v. THE QUEEN admits of a different consideration, but even in such it is no objecJ. MITCHEL. tion at this stage of the prosecution. On the face of an indictment every count imports to be for a different offence, and is charged as at different times, and it does not appear on the record whether Crown and 1st count. paupers in mind, body, and estate-yes, making our very souls beggarly and cowardly. They are a failure and a fraud, these institutions ;-from the topmost crown jewel to the meanest detective's note book there is no soundness in them, God and man are weary of them. Their last hour is at hand; and I thank God that I live in the days when I shall witness the utter downfall, and trample upon the grave, of the most portentous, the grandest, meanest, falsest, and cruellest tyranny that ever deformed this world. These, you think, are strong words; but they are not one whit stronger than the feeling that prompts them that glows this moment deep in the souls of moving and awakening millions of our fellow countrymen of Ireland,-ay, and in your souls, too, Protestants of Ulster, if you would acknowledge it to yourselves. I smile at the formal resolution about "loyalty to Queen Victoria," so eagerly passed and hurried over as a dubious kind of form at tenant right meetings and "Protestant Repeal" meetings. I laughed outright here, on Tuesday night last, at the suspicious warmth with which Dublin merchants, as if half afraid of themselves, protested so anxiously that they would yield in loyalty to none. They, Democrats by nature and position, meeting there without a nobleman to countenance them; with the Queen's representative scowling black upon them from his castle, are, they declare it with most nervous solemnity-loyal men. Indeed, it was easy to see that a vague feeling was upon them of the real meaning and tendency of all these meetings,-of what all this must end in, and to what haven they and you, and we, are all, in a happy hour, inevitably drifting together. My friends, the people's sovereignty: the land, and sea, and air of Ireland, for the people of Ireland; this is the gospel that the Heavens and the earth are preaching, and that all hearts are secretly burning to embrace. Give up for ever that old interpretation you put upon the word " Repeal." REPEAL is no priest-movement; it is no sectarian-movement; it is no money-swindle, nor "eighty-two" delusion, nor puffery, nor O'Connellism, nor Mullaghmast "green cap" stage play, nor loud-sounding inanity of any sort, got up for any man's profit or praise. It is the mighty passionate struggle of a nation hastening to be born into new national life; in the which unspeakable throes all the parts, and powers, and elements of our Irish existence,—our Confederations, our Protestant Repeal Associations, our Tenant-right Societies, our Clubs, Cliques, and Committees, amidst confusions enough and the saddest jostling and jumbling,—are all inevitably tending, however unconsciously, to one and the same illustrious goal,-not a local Legislature,-not a return to our ancient constitution," not a golden link, or a patch-work Parliament, or a College-green chapel-of-case to Saint Stephen's-but an IRISH REPUBLIC, one and indivisible. And how are we to meet that day? In arms, my countrymen, in arms. Thus, and not otherwise, have ever nations of men sprung to liberty and power.-But why do I reason thus with you,-with you, the Irish of Ulster, who never have denied the noble creed and Sacraments of manhood? You have not been schooled for forty years in the fatal cant of moral force you have not been utterly debauched and emasculated by the clap-trap platitudes of public meetings, and the empty glare of "imposing demonstrations;" you have not yet learned the litany of slaves, and the whine of beaten hounds, and the way to die a coward's death. No; let once the great idea of your country's destiny seize on you, my kinsmen, and the way will be plain before you as a pike-staff twelve feet long. Yet there is one lesson you must learn-fraternal respect for your countrymen of the south, and that sympathy with them, and faith in them, without which there can be no vital nationality in Ireland. You little know the history and sore trials and humiliations of this ancient Irish race; ground and trampled first for long ages into the very earth, and then taught— expressly taught-in solemn harangues, and even in sermons, that it was their duty to die, and see their children die before their faces, rather than resist their tyrants as men ought. You can hardly believe that creatures with the gait and aspect of men could have been brought to this. And you cannot wonder that they should have been slow, slow in struggling upward out of such darkness and desolation. But I tell you the light has at length come to them : the flowery spring of this year is the dawning of their day; and before the corn fields of Ireland are white for the reaper, our eyes shall see the sun flashing gloriously, if the Heavens be kind to us, on a hundred thousand pikes. I will speak plainly. There is now growing on the soil of Ireland a wealth of grain, and roots, and cattle, far more than enough to sustain in life and in comfort all the inhabitants of the island. That wealth must not leave us another year, -not until every grain of it is fought for in every stage, from the tying of the sheaf to the loading of the ship. And the effort necessary to that simple act of self-preservation will at one and the same blow prostrate British domínion and landlordism together. 'Tis but the one act of volition--if we resolve but to live, we make our country a free and Sovereign state. Will you not gird up your loins for this great national struggle, and stand with your countrymen for life and land? Will you, the sons of a warlike race, the inheritors of conquering memories, with the arms of freemen in all your homes, and relies of the gallant republicans of ninety-eight for ever before your eyes-will you stand folding your hands in helpless "loyalty;" -and while every nation in Christendom is seizing on its birth-right with armed hands, will you take patiently with your rations of yellow meal, and your inevitable portion of eternal v. the offences are or are not distinct. But if it appear before the THE QUEEN defendant has pleaded or the jury are charged, that he is to be J. MITCHEL. tried for separate offences, it has been the practice of the judges to quash the indictment, lest it should confound the prisoner in his Government contempt? If this be your determination, Protestants of Ulster, then make haste, sign addresses Crown and Securities Act. Indictment. SECOND COUNT.-And the jurors aforesaid, upon their oath, do further present that the 2nd count. said John Mitchel, after the passing of the said Act of Parliament made and passed in the said eleventh year of the reign of our said Sovereign Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the sixth day of May, in the said eleventh year of the reign of our said Lady the Queen, to wit, at the parish of Saint Thomas, in the county of the city of Dublin, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to deprive and depose our said Lady the Queen from the style, honour, and royal name of the Imperial crown of the United Kingdom, and the said felonious compassing, imagination, invention, device, and intention, he the said John Mitchel then and there feloniously did express, utter, and declare, by then and there feloniously publishing a certain printing in a certain public newspaper called The United Irishman, of which he, the said John Mitchel, then and there was the proprietor, which said printing is as follows, that is to say [here the prisoner's speech at Limerick is set out, with the inuendoes, as in the first count], against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. THIRD COUNT. And the jurors aforesaid, upon their oath aforesaid, do further present, 3rd count. that the said John Mitchel, after the passing of the said Act of Parliament made and passed in the eleventh year of our said Sovereign Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the thirteenth day of May, in the said eleventh year of our said Lady the Queen, to wit, at the parish of Saint Thomas, in the county of the city of Dublin, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to deprive and depose our said Lady the Queen from the style, honour, and royal name of the Imperial crown of the United Kingdom, and the said felonious compassing, imagination, invention, device, and intention, he, the said John Mitchel, then and there feloniously did express, utter, and declare, by then and there feloniously publishing a certain printing in a certain public newspaper called The United Irishman, of which he, the said John Mitchel, then and there was the proprietor, which said printing is as follows, that is to say [here the article entitled 'The Times on Rebellions" is set out, with the inuendoes, as in the first count], and in another part of the said last-mentioned number of the said public newspaper called The United Irishman, a certain other printing, which is as follows, that is to say [here the "Letter to the Protestant Farmers, Labourers, and Artizans of the North of Ireland, No. II., is set out, with the inuendoes, as in the first count], 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 aforesaid, do further 4th count. present that the said John Mitchel, after the passing of the said Act of Parliament made and passed in the eleventh year of our said Sovereign Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," on the sixth day of May, in the said eleventh year of the reign of our said Lady the Queen, at the parish of Saint Thomas, in the county of the city of Dublin, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to deprive and depose our said Lady the Queen from the style, honour, and royal name of the Imperial crown of the United Kingdom, and the said felonious compassing, imagination, invention, device, and intention did then and there feloniously 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 his most evil and wicked felony and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the said sixth day of May, in the eleventh year of the reign aforesaid, at the said parish of Saint Thomas, in the county of the city aforesaid, feloniously did publish a certain printing in a certain public newspaper called The United Irishman, of which said public newspaper he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [setting out the prisoner's speech at Limerick, and the inuendoes, as in the first count], and further to fulfil, perfect, and bring to effect his most evil and wicked felony and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the thirteenth day of May, in the eleventh year of the reign aforesaid, at the parish of Saint Thomas, in the county of the city of Dublin aforesaid, feloniously did publish a certain printing in a certain public newspaper called The United Irishman, of which said public newspaper he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [setting out the article entitled "The Times on Rebellions," with the inuendoes, as in the first count]. And further to fulfil, perfect, and bring to effect his most evil and wicked felony and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the thirteenth day of May, in the eleventh year of the reign aforesaid, v. THE QUEEN defence, or prejudice him in his challenge of the jury; for he J. MITCHEL. might object to a juryman's trying one of the offences, though he might have no reason to do so in the other. But these are only matters of prudence and discretion. If the judge who tries the Crown and Indictment. 5th count. 6th count. 7th count. at the parish of Saint Thomas, in the county of the city of Dublin aforesaid, feloniously did publish a certain printing in a certain public newspaper called The United Irishman, of which said public newspaper he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [here the letter to the Protestant Farmers, Labourers, and Artizan s of the North of Ireland, No. II., was set out, with inuendoes, as in the first count], 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 John Mitchel, after the passing of the said Act of Parliament made and passed in the eleventh year of our said Sovereign Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the sixth day of May, in the said eleventh year of the reign of our said Lady the Queen, to wit, at the parish of Saint Thomas, in the county of the city of Dublin, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to levy war against our said Lady the Queen within that part of the United Kingdom called Ireland, in order by force and constraint to compel her to change her measures and counsels, and the said felonious compassing, imagination, invention, device, and intention, he, the said John Mitchel, then and there feloniously did express, utter, and declare, by then and there feloniously publishing a certain printing in a certain public newspaper called The United Irishman, of which he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [here Mr. Mitchel's speech at Limerick was set out, with the inuendoes, as in the first count]. And the said felonious compassing, imagination, invention, device, and intention, he, the said John Mitchel, afterwards, to wit, on the thirteenth day of May, in the eleventh year of our said Lady the Queen, to wit, at the parish aforesaid, in the county of the city of Dublin aforesaid, did further feloniously express, utter, and declare, by then and there feloniously publishing a certain other printing in one other number of the said public newspaper called The United Irishman, which is as follows, that is to say [here the article entitled The Times on Rebellions," was set out, with the inuendoes, as in the first count]. And in another part of the said last-mentioned number of the said public newspaper called The United Irishman, a certain other printing, which is as follows, that is to say [here the letter to the Protestant Farmers, Labourers, and Artizans of the North of Ireland, No. II., was set out, with the inuendoes, as in first count], 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 COUNT.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said John Mitchel, after the passing of the said Act of Parliament, made and passed in the said eleventh year of the reign of our said Sovereign Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the sixth day of May, in the said eleventh year of the reign of our said Lady the Queen, to wit, at the parish of Saint Thomas in the county of the city of Dublin within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to levy war against our said Lady the Queen, within that part of the United Kingdom called Ireland, in order, by force and constraint, to compel her to change her measures and counsels, and the said felonious compassing, imagination, invention, device, and intention, he, the said John Mitchel, then and there feloniously did express, utter, and declare, by then and there feloniously publishing a certain printing in a certain public newspaper called The United Irishman, of which he the said John Mitchel then and there was the proprietor, which said printing is as follows, that is to say [here the prisoner's speech at Limerick was set out, with the inuendoes, as in the first count], against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity. SEVENTH COUNT.-And the jurors aforesaid, upon their oath aforesaid, do further present that the said John Mitchel, after the passing of the said Act of Parliament, made and passed in the said eleventh year of the reign of our said Sovereign Queen Victoria, entitled An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the thirteenth day of May, in the said eleventh year of the reign of our said Lady the Queen, to wit, at the parish of Saint Thomas, in the county of the city of Dublin, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to levy war against our said Lady the Queen, within that part of the United Kingdom called Ireland, in order, by force and constraint, to compel her to change her measures and counsels, and the said felonious compassing, imagination, invention, device, and intention, he, the said John Mitchel, then and there feloniously did express, utter, and declare, by then and there feloniously publishing a certain printing in a certain public newspaper called The United Irishman, of which he, the said John Mitchel, then and there was the proprietor, which said printing is as follows, that is to say [here the article entitled " The Times on Rebellions," was set out, with the inuendoes as before.] And in another part of the said last-mentioned number of the said public newspaper, called The United Irishman, a certain other printing, which is as follows, that is to say [here the letter to the Protestant Farmers, Labourers, and Artizans pro ”. prisoner does not discover it in time, I think he may put the THE QUEEN secutor to his election on which charge he will proceed. I did it I did it J. MITCHEL. at the last sessions at the Old Bailey; and hope that, in exercising that discretion, I did not infringe on any rule of law or Government Crown and Securities Act. of the North of Ireland, No. II., was set out, with the inuendoes, as in the previous Indictment. counts], 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. EIGHTH COUNT. And the jurors aforesaid, upon their oath aforesaid, do further present 8th count. that the said John Mitchel, after the passing of the said Act of Parliament, made and passed in the eleventh year of the reign of our said Sovereign Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," on the sixth day of May, in the said eleventh year of the reign of our said Lady the Queen, at the parish of Saint Thomas, in the county of the city of Dublin, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to levy war against our said Lady the Queen, within that part of the United Kingdom called Ireland, in order, by force and constraint, to compel her to change her measures and counsels, and the said compassing, imagination, invention, device, and intention did then and there feloniously 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 his most evil and wicked felony and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the said sixth day of May, in the eleventh year of the reign aforesaid, at the parish of Saint Thomas, in the county of the city aforesaid, feloniously did publish a certain printing in a certain public newspaper called The United Irishman, of which said public newspaper he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [here Mr. Mitchel's speech at Limerick was set out, with the inuendoes, as in the first count.] And further, to fulfil, perfect, and bring to effect his most evil and wicked felony, and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the thirteenth day of May, in the eleventh year of the reign aforesaid, at the parish of Saint Thomas, in the county of the city of Dublin aforesaid, feloniously did publish a certain printing in a certain public newspaper called The United Irishman, of which said public newspaper he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [here the article entitled "The Times on Rebellions" was set out, with inuendoes, as in the first count.] And further, to fulfil, perfect, and bring to effect his most evil and wicked felony, and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the thirteenth day of May, in the eleventh year of the reign aforesaid, at the parish of Saint Thomas, in the county of the eity of Dublin aforesaid, feloniously did publish a certain printing in a certain public newspaper called The United Irishman, of which said public newspaper he, the said John Mitchel, then and there was the proprietor, which is as follows, that is to say [here the letter to the Protestant Farmers, Labourers, and Artizans of the North of Ireland was set out, with the inuendoes, as before], 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. NINTH COUNT. And the jurors aforesaid, upon their oath aforesaid, do further present 9th count. that the said John Mitchel, after the passing of an Act of Parliament, made and passed in the eleventh year of the reign of our said Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the sixth day of May, in the eleventh year of the reign of our said Lady the Queen, at the parish of Saint Thomas, in the county of the city of Dublin, and on divers other days and times, as well before as after, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to deprive and depose our said Lady the Queen from the style, honour, and royal name of the Imperial crown of the United Kingdom, and the said felonious compassing, imagination, invention, device, and intention did then and there feloniously 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 his most evil and wicked felony and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the said sixth day of May, in the eleventh year of the reign aforesaid, and on divers other days and times, both as well before as after, at the said parish of Saint Thomas, in the county of the city aforesaid, feloniously did publish divers printings in divers numbers of a certain public newspaper called The United Irishman, of which he, the said John Mitchel, was then and there the proprietor and publisher, containing, amongst other things, incitements, encouragements, advices, and persuasions, to move, induce, and persuade the subjects of our said Lady the Queen in that part of the United Kingdom of Great Britain and Ireland called Ireland, to fulfil and bring to effect, and to aid and assist in fulfilling and bringing to effect the aforesaid felonious compassings, imaginations, inventions, devices, and intentions; and also containing therein information, instructions, and directions to the said subjects of our said Lady the Queen, how and when the said felonious compassings, imaginations, inventions, devices, and intentions should and might be carried into effect, 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. TENTH COUNT.-And the jurors aforesaid, upon their oath aforesaid, do further present 10th count. that the said John Mitchel, after the passing of an Act of Parliament, made and passed in v. Crown and Charging two felonies. In THE QUEEN justice." That is the principle which has been acted on in every J. MITCHEL. case where the attention of the Court has been called to the subject. I admit it is an application to the discretion of the court; but the court has never refused to exercise its discretion in Securities Act. quashing the indictment where its attention has been called to the fact of two separate and distinct felonies being charged in the same indictment. That this is the practice appears from Rex v. Jones (2 Camp. 132), in which Lord Ellenborough says, "In point of law there is no objection to a man being tried on one indictment for several offences of the same sort. It is usual in felonies for the judge, in his discretion, to call upon the counsel for the prosecution to select one felony, and to confine themselves to that; but this practice has never been extended to misdemeanors." Reg. v. Flower (3 C. & P. 412), the same law is laid down, and in Reg. v. Smith (3 C. & P. 413), tried before Mr. Baron Vaughan, where the prisoner was charged in one count of the indictment with stealing two pigs, and in another with receiving them knowing them to be stolen, the prosecutor was compelled to elect on which count he would proceed and abandon the other count. In O'Connell v. The Queen (1 Cox's Crim. Cases, 475), Tindal, C. J., says, "It must, indeed, be conceded that the practice in the case of a prosecution for a misdemeanor so far differs from that in a prosecution for a felony, that there may be (though it is not usually the case) several counts for distinct offences contained in one and the same indictment. In that case the prosecutor is not always put to his election, as in the case of felony." I admit that there are some cases which seem to show that the court have sometimes acted contrary to this rule; but I think I shall show that there is a principle involved in this case which accounts for the deviation: in those cases there was but one offence charged in different ways; here there are two distinct felonies charged. The 3rd section of the Act, 11 Vict. c. 12, Indictment. 10th count. the eleventh year of the reign of our said Lady Queen Victoria, entitled "An Act for the better Security of the Crown and Government of the United Kingdom," to wit, on the sixth day of May, in the eleventh year of the reign of our said Lady the Queen, at the parish of Saint Thomas, in the county of the city of Dublin, and on divers other days and times, as well before as after, within the United Kingdom, feloniously did compass, imagine, invent, devise, and intend to levy war against our said Lady the Queen, within that part of the United Kingdom called Ireland, in order, by force and constraint, to compel her to change her measures and counsels, and the said felonious compassing, imagination, invention, device, and intention did then and there feloniously 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 his most evil and wicked felony and felonious compassing, imagination, invention, device, and intention aforesaid, he, the said John Mitchel, on the said sixth day of May, in the eleventh year of the reign aforesaid, and on divers other days and times, both as well before as after, at the said parish of Saint Thomas, in the county of the city aforesaid, feloniously did publish divers printings in divers numbers of a certain public newspaper called The United Irishman, of which he, the said John Mitchel, was then and there the proprietor and publisher, containing therein, amongst other things, incitements, encouragements, advices, and persuasions, to move, induce, and persuade the subjects of our said Lady the Queen, in that part of the United Kingdom of Great Britain and Ireland called Ireland, to fulfil and bring to effect, and to aid and assist in fulfilling and bringing to effect, the aforesaid felonious compassings, imaginations, inventions, devices, and intentions, and also containing therein information, instructions, and directions to the said subjects of our said Lady the Queen, how and when the said felonious compassings, imaginations, inventions, devices, and intentions should and might be carried into effect, 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. |