Ninthly, On the ensuing morning, it will scarcely be believed that a renewed application was made for a list of the names of the witnesses indorsed on the back of the indictment! Again the old question was elaborately argued, on professedly new grounds, on both sides, and again the judges delivered judgments seriatim as before, and with the like result. A rule was then obtained by the Attorney-General for a special jury. The battle-field was now to be looked for in another quarter-the Recorder's Court-where the jury-lists to be in force during the ensuing year were to be made out, or rather the existing one revised; the great struggle on the part of those representing the accused being to introduce the names of as many Roman Catholics as possible. The fight was furious for an entire fortnight! Then the battle was transferred to the Crown Office on the 3d, 4th, and 5th January, where both parties, with their counsel, attended, for the purpose of striking" the special jury-i.e., reducing it to twentyfour names, by each party striking out one alternately; and the result was, as might have been expected, from the preponderating numbers of Protestants on the jury lists, that those twenty-four were such. The object of the Crown officers had been only the legitimate one, of rejecting all persons whom they had reason to believe disqualified for dispassionately acting as jurymen, from sharing the extreme political opinions of the defendants, on the subject of repealing the Union. At the opening of Hilary Term, on the 12th January, occurred the next obstructive step of the defendants, which we shall call, resuming our series

Tenthly, An application to quash the panel of special jurors, or to add twenty-seven names to it, omitted on the alleged ground of fraud or mistake. This, also, the Court overruled unanimously. At length, on Monday the 15th January, came the day of trial. After no little delay and difficulty, owing partly to various of the proposed jurymen endeavouring to avoid the perilous and harassing responsibility prepared for them, twelve gentlemen were got into the box. But then, behold!

Eleventhly, A long elaborate challenge to the array; being in substance the same as number ten, unanimously disposed of against the accused three days previously. The Attorney-General instantly demurred to the challenge, supporting his demurrer with great promptitude and cogency of learning and ability; the whole matter was elaborately argued, and at length the Attorney-General was again victorious; one of the judges, however, Mr Justice Perrin, doubtfully dissenting from the rest of the Court. Thus was consumed the whole of the first day! On the ensuing morning, fresh efforts to get themselves excused were made by some of those called into the box; and when one of them alleged old age and bad health, it was interesting to witness the zeal with which his liability to serve was insisted on by the counsel for the accused, owing to the chance it afforded them of defeating the proceedings, by the juryman's becoming unable to serve! They succeeded; and twelve jurymen having at length, after all this protracted struggle to prevent that "consummation devoutly to be" deprecated, been sworn, Mr Napier opened the pleadings, and Mr Attorney-General rose to state the case of the Crown. He performed his anxious and responsible duty admirably. What a position he must have felt to be his-with sixteen of his brethren, pen in hand, and ears arrect, noting every topic, every word that fell from him each surcharged with eager professional rivalry, anxiety to defeat him, and fierce political antagonism! And the pens of thirty expert shorthand writers transferring to paper every syllable that he uttered-to be indelibly recorded, to be universally disseminated! If ever man, placed in a similar position, exhibited powerful and well-trained faculties, it was the Attorney-General on that momentous and memorable occasion. short, this learned gentleman from first to last exhibited a wonderful exactness, minuteness, and comprehensiveness of legal knowledge, and readiness in using it - indomitable resolution and unflagging vigilance. He depicted, steadily and patiently,

In

in strong but true colouring, the colossal conspiracy which he had so boldly undertaken to demolish by the unaided energies of the common law, and did demolish; for, though a technical objection ultimately secured a reversal of the judgment, it left the legal, moral, substantial merits of the case untouched, and the efficacy. of the common law completely vindicated. The Solicitor - General's * reply for the Crown was an exquisite specimen of legal logic throughout uniformly temperate, courteous, and convincing; exhibiting a marvellous mastery of the facts, and lucidity of arrangement. What a vivid contrast is exhibited between its severe simplicity and sobriety-its unwavering directness of purpose-and the impassioned, imaginative, excursive addresses of the eight counsel to whom he had to reply! Some of these addresses exhibited merit of a high order. Those of Mr Shiel and Mr Whiteside appear to us pre-eminent as displays of rhetorical power, with this distinction between the twothat the former appeared almost designedly unconnected with the evidence with the legal merits of the case; while the latter appears that of a well-trained, eloquent, and accomplished lawyer, addressing himself discreetly and ingeniously to those facts which were susceptible of being favourably presented to the jury, and diverting attention from those of a different description, by elegant, feeling, and sometimes very powerful declamation. Several portions of his speech appear to us to justify the extraordinary sensation called forth by the delivery of them. Incomparably the best speech, in a legal point of view, delivered on behalf of the accused, was that of Mr Henn, who was subtle, ingenious, plausible, and practical. If the intelligent jury was to be impressed favourably towards the prisoners, and desirous of seeing their way, according to law, towards an acquittal, Mr Henn went furthest in pointing out such a course to them. Towards the close of his address re disclaimed, with a quaint excess of

* Mr Sergeant Greene.

modesty, the possession of intellect enough to discharge his duties. "I am not gifted with an intellect which would enable me to grasp the vast variety of facts, and the mass of evidence which has been laid before you in the case." Mr O'Connell's address was temperate and tame— disappointing all who have read it, as we understand was the case with those who heard it: a mere repetition of the topics which he had been in the habit of urging in Parliament and in public meetings, in favour of the repeal of the Union. He thus concluded: "I leave the case to you; I deny that there is anything in it to stain me with a conspiracy; I reject with contempt the appellation. I have acted in the open day, in the presence of the Government, in the presence of the magistrates; nothing was secret, private, or concealed; there was nothing but what was exposed to the universal world." This sophism was thus conclusively disposed of by the Lord Chief-Justice, (Mr Pennefather, one of the ablest lawyers that ever sate on the Irish bench.) "Gentlemen, it is a mistake in law to say, that in order to establish conspiracy, it is necessary to prove the existence either of treachery or of secrecy, in order to complete this charge. I do not mean to say, but rather the contrary, that very often both treachery and secrecy do not concur in the existence of various conspiracies; they are cognate to such an offence; but I deny altogether that it is the law of this country that the existence of one or other of such ingredients should be proved, in order to constitute the crime of conspiracy. Secrecy is very often involved in it; but, in my opinion, and so I put it to you, it is not a necessary ingredient in the charge of conspiracy. Nay, more, if secrecy were a necessary ingredient in the crime of conspiracy, the present alleged conspiracy might have been carried on from its beginning to its final consummation, and the parties could never have been stopped in their progress, or charged with the crime of that

nature.' The summing up of the Lord Chief-Justice was excellent admirable throughout. Nothing could exceed the simplicity and accuracy with which he presented to the jury the true points of the bewildering complication of facts and reasoning with which they had been occupied so long. His own impressions of the case being strong and decisive, he presented them with unhesitating boldness and decision to the jury, without, at the same time, invading their province, or seeking to confuse its confines. The attempt subsequently made to impugn bis impartiality, on the strength of a single ambiguous expression-" the gentlemen of the other side," [when speaking of the counsel for the accused,] was contemptible: it was one, justly observes Mr Townsend, "which a gesture, a nod of the head, or motion with the hand, might at once explain. " The jury, after publicly expressing their embarrassment by the number and complexity of the issues which had been submitted to them-but which, we think, were submitted to them as satisfactorily as the nature of the case admitted of returned a verdict of guilty against all the defendants, in the last eight of the eleven counts of the indictment; against three of the defendants, (including Daniel O'Connell,) on the third count, and part of the first and second counts; and against four other of the defendants on parts of the first, second, and third counts. Had a verdict of Not Guilty been entered on those counts and parts of counts, in accordance with the real verdict of the jury, "all that exercise of forensic ingenuity," says Mr Townsend, "which afterwards perplexed the judges and divided the law lords, would have been stayed. Sed Dis aliter visum!" Suffice it, for our present purpose, to say, that the judgment pronounced by the Irish Court of Queen's Bench was subsequently reversed by the decision of a majority of one of three judicial peers against two t-the minority being supported by the overwhelming ma

jority of the judges called in to advise them, and only two of whom had expressed the opinions subsequently adopted by the majority of the judicial peers. This judgment was arrested, however, on only one single point; one arising necessarily after all the proceedings in the Irish courts had been completed, and founded on a mere matter of form, viz., the mode of entering the verdict on the record, and which was done, in conformity with the universally-understood practice, for a century and a half, in both the English and Irish courts! This technical objection of extremest shadowy tenuity-was suggested by the eminent English lawyers (the present Lord Chancellor, Sir Fitzroy Kelly, Mr Peacock, and Mr John William Smith. The point

was this. Some of the eleven counts were bad in point of law, and others good; and instead of entering the verdict "guilty" and "not guilty" in the counts respectively applicable to the verdict, the verdict was entered generally "guilty;" and the formal entry of the sentence was "for his offences aforesaid "—which, looking only at the formal entry on the record, might be taken to indicate that the judge had been influenced, in awarding sentence, by bad as well as good counts! All the law lords, and all the judges—including the minority of two-were taken by surprise, when this objection was started at the bar of the House of Lords; it had never been thought or heard of before; but it prevailed- and the prisoners were set at liberty, after having been confined, but very pleasantly, and with an extraordinary leisure of indulgence, for three months. To prevent the recurrence of such a hardship as carrying into effect a sentence, in case of misdemeanour, pending a writ of error, a statute was passed (8 & 9 Vict. c. 68) in the ensuing session, "to stay execution of judgment for misdemeanours, upon the parties giving bail in error," a just remedial measure for an admitted wrong. Though the defend

ants were thus restored to their liberty, and relieved from the payment of fines, and the finding of securities for their good behaviour, and so far the result of this State Trial was nugatory, it was in reality most potent. It crushed the conspiracy at which it had been aimed; and demonstrated in a way not to be misunderstood, and with resources not to be foolhardily hereafter undervalued, that it can do so again. The bubble of "Repeal" has burst, and no one has been able to blow another. The arch-conspirator, Daniel O'Connell, received a blow from which he never recovered. He lost ground irrevocably in the estimation of his once credulous fellow-country men, though he affected -such was the hard necessity of the condition which he had imposed upon himself to have still at heart the repeal of the Union, and made sickly and puny efforts to show that he was in earnest, and that success in the insane project was possible.

The only other Irish trial in Mr Townsend's collection, is that of William Smith O'Brien in the autumn of 1848, for high treason. The occurrences which led to it, however, are too recent, and the course, and incidents, and result too fresh in recollection, to admit of our dwelling upon it at any length. His conduct from first to last was calculated to excite emotions only of pity, contempt, and disgust; and while no one could, or can, entertain the slightest feelings of sympathy with him, it cannot be denied that, in his absurd campaign of treason, he showed a sense of gentlemanly feeling, of personal truth and honour, which leads one to attribute his conduct, in a considerable measure, to intellectual deficiency. He seems to have been unable to see the absurdity of his schemes, or to appreciate the personal risk he was running, or the moral enormity of his conduct. The country acted wisely, and with dignity, exhibiting a contemptuous clemency in forbearing to take the life which he had so clearly forfeited. He had been taken in the very act of high treason-an act unequivocal and glaring, of literally "levying war against our lady the Queen, in her

realm;" and his counsel must have been indeed at his wits' end to discover topics which might be urged on the jury without insulting their understanding. He adopted the only line open to him, and which was taken in Frost's case, as we explained in the first of these articles viz., to assert that the prisoner's object was not of a general, but a special and limited character - to effect, not a public national purpose, but a personal and selfish one. "This," observes Mr Townsend, graphically, "was the narrow ridge, scarcely sufficient for the foot to rest on; the frail, slight, ricketty plank over a yawning abyss, by which alone his counsel could hope to extricate their client; but his own speeches, letters, and acts rendered even this method of escape-rather, by the bye, an ignoble one-perfectly hopeless." The same desperate efforts were made by counsel, as in the cases of Frost and O'Connell, to secure the prisoner's escape by means of technical objections: applications to postpone the trial for non-delivery of lists of jurors and witnesses; a plea in abatement, founded on the same objection; a challenge to the array, on the ground of partiality in the sheriff— a charge, it need hardly be said, utterly groundless; and a claim to thirty-five peremptory challenges to the jury, according to the common law of England-a claim of course overruled. All, however, was ineffectual -as also was a subsequent Writ of Error to the House of Lords, argued with pertinacious zeal by four counsel. Sentence of death-the death of a traitor-was passed upon the prisoner; and on hearing that her Majesty had been most graciously pleased to spare his life, on condition of his being transported for life, this impracticable traitor argued that the Queen had no power to exercise this act of mercy! That her Majesty had such a power no lawyer doubted; but, to obviate all possible doubt on the subject, a declaratory act was immediately passed, (Stat. 12 and 13 Vict., c. 27,) entitled "An Act to remove doubts concerning the transportation of offenders under judgment of death, to whom mercy may be