Chapter VII (2)

2. On the ground of _sedition_, and disaffection to the Government, might not these assemblages have been lawfully dispersed or prevented? Unfortunately, not under our modern atmosphere of political liberality. In time of war, when it may again become necessary, for the very salvation of the land, to suspend the _habeas corpus_ act, sedition would revive into a new meaning. But, at all times, sedition is of too unlimited a nature to form the basis of an affidavit sworn before a police magistrate; and it is an idea which very much sympathizes with the _general_ principles of political rights. When these are unusually licentious, sedition is interpreted liberally and laxly. Where danger tightens the restraints upon popular liberty, the idea of sedition is more narrowly defined. Sedition, besides, very much depends upon overt acts as expounding it. And to take any controversial ground for the basis of restraint upon personal liberty, would probably end in disappointment. At the same time, we must make one remark. Some months ago, in considering what offence was committed by the public avowal of the Repeal doctrine, we contended, that it amounted constructively to treason; and on the following argument--Why had any body supposed it lawful to entertain or to propagate such a doctrine? Simply, on the reflexion that, up to the summer of 1800, there _was_ no union with Ireland: since August of that 1800, this great change had been made. And by what? By an act of Parliament. But could there be any harm in seeking the repeal of a parliamentary act? Is not _that_ done in every session of the two Houses? And as to the more or less importance of an act, _that_ is a matter of opinion. But we contended, that the sanctity of an act is to be deduced from the sanctity of the subjects for which it legislates. And in proof of this, we alleged the _Act of Settlement_. Were it so, that simply the term _Act of Parliament_ implied a license universally for undoing and canceling it, then how came the Act of Settlement to enjoy so peculiar a consecration? We take upon us to say--that, in any year since the Revolution of 1688-9, to have called a meeting for the purpose of framing a petition against this act, would have been treason. Might not Parliament itself entertain a motion for repealing it, or for modifying it? Certainly; for we have no laws resembling those Athenian laws, which made it capitally punishable to propose their repeal. And secondly,--no body external to the two Houses, however venerable, can have power to take cognizance of words uttered in either of those Houses. Every Parliament, of necessity, must be invested with a discretionary power over every arrangement made by their predecessors. Each several Parliament must have the same power to _undo_, which former Parliaments had to _do_. The two Houses have the keys of St Peter--to unloose in the nineteenth century whatever the earliest Parliament in the twelfth century could bind. But this privilege is proper and exclusive to the two Houses acting in conjunction. Outside their walls, no man has power to do more than to propose as a petitioner some lawful change. But how could that be a lawful change which must begin by proposing to shift the allegiance into some other channel than that in which it now flows? The line of succession, as limited in the act, is composed of persons all interested. As against _them_, merely contingent and reversionary heirs, no treason could exist. But we have supposed the attempt to be against the individual family then occupying the throne. And it is clear that no pretence, drawn from the repealable nature of an English law, can avail to make it less, or other than treason, for a person outside of Parliament to propose the repeal of _this_ act as to any point affecting the existing royal family, or at least, so many of that family as are privileged persons known to the constitution. Now, then, this remark instantly points to two classes of acts; one upon which to all men is open the right of calling for Repeal; another upon which no such right is open. But if this be so, then to urge the legality of calling for a Repeal of the Union, on the ground that this union rests only upon an act of Parliament, is absurd; because that leaves it still doubtful whether this act falls under the one class or the other.

Why do we mention this? Because we think it exceedingly important that the attention of parliament should be called to the subject, and to the necessity of holding certain points in our constitution as absolutely sacred. If a man or party should go about proclaiming the unlawfulness, in a religious sense, of _property_, and agitating for that doctrine amongst the lower classes by appropriate arguments--it would soon be found necessary to check them, and the sanctity of property would soon be felt to merit civil support. Possibly it will be replied--"Supposing the revolutionary doctrines followed by overt acts, then the true redress is by attacking these acts." Yet every body feels that, if the doctrine and the acts continued to propagate themselves, very soon both would be punished. In the case where missionaries incited negro slaves to outrages on property, or were said to do so, nobody proposed to punish only the overt outrages. So, again, in the event of those doctrines being revived which denounced all differences of rank, and the official distinctions of civil government, it would be too late to punish the results after the bonds of society were generally relaxed. Ministers are placed in a very false position, continually taxing a man with proposing the repeal of a law as if _that_ were an admitted crime, and yet also pronouncing the proposed repeal of any law to be a privilege of every citizen. They will soon find it necessary to make their election for one or other of these incompatible views.

Meantime, in direct opposition to this uncertainty of the ministers, the Irish Attorney-General has drawn the same argument from the Act of Settlement which we have drawn. In February 1844, the Irish Attorney-General pronounced his views; _Blackwood's Magazine_ in August or September 1843. A fact which we mention--not as imputing to that learned gentleman any obligation to ourselves; for, on the contrary, it strengthens the opinion to have been _independently_ adopted by different minds, but in order to acquit ourselves from the natural suspicion of having, in a legal question, derived our own views from a high legal authority.

3. Might not the Repeal Association have been arrested and prosecuted at first, viz. in March 1843, as six months afterwards they were, on a charge of conspiracy? That was a happy thought, by whomsoever suggested; and strange that an idea, so often applied to minor offences as well as to political offences, should not at once have been seen to press with crushing effect upon these disturbers of the public peace. Since the great change in the combination laws, this doctrine of conspiracy is the only means by which masters retain any power at all. Wheresoever there are reciprocal rights, for one of the two antagonist interests to combine in defence of their own, presupposes in very many cases an unfair disturbance of the legal equilibrium. Society, as being an inert body in relation to any separate interests of its own, and chiefly from the obscurity of these interests, cannot be supposed to combine; and therefore cannot combine even to prevent combinations. Government is the perpetual guardian and organ of society in relation to its interests. Government, therefore, prosecutes. This, however, left the original question as to the Repeal of the Irish Union act, whether a lawful attempt or not lawful, untouched. And necessary it was to do so. Had the prosecutor even been satisfied on that point, no jury would have regarded it as other than a delicate question in the casuistry of political metaphysics. But the offence of combining, by means of tumultuous meetings, and by means of connecting with this obscure question rancorous nationalities or personalities, so as to make _that_ a matter of agitating interest to poor men, which else they would have regarded as a pure scholastic abstraction--this was a crime well understood by the jury; and thence flowed the verdict. But could not the same verdict have been obtained in the month of March? Certainly not. For the act of _conspiracy_ must prove itself by collusion between speeches and speeches, between speeches and newspapers, between reporters and newspapers, between newspaper and newspaper. But in the infancy of such a concern, these links of concert and mutual reverberation are few, hard to collect, and unless carelessly diffused, (as in the palmy days of the Repeal Association they were,) difficult to prove.

In short, no indictment could have availed that was not founded on the offence of conspiracy; and _that_ would not have been available with certainty much before the autumn, when in fact the conspirators were held to bail. To have failed would have been ruinous. We have seen how hardly the furious Opposition have submitted to the Government measure, under its present principle of simple confidence in the law as it is: had new laws, or suspension of old ones, been found requisite--the desperate resistance of the Liberals would have reacted contagiously on the excitement in Ireland, so as to cause more mischief in a secondary way, than any measure of restraint upon the Repealers could have healed directly.

It is certain, meantime, that Sir R. Peel did not wish to provoke a struggle with the Repealers. Feeling, probably, considerable doubts upon the issue of any trial, moving upon whatsoever principle--because in any case the composition of the jury must depend a good deal upon chance, and one recusant juror, or one juror falling ill at a critical moment, might have reduced the whole process to a nihility--Sir Robert, like any moderate man, hoped that his warnings might meet with attention. They did not. So far from _that_, the Repealers kindled into more frenzy through their own violence, irritated no doubt by public sympathy with their worst counsels in America and elsewhere. At length the case indicated in the minister's instructions to the lords-lieutenant of counties, the _casus fæderis_, actually occurred. One meeting was fixed ostentatiously on the anniversary of the rebellion in 1798; and against the intended meeting at Clontarf, large displays of cavalry and of military discipline were publicly advertised. These things were decisive: the viceroy returned suddenly to Ireland: the Privy Council of Ireland assembled: a proclamation issued from government: the conspirators were arrested: and in the regular course the trials came on.

Such is our account of the first stage in this great political transaction; and this first stage it is which most concerns the reputation of Government. For though the merit of the trials, or second stage, must also belong to Government, so far as regards the resolution to adopt this course, and the general principle of their movement; yet in the particular conduct of their parts, these trials naturally devolved upon the law-officers. In the admirable balance of firmness and forbearance it is hardly possible to imagine the minister exceeded. And here, where chiefly he stood between a double fire of attacks, irreconcilable in themselves, and proceeding not less on friends than foes, it is now found by official exposures that Sir Robert's conduct is not open to a trivial demur. He made his preparations for vindicating the laws in such a spirit of energy, as though he had resolved upon allowing no escape for the enemy; he opened a _locus penitentiæ_, noiseless and indulgent to the feelings of the offenders, with so constant an overture of placability as if he had resolved upon letting them _all_ escape. The kindness of the manner was as perfect as the brilliancy of the success.

Next, as regards the trials, there is so very much diffused through the speeches or the incidents of what is noticeable on one ground or other--that we shall confine ourselves to those points which are chiefly concerned in the one great factious (let us add fraudulent) attempt within the House of Commons to disparage the justice of the trial. In all history, we remember nothing that ever issued from a baffled and mortified party more audacious than this. As, on the other hand, in all history we remember nothing more anxiously or sublimely conscientious than the whole conduct of the trial. More conspicuously are these qualities displayed, as it was inevitable they should, in the verdict. Never yet has there been a document of this nature more elaborate and fervent in the energy of its distinctions, than this most memorable verdict; and the immortal twelve will send down their names to posterity as the roll-call of those upright citizens, who, in defiance of menaces, purchased peace to their afflicted country at the price of peril to themselves. With partisans, of course, all this goes for nothing; and no cry was more steadily raised in the House of Commons than the revolting falsehood--that the conspirators had not obtained a fair trial. Upon the three pretences by which this monstrous allegation endeavoured to sustain itself, we will say a word. Two quarrels have been raised with incidents occurring at separate stages in the striking of the jury. What happened first of all was supposed to be a mere casual effect of hurry. Good reason there has since appeared, to suspect in this affair no such excusable accident, but a very fraudulent result of a plan for vitiating the whole proceedings. Such things are likely enough to be attempted by obscure partisans. But at all events any trick that may have been practised, is traced decisively to the party of the defendants. But the whole effect of the trick, if such it were, was to diminish the original fund from which the names of the second list were to be drawn, by about one twenty-ninth part. But this inconsiderable loss was as likely to serve the defendants as not; for the object, as we have said, was--simply by vitiating the proceeding to protract the trial, and thus to benefit by a larger range of favourable accidents. But why not cure this irregularity, however caused, by the means open to the court? Simply for these reasons, explained by the Attorney-General:--1st, that such a proceeding would operate injuriously upon many other trials; and 2d, as to this particular trial, that it would delay it until the year 1845. The next incident is still more illustrative of the determination, taken beforehand, to quarrel with the arrangements, on whatever principle conducted. When the list of persons eligible as jurors has been reduced by the unobjectionable process of balloting to forty-eight, from that amount they are further reduced by ultimate challenges; and the necessity resting upon each party to make these challenges is not discretional, but peremptory. It happened that the officer who challenged on behalf of the crown, struck off about ten Roman Catholics. The public are weary of hearing it explained--that these names were not challenged _as_ Catholics, but as Repealers. Some persons have gone so far as to maintain--that even Repealers ought not to have been challenged. This, however, has been found rather too strong a doctrine for the House of Commons--to have asked for a verdict of guilty from men glorying in the very name which expresses the offence. Did any man ever suggest a special jury of smugglers in a suit of our lady the Queen, for the offence of "running" goods? Yet certainly they are well qualified as respects professional knowledge of the case. We on our part maintain, that not merely Repealers were inadmissible on the Dublin jury, but generally Roman Catholics; and we say this without disrespect to that body, as will appear from what follows. It will often happen that men are challenged as labouring under prejudices which disqualify them for an impartial discharge of a juror's duty. But these prejudices may be of two kinds. First, they may be the natural product of a certain birth, education, and connexion; and these are cases in which it will almost be a _duty_ for one so biased to have contracted something of a permanent inability to judge fairly under circumstances which interest his prejudices. But secondly, there are other prejudices, as, for instance, of passions, of blind anger, or of selfish interest. Such cases of prejudice are less honourable; and yet no man scruples to tell another, under circumstances of this nature, that he cannot place confidence in his impartiality. No offence is either meant or taken. A trial is transferred from Radnorshire to Warwickshire in order to secure justice: yet Radnorshire is not offended. And every day a witness is told to stand down, when he is acknowledged to have the slightest pecuniary interest in the case, without feeling himself insulted. Yet the insinuation is a most gross one--that, because he might be ten guineas richer or poorer by the event of the trial, he is not capable of giving a fair testimony. This would be humiliating, were it not seen that keen interests compel men to speak bluntly and plainly: men cannot sacrifice their prospects of justice to ceremony and form. Now, when a Roman Catholic is challenged as a juryman, it is under the first and comparatively inoffensive mode of imputation. It is not said--you are under a cloud of passion, or under a bias of gross self-interest. But simply--you have certain religious opinions: no imputation is made on your integrity. On the contrary, it is honourable to you that you should be alive to the interests of your class. Some think, and so may you, that separation from England would elevate the Catholics; since, in such a case, undoubtedly your religion would become predominant in Ireland. It is but natural, therefore, that you should lean to the cause of those who favour yours. In setting aside a Catholic as a juryman on the trial of Repealers, this is the imputation made upon him. Now, what is there in that to wound any man's feelings? Lastly, it is alleged that the presiding judge summed up in terms unfavourable to the Repealers. Of course he did; and, as an upright judge, how could he have done otherwise? Let us for one moment consider this point also. It is often said that the judge is counsel for the prisoner. But this is a gross misconception. The judge, properly speaking, is counsel for the law, and for every thing which can effect the right understanding of the evidence. Consequently he sometimes appears to be advocating the prisoner's cause, merely because the point which he is clearing up happens to make for the prisoner. But equally he would have appeared to be against the prisoner, if he found it necessary to dissipate perplexities that would have benefited the prisoner. His business is with no personal interest, but generally with the interest of truth and equity--whichever way those may point. Upon this principle, in summing up, it is the judge's duty to appraise the entire evidence; and if any argument lurks obscurely in the evidence, he must strip it of its obscurity, and bring it forward with fuller advantage. That may happen to favour the prisoner, or it may weigh against him. But the judge cannot have any regard to these consequences. His concern is simply with the pressure and incidence of the testimony. If, therefore, a prisoner has brought forward witnesses who were able to depose any thing in his favour, be assured that the judge will not overlook that deposition. But, if no such deposition were made, is it meant that the judge is to invent it? The whole notion has grown out of the original conceit--that a defendant in relation to the judge is in the relation of a client to an advocate. But this is no otherwise true than as it is true of every party and interest connected with the case. All these alike the judge is to uphold in their true equitable position and rights. In summing up, the judge used such facts as had been furnished to him. All these happened to be against the Repealers; and therefore the judge appeared to be against then. But the same impression would have resulted, if he had simply read his notes of the evidence.

Such are the desperate attempts to fasten charges of unfairness on this fairest of all recorded trials. And with an interest so keen in promoting the belief of some unfairness, was there ever yet a trial that could have satisfied the losing party? Losers have a proverbial privilege for being out of temper. But in this case more is sought than the mere gratification of wrath. Fresh hopes spring up in every stage of this protracted contest, and they are all equally groundless. First, Mr O'Connell was not to be arrested: it was impossible and absurd to suppose it. Next, _being_ arrested, he was not to be tried. We must all remember the many assurances in Dublin papers--that all was done to save appearances, but that no trial would take place. Then, when it was past denial that the trial had really begun, it was to break down on grounds past numbering. Finally, the jury would never dare to record a verdict of guilty. This, however, being actually done, then was Mr O'Connell to bring writs of error; he was to "take the sense" of the whole Irish bench; and, having taken all that, he was to take the sense of the Lords. And after all these things were accomplished, finally (as we then understood it) he was to take himself off in the direction pointed out by the judges. But we find that he has not yet reconciled himself to _that_. Intimations come out at intervals that the judges will never dare to pass any but a nominal sentence upon him. We conclude that all these endless conflicts with the legal necessities of his case are the mere gasconades of Irish newspapers, addressing themselves to provincial readers. Were there reason to suppose them authorized by the Repealers, there would be still higher argument for what we are going to say. But under any circumstances, we agree with the opinion expressed dispassionately and seasonably by the _Times_ newspaper--that judgment must be executed in this case. We agree with that journal--that the nation requires it as a homage rendered necessary to the violated majesty of law. Nobody wishes that, at Mr O'Connell's age, any _severe_ punishment should be inflicted. Nobody will misunderstand, in such a case, the mitigation of the sentence. The very absence of all claim to mitigation, makes it impossible to mistake the motive to lenity in _his_ case. But judgment must be done on Cawdor. Two aggravations, and heavy ones, of the offence have occurred even since the trial. One is the tone of defiance still maintained by newspapers under his control. Already, with one voice, they are ready to assure the country, in case of the sentence being incommensurate to the case, that Government wished to be severe, but had not courage for the effort; and that Government dares not enforce the sentence. The other aggravation lies in this--that he, a convicted conspirator, has presumed to take his seat amongst the senators of the land--"Venit in senatum, fit particeps consilii." Yet Catiline, here denounced to the public rage, _was_ not a _convicted_ conspirator; and even his conspiracy rests very much on the word of an enemy. It is true that, in some formal sense, a man's conviction is not complete in our law until sentence has been pronounced. But this makes no real difference as to the scandalous affront which Mr O'Connell has thus put upon the laws of the land. And in that view it is, viz. as an atonement for the many outrages offered to the laws, that the nation waits for the consummation of this public example.

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Edinburgh: Printed by Ballantyne and Hughes, Paul's Work_