of panic has led men, I am sorry to say, of all classes, to truckle to the insurgents, to decline those duties which the administration of justice calls for; or what is worse, to discharge them in a spirit of base compromise, in the silly hope of securing what could never be more than a temporary and precarious safety, or from the mere abject motive of earning an ignominious popularity; on the other hand, panic is often the source of a blind, rash, indiscriminating zeal, an exasperating energy, more resembling the temper of war, than the stayed step and sober-minded character of justice. We should always remember that we are engaged in a conflict of law against outrage, and not of one violence against another; and that in proportion as the enormity of the offence calls for exertion, it also calls upon us to distrust or at least to watch ourselves, and to proceed cautiously and circumspectly, not only because the punishments to be inflicted are heavy, but because it is impossible to approach the discharge of our present duties without a deep and personal interest in putting down the existing mischief, an interest which we are bound to neutralise by the coolest impartiality. In the discharge of my duties at the last assizes I had no reason to suppose that either of those imputations could, with truth, be alleged against the gentry of this county; but I have warned you against those extremes of error which long experience in many places tells me are the natural produce of distracted times, and the consequence of that demoralisation which, once introduced into society, is never stationary. Let us, therefore, co-operate in our several departments, in carrying into execution the laws of our country; and in the grand jury room, in the petit jury box, and on the bench, enter into a covenant with ourselves, so calmly and scrupulously, to investigate every charge as to ensure the conviction of every guilty man, and the acquittal of every man whose innocence is manifested, or whose guilt is made doubtful." The following observations of the Chief Justice in passing sentence upon some of the prisoners convicted(a) describe the results of the Commission: Clerk of the Crown: Put John Whelan and Thomas Lawlor to the bar. BUSHE, C.J.: "This Commission has sat for thirteen days, and at this moment thirty-eight persons stand at that bar to receive sentences proportioned to the crimes of which they have been found guilty. We have made every inquiry that we possibly could, and have examined all the evidence given on the different trials, in order to find the means of administering justice effectually, but at the same time in mercy. Many of the sentences that are to be pronounced are in their nature discretionary, and the duty of pronouncing these devolves upon me; there are some not discretionary, the most tremendous (a) John Delaney and Patrick Nash were convicted respectively of unlawful shooting and stabbing, and sentenced to death. Sentence of death was also recorded against William Woolahan and James Dowling for burglary. of all sentences, and the duty of pronouncing them remains for my brother Smith. In the pronouncing of those sentences the public will be apprised, not only of each man's punishment, but of the class of crimes to which his guilt belongs, and the several cases upon which judgment is now to be given, will illustrate the history and progress of the insurrection, of which these wretched prisoners are the victims. There is, in the first instance, a list of thirteen persons to receive sentence for the most mitigated of those crimes, namely, the unlawfully assembling and carrying arms, without any particular act of criminality being imputed to them. To those, as nearly of the same class, may be added the two men who have pleaded guilty to a charge of riot and rescue. Fine and imprisonment is the punishment we shall inflict for all the offences of the first class I have mentioned, and we shall not add to it the corporal punishment which the statute authorises. We have considered each particular case, with a view that each sentence may be adequate and not more than adequate to the offence, and in the hope that those sentences may be useful as a warning to the wretched persons themselves, and beneficial to the public in the way of example. The first of these cases is that of the two men now standing at the bar, John Whelan and Thomas Lawlor. They have been convicted of appearing in arms in the streets of Portarlington at seven o'clock in the evening, and one of them had a pistol in his possession bearing the marks of having been recently discharged. Under the direction and questions left to the jury, they have found that those two persons appeared in arms' in the language of the statute, to the terror of the King's subjects.' It does not appear clearly that they committed any offence, but the evidence abounds in suspicion that they were implicated in an offence committed on that evening. We do not act upon that suspicion, nor do we allow it to prejudice them or make any ingredient in their punishment, and for that reason a very mild sentence will be pronounced upon them. That sentence is that you and each of you, John Whelan and Thomas Lawlor be imprisoned for one month, that you be each fined one pound, and that you give security to keep the peace for seven years, each of yourselves in fifty pounds, and two sureties, each in five pounds. Clerk of the Crown: Put Michael Doran and Thomas Murphy to the bar. BUSHE, C.J.: Michael Doran and Thomas Murphy, you have been found guilty of the same offence for which Whelan and Lawlor have just now been sentenced. The circumstances of your case are less favourable, but they are not of an aggravated class, and I trust in God that the moderation and mercy with which you will be dealt with now may have an influence on the rest of your lives. You are each sentenced to six months' imprisonment, each of you shall pay a fine of one pound, and each of you is to give security for your good behaviour for seven years, yourselves in fifty pounds each, and two sureties in five pounds each. Clerk of the Crown: Put Edward Kilmartin, John Coonan, and John Phelan to the bar. Hurley, you do not belong to the class of cases in which I have been just now pronouncing sentence, but you belong to a class of persons demoralised in the highest degree, and under the influence of the most depraved spirit and the most unfortunate delusion; you belong to that class of persons who seem to have sworn enmity against the laws of their country. It is in the general demoralisation one of the most deplorable circumstances that instead of magistrates and dispensers of the law being respected and looked up to, as they are in civilised countries, unhappily in this part of Ireland, every man who assists in the administration of justice is denounced as a public enemy and exposed to violence and outrage. Your offence is this, a magistrate of the county had criminals in his care bringing them to prison to have them dealt with according to law, and you made a riot in the streets of this town, and with a set of ruffians you assaulted that magistrate, and did your best to rescue his prisoners. I should now pronounce a heavy sentence upon you, but that by your contrition, evinced by your pleading guilty, you have entitled yourselves to a mitigation of punishment. I shall, therefore, sen BUSHE, C.J.: Edward Kilmartin, John Coonan, and John Phelan, you have been found guilty of one of those offences of assembling in arms to the terror of the King's subjects, and your case is a dreadfully aggravated one; it is not the mere riotous movement of the moment, but the evidence in your case traces it up almost to the fountain head (wherever that is) of this dreadful conspiracy. You were found at night armed with desperate weapons, firearms highly loaded, in good order, but what is more, there were found upon your persons notices from tha personage that is called Captain Rock, to be served upon two persons, denouncing merciless vengeance upon one of them if he did not give up his property, and upon the other if he did not discharge his servant. If our sentence shall appear heavy, I desire you to remember that you ought to thank God that you were arrested that night. The great probability is, that if your wicked course had been allowed to run another hour, that you would be now in that blacker list to which I am approaching, that list of those who are to be sent from this country for the remainder of their days, or perhaps you would have fallen into that class upon whom my brother Smith will just now have to pro-tence you under these circumstances, each of nounce sentence of death. You, and each of you, shall be imprisoned for twelve months, each of you shall be fined forty shillings, and your imprisonment shall be continued until you give security, yourselves in fifty pounds each, and two sureties each in ten pounds to keep the peace and for your good conduct for seven years. Clerk of the Crown: Put Patrick Brophy and Jeremiah Kelly to the bar. BUSHE, C.J.: Patrick Brophy and Jeremiah Kelly, I have reserved your case to the last of that class to which you belong. It is by mere accident that you are not now standing at the bar to receive sentence of death. You were found with arms in your hands, and arms lying about the place you were found in, many well prepared arms; you were found in possession of the parts of unextinguished kindling of fire, which I have little doubt had been applied to a house in that neighbourhood within half an hour before your arrest, that house close to which you were taken was attacked just before you were apprehended, and there was not only fire put under the roof of it, but a shot was fired through the door which might have taken away the lives of some innocent persons. If the police who apprehended you just after the dreadful crime was committed had seized you in the commission of it, you would now have to hear sentence of death; that sentence you are saved from, but I shall sentence each of you to be imprisoned for eighteen months, to pay each of you a fine of five pounds, and not to be discharged from imprisonment until after you shall have paid that fine, and each of you must give security for the peace and for your good behaviour for seven years, yourselves in one hundred pounds each, and two sureties in ten pounds each. Clerk of the Crown: Put Hugh Galvin and Patrick Hurley to the bar. BUSHE, C.J.: Hugh Galvin and Patrick you to be imprisoned for three months, and each of you to pay a fine of ten shillings, and give security for the peace and your good behaviour for seven years, yourselves in fifty pounds each, and two sureties in five pounds. Clerk of the Crown: Put William Doody, William Fennell, Michael Barron, and Thomas Humphries to the bar. BUSHE, C.J.: I am now about to pass sentence upon a class of persons who have subjected themselves not to fine and imprisonment, but to be torn from their families and their friends, never again to see the country of their birth, and to pass the remainder of their days in a foreign, barbarous land. In every case but one, in which I am to pass sentence of this nature, the judges have a discretion left to them to pronounce sentence of transportation for the life of the criminal, or for seven years, or to substitute imprisonment in its place. We have done everything in our power to enable us to exercise that discretion, with as much humanity as is consistent with justice. You, William Doody and William Fennell, have been found guilty upon one indictment; and you, Michael Barron, upon another indictment; and you, Thomas Humphries, upon another indictment; all distinct cases-but all the same crimes; and, in our judgment, calling for the same punishment; and there belongs to your cases that which, I am sorry to say, is a true description of every crime which has been now brought to justice before us, with the exception of one,-that every one of those crimes was committed in the short interval between the close of the last Assizes and the opening of the present Commission. What is that crime? The crime of demanding arms--and what use is made of those arms? You will be in Court and you will hear just now sentence of death pronounced upon some persons belonging to your wicked associations; and to that sentence, that ignominious death, all those are in inevi table progress who are engaged in the taking of | I have not been able to conjecture for what arms. What, in the name of God, do you want with arms? The implements of industry ought to be your only arms; but, when I find in different parts of this county, from one end of it to the other, a simultaneous movement, often on the same identical day, of a great portion of the population rising in search of arms, the prospect of future mischief, independently of existing crimes, is opened before me, and it is one that I am afraid to dwell upon. It is in our power to sentence every one of you to transportation for the remainder of your days. We shall sentence each of you to be transported for seven years; some of you may live to come back and see those friends from whom a word from my lips might have separated you for ever. Willam Doody: Oh, my Lord, I am a poor widow's son. Do anything with me, but do not send me out of the country. Have mercy on me ! BUSHE, C.J.: The only mercy that, consistently with justice, we could administer to you we have; and that is, to reduce your punishment from transportation for life to transportation for seven years; and mercy beyond that would be cruelty to others. Clerk of the Crown: Put forward Arthur M'Donnell and Andrew M'Evoy. BUSHE, C.J.: Arthur M'Donnell and Andrew M'Evoy you have been, providentially for yourselves, convicted only of a crime that subjects you to transportation; that crime is the demanding of arms. But, under what circumstances have you been found guilty? You are not only identified with this reprobate banditti, by the demanding of arms, but your crimes have been accompanied by two most dreadful robberies--robberies of property to a large amount; and, what is worse, there belongs to your crime that most horrid extreme of a demoralised nature, the lifting of the arm of a man against the person of a woman. We cannot forget the circumstances connected with your defence—a defence not to be imputed to any source but your own subornation of depraved participators in your vices. The production of a young woman of the name of Anderton has exhibited a scene of perjury and corruption of every kind that taints the human character, which calls upon us, in common justice to the offended laws, and to the safety of the country, to remove you both from it as men unfit to live in it; and, therefore, we sentence you, and each of you, to be transported for the remainder of your lives. Clerk of the Crown: Put Thomas Delany, Bartholomew Malone, Jeremiah Weire, Michael Malone, and James Deegan, to the bar. BUSHE, C.J.: Thomas Delany, Bartholomew Malone, Jeremiah Weire, Michael Malone, James Deegan, you have been found guilty of an offence, which in all its particulars is an exact description of the crime called a " Whiteboy misdemeanor,' and illustrates the dreadful mischiefs produced by that association to which you belong. The crime of which you have been guilty is, the assaulting and breaking into the dwelling-house of a man of the name of Terrott. Up to this hour no one has discovered purpose it was that at least thirty ruffians, in the dead hour of the night, broke into that poor man's house; you broke into it; you demanded arms; your crime was burglary, and you might have been capitally indicted as one of your party was; you treated the inhabitants most brutally, and you were then about to retire; your crime, if it had stopped there, would have been a very bad one, and your sentence which might have been death, would, even under this indictment, have been a severe one; but your crime is now characterised by something more; upon the one hand, it is dreadfully aggravated by what followed; on the other hand, it is but right to say that what followed does not appear to have been premeditated by you: I mean the brutal and savage attack upon Mr. Miller. I will do you the justice to say, that you did not expect to meet him, and that you met him accidently. But let your case be remembered by the public as a proof of this, that the man who goes one step in a Whiteboy crime does not know but that the next step may be to death. is Thomas Delany, your share in this transaction worse than that of the others. I shall sentence you to be transported for life. Bartholomew Malone and James Deegan, you stand before us with some claims to a mitigation of punishment, to this extent, that you participated less in the violence upon Mr. Miller than your associates did; but, for the sake of example, you must be transported for seven years. Michael Malone, I have inquired into your case, and have heard circumstances favourable to you. There is a circumstance very creditable to you, and that circumstance is, that you have sent to the judges a penitent and candid avowal of your guilt. In this well-prepared paper, drawn up, as I am informed, from your own lips, you have stated the justice of the law, and have thrown yourself upon its mercy; and you form a contrast favourable to yourself, when you are compared with those who have to the last moment audaciously and impenitently alleged that injustice has been done to them. I shall not turn you loose upon the country. It is for your advantage that you should be imprisoned. You shall be imprisoned for the purpose of cutting off any communication between you and the tainted atmosphere, in which persons of your class, in this part of the country, now live; and I trust that, during the time of your imprisonment, you will avail yourself of the opportunities that may be afforded to you of refcrming and subduing your bad passions, and of profiting by religious instruction; and that at the end of the year, for which I sentence you to imprisonment, you may come out a better man than you are when going into prison. I shall require further of you before you shall be discharged at the end of the year, that you shall give security to be of the peace and good behaviour for seven years, yourself in 501., and two sureties, each in 57. Jeremiah Weire, I have had, from the day of your trial up to this moment, many anxious thoughts about you. I do not forget-I do not think I shall ever forget, the manner in Brenan, Thomas Dunne, and William Dunne. BUSHE, C.J.: You have been all found guilty of an offence of the same class as that for which I have just now sentenced those who immediately before you have been brought to the bar, but your offence differs dreadfully in degree. In the former case, the meeting Mr. Miller and the violence to his person was accidental. In your case the offence was premeditated, and your crime consists in from thirty to forty persons in the dead hour of the night, breaking into the house of an unoffending and unprotected family, determined on their destruction; that is an awful distinction between your case and the former. which Mr. Henry Smith spoke of you. He | Leonard, Hugh Slattery, Owen Breaan, Martin stated you to be young, to be peaceable, and to be humane; and he swore to that in which I firmly believe he is not mistaken, that your natural disposition is averse to cruelty; and that it is quite opposed to the dreadful crime in which you have participated; but you are one of those instances, which are too frequent, of a good natural disposition, depraved, not by bad passions, but by bad associations. You are the peculiar representative now of the fresh, and ingenuous, and thoughtless mind, inoculated and poisoned with this pestilential infection which has made the country that you live in, if I may call it so, a moral pest house; we feel for you, and we shall give you an opportunity, for my brother judge and I have had many anxious communications upon the subject of your case; we shall give you an opportunity of penitence and reformation, of which I do not in your case entertain any doubt that you will avail yourself. But I have something more to tell you; I have to tell you that you are much indebted to the representation made of you by that brave, and gallant, and humane, and single-hearted character, Thomas Miller. Thomas Miller, that man who so nearly lost his life by the brutal and cruel violence of your associates, committed in your presence, has stated you to have been a young person of good conduct, and a good character, and that good character which he has given shows at once how well he knew you, how little likely it was that he could be mistaken in swearing to you, and at the same time demonstrates the fairness and kindness of his nature. Your own brother, when he was examined, was asked whether he knew Mr. Miller; 'Oh! yes,' said he, and we all liked him'; that man whom you all liked, that man to whose worth your own family have borne testimony, that man lay bleeding before you, and you did not raise your hand or voice to protect him. What revolution of your nature could have thus metamorphosed your character and can account for this? There is but one way of accounting for it, and that is the dreadful influence and authority of the existing conspiracy. I had a question put to him since your trial, with reference to that part of his evidence which represented you as stooping over his body and looking in his face, then within four inches of your own, while he lay weltering in his blood-whether this might not be attributed to a return of your natural good feeling, and to your wish to ascertain the extent of his danger; when that question was put to that honest man, he said at once, 'I would be glad to think so, and I believe it was so.' You shall be imprisoned for one year. I have ascertained that your health is bad, but I also know that I consult your temporal and spiritual interests more by leaving you in prison for twelve months, with every care that will be taken of you by the constant attendance of a physician for your body and the physician of your soul, than if I were to allow you to return to that corrupted society from which you are now happily separated. Clerk of the Crown: Put forward Laurence But there are other distinctions-I need not tell you that you might have been capitally indicted, and that the two most guilty of your associates have been capitally convicted; and you must be convinced that you have been mercifully prosecuted, when I remind you, and those who hear me, of one feature in your case; the outrage that you committed upon Good Friday night was the consequence of a most abominable conspiracy, the operations of which commenced on the Sunday evening previous to the attack, by some of you making a treacherous and deceitful visit to the house of old Williamı Jacob for the purpose of finding out the accessible and weak points for attack; for the purpose of seeing how you could lull to sleep the apprehensions of the inhabitants; for the purpose of making them think that they were under your protection, and afterwards you availed yourselves of those advantages so acquired, by committing a crime that will be long remembered in this county, for the many extraordinary and shocking circumstances connected with it. There are distinctions, however, among you; Laurence Leonard, your prosecutors have represented you as a man who acted with humanity towards them; they have represented you as a person who though implicated in the guilt of that treacherous visit, yet interfered and saved their lives. At their intercession, and the intercession and recommendation of the jury, we have determined that you shall not be transported; but you cannot be allowed to go at large; it is for your own benefit that you should remain in custody, and be separated from the contagious association of your old confederates. You shall be imprisoned for one year, and find security for the peace and your good behaviour for seven years, yourself in fifty pounds, and two sureties, each in ten pounds. Owen Brenan, you also come before the court under mitigating circumstances, you are very young, you have this also to say for yourself, that you were acting in obedience to the orders of your unfortunate master, who has forfeited his life by this crime; and you have this to say for yourself also, that until the very moment of your trial, you had expressed contrition for your offence; in my sight you walked up to the place where you now stand, having obtained at your own request, permission to withdraw the plea of not guilty, and to plead guilty to the charge; but you were induced to change your mind, in consequence of communications which we all witnessed. We shall not visit that upon you, but will give you the full benefit of that contrition you originally manifested. You were taught to believe, and perhaps justly, that such a proceeding on your part would be injurious to your confederates, and your conduct was prompted by a perverted generous feeling. I am about to pronounce a sentence of longer imprisonment upon you than upon Leonard; not that I think your crime is greater, or so great, as his, but for this reason, that in your case imprisonment may be highly salutary to you; you are young, the prison in which we are going to leave you is commodious, the governor is an attentive and humane person. You can be kept out of bad company; your mind may be moulded into better habits; and at the end of two years, which I make the measure of your imprisonment, you will, I trust, come out not merely a reformed person, but, perhaps, an improved character, a better man than even before you committed the crime. You must also give security, yourself in fifty pounds and two sureties each in five pounds, for keeping the peace and your good behaviour for seven years. gested. Your crime does not belong to any of those classes with which I have been hitherto dealing. It stands by itself, and manifests an approach still nearer to the source of the wicked and profligate conspiracy that now afflicts the Queen's County. Your crime is the administering of unlawful oaths, a crime of the most dreadful character, dangerous to society, profane towards the Almighty, and calculated to suggest to the minds of persons of your class very perverted notions of the nature of the legal and religious obligations of an oath; it is a melancholy truth that two species of demoralisation seem to be going hand in hand together in this country; one manifesting itself in the fidelity with which unlawful oaths are observed, and the other in the violation and contempt of those oaths that are lawful, and taken in the administration of justice. You, with others in arms, by compulsion, administered an oath to a man, calling upon him to give up his property merely because you ordered it. That is an offence in every point of view atrocious and dangerous, and we sentence you to the severest punishment the law annexes to it. That you, and each of you, be transported for seven years." Cuvilier against Aylwin. 1832. November 29. This was an appeal from the Court of Appeals for Lower Canada to the Privy Council. The case is reported in 2 Knapp, p. 72. The of Great Britain (31 Geo. 2. c. 31. s. 2) declared head note is as follows:-" An Act of Parliament that all laws passed by the Legislature of a colony should be valid and binding within the colony, and directed that the Colonial Court of Appeal should be subjected to such appeal as it was previously to the passing of the Act, and also to such further and other provisions as might be made in that behalf by any act of the Colonial Legislature: Held, that an Act having been passed by the Colonial Legislature limiting the right of appeal to causes where the sum in dispute was not less than 500l. sterling, a But there are four persons more in this number, Hugh Slattery, Martin Brenan, Thomas Dunne, and William Dunne. I am not able to state anything favourable of them of the same nature as I have been happy to discover and to state in favour of Leonard and that young boy; and we see no possible alternative in your case but to sentence you to the very heaviest punishment which conviction on the present indictment has subjected you to. Your crime has the horrid aggravation of premeditation; and on looking into the notes of the evidence of the three trials I have looked in vain for any dis. tinction among those who went through that house that night in arms, beating a helpless old man and attempting the life of an unprotected young woman, and putting to the very verge of death an unoffending young man. Our sentence is that you, and each of you, be trans-petition for leave to appeal, in a cause where ported for the remainder of your lives. Hugh Slattery: I am the father of six children; and, before God and your Lordship, I never knew that he was in the country until the next day. I never had hand, act, or part in the business. Mercy I crave; before God I declare I am innocent. Clerk of the Crown: Put forward Francis Adams and Thomas Langton. BUSHE, C.J.: Francis Adams and Thomas Langton, the gentlemen of the bar who defended you with great ability have made an objection in point of law to your conviction, and the judges who preside here now will put that question into a course of inquiry; and if you shall appear to be entitled to the benefit of it you shall have it, and in that case the sentence which I am to pronounce upon you will not be executed. (a) But I shall now pronounce that sentence as I should have done if no legal difficulties had been sug (a) The objection was overruled. See Rex v. Adams and Langton.-Jebb, Cr. & Pr. Cas. 185. the sum was of less amount, could not be re ceived by the King in Council, although there was a special saving in the Colonial Act of the rights and prerogatives of the Crown."(a) The King against Lovelass.(b) 1834. March 17. This was an indictment for administering an The case is reported in 6 C. & P., p. 596, unlawful oath contrary to 37 Geo. 3. c. 123.(c) and 1 M. & Rob. 341. The head note in the former report is as follows:-"An oath administered in an illegal society (a society designated The General Society of Labourers'), by which the members of it are sworn to secrecy, is an unlawful oath within the statute 37 Geo. 3. c. 123, which is not confined to oaths ad (a) But see In re Louis Marois, 15 Moo. P.C. 193; Cushing v. Dupuy, 5 App. Cas. 417, 418. (b) See Courts and Cabinets of William 4, 2, 82, Ann. Reg. 1834, Chronicle, 58; Hansard, 3, s. 22, 725. (c) See 52 Geo. 3. c. 123. |