III., shall extend to, and be in force in, that part of the United Kingdom called Ireland; that is, it has extended not the act of the 5Tth George III. to Ireland, hut has extended to Ireland certain penal provisions of the act of 1796. That is the whole effect of that section of the act. But an argument is raised on the preamble. The word used is “provisions;” and an argument is raised on that word, which it is said extends the 2nd section. I own I cannot see that. I take the preamble to be explained by itself as well as by the 2nd section, so as to prevent the possibility of mistake. It says, “ doubts are entertained, whether the provisions so made per- petual ” — that is, the provisions of the act of 1796. Who enter- tained those doubts ? I am sure I do not know ; but nothing could be more unfounded than those doubts would seem to be. “ It is expedient ” They say. “ to repeal all such of the provisions made perpetual by the last-recite5 act as do not relate to offences against the person of the Sovereign, and to enact other provisions instead thereof, applicable to all parts of the United Kingdom.” What is the meaning of the word “ provisions” here ? It is contended by the argument that the word “ provisions” is to include all enactments of the statute of the 57th George III. And then, having extended the use of the word “ provisions” in that way, in the 1st section, they transfer it to the 2nd section, contrary to the words of the 1st section which says — that only those portions that were made perpetual shall extend and be in force. But when we look at the recitals in the 1st section, we find the word “ provisions” is by the course of the language itself grammatically understood, meant, and intended, to apply to the penal provisions of the act of 1796 establishing new treasons, and the penal provisions of the act of the 57th George III.; but beyond those, the word “ provisions,” though in its general sense it may apply to every thing done by the act of Parlia- ment — beyond that hmit in fair construction it appears impos- sible to me to press the meaning of the word “ provisions” even in that 1st section. But all that is controlled afterwards by the express terms of the 2nd section of the act. So that upon 055 JUDGMENT ON WRITS OF ERROR. that part of the subject I do not entertain, indeed I never did entertain, any doubt. But again I would say, if the 4th section of the 57th George III. did include Ireland, or if the 11th of Victoria did include Ireland, it would not avail the pri- soner in this argument, for the present indictment is founded entirely on the 25th Edward HI. No count of the indictment is founded on the 57th of George 111., or the 11th of Victoria. The very plea of the prisoner in tliis case, shows that to have been the understanding of his own counsel. It is admitted, that the first five counts of the indictment are founded on the 25th of Edward III. ; and it is in consequence of that admission that his plea applies itself particularly to the 6th count ; but 1 would say, it is clear also that the 6th count is founded on the statute of the 25th Edward III. It is a count for compassing the death of the Queen ; and the overt acts relied upon are, the levying of war, and the conspiring to levy war, against the Queen. It is not a count for compassing personal injury to the Queen. Now, in Thistlewood’s case, in the 33rd volume of the State Trials, one of the counts is a count almost in the terms of the present count — a count for compassing the death of the King through the medium of war to be levied ; and I observe that the Attorney-General and the counsel for the prisoner both agree in considering that count to be a count founded on the 25th Edward III. And what says Lord Chief Justice Abbott in his summing up on this subject ? “ Two of these charges, namely the compassing and imagining the death of his Majesty ” In almost the very terms of the count now before us. “ and the actually levying war against him, were declared to be treasons by a statute passed as long ago as the reign of Edward III.” Therefore, it appears to me plainly, that the 6th count in this indictment is a count founded on the statute of the 25th Edward III.; and, therefore, the prisoniers’ counsel have no right, even upon their own argument, to invoke the aid of the English acts, because their argument must be founded upon the supposition, that there is a count in the indictment which is founded upon those subsequent acts. But it has been argued, that unless the 57th George III., or the 11th Victoria, be held to embrace Ireland, that no provision is made for the regulation of treason trials founded on the 11th Victoria. There certainly is none made by the terms of the late statute. Let us suppose this to be true in point of fact, it does certainly show on the argument a casus omissus by the Legislature. But what would the construction of the plaintifis in error amount to? Why it would show an extraordinary incon- sistency in the modes of proceeding according to the enactment 956 COURT OF QUEEN’S BENCH, DUBLIN. of the Legislature with respect to treason trials in Ireland, for there would be one act of Parliament, or set of acts, regulating trials for treason on the 25th Edward III., namely, the Irish acts; and, according to the same argument, in all trials for treason upon indictments to be founded upon the latter acts, the proceedings would be regulated by the English acts of Parliament. Could any thing he more monstrous and absurd than that proposition ? Surely that consequence would lead to greater absurdity and difficulty than the mere circumstance of there being a case occurring in Ireland in which there was no provision made in the way of privilege, with respect to having a copy of the indictment. Now I have already intimated my own view, that the early Irish act in its reason though not in its terms, is sufficiently com- prehensive to apply to all cases of treason in Ireland, whether future or then existing. But it is not necessary that I should dwell on such a topic as that. We must interpret tlie acts of Parliament as we find them ; we are not at liberty to remodel them. But I would give a liberal construction to that act of the 5th George III., and make it applicable to all treasons, rather than leave a casus omissus on the subject ; that is my own impression. Another mischief which has been suggested as arising from the extension of the 57th George III. to Ireland, was, that the sentence on a prisoner convicted under the new statutes would be unprovided for, and that the common law barbarous sentence must be put in execution against the prisoners. But I own I am not struck by that argument at all, because I feel quite satis- fied that the terms of the 54th George III. are sufficiently ample and comprehensive to apply to all cases of pronouncing sentence in high treason. There remains only a word upon the form of the plea. I shall not dwell upon it. The facts have been brought before the Court ; they are upon the record. I cannot shut my eyes to the statement, and I think it much more expedient to decide upon the merits than upon the question, whether such a plea is admissible or not. But I own my own impression would be, s to refuse to receive such a plea. The matter of it appears to me to be matter of regulation and of discretion, and to be disposed of ujDon motion, and not by way of plea to the indictment. I am not as sentimental perhaps as some of the learned counsel who argued this case upon the subject of allowing the exercise of discretion to judges. The abuse of discretion is greatly to be deprecated ; but the use of discretion in many cases affecting life, liberty, and property, is necessary according to the law of the land. The courts of justice are obliged to exercise discretion in civil cases, but above all, in criminal cases especially, they are compelled to exercise a discretion very painfully sometimes, but necessarily. Why is it that a bill of exceptions is not allowed in JUDGMENT ON WRITS OF ERROR. 9o7 criminal cases ? Wliy is it tliat a writ of error is not permitted without the allowance of the Attorney-General, although a bill of exceptions and a writ of error are the right of the subject in civil cases ? Why, only because it is deemed better, in such cases, to trust to the discretion of the judge, than to interpose delays which might be dangerous to the administration of justice. There are two principles of law upon this subject which may sometimes conflict, or appear to do so. The one principle is, that there should be ever,y opportunity given for deliberation, and for correction, before a sentence is carried into execution ; that is one principle. The other principle is, that it is expedient for public purposes, especially in criminal cases, that execution should not be delayed, or the sentence, whatever it may be, unnecessarily deferred. It is for such reasons as these that the law of England does not allow a bill of exceptions in criminal cases, and does not allow a writ of error except sub modo as I before stated. I am, therefore, certainly not alarmed at this doctrine of discretion, temperately and properly used, as it ought to be according to adjudged cases, and according to law ; and I think such pleas as tend only to delay or to defeat justice should not be encouraged. My opinion upon the whole of this case is, that all the objec- tions should be overruled, and the judgment of the Court below affirmed. Mr. Justice Perrin. I shall not find it necessary to go through the several matters assigned as errors, but shall confine the few observa- tions which I think it necessary to make, to three of the matters assigned as errors. The first is, the objection to the caption. It appears to me that the caption does show, that the indictment was taken at a special sessions of oyer and terminer and gaol delivery at Clonmel in Tipperary, held in and for that county, before my Lord Chief Justice, the Lord Chief Justice of the Common Pleas, and Mr. Justice Moore, who were justices and commissioners of oyer and terminer within the said county, appointed and nomi- nated, to inquire, hear, and determine by a commission under the great seal, dated the 1st of September, (to them and others directed,) by the grand jury of that county, and therefore before a Court having jurisdiction. I think it is clearly ex- pressed, that they are appointed and nominated to inquire, hear, and determine ; that the commission is directed to them and others, does not detract from, impair, or deny the authority there expressly stated to do so. This is the case of every commission at the assizes, in every county at large in Ireland, directed to all the judges, but executed by one or more. There has been no authority cited, which shows that the caption 958 COUKT OF QUEEN’S BENCH, DUBLIN. in this form is bad. We are called upon to assume, that that caption and statement is not merely insufficient, but really that it is untrue ; and that my Lord Chief Justice of this court, and the Lord Chief Justice of the Common Pleas, and my brother Moore, sat there without an authority ; and we are called upon to reverse the judgment upon that ground, two of my brothers, my Lord Chief Justice and Mr. Justice Moore, sitting here, in this court to reverse their judgment on the ground that they had not jurisdiction ; when they acted by and under the terms of a commission in their custody and care, that this caption pursues exactly and precisely, my Lord Chief Justice has produced and shown to us here the commission which accords in terms with the caption, and which is in the ordinary form of all our commis- sions, to them jointly and severally. I think it unnecessary to say any thing more on that point. My Lord Chief Justice, if this was not in his own court, might have had the commission produced here by certiorari. I think the arguments that have been so strongly put on the point, show that the caption must be so understood ; but on a question of this importance, it is a great deal better to show that there is no ground of objection, than that the argument in answer to it is sufficient. The next objection in the case is, the extraordinary one, that the five counts are insufficient in law, inasmuch as '"the levying of war against the Queen is not treason in Ireland. It seems to me, if any thing can be deemed extraordinary now-a-days, very extraordinary to state such a proposition in her Majesty’s Court of Queen’s Bench in Ireland. The second proposition on the same point is, that Tipperary is not shown to be in Ireland, that is, within the realm of Ireland. I shall only read the Act of Par- liament which has been already referred to, the 5th of George IIP, c. 21, ‘‘ An Act for the better regulating the trials in cases of high treason, under the statute of the 25th Edward III.,” an act of the Irish Legislature. “ Whereas it is highly reasonable and agreeable to the nature of our excellent constitution, that persons prosecuted for high treason under the statute of the 25th of Edward III., should be allowed all proper means for defence of their innocence, in order thereto and for the better regulating of the trials of all such persons, be it enacted by the King’s most excellent Majesty, by and with the advice and consent of Parlia- ment, from and after ” Such a day. “ All and every person and persons, who shall be accused and indicted ” That is, in Ireland. “ for high treason under that statute, shall have a true copy of the indictment delivered to them.” They say that that act, 25th Edward III., was not in force in JUDGMENT ON WRITS OF ERROR. 9J9 Ireland. I cannot answer that argument, if any one can reconcile it with the provisions of the statute. But, further, there is the passage in Coke Littleton, already referred to by my Lord Chief Justice, and the judgment of Lord Clonmel in 25th State Trials, on the trial of William Jackson. My Lord Clonmel in his summing up to the juiy says : — “ Gentlemen of the jury, in this case of the King against William Jackson, clerk, the indictment against the prisoner is founded on the statute of treason, 25th Edward III., c. 2 — a statute that has been con- sidered as one of the greatest protections to the subject that ever passed; as stating and precisely ascertaining what shall be treason to affect the life of the subject, to prevent any unascertained crime of that nature from affecting him.” And the counsel in that case for Mr. Jackson were Mr. Curran, since Master of the Bolls, and Mr. George Ponsonby, since Lord High Chancellor of Ireland; and they, notwith- standing that act was not in force in Ireland, seem to have made no objection to the summing up of Lord Clonmel on the subject. The counsel for the prosecution. Lord Kilwarden, commenced his address by saying, — “ The Court will inform you, gentlemen of the jury, that this indict- ment is grounded on the statute of 25th Edward III., by which ” And soforth. And then in course of the argument, Mr. Ponsonby regrets that the law does not give two witnesses in Ireland as in England, but makes no suggestion that the 25th Edward HI. was not in force here. In Weldon’s case in 26th State Trials, p. 278, the same doctrine is laid down by Mr. Justice Chamberlain ; and in Heneage’s case, 1123; and in Sheares’s case by my Lord Carleton, in 27th State Trials ; and the counsel for the Sheares were Lord Plunket and Mr. Curran. Then in 28th State Trials Lord Downes, in his charge to the grand jury, in the year 1803, says, — It is probable, gentlemen, that indictments for high treason may be sent up to you against some of the prisoners in custody, grounded on the statute of 25th Edward III., upon which the law of treason in this country rests.” I am, therefore, of opinion that the error so assigned is un- founded, and that it is illegal and contrary to that statute to levy war against the Queen in Ireland. The next question to which I shall advert, the most important in the case, and one upon which I must confess I have had a good deal of difficulty, is the important question, whether or not the statute of Anne is in force in Ireland ? or, in other words, whether the 57th George HI. extended all the provisions of the 36th George HI. to Ireland, including the provisions of 960 COURT OF QUEEN’S BENCH, DUBLIN. tte statute of Anne; and if not, whether the 11th of Victoria does? In considering this question, it may be useful to bear in mind the state of the statute law of treason in the two then separate kingdoms of England and Ireland, at and after the 36th of George III., and up to 1800. The common law of the coun- tries is the same. In England there was the 25th Edward III. declaring and defining treason, I mean at the time of the pass- ing of the 36th George III. There was also the 7th of William III., regulating the trial, giving a copy of the indictment five days before trial ; giving the assistance of counsel ; requiring proof by two witnesses, and limiting prosecutions to three years. There w^as the 7th of Anne, giving the prisoner a hst of the witnesses to be produced for the prosecution, of the names and additions of the jurors, and a copy of the indictment, ten days before the trial. There was another distinction and difference which has been observed on ; that is, the right of peremptory challenge in England was thirty-five, while the right in Ireland was twenty only, by 10th and 11th Charles I. In Ireland the law stood thus : there was the 25th Edward III. in force by the opera- tion of the 10th Henry VII. ; and there was the 5th George III., which I have already adverted to, giving a copy of the indict- ment in treason, under the 5th Edward III., being the only statute tlien in force in Ireland, five days before trial, and the assistance of counsel, and no more. So that at that time, at the time of the passing of the 36th George III., by the law of England, the party accused was subject to the same statutable enactments as to the nature and extent of the crime ; but he had, in addition to what was given by the 5th George III., namely, the copy of the indictment five days, and the assistance of counsel ; the protec- tion of the other sections of the 7th William III., requiring proof by two witnesses, and limiting the time of prosecution. Further, he had the provisions of the 7th of Anne, giving a list of the witnesses to be produced for the prosecution, and the names and additions of the jurors, and the copy of the indictment, ten days before the trial. In that state of the law it was deemed requisite in England to pass the act of the 36th George III., which act declared old, and enacted fresh treasons, and defined and pointed out with precision several fresh treasons, but many of them such as had been by judicial decision held to be provable under, and establishing the treasons declared by, the statute of Edward III. And it enacted, that persons prosecuted for any offence under it, should have the benefit of the 7th of William III. and the 7th Anne ; and it made that act to continue during the life of his Majesty, George III., and until the end of the next session of Parliament after his demise. That act created and declared additional treasons to those previously existing in England, under the statute of Edward III. ; and in JUDGMENT ON WRITS OF ERROR. 961 fact it added some sucli, as compassing injury to the person, which might not have been held to have been proofs of existing treasons, but it, generally speaking, did define and give precision to the charge ; and then it added to the enactments of its 1st section those I beheve of the 4th, namely, that persons brought to trial for those treasons, should have the benefit and advantage of the existing law of England upon their trial. The act, as has been properly observed, grew out of the State Trials in England, of 1793 and 1794 ; and following up the views then taken, in order to give the parties brought to trial the advantage and benefit of a more precise and exact charge, it could not intend to take away, but provided that they should have the benefits and advantages which they would otherwise have had by a direct prosecution, under the statute of Edward III., namely, the advan- tages and provisions of those two acts of William and Anne. So the law stood while the two countries were separate. The 25th Edward III. and the 36th George III. defined treason in England. The 7th William III. and the 7th Anne regulated the trials, and gave the copy of indictments and lists of witnesses. The 25th Edward III. defined treason in Ireland ; and the 5th of George III. gave a copy of the indictment and the assistance of counsel. The law so remaining without any alteration, in these or in any material respect, till 1814, an act was passed altering the sen- tence to be pronounced in cases of treason — an act, which in my understanding was not confined to treason under any particular statute, but meant to apply to all the cases where the old and barbarous sentence was to have been pronounced, and substituted the other in its place. That is the plain, and I think distinct meaning of that Act of Parliament ; and I cannot understand why the pro- vision at the end of the 57th George III. was added. But then in 1817 his Majesty King George III., though still alive, being infirm, and certain outrages having been committed against the Regent, the 57th George III. was passed : the lav/ of treason in Ireland at that time being regulated and defined by the 25th Edward III., and the 5th of George III. ; neither the 7th William III., the 7th Anne, nor the 36th George III., being of any force in Ireland. The 57th enacts, not that all the provisions of the 36th George III., thereby and therein recited, but that those of the provisions (for it is only certain of them) thereby and therein recited, which relate to the heirs and successors of George III., shall be, and the same are thereby, made perpetual. No words of extension, nor, as has been already observed by my Lord Chief Justice, and I think a very important observation, no operation given to it by this 57th George III., in any respect, until after the demise of George III., makes the compassing of the death of the Regent, or direct attempts on life or person, treason, within the realm or without, on proof of two witnesses, it extends the pro- visions of the 39th and 40th George III., English, to any case of 3 Q 962 COURT OF QUEEN’S BENCH, DUBLIN. compassing the death of the Regent, where the overt act is assassination or direct attempt on life or person. It then pro- vides that persons prosecuted under it, shall be entitled to the benefit of the 7th William III. and the Tth Anne, except where assassination shall be the overt act. It is material to advert to the terms adopted in that act. It did not perpetuate the act of the 36th George III. It is entitled, “An Act to make perpetual certain parts of the 36th of the King ; and for the safety and preservation of the person of his Royal Highness, the Prince Regent.” And it recites that by that act it was amongst other things enacted — “ That whosoever after the passing of the act during the natural life of his Majesty, and until the end of the next session after the demise of the Crown, within the realm or without, shall compass the death or destruction of the King, or his heirs or successors ” And then there are matters which I need not take up time by reading. “and being lawfully convicted thereof by due course of law, upon the oaths of two lavTul and credible witnesses, shall be deemed and ad- judged a traitor; and whereas it is necessary and expedient that such of the provisions of the said act as would expire at the end of the next session, should be further continued ” Should be continued longer. This was passed in the fifty- seventh, when the King was infirm, and after the Regency had been some time in continuation. It recites that it is expedient that such of the provisions as would expire at the demise of the Crown should be further continued ; that is, provisions that were in force under the 36th George III., and would be in force under the 36th George III., were to be further continued ; and it then proceeds that all and every, not of the provisions of the act, but of the hereinbefore recited provisions, it having enumerated merely the penal parts of the statute, which relate to the heirs and successors of his Majesty and the sovereign of these realms, shall be, and the same are hereby, made perpetual. And it may be worth while, where we have had so much discussion with re- spect to the word “ realm,” and the decision to be adopted with respect to it, to observe how the word is used here. In the 36th it is “ within the realm” w^hen reciting it ; and then when the clause is stated with respect to the Regent, the second clause of this act, it is — “ Whereas in consequence of daring outrages offered to the person of bis Royal Highness, in the exercise of the royal power and authority to the Crown of these realms belonging ” And then it goes on in the enacting part, and it enacts that any one who shall compass injury to the Prince, in the same terms that have been applied to the King in the 36th, within the realm JUDGMENT ON WRITS OF ERROR. yea or without, shall so and so. Now it seems to me upon those expressions which I have drawn attention to, to state, that it is expedient that such of the provisions as would expire at the next session should he further continued ; and, in order to be further continued, they must have had previous existence ; and if you continue that which had previous existence, that not relating to Ireland, it is hard to say that the continuation of that makes what before did not extend to Ireland, to extend to Ireland. The enactment is this : — “be it enacted that all the hereinbefore-recited provisions which relate to the heirs and successors, shall be made perpetual.” The enactment which the learned counsel call on the Court to read is this, be it enacted that all the provisions which relate to the heirs and successors, shallrelate and extend to Ireland, and be made perpetual. I cannot see any ground of construction, or any ex- pression of intention to be carried out, which would either oblige or authorize us to interpolate those words. It does not profess to extend the statute to Ireland ; that is not its object nor its title. I may as well allude to it here as hereafter : it is observed that the 2nd section must include Ireland, because that is to make it treason to compass the death of the Regent, and there is no reason why that should not be punishable in Ireland as well as in England. There was certainly no reason why a law might not be made for that purpose to operate in Ireland as well as in England ; but the question is, whether this does so, and expresses it. It recites the outrages, and then it says, it is expe- dient to extend the provisions of the 36th to the Regent. It is argued that it is absurd to say that that should not extend to Ireland, and that the law which was then passed for the protec- tion of the Regent should not refer to Ireland. It is to be re- membered that at the very time when this is supposed to have been so intended, the person of his Majesty, George III., was left without the protection of an act, either of the 36th or the 57th, because all that is perpetuated is the clause which related to the successors, which is not to take effect, and could not take effect, till after the demise of the Crovrn ; and therefore it shows the danger of arguing upon our notions of what is politic or proper, instead of confining ourselves to the exposition of the statute laid down, or as it is passed. This I consider to be the cardinal part of the case, because if the 57th did extend the 36th and all its provisions in terms to Ireland, it would follow, in my mind, that the provisions of the statute of Anne were in force in Ireland ; and therefore I must take a little more time on this part of the case. The 57th recited the act of the 36th of George III., which act had been made about twenty-one years before for the realm of Great Britain, making some, and certainly declaring other treasons. The act had been made before the Union for the life of George III., 3 Q 2 964 COURT OF QUEEN’S BENCH, DUBLIN. and for a session beyond his demise, for Great Britain. Tlie 36th George IIL manifestly did not, and could not, relate to or affect Ireland. It was not deemed necessary or expedient by either the British or Irish Parliaments to extend that act to Ireland before the Union, nor in terms was it done after. But as the demise of George III. appeared to be impending, he being then in a very infirm state of health, and as also personal outrages had been offered to the Prince Regent, it was deemed necessary to pass an act of Parliament for the purpose of his protection ; it was deemed necessary and expedient that such of the provisions of the 36th George IIL, as would expire at the end of the session after the demise of his Majesty, should be further continued and made perpetual. And it is enacted, that those provisions which relate to the heirs and successors of George IIL, sovereign of these realms, shall be, and are hereby, made perpetual. The preamble expresses the expediency of further continuation of certain of the provisions ; and it is very material, in considering both the effect of the 57th George IIL, and the 11th of Victoria, to hear this in mind, that it is not in either case a perpetuation of the Act of Parliament, but of certain provisions of the act. The preamble expresses the expediency of the perpetuation and continuing further of certain provisions, but it is silent as to extending them to Ireland ; and the other provisions for the safety and protection of the Sovereign, are not in terms extended to Ireland, nor by any implication can be said to extend to Ireland during the life of his Majesty George IIL So that the language of the statute expresses no intent to change the law of Ireland, but merely to continue further the provisions of the 36th George IIL, as if the original act had been made not to determine them, but to be perpetual. If it had been made perpetual, it is argued, that upon it no question would arise here — nothing to denote any intention to make a new law, or to extend the provisions, not merely in point of time, but to another realm ; none to extend it from the period of the passing of the act, but from and after the demise of George III. The continuation or extension, in point of duration of a law, relating to one portion of the realm, by general terms not denoting an intention to assimilate or extend throughout, has never, that I can ascertain or find, been con- sidered to render the law general in its operation. I do not mean to say, that it is necessary that there should be express words to denote such an intention. I admit, and think, it may be implied from the provisions of the Act of Parliament itself, in the same way aS such presumption or implication may be rebutted by the language or provisions of the act itself, or by its repug- nancy or inconsistency with the existing laws of the one country or of the other. Here the construction that would extend supposes the Parliament to make a law regulating the offence and JUDGMENT ON WRITS OF ERROR. 965 trial of treason in England from its passing, but to apply to Ireland not until after the demise of the King, and to except, for that must be the effect, it must be an intentional exception of his Majesty, from the protection of the law which was not to take effect until after his demise. To introduce such a change in the law of treason, and in the important regulations for the trial of persons accused, and the protection of those innocently accused, without one word to denote such intention, or without one word of expression of its expediency ; but leaving the chasm in legis- lation, to which my Lord Chief Justice has adverted, for the life- time of his Majesty. The statute in fact says, that certain provisions would expire at the end of the session which ought not to be allowed then to expire, but ought to be further continued ; that is, have a longer and a perpetual continuation. That denotes the intention to continue their operation, but not to enlarge or extend it to cases, or to a realm, which it did not embrace ; and the laws of which, both as to the offence itself and as to the proof of guilt, and as to the forms of procedure, and the privileges, enactments, and provisions made for the pro- tection of those accused, in order to insure them a full and just trial, were variant one from the other, in matters of the utmost importance and essence. It therefore appears to con- tinue, properly speaking, in England or Great Britain, a law, which had been for a considerable period — twenty-one years — in force there, and laws which had been more than a century in force, regulating the mode of trial and proceedings in treason. But it says no more. It appears to me that such a legislation is not to be presumed. Not only does the Parliament not expressly declare the intention to introduce and make so im- portant a change in the law, either in recital, preamble, or enactment, but its recitals, preamble, and enactments being all particular, and pointing merely to the extension of duration, appear to me to imply the absence of any such inference or intention. And after that act had been passed, which is supposed to have extended all the provisions of the statute of William, and all the provisions of the statute of Anne, to Ireland, early in the second year, after the demise of his Majesty, within three or four years after the passing of the act ; after this act, which is supposed to have introduced a new code of treasons into Ireland, and when they would have come into operation in Ireland, an act is passed to extend the 4th section of the 7 th and 8th of William III. into Ireland. The 1st section had been in force under the 5th George HI. ; and this 1st and 2nd of George IV. recites the other sections of William, sets them out at length, intending to introduce them, and maf e them the law of Ireland. Not having been previously to be found upon the statute- book of Ireland, it does not say that the provisions of Wilham should be extended to Ireland, or that the persons tried should have the benefit of the provisions of Anne, or the provisions of 9G6 COURT OF QUEEN’S BENCH, DUBLIN. William, as was very proper legislation in England, where those enactments and provisions were already on the statute-book, and were merely extended to other cases ; but it sets out and recites those provisions which it intends to make law in Ireland, and it recites that those enactments and provisions do not extend to Ire- land. Within two or three years after the act was passed which is supposed to have put both acts into operation to the extent of the great body of treasons recited in those acts. This statute of the 1st and 2nd George IV. recites, that these sections do not extend to Ireland, stating that absolutely and unqualifiedly, not that they do not extend, or may not extend to certain cases, but that they do not extend to Ireland; and further, that it is expedient, just, and reasonable that they should he extended to that part of the realm. It then enacts that they shall extend to, and be in force to all intents and purposes whatsoever in Ireland. It does seem to me very difficult, therefore, to reconcile that statute with the notion, that the 57th George III. had made all the provisions of the 36th George III. law in Ireland. And the same act, as my Lord Chief Justice has already observed, provides in cases of compassing the death of the King, the party shall not have the protection where the overt act is assassination, or a direct attempt on the life of the Sove- reign. Here is an express and absolute declaration, that these enactments do not extend to Ireland, and which declares that expressly and unqualifiedly, which would be extremely inac^ curate if they did- extend, and were in force in respect of the various treasons and classes of treasons made perpetual by the 57th George III., comprising, as 1 have already mentioned, the most important of the statute of Edward. Not only is there that repugnancy, but it is extraordinary that they should give these minor and curtailed privileges and advantages if, previously, the statute of Anne had been in force, which gave the copy of the indictment ten days before, and the important advantage of having the list of witnesses, and the list of jurors. It is material to consider how the 57th George III. is supposed to extend all those to Ireland ; that persons prosecuted for the offence under the 57th George III., should be entitled to the benefit of the 7th and 8th William III., and the provisions of the statute of Anne. Without saying more, and without doing as was done in the 1st and 2nd George IV., and in the 57th George III., reciting or noticing the provisions which are to become law in the country, and which does not appear on the statute-book that they were. That provisions and law should be in force in Ireland, not to be found in any statute of the Irish or the united Legislature, contrasted with the provisions and form of the 1st and 2nd George IV., its recitals and enactments, which are transferred, enacted, and extended to Ireland, appear to me to bear very decidedly upon this question, and to show that the 1st and 2nd George IV. is inconsistent with the supposition. JUDGMENT ON WRITS OF ERROR. 067 that the statutes of William and Anne have been, and were, to such an extent actually in force in Ireland ; or in other terms, that the 57th George III. had extended the provisions of the 36th George III. to Ireland. It has been pressed, and strongly, that it is inconvenient, and may be impolitic, and not consistent with correct legislation, that what is deemed proper for the just defence of innocence in one country is not deemed so for the other ; and also, that some of the statutes are framed and drawn with laxity which raise ques- tions. We must deplore, hut we cannot remove it; we cannot legislate; we are only to read, announce, and expound. We are not to presume or imply any new provisions, enactments, or exten- sions beyond the plain explicit expression or necessary imphca- tion. We cannot even assume that general words include Ireland, where not excepted. There are numberless instances to the contrary — numberless instances of acts passed altering acts of Parliament in England, and upon most serious subjects, and afterwards acts passed making the same alteration in Irish acts ; of course, expressing the opinion of the Legislature, that the former act did not, in consequence of being passed by the united Legislature, extend the English act to Ireland. Now then comes the question, and which I think the most difficult question in the case, whether the words of the 11th Vic- toria do not go further, and do not extend the provisions of those statutes to Ireland. That act recites, that whereas by an act of the 36th it was amongst other things enacted, that if any person during the natural life of the King, and soforth, shall compass the death and destruction, &c., and such compassing shall express, and being convicted shall be a traitor. And then it recites, that whereas by an act passed in the 57th all the hereinbefore-recited provisions — and it is very remarkable to notice the caution observed both in the 57th and in this act; it is not that the said act was made perpetual, but it is that ^‘All the hereinbefore-recited provisions of the act of the 36th of the King were made perpetual.” And then it recites,' that “Whereas doubts are entertained whether the provisions so made per- petual extended to Ireland ” As has been already observed by my brother Crampton, we never heard of any doubt raised in any court in Ireland upon the subject. Ko question was ever suggested, nor was it ever alleged in any court or case in Ireland, that the 57th George HI. had been imported all that extensive class of treasons into Ireland, and that that had been the law up to the passing of the 11th Victoria. And then it says, “ Whereas it is expedient to repeal all such of the provisions made per- 9G8 COURT OF QUEEN’S BENCH, DUBLIN. petual by tbe last-recited act as do not relate to offences against the person of the Sovereign, and to enact other provisions instead thereof, applicable to all parts of the United Kingdom, and to extend to Ireland such of the provisions of the said acts as are not hereby repealed ” Now, I Lad a good deal of difficulty on that point; because I think if the enactment had followed that recital, whatever we might have guessed as to the intention of the Legislature, that expression would have included all the provisions of the acts. Then, “ to extend to Ireland such of the provisions of the said acts as are not hereby repealed ” Now ‘‘the provisions” must be taken to be “ enactments,” and “the enactments of the said acts as are not hereby repealed” would leave all the 36th George III. which was not expressly repealed here. But then the enactment goes on — “be it therefore enacted that certain provisions shall be repealed, and be it declared and enacted that such of the said recited provisions made perpetual by the 57th shall extend to, and be in force in, Ireland.” So that it plainly confines the effect of that 2nd section to such of those recited provisions. The thereinbefore-recited provisions as were not repealed, but made perpetual, they and they only, are extended to, and are in force in, Ireland, confining the effect of this enactment to the 2nd section ; for I think it must be taken to be an enactment and not a declaration. It would be exceedingly imperfect legislation and expression, if it were a “ declaration to select portions of an act thirty years old shall extend to Ireland.” The true construction is, an enactment that such of the thereinbefore-recited provisions, made per- petual by the 57th, shall extend to, and be in force in, Ireland. There is no more in this act than in the 5Tth, and the observations I have made I shall not repeat with respect to it, but they apply equally to this act as to any implication that can be drawn from it. There is no intention expressed or shown to alter the law of Ireland as to the regulation or proceedings in trials for treason. There is no provision, such as is made in the 57th and the 36th George III., that the person indicted should have the benefit of the 7th William and the 7th Anne. And it is certainly remark- able, that when the Legislature were passing acts, making fresh treasons in England, they thought it necessary to add a distinct and express enactment, in a separate section, giving the benefit of those two recited acts to the person tried under this ; and they also thought the same in the 57th, where they were perpetuating the 36th, and where they were enacting new treasons affecting the person of the Prince Regent. In those cases the Legislature proceeds so cautiously in laying down those provisions. JUDGMENT ON WRITS OF ERROR. 969 and yet we are called upon to infer and imply contrary to and against the difficulty which I have suggested, and which I feel to exist, that, without any expression of any such intention, those penalties are to be transferred, not merely from one offence to another, in a country where they existed as the laws and regula- tions of treason, but to extend to another country in which the laws were altogether different. It is inconvenient certainly; this legislation upon which I have been observing, and it does occasion a good deal of difficulty — it has created a good deal of difficulty in my mind ; but I have, upon the best consideration 1 have been able to give the case, come to the conclusion, that the 11th Victoria does not transfer the provisions of the 36th George III., nor transfer the provisions of the statute of Anne, either by direct legislation, or by introducing either the 57th or the 36th George III. It is to be regretted, that this short mode of expres- sion, which raises such difficulty, should have been adopted ; but our duty is not to correct the Legislature ; our duty is, to form the best opinion we can on what the meaning of the statute is which has been passed. We may regret the form, and we may regret that there should be such a variation in the laws of the two countries. We may deplore it, and I do think it is deplorable, that there should not be distinct and precise legislation, and that what is deemed conducive to the establishment of innocence in the one country, should not be deemed so in the other. But, as 1 before mentioned, all we have to do is to expound the law ; we cannot make it. If there be no doubt, or no ground of implication, we cannot depart from the enactments. The conclusion which I have come to upon this subject is, that the statute of Anne is not in force in Ireland, and therefore, there was no foundation for the error assigned in this respect. I shall not go into any further consideration of it ; it is not necessary for me to do so either as to the form, or the admissibility of such a mode of bringing forward such a matter, if in point of law the right existed. It is clear, that under the statute of Charles I. the right to challenge was limited in high and petit treason to twenty instead of thirty-five. It is also plain, that the word treason” is used in the 9th George IV. as a single general term, substituted for the two that had been used, high treason and petit treason, in the 11th of Charles. In this very act we find the word treason used necessarily to include or mean high treason; there can be no question on that. And with respect to the allocutas, I think it has been sufficiently observed upon. Therefore, I am of opinion, that all the errors assigned ought to be overruled. 970 COURT OF QUEEN’S BENCH, DUBLIN. Mr. Justice Moore. In an ordinary case I tliink the best way I could discharge my duty would be by simply expressing my full concurrence in the opinion which has been already pronounced by the other members of the Court, and also my full con- currence in the reasons which have been assigned for that opinion. But this case has been deemed of so much import- ance — important, as has been observed by my brother Crampton, both to the prisoners and to the law — that it has been thought right that each of the judges should express his opinion sepa- rately; and I, therefore, feel bound to express mine with as much conciseness as I possibly can, and at the same time, with a full conviction that it is totally beyond my power to do any thing more than to repeat some of the observations which have been already so clearly and strongly made by some one or other of my brethren who have preceded me. The first objection to which I shall advert, is that founded upon the caption; and the substance of that objection is this, that it does not appear on the face of the caption with sufficient clearness and certainty, that the three judges who presided at the special commission were duly authorized so to do. Having been one of the judges who presided on that occasion, I think it incumbent on me to vindicate myself in the way in which the Lord Chief Justice has thought proper to do, from any imputation of having assumed upon myself an authority which was not conferred upon me in point of law and in point of fact. I have had the letters patent before me, and I think it is impossible to entertain any doubt as to the fact, that the three judges who presided upon that occasion, were fully and duly armed with the authority which they took upon themselves to execute. I am bound however fully to acknow- ledge, that no matter how clear I myself may be, or how indisputable the authority may be under which the judges acted, yet if it does not appear on the face of the caption that such authority existed, it would be a good ground of error upon the present record. Now it appears to me, in the first instance, that considering the judicial position of the judges who jiresided on that occasion, two of them, the highest judicial authorities of the law in Ireland; considering also that the caption is not a pleading, and has never been required to have the same certainty as a pleading ; I think it ought not requme any very great degree of averment on the face of the caption to warrant the Court in intending that the judges did possess the authority which they exercised. The caption in the present case contains this averment, that the three judges were nominated and appointed to inquire into and determine all manner of trea- sons, &c., and also nominated and appointed from time to time, as need should be, to deliver the gaols under letters patent, the JUDGMENT ON WRITS OF ERROR. 971 date of which is stated. It appears to me that if the caption had stopped there, and if there was nothing further what- ever in it except the mere naked averment which I have just read, it would be abundant to sustain the existence of the authority under which the judges presided. It appears to me to be a perfectly plain, distinct, and unequivocal averment of the fact, that the three judges had an authority to hear and de- termine on the treason, and to deliver the gaols. The averment would not be true in point of fact, if the authority had been given to them and others jointly ; because I think it perfectly plain that if an authority, I will say to four, is given to them jointly, to do a particular act, it is not true that any three, two, or one of the four, would have the authority in them. And I therefore look on this averment, on the face of the cap- tion, as an unequivocal and distinct averment that the judges did possess the authority which they took upon themselves to exercise. I think there is authority to show that such an averment is of itself sufficient ; and that authority is one of those that has been referred to by the counsel for the Crown in arguing this case. It is the case of Rex v. Joyce, to be found in 3rd Burrow, page 2085. There the prisoner had been capitally convicted before Mr. Justice Hewitt. The record was removed by a writ of error, and various objections were assigned, and one of the objections was, that the name of Mr. Justice Hewitt did not at all appear in the letters patent that were there set out, and that there was simply an allegation that he was assigned to deliver the gaol. But it w’as objected that it did not show by whom he was assigned, nor show that Mr. Justice Hewitt was one of those who was assigned. Accord- ingly, that having been relied on as an objection, the Court unanimously gave their opinion that — “It sufficiently appears upon the record that Mr. Justice Hewitt was the king’s justice, and he could be assigned by nobody but the King.” Now it strikes me, that unless there be some peculiar force and meaning in the word “assigned,” that is a direct authority for sustaining the sufficiency of the averment in the present case. I am not aware that there is any peculiar force or technical meaning in the word “ assigned.” I consider the words “ nominated and appointed” as of equal and adequate force. And when I find in the case to which I have referred, that the mere allegation, that Mr. Justice Hewitt was assigned to hear and determine, and to deliver the gaol, that was considered to be sufficient, because the Court would intend, that he was assigned by the only authority that could assign him, namely, the Crown ; it does appear to me that the averment and allegation here, that the three judges were nominated and appointed to discharge that duty, is quite sufficient. 972 COURT OF QUEEN’S BENCH, DUBLIN. It has been contended on the part of the plaintiffs in error, and I think fairly contended, that however that might be, if the caption had stopped there ; that yet the caption goes further, and that the effect and the result of the averment to which I have adverted, is neutralized by, and is inconsistent with, something that follows in the subsequent part of the caption ; and that is the statement, that the letters patent were directed to the three judges, and to others. Now there does not appear to me to be any contradiction, or any inconsistency between the two allegations. The direction of a patent is one thing, and the substance of the letters patent is another. There is no incon- sistency in saying, that by letters patent, directed to twelve, three of them were authorized to discharge the duty ; and it appears to my understanding, that the observations made on this portion of the caption by my brother Crampton, are perfectly satisfactory, that there is nothing whatever in the succeeding part of the caption, to neutralize the averment to which I have adverted ; and that I therefore have on the face of this caption an averment, that the three judges possessed the authority under the letters patent, the date of which is given ; and the Court, according to the authority I have cited, will intend every thing necessary to supply a deficiency, if any such exists. In my judg- ment, therefore, that objection is totally unfounded, and accord- ingly, that ground of error must he overruled. The second ground of error that has been relied upon is, the alleged imperfection of the five first counts of this indictment. In the five first counts the prisoners are charged with having been guilty of levying war against her Majesty ; and it has been contended on the part of the prisoners, that in Ireland the levying of war against the Crown does not constitute the crime of high treason. If they were right in that, the result of course must be an acquittal, because they have been convicted of an offence that in that view would not be known to the law. I apprehend that the counsel for the prisoners are under a very great mistake when they say, that the offence of levying war against the Crown, is not an offence known as high treason in the law of Ireland. There can be no doubt that the common law of Ireland and the common law of England are the same ; and it appears to me, from the authority to which I am about to advert, that before the statute of the 25th Edward III. was passed at aU, it was high treason at common law to levy war against the King. It will be found in 1st Institute, page 4, in the reading of my Lord Coke, upon this statute of the 25th Edward III., that he says — “ This law is for the most part declaratory of the ancient law, and therefore this word declarisement is used j but yet the studious reader should observe that in other clauses it added to the former law whereunto this word declarisement will sufficiently extend.” JUDGMENT ON WiUTS OF ERROR. 973 So tliat, according to the opinion of Lord Coke, this statute of the 25th Edward IIL had a double operation ; it was declaratory so far as the treasons enumerated in it were treasons by the ancient law, but so far as it enacted new treasons it was an enacting law. It will be found in page 9 of the same hook: when commenting on the clause of the statute about levying war, he says, — “ This was high treason by the common law, for no subject can levy war within the realm without authority from the King.” It appears therefore to me, after these authorities, utterly impossible to contend that at common law, independent altogether of the operation of the statute of the 25th Edward IIL, or of Poyning’s Act, to levy war against the Crown would not be high treason in Ireland. However, a good deal has been said upon the operation and construction of Poyning’s Act, and it has been argued by a criti- cal reference to the statute of the 25th Edward IIL, and by a critical contrast between the two statutes, that the 25th Edward III. has not been extended in this particular to this country. I shall not occupy very much time in the observations which I have to make on that part of the case, because they have been already most clearly and strongly put by the other members of the Court. Poyning’s Act has been referred to, and I think there are abundant words to extend every thing in the law of England that was intended to be extended to this country. And what was the object of Poyning’s Act *? There were various acts of Parliament in England antecedent to the 10th Henry VIL, which had been considered to be beneficial to that country. It was thought advisable and expedient to have all those beneficial laws extended to Ireland. (3ne or other of two courses might have been adopted — either to take up each act of Parhament and pass an act extending it to Ireland, or to pass such a general act as Poyning’s Act, declaring that all those bene- ficial laws should have operation according to their tenor and effect in Ireland. Now, surely the object and intention of the Legislature when they passed Poyning’s Act was, that Ireland should have the benefit of all those public beneficial laws which had been passed in England ; and, when we find that the language of Poyning’s Act is sufficiently large and extensive to accomplish that object, I think there ought to be the fullest effect possible given to it ; and instead of narrowing its effect by a critical construction with regard to a particular phrase, either in the 25th Edward III. or in any other act, it appears to me that we should be bound to give it the largest and most comprehensive extension, so as to carry out in effect that which was plainly and clearly the object of Poyning’s law. 974 COURT OF QUEEN’S BENCH, DUBLIN. But if there be any doubt on that subject, are we not bound now to take not only the statutable exposition which has been given of it in the statutes which have been referred to by my brothers ; but are we not also bound at this time to give to it the same construction as has been given to it by the proceedings which have been taken in treason trials in Ireland for a considerable number of years past ? My brother Perrin has referred to very many cases in Ireland where the charge was high treason for levying war, where the trials took place before the ablest judges, where the prisoners were defended by the ablest counsel, aiid yet, never up to this moment, until the nineteenth century, was it ever con- tended, or ventured to be contended, by any of those counsel, that the operation of Poyning’s Act was not what has been contended for, namely, to extend to this country the operation of the 25th Edward III. It does therefore appear to me, that the statute of Edward III. is in all its force and vigour in operation in Ireland ; and I think it is impossible therefore, in my humble judgment, to contend with success that the levying of war in Ireland against her Majesty does not constitute the crime of high treason. The next matter to which I shall advert — and I will do it very shortly indeed — is with regard to the overruling of the peremptory challenge to the twenty-first juror. I think all that is necessary to he done on that part of the case is simply this — by the lOth Charles L, already referred to, there was a positive act of Parliament that, in cases of high treason the person accused should only he entitled to the privilege of challenging twenty peremptorily. I have not seen or heard any thing to show to me how, or when, or where, or by what act of Parlia- ment, that statute has been repealed until the 9th George IV. The 1st and 2nd George IV. has been argued as having the effect of repealing it ; but the 1st and 2nd George IV. only recites the 7th William III. — reciting the enacting part of that statute, and reciting along with it the exceptions from the enacting part, one of which was the case of a person peremptorily chal- lenging above thirty-five. I think it would be impossible fairly to contend that the recital of the exception in that statute was to have the effect of positively repealing that express statute of the 1 0th Charles L, which, at all events, up to that period of time, was the clear statutable law of the country. But if there did exist any doubt at all upon that act, it is removed by the 9th George IV., which has been well observed to be a consolidation act, bringing together a great body of acts of Parliament, and repealing them all for the purpose of constituting one entire single code upon the subject. It recites this 10th Charles I. as if it had been up to that period in force ; it repeals it, and then re-enacts in a compre- hensive term the several matters in that statute, giving to persons charged with treason the power of peremptorily challenging twenty only. Now, after the various statutes that have been JUDGMENT ON WRITS OF ERROR. 975 referred to, and over which I shall not again go, establishing ttat the word treason is a comprehensive term, embracing within it every species of treason, and is considered by those various statutes to comprehend high treason; and when by the 9 th George ly. the 10th Charles I. is repealed, wdiich does relate to high treason, I confess I cannot bring my mind to entertain any doubt whatever that under the state of the law in this country, a prisoner indicted for high treason in this country is entitled only to the privilege of challenging twenty peremptorily. I think therefore that this ground of error must be overruled. With respect to the next ground of error, the allocutus point, I shall adopt the view taken by my brethren, and I shall not make an observation on it, because it appears to my understanding to be perfectly destitute of any force whatever. I now come to what undoubtedly is the most important part in this case, and which is the one most relied on by the counsel for the plaintiffs in error, and which, if there be any doubt or difficulty in the case, it is upon this point that the doubt or difficulty would exist ; and that is the question that is raised with respect to the plea. It appears that the indictment contains six counts, five of them for levying war, the sixth for compassing the death of her Majesty ; and the substance of the plea is this, that although the counsel clf) not pretend, or contend, that if the indictment had been confined to the five first counts there would be any ground for the plea, they yet contend that in consequence of the sixth count they are entitled to certain privileges which are set out in the plea as given by certain statutes ; and they say that they ought not to have been put on their trial then, because they had not got these privileges to which they say they were entitled. The first question that was raised was, whether a plea of that description ought to have been received at all. I was of opinion below, in conjunction with my Lord Chief Justice of this court and my Lord Chief Justice of the Common Pleas, that the plea ought to have been received. After the fullest consideration 1 have been able to give this case, but certainly with less confidence on the subject, after what has been expressed by my brother Crampton, I remain of that opinion. And 1 do feel satisfied, after the fullest consideration I could give, that the Court would have adopted both an unsafe and unconstitu- tional course, if we had precluded the prisoner from putting on the record his claim to the privileges to which he contended he was entitled under the provisions of the acts referred to. If the plea be, as has been contended, so totally bad — so inadmissible in point of form, and so defective in point of substance, I do not know what mischief has been done by the reception of that plea. The utmost inconvenience was, putting the Crown to the trouble of putting in a demurrer, and putting the Court to the trouble 976 COURT OF QUEEN’S BENCH, DUBLIN. of pronouncing a judgment upon that demurrer — a course that did not occupy beyond a few minutes. But if it turned out that this plea ought to have been received — if it turned out that privi- leges ought to have been conceded to the prisoner, or even if the question was one of doubt, I confess, without entering into the question of discretion at all, I should have felt very much grieved, indeed, if an opportunity had not been afforded to the prisoner of stating upon the record, and having the opinion of a higher tri- bunal, which had more opportunity of examining, than in the hurry of a trial, the proper determination of that important question, namely, the right and title of the prisoner to the pri- vileges he claims. But on principle, why ought not such a plea to have been received ? If a man be charged with high treason, and he has got a pardon, he may undoubtedly state upon the plea that pardon to show why he should not he put upon his trial again. If he has been tried before he may plead anterfois acquit as a bar to his being put on his trial again ; and 1 con- fess I am unable to see, on principle, why a man has not as good a right to say, by his plea, you have no* right to put me on my trial now, as to say, you have no right to put me on my trial at aU. The prisoner says, the law has conferred certain privileges on me ; the law has given me them ; those privileges are pre- liminary to putting me on my trial ; they were intended by the humanity of the British law to enable me to defend myself on my trial ; I am entitled by law to those privileges ; I have not got them, and I say that you have no right to put me on my trial now, because you have not given me the privileges to which I am entitled. In my humble judgment, shaken unquestionably a good deal by the doubt expressed by my brother Crampton on it, I do, after the fullest consideration, remain of the opinion I was below, that the safe, prudent, and constitutional course was then adopted in the acceptance of the plea ; and I, for one, should very deeply regret if any other course had been followed. It, however, now becomes a question whether in form or in substance this plea can be considered good. I think my Lord Chief Justice and my other brethren have most judiciously adverted to the difference of the law between the two countries with respect to treason up to the 57th George III.; and it is quite plain that in the three important particulars that have been adverted to, very great and very striking differences did exist between the law in Ireland and the law in England with regard to treason. Up to the 36th of the King the substantial law of treason remained the same in both countries ; but by the statute of William and the statute of Anne, very important privileges were conferred upon parties accused of treason in England, which privileges it was not considered right or expedient to give to parties accused in Ireland ; and I think it will appear that although in England the party accused of treason was by the 7th JUDGMENT ON WRITS OF ERROR. 977 AVilliam III., and the 7th Anne, entitled to the privileges which have been enumerated bj my brother Perrin, until the passing of the 5th George HI. there were no privileges to a party accused of treason in Ireland over a party accused of any other offence." The 5th George III. does give him certain 1 privileges ; that is, it entitles him to a copy of the indictment five days before his trial, and it entitles him also to be defended by counsel ; but he was not entitled to a list of the jurors, nor ' to a list of the witnesses ; and, therefore, there still remained u striking and remarkable discrepancy between the privileges to which the party accused in England and the party accused in Ireland were entitled. There was another very remarkable difference created by the 36th George III., which is confessedly and admittedly only an English act. It has not been alleged or contended that at the time it passed it had any reference or any application to this country at all, and by that statute a great many matters were made substantive and distinct treasons in England, which at that time were not made treasons in Ireland. So by that statute another important and substantial difference is made between the law of the two countries. In three years afterwards, by the 39th and 40th George III., which is also an English act, another difference is made between the law of the two countries, and that was by stripping a person charged with treason in England, where the overt act was one directly against the person of the Sovereign, of the privileges given by the statutes of William and Anne, and he was left, as in an ordinary case of murder, to go to his trial. There was then no corresponding law to that made in Ireland ; and therefore we had at that period of time the three remarkable differences to which I have adverted existing between the law in England and the law in Ireland. It might perhaps have been supposed that this difference was owing to the difference of the Legislature, there being a separate Legislature in England and in Ireland at this period of time ; but in the year 1800 the Union passes, the Legislature is consolidated, and matters so remain up to the 57th George III., namely, the year 1817, a period of seventeen years after the passing of the Union. The first observation that it occurs to me to make upon this part of the case is this — that if it was the intention of the united Legislature to remove the difference that existed between the laws of the two countries; if the intention was to equahze the law in each, it strikes my mind as extremely improbable that so important an object would not have been sought to be effected by direct and by positive legislation. And I think it would occur to anybody taking a view of the differences of the law between the two countries in the important particulars I have mentioned, that if the Legislature intended to remove all those differences, that the course adopted would have been this : 3 R 978 COURT OF QUEEN’S BENCH, DUBLIN. to ]iave passed an Act of Parliament reciting tlie differences — reciting the expediency of removing them — and then by positive enactment removing them, instead of leaving — v^hat has been left to be done — this important equalization to be vrorked out through the ingenuity of a subtle construction of the 57th George III., an Act of Parliament which does not make any refe- ' rence, either in its title or in its preamble, to the accomplishment of any such object as that I have stated. Still, however, it is possible that it may have effected what it never professed any ' intention to effect. My brother Perrin has called the atten- tion of the Court to the title of this act ; it is, “ to perpetuate certain parts of the 36th of the King,” and, secondly, “ for the safety and preservation of the person of his Koyal Highness the Prince Regent against treasonable practices and attempts.” It is quite plain that in its title there is not the slightest state- ment of any intention to remove the existing differences be- tween the two laws, or to equalize them. It then goes on to recite the 36th George III., and it recites that it is necessary and expedient that such of the provisions of the act as will expire after the demise of that Sovereign, should be further continued and made perpetual ; and it enacts that the hereinbefore-recited provisions — that is, simply the provisions as my brother Perrin observed, which created some of the new treasons and nothing more, shall be, and the same are thereby made perpetual. I think that if there was nothing more in this Act of Parliament than the 1 st section, it would be utterly impossible to contend, with any degree of accuracy, that there is any thing in it extend- ing it to Ireland. Ireland is never mentioned in that section ; it simply perpetuates an act which had reference only to Eng- land, and perpetuates that which was temporary and deter- minable. But see now the anomaly that would be created if it could be considered as extending to Ireland. The 36tli. George III. was to continue during the life of that Monarch, and until the end of the session next after his death. It therefore afforded to George III., so long as he lived, the full protection of the act ; but it would only afford protection to his “ heirs and successors,” until the end of the next session of Parliament; and accordingly the 57th George III., by the 1st section, only enacts and makes perpetual the part that relates to the heirs and successors. Now, assume, for a moment that it did extend to Ireland this part which relates to the heirs and successors, it clearly did not extend the part which relates to George 1 1 1, him- self; and there would be this strange anomalous legislation — that the Legislature, during the reign of the existing monarch, did not make a provision for the protection of him against treason in Ireland, but did make a provision for the protection of his successors in Ireland against those said treasons — a construction which appears to me to be in the highest degree irrational. JUDGMENT ON WRITS OF ERROR. 979 Wlieii we come to look at what is the rule of construction on the subject, is not that rule decidedly and directly opposed to the argument, so far at least as it is founded on the 1 st section ? I take the rule of construction to be this — that if there be an act enacting certain matters, and that act is temporary at the time of its passing, and that it is subsequently perpetuated, and nothing more is done with regard to the matter so enacted than merely perpetuating it, the law has its operation under the original act, and not under the perpetuating act ; and if I be right in that, the 57th George III., perpetuating the 36th George III., does nothing more than make that perpetual which before was tem- porary ; and the act which contains the law upon the subject is not the 57th, which perpetuates, but the 36th, which originally made the enactment. On that subject there are two cases which appear to me to be quite decisive. The first is the case of Rex v. Morgan, in Strange 1066. That was an indictment for perjury upon an affi- davit ; and it was laid to be taken by virtue of the 12th George I., which was a temporary law for five years, afterwards continued by the 5th George II., which had also altered it in some respects. “ For the defendant it was insisted, that the affidavit should have been laid to have been taken by virtue of the latter act, especially as it is not barely an act for continuance, but has made several alterations in the former.” But the Chief Justice says — “ When an act is continued every body is estopped to say it is not in force. And as it is not altered in this respect, it is but a common con- tinuance qiio ad hoc'" So in that case the Court expressly decided that the law ope- rated not under the perpetuating act, but operated under the original act. There is a second case, wliich is the case of Shipman v. Henbest, which the Court has been referred to, in 4th Term Reports ; and Lord Kenyon says in giving judgment : — ‘‘ This action is brought on the 1st James I. chap. 22, which imposes certain penalties ; and enacts by the 46th section, that the penalties shall be recovered by action of debt, bill, plaint, information, or otherwise, in any of his Majesty’s Courts of Record, in which suit no wager of law or essoin shall be affinitted. Therefore this action may undoubtedly be supported, unless the jurisdiction of this court be taken away by the sub- sequent statute of the 21st James I. chap. 4. Then the general question must depend on the construction of this Act of Parliament. Ent some preliminary questions having been made, they may be first disposed of. It has been argued, that the 21st James I. does not extend to acts passed subsequent to it, and that this may be considered as an action brought on a subsequent statute, the 1st James I. chap. 22, having expired before the 21st James I., and has been only re-enacted since that time; but on 980 COURT OF QUBExVS BENCH, DUBLIN. this point I have not entertained a doubt from the beginning. We are all most clearly of opinion, that this must be considered an action on the 1st James 1. chap. 22; and that the subsequent laws which have con- tinued it from time to time, all give effect to it as an act made in the reign of the 1st Janies 1.” 0' Then I say here, the 36th George III. was a temporary act, the 57th George III. makes a part of that temporary act perpetual, but the law still remains under the 36th George III. ; and if after the passing of the 57th there had been an indictment, it would have been under this 36th George III. ; and as that was an English act, the making or perpetuating of an English act could not have the effect, in my judgment, of extending it to Ireland. I pass over the other section, which relates to the Prince Regent, and come at once to the 4th, on which I shall merely say a word, because so much has already been said so clearly and so strongly that I fear I should only weaken it by going through it at any length. Now, the 4th section is this : — “ That all and every person or persons that shall at any time be ac- cused, or indicted, or prosecuted, for any offence made or declared to be treason by this act, shall be entitled to the benefit of the Act of Parlia- ment, made in the seventh year of his late Majesty King William III., intituled. An act for regulating of trials in cases of treason and misprison of treason ; and also to the provisions made by another Act of Parliament, passed in the seventh year of her late Majesty Queen Anne, intituled, An act for improving the union of the two kingdoms’* Now, what are the treasons made or declared by this 57th George III. ? The treason that is made by it, is the new treason with respect to the Prince Regent, which clearly had not been a treason before, but which is enacted for the first time. What are the treasons declared by this act ? If any treasons be de- clared by this act, it can be only those treasons which are recited •by the 1st section; the treasons enacted by the 36th George III. and made perpetual by the 57th. Therefore, if I be right in my reasoning, that the ist section did not extend the 36th George III. to Ireland, it would appear plainly then that this 4th section has only reference to the treasons declared by this act — namely, to the treasons of the 36th George III., which extended only to England and had no application to Ireland. I, therefore, have brought my mind strongly and clearly to the conclusion, that this 57th George III. did not extend to Ireland; certainly not in the part which forms now the subject-matter of the present error. The statute of 1st and 2nd George IV., cap. 24, appears to me to put the question beyond doubt. The argument of the prisoner’s counsel is, that the true construction of the 4th section of 57th George III. is to extend to Ireland the English statutes of 7th of William and 7th of Anne. The statute of 1st and 2nd George IV., passed four years after, recites the statute of William, and also recites that it did not extend to Ireland, JUDGMENT ON WRITS OF ERROR. 981 but that it was expedient to extend certain parts of it to Ireland, and then enacts that from thenceforth it should extend to Ireland. Surely this is a legislative declaration that the act of William had not previously extended to this country. Then, if that be so, the question would remain, whether any alteration has taken place by the passing of the 11th Victoria? I agree with my brother Perrin, that there is more doubt on this part of the case than there is upon any other ; but I have brought my mind clearly to the conclusion, that when it comes to be considered there is not any fair reason for doubting on this point. The 1st section of this Act of Parliament recites the 36th and 57th George III., and recites a doubt whether the provisions extended to Ireland. I do not think it can be contended, although unquestionably the recital of a doubt whether these acts extended to Ireland furnished a fair topic of argument to the counsel, that because there was the recital of a doubt whether the acts extended to Ireland, that was to have the effect of making them extend to Ireland. Then it goes on to state : — And whereas, it is expedient to repeal all such of the provisions made perpetual by the last recited act as do not relate to offences against the person of the Sovereign ” And accordingly it then repeals the whole of the provisions of the 36th and the 57th with the exception of such as relate to the compassing, imagining, inventing, with regard to the person of the Sovereign. Now, if this section had remained as it was, and nothing more had been in the act, it would appear to me that the effect would have been simply this, that the 36th, made perpetual by the 57th, had created a great number of new treasons ; that by this 1st section of the 11th Victoria several of these new treasons are done away with; the entire of them swept away, except those which relate to the person of the Sovereign. Then the 1st section contains the expediency of extending it to Ireland ; and, accordingly, by the 2nd section what is done ? “ And be it declared and enacted, That such of the said recited pro- visions made 'pev'petual by the said act of the 57th year of the reign of King George II L, as are not hereby repealed shall extend to, and be in force in, that part of the United Kingdom called Ireland.’’ Now, it occurs to me, that the Legislature, in the introduction of this section, expressly took care to guard, by the language that they used, against any thing being extended to Ireland, except that treason which was saved from being repealed, and which had existed in the 36th and 57th of the King ; because it says, such of the recited provisions made perpetual by the 57th. Well, you must look to see what are the recited provisions. The recited provision is that which relates to the compassing 982 COURT OF QUEEN’S BENCH, DUBLIN. the death, or destruction, or injury of the King. That is not repealed by the 1st section. That is one of the recited provisions still in existence, and that is extended to Ireland. If there was notliing more in that 2nd section than that, I should have felt great difficulty in saying, that any provision was extended to Ireland, except that one which was recited. But then it goes on to use the additional expression, “made perpetual by the 57th of the King.” But what was made perpetual by the 57th of the King ? Nothing but the provisions as to treasons against the heirs and successors of George III., and accordingly the 2nd section of 11th Victoria has recited a particular treason in the 36th, and continued that treason so made perpetual by the 57th, and has extended to Ireland the recited provisions so made j^erpetual by the 57th. I certainly, in the course of the argument, did entertain some doubt on the subject, but after the fullest consideration I can give this case, I have brought my mind clearly to the conclusion, that there is nothing whatever in this act of the 11th Victoria, to extend the statutes of the 7th Anne or the 7th WiUiam to Ireland ; and I think there may be given an uniform, clear, consistent construction to all the acts, namely, that now there are in Ireland the same treasons as there are in England, but those who are accused of treason in England will be dealt with according to the privileges conferred on persons there, and persons accused of treason in Ireland, will be dealt with according to the law as it now stands in this country ; and in my opinion there never was an intention, or at least I cannot find any thing to warrant me in saying, that it was the intention of the Legislature by all or any of those acts to remove the differences that then existed, to equalize the laws, or to introduce for the first time in an indirect way, what, if it had been the intention, would probably have been introduced by direct and positive legislation on the subject. The Court having been unanimous in the opinion that the plea was bad in substance, it is scarcely necessary for me to advert to the question of its form ; but considering that the indictment contained six counts — that the privileges claimed were only with respect to one of them, and that yet the plea was to the whole indictment, I think serious objections to its form could be found ; and further considering that the prisoners have been acquitted on the sixth count, as to which they claimed the privileges, I think it may admit of serious doubt whether this ground of error could be at all insisted on. For these reasons, expressed as concisely as I could, and which have been already more clearly expressed by my brothers, I am of opinion that there is no foundation for any of the grounds of error which have been assigned. [The prisoners were then ordered to be remanded to the custody of the sheriff.] HOUSE OF LORDS, May 11, 1849. WILLIAM SMITH O’BPvIEN (in error) v. THE QUEEN. Whereas by virtue of Her Majesty’s Writ of Error, returnable in the House 'of Lords, in Parliament assembled, wherein William Smith O’Brien is Plaintiff, and Her Majesty the Queen is Defendant, a record of the Court of Queen’s Bench in Ireland was brought into this House, on the 19th day of February, 1849, in order to reverse a judgment given in the said Court of Queen’s Bench in Ireland, affirming a judgment of the Court of Oyer and Terminer and General Gaol Delivery therein mentioned, against the said Plaintiff in error, and also the said judgment so affirmed ; and Counsel liaving been heard yesterday for the said Plaintiff in error, to argue the errors assigned upon the said Writ of Error, and the unanimous opinion of the Judges having been delivered upon a question of law proj^osed to them this day, and due consideration had this day of what was offered for the said Plaintiff in error : It is ordered and adjudged, by the Lords Spiritual and Temporal, in Parliament assembled. That the said judgment of the Court of Queen’s Bench in Ireland, affirming the said judgment of the said Court of Oyer and Terminer and General Gaol Delivery against the said Plaintiff in error, and also the said judgment so affirmed, be, and the same are hereby respectively affirmed ; and that the record be remitted, to the end such proceeding may he had thereupon, as if no such Writ of Error had been brought into this House. TENOR OF JUDGMENT. At which day, before our Lady the Queen and the Lords Spiritual and Temporal, in this present Parliament assembled, come as well the said William Smith O’Brien as the Bight Honourable James Henry Monahan, Attorney-General of our Sovereign Lady the Queen, who prosecutes for our said Lady the Queen in this behalf, in his own proper jierson ; whereupon all and singular the premises having been seen, and by the Court of Parliament aforesaid, now here fully understood, and as well the record and proceedings aforesaid, and the judgment thereupon given, and the affirmance thereof, as the several causes and matters by the said William Smith O’Brien above assigned for error, being diligently examined and inspected, and mature 984 HOUSE OF LORDS. deliberation being thereupon had, it seems to the said Court of Parliament now here, That neither in the record and proceedings aforesaid, nor in the giving of the judgment aforesaid in the Court of Queen’s Bench in Ireland, affirming the said judgment of the Com't of Oyer and Terminer and General Gaol Delivery against the said Plaintiff in error, nor in the said judgment so affirmed, there is any error, and that the said record is in nowise vicious or defective : Therefore it is considered by the same Court of Parliament, That the judgment aforesaid, so given in the said Court of Queen’s Bench in Ireland, affirming the said judgment of the Court of Oyer and Terminer and General Gaol Delivery against the said Plaintiff in error, and also the said judgment so affirmed, be respectively in all things affirmed, and stand in full force and effect, the said causes and matters by the said William Smith O’Brien above for error assigned in anywise notwithstanding ; and thereupon the record aforesaid, and also the proceedings aforesaid in the same Court of Parliament had in the premises, are remitted by the same Court of Parliament to the said Court of Queen’s Bench of that part of the United Kingdom of Great Britain and Ireland called Ireland, to the end that such proceeding may be had thereupon as if no such Writ of Error had been brought into the said Court of Parliament. John George Shaw Lefevre, Dep. CL Parliament. Dublin : Printed by Alexander Thom, 87, Abbey-street. ■ ijAf.ir ','•./*■ ■ ' • r* .--rt vVl' , .?/■ ■ • '*1.^ ' O^, ••-^’f’’;; '-fs*;,;. 4 , ■' ' ‘ ■ '■' '' ' i. ‘.i ' v'' ''. •.. . ■"' ■ ■ - „.' ^ . ■ ..,1 / ■Vink - • •> t>' ''i';.4\;{ litfc-s t'jfk,.. i?f .Jt' '' fJUf' i.kl' irrif.-- ■■ i* ■ i^'. ' ■• ij. J. ■ik. :y-' , ^ '- '^' 1' . 'r 1 ■ k*' |v'/4/k*''V*‘ '• '. jt,\v.'-. •> Jr^'/ ■ ' \ :' riO; ^/^■» - i ’ ■ ^■'‘ - • * ^ "m '-• ■ '■ miii%^;^-.- i'.Ai'''“'':';'.;I' , : iv;. ' .lU jsr v„,_ 4 ,r' .-‘''^ }.;,■ ^)*.|.'0’nj|/T ■ A,t U. ^'birtl t--‘ i ■: ' ■ : , *• ■ , ;i i,>Hv;'v'» f if,*'-- jiuWOfc ' «|lWW,i|i'-l; ft-' '•.■ ■ ... ,.’ •' * \ V; 1'^ .’, '■ '\ --a,v /v‘- ^1“?' I ?■ ■#- ,<. ' A •.- .- «•> 1 1. .t' J f ■ ■ # ■'I ' A.’ * ; • •' <<■;. '•'v^. '-.v^ 1 . .ii>, f HlfV.i ’” ' liV A, * ■I