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THE QUEEN against SMITH O'BRIEN.
TRIAL OF WILLIAM SMITH O'BRIEN, M.P., FOR HIGH TREASON AT THE
CLONMEL SPECIAL COMMISSION, BEFORE BLACKBURNE, L.C.J.,(a)
PROCEEDINGS IN THE COURT OF QUEEN'S BENCH, IRELAND, BEFORE
BLACKBURNE, L.C.J., CRAMPTON, PERRIN, AND MOORE, JJ., ON
(Reported in 3 Cox C.C. 360.) JUDGMENT OF THE HOUSE OF LORDS ON WRIT OF ERROR, May 11, 1849.
(Reported in 2 H.L. 465.) High treason.(6) The prisoner was indicted for high treason, by levying war against the Queen in Tipperary between July 17th and 30t11, 1848, as hereinafter described, and by compassing to raise insurrection, and subvert the government, and put the Queen to death. Verdict, guilty of treasou by levying war. Held by the House of Lords, affirming the judgment of the Court of Queen's Bench, Ireland1. Treason-Levying war in Ireland—25 Edw. 3.- Poyning's Law, 10 Hen. 7. c. 22.
Levying war in Ireland is treason within the words “ levy war against the king in his
realm,” of the statute of 25 Edw. 3., acts which are treason in England under that statute having been made treason in Ireland, iť committed there, by Poyning's Law, 10 Hen. 7. c. 22., which provided that the statutes late made within the realm of England
concerning the public weal should be good and effectual within the land of Ireland. 2. Lists of witnesses and jurors—7 Ann.c. 21. ; 57 Geo. 3. c. 6. ss. 1-4; 11 8:12 Vict.c. 12. ss. 1, 2.
It was claimed for the prisoner that the British statute, 7 Ann. c. 21. giving prisoners in
treason trials a copy of the indictment and a list of witnesses and jurors ten days before
trial had been extended to Ireland by 57 Geo. 3. c. 6. s. 4, or by 11 & 12 Vict. c. 12. s. 2. The English statute of 25 Edw. 3. made it treason when a man doth compass or imagine
the death of the King, and is thereof provably attainted of open deed.
a copy of the indictment, and a list of witnesses and jurors ten days before trial.
made it treason if anyone should compass, imagine, &c., death or destruction, or any bodily harm tending to death or destruction, &c., of the King, or to deprive or depose him, &c., or to levy war against him, &c., and such compassing, &c., should express,
utier, or declare, by publishing any printing or writing, or by any overt act or deed. S. 4. of 57 Geo. 3. c. 6. provided that persons indicted for treasons made or declared by
that statute should be entitled to the benefit of 7 Ann. c. 21., save in charges of compassing the King's death, where the overt act alleged was a direct attempt against the person of the Sovereign. The Treason Felony Act, 1848, 11 & 12 Vict. c. 12.,(c) repealed all the provisions of
36 Geo. 3. c. 7. and 57 Geo. 3. c. 6. save the provisions therein recited affecting direct
Ireland. Held :-
was not a direct attempt against the person of the Sovereign, the prisoner could not
or of 11 & 12 Vict. c. 12. s. 2(d), because (a) Afterwards Lord Chancellor of Ireland.
(6) The fullest account of the events which gave rise to this trial is to be found in Sir Charles Gavao Dutty's “ Young Ireland,” Part II., or “ Four Years of Irish History, 1845-49 " ; See also Ann. Reg., Hist. 94 ; Walpole’s History of England, vol. 4, p. 333; M.Carthy's History of Our Own Times, vol. 2, p. 29; Townsend's State Trials, p. 474
(c) See 6 St. Tr. N.S. 599 n.
(d) The provisions of 7 Ann c. 21. are now extended to Ireland by 17 & 18 Viet. c. 26., "An Act to assimilate the law and practice in cases of high treason in Ireland to the law and practice existing in cases of high treason in England.” 83234. Wt. 21279.
(1) 57 Geo. 3. c. 6. ss. 1-4, perpetuating the British statute, 36 Geo. 3. c. 7. did not, when
passed, extend to Ireland. (2) S. 4 of 57 Geo. 3. c. 6. was not among the provisions of that statute extended to
Ireland by 11 & 12 Vict. c. 12. s. 2. (3) Even if it were, the only provisions so extended to Ireland by 11 & 12 Vict. c. 12. s. 2,
were such as related to direct attempts against the person of the Sovereign, an offence
for which the prisoner was not indicted. Quære, whether the wrongful omission to furnish the prisoner with a copy of the indict
ment together with lists of the witnesses and jurors ten days before trial could be raised
by way of plea on the record. 3. Caption.
A caption setting forth that an indictment was found at a special sessions of Oyer and
Terminer and General Gaol Delivery before three judges “nominated and appointed” to inquire into, hear, &c., by virtue of a commission under letters patent directed to them “and others in the said letters named,” was not bad for not showing that the commissiou
was joint and several. By CRAMPTON, J.,The Court has power to amend a formal error made by the officer of the Court in drawing
up the caption. 4. Peremptory Challenges in Ireland— Treason—9 Geo. 4. c. 54. s. 9.
9 Geo. 4. c. 54. 8. 9, restricting persons “ arraigned for treason, or murder, or for other
felony ” in Ireland to twenty peremptory challenges, applies to bigh treason as well as
petit treason. 5. Allocutus.
The record having averred that the prisoner had been called upon to say why the Court
should not proceed " to judgment" against him, instead of “ to judgment of death," or
"to judgment and execution,” such form of allocutus was sufficient. Ruled at the trial by Blackburne, L.C.J., Doherty, C.J., and Moore, J.6. Evidence.
On an indictment for levying war and compassing to subvert the government and put the
Queen to death, speeches made several months before the alleged levying of war were
held adınissible to show the intention with which war was levied. Documents found upon the prisoner at the time of arrest held admissible against him ;
also, documents fouud in a locked portmanteau belonging to him, of which the police obtained possession by his instructions after his arrest, but which had been out of his possession and control for some days before coming into the hands of the police. The Court refused to make an informer disclose the name of the person who had given
him certain information, the informer having stated that to answer the question would
expose such person to the risk of assassination. 7. Applications to inspect jury panel, and to ballot for jury, refused, pp. 19, 42. 8. Challenges to the array, Religion of Jurors, p. 20. 9. Prisoner invited to address the jury in treason cases after his counsels' speeches, p. 276.
TABLE OF PRINCIPAL MATTERS. CLONMEL SPECIAL COMMISSION. CHARGE OF BLACKBURNE, L.C.J., TO
Before BLACKBURNE, L.C.J., and DOHERTY, GRAND JURY, p. 4.
C.J., and MOORE, J.
Non- Thursday, September 21, 1848. DELIVERY OF LISTS OF WITNESSES, &c.,
The Special Commission having been APPLICATION TO INSPECT Jury Panel, p. 19. readCHALLENGE TO THE ARRAY, p. 20.
BLACKBURNE, L.C.J., delivered the fol. APPLICATION TO Ballor Jury, p. 42.
lowing charge to the grand jury, in which OPENING SPEECH FOR THE CROwn, p. 45. the events which necessitated the Special EVIDENCE FOR THE Crown, p. 73.
Commission are referred to. SPEECH FOR THE DEFENCE, p. 203.
My Lord Suirdale, and gentlemen of EVIDENCE FOR THE DEFENCE, p. 258.
the Grand Jury for the county of TipperREPLY, p. 276. SUMMING-UP, 292.
ary, I feel assured that you participate in ADDITIONAL EVIDENCE, p. 303.
muy feeling, and in that of every person MOHION IN ARREST OF JUDGMENT, p. 325.
who has the peace and happiness of the SENTENCE, p. 330.
country sincerely at heart, in the regret, WRIT OF ERROR IN THE Court of Queen's that Her Gracious Majesty has now, after BENCH, p. 331.
the lapse of bat a few months, found it WRIT OF ERROR IN THE HOUSE OF LORDS, necessary to issue that Commission which
has been just read to you, and by which
she calls upon her subjects to aid her, by to have determined to make the county of performing their duty in the adminis- Tipperary the scene of their further opetration of the criminal law of the land. | rations. Accordingly, large bodies of iho Distressing and deplorable as such a mea- people were assemb.ed; they were haransure would be under any circumstances, gued, and, upon more than one occasion, it becomes so in the last degree, when we it was distinctly announced that there was know that that measure has originated in to be an immediate arming of the populamachinations and attempts which consti- tion, with the view of severing [reland from tute the crime of high treason--a crime, the British dominion, and erecting it into the highest in degree that a subject can an independent kingdom. In pursuance of commit-a crime, whose object is the these instructions, which extended to the total destruction of our social system, the procuring of arms, by any means whateubversion of all security for property, ever, legal or otherwise, in the last week and for lise-and a crime which no reason- of July several armed bodies of men appear able being can contemplate without know- to have congregated in a part of the county. ing that it must lead to the shedding of They marshalled and trained, human blood, and that it must entail on and officers, upon some occasions of their the country all the horrors and all the meeting, nominated. Barricades were miseries of civil and social war.
erected in some parts of the county, As I have alluded to the former Special which, upon one occasion, had the effect Commission, under which the greater of obstructing the march of Her Majesty's number of you were called on to perform troops, and which upon that occasion apyour duties in the month of January pear to have been designed for the prolast, I think it but just to observe, that tection of a person or persons against the crimes and the outrages which formed whom warrants had been issued by Her the subject of your investigation at that Majesty's Government. On the 20th of period, do not appear to have any con- July these proceedings appear, for that nexion, as far as I am informed, with i time at least, to have reached their conthe matters which are now coming under summation. A body of police, on its your consideration. On the contrary, march to the scene of the disturbance I have reason to believe, and I do sin. which had taken place, was encountered cerely hope, that the firm administra- and nearly surrounded by ditferent armed tion of the law under that Commission, bodies of inen. The result was, that they and at the Assizes which have since inter took shelter in a house; and there an vened, has been attended with the most 'actual conflict took place between them salutary effects, and will justify a hope of ! and their assailants. On the same day the restoration of peace and order in your , another body of police was similarly ascounty.
sailed. The result in both cases is pro. Gentlemen, the crime of high treason bably known. This is all which I think is one, happily, of such unusual occurrence, it necessary to lay before you, preparatory and one with respect to which there are to the statement of those rules which, in peculiar provisions, which do not belong respect to the law of high treason, are to the investigation of other crimes or made for your goverument, the regulamisdemeanors, that I think it my duty tion of the Court, and the security of the to point out to you the peculiarities of subject. the law relative to that crime. But, in 'The indictments, as I am informed, order to make those observations intelli- gentlemen, will contain two distinct gible, I think it my duty to give you a classes of counts; and each of these general, and a very general, outline of the classes of counts relates to a distinct treanature of the case as it appears to me upon
Both are founded on the provisions the pernsal of the informations wbich have of a very ancient statute-a statute passed been laid before me on the part of the so long ago as the reign of King Ed. wn.
ward 3. It contains, amongst others, Gentlemen, it will appear from them, two provisions relating to the two disthat for some months past a political tinct species of treasons which are the body, a body or society formed for politi- | subject of the indictment. The first of cal purposes—held its meetings and con- those is expressed in the language of ducted its proceedings in the city of that day to be the compassing the death Dublin. At these meetings there were a of the Queen.” Gentlemen, by number of intammatory and seditious passing the death of the Queen,” it is not speeches delivered by the leading members meant merely to impute a design against of the body. About the middle or to the personal life or personal safety of wards the latter end of July these mem- the Sovereign-the Sorereign, whether bers—I mean the leading members, or king or queen, being in our constitution some of them-appeared in different parts the representative of the State--an atof the south of Ireland, and at last seemed tack upon the sovereign power of the