says of the appearances with reference to Mr O'Brien certainly throws a great degree of credit upon his accuracy when he speaks with respect to Lord Thanet. The same credit is due, I take it, to Mr Solicitor-General; and you will have the goodness also to attend to the evidence of Mr Hussey; for if you believe what he states, that when the man was pressing forward to execute the warrant, Lord Thanet inclined towards the bar, and put his person in the way; if that fact is proved to your satisfaction, Lord Thanet is guilty upon this record. And if other facts are proved against Lord Thanet, and similar facts are proved against Mr Fergusson, you must decide upon all the evidence, and not from what other men did not see or observe; you are not to decide upon the eloquence of my learned friend, but upon the oaths of persons who depose positively to facts. Then my learned friend made an observation upon the evidence of Mr Solicitor-General, with reference to whom, as a moral character, I say nothing, because he is above all praise that I can bestow upon him. I have no doubt that it was an extremely painful thing for him to give his evidence this day; but his evidence is extremely material, because he speaks to the circumstance of Mr Fergusson crying out that Mr O'Connor was discharged. He tells you the pains he took with his brother in the profession to tell him that he was not discharged; and he speaks to the warrant being produced, and, therefore, there was a public notice, that there were further demands of justice upon Mr O'Connor. He states upon his oath, that he did most distinctly and cautiously attend to the conduct of Mr Fergusson and Mr O'Connor; and then he says this: "I fixed my eye upon O'Connor, and I observed Mr Fergusson, and other persons whom I did not know, encouraging Mr O'Connor to go over the bar." couraging is a general word undoubtedly; but it is a word which expresses the impression which facts falling under his eye had made upon his mind; and when he was asked what he meant by encouragement, he describes it to have been by his actions. But he not only gives his evidence in this way as to that particular fact, but he gives it also with a caution, which entitles it to the same degree of credit which Mr Serjeant Shepherd's evidence derives from its accuracy; for when he comes to speak of a circumstance, with reference to which he is not certain, he tells you, "Mr O'Connor jumped over the bar, and Mr Fergusson turned himself round and appeared to me to follow Mr O'Connor; but I cannot say that he did." He qualifies that apprehension in his mind, by telling you that he may be mistaken, and then he gives you the reason why he doubts whether that apprehension was or was not justly founded; and he finally states in his evidence a circumstance respecting Lord Thanet, which I think will deserve a great deal of your consideration. Gentlemen, a learned friend of mine behind me, Mr Abbott, has told you, that he heard Lord En Thanet express himself in the manner which he has described, and I trust I shall not be told that the manner of an expression is not evidence of the import of the mind of the man from whose mouth the expression flows. He states to you the circumstance of Mr Sheridan's conversation with the learned Judge, and he was struck with the extreme difference of the manner in which Mr Sheridan expressed himself to that learned Judge from the manner in which Lord Thanet expressed himself. Am I to be surprised that Lord Thanet could be engaged in such a project, if I can believe, that he, a peer of the realm, made use of such language to a Judge of the country, that "he thought it fair, that he, the prisoner, should have a run for it?"-a run, for what? Why, a run to elude justice !—a run to get out of the hands of a court of justice-a run to prevent being brought to justice; and this is the sentiment of a peer of the realm-" he thought it fair to have a run for it." And, considering it to be fair, he acted upon that apprehension as far as he had the power of acting. This is a circumstance requiring your anxious consideration. Whether this noble peer struck Rivett first, which I do not find Rivett say that he did, is of no importance. These men have a certain temper and degree of spirit about them, which might, perhaps, induce them to thrash a peer more than anybody else, if they felt themselves illtreated; but Mr Rivett may take this advice of me-I hope, in future, he will not use such treatment if he can avoid it. But what presses upon my mind is, that if Lord Thanet, treated in the manner he was by Rivett, had no connexion with this project of rescue; if he had not, either from the circumstances that fell under Mr Sheridan's observation, or from other circumstances, manifested that he meant there should be a rescue, is it the conduct of a man of considerable situation-is it the conduct of a man of common sense, instead of making a serious complaint upon the subject, instead of stating, as he naturally would have done, "this project of rescuing a man from the hands of justice is that species of project which, in my situation, it must be known I must feel to be inconsistent with propriety, duty, and honour, to have embarked in ?" On the contrary, he is perfectly neutral; no complaint is made upon the subject. It appears to me, that if I had been struck two or three times by that officer, the manner in which I would have acted upon that occasion would certainly not have been to have immediately stated that "it was fair the prisoner should have a run for it," but to have made some application to have those punished of whose conduct I had a right to complain. Now, this evidence of the Solicitor-General is also confirmed by Mr Abbott, and by Mr Serjeant Shepherd, who states to you what Lord Thanet did; and he states it to you, that he was not holding up his hands for the purpose of rescuing himself from the pressure of the mob, but was holding up his hands to defend himself against those per sons who were pursuing Mr O'Connor; and he gives his evidence in such a way that you can have no doubt as to the personal conduct of Lord Thanet. Then, when you have heard this evidence on the part of the prosecution, I mean the evidence that goes to prove positive facts, it will be for you to decide whether they are not at all reconcilable with the negative evidence given on the part of the defendants. I have not gone into the whole of the evidence, because I feel that my lord has a painful and an anxious duty to perform, and whatever your verdict may be, I am confident and sure that this prosecution will have been very beneficial to the country. I hope and trust that I shall never see such another; but whenever I see an occasion which calls for it, whilst I hold the situation which I have the honour to fill, I will not fail to institute it. Gentlemen, having said thus much, and having endeavoured to discharge myself of my duty, you will be good enough to say what is due as between the public and the defendants. LORD KENYON'S CHARGE TO THE JURY. GENTLEMEN OF THE JURY,-If, consistently with my own sense of my duty, or consistently with the public expectations-consistently with the expectations of the bar on the one side, and the other, and with your expectations-I could relieve myself from going through, in detail, all the particulars of this case, after considerable bodily and mental exertions already, I should certainly save myself from a great deal of trouble. But I will not shrink from the discharge of my duty, though it may be attended with labour and pain. This is a case of the first importance. I do not remember any case that ever happened in my time, in the shape of a misdemeanour, of more importance to the public; and it has been conducted in the most solemn manner. It is brought before the whole Court, assisted by a jury of gentlemen from the county of Kent, taken from the highest orders of the people, and whose educations and stations in the world qualify them to decide causes of such importance. It is usual, in causes of this kind, where there is a number of defendants, and where the evidence does not extend sufficiently to them all, to submit to the jury, before the end of the cause, whether those upon whom the evidence does not attach, ought not to be acquitted, in order that the other defendants may avail themselves of their evidence, if they shall think proper. It was with a view to that very state of the question that I took the liberty to submit to you, that two of the defendants ought to be acquitted before the other defendants produced their evidence; and I did it with a view that the others might, if they thought fit, appeal to their evidence, to show, on the rest of the case, what the real state and justice of it was. In dispensing the criminal justice of the country, we have sometimes an arduous task to perform. It is not a pleasant thing, most certainly, to condemn any one of our fellow-creatures to punishment; but those who are intrusted with the administration of the criminal justice of a country must summon up their fortitude, and render justice to the public, as well as justice tempered with mercy to the individual. I have the authority of Lord Hale, one of the greatest and best men that ever lived, for saying, that juries are not to overlook the evidence-that they are not to forget the truth, and to give way to false mercy; but, without looking to the right hand or the left, they are to weigh the evidence on both sides, and then, according to the best of their judgment and understanding, to do justice to the public as well as to the defendants. Before I proceed to sum-up the evidence, I shall only make one other observation, which was made by Mr Whitbread in giving his evidence, the tone of whose voice I never heard before. Having gone through his evidence, he gave us this legacy, as a clue to direct us in the decision of this case-" that, in a scene of so much confusion, there are many things which must escape the observation of every individual." Having stated thus much to you, I will now proceed to sum-up the evidence; and when I have done that, I shall make some few observations on it. [His lordship here summed-up the evidence on both sides, and then proceeded as follows:-] I now proceed to make a few observations of my own. There is no occasion to give you my authority, or the authority of those who hear me, upon this point. There is no doubt that the prisoner was not entitled to be discharged; for, when a verdict of acquittal is entered, a Judge may order a party to be detained, and compel him to answer other charges that may have been brought against him. On this point there is no difference of opinion; it is not even disputed at the bar. The case is clear; and there is no doubt upon earth that a prisoner, in many cases, though he may be acquitted, as in the case of an appeal of murder, cannot be discharged though he be acquitted of the murder. I have stated the evidence on the one side and the other; and although there is strong contradictory evidence, yet I think there is a great deal of evidence which goes in support of the charge. There were some observations made by the learned counsel for the defendants, which, perhaps, were not altogether warranted. Counsel are frequently induced, and they are justified in taking the most favourable view of their clients' case; and it is not unfair to pass over any piece of evidence they find difficult to deal with, provided they cite, fairly and correctly, those parts of the evidence they comment upon. The learned counsel for the defendants, in his remarks on the evidence, totally forgot the evidence of Mr Parker. If his evidence is to be believed, and I know no reason why it is not, he certainly gave important evidence in support of this charge -that the defendants evidently appeared to be attempting to stop the officers, and assisting the escape of Mr O'Connor. The learned counsel for the defendants did not choose to deal with this evidence, though he conducted the cause with all possible discretion, abilities, and eloquence. As I have before observed, there is apparently a great deal of contradiction in this cause. I must again state the observation of Mr Whitbread, and which was obvious if he had not made it, that "in such a scene of tumult and confusion, many things must pass which escape the observation of every individual." But there is no doubt of one thing-one thing is clear: if Rivett had not the scuffle which he swears he had with Mr Fergusson and my Lord Thanet, and if he did not wrench a stick out of Mr Fergusson's hand, he is palpably forsworn, and grossly perjured. For him there is no excuse in the world. What motive he might have I do not know he has no interest; and in weighing the testimony of witnesses, I cannot consider the rank of a person, nor his station. It is clear, if he has not told the truth, he is guilty of perjury. In this scene of tumult men's minds must have been greatly distracted. It is for you to say what degree of credit you will give to all the witnesses. These are the observations I have to make; and I should retire from my duty if I had not made them to you. Was It has been said, in the course of this cause, that it was against all probability. Was it probable that an attempt was meditated to effect the escape of a person such as Mr O'Connor, in a court of justice, in a large town, and in a public part of that town? it probable that this man himself should attempt that which, Mr Sheridan said, appeared to him to be an act of madness? Is it most likely that he should have attempted this with hopes of success, with or without assistance? This is matter for your consideration. It is very likely you have forestalled all the observations I have made; but still it was not less my duty to make them. The whole of this case is for your decision. It is a case in which the interests of the individuals, as well as of the public, are highly embarked. At eleven o'clock at night the jury retired; and after being out about an hour, they returned with the following verdict :— VOL. II. THE EARL OF THANET, DENNIS O'BRIEN, Esq., Not Guilty. 2 H |