main body; they saw messengers going backwards and forwards in different directions; they saw that a charge, or something like a charge, of pikes was about to be made upon them; and Mr. Cox did what he was perfectly justified in doing he fired upon those persons who were in arms against the authority of the Queen. Mr. Cor treated them as rebels; he fired upon them; he wounded some, I believe. I do not know whether there was one or two; but the effect of the determination of Mr. Cox and his small party was this, that the party immediately retired; and Mr. Co came up to the Widow M'Cormack's house, where Mr. Trant and his party had been barricaded. In the meantime, the insurgents, finding that the constabulary were likely to be reinforced, marched off from the Widow M Cormack's house; so that when Mr. Cor actually came up to that house, he found that though the constabulary were there, the country people had dispersed; and they picked up several pikes and a gun or two that had been left there by the country people. This was what occurred so far as Mr. Cox was concerned. From that time Mr. Smith O'Brien saw that relying upon any cooperation of the constabulary was out of the question. He saw that the assistance, which, from his speeches, it appears he expected he would receive from the constabulary, was nowhere to be found. He found, what I believe to be the truth, that it was the fixed determination of every man in that service to lose his life rather than swerve from the allegiance he owed to his Queen. That being found to be the case, there was an end to Mr. O'Brien's expedition. From the time of this unsuccessful attack on Mr. Cox's party on this 29th of July, Mr. Smith O'Brien was nowhere to be found. own horse, which Mr. O'Brien returned to him. But the fact was, that they actually made a prisoner of a man who was in the pay and allegiance of the Queen. Of course he had a full opportunity of observing this armed party by whom Mr. O'Brien was accompanied. Now, gentlemen, if I am right in the facts I have stated, I do not believe that much doubt can remain but that I have established a sufficient degree of force and violence to amount to an actual levying of war. I cannot exactly anticipate what will be the course of defence which may be taken by my friend Mr. Whiteside; but I think it very probable, with his very great ability, and knowledge, and judgment, that he will scarcely argue that, in point of fact, there did not occur circumstances amounting to a levying of war, that there was not force and violence enough for that purpose; but, as has been frequently attempted in similar cases, he may endeavour to allege that what was done by Mr. O'Brien was not with a revolutionary intent, that Mr. O'Brien's object was not to effect a revolution, that it was not to effect any change in the government or the constitution of the country-because, as a lawyer, which Mr. Whiteside undoubtedly is, he must know very well that if such was the object of Mr. Smith O'Brien, no possible doubt can exist but that what has occurred amounted to a levying of war within the statute of Edward 3. Accordingly it is, that I have thought it right to mention to you, and I shall prove them in evidence, those antecedent matters and arrangements which will lead you to the conclusion, independently of the facts themselves, that the object of Mr. Smith O'Brien and his companions, in these transactions, must have been of a revolutionary character. But, gentlemen, if after all this there could be any doubt whatsoever of the intent, documents were found in Mr. O'Brien's possession, and a document will be proved to be in the handwriting of Mr. O'Brien, which, in my humble judgment, will relieve this portion of the case from every possible difficulty. I omitted, gentlemen, mentioning a circumstance that occurred on the morning of that 29th of July. A person of the name of Carroll, a policeman, but in coloured clothes, was despatched with a letter or message from Kilkenny to Mr. Trant, who was then in the Widow M Cormack's house. This man was supposed by his appearance to be a policeman, or to be a These transactions that I have menman in the service of the Crown. Accord- tioned having occurred on Saturday, the ingly, he was arrested, and he was desired 29th of July, and a reward being offered by the persons who arrested him to con- for the apprehension of Mr. O'Brien, the sider himself as a prisoner. He was disarmed bodies separated; and, I believe, mounted, and Mr. O'Brien made use of his horse during a portion of these transactions on this 29th of July. After keeping Carroll for several hours, they thought it inconvenient to be burdened with a prisoner, and accordingly, they allowed him to go at large. On his going away, he met Mr. Smith O'Brien mounted on his in consequence of the total failure of the enterprize, and a proclamation being issued apprizing the country people of the danger they encountered by harbouring, or succouring, or receiving into their houses the persons who had been engaged in these transactions, this unfortunate gentleman, Mr. O'Brien, found himself 69] avoid arrest. The Queen against Smith O'Brien, 1818. placed in a situation really of very great [70 Government in the transportation of John "To you, sir, above all your able and in- "MY DEAR SIR,- Special sitting of the house. Lord J. R. to move for leave to bring in a bill to empower the Lord Lieutenant of Ireland to apprehend and detain such persons as he shall suspect guilty of treasonable designs. Order for the suspension of the Habeas Corpus Act. Directions to arrest W. S. O'Brien. Such is the express by telegraph, as stated to me through The Freeman. "Believe me, faithfully yours, "RICHARD O'GORMAN." Other documents were also found upon him-addresses from different clubs and different bodies-amongst the rest one from the Enniscorthy club "TO WILLIAM SMITH O'BRIEN, ESQ., M.P. (a) of the other leaders, Dillon escaped to 66 Signed on behalf of the members, "W. MOONEY, V.P., In the trunk there was found a letter written to Mr. O'Brien by this Mr. Charles Gavan Duffy, whom I mentioned to you, which shows to my mind the object of these people beyond a doubt. It is dated 66 Saturday"; it has no actual date; but from the circumstances referred to in the letter it is perfectly plain, and the evidence will satisfy you, that it was written in the latter end of the month of June, or the early part of the month of July, when he was going on his Cork expedition. It says "Saturday. "MY DEAR SIR,-I am glad to learn that you are about to commence a series of meetings in Munster. There is no half-way house for you. You will be the head of the movement, loyally obeyed; and the revolution will be conducted with order and clemency; or the mere anarchists will prevail with the people, and our revolution will be a bloody chaos-" Whiteside: I object to that, Mr. Attorney, being evidence. Attorney-General: I mean to submit it as evidence. It was found in his portmanteau. The letter proceeds— "You have at present Lafayette's place so -that of not graphically painted by Lamartine, and I believe have fallen in Lafayette's errorusing it to all its extent and in all its resources. I am perfectly well aware that you don't desire to lead or influence others; but I believe, with personal and civic virtue, is a vice in revoluLamartine, that that feeling which is a high tions; one might as well, I think, not want to influence a man who was going to walk on thawing ice or to cross a fordless river, as not to desire to keep men right in a political struggle, and to do it with might and main. If I were Smith O'Brien I would strike out in my own mind, or with such counsel as I valued, a definite course for the revolution, and labour C 2 71] The Queen against Smith O'Brien, 1848. incessantly to develop it in that way; for ex- Forgive me for urging this so anxiously upon you; but I verily believe the hopes of the country depend upon the manner in which the next two months are used. There is not a town in which could not be found a band of missionaries to organize the neighbouring counties. Every club has its active men fit for this work; and it is only by applying all our force to it that we will succeed." In In what were they to succeed? what revolution was it proposed that Mr. O'Brien should fill the place of Lafayette? What revolution was it that he was to be the leader and the head of, "loyally obeyed"? I ask my friend, Mr. Whiteside, to answer that question, when stating the case of this gentleman. You will be told this is not the letter of Mr. O'Brien, but a letter of Mr. Dufy, written to Mr. O'Brien. I ask you, gentlemen, was this letter acted upon by Mr. O'Brien ? Did he follow the advice given to him here? Did he place himself at the head of the movement? For what object and for what purpose was he organizing these clubs Independently of the fact of organization, it will be proved to you out of the lips of Mr. Smith O'Brien himself that his objects were revolutionary. For what object, when the suspension of the Habeas Corpus Act was known, was the resolution come to to establish a directory of five? Why was the directory of this body, if they were peaceful and loyally disposed, reduced to Because it was the number of five? thought that one and twenty persons was rather a large number, and that five could manage better when the parties had come to the determination of having recourse to war. But, gentlemen, if there was not a particle of evidence in this case but that which I am now about laying before you, it appears to me that it is of itself conclusive in this case. That is a letter written by Mr. O'Brien himself, in his own handwriting, and dated at the Commons, on the 29th of July, before the attack upon the constabulary, and before the arrival of Mr. Cox. You are aware that there are a good many coal mines in that district. A great number of the per [72 sons who armed and joined Mr. O'Brien in all the proceedings, from Tuesday, the 25th, up to and including Saturday, the 29th of July, were persons from this colliery district. Mr. Smith O'Brien thought perhaps that the owners of this colliery might think it a little hard to pay the men, not for doing the work of the company, but for fighting his battle; and, accordingly, he wrote, and delivered himself to one of the agents of the colliery, the letter which I am now about to read. I pray your attention to it "Collieries, July 29, 1848. "Mr. William Smith O'Brien presents his compliments to the Directors of the Mining Company, and feeling it incumbent on him to do all in his power to prevent the inhabitants of the collieries from suffering inconvenience in consequence of the noble and courageous protection afforded by them to him, takes the liberty to offer the following suggestions The suggestions are certainly not like what would come from a man in ordinary circumstances "He recommends that for the present the whole of the proceeds arising weekly from the sale of coal and culm be applied in payment of men by contract, employed in raising coal and culm. "He recommends that a brisk demand be encouraged by lowering the price of coal and culm to the public So far so well 99 "In case he should find that the Mining Company endeavour to destroy the people by withholding wages and other means, Mr. O'Brien will instruct the colliers to occupy and work Irish revolution should succeed, the property of the mines on their own account, and in case the the Mining Company will be confiscated as national property. the "On the contrary, if the Mining Company observe a strict and honourable neutrality, doing their utmost to give support to population of this district during their present time of difficulty and trial, their property shall be protected to the utmost extent of Mr. O'Brien's power." Now, gentlemen, I ask my learned friend what answer is to be given to this In what capacity, letter in the handwriting of Mr. Smith O'Brien himself? except as the leader of this revolution, had he a right to dictate to this company as to the raising of their coal and culin, and the management of their collieries; or what right had he to say that, in the event of such and such things not being done, he would give orders to the colliers to occupy and work the mines on their own account? Now, let me ask you, is that the act of a private individual, or is it the act of a man who fancies himself the leader of a mob-the leader of an insurrection, and who has the right to force his orders to be obeyed? But, above all, what does Mr. Smith O'Brien mean by this, that in such an event, namely, their interfering with the people, and ordering the mines not to be worked "in case the Irish revolution shall succeed, the property of the Mining Company will be confiscated as national property?" When was this letter written? On the morning of the attack on the constabulary; before the attack; before the constabulary were blockaded in that house of the Widow M Cormack; before Mr. Cox and his party were attacked? Did not Mr. Smith O'Brien put himself forward in that written document as the leader of this revolution? And what revolution was he then contemplating? It is to me immaterial if one of the objects of Mr. O'Brien was, as I have no doubt it was, to prevent himself being arrested. To be sure, if he was arrested, he fancied there would be an end to the revolution. I say that he here puts himself forward as the leader of the revolution, calls it a revolution, and threatens the man who would assert the rights of private property; but if, forsooth, they do all that Mr. O'Brien suggests and thinks right, that in such case, in the event of the revolution succeeding "the property will be protected to the utmost extent of Mr. O'Brien's power." What power would he have to protect the property, I ask, except this, that he was to be, if not the leader, at least an active member of the new government in this new state of things which was to arise as the effect of this revolution? These, gentlemen, are the facts of the case, and if I shall prove them to your satisfaction, I entertain not a shadow of however unpleasant that duty may be, by doubt that you will discharge your duty, finding a verdict of guilty. If, on the contrary, there is any doubt in this case, of course Mr. O'Brien is entitled to the benefit of it. EVIDENCE FOR THE CROWN. John George Hodges-Examined by the Solicitor-General. I am a short-hand writer. I recollect the first time I attended at a meeting of the Irish Confederation on the 15th March, 1848, about seven or eight o'clock. Previously to the meeting I requested an interview with Mr. O'Brien, and stated that I had been sent by the Government to take notes of the proceedings, and that my duty was strictly confined to taking notes of the speeches, and to identifying the persons making those speeches. Mr. O'Brien received me very courteously, and expressed great confidence in me, and subsequently introduced me to the meeting as attending to take notes for the Government, in very complimentary language, for which I beg to express my thanks to him. I saw Mr. Meagher there, also Mr. Richard O'Gorman, jun., Mr. Charles Gavan Duffy, Mr. M'Gee, Mr. Dillon, and Mr. Halpin, who was the secretary. There were many others, but I heard Mr. those are all I can speak to. speech. I have the transcript here, and O'Brien speak, and took notes of his can send for the original notes. Whiteside: My lord, I submit, with great deference, that that speech cannot be given in evidence upon this indictment. Distinction and precision are things required by law in an indictment for high treason, over and beyond every other crime. The reason of that is stated in a single sentence by Mr. Justice Foster (a)— "The rule of rejecting all manner of evidence in criminal prosecutions that is foreign to the point in issue, is founded on sound sense and common justice. For no man is bound, at the peril of life or liberty, fortune or reputation, to of his life. Few, even of the best of men, answer at once, and unprepared, for every action would choose to be put to it; and had not those concerned in state prosecutions, out of their zeal for the public service, sometimes stepped over this rule, in the case of treasons, it would, perhaps, have been needless to have made express provision against it in that case, since the natural justice, hath made the like provision in common law, grounded on the principles of every other." No question arises on them. The sixth is for compassing the Queen's death, and there are but three lines in this sixth dence of speeches is to be introduced; count, upon which all this mass of evibetween the 17th and 30th Julyhaving stated the intent to kill the Queen, it lays as an overt act that the parties Five of the counts are for levying war. traitorously did assemble, meet, consult, and conspire amongst themselves, and together with divers other false traitors, whose names are to the said jurors unknown, to devise, arrange, and mature plans and means to stir up, raise, make, and levy insurrection, rebellion, and war against our said Lady the Queen within this realm, and to subvert and destroy the constitution and government of this realm as by law established." It is a charge of conspiracy, I suppose; and under that happy phrase "conspiracy," in the language of Mr. Justice Foster, the whole history of Mr. O'Brien's life may be given in evidence against him here to-day. Looking at the form of indictments for conspiracy, the latest, and perhaps the best, is an indictment which, I for one, though I was opposed to it at the time, conceive to be as honest as any one that can be found in the books. It is the indictment in the case of the Reg. v. (a) Fost. Cr.L. 246. O'Connell (a) for conspiracy. Every one of the speeches were there set out, from the beginning to the end, which were relied upon; and the complaint made of it was, that it was so long; but there was not a speech which by day, time, and place, was not specified. In addition, too, the traverser had his bill of particulars, so that he came to trial prepared to deal with the case alleged against him. If there were no other case in the books, I would ask, what difference is there between the present case and that? Counsel also referred to Watson's case, (b) Hardy'e case, (c) and Horne Tooke's case.(d) in that manner, words which are harmless in themselves, may be considered otherwise. In that case, however, it is to be remarked, that words are not the overt acts, but the thing done may be properly explained by the words the speaker may have used. In this case the act is levying war; and the question is, with what intention that was done-whether it was in furtherance of any particular design, or whether it was founded on any preconceived intention of levying war? Whiteside: What I was very respectfully submitting to your lordships was this, that a speech made, not at the time of doing any act, not explanatory of an act done, but made six months before the doing of the prisoner; because, by a like principle, speeches made six years before the time of the doing of the act at Ballingarry, may be made evidence against the pri soner in this case. That, my lords, certainly Watson's case does not prove. Scott: That is a remark as to the value of the evidence, but it does not at all affect the question of its admissibility. Attorney-General: This is a speech made by the gentleman himself. It is not neces-it, cannot be admitted in evidence against sary to have recourse to the count for compassing the Queen's death; it is admissible under the counts for levying war. Every act of the person accused is certainly receivable in evidence for the purpose of showing with what object a man did certain acts. One of the matters at- issue upon the counts for levying war is, with what object all these acts were done; it is necessary, therefore, to prove what was Mr. O'Brien's intention. Also, being a speech delivered in the presence of several individuals whom we mean to connect with Mr. O'Brien as parties concerned in this outbreak, it is material as showing that at the time the speech was delivered they were making preparations for the object in question. In Watson's case Lord Ellenborough says (e) "Can there be a doubt that this is evidence under the overt acts for levying war? It is evidence, quo animo the thing was done." Whiteside: That was spoken at the time of the act. Attorney-General: I say that this was spoken with reference to the act of levying war, not at the time of the act, for the time had not arrived; but it shows that the intention of the parties was to have a revolt at no distant time. Solicitor-General: The question is, quo animo the thing was done. BLACKBURNE, L.C.J.: We think it admissible in evidence, not as proving an act, but as showing the intention by which he was actuated. DOHERTY, C.J.: Will you allow me to say that though words are not to be taken in reality as constituting in themselves overt acts, they are always evidence of the speaker's intention in doing any act; and, (a) 5 St. Tr., N.S. 1. Whiteside: I do not know whether it is proposed that this speech should be read in evidence as having been delivered in furtherance of the treasonable intent. BLACKBURNE, L C.J.: I think it receiv. able now, upon the assumption that tho levying of war will be proved; and that then it will remain to show that the purpose was such as to make it criminal. The distance of time at which the speech was delivered may affect the value of the evidence, but that is no reason why we should reject it altogether. (To the witness): Now, Mr. Hodges, will you just state from your notes, as tran scribed by you, what Mr. Smith O'Brien said upon that evening, at the meeting of the Confederation? The witness read Mr. O'Brien's speech, in which, after announcing that he had been chosen to move the address of congratulation to the French Republic, he proceeded to read the address of the Youghal Confederate Club to the Irish Confederation "We believe that the right to make laws for the Irish nation belongs to the Irish people alone, and that the exercise of legislation for this country by the parliament of England is an usurpation which it is the sacred duty of Irishmen to overthrow. duty no Irishman can become the servant, pen"We believe that consistently with that sioner, or ally of any government professing to uphold such usurped authority of the English parliament, or to administer laws emanating therefrom. "We believe in the right of an oppressed nation to assert their liberties by arms, and we |