THE QUEEN against CHARLES GAVAN DUFFY. PROCEEDINGS AGAINST CHARLES GAVAN DUFFY, ON FOUR INDICTMENTS FOR TREASON FELONY, AT TILE AUGUST SESSIONS OF THE COMMISSION COURT, GREEN STREET, DUBLIN, 1848, BEFORE PIGOT, C.B., AND PENNEFATHER, B. ; AT THE OCTOBER SESSIONS BEFORE TORRENS AND CRAMPTON J.J.; AT THE DECEMBER SESSIONS BEFORE PERRIN, J., AND RICHARDS, B. ; AND AT THE FEBRUARY SESSIONS, 1849, BEFORE BALL, J., AND LEFROY, B. (Reported in 4 Cox, C.C. 24, 117, 123, 172, 294; and in 1 Ir. Jur., 81, 167, 188.) TRIAL BEFORE BALL, J., AND LEFROY, B., FEBRUARY 14TH, 1849, AND THE FOLLOWING DAYS. At the August Sessions of the Commission Court, Green Street, Dublin, the city grand jury found a true bill against Charles Gavan Duffy,(a) the registered proprietor and publisher of the Nation newspaper, under 11 & 12 Vict. c. 12., the Treason Felony Act.(b) for feloniously compassing to depose the Queen, &e., and to levy war against the Queen, &c., and expressing, uttering, and declaring such compassings by publications in the Nation newspaper. This and two other indictments, found respectively by the county grand jury at the October Sessions, and by the city grand jury at the December Sessions, were not proceeded with, as hereinafter explained, and the prisoner was tried on a fourth indictment found at the February Sessions, 1849, when the jury disagreed. The prisoner was again tried in April with the same result. 1. Indictment under Treason Felony Act-11 6. 12 Vict. c. 12. On an indictment under 11 & 12 Vict. c. 12. s. 3, making it felony if anyone shall "compass, Imagine, invent, devise, or intend to deprive or depose our most gracious lady the Queen . . . . and such compassing, imaginations, inventions, devices, or intentions, or any of them, shall express, utter, or declare, by publishing any printing or writing, or by open and advised speaking, or by any overt act or deed," held under this section By PERRIN, J., and RICHARDS, B., on demurrer to the third indictment A count charging one compassing expressed by more than one publication or overt act is not bad for duplicity.(c) It is not necessary to set out in the indictment the whole of the printings or writings charged as publications ; or to insert any colloquium, innuendoes, or averments expressing the intent charged, where the passages set out plainly import the compassing. The publication of a printing or writing in furtherance of the compassing may also be well laid as an overt act or deed ; in which case it is unnecessary to set out any part of such printing or writing. By BALL, J., and LEFROY, B., on demurrer to the fourth indictment In a count for felonious compassing expressed by publishing a printing or writing, it is unnecessary to aver that the compassing was expressed in the part of the printing actually set out, or that it was present to the mind of the prisoner at the time of such expression, or that there was a treasonable design then on foot or in contemplation. As to whether it is necessary to aver or prove that the publication was in furtherance of the compassing, see pp. 857, 900. A count charging a compassing on June 3rd, and expressing, uttering, and declaring the said compassing by publications or overt acts on June 3rd, 17th, 24th, is not repugnant or insensible.(d) Cf. the ruling at p. 833. 2. Felony Demurrer Right to plead over.(e) By PERRIN, J., and RICHARDS, B. A demurrer to an indictment for felony under 11 & 12 Vict. c. 12. having been overruled, the prisoner was allowed to plead over. (a) Afterwards Prime Minister of Victoria, 1871 ; Knighted, 1873 ; Speaker of Legislative Assembly, 1877 ; K.C.M.G. 1878. There is an account of these proceedings, and the events that gave rise to them in his " Young Ireland, Part II., or Four Years of Irish History, 1845-49." (b) Short Titles Act, 1892 ; as to the Treason Felony Act, see 6 St. Tr. N.S. 1;99 n. (c) See per Willes, J., in Mulcahy v. Reg. L. R. 3 H. L. 322. (d) See 14 & 15 Vict. c. 100. ss. 24, 25. (e) But see Rex v. Faderman, 1 Den. C.C. 569 ; 3 C. & K. 253, Mulcahy v. Rey. L. B. 3 H. L. 323. 797] The Queen against Charles Orman Duffy, 1848-9. [798 3. Plea in abatement Grand Juror Quallfwation.(a) By PERRIN, J., and RICHARDS, B. A plea in abatement, averring that a grand juror of the county of the city of Dublin was not an inhabitant of, or resident in, or a freeman or burgess of, or possessed of any. freehold or rateable property in the city, held bad for not also averring that he was riot a free and lawful man of the body of the county. 1. Challenge to the Array Religion of Jurors.(b) By BAIT,, J., and LEFROY, B. A disproportion between the respective numbers of Protestants and Roman Catholics on the panel and on the Jurors Book of the year is not of itself good ground of challenge to the array; and evidence as to the religion of jurors cannot be gone into for the purpose of establishing the mere fact of such disproportion. 5. Publication of proceedings forbidden during trial, see p. 803. (a) See now 34 & 35 Vict. c. 65. s. 19. (b) See Req. v. Mitchel, 6 St. Tr. N.S. 599 ; Reg. v. ODoherty, ib. 831 ; Reg. v. Smith OBrien, above p. 1 ; Reg. v. Walshe, Limerick Special Commission, 1867, p. 448. The Juries Act (Ireland), 1871, 34 & 35 Vict. c. 65. s. 19, now requires the sheriff in arraying the panel to take the names from the Jurors Book in the alphabetical order therein prescribed ; see also 39 & 40 Vict. c. 78. s. 17. TABLE OF PRINCIPAL MATTERS. ARRAIGNMENT ON FIRST INDICTMENT, p. 797. OBJECTIONS TO SECOND AND THIRD INDICTMENTS, pp. 802, 803. PLEAS IN ABATEMENT TO THIRD I NDICTMENT, p. 806. DEMURRER TO T IHRD INDICTMENT, p. 819. MOTION FOR FINAL JUDGMENT, p. 845. DEMURRER TO FOURTH INDICTMENT, p. 850. CHALLENGE. TO THE ARRAY, 858: TRIAL, p. 870. COMMISSION COURT, GREEN STREET, DUBLIN. AUGUST SESSIONS, 1848. Before PIVOT, C.B., and PENNEFATHER, B. Tuesday, August 8th. The City Grand Jury found a true bill against Charles Gavan Daffy for felony under 11 dz 12 Vict. c. 12. Counsel for the Crown : The Attorney-General (Monahan (a)), the Solicitor-General (Hatchell), Baldwin, Q.C. ; Serjt. 0 Brien,(1) Whiteside, Q.C.,(c) Plunket, Q.C., Smyly, Ptnnefather, and Perrin. Counsel for the prisoner : Butt, Q.C.,(d) Rolmes,(e) Sir C. OLoghlen, and John OHagan.( f ) The prisoner was placed at the bar, and the abstract of the indictment, with the titles of the various publications charged therein, was read. Cleric cf the Crown: How say you, Charles Gavan Duffy are you guilty or nut guilty P The prisoner made no reply. (a) Afterwards Chief Justice of C.P., Ir. (b) ,, a Justice of Q.B., Ir. (c) , Chief Justice of Q.B., Ir. (d) See Diet. Nat. Biog. (e) See 6 St. Tr. N.S. 682a. (f) Afterwards a Justice of Q.B., Ir., and Judge of the Irish Land Commission. Baldwin, one of the counsel for the Crown , having resisted an application for a copy of the indictment, Sir C. OLoghlen, for the prisoner, required the whole indictment to be read over by the Clerk of the Crown. After tahe reading had commenced, the Court adjourned at the suggestion of PENNEFATHER, B., to give the counsel for the Crown an opportunity of consulting whether they would grant a copy. Wednesday, August 9th, 1848. The City Grand Jury found a true bill against John Martin, (a) Kevin hod ODoherty,(b) and Richard Dalton Williams for felony. Williams pleaded, Not guilty. The Attorney. General stated, that understanding there was to be an application for the postponement of the trials, (c) he would not proceed with Duffys arraignment until the application in the other cases had been decided. Sir C. 0 Loghlen : Mr. Duffy was brought up yesterday, and arraigned; and he is now entitled to have his plea recorded. Attorney-General : He did not plead at that time. Sir C. OLoghlen having stated, after some discussion, that he had not come prepared to argue the point, the matter stood over. Thursday, August 10th, ]848. Mr. ODoherty and Mr. Duffy were placed at the bar. Sir C. OLoghlen argued that the arraignment being complete, the prisoner (a) See 6 St. Tr. N.S. 925. (b) lb. 831. (c) lb. 627. 799] The Queen against Charles Oaian Duffy, 1848-9. [800 was entitled to plead, and cited 2 Hale, P.C. 219- " The arraignment of the prisoner, therefore, consists of these parts : First, the calling the prisoner to the bar by his name, commanding him to hold up his hand, which, though it may seem a trifling circumstance, yet it is of importance, for by holding up his hand constat de perso"a indictati, and he owns himself to he of that name." That practice is not followed now. It has been held sufficient, if he answers to his name. "Secondly, reading the indictment distinctly in English, that he may understand his charge. "Thirdly, demanding of him whether he be guilty or not guilty." From this it appears that a prisoners arraignment is complete when the question is asked of him whether he be guilty or not guilty. That question was asked of Mr. Duffy. But, assuming that the arraignment was not complete till the application to have the indictment read was complied with, the reading was stopped by the quit and the prisoner ought not to be prejudiced by what was done merely for the convenience of the Court, and in order to save the public time. If we had for a moment imagined that such an objection would have been raised by the Attorney-General we would have asked your lordship, at the sitting of the Court yesterday, to have completed the reading of the indictment. But we never did, and we consider ourselves to be deceived in this case by the conduct of those...
