« VorigeDoorgaan »
to the great hindrance of public justice, to the contempt and interruption of the Juftices and Com nislioners last above named, and others their fellows aforesaid, to the manifest disturbance and violation of the peace of our said Lord the King, to the great terror of all the liege and peaceable subjects of our faid
the King there being, in contempt of our faid Lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our said Lord the King, his crown and dignity.
And the said Attorney General of our faid Lord the King, for our faid Lord the King, further giveth the Court here to understand and be informed, that the said Sackville Earl of Thanet, Robert Ferguffon, Thomas Gunter Browne, Dennis O'Brien, and Thomas Thompson, unlawfully and maliciously devising and intending to break the peace of our said Lord the King, did, together with divers other ill-disposed persons, whose names are to the said Attorney General as yet unknown, on the twenty-first day of May, in the thirty-eighth year afore. faid, at Maidstone aforesaid, in the county of Kent, unlawfully, riotoully, routoully, and tumultuously assemble and gather them. felves together to break the peace of our faid Lord the King ; and being so assembled and gathered together, did then and there, with force and arms, unlawfully, riotously, routously, and tumultuously make and raise, and cause and procure to be made and raised, another very great noise, rout, tumult, riot, and disturbance, to the manifest disturbance and violation of the peace of our faid Lord the King, to the great terror of all the liege and peaceable subjects of our said Lord the King there inhabiting and being, in contempt of our faid Lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our faid Lord the King, his crown and dignity.
Whereupon the said Attorney General of our faid Lord the King, who for our faid Lord the King in this behalf prosecutech for our said Lord the King, prayeth the confideration of the Court here in the premises, and that due process of law may be awarded against them the said Sackville Earl of Thanet, Robert Fergusson, Thomas Gunter Browne, Dennis O'Brien, and Tho. mas Thompson, in this behalf, to make thein answer to our faid Lord the King touching and concerning the premises aforesaid.
Wherefore the Sheriff of the said county of Kent was commanded that he should not forbear, by reason of any liberty in his bailiwick, but that he should cause them to come to answer to our faid Lord the King touching and concerning the premises aforesaid.
And now, that is to say, on Wednesday next after the oc. tave of Saint Hilary in this same term, before our faid Lord the King at Westminster, come the faid Sackville Earl of Tha
net, Robert Fergusson, Thomas Gunter Browne, Dennis O'Brien, and Thomas Thompson, by Benjamin Burnett, their Clerk in Court; and having heard the said Information read, they seve. rally say that they are not guilty thereof, and hereupon they severally put themselves upon the country ; and the said Sir John Scott, who for our said Lord the King in this behalf prosecuteth, doth the like therefore.
MR. ATTORNEY GENERAL.
May it please your Lordships, and Gentlemen of the JuryI can very unfeignedly assure you, that I should have felt infi. nite satisfaction, if, in any view that I could take of what my country required of me, I could have determined not to have inftituted the present profecution.
Gentlemen, many reasons would have influenced me to act upon that with. . The first and the most important is, that I am obliged, by this Information, to impute to a Nobleman who is one of the defendants, and to the Gentlemen whose names occur upon this record as the other defendants, an offence which appears to me to be one of the most heinous, the confideration of which has been offered, in the history of our law, to the decision of a Jury.
Gentlemen, in so viewing the subject, I hope I may be al. lowed, though I am the prosecutor of this Nobleman and these Gentlemen, to express my regret that I am to make such an im. putation in a Court of Justice with respect to any of them : but, Gentlemen, when I consider that the pure administration of law in this country is the great security upon which all the public blessings known to the country reft; when I recollect that it is absolutely necessary for the free and uncontroled adminiftration of that justice, that those who have duties relative to any part of it should act under the impression that they are perfectly fe. cure in the administration of the justice of the country, it is quite impossible for me to act upon any other principle but this, namely, that it must be known that the Attorney-General of the country is bound, where there is a probable cause to impute to individuals that they have grossly violated that principle which requires that the adminiftration of justice should be safe, to put upon them at least the necessity of satisfying a Jury of the country that they are innocent of that charge.
Gentlemen, I agree that the charge is not to be made upon light grounds; that circumstances ought to be laid before the Officer of the Crown, which may justify him in the exercise of a fair and honourable discretion to bring forward the accusation ; and I shall go along with my learned friends in admitting, that the circumstance of the accusation being made, by no means de. cides that it is justly made : It is for you carefully and anxiously
to examine the circumstances of the evidence, and then to decide whether the first appearances of guilt have been also attended with actual guilt.
Gentlemen, the Information states to you, that at a Special Session of Oyer and Terminer held at Maidstone in the month of May laft, Mr. O'Connor, together with several other persons, were tried for the crime of High Treason, of which they had been accused by a Grand Jury of the county of Kent. The Information states, that the Jury had found four of the Defendants, Mr. O'Connor being one of the four, not guilty of the of. fence with which they were charged. The Information states, that before he was discharged; these Defendants (and you will give me leave to point out particularly to you the substance of the different charges in this Information) did, in open Court, and before any discharge, make a riot, and attempt to rescue him out of the custody of the Sheriff; that they affaulted three persons named in the first count of the Information, John Rivett, Edward Fugion, and Thomas Adams ; that they riotoully im. peded and obstructed the Commisioners of His Majesty in the due and lawful holding of the Session : The second count charges them with having, before the discharge of Mr. O'Connor, affifted him to rescue himself out of the custody of the Sheriff, and having assaulted Thomas Adams; who was acting in aid of the Sheriff: The third count charges them with having made a riot in open Court; and been guilty of the assault: The fourth count charges them with a riot in open Court, without the circumstance of the assault; and the last count charges them with a riot, without any addition of circumstances : And it will be for you to determine whether they are guilty of all of any of the charges ftated in this Information.
Gentlemen, I will endeavour now to open to you as much of this case as may enable you to understand as much of this evia dence as is offered to you; not entering into the minutiæ of the evidence, but endeavouring to assist you in the information you will presently receive from the witnesses, by ftating so much of the case as may make it intelligible to you, without presuming to state more to you; because, perhaps, in all cases where justice is to be administered, more particularly in criminal cases, it would be my wish that the Jury should learn it from those who are to state it upon their oaths, rather than receive any impresfion from the person standing in the fituation in which I have the honour to address you.
Gentlemen; the trial at Maidstone was, as I need not tell those to whom I have the honour to address myself, an extremely long one. The witnesses on both sides had been desired to witho. draw from the Court previous to the commencement of the trial. In the natural course of proceeding, the witnefes for the defendants were called after the witnefes for the prosecution; and
the Noblemen and Gentlemen who gave evidence in favour of Mr. O'Connor and the other defendants in that trial for High Treason, after respectively giving their evidence, remained in Court. It may be necessary for me here to state to you so much of the construction of the Court as will enable you to understand what I am now representing to you; you will have plans of the Court offered to you by and by, in order to make the evidence more intelligible. Give me leave to represent His Majesty's Commissioners to fit in the place where the learned Judges now fit; you will consider the Jury as sitting very nearly in the pofition, with respect to the Judges, as you now sit with relation to the Judges who now fit here. The Counsel for the prosecution fat, I think, in that part of the Court where that Gentleman is now fitting with a yellow waistcoat; and above them was a place in which the several witnesses were examined. The witnesses were therefore directly opposite the Jury, and the prisoners at the bar were removed somewhat behind the Counsel, who sat, as it were, in the place where I am now standing, there being some little distance between them and the prisoners, who were in the bar behind.
Gentlemen, after the feveral witnesses had been examined for the prisoners, most of them, I believe, remained in Court; and I should not make the observation, if it did not appear to me material with reference to the present case. Indeed, I should not be justified in making the observation, if I did not find it to be material to the present cafe ; for the circumstance of the witnesses having been removed out of Court before the trial began was extremely favourable, I do not mean to say otherwise than justly so, to the prisoners, because, after the case had been proved, such as it was, on the part of the prosecution, one feels it a little difficult to believe, that if that evidence had been heard, by the witnesses for the defendants, which had been given by the witnciles for the prosecution, the evidence that was given for the defendants could have been given ; and this is material in this point of view, because with respect to the Noble Lord who is one of the defendants upon this record, and with respect to some other defendants upon this record, although they had not heard the evidence in the course in which it was offered to the attention of the Jury, yet, before the circumstances happened which are charged in this Information as circumstances of criminal guilty no one of the defendants, as far as I know, I mean, could have been ignorant of the circumstances actually proved with respect to Mr. O'Connor, as that evidence applied to his relation to England or his relation to Ireland ; and I will state presently the use I mean to make of that circumstance. Gentlemen, in the course of the afternoon which preceded the conclusion of the trial, I have reason to believe that Lord Thanet, and the other persons upon this record, very ftudiously and anxioully placed themselves
in that part of the Court in which they conld act with effect with respect to the rescue of Mr. O'Connor. Gentlemen, with respect to one of the defendants, whom, as a gentleman in the profeffion to which I belong, I certainly profecute with all the regret that can belong to that circumstance, but which, at the same time, must not supersede the obligations I owe to the Public--that gentleman had been in Court during the whole of the trial : he had been Counsel for some or one of the prisoners ; and he was placed, in consequence of the duty he had to discharge, in a situation in which, if he chofe fo to exert himself, he cer. tainly could be useful in this attempt to rescue Mr. O'Connor. With respect to the Noble Lord, I need not, I am sure, in this place, state to you, that he holds in this country the character of arı hereditary member of the Constitution ; and with respect to the last gentleman whom I mentioned, Mr. Fergusson, I take leave to say, besides the general duty he owed to the Public in a matter of this nature, there was another very high duty imposed upon him, which I hope and trust Gentlemen who sit behind me will never forget-that that Gentleman, as a barrister, owed a duty to the Court--that it is their bounden duty, that it is a very facred duty of their’s, instead of interrupting the course of justice, to aflift it in every fair, honorable and effectual way.
Gentlemen, a verdict of Not Guilty was given in the case of Mr. O'Connor ; and here I am very ready to admit this, that if I could have persuaded myself that the circumstances which then took place, namely, that Mr. O'Connor, in confe. quence of that verdict, misconceiving that he was discharged, and acting under that impuife, had intended merely to mix himself with the rest of the Court, and that those who had been charged with the care of his interests, or those who thought well of him, had acted upon the impulse of the feelings of that moment, which might certainly have been such as to have milled men who, upon better consideration, would not have fo acted, it would have become me to have hesitated before I determined, confiftently with an attention to the public safety and to the public interests, to have instituted this prosecution.
Now, Gentlemen, before I proceed to state to you the circumstances to which I beg your serious attention, I will state to you the motives with which I do it. When I state the cir. cumstance of a warrant having been issued to apprehend Mr. O'Connor, conceiving, as I do, that some persons either knew, or believed or conjectured, that there might be some other demand of justice upon O'Connor, and that therefore they were determined he Thould not remain in Court till he was regularly discharged, for the purpose of preventing that other demand of justice being made upon him - I say the offence, even in that way, is of so aggravated a