He was perfectly aware of the public inconvenience that must arise from the trial at bar of such a case in term ; but although mischief to some individuals might accrue, they were in that court, and they came into it as suitors, subject to the rule that public justice, in the case of a prosecution by the crown, must not be delayed in the first criminal court in the land. By ceding this extension of time he should put an end to the objection made to the present jury pannel,on the ground tliat they could not have a fair trial by it. That objection must now fall to the ground, for before the period which he had named, the revised list would be completed, and they could select a jury from it. As to the allegations about the difficulty of procuring evidence, he would say that if the case only rested on them, it would not be for a moment supported. At all events they would now have a month's additional time, which would afTord them ample opportunity to prepare their clients' defence in a case undoubtedly of extraordi- nary magnitude. All he wanted was that that case ghpBld be brought forward in such a manner as to show that justice, impartial justice, was ad,mini8- tered — that alone was what he sought for and de- sired, and nothing else. He trusted that the course which he had adopted, after the most anxious coQt sideration, would meet with the approbation and concurrence of the court, and he should not care what might be said regarding it by those who sought for opportunities of casting blame upon him. In conceding so much to the defendants, he was pro- ceeding under a solemn feeling of the obligation to do what was right and proper ; and, firmly believing that he had acted rightly, and careless as to wh^t might be said regarding his conduct by those who sought for opportunities of imputing faults to him, he would enjoy the satisfaction of having proceeded in accordance with the dictates of his conscientious duty. Mr. Pigot, Q. C, replied on the part of the tra- versers, and said that the Attorney-General having felt it necessary to yield to a postponement of this trial to the extent to which he had consented — namely, to an early period in the approaching term, he could not understand what valid objection the learned gentleman could possibly have to a further concession of time till the 1st of February — a very brief period in addition to what had been already granted, but a period which the traversers' attor- neys solemnly alleged upon their affidavits that they considered absolutely necessary for the purposes of their clients' defence. The concession which the learned Attorney-General had already made ren- dered it unnecessary for him (counsel) to discuss that portion of the cross motion which had reference to the present condition of the jury lists, the Attor- ney-General having already virtually admitted the validity of his clients' application in this respect ; but it having been now admitted that the ends of justice could not be satisfactorily attained without fixing a time for the trial so distant as that which it had been agreed to permit, he would beg leave re? spectfuUy to submit to the court that for the purposes of public convenience as well as for the essential in- terests of his clients, it was highly advisable that their lordships should grant the short additional in- dulgence which they now solicited. The Attorney- General had not exactly put the matter before the court in as comprehensive a form as he should have done, for it was a mistake to suppose that the case of the traversers depended wholly and exclusively on the mere circumstance of their being charged with having attended a variety of meetings. They had fully explained their true position in their affi- davits, by which they showed that a variety of overt acts had been set forth against them in the in- dictment, and so numerous were those alleged overt acts, and so remote were they in scene and date one from the other, that they (the traversers) in making their defence to the charges preferred against them, were compelled to take into consideration transac- tions commencing in the month of February, and concluding only in November — transactions extend- ing all over the island, and covering a space of nine months. Not only were they charged with attend- ing illegal meetings, but they were also accused of conspiring with a vast number of other persons for various illegal objects defined in the counts, and presenting several distinct matters of charge va- riously described. The informations upon which the indictment was framed were in the hands of the traversers on the 13th of October, but the traversers derived little or no benefit from that, for it was of course impossible to gather from the informations what were the particular points of charge upon which the crown intended to rely. Indeed, if the prosecu- tion had been founded on nothing else but those in- formations, it would have been of a comparatively brief and simple character, for they only specified ffour transactions, all of which were laid a? having POSTPONEMENT OF THE TRIAL, 79 taken place upon various days in October. For a long time the traversers were in the dark as to the precise character and extent of the offences alleged against them, for at first no information whatever was given to them with respect to the exact nature of the charges beyond what appeared upon the face of the informations. Upon the 8th of November the bill of indictment was found a true biU, and it pre- sented several charges of conspiracy, and a detail of no less than 58 alleged overt acts, explanatory of what it was intended by the crown to rely on in support of those charges. The indictment was un- derstood to contain allusions to forty-three meet- ings, and reference was made in the counts to ninety-three alleged illegal publications in cer- tain newspapers : but when a perfect bill of parti- culars was at length furnished to the traversers (and be it remembered, it was not delivered until the 14th of November) the traversers found to their astonish- ment that further allusion was made in the indict- ment to 49 additional meetings, and 112 additional newspaper publications, so that they were now called upon to prepare for a trial in which was in- volved an investigation into the circumstances con- nected with no less than 92 meetings, and into the alleged consequences ,of no less than 204 publica- tions in newspapers. Need he call upon their lord- ships to consider what an expenditure of time and labour was necessary in order to make preparations for such a trial ? It was an error of the learned Attorney-General to suppose that all they had to do was to remember the meetings, and call to mind whether they had attended them or not. The very first sentence of the bill of particulars would show that every circumstance connected with those meet- ings was to be made the subject of the most minute and careful investigation, for they were told that the crown intended to give in evidence the speeches that , were made there — the resolutions that were passed there ; in fact, a detail of all the proceedings that took place at each of them — and finally, even to adduce evidence to show the manner and order in which the multitudes proceeded to those meet- ings. Now, when the traversers came before their lordships soliciting adequate time for preparation, in order that they, too, as well as the crown, might be enabled to adduce evidence upon more numerous and elaborate points, what answer was it to their ap- plication to tell them that they knew the meetings that were held — that they were public meetings, and that consequently the traversers must konw all about them ? It was absolutely indispensable for the ends of justice that proper and adequate time should be granted, to enable the traversers to make preparations for their trial — for it was impossible to say on what points the Attorney-General might en- deavour to fasten his case, and it therefore behoved them to be prepared at all points. On the 14th of JTovember the Attorney-General not only informed them that he would rely on everything in the indict- ment, but told them that he would apply evidence to each and every of the distinct transactious men- tioned in the indictment, whether the same had reference to public meetings or to pubUcations in the newspapers. Before the passing of the 60th of George III., the practice of the court in tliis respect was settled by a short rule which was to this effect, that all motions for trial at bar must be moved within the first tea days of the preceding term. If the state of things were now as it was before that act was passed — if in fact the course of practice had not been altered by an act of parliament, the Attorney-General could not have had a trial at bar earlier than Easter term, for he could not even have made his motion suffi- ciently early in the present term to obtain a trial in the preceding term. He respectfully submitted that it was the duty of the court to apply that act of par- liament in such a manner as to afford to the accused a similar privilege to that which the rule of practice had heretofore invariably allowed them. He would take leave to say, that unless it could be shown that the case of the traversers, as stated in their affidavits, was one to which credit could not be given, it was impossible to have a trial satisfactory to the country, and, above all, satisfactory to the ends of justice, if the application wliich he now made were refused. The Attorney-General had referred to previous pro- ceedings in the present case. He (counsel) did not know that it was necessary for him to enter into any vindication of those proceedings, but he would take occasion to make a cursory allusion to him. In the early part of the proceedings in the present case the counsel were of opinion that they were fully justified in raising a defence upon the law case, and believing it to be a substantial one, they called upon the court for the decision. They did nothing covertly, nothing disingenuously, but made public avail of their defence. They demanded a copy of the caption — they demanded the names of the wit- nesses, and their lordships must have seen that these motions were made for the fair and unobjectionable purpose of raising on the records what was looked upon as a substantial defence. An argument was the result ; the court decided against them, and they bowed respectfully to the adjudication of the court ; but he denied that the Attorney-General had any right to misrepresent their motives, and to aver that all these applications were made, not for the purpose of facilitating their defence, but rather for the pur- pose of delaying the course of law. He could not understand what right the Attorney-General should have to make such charges, and assuredly there was nothing now before the court to warrant any such imputation. The traversers did not make any charge , that those prosecutions conuaeaced in motives 80 THE IRISH StATE TRIALS. Biraitar to tliOse which were charged against them- eelves ; and yet, it could not be denied that tlieir patience liad been severely tested, for not only had they been charged with an attempt to defeat jus- tice, but they were spoken of as though they were guilty of the offence imputed to them in the indict- ment, of which offence there had been afore-judging already. He submitted, however, most respectfully, that his clients had made out an excellent case upon the present occasion : and having regard to the orderly conduct of the business of the court — to the convenience of private suitors — and, above all, to the results which were likely to follow if tlie traver- sers did not obtain the short additional time which they had sworn to be necessary for their proper defence, he earnestly trusted that their lordships would acknowledge the propriety of acceding to the application of his client. The Solicitor-General rose to reply on behalf of the crown, and was about to address the court, when he was interrupted by their lordships. _ The Chief Justice said that the court were of opi- nion that it was not necessary to call upon the Soli- citor-General to reply to Mr. Pigot. He would for- bear purposely throwing out anything like an expres- sion of opinion of the most remote kind upon the me- rits of the present case. In the first place, except from popular report, which was nothing ; they did not know anything at all about it. In the next place, it would be premature to express a knowledge of what they did happen to know before the case came on for trial, when the accused have to meet the charge that will be made against them, and when they will be prepared to do so. It was of the utmost importance that a due regard should be paid to the due adminis- tration of justice. The punishment of crime, if it had been committed, was not to be overlooked, or frustrated, nor upon the other hand was it consistent with the due administration of justice for any ac- cused person to be brought and put upon his trial until he had every due and reasonable means of de- fending himself. The Attorney-General had very properly given way to the postponement of the trial of this case until everything like an imputation upon the selection of the jury was to be remedied by the process of revision which it appeared on all hands was now going on before the Recorder. He had ac- ceded at once to the representation made, that it was necessary to the ends of justice, and for the satisfac- tion of the public mind, that the jury lists should be put upon a different footing in the course of the pre- sent revision, so that all persons interested in this great and public trial should be satisfied with the justness and correctness of the tribunal before which the case was to be investigated. But that was not the case in a matter of opinion, and not a matter of fact which they stated. And the q^uestioa was, whether in a reasonable man's judgment, such as the court might range themselves within, there was or was not — there had or had not been a reasonable or sufficient time al- lowed to enable these gentlemen to come to trial on the 15th of next January. It was not alleged by the affidavits which these gentlemen made, that any peculiar difficulty existed with regard to the evi- dence wliich they might find it necessary to produce on the trial. There was no statement of witnesses being abroad, and out of the jurisdiction of the com't. It seemed to be a perfectly admitted fact, that whatever witnesses did exist — whatever evi- dence it might be necessary for them, in the pro- gress of their defence to lay before the court and jury, all those witnesses, and all that evidence was to be found within the kingdom of Ireland. Let them see the time which, supposing the trial to take place on the 15th of January, the traversers would have to be ready with those witnesses and that evi- deuce on that day. They were to compute the time of their being ready for their trial, from the period when they got such distinct notice of the charges against them, that they were bound to be making preparation for the trial which they must know was hanging over them. The bills of indictment were found on the 8th of November, and on that day was put in a charge against the several traversers. They got on the same evening copies of that indictment. They had previously copies furnished to them of the informations of Hughes and two or three other witnesses who were afterwards examined before the grand jury in support of that indictment, and though the informations did not particularise all the charges against the accused, yet they contained a specifica- tion of the leading features of the charges upon which the accused were afterward to be tried. He understood, generally, that the general nature of the charges .igainst all the prisoners was, that of conspiracy with a view of disturbing the public peace — of promoting and creating sedition and in- subordination in the country, and by means, if not of force and violence, by the demonstration of force to procure and bring about an alteration in the laws and constitution of the country. That was the ge- neral nature of the charge, and those were the ge- neral grounds for the furtherance of wliich it was alleged that the several traversers committed the several overt acts in furtherance of the conspiracy wliich were recited in the indictment. Now those overt acts committed, as was alleged, with those ■ views, being the substantial nature of the charge, in all its details, they were to every common intent, for the purpose of giving information with respect to the nature of the charge against the traversers, quite sufficiently detailed upon the face of the in- dictment, with a copy of which they were furnished on the 8th of November. It was said that the in- dictment did not contain a particular specification of all the charges, or the various particulars of the charges with which the several parties were intend- ed to be put upon their trial when the case came on for trial, and they complained of there being an omission, and in some of the counts a mere state- ment, in general terms, of certain charges against the accused. They called on the crown for a bill of particulars requiring the crown to specify .at length, and in detail, the particular circumstances of those general charges which were contained in the indict- ment in general terms, and not stated in detail. They called for a minute detail, and the several APPLICATION FOR THE CAPTION. 81 items of the several charges on which the traversers were to be called upon to account when they came on trial, and they were furnished with that bill of particulars on the 16th of November. Now, there- fore, from the 16th of this month they were per- fectly well aware of all the particulars for which they were to account, and for which they were to stand their trial on the 15th of Januarj'. Taking the time for which they were to account to be the 16th November, when the information given to them was complete (they said they could not be ready for their trial on the 15th of January next), the time was this — 14 days in November, 31 days in December, and there were 15 days in January. Mr. Pigot — Just two months. Chief Justice — That made sixty days, in order to prepare for trial of a variety of acts imputed to them, and alleged to have been committed within the last year, and all in the recollection of every- body. There was no difficulty in finding witnesses ; none was alleged as growing out of any peculiarity in the case, and every witness which the parties had to call upon being resident within the kingdom of Ireland — at least there was no statement that they were elsewhere, or that the parties had to go look for them to any other country. Now the court were of opinion that appeared to he a siifficient time for those parties respectively to be prepared to stand their trial. There was no fatality alleged which would deprive them of the power of being prepared for trial at the end of two months from the time they got notice. There was no statement that satisfied the court that those two months, under the circumstances, were not abundant time for those respective parties to be prepared for their defence. The interests of the public, and the administration of public justice, required that the investigation of crime, if it had been committed, should not be de- layed by unnecessary postponement, and upon the whole, without meaning to give the most remote shade of an opinion on the merits of the case one way or another, the court were of opinion that no sufficient case for a further postponement had been made out, that would satisfy the conscience of the court, and of the public. They were of opinion it had not been made, and in exercise of the discre- tion which the law gave them, agreed to the day named by the Attorney-General, the 15th of Janu- ary next. Mr. Steele here rose and said — I most respectfully beg permission to make a single observation to the court. Chief Justice— The judgment of the court has been given, and your time for speaking is past. Mr. Steele — I have but one observation to make, my lord. Chief Justice — I fear we cannot hear you, Mr. Steele. Mr. Steele — My lord, I hope I will have the same magnificent justice from you that I have had from your illustrious brother when I was tried before him. My lords, I feel it right to rise lest my si- lence on any particular point, if I were to be silent, should be construed by your lordships into an ac- quiescence. The Lord Chief Justice, in his judg- ment, stated that all the witnesses are resident in Ireland. Now, I pray leave most respectfully to state that in this his lordship is under a misconcep- tion. The only witness resident in Ireland whom I intend to examine when defending mj'self in tliis com't is Lord Plunket, whom I with great pain draw from his retirement. Every other ^ritness whom I intend to examine is resident in London. Chief Justice — The observations which I made use of were founded on the affidavits that have been laid before the court, in which it is not alleged that any of the witnesses are out of the country. . The Attorney-General said it was necessary pro forma that the officer in taking down the order should have the parties present, as, strictly speaking, they had no attorneys in court. Mr. Pigot said to facilitate matters the attorneys would then accept the orders. Mr. Bourne said there was yet no appearance for the parties by attorney. Mr. Brewster said if the parties were not present when the order was taken down they could bring an action against the officer. Mr. Gartlan said he appeared for Mr. Duffy. Mr. Mahony said he appeared for Mr. John O'Connell. Mr. Ford said he appeared for Mr. O'Connell and three of the other defendants. Dr. Gray, Mr. Steele, and the Rev. Mr. Tyrrell, were then present in court. The appearances were then taken down, and the matter dropped. COURT OF QUEEN'S BENCH, Saturday, November 25. The Queen V. 0' Cmtiell, and othert. Mr. O'Hagan moved the court that the Clerk of the Crown be directed to furnish to Charles Gavan Duffy, or liis attorney, a list of the names of the wit- nesses endorsed on the back of the indictment in this case. Chief Justice — Are you opposed ? Jtr. O'Hagan — We have served notice of our mo- tion on the Crown Solicitor. Attorney-General — I appear to oppose it. Mr. O'Hagan — An application had already been made to the court apparently similar to the present, but they were in their nature essentially distinct, and their lordships were not called on to hear new argument on a question which they had decided. The former motion was to have the copy of the in- dictment amended by furnishing the names of the witnesses, and aU other endorsements upon it, and it had been submitted that those names were a part- of the indictment, according to the statute law of Ireland. It was important to the defendants to take the opinion of the court on that present position ^ but as, after full argument, the judgment was against them, he (iilr. O'Hagan) did not now mean at all to rely upon the reasoning and authorities which had been urged before. Yielding to the de- claration of their lordships, that the names form no' part of the indictment, he would present the claim of the defendants to a list of those names on other grounds ; on the special circumstances of the case, the affidavits of professional persons, the spirit and tendency of modern legislation, and the established practice of the English courts. The question raised was one of extreme moment not only to the defen- dants, but to the country generally, as affecting the administration of criminal justice and the rights of accused persons; and it was important that the court should come to the consideration of it with a clear understanding that their former judgment in no way affected the present application, or bound them to deny it. He (Mr. O'Hagan) did not know whether the Attorney-General would repeat his im- putation of the intention of delay, notwithstanding the oath of the defendant's attorney, that no delay- was intended. He had before repudiated that im- putation— he strongly repudiated it again, and he prayed the court to remember, if it should be re- peated, that he now moved ou behalf of the tra- verser who had joined issue with the crown, and who could have no possible motive for making the application but a desire to obtain substantial aid ia preparing for his trial. He would rely first, on his special case ; next, on the reason of the thing, and G 82 THE IRISH STATE TRIALS. the course of legislation in Ireland ; and finally, on the universal practice of England, and the absence of all practices here. If ever the nature of a charge and the position of a traverser justified a demand of the names of his accusers, that demand was justified in this prosecution. Mr. Gartlan, the attorney for the defendant, swore that he considered tlie furnish- ing of the names on the bacli of the indictment es- sential to his defence, and when the person, of all others, most competent to form an opinion on the subject pledged his oath to such a statement, would the court refuse to the accused the means of obtain- ing justice? The affidavit of Mr. Gartlan should be conclusive on this matter : but there was no diffi- culty in sustaining it by a reference to the nature of the accusation. Even in common cases their lord- ships must have continually had judicial experience of the importance of inquiry as to the character of witnesses, and their means of knowledge for the pro- tection of innocence and the discovery of truth. How often had a perjurer been discredited, not by any distinct contradiction of his statements, but by proof of his want of faithworthiness ? How often, in every criminal court, were fabricated charges met by exposing the absence of proper means of knowledge in the fabricator, and demonstrating the impossibility of the truth of his story ? It was plain that, for the purpose of defence, even in a common case where the sphere of action was limited, and tlie facts to be investigated, and the persons to be pro- duced were necessarily very few, the grossest in- justice might be prevented by enabling a traverser to know his accusers before his trial ; but the case of the defendants here was no common case. It was without example in the history of criminal juris- prudence, in the magnitude and complexity of its details, the extent of time and space through which the transactions proposed for inquiry are stated to have ranged, and tlie difliculties of preparation in ■which it involves the traverser. He resides in Dub- lin, and he is called on to answer as to nearly one hundred meetings, held in almost every county in Ireland, from week to week during the greater part of an entire year. He must be ready to meet every charge which may be preferred as to the acts done, and the speeches spoken at each and all of these as- semblies. Judge Burton — ^Is there an affidavit as to this ? Mr. O'Hagan — No, my lord ; but we rely on the indictment, and on it these things appear. But further, it is remarkable that the defendant is not charged as liaving been present at a single one of this multitude of meetings out of the city of Dublin, and yet everything that occurred at every one of them which the prosecutor can possibly employ as founding or colouring the accusation will be imputed to him for crime. Chief Justice — Is not the charge against Mr. Duffy that of publications in a newspaper ? Mr. O'Hagan — The charge is one of conspiracy, and all the meetings are made to affect all the de- fendants as overt acts. The publications are also made overt acts, and are laid in the same way against them all. So that the traverser may be required to answer for all tliat took place at seventy or eighty meetings, held at distances of hundreds of miles, tiiroughout nine successive months, though he was not present at any of them, and lias no personal knowledge of any of the words or acts of those who were. How is he to prepare if lie does not know his accusers ? Suppose that persons are brought from the extremities of the island, who, in their own dis- tricts, have forfeited all claim to credit by their evil life and conversation, how is he on the instant to confront them ? Suppose that persons are pro- duced who make a rule for the occasion, and whom a disclosure of local circumstances would confound, how is he on the instant to obtain evidence of those circumstances? The Attorney-General may pro- duce his first witness from Dundalk, and his second from Cork, and his third from Baltinglass, and his fourth from Clifden — he may sweep the kingdom, from the centre to the sea; and if the defendant does not know beforehand those who will be called to give testimony against him, how is it possible that he can be ready to show that they are not to be be- lieved, though they may be utterly unworthy of credit — or that they have spoken ignorantly and falsely, though there may be facts demonstrating their total want of veracity ? Surely if ever there was a case, from its extraordinary character and spe- cial circumstances, entitling a traverser to rely upon the assistance of the court for obtaining information sworn to be essential to his defence, the present is that case. But, passing from this, do we ask any- thing unreasonable in itself, or is our application discountenanced by the spirit or the letter of the law ? Tlie privilege we claim is a privilege pecu- liarly important to the innocent. In Ireland, the 56th Geo. III., c. 87, condemned the practice of finding bills without the examination of witnesses, and required that all persons to be sent before the grand jury should be sworn in open court. That was a practical assertion of the right of the accused to know his accusers, for, if he or his agent were in court, those accusers could be seen as of course. As long as that act was in operation, this motion could not have been necessary. It would have been our statutable privilege to see the persons whose names we now wish to learn. What has occurred to take away that privilege ? The passing 1 and 2 Vic, c. 37. But was that act ever intended to take it away ? Is it within the mischief which that act was destined to remedy ? Not at all. The delay and inconveniences alluded to in the pre- amble have no connexion whatever with the tra- verser's knowledge of the witnesses, and though the effect of the statute in requiring the examination to take place before the grand jury, is to prevent the exhibition of them in open court, it is clear as light that the object of the legislature was in no degree to limit the existing rights of the accused. And, if it was not, will the Attorney-General contend, that we should have one of the most valuable of those rights taken from us through the accidental working of an enactment which was manifestly never meant so to operate ? He has called on the court in the argument of the plea in abatement to hold this enactment re- medial, and construe it liberally. He has succeeded in that appeal, and will the court now allow the same statute, passed for the general good, to work the greatest individual injury, and deprive a traverser of a privilege which may save him from ruin, and which is positively sworn to be essential to his protection ? There is another act which ought to be well consi- dered by the court in deciding on this motion. By the 6th and 7th Wm. XV., c. 114, the legislature has APPLICATION FOR THE CAPTION. 83 declared that " it is jnst and reasonable that persons accused of offences against the law should be enabled to make full answer and defence to all tliat is alleged against them ;" and by that act the accused is en- titled to copies of the informations on which he has been held to bail. That act was passed deliberately, after long consideration, and notwithstanding the suggestion of many dreaded mischiefs, and it demon- strates the anxiety of Parliament to furnish all ne- cessary means of defence to traversers. Is it to be said that those who directed the informations to be given intended to refuse the names of the witnesses ? Can it be alleged that any reason capable of being urged for giving the informations will not authorise the giving of the names — and can the Attorney-Ge- neral assert or imagine any objection to the giving the latter which will not more strongly apply to the giving of the former ? The act professes to afford opportu- nity of " full answer and defence" by enabling a traverser to learn the particidars of the evidence against him ; but, in this case, the informations in no ways disclose those particulars. They regard only two or three transactions out of scores on which the prosecutors intend to rely ; and can it be said that by looking at those informations the defendants have the means of full answer and defence intended by the act ? And if the great body of the evidence is not put in the informations, and is so concealed from them, is not the purpose of the statute thwarted, and will not the court be the more inclined to carry its spirit into action, by affording to them the names of the witnesses, and thereby aiding tliem to make " full answer and defence ?" The court should en- force the humane and liberal pohcy of our later le- gislation, which, day by day, is extending the privi- leges of the accused and narrowing the harsh prero- gatives of the accuser ; but, in this case, the Attor- ney-General calls upon it absolutely to refuse a right which was practically enjoyed in Ireland until the passing of the 1st and 2d Vic, c. 37, and which is enjoyed in England at tliis moment by every man who will procui'e an oiBce copy of the indictment against him. Is it proper that, whilst Parliament is systematically extending the opportunities of full defence, the judges should be required to contract them ? Reason is with the motion ; the whole cur- rent of our later law is with it ; and what has oc- curred in the progress of this case exhibits some of the evils which must arise from a refusal of it. He (Mr. O'Hagan) would not now insist upon the ad- vantages which a traverser would derive from being enabled to object to an indictment, in the first in- stance, if found on unsworn testimony, or found on the testimony of a prosecutor being a member of the grand jury, or found without strict compliance with the terms of the act ; but to this he would advert, that their lordships had been called on to hold the plea in abatement of the defendant bad, because it did not state the names of the witnesses, or that they were unknown. The names could not be stated, be- cause, at the instance of the Crown, they had been refused to the traverser ; neither could' it be said that all the witnesses were unknown, for one of them was known, had sworn an information, and had been referred to specially by the learned j udge who charged the grand jury. No man could swear that all the witnesses were unknown — so that it was perfectly plain, that if the objection were good, the traverser could not possibly have cured it, and he could never have pleaded in abatement at all. This was one of the mischiefs of denying the motion, and it had been put forward in the strongest relief by the counsel for the crown. Having said so much to prove that the court ought to grant the application, regard being had to the statute law and the tendencies of legisla- tion, it only remained to show that, according to the practice of England, the defendant had a right to carry it. Taie clerk of the crown had said that the Irish practice was against it ; but he (Mr. IIL, c. 87, the grand juries found bills without the examination of witnesses ; and of course there were no witnesses' names to be sought or be obtained. The act required the witnesses to be sworn in open court, and when they were so sworn, the accused, or his attorney, could watch and see them ; and when they were seen, no application for their names was necessary, and accordingly no application was made ; and there was then, and until that act ceased to ope- rate, in 1838, no practice either for or against the motion. Since the passing of the 1st and 2d Vic, c. 37, no practice has been established. The time has been short. On circuit no difficulty ever arises, for the original indictment is given to the prisoner's counsel, with the names upon it, as a matter of course, and the question was never before submitted to the Queen's Bench. Is it not plain, therefore, that there is no practice here ? If the application was never granted it has never been refused ; the point has not been mooted — the judges have madeno decision upon it, and there is, in fact, no practice worthy of the name. In this state of things, it is proper to inquire what is the practice of the English courts ? That practice is decisive in favour of the traverser. In the books there are few distinct re- ferences to it, because the giving of the names ap- pears to be a thing of mere course, requiring no spe- cial motion, and never objected to. The whole class of cases in which the counsel for the prisoner in England is found to insist on his rights to have all the witnesses examined on the indictment called by the prosecutor, go to show that the right is conceded there_R. v. Bull, 9 C. and P. 22; R. v. Holden, 8C, and Payne's 606 ; E. v. Thursfield, 8 C. and P. 269, all tend to establish this. In the King v. Gordon, 6 Jurist, 936, which was an application for the addresses of the witnesses before trial, the affidavit of the pri- soner shows manifestly that he had been furnished with a list of the names. To the same purpose is the King v. Vincent and others, 9 C. and Payne 91, where the charge was similar to that made in the present case ; and the counsel defending had, beyond doubt, the names of the witnesses on the indictment. But there is further authority. The case of the King I'. Burkins, cited by the Attorney-General in the King t). Puruell, 1 Wm. Blackstone, 34, demon- strates that at the time to which it has reference, the indictment and the names upon it were obtained as of course, and without motion, from the officer ; and, referring to that case in the course of the argument, the Chief Justice says, " the King v. Burkins shows the tenderness which the court always has for ac- cused persons, and was to let him know his accusers." That tenderness the defendant claimed from their lordships, insisting that " the right to know liis ac- cusers" is sustained by reason and justice, and in ac- cordance with the spirit of the law of the country. Such was the English practice in past days ; and there was evidence to show, that that wholesome practice continued without change. Since the for- mer motion was disposed of, inquiry had been made in London, and he would read the affidavit of an En- glish solicitor of much experience, Mr. Coppock, sworn before a commissioner of the court. Mr. O'Hagan then read the affidavit, which was in the following terms : — " James Coppock, of number three, Cleave- land-row, in the Parish of Saint James, in the City of Westminster, an Attorney of her Majes- ty's Court of Queen's Bench, in England, maketh oath and saith, that he is well acquainted with the practice of the courts of law, and particu- larly with the practice of the croivn office, and the Court of Queen's Bench in England, as to in- 84 THE IRISH STATE TRIALS* dietments for conspiracies or misdemeanours, and that from his own knowledge, and from his own per- sonal experience, he can depose to the facts herein Bet forth and deposed to ; and this deponent maketh oath and saith, that in all cases of indictments for conspiracies or misdemeanours, the ofiice copy of every indictment supplied by the crown ofiice to any person applying for a copy of such indictment, contains the caption, and al§o the names of the wit- nesses examined before the grand jury on the find- ing of the said indictment ; and that, to the best of this deponent's knowledge, information, and belief, there never has been an instance in which the office copy of an indictment, supplied upon request to any defendant, or to his agent or solicitor, or to any person applying for the same before trial, and as soon as the same indictment could be obtained, did not contain the caption and the names of the wit- nesses examined before the grand jury ; and depo- nent saith such practice is invariable, and is well known to be the usual and common practice in the crown office in England upon all indictments for conspiracies and misdemeanours." If that affidavit were true — if the practice in England were such as that affidavit described it — he (Mr. O'Hagan) confidently put it to the court that he was entitled to carry the motion. The cases to which he had referred, and office copies of indictments obtained from England sustained the statement of Mr. Mr. Whiteside submitted that the Attorney-Ge- neral could not use this document,'uo notice having been served upon the traverser, on the part of the crown, to use any document on this moauu, and if the same rule applied to the crown, as to ordinary cases, he could not therefore put forward this docu- ment. They had got over a copy of the indictment in the Chartist case in England, and if the Attor- ney-General allowed them to use that on this motion, they would allow him to use any document he pleased. That copy of the indictment had the names of the witnesses on the back of it, and that of the solicitor that gave it to them. The Attorney-General must say that nothing could be more irregular than the course of his learned friend. He (the Attorney-General) would take the opinion of the court as to whether he was entitled to state this notice, and he dechned to enter into any compact to admit a document of which he knew nothing. It was a settled rule of the court, of which their lordships were perfectly aware, that they would not allow the same subject matter to be discussed in the same term, and he was at liberty to call their attention to this notice, and to refer to it as an au- thority. If he were not at liberty to use it for any other purpose, he could refer to it as an authority, and he would take the liberty of reading the notice of motion which the court had already disposed of. Having read the former notice of motion, he pro- ceeded to say that the present appUcation was put forward upon two grounds : first, as a matter of right, and secondly, as a matter entitling them to call upon the court, in the exercise of its discretion, to comply with the application of the traverser. He would observe, in the first instance, that what the court was now called upon to do was brought before the court on a former occasion, and at no period in Ireland had such an application been complied with. It was an application for a privilege which, to the extent to which it was now carried, did not exist in the highest crime known to the law, the crime of high treason ; and now he begged to call their lord- ships' attention to what the privilege in cases of high treason was, which would be found referred to in Bacon's Abridgement, title Treason, Letter C. C. 