a new cabinet, for the purpose of carrying out the objects he had in view. You are to decide upon the signification which these passages bear; and, recollect, you are not to be concluded by that which may in the outset appear to be their meaning, but you are to consider the whole publication, and see whether it might not have another, and a different meaning. The article goes on to speak of the establishment of clubs throughout the country, and says

"Had this been done, Ireland, instead of now pleading a criminal want of foresight, would have a popular treasury, a legislative council, and a national guard of disciplined clubs."

It is for you to say whether this passage is to be taken in its literal sense, or whether the words " a national guard of disciplined clubs" may be nothing more than a redundant mode of expressing what would have been indicated by the use of the word "clubs" alone. Then it is stated that these preparations were necessary, in order that the whole force of the country might be wielded like a sword. Does this import an intention to carry out the professed objects of the prisoner-to obtain the Repeal of the Union, restore the constitution of '82 by peaceable and legal means; or is the fair import of the passage, that he had an intention to use the strength and population of the country as a force to coerce England like a sword? Again he speaks of a "desperate struggle"; but it does not necessarily import that the prisoner contemplated an armed struggle. We have often heard of a desperate struggle in the House of Commons, or in other places where two parties of different political opinions may have a contest. However, it is for you to say what meaning can be fairly attributed to the passage in question. Undoubtedly language is used in these publications, which, if understood literally, would import that the prisoner intended to appeal to arms for the accomplishment of his views; but I say again that it is for you to decide whether such a meaning really attaches to these passages.

[The learned judge proceeded to read and comment on the other passages set out in the indictment; but this part of the summing-up was not reported. As to Mr. Duffy's handwriting, the evidence of the three witnesses for the Crown was uncontradicted. Although several of the prisoner's witnesses must have been well acquainted with his handwriting, no ques tion was put to any of them. The learned judge concluded by referring to the evidence in support of the averment in the third overt act of the fourth count, that Mr. Smith O'Brien was engaged in levy.

ing war, which, he observed, was rather a bye-battle with regard to the main issue to be determined.]

The jury retired at twenty-five minutes past seven, and the Court adjourned.

At ten minutes past eleven the Court resumed, and the jury were sent for. The Foreman stated that there was not the slightest probability of their agreeing. (Cheers, which were suppressed.) The jury were directed to return to their room, and the Court adjourned until the next morning.

Thursday, February 22nd.

The jury having been sent for, the Foreman again stated that there was no prospect of their agreement.

BALL, J.: Well, gentlemen, you must retire to your room.

A Juror asked if they could be allowed to breakfast.

BALL, J. Certainly not, the law gives the Court no discretion in the matter.

Foreman: My Lord, two of the jurors complain of being ill.

BALL, J.: A medical gentleman is in attendance, and will examine and report upon the health of the jurors.

Dr. Hallahan, having retired to examine the jurors and returned into Court, was sworn, and stated in answer to BALL, J., that Mr. North was suffering from an intestinal attack, that his pulse was very quick, and he was extremely thirsty, and very feverish.

BALL, J.: You are of impression that further confinement would seriously endanger his health ?-Yes; if another attack occurs, it may endanger his life. Mr. Burke's(a) head and stomach are affected,

(a) Eleven jurors were for a conviction, and one, Burke, for an acquittal. Speaking in the House of Lords with reference to this trial, on have said: (Times, Feb. 24, Hans., vol. 102, February 231d. Lord Brougham is reported to p. 1179) "A jury for Ireland! As well talk of a jury for Africa. For greater indecency could not have taken place in the rudest kraals of the Hottentots than by a juror who disgraced the illustrious name of Burke by his interruption of the prisoner's defence (by his ap. plause, see above, p. 903). A correspondence followed between Lord Brougham and Mr. Burke, in which the latter explained his action as follows: (Freeman's Journal, February 27th.) "The prisoner was both persecuted and oppressed. He was charged with a design to commit treason. The evidence against him principally relied on was that of articles which appeared in his paper when he was closely confined in prison-articles with respect to which Mr. Butt read Lord Lansdowne's solemn assurance in the House of Lords that they were not written by him at all. None of these articles were shown to be his, and some of them were proved not to be so. A list of the

and his feet are cold. I think farther

confinement would be dangerous to his health, for he is an old man.

BALL, J.: Under these circumstances, considering that you have been already confined fourteen or fifteen hours, and from your statement through your Foreman that you are not likely to agree, the Court will exercise the discretion which the law gives in extraordinary cases, and therefore we now discharge you. (Loud cheers.)

LEFROY, B., intimated that it must not be taken as the result of the case that, under the statute the Crown, after proving that the prisoner was the registered proprietor of the newspaper, and that the prisoner had signed the copy of the paper in question, were bound to give further evidence that he was acquainted with the contents of the paper as published by him. BALL, J., concurred.

Butt applied that the prisoner should be tried again at once, if he was to be further proceeded against.

BALL, J., stated that the circuit arrangements made this impossible; further, all the jurors had been discharged.

Butt then applied that the prisoner should be bailed, on the ground that he had now been seven months in Newgate without trial, to the ruin of his affairs and the danger of his health.

The Attorney-General opposed the motion, and contended that the delay had been due to the conduct of the defence. He also referred to the prisoner's attempted escape from prison by means of a rope ladder, and his attempt to corrupt a policeman.

The Court refused the application, and the commission was adjourned to April 7tb. In the meantime the prisoner was confined in Richmond Bridewell. (a)

first men in the country proved that up to the very moment of his imprisonment he was an opponent in every meeting of anything like force or disorder, and was a friend of the British Constitution, which I revere. I formed on this evidence an opinion that I ought not to convict." (a) A memorial signed by more than 17,000 persons, including ten of the jury at the trial, was afterwards presented to the Lord Lieutenant, containing the following passage: "Your Excellency's memorialists respectfully suggest to your Excellency's consideration that, even if Mr. Duffy be guilty of the offence imputed to him, yet he has already been punished long and severely; that he has been four times indicted

The prisoner was again tried on the same indictment before JACKSON and MOORE, JJ., on April 10th and the following days.

The proceedings were similar to those on the first trial. The jury again disagreed, and were discharged after being locked up all night, on medical evidence that further confinement would be dangerous to some of them. It was stated that seven were for an acquittal and five for a conviction.

Butt then applied that the prisoner should be discharged on his own recog| nizances or admitted to bail.

The Attorney-General consenting, he was admitted to bail, himself in 1,000, with two sureties in 5001. each, to appear and stand his trial when called upon.

MATERIALS MADE USE OF.-It appears from a search directed by Mr. John Morley, the Irish Chief Secretary, on the application of the Committee, that the

shorthand notes of this trial have not been preserved. The report of the preliminary proceedings is founded in the main on 4 Cox C. C. 24, 117, 123, 172, 194, and 1 Ir. Jur. 81, 167, 188, but for the judgments on demurrer the verbatim reports in the Freeman's Journal have also been used. The report of the trial is taken from a volume of the Freeman's Journal for 1849, lent from the library in Dublin Castle. The reports in the Dublin Evening Mail and Dublin Evening Post have also been referred to. The fourth indictment has been obtained from the Irish Record Office.

and once tried; that the publications charged against him were written during a period of great political excitement throughout Europe which has now ceased; that some of these publications appeared during his close imprisonment; and that they in all extend but over a period of a few weeks, while his defence has exhibited the uninterrupted and admittedly useful labours of eight years in promoting temperance, literature, &c.; and that it is opposed to the wise and humane administration of the law which long usage has established to institute a second prosecution for the same political offence." In refusing to comply with a similar memorial from some of the Irish members of Parliament, Lord Clarendon stated that Mr. Duffy had not expressed the slightest contrition for what he had done, or offered any pledge that he would not repeat the offence, if mercy were extended him.

towards it; that the usual mode of proceeding is to make a rule or judgment declaring the party to be in contempt, and awarding such punishment as the Court may deem proper, which rule or judgment is entered in a book in the Rolls Office of the said island, called the Chancery Book; that no warrant is granted by the Court for the apprehension or imprisonment of the party; but, if the party is not present, a copy of the rule or judgment is made out and certified by the Clerk of the Rolls, which is sufficient authority to the proper officer to apprehend and imprison the party; that, by the common law of the said island, parties in contempt are committed to the gaol of Castle Rushen; and no period is in general fixed for their release; but they obtain such release upon applying to the Court and showing that they have complied with the judgment of which they have acted in contempt, and paying the fine imposed upon them; or, in cases of contemptuous behaviour to the Court, upon their paying the fine imposed; or upon making such apology, or complying with such terms, as the Court may deem satisfactory.

66

Archbold showed cause. The writ runs to the Isle of Man, and was rightly issued. The island is not mentioned in 31 Cha. 2. c. 2. s. 11., but is mentioned in 56 Geo. 3. c. 100. s. 1., though that statute does not apply here, this being a commitment for a criminal or supposed criminal matter." But at common law the writ runs "into all parts of the king's dominions; 3 Bla. Com. 131. When Calais belonged to England, the writ ran thither; 14 Vin. Abr. 217. tit. Habeas Corpus (E. 2), pl. 3., citing Anon.(a) and Bourn's case (b) per Montague C.J.; 4 Bac. Abr. 118 (7th ed.) tit. Habeas Corpus, B. 2. The present mode of discussing the question is inconvenient: the party should be brought up, and the validity of the commitment debated in his presence; Ex parte Martins (c).

:

ERLE, J. The practice adopted here is convenient, and has often been adopted.

PATTESON, J. I offered to hear cause shown against the writ at chambers. That was not done. I then directed that this rule should be applied for.

The Court then ordered that Peacock should be heard in support of his rule, as if he were showing cause against the writ issuing.

Peacock, in support of the rule: The writ does not run to the Isle of Man except under 56 Geo. 3. c. 100. In Carus Wilson's

(a) 1 Vent. 357.
(b) Cro. Jac. 543.

(c) 9 Dowl, P. C. 194.

case (a) it was admitted that the writ runs to Jersey. Patteson, J.,(b) intimated that the writ would issue, not under 31 Cha. 2. c. 2. or 56 Geo. 3. c. 100., but at common law, Being a prerogative writ it would issue to Guernsey or Jersey either by statute or at common law. Bac. Abr. Habeas Corpus, B. 2. The Channel Islands are appendages to the Crown as parcel of the Duchy of Normandy. 1 Bla. Com. 104. But the Isle of Man is no part of the realm of England. 1 Bla. Com. 106. It was a sort of feudatory kingdom, held of different kings, but finally of the king of England, till the 12 Geo. 1. c. 28. s. 25 and 5 Geo. 3. cc. 26., 39., the effect of which statutes was to vest the island inalienably in the Crown, leaving the landed property, manorial rights, &c., in the feudatory. In Bishop of Sodor and Man v. Earl of Derby (c) it was held that the island was not part of the realm, though part of the king's dominions. The bishopric was excepted from the operation of 5 Geo. 3. c. 26. by s 4; and this was not altered by 45 Geo. 3. c. 123. (d) The transfer was a statutory purchase of the sovereign rights in the island, but did not incorporate it with the realm. Consequently the writ will not run. 4 Inst. 283; Com. Dig. Navigation, F. 2.

Next: supposing that the writ will run, there was no ground for granting it in this case. The case is not distinguished from Carus Wilson's case.(e) The Court of the island has committed for contempt; and, as it clearly has power to do so, this Court will not inquire into the fact of the contempt, or the propriety of the judgment of the Court of the island. It sufficiently appears, both by the order and the affidavits, that the commitment was the act of the Court; the Governor, or, in his absence, the Lieutenant-Governor, is the head of the Court. Johnson, "Jurisprudence of the Isle of Man," p. 55.

An article in a newspaper may interfere with the course of justice; and, if likely to do so, is a fit subject for the interference of the Court; Anon. (ƒ) case in Atkyns, and Rakes's case,(g) cited in the judgment there.

(a) 7 Q. B. 984; 6 St. Tr. N.S. 183. (b) 7 Q. B. 1009, 1010.

(c) 2 Ves. Sen. 337, 351 (A.D. 1751).

(d) See note (1) to 2 Stephen's Statutes tions, &c., p. 1,830. Also 1 Stephen's PracRelating to the Ecclesiastical, &c., Institutical Treatise of the Laws relating to the Clergy, p. 40, note 3, and 6 Geo. 4. c. 34. Note in 13 Q. B.

(e) 7 Q. B. 984; 6 St. Tr. N.S. 183. (f) 2 Atk. 469.

(g) Ib. 472.

The commitment is in accordance with the laws of the Isle of Man, and the exercise of this power in the case of a contemptuous publication is not contrary to the general rules of justice. Van Sandau v. Turner (a) in this Court and in Ex parte Van Sandau (b) in the Court of Chancery. It may be objected that, as this commitment is "until further order," the party might be imprisoned for an indefinite time. In Carus Wilson's case (c) the commitment was not for a definite time.

PATTESON, J.: The party was ordered to pay a fine and ask pardon, and was committed until he should have obeyed; he might put an end to the confinement whenever he pleased: here the imprison ment is to last till the Court does something.

Peacock: It is a question of the prac tice of the particular Court, with which this Court will not interfere; Brenan's case(d). In the Matter of Clarke, (e) case of the Sheriff of Middlesex, (f) Gosset v. Howard, (g) Rex v. Clement. (h)

PATTESON, J.: If this had been a com. mitment by a magistrate it would be bad, according to Rex v. James, (i) because, as it is for contempt, it is in the nature of punishment, and must be for a time certain.

Peacock: A Court is not subject to the same rules as a single magistrate; Gosset v. Howard. (j) The proceedings of the Court of the island could not be brought up by certiorari. In Van Sandau v. Turner (k) a commitment until further order was not held bad. Suppose a witness committed for not answering; that would not be for a definite time: and, if he afterwards did answer, that would not purge the contempt.

COLERIDGE, J.: If he were imprisoned afterwards, must not that imprisonment be for a definite time?

Peacock It is not quite correct to call that a punishment which is an act done to preserve the authority of the Court.

COLERIDGE, J.: Could the commitment be pleaded in bar to an indictment? Peacock: No.

Archbold, contrà: As to the time of the imprisonment. The distinction between

the act of a magistrate and the act of a

Court like that of the Isle of Man cannot be supported. No inference can be drawn from commitments for non-payment of money; such a commitment is in the nature of process, and is like a ca. sa. ; however the instrument be worded, the prisoner is discharged as a matter of course on payment of the money. In other cases, the party committed may call on the opposite party to exhibit interrogatories.

ERLE, J.: Do you say that a party committed for contempt must be committed for a time certain, and then be brought up?

Archbold: If the contempt be in the face of the Court, he may be committed at once, and finally, for a time certain. In Carus Wilson's case (a) the contempt was in the face of the Court; and, even there, the commitment was, in effect, only till the fine was paid and an apology made. In Van Sandau v. Turner,(b) also, the contempt was committed in the face of the Court. Rex v. Clement (c) was the case of a fine. In Brenan's case (d) there was a perfect judgment, which appeared, by affidavit, to be in conformity with the law of Jersey; this Court, not having the power to entertain a writ of error from Jersey, could not interfere.

Generally, no Court has power to im prison, in the first instance, for a contempt committed out of Court; Rex v. Pocock, (e) Rex v. Revel, (f) and Reg. v. Wrightson (g); Dr. Middleton's case, in Rex v. Wiatt, (h) may be cited against this, but the proceeding there may be questioned. Though Courts may take cognizance of what passes before them, it is an usurpation upon the province of a jury to determine a matter of fact which the Court does not witness. At any rate, it appears from the Statute of the Isle of Man, A.D. 1736,(i) that, in that island, the

(a) 7 Q. B. 984.

(b) 6 Q. B. 773.

(c) 4 B. & Ald. 218; 11 Price, 68. (d) 10 Q. B. 492.

(e) 2 Str. 1157. (ƒ) 1 Str. 420. (g) 2 Salk. 698. (h) 8 Mod. 123.

(i) The Ancient Ordinances and Statutes of the Isle of Man. Edited by Mills. Douglas, 1821.

The statute of 1736 (10 Geo. 2.) enacts, among other things: "That no Court, judge, or magistrate within this isle whatsoever shall have power or authority for the future to impose or inflict any fines or punishments upon any person or persons within the said isle, for or on account of any criminal cause whatsoever, until he, she, or they be first convicted by the verdict or presentment of four, six, or more men, as the case shall require, upon some statute law in force in the said island." "Provided"" that