his having endeavoured to procure a prejudiced jury is stated, only on belief;-no act of the sheriff is stated upon which that belief is founded; nor whether it was formed before the trial or not; and if the defendant had apprehended that the sheriff would misconduct himself, he ought to have taken the proper steps to have the jury process directed to another officer, which could easily have been done if sufficient grounds existed. These objections-to the witnesses, the juror and the sheriff, are all the grounds upon which the verdict is impeached by the notice, served on the part of the defendant; and, in my mind, it would be a severe and dangerous injury to the trial by jury, if we were to disturb this verdict on any or all of those grounds. But an objection is taken to my lord's charge to the jury, and it is contended that there has been a misdirection; that an illegal, charge has been given, and that, on that account, the verdict ought to be set aside When that charge was given to the jury, I thought it a clear, able, fair and legal charge. -I think so still. I attended to it minutely; as it was my duty to do if I had perceived any assumption of any fact, any observation in my opinion unwarranted by law, I should have pointed it out to his lordship on the spot;and from the manner in which my humble assistance has been at all times received by him, I am confident that I should have had his thanks for so doing. I saw no reason to object to any part of the charge when it was delivered, and I expressly concurred in it. When, upon the recollection of counsel, without affidavit, of the words of the charge, my lord was stated to have used expressions to the jury, which conveyed to them-absolutely that there was a meeting of a great number of persons-I had no recollection of the fact of a meeting having been assumed in the charge. And, when it was contended at the bar, that it was put to the jury in words amounting to this position or effect, that the silence of the d-fendant would establish a charge, or supply evidence not fully proving the case, I must say, that the impression made on my mind by the charge excited no such idea. I conceived the charge to have left the fact of the existence of a meeting, and the other facts of the case, fairly to the jury, upon the evidence given by the prosecutor's witnesses, without assuming the truth of any of those facts, but leaving the credit of the witnesses to the jury. I requested his lordship to give me, in writing, his charge, as to this part of the case, according to his recollection of it, and he gave it to me as stated by him to-day -and the substance and effect of it corresponded with my own recollection. As to the observation objected to, that the silence of the defendant was strong evidence, which was the meaning conveyed by the words "a volume of evidence:" I think the observation justifiable, prefaced, as it is by my lord stated to have been, and from whose statement I must take it, in this manner— "if the jury should believe there was a meeting of the kind and number sworn to by the two witnesses, the not producing, any person who was at that meeting to contradict any of the particular facts sworn by them, or to prove that he did not publish the libel in the manner sworn." Is this a violation of the maxim that no man is bound to accuse himself? Does this amount to the position that the silence of the defendant will prove a charge? It will not; it would be monstrous if it were so held. If no charge is proved, he may be for ever silent; but where one witness has fully proved the fact of publication, if believed; where he stated that fact, at tended with a number of circumstances, easy to be contradicted if false; where many of those circumstances are corroborated by the evidence of another witness, who swore he was at such a meeting as Lyster described; Is it not a fair observation in a judge to say (where no manner of evidence to contradict any of those facts is given), that if the jury believe that there was such a meeting as sworn, the silence of the defendant is strong evidence-strong evidence that the facts which are sworn to have passed at that meeting, and which might, if false, be readily contradicted-were truly sworn. If no case is made out in evidence by the prosecutor, the defendant may be safely silent, and the jury ought to be told by the judge, that no case is proved: but if a case is sworn to, and fully by the prosecutor, if the defendant chooses to be silent as to the facts, and to rest on the discredit of the witnesses against him, he runs the risk of their being believed; and if the account they give is such, and circumstances sworn to by them strike the jury to be such, as that they might be easily answered and contradicted if false, then if no answer is given, the jury may be well warranted to believe them; and a charge of a judge, fully and strongly putting such case before the jury, and with such an observation, would not in my mind be reprehensible. Suppose the only witness in a case of felony should be an approver, a witness whose credit is reduced to the lowest point of degradation; he may state such circumstances, as from the facility of contradicting them, may force credit from a jury; and would it be unjust or illegal for the Court to observe, that where the facts sworn to, were easy to be contradicted if false, it was a strong circumstance against the prisoner, that he had produced no evidence to contradict them; that such conduct furnished evidence to strengthen the credit of the witness? This objection was made for the first time, when the motion came on to be argued; it is not stated in the notice, that there was any misdirection; from whence it might be conjectured, that it had not struck the counsel, then, that there was any ground in the charge on which the verdict could be attacked. Two very able counsel spoke to the motion for the defendant, without touching upon any objection to the charge. And the learned gentleman, who took the objection, had immediately after the verdict came in, informed the Court that his client would (if the Court thought fit) then receive the sentence of the Court. It is hard to imagine, that if that counsel, the only one who attacked the charge, then thought that there was a misdirection in the Court, which would have entitled his client to set aside the verdict,-it is hard, I say, to imagine that he would have informed the Court, that his client was willing to appear, and receive judgment, which if the Court had then pronounced, he must know, would have shut his mouth for ever from taking any advantage of any misdirection of the Court, if any had ex isted. . I think there has been no misdirection, and therefore, and because I think the other grounds stated are insufficient to set aside the verdict, I think the motion must be refused. Mr. Attorney General.—My lords, it is my duty to apply to the Court to pronounce sentence upon the traverser. Mr. Justice Boyd. - Archibald Hamilton Rowan; you have been found guilty by a jury of your country, of publishing a false, wicked, and seditious libel, of and concerning the government and constitution of this kingdom, with an intent to excite and diffuse among the subjects, discontents, jealousies, and suspicions of the king and his government; to raise dangerous seditions and tumults; to throw the government of this country into scandal and disgrace; to excite the people to make alterations in the government, and to overawe and to intimidate the legislature by an armed force. This charge was exhibited in an information filed against you by his majesty's attorney-general, and the whole matter was, as it ought to be, left to the jury, who have found, first, that the instrument set forth is a libel; -secondly, that you did publish it;-thirdly, that you published it with the intentions stated in the information. liberated from restraints they laboured under; but you addressed them to take up arms, and by force to obtain their measures; they were palpably to be made a dupe to your designs, because you say you will proceed to the accomplishment of your beloved principlesUNIVERSAL EMANCIPATION and REPRESEN TATIVE LEGISLATURE.-Seduction, calumny, and terror are the means by which you intend to effect them. The volunteers are to become instruments in your hands, and despairing to seduce the army, you calumniate them with the opprobious epithet of mercenaries. You say seduction made them soldiers, but nature inade them men. You stigmatize the legal establishments for the preservation of order, as a notorious police, and the militia, the pride and the strength of the kingdom, are to be looked upon as suspicious. You called upon the people to arm-all are summoned to arms to introduce a wild system of anarchy, such as now involves France in the horrors of civil war, and deluges the country with blood. It is happy for you, and those who were to have been your instruments, that they did not obey you. It is happy for you that this insidious summons to arms was not observed, if it had been and the people with force of arms had attempted to make alterations in the constitution of this country, every man concerned would have been guilty of high treason. The sentence of the Court is-- Mr. Hamilton Rowan. My lords, I am perfectly sensible of the forbearance of the Court in this trial, and particularly during the arrangement of a long amdavit; I hope therefore that I shall be allowed a few words, either in mitigation, or in whatever other character I may have a right to address the court, before they pronounce their sentence. (Mr. Justice Boyd desired Mr. Hamilton Rowan to proceed.) I need not apologise, my lords, for any little errors I may fall into, for I am known to be a man unlearned in the forms of these courts, but I shall as plainly, and as shortly as I can, state every thing as it struck my ear and understanding. My lord, if I understood rightly, the three heads under which this matter has been argued are, the evidence, the jury, and the sheriff; I did hope that the objections taken to these by my counsel would have set aside the verdict. The libel is contained in a printed paper, intituled, "An Address from the Society of United Irishmen at Dublin, to the Volun- There are some parts concerning the eviteers of Ireland." This publication followed dence, in which the Court, as well as the proand animadverted upon a proclamation pub-secutor, seem to have been mistaken. They lished by order of the lord lieutenant and have taken it for granted, that I knew the council, to which you have attributed an in-person who was to be brought to give evidence tention to create internal commotion, to shake the public credit, and to blast the volunteer honour. This proclamation has had the sanction of both houses of parliament. At this period, and it is upon the records of parliament, the great body of the Roman Catholics were seeking relief; they presented dutiful addresses, stating they were anxious to be against me; and it was asserted by the bench, that I had ransacked Connaught for evidence against the character of Lyster. I do not know what impression this might have made upon some of the jury; it was indeed corrected at the time, but it was not sufficiently done away; it is plain it was not for Mr. Solicitor General, who was present the whole time, whose duty it is, and whose inclination' he now stood forward, to accuse a man of what declared it to be, to listen with attention and must, in my opinion, render him infamous. deference to every thing which fell from the Iwell knew that in every public act of my life bench, has since repeated the same assertion. since I came to this country, triding as they I certainly did suspect, that the person who were, I had been calumniated by him; but that has now been brought forward, was the man was in his province of editor; he is now bewho had lodged the informations against me; come the representative of the executive but I hoped ihat my trial had been postponed power-is he not !--I thought the station he by the prosecutor, from a knowledge of his now holds, would give him some pride, instil character, and a wish to procure more credible some spark of honour into him, and that retestimony, as to the fact of the distribution. linquishing that conduct and those proceedI had certainly every reason to suppose this ings which were calculated to procure a sale bad been the case, as I knew that several of for his journal, in some corners of the city, my friends, men who belong to the old volun-' he would consider himself bound to return a teer corps, and who probably were at that jury which should be unsuspected. meeting, if there were any such assembly, Was it likely that he did not know of these had been summoned on this trial by the pro-' declarations of the jurors? It is not probable. secutor. They attended in the Court, but Before the recognizances were given up, were never called upon; perhaps I am wrong while I was out on bail, the death of a near to mention this, but had they been called relation obliged me to go to England, where upon, I know the charge exhibited against me my attendance was necessary for the arrangeby Mr. Lyster would have fallen to the ment of my private affairs; I returned howground, I had been certain of an acquittal. ever at great inconvenience, and some pecu As to the jury, my lord, I can conceive some niary loss, to attend this Court; yet, during of them to have been very honourable men, my absence, I was branded by this man as a and yet prejudiced, much prejudiced; I did fugitive; and here permit me to observe, that not conceive however, that any man would your lordship in your recapitulation of the have gone into that box, taking an oath to try events of this trial, omitted to mention the me impartially, yet having publicly declared motion made for me by my friend, Mr. Blenan enmity against me. It was certainly very nerhasset, that the examinations against me ingenious in one of the crown lawyers to sup- should be forth with returned; day after day pose, that the jurors who used those expres- ' I had attended the Court; the little inquiry sions, might have thought at that time, that I I could make informed me that no such had been guilty of murder, or some heinous examination had gone up to the grand jury, crime, and had been disabused before the trial I believe it was on the last day of the term, came on, but, without recurring to my general or it was not motion day, or something of that character, that suggestion, in my opinion, kind, and there was no order of the Court falls to the ground, for the conversation was made. on the subject of the volunteers; and it is for It had been suggested to me by some of my an address to the volunteers that I am now friends, when notice for this trial was served prosecuted; I certainly did wish for a revival upon me, that I ought to attempt to put it of the volunteers, and I did attempt it: I off; but what would have been the consethought they had already done honour to the quence? Your lordship has said that I had nation, that they had been acknowledged called for, that I had provoked this trial, that honourable by the legislature; this I did I had complained it was not brought forward ; attempt, if this be a crime. It has been said it is true I did call for, I did provoke this trial by one of my prosecutors, that it was not with I have complained that it was not brought the jurors, but with their verdict that I was forward. I wished to be brought to trial, but discontented; I ask, what was my conduct I did wish also to be tried by an impartial when the verdict was delivered in? Did that jury, summoned by an impartial man; suchi prove a mere discontent against the verdict? I thought the sheriff of that time * to be, No.. I thought it a severe one, unfounded in although I was not one of his acquaintance. evidence, but I called for the sentence of the The very words your lordship used, show why Court; I was ready to abide by that sentence; I did not put oft my trial. What would then and it was not until my return to Newgate, have been said hy that journal, which is perwhen I found my prison doors crowded with petually stigmatizing my conduct, and villity. ulter strangers to me, each recapitulating in- ing my private character? It would have restances of declared partiality in the jurors, peated, what was said in another country, and further acts of infamy in the evidence, that I was “ an infamous wretch, who had that I had thoughts of setting aside their fled from the punishment that awaited me." verdict. But still those friends urged me to put off this · As to the sheriff, and the circumstance of my not having made some application to the * Henry Hutton, esq. Court prior to my affidavit of the day before + Vide the lord advocate's speech on Mr. yesterday, and the question of when I be- Muir's trial, printed by Robertson, Edinburgh. came acquainted with his partiality, the fact Orig. Ed. See Muir's Case in Vol. XXIII of is, that it was with the utmost reluctance I this Collection. a a trial: the sheriff is your enemy-No-I have, that the British constitution was a represen. called for trial, I will trust to his oath of office : tative legislature, that the people were reprethough, as editor of a newspaper, he has sented by the House of Coinmons; that the acted thus, yet when bound by oath “ to re Lords represented the territory, the property; turn panels of persons able and sufficient, and that the hing represented the power of and not suspected or procured, and to do jus- the state, the united force, the power of the tice impartially" (these are merely the words whole, placed in his hands for the benefit of of the oath of a county sheriff), I hoped he the whole. As a person, as a man, I know would rise superior to his editorial capacity, nothing of the king; I can know nothing of aud act with justice. Nay even in my first bim, except as wielding the force of the 12attidavit, I did not throw out this imputation. tion, to be exercised for the benefit of the As to the sub sheriff, I know him not, but nation ;* and if ever that force should be I am informed that the sheriff hiuself re- misapplied, or abused, it then remains for the turned the whole panel upon this occasion; people to decide in what bands it ought to be contrary to the usual custom, as I am in- | placed. + formed: why this was so, I know not; I I really feel myself in an awkward situacannot dive into the brea-t of any man; tion, thus declaring my sentiments, seeing ise God forbid I should be capable of diving into teptions different from those both of the au his.-My lord, perhaps what I am go ng to thor and myself are fixed upon that paper, observe may be impruper, but I once thonght for the distribution of which I am persecuted that intention constituted guilt I thought I From my situation however, having an indeheard from the bench, that my intention did pendent fortune, easy in my circunstances, not siguity. and with a large family, insurrection of any Lord Clonmell.—You have said nothing im- sort would surely be the last thing I cous proper vet, Sir: go on, you do not seem to wish for; I ask no favour, but I submit myse recollect the idea perfectly. to the clemency and the justice of the Court Mr Hamilton Rowun.-It was not from and I trust that whatever may be their seoyour lordship. tence, I shall bear it with becoining for Mr. Justice Downes.-Certainly it is an opi. tude. nion no judge could hold Lord Clonmell.- I have conferred with my Mr. Hamilton Rouun.-I have been mis. taken then; it was something like it, it struck But yet it is to be observed, that although me so. oaths of allegiance and feally are taken to As to the paper, it has been said to come bim (the king', it is not to him, as supreme from a Society of United Irishmen. One of legislator, but as supreme executor of the izy, my witnusses was asked was be an United | made by a joint power of him with others; Irishman I have heard much of United, allegiance being nothing but an ubedience acIrishmen, much calumny here and elsewhere; cording to law, which when he violates, be I avow myself to be one, my name has ap- has no right to obedience, por can claim it peared to several of their publications, I glory otherwise than as the public person vested in the name. On entering that Society I took , with the power of the law, and so is to be a test, by which I am bound to seek for the considered as the image, phantom, or repreemancipation of every class of my fellow- sentative of the commonwealth, acted by the Citizens, and to procure (by spreading in- will of society, declared in its laws; and then formation, for that is the only mode a few he has no will , no power but that of the 129. men assembled in Back-lane can adopt) a But when he quits this representation, this reform in the representation of the people :* public will, and acts by his own private will, a reform, the necessity of which has been al- he degrades himself, and is but a single prilowed even in parliament. These are our vate person, without porrer, and without will, objects, objects which I am bound to pursue to that has any right to obedience; the members their completion. i owing no obedience but to the public will of As to the paper, I honour the head that the society.-Locke on Government, sect. 151. conceived it, and I love the hand that pended Orig. Edit. it. Much stress has been laid upon the words # This doctrine of a power in the people of Universal Emancipation and Representative providing for their safety ariew, by a new leLegislature, it may be owing to a want of lo- gislative, when their legislators bave acted gical precision in me, but I do not consider contrary to their trust by invading their prothese words as carrying the meaning which perty, is the best fence against rebellion, and has been imputed to them. I did imagine lite probablest means to binder it.-Locke, sect. 226.-When king Charles's deluded * It being the interest as well as the in brother attempted to enslave the nation, he tention of the people to have a fair and equal found it was bevond his power. The people representation, whoever brings it nearest to both could and did resist him; and in consethat, is an undoubted triend to and establisher quence of such resistance, obliged him w que of the government, and cannot miss the con- his enterprise and his throne together.sent and approbation of the community:-- Blackstone, public wrongs, B. 4. c. 33. 5. 5. Locke on Government, sect. 158. Orig. Ed. Orig. Edit. 9 Court will therefore be pronounced as is the practice in Westminster-hall, by the second judge of the Court. It shall be pronounced, by my brother Boyd. brethren upon what has fallen from you, confessedly in mitigation and with that view There are two facts which you seem to insist upon as new. If it made for you, that Mr. Blennerhasset made the motion you state I willingly adopt it. If I had known it in giving the history of this case, I should not have omitted that or any thing else done in this Court. You mentioned that the infor mations should have been returned, they were returned into the crown-office. Mr. Rowan. My Lord, I meant they were not returned to the grand jury. Lord Clonmell--The proceeding was not by way of bill of indictment, therefore what you desire could not have been adopted. The proceedings here were by information Ex-Officio, and when the informations were lodged in the crown office, which I am instructed to say, was the first day of Hilary Term, 1793, the first day the Court sat afterwards the information was filed and the other proceedings had. There is nothing else that has not been touched upon. As to the meaning of the libel, I owe justice to every man, and here and every where I have said that no inference can be drawn from any construction in your favour that was omitted. I think I shall be justified in saying that you were well and ably defended by your counsel. Nothing has fallen frou you that affected the minds of the Court in mitigation, to change the judgment which we have thought proper should be pronounced upon you. I shall not adopt any idea, or suffer any idea to arise in my mind, from what you last let fall from you, to increase that punishment. The judgment of this In the case of The King against Withers (3 T. R. 428) lord Kenyon ch just. said "It is well settled that the conduct of a defendant subsequent to the time when he is found guilty, may be taken into consideration, either by way of aggravating or mitigating the punishment." Undoubtedly it is the settled practice, upon convictions for misdemeanors, to receive affidavits in mitigation and aggravation; and in such affidavits it is permitted to relate facts respecting the general character and conduct of the convict See Starkie on the law of slander and iibel ch 41. Holt on the law of libel, b. 3. ch. o, and Mr. Christian's note to 4 Bl. Comm. 151. Yet it may seem that there is some objection to the admission of affidavits, which disclose other facts than those by which may be ascertained or explained the degree of the guilt of the particular offence before the Court (and qu. if this disclosure might not preferably be made, when it is practicable, by witnesses subject to crossexamintion upon the trial); for if the disclosure of facts unconnected with that particular offence induce the Court to mitigate the punishment which, without such disclosure, they would have adjudged to be merited by the offence; then it may seem to induce them to VOL. XXII. Mr. Justice Boyd - The sentence of the Court is-That you, Archibald Hamilton, Rowan, do pay to his majesty a fine of five hundred pounds, and he imprisoned for two years, to be computed from the 29th of January, 1794, and until that fine be paid; and to find security for your good behaviour for seven years, yourself in the sum of two thousand pounds, and two sureties in one thousand pounds each. Of Mr. Hamilton Rowan's escape from prison, and of the proceedings connected therewith, which terminated in his receiving from his majesty a free pardon, the following particulars have been obligingly communicated to the Editor of this Work by Mr. Rowan himself, and are now first published. Dublin, December, 1816. When I had been in Newgate about four months, in consequence of my sentence, the reverend Mr. Jackson, an Englishman and an emissary from France, came to this country. He was accompanied by another person, to whom he had communicated the object of his mission, and who pretended to assist his views, but had in fact betrayed him to the minister, and accompanied him to Ireland as a spy. They were introduced to me in the gaol. We had several conferences; and at last a statement of the situation of this country was agreed upon and given to Jackson, in my hand-writing. Mr. Jackson's friend was employed by him to put this into the postoffice, directed to Hamburgh. He was seized in the act, and taken before the privy-council. Mr. Jackson was committed to prison. In the evening Mr. Jackson's friend came to my room, and requested I would procure him admission to Jackson; which I did, for at this time there was no suspicion of the friend nor of my being implicated with Jackson. In this interview he said, that in his examination he had acknowledged the letter to have been given to him by Jackson; said the privy council seemed to be much exasperated interfere with the royal prerogative of mercy : if it induce them to aggravate the punishment which they would otherwise have inflicted, then it may seem to induce them, under the appearance of punishing the convict for the offence of which he has been convicted, in fact to punish him for matter of which he has not been convicted, and for which he has not been tried. See in this collection, post, his case for high treason, A. D. 1794, 1795. 4 G |