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Evidence of Charles Hovenden, .
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THE QUEEN v, O'CONNELL AND OTHERS,
In the month of October, 1843, warrants having been issued against several gentlemen, charging them with a misdemeanor in exciting discontent and disaffection among Her Majesty's subjects, &c. ; they attended before Mr. Justice Burton at his residence, and gave bail to appear in the Queen's Bench, on the first day of the ensuing Michaelmas Term.
THURSDAY, NOVEMBER 2ND. This being the first day of Michaelmas Term, the following proceedings took place :
Mr. Justice BURTON entered the court at one o'clock. The Clerk of the Crown then proceeded to call over the grand jury panel.
George Frederick Brooke, Esq., who was the first who answered to his name, objected to being the Foreman, on the ground that it would interfere with his duties as one of the Directors of the Bank of Ireland.
The Attorney General. The usual course is, that the first grand juror who answers to his name is the Foreman. It is irregular to select a Foreman from the Grand Jury panel. In Mr. Brooke's case there is no legal objection whatever, neither privilege nor disability. I wish that the regular course should be adopted in this case.
The following Grand Jury were sworn :
George Frederick Brooke, Foreman. Robert Latouche, Jun.
Patrick Waldron. Benjamin Lee Guinness.
Thomas Hutton. Philip Doyne.
Bartholomew Moliere Tabuteau. Andrew Vance.
Robert Callwell. George Pim.
William Henry. Francis Augustus Codd.
William Newcombe. Robert William Law.
| William Sherrard. His Lordship then delivered the following Charge:
Gentlemen of the Grand Jury of the county of the city of Dub. lin, I not aware of any ordinary business of the county of the city of Dublin on which it is necessary for me to make any particular observations. If any difficulty in discharge of any particular duty should occur to you, the Court will be ready to give you, at any time, any advice or assistance in their power. But, gentlemen, you are yourselves, I am sure, well aware that there is a matter likely, I believe I may say certainly, to be brought before you of very great anxiety, and of very great public importance, and upon that I think it my duty, as summarily as the circumstances of such a subject will admit of, to lay such observations before you as, I hope, may some what facilitate the discharge of that very important-but, perhaps, you may find it not very difficult-duty which you have to discharge. Gentlemen, the case to which I allude is the subject of an indictinent which is likely to be referred to you; and I have to state to you, what perhaps you are perfectly well acquainted with without any information from me, that such an indictment, even when found, is only an accusation against which the party accused is then, that is, after the bill has been found by the Grand Jury, called on to make his defence. The Grand Jury are, therefore, only to hear the evidence in support of the prosecution; that evidence is to be given on oath, by witnesses brought before them, and they are not only to hear the evidence so given, but also so far as they find it necessary, to cross. examine the witnesses who may be produced to them, so as to enable them to form a satisfactory judgment upon their credit. If, on a careful examination of such evidence, they, the Grand Jury, or a majority of them, amounting at least to twelve, are satisfied that a suffi. cient case has been made before them, to justify their putting the party on his trial, they must find the bill a true bill, and thereupon the party becomes formally accused. If, on the contrary, the Grand Jury, upon such an examination, are satisfied of the insufficiency of the evidence in support of the charge, they must then reject it, and thereupon the party is discharged from that bill for that time ; but in that case he is not acquitted of the charge contained in it. The
sufficiency of the evidence depends upon this consideration, whether if the party was actually on his trial on a plea of not guilty, and no evidence was given for the defence, so that the whole case rested on the evidence on the part of the prosecution, he could justly be found guilty. Gentlemen, it is further to be observed, that you may find the bill a true bill as to some one of the counts contained in it, and may reject it as to some one or other of those counts. If you find a true bill as to any of the counts, in that case the party accused is put on his trial on those counts only so found to be true ; but a Grand Jury cannot properly find a bill a true bill as to part of any particular count, and not a true bill as to the other part of the same count; and further, that where a bill is preferred against several persons, it may generally be found against some of those persons, and rejected as to the rest subject, however, to this plain exception, that where a bill is preferred, charging two only with conspiracy, the bill cannot be found against one of them. Gentlemen, I have now to tell you that, as I understand, the bill likely and intended to be subunitted to you is a bill against a certain number of persons specified in it, the whole being a charge of conspiracy, the sense of which is, agreeing among themselves only, or together with others, and concurring with each other in a design to effect certain unlawful purposes, or at least to effect certain purposes, whether in themselves unlawful or not, by unlawful means. Gentlemen, I believe I may state that the great, ostensible, and, as I should collect from the statement in the informations sworn before me, the avowed object of the persons charged by the bill is the abolition of the Legislative Union between Great Britain and Ireland, as at present subsisting. Gentlemen, it appears to me to be right, with reference to the term Legisla. tive Union, and the terms by which I have described it as at present subisting, to advert to some expressions stated in some part of the informations on which the indictment is or will be preferred, and which it is material to state. It appears, then, that some or one of the persons charged has or have asserted, at some or one of the public meetings referred to in the informations, that the Legislative Union is in itself unlawful; that it is absolutely void: the consequence of which must be, that every Statute made since the Union, and purporting to bind Ireland, will, in that instance, be void, and have no legal effect. Gentlemen, whether this language be correctly stated, or whether any language to that effect was actually used, or if used, was used in that sense, you are to judge, and to satisfy yourselves, by the examination of witnesses on oath ; but I think the statement in the sworn informations, as I have collected it, authorizes and indeed makes it incumbent on me to say, in this place, that such a proposition has no legal foundation, and that the Legislative Union is not only practically but lawfully in force in Ireland ; and that you, in the exercise of your judgment on this indictment which will be preferred to you, are bound so to consider it. Gentlemen, this certainly is not to be supposed to amount to a denial of the right of the subjects of this country, or any part of it, at any time to contest the policy or expediency of continuing this Legislative Union
in its present state, or of seeking, by lawful means, an alteration of it ; and accordingly, the charge in the indictment applicable to this question is or will be this, or to this effect-have the persons charged unlawfully and seditiously conspired to excite disaffection and discontent among the Queen's subjects, and to excite them to hatred and contempt of the government and constitution as by law established, and to unlawful opposition and resistance thereto ? and in your consideration of the indictment, you will direct your atten. tion to this, not only with reference to this particular count, but also as it may throw light on your examination of all or any of the counts in the indictment. Gentlemen, I will now proceed, in connexion with, and with reference to the observations which I have just made, to call your attention to one of the charges in the indictment; it appears to me to be of paramount importance; that is, the one which charges, as part of the alleged conspiracy, the inducing and procuring large numbers of persons to meet together, in order, by intimidation and the demonstration of physical force, to procure changes to be made in the constitution of the realm as by law established. Gen. tlemen, with respect to this charge, it is to be observed, so far as I can collect from the information before me, that the intimidation spoken of does not, or, at least, does not necessarily impute to the persons calling together these multitudes, who appear to have been assembled at different times, and to have occasionally been addressed, as appears by the informations, by the appellation of fighting men, it does not, I mean to say, express any design or intention of permitting or encouraging any infraction of the public peace on those occasions. On the contrary, it would appear to me, that the principal object, and one earnestly impressed on these multitudes, was a strict abstaining from any attempt, at that time, to commit any breach of the peace. The charge, as I understand it, is this, namely, an intention to intimidate, by the demonstration of great physical force, all persons who might be adverse to an alteration in the constitution and government of the country, and also, and especially, to affect, or en. deavour to affect, the proceedings of the legislature on the subject, and, at the same time, on pretence of petitioning for a repeal of the Union, asserting, in the presence of these assembled multitudes, that by their intervention it might and should take place. This seems to me to afford ground for charging in the indictment a purpose of iotimidating. Gentlemen, whether the parties charged really had that purpose or intention it is for you to judge; that is, you will judge whether there is or is not matter of charge fit and proper to be tried by a jury, on a plea of not guilty. I have further to tell you, that the charge in the indictment on this ground is, if true, a misdemeanor ; and further, that there appears evidence of the truth of that charge, but of the truth of that evidence, and the inference to be drawn from it if true, you are, in the first instance, to judge, and on that ground either to find or reject the bill. Gentlemen of the jury, I have already intimated to you that the evidence in support of this charge is of a circumstantial or inferential character, and must therefore be taken into consideration in connexion with the other charges in the indictment which may be found to