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THE IRISH STATE TRIALS.
FROM THE NOTE-BOOK OF AN IRISh barrister.*
THE State Trials are worthy of profound attention. They will form a striking epoch in our history. Useful to the lawyer, interesting to the politician, they are pregnant with vital material for government to the statesman. It is not the mere guilt or innocence of the accusedit is not the naked and stubborn struggle for supremacy between the adverse parties-it is not Sir Robert Peel on the one side, and Mr. O'Connell on the other—it is not the abstract vindication of the law sought by the Attorney-General, or the abstract vindication of inviolable opinion contended for by the prisoners, that alone invest them with importance. These various and opposing elements, no doubt, mingle in the strife, and mature its acerbity. But there is a principle which overrides them all, and to which all are subordinate, running through the acts of this solemn national drama, and that is, the claim of the Irish people to self-government. Disguise it as men may, this is "the be-all and the end-all"-the real issue to be tried. Whatever our own opinions may be, it is well to let the truth be known. When the real disease is ascertained, the remedy is more certain of success. It is not our duty or design to inquire into the policy through which, on the one side, this national fever was generated, or, on the other, to censure the intemperate vehemence with which it was assailed, and which, instead of allaying the disorder, only served to aggravate its symptoms. Such speculations would carry no weight, and be of little interest. They would find but poor favour with either party. The preconceived theories of an ideal aggrandizement would be as little likely to yield to our arguments as the unintelligible doctrine that the law and constitution must be vindicated, where they have not been violated.
A writer in the Illustrated News has adopted this heading for his " Pencillings of the Four Courts." The writer of that" Note-book" is not the writer of this.E. M.
Jan. 1844.-VOL. XXXIX.-NO. CLIII.
With this strife of contradictory opinions it is not our purpose to interfere. Both are infallible, and, like all infallible pretensions, both are absurd. One might abate its visionary impracticability to save the country from convulsion-the other should reflect that governmental severity never yet secured the attachment of a tributary state, though it might force a temporary obedience, and that it resembles more a thread that will snap asunder, than a chain that will bind. We tread on treacherous ashes," with the fire still burning beneath-let us, then, avoid the investigation of causes or of crimes which would bring the flame to the surface. It is not through any cowardly apprehension that we speak not with more freedom. There are times when too great candour is as injurious as none at all, and the present is a period when abstinence on that score is wisdom. The Queen's Bench is the arena and the arbiter of a mighty cause-mighty after a fashion of which Englishmen are wholly unconscious. With that we seek not, in its present stage, to interfere. The object of this paper is twofold— first, after some observations on the general character of our state trials, to describe the animating proceedings in the Queen's Bench to the close of the preliminary warfare, and, next, to sketch briefly the characters of the leading counsel for the accused and the crown. In a subsequent paper, we will go through the trial, and the interesting material it is certain to afford.
State trials are the sure indices of unsatisfactory government. They prove unerringly the just indisposition of a people to bad laws or bad administration. In this there is no paradox. The sensibility of an entire population is not slightly provoked, and where it is, if properly traced, we are certain to find all-sufficing causes. There might be in this general excitability, according to some political philosophers, the elements of an imperfect civilization. We concede it; but state trials are a very inadequate corrector and refiner. Social and civil progress is as much the result of good government as of a tranquil and industrious condition, or, rather, the latter flows from the former. Where the current is interrupted, either the laws are justly distasteful to the governed, or the government, arrayed on the side of passion or oppression, coerces the rights of the people. The English state trials clearly illustrate these propositions. In our own country, we have had numerous prosecutions under the vigilant eye of the state. In these, the humane maxim of the Manchester manufacturer was reversed"feed, employ, but don't hang them!" With us the hanging was the universal substitute. The only food was for the gallows, and the most active employment for the most cherished of executive officers-the hangman! There was neither mercy in the mode nor measure in the punishment, or, rather, one even heaped-up measure for all-death by indiscriminating law. Worse still than this-we had the trials of the drum-head, whose deeds would make Fouquier Tinville blush. These were our constitutional tribunals. Hence, the Irish people are accustomed to associate state prosecutions with state vengeance. They cannot be brought, or care not, to distinguish between the bloody ferocity of the irresponsible and the honourable and impartial hearing of the legal tribunals. The institution of a government prosecution is with them synonymous with intolerable persecution, and '98
is at once recalled to their minds. How much more exasperated their feelings when their cherished Repeal is sought to be struck down, and such a popular character as Mr. O'Connell is led to the sacrifice! Let us glance at some of our State Trials.
Not to go farther back than the Defenders, in 1793, a turbulent and misguided movement, but instigated by the universal suffering to which the country was exposed, nine-tenths of the accused were miserably executed. Weak and cruel policy! All was high treason— plotting against his majesty's precious life, though not one of the poor Defenders ever contemplated the effusion of royal blood. They plotted only against tithes and rack-rents-against proctors and bailiffs-against hay-stacks and corn-rigs However, the sound constructive principle was revived, and they suffered for high treason. Then came the majestic justice of '98, when an organised confederacy of mercenary ruffians, drilled within the precincts of the Castle, were let loose on society. "The law,” says Curran, "is become the protector of villains. Instead of acting as a conductor to draw off the lightning from the heads of the innocent, we behold it blasting them with wide-wasting desolation, while the accursed of God and the abhorred of man not only escape with impunity, but riot in the wages of their iniquity." Even they who, on the faith of the crown, were promised the pleasures of banishment in lieu of certain revelations, were imprisoned for several years after. "Don't you know we can hang you?" was the humane reply of Secretary Cooke to Samuel Neilson, when that functionary was upbraided with the breach of ministerial faith. The next characters of the prolonged drama were the enthusiasts of 1803. They were guilty, it is true, but, on grounds of policy, they might have been spared. We question not the expediency of resorting to rigour in suitable cases; but our argument is, that it has been sought to vindicate the laws by upturning them-that they were converted into instruments of popular torture instead of popular protectionthat justice was not asserted, but injustice committed—that if crime was punished, innocence was confounded and sacrificed in the general carnage that there existed no well-defined line, or any line at all, in the eye of the law, between guilt and suspicion-that, to be a state prisoner, was to be a state victim-and that the sole outlet from the dungeon was to the block or the convict-ship. The apt memorials of sanguinary governments-on the one side the knife of the assassin, on the other the pike of the insurgent and the torch of the incendiary-were the retributive fruits of this infamous system. It is not, then, surprising that the people should regard the recurrence of state trials with dismay. All the former are dwarfed to insignificance beside the colossal importance of the present trials. Every repealer feels the blow aimed at himself. Ireland is the Afreet in the Persian Tales, with an hundred upper extremities springing from the same trunk, in which all felt the wound inflicted on a single member. The stroke of the Attorney-General is dealt on millions, though the accused be only nine. There is, however, no blow for blow, and the predictions of the false prophet have vanished into nothingness. There is no rebellion. A salutary reliance on the efficacy of the moral forces has induced the people to lay aside the rude instru
ments of insurrection. The nerves of the sensitive were disturbed by the signal fires that lately blazed on the southern hills-another Malise out on his fiery errand, to summon the disaffected. Accounts had arrived of midnight drills in the valleys of the Galtees. All was ready for the signal rocket-but it has not ascended, and we are still at peace. Having brought our preliminary observations to a close-too tedious, we fear, for a preface, but not, we hope, without due significance and use we pass to the next portion of our subject, commencing with the arrest, and ending with the last of the series of picturesque skirmishes in the Queen's Bench.
On the day Mr. O'Connell received the polite invitation from the crown solicitor, requesting the pleasure of his company before Judge Burton, he saw the approaching event, and applied himself to the best mode of frustration. The law was to be the arbiter, and he who has the best lawyers is generally supposed to have the best of the law. Like Tatars speeding to all parts of his extensive empire from the imperial city of Saladin, so rushed to all quarters of our less magnificent city, from the office of Mr. William Forde, multitudinous messengers, bearing oblong pieces of paper, and contrawise a note or bank check, crossed with a narrow stripe of red tape. In less sumptuous phrase, retainers were on that day despatched to all the most eminent counsel at the Irish bar. The crown was thoroughly outwitted. Calculating on the strength of the regular body, and setting at defiance or regarding with derision such shallow pretenders as Messrs. Henn, Moore, Pigott, Hatchell, M'Donagh, Whiteside, and Fitzgibbon, there was never a thought among the habitués of the crown office about the future. Mr. Kemmis, quiet gentleman! took the matter with the proverbial languor of an experienced official. In the first flush of that triumphant arrest, he and all others concerned were too gleesome or neglectful to attend to common business. After the exultation had subsided, and additional aid was deemed necessary, forms of retainers on behalf of the crown were made up, and duly sent to the fashionable squares and streets where lawyers most do congregate. The general and unwelcome reply was, "Retained for the traversers." Not a light of the forum to be had for the love or gold of the crown! Lulled in the most unaccountable security, or unnerved with apathy, the crown gentry suffered almost every distinguished advocate to pass over to the enemy, and even the second class prizes whom they subsequently picked up, were retained by the accused, but, on punctilious points, they swerved from the noble rule laid down by Lord Erskine, which has always guided the profession. Motives are beyond our inquiry-facts are not. The fact is, the prior receipt of a retainer from the traversers. Of the able and experienced, Mr. Holmes alone was overlooked; a retainer had been forwarded to him on the part of the Rev. Mr. Tyrrell, since dead, but it arrived too late. The crown secured him. In our notice of the counsel,some curious facts connected with the retainers will be noticed.
On the first day of term, Judge Burton charged the grand jury in a long address. Some praised it as correct, others condemned it as unconstitutional-a word which, like the accommodating fairy cap that fits every head, possesses every variety of application. What does