Papers Relating to Foreign Affairs, Accompanying the Annual Message of the President to the Third Session of the Fortieth Congress
Mr. Johnson to Mr. Seward
Sir: The case of Augustine E. Costello came up on appeal before the Court of Queen’s Bench in Dublin last week. The decision, which was against the prisoner, was delivered on Wednesday last, the 3d instant. Through the kindness of Mr. West I am enabled to forward herewith copies of the newspaper reports of these proceedings.
I remain, with high regard, your obedient servant,
Hon. William H. Seward, Secretary of State, Washington. D. C.
Court of Queen’s Bench—Yesterday.
(Before the Lord Chief Justice, Mr. Justice Fitzgerald, and Mr. Justice George.)
COSTEIXO, PLAINTIFF IN ERROR, AGAINST THE QUEEN.
This case came before the court for argument upon the writ of error granted to the plaintiff, who was convicted recently of treason-felony at the commission court, Green street.
Mr. Heron, Queen’s counsel, Mr. C. Molloy, and Mr. Crean, instructed by Mr. J. T. Scallan, appeared for the plaintiff in error. The attorney general, Mr. Murphy, Queen’s counsel, and Mr. E. Barry, instructed by Mr. Anderson, for the Crown.
The prisoner, who was dressed in his prison costume, occupied the seat between two warders at one side of the court. He appeared to be in good health.
Mr. Heron said: I appear for the plaintiff in error, and before Mr. Molloy goes on with his argument I have an application to make about the course of procedure; that is, that the plaintiff insists on the right to reply.
The Chief Justice. Very well; but let Mr. Molloy go on now.
Mr. Molloy then proceeded with his argument on the writ of error. He said that the prisoner had been tried at the commission for the county of Dublin, which had commenced its sittings in October, 1867; that he had put in a plea of abatement, to which the Crown demurred, and on the argument on the demurrer the Crown obtained judgment. The learned counsel then read over the record, which set forth the indictment, and the different points to be contended on behalf of the plaintiff that the judgment should be reversed. It also stated that the jury on the first trial had disagreed and had been discharged, and that on the 13th November, 1867, the prisoner had been again brought before the court, and that on that day he put in a plea to further prosecution on the indictment. The Crown demurred to that; the demurrer was allowed, and the trial of Costello was proceeded with. Several jurors had been challenged, and the [Page 408] plaintiff in error now submitted that all these challenges were good challenges, and ought to have been allowed. Mr. Molloy then proceeded to quote from Chief Justice Tindall and other eminent legal authorities on cases in error. He submitted that judgment ought to have been given upon the plea of abatement for the prisoner and against the Crown. That plea contained three statements, the first of which was that the foreman of the grand jury had not complied with the provisions of the 1st and 2d Victoria; the second, the averment that the witnesses had not been sworn in open court; and the third statement, which was most important, was, that it did not appear on the record or otherwise that the bill of indictment had been legally found. Mr. Molloy also advanced the following points on which he relied on behalf of his client; That judgment ought to have been given upon the plea in abatement for the prisoner and against the Crown. That inasmuch as it does not appear by the record of the said indictment or otherwise, that the bill of indictment was found or returned a true bill by the grand jury, upon the evidence of any witness or witnesses who were sworn or affirmed, the prisoner should not have been put to answer said indictment, and that the same ought to have been quashed. That there is error in the mode in which the return and appearance of the jurors on the 5th of November, 1867, is stated and entered on the record. That judgment ought to have been given upon the plea pleaded by the prisoner on the 13th November, 1867, for the prisoner and against the Crown. That the plea pleaded on the 13th November, 1867, and the matters therein contained, were sufficient in law to bar and preclude the Crown from further prosecuting the indictment against the prisoner. That the award or precept given to the sheriff on the 13th November, 1867, to return another panel of jurors to try the issue before there was any defect or want of jurors of the panel returned on the 5th of November, pursuant to the award or order of the justices on said 5th November, and before said first panel had been exhausted, quashed, or disposed of, was not warranted by law. That the prisoner could not be legally tried by a jury selected from the second panel, returned on the 13th November, 1867, until the previous panel had been quashed, exhausted, or otherwise legally disposed of. Assuming the court to be of opinion that the award of the justices to the sheriff on the 15th of November was legal, and that the prisoner could be legally tried by a jury chosen from said second panel, that there is error in the mode in which the return and appearance of the jurors of the second panel is stated and entered on the record. That the challenge to William J. Nagle was a good challenge and ought to have been allowed. That the challenge to Archibald McComas was a good challenge, and ought to have been allowed. That the challenges respectively taken to Frederick Lewis, William Thomas McConkey, Francis Tellwright, and Samuel McComas, were each of them good challenges, and ought each to have been allowed. Mr. Molloy then commented generally upon the course which had been adopted towards Costello, and submitted that the second trial ought not to have been had against him.
The attorney general then addressed the court in support of the second trial, and against the application of the plaintiff in error.
Mr. Heron, Queen’s counsel, replied op behalf of the plaintiff in error.
The case was ordered to stand over until Wednesday, for judgment.
Court of Queen’s Bench—This day.
(Before the Lord Chief Justice, Mr. Justice Fitzgerald, and Mr. Justice George.)
THE CASE OF AUGUSTINE E. COSTELLO—JUDGMENT.
At the sitting of the court this morning, their lordships proceeded to deliver judgment on the writ of error obtained on the conviction of the Fenian prisoner, Augustine E. Costello, at a late special commission in Green street. The arguments on the writ of error, which took place on Friday last, were fully reported in this journal, and judgment was postponed until this morning. The prisoner was present in custody of the governor and one of the warders of the Mountjoy convict prison, and occupied a seat at the side bar.
The Crown was represented by Mr. Murphy, Queen’s counsel, Mr. Heron, Queen’s counsel, and Mr. Constantine Molloy, instructed by Mr. J. L. Scallan, appeared on behalf of the prisoner.
The lord chief justice delivered the unanimous judgment of the court. His lordship said the case came before them on a writ of error on the conviction of the prisoner at a special commission of the county of Dublin, in October, 1867. The first question raised for the prisoner was that he should not be called on to answer the indictment, because the witnesses were not sworn and returned to the grand jury by Mr. Alexander Ferrier, foreman, he not having affixed his signature to the back of the indictment. [Page 409] Having alluded to the case cited by the counsel for the Crown—that of Mr. Steele in the memorable State trials—in which a similar circumstance occurred, his lordship said the essential thing to be done under the statute was to swear each witness whose name was on the back of the indictment, it being within the power of the foreman or any of the grand jury to administer the oath. It was not the indorsement that gave the authority to administer the oath; it was the act of Parliament. His lordship having quoted different authorities, said in the case before them it was nowhere alleged that the witnesses whose names were on the back of the indictment were not, as a matter of fact, sworn; the only allegation was, that the entry on the bill of the administration of the oath was omitted by the foreman of the grand jury. However, the essential thing was done—namely, the swearing of the witnesses—although the foreman of the grand jury had forgotten to initial the bill of indictment. Therefore, after a full and careful investigation, all the members of the court were of opinion that the arguments on the part of the prisoner had failed, and that there was nothing to support the ground of error on this point. The question mainly relied on for the prisoner was with reference to the affirmation of a juryman named James Kennan, who, though not belonging to any of the religious sects entitled to affirm, refused to take the usual oath, and served on the jury as if he had been duly sworn. His lordship read the circumstances attending the swearing of the jury on the first trial of the prisoner, as set forth in the writ of error, which have been already published, and also the affidavit of Mr. Scallan, the solicitor for the prisoner. The affidavit, he thought, disclosed that irregularity in swearing the jury was observed by the prisoner’s counsel, but that they did not correct the error until it became embarrassing to the counsel for the Crown. The point raised in this part of the case was that the judges had no power to discharge the jury. The question raised in the prisoner’s behalf was important, and worthy of consideration—namely, what is the extent of the judicial discretion of judges; but the practical question was, what, in such a case as appeared on the record, was to be done? Was the discharge of a jury, under the circumstances here stated, equivalent to a verdict of “not guilty?” Did it prevent the issuing of a fresh jury, even assuming the judges to have erred when the question of Mr. Kennan’s affirmation was brought before them? It was necessary, in such cases as the present, to look with the utmost care and anxiety to questions touching the administration of the law, because he agreed with the prisoner’s counsel that every protection should not only be granted to the prisoner, but zealously preserved to him. His lordship then cited a variety of cases, dating as far back as the reign of Henry the Seventh, in which judges had discharged juries for different causes, and also quoted legal authorities to show that it lay within the discretion and power of a judge to discharge jurors for illness, intoxication, or other causes. In the present case the officer of the court was ignorant of the mode of administering the affirmation to the juror. Was that circumstance sufficient to defeat the ends of justice? He thought he was warranted in the opinion that it was within the power of the court so to discharge the jury on the first trial. After some further observations his lordship said that, touching the argument that a wrong juror had got on the jury, the court were of opinion on the authorities that no case had been made—a remark which applied generally to the point raised as to the power of a judge to discharge a juror. The latter was a question much discussed, but they took the case of the Queen against Monsell to rule the present case, and no member of the court would wish it to be understood that the judge had not power to exercise his fullest discretion in discharging any member or even members of a jury. On the whole they were of opinion that no case had been made, and if there was any hardship of which the prisoner had to complain it was the duty of his counsel to bring the matter under the notice of the government of the country, and they might act on such information or memorial according to their wisdom and discretion. Having given to the case the most attentive consideration, in accordance with the requirements of justice and the ability of the arguments of counsel, the court were of opinion that judgment must be given for the Crown.
Mr. Justice Fitzgerald and Mr. Justice George concurred in the judgment of the lord chief justice.
The prisoner was then removed in custody, and was loudly cheered by a large crowd of persons assembled outside the court.