The reversal of the judgment against Mr O'Connell and his companions, was received throughout the kingdom with perfect amazement. No one was prepared for it. Up to the very last moment, even till Lord Denman had in his judgment decisively indicated the conclusion at which he had arrived on the main point in the case, we have the best reason for believing that there was not a single person in the House of Lords—with the possible exception of Lords Denman, Cottenham, and Campbell—who expected a reversal of the judgment. So much has the public press been taken by surprise, that, with the exception of a fierce controversy between the Standard, and Morning Herald, and the Morning Chronicle, which was conducted with great acuteness and learning, we are not aware of any explanation since offered by the leading organs of public opinion—the Times has preserved a total silence—as to the legal sufficiency or insufficiency of the grounds on which this memorable judgment of reversal proceeded. We shall endeavour to do so; for while it is on this side of the Channel perfectly notorious that the traversers have been proved guilty of the enormous misdemeanours with which they were charged—guilty in law and guilty in fact—on the other side of the Channel we find, since commencing this article, that the chief delinquent, Daniel O'Connell, has the amazing audacity, repeatedly and deliberately, to declare in public that he has been "acquitted on the merits!" Without pausing to find words which would fitly characterize such conduct, we shall content ourselves with the following judicial declaration made by Lord Brougham in giving judgment in the House of Lords, a declaration heard and necessarily acquiesced in by every member of the court:—
"The whole of the learned judges with one voice declare, that on the merits, at any rate, they have no doubt at all—that on the great merits and substance of the case they are unanimously agreed. That a great offence has been committed, and an offence known to and recognisable by the law; that a grave offence and crime has been perpetrated, and an offence and crime punishable by the admitted and undoubted law of the land, none of the learned judges do deny; that counts in the indictment to bring the offenders, the criminals, to punishment, are to be found, against which no possible exception, technical or substantial, can be urged, all are agreed; that these counts, if they stood alone, would be amply sufficient to support the sentence of the court below, and that that sentence in one which the law warrants, justifies, nay, I will even say commands, they all admit. On these, the great features, the leading points, the substance, the very essence of the case, all the learned judges without exception, entertain and express one clear, unanimous, and unhesitating opinion." And yet all the proceedings have been annulled, and the perpetrators of these great crimes and offences let loose again upon society! How comes this to pass? is asked with astonishment wherever it is heard of, both in this country—and abroad.
The enquiry we propose is due with reference to the conduct and reputation of three great judicial classes—the judges of the Irish Queen's Bench: the judges of England: and the judges of the court of appeal in the House of Lords. Familiar as the public has been for the last twelve months with the Irish State Trials, the proceedings have been reported at such great length—in such different forms, and various stages—that it is probable that very few except professional readers have at this moment a distinct idea of the real nature of the case, as from time to time developed before the various tribunals through whose ordeal it has passed. We shall endeavour now to extricate the legal merits of the case from the meshes of complicated technicalities in which they have hitherto been involved, and give an even elementary exposition of such portions of the proceedings as must be distinctly understood, before attempting to form a sound opinion upon the validity or invalidity of the grounds upon which alone the judgment has been reversed.
The traversers were charged with having committed the offence of conspiracy; which, by the universally admitted common law of the land for considerably upwards of five hundred years, exists "where two, or more than two, agree to do an illegal act—that is, to effect something in itself unlawful, or to effect by unlawful means something which in itself may be indifferent, or even lawful."[1] Such an offence constitutes a misdemeanour; and for that misdemeanour, and that misdemeanour alone, the traversers were indicted. The government might, as we explained in a former Number,[2] have proceeded by an ex-officio information at the suit of the crown, filed by the Attorney-General; but in this instance, waiving all the privileges appertaining to the kingly office, they appeared before the constituted tribunal of the law as the redressers of the public wrongs, invested however with no powers or authority beyond the simple rights enjoyed by the meanest of its subjects—and preferred an indictment: which is "a written accusation of one or more persons, of a crime or misdemeanour, preferred to and presented on oath by a grand jury."[3] Now, in framing an indictment, the following are the principles to be kept in view. They were laid down with beautiful precision and terseness by Lord Chief-Justice De Grey, in the case of Rex. v. Horne—2 Cowper's Rep. 682.
"The charge must contain such a description of the crime, that the defendant may know what crime it is which he is called upon to answer; that the jury may appear to be warranted in their conclusion of 'guilty,' or 'not guilty,' upon the premises delivered to them; and that the court may see such a definite crime, that they may apply the punishment which the law prescribes."
There may be, and almost always are, several, sometimes many, counts in a single indictment; and it is of peculiar importance in the present case, to note the reason why several counts are inserted, when the indictment contains a charge of only one actual offence. First, when there is any doubt as to which is the proper mode, in point of law, of describing the offence; secondly, lest, although the offence be legally described on the face of the indictment, it should be one which the evidence would not meet or support. The sole object is, in short, to avoid the risk of a frequent and final failure of justice on either of the above two grounds. Technically speaking, each of these counts is regarded (though all of them really are only varied descriptions of one and the same offence) as containing the charge of a distinct offence.[4] For precisely the same reason, several counts were, till recently, allowed in civil proceedings, although there was only one cause of action; but this license got to be so much abused, (occasioning expensive prolixity,) that only one count is now permitted for one cause of action—a great discretion being allowed to judge, however, by statute, of altering the count at the trial, so as to meet the evidence then adduced. A similar alteration could not be allowed in criminal cases, lest the grand jury should have found a bill for one offence, and the defendant be put upon his trial for another. There appear, however, insuperable objections to restricting one offence to a single count, in respect of the other object, on peril of the perpetual defeat of justice. The risk is sufficiently serious in civil cases, where the proceedings are drawn so long beforehand, and with such ample time for consideration as to the proper mode of stating the case, so as to be sufficient in point of law. But criminal proceedings cannot possibly be drawn with this deliberate preparation and accurate examination into the real facts of the case beforehand; and if the only count allowed—excessively difficult as it continually is to secure perfect accuracy—should prove defective in point of law, the prisoner, though guilty, must either escape scot-free, or become the subject of reiterated and abortive prosecution—a gross scandal to the administration of justice, and grave injury to the interests of society. If these observations be read with attention, and borne in mind, they will afford great assistance in forming a clear and correct judgment on this remarkably interesting, and, as regards the future administration of justice, vitally important case. There is yet one other remark necessary to be made, and to be borne in mind by the lay reader. Adverting to the definition already given of a "conspiracy"—that its essence is the mere agreement to do an illegal act—it will be plain, that where such an agreement has once been shown to have been entered into, it is totally immaterial whether the illegal act, or the illegal acts, have been actually done or not in pursuance of the conspiracy. Where these illegal acts, however, have been done, and can be clearly proved, it is usual—but not necessary—to set them out in the indictment for a conspiracy. This is called setting out the overt acts, (and was done in the present instance,) not as any part of the conspiracy, but only as statements of the evidence by which the charge was to be supported—for the laudable purpose of giving the parties notice of the particular facts from which the crown intended to deduce the existence of the alleged conspiracy. They consisted, almost unavoidably, of a prodigious number of writings, speeches, and publications; and these it was which earned for the indictment the title of "the Monster Indictment." It occupies fifty-three pages of the closely printed folio appendix to the case on the part of the crown—each page containing on an average seventy-three lines, each line eighteen words; which would extend to nine hundred and fifty-three common law folios, each containing seventy-two words! The indictment itself, however, independently of its ponderous appendages, was of very moderate length. It contained eleven counts—and charged a conspiracy of a five-fold nature—i. e. to do five different acts; and the scheme of these counts was this:—the first contained all the five branches of the conspiracy—and the subsequent counts took that first count to pieces; that is to say, contained the whole or separate portions of it, with such modifications as might appear likely to obviate doubts as to their legal sufficiency, or meet possible or probable variations in the expected evidence. The following will be found a correct abstract of this important document.
The indictment, as already stated, contained eleven counts, in each of which it was charged that the defendants, Daniel O'Connell, John O'Connell, Thomas Steele, Thomas Matthew Kay, Charles Gavan Duffy, John Gray, and Richard Barrett, the Rev. Peter James Tyrrell, and the Rev. Thomas Tierney, unlawfully, maliciously, and seditiously did combine, conspire, confederate, and agree with each other, and with divers other persons unknown, for the purposes in those counts respectively stated.
The first count charged the conspiracy as a conspiracy to do five different acts, (that is to say,)
"First. To raise and create discontent and disaffection amongst her Majesty's subjects, and to excite such subjects to hatred and contempt of the government and constitution of the realm as by law established, and to unlawful and seditious opposition to the said government and constitution.
"Second. To stir up jealousies, hatred, and ill-will between different classes of her Majesty's subjects, and especially to promote amongst her Majesty's subjects in Ireland, feelings of ill-will and hostility towards and against her Majesty's subjects in the other parts of the United Kingdom, especially in that part of the United Kingdom called England.