Various - Blackwood's Edinburgh Magazine — Volume 55, No. 339, January, 1844

The first of these proceedings, which occurred during the period of the last thirteen years, was the trial of Messrs O'Connell, Lawless, Steel, and others. This case perhaps originated the opinions which have partially prevailed, and was, in truth, not unlikely to make a permanent impression on the public mind. In the month of January 1831, true bills were found against these parties by the Grand Jury of Dublin, for assembling and meeting together for purposes prohibited by a proclamation of the Lord Lieutenant; and for conspiring to do an act forbidden by the law. By every possible device, by demurrers and inconsistent pleas, delays were interposed; and though Mr O'Connell withdrew a former plea of not guilty, and pleaded guilty to the counts to which he had at first demurred—though Mr Stanley, in the House of Commons, in reply to a question put by the Marquis of Chandos, emphatically declared, that it was impossible for the Irish government, consistently with their dignity as a government, to enter into any negotiation implying the remotest compromise with the defendants—and that it was the unalterable determination of the law-officers of Ireland to let the law take its course against Mr O'Connell—and that, let him act as he pleased, judgment would be passed against him—still, in spite of this determination of the government, so emphatically announced by the Irish Secretary, the statute on which the proceedings were founded was actually suffered to expire, without any previous steps having been taken against the state delinquents. There has ever been that degree of mystery about this event, which invariably rouses attention and excites curiosity; the escape of those parties was a great triumph over the powers, or the expressed inclinations of the government, which was well calculated to set the public mind at work to discover the latent causes which produced such strange and unexpected results. After an interval of seven years, another case occurred, which was not calculated materially to lessen the impression already made upon the public; for although, in the following instance, the prosecution was conducted to a successful termination, yet questions of such grave importance were raised, and fought with such ability, vigour, and determination, that the accomplishment of the ends of justice, if not prevented, was certainly long delayed.

On the 17th December 1838, twelve prisoners were brought to Liverpool, charged in execution of a sentence of transportation to Van Diemen's Land for having been concerned in the Canadian revolt. Here the offenders had been tried, convicted, sentenced, and actually transported. The prosecutors, therefore, might naturally be supposed to have got fairly into port, when they saw the objects of their tender solicitude fairly out of port, on their way to the distant land to which the offended laws of their country had consigned them.

If justice might not account her work as done, at a time when her victims had already traversed a thousand leagues of the wide Atlantic, when could it be expected that the law might take its course without further let or hindrance? On the 17th of December, as has been observed, the prisoners arrived at Liverpool, and were straightway consigned to the care and custody of Mr Batcheldor, the governor of the borough jail of Liverpool; by whom they were duly immured in the stronghold of the borough, and safely placed under lock and key. Things, however, did not long continue in this state. In a few days twelve writs of habeas corpus made their sudden and unexpected appearance, by which Mr Batcheldor was commanded forthwith to bring the bodies of his charges, together with the causes of detention, before the Lord Chief Justice of England. Mr Batcheldor obeyed the command in both particulars; the judges of the Court of Queen's Bench met; counsel argued and re-argued the matter before them, but in vain—the prisoners were left in the governor's care, in which they remained, as if no effort had been made to remove then from his custody. All, however, was not yet over; for, as though labouring under a strange delusion, four of the prisoners actually made oath that they had never been arraigned, tried, convicted, or sentenced at all, either in Canada or elsewhere! Upon this four more writs of habeas corpus issued, commanding the unhappy Mr Batcheldor to bring the four deluded convicts before the Barons of the Exchequer. This was done; arguments, both old and new, were heard with exemplary patience and attention; the play was played over again; but the Barons were equally inexorable with the Court of Queen's Bench, and the four prisoners, after much consideration, were again remanded to the custody of the governor of the jail, and, together with their eight fellow-prisoners, were, in course of time, duly conveyed to the place of their original destination.

The next of these cases, in chronological order, is that of the Monmouthshire riots in 1839. This case, also, might tend to corroborate the opinion, that the service of the state, in legal matters, is attended with much difficulty and embarrassment. It will, however, be seen upon examination of the facts of the case, that the difficulty which then arose, proceeded solely from the lenity and indulgence shown to the prisoners by the crown. On New-Year's day 1840, John Frost and others, were brought to trial, on a charge of high treason, before a special commission at Monmouth. The proceedings were interrupted by an objection taken by the prisoners' counsel, that the terms of a statute, which requires that a list of witnesses should be delivered to the prisoners at the same time with a copy of the indictment, had not been complied with. The indictment had, in fact, been delivered five days before the list of witnesses. This had been done in merciful consideration to the prisoners, in order that they might be put in possession of the charge, to be brought against them, as early as it was in the power of the crown to give them the information, and probably before it was possible that the list of witnesses could have been made out. The trial, however, proceeded, subject to the decision of the fifteen judges upon the question, thus raised upon the supposed informality, which nothing but the anxious mercy of the crown had introduced into the proceedings; and the parties were found guilty of the offence laid to their charge. In the ensuing term, all other business was, for a time, suspended; and the fifteen judges of the land, with all the stately majesty of the judicial office, were gathered together in solemn conclave in Westminster Hall. A goodly array, tier above tier they sat—the heavy artillery of a vast legal battery about to open the fire of their learning, with that imposing dignity which becomes the avengers of the country's and the sovereign's wrongs. Day after day they met, heard, and deliberated upon arguments, which were conspicuous from their consummate learning and ability. At length these learned persons delivered their judgments, and, amid much diversity of opinion, the majority thought, upon the whole, that the conviction was right, and that the terms of the statute had been virtually complied with. The criminals, however, probably in consequence of the doubts and difficulty of the case, were absolved on the most highly penal consequences of their crime, and were, by a sort of compromise, transported for life to one of the penal settlements.

The doubt which some have entertained of the real insanity of Oxford, and others who have recently attempted the same crime which he so nearly committed, has caused these cases also to be brought forward in confirmation of the opinions, which we contend rest upon no real foundation. The insanity of a prisoner is, however, a fact, upon which it is the province of the jury to decide, under the direction of the presiding judge. In each case the law was luminously laid down by the judge for the guidance of the jury, who were fully instructed as to what the law required to establish the insanity of its prisoner, and to prove that "lesion of the will" which would render a human being irresponsible for his acts. These verdicts, undoubtedly, gave rise to a grave discussion, whether the law, as it now stands, was sufficiently stringent to have reached these cases; and though this question was decided in the affirmative, the mere entertaining of the doubt afforded another specious confirmation of the impression, that a singular fatality was attendant upon a state prosecution. This idea received another support from the case of Lord Cardigan, who, about this period, was unexpectedly acquitted, on technical grounds, from a grave and serious charge. This, however, was no state prosecution, and we do but notice it, en passant , in corroboration of our general argument.