bellum levatum, though not bellum percussum. Listing and marching are sufficient overt acts without coming to a battle or action. So cruising on the king's subjects under a French commission, France being then at war with us, was holden to be adhering to the king's enemies, though no other act of hostility was laid or proved."(a)

But two things are to be established first, that there was an insurrection and rising in arms; and, secondly, that that rising in arms was for a public purpose. If we establish these two points by evidence, we have what constitutes a levying of war.

With respect, gentlemen, to the other charge contained in the last count in this indictment, namely, that of compassing the death of the Queen, it has been esta blished from the earliest times, that to support such a charge it is not necessary to prove that the party contemplated actual violence to the person of the Sovereign. It is fully established that a levying of war against the Queen of itself is an overt act to support the charge of compassing her death; that taking measures for invading the country, taking measures for the deposition of the Queen, for the imprisonment of the Queen, or for restraining her person, through the means of open insurrection or rebellion, of themselves amount to overt acts of compassing her death. And therefore it is that that latter count is introduced into the present indictment, and it is upon the overt acts of levying war and raising an insurrection and rebellion, that we rely in support of our charge of compassing the death of the Sovereign. The great probability is, that, under the direction of the Court, the only matter that you will have to try will be, whether, in point of fact, Mr. Smith O'Brien and those engaged with him in these transactions, have been guilty of levying war, and have committed overt acts of that description of treason; and I take the liberty of anticipating, that in their direction, their lordships will inform you, that if you come to that conclusion, we have, in point of law, sustained both portions of the charge.

The actual outrage and rebellion of which we mean to give you evidence did not occupy a very considerable period of time-scarcely more than a week-the last week in the month of July. But in order to understand the object of these proceedings, and the circumstances under which they were had recourse to by Mr. Smith O'Brien, it will be absolutely necessary that I should commence at a much earlier period, and trace what I believe

(a) Fost, Cr, L, 218.

that gentleman must himself have really anticipated as the necessary result of his conduct from a much earlier period.

Gentlemen, it will appear, that so long ago as the month of January, 1847, an association was formed in the city of Dublin

Whiteside: I beg your pardon, Mr. Attorney. In the language of Mr. Justice Foster, the prisoner has not come here to answer the history of his life. The overt acts are all specified in the counts of the indictment. There is no intimation in the indictment of falling back upon seditious speeches; and, as is stated in this book, the object of having every overt act specified is to prevent the prisoner being called on to answer the history of his life. I submit my learned friend on this indictment is not at liberty to give in evidence any of those speeches.

Attorney-General: My lords, I will state nothing that I do not intend offering, successfully as I believe, in evidence. It is the first time I have heard that if a man is charged with a particular offence, the previous arrangements for the cominission of that very offence are not to be received in evidence. Under the counts for levying war, it is perfectly plain that I can give in evidence the previous arrangements, consultations, and plans of those parties which resulted in that levying of war; and, therefore, I shall not be prevented from stating the case in the way which I originally intended.

I stated, gentlemen, that so long ago as the early period of the year 1847 an association was formed in the city of Dublin, called "The Irish Confederation," consisting of a great number of members, including Mr. Smith O'Brien, Mr. Meagher, Mr. O'Gorman, Mr. Doheny, and several others whom, by the evidence, I mean to connect, as having, at a period considerably antecedent to this recent outbreak, entered into an arrangement amongst themselves for an insurrection. I do not mean that in point of fact any plan was actually formed, so long ago as the month of January, 1847; but that the members of that association so early, at all events, as the month of February or March of the present year, did enter into a definite arrangement and plan, the object of which was, by means of force and violence, to effect a separation between the two countries, and to establish Ireland as an independent kingdom.

Gentlemen, it is a matter of history, of which we are all aware, that the French revolution took place in the month of February of the present year. The suc cess that attended that revolution held out hopes and encouragement to those who, for any object, whether to advance

establishing a National Guard thronghout the country; at another they proposed the establishment of clubs to a very consider able extent, which should be provided with arms; that these clubs should be sectioned, and that there should be an officer over every minute sub-division of them, so that, in point of fact, at any given moment they should be prepared to rise. Another mode that they had recourse to was this, that members of the Confederation should establish newspapers for proclaiming through the country their plans and their arrangements. At that time the publication of seditious newspapers was also a misdemeanor only. Upon the 22nd April, 1848-just while this very violent agitation was going on, which in fact had risen to such an alarming extent, in consequence I believe of the success of the French Revolution-an Act of Parliament (a) was passed, the effect of which was, that it rendered it a felony either to compass or imagine the deposition of the Queen, or the making her by force change her measures, and expressing such intention or compassing either by open and advised speaking, or by publishing any printing or writing.

This will become a material ingredient in the consideration of this case; for, about a week or ten days after the passing of this Act, a prosecution for felony was instituted against one of the members of this Confederation, a Mr. Mitchel; (b) and he was tried and convicted of felony for having published articles which satisfied a jury that he really did intend and devise, by force and violence, either to deprive the Queen of some portion of her dominions, or by force and violence to make her alter some of her measures. Mr. Mitchel was a member of the Confederation; and one of the matters for which he was thus prosecuted and convicted, was a report in his own newspaper of a speech delivered by himself at a soirée in Limerick-which soirée was given to Mr. O'Brien, Mr. Meagher, and himself, as "prosecuted patriots"; because, at that time, a prosecution was hanging over them in the Court of Queen's Bench, for speaking some of the speeches which, on the part of the Crown, were thought to be seditious. It will also appear, out of the mouth of one of Mr. O'Brien's co-conspirators, that immediately before the trial of Mr. Mitchel, when it was supposed possible or probable that Mr. Mitchel might be exposed to transportation, consultations were held, and discussions took place, for the purpose of ascertaining whether it

(a) The Treason Felony Act, 1848, 11 & 12

Vict. c. 12.

(b) 6 St. Tr. N.S. 599.

would be possible at that time to effect a rising; that is, whether they should risk the fate of their intended insurrection upon an attempt to rescue Mr. Mitchel, in the event of his conviction. It will also appear that there was a very considerable difference of opinion at that time between the clubs of Dublin, which had been formed and organized to a very considerable number, and some of their leaders, upon that occasion. Scme of the leaders thought that under any circumstances Mr. Mitchel should be rescued, even though that rescue was only to be effected by an enormous loss of life; and that that rescue was to be made the commencement of the rebellion, or, according to some of their own expressions, that such would have been the proper time to erect the barricades. Others of the Confederation, however, conceived that the month of May, which was the time when that conviction took place, was premature; that the harvest was not then ripe; that there was not food enough in the country, and, that therefore, the attempt to rescue Mr. Mitchel, and the rebellion to be founded upon that attempt, would be completely unsuccessful, and should therefore be deferred until after the harvest.

Now, gentlemen, I think it will clearly appear that it was determined that this rebellion should be deferred until the harvest was reaped. Then the question was, what was to be done in the meantime? The plan was this, clubs were to be organized all through the country in all the large towns, and, if possible, in the rural districts. These clubs were to be armed and officered, and were to be ready at any notice, however short, to take the field. A simultaneous rising was to take place, but it was postponed until harvest; and, in the meantime, all efforts were to be used for the purpose of preparing materials for a successful rebellion when the appointed time should arrive.

A circumstance, however, occurred in the interim, which was this: early in the month of July, Mr. Duffy and Mr. Martin, two members of the Confederation, were arrested upon a charge similar to that for which Mr. Mitchel had been transported. The time when Mr. Duffy's trial would necessarily have taken place, had it not been postponed, was in the early part of the month of August. The commission was to hold its sitting, I think, upon the 8th of August; and the evidence I think will satisfy you that a determination was then come to by Mr. O'Brien and the other leaders, that the insurrection for which they were not ready in the month of May, was to occur in the month of August. Accordingly, you will find that

the preparations for the purpose of effecting the rising, and the exertions necessary for the purpose, were redoubled in July. You will find that Mr. Smith O'Brien himself went to one portion of the country--to Cork and other places in the south of Ireland-for the purpose, as he himself stated in one of the meetings of the Confederation upon his return, of seeing the state of organization of his men. He stated on that occasion, as I believe was the fact with regard to the numbers, that he found upwards of 2,000 men, who, he said, were as well disciplined and as well arrayed as any men in Her Majesty's service. Other members of the Confederation were pursuing the same objects in other parts of the country, Mr. Doheny in one part, Carrick, I think; Mr. Dillon, a member of the bar, and Mr. O'Gorman, a young gentleman, with Mr. Dillon accompanying him, through Meath and that district. Therefore, if I am not very much mistaken, I think the evidence will satisfy you that these expeditions," as they are called in some of the letters, through the country, were solely and expressly for the purpose of having the arrangement of the clubs so complete, that at any moment the torch might be lighted, they should be ready to rise; and the object was, to distract the Government and those in command of Her Majesty's troops, by having simultaneous risings in as many places as practicable.

Gentlemen, matters went on in this way until about the 14th of July. Mr. Smith O'Brien about that date returned from Cork. There was a meeting of the Council of the Confederation the evening of that day, the object of which wasthat the members of the different clubs in the city of Dublin should report upon their organization, the state of their arms, and the preparations they had made, so as to be ready for an immediate outbreak. Your own experience, gentlemen, as jurors in criminal cases, must satisfy you that persons having the onerous duties of Government imposed upon them, frequently receive information upon the accuracy of which they can rely, but which is not sufficient to convict the parties accused. You all know, that however trustworthy the evidence of a party to a conspiracy may be, that evidence alone is not considered sufficient to satisfy a jury as to the guilt of the accused. You may, therefore, well understand, that those having the responsibility of the administration of this country upon them may have been aware of the resolution that was come to at this meeting upon the 14th of July, although they had not at that time sufficient evidence to in

stitute a prosecution for treason against the parties who were concerned in it.

Gentlemen, you will now see what effect the acts of the Government had upon the proceedings which immediately afterwards took place; and I think a few details which I shall now mention will give you a key to the rising that broke out in the county of Tipperary on Monday the 24th, or Tuesday the 25th of July. I mentioned to you that there was a meeting of the Council of the Confederation upon the 14th of July; that meeting was attended by delegates, or representatives of the different clubs, who were to state the preparedness of their organization at the next meeting, which was on the following night, or one of the nights immediately after; and there the period of the rising, and the circumstances of it, were fully discussed. It was then that some of the parties proposed a resolution to have an immediate outbreak, and that a day should be fixed for the purpose; others thought it would be better to postpone it a little; the fact of the outbreak was a matter perfectly determined upon, but the actual time for the outbreak was still a matter for further consideration. Immediately after that determination was come to, namely, upon the 18th July, a proclamation was issued by the Lord Lieutenant, proclaiming Dublin. This is a material circumstance to bear in your recollection-this proclamation extended to Dublin the operation of an Act of Parliament (a) prohibiting the carrying or the possession of arms. The effect of that proclamation would be this, that no parties could legally have arms in their houses without a licence for the purpose; no parties could carry arms from

one club room to another; if they did, the military and police authorities were justified in seizing them. Accordingly, it was considered by the members of the clubs a very material circumstance to know what they were to do in consequence of this proclamationwhether they were at once to resist it, and to make the search for arms the commencement of their resistance; whether, upon the other hand, they were to conceal their arms, but still to be ready to turn out upon a moment's notice.

or

I have told you already that Dublin was proclaimed on the 18th of July. It is also right to mention that contemporaneously with that, a resolution was come to by the Government that it was now time to suspend the operation of the Habeas Corpus Act. You are probably aware that the meaning of the Habeas Corpus Act, when it is in force, is

(a) 11 & 12 Vict. c. 2.