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advantages, which are inseparably connected with the prof. perity and security of this country : yet, from the mouth of this most unexceptionable witness, the most important parts of the evidence will receive the fullest confirmation. I shall also call Mr. Sheridan, who shewed his dispolition upon the occa. fion by his conduct, which was noticed and approved of by the Judges. This will furnish the defence of Lord Thanet aud Mr. Fergusion.
As to Mr. O'Brien, it is almost injurious to his interests to consider him as at all affected by any part of the proof: he does not appear to have been at all connecied with Mr. O'Connor, It has been said, indeed, that he proposed a bet to the officer on the existence of the warrant, and that he afterwards whispered Mr. O'Connor ; but at that period it could not relate to an escape. It has been said, farther, that he was on the spot, and that Mr. O'Connor
his hand on his shoulder : but that was no act of Mr. O'Brien's ; he neither touched him, nor used any effort to aliit him--no violence or obstruction is even imputed to him : even Rivett HIMSELF has not attempted to say, that, in his progress towards the prisoner, he was insulted by Mr. O'Brien, or that he even saw him.
I am not Counsel for Mr. Thompson, or Mr. Browne ; but I apprehend I have a right to call them as witnesses, and upon that I shall presently take the Court's opinion.--Rivett was desired to look round, to identify Mr. Thompson, but pointed to another gentleman who fat next him, and who had no sort of resemblance to him in person. Mr. Thompson, therefore, is not touched by any part of the proof; and nobody has said a word concerning Mr. Browne (as I before remarked to you), except that there was a gentleman, in a grey coat with a black collar, who had the misfortune to have his head broken, and of which he made a complaint to the Court.
Gentlemen, I am now, therefore, very near relieving you from the painful duty which this important cause has imposed upon you; a cause which, independently of the Attorney. General's privilege to choose the form of trial, was well worthy of the attention of this high tribunal. So far from com. plaining of a trial at bar, as an oppreffion of the defendants, I acknowledge the advantages they have received from it, not only in the superior learning and discrimination of the Court, but in the privilege of being tried by a Jury of Gentlemen assembled at a distance from all local prejudices, which has enabled them impartially to listen to both sides with such equal and such paa' tient attention. I have yet another advantage from a trial in this place, which it is fit I should advert to. It enables me to. remind the noble and learned Chief Justice of a course of practice from which he has never deviated, and from whence my clients will receive most abundant advantage.
Throughout the numerous criminal trials which it has fallen- to my lot to fee his Lordihip judicially engaged in, I have observed this uniform course. Where the decisions will not fit exactly the interest of the accused, and where Counsel, as far as professional honour will warrant, are driven in argument to qualify ther, and to divert their rigorous application, the Noble Lord summons up all the vigour of his mind, and fills up the full scope of his authority, to prevent the violation of the law ; because the law is an abstract and universal rule of action, the application of which can fuffer no modification :. but when the law is clear, and the question only is, whether persons accused of a breach of it are guilty or not guilty upon evidence, above all upon evidence which is contradictory-where testimony is opposed to testimony, and witness to witness, in such confoanding equality as that a Jury cannot with clearness arrive at the truth, I have a right to bring it to his Lordship's own recolle tioil, and, for his honour, to the recollection of others, that it has been his uniform practice, not merely to lean towards acquittal by his directions to Juries, but even to interpose his opinion with the prosecuting Counsel. In a civil cafe, indeed, where one man asferts that to be his right or property which his opponent controverts, a Jury must give a verdict for the one or for the other, though the scales may appear to be equal. In such cases a Judge is frequently obliged to laineht to Juries that they have a talk imposed upon them which neither the conscience nor understanding of man can fulfil with satisfaction: but I speak the language of his Lordíhip, and of all Judges, when I say, that between the pub. lic and individuals there can be no such race for judgment. Far different is the character of English justice; and there occurs to my mind at this moment a recent and memorable example. Whilst the attention of the Houfe of Commons was attracted to the great caufe of humanity, in its proceedings upon the Abolition of the Slave-Trade, a case was brought for the consideration of a Jury, arising out of the ill-treatment of a negro in an African thip. The captain upon his oath denied the alledged cruelty, and a bill of indictment for perjury was found by a Grand Jury against him. I conducted that profecution at Guildhall, and established the ill-treatment by several witnesses ; and although not one man, who was in the hip at the time, was called to contradiet' them, yet, on its only coming out, not from their admission, but upon the evidence for the defendant, that they had held a different language in an alehouse at Bristol, Lord Kenyon interposed on my rising to reply for the Crown. I had myself no doubt of the guilt of the defendant ; but his Lordship, though without even expressing that he hiinself entertained a different opinion, declared that the in. terests of the Public never could be served by a conviction on .
such contradictory evidence. We ought not, hé faid, with such materials, to leap in the dark to the conclusion of guilt. I acquiesced, as it was my duty; and the defendant, without any appeal to the Jury on the evidence, was acquitted.---1 should only weary you, Gentlemen, by a repetition of fimilar instances which croud into my memory at this moment. sure I could name above twenty, in this very place, upon proceedings for the obstruction of officers in the execution of their duty (proceedings most important to the public), where the evidence has been very contradictory, and where the Noble and Learned Lord, not being able to detect perjury in the defence, has uniformly held this language to Juries, and even to the Counsel for prosecutions : “ This is not a case for conviction ; “ the defendant may be guilty, but there is not a fufficient “ preponderation in the evidence to pronounce a penal judg
These are the maxims, Gentlemen, which have given to British Courts of Justice their value in the country, and with mankind. These are the maxims which have placed a guard around them in the opinions and affections of the people, which, I admit, is at the same time the sting of this case, as it deeply enhances the guilt of him who would disturb the administration of such an admirable jurisprudence. But, if the Courts of England are, on this very account, so justly popular and estimable ; if they have been, through ages after ages, the source of public glory and of private happinels, why is this trial to furnish an exception ? For myself, I can only say that I wish to do my duty, and nothing beyond it. Govern us who will, I defire only to see my country prosperous, the laws faithfully admini. stered, and the people happy and contented under them. Let England be secure, and I am sure no ambition of mine shall ever disturb her. I should rather say, if I were once difen. gaged from the duties which bind me to my profeilion,
« Oh for a lodge in some vast wilderness,
Where rumour of oppression and deceit,
Might never reach me more !"
my clients, or any of them, guilty, you are bound to convict them ; but, if there shall be ultimately before you such a case, upon evidence, as to justify the observations I have made upon the probabilities of the transaction, which probabilities are only the results of every man's experience in his passage through the world ;--if you should think that the appearances were so much against them as to have justified honourable persons in describing, as they have
done, their impressions at the moment, yet that the scene of confusion was such that you cannot arrive at a clear and subftantial conclufion--you will acquit all the Defendants.
[The Attorney-General retired from the Court.] Mr. Rous-My Lord, I am of Counsel for Captain Browne.
Lord Kenyon-When the Attorney-General comes in, I will put the question to him, whether he thinks there is sufficient evidence against him or Mr. Thompson?
[The Attorney-General returned.]
Mr. Garrow---My Lord, the Attorney-General has re. turned ; if your Lordship pleafes, I will put that question to him.
Mr. Attorney-General.--I understand, since I went out of Court (and I beg pardon of your Lordships for so doing), that something has been said relative to Mr. Thompson and Mr. Gunter Browne. With respect to the former of those gentlemen, undoubtedly, his person having been mistaken here in Court, I hould think it extremely improper that I should withhold from these Defendants the benefit of his teftimony. With re. fpect to Mr. Gunter Browne, I think there is some evidence against him, if I were struggling in this case, in a way in which I am perfectly sure your Lordship knows the AttorneyGeneral never does struggle, for a conviction ; but I am very ready fairly to say, I should act very improperly if I shewed any inclination to convict at all; and, therefore, I give up the prosecution with respect to him also.
Lord Kenyon--- If you mean to avail yourself of their testimony, now is the time.
Mr. Rous.--Mr. Gunter Browne is confined to a bed of sicknefs.
Lord Kenyon---Gentlemen of the Jury, as far I can recollect the evidence, there is not sufficient evidence to call
these Gentlemen for their defence; if you think so, you will acquit them.
MR. BROWNE, Not Guilty.
EVIDENCE FOR THE DEFENDANTS.
Mr. George Smith fworn.- Examined by Mr. Gibbs. 2. You were present at this trial ? A. I was.
2. The row in which the Solicitors fat represents that where we are now liting, and the Counsel before us? A. It does.
Q. And the place in which the prisoners ftand was be. hind?
A. Almost during the whole of the trial I sat in the Soli. citors' feat.
2. Are you at the bar? A. I am.
2. I believe the prisoners stood in the place allotted for them, three in the front, and two behind ? · A. Exactly. Q. Who were the three in front?
Ă. Mr. O'Coigly, Mr. Binns, and Mr. O'Connor ; Mr. O'Connor was on the left as he looked at the Judges, and on the right as they looked at him ; Mr. Binns in the middle, and Mr. O'Coigly next the gaoler ; my seat was directly under the gaoler, at the end of the feat.
2. Do you remember the time when the verdict was brought in
À. I recollect that Mr. O'Connor put his leg over the bar, and there was a press behind me, but a very trifling one, to get at him.
Q. This was before sentence was pronounced ?
A. Yes : filence was called, and that disturbance ceased. The Judge then proceeded to pronounce sentence; I was at that. time fitting, as I have described, at the end of the seat directly under the gaoler; and I leaned against a projecting desk, looking up at O'Coigly during the whole of the sentence, so that
my back was to the Bow-ftreet officers : that instant that the Judge concluded his sentence, Mr. O'Connor put his leg over the bar, and the gaoler caught hold of his coat. 2. At this tiine did you observe where Lord Thanet fat ?