« VorigeDoorgaan »
its conclufion, I think the Noble Peer, the Defendant, who holds a fituation high in this country, ought to join with all his fellow-subjects, in thankfully acknowledging, that the Attorney-General, having reasonable accufing evidence to lay before a Jury (whether it is satisfactory to their minds, is another confideration), should shew to the country, that transactions of this sort shall not be carried on, without being brought under the notice of a Court of Justice.
Gentlemen, Accusations of all sorts are tried in this country with great propriety ; but if you acquit a man of treason, is a man to start up and say, that the public are to be indignant, because another warrant has been issued against him? I re. member in this very Court, in the last cause that was tried here at bar, my Lord exerted himself with great vigour, by taking immediate notice of such an insult as was then offered to the Court. My Learned Friend says, why did not the Judges, who were present, do their part, by taking notice of the fact at the moment ? I will give the answer to that : The Judges of the country are but men. Although they are placed in high judicial and honourable situations, yet they are placed in fitua. tions in which they are to see that their condugt is not only the best that they can pursue, but, when they proceed to acts of punishment, that their conduct is perfectly adapted to the subject with which they are dealing. If the five Judges upon the Bench had seen this as an idle panic, perhaps those Judges would have treated it as an idle panic. But how does Mr. Juftice Heath, upon
Learned Friend relies so much-how does he mention the scene that was passing? He says that he never witnessed such a scene before.-My Learned Friend says, I might have called another Learned Judge as a witness, but when I call witnesses who are above all suspicion, men as honourable as any men in this country, to state to you all that that Learned Judge would have had to state to you, I think I shall have acted neither unfitly for the public, or the Defendants. But with reference to that conversation (upon which I must farther observe by and by) that has been ftated by Mr. Solicitor-General and by Mr. Abbott, to have passed between Mr. Justice Law. rence and Lord Thanet, I Thould be glad to know, what foundation there is for the reasoning of my Learned Friend, that Mr. Justice Lawrence ought to have committed or attached Lord Thanet. I think I am entitled, under the circumstances of the evidence in this case, to represent him as perfectly ignorant of those causes which occasioned fo much confusion in the Court.
Mr. Erskine-.-I never meant to say so.
Mr. Attorney-General --My Learned Friend certainly did not state it exactly in these words; but he will, I am sure, excuse mę for putting him in mind of the expression he made use
of, and I shall now endeavour to repeat the very words he used, “Mr. Justice Lawrence, instead of asking Lord Thanet to: “ do him a kindness, should have attached him. My Learned Friend will not, I am fure, interrupt me again ; for when I take notice of any thing that is said in so able a defence, I do not mean to lay it down that Counsel are to be responsible for every expression that hasily falls from them ; but expressions may have an application which I feel it my duty to remove ; and I only wish to set right one of the most respectable, and indeed all those respectable characters who presided on the Bench upon that day. I shall therefore say no more upon that subject.
Gentlemen, The question is now before you ; and I am happy to have the testimony of my Learned Friend, that, taking this proceeding as a mere proceeding of accusation, it is a highly proper one; and when I state that, I mean to state merely the satisfaction I feel in the concurrence of his opinion with mry own judgment.
Gentlemen, Having faid thus much, give me leave to concur moft fully in all that my Learned Friend says, with respect to the beneficial effects of a lenient administration of the law, but not so lenient as to make the law ineffectual.
Gentlemen, It was hinted w me, before Learned Friend began his address to you, that, with respect to two of the Defendants, it might be consistent with the interests of justice, that the trial should end there ; and why did I consent to that? There was evidence to go to the Jury, as against Mr. Thompson ; I admit, not evidence to convict him, not evidence, perhaps, with respect to his identity---But with respect to Mr. Gunter Browne, there was much more considerable evidence to go to you, subject ftill to the question of identity—But I know this, that the great interests of public justice are better satisfied, by not pressing for conviction, even when you can, perhaps, obtain it, if you think there are doubts whether or not you ought to obtain it.
Gentlemen, Another circumstance is, that I thought it due particularly to one Defendant, with respect to whom I think this the clearest case, Mr. O'Brien. I wished to give him the benefit of Mr. Browne's and Mr. Thompson's evidence, if he thought proper to call them, with respect to some material circumstances.
Gentlemen, Attend to what I am now stating.--When Mr. Sheridan is asked, whether, from the circumstances that fell within his observation, he believes that Lord Thanet and Mr. Fergusson meant to favour the escape of Mr. O'Connor ? he says: “ From the facts that fell within my observation, I anfwer it in the negative." So I say in this case, it is not merely (for the rules of evidence permit one fo to itate), it is not merely from what does appear, that a Jury is to judge, but
alto from that which does not appear. No:v see what is the cafe on the part of the Crown, with respect to Mr. O'Brien ! In the first place, you have the evidence of a most honourable person, Mr. Serjeant Shepherd.-Niy Learned Friend says, that, you, Gentlemen of the Jury, are not to attend to general questions, such as, “ Did a person appear to do so and so ?” but you are to have the facts as the grounds upon which that appearance is inferred. That proposition is to be carried this length, that as far as the nature of the transaction will adınit, instead of giving the impression of your mind, as collected from the circumstances, you shall give the circumstances which have created that impression. I am sure his Lordihip will remember, that in the case of Kyd Wake, who was tried for that detestable riot, with respect to the King's person, a question was put, “ Did he appear to be active in the riot?” and the Jury concluded that which they did conclude, upon that circumstance ; recollecting that the nature of the transaction was such, that they must be content with such an answer, And indeed my Learned Friends themselves put the question to Mr. Smith, and Mr. Warren, respectable witnesses unquestionably : “ Did they (the Defendants) appear to encourage the riots ?" But permit me to say, it did not reft so with Mr. Serjeant Shepherd; for he told you, he wished to give you the evidence
which he formed his opinion.-Gentlemen, you will next observe, that, giving Lord Thanet all the benefit that might arise upon this statute of 14 Geo. III. (upon which I shall say a word by and by), can Mr. O'Brien alledge any thing of that kind ? Rivett has toid you diftinctly (and so it turns out from Mr. Sheri, dan’s evidence), that there was a rumour of a warrant, which created so much indignation ; Mr. Sheridan admits, that there was that rumour, but Mr. O'Brien did not chuse to rely upon that; he wanted to know how the truth of the rumour was ; and accordingly, in the presence of Mr. Thompson, a member of parliament, he did make inquiries of Rivett, and coming to hia, as Rivett relates, he, Mr. O'Brien, propofed a bet; he fays, that Mr. O'Brien then went back again to where Mr, O'Connor was : there was fome conversation between them, and when the verdict is brought in Mr, O'Connor attempts to escape. Now, I ask you, as honef Jurymen, if this is not true, why is it not contradicted; and if it is true, is it possible to acquit Mr. O'Brien?
Now, with respect to the case of my Lord Thanet and the case of Mr. Ferguffon, Gentlemen, I declare to you most folemnly, that I respect the high fituation of the one, as I respect the profesfional situation of the other; but in this case, Gentlemen, the question, and the only question is, “Did they make a riot ?" I defire that the quetion may be put upon its true merits. My Learned Frieni says, " It is a molt extraordinary thing, that in
fuch a cafe as this, ftating that there was a general riot, we
question was put to me, upon what was probable or what was improbable, after hearing the evidence upon that Trial.
Gentlemen, That there was a riot, is clear beyond all doubt. Now let us see how it is occasioned: ---Mr. O'Brien knew of this rumour, at the time the application was made to the Court, by Rivett and Fugion. He was aware, that Mr. O'Connor was not discharged. He learned, and Lord Thanet learned, and I believe nobody doubts the fact, that every body learned this circumstance, not only that he was not then to be discharged (with reference to which I am happy to find that my Learned Friend and I agree upon the point of law), not only that he was not then to be discharged, but it was publicly taught to every body in Court, what was the reason and what the cause for which his discharge was to be withheld from him. And here, without commenting upon that measure, which is fupposed to have raised fo much indignation, I take leave to fay moft confidently, that it does not belong to any person, of any rank or situation whatever, to interpose in the execution of a warrant, upon his notion whether the magistrate has acted right or wrong in granting it.-It is granted and must be acted upon.--If the magistrate has acted improperly, the law of the country is not so feeble, as not to be able to reach the misconduct of the magistrate. If every man is to judge in such a case, surely the country is in a situation most embarrassing, most difficult, and most awful ; (for, remember, if men will take the law into their own hands where there are verdicts of Acquittal. they may where there there are verdicts of Guilty). Well, then, the parties having distinctly learned, that there was a warrant, and having been authoritatively told, that this warrant having ifsued, Mr. O'Connor was not to be discharged; I shall call your attention to what I take to be the few circum. ftances that must decide this case :-Gentlemen, if you please I will
put it so, not to give Rivett any credit, if, upon any other part of the case, he is contradicted ; but I should do that with great reluctance, till I am fatisfied that he is not worthy of credit. But I will say this, that you may reject the whole of the evidence of Rivett, with respect to Lord Thanet and Mr. Fergusson, out of the cafe, and say, whether out of the negative evidence given on the other side, you can get rid of the facts sworn and deposed to by persons whose characters are out of the reach of the breath of suspicion.
In the first place, with respect to the evidence of somebody, whose name I forget, upon the trial at Maidstone, a witness was asked, whether Mr. O'Connor wished to favour an inva. fion of Ireland ? he said, Quite the contrary.--So here, a wit. ness when he was asked, whether Mr. Ferguffon appeared to be favourable to this rescue, he said, " Quite the contrary." This was a much stronger negation than that of the Maidstone