On the 2nd of November, 1843, in the Court of the Queen’s Bench, Dublin began one of the most remarkable comedies of modern times the trial of the Repeal “Conspirators.” To spectators from other lands, it was doubtless, highly entertaining; and, indeed, Irishmen, themselves being naturally prone to merriment, couId not but laugh. Yet, to thoughtful minds in that country, there was somewhat tragic in the comedy – seeing that it was enacted in the high courts of law, with aged and venerable Judges for actors; and many deemed it an irreverent and demoralizing species of play.  

To begin with the “Jury” – (a word which I enclose by inverted commas purposely), – the Sheriff of Dublin was of Course a nominee of the Crown, instead of being elected, as in England, like other municipal officers. The inhabitants of Dublin qualified to serve on juries were in the proportion of three Catholics to one Protestant. And it was the business of the Sheriff to take care that not one of these Catholics should be on this jury, or any other jury, to try what is called a “political offence.” But, further, there were large numbers of the Protestant residents of Dublin favourable to the Repeal of the Union; as, in fact, over and above the general interest of the whole country in that measure, Dublin had a special interest, as the metropolis.  

The Sheriff’s function, then, was to make it sure that none of those Protestant residents should be on the jury. This limited his range of selection to a small number Orangemen, Englishmen, and tradesmen, “by special appointment,” to the Lord Lieutenant: in short, to men whose vote (which was, however, to be called a “verdict”) might be counted upon with the utmost certainty. It was to be a part of the performance that these men, being so well and truly packed, should make oath on the holy Bible to give a true verdict according to the evidence – so help them God! 

A revisal of the special jury-list took place before Mr. Shaw, Recorder of Dublin, with a special view to these trials. The names, when passed by the Recorder from day to day, were then sent to the Sheriff’s Office, to be placed on his book. Counsel were employed before the Recorder to oppose by every means the admission of every Catholic gentleman against whom any colour of objection could be thought of; yet, with all this care, a large number of Catholics were placed on the list. As the names were transferred to the Sheriff’s office, it happened that the slip which contained the largest proportion of Catholic names missed its way, or was mislaid; and the sixty-seven names it contained never appeared on the Sheriff’s book. This became immediately notorious, and excited what one of the Judges called “grave suspicion.” 

In striking a special jury in Ireland, forty-eight names are taken by ballot out of the jurors’ book in the Crown Office. Then each party, the Crown and the traverser, has the privilege of striking off twelve; leaving twenty-four names. On the day of trial, the first twelve, out of these twenty-four, who answer when called, are sworn as jurors. Now, so well had the Sheriff discharged his duty in this case, that of the forty-eight names there were eleven Catholics. They were all struck off by the Crown; and a “Jury” was secured on whose patriotic vote her Majesty could fully rely. 

Of course, the “Conspirators,” through their counsel, challenged the array on the express ground of fraud in the matter of the list of names which missed its way as aforesaid; and of the four judges, one, Perrin, gave his voice for quashing the whole proceeding and letting the Crown begin anew; – but the other three held the jury panel to be good enough; and the drama was to proceed. 

The indictment covered, with close print, the skins of a flock of sheep; the parchment monster measured thirty-three yards in length, and gave a history of the whole agitation, including speeches at Monster Meetings and ballads from the Nation. The most eminent counsel in Ireland were employed at either side, with hosts of juniors; and the ingenuity of every one of them was exerted for many weeks to devise motions, affidavits, demurrers, pleas in abatement, and the other incidents of a highly-developed and full-blown State Prosecution. The trial proceeded; and both inside and outside the courts, there was a strange mixture of jest and earnest. The Attorney-General was T. B. C. Smith (afterwards Master of the Rolls), a very small, withered gentleman, of great legal learning, but most peevish temper, and very sensitive to taunt and ridicule. 

Of taunt and ridicule, therefore, he had plenty, both in the court and the newspapers. Stung to madness, he at last slipped to Fitzgibbon, in open court, a pencilled note, requiring that gentleman to name a friend and meet him next morning in mortal combat. Fitzgibbon read the note to the Judges; and they mildly rebuked the rancorous little public prosecutor. Day after day passed, and week after week; – O’Connell and the traversers all the time attending public festivals and Repeal meetings, and organizing the Repeal Wardens in a more compact and steady power. All the world soon perceived that the cause of the country in no way depended on what was passing in the Queen’s Bench; and the trials would have been absolutely devoid of interest, but for the brilliant speeches of Shiel, Whiteside, and MacDonagh, and the occasional jokes which enlivened the galleries and awaked the Judges. 

Early in February the Trials ended: and when the Chief Justice, in his charge to the jury, argued the case like one of the counsel for the prosecution, and so far forgot himself as to term the traversers’ counsel “the gentlemen on the other side,” there was more laughter than indignation throughout the country. The jury brought in their verdict of GUILTY, of course. O’Connell addressed a letter to the People of Ireland, informing them that “the Repeal” was now sure; that all he wanted was peace, patience, and perseverance; and that if they would only “keep the peace for six, or at most, for twelve months more,” he would promise Repeal. Having published this letter, he went straight to London, and strode into Parliament, where he was received with a tumult of acclamation by the Whigs, then out of place, who saw in his whole movement nothing more than a machinery to raise them to power.  

It was while they were engaged in a debate on the state of Ireland, that O’Connell stalked into the House. He had got somewhat to say on the state of Ireland. But before going farther, take two extracts from the speeches of Lord John Russell and of Mr. Macaulay, in that debate, – both of them, being then out of place, zealous for “Justice to Ireland,” and highly indignant at the packing of juries. Said Lord John Russell: –  

“Nominally, indeed, the two countries have the same laws. Trial by jury, for instance, exists in both countries; but is it administered alike in both? Sir, I remember on one occasion when an honourable gentleman, Mr. Brougham, on bringing forward a motion, in 1823, on the administration of the law in Ireland, made use of these words: –  

‘The law of England esteemed all men equal. It was sufficient to be born within the King’s allegiance, to be entitled to all the rights the loftiest subject of the land enjoyed. None were disqualified, and the only distinction was between natural-born subjects and aliens. Such, indeed, was the liberality of our system in times which we called barbarous, but from which in these enlightened days it might be as well to take a hint, that if a man were even an alien-born, he was not deprived of the protection of the law. In Ireland, however, the law held a directly opposite doctrine. The sect to which a man belonged, the cast of his religious opinions, the form in which he worshipped his Creator, were grounds on which the law separated him from his fellows, and bound him to the endurance of a system of the most cruel injustice.’  

Such was the statement of Mr. Brougham, when Mr. Brougham was the advocate of the oppressed (hear, hear). But, sir, let me ask, was what I have just now read the statement of a man who was ignorant of the country of which he spoke? No; the same language, or to the same effect, was used by Sir Michael O’Loghlen in his evidence before the House of Lords. That gentleman stated, that he had been in the habit of going the Munster circuit for nineteen years; and on that circuit it was the general practice for the Crown in criminal prosecutions to set aside all Catholics and all the liberal Protestants; and he added, that he had been informed that on other circuits the practice was carried on in a more strict manner. Sir Michael O’Loghlen also mentioned one case of this kind which took place in 1834, during the Lord Lieutenancy of the Marquis of Wellesley, and the Attorney-Generalship of Mr. Blackburne, the present Master of the Rolls, and in which, out of forty-three persons set aside (in a cause, too, which was not a politic alone), there were thirty-six Catholics and seven Protestants, and all of them respectable men. This practice is so well known, and carried out so generally, that men known to be Liberals, whether Catholics or Protestants, have ceased to attend assizes that they might not be exposed to these public insults.

Now, I would ask, are these proofs of equal laws, or laws equally administered? Could the same or similar cases have happened in Yorkshire, or Sussex, or Kent? Arc these the fulfilment of the promises made and engagements entered into at the Union?” 

This sounds extremely fair. Who would think that Lord John Russell was Prime Minister in ’48! Mr. Macaulay said, in the same debate (Feb. 10th, 1844): –  

“I must say, too, in the spirit of truth, that the position which Mr. O’Connell holds in the eyes of his fellow-countrymen, is a position such as no popular leader in the whole history of mankind ever occupied (loud cheers). You are mistaken if you imagine that the interest with which he is regarded is confined only to the island. Go where you will upon the Continent, dine at any table d’hote, tread upon any steamboat, enter any conveyance, from the moment your speech betrays you an Englishman, the very first question asked – whether by the merchants or manufacturers in the towns in the heart of France, or by the peasants, or by the class who are like our yeomen in this country – is, what has become of Mr. O’Connell (cheers, and cries of oh, oh)? Let those who deny this assertion take the trouble to turn over the French journals (cheers). It is a most unfortunate, it is a most unhappy fact, – but it is impossible to dispute it, – that there is throughout the Continent a feeling respecting the connection between England and Ireland not very much unlike that which exists with respect to the connection between Russia and Poland. 

“I do say that on this question it is of the greatest importance that the proceedings which the government have taken should be beyond impeachment, and that they should have obtained a victory in such a way that that victory should not be to them a greater disaster than a defeat. Has that been the result (cheers)? First, is it denied that Mr. O’Connell has suffered wrong? Is it denied that if the law had been carried into effect without those irregularities and that negligence which has attended the Irish trials, Mr. O’ Council’s chance of acquittal would have been better? – no person denied that. The affidavit which has been produced, and which has not been contradicted, states that twenty-seven Catholics were excluded from the jury-list (hear, hear, from Mr. Sheil). I know that all the technicalities of the law were on the side of the Crown; but my great charge against the government, is, that they have merely regarded this question in a technical point of view. We know what the principle of the law is in cases where prejudice is likely to arise against an alien, and who is to be tried de medietate linguae. Is he to be tried by twelve Englishmen? No; our ancestors knew that that was not the way in which justice could be obtained; they knew that the only proper way was to have one-half of the jurymen of the country in which the crime was committed, and the other half of the country to which the prisoner belonged. If any alien had been in the situation of Mr. O’Connell, that law would have been observed. You are ready enough to call the Catholics of Ireland ‘aliens,’ when it suits your purpose; you are ready enough to treat them as aliens when it suits your purpose; but the first privilege, the only advantage, of alienage, you practically deny them (hear, hear, and loud cheers).” 

This orator also was a member of the Administration in 1848; and he did not utter any of his fine indignation at what was done then; of which I shall hereafter give some account. Bear in mind these fair and liberal protestations of Russell and Macaulay, until we come down four years later in this history. 

The debate lasted more than a week. O’Connell listened to it; and, at last, amidst breathless silence, arose. He did not confine himself to the narrow ground of the prosecution, but reviewed the whole career of British power in Ireland, with bitter and taunting comments. As to the prosecution, he treated it slightly and contemptuously: –  

“I have at greater length than I intended, gone through the crimes of England since the Union I will say the follies of England. I have but little more to say; but I have in the name of the people of Ireland, and I do it in their name, to protest against the late prosecution (loud cries of hear, hear, hear). And I protest, first against the nature of that prosecution. Forty-three public meetings were held, and every one of them was admitted to be legal; not one was impeached as being against the law. and every one of them making on the calendar of crime a cypher; but by multiplying cyphers, you come, by a species of legal witchcraft, to make a number that shall be fatal. One meeting is legal, another meeting is legal, a third is the same; and three legal meetings, you say, make one illegal meeting. The people of Ireland understand that you may oppress them, but not laugh at them. That, sir, is my first objection. The second is the striking out all the Catholics from the jury panel. There is no doubt of the fact. Eleven Catholics were upon the jury panel, and every one of them was struck out.” 

All the world knew it. Nobody pretended to deny it, or publicly to excuse it: but what availed all this? The ultimatum of England was, that the Union must be maintained at any cost, and by all means. And O’Connell was to return to Dublin by a certain day for judgment and sentence. It may have been some satisfaction to him – or it may not – to expose and turn inside out the whole procedure of that trial before English audiences; the loud laughter of all Liverpool may have pleased him, when he described, with exuberant merriment, the nature of the cumulative crime, contained in his Monster Meetings – one meeting legal, another meeting legal, but forty-three illegal. Said he, in Liverpool: –  

“What would a merchant of this city say if a fellow, just escaped from some Lunatic Asylum, were to come into his office and request him to tot up forty-three noughts? Would he not turn the mad fellow out of his office? This is what I want done to the present Ministry; – I want them turned out of office.” 

This was extremely gratifying and amusing to Liverpool Whigs, who looked only at the chances of their friends coming into power. But no man in all England ever, for one moment, suffered the idea to enter his head, that Ireland was to be in any case permitted to govern herself. 

In truth, it was apparent, both to Englishmen and Irishmen, that the real struggle between the two islands did not lie in the Court of Queen’s Bench, but in the country – and that it would be decided, not by the learned Judges with their packed jury, but by the Repeal Wardens on the one side, and the troops and police on the other. And British Whigs could well afford to let O’Connell have a legal triumph, to the damage of British Tories, so long as the real and substantial policy of England in Ireland was pursued without interruption. As to this point, there must be no mistake: no British Whig or British Tory regarded the Irish question in any other point of view than as a question on which might occur a change of Ministry. 

An army of fifty thousand men, including police, was all this while in full military occupation of the island; the Arms Bill had become law; and in the registration of arms before magistrates, under that act, those who were in favour of their country’s independence were usually refused the privilege of keeping so much as an old musket in their houses for the purposes of self-defence. This same registration made manifest the fact that the Protestant “gentry” of the country were providing themselves with a sufficient armament. For example, Mrs. Charlotte Stawell, of Kilbritton Castle, registers “six guns and six pistols;” and Richard Quinn, of Skivanish, “nine guns, one pair pistols, two dirks, two bayonets, and one sword.” No objection was offered against these persons keeping as many fire-arms as they chose! So worked the disarming act. 

The police-barracks were strengthened; the detectives were multiplied; the regular troops were kept almost constantly under arms, and marched to and fro with a view of striking terror; improved codes of signals were furnished to the police, for use by day and by night – to give warning of everything they might conceive suspicious; and, above all, the Post-office was used systematically as a bureau of espionage. During the progress of the trials, Mr. Gartlan, one of the attorneys for the travellers, and Mr. O’Mahony were surprised to see their private letters printed in the government newspapers of Dublin. Sir Edward Sugden and the Secretary of State for Ireland had issued warrants under which the correspondence of any suspected person was to be carried to the Castle, opened by a government clerk, copied, resealed, and forwarded as if nothing had happened.  

The extent to which this system operated was hardly appreciated, until the discovery, during this same year, 1844, of Sir James Graham’s behaviour with respect to the correspondence of Mazzini, the Italian. By diligent inspection of the letters to and from Mazzini, the British Minister was enabled (in the interest of good order, tranquillity, and civilization,) to give notice to the King of Naples of all the movements and designs of the brothers Bandiera; and thereby had the satisfaction of putting it in that monarch’s power to entrap, capture, and kill those rash young men. 

It has been the custom, ever since the “Union,” for either the Lord Lieutenant, or Secretary, or any of the Lords Justices or Privy Councillors, to order the detention in the post-office of letters to and from any person whomsoever they might think fit to suspect, or pretend to suspect. The mode of opening the letters was by softening the seals or wafers by means of steam; and the government kept workmen cunning in re-sealing; so that the parties might not conceive suspicion, and thus be put on their guard. After the Mazzini case was exposed, the British Public affected to be indignant; and the House of Commons appointed a committee to investigate. That committee very coolly informed the British Public and the rest of mankind that the practice was not new, – was common, – was needful; and gave the public names and dates to make the most of. Confining myself to Irish cases alone, it appears by this report that warrants were issued at the following times by the following persons, for opening and copying the letters of various individuals: –  

Year 1832 – Marquis of Anglesey.  

1834 – E. J. Littleton (Secretary).

” – Marquis Wellesley.  

1835 – Earl of Mulgrave [afterwards Marquis of Normanby 

1836 – Ditto.  

” – T. Drummond (Secretary).  

1837 – Ditto.  

” – Lord Plunket (one of the Lords Justices).  

” – Archbishop of Dublin (ditto). 

1838 – Lord Morpeth (Secretary) [afterwards Earl of Carlisle]. 

1839 – Marquis of Normanby.  

” – Lord Viscount Ebrington.  

” – Gen. Sir T. Blakeney (one of the Lords Justices).  

1840 – Lord Viscount Ebrington.  

1841 – Chief Justice Bushe (one of the Lords Justices).  

” – Earl De Grey.  

1842 – Ditto.  

” – Sir E. Sugden (one of the Lords Justices).  

1843 – Earl De Grey. 

The British Public, seeing the thing to be “necessary,” said no more about it; and the practice has continued in full activity from that day to this. 

With so firm a hold upon the Island, the British Ministers might have thought themselves in a condition to abandon their questionable prosecution; but they had the idea that O’Connell’s power lay very much in the received of his legal infallibility; so they were resolved to imprison him, at any rate for a short time – even though he should finally trample on their prosecution and come forth in triumph; as in fact he did. 

On the 30th of May, the “Conspirators” were called up for sentence; and were imprisoned in Richmond Penitentiary, a suburban prison at the south side of Dublin, with splendid gardens and handsome accommodations. Here they rusticated for three months, holding levees in an elegant marquee in the garden; addressed by bishops; complimented by Americans; bored by deputations; serenaded by bands; comforted by ladies; half smothered with roses; half drowned in champagne. 

The great multitudinous People looked on in some amaze. “Peace” was still the order; and they obeyed: but they much marvelled what it meant, and when it would end.