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true that every danger is most suc- was at hazard. The choice was offered cessfully encountered when encoun- us, either to yield to terrorism, to tered manfully and resolutely, it is forswear our allegiance, to renounce emphatically so of sedition. Check the advantages of British connexion, this agitation at once, when it assumes and submit to the self-constituted di. the aspect of sedition, and the evil is rectors of the country, or to yield our crushed in the bud; but truckle to it, properties to confiscation, and expose or foster it by extorted concessions, our persons to the pikes, vitriol, and and it extends with increasing rapi- rifle bullets, with which it was sought to dity over the whole society, and be- intimidate us. It was to us-to every comes uncontrollable. Yet such has loyal Irishman—and not to the Whig ever been the course of the present ministry, that this alternative was ministers down to within the last few presented; it is from this that we months, when the necessity for a con- have escaped by the recent vindicatrary course was forced upon them--- tion of the law; it is our own securiwhen they would themselves have been ty, not a Whig triumph (if such it can traitors to the Queen and Constitution be called), that we rejoice at; and we had they faltered but an instant: and confess that our satisfaction at being we cannot hesitate to say that by their rescued from the revolutionary vortex ill-conceived and unstatesmanlike po- is so great, that we could well afford licy, they have been the primary, to accord to our political opponents though the unintentional authors of any credit that they may claim for all the evils that have arisen. But the suppression of a rebellion which though this be so, is it not unreason- their own pernicious policy materially able and senseless in the highest de- contributed to produce. gree to treat the deeply-laid and well- We cannot, moreover, but deem it matured schemes for a revolution in most fortunate, that the ordinary Ireland as a question at issue between tribunals of the country were found the rebels and the cabinet ministers? sufficient to deal with the traitors and Whose property was at stake when their treason. The English press, Mr. Smith O'Brien declared that the both Liberal and Conservative, was estates of such of the Irish gentry as crying out for the introduction of did not side with the people should be martial law; the former on the ples confiscated, and transferred to the na- that the guilty would otherwise escape, tional exchequer? a declaration which the latter from fear that, in straining his letter to the Mining Company to procure a conviction, the adminis
. showed to be no empty threat. Whose tration of justice would be brought life was at stake when Mr. Meagher into contempt.
Of these two evils declared that if Irish nationality were the latter would be incomparably the refused by the crown when demanded greater. by a deputation from the parish delegates of Ireland, “then up with the " It is infinitely better," says Lord barricades, and invoke the god of Eldon, in prosecuting Horne Tooke, battles ;" or when Mr. Mitchel taught
“ for the liberties and the security of his readers that “ the plainest path to
the country that, in cases which juries liberty was the path of a rifle bullet on may think doubtful, five thousand men point blank to your enemy's heart;"
should be acquitted, all men knowing or when Mr. Duffy, in the Nation,
that if they engage in certain schemes reminded the servant-men of Dublin,
to certain extents, they are liable to be
tried, and have a verdict of guilty, ar that they should be organised, “as
not guilty, passed upon them, than that they had the keys and the arms of the
one man, about whose case any twelve citadel." Was it the person or the men have a fair doubt, at the conclusion property of Lord John Russell that should be found guilty, and the misery was imperilled by these atrocious of finding him guilty under that doubt doctrines ?-No; it was our own pro remains upon their minds." perties and lives—the properties and lives of the well-affected and the loyal, But we confess that we can hardly of every denomination, in this island,
suppose it possible but that the tribubut chiefly of the Protestant popula- nals of the country would fall, and detion, as being, before all others, the servedly so, into the very greatest conmainstay of order, and of the British
tempt, if they were thus, by delegatconnexion. This was the stake that ing their jurisdiction, to confess their
inability to take cognizance of the high- lordships a calm, anxious, and dispasest crimes known to the law ; neither sionate consideration ; and we have would we venture in a case of treason, to already said that, to the best of deprive the prisoner of the advantage our judgment, all such questions of those forms of procedure, and those were rightly determined. At the same established rules of evidence, which time, we cannot conceal from ourselves the wisdom of the law has prescribed that there was wanting that perfect for his protection from arbitrary pow- absence of any indication of bias, er, and for securing the due adminis- which is indispensable to complete the tration of justice. We cannot conceive judicial character. We would, perhaps, anything more dangerously unconstitu- have said, that in times of such high tional than the doctrine, that in a case political excitement, this was too much of high treason the authority of the to expect from any man; but that we supreme criminal court should lapse, remember having seen it so beautifully and that an arbitrary irresponsible illustrated in that eminent judge, tribunal should usurp its functions. Baron Pennefather, in the trial of When a fierce insurrection is raging in O'Dogherty, at the last commission in a country—when the authority of the Dublin: we may say, however, that civil magistrate is forcibly paralysed it falls to the lot of but few indeed. when the exigencies of the instant re- Judges are but men; and by their ofquire terror to be struck into the dis- fice and their station, their strongest affected, by the promptness and cer- prejudices and their nearest interests tainty of punishment—then, indeed, are enlisted in the cause of order. and not until then, may the military The guilt, moreover, of the leaders of tribunals be appealed to; resort to an open insurrection is always unthem can only be justified by avoidably known to every one before the necessity of the case, by a they are put on their trial where it is cessity so imperious as to leave no to be legally established ; so that it is choice between them and anarchy- not to be wondered at, although it between a military tribunal, and no were much to be desired that it had ribunal at all ; but to introduce it in been otherwise, that not only the deothercases would be sheer tyranny. meanor of the learned judges at the
Of the proceedings themselves at late trials, but their charges to the Clonmel it is now our duty to speak; juries, too plainly evinced the forebriefly, indeed, as our time and space gone conclusion of guilt which they will alone admit of. These trials had arrived at in their own minds. Of have now become memorable in his- a corrupt judgment, of an unjust tory, and the part which was taken charge, any one of these eminent by the several actors in them will be judges is utterly incapable; but this canvassed and discussed when the unconscious or uncontrolled indicawriter and reader of these pages will tion of bias towards the crown (or rahave long passed from this troubled ther towards the public at large, which scene. Of the learned judges who is represented by the crown), and presided at this commission, it is im- against the prisoner, may possibly possible not to speak highly. The disspirit a prisoner's counsel (with eminent functionary who presided, Whiteside and Butt this was of course the Lord Chief Justice, displayed impossible); but it must certainly inthroughout the whole of those pro- fluence a jury.. The charge of the ceedings, that matchless judicial abi- Lord Chief Justice, in Mr. Meagher's lity, that clearness of judgment and case, is in this respect peculiarly obsteadfast resolution, for which he is so jectionable—it is emphatically the eminently characterised ; and he was speech of a crown counsel. Our most ably supported by his learned space does not admit of our exemplicolleagues : nothing could be clearer fying this by passages from the charge, than their lordships' several charges ; nor indeed would it be easy to do so, and, so far as our judgment extends, without quoting the entire. We do nothing could be sounder than the not complain of a single misstatement various decisons which, from time to of fact, nor of the slightest strained time, they were called upon to pro- inference, beyond what the law alnounce. We are satisfied that every lowed ; of this the distinguished judge point, which was raised on behalf of is wholly incapable; neither do we comthe prisoners, received from their plain of a single misapplication of any principle of law; but we do say, that vict Mr. Meagher, then, of contemit is impossible to read that speech plating an insurrectionary movement, through, without feeling convinced of exciting to it, and of aiding in it, that it is framed with the most con- several speeches were given in evisummate skill, so as to put the case in dence against him—one in March, to the most damaging point of view the members of the Confederation, in against the prisoner; that the learned which he spoke of many of the Eurojudge, with that self-reliance for pean states having seized their rights which he is so remarkable, being him- with armed hands, and “ beside them self entirely convinced of the prisoner's we ambition to take our place ;” anguilt, was determined to enforce the other delivered on his return from consame conviction on the jury, and that gratulating the French republic, on by doing so, he gave good grounds for presenting to the Confederation the the temperate rebuke which was made flag which he brought from Paris; and by Mr. Meagher, namely, that he did the third, after the conviction of Mitnot put the case to the jury indiffe. chel, when he declared that it had rently and impartially, as between been his determination to have rescued the crown and the subject. It is him by the agency of the clubs, and with pain that we feel ourselves apologizes for having altered his purconstrained to make these stric- pose, on the grounds that they were tures on the charge of the learned not sufficiently prepared to encounter judge ; but it is beyond all things ne- the force that would be opposed to cessary to the due administration of them, and that such a procedure would justice, that judges be not suffered in- bring ruin on their cause. His speeches directly to invade the province of the throughout the country, inciting to jury ; and it is an invasion of the rights insurrection, in company with Mr. and responsibilities of the jury, when O'Brien, up to the day previous to the the judge is anything but indifferent actual levying of war, were also given between the crown (or, as we said be- in evidence against him. He is proved fore, the public at large) and the pri- to have been in the company of Mr.
O'Brien, and to have travelled with We must however, guard against him, after the affair of Killenaule; being supposed to cavil with the find- and Mr. Lamphiere, a most respecting of the jury in Mr. Meagher's case, able witness, proved that the parties as some persons have done. On the agreed to separate in order to raise contrary, taking the doctrine of con- the flame in different parts of the counstructive treason to be now settled try; and it is further proved that law, Mr. Meagher was as clearly guilty forthwith they did separate. We pass as Mr. O'Brien or Mr. M.Manus. over altogether the evidence of DobMr. Meagher was indicted for levying bin, the spy, as from its many inaccuwar at Killenaule, Mullinahone, Far- racies it is not likely that the jury atrinrory, and Ballingarry. That war tached much weight to it; but upon was levied at these places by Mr. those established facts it was then for O'Brien is beyond the possibility of a the jury to determine, whether Mr. doubt; but Mr. Meagher was not Meagher's absence from Ballingarry proved to have been at any of these was in consequence of his abandonplaces, and the attorney-general was ment of the traitorous project with obliged to sustain bis case by proving which he was connected, and which an incitement and conspiracy on the he had so far promoted—if so, he part of Mr. Meagher to the levying of would be entitled to their acquittal. war; for as in treason there are no Is it possible, on reading those speeches accessories, the inducement to commit and taking those unquestioned facts, any act of treason, which act is after- to hesitate for one instant in concurwards committed, makes the person ring in the verdict? It is a misappreexciting to such act a principal. If hension to call this bit-by-bit evidence Mr. O'Brien had been concerned in cumulative treason–a doctrine which any ordinary felony, Mr. Meagher is justly condemned, and which has would have been regarded by the law been long exploded—a doctrine which as an accessory before the fact ; but was encountered in Archbishop Laud's in treason, such inducement renders trial, by the question, "whether two him a principal. Such has long been hundred black rabbits could ever make the known and settled law. To con- one black horse ?" No; it is cumu
lative evidence of intent-it is cumu- jected insurrection. Now, the duties lative evidence of incitement to levy- of a public prosecutor are perfectly ing war ; and such incitement being obvious. Whether in state prosecuheld equivalent to the actual levying tions or otherwise, it is his duty fairly, of war, Mr. Meagher was justly and temperately, and dispassionately, to legally convicted.
make the case for the crown, taking This verdict in Mr. Meagher's case, care at the same time to hold back and a doctrine of law laid down by nothing, whether witness or evidence, Mr. Justice Moore in the trial of which could be of service to the priO'Donohue, have, so far as we have soner, or which could tend to throw observed, been the chief subjects of any light whatsoever on the investigacavil in connexion with these trials. tion. It is not for him to catch a The opinion expressed by Mr. Justice verdict in a criminal case by any supMoore was in reply to a question from pressio veri—it is his duty to open a juror. He told the jury, that if a every subject connected with the case, person aids and assists another in any and to give every facility in his power act of rebellion or treason, even though to elucidate the truth. In a state he be ignorant of the traitorous intent prosecution he is, moreover, unquesof the person whom he so assists, he is tionably bound to disclose to the pubnevertheless guilty of treason. The lic the full extent of the danger to reason of this rule, which we take to which they have been exposed—to be a settled principle of law, was thus unravel the conspiracy in all its intriclearly laid down in Purchase's a hun. cacies. He is not to take upon himdred and forty years ago :
self to select certain members of society
for prosecution, and to tamper with or “If a man knowingly joins with others
to make terms with others, who are in breaking the peace, if in that breach equally guilty. His business is to exof the peace they were rebels, he is so pose the machinations of all who plot too, whether he knew them to be so or against the state, without any discrinot. In rebellions it is frequent that mination on his part ; that we may few are let into the real design, but yet know who really are our enemies all that join in it are guilty of rebellion.
from what quarter danger is to be It is not for a man to fight for persons
apprehended_what is the extent of actually in rebellion, and he meant
the evil which is to be feared, and indeed to break the peace, but did not design high treason: he should have
that all the guilty may be alike subthought of that before he joined those jected to the penalty which the law he saw engaged in an unlawful act. If has appointed for their crimes. Any he will knowingly break and contemn other course than this may be suited the laws, he must be content to suffer to the minister of an arbitrary despot, the same punishment with those he had but is wholly unworthy the public joined in breaking them.”
officer of a constitutional monarch.
If, then, the attorney-general be The doctrine as laid down by Mr. guilty either of the suppression of eviJustice Moore in O'Donohue's case, dence, or of the screening of criminals was in strict accordance with this rule. with which he is charged, he has grossly
The law-officers of the crown, and misunderstood and perverted the duthe government generally, have, in- ties of his office. Now, we consess deed, from the commencement, been that, reviewing the whole case, and the incessant objects of the fiercest the evidence which was adduced, disinvective from all quarters for the passionately, we see no grounds whatmanner in which they have con- soever for charging him with the first, ducted these trials. All have joined while we must say that there is a in inveighing against them-Roman strong case of suspicion, but nothing Catholic as well as Protestant, Con- more than suspicion, as regards the servative as well as revolutionist. other. We see no reason to suppose that They have been accused with detaining any of the documents contained in Mr. papers found in Mr. O'Brien's trunk, O'Brien's portmanteau would have in which would have served him on his the slightest degree aided him in his defence; and they have been charged defence, for his actions, his avowals, with attempting to screen the Roman and his letters, which were proved Catholic priesthood, whom it is stated against him, were so wholly unequivowere deeply committed to the pro- cal, as not to leave the slightest shaVOL. XXXII.-NO. CXCI.
dow of a doubt as to his guilt. We that they were deceived by the cannot suppose the possibility of any priests. Mr. O'Brien's friends and evidence being adduced which could from that quarter, nothing but truth present them to the jury in any other can proceed) are loud in their deaspect than that in which they were nunciations of the priests and their established by the evidence, which could treachery. If we were to believe alter their obvious meaning or explain the evidence of the informer, Dobthem away. Nor do we recollect that bin, Mr. Duffy wrote from Newgate this complaint was made by Mr. O'Brien to recommend three priests, Messrs. himself or by his counsel, as it would Kenyon, O'Malley and Hughes, to most assuredly have been, if well be elected as members of what he founded. As to the charge of screening termed the war-directory. Certain it the Roman Catholic priesthood by the is that the balloting papers which government, there is certainly, as we
were produced, and found with Lalor, have said, a strong case of suspicion- contains eight votes for Father Kenyon, one so strong as imperatively to call be the occasion on which there ballotfor an investigation by a Committee ting papers was used what it might. of the House of Commons. It is not Again, when Mr. Whiteside asked at all our opinion that the Romish one of the witnesses if there were priesthood, as a body, were in con- not many documents found in Keely's nexion with this insurrection. We do house from Roman Catholic clergynot forget, for example, that Mr. men, from some of the highest dignitaMeagher was branded as an infidel by ries of the Roman Catholic Church," the Rev. Mr. Cuddihy at the Water- the solicitor-general objected to the ford election, and that Mr. O'Brien question; and then we find the folwas pelted at Limerick by the Old lowing extraordinary part is taken by Ireland Repealers. We incline to a priest at the attack on the police think that the truth of the case is at the commons of Ballingarry. We accurately represented in an anony- take it from the evidence of Mr. mous report of a conversation with Trant, who commanded the party of one of the most distinguished leaders of police, as it was elicited on the trial of the late abortive attempt, which has Mr. M.Manus. been circulated as genuine in the newspapers, and never contradicted.
“Mr. Trant re-called and examined The rebel leader is there reported to I remember the policeman coming a sehave stated that, “we (the rebels) cond time with Father Fitzgerald ; the have a sufficient number of the Ca- latter gentleman came to the window, tholic clergy with us to render nuga- and said his mission was to make peace; tory the opposition of some. In he said the other party would be satisWaterford, Tipperary, Limerick, and fied if we surrendered our arms, and Cork, we can rely on numbers of them would let us depart in safety; I replied joining us; and when we have four or that we would never surrender our arms five with us, we shall be able to per
but with our lives ; he then remarked suade the people that the opposition
that they would burn the house over us ; which may be given us by some stupid meaning the children ; he then said you
I replied that I had five 'hostages, old sordid priest, is dictated by selfishness, not religion. Oh! we are
have no provision,' and I said we could
fight and fast forty hours, and that sure of all the really good priests, and if we fell, there would be shortly suffi. with them we shall be able to overbear
cient men to avenge our fall, and not the rest. They are pledged to us." leave a house standing in the country; This conversation we think it most I also remarked that we were doing probable represents the true view of no harm, but that if he could protect the case. Ît certainly accurately re
the man he had with him, he could propresents the expectations of the insur- tect us; Father Fitzgerald returned gents on whatever it may have been again in a few minutes, and asked me that these expectations were founded.
for a pallet for a dying man; I first reThere are various circumstances which
fused, saying, I wanted everything to
fortify the house, but I afterwards gave strongly indicate that many of the Ro
one ; he then asked permission to take mish priesthood were abettors of this
some poor dead and dying men away, and insurrection. Such of the party as are not checked by religious compunction,
I gave the permission; some unarmed
persons then came out from shelter, make no scruple in openly asserting and I saw them lift up one man; I saw