has no power to proceed with this trial, the term having ended. We merely wish to mention it to your lordships that if you be of a different opinion you may take a note of our objection.

The Chief Justice---Oh! certainly.

The jury and traversers having been called over, and respectively answered to their names.

Mr. Whiteside, Q. C., rose to address the jury. He said---May it please your lordships, and gentlemen of the jury, in this case I appear before you as counsel for Charles Gavan Duffy, proprietor of the newspaper called the Nation. I could wish my client had selected his advocate from my brethren of the bar, where so many are to be found my superiors in every talent, and every acquirement; my sense of inferiority is increased by the disparity between my humble abilities and the task committed to my charge. Nevertheless, assured of your patience---convinced of your indulgence--satisfied of your anxiety to hear candidly what may be urged on behalf of the accused, from whatsoever quarter it may come---I gain resolution from my confidence in you. The solemnity of this state prosecution would be enough to bespeak your considerate attention. The principal involved in the issue---the all-pervading anxiety of the public--the very nature of the accusation itself---combine to mark out this as a question of no ordinary expectation. My anxiety is so to place before you the merit of my client's case, that truth may prevail, and the cause of public freedom triumph. I will not, at the outset, disguise from you that the result of this case is regarded by me with trembling apprehension, not from the vulgar terror of popular indignation, or an outbreak of lawless fury, because the arm of government is powerful enough to repress and punish such excesses. My apprehension arises from a better motive. I fell the importance of your decision. I am anxious for the character of our common country, for the purity of its justice, that your decision may be consistent with the principles of a free constitution and may rest on the immoveable ground of truth. Be assured, gentlemen, this day's proceedings will be scanned by the opinion of enlightended England, and whatever other country possesses freedom. As far as human infirmity will permit, discharge your duty unflinchnigly between the crown and your fellow-subject. Be tender of that subject's freedom, and your decision will be approved by your own consciences and by all just men throughout the world. Gentlemen, you are not empannelled to try the traversers for their political opinions; the soundness or unsoundness of their views, the policy or impolicy of their proceedings; the possibility ro impossibility of their projects being carried into execution, form no part whatever of your inqury. Still less do you sit in judgment upon the style adopted by a political writer, or upon the taste exhibited by a popular speaker. Yours is a more severe duty than that of the moralist or critic, although you are satisfied that the speeches made were intemperate and rash; and although you may condemn the character and style of many of the written productions in evidence before you, and disapprove of the general objects in view by many of the parties accused this day, still there is not the least conceivable approach made thereby as to the decision of the question of their guilt or innocence on the particular subject matter charged by the present indictinent.

Crime is what is alledged against the defendants, and crime of a defined character; and if that peculiar crime, as is discribed and explained on this face of the indictment, be not clearly and distinctly proved, no matter of what supposed offence the traversers, or any one of them, might by possibility be suggested to be guilty, still you would be bound to acquit them on the present indictment. To find a man guilty on one charge, because there may be a surmise of the possibility that he might be accused of another, would be to violate the law and justice of the case, from the strict line of your duty you will not swerve. You are not-I say this with deference-to remember any one word spoken or written by the traversers, or any of them, which has not been proved in evidence against them on the present occasion. The crime of which they are accused is that of conspiracy. In the proper acceptation of the word, there is nothing criminal involved in it. It means having one spirit; and the prevailing idea conveyed by it is, that of a common sentiment amongst men for the accomplishment of a common object. Now, a community of sentiment on political subjects is not criminal. Associations exist for purposes literary, scientific, religious, and political. Their object is to accomplish a given end-to concentrate opinion, and strengthen that opinion---to bring it to bear on a particular subject, and by means of that concentration obtain, perhaps, benefits, and blessings, that would not otherwise be accomplished. Governments are naturally quiescent; they are repugnant to change, and adverse to popular movements; and it requires very great efforts, and very great concentration of opinion, to obtain from government that which, when it is obtained, all parties regard as a benefit and improvement. It is by that means that the wisest reforms have been effected, the grandest triumphs in humanity have been so accomplished, and the wisest projects that ever entered into the human mind have thus been gained. In ordinary cases, when men are charged with a particular crime, they are to be tried if they are guilty of it on what they have themselves done, and on what they have themselves written; and the evidence to convict them must be given under strict, rigid rules prescribed and fixed by law. But, as you have seen, there is in this crime of conspiracy a latitude of proof permitted which your own experience as jurors tells you would not be suffered in any other proceedings. One man is sought to be affected here, not by what he has himself done, spoken, and commtted, but by what other men have done, spoken, and committed. That an individual should suffer for the consequences of his own speeches and actions is natural and right, because he had power to control the one and regulate the other, but it would seem to be difficult to understand the justice of the rule that fastens guilt on one man, not by what he has hinself done against the law, but by what has been done by other persons at a distance, over whose movements he had no control-whose tongue he did not license-whose tongue he could not check or silence, and over whose actions he had no authority or power. If in ordinary cases that observation is founded on good sense, it is of infinitely more weight when you come to apply it to a charge of political conspiracy. There it is necessary for a jury to be infinitely more on their guard, for the incautious language-the improper actions of one man may

be sought by a good administration, or by a bad one to be visited on another that may be obnoxious to either. It is our blessing to live under defined laws, that point out what we are to do, and what we are to avoid, that show our responsibilities, and how we may escape those responsibilities, and comply with the requirements of the law. Each verdict of a jury that tends to make our duties and our rights more complicated, more involved, more obscured, tends to endanger the liberties we possess. The indictment here is solely for a conspiracy, and I cannot praise it much as a work of legal ingenuity or art. You might imagine the legal artist possessed of much bodily strength, and armed with a huge scissors, placing before him several files of newspapers-the Freeman, the Nation, the Pilot, the Post, the Mail,-and plying his task with no charitable spirit, but with indefatigable zeal, speeches are clipped by him of all inoffensive matter, biting passages of leading articles are carefully cut out, reports of speeches at public meetings given more severely than the speakers of the speeches intended, letters of angry correspondence written at long intervals of time are given in full, the prose of the indictment is embellished by an extract from a transatlantic speech made by the son of President Tyler, and the whole is wound up with a song (laughter). The traversers were accused of having conspired to excite discontent and disaffection among her Majesty's subjects. He should have occasion to comment on every part of the indictment. The terms of that indictment were, "that the accused had devised to raise and create discontent and disaffection amongst the liege subjects of the Queen, to promote feelings of ill-will towards her Majesty's subjects in England, to excite disaffection in the army, and to cause large meetings to be held for the unlawful purpose of obtaining, by means of intimidation to be thereby caused-by means of the demonstration of great physical force at such assemblies, to bring into hatred and disrepute the Courts of Law established in Ireland, with the intent to induce her Majesty's subjects to withdraw the adjudication of their differences with, and claims upon, each other from the cognisance of the said Courts of Law established, and to submit the same to the judginent and determination of other tribunals to be constituted and contrived for that purpose." Now, it was that single crime of conspiracy that the jury had to try-they were to ascertain whether the accused were guilty of having entered into a conspiracy to do the precise acts, the very specified things described and particularised in that most extraordinary, unprecedented, and unheard-of indictment. The Attorney General-whom he thought had stated his case with great moderation and temper, and, he would add, with firmness and candour-the Attorney General commenced his address, as might have been expected, by a statement of the principles and the authorities which he said were necessary to explain the subject matter of accusation. As to general principle, they afforded but little opportunity for dispute. It was the application of those principles to the facts of the case which he (Mr.Whiteside) should comment on, and he would say, with great respect, that the defect in his learned friend's temperate and judicious statement consisted in this, that having adverted to certain principles, which he did mean to dispute, and having read numerous extracts which appeared applicable, he did not see by what clear reasoning he (the Attorney General) collected his valuable matter so as

clearly to demonstrate a charge of conspiracy. He would take the liberty of saying something as to the cases cited. As to the short definition of conspiracy that had been given, no doubt could be entertained. Conspiracy meant the accomplishing a legal object by illegal means, or an illegal object by legal means. Gentlemen of the jury, the first case quoted, the King v. James, had not the least analogy to the present accusation. It was an indictment against a bankrupt, charging him with conspiracy to conceal a part of his personal estate, and that an illegal act had been committed. Lord Denman stated that that indictment ought to show that an unlawful act had been done by unlawful means. Certain it was that the indictment in the present instance did not so demonstrate. In the second case adverted to, several persons dined together; they pursued that common object with industry and perseverance (laughter); they agreed to sup together; they confederately pursued that common object also with perseverance and industry; they finally determined to go to the play, and having gone to the play, one of them, having a rattle, rattled it; another having a whistle, whistled it; a third had a neck of a broken bottle, and he suffered his ultra- Protestant principles to go so far that he threw it on the stage at the theatre. They were all tried for a conspiracy. The grand jury ignored the bills. The Attorney General, nothing daunted, referred the matter to a jury. The formidable case of conspiracy was accordingly tried, and no verdict was returned, except that acquitting Mr. Brownlow. The next case he conceived to be more applicable. It was the King v. Murphy, and it was stated-" If you believe the acts done were done without a common design between the parties, this charge of conspiracy cannot be supported. The common design-that is to say, to do an illegal act specified-is the root of the charge; if you find that these two persons pursued by their acts the same object, often by the same means, one performing one part of the act, and an other performing another part of the same act, so as to complete it with a view to accomplishing a certain object, you are at liberty to draw the conclusion that the parties were engaged in a conspiracy to effect that object." He had to observe that the object to be gained was, in the case just cited, an illegal object, because the persons agreed together to prevent the collection of a certain rate, and to obstruct an individual in his duty-that is, the collection of the rate-and to take from him the property he had seized. The object, he repeated, was an illegal one, and it was declared that one person at one moment having done part of the act, and another having contrived to complete the act, they (the jury) then were at liberty to come to the conclusion as to the conspiracy, and the persons were accordingly found guilty. The next case quoted by the Attorney General was to be found in Carrington and Payne's Reports. The first count declared that an unlawful and seditious opposition to her Majesty's Government had been committed. The second count charged the parties with having "induced a number of persons to assemble and meet together, for the purpose of exciting terror and alarm in the minds of her Majesty's subjects, and by means of such terror and alarm to procure great changes to be made in the constitution of the realm as by law established, and to annoy and alarm, disturb and prejudice, divers subjects of the Queen in the paceable enjoyment of their property."

In that case certain policemen were asked whether, in point of fact, any body in the kingdom had complained to them of alarm being inspired in their minds by the general character of the meetings. In the course of evidence a Mr. Roberts stated that several persons complained that they were alarmed at those meetings, and requested him to send for military assistance. On that evidence the parties were found guilty. Their lordships would please to observe that, according to the authority of that case, it became competent to ask each policeman examined in the present matter of conspiracy, not only whether anything occurred which was calculated to excite alarm, but whether that alarm had filled the minds of certain persons during the proceedings which took place. The next case to which reference had been made was one in which the accused (Stone) was charged with conspiring against one Jackson, who died, while on trial, from taking poison. Evidence was given to connect the accused with another man of the same name residing in France. Jackson had received a letter on the subject, and Lord Kenyon at first conceived that the act of another person could not be given in evidence against the prisoner. Mr. Justice Buller was on the Bench, and on the second day Lord Kenyon said he was satisfied that the letter was adinissible. That letter was given in evidence, and the jury impressed with a sense of the danger of finding one man guilty for the act of another, gave a verdict of acquittal. The next case to which reference had been frequently made, was the King v. Redhead, to be found in "Howel's State Trials." In that case the matters relied on in proof of conspiracy, were explained by proper averments. The Attorney General had relied on a certain passage in the charge of Justice Rooke, to which he (Mr. Whiteside) would take the liberty of directing attention. It was to this effect :—“He supported his speculative principle of Annual Parliaments and Universal Suffrage, and suppose he has uttered no more than what may be found in the speeches of such men, as the late Lord Chatham, Lord Camden, Sir George Joinville, Archdeacon Paley and others, and it is very true they have done so, and we believe in charity that they have honestly done so, but when these speculations are gone forth in a large assembly, it will be for you. to judge whether you will give him credit for the innocence of his exertions, whether he did not address them with a view to inflame their minds and their passions." In the case in question the prisoner was found guilty. Now he did not perceive the justice of that distinction drawn by the learned Judge in reference to that case—namely, that a great man might broach opinions which a man in another position in life could not broach. There was no law supporting such a distinction, and the learned Judge had not stated the true doctrine of the constitution. He would now direct the attention of the Jury to the language of an eminent judge in Watson's case, recorded in the 32nd vol. State Trials-" It is not necessary,” said Mr. Justice Buller, to elicit positive evidence from persons who heard the conspirators con ́sult, if you should find that a certain plan was entered into, and you shall be satisfied from what was done that there was a conspiracy to do certain illegal acts, you may then draw the conclusion of conspiracy." In that case the Jury had the good sense to acquit the prisoner. In the next case referred to, Bedford and Birley, an action was brought against the military. The learned Judge said, "If they acted on a warrant they were them

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