was objected to, as holding a place under the crown, but the attorney-general insisting * "Where the king is partie, one shall not challenge the array for favour, &c. because in respect of allegeance he ought to favour the king more; but if the sheriffe be a vadelect of the crowne, or other meniall servant of the king, there the challenge is good. And likewise the king may challenge the array for favour." Co. Litt. 156, a. To that part of the above passage which ends with the words-" he ought to favour the king more," Mr. Hargrave has annexed the following note: "Acc. Keilw. 102. a. But lord Hale is of a different opinion; for he expressly allows challenges for favour to prisoners in treason and felony, and consequently so far against the king, 2 Hal. His. Pl. c. 271. Though, too, lord Coke's doctrine should be admitted, the reason he gives for it, which is almost in the words of the case of 22 E. 4, cited in the margin from Fitzherbert's Abridgement, seems rather unsatisfactory; but a better principle to found the rule upon was not unobvious, namely, that from the extensive variety of the king's connexions with his subjects, through tenures and offices, if favour to him was to prevail as an exception to a juror, it might lead to an infinitude of objections, and so operate as a serious obstruction to justice in suits in which he is a party." public not at all; the nation is neither inso- | lent, nor rebellious, nor seditious; while it knows its rights, it is unwilling to manifest its powers; it would rather supplicate admi'nistration to anticipate revolution by well'timed reform, and to save their country in 'mercy to themselves. The fifteenth of 'February approaches, a day ever memorable in the annals of this country as the birth'day of new Ireland; let parochial meetings 'be held as soon as possible, let each parish ' return delegates, let the sense of Ulster be again declared from Dungannon on a day ' auspicious to union, peace and freedom, and the spirit of the north will again become the spirit of the nation. The civil assembly "ought to claim the attendance of the military 'associations, and we have addressed you, citizen soldiers, on this subject from the belief, that your body uniting conviction 'with zeal, and zeal with activity, may have 'much influence over your countrymen, your relations and friends We offer only a general outline to the public, and meaning ❝ to address Ireland, presume not at present to fill up the plan or pre-occupy the mode of its 'execution, we have thought it our duty to speak.-Answer us by actions; you have ⚫ taken time for consideration; fourteen long ' years are elapsed since the rise of your asso'ciations; and in 1782 did you imagine that in 1792 this nation would still remain unrepresented? How many nations in this interval have gotten the start of Ireland? How many of your countrymen have sunk into the grave?'-In contempt of our said lord the king, in open violation of the laws of this kingdom, to the evil and pernicious example of all others in the like case offending, and against the peace of our said lord the king, his crown and dignity.-Whereupon the said attorney-general of our said lord the king, who for our said lord the king in this behalf prosecutes, prays the consideration of the court here in the premisses, and that due process of law may be awarded against him the said Archibald Hamilton Rowan in this behalf, to make him answer to our said lord the king touching and concerning the premisses aforesaid. ARTHUR WOLFE. 6 i And to the words "there the challenge is good," Mr. Hargrave has subjoined the follow ing observations: "Lord Coke having immediately before expressed that the array shall not be challenged for favour against the king, he must be here understood to consider being a vadelect or other menial servant of the crown, as a principal challenge to the array, for otherwise he would be inconsistent; unless indeed, he is supposed in the first instance to state a general rule, and in the second an exception to it, which, as his words are, would be a strained construction. It is also strong evidence of lord Coke's intending to give this challenge to the array as a principal one, that he elsewhere represents being a servant of Thomas Kemmis, Attorney. either party, where the suit is between subReceived the 8th of June 1793.-(Copy)jects, as a principal challenge, both to the To this information Mr. Rowan appeared by Matthew Dowling, gent. his attorney, and pleaded the general issue-Not Guilty--and the Court having appointed Wednesday the 29th day of January, 1794, for the trial of the said issue, the undernamed persons were sworn upon the jury: Sir F. Hutchinson, hart. John Read, Upon calling over the jury, John Read, array and to the polls. See suprà and also allow this sort of exception to a juror to be post. 157, b. However lord Hale will not for treason or felony, citing for authority more than a challenge to the favour in trials from Fitzherbert's Abridgement, a case in 3 H. 6. which is a decision in point by the whole court; to which may be added the dictum in the year book of 4 H. 7, 3. Also the practice since lord Hale's time, seems to have accorded with his doctrine, there being subsequent instances in print, in which such an exception when taken to the polls has been disallowed, but not one I believe of its being received. The instances of disallowing upon the illegality of the objection, and observing that it went against all that was honourable and respectable in the land, it was over-ruled by the court. Richard Fox, when called to the book, was interrogated whether he had ever given an opinion upon the subject then to be tried, to which he answered, that he did not know what the subject of the trial was. The same question was put to Thomas Sherrard, who returned a similar answer. Joshua Dixon, who had been sworn upon the jury, without any objection, here stated, that he had given an opinion upon the subject, upon which Mr. Attorney-general consented that he should be withdrawn, but protested against the right of the defendant's counsel to examine the jurors as they had done. If they had any objection, they ought to make their challenge, and support it by evidence. Counsel for the Defendant.-Mr. Curran, [in 1806 master of the rolls]; Mr. Recorder; Mr. Fletcher [afterwards one of the justices of the court of Common Pleas.]* Agent.-Mr. Dowling. Mr. Ruston opened the pleadings.] Mr. Attorney General My Lord and Gentlemen of the Jury: In this case, between the King and Archibald Hamilton Rowan, Esq. it is my duty to prosecute on behalf of the crown. The traverser in this case, gentle. The counsel for the defendant answered, that they would not acquiesce in the consent of the attorney-general to withdraw the juror, if their examination was to be objected to; and intimated that the juror ought to be with-men, stands accused upon an information drawn upon the desire of the attorney-general, without any consent whatever being entered into. the exception as a principal challenge, to which I shall refer, are Mr. Hampden's trial in the King's-bench, Hill, 36, Cha. 2, for a misdemeanor, and sir William Parkyns's at the Old Bailey in 1695, for high treason. Sce State Trials by Howell, vol. IX. p. 1057; and vol. XIII. p. 75. In the former the point was sharply argued, on challenges by Mr. Hampden of two jurors for having offices in the king's forest; and as the counsel for Mr. Hampden relied on lord Coke, and on Rolle's Abridgement of the case of 22 E. 4, here cited by lord Coke in the margin, as the ground of his doctrine, so the court adjudged against the exception as a principal challenge, on the authority of the case of 3 H. 6, cited by lord Hale. In the latter, sir William Parkyns challenges two for being servants of the king; but was informed by lord Holt, that it was no cause of challenge. The first of these instances was a direct adjudication; but, however, it loses part of its weight, in consequence of having occurred in an ill time, whilst lord Jefferies presided in the King's bench, and of being accompanied with ungracious and unbecoming language from him in respect to both Coke and Rolle. This second was rather an extra-judicial opinion, because the counsel for the crown consented to put by the jurors objected to, on the ground of being king's servants, unless there should be a defect of other jurors, which did not happen. But lord Holt declared against the challenge, in the most absolute and unreserved terms, as if it would not bear arguing." On this subject see also, Hawk. P. C. ch. 45, sections 32 and 33, cited ante, Vol. IX. p. 1057.. filed er officio, by the king's attorney-general, for publishing a seditious libel. It is my duty to lay the facts of this case before youit will be the duty of another of his majesty's servants to observe upon the evidence. I shall state the nature of the charge and the questions you are to try: I will then state such circumstances as are necessary to be taken into your consideration, for the purpose of understanding and expounding that paper which the information charges to be a malicious and seditious libel. The information charges, that Archibald Hamilton Rowan, maliciously designing and intending to excite and diffuse amongst the subjects of this realm discontents, disaffection, and disloyalty to the king and government, and to raise very dangerous seditious and tumults, and to draw the government into scandal, infamy, and disgrace, and to incite the subjects to attempt, by force and with arms, to make alterations in the government, and to excite the subjects to anarchy, to overturn the constitution and overawe the legis lature of the kingdom, did publish the libel set forth in the information. In this case, therefore, it will be for you, gentlemen, upon the evidence which shall be laid before you, to determine whether the traverser has been the publisher of that paper or not. I shall, in the course of what I am to offer to the court and to you, read the very libel itself, and make such observations as occur to me to be proper in the present state of the business. Previous, however, to my doing so, I will take the liberty, gentlemen, of stating to * Mr. Emmet and some other gentlemen, who had been originally concerned in this cause, as counsel for the defendant, feeling a personal interest, declined any longer acting in that capacity. Orig. Ed. a you some facts and circumstances that appear | proved ;- the civilization of the country proto me deserving of attention in the investiga- ceeded uniformly from year to year; - the tion of the matter before you; and in doing commonalty began to enjoy blessings they so, I shall carefully avoid mentioning many had been strangers to-ships crowded in our facts and circumstances which those disgrace- harbours-commerce occupied our ports--ful times have furnished, that might lead your -culture in our fields, and peace and happiverdict one way or the other. I shall not ness every where prevailed. The French attempt to excite your passions. I am happy revolution took place, when there were found at length that this case has come before an many mell, who from situation, from circumimpartial jury. It has long been the desire stances, from ambition, were desirous of comof every good man that this matter should motion. Clubs were formed in the metropolis come to trial before that constitutional with the avowed intention of improving the tribunal who stand arbiters in this case, to constitution, for they must assume some preprotect the accused against the power of the text; but with a view, I fear, under colour of crown : not resembling any of those prosecu- that, to overturn it They subsisted here in tions which the turbulence of former times this town under different names, till at length have excited, you are assembled, with that in 1791, they formed themselves into a club, coolness which the solemnity of the occasion called “The Society of United Irishmen,"conrequires, to determine whether Mr. Rowan be sisting at first of a small number, composed guilty, criminally, of the offence charged of various classes of men, certainly some of against him. Take the libel into your them of the learned professions, some of the consideration, and determine, as the law lowest members in the community. In 179L now allows you to do, whether it be a they continued to pour upon the public daily libellous publication, tending to excite sedi- publications, setting forth the distresses of tion, to overawe the government,-or tend the people, teaching them to be discontented ing to produce any of the effects imputed with their situation and the government of to it. the country. Things thus proceeded down to I shall now proceed to state a few facts the latter end of the year 1792. which I said it was my duty to do. I shall In the latter end of autumn, 1792, the allied call your attention to the history of the times armies retired from the kingdom of France : about which this libel was published :-No the convention of that kingdom began to hold man, let his situation be what it may, can be a high language, and to talk of oversetting too cautious in uttering what ought not to be the government of kings. An attack was said, which might influence your judgment made upon regal authority, a spirit was stirred upon your daths; and in that office which I among those desirous of such schemes-it hold, which is the office of the people as well seemed to inspire them. There was a talk of as of the crown, it is more than a common overturning the government of king, lords, duty to take care not to step beyond that line and commons—success at the same time which leads to common justice. I am war- seemed to crown the arms of the French; ranted by the authority of a court of justice, they advanced beyond their own territory, - by the proceedings of the King's bench in and menaced an attack upon the United States England, -by the opinion of a judge of as of Holland. In this situation of things, there much spirit and independence as any man, did pervade a gloomy apprehension for the I allude to the case of the printer of the safety of the country. Emissaries from Morning Chronicle, in which lord Kenyon in- France were spread throughout Europe; a forms the jury,* that it is necessary in cases new array of a new corps was made in Dublin of this kind, to attend to the circumstances in the noon day, decorated with einblems of and history of the times in which the libel sedition; they were to parade in your streets, was published. They tend to explain the and to be marshalled in your squares. The motives which induced the publication, and volunteers of Ireland, ,-a name revered by the meaning of the libel itself. He says it is this country and by every good man loving impossible for the Court or a jury to shut their the constitution, that sacred name ears against the history of the times. Be- | made a cloak for arming a banditti, which sides that common principle, I am the more arraigned the constitution and degraded the justifiable in what I shall state, because the name of volunteer; a national guard was libel charged comes from that body of men formed upon the plan of those in Paris. who have constituted themselves by the It is notorious to every man in Ireland, to name of “ The Society of United Irishmen in every man in the British dominions, that such Dublin.” From the time of the restoration men assembled with clothing of a particular of our constitution—from the year 1784—to uniform, with emblems of harps divested of the the year 1792, this country advanced in pros- royal crown;--every thing was undertaken perity with a regular progress and gradation. to spread the spirit which animated themThe agriculture, commerce, and police im- selves; and can any man forget the situation of Dublin in September, October, and NoSee lord chief justice Kenyon's charge to vember, 1792, which caused apprehensions in the jury in the caše of Lambert and others, those who were well affected to the governantë, p. 1017. ment and tranquillity of the country? Can VOL. XXII, 3 X was a any man forget the state of the nation at this period? her credit was shaken, good people stood appalled; those loving peace stood astonished at the languidness of government. At length that government came forward which had never slept, but had been proceeding with mildness, determined not to go forth to action, nor have recourse to any severer remedies until every man in the state, who had a moment's reflection, must see the necessity of the exertion. The troops are summoned to meet, the guards are suminoned, to assemble, and the first battalion of national guards were to have paraded, clothed like Frenchmen. The night before, the lord lieutenant had summoned the council of the kingdom; upon that night, a proclamation, issued, stating that there were intentions to assemble men in arms, with seditious signs; and apprehending danger from their so assembling, it prohibited their meeting. The proclamation issued on a Saturday night, and it produced that satisfaction which all good men desirous of order seek to enjoy; and they felt once more the pleasurable assurance that they had a government. Appalled by this proclamation, the corps did not meet on the 8th of December as it was intended, though some few were seen dressed in the national guard uniform, parading the streets with a mob crowding at their heels; but however nothing followed. They were seen, and, blessed be God! they were seen no more. This proclamation, having for its object the preservation of the peace of this kingdom and the city in particular, mildly and coolly cautioning all men against those measures, held out the consequences that must necessarily follow, if they did not obey; ---a proclamation which received the applause of the great and good, of the lovers of society, and of every man not lost to the sense of order and the constitution; but odious to every man who was attached to the Society of United Irishmen, and whose views corresponded with it. While I speak of that society let me not be understood as imputing to every man who is in it, those illegal motives which I impute to the society in general: there might have been in it, no doubt, many well meaning persons, for there were men picked up industriously to lend their names, in the streets, in the lanes, in the markets, in the highways, and in the fields, even the rich and industrious grazier was procured to lend his name. To the good, this proclamation gave pleasure and satisfaction, to the bad it became odious and detestable; and they accordingly formed the intention of bringing the government into disgrace for issuing that proclamation. A few days after, I am not aware of the particular day, but a few days after the issuing the proclamation, the society assembled; the proclamation was upon the 7th, the address I speak of was published the 16th of December. The meeting therefore must have been between the 7th and the 16th of De cember. The society, I say, assembled, and they agreed upon a certain address to the volunteers of Ireland, and Dr. Drennan is there stated to have been in the chair, and the traverser secretary, at that meeting. At that meeting the address to the volunteers was agreed upon, which is the libel charged against Mr. Rowan as being guilty of publishing it. Under that address, this was to be done :--the volunteers of Dublin were to be called into action, and those papers were to be dispersed among them. For that purpose the several volunteer corps at that time existing in Dublin were summoned to assemble in a house in Cope-street, belonging to Pardon, a fencingmaster, upon the 16th of December. Accordingly upon that day, the several corps of volunteers did go with side arms to this fencing-school in Cope-street. The traverser was, I believe, at the head of one of these corps; another very celebrated name was at the head of another of them, James Napper Tandy. Who was at the head of the others I am not able to inform you. But in the afternoon of the 16th of December, several volunteers with uniforms and side arms, assembled in the fencing-school. In this fencing-school, gentlemen, there was a gallery, and into that gallery there was such public access that what passed below may be said to have passed in the face of the world; to such excess had those persons carried their designs, as to expose them to open view; and if I state what is not true, there are one hundred persons in the volunteer corps of the city of Dublin, out of whom a multitude may be called to contradict me. The corps, I say, assembled in that room. There stood in the middle of the room a table, and there was a vast number of printed papers brought in and placed on the table. The different corps entered into several resolutions, having taken into their wise consideration the proclamation issued by the lord lieutenant and council; the necessity for issuing it is investigated, each of the corps took severally into their consideration the propriety of it, and next day published their different sentiments all expressive of strong disapprobation. So that it is manifest they were brought publicly together for a state purpose, and to debate a state matter. While these resolutions were in discussion, Mr. Tandy and Mr. Rowan were seen to take from the table the printed papers that lay upon it, and disperse them among the several volunteers who stood around them, and to hand them from the lower room to persons in the gallery, and to persons not in their confidence; they were handed up promiscuously to any man there, and to many persons in the streets, that evening and the next day; they were flung out of the windows to the mob that stood round the room. These, gentlemen, are the circumstances which preceded the publication of this paper by the traverser: it will be for you to consider with what view and purpose a paper dangers apprehended,) "or whence, if not to create that internal commotion which was not found, to shake that credit which was not affected, to blast that volunteer honour which was hitherto inviolate,"-What! did the proclamation forbidding seditious associations and assemblies of men, with banners expressive of disloyalty, violate the honour of that glorious institution, which was raised to protect and support that constitution, which those seditious men, calling themselves volunseers were assembled to destroy, and this society of United Irishmen did wish to overturn? That is what is stated in this, for so I will call it until you teach me another language,-this abominable, seditious libel. like this was composed and thus dispersed. | "Are those terrible suggestions and rumours and whispers, that meet us at every corner, and agitate at least our old men, our women, and children? Whatever be the motive, or from whatever quarter it arises, alarm has arisen; and you, volunteers of Ireland, are therefore summoned to arms at the instance of government, as well as by the responsibility attached to your character, and the permanent obligations of your institution."First you will observe, gentlemen, they make This brings me now to the libel itself, and the ancient volunteers those whose honour as it has not been read to you in this court, was wounded and blasted by the proclamafor in open court I wish it to be read, I will tion, and then they tell them that the proread it, and make such observations as I clamation has summoned them to assemble think necessary. "The Society of United in arms-strange inconsistency of rhapsody! Irishmen, at Dublin, to the volunteers of With regard to such parts as are unintelli. Ireland. William Drennan, chairman, Ar-gible, for there are many parts the most bomchibald Hamilton Rowan, secretary. Citizen soldiers;"-a language, gentlemen, which excites ideas in one's mind that cannot be described. You will perceive in this publication the frippery of the French language as now used; and those ideas will be excited, which must fill the mind of every man who regards religion, society, or peace, with terror and alarm." Citizen soldiers; you first took up arms to protect your country from foreign enemies, and from domestic disturbance. For the same purposes it now becomes necessary that you should resume them."-The society of United Irishmen, who say they are no corporation, yet as if they were a corporation, presume to tell the armed people of Ireland when it is they should assemble: is that or is it not tending to sedition? Is it or is it not assuming a power to overawe the parliament and overturn the government itself?" A proclamation has been issued in England for embodying the militia, and a proclamation has been issued by the lord lieutenant and council in Ireland, for repressing all seditious associations. In consequence of both these proclamations, it is reasonable to apprehend danger from abroad, and dan ger at home. For whence but from apprehended danger, are those menacing preparations for war drawn through the streets of this capital," (alluding to some cannon which were drawn through the streets a few days before to protect the inhabitants against the bastical and absurd that ever appeared in any publication, I pass them over; it is not my wish to criticise upon them. "We will not at this day condescend to quote authorities for the right of having and of using arms." Who had called in question the right of the people to carry arms? Is it because the government said, that arms should not be used to the destruction or danger of the people, that therefore the legality of carrying them is questioned?" But we will cry aloud, even amidst the storm raised by the witchcraft of a proclamation,"-is that a direct charge against government, that they laid a scheme to raise a storm?" That to your formation was owing the peace and protection of this island, to your relaxation has been owing its relapse into impotence and insignificance, to your renovation must be owing its future freedom, and its present tranquillity. You are therefore summoned to arms, in order to preserve your country in that guarded quiet, which may secure it from external hostility, and to maintain that internal regimen throughout the land, which superseding a notorious police or a suspected militia, may preserve the blessings of peace by a vigilant preparation for war."Now, gentlemen, here you see a reflection cast: if they meant to state a grievance, or to reason upon a point of constitution, why not do it?-They had a right. But does that mark the meaning and intention of the publication? Why reflect |
