rials of which anarchy and public rapine are to be formed? Is this the man on whom to fasten the abominable charge of goading on a frantic populace to mutiny and bloodshed? Is this the man likely to apostatize from every principle that can bind him to the state, his birth, his property, his education, his character, and his children? Let me tell you, gentlemen of the jury, if you agree with his prosecutors, in thinking that there ought to be a sacrifice of such a man, on such an occasion, and upon the credit of such evidence, you are to convict him-never did you, never can you give a sentence, consigning any man to public punishment with less danger to his person or to his fame: For where could the hireling be found to fling contumely or ingratitude at his head, whose private distresses he had not laboured to alleviate, or whose public condition he had not laboured to improve.

I cannot, however, avoid adverting to a circumstance that distinguishes the case of Mr. Rowan from that of a late sacrifice in a neighbouring kingdom.*

The severer law of that country, it seems, and happy for them that it should, enables them to remove from their sight the victim of their vengeance-the more merciful spirit of our law deprives you of that consolation; his sufferings must remain for ever before your eyes, a continual call upon your shame and your remorse. But those sufferings will do more; they will not rest satisfied with your unavailing contrition, they will challenge the great and paramount inquest of society; the man will be weighed against the charge, the witness and the sentence; and impartial justice will demand, why has an Irish jury done this deed? The moment he ceases to be regarded as a criminal, he becomes of necessity an accuser. And let me ask you, what can your most zealous defenders be prepared to answer to such a charge?—When your sentence shall have sent him forth to that stage which

* Here Mr. Curran again alludes to the harsh conduct of the Scottish judges, in the banishment and tragical fate of the Scotch reformers.

guilt alone can render infamous, let me tell you, he will not be like a little statue upon a mighty pedestal, diminishing by elevation; but he will stand a striking and imposing object upon a monument, which, if it does not, and it cannot record the atrocity of his crime, must record the atrocity of your conviction. And upon this subject, credit me when I say, that I am still more anxious for you than I can possibly be for him. I cannot but feel the peculiarity of your situation. Not the jury of his own choice, which the law of England allows, but which ours refuses; collected in that box by a person, certainly no friend to Mr. Rowan, certainly not very deeply interested in giving him a very impartial jury. Feeling this, as I am persuaded you do, you cannot be surprised, however you may be distressed, at the mournful presage with which an anxious public is led to fear the worst from.. your possible determination. But I will not, for the justice/ and honour of our common country, suffer my mind to be borne away by such melancholy anticipation; I will not relinquish the confidence, that this day will be the period of his sufferings; and however mercilessly he has been hitherto pursued, that your verdict will send him home to the arms of his family, and the wishes of his country. But if, which Heaven forbid, it hath still been unfortunately determined, that because he has not bent to power and authority, because he would not bow down before the golden calf and worship it, he is to be bound and cast into the furnace; I do trust in God, that there is a redeeming spirit in the constitution, which will be seen to walk with the sufferer through the flames, and to preserve him unhurt by the conflagration.

[At the conclusion of Mr. Curran's speech, there was another burst of applause through the court and hall, which lasted several minutes, to the great annoyance of his lordship the judge, &c.]

Mr. Attorney-General rose, and with warmth averred, that the insinuation of Mr. Curran, that he had been instructed tó commence this prosecution by government, was absolutely

false; and that, without the least intention to oppress or injure Mr. Rowan, his trial had been unavoidably delayed until the present time, owing to an error in the record, the absence of witnesses, and the great press of public business. Mr. Prime Serjeant then addressed the jury. He recapitulated and collated the evidence, and endeavoured to show, from the whole of the testimony given in, that there could be no doubt but the libel was published by the traverser.

Lord Clonmell, Chief Justice, then delivered a charge to the jury. His lordship commented much on the libel, as set forth in the information, introducing very severe strictures, and showing its wicked tendency. He then summed up the testimony; but what his lordship's directions to the jury were concerning the evidence of Lyster, (who his lordship admitted to be the only witness that proved the publication,) ́ we cannot precisely say, there being a hiatus* in that part of the charge in the trial at large, which we regret, as the reader will hereafter perceive that it became a subject of contention between the court and the defendant's counsel.

After the jury heard the charge, they retired, and in a few minutes, returned with a verdict GUILTY.† Mr. Rowan was then ordered into custody, and was, accordingly, conveyed to prison, attended by both the sheriffs, and a formidable array of horse and foot guards.

* "The editor is here under the necessity of introducing a hiatus, the printer having refused to print this part according to the notes furnished to him by the editor." See trial at large, p. 83.

† When this verdict was brought in, there was a clap of approbation in the outer hall, from a misconception that the jury had acquitted Mr. Rowan -but, when the verdict was repeated, and the word guilty understood, the clap was changed into hootings, and hissings, and groans, that lasted till the court broke up.

VOL. I.

TUESDAY, 4th FEB. 1794.

Mr. Rowan being brought to the bar, his counsel moved. to have the verdict set aside, and a new trial awarded, upon the four following grounds, supported by affidavits:

1. That Lyster, on whose testimony solely the verdict was founded, deserved not the least credit.

2. That one of the jurors harboured the deepest malignity and prejudice against the traverser, and had declared his enmity and prejudice before he was sworn.

3. That the sheriff, who summoned and arrayed the jury, was partial, having purposely empannelled men hostile to Mr. Rowan and his principles.

4. That the judge had misdirected the jury.

Mr. CURRAN. It was an early idea, that a verdict in criminal case could not be set aside inconsulto rege, but the law had stood otherwise without a doubt, to impeach its principle for the last two reigns.

Common sense would say, that the discretion of the court should go at least as far in criminal as in civil cases; and very often to go no further would be to stop far short of what was right, as in those great questions where the prosecution may be considered either as an attempt to extinguish liberty, or as a necessary measure for the purpose of repressing the virulence of public licentiousness and dangerous faction; where there can be no alternative between guilt or martyrdom; where the party prosecuted must either be considered as a culprit sinking beneath the weight of his own crimes, or a victim sacrificed to the vices of others. But when it clearly appears, that the party has fallen a prey to a persecuting combination, there remains but one melancholy question, how far did that combination reach?

There have been two cases lately decided in this very court, the King and Pentland, where the motion was made and

refused, and the King and Bowen, where it was granted; both of which show, that captious sophistry, and technical pedantry had here, as well as in England, given way to liberal and rational inquiry; and that the court would not now, in their discretion, refuse a motion of this kind, unless they could, at the same time, lay their hands upon their hearts, and say, they believed in their consciences that justice had been done. Such was the manly language of one of their lordships, (Mr. Justice Downes,) and such the opinion of the court on a former occasion.

He then cited 7 Mod. 57. as referred to in Bacon, tit. Trial, to show, that where there was good ground of challenge to a juror, not known at the trial, it was sufficient cause for setting aside the verdict.

In England they have a particular act of parliament, entitling the party to strike a special jury to try the fact, and then he has time between the striking and the trial, to ques tion the propriety of that jury; here my client had no previous information, till the instant of trial, who his jurors were to be.

There are certain indulgences granted at times, perhaps by the connivance of humanity, which men, who are not entitled to demand them in an open court, obtain, nevertheless, by sidelong means, and perhaps the little breach which affords that light to the mind of the man accused, is a circumstance which the court would feel pain, even if called upon, to say should in all cases be prevented; but to overturn the principles and authorities, for the purpose of oppressing the subject, is what this court, I hope, will never do...

The first of the affidavits I shall consider is that of the traverser. I do not recollect whether it states the sheriff, in avowed terms, to be an emissary or a hireling agent of the castle, therefore do not state it-from the affidavit; but he swears, "that he does believe, that he did labour to bring into the box a jury full of prejudices and of the blackest impressions," instead of having, as they ought, fair and impartial minds, and souls like white paper.