State is, under this statute, to be treated as a compassing against, and an attack on, the person of the monarch; and, therefore, you will have not to consider whether the personal death or actual injury to the person of the Queen was intended, but whether the designs, as proved by the overt acts stated in the indictment, are of a character which come under the description of an attack on the sovereign power of the State.

And it matters not whether that design be to depose her from her crown-to depose her from her imperial authority over the entire of her dominions-the crime of deposing her, and the crime of compassing her death, will be equally committed, whether the object be to depose her from the whole or any part of her dominions. I shall now read to you. taken from an author of the very highest authority on the law, (a) Mr. Justice Foster, and from the judgment of Lord Tenterden some passages which will show you that I have correctly explained the words, "compassing the death of the Queen," to extend to, and to comprehend attacks on, her imperial authority. Describing the crime of compassing the death of the monarch, Mr. Justice Foster says

"It is extended to everything wilfully or deliberately done or attempted, whereby the King's life may be endangered; therefore, measures for deposing or imprisoning him, or to get his person into the power of the conspiratorsthese offences are overt acts of this species of treason."

That is, overt acts of compassing the King's death, though you will perceive that the object is simply to depose or endeavour to get the person of the King into their power. Again, he says, that

"Offences which are not so personal as those already mentioned, have, with great propriety, been brought within the same rule, as having a tendency, though not so immediate, to the same fatal end; and therefore, the entering into measures in concert with foreigners and others, in order to an invasion of the kingdom, or going into a foreign country, or even purposing to go thither, in order to that end and taking any steps in order thereto-these offences are overt acts of compassing the King's death."

That is, within the branch of the statute which makes compassing the King's death high treason. And again, this is the language of Lord Tenterden in Thistlewood's case (a) —

"Before the passing of the late statute (36 Geo. 3. c. 7.) it had been settled by several cases actually adjudged, and by the opinions of the text writers on this branch of the law, that all attempts to depose the King from his royal state and fitle, to restrain his person, or to levy war against him, and all conspiracies, consultations, and agreements for the accomplishment of these objects, were overt acts of compassing and imagining the death of the King."

I have now to tell you, that the crime of high treason consists altogether in intent. The mere intention, the mere design, against the King's life or his imperial authority, is the offence created by the statute. But as intention or design is in all cases, or at least in the generality of cases, to be inferred from acts, and from declarations written or oral, that intention, so to be collected, must have as its basis and as proof of it, the commission of certain overt acts. No man can dive into the secrets of his fellowcreatures; the thoughts of the heart are known but to One; and therefore, intention and design must always be collected from the acts and declarations, and those means and tokens by which, in the ordinary course of life, we judge of men's intentions. The law with respect to high treason of this kind-which consists in intention-makes it requisite for the Crown to specify particularly in its indictment the overt acts, that is, the acts done and the means used by the party charged for the purpose of effectuating that intention. Accordingly, the indictment which will be submitted to you will contain the various acts, whatever they may be, upon which the Crown relies; and in support of these the Crown must give you evidence that some one or more of these overt acts has actually taken place, and you must be satisfied by the evidence which the Crown shall submit to you, that one or more of the overt acts has actually been committed in the manner stated in the indictment. But it is further necessary for you to attend to this, that not only must one or more overt acts be proved, but it is necessary that one overt act should be proved by two wit nesses, or that if there shall be several acts, at least two be proved by two distinct witnesses. You will not be justified in finding the bill of indictment unless there be two witnesses to prove the same overt act, or two witnesses to prove each a distinct overt act of the same treason.

(a) 33 St. Tr. 684.

You will, therefore, carefully attend to that consideration when the witnesses in support of the indictment shall be under examination.

And now with respect to that which is the substance of the charge-the intention which is to be inferred, or proved-if it be expressly proved you will have no difficulty, but if to be inferred, my instruction to you is this. It is inferrible, as I before said, from acts, from writings, from speeches, or from declarations. But so far as regards mere oral declarations, not testified in writing, you ought to pay no regard to the intention which they may appear to evidence, unless these words be connected with some design, or some conspiracy, or some direction, or some incitement. Words by themselves do not constitute an act of high treason, it is only in connexion with acts that they become evidence of intention. When you are considering the evidence of intention, the substantive matter of the charge, the only rule which I would have you observe

of a public nature, or redress of supposed public grievances, in which the parties have no special or particular interest or concern, have been deemed instances of the actual levying of war." And again (a)

"It is essential to the making out of the charge that there must be an insurrection, there must be force accompanying the insurrection, and the object of it must be general in its nature."

These are all the observations I think it incumbent to make for your government and direction.

The Grand Jury retired at half-past twelve, and at ten minutes to five returned true bills against William Smith O'Brien, Terence Bellew MacManus, James Orchard, Denis Tyne, and Patrick O'Donnell.

INDICTMENT.

The first count charged the prisoners with levying war at Ballingarry, between the 17th and 30th July.

The Jurors for our

dealings, and transactions, and intercourse in life to presume and intend a man to mean that which is the natural and necessary effect of his own declarations and

acts.

The other class of counts by which the party charged will be alleged to have levied war on our Sovereign Lady the Queen in her realm requires very little observation from me. That charge, also, must and will be grounded upon one or more overt acts; and the rule in this particular is the same which I have just now stated to you. But the levying of war must be evidenced by an insurrection and actual force; otherwise there is not within the meaning of the statute, a levying of war. And, further, it must be a levying of war, not for any private, personal, or particular object, but it must be for the purpose of some general innovation; and I have no hesitation in telling you, that if it should appear on the evidence to your satisfaction that the object of this insurrectionary movement was the severance of Ireland as a part of the United Kingdom from the remainder, and erecting it into an independent power, that that would be such a purpose as this statute requires.

I may here refer to the language of the authorities for the purpose of further illustrating what I have just now told you. Lord Tenterden says (a)—

"Insurrections and risings, for the purpose of effecting by force and numbers, however ill arranged, provided, or organized, any innovations

(a) 33 St. Tr. 684.

to wit.

their oath do say and present that William Smith O'Brien, late of Cahirmoyle in the county of Limerick, Esquire, Terence Bellew MacManus, late of Liverpool in that part of the United Kingdom called England, gentleman, James Orchard, late of Killenaule in the county of Tipperary, labourer, Denis Tyne, late of Crohill in the said county of Tipperary, labourer, and Patrick O'Donnell, late of Ballingarry in the said county of Tipperary, yeoman, being subjects of our said Lady the Queen, not having the fear their allegiance but being moved and seduced of God in their hearts nor weighing the duty of by the instigation of the devil as false traitors against our said Lady the Queen, and wholly withdrawing the love, obedience, fidelity and allegiance which every true and lawful subject of our said Lady the Queen should and of right ought to bear towards our said Lady the Queen, on the seventeenth day of July, in the twelfth year of the reign of our Sovereign Lady Victoria by the Grace of God of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith and so forth, and on divers other days between that day and the thirt eth day of the same month of July, with force and arms at the parish of Ballingarry, in the said multitude of false traitors whose names are to county of Tipperary, together with a great the said jurors unknown, to the number of five hundred and more, arrayed and armed in a warlike manner, that is to say, with guns, pistols, pikes, clubs, bludgeons and other weapons, being then and there unlawfully, maliciously and traitorously assembled and gathered together against our said Lady the Queen, did then and there wickedly, maliciously and traitorously levy and make war against our said Lady the Queen within this realm, and being so assembled

(a) Tindal, C.J., in Frost's case, 4 St. Tr, N.S. 85.

together, arrayed and armed against our said Lady the Queen as aforesaid, did then and there with great force and violence parade and march in a hostile manner in and through divers villages, towns, places and public highways, to wit, in the said parish of Ballingarry, in the county of Tipperary aforesaid, and did then and there erect certain obstructions composed of cars, carts, pieces of timber and other materials, | erected and built to a great height, that is to say, to the height of five feet and upwards upon and across the said highways, to obstruct and prevent the marching of the soldiers of our said Lady the Queen within this realm, and did then and there make a warlike attack upon and fire at a large body of constables then and there lawfully being upon their duty as such constables, and did then and there with force and violence endeavour to compel the said constables to join them in levying and raising public insurrection, rebellion and war against our said Lady the Queen within this realm, and did then and there make a warlike attack upon a certain dwelling-house situate at Farrinrory, in the said parish of Ballingarry in the county of Tipperary aforesaid, and did then and there fire upon a large body of constables, that is to say, forty constables therein assembled, and did then and there maliciously and traitorously attempt and endeavour by force and arms to subvert and destroy the government and constitution of this realm as by law established, in contempt of our said Lady the Queen and her laws, to the evil example of all others, contrary to the duty of the allegiance of them the said William Smith O'Brien, Terence Bellew Mac Manus, James Orchard, Denis Tyne and Patrick O'Donnell, against the form of the statute in such case made and provided and against the peace of our said Lady the Queen her crown and dignity.

The second count charged that the prisoners together, &c., at Mullinahone, on July 26th

did levy war against our Lady the Queen within the realm, and being so arrayed and armed against our said Lady the Queen as aforesaid, did then march in a warlike manner in and through divers villages, towns, places, and highways, to wit at the parish aforesaid in the county aforesaid, and did then and there maliciously and traitorously, with great force and violence, march to a certain dwelling-house in Mullinahone in said county, in which a large body of constables then were lawfully assembled as such constables, and did then and there endeavour by force and violence to compel the said constables to surrender their arms and join with them in so levying and making war against our said Lady the Queen within this realm, and did then and there maliciously and traitorously attempt and endeavour by force and violence to subvert and destroy the government and constitution of this realm as by law established in contempt, &c.

and traitorously erect and build certain obstructions composed of cars, carts, pieces of timber, and other materials, erected and built to a great height, that is to say, to the height of five feet and upwards, upon and across the highway leading through the said town of Killenaule, whereby then and there unlawfully, maliciously, and traitorously to obstruct and hinder the marching of the soldiers of our said Sovereign Lady the Queen through Killenaule upon and along the said highway, and did then and there maliciously and traitorously attempt and endeavour by force and violence to subvert and destroy the government and constitution of this realm as by law established in contempt, &c.

The fourth count charged that the prisoners, &c., at Farrinrory, on July 29th, did levy war, &c.

and being so arrayed and armed against our said Lady the Queen as aforesaid, did then and there in a warlike manner make an attack upon and fire at a large body of constables then and there lawfully being in discharge of their duties as such constables, and did then and there make a warlike attack upon a certain dwelling-house at Farrinrory aforesaid, in which a large body of constables, that is to say, forty constables, were then lawfully assembled on their duty as such constables, and did then and there fire upon the constables there assembled, and did then and there maliciously and traitorously attempt and endeavour by force and violence to subvert and destroy the government and constitution of this realm as by law established in contempt, &c.

The fifth count charged that the prisoners, &c., at Ballingarry, on July 29th, did levy war

and did then and there maliciously and traitorously attempt and endeavour by force and arms to subvert and destroy the constitution and government of this realm, as by law established, and deprive and depose our said Lady the Queen of and from the style, honour, and kingly name of the Imperial Crown of this realm in contempt, &c.

The sixth and last count, which was for compassing the Queen's death, charged that the prisoners, &c.—

The third count charged that the prisoners, at Killenaule, on July 28th, did levy war, &c.

in order to fulfil, perfect, and bring to effect their most wicked treason and treasonable compassing, imagination, invention, device, and intention aforesaid, they, the said William Smith O'Brien, Terence Bellew MacManus, James Orchard, Denis Tyne, and Patrick O'Donnell, as such false traitors as aforesaid, on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the thirtieth day of the same month of July, with force and arms at the said parish of Ballingarry in the said county of Tipperary, maliciously and 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 gevernment of this realm as by law established, and to bring and put our said Lady the Queen to death. And further, &c. (2nd overt act), on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the said thirtieth day of the same month of July, with force and arms at the said parish of Ballingarry in the said county of Tipperary, maliciously and traitorously did arm themselves with and bear and carry certain weapons, that is to say, guns, pistols, and pikes, with intent to associate themselves with divers other false traitors armed with guns, pistols, and pikes, whose names are to the said jurors unknown, for the purpose of raising, levying, and making public insurrection, rebellion, and war against our said Lady the Queen, and of committing and perpetrating a cruel slaughter of and amongst the faithful subjects of our said Lady the Queen within this realm, and to bring and put our said Lady the Queen to death. And further, &c. (3rd overt act), on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the said thirtieth day of the same month of July, with force and arms at the said parish of Ballingarry, in the said county of Tipperary, with a great multitude of persons whose names are to the said jurors unknown, to a great number, to wit, to the number of five hundred persons and upwards, armed and arrayed in a warlike manner, to wit, with guns, pistols, and pikes, being then and there unlawfully and traitorously assembled and gathered together against our said Lady the Queen, wickedly, maliciously, and traitorously did then and there ordain, prepare, levy, and make public war against our said Lady the Queen within this realm. And further, &c. (4th overt act), on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the said thirtieth day of the same month of July, with force and arms at the said parish of Ballingarry, in the county of Tipperary, maliciously and traitorously did construct and erect obstructions consisting of carts, cars, logs of timber, and other materials, upon and across the public highway, in order then and there

to obstruct the marching of the soldiers of our said Lady the Queen and in order then and there to prevent the arrest of the said William Smith O'Brien, while the said William Smith O'Brien then and there was maliciously and traitorously acting as the leader in raising, making, and levying public insurrection, rebellion and war against our said Lady the Queen within this realm. And further, &c. (5th overt act), on the said seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the thirtieth day of the same month of July, with force and arms at the said parish of Ballingarry, in the said county of Tipperary, together with a great multitude of fal-e traitors whose names are to the said jurors unknown, to the number of five hundred and upwards, then and there arrayed and armed in a warlike manner, that is to say, with guns, pistols, pikes, clubs, and other weapons, being then and there unlawfully, maliciously, and traitorously assembled and gathered together against our said Lady the Queen, did then and there wickedly, maliciously, and traitorously levy and make war against our said Lady the Queen, within this realm, and being so arrayed and armed against our said Lady the Queen, as aforesaid, did then and there make a warlike attack upon, and fire at, a body of constables then and there lawfully proceeding upon their duty as such constables, and did then and there make a warlike attack upon a certain dwellinghouse, and fire upon certain constables, and other the liege subjects of our said Lady the Queen therein assembled. And further, &c. (6th overt act), on the seventeenth day of July, in the twelfth year of the reign aforesaid, and on divers other days between that day and the said thirtieth day of the same month of July, with force and arms, at the said parish of Ballingarry, in the said county of Tipperary, maliciously and traitorously did assemble a great multitude of persons, whose names are to the said jurors unknown, to a great number, to wit, to the number of five hundred persons and upwards, armed and arrayed in a warlike manner, to wit, with guns, pistols, and pikes, and did then and there proceed to a certain dwellinghouse situate at Mullinahone, in the county of Tipperary aforesaid, in which said dwellinghouse divers, to wit, twenty constables then were, and did then and there, with force and violence, maliciously and traitorously demand that the said constables should deliver up their arms to them, and did then and there maliciously and traitorously solicit the said constables to join with them in raising, making, and levying public insurrection, rebellion, and war against our said Lady the Queen within this realm. And further, &c. (7th overt act), on the said seventeenth day of July in the twelfth year of the reign aforesaid, and on divers other days between that day and the said thirtieth day of the same month of July, with force and arms at the said parish of Ballingarry, in the said county of Tipperary, maliciously and traitorously did assemble and gather together a great multitude of persons, whose names are, to the said jurors, unknown, to a great number, to wit, to the number of five hundred persons and

Counsel for the Crown: The AttorneyGeneral (Monahan),(a) the SolicitorGeneral (Hatchell), (b) Scott, Q.C., Sausse, and Lynch.(c)

Counsel for the prisoner: Whiteside (d) and Fitzgerald (e) (Sir C. O'Loghlen and Barton with them).

MOTION TO POSTPONE THE TRIAL.

Thursday, September 28, 1848. William Smith O'Brien having been brought up to plead, swore an affidavit, stating that a copy of the indictment had been given to him for the first time on

(a) Afterwards Chief Justice of C P. (b) Afterwards Attorney-General. (c) Afterwards Judge of Court of Bankruptcy and Insolvency.

(d) Afterwards Lord Chief Justice of Ireland. (e) Afterwards a Buron of the Exchequer.

Thursday, September 21, and that no list of witnesses and jurors had been given him.

Whiteside moved to postpone the trial for non-delivery of the copy of the indictment and lists of jurors and witnesses ten days before the trial, pursuant to the English statute, 7 Ann. c. 21. s. 11, which be contended was extended to Ireland by the Treason Act, 1817, 57 Geo. 3. c. 6. s. 4, or by the Treason Felony Act, 1848, 11 & 12 Vict. c. 12. s. 2.

Solicitor-General: I believe, my lords, that the Crown is entitled to the reply in this case.

Whiteside: I submit that we are entitled to the reply in every collateral argument full Court at the special commission in that may arise. It was so decided by the Monmouth, in the case of Reg. v. Frost. (a)

Solicitor-General: In Reg. v. O'Connell (b) this question arose, and was decided in favour of the Crown.

Whiteside: Mr. O'Connell had not the

reply in the Queen's Bench in Ireland, but he had in the House of Lords in England.

BLACKBURNE, L.C.J.: We will hear you, Mr. Solicitor, upon the same side as the Attorney-General, without deciding who is to have the ultimate reply.

The Attorney-General and SolicitorGeneral opposed the application, and contended that the practice in trials for high treason in Ireland was regulated by the Irish statutes, 5 Geo. 3. c. 21. and I & 2 Geo. 4. c. 24.

The arguments were the same as those urged subsequently before the Court of Queen's Bench on writ of error. (c)

Fitzgerald replied for the prisoner.

BLACKBURNE, L.C.J.: This is an application for a postponement of the trial, on the ground that the prisoner has not been furnished either with the names of the and their residences. witnesses, or with the names of the jury The indictment levying war, and a sixth count for comcontains various counts, five, I think, for passing the death of the Queen; and the over acts of compassing the death of the Queen, are not one of them directed against the person of the Sovereign or her personal safety. The charge is manifestly founded on the statute of Edward 3.; both the treason in the first five counts and that in the sixth count are such as that statute describes and defines. In England, by 7 & 8 Will. 3. c. 3. s. 3, in indictments for high treason, the party charged was entitled to have counsel assigned, to have five days to plead from the time of the indictment found, and to have

(a) 4 St. Tr. N.S. 85. (b) 5 St. Tr. N.S. 1. (e) See below, p. 331.