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174 175 253 255
The Allotments Act and Agricultural Labourer
AGABEG's Harris's Criminal Law (5th Edition)
85 176 344 258
257 87 86 183 86 88 182
QUARTERLY Digest OF ALL REPORTED Cases. By C. H.
Lomax, M.A., Barrister-at-Law. Vol. XVI.
I, 33, 71, 107
SHALL glance at the Report of the Special Comi
mission from a point of view differing, in a certain measure, from that taken by most of its critics. Thai document, indeed, even without comment, forms a terrible judgment on the worst conspiracy against the State, Property, and Social order, which has been hatched since the French Revolution; and the impudent falsehood that it amounts to a verdict of “not guilty” on the Parnellite faction, though meant to deceive, will deceive nobody. But the weighty pronouncement of the Three Judges, from the nature of the case, has not been a complete review of the acts and the character of the “rebel party," as John Bright called it, and of its auxiliaries at home and abroad; and it necessarily falls short of the damning censure which impartial History will pronounce hereafter. The “ charges and allegations” made by The Times, to which the enquiry was strictly confined, did not nearly embrace the whole subject; the incriminated persons,* on whom alone the Commissioners could deliver a verdict, were but a small part of the Parnellite following: the accusers were compelled to establish their case by proofs circumscribed by our law of evidence; the accused were not required to disprove anything; and the trial was conducted † upon the * Mr. Michael Davitt is the only exception.
† Except that the accused were permitted to appear as witnesses and to give evidence on their own behalf.
principles of our Criminal Procedure, the most favourable, to persons on their defence, of any in Europe. These limitations, doubtless, were fitting and just; but if they do not detract from the value of the Report, -a most able Judicial utterance,—they have inevitably made it an imperfect record of the striking disclosures comprised in it : it speaks the truth, but not the whole truth, on the Parnellite movement, and all that belongs to it. I purpose to examine this great Judgment, in its general, as well as its legal aspects, and to consider what might have been found in it had its authors possessed more ample liberty to search and survey the field of enquiry; and I shall try to point out its true significance, as it is illustrated by a mass of evidence, which must be taken into account in History.
The Special Commission, as is well known, rose out of Parnellism and Crime, and other writings in The Times. The object of those papers was to lay bare the nature and incidents of the conspiracy which had spread like a plague through three-fourths of Ireland, and to concentrate the attention of a listless public on the atrocities and the wickedness connected with it. For this purpose the articles dwelt on the incendiary speeches of Parnellite chiefs, and on the terrible outbreak of agrarian outrage, which was the direct result of Land League teaching ; they shewed how the Fenian Press of America disseminated, through Land League agency, and preached to the excitable Irish masses, the evangel of wholesale murder and arson, and of devastating our cities by fire in revenge ; they noticed all that seemed ambiguous in Mr. Parnell's conduct, with reference to the events of the 6th of May; they commented on the significance of the unquestionable fact that prominent men of the Parnellite party fled from justice when the detestable authors of the tragedy in the Phænix Park were found out; they proved that the confederacies of
Irish patriots abroad, who make war on England with dynamite and the knife, lavished money on, and were the declared allies of Irish patriots, at home, of the National League ; and they invited Englishmen to draw the inference that Parnellism was an agitation disgraced by crime, which lent itself to crime and drew its strength from crime, which had criminals in its foremost ranks and which had foreign abettors of the Marat type, apostles of crime of the very worst character. The Times, however, when it made these charges, confined itself to what may be called the social side of this conspiracy, and scarcely referred to its political side ; it brought out the murders, the villainies, and the deeds of blood which abounded where it made its presence felt; but it alluded but once or twice to the treasonable acts and language which marked its guilty course, for these, it thought, would not tell with effect on opinion as it exists in this age of “flabby tolerance.” The same line was necessarily taken by the Attorney-General, in the famous case of O'Donnell v. Walter, an action for the alleged libels in Parnellism and Crime; and, as the scope of the enquiry of the Special Commission was limited to the accusations then made by The Times, it followed that the Judges had but little cognizance of charges against the Parnellites, which involved treason, or conduct of a treasonable kind. The investigation was thus restricted in this respect, and a series of considerations was left out of sight, which assuredly should be borne in mind in a full survey of the acts, the relations, and, above all, the objects of the Parnellite leaders. At the instance of the Commissioners, The Times preferred an indictment against 65 Members, of the “Irish Party,” who, of all the followers of Mr. Parnell, alone put in an appearance, and attempted a defence, with the single exception of Mr. Davitt. I shall say a word hereafter on this most pregnant fact ; the indictment consisted of nine counts, but of these one only savoured of treason, and that,
too, was a charge of a rather vague description. The accused, it was alleged," were members of a conspiracy and “organization having for its ultimate object to establish “the absolute independence of Ireland”; and as the Judges very properly, on a statement like this, refused to press the doctrines of constructive crime, or to apply the perilous law of conspiracy, the respondents, as a body, received the benefit of the questionable verdict of“ not proven,"'* which we shall assume to be an acquittal. Yet a most significant and scathing judgment has been placed on record, even on this charge. It was declared that eight of the impeached persons, including Mr. Davitt, Mr. Wm. O'Brien, and Mr. Dillon, of Land League renown, did seek “to bring about the absolute “independence of Ireland as a separate nation”; and though Mr. Parnell was not convicted, the Commissioners have positively expressed their belief that he uttered the famous “last link" speech, and have discredited his denial that he made use of these words : “we are working” (with the Fenians) “ for a common purpose ”!
A partial and incomplete acquittal, accompanied by a most adverse finding, on a charge of trying to sever Ireland from these Realms, scarcely absolves Parnellism from the guilt of treason. But let us see how the case would stand, had it been open to The Times to formulate a larger and more comprehensive indictment. It is high treason to take part in a conspiracy to overthrow a Government by force ; and it is the conspiracy, it must be borne in mind, that constitutes the overt act of treason. Now, Mr. Parnell has been, for years, the chief of the Land League, and the National League, the same organisation under another name; all the incriminated Members have been his fellow workers; and criminals, whom it is now convenient to
* The findings of the Report (compare pp. 494 and 544, Times edition) are, it would seem, not quite consistent on this point. It is not quite clear whether they amount to proven not guilty."