Mr. T. B. C. Smith
(Attorney-General for Ireland) resumed the Adjourned Debate, and said, the hon. and learned Member for Worcester (Sir T. Wilde) having thought it right at the close of the debate that morning to bring forward charges against him with respect to the mode in which he had conducted the recent prosecutions in Ireland, and having gone the length of imputing to him, not perhaps in express terms, but by insinuation, matters reflecting personal dishonour on himself, he trusted he should be permitted by the House to lay before them his defence. The course which he meant to adopt was this: He had not, unfortunately, had the opportunity of hearing the whole of the debate. He had, however, heard a portion of it, and as some matters had been adverted to by other hon. Gentlemen which had not been noticed by the learned Member for Worcester, he thought the fair course for him to adopt was—to go into the details from the commencement to the close of the case, to trace every step that he had taken in the conduct of that prosecution, and to state the grounds on which he came to the conclusions he did on every branch of the case. The earliest period to which it was necessary to advert, was the period when the informations were sworn; he believed it was about the 15th or 16th of October. The first circumstance which occurred after the informations had been sworn was one of the most extraordinary nature, which was adopted by one of the defendants—a circumstance to which he thought it necessary to advert, because, to a certain extent it regulated the course which he (Mr. Smith) adopted with re- 1332 spect to one of the applications subsequently made to the Court of Queen's Bench. What he alluded to was this:—A few days after the informations were sworn there was not a street in the city of Dublin in which the principal witness on the part of the prosecution was not placarded as a spy and a convicted perjurer. And to give the House an idea of the course which had been pursued by those who had declaimed so much against the administration of justice in Ireland, he would state that one of those placards was headed thus:—"Substantiated charges, of wilful and malicious perjury of of Hughes, the Government spy and informer, against the Liberal press." That gentleman had been employed over and over again as a shorthand-writer before the Committees of that House, and he had given his testimony at the late trials in such a manner that Mr. O'Connell, in his address to the Jury, passed an eulogy on the candour and fairness with which his evidence had been given. This was the Government spy—this was the Government informer, and the convicted perjurer. He noticed this at the outset of the case, because it was his opinion, that there never was such a defence as had been set up in this case. Mr. Hughes was the roan who, for the purpose of defeating the ends of justice, was proclaimed and placarded on all the walls of Dublin to be a convicted perjurer. This course being adopted at the outset, this attempt having been made to prejudice the prosecution before the bills of indictment could have been sent up to the Grand Jury, informations for perjury were tendered to the Justices in Dublin against Mr. Hughes on the 20th of October; and the extraordinary course adopted, was that of attempting to turn the accuser into the accused, and to enable those who were charged with crime to come forward as accusers. The divisional Justices, in the discharge of their duty, refused to receive those informations. Four days afterwards the Commission was opened in Dublin. He would state, for the information of the English Members, that the Commission Court in Dublin was held by two Judges of the land, and at that court the criminal cases arising within the city and county were disposed of. The parties who had thus preferred an information against Mr. Hughes had an opportunity then of preferring an indictment if they 1333 had thought proper. They, however, never went to the Commission Court, but allowed it to pass by without preferring any indictment against Mr. Hughes. On the 3rd of November, the second day of term, the bills of indictment against Mr. O'Connell and others were laid before the Term Grand Jury; and on the 6th of November, the bills being still before the Grand Jury, the course that was adopted was this:—An application was made on the part of the defendant Mr. Barrett, to the Court of Queen's Bench for an order in the nature of a writ of mandamus, to compel the divisional Justices to receive the information which had been tendered on the 20th of October. An opportunity was thus afforded to Mr. Barrett's Counsel to state publicly the charges of perjury against Mr. Hughes. The object being, that the statement should be published and should go before the Grand Jury, while the bills against Mr. O'Connell and others were pending and undisposed of. The question which Mr. Justice Perrin put to the counsel was this,—"Why did you not go to the Commission?" The answer was,—"Because we must have produced the original information, and an order of this Court was necessary." The reply they got from the Court was this—"Mr. Justice Burton was one of the presiding Judges, and if you had asked him he would have issued an order for the production of the original information, and there was nothing to prevent you from tendering the information before the Grand Jury." That would not have answered their purpose. The bills, as he was justified in saying from the confession of the defendants themselves, who had acknowledged the upright conduct of the witness, would have been ignored. It would not have answered their purpose, they therefore adopted the course they did. They were then told,—"The Court will not grant this order in the nature of a mandamus; send up the bills of indictment, if you please, before the Grand Jury now sitting." They were obliged to accede to the suggestion on the part of the Court, and from that hour to the present no bills of indictment had been preferred against Mr. Hughes either in that Court or in any other Court in Ireland. Such was the course adopted by those declaimers for the fair administration of justice. Such was the course of proceeding adopted 1334 against a gentleman whose character they now acknowledged themselves to be without reproach. The next step he should advert to was the period when the bills were found. The bills were found on the 8th of November. On that day the bills of indictment having been brought down at a late hour in the afternoon, four or five o'clock, the defendants required copies of the indictments. They were entitled to copies under the statute of the 60th of George III., and free of expense. They applied for eight copies of the indictments, and, fortunately, eight copies were ready and handed to them, it having been anticipated they would make such a claim. Having got the eight copies, it then suggested itself to the minds of some of the attornies for the defendants, the day but one after that on which the copies were served, that; possibly, in such a long indictment, there might be a clerical error. They, therefore, applied for liberty to compare the indictment with the original, with the view of founding an application for a new rule to plead, if there should be any error. Fortunately, sufficient care had been taken to prepare the copies. The eight copies were all correct, and the first step in delay failed. Upon the 9th of November, the four-day rule to plead was entered under the 60th of George HI. Delay being still the object, in order, if possible, to avoid pleading the general issue in the course of that term. The next proceeding was to serve nine notices of motion, on the 11th of November, which he had in his possession and could produce, to set aside the rule to plead; because true copies of the indictment had not been furnished, pursuant to the Act of Parliament, the names of the witnesses endorsed upon the bill of indictment not having been endorsed upon the copies. It occurred, however, to the parties who framed those notices that it would be very difficult to persuade the Court that the application was not made for the purpose of delay, because it would have been impossible to explain why the names of the witnesses were important for the purpose of pleading, though they might have been for the trial. Accordingly, three of the parties served other notices, simply asking for the names of the witnesses, endeavouring to keep out of the view of the Court what their object was. Had they succeeded on three latter notices, they would then have had recourse to the 1335 other nine notices. He considered it necessary and proper, as he knew those proceedings were taken for the purpose of delay, and for no other purpose whatever, to oppose that application, and to argue before the Court, as he did successfully, that the names of the witnesses were not a part of the indictment; and, indeed, no lawyer could say that they were, for this obvious reason, that the names of witnesses were never entered on the record when it was made up. He successfully resisted that application, which he believed to have been made for the purpose of delay. That attempt having failed, another application was made, to set aside the rule for pleading, because the caption was not included in the copy of the indictment and the question was, whether that formed properly a part of the indictment. The Court ruled that it did not; and that there was no instance in Ireland where it had ever been furnished. It was argued on the part of the traversers that the caption was a part of the indictment. He referred the Court to Lord Hale's Pleas of the Crown, and to a case which occurred before Lord Mansfield, and established the fact that the caption was not a part of the indictment; and the defendants were, under the Statute, only entitled to a copy of the indictment. All he sought for was to avail himself of the usual practice of the Court. On that occasion one of the Judges differed in opinion from the rest. Mr. Justice Perrin thought that the caption formed part of the indictment; but, at that time, he had overlooked a passage in Hale's Pleas of the Crown, and he afterwards said, he was not aware of the opinion laid down in that authority. Though Mr. Justice Perrin was dissentient, the majority of the Court were with him (the Attorney General) and decided upon the question according to the views he had advocated. The next step that was taken, was to tender pleas in abatement; there were either eight or nine, he did not remember which, because he did not know whether Mr. Tyrell was alive or dead at the time. The day on which those pleas in abatement were tendered was Tuesday the 14th of November, and they being tendered, it was sought to raise this question, that the indictment ought to be quashed, because the witnesses had been sworn before the 1336 Grand Jury agreeable to the Statute 1st and 2nd of Victoria, and not in open court. Those pleas were tendered for the purpose of delay only, and therefore he resisted them on the ground that a plea in abatement ought to be tendered at the arraignment of the party, or within four running days after arraignment; but the four days had expired when those pleas were tendered, and he felt it his duty, knowing that those pleas were merely dilatory, to resist them as being tendered at a period of time not warranted by law, and put in for the purpose of preventing him from pressing the traversers to put in their plea of guilty or not guilty in Michaelmas term. The Judges held, he admitted, that those pleas were tendered in time; and accordingly, on the following morning, the 15th of November, the day upon which the point was argued before the Court, the pleas were received, and he forthwith without a moment's delay, took demurrers to every one of those pleas. It must suggest itself to the minds of every person that the parties had had five days to take their course, to prepare those pleas and to determine on their validity, and to anticipate every objection and argument against them, whereas he had but a short time for consideration, yet they persisted in asserting that they were entitled to four more days to determine whether they would abide by their pleas or not, and file joinders in demurrer. At the end of these four days, which was on the 20th of November, he applied to have the demurrers fixed for argument on the following morning, it being, he might say, essentially necessary that they should be argued at that period of the term, and disposed of without delay, because if he succeeded in showing that they were invalid, he could enforce the plea of the general issue in the Michaelmas term. But the traversers objected to argue the demurrers, and applied for another four-day rule to compel the Crown to join in the expense of paper books, and the right hon. and learned Member for Dungarvon, who was counsel for one of the traversers, at the same time insisted upon his right to bring on another case, the case of Lord Hawarden, in which he was also engaged. Every attempt was made to resist the arguing of those pleas, and to create delay. He (Mr. Smith), however, succeeded in having the argument fixed for the following morning; and he would ask any un- 1337 prejudiced person not intending to find fault with a political adversary, but with a public officer, whether he had done anything that he was not entitled to do in resisting unnecessary delays connected with the trial. The case was argued on the 21st of November, and the Court unanimously decided that the pleas in abatement were invalid, and the demurrers taken on the part of the Crown were all allowed. He was able to establish to the satisfaction of the Court that Chief Baron Woulfe and Mr. Justice Moore, immediately after the passing of the Statute of the 1st and 2nd of Victoria, had decided in the same way. From that time, the invariable practice had been to swear the witnesses before the Grand Jury, and not in open Court. Had he taken the other course, the traversers would have immediately put in pleas of abatement, that he should have sworn the witnesses before the Grand Jury which pleas would have succeeded, because he would then have departed from the usual practice, and the indictment would have been quashed. Upon the authority of "The King against Johnston," in East's Reports, he called upon the Court to give an immediate judgment of respondeas ouster; but that was opposed, as well as every other point, by the traversers. At length, on the 22nd of November, he extorted from them the plea of not guilty. He did not deny the right of Members of that House to call him to account, as he was a public officer, responsible for his public conduct; but he appealed not only to that House, but to the British public, whether he took any step from first to last in this business which it was not his bounden duty to take, so long as the parties resisted the law and refused to put themselves on their country, and to allow the question to be investigated, whether they were guilty or innocent of the charges made against them. He then had the proper notices served to fix the trial for the 11th of December, under the Statute of the 1st and 2nd of William IV., which authorised the Court to fix a trial at bar in the vacation. The traversers then put in affidavits, and long affidavits, which he received at a late hour of the night, praying for delay upon two grounds—first, that from the magnitude of the case they had not had time to prepare for trial; and, secondly, that the Special Jury List for the year 1843 1338 contained but 388 names, of which there were between fifty or sixty Roman Catholics, several of whom were not enabled to attend in consequence of one disqualification or another; and that there were only twenty-five Roman Catholics in the lists for 1843 capable of serving, and therefore the traversers could not have a fair and impartial trial on the 11th of December. Now that Jury List was made out in October, 1842, long before any prosecution of this kind was contemplated. And that Jury List had served all the purposes of civil and criminal trials up to the period of the affidavit having been filed without the slightest complaint being made by any single human being. That list had been made out when there was no impending trial, and was up to that time never complained of. He thought he might have succeeded in opposing the motion of the traversers upon that occasion, upon the ground that it was a list of which they could not legitimately complain. Yet, though he had been charged by the hon. and learned Gentleman (Sir T. Wilde) with desiring to obtain a verdict per fas aut nefas, he consented to a postponement of the trial. He pledged his word of honour that he did so solely upon the ground that the Jury List was complained of. He thought, then, that so far as he had gone he had cleared himself to the satisfaction of all men, at least of those whose political animosity did not pervert their better judgment and make them personally hostile, from the charges brought against him; he thought, up to this point, he had convinced every impartial person that he had acted fairly. The trial having been postponed with his consent until the 15th of January, he objected to any further postponement, as the Special Jurors List for 1844 would be in force on the 1st of January. But he certainly did not consider that the jury list would take so long to prepare, and he was under the impression, that the clerks did not use so much diligence as they ought to have used. Four days' notice for striking the Special Jury was necessary, and, according to practice, the Jury must be summoned six days before the trial; therefore it was obvious that there was no time to lose—and the 26th of December was, I believe, the last day for issuing the summonses. But at that time the Sheriff had not received the Jurors' book from the clerk of the 1339 peace. However, on the 29th or 30th of December, the lists having been copied into the Jurors' book by the clerk of the peace, the Book was handed to the Sheriff. Under the Act of the 3rd and 4th of William IV., it was the duty of the Sheriff to make out within ten days, a Special Jury list, from the Jurors' book. According to the Sheriff's statement, he did attend before the proper officer on the 3rd of January, with the Special Jury list for 1844. One of the charges brought against the Crown was, that according to the statement of Mr. Mahony, when application was made to the Crown solicitor to consent that the clerk of the peace should give copies of the Special Jury list to the traversers, Mr. Kemmis did not consent. But why? He was most desirous to have a copy of the List, and he was totally ignorant of the Jury list until nine o'clock on the night of the 3rd of January. But he considered, and considered rightly, under the Act of Parliament, that the Jury list and the Jurors' book, were not complete until they were in the hands of the Sheriff, who was the officer to make out the Special Jury List. And yet the Crown had been called upon to consent that the Clerk of the Peace should furnish a copy of the Special Jury List which could not by law be made out by any person but the Sheriff; and the Crown knew, that if such a list had been furnished, and there had been the slightest clerical error in the name or address of any of the Jurors, there would have been beyond doubt an application to the Court to postpone the trial. It would have been said, if such a list had been furnished—" Here is a copy of the Special Jury list, furnished with the consent of the Crown, and how can you ask us, the traversers, to go to trial with such a Jury list which does not correspond with that made out by the Sheriff?" Although Mr. Kemmis was most anxious to obtain the List himself, still he could not enter into any consent, in consequence of knowing the sort of men they had to deal with. He did not mean the counsel for the traversers; he did not mean the attorneys for the traversers, but Gentlemen acquainted with legal proceedings know that there are in every case of that kind, persons instrumental in getting up the defence who are constantly taking steps which are disavowed by their principals. He apprehended, that if he went out of the precise words of the Act of Parliament, and con- 1340 sented that they should have a copy of the Special Jury List, furnished by the Clerk of the Peace, who had no authority to make it out, and there should be a mistake even of a Christian name in it, it would be the foundation for dilatory proceedings, and he had sufficient experience of the construction—the malignant construction—put on every act of his, to feel it necessary to adhere to the strict principles of law, unless he could be perfectly safe, as where by his own voluntary act he postponed the trial at the request of the traversers in order that the case might be tried by a jury selected from a list revised under the inspection of their own attorneys. Now, what had been the nature of that revision? What was going on in Ireland at that period? Why that which every honourable and fair man must visit with the strongest feelings of reprobation. He (Mr. Smith) held in his hand copies of printed notices signed by Mr. Mahony, the attorney for several of the defendants, whose names were printed at the head of the notice. One was a notice calling upon every Repealer to take measures to place his name upon the Special Jury Panel. Of this he did not complain; but he did complain that at the same time notices were served, notices signed by the same Mr. Mahony, upon the most respectable Conservatives of the city of Dublin, telling them, that if they did not appear in the Revision Court to support their right they would of necessity be struck off the List. And they did this not with a view to strike off unqualified persons, for those Conservatives on whom the notices were served were as well qualified as any Jurors in Dublin, but to remove every person politically opposed to them, and to pack the Jury with men entertaining Repeal opinions. Yet these were the persons who declaimed about the unfair Jury, and unbiassed administration of justice. Knowing all these proceedings although he was entitled to go to trial with the Jury Panel of 1843, although he felt that his conduct might probably not be approved of by the party with which he was usually connected, he did not from a desire to force a conviction per fas aut nefas, but from a desire to give what the traversers asked for, as necessary to a fair trial, he did consent to a postponement of the trial, in order that the Jury might be struck from the Jurors' Book for 1844. As it ultimately turned out, 1341 notwithstanding the omission of the names, there were 188 Catholics on the Special Jury List for 1844, and only twenty-five on that for 1843, and yet he was made obnoxious to the charge of wishing to convict the defendants without the slightest regard to the mode in which the convictions were obtained. Of this, at least, he was sure, that he should obtain a verdict of acquittal from a British House of Commons, and from the public. The next proceeding was on the 3rd of January, when the parties attended before Mr. Bourne, the Clerk of the Crown. The proposal was then made by the defendants' attorneys that the striking and drawing of the Jury should be adjourned and that persons should attend at the Sheriff's office on the part of the defendants, and on the part of the Crown, and should get copies of the Special Jury Panel. This had been consented to by both parties, and the Crown Solicitor did not see (as was stated in the affidavit of Mr. Kemmis) the Special Jury List until nine o'clock on the evening in question. On the 4th of January the parties respectively attended before the proper officer, and on that occasion Mr. Ford appeared as the attorney for Mr. O'Connell, and Mr. Cantwell appeared also for the other traversers: and he admitted, they handed in a protest against the officer proceeding to draw the forty-eight names by ballot, alleging, that sixty-five names had been omitted from the Panel, of which fifteen were Roman Catholics. Now, the Crown Solicitor, as he stated in his affidavit, was utterly in ignorance of what had taken place in the revision of the List of Jurors. He had most properly required the officer to proceed to draw the forty-eight names, and accordingly in the presence of the several and respective attornies for the traversers or defendants, and under the provisions of the Jury Act, 717 numbers were put into the ballot-box, and in the presence of Mr. Ford and Mr. Cantwell, Solicitors for the traversers, whom he believed actually shook the box, the list of forty-eight names was drawn, and, in pursuance of the provisions of the Act, the traversers got a copy of that List, and there was an adjournment of twenty-four hours, in order to allow each party, the Crown and the traversers, an opportunity of determining and deciding upon the names they should respectively strike off. On this part 1342 of the case, he must say, that a great misapprehension had prevailed as to the proceeding which the statute provided in respect of Special Juries, and the mode in which they were (as it was technically called) struck. He, in the first place, denied that the striking off by each side from a Panel of forty-eight names of twelve names was to be considered at all in the nature of a challenge. The Legislature never so contemplated it. Forty-eight names were drawn by ballot out of a List of 717, and the Legislature required, and did not leave it optional, on the contrary, it was imposed as a duty that each party must strike off twelve names, and thus that the List should be reduced to twenty-four. Was it the policy of the Legislature that the parties who struck off the names from the Jury List should be called upon to state the reasons upon which the names objected to were expunged? If such a practice were pursued, it would place every Special Juryman in a most unpleasant position, inasmuch as an objection to his name on the Panel would lay before the public the reasons which induced and led to its removal; but he averred, with the utmost confidence, in the presence of many distinguished members of the English Bar, that it never had been in the contemplation of the Legislature that the privilege to "strike off" from a Special Jury List should give advantage to one side more than another. The representatives of the Crown in Ireland have not called upon the other side to account to them or the public why they had struck off the names of the twelve gentlemen whom they, in the exercise of the powers and discretion reserved by the Act of Parliament, had struck off. It had been said, however, that in a criminal case it was the privilege of the traversers to call upon the Crown to show cause as to each of the twelve names they chose to strike off from the Sheriff's Panel. Up to this hour, such a construction of the Act of Parliament had never been heard of. On the 12th of January, term having commenced, emotion had been made in the Court of Queen's Bench in Ireland,—a motion of which the hon. and learned Member for Worcester had spoken, that the Panel of the Special Jury should be quashed, set aside, and cancelled. And what was it that the hon. and learned Member for Worcester felt himself justified in stating the other night? Why, that if an English Attorney General 1343 had been called upon to consent to the quashing of that Jury List, he would have had sufficient regard to his own honour and character as to have induced him to consent to the application. The hon. and learned Gentleman had not condescended to tell the House what was to be done as soon as the List was quashed. He charged the hon. and learned Member for Worcester, with practising a delusion upon the House and the country, when the hon. and learned Gentleman had not condescended to communicate to the public what in his judgment would be the consequence of such a proceeding with reference to the Jury List, as last night had been recommended by the hon. and learned Member. Now he would take that opportunity of explaining to the public and the House the consequences which would have arisen from the assent which it had been said the Law-officers of the Crown ought to have given to the proposed alteration of the jury list, and in stating those consequences, he begged to tell the hon. and learned Member for Worcester that honour and integrity of purpose were not confined to English Law-officers, and that there was as much honesty and integrity to be found amongst the members of the Irish Bar as with the best of their brethren in England. He should now explain to the House and the public that which the hon. and learned Member for Worcester had not found it convenient to endeavour to explain. On what principle was it that he ought to have consented that the Panel should be quashed? The Court of Queen's Bench in Ireland, with Mr. Justice Perrin on the bench, a lawyer who had been the Attorney General of a Liberal Government, concurred in the expressed opinion of the rest of the Bench, that the Jury Panel ought not to be quashed; but what would have been the consequence? The Panel could not have been quashed except on the ground that the Special Jury List of 1844 was a nullity. The Court of Queen's Bench in Ireland, however, decided otherwise, and that Court held that no right existed to interfere by a mandamus with the Recorder's Court. It had, however, been said that he, as Attorney-General, ought to have consented to an amendment of the Special Jury List by adding the omitted names. Did those who said so remember that there were other causes to be tried besides that of "The Queen v. O'Connell and others?" He asserted this as a legal pro- 1344 position, which, though it might not be assented to by those Whig aspirants to office with whom the hon. and learned Member for Worcester might gossip in Westminster Hall, would meet with concurrence from all acquainted with the laws of England who were unbiassed by party considerations, that he could not legally, properly, and constitutionally, assent to the addition of a single name to the Jurors' Book; if it were not so it was somewhat singular that a leading counsel for the defence in Ireland should have exhibited indignation because he imputed to that Counsel the expression of such an opinion. But what would have been the consequence of adopting the suggestion thrown out last night by the hon. and learned Member for Worcester, as to quashing the Jury Lists? Why it would have interfered with every cause to be tried in the city of Dublin. Again, the 11th section of the Jury Act provided—That in the event of any failure in the preparation of the Jury Panel for any particular year, all causes are to be tried by the Jury List of the year before.And what then was the proposition of the hon. and learned Member for Worcester? Why, that he (Mr. T. B. C. Smith) should have quashed the Jury Panel containing the names of 188 Roman Catholics, and have tried the cause out of a Jury List comprising only twenty-five Roman Catholics. Or, as a further alternative, he must have consented to the postponement of the trial of the case of" The Queen v. O'Connell and others" until the year 1845. This was the course which it had been said he ought to have adopted, and it had also been urged that an English Attorney General would have had sufficient regard to his own honour to adopt. If the House would not take his word on the point, it would not hesitate to take that of Mr. Justice Perrin, who said:—I cannot but think that there was great negligence and a gross want of care in the way in which authentic documents have been treated; and I am not prepared to say that the whole was the result of mere accident. The Court, however, has no power to quash the Special Panel, without notice to the parties concerned, nor have we any right to go out of it. The proper course, if there has been any misconduct or gross neglect on the part of the officer, is to proceed against the party who is guilty; but here no misconduct is charged upon any of the persons concerned for the prosecution. The fact of misconduct has been 1345 suggested against others, but none whatsoever against any engaged in the prosecution; and upon the other grounds stated I concur in the judgment of the Lord Chief Justice.Now he came to explain what was the nature of the imputation which had been made on this point; and he would take the opportunity of saying at once, that he did not find any fault with Mr. Justice Perrin with respect to the remarks he had thought proper to make, but the imputation was conveyed in an affidavit of an extraordinary character, which had been adverted to by the hon. and learned Member for Worcester (Sir T. Wilde).should read the passage, which was from an affidavit of Mr. Mahony, and he ventured to say that there was no Court in Westminster Hall (and he said it in the presence of his hon. and learned Friends, the Law-officers of the Crown in England, who would contradict him if he were wrong) who would act on an imputation of undo-scribed fraud, no suggestion being made what that fraud was or by whom committed. The affidavit stated that—That deponent, in company with two others of the agents for the traversers—namely, Messrs. Ford and Cantwell, attended next day at the office of the said Walter Bourne, and then and there protested most earnestly against any further proceeding being taken in the striking of said Special Jury, on various grounds, but chiefly on the ground that a gross and wilful suppression of the names of persons qualified to be placed on the Special Jurors' List had taken place, and deponent is thoroughly convinced that such wilful and corrupt suppression did actually take place.Now, let the House consider what this affidavit amounted to. Did the deponent swear that the omission did not take place by the agency of some party who might have been connected with the traversers? He would mention to the House what were the singular circumstances connected with this matter. Mr. Mahony, in his affidavit, detailed what he would say was an improper proceeding. Mr. M'Grath, the Deputy Clerk of the Peace, took this course which he said was not correct, for he furnished Mr. Mahony with everything he wanted, though the Crown could not get a document of any sort from his office. In fact, copies were furnished to the traversers day after day from Mr. M'Grath's office, and it was in this way that Mr. Mahony received copies of the collectors' lists, including, amongst others, the names said to be suppressed. Mr. Mahony was 1346 thus furnished with the names. This Mr. M'Grath was the man who mislaid the documents, as he says, in which the lost names were contained. Mr. M'Grath having furnished the traversers with lists as prepared for revision, was afterwards, and after the revision of the lists, and after his right hon. Friend the Recorder had adjudicated upon them, applied to by Mr. Mahony to be allowed to compare the lists, which was permitted. Four persons sent to Mr. Mahony were permitted to make this comparison. In short, the other side got the run of the office; they went in and out at their pleasure; while the Crown, on the contrary, never could get one particle of satisfactory information from that office. Perhaps, now, the House might make a conjecture, if there was fraud in the matter, who it was that committed it. Next, as no reason was assigned in this affidavit for the deponent's belief that a fraud had been committed, the attention of Mr. Mahony and of the Counsel for the traversers was called to the fact, and yet when they put in the challenge to the array, they stated again an unknown and undescribed fraud, but directly or indirectly did not venture to name any person who had committed it. The hon. and learned Member for Worcester had said that Mr. Kemmis had made no answer to this affidavit. Now, he would take the liberty of reading what Mr. Kemmis stated, and which was all he could, and he was convinced that the answer would prove satisfactory to the mind of every unprejudiced person. Mr. Kemmis stated:That the said Messrs. Ford and Cantwell did object to proceed with the striking of the said Jury on an allegation that several of the names of persons qualified to be placed on the Special Jurors' List had been omitted therefrom, and did make many general charges and. allegations in respect to same, but deponent saith that the said Panel having been submitted to the officer by the High Sheriff in the ordinary way, and this deponent not having, as aforesaid, either directly or indirectly, been concerned in the revision of the said Jury panel, and being ignorant as to the correctness of the allegations so put forward on the part of the traversers, did, as he conceived it his duty to do, call on the said officer to proceed to strike said Jury. And saith he was not in any respect party or privy to, or acquainted with any suppression of names from said Special Jury panel, if any such, in fact, occurred.He (Mr. Smith) had gone frequently to Mr. Kemmis's, and asked if the Special 1347 Jury List was made out, and if he had received a copy of it; and Mr. Kemmis had told him over and over again, that he had been to the Clerk of the Peace's Office, and could not get any satisfactory information upon the subject. So far as he had gone he did confidently feel this, that he could boldly appeal to the House and the country as to the propriety of his conduct with respect to the proceedings connected with this trial. He (Mr. Smith) insisted he ought not to have assented to the proposition for quashing the Special Jury Panel when the Court decided that he would not be justified in doing so, and if he had consented he must either have postponed the trial until the year 1815, or the traversers must have been tried by the Special Jury List of 1843; and he said that in the state of Ireland at the time he should have been guilty of a dereliction of his duty to the public if he had permitted the prosecution to be postponed for twelve months. The next ground of attack upon the conduct of the case, on the part of the Crown, was, that in the exercise of that duty which he conceived he owed to the Crown, but which he did not feel afraid to explain, he had struck off, as was said, eleven Roman Catholics from the Jury. That matter was introduced into the affidavit of Mr. Mahony, of the 12th of January, and he must say was improperly introduced, for this reason—that it had no relevancy to the grounds for the Motion stated in the Notice of Motion, and that it was simply introduced into the affidavit to furnish matter for newspaper paragraphs and libellous imputations, and he had a right, he thought, to complain, and he had stated to the Queen's Bench that he had a right to complain of the Counsel who opened Mr. Mahony's affidavit, for having omitted to state the answer of Mr. Kemmis. Now, Mr. Kemmis, in his affidavit, said, that he did not believe that eleven Roman Catholics were struck off, because he believed that only ten of the eleven were Roman Catholics, and that previously to the striking off of the twelve names he had received information, which he believed to be true, that those ten were either members of the Repeal Association, or subscribers to the Repeal fund. On that being stated to the Court, the right hon. Member for Dungarvon stood up, and said, that Mr. Kemmis was under a mistake in his affidavit; to which he (Mr. Smith) 1348 rejoined, that the affidavit ought to be contradicted by a statement on oath. The right hon. Gentleman said that an affidavit should be produced. That was on the 12th of January. He supposed the right hon. Gentleman made inquiry about it that day, but no affidavit was filed for nearly a month after; for it was nearly that time afterwards, when the Solicitor General, in the course of his speech in reply, observed, that the affidavit promised by the right hon. Gentleman had never been made. And what was the affidavit which was then made in consequence of the observations of the Solicitor General? Let the House understand that the name of every member of the Association was enrolled on its books. He had in his possession the printed book which was proved at the trial, and which was printed at the expense of the Association, from which the fact appeared. In books kept by the Association entries were also made of every shilling that was received, so that any number of persons—5,000 if it had been necessary—might have been called on to swear positively whether the eleven, or any one of them, were members of the Association or subscribers to the Repeal fund. This being the case, then, what was the affidavit which the right hon. Gentleman produced? An affidavit made on the hearsay and belief of four attorneys in the cause; and he stated it as a legal principle beyond all question, that if parties in the possession, and having the control or positive irrefragable proof of a fact, keep it back, and produce an affidavit on hearsay and belief, he said, that affidavit was not worth one farthing. But what, after all, was this affidavit on hearsay and belief? It only mentioned by name two individuals—only two out of the eleven. Now he did assert, that a deception had been practised by a portion of the public press of Dublin, day after day, upon the public mind in England by means of statements which were known to be false when they were made, for the parties who made them might at any time have gone to the Association and ascertained the truth, but by which the public mind was led to suppose that all or the greater number of the eleven were not connected with the Association either as members or subscribers. The only two persons named were William Hendrick and Michael Dunn, leaving the inference that Mr. Kemmis was correct as to 1349 the remaining nine, for there was no denial of their being Repealers; but the point to which he wished to call attention was, not simply that Mr. Kemmis was correct as to the remaining nine, but that as to the greater number of the nine they had proof that Mr. Kemmis's information was most trustworthy; for they had ascertained that one of the nine had attended Repeal meetings both at the Rotunda and at Mullaghmast. Another had signed the requisition for the meetings at Mullaghmast. [Name, name.] He would not name those individuals, for if any Gentleman who wanted the names would stud over to the Association he would find them there. What he asserted, and it was capable of contradiction if untrue, was, that one of those nine persons had attended the meetings at Tara and Mullaghmast, and the meeting at the Rotunda after the day of the Clontarf meeting; another had signed the requisition for the Mullaghmast meeting; another had signed another requisition; another had attended the dinner at Longford, where the speech respecting Lord Beaumont was delivered; another had attended the Mullaghmast Repeal banquet; another had signed a requisition after the prosecution had commenced, the advertisement concluding with the words "Courage displayed in the hour of danger, and friendship in the hour of peril." He supposed it would be allowed that was sufficiently explicit language. Another of the nine was a subscriber to the Repeal rent, and two more were openly and avowedly Repealers. Then with respect to Michael Dunn, who lives in St. Patrick's Ward, there was his affidavit that he was not a subscriber to the Repeal rent; but however Michael Dunn of St. Patrick's Ward signed a requisition in May 1842, requesting a meeting of the inhabitants of that ward to adopt such measures as might appear necessary for the effectual collection of the Repeal rent in that ward, and there was no resident of that name in St. Patrick's Ward at that time, but the person in question, as might be seen from the Dublin Directory. But it was immaterial whether it were so or not, for the House was not to enter on the inquiry; because it was only necessary for him to prove this, that Mr. Kemmis believed, as he swore, that ten of the parties struck off, professing the Roman Catholic religion, were either members of, or had subscribed to the funds of the Association; and he showed 1350 that he had good reason for making the statement, and on the 12th of January, when the affidavit was produced, he stated in it that he still believed his information to be correct. He asked whether or not he was liable to censure because he did not accede to the proposition of the traversers by quashing the Special Jury Panel, which would have had the effect, of either postponing the trial until 1845, or remitting the traversers to be tried by the panel of 1843, anti whether it was his duty to have persons connected with the Repeal Association on the Jury to try this prosecution for conspiracy, the Overt Acts laid being, many of them, the meetings of that very Repeal Association. To make the case more clear and indisputable, there was a decided case in Moody and Robinson's Reports—he had seen the case that morning, but he had forgot the name of it—in which, under circumstances connected with a district in which a riot took place, it was decided that that was a good ground of challenge against any juror from the district. He wished to state distinctly, that he thought it would be a good ground of challenge to a common Juror, that the persons challenged were subscribers to the funds of an association the meetings of which were laid as Overt Acts in the indictment. He said further, that in the case of the Special Jury no reason being necessary to be assigned, under the Jury Act, for striking off jurors, there was nevertheless legitimate ground for striking off those the Crown had struck off. Some observations had been made by the hon. and learned Member for Worcester, in which he adverted to the statement of the right hon. Baronet (Sir J. Graham), he believed before he had been able to attend in his place, with reference to the Crown not having taken a common Jury, and the hon. and learned Member was pleased to say, that if a common jury had been taken, the Attorney General for Ireland, dared not—that was the expression the hon. and learned Gentleman used—have set aside a juror. Now he must confess, he was suprised to hear a Gentleman who had been a law officer of the Crown deny the prerogative of the Crown, and he must say, that though he could not if he had taken a common Jury have exercised that prerogative of the Crown without being subject to responsibility for doing so, yet he would have dared to set aside any priors, if they had been Members of, 1351 or subscribers to, the Repeal Association. But he had to observe, that he did not require instructions flow the hon. and learned Member, as to what was his duty with reference to common Juries; for shortly after he came into office, without the knowledge of Her Majesty's Government, he had written to all the Crown Solicitors in Ireland instructions conformable to the orders issued by Chief Baron Brady. They had also been adopted by the hon. and learned Member for Clonmel (Mr. Pigot), by Mr. Blackburne, and by himself. He might mention, however, that one part of the instruction was, to set aside all publicans, and it did so happen, that one or two of those who were actually struck off the Special Jury were publicans. He must now take the liberty of calling the attention of the House to certain extraordinary proceedings, at which he was present as an eye-witness, and about which there could be no doubt. He would give an instance of the way in which Gentlemen opposite had acted in the administration of justice when they were in power. A gentleman named Pearce, a Chief Constable of Police, of high character and respectability, was stationed in the town of Carrick-on-Suir, in Tipperary, when it happened that a quarrel arose between the men of a company of infantry who had just marched into the town and some others who were already quartered there. One of these parties was joined by the townspeople, and a most formidable riot ensued, which finally compelled Mr. Pearce to order his picket to fire upon the rioters. The consequence was, that a boy, named Slattery lost his life; Mr. Pearce was put on his trial for life at the ensuing Clonmel Assizes, where he (Mr. Smith) was present, and where the right hon. Member for Dungarvon prosecuted Mr. Pearce for murder. Now, what was the course pursued by that right hon. Gentleman when the life of a fellow-creature was at stake? He could prove that every thing he asserted was true, and could give the names if necessary. Well, how had the right hon. Member acted? Why, he had set aside on behalf of the Crown thirty-six jurors, and of the first thirty so set aside, there were twenty-nine Protestants. That was an incontrovertible fact, and he threw it out for the serious consideration of that right hon. Member whether he could ever have laid down his head in peace, if that Gentleman had been convicted by 1352 such a Jury. He stated facts correctly: he defied contradiction; and in a case where a prisoner had a right but to twenty challenges, the Crown, under the auspices of the right hon. Member for Dungarvon, had struck off thirty-six persons, of whom twenty-nine were Protestants. And these were the parties who considered themselves justified in telling him that he durst not strike off any person from a Special Jury List; or as, indeed, that extraordinary assertion had been now qualified, "unless a sufficient cause was shown." He had never yet heard of "a sufficient cause" for striking off the names of the twenty-nine Protestants at Clonmel. Having made these observations, he would again advert to the circumstances connected with the challenge of the array of the Grand Jury Panel. The facts had been already substantially set out. When that question arose, he stated that if the defendants were right in their view of the law, if the book for 1844 was null and void, and if the Court of Queen's Bench were wrong in their adjudication, on his demurrer to the challenge, their judgment being on record, a writ of error would he directly to the House of Lords. It was not necessary for that writ to go through the Court of Exchequer where the Crown was concerned, as that Court had a right of appeal only in civil cases. The defendants could thus go at once to the House of Lords. They would have a right to appeal, if they were so very confident? They might avail themselves of that right if they were correct? A charge had been brought against him in his absence by a gentleman with whom he had not been acquainted (although he was an Irish Member) until his arrival in England. From all he had heard and knew of that hon. Gentleman (the Member for Cork) he was persuaded that the hon. Member would not intentionally retail assertions which were not correct, and would feel sorry when the hon. Member heard his explanation of the fact to which he alluded. The hon. Member for Cork stated that he had been in the habit of compelling the attendance of the traversers of the Court of Queen's Bench throughout the whole of each day. There was not even the shadow of a foundation for such an assertion. He had only acted then as he should act again under similar circumstances. Now as to the facts. He believed, that with the exception of one day on which 1353 Mr. O'Connell was stating his case to the Jury, and of another when he attended from a desire to hear the hon. Member for Dungarvon, Mr. O'Connell was not ten minutes in Court on any day throughout the whole of the trials. He had never thought of looking or inquiring whether Mr. O'Connell were there or not; and he would have thought it harsh indeed if he had insisted on that Gentleman's constant attendance. With respect to Mr. Duffy, he had been informed that he was in delicate health, and he immediately said that Mr. Duffy might come down when he pleased, and accordingly two o'clock was the usual hour of that gentleman's appearance. As to the other traversers, so little regard had he paid as to whether they were in court or not, that if he were that moment asked on his oath whether any of the defendants was present on any one day, he would not be able to answer it. He had never thought of adopting a course so ungenerous or so improper. He would not attempt to carry out such a course of petty hostility, of which he had trusted, and did believe, that the public opinion of his character in Ireland would have held him incapable. Throughout the whole of the proceedings the traversers were never hindered going about as they pleased, unless when technical questions arose—as on the first morning of term, when the Jury were sworn, or when the witnesses had to identify some of the parties, where it was absolutely necessary they should be present. On such occasions it behoved the Crown to take care lest some legal difficulties should arise from the non-attendance of the traversers, who were therefore required to appear. In fact, he was informed that Mr. O'Connell's carriage was waiting for him to drive him to his house every day. There was a circumstance he would now explain to the House. On the first Monday after the trials had commenced, it was intimated to him that the hon. Member for Cork had left the Court, and had gone down to attend a meeting of the Association, at which the hon. Member for Limerick (Mr. W. S. O'Brien) was in the chair. The defendant had gone down there, as he believed, to make the proceedings then going on a subject of commentary. He did then, as now, feel it would not be tolerated in this or in any other country that, when parties were on their trial for acts among which were their attendance 1354 on meetings of a political body, they should be permitted to appear at an assembly of that very society and comment upon the proceedings which were taken against them. He was satisfied that the Member for the City of Cork would feel that he had done him injustice in the charge he had brought against him, which was, however, he was sure, unintentional on his part. The hon. Member for Worcester had complained that Government had not sooner put a stop to those meetings, and had attributed to them an imputation which had been cast upon himself by the Member for Dungarvon, to the effect that they were laying a trap for the people. They had said that the meetings should have been indicted, and that no warning had been given to the people by Government. Now, what were the facts of the case? A Speech was delivered in the House of Lords at the closing of the Session, on the 24th of August, wherein the proceedings of the agitation were made the subject of strong observation, and the seditious conduct of the parties themselves mentioned with censure. Now, he asked, was not that an intimation of the feeling of Government on this question, and was it not sufficiently strong? And how was this intimation from the Throne received? The moment Her Majesty's Speech reached Dublin a meeting of the Association was called, and a notice of a counter-manifesto to the Queen's Speech was then given which was afterwards published on the 17th of September, addressed to the Irish subjects of the British Crown, in which the people were told that they had now nobody to look to but themselves, and that they were not to look to Parliament in future—an avowal which has sedition on the face of it. Meetings immediately followed. They were held in succession at Loughrea, Clifden, Lismore, and Mullaghmast, and at each and all of them the Government and its authority were set at defiance,—the people were told that the Government threatened them, was about to go to law with them, but that they should not be afraid, for their leader was too old a bird to be caught with chaff. The law and the authority of the Crown were derided, and the people were told that their leaders would proceed with the agitation, notwithstanding the intimation in Her Majesty's Speech. Now, he had much to learn, if after this it could be said, with any show of reason, that the Government had been entrapping those 1355 people into the commission of crime, or that they had laid in wait to catch them, without caring for the suppression of that agitation which had been the curse of Ireland. The hon. and learned Member for Worcester had told the House that the Law-officers of the Crown in Ireland had wrested the law and strained it to suit the purposes which they had in view. That was the extent of the charge which the hon. and learned Gentleman made, but he did not find it convenient to car: y the charge any further. The hon. and learned Gentleman did not venture to tell the House that the Law-officers of the Crown in Ireland had prosecuted in a case where no offence had been committed. If they had in the minutest particular done anything which was not according to law they would soon have heard of it. The hon. and learned Gentleman was cautious enough in the way in which he brought forward his accusations, because he contemplated the possibility of being called upon to argue the question at issue before the House of Lords—nor did he go the length of denying the existence of the cases applying to this question which had been cited, neither was there any attempt made to get over the force of the precedent referred to by his hon. and learned Friend, the Member for Exeter, contained in the State Trials of the year 1795, where the proceeding was a prosecution for sedition. But, said the hon. and learned Member for Worcester, these precedents did not apply to the state of facts that existed in Ireland. That those principles of law never had been applied to meet such a state of facts might be true enough; but there never before had existed such a state of facts. There never existed in England a state of facts calling for such an application of the law, because in this country the law was respected. The hon. and learned Member for Worcester's ideas as to straining the law are somewhat singular. The case says he is positively one of high treason, and your indictment is for a misdemeanor; and thus he was to be censured for not having introduced the word "traitorously" into the indictment. And he was told that he had adopted an indictment for misdemeanor, and applied it to a case which really was one of high treason. The hon. and learned Member for Worcester then referred to Lord George Gordon's case; but the next time that he walked 1356 through Westminster Hall, if the hon. and learned Gentleman took the trouble of inquiring into the opinions of the learned Gentlemen whom he should meet there, he would find that the views which he took of this question were not supported by the general opinion of the Bar of England. The hon. and learned Gentleman told the House that Lord George Gordon's meetings were called for the purpose of intimidating the Members of that House, and that these assemblies approached to the very doors of the House; but was there any lawyer, still less, was there any judge, who would tell them that the difference between that state of things and the state of affairs in Ireland could have the effect of establishing any legal distinction? The House must see that the case of the hon. and learned Member for Worcester depended upon whether or not the acts intended to effect intimidation took place in Palace Yard or in some other locality. According to the hon. and learned Gentleman, if the meetings were held at a distance, there was no intimidation. Whatever he might think of Irish law, there was no member of the profession, even in that country, who could be induced to subscribe to such an interpretation of the law—it would be as little successful in the Four Courts as in Westminster Hall. Surely unprofessional Members must see that intimidation might be directed against the Legislature as readily at a distance of fifty or sixty miles as at the very doors of the House. Perhaps the hon. and learned Member thought it might be good House of Commons law—law good enough to go down with country Gentlemen; but he must have known that it was a doctrine to which no judge in the land would give the sanction of his opinion. It was in the next place argued, that because the people did not assemble with arms in their hands, that, therefore, there could be no intimidation; but what said Lord Tenterden, Mr. Justice Holroyd, Mr. Justice Bayley, and Lord Wynford on that point, in the case of "Retford and Burley." When that case was argued in banc those judges held that unarmed multitudes, if they met for the purposes of organization, or for the purpose of making a display of physical strength, it made no difference whether or not they had arms in their hands, for whenever it was wished that they should strike a blow all that would be required 1357 was to put arms in their hands. That was the doctrine held by the most eminent judges in this country—that was their decision; and if they had any weight with the profession, or with the country, the law laid down by the hon. and learned Member for Worcester must be considered utterly unwarranted. The indictment, said the hon. and learned Member for Worcester, though the law had been strained for the purpose, was not invalid; but he led the House to suppose that one of the counts which charged the defendants with holding meetings for the purpose of exciting disaffection and discontent was not in accordance with legal principles. Now, it did so happen that that part of the indictment had been founded upon a precedent supplied by the late Government, and to which his attention had in the first instance been called by reading in Carrington and Payne a report of the case of "the Queen v. Vincent and Edwards;" but, as reporters frequently gave indictments short, he thought it well to write to Mr. Maule, the Solicitor to the Treasury, requesting he would be so good as to favour him with a copy of the indictment, and the count in question was copied verbatim et literatim from the indictment prepared at a time when the hon. and learned Gentleman was one of the Law-officers of the late Government. The hon. and learned Member might read the case in 9th Carrington and Payne. He could give him the page if he wished for it. The count to which he referred charged the defendants with confederating to excite discontent and disaffection in the minds of Her Majesty's subjects—and to excite Her Majesty's subjects to hatred and contempt of the Constitution and Government, and to unlawful and seditious opposition to such Government. The hon. and learned Gentleman might have forgotten the terms of his own indictment. But, besides the accusations now mentioned, the indictment in the present case charged the defendants with conspiring to stir up jealousies, hatred, and ill-will amongst the inhabitants of Ireland towards those of England, and also contained various other charges. The worst, then, that he could be charged with, was the sin of copying the conduct of the hon. and learned Member for Worcester. He admitted that to follow such an example was a bad habit. After all, the principal 1358 accusation brought by the hon. and learned Gentleman was, that the law had been strained. That was a charge barely intelligible. It was strange to charge the Government with straining the law, and in the same breath to tell them, that when they might have prosecuted for high treason, they were greatly to blame for contenting themselves with proceeding only for a misdemeanour. To prosecute for the lesser offence, was what the hon. and learned Gentleman called straining the law. That indeed was a strange way of straining the law. The hon. and learned Gentleman did not venture to say, that the indictment was not proved, he said, however, that there was an attempt, on the part of the Law-officers of the Crown in Ireland, to put down the press. They did not prosecute the press, as the press, but they maintained—and he was sure the House would support them when he said—that a person connected with the press was not to enjoy immunity because of his connection with the press. Dr. Gray and Mr. Barrett had attended several of these monster meetings, and had taken a most active part in them; and with respect to the statement of reading the newspapers as evidence against the traversers, it was a singular circumstance, that when they had offered these newspapers as evidence, he thought their admissibility would be questioned and he was prepared, on a decision, in "the King v. Hardy," to argue their admissibility; but having formed an opinion that they were admissible from the respect which he entertained for the hon. and learned Member the Solicitor General for England, he had requested his opinion, and had received from that hon. and learned Member an opinion, going further than the one which he had entertained. By the rules of the Repeal Association, which had been proved at the trial by a printed document which they had given in evidence, the printing of which was paid for by the funds of the Association, they had proved that it was part of the regulations of the Repeal Association, that the Repeal-wardens, with a view of carrying out the organization throughout the country, east and west, in every parish and district where a newspaper could be circulated,—that in every district where 20l. were subscribed, it was the duty of the Repeal-warden to take care that a three-day paper—Mr. Barrett's paper, or 1359 the Evening Freeman—should be circulated gratis; or if 10l. were subscribed, that a weekly paper—the Nation was the weekly paper chiefly chosen—should be circulated, and by that means thousands a year had been put into the pockets of these newspaper editors. By the same document it was proved, that instructions were given to the Repeal-wardens to hire rooms in each district, and to take care that the papers were circulated in such a manner as to be read by as many persons in the neighbourhood as possible. Every man of that Association was a publisher of the Repeal papers circulated throughout the country; and it was by the circulation of these most mischievous and inflammatory articles which they contained that the minds of the Irish people had been poisoned, and that previous to these monster meetings every feeling of hostility that could be infused into the human mind had been raised against their brethren in this country. That system had been carried on to an extent which no person who had not read the evidence could believe to be possible. The organization had been carried on mainly through the instrumentality of these newspapers. Two of these editors had been attending monster meetings, and making speeches of the most inflammatory character; and was he to be told that, because these gentlemen happened to be newspaper editors, therefore they were to have impunity from the consequences of the commission of crime? There was one subject on which he wished to say a few words,—it was with respect to an absent individual for whom he had the highest respect, and whom he should continue to hold in the greatest respect, notwithstanding the malignity with which he had been pursued in common with every one—witness, jury, counsel, or judge—who had been engaged in an endeavour to aid or assist in the putting down of this dangerous conspiracy which was spreading throughout the country. He spoke of the Chief Justice. The Chief Justice, in his charge to the Jury had distinctly stated, that he had the concurrence of his brethren in the law as he laid it down. If he had strained the law, it had been the straining of the hon. and learned Member for Worcester—a straining of high treason into a misdemeanour—and it was a straining of the law which they would recollect that Mr. Justice Perrin who had held the office of Attorney General under the late Go- 1360 vernment had concurred in. Mr. Justice Perrin was present when the Lord Chief Justice stated, that he had the assent of his brethren on the Bench in his statement of the Law, and Mr. Justice Perrin would have been guilty of a dereliction of his duty if he had failed to express his dissent, if he did not concur in the law as stated by the Lord Chief Justice. His friend the Solicitor General for Ireland had in his reply read several of these documents, contained in the newspaper publications, to the Jury, and with regard to a statement which had been made relating to them, he could say with perfect confidence (for he was sitting close to the Solicitor General)—although he admitted when these documents were read, they were handed up to the Bench. He denied that the Solicitor General had little pieces of the extracts of speeches pasted on sheets of paper to hand up to the Bench. He knew the documents that were handed up better than any of the Counsel on the other side, and he denied the imputation of the hon. and learned Member. Although he admitted that leading articles had been printed on slips for convenience, yet the whole document had been handed up; and he denied the fact stated, that scraps of documents, pasted on sheets of paper, had been handed up. With respect to the charge of the Lord Chief Justice, he freely admitted that it was not the habit for defendants who were charged with an offence to be in love with a judge's charge; and he knew that very often the counsel thought, from the feeling which they had when they defended a prisoner, that matters might be stated by the judge which other persons by and not concerned in the cause did not think it relevant to state. It frequently occurred in the course of that trial, that a mass of evidence was given by the defendants which he, and those concerned with him, believed not to be admissible. A speech of Mr. O'Connell made in 1808, and another made in 1810, had been given in evidence, which had no bearing on the defence. But though he had thought them inadmissible, the counsel for the Crown had come to the conclusion, on the best consideration of the case, that they would throw as little obstacle as possible in the way of evidence. He denied that he had made any legal objection as to the admission of the documents of 1808 and 1810. He positively stated that he did not. The reason he did not was, be- 1361 cause in Horne Tooke's case in this country a document of twelve or thirteen years antecedent had been read. He did not think that the decision admitting that document as evidence was well founded; but he had thought it better not to oppose the evidence and no objection was made by him to its admission, and could not have been made in his absence, as he was scarcely a moment absent during the trial. He had trespassed upon the attention of the House at greater length than he was perhaps justified in doing, but he had been impelled to do so by the recollection of the charges which had been brought against him by the hon. and learned Member for Worcester. He had abstained from noticing many allusions to the case which had been made (though from his familiarity with the case he could easily enter into the merits), because it was not yet concluded, and he thought he should discharge his duty better by not going through the merits of a case which might receive more discussion before its final determination. He was grateful to that side of the House for having listened to him with attention. If he had said anything warm he was sorry for it; but a person placed in his position, under accusation, might naturally use a little warm language. "I will only (continued the right hon. and learned Gentleman), make one further observation. Complaint has been made against me—and I admit with just foundation—for one act which I committed in the course of these proceedings. I was misled by a feeling of irritation which ought not to have governed any act of mine, circumstanced as I was. I permitted myself, the Court having adjourned for a few minutes, immediately after insulting language had been applied to me, to take a step which I deeply regret. But this I can say, that I am sure there is not a Gentleman in this House who would not make allowance for a person acting under the impression that an improper charge had been brought against him. I wish to be understood, when I mention Mr. Fitzgibbon's name, that I shall not say one syllable to hurt his feelings. He is absent, but I believe if he were present he would admit that language calculated to wound had escaped him inadvertently. Entertaining those views, I shall not say one syllable that can inculpate him. It would be base and treacherous of me if I did so. I take the 1362 blame upon myself, and can only say farther that I considered—I cannot say whether rightly or wrongly—that I had had a gross insult passed upon me. Whatever my character may be—and I think I may appeal to my political opponents—I may at least say, that during the whole of my life in Ireland I have kept up a character for personal honour and integrity. Conceiving that an imputation had been thrown out against what I considered to be my personal honour, in a feeling of excitement during the adjournment of the Court for two or three minutes I penned that note. If the Court had never adjourned, it would never have happened at all, because it would have all passed off in a few minutes. The note was not delivered in Court; it was suggested that I had it sent in Court, but that was not so; I sent it from a chamber adjoining the Court, and I believed that the Judge and Jury and all were out of court; not that that indeed makes much difference; nor do I urge it as an excuse—far from it. I admit I acted with impropriety, but under the circumstances, with a strong feeling that a personal insult had been passed upon me, I do think that gentlemen of generous feeling will be inclined to make some allowance. I shall add nothing more with respect to this, except that I am willing to say, as Mr. Fitzgibbon is absent, that I believe I was mistaken in the construction I put on his language. I only advert to it, because if I did not, it might be supposed from my silence, that I am a person not willing to admit when I am wrong; and I am by no means desirous to be subject to such an imputation." There was only one other matter to which it was necessary further to advert, and that was, a charge which had been brought against him by the right hon. and learned Member for Dungarvon, that he had used some language at a meeting in Dublin offensive to Roman Catholics. Now he had taken the trouble to go to the shop of Mr. Milliken, the bookseller in Dublin, where there was a pamphlet containing a full report of the speech which he had made upon that occasion. It was the fullest account which had been published; he had purchased it, and had read it carefully over from beginning to end, and though he had made use of strong language with regard to the Appropriation Clause, declared he should have no hesitation in reading the whole of that pamphlet to any Roman 1363 Catholic in that House, and he did not believe it would give the slightest offence. He certainly should not be justified, and he must say that it had never been his custom through life to cast imputations; if he had indeed used language offensive to Roman Catholics it would have been highly indecorous of him to have done so. It would grieve him very much to say anything hurtful to the feelings of Roman Catholics, and it would be extremely Unlikely that he should do so when he had, as the right hon. and learned Gentleman the Member for Dungarvon knew, been up to the year 1829 a firm and sincere friend to Emancipation. He did not know whether he had, but he might have, omitted to answer some matters which had been alleged against him, in consequence of not having been present at the earlier 1364 part of the debate, and he was not so practised in the ways of that House as other hon. Gentlemen might be. He did not feel quite at home yet in the House of Commons, though he felt quite at home in Court. But he felt bound to say, that the attention and patience with which he had been listened to in the course of the remarks which he had thought it necessary to offer, and the indulgence which he had received from both sides of the House, would make him more easy for the future, and when next he should feel called upon to address them, trusted, that he should not make so gross a trespass upon their time as he had upon the present occasion.
§ Debate again adjourned. House adjourned.