Blackwood's Edinburgh Magazine, Volume 56, Number 349, November, 1844. Various
in divers places, and at divers times, within Ireland, and by means of unlawful, seditious, and inflammatory speeches and addresses, to be made and delivered at the said several places, on the said several times, respectively, and also by means of the publishing, and causing and procuring to be published, to and amongst the subjects of her said majesty, divers unlawful, malicious, and seditious writings and compositions, to intimidate the Lords Spiritual and Temporal, and the Commons of the Parliament of the United Kingdom of Great Britain and Ireland, and thereby to effect and bring about changes and alterations in the laws and constitution of this realm, as now by law established."
The indictment was laid before the grand jury on the 3d November 1843, and, after long deliberation, they returned a true bill late on the 8th of November. After a harassing series of almost all kinds of preliminary objections, the defendants, on the 22d November, respectively pleaded "that they were not guilty of the premises above laid to his charge, or any of them, or any part thereof: " – and on the 16th January 1844, the trial commenced at bar, before the full court of Queen's Bench, viz. the Right Honourable Edward Pennefather, Chief-Justice, and Burton, Crampton, and Perrin, Justices, and lasted till the 12th February.
The Chief-Justice – a most able and distinguished lawyer – then closed his directions to the jury.
"I have put the questions to you in the language of the indictment. It lies on the crown to establish – they have undertaken to do so – that the traversers, or some of them, are guilty of a conspiracy, such as I have already stated to you – a conspiracy consisting of five branches, any one of which being brought home, to your satisfaction, to the traversers or traverser, in the way imputed, will maintain and establish the charge which the crown has undertaken to prove."
The jury were long engaged in discussing their verdict, and came once or twice into court with imperfect findings, expressing themselves as greatly embarrassed by the complexity and multiplicity of the issues submitted to them; on which Mr Justice Crampton, who remained to receive the verdict, delivered to them, in a specific form, the issues on which they were to find their verdict. They ultimately handed in very complicated written findings, the substantial result of which may be thus stated: All the defendants were found guilty on the whole of the last eight counts of the indictment, viz., the Fourth, Fifth, sixth, seventh, Eighth, Ninth, Tenth, and Eleventh counts.
Three of the defendants – Daniel O'Connell, Barrett, and Duffy – were also found guilty on the whole of the Third count, and on part of the First and Second counts – [that is to say, of all the first and second counts, except as to causing meetings to assemble "unlawfully, maliciously, and seditiously."]
Four other of the defendants – John O'Connell, Steele, Ray, and Gray – were also found guilty of a part of the First, Second, and Third counts – viz., of all, except as to causing meetings to assemble unlawfully, maliciously, and seditiously, and exciting discontent and disaffection in the army.5
As soon as these findings had been delivered to the deputy-clerk of the crown, and read by him, a copy of them was given to the traversers, and the court adjourned till the ensuing term.
It should here be particularly observed, that it has been from time immemorial the invariable course, in criminal cases, as soon as the verdict has been delivered, however special its form, for the proper officer to write on the indictment, in the presence of the court and jury, the word "Guilty," or "Not Guilty," as the case may be, of the whole or that portion of the indictment on which the jury may have thought fit to find their verdict; and then the judge usually proceeds at once to pass judgment, unless he is interrupted by the prisoner's counsel rising to move "in arrest," or stay of judgment, in consequence of some supposed substantial defect in the indictment. But observe – it was useless to take this step, unless the counsel could show that the whole indictment was insufficient, as disclosing in no part of it an offence in contemplation of law. If he were satisfied that there was one single good count to be found in it, it would have been idle, at this stage of the proceedings, to make the attempt; and it very rarely happens that every one of the varied modes of stating the case which has been adopted is erroneous and insufficient. If, then, the motion was refused, nothing else remained but to pass the sentence, which was duly recorded, and properly carried into effect. No formal or further entry was made upon the record – matters remaining in statu quo– unless the party convicted, satisfied that he had good ground for doing so, and was able to afford it, determined to bring a writ of error. Then it became necessary, in order to obey the command contained in the writ of error, to "make up the record" —i. e. formally and in technical detail to complete its narrative of the proceedings, in due course of law; for which purpose the verdict would be entered in legal form, generally (if such it had been in fact) or specially, according to its legal effect, if a special verdict had been delivered.
To return, now, to the course of proceedings in the present instance.
After desperate but unsuccessful efforts had been made, in the ensuing term, to disturb the verdict, the last step which could be resorted to in order to avert the sentence, was adopted – viz., a motion in arrest of judgment, on the main ground that the indictment disclosed in no part of it any indictable offence. It was expressly admitted by the traversers' counsel, in making the motion, that if "the indictment did disclose, with sufficient certainty, an indictable offence in all or any of its counts, the indictment was sufficient;" and it was then "contended, that not one of the counts disclosed, with sufficient certainty, that the object of the agreement alleged in it was an indictable offence." The court, however, was of a different opinion; and the Chief-Justice, in delivering his judgment, thus expressed himself – "It was boldly and perseveringly urged, that there was no crime charged in the indictment. If there was one in any count, or in any part of a count, that was sufficient." So said also Mr Justice Burton – "We cannot arrest the judgment, if there be any count on which to found the judgment" – the other two judges expressly concurring in that doctrine; and the whole court decided, moreover, that all the counts were sufficient in point of law. They, therefore, refused the motion. Had it been granted – had judgment been arrested – all the proceedings would have been set aside; but the defendants might have been indicted afresh. Let us once more repeat here – what is, indeed, conspicuously evident from what has gone before – that at the time when this motion in arrest of judgment was discussed and decided in the court below, there was no more doubt entertained by any criminal lawyer at the bar, or on the bench, in Ireland or England, that if an indictment contained one single good count it would sustain a general judgment, though there might be fifty bad counts in it, than there is of doubt among astronomers, or any one else, whether the earth goes round the sun, or the sun round the earth. Had the Irish Court of Queen's Bench held the contrary doctrine, it would have been universally scouted for its imbecility and ignorance.
Having been called up for judgment on the 30th May, in Trinity term last, the defendants were respectively sentenced to fine and imprisonment, and to give security to keep the peace, and be of good behaviour for seven years; and were at once taken into custody, in execution of the sentence. They immediately sued out writs of error, coram nobis– (i. e. error in fact, on the ground that the witnesses had not been duly sworn before the grand jury, nor their names authenticated as required by statute.) The court thereupon formally affirmed its judgments. On the 14th June 1844, the defendants (who thereby became plaintiffs in error) sued out of the "High Court of Parliament" writs of error, to reverse the judgments of the court below. On the writ of error being sued out, it became necessary, as already intimated, to enter the findings of the jury, according to the true and legal effect of such findings, upon the record, which was done accordingly – the judges themselves, it should be observed, having nothing whatever to do with that matter, which is not within their province, but that of the proper officer of the court, who is aided, in difficult cases, by the advice and assistance of counsel; and this having been done, the following (inter alia) appeared upon the face of the record: – The eleven counts of the indictment were set out verbatim; then the findings of the jury, (in accordance with the statement of them which will be found ante;) and then came the following all-important paragraph – the entry of judgment – every word of which is to be accurately noted: —
"Whereupon
Two of the defendants' (the two priests) names do not appear in the record of the verdict, as one of them (Tyrrell) died before the trial, and as to Tierney, the Attorney-General entered a