APPENDIX A. OTHER TRIALS BETWEEN 1832 AND 1840. The following cases tried within the period covered by this volume were submitted to the Committee by the Editor, but were not thought of sufficient importance to be fully reported in the collection. The Earl of Waterford's Claim. 1831, September 1 and 6. 1832, February 17 and March 9. This case, which was decided by the Committee for Privileges, is reported in 6 Cl. & F. 133. The headnote is as follows: "A dignity or title of honour cannot be taken away (where there is no deficiency or corruption of blood) except by express words in an Act of Parliament: Held, therefore, that the Irish Act, 28 Hen. 8. c. 3, vesting in the King, in right of the Crown of England, all honours, manors, castles, seigniories, jurisdictions, and all other possessions and hereditaments held by certain persons, or by any person to the use of any of them in Ireland, did not take away from any of them a personal dignity; and that the opinion of Lord Coke and other judges that it took away the earldom of Waterford (a) was erroneous in fact and in law. The House of Lords is now the only satisfactory tribunal to determine questions on claims to dignities, on reference from the Crown(b); accordingly, a question of law having arisen on a petition of an Irish peer, presented to the House of Lords, claiming to be admitted to vote at the election of Irish representative peers, the House, with a view to a more solemn adjudication, recommended a petition claiming the peerage to be presented to the Crown, in order that it might be referred by the Crown to the House, with the report of the Law Officers of the Crown annexed, and then the House acting on the report of its Committee of Privileges, would adjudicate the right and report the same to the Crown. An adjudication in that form by the Irish House of Lords is an authority as binding on the House of Lords of the United Kingdom as a like determination by the latter House, or by the English or British House of Lords before the Unions, in the matter of English or British peerages. But a resolution of either House, affirming a report of its Committee, and recognising a right or privilege of peerage, is not equivalent to an adjudication upon a reference from the Crown." The King against John Delany, The King against Nash, The King against Woolahan, The King against Thomas Delany and others. 1832. May 23 to June 6. Special report of trials before the Right Hon. Sir Charles Kendall Bushe, C.J., and the Hon. Baron Sir William C. Smith, Bart., at the Special Commission at Maryborough. By James Mongan (a) See Earl of Shrewsbury's case, 12 Rep. 106. (b) See 2 St. Tr. N.S. 700. (Dublin, 1832). The following extract from the charge of the Chief Justice (Bushe) to the grand jury explains the circumstances under which the Special Commission was opened: "It is scarcely two months since the gaol of this county was delivered at an assizes which lasted from the 15th to the 27th of March, almost three times the period usually allotted. During the greater part of that time two judges were engaged in separate courts in criminal trials; the Crown Solicitor, under the orders of the Attorney General, prosecuted in many cases connected with public disturbance; thirty-five cases were actually tried, there were twentyfour convictions, forty-seven were found guilty, five capital convictions have been followed by a commutation for the punishment of transportation, and twenty-six were sentenced to transportation, twenty four of whom have been transported; yet your prison again is thronged, not with that class of offenders whose crimes grow out of the frailties of man in his individual character, but, almost without an exception, with insurgents systematically confederated against the laws and institutions of their country. In that short interval it appears, from the reports to the police department, that more than 300 outrages have been committed of every class, from murder downwards; in about sixty cases informations have been taken, and the calendar before us exhibits a list of 125 prisoners already made amenable. Therefore it is that upon this extraordinary visitation of public justice, the Commission which you have heard read has been directed to the presiding judges, in obedience to which it has been our duty to call you together. Under those deplorable circumstances many duties devolve upon you as grand jurors, magistrates, and country gentlemen, upon which it would be proper that I should address and exhort you: but you have lately heard an appeal from this Bench upon all those topics, which you cannot have forgotten, an appeal carrying with it a weight, instruction, and persuasiveness, upon which, placed as I now am, I am not left at liberty to say more than that I will not by a worse than useless repetition, run the risk of effacing the profound impression made upon your hearts and understandings, and shall only call your attention, and that of all persons of all ranks assembled here, to a statement of the nature of those offences which the King's judges are now commanded to inquire into, and of those laws which it has become necessary to put in force, and of the particular state of your county at this moment. It is nearly sixty years since an extraordinary state of crime called for a code peculiar to our country, and the Legislature was obliged to meet offences (then of no recent date) inconsistent with civilised society by enactments which in other circumstances would be in re and circulation, and enjoyment to their own dominion; they certainly encounter a principle which some persons think it would be difficult and, if possible, dangerous to control. Whether that theory be right or wrong, whether the price of property and labour should be allowed to find its own level, or whether, on the other hand, it is not both safe and wise to deal with, and modify that apparent tendency of human affairs, are topics not for this place, and upon which in any place I should be incapable of judging: but it does belong to this place, and to you, and to me to lament that those delicate questions which the wisest statesman or lawgiver would approach with fear and touch with a trembling hand, should be subject to the rude decision of a misguided and infuriated peasantry. We must pity such infatuation; but, gentlemen, it is not the causes of this delusion we have to think of here, but the effects. Crime and misery, those inevitable consequences of popular licentiousness, both abound amongst you, and are traced, as you will see, through all the means which have been always adopted by the insurgents for accomplishing their objects. pugnance to the principles of British jurispru- | upon a new theory, and subject its acquisition, dence. I speak of what are well known as the Whiteboy system and the Whiteboy statutes(a); that system, as far as we know, originates in secret associations, and manifests itself sometimes by tumultuous assemblies and sometimes by mischief, clandestinely and mysteriously perpetrated, and by means of both establishes that reign of terror under which a cruel despotism is exercised over mankind. Life and property are rendered insecure, the public peace is often violated and always endangered, and from a variety of conspiring causes the people become deeply and fatally demoralised. The pretence has been the redress of grievances, some alleged to exist in one district and some in another, but all substantially of the same character. If a landlord looks for a good tenant, if a farmer proposes for a vacant farm, if a master hires a servant from another county or province, if a higher rent or lower wages have been paid than those confederates approve; if the tithes of the Protestant clergy in one county or the dues of the Roman Catholic clergy in another, have exceeded that minimum which those confederates have established, all those have been represented from time to time as so many grievances, and the deluded people have persuaded themselves, or have been persuaded by others, to think that it was their duty to redress them. No wise or good man will think or speak with indifference, or otherwise than seriously and with regret, of the complaints and grievances of his fellow creatures. It is the lot of man in all classes to complain and have reason to complain, and we are told that the sorrow to which we are born is as much a law of nature as that the sparks fly upward.' Inequality of conditions has been in all ages and countries the dispensation of Providence, and necessarily leads to the humility of many, and the poverty of many; and all that human laws can do is to mould the institutions of society so as to protect all men, however humble, in their lives, properties, and rights. As to poverty, the duty of relieving and supporting the helpless poor, who have not ceas'd in the land,' is everywhere, and particularly in Ireland, urgent, and there never was a period in which the energies of Government, the attention of Parliament, the talents of enlightened men, and the bounty of the benevolent were in such unanimous and active co-operation for the amelioration of their condition. But with them we have here nothing to do. I cannot recollect an instance in the experience of many years (and perhaps it is a formidable view of our situation) in which a man has been charged with an insurrectionary offence whose crime could be traced to want or poverty. It is among the humbler classes, who either subsist by labour or exclusively by farming, or partly by one and partly by the other, that the ostensible disturbers of the peace are to be found; they seek to regulate property (a) 15 & 16 Geo. 3. c. 21; 27 Geo. 3. c. 15. 8. 10; 40 Geo. 3. c. 96; 50 Geo, 3. c. 102; 1 & 2 Will. 4. c. 44; 5 Vict. sess. 2. c. 28; 20 & 21 Vict. c. 3. Illegal oaths are administered by them, often by compulsion to unhappy wretches who attribute to them an obligation which they deny to more legitimate engagements. Vengeance is denounced against all who refuse to join their associations or resist their mandates, or give information of their crimes; by those means they become numerous, and the incessant and indefatigable plunder of arms from all descriptions of loyal and peaceable subjects soon renders them formidable. The destruction of property follows, houses and barns and granaries are levelled, crops are laid waste, pasture lands are ploughed, plantations are torn up, meadows are thrown open to cattle, cattle are maimed, tortured, killed; those persons who incur their displeasure are visited by parties of banditti who inflict cruel torture upon their persons, mutilate their limbs, or beat them almost to death. Men are deliberately assassinated in the open day, who have in any way become obnoxious to the insurgents, or opposed their system, or refused to participate in their outrages, and sometimes the unoffending members of a family are indiscriminately murdered by burning the habitation of one devoted victim. Entire classes are proscribed by them, especially those who in any way, from the highest to the lowest department, contribute to the administration of justice. The humble being who earns his bread by serving the process of a court of law is held up to public hatred, and persecuted like a noxious animal. The witness who gives evidence in a court of justice is stigmatised as an informer, and devoted to general execration, and the juryman is ordered on pain of death not to discharge his duty. Whoever confines his estimate of the consequences of such a confederacy to the mere outrages and crimes it produces, has, I fear, but superficially examined the subject. Such consequences may be occasional and transient, but the moral influence upon society of such a diseased state of human character must be deep and permanent. The bad passions let loose, the | know, imposes new duties upon magistrates, and charities of life extinct, those relations dissevered gives them new powers calculated to enforce which between the higher and lower classes are the execution of this law by exertions beyond the offspring of reciprocal protection and depen- those required in ordinary times. dence. Confidence displaced by suspicion, and fear and hatred in all classes vitiating and corroding the heart of man. These are productive seeds which threaten a fearful growth, and if the mischief be not put down every reflecting man will look forward to the necessary influence of such a state of things upon the future destinies of Ireland as operating far beyond the local disturbances of a provincial district. It is quite plain that ordinary laws, calculated for civilised communities, are not applicable to a country so circumstanced, and one of the most lamentable consequences which the offences of the people have produced is, that they have brought down upon their own heads the sanctions of a code, enacted expressly for the purpose, so uncongenial to our institutions that shortly after the Whiteboy Act had passed it received this construction, (a) that though a permanent statute, its provisions are not in force in any district undisturbed by illegal associations; except at such times and in such places it remains upon the statute book disowned and inoperative, and as has been often said rests like a sword in the scabbard till drawn by the crimes of the people. This law meets the principle of unlawful assemblies, in the first instance by enacting, that the mere act of association, without any other concomitant transgression, is a high offence and subject to severe punishment. I shall read to you the 15 & 16 Geo. 3. c. 21. 8. 2. This is a very severe provision, and by it the mere assembling is a crime, although a hand should not be raised by any of the party. But there is scarcely an act which can be done by persons so associated which the remainder of the statute does not visit with punishments more severe. Until very lately death was the common punishment of all such acts, but the Legislature has substituted in its place transportation for life, or years, or at the discretion of the Court, imprisonment and corporal punishment. Several actions for which men in an undisturbed district would not be at all answerable, or if answerable, only liable to the slightest penalties, become subject to those awful sentences. Mere trespasses and acts which are not even trespasses, the mere attempt to commit a crime though never perpetrated, the sending of a threatening letter, or delivering a threatening message, the slightest injury to property, an attack upon a dwelling-house without any injury to it, which is called by a phrase, I believe, peculiar to this code, the assault of a dwellinghouse, are all made transportable offences, not only against those who commit them, but against those who "abet, succour, excite, ask, or require, or even endeavour to compel or induce others to commit them." (2nd, 3rd, 6th, and 7th section 1 & 2 Will. 4. c. 44.) Such are the formidable sanctions by which this code visits insurrection; but it goes farther, and as you well (a) See Rer v. Whelan, 1 Cr. & Dix, C.C. 180; Rex v. Carroll, Jebb, Cr. & Pr. Cas. 78; Brunker's Digest, tit. Criminal Law, 543. It is but just to call such laws severe, but it is also just to call them merciful; they are founded upon two sound principles, the prevention of crime, and upon the known tendencies of unlawful associations to produce it, In the case of individuals the progress from one offence to another is mostly gradual, but in the case of associated criminals, rapid. It is the nature of unlawful associations to inflame the passions of one man by the passions of another, and to bring into general action the collected vices of many. The man whose own temptation or frailty would be insufficient to urge him onward in the career of guilt, whose own reason or compunction might arrest his progress, is borne along with the torrent; bad example decides him, false shame hardens him, and he is precipitated almost necessarily into crime. It is, therefore, a humane as well as a wise law which denounces a severe punishment against every offence, of whatever nature, which is likely to lead to a commission of the highest crimes, and its wisdom has been exemplified by the history of all those associations. They begin by incendiaries spreading among an ignorant multitude the spirit of discontent. The inequality of human conditions is represented as a grievance, every inconvenience of which they can complain, however incident to human society in all countries, is denounced as an abuse; they are taught to combine for the purpose of rectifying all those supposed wrongs; the confederacy requires arms, and procures them by robbery. Rapine and violence thus become familiar. The fear which never deserts conscious guilt makes them cruel and vindictive. Every moral principle is rapidly extinguished, every sense of obligation is lost, that consummation of vice to which an individual slowly habituates himself, a conspirator arrives at speedily, sometimes in a single day, and it has often happened that an unfortunate and deluded wretch has in the morning joined one of these confederacies as the champion of rights and redresser of wrongs, and the evening sun has set upon him covered with crimes and stained with blood. I have already told you that this code is peculiar to Ireland, and I add that the experience of many years is at once a melancholy attestation of its necessity, and a convincing proof of its efficacy; and there is no instance (except where open rebellion has raged) in which those laws have not been found adequate to the suppression of the evil. I can conceive that some will find it difficult to reconcile that opinion with the known and deplorable truths, that at the end of more than sixty years we are still struggling with insurrection in the third generation of those against whom those laws were pointed. But it is not the province or within the power of such laws, as judges, and juries can ad minister, nor do those laws affect to annihilate such an evil as this. What may be its remote causes or remote effects-whether its roots strike deep, and threaten higher and more widely extended mischief, and if so, what course or system is best calculated to eradicate it, are questions awful and grave-they belong, however, to the statesman and the legislator, and not to us in this court of justice whose duty is to repress crime by enforcing the existing laws. Although the calls upon us for the discharge of that duty are, alas, too frequent, and although this mysterious engine of secret combination, shifted from place to place, continues to be wielded and worked by some invisible hand from time to time, now against one part of the island, and now against another, yet those who have had the experience of many years of official and judicial life, can assure you that it has never been able to stand against the venerable authority of the laws vigorously and calmly brought to bear upon it. It is little more than a year since the county of Clare has been agitated to a degree beyond what was ever known in Ireland (short of civil war), and the insurgents had almost, if not altogether, taken the field, but the course of justice at two assizes and one special commission, was (contrary to the apprehensions of many) found sufficient to put down the mischief, and I believe I am correctly informed in stating that at this moment tranquillity is perfectly re-established in that county-that the misguided people have become sensible of their errors, and that confidence and goodwill are restored amongst those classes so lately arrayed in hostility against each other. Some of those who hear me remember the insurrection of the Threshers in 1806, when the entire province of Connaught, with the exception of one county and two counties on the North-west Circuit (Longford nnd Cavan) were overrun by insurgents, so formidable that the King's judges upon a Special Commission (a) could not move through the country, except under a military escort, so formidable, that the sentence of the law could not be executed in one particular county town till a general officer had marched from a distant quarter at the head of a strong force to support the civil power; yet in the short space of one month that Special Commission, in the midst of an inclement winter, visited five counties, and in consequence of the firm administration of the laws, supported by the cordial co-operation of the magistrates and gentry-such was the triumph of justice that the insurrection dissolved before its influence, and from that period, for some years the Crown Solicitor of those counties had no case of public disturbance to prosecute. In some years after that similar disturbances broke out at intervals in Cork, Limerick, Tipperary, Kerry, Waterford, and Kilkenny, some formidable, and some made more particularly alarming by the existence of a war with France, then governed by the Emperor Napoleon. All those counties were visited, as you are now, by Special Commissions, and all were pacified, some, I hope, permanently, some for a long time; and if there be others again infected by this moral pestilence, I trust (a) See Trials of the Threshers. Report of the proceedings under a Special Commission, &c. for Sligo, Mayo, Leitrim, Longford, and Cavan, by Ridgeway. Dublin, 1807; Plunket's Speeches, 96. that the same effects will follow from the same causes, and that the laws of the country will be always sufficient to subdue the disease and stop the contagion. But let it be remembered that. if that expectation should be disappointed, if the deluded people should continue incorrigibly to increase in wickedness as they have lately done, they may have to repent of the additional guilt of bringing down upon their country the operation of those stronger measures to which in cases of extreme necessity the Legislature has often resorted; you all know what I allude to, and many whom I see can remember, as I do, the sus pension of the Habeas Corpus Act, (a) which at this moment secures the personal liberty of every man who hears me. Many can remember the trial by jury, that institution long envied, and at last emulated by other countries, superseded in Ireland by the Summary Insurrection Act, (b) and the more summary court martial.(c) Every man who recollects those days wishes that they may never return, but younger men of all classes only know them by description, and let them be assured that no description can convey an adequate notion of the horrors belonging to such a state of things. Some of those who are disgusted and alarmed by the progress of insurrection, and impatient of the persevering follies and vices of the people, may look to such measures as a remedy more appropriate than our present proceeding, while the audacious and infatuated wretches now confederated against the peace of the country may be taught by their more criminal instigators to despise a danger and defy a power which they have never experienced; but let both take counsel from those who have lived before them, and they will be told what a fearful thing it is to live in a country bereft of those free institutions, which, while they restrain, protect all classes of society in the enjoyment of their respective rights. Such an evil is to be deprecated, but the time may come when it will be the least of two misfortunes, and the only means left to quell rebellion and avert anarchy. It is not unnatural that those who witness and suffer by daily and increasing outrages should think that time already arrived, and surely, on the other hand, it will be expected by every constitutional man that the Legislature will always pause to the last moment, and almost beyond the last moment, before it will adopt that course, which, however, the history of all countries shows that the extreme danger of the commonwealth may call for and justify. Whenever that day shall come vae victis, vae victoribus. Woe to the vanquished, woe to the conquerors. I have called the attention of those who hear me to the severity and effectiveness of the Whiteboy code, in the hopes of suggesting useful reflections to all classes of the com (a) (1797) 37 Geo. 3. c. 1. (Irish Statutes) continued by 38 Geo. 3. c. 14; 40 Geo. 3. c. 18. (b) (1796) 36 Geo. 3. c. 20. (Irish Statutes). See also 37 Geo. 3. c. 38; 38 Geo. 3. c. 31 and c. 82. (c) Lord Camden's Proclamation, 17th May 1797. See 39 Geo. 3. c. 11. (Irish Statutes). munity; but I must add, that a deplorable peculiarity of the offences and the laws which the judges are now dealing with, and of the state in which we find this country, is the extreme difficulty of administering justice in that spirit of mitigating mercy, which, whenever it can be acted upon, constitutes our most pleasing as well as our most imperious duty. Every one who has observed the ordinary administration of justice at the assizes against ordinary offences, must have witnessed the anxiety with which the circumstances connected with each culprit and with his offence, are investigated by the presiding judge both during the trial and after the conviction; and if youth and previous good character, or compulsion, or seduction, or its having been a first offence, or the pressure of poverty can be established in his favour, all discretionary punishments are graduated after giving their fair value to all such favourable circumstances, and if the punishment be not discretionary the judgment is merely recorded for the moment, and a recommendation to the executive government is uniformly followed by a commutation of the sentence from death to transportation or imprisonment, or from transportation to imprisonment, and the duration of either is abridged as far as is consistent with that necessary example which is the great object of criminal law. But when justice has to deal, not with one individual transgressor of a particular law to the injury of another individual, but with associations confederated against all law, and all the institutions upon which society depends, there is much difference, and the judge who consults his conscience will find that with a view to the good to be effected by example, he is bound by the sterner duty of administering that code, whose principle is that slight transgressions in aid of insurrection are dangerous crimes. The last assizes furnished more than one instance of this, but one in particular remembered by many who hear me. A very young man was convicted of his first offence-an act certainly of great violence, but not accompanied by actual cruelty, He appeared to be a respectable youth, and his conduct on his trial was decorous and prepossessing; he was an industrious tradesman, not interested in landed property so as to connect him with that motive or pretence for unlawful association, and he was represented, I believe truly, to be the only support of a widowed mother. He is now doomed to transportation for seven years-and at the assizes the judge refused to act upon the intercession of a humane and respectable gentleman, or to support any recommendation for mercy to Government. Afterwards the Lord Lieutenant referred to the judge a petition from this unhappy person, supported by many attestations to his former character and good conduct and desired to know, whether in his opinion "the convict was a proper object of mercy," and the judge reported that he was not; and stated his reasons for thinking so. This man's crime was neither prompted by want, nor by anger, nor by revenge, or any of the ungovernable passions of youth, but was perpetrated in pursuance of the objects of that lawless associa tion which still infests this country. In the day time he and two other men, armed with two hatchets and a scythe, took advantage of the supposed absence at a fair of the proprietor and male inhabitants of a house where firearms were kept, burst into it, ransacked every part of it in search of those arms, broke the windows. demanded the arms with savage threats from the terrified females, raised those murderous weapons against them, and the prisoner struck a blow at one womau with a hatchet, which did not reach her, and probably was not intended to do so. They failed to get the arms-no life was lost-no wound was inflicted. -no property was taken. But one of the offences created by the Whiteboy Act was committed, and that was neither more nor less than an attempt to put the arms of honest men into the hands of ruffians, for the purpose of overawing the laws, and bearing down the lawful institutions of the country. Such was the crime exhibiting the sad influence of this infatuating conspiracy, even upon men of good dispositions and good character. This young man's petition was unaccompanied by the profession of repentance-even by a pretence that the crime had been committed under compulsion or seduction, --by any abandonment of the principles of that confederacy to which he belonged, by any compunction for the offence, by any offer to surrender arms. And when was it preferred? Not after the defeat and humiliation of penitent insurgents, when Government is always happy to proclaim amnesty, and to dispense mercy; but while his subdued associates (as they had been doing indeed, at the very moment of his trial, and during the entire assizes) were spreading that terror and destruction through the country, which has continued almost up to the day on which I now address you, as the necessity of this Commission and the catalogue of crimes in this calendar too plainly testifies. Mercy to him would have been cruelty to the public, and if I had advised it (for I was the judge) I should be responsible for all the too probable consequences of encouraging existing insurrection by impunity. Every feeling man commiserates the fate of this victim, and wishes that he could have been spared; and some may censure the severity of his sentence; but let such throw the blame upon those who ought to bear it, upon his confederates, and upon those who set them on. It is they who bring down justice upon the deluded people, and shut the gates of mercy against them, they make the exiles, and the orphans, and the widows, whose wailing is heard through the land. From directing your thoughts to no pleasing view of our present situation, and to what Ï hope may be an instructive retrospect, and to a warning consideration of what, perhaps, is to come, I will conclude by recalling your attention to all that is in our power to do, and that is our duty. Let us do that firmly and temperately, I say firmly and temperately, for in agitated times it is hard to preserve the equable balance of the mind. Fear is a corrupting principle, and alarm operates in different and opposite directions, in such times, the influence |