the

sons only cannot be guilty of a riot, this indictment in effect failed: the other was ignored. When these proceedings were announced to the Court on the 2nd of January, attorney-general expressed his surprise at the result, in language not very temperate. "It is needless to observe to the Court," said he, "that, according to the technicalities of our law, a riot cannot be committed by only two persons; had even the bills been found for a riot only against all the parties, I would have still felt it to be my duty to adopt the line of conduct I am about to intimate in the pre sence of the Court. I will not arrogate to myself the office of arraigning the grand jury of the city of Dublin; they have discharged their functions in the presence of their God; under the sanction of a solemn oath, taken in the face of their country; to that God alone are they accountable. But I have also a duty to perform-I will, without anticipating the guilt of any individual, state solemnly, in the presence of this crowded audience, that in all my readings-in all my experience-in all the annals of this unfortunate countryI never did find a case so fully demonstrated, of the foulest conspiracy to riot, of so much atrocity as scarcely to be heightened by the aggravation, that its object was, to insult and outrage the representative of the king's majesty in the public theatre. I will exercise the

cond it was charged, that they had com. mitted it with each other, leaving out the cum multis aliis. It was on this second count that the grand jury found the defendants guilty; but as they had not found them guilty cum multis aliis, and as two persons could not in law be guilty of a riot, the finding was not one on which any proceedings could take place.

prerogative, that the law and constitution have given to my office; I will discharge that duty honestly, and with the blessing of God, fearlessly, unintimidated by that gang which have formed themselves into a faction to beard the king's government, to overturn the laws of the country, and even to insult and outrage the very person of the king's representative in Ireland, pursuing the course of outrage and violence from the hostility that they had taken up against that venerated nobleman, for his zeal and firmness in carrying into effect the king's intentions towards Ireland, of allaying the dissentions, and healing the wounds that have afflicted this unhappy country. The course of conduct that my duty directs me to pursue, will be, in the execution of the prerogative annexed to my office, to file ex officio informations, and speedily to bring before the country all the parties charged in these indictments." In the mean time, till the informations could be filed, he held the accused to bail.

On the following day, the judge likewise expressed his surprise at the fate of the indictments: and on the 6th of January, the grand jury, by their foreman, Sir George Whiteford, presented to the Court a strong remonstrance against the insinuations which had been thrown out respecting their conduct. This remonstrance 'concluded with the following words: "It must be recollected, that to us exclusively is the evidence known on which our judgment was founded, and we therefore trust, that this high Court will receive the declaration which we now solemnly and unanimously make, that our decision was the result of a laborious scrutiny of the evi

dence, of a conscientious consideration of its weight, and of a sincere anxiety to adhere to the direction of the learned judge, who so fully and clearly detailed to us the nature of our duties, and the principles by which we were bound to be regulated in discharging them." In the ensuing Hilary term, informations ex officio were filed, and the rioters were put upon their trial in the beginning of February. The proceedings lasted several days, but were ultimately ineffectual: for the jury, after being shut up from the afternoon of Friday to the noon of Saturday, and having been several times sum moned into court by the judge, were unable to agree, and were discharged without having returned any verdict. The attorney-general, being thus once more baffled, intimated, that he would not be deterred by what had happened from bringing the accused again to trial, if he should deem such a course advisable. Subsequently, however, it was not thought prudent to carry the contest with the Orange party any further; and a nolle prosequi was entered upon the informations.

From the evidence produced upon the trial, it appeared clearly that the riot at the theatre had been the effect of a preconcerted scheme, the object of which was, to express publicly the dissatisfaction of a certain party with the government of lord Wellesley. On the other hand, it is equally manifest, that there was not the slightest ground of rational probability for the charge of a conspiracy to murder the lord-lieutenant. A bottle, indeed, was thrown upon the stage

• For the details of this trial see p. 21* of this volume.

from the gallery, but there was no reason for believing that it was aimed at lord Wellesley; and though a fragment of a wooden rattle hit the front of his box, the missile, even supposing its direction to have been the result of design and not of accident, was of too contemptible a kind to permit the use of it to be ascribed to a deadly purpose. In bringing forward the accusation of a plot to take away the life of the representative of majesty, the attorney-general exceeded the bounds both of justice and of prudence: and the undue violence, with which he commenced his proceedings, excited a spirit of resistance, which baffled him in his attempts to convict the accused even of that degree and species of guilt, which he brought home to them by satisfactory proof,

*

A public man, who deserves some blame, generally meets with more than he deserves. Such was the fortune of Mr. Plunkett; who, on this occasion, was assailed with loud clamour, for having filed ex officio informations, after the grand jury had in substance ignored the bills of indictment. The legality of the proceeding was unquestionable: what then was there to blame in it? Was it harsh to the accused? No: he had not exerted against them the full powers of his office, and he had recourse to it, only when the more ordinary means failed. Was it unjust? Justice and injustice have a reference to the community at large; and surely it was no more than he owed to society, as a principal guardian of the laws, to bring to trial, before the eyes of the whole world, individuals against whom there existed the strongest proof of very grave criminality. In the privacy of a grand jury, that proof had

not been reckoned sufficient; but that circumstance afforded no reason against a public investigation, especially in an affair which was notoriously much mingled up with a spirit of faction.

On the 24th of February, Mr. Brownlow, in the House of Commons, moved for copies of the committals of the persons engaged in the alleged riot and conspiracy on the 14th of last December, in the Dublin theatre; copies of the bills of indictment, alleging a riot and conspiracy to riot, which were preferred to the grand jury in the city of Dublin, on the 1st of January, and the finding of the jury thereon; and a copy of the ex officio informations, on the same subject, filed in the court of King's bench by his majesty's attorneygeneral for Ireland. These papers were granted without opposition, though not without discussion. They related exclusively to that head of charge against the legal administration of Ireland, which consisted in the filing ex officio informations, after the indictments had been ignored by the grand jury. On this point, Mr. Plunkett felt himself strong, and therefore did not hesitate to grant all that his opponents required. On the other charge that of having, without sufficient grounds, committed three persons to prison on an accusation of a conspiracy to kill the lord-lieutenant he was not equally compliant. Colonel Barry on the 24th of March moved for copies of the informations, on which the committal of Forbes, Graham, and Handwich, for the capital crime proceeded. Mr. Plunkett, in resisting the motion, stated, that, when he was originally consulted, his first impression was, that the transaction involved nothing, more

than a misdemeanour, and should be proceeded against as such. The investigation continued seven days, during which the solicitor-general and himself attended most assiduously; and in the course of it, it appeared that Forbes went, after he was released, to a tavern in Essex-street, and took part in a conversation about the throwing of the bottle, and the riot: he spoke of himself as so involved in it, that his life might be placed in jeopardy; he said he knew he might be transported to Botany Bay, but he had no objection to suffer that punishment, provided he could have the satisfaction of establishing an Orange-lodge there; that he had only one life, and was ready to sacrifice it for the cause. He complained that the missiles were bad, and expressed his regret that they had missed, and his intention of making another attempt, which, he hoped, would be more successful. All this was proved by the testimony of Mr. Farrell, an attorney, and Mr. Troy, a silk mercer. When he (Mr. Plunkett) heard this evidence, the whole transaction assumed a new character, and it appeared to him, that a deliberate plan to attack the lord-lieutenant had existed, which might have been attended with the most fatal consequences; and under that impression he gave his conscientious advice to the magistrates to commit. Subsequently he had changed his opinion: and he had done so, because, on further examination, it had appeared to him, that the object of the conspiracy was, not to murder the lord-lieutenant, but to compel him to change his measures. The danger to his excellency's life was consequential, and not direct: and, therefore, the crime did not, in the eye of the

law, amount to a conspiracy to murder, though, in truth, it was of a nature not less heinous.

With respect to the depositions of which the production was now called for, he contended that to grant them would be a violation of the constitution, and altogether without precedent. It would be unjust, also, to the magistrates who acted in the case, and who were liable to be prosecuted by the accused parties for having committed them, to put into the hands of the latter beforehand the grounds upon which the magistrates had proceeded. He had never heard of an instance where such a step had been taken. It would be a dangerous precedent to adopt at any time; for no man would come forward and give information against others, if the seal of secrecy, under which he gave it, were to be broken, before the whole case underwent the investigation in a court of justice. Mr. Peel, sir J. Newport, and Mr. Spring Rice, resisted the motion on grounds similar to those stated by Mr. Plunkett: Dr. Lushington, lord A. Hamilton, Mr. Grattan, and Mr. Lambton supported it. At the close of the debate, it was rejected by a majority of 48 to 32. The next step taken in this affair was the presenting, by Mr. Wetherell, on the 11th of April, of a petition from the grand jury of Dublin, complaining of the imputations which had been thrown upon them by the attorney-general for Ireland. This drew from that officer a justification of his measures, and a declaration, that it was the conduct of the grand jury, along with some facts respecting them which had come to his knowledge, that had induced him to file the informations.

On the 15th of April, Mr. Brownlow moved the following resolution: "That it appears to this House that the conduct of his majesty's attorney-general for Ireland, with respect to the persons charged with a riot in the Dublin theatre, on the 14th of December last, particularly in bringing them to trial upon informations filed ex-officio after bills of indictment against them for the same offence had been thrown out by a grand jury, was unwise;-that it was contrary to the practice, and not congenial to the spirit of the British constitution ;—and that it ought not to be drawn into a precedent hereafter." This propo sition he prefaced by a speech, in which he commented on the general nature of informations exofficio-the unprecedented use that had been made of them here—and the particular circumstances of the proceedings in question. The only defence set up was, he observed, that the course was legal. Legal or illegal, would it have been taken in England? He would suppose the secretary for foreign affairs to announce his intention of visiting the theatre; and a set of Englishmen to fancy that the cause of Spain had not been sufficiently vindicated by this country in the late negotiations, and that blame was due to the right honourable secretary on that account. Suppose such a set of men to meet at some coffeehouse adjoining Covent-garden theatre, and to plan an attack upon Mr. Canning with a view to drive him, if possible, from the theatre and from the councils of the king; suppose a bill, on such account, to be presented to a grand jury and ignored; would the English attorney-general venture afterwards to proceed ex-officio?

Would he venture, even if commanded to do so? He (Mr. Brownlow) believed that the attorney-general dared do no such thing that the learned gentleman knew that it would be as much as his situation, perhaps as much as his life, was worth to do so. Then why talk of the thing's being legal? Was the nature of the proceeding changed by occurring on one side of the water instead of the other? Was it meant to contend, that the same thing would be constitutional in Ireland, and yet absolutely intolerable in England? The question (Mr. Brownlow concluded) was not, how far, upon strict law, the proceeding in question could be borne out; the question was-had it been a constitutional proceeding, an expedient proceeding, a proceeding which, under similar circumstances, would have been adopted in this country? Mr. Plunkett showed, by legal precedents, that ex-officio informations might be, and had been, filed, after a grand jury had rejected indictments for the same matters: and he contended, that, if the crown were to be excluded from this course, the effect would be, that the attorney-general would be driven to have recourse to the prerogative of his office in every case, instead of proceeding in the first instance as a common prosecutor: for what attorney-general would prefer an indictment, if the finding of a grand jury-however erroneous-however clearly emanating from mistake or prejudice -were to deprive him of the means of putting the accused upon their trial. His conduct in this particular case he justified by impeaching the finding of the Dublin grand jury, the conduct which they had pursued, the motives by which

they had been actuated, and the mode in which the panel had been framed. Had he acquiesced in their finding, the ends of public justice, he argued, would have been defeated. Thirteen witnesses had been examined before that grand jury, exclusively of other witnesses produced on the subsequent trial: and any impartial person, looking at the evidence, would at once declare, that there was no part of the bill of indictment, whether it referred to the conspiracy, to the riot, or to the assault, that was not completely proved. There was no no sound mind that would not admit, that the men, who could have brought themselves to such a conclusion as the Dublin grand jury had, could not have arrived at it by legitimate means. It had been distinctly proved, that a plan had been formed to commit a riot; that, in furtherance of that plan, a number of persons assembled at the theatre; that a missile had been thrown by Graham; that Forbes had gone the day before to the theatre to buy tickets for the purpose of packing an audiencethat Forbes was taken with the whistle in his hand with which he incited the rioters; that, at a subsequent meeting at a tavern, he had expressed his concern at the failure of their purpose, and his hopes of success on a future occasion. Yet, with such evidence, the grand jury ignored the bill: and their reason for doing so could not be mistaken. It was his (Mr. Plunkett's) conviction, that they, the grand jury, conceived the plan of these rioters to be a very right and proper plan. They conceived, that, when the lord lieutenant, in compliance with the expressed desires of his sovereign, had ex