THE QUEEN against SMITH O”BRIEN. TRIAL OF WILLIAM SMITH O”BRIEN, M.P., FOR HIGH TREASON AT TIIE CLO s/MEL SPECIAL COMMISSION, BEFORE BLACKBURNE, L.C.J.,(a) DOHERTY, C.J., AND MOORE, J., SEPTEMBER 21, 1848, AND THE FOLLOWING DAYS. PROCEEDINGS IN THE COURT OF QUEEN”S BENCH, IRELAND, BEFORE BLACKBURNE, L.C.J., CRAMPTON, PEEIRIN, AND MOORE, JJ., ON WRIT OF ERROR, Nov. 21, 22, 23, 24, 1848, AND JAN. 16, 1849. (Reported in 3 Cox C.C. 360.) JUDGMENT OF THE HOUSE OF LORDS ON WRIT OF ERROR, MAY 11, 1849. (Reported in 2 H.L. 465.) High tresson.(b) The prisoner was indicted for high treason, by levying war against the Queen in Tipperary between July 17th and 30th, 1848, as hereinafter described, and by compassing to raise insurrNition, and subvert the government, and put the Queen to death. Verdict, guilty of treason by levying war. Held by the House of Lords, affirming the judgment of the Court of Queen”s Bench: Ireland- 1. Treason Levying war in Ireland-25 Edw. 3. Poyning”s Law, 10 Hen. 7. c. 22. Levying war in Ireland is treason within the words "levy war against the king in his realm," of the statute of 25 Edw. 3., acts which are treason in England under that statute having been made treason in Ireland, if committed there, by Poyning”s Law, 10 Hen. 7. c. 22., which provided that the statutes late made within the realm of England concerning the public weal should be good and effectual within the land of Ireland. 2. Lists cf witnesses and jurors-7 Ann. c. 21.; 57 Geo. 3. c. 6. as: 1-4 ; 11 6.12 Vict. c. 12. ss. 1,2. It was claimed for the prisoner that the British statute, 7 Ann. c. 21. giving prisoners in treason trials a copy of the indictment and a list of witnesses and jurors ten days before trial had been extended to Ireland by 57 Geo. 3. c. 6. s. 4, or by 11 & 12 Vict. c. 12. is. 2. The English statute of 25 Edw. 3. made it treason when a man doth compass or imagine the death of the King, and is thereof provably attainted of open deed. This statute was extended to Ireland by Poyning”s Law, 10 Hen. 7. c. 22. The British statute, 7 Ann. c. 21. provided that prisoners indicted for treason should have a copy of the indictment, and a list of witnesses and jurors ten days before trial. The .:emporary British statute, 36 Geo. 3. c. 7. s. 1, made perpetual by 57 Geo. 3. c. 6. s. 1, made it treason if anyone should compass, imagine, &c., death or destruction, or any bodily harm tending to death or destruction, &c., of the King, or to deprive or depose him, &c., or to levy war against him, &c., and such compassing. &c., should express, utter, or declare, by publishing any printing or writing, or by any overt act or deed. S. 4. of 57 Geo. 3. c. 6. provided that persons indicted for treasons made or declared by that statute should be entitled to the benefit of 7 Ann. c. 21., save in charges of compassing the King”s death, where the overt act alleged was a direct attempt against the person of the Sovereign. The Treason Felony Act, 1848, 11 & 12 Vict. c. 12.,(c) repealed all the provisions of 36 Geo. 3. c. 7. and 57 Geo. 3. C. 6. save the provisions therein recited affecting direct attempts against the person of the Sovereign, which unrepealed provisions it extended to Ireland. Held : On an indictment in Ireland for compassing the Queen”s death, where the overt act alleged was not a direct attempt against the person of the Sovereign, the prisoner could not claim the benefit of the British statute, 7 Ann. c. 21, by virtue of 57 Geo. 3. e. 6. s. 4, or of 1 I & 12 Vict. c. 12. s. 2(d), because (a) Afterwards Lord Chancellor of Ireland. (b) The fullest account of the events which gave rise to this trial is to be found in Sir Charles Gavan Dutly”s " Young Ireland," Part II., or " Four Years of Irish History, 1845-49 ; See also Ann. Reg., Hist. 94 ; Walpole”s History of England, vol. 4, p. 333; M”Carthy”s History of Our Own Times, vol. 2, p. 29 ; Townsend”s State Trials, p. 474 (c) See 6 St. Tr. N.S. 599 n. (d) The provisions of 7 Ann c. 21. are now extended to Ireland by 17 & 18 Vict. c. 26., "An Act to assimilate the law and practice in cases of high treason in Ireland to the law and practice existing in cases of high treason in England." Wt 01970 A 3] The Queen against Smith O”Brien, 1848. [4” (1) 57 Geo. 3. c. 6. ss. 1-4, perpetuating the British statute, 36 Geo. 3. c. 7. did not, when passed, extend to Ireland. (2) S. 4 of 57 Geo. 3. a. 6. was not among the provisions of that statute extended to Ireland by 11 & 12 Viet. c. 12. s. 2. (3) Even if it were, the only provisions so extended to Ireland by 11 & 12 Vict. c. 12. s. 2, were such as related to direct attempts against the person of the Sovereign, an offence for which the prisoner was not indicted. Quare, whether the wrongful omission to furnish the prisoner with a copy of the indictment together with lists of the witnesses and jurors tee days before trial could be raised by way of plea on the record. 3. Caption. A caption setting forth that an indictment was found at a special sessions of Oyer and Terminer and General Gaol Delivery before three judges "nominated and appointed" to inquire into, hear, &c., by virtue of a commission under letters patent directed to then) " and others in the said letters named," was not bad for not showing that the commission was joint and several. By CRAMPTON, J.,- The Court has power to amend a formal error made by the officer of the Court in drawing up the caption. 4. Peremptory Challenges in Ireland-Treason-9 Geo, 4. c. 54. s. 9. 9 Geo. 4. c. 54. S. 9, restricting persons " arraigned for treason, or murder, or for other felony" in Ireland to twenty peremptory challenges, applies to high treason as well as petit treason. 5. Allocates. The record having averred that the prisoner had been called upon to say why the Court should not proceed " to judgment" against him, instead of " to judgment of death," or "to judgment and execution," such form of allocates was sufficient. Ruled at the trial by Blackburne, L.C.J., Doherty, C.J., and Moore, J.- 6. Evidence. On an indictment for levying war and compassing to subvert the government and put the Queen to death, speeches made several months before the alleged levying of war were held admissible to show the intention with which war was levied. Documents found upon the prisoner at the time of arrest held admissible against him ; also, documents found in a locked portmanteau belonging to him, of which the police obtained possession by his instructions after his arrest, but which had been out of his possession and control for some days before coming into the hands of the police. The Court refused to make an informer disclose the name of the person who had given him certain information, the informer having stated that to answer the question would expose such person to the risk of assassination. 7. Applications to inspect jury panel, and to ballot for jury, refused, pp. 19, 42. 8. Challenges to the array-Religion of Jurors, p. 20. 9. Prisoner invited to address the jury in treason cases after his counsels” speeches, p. 276. TABLE OF PRINCIPAL MATTERS, CHARGE OF BLACKBURNE, L.C.J., TO THE GRAND p. 4. INDICTMENT, p. 10. MOTION TO POSTPONE TRIAL FOR NONDELIVERY OF LISTS OF WITNESSES, &C p. 15. APPLICATION TO INSPECT JURY PANEL, p. 19. CHALLENGE TO THE ARRAY, p. 20. APPLICATION TO B4LLOT JURY, p. 42. OPENING SPEECH FOR THE CROWN, p. 45. EVIDENCE FOR THE CROWN, p. 73. SPEECH FOR THE DEFENCE, p. 263. EVIDENCE FOR THE DEFENCE, p. 258. REPLY, p. 276. SUMMING-UP, 292. ADDITIONAL EVIDENCE, p. 305. MOI ION IN ARREST OF JUDGMENT, p. 325. SENTENCE, p. 330. WRIT OF ERROR IN THE COURT OF QUEEN”S BENCH, p. 331. WRIT OF ERROR IN THE HOUSE OF Lonus, p. 375. CLONMEL SPECIAL COMMISSION. Before BLICKBURNE, L.C.J., and DOHERTY, C.J., and MOORE, J. Thursday, September 21, 1848. The Special Commission having been read- BLACKEURNE, L.C.J., delivered the fol- lowing charge to the grand jury, in which the events which necessitated the Special Commission are referred to. My Lord Suirdale, and gentlemen of the Grand Jury for the county of Tipperary, I feel assured that you participate in my feeling, and in that of every person who has the peace and happiness of the country sincerely at heart, in the regret, that Her Gracious Majesty has now, after the lapse of bat a few months, found it necessary to issue that Commission which has been just read to you, and by which 5] The Queen, against Smith O”Brien, 1848. {6 she calls upon her subjects to aid her, by performing their duty in the administration of the criminal law of the land. Distressing and deplorable as such a measure would. he under any circumstances, it becomes so in the last degree, when we know that that measure has originated in machinations and attempts which constitute the crime of high treason a crime, the highest in degree that a subject can commit se crime, whose object is the total destruction of our social system, the subversion of all security for property, and for life and a crime which no reasonable being can contemplate without knowing that it must lead to the shedding of human blood, and that it must entail on the country all the horrors and all the miseries of civil and social war. As I have alluded to the former...
