upon the fubject. It appears to me, that if I had been struck two or three times by that officer, the manner in which I would have acted upon that occafion would certainly not have been to have immediately, ftated that "it was fair the prifoner *fhould have a run for it," but to have made fome application to have thofe punished of whofe conduct I had a right to complain. Now, this evidence of the Solicitor-General is also confirmed by Mr. Abbott, and by Mr. Serjeant Shepherd, who ftates to you what Lord Thanet did; and he states it to you, that he was not holding up his hands for the purpose of rescuing himself from the preffure of the mob, but was holding up his hands to defend himself against thofe perfons who were purfuing Mr. O'Connor; and he gives his evidence in fuch a way, that you can have no doubt as to the personal conduct of Lord Thanet. Then when you have heard this evidence on the part of the profecution, I mean the evidence that goes to pofitive facts, it will be for you to decide whether they are not all reconcileable with the negative evidence given on the part of the Defendants. I have not gone into the whole of the evidence, because I feel that my Lord has a painful and an anxious duty to perform, and whatever your verdict may be, I am confident and fure that this profecution will have been very beneficial to the country. I hope and truft that I fhall never see such another; but whenever I fee an occafion which calls for it, whilft I hold the fituation which I have the honour to fill, I will not fail to inftitute it.

Gentlemen, having faid thus much, and having endeavoured to difcharge myself of my duty, you will be good enough to fay what is due as between the Public and the Defendants,

LORD KENYON'S CHARGE TO THE JURY.

GENTLEMEN OF THE JURY,

IF I could, confiftently with my own fenfe of my duty, or confiftently with the public expectations-confiftently with the expectations of the Bar on the one fide and the other, and with your expectations-I could relieve myfelf from going through, in detail, all the particulars of this cafe, after confiderable bodily and mental exertions already, I should cer

tainly

1

tainly fave myfelf from a great deal of trouble. But I will not fhrink from the difcharge of my duty, though it may be attended with labour and pain.

This is a cafe of the first importance. I do not remember any cafe that ever happened in my time, in the fhape of a mifdemeanour, of more importance to the Public: and it has been conducted in the most folemn manner. It is brought before the whole Court, affifted by a Jury of Gentlemen from the county of Kent, taken from the highest orders of the people, and whofe educations and ftations in the world qualify them to decide caufes of fuch importance. It is ufual, in causes of this kind, where there is a number of Defendants, and where the evidence does not extend fufficiently to them all, to fubmitto the Jury, before the end of the caufe, whether those upon whom the evidence does not attach, ought not to be acquitted, in order that the other Defendants may avail themselves of their evidence, if they fhall think proper. It was with a view to that very state of the queftion that I took the liberty to fubmit to you, that two of the Defendants ought to be acquitted before the other Defendants produced their evidence; and I did it with a view that the others might, if they thought fit, appeal to their evidence, to fhew, on the reft of the cafe, what the real state and juftice of it was.

In difpenfing the criminal justice of the country, we have fometimes an arduous talk to perform. It is not a pleasant thing, moft certainly, to condemn any one of our fellow-creatures to punishment; but those who are entrusted with the adminiftration of the criminal juftice of a country, muft fummon up their fortitude, and render juftice to the Public, as well as juftice tempered with mercy to the individual, I have the authority of Lord Hale, one of the greatest and best men that ever lived, for faying, that Juries are not to overlook the evidence that they are not to forget the truth, and to give way to falfe mercy; but, without looking to the right hand or the left, they are to weigh the evidence on both fides, and then, according to the best of their judgment and understanding, to do juftice to the Public, as well as to the Defendants.

Before I proceed to fum up the evidence, I fhall only make one other obfervation, which was made by Mr. Whitbread in giving his evidence, the tone of whofe voice I never heard before. Having gone through his evidence, he gave us this legacy, as a clue to direct us in the decifion of this cafe-" that,

in a fcene of fo much confufion, there are many things which "muft escape the obfervation of every individual." Having ftated thus much to you, I will now proceed to fum up the evidence; and when I have done that, I fhall make fome few obfervations on it. [His Lordship here fummed up the evidence on both fides, and then proceeded as follows :]

I now proceed to make a few obfervations of my own. There is no occafion to give you my authority, or the authority of those who hear me, upon this point.-There is no doubt that the prifoner was not entitled to be difcharged; for, when a verdict of acquittal is entered, a Judge may order a party to be detained, and compel him to anfwer other charges that may have been brought against him. On this point there is no difference of opinion; it is not even difputed at the Bar: the cafe is clear; and there is no doubt upon earth that a prifoner, in many cafes, though he may be acquitted, as in the cafe of an appeal of murder, cannot be discharged though he be acquitted of the murder.

I have ftated the evidence on the one fide and the other ; and although there is ftrong contradictory evidence, yet I think there is a great deal of evidence which goes in fupport of the charge. There were fome obfervations made by the Learned Counfel for the Defendants, which perhaps were not altogether warranted. Counsel are frequently induced, and they are juftified in taking the most favourable view of their client's cafe; and it is not unfair to pafs over any piece of evidence they find difficult to deal with, provided they cite fairly and correctly thofe parts of the evidence they comment upon. The Learned Counsel for the Defendants, in his remarks on the evidence, totally forgot the evidence of Mr. Parker. If his evidence is to be believed, and I know no reason why it is not, he certainly gave impor tant evidence in fupport of this charge-that the Defendants evidently appeared to be attempting to ftop the officers, and affifting the efcape of Mr. O'Connor. The Learned Counsel for the Defendants did not choose to deal with this evidence, though he conducted the caufe with all poffible discretion, abilities and eloquence. As I have before observed, there is apparently a great deal of contradiction in this cause. I must again ftate the obfervation of Mr. Whitbread, and which was obvious if he had not made it, that," in fuch a scene of tu❝ mult and confufion, many things must pass which escape the ❝ obfervation of every individual." But there is no doubt of one thing-one thing is clear; if Rivett had not the fcuffle which he swears he had with Mr. Ferguffon and my Lord Thanet, and if he did not wrench a stick out of Mr. Ferguffon's hand, he is palpably forfworn, and grofsly perjured. For him there is no excuse in the world. What motive he might have I do not know he has no intereft; and in weighing the teftimony of witneffes, I cannot confider the rank of a perfon, nor his station. It is clear, if he has not told the truth, he is guilty of perjury, In this fcene of tumult, men's minds must have been greatly diftracted. It is for you to fay what degree of credit you will give to all the witneffes.Thefe are the obfervations I have

tg

tempted this with hopes of fuccefs, with or without affistance This is matter for your confideration. It is very likely y have foreftalled all the obfervations I have made; but still was not lefs my duty to make them. The whole of this ca is for your decifion. It is a cafe in which the interests of t individuals, as well as of the Public, are highly embarked.

At eleven o'clock at night the Jury retired; and after bei out about an hour, they returned with the following verdict THE EARL OF THANET,

ROBERT FERGUSSON, ESQ.

}

Guilty.

DENIS O'BRIEN, Esq. Not Guilty.

8

Fiday, 3d May.

MR. ATTORNEY-GENERAL-In this cafe of the Kir against Sackville Earl of Thanet and Robert Ferguffon, Ef I have to pray of your Lordships the Judgment of the Court. LORD KENYON (to MR. ERSKINE)-Have you any thi to say for the two perfons convicted?

MR. ERSKINE The cause having been tried at Bar, yo Lordships are already apprized of every thing I could have offer. I believe Lord Thanet and Mr. Ferguffon wish to fa fomething to your Lordships.

LORD THANET:

My Lords, Before the Sentence is pronounced, I beg lea to address a few words to the Court :-not for the purpose impeaching the veracity of the witneffes for the profecutio or of arraigning the propriety of the Verdict; on thofe poin

I fhall fay nothing. What I mean to fubmit to the Court is, a fhort, diftinct narrative of the facts, as far as I was concerned in them.

I attended the trial at Maidstone in confequence of a subpoena. When I had given my evidence, I retired from the Court, without any intention of returning, until I was particularly requested to be prefent at the defence made by Mr. Dallas, the prifoners' Counfel. At that time I had never heard of the existence of a warrant against Mr. O'Connor, nor of any defign to fecure his perfon if he should be acquitted.--The place I fat in was that which Mr. Dallas had quitted, when he removed to one more convenient for addreffing the Jury. While fitting there, I heard, for the first time, from Mr. Plummer, that he had reafon to believe there was a warrant to detain Mr. O'Connor. When the verdict was pronounced, I went into the Solicitors' box, to fhake hands with Mr.O'Connor, which I did without even fpeaking to him. Many others preffed forwards, apparently for the fame purpofe.. Upon a call for filence and order from the Bench, or from one of the Officers of the Court, I immediately fat down on the feat under that part of the dock where Mr. O'Connor stood. At that period fome confufion arofe, from feveral perfons attempting to get towards him, one of whom said he had a warrant to apprehend him, for which he appeared to me to be reprimanded by Mr. Juftice Buller, in fome few words, which I did not diftinctly hear. The moment the Judge had paffed fentence on O'Coigly, a moft violent pushing began from the farther end of the feat on which I fat. From the fituation I was in, I did not perceive that Mr. O'Connor was attempting to efcape. He was a good deal above me, and I fat with my back to him. I continued fitting in my place, until several perfons on the fame feat were ftruck, among whom, I imagine Mr. Gunter Browne was one, from the complaint he afterwards made of ill-treatment, but whom I never faw before or fince to my knowledge. I then began to feel the danger I was in; but the tumult increased about me fo rapidly, that I was unable to get over the railing before me. I ftood up, however, and ufed all the efforts in my power to go towards the Judges, as to a place of fafety; but at that moment, by fome perfon or other, I was borne down on the table, where a man (I afterwards found was Rivett) ftruck at me feveral times with a stick, which I warded off, as well as I was able, with a small walking-ftick.--Rivett, as he ftruck me, charged me with striking him firft, which I denied, and called out to him, as loud as I could, that I had not ftruck him.

I have now detailed, as clearly as I am able, my fituation and conduct, during the disturbance; and I do moft folemnly declare on my word of honour, which I have been always