Robert Holmes defence of John Mitchel 1848.

by Robert Holmes (Barrister)

May it please your lordships, and gentlemen, I am counsel for the prisoner, John Mitchel; and I am well aware of the important duty which devolves on me this day, as counsel for that gentleman, and also of my inadequacy to discharge that duty; but I will avow, that I feel proud of being selected on this occasion by Mr. Mitchel, because I believe in my heart that he is an honest man, sincerely attached to the principles he avows—and no doubt which he avows boldly—and although the Government of this country may fear him, or hate him, they cannot despise him. “Gentlemen, having thus said a word respecting the prisoner as to character, I shall now proceed with his case. The Attorney-General has fairly stated the case on behalf of the Crown, and has read very fairly all the publications respecting which Mr. Mitchel stands indicted and there is only a part, and one part only of the Attorney-General’s statement to complain of, and that is the conclusion. I do not think he was warranted in stating in this court what instructions he or those connected with him, received from the Chief-Governor of this country with respect to the striking of the jury; I think the Crown should never know anything of striking juries—not a word—or give any instructions on the subject; for if the Crown can do it, with respect to giving fair instructions, it—

[Attorney-General interrupted to say he received no instructions from the Lord Lieutenant].

“Well, my lords and gentlemen, I may be mistaken, but I misunderstood him to intimate that his instructions were from the Lord Lieutenant: I may be mistaken in that; but there is yet something in the Attorney-Generals concluding statement I cannot be mistaken in, and with which I find fault. There was, as you are aware, a challenge to the array in this case on the part of the accused, in consequence of information he had received, to the effect that those whose duty it was to empannel an impartial jury had not in all instances done so, particularly with respect to Roman Catholics. That issue was raised and questioned, and the triers found, on their oaths, that the panel was a fair and impartial one; but what do I find then? I find that of this fair and impartial jury—found to be so by two respectable citizens—the Crown strikes off no less than thirty men, eighteen of them Roman Catholics. There can be no doubt on that subject—therefore I will at once dismiss it. “In this case, gentlemen, the prisoner, John Mitchel, stands charged with two distinct offences and it is somewhat remarkable that, in support of those two distinct offences, the very same evidence is given to support both.

The Attorney General will be very well satisfied, no doubt, if you give your verdict on both or either charges, or for anything, like the foreman of the Grand Jury who found the bills. The foreman of the Grand Jury, gentlemen, having been asked if the jury had found bills against the prisoner—replied— ‘Oh yes, we find him guilty of sedition.’ ‘Gentlemen,’ said the officer of the court, ‘he is not indicted for sedition.’ ‘Well,’ said the fore man, ‘we find him guilty of treason.’ ‘But, gentlemen,’ again interrupted the officer, ‘the charge against Mr. Mitchel is for felony.’ ‘Oh, no matter!’ said the foreman, ‘sedition, treason, or felony, it is all the same to us.’ And so with the Attorney-General: if you convict the prisoner, that is all that he wants. Gentlemen, as the court will tell you, the question in this case is not whether Mr. Mitchel may have committed in these publications other offences; if you think him guilty of high treason, you ought not to find him so, for you must believe him guilty of one or both of the charges made against him, or find a verdict of acquittal. The first charge is, ‘that he compassed, imagined, invented, devised, or in tended to deprive, or depose our most gracious Sovereign the Queen, from the style, honour, or royal name, of the Imperial Crown of the United Kingdom.’ I can understand deposing the Queen from the throne perfectly well. I can understand an attempt made on the life of the Queen perfectly well, or expelling her from her dominions but I do not, for the life of me, know what it is to depose her ‘from the style, honour, or royal name of the Imperial Crown of the United Kingdom.

If Mt Mitchel was indicted upon another section of this statute, for ‘intimidating both, or either, of the Houses of Parliament,’ I could understand the evidence here as applicable, perhaps, if it were alleged that by so doing he got them to pass an Act to increase the Irish representatives from one to two hundred, but I cannot understand this charge; for, notwithstanding that he did so, the Crown would not be affected in the least ‘in the style, honour, or royal name, of the Imperial Crown of the United Kingdom;’ she would be still as she is, and have the same title. I am not accusing the Attorney- General of a blunder in drawing the indictment, for he has followed the Act, but we must have Acts of Parliament that we can understand; and I defy any man to understand what it is to deprive her Majesty of the style, honour, and royal name of the Imperial Crown of the United Kingdom. The importance of this consideration would appear from the first section of the article, which declares: — “‘That from the 1st of January, 1801, the Kingdom of Great Britain and Ireland shall be for ever united by the name of the United Kingdom of Great Britain and Ireland, and that the royal style and title appertaining to the Imperial Crown of the United Kingdom, and all the armorial bearings, etc., shall be such as his Majesty, by his royal proclamation under the Great Seal, shall appoint.

Now, I can understand anything done to deprive the queen of her title of Sovereign of the United Kingdom; but, as I said before, I cannot understand depriving her of ‘the style, honour, and royal name,’ as laid in this indictment. What the deprivation is I cannot comprehend—therefore I cannot understand this charge against the prisoner. What is the other charge? It is ‘advising or intending to levy war against her Majesty, her heirs or successors, living in any part of the United Kingdom, by force or constraint, to compel her to change her measures or councils.’ What measures? What councils? Is there the slightest evidence here as to what measures or councils these publications purported to change? Are you, gentlemen as a jury, to grope in the dark? Are these publications calculated to force the Queen to alter her measures with France, or America, or any other country on the face of the earth? What the measures are the prisoner wants to change, I cannot understand. What have been the measures of this session of Parliament for the improvement of Ireland? The Poor-law. That is the only measure I know of, and has Mr. Mitchel endeavoured to change it? Not in the least; therefore I ask my learned friend, the Attorney-General, or the gentleman who will follow me for the Crown, to tell you, on your oaths, what course or measure it is my client has endeavoured, ‘by advising the levying of war,’ to force the Queen to change. I would be glad to hear, even now, if the Attorney-General would condescend to inform me. I have no objection to let him mend his speech, if, by doing so, he can tell you any measure or council Mr. Mitchel endeavoured to compel her Majesty to change by trying to levy war. Gentlemen, this is a criminal case, and it is incumbent on those who make the charge to prove it as clear as light—to prove a specific offence under the statute. The Crown, I admit, have done all they could—they have followed the Act of Parliament; but they have not proved that Mr. Mitchel has tried to levy war against the Queen, ‘to compel her by constraint to change her measures or councils.’ I put it to your lordships, that, under this Act, unless the Crown prove a specific measure or council that the prisoner wanted to have changed by these publications, he is entitled to an acquittal; and therefore, I apply myself further to the case—I would wish to have your lordships’ opinion on the subject as to what is to be left to the jury. If your lordships do not wish to interfere at this stage of the trial, I will of course proceed—

[Lefroy stated that whatever the charge was appeared on the record, and the court would refer to it].

Will the learned gentleman tell the jury what measures—what councils are those laid in this Act of Parliament which Mr. Mitchel has conspired against, and upon which, if you convict him, he will be transported for life? Will he leave the jury in that state of uncertainty; and if he does not think otherwise, it will be my duty to go fully into the case. It is not my duty here to tell you, gentlemen of the jury,—and if I did you would not believe me—that there are very strong expressions used by my client in those publications. There are, and he avows them, and many of those expressions I also avow, and I want to try this case of felony between the Crown and the accused, which I cannot do without calling your attention to something of the history and the present state of Ireland; and, with that view, I tell you, in the first instance, that Ireland is an enslaved country. A great mistake is entertained by many persons to the effect that there cannot be slavery—that no man can be a slave unless he be in chains, or subject to the lash of the planter like the negroes; but the slavery of which I speak is the slavery of the people, which consists in this, that they do not make their own laws themselves—that they do not make the laws by which they are governed, but that those laws are made by others, and I say it boldly, that a people so circumstanced are in a state of slavery.

[Lefroy said the court were reluctant to interpose, but the course pursued by Mr. Holmes was calculated to embarrass them in the situation they occupied, by introducing objectionable matter, to which, if they did not express their dissent it might make them liable to the imputation of having approved the line of argument advanced by Mr. Holmes].

I am the last man to press upon the court that which I had not a right to do; and I think it impossible to do justice to my client without doing justice to Ireland also.

[Cheers, which Baron Lefroy called upon the Sheriff to suppress].

The Act of Parliament under which Mr. Mitchel stands at the bar does not prescribe one punishment—it might be for two years’ imprisonment, or seven years’ transportation, or transportation for life—and if there should be a verdict of conviction, is it not important to show all the circumstances of the case, and the provocations under which my client has acted in those publications. I think it is quite essential to his case, and, with that view, the line I have prescribed for myself is quite necessary for his defence: my client may be guilty of felony, but I say it broadly and boldly that England is the cause of the offence of which he is accused, and I will demonstrate it. I care not by what means you have been empannelled. I address you because I believe you to be honest men and faithful Irishmen. Take nothing from me; I will state on high authority:—‘What does the liberty of a people consist in? It consists in the right and power to make laws for its own government. Were an individual to make laws for another country, that person is a despot, and the people are slaves. Where one country makes laws for another country (and that England in making laws for Ireland, I will demonstrate, by which Ireland is enslaved), the country which makes the laws is absolutely the sovereign country, and the country for which those laws are made is in a state of slavery.’ I give that upon the authority of an Englishman—an honest man in his day— Blackstone. And what does he say? In Constitutional questions he will not be suspected or accused of being too much in favour of popular rights, he says:—‘It follows from the nature and constitution of a dependent state, that England should make laws for Ireland’—(treating Ireland as a conquered country, he is arguing that England had a right to do so). ‘Ireland’—(this is a conquered country)— ‘conquered, planted, and governed by England, it might be necessary that it should be subject to such laws as the superior state thinks proper to prescribe.’ In speaking of this country, Ireland, he (Blackstone) maintains that because Ireland had been a conquered country in his days, Ireland of the present time, and for posterity for ever, should be bound by such laws as the conquering state thinks proper to make for her. Accordingly, England, except for a period of eighteen years, did make laws for Ireland. There was a celebrated statute, called ‘Poyning’s Law,’ passed in the reign of Henry the Seventh, by which it was enacted by the English Parliament, that the Irish Parliament should not have the power to pass any law for Ireland unless it was first approved by the King and Parliament of England; and at a later period, in the reign of George the First, an Act was passed declaring expressly in words that England alone had the right to make laws for the government of Ireland, so that England, by that law, declared that no law could be passed for Ireland, unless they permitted it but that the English Parliament alone had the power to make those laws. I question will the able lawyer who, in the course of his eloquent address, put questions to me, deny the accuracy of what I state. Let him controvert it if he can—that down to the present time Ireland has been deprived of the power of making laws for herself. It happened that some years after that a body of men appeared in Ireland— armed men—the glorious Volunteers of 1782.

At that time the Parliament of England for a while did justice to this country—they repealed that Act of Parliament declaring that England had the right to bind Ireland, and declared solemnly by that Act passed in 1783, and from that period England announced that Ireland had the power to make her own laws, and that the King, Lords, and Commons of Ireland, and no other had power to make laws to bind Ireland. After that solemn Act, in eighteen years—in less than twenty years—the Act of Union was carried. By that Act of Union Ireland is said to be represented in the English Parliament by one hundred members, whilst the English Parliament is composed of five hundred—five members to one. Does Ireland—will the learned and able gentleman, the Attorney-general, now say that Ireland makes laws for herself? There never was, in the history of nations, so flagrant an Act as the passing of that Act of Union in this country. What was the Irish Parliament then chosen to do? To make laws, the ordinary laws, and it had no more right to delegate its powers for that purpose—it had no right to surrender the solemn obligation committed to its charge by the people-—to conspire with the English Parliament to annihilate itself—than I had.

What would be said of the English Parliament should it delegate its authority to make laws for England or to change anything at present existing, and make an absolute state? She would have just the same right to do so as the Irish Parliament had to destroy itself: and I say it boldly and broadly, as a man, that the Act of Union is only binding as a thing of expediency. Men will often submit to a certain order of things rather than run the risk of subverting, by force of arms, the state of things as established. No man, upon slender grounds, should endeavour to subvert the order of things; but it is the right of an enslaved country, and the laws of Providence approve the right, to arm and right itself. What man here would live—”

[Lefroy said they could not listen to this; they could not suffer the case of the prisoner to be put to the jury founded on the subject of Repeal of the Union by force of arms.]

I will make it appear by the conduct of England, and with respect to this very question of Repeal, that England has been the cause of the present state of this country. The English ministry, by this very question of Repeal, has brought this country into the unfortunate state in which it now is. By their duplicity on this question they are the guilty persons, and not my client. The question of Repeal has been agitated for several years in this country. Mr. O’Connell whose powers of mind, and great popularity we all know, bearded the Whigs and the Tories for years on this very question, and, at the same time, the government were determined that the measure should never pass. They had declared it should never pass— that they would prefer a civil war, and yet that same government suffered Mr. O’Connell to agitate that question for years. Was that weakness or guilt, or both?

In the year 1831, I believe there was a Whig ministry then in power, Lord Althorp said, in reference to Repeal— “Is it not evident that Repeal must produce a separation of the two countries? I trust that those persons engaged in a course so dangerous to the peace and prosperity of the country, will not succeed; but if they do, it must be a successful war, and I know that most of my countrymen (meaning the English) feel assured that such an event would be attended with complete success,’—that is, Lord Althorp’s countrymen would vanquish the Irish, and prevent the Act of Union from being repealed. He stated that the Repeal of the Union would end in separation— that he would prefer a civil war, and his country men would be victorious in that war, and after that declaration was made, the present prime minister and his colleagues suffered that question to be agitated in this country, in the manner we all know. I say, if it were an honest resolve, and that Repeal would lead to separation—that he preferred civil war rather than suffer the Act to be repealed—they should have passed an Act of Parliament making it high treason to attempt to repeal the Union. That would be a bold step, I admit, which no man could justify, but it would be an honest, open and bold one. We could have understood the thing; but they suffered a man to be entrapped into what they now complain of. They permitted a struggle for Repeal, while they themselves were parties to it, and they continued this agitation of a measure which, they asserted, should end in separation and their last act is the prosecution of an unfortunate Irishman for agitating the question. It might be asked, was there any prosecution for that? There was a prosecution, they all knew the fate of that prosecution, and that it ended in the defeat of the Crown. Mr. O’Connell survived it—he gave the agitation a magic meaning—he called it ‘moral force,’ and was suffered to agitate the question, which he did to the last hour of his life, in this country.

But, although the Whig government foresaw that, if granted, it must end in separation, they made no law against attempting to repeal it. Nay, more, they restored Mr. O’Connell, the head and leader of the agitation, and several other Repealers besides, to the commission of the peace; and yet now they say it is an offence under this new Act of Parliament to deprive the Queen of the style, honour, and royal name of the imperial Crown. I say, and every man must agree with me, that the very government that has instituted this prosecution, have been themselves the greatest cause of bringing this country into the wretched state in which it is. My client may be statutably guilty, but they are morally guilty. It is laid down distinctly, by Blackstone, vol. i, p.147, that the people have a right to have arms, and to use arms against oppression. I am not wantonly or wilfully broaching doctrines of my own, but address you on constitutional grounds and principles ; and can refer to high authorities and historical facts in support of every word I utter. The doctrine of Mr. Mitchel and others is condemned by the wealthy. There are men—and they are chiefly to be found in what are called the better ranks of society— excellent men—religious men—moral men—kind men—but if all mankind were like them we would have no such thing as liberty in the world. Peace in their time is their first prayer; and their highest aspiration, to enjoy the good things of this life. They are consoled for the misfortunes of others by the reflection, that the sufferer here is only in a state of trial, on his passage to another world— that other world, where the tyrant must account for his oppression, and where the slave will be relieved from bondage.

Oh, Ireland! Ireland! Ireland! thousands, and thousands, and thousands of thy children, have for ages been obliged to look to that other world alone for release from their destitution. From past times let us turn to the present time, and what do we see? An Attorney-General, an able lawyer, under a special commission, a most successful prosecutor. Death has followed his footsteps, and it is asked, ought not the assassin to suffer for his crime? Yes, but in the history of the civilized world, and of free nations, has there ever yet been a nation of assassins? No; assassination is the crime of the untutored savage, or the brutalised slave. Is the assassin to suffer for his crime? Yes; but deep, deep, deep, is the guilt of England in its unprovoked invasion and unjust dominion in Ireland. At the close of seven centuries of wasting wars—wasting laws—and still more wasting policy—it is found necessary to maintain that dominion in Ireland by special commissions, state prosecutions, and military force—by the gibbet, the jail, and the sword. I have heard much in praise of the present Chief Governor of this country, and it is neither my province nor my wish to say one word in derogation of his name; but I will say that be that noble lord the best of the good—the wisest of the wise—the bravest of the brave—he cannot long maintain a connexion between England and Ireland, under a common crown, by the gibbet, the jail, or the sword—the laws of eternal justice forbid it. How is that connexion to be maintained? By Justice—— by giving to Ireland her rights—her rights by nature, and her rights by compact,—by giving to her her own Parliament, truly representing the interests of her people. By giving to Ireland that, they might have the two countries united for ages under a common Sovereign, by a community of interests, and an equality of rights—by mutual affection and reciprocal respect; but if for that be substituted a connexion founded on the triumph of strength over weakness, you will have jealousy, distrust, fear, hate, and vengeful thoughts, and bloody deeds, the sure and never-failing proofs of injustice.

Give to Ireland her own Parliament—not the Parliament of ‘82—that was a meteor light which flashed across the land—a deceptive vapour, which quickly vanished. Ireland wants a fixed star— bright and resplendent—the cordial influence and reflecting radiance of which may be seen and felt in the glorious union of liberty, happiness and peace; but it is urged that if you do this, it will lead, as Lord Althorp said, to separation, and Ireland erected into a separate independent state. Suppose it does, who is to blame for that? England! What right has England—what right has any country—to build and peril its greatness upon the slavery, degradation, and wretchedness of another? Strip the case of the disguise with which ambition, and crime, and the love of power have invested it, and the sophistry of conquerors, and princes, and courtiers, and lawyers has cast around it—what, then, is it? A strong man, because he is strong, insults his brother man, because his brother man is weak—the slave struggles to be free, and the enslaver kills him because he struggles. That is British Conquest, and dominion in Ireland—that is British legislation in Ireland. I speak not merely for my client; I speak for you, and your children, and your children’s children. I speak not for myself—my lamp of life is fluttering, and soon must be extinguished; but were I now standing on the brink of the grave, and uttering the last words of expiring nature, I would say, ‘May Ireland be happy, may Ireland be free.’ I call upon you, gentlemen of the jury, as you value your oaths, and as you value justice and public good, manly bearing and personal honour, and as you love your country, to find a verdict of acquittal.

References

1. P. A. Sillard, Life of John Mitchel, James Duffy and Co. Ltd, 1908