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Blackwood's Edinburgh Magazine, No. CCCXXXIX. January, 1844. Vol. LV. by Various

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The Englishman who, however well inclined to defer to the wisdom "of
former ages," should throw a glance at the stern realities of the
past, as connected with the history of his country, will be little
disposed to yield an implicit assent to the opinions or assertions of
those, who maintain the superiority of the past, to the disparagement
and depreciation of the present times. Maxims and sayings of this
tendency have undoubtedly prevailed from periods of remote antiquity.
The wise monarch of the Jewish nation even forbade his people to ask
"the cause that the former days were better than these;" "for," he
adds, "thou dost not enquire wisely concerning this." Far different
would be the modern precept of a British monarch. Rather let the
English subject "enquire _diligently_ concerning this," for he cannot
fail to enquire wisely. Let him enquire, and he will find that "the
former days" of England were days of discord, tyranny, and oppression;
days when an Empson and a Dudley could harass the honest and
well-disposed, through the medium of the process of the odious
star-chamber; when the crown was possessed of almost arbitrary power,
and when the liberty and personal independence of individuals were in
no way considered or regarded; days when the severity of our criminal
laws drew down from a French philosopher the sneer, that a history of
England was a history of the executioner; when the doomed were sent
out of the world in bands of twenty, and even thirty, at a time, at
Tyburn or at "Execution dock;" and when, in the then unhealthy tone of
public morals, criminals famous for their deeds of violence and
rapine, were regarded rather as the heroes of romance, than as the
pests and scourges of society. Let him enquire, and he will find that
all these things have now long since passed away; that the rigours of
the criminal law have been entirely mitigated, and that the great
charters of our liberties, the fruits of accumulated wisdom and
experience, have now been long confirmed. These facts, if universally
known and duly pondered over, would go far to banish discontent and
disaffection, and would tend to produce a well-founded confidence in
the inherent power of adaptation to the necessities of the people,
possessed by the constitution of our country. Thus, the social wants
of the outer man having been in a great measure supplied, the
philanthropy of modern times has been chiefly employed on the mental
and moral improvement of the species; the wants of the inner man are
now the objects of universal attention, and education has become the
great necessity of the age. Hitherto, the municipal laws and
institutions of this country have been defective; inasmuch as they
have made little or no provision for the adequate instruction of the
people. Much, no doubt, has been already done, and education, even
now, diffuses her benignant light over a large portion of the
population; among whom, the children of the ignorant are able to
instruct their parents, and impart, to those who gave them being, a
share in the new-found blessing of modern times. Much, however,
remains still to be done, and the splendid examples of princely
munificence which a great minister of the crown has recently shown the
wealthier classes of this wealthy nation, may, in the absence of a
state provision, have the effect of stimulating private exertion and
generosity. In spite, however, of the moral and intellectual
advancement of the present age, the passions and evil designs of the
vicious and discontented are still able to influence vast masses of
the people. The experience of the last few years unfortunately teaches
us, that increased knowledge has not yet banished disaffection, and
that though, during the last quarter of a century, the general
standard of the nation's morality may have been elevated above its
former resting-place, that education, in its present state of
advancement, has not as yet effectually disarmed discontent or
disaffection, by showing the greater evil which ever attends the
endeavour to effect the lesser good, by violent, factious, or
seditious means.

Within the last thirteen years, the government has been compelled, on
several occasions, to curb the violence and to repress the outbreaks
of men who had yet to learn the folly of such attempts; and the powers
of the executive have been frequently evoked by those who, of late
years, have wielded the destinies of this country. Several state
prosecutions have taken place during this period. They never occur
without exciting a lively interest; the public eye is critically
intent upon the minutest detail of these proceedings; and the public
attention is concentrated upon those to whom is confided the
vindication of the public rights and the redressing of the public
wrongs. It has been often asked by some of these critical observers,
How is it that, when great crimes or misdemeanours are to be punished,
when the bold and daring offender is to be brought to justice, when
the body politic is the offended party, when the minister honours a
supposed offender with his notice in the shape of criminal
proceedings, and the government condescends to prosecute--how is it,
it has been asked on such occasions, when the first talent, science,
and practical skill, are all arranged against the unfortunate object
of a nation's vengeance, that the course of justice should be ever
broken or impeded? Is the machinery then set in motion in truth
defective--is there some inherent vice in the construction of the
state engine? Is the law weak when it should be strong? Is its boasted
majesty, after all, nothing but the creation of a fond imagination, or
a delusion of the past? Are the wheels of the state-machine no longer
bright, polished, and fit for use as they once were? or are they
choked and clogged with the rust and dust of accumulated ages? Or, if
not in the machine, does the fault, ask others of these bold critics,
rest with the workmen who guide and superintend its action? Are the
principles of its construction now no longer known or understood? Are
they, like those of the engines of the Syracusan philosopher, lost in
the lapse of time? Is the crown less efficiently served than private
individuals? and can it be possible, it has even been demanded, that
those who are actively employed on these occasions have been so long
removed on the practice of what is often deemed the simpler portion of
the law, and so long employed in the higher and more abstruse branches
of the science, that they have forgotten the practice of their youth,
and have lost the knowledge acquired in the commencement of their
professional career? Lesser criminals, it is said, are every day
convicted with ease and expedition--how is it, therefore, that the
cobweb of the law holds fast the small ephemerae which chance to stray
across its filmy mesh, but that the gaudy insect of larger form and
greater strength so often breaks through, his flight perhaps arrested
for a moment, as he feels the insidious toil fold close about him? It
is, however, only for a moment; one mighty effort breaks his bonds--he
is free--and flies off in triumph and derision, trumpeting forth his
victory, and proclaiming his escape from the snare, in which it was
hoped to encompass him. The astute and practised gentlemen thus
suspected, strong in the consciousness of deep legal knowledge, and
ready practical skill and science, may justly despise the petty
attacks of those who affect to doubt their professional ability and
attainments. Some in high places have not hesitated to hint, on one
occasion, at collusion, and to assert, that a certain prosecution
failed, because there was no real desire to punish.

Such is the substance of the various questions and speculations to
which the legal events of the last thirteen years have given rise. We
have now collected and enumerated them in a condensed form, for the
purpose of tracing their rise and progress, and in order that we may
demonstrate that, though there may possibly exist some reasons for
these opinions, founded often on a misapprehension of the real
circumstances of the cases quoted in their support, that they have, in
fact, little or no substantial foundation. With this view, therefore,
we shall briefly notice those trials, within the period of which we
speak, which form the groundwork of these charges against the
executive, before we proceed to state the real obstacles which do, in
fact, occasionally oppose the smooth and _rapid_ progress of a "State

The first of these proceedings, which occurred during the period of
the last thirteen years, was the trial of Messrs O'Connell, Lawless,
Steel, and others. This case perhaps originated the opinions which
have partially prevailed, and was, in truth, not unlikely to make a
permanent impression on the public mind. In the month of January 1831,
true bills were found against these parties by the Grand Jury of
Dublin, for assembling and meeting together for purposes prohibited by
a proclamation of the Lord Lieutenant; and for conspiring to do an act
forbidden by the law. By every possible device, by demurrers and
inconsistent pleas, delays were interposed; and though Mr O'Connell
withdrew a former plea of not guilty, and pleaded guilty to the counts
to which he had at first demurred--though Mr Stanley, in the House of
Commons, in reply to a question put by the Marquis of Chandos,
emphatically declared, that it was impossible for the Irish
government, consistently with their dignity as a government, to enter
into any negotiation implying the remotest compromise with the
defendants--and that it was the unalterable determination of the
law-officers of Ireland to let the law take its course against Mr
O'Connell--and that, let him act as he pleased, judgment would be
passed against him--still, in spite of this determination of the
government, so emphatically announced by the Irish Secretary, the
statute on which the proceedings were founded was actually suffered to
expire, without any previous steps having been taken against the state
delinquents. There has ever been that degree of mystery about this
event, which invariably rouses attention and excites curiosity; the
escape of those parties was a great triumph over the powers, or the
expressed inclinations of the government, which was well calculated to
set the public mind at work to discover the latent causes which
produced such strange and unexpected results. After an interval of
seven years, another case occurred, which was not calculated
materially to lessen the impression already made upon the public; for
although, in the following instance, the prosecution was conducted to
a successful termination, yet questions of such grave importance were
raised, and fought with such ability, vigour, and determination, that
the accomplishment of the ends of justice, if not prevented, was
certainly long delayed.

On the 17th December 1838, twelve prisoners were brought to Liverpool,
charged in execution of a sentence of transportation to Van Diemen's
Land for having been concerned in the Canadian revolt. Here the
offenders had been tried, convicted, sentenced, and actually
transported. The prosecutors, therefore, might naturally be supposed
to have got fairly _into_ port, when they saw the objects of their
tender solicitude fairly _out_ of port, on their way to the distant
land to which the offended laws of their country had consigned them.

If justice might not account her work as done, at a time when her
victims had already traversed a thousand leagues of the wide
Atlantic, when could it be expected that the law might take its course
without further let or hindrance? On the 17th of December, as has been
observed, the prisoners arrived at Liverpool, and were straightway
consigned to the care and custody of Mr Batcheldor, the governor of
the borough jail of Liverpool; by whom they were duly immured in the
stronghold of the borough, and safely placed under lock and key.
Things, however, did not long continue in this state. In a few days
twelve writs of _habeas corpus_ made their sudden and unexpected
appearance, by which Mr Batcheldor was commanded forthwith to bring
the bodies of his charges, together with the causes of detention,
before the Lord Chief Justice of England. Mr Batcheldor obeyed the
command in both particulars; the judges of the Court of Queen's Bench
met; counsel argued and re-argued the matter before them, but in
vain--the prisoners were left in the governor's care, in which they
remained, as if no effort had been made to remove then from his
custody. All, however, was not yet over; for, as though labouring
under a strange delusion, four of the prisoners actually made oath
that they had never been arraigned, tried, convicted, or sentenced at
all, either in Canada or elsewhere! Upon this four more writs of
_habeas corpus_ issued, commanding the unhappy Mr Batcheldor to bring
the four deluded convicts before the Barons of the Exchequer. This was
done; arguments, both old and new, were heard with exemplary patience
and attention; the play was played over again; but the Barons were
equally inexorable with the Court of Queen's Bench, and the four
prisoners, after much consideration, were again remanded to the
custody of the governor of the jail, and, together with their eight
fellow-prisoners, were, in course of time, duly conveyed to the place
of their original destination.

The next of these cases, in chronological order, is that of the
Monmouthshire riots in 1839. This case, also, might tend to
corroborate the opinion, that the service of the state, in legal
matters, is attended with much difficulty and embarrassment. It will,
however, be seen upon examination of the facts of the case, that the
difficulty which then arose, proceeded solely from the lenity and
indulgence shown to the prisoners by the crown. On New-Year's day
1840, John Frost and others, were brought to trial, on a charge of
high treason, before a special commission at Monmouth. The proceedings
were interrupted by an objection taken by the prisoners' counsel, that
the terms of a statute, which requires that a list of witnesses should
be delivered to the prisoners _at the same time_ with a copy of the
indictment, had not been complied with. The indictment had, in fact,
been delivered five days before the list of witnesses. This had been
done in merciful consideration to the prisoners, in order that they
might be put in possession of the charge, to be brought against them,
as early as it was in the power of the crown to give them the
information, and probably before it was _possible_ that the list of
witnesses could have been made out. The trial, however, proceeded,
subject to the decision of the fifteen judges upon the question, thus
raised upon the supposed informality, which nothing but the _anxious
mercy_ of the crown had introduced into the proceedings; and the
parties were found guilty of the offence laid to their charge. In the
ensuing term, all other business was, for a time, suspended; and the
fifteen judges of the land, with all the stately majesty of the
judicial office, were gathered together in solemn conclave in
Westminster Hall. A goodly array, tier above tier they sat--the heavy
artillery of a vast legal battery about to open the fire of their
learning, with that imposing dignity which becomes the avengers of the
country's and the sovereign's wrongs. Day after day they met, heard,
and deliberated upon arguments, which were conspicuous from their
consummate learning and ability. At length these learned persons
delivered their judgments, and, amid much diversity of opinion, the
majority thought, upon the whole, that the conviction was right, and
that the terms of the statute had been virtually complied with. The
criminals, however, probably in consequence of the doubts and
difficulty of the case, were absolved on the most highly penal
consequences of their crime, and were, by a sort of compromise,
transported for life to one of the penal settlements.

The doubt which some have entertained of the real insanity of Oxford,
and others who have recently attempted the same crime which he so nearly
committed, has caused these cases also to be brought forward in
confirmation of the opinions, which we contend rest upon no real
foundation. The insanity of a prisoner is, however, a fact, upon which
it is the province of the jury to decide, under the direction of the
presiding judge. In each case the law was luminously laid down by the
judge for the guidance of the jury, who were fully instructed as to what
the law required to establish the insanity of its prisoner, and to prove
that "lesion of the will" which would render a human being irresponsible
for his acts. These verdicts, undoubtedly, gave rise to a grave
discussion, whether the law, as it now stands, was sufficiently
stringent to have reached these cases; and though this question was
decided in the affirmative, the mere entertaining of the doubt afforded
another specious confirmation of the impression, that a singular
fatality was attendant upon a state prosecution. This idea received
another support from the case of Lord Cardigan, who, about this period,
was unexpectedly acquitted, on technical grounds, from a grave and
serious charge. This, however, was no state prosecution, and we do but
notice it, _en passant_, in corroboration of our general argument.

We now come to the case of the Chartists in 1842. For some time
previous to the summer of 1842, great distress, it will be remembered,
prevailed among the manufacturing population of the northern and
midland counties. The misery of the preceding winter had been dreadful
in the extreme; emaciated, haggard beings might be daily seen
wandering about the country half naked, in the coldest weather;
sufferings, almost without a parallel, were borne with patience and
resignation. Despair there might be in the hearts of thousands, but
those thousands were mute and passive in their misery; all was dark,
all was hopeless; the wintry wind of penury blew untempered, keen upon
them, but still they cried not; hunger preyed upon their very vitals,
but they uttered no complaint. Let us not, even now, refuse a passing
tribute of honour and respect to the passive heroism which in many an
instance marked the endurance of the hopeless misery of those dreadful
times. At length, however, evil and designing men came among the
sufferers--remedies for the pressing evil, and means of escape from
the wretchedness of their condition, were darkly hinted at; redress
was whispered to be near, and they, the hungry fathers of famished
children, lent a greedy ear to the fair promises of men whom they
deemed wiser than themselves. The tempter's seedtime had arrived, the
ground was ready, and the seed was sown. Day by day, nay, hour by
hour, was the bud of disaffection fostered with the greatest care;
and, day by day, its strength and vitality increased. When, at length,
the people were deemed ripe for action, the mask was thrown off,
treasonable schemes and projects were openly proclaimed by the leaders
of the coming movement, and echoed, from a hundred hills, by vast
multitudes of their deluded followers. Large meetings were daily held
on the neighbouring moors, where bodies of men were openly trained and
armed for active and offensive operations. At length the insurrection,
for such in truth it was, broke forth. Then living torrents of excited
and exasperated men poured down those hillsides; the peaceful and
well-affected were compelled to join the insurgent ranks, busy in the
work of destruction and intimidation; when each evening brought the
work of havoc to a temporary close, they laid them down to rest where
the darkness overtook them. The roads were thus continually blockaded,
and those who, under cover of the night, sought to obtain aid and
assistance from less disturbed districts, were often interrupted and
turned back by bodies of these men. Authority was at an end, and a
large extensive district was completely at the mercy of reckless
multitudes, burning to avenge the sufferings of the past, and bent on
preventing, as they thought, a recurrence of them in future. The very
towns were in their hands; "in an evil hour" a vast body of insurgents
was "admitted" into one of the largest mercantile towns of the
kingdom, where they pillaged and laid waste in every direction. In
another town of the district a fearful riot was put down by force,
some of the leaders of the mob being shot dead while heading a charge
upon the military. The ascendancy of the law was at length asserted;
many arrests took place; the jails were crowded with prisoners; and
the multitudes without, deserted by those to whom they had looked up
for advice, their friends in prison, with the unknown terrors of the
law suspended over them, probably then felt that, miserable and lost
as they had been before, they had now fallen even lower in the scale
of human misery. Criminal proceedings were quickly instituted. Several
commissions were sent down to the districts in which these
disturbances had take place, in order that the offenders might meet
with _speedy_ punishment. The law officers of the crown, with many and
able assistants, in person conducted the proceedings. Temperate, mild,
dignified, and forbearing was their demeanour; in no case was the
individual the object of prosecution; it was the _crime_, through the
person of the criminal, against which the government proceeded. No
feelings of a personal nature were there exhibited; and a mild, but
firm, as it were, a parental correction of erring and misguided
children, seemed to be the sole object of those who then represented
the government. Conviction was heaped upon conviction--sentence
followed sentence--the miserable tool was distinguished from the man
who made him what he was--the active emissary, the secret conspirator,
also received each their proportionate amount of punishment. True, a
few of the more cautious and crafty, all included in one indictment,
eventually escaped the penalty due to their crimes; but, among the
multitude of cases which were then tried, this was, we believe, the
only instance even of partial failure. In spite of this single
miscarriage of the government, the great object of these proceedings
was completely answered; the end of all punishment was attained; the
vengeance which the law then took had all the effect which the most
condign punishment of these few men could have accomplished; the
constitutional maxim of "_poena ad paucos, metus ad omnes_," has been
amply illustrated by these proceedings; Chartism has been suppressed,
by the temperate application of the constitutional means which were
then resorted to for the correction of its violence, and the
prevention of its seditious schemes.

We must not omit to mention the instances of signal and complete
success which have been, from time to time, exhibited in other
prosecutions against Feargus O'Connor and different members of the
Chartist body, within the period of which we speak. On none of these
occasions has the course of justice been hindered, or even turned
aside; but the defendants have, we believe, without exception, paid
the penalty of their crimes by enduring the punishments awarded by the

The recent trials of the Rebecca rioters were also signally successful
and effective; and the prejudices of a Welsh jury, which some feared
would prove a fatal stumblingblock, were overcome by the dispassionate
appeal to their better judgment then made by the officers of the

From a review of the cases, it therefore appears, that the failures of
a state prosecution have been comparatively few; and that the crown
has met with even more than the average success which the "glorious
uncertainty of the law" in general permits to those who tempt its
waywardness, and risk the perils of defeat. The welfare and interest
of the nation, however, lie in the _general_ results of these
proceedings, rather than the _particular event_ of an individual
trial. Therefore, though we should assume that a part only of what was
intended has been accomplished, still if that portion produces the
same general results as were hoped for from the successful
accomplishment of the whole, the object of the government has been
attained. Now, it may be observed, that, with perhaps the single
exception of the case of Mr O'Connell in 1831, the end and object of
all state prosecution has been uniformly and completely accomplished,
by the suppression of the evil which the crown in each instance was
anxious to put down. When this has taken place, there can have been no
failure. Beyond what is necessary for the welfare of the state, and
the general safety and security of the persons and property of
individuals, the crown has no interest in inflicting punishment; it
never asks for more than is required to effect _these objects_, and it
can scarcely be content with less.

There are, however, difficulties almost peculiar to the more serious
offences against the state, but which are entirely different, in their
nature, from those imaginary difficulties which have formed the
subject of so much declamation. A passing glance at the proceedings
now pending in Ireland, will give the most casual observer some idea
of what is sometimes to be encountered by those to whom is entrusted
the arduous duty of conducting a state prosecution. Look back on the
"tempest of provocation," which recently assailed the Irish
Attorney-General, on the vexatious delays and frivolous objections
which sprang up at every move of the crown lawyers, called forth by
one who, though "_not valiant_," was well known to the government to
be "most cunning offence" ere they challenged him, but who, "despite
his cunning fence and active practice," may perhaps find, that this
time the law has clutched him with a grasp of iron. In ordinary cases,
criminals may, no doubt, be easily convicted; and in the great
majority of the more common crimes and misdemeanours, the utmost legal
ingenuity and acumen might be unable to detect a single error in the
proceedings, from first to last. Still it must be remembered, that
even among the more common of ordinary cases, in which the forms are
simple, the practice certain, and in which the law may be supposed to
be already defined beyond the possibility of doubt, error, or
misconception--even in such cases, questions occasionally arise which
scarcely admit of any satisfactory solution--questions in which the
fifteen judges, to whom they may be referred, often find it impossible
to agree, and which may therefore be reasonably supposed to be
sufficiently perplexing to the rest of the world. State offences, such
as treason and sedition, which are of comparatively rare occurrence,
present many questions of greater intricacy than any other class of
crimes. In treason especially, a well-founded jealousy of the power
and prerogatives of the crown has intrenched the subject behind a line
of outposts, in the shape of forms and preliminary proceedings; the
accused, for his greater security against a power which, if unwatched,
might become arbitrary and oppressive, has been invested with rights
which must be respected and complied with, and by the neglect of which
the whole proceedings are rendered null and void. At this moment, in
all treasons, except attempts upon the person of the sovereign, "the
prisoner," in the language of Lord Erskine, "is covered all over with
the armour of the law;" and there must be twice the amount of evidence
which would be legally competent to establish his guilt in a criminal
prosecution for any other offence, even by the meanest and most
helpless of mankind. Sedition is a head of crime of a somewhat vague
and indeterminate character, and, in many cases, it may he extremely
difficult, even for an acute and practised lawyer, to decide whether
the circumstances amount to sedition. Mr East, in his pleas of the
crown, says, that "sedition is understood in a more general sense than
treason, and extends to other offences, not capital, of a like
tendency, but without any actual design against the king in
contemplation, such as contempts of the king and his government,
riotous assemblings for political purposes, and the like; and in
general all contemptuous, indecent, or malicious observations upon his
person and government, whether by writing or speaking, or by tokens,
calculated to lessen him in the esteem of his subjects, or weaken his
government, or raise jealousies of him amongst the people, will fall
under the notion of seditious acts." An offence which admits of so
little precision in the terms in which it is defined, depending often
upon the meaning to be attached to words, the real import of which is
varied by the tone or gesture of the speaker, by the words which
precede, and by those which follow, depending also upon the different
ideas which men attach to the same words, evidently rests on very
different grounds from those cases, where actual crimes have been
perpetrated and deeds committed, which leave numerous traces behind,
and which may be proved by the permanent results of which they have
been the cause. Technical difficulties without number also exist: the
most literal accuracy, which is indispensable--the artful inuendoes,
the artistical averments, which are necessary, correctly to shape the
charge ere it is submitted to the grand jury, may be well conceived to
involve many niceties and refinements, on which the case may easily be
wrecked. It must also be remembered that the utmost legal ingenuity is
called into action, and the highest professional talent is engaged in
the defence of the accused. The enormous pressure upon the accused
himself, who, probably from the higher or middle classes, with ample
means at his command, an ignominious death perhaps impending, or, at
the least, imprisonment probably for years in threatening prospect
close before him; his friends active, moving heaven and earth in his
behalf, no scheme left untried, no plan or suggestion rejected, by
which it may, even in the remotest degree be possible to avert the
impending doom; the additional rancour which politics sometimes infuse
into the proceedings, the partisanship which has occasioned scenes
such as should never be exhibited in the sacred arena of the halls of
justice, animosities which give the defence the character of a party
conflict, and which cause a conviction to be looked upon as a
political defeat, and an acquittal to be regarded as a party
triumph--all these circumstances, in their combined and concentrated
force, must also be take into consideration. In such a case every step
is fought with stern and dogged resolution; even mere delay is
valuable, for when all other hope is gone, the chapter of accidents
_may_ befriend the accused; it is one chance more; and even one
chance, however slight, is not to be thrown away. Such is a faint
picture of the defensive operations on such occasions: how is this
untiring, bitter energy met by those who represent the crown?

"Look on this picture and on that."

Here all is calm, dignified, generous, and forbearing; every
consideration is shown, every indulgence is granted, to the
unfortunate being who is in jeopardy. The crown has no interest to
serve beyond that which the state possesses in the vindication of the
law, and in that cool, deliberate, and impartial administration of
justice which has so long distinguished this country. Nothing is
unduly pressed against the prisoner, but every extenuating fact is
fairly laid before the jury by the crown; it is, in short, generosity,
candor, and forbearance, on the one side, matched against craft,
cunning and the resolution _by any means_ to win, upon the other. Such
are the real difficulties which may be often felt by those who conduct
a state prosecution. Surely it is better far that these difficulties
should, in some instances, be even wholly insuperable, and that the
prosecution should be defeated, than that any change should come over
the spirit in which these trials are now conducted; or that the crown
should ever even attempt to make the criminal process of the law an
instrument of tyranny and oppression, as it was in the days of Scroggs
and Jefferies, and when juries, through intimidation, returned such
verdicts as the crown desired. Our very tenacity of our liberties may
tend to render these proceedings occasionally abortive; and the twelve
men composing a jury of the country, though possibly all their
sympathies would be at once enlisted in behalf of a wronged and
injured subject, may, unconsciously to themselves, demand more
stringent proof, in cases where the sovereign power appears before
then as the party; and more especially, when the offence is of an
impersonal nature, and where the theory of the constitution, rather
than the person or property of individuals, is the object of
aggression. In the olden time such was the power of the crown, that,
whenever the arm of the state was uplifted, the blow fell with
unerring accuracy and precision; but now, when each object of a state
prosecution is a sort of modern Briareus, the blow must be dealt with
consummate skill, or it will fail to strike where it was meant to
fall. On this account, perhaps, in addition to then own intrinsic
paramount importance, the proceedings now pending in Ireland, have
become the object of universal and absorbing interest throughout the
whole of the United Kingdom. Under these circumstances it has occurred
to us, that a popular and accurate review of the several stages of a
criminal prosecution, by which the general reader will be able, in
some degree, to understand the several steps of that proceeding which
is now pending, might not be unacceptable or uninstructive at the
present moment. It must, however, be observed, that it is scarcely
possible to divest a subject so technical in it very nature from those
terms of art which, however familiar they may be to many of our
readers, cannot be understood by all without some explanation, which
we shall endeavour to supply as we proceed.

The general importance of information of this nature has been well
summed up by a great master of criminal law. "The learning touching
these subjects," says Sir Michael Foster, "is a matter of great and
universal concernment. For no rank, no elevation in life, and, let me
add, no conduct, how circumspect soever, ought to tempt a reasonable
man to conclude that these enquiries do not, nor possibly can, concern
him. A moment's cool reflection on the utter instability of human
affairs, and the numberless unforeseen events which a day may bring
forth, will be sufficient to guard any man, conscious of his own
infirmities, against a delusion of this kind."

Let us suppose the minister of the day, having before been made aware
that, in a portion of the kingdom, a state of things existed that
demanded his utmost vigilance and attention, to have ascertained the
reality of the apparent danger, and to have procured accurate
information as to the real character of the proceedings, and to find
that acts apparently treasonable or seditious, as the case may be, had
been committed. Suppose him, charged with the safety of the state, and
responsible for the peace, order, and well-being of the community, to
set the constitutional process of the law in motion against the
offending individuals; his first step, under such circumstances, must
be to procure full and satisfactory evidence of the facts as they
really exist. For this purpose agents must he employed, necessarily in
secret, or the very end and object of their mission would be
frustrated, to collect and gather information from every authentic
source, and to watch, with their own eyes the proceedings which have
attracted attention. This is a work of time, perhaps; but suppose that
it is complete, and that the minister having before him in evidence,
true and unmistakable, a complete case of crime to lay before a jury,
what, under these circumstances, is the first step to be taken by the
crown? Either of two distinct modes of procedure may be chosen; the
one mode is by an _ex officio_ information, the other is by
indictment. An indictment is the mode by which all treasons and
felonies must be proceeded against, and by which ordinary
misdemeanours are usually brought to punishment. An _ex officio_
information is an information at the suit of the sovereign, filed by
the Attorney-General, as by virtue of his office, without applying to
the court where filed for leave, and without giving the defendant any
opportunity of showing cause why it should not be filed. The principal
difference between this form of procedure and that by indictment,
consists in the manner in which the proceedings are commenced; in the
latter case, the law requires that the accusation should be warranted
by the oath of twelve men, before he be put to answer it--or in other
words that the grand jury must give that information to the court,
which, in the former case, is furnished by the law officer of the
crown. The cases which are prosecuted by _ex officio_ information, are
properly such enormous misdemeanours as peculiarly tend to disturb and
endanger the government or to molest or affront the sovereign in the
discharge of the functions of the royal office. The necessity for the
existence of a power of this nature in the state, is thus set forth by
that learned and illustrious judge, Sir William Blackstone. "For
offences so highly dangerous, in the punishment or prevention of which
a moment's delay would be fatal, the law has given to the crown the
power of an immediate prosecution, without waiting for any previous
application to any other tribunal: which power, thus necessary, not
only to the ease and safety, but even to the very existence of the
executive magistrate, was originally reserved in the great plan of the
English constitution, wherein provision is wisely made for the
preservation of all its parts."

The crown, therefore, in a case such as we have imagined, must first
make choice between these two modes of procedure. The leniency of
modern governments has of late usually resorted to the process by
indictment; and the crown, waiving all the privileges which appertain
to the kingly office, appears before the constituted tribunals of the
land, as the redresser of the public wrongs, invested with no powers,
and clothed with no authority beyond the simple rights possessed by
the meanest of its subjects. We shall, for this reason, take no
further notice of the _ex officio_ information; and as treasons form a
class of offences governed by laws and rules peculiar to itself, we
shall also exclude this head of crime from our consideration, and
confine ourselves solely to the ordinary criminal process by which
offenders are brought to justice.

In, general, the first step in a criminal prosecution, is to obtain a
warrant for the apprehension of the accused party. In ordinary cases,
a warrant is granted by any justice of the peace upon information, on
the oath of some credible witness, of facts from which it appears that
a crime has been committed, and that the person against whom the
warrant is sought to be obtained, is probably the guilty party, and is
a document under the hand and seal of the justice, directed generally
to the constable or other peace-officer, requiring him to bring the
accused, either generally before _any_ justice of the county, or only
before the justice who granted it. This is the practice in ordinary
cases; but in extraordinary cases, the warrant may issue from the Lord
Chief Justice, or the Privy Council, the Secretaries of State, or from
any justice of the Court of Queen's Bench. These latter warrants are,
we believe, all tested, or dated England, and extend over the whole
kingdom. So far the proceedings have been all _ex parte_, one side
only has been heard, one party only has appeared, and all that has
been done, is to procure or compel the appearance of the other. The
warrant is delivered to the officer, who is bound to obey the command
which it contains. It would seem, however, that, as was done in a
recent case in Ireland, it is sufficient if the appearance of the
accused be virtually secured, even without the intervention of an
actual arrest.

When the delinquent appears, in consequence of this process, before
the authorities, they are bound immediately to examine into the
circumstances of the alleged crime; and they are to take down in
writing the examinations of the witnesses offered in support of the
charge. If the evidence is defective, and grave suspicion should
attach to the prisoner, he may be remanded, in order that fresh
evidence may be procured; or the magistrate, if the case be surrounded
with doubt and difficulty, may adjourn it for a reasonable time, in
order to consider his final decision. The accused must also be
examined, but not upon oath; and his examination also must be taken
down in writing, and may be given in evidence against him at the
trial; for although the maxim of the common law is "_nemo tenebitur
prodere seipsum_," the legislature, as long ago as the year 1555,
directed that, in cases of felony, the examination of the prisoner
should be taken; which provision has recently been extended to
misdemeanours also. Care must be taken that his examination should not
even _appear_ to have been taken on oath; for in a very recent case,
in which _all_ the examinations were contained upon one sheet of
paper, and under one general heading--from which they all purported to
have been taken upon oath, the prisoner's admission of his guilt
contained in that examination, was excluded on the trial, and the rest
of the evidence being slight, he was accordingly acquitted. Now, if
upon the enquiry thus instituted, and thus conducted, it appears,
either that no such crime was committed, or that the suspicion
entertained against the accused is wholly groundless, or that, however
positively accused, if the balance of testimony be strongly in favour
of his innocence, it is the duty of the magistrate to discharge him.
But if, on the other hand, the case seems to have been entirely made
out, or even if it should appear probable, that the alleged crime has
in fact been perpetrated by the defendant, he must either be committed
to prison, there to be kept, in safe custody, until the sitting of the
court before which the trial is to be heard; or, he may be allowed to
give bail--that is, to put in securities for his appearance to answer
the charge against him. In either of these alternatives, whether the
accused be committed or held to bail, it is the duty of the magistrate
to subscribe the examinations, and cause them to be delivered to the
proper officer, at, or before, the opening of the court. Bail may be
taken by two justices in cases of felony, and by one in cases of
misdemeanour. In this stage of the proceedings, as the commitment is
only for safe custody, whenever bail will answer the same intention,
it ought to be taken, as in inferior crimes and misdemeanours; but in
offences of a capital nature, such as the heinous crimes of treason,
murder, and the like, no bail can be a security equivalent to the
actual custody of the person. The nature of bail has been explained,
by Mr Justice Blackstone, to be "a delivery or bailment of a person to
his sureties, upon their giving, together with himself, sufficient
security for his appearance: he being supposed to continue in their
friendly custody, instead of going to gaol." To refuse, or even to
delay bail to any person bailable, is an offence against the liberty
of the subject, in any magistrate, by the common law. And the Court of
Queen's Bench will grant a criminal information against the magistrate
who improperly refuses bail in a case in which it ought to have been
received. It is obviously of great importance, in order to ensure the
appearance of the accused at the time and place of trial, that the
sureties should be men of substance; reasonable notice of bail, in
general twenty-four or forty-eight hours, may be ordered to be given
to the prosecutor, in order that he may have time to examine into
their sufficiency and responsibility. When the bail appear, evidence
may be heard on oath, and they may themselves be examined on oath upon
this point; if they do not appear to possess property to the amount
required by the magistrates, they may be rejected, and others must be
procured, or the defender must go to prison. Excessive bail must not
be required; and, on the other hand, the magistrate, if he take
insufficient bail, is liable to be fined, if the criminal do not
appear to take his trial. When the securities are found, the bail
enter into a recognizance, together with the accused, by which they
acknowledge themselves bound to the Queen in the required sums, if the
accused does not appear to take his trial, at the appointed time and
place. This recognizance must be subscribed by the magistrates, and
delivered with the examinations to the officer of the court in which
the trial is to take place. With this, the preliminary proceedings
close: the accused has had one opportunity of refuting the charge, or
of clearing himself from the suspicion which has gathered round him;
but as yet, there is no written accusation, no written statement of
the offence which it is alleged he has committed. True, he has heard
evidence--he has heard a charge made orally against him--but the law
requires greater particularity than this before a man shall be put in
peril upon a criminal accusation. The facts disclosed in the evidence
before the magistrates must be put in a legal form; the offence must
be clearly and accurately defined in writing, by which the accused may
be informed what specific charge he is to answer, and from which he
may be able to learn what liability he incurs; whether his life is put
in peril, or whether he is in danger of transportation or of
imprisonment, or merely of a pecuniary fine. This is done by means of
the indictment. The indictment is a written accusation of one or more
several persons, preferred to and presented upon oath by a grand jury.
This written accusation, before being presented to the grand jury, is
properly termed a "bill;" and, in ordinary cases, it is generally
prepared by the clerk of the arraigns at the assizes, and by the clerk
of the peace at the quarter sessions; but, in cases of difficulty, it
is drawn by counsel. It consists of a formal technical statement of
the offence, which is engrossed upon parchment, upon the back of which
the names of the witnesses for the prosecution are indorsed. In
England it is delivered to the crier of the court, by whom the
witnesses are sworn to the truth of the evidence they are about to
give before the grand jury. In the trial now pending in the Court of
Queen's Bench in Ireland, a great question was raised as to whether a
recent statute, which, on the ground of convenience, enabled grand
juries in Ireland themselves to swear the witnesses, extended to
trials before the Queen's Bench. This question was decided in the
affirmative; therefore, in that country, the oath, in every case, must
be administered by the grand jury themselves; whereas, in this
country, the witnesses are sworn _in court_, and by the crier, as we
have already mentioned. The grand jury, ever since the days of King
Ethelred, must consist of twelve at least, and not more than
twenty-three. In the superior courts they are generally drawn from the
magistracy or superior classes of the community, being, as Mr Justice
Blackstone expresses it, "usually gentlemen of the best figure in the
county." They are duly sworn and instructed in the articles of their
enquiry by the judge who presides upon the bench. They then withdraw,
to sit and receive all bills which may be presented to them. When a
bill is thus presented, the witnesses are generally called in the
order in which their names appear upon the back of the bill. The grand
jury is, at most, to hear evidence only on behalf of the prosecution;
"for," says the learned commentator already quoted, "the finding of an
indictment is only in the nature of an enquiry or accusation, which is
afterwards to be tried and determined; and the grand jury are only to
enquire upon their oaths, whether there be sufficient cause to call
upon a party to answer it." They ought, however, to be fully persuaded
of the truth of an indictment as far as the evidence goes, and not to
rest satisfied with remote probabilities; for the form of the
indictment is, that they, "_upon their oath_, present" the party to
have committed the crime. This form, Mr Justice Coleridge observes, is
perhaps stronger than may be wished, and we believe that the criminal
law commissioners are now seriously considering the propriety of
abolishing it.

After hearing the evidence, the grand jury endorse upon the bill their
judgment of the truth or falsehood of the charge. If they think the
accusation groundless, they write upon it, "not found," or "not a true
bill;" in which case the bill is said to be ignored: but, on the other
hand, if twelve at least are satisfied of the truth of the accusation,
the words "true bill" are placed upon it. The bill is then said to be
found. It then becomes an indictment, and is brought into court by the
grand jury, and publicly delivered by the foreman to the clerk of
arraigns, or clerk of the peace, as the case may be, who states to the
court the substance of the indictment and of the indorsement upon it.
If the bill is ignored, and no other bill is preferred against the
party, he is discharged, without further answer, when the grand jury
have finished their labours, and have been themselves discharged. To
find a bill, twelve at least of the jury must agree; for no man, under
this form of proceeding at least, can be convicted even of a
misdemeanour, unless by the unanimous voice of twenty-four of his
equals; that is, by twelve at least of the grand jury assenting to the
accusation, and afterwards by the whole petit jury of twelve more
finding him guilty upon the trial.

This proceeding is wholly _ex parte_. As the informal statement of the
crime brought the supposed criminal to answer before the inferior
tribunal, so does the formal accusation call upon him to answer before
the superior court. The preliminary proceedings being now complete,
and every step having been taken which is necessary to put the accused
upon his trial, the _ex parte_ character of the proceedings is at an
end. The time approaches when the accused must again be brought face
to face with his accusers; and when, if he has been admitted to bail,
his sureties must deliver him up to the proper authorities, or their
bond is forfeited; in which case, a bench warrant for the apprehension
of the delinquent may issue; and if he cannot still be found, he may
be pursued to outlawry. It may be here mentioned, that the
proceedings may be, at any period, removed from any inferior court
into the Queen's Bench, by what is called a writ of _certiorari_. When
the offender appears voluntarily to an indictment, or was before in
custody, or is brought in upon criminal process to answer it in the
proper court, he is to be immediately arraigned. The arraignment is
simply the calling upon the accused, at the bar of the court, to
answer the matter charged upon him in the indictment, the substantial
parts, at least, of which are then read over to him. This is
indispensable, in order that he may fully understand the charge. So
voluminous are the counts of the indictment recently found against Mr
O'Connell and others, that the reading of the charges they contained
was the work of many hours. The accused is not always compelled
immediately to answer the indictment; for if he appear in term-time to
an indictment for a misdemeanour in the Queen's Bench, it is
sufficient if he plead or demur within four days; the court has a
discretionary power to enlarge the time; but if he neither pleads nor
demurs within the time prescribed, judgment may be entered against him
as for want of a plea. It he appear to such an indictment, having been
committed or held to bail within twenty days before the assizes or
sessions at which he is called upon to answer, he has the option of
_traversing_, as it is termed, or of postponing his trial to the next
assizes or sessions. He is also always entitled, before the trial, on
payment of a trifling charge, to have copies of the examinations of
the witnesses on whose evidence he was committed or held to bail; and
at the trial he has a right to inspect the originals gratuitously. In
prosecutions for misdemeanours at the suit of the Attorney-General, a
copy of indictment must be delivered, free of expense, if demanded by
the accused. These seem to be all the privileges except that of
challenge, which we shall explain hereafter, which the accused
possesses, or to which the law gives him an absolute indefeasible
claim as a matter of right. The _practice_ of different courts may
possibly vary in some degree on points such as those which have been
recently mooted in Ireland; for instance, as to whether the names of
the witnesses should be furnished to the accused, and whether their
address and description should also be supplied. In such matters the
practice might vary, in a considerable degree, in the superior courts
of England and Ireland; and yet each course would be strictly legal,
in the respective courts in which it was adopted; for, as it was
clearly put by one of the Irish judges on a recent occasion, the
practice of the court is the law of the court, and the law of the
court is the law of the land.

When the time has arrived at which the accused must put in his answer
to the indictment, if he do not confess the charge, or stand mute of
malice, he may either plead, 1st, to the jurisdiction, which is a good
plea when the court before whom the indictment is taken has no
cognizance of the offence, as when a case of treason is prosecuted at
the quarter sessions; or, 2dly, he may demur, by which he says, that,
assuming that he has done every thing which the indictment lays to his
charge, he has, nevertheless, been guilty of no crime, and is in
nowise liable to punishment for the act there charged. A demurrer has
been termed an issue in law--the question to be determined being, what
construction the law puts upon admitted facts. If the question of law
be adjudged _in favour_ of the accused, it is attended with the same
results as an acquittal in fact, except that he may be indicted afresh
for the same offence; but if the question be determined _against_ the
prisoner, the law, in its tenderness, _will not_ allow him, at least
in cases of felony, to be punished for his misapprehension of the law,
or for his mistake in the conduct of his pleadings, but will, in such
case, permit him to plead over to the indictment--that is, to plead
not guilty; the consequences of which plea we will consider hereafter.

A third alternative is a plea of abatement, which is a plea praying
that the indictment may be quashed, for some defect which the plea
points out. This plea, though it was recently, made use of by the
defendants in the case now pending in Ireland, is of very rare
occurrence in ordinary practice--a recent statute having entirely
superseded every advantage formerly to be derived from this plea, in
cases of a misnomer, or a wrong name, and of a false addition or a
wrong description of the defendant's rank and condition, which were
the principal occasions on which it was resorted to.

The next alternative which the prisoners may adopt, is a special plea
in bar. These pleas are of four kinds: 1. a former acquittal; 2. a
former conviction; 3. a former attainder; 4. a former pardon, for the
same offence. The first two of these pleas are founded on the maxim of
the law of England, that no man is to be twice put in jeopardy for the
same offence. A man is attainted of felony, only by judgment of death,
or by outlawry; for by such judgment, the prisoner being already dead
in law, and having forfeited all his property, there remains no
further punishment to be awarded; and, therefore, any further
proceeding would be superfluous. This plea has, however, been
practically put an end to by a recent statute. A plea of pardon, is
the converse of a plea of attainder; for a pardon at once destroys the
end and purpose of the indictment, by remitting that punishment which
the prosecution was calculated to inflict.

All these pleas may be answered by the crown in two ways--issue may be
joined on the facts they respectively set forth; or they may be
demurred to; by which step, the facts, alleged in the plea, are denied
to constitute a good and valid defence in law. In _felony_, if any of
these pleas are, either in fact or in law, determined against the
prisoner, he cannot be convicted or concluded by the adverse judgment;
and for this reason. Formerly all felonies were punishable with death,
and, in the words of Mr Justice Blackstone, "the law allows many pleas
by which a prisoner may escape death; but only one plea in consequence
whereof it can be inflicted, viz., the general issue, after an
impartial examination and decision of the facts, by the unanimous
verdict of a jury." The prisoner, therefore, although few felonies
remain still capital, is nevertheless still allowed to plead over as
before. In misdemeanours, however, which are never capital, and in
which, therefore, no such principle could ever have applied, the
judgment on these pleas appears to follow the analogy of a civil
action. Thus, if, upon issue joined, a plea of abatement be found
against the accused, the judgment, on that indictment, is final;
though a second indictment may be preferred against him; but if, upon
demurrer, the question of law is held to be against him, the judgment
is, that he do answer the indictment. If a plea in bar, either on
issue joined, or on demurrer, be determined against the defendant, the
judgment is in such case final, and he stands convicted of the

The general issue, or the plea of "not guilty," is the last and most
usual of those answers to the indictment which we have enumerated, the
others being all of extremely rare occurrence in the modern practice
of the criminal law. By this plea, the accused puts himself upon his
county, which county the jury are. The sheriff of the county must then
return a panel of jurors. In England the jurors are taken from the
"jurors' book" of the current year. It must be observed, that a new
jurors' book comes into operation on the first of January in each
year, having previously been copied from the lists of those liable to
serve on juries, made out in the first instance, between the months of
July and October, both inclusive, by the churchwardens and overseers
of each parish, then reviewed and confirmed by the justices of the
peace in petty sessions, and, through the high constable of the
district, delivered to the next quarter sessions. If the proceedings
are before the Queen's Bench, an interval is allowed by the court, in
fixing the time of trial, for the impanneling of the jury, upon a writ
issued to the sheriff for that purpose. The trial in a case of
misdemeanour in the Queen's Bench is had at _nisi prius_, unless it be
of such consequence as to merit a trial at bar, which is invariably
had when the prisoner is tried for any capital offence in that court.
But before the ordinary courts of assize, the sheriff, by virtue of a
general precept directed to him beforehand, returns to the court a
panel of not less than forty-eight nor more than seventy-two persons,
unless the judges of assize direct a greater or smaller number to be
summoned. When the time for the trial has arrived, and the case is
called on, jurors, to the number of twelve, are sworn, unless
challenged as they appear; their names being generally taken
promiscuously, one by one, out of a box containing a number of
tickets, on each of which a juror's name is inserted. Challenges may
be made, either on the part of the crown or on that of the accused,
and either to the whole array or to the separate polls. The challenge
to the array, which must be made in writing, is an exception to the
whole panel, on account of some partiality or default in the sheriff,
or his officer, who arrayed the panel, the ground of which is examined
into before the court. Challenges to the polls--_in capita_--are
exceptions to particular persons, and must be made in each instance,
as the person comes to the box to be sworn, and before he is sworn;
for when the oath is once taken the challenge is too late.

Sir Edward Coke reduces the heads of challenge to four. 1st, _propter
honoris respectum_; as if a lord of Parliament be impannelled. 2d,
_propter defectum_; as if a juryman be an alien born, or be in other
respects generally objectionable. 3d, _propter affectum_; for
suspicion of bias or partiality: and 4th, _propter delictum_; or, for
some crime that affects the juror's credit, and renders him infamous;
In treason and felony, the prisoner is allowed the privilege of a
limited number of _peremptory_ challenges; after which, as in
misdemeanours, there is no limit to the number of challenges, if the
party shows some cause for each challenge to the court. This cause is
tried by persons appointed for that purpose by the court, when no
jurymen have been sworn; but when two jurymen have been sworn, they
are the parties who must adjudicate upon the qualifications of those
who are afterwards challenged, who, except when the challenge is
_propter delictum_, may be themselves examined upon oath. The crown,
also, we have seen, can exercise this privilege, but with this
difference, that no cause for challenge need be shown by the crown,
either in felonies or misdemeanours, till the panel is exhausted, and
unless there cannot be a full jury without the persons so challenged.

When twelve men have been found, they are sworn to give a true verdict
"according to the evidence," and the jury are then ready to hear the
merits of the case. To fix their attention the closer to the facts
which they are impannelled and sworn to try, the indictment, in cases
of importance, is usually opened by the junior counsel for the
crown--a proceeding, by which they are briefly informed of the charge
which is brought against the accused. The leading counsel for the
crown then lays the _facts_ of the case before the jury, in a plain
unvarnished statement; no appeal is made to the passions or prejudices
of the twelve men, who are to pronounce upon the guilt or innocence of
the accused; but every topic, every observation, which might warp
their judgment, or direct their attention from the simple facts which
are about to be proved before them, is anxiously deprecated and
avoided by the counsel for the prosecution. The witnesses for the
crown are called one by one, sworn, examined, and cross-examined by
the accused, or his counsel. When the case for the crown has been
brought to a close, the defence commences, and the counsel for the
defendant addresses the jury. It is the duty of the advocate, on such
an occasion, to put forth all his powers in behalf of his client; to
obtain acquittal is his object: he must sift the hostile evidence, he
must apply every possible test to the accuracy of the testimony, and
to the credibility of the witnesses; he may address himself to the
reason, to the prejudices, to the sympathies, nay, even to the worst
passions of the twelve men whose opinions he seeks to influence in
favour of his client. He may proceed to call witnesses to disprove the
facts adduced on the other side, or to show that the character of the
accused stands too high for even a suspicion of the alleged clime; he
has the utmost liberty of speech and action He may indefinitely
protract the proceedings, and there seems to be scarcely any limit, in
point of law, beyond which the ultimate event of the trial may not be,
by these means, deferred. Whenever the defence closes, in those cases
in which the government is the real prosecutor, the representative of
the crown has the general reply; at the close of which the presiding
judge sums up the evidence to the jury, and informs them of the legal
bearing of the facts, on the effect and existence of which the jury
has to decide. This having been accomplished, it becomes the duty of
the jury to deliberate, decide, and pronounce their verdict. If the
verdict be "Not guilty," the accused is for ever quit and discharged
of the accusation; but if the jury pronounce him guilty, he stands
convicted of the crime which has been thus charged and proved against
him, and awaits the judgment of the court. In felonies and ordinary
misdemeanours, judgment is generally pronounced immediately upon, or
soon after, the delivery of the verdict; in other cases, when the
trial has been had before the Queen's Bench, the judgment may, in
England, be pronounced either immediately or during the ensuing term.
But whenever this event occurs, the prisoner has still one chance more
for escape: he can move an arrest of judgment, on the grounds either
that the indictment is substantially defective, or that he has already
been pardoned or punished for the same offense. These objections, if
successful, will, even at this late stage of the proceedings, save the
defendant from the consequences of his crime. But if these last
resources fail, the court must give the judgment, or pronounce the
measure of that punishment, which the law annexes to the crime of
which the prisoner has been convicted.

By the law of this country, the _species_ of punishment for every
offence is always ascertained; but, between certain defined limits,
the measure and degree of that punishment is, with very few
exceptions, left to the discretion of the presiding judge. Treasons
and some felonies are, indeed, capital: but, in the mercy of modern
times, the great majority of felonies, and all misdemeanours, are
visited, some with various terms of transportation or imprisonment,
which, in most cases, may be with or without hard labour, at the
discretion of the court. In these cases, the punishment is prescribed
by the statute law; but there are some misdemeanours the punishment of
which has not been interfered with by any statute, and to which,
therefore, the common law punishments are still attached. The case of
Mr O'Connell, which is now in abeyance, seems to range itself under
this head of misdemeanours. Such cases are punishable by fine or
imprisonment, or by both; but the amount of the one, or the duration
of the other, is each left at large to be estimated by the court,
according to the more or less aggravated nature of the offence, and,
as it is said, also according to the quality and condition of the
parties. That a fine should, in all cases, be reasonable, has been
declared by Magna Charta; and the Bill of Rights has also provided,
that excessive fine, or cruel and unusual punishments, should not be
inflicted; but what may or may not be unreasonable or excessive, cruel
or unusual, is left entirely to the judgment of the executive.

For crimes of a dark political hue, which, by their tendency to
subvert the government or destroy the institutions of the country,
necessarily assume a character highly dangerous to the safety and
well-being of the state, it might be difficult to say what degree of
punishment would be excessive or unusual. It seems probable, that in
cases of this nature, which include crimes, so varied in their
circumstances that there appears no limit to the degree of guilt
incurred--crimes, the nature and character of which could not possibly
be foreseen or provided for, in all their infinite multiplicity of
detail; it seems probable that, in such cases, a large discretion may
have been purposely left by the framers of our constitution, in order
that the degree of guilt, on each occasion, should be measured by an
expansive self-adjusting scale of punishment, applied, indeed, and
administered by the judges of the land, but regulated and adjusted, in
each succeeding age, by the influence of public opinion, and by the
spirit and temper of the times.

Even at this latest stage of criminal prosecution, in the interval
which must necessarily elapse between the pronouncing and the
infliction of the sentence, the convicted delinquent is not without a
remedy for any wrong he may sustain in the act which terminates the
proceedings. If any judgement not warranted by law be given by the
court, it may be reversed upon a _writ of error_, which lies from all
inferior criminal jurisdictions to the Queen's Bench, and from the
Queen's Bench to the House of Peers. These writs, however, in cases of
misdemeanour, are not allowed, of course, but on probable cause shown
to the Attorney General; and then they are understood to be grantable
of common right, and _ex debito justitiae_. The crown, if every other
resource has failed the prisoner, has always the power of exercising
the most amiable of its prerogatives. Though the sovereign herself
condemns no man, "the great operation of her sceptre is mercy," and
the chief magistrate, in the words of Sir William Blackstone, "holding
a court of equity in his own breast, to soften the rigour of the
general law, in such criminal cases as merit an exemption from
punishment," is ever at liberty to grant a free, unconditional, and
gracious pardon to the injured or repentant convict.

We have now rapidly traced the progress of a criminal prosecution from
its commencement to its close, and we have given a summary of the
_ordinary_ proceedings on such occasions. Although it may be possible
that the practice of the courts in Ireland on minor points, should
occasionally differ in some degree from the practice of the English
Courts, we may, nevertheless, have rendered the proceedings now
pending in the sister isle, more intelligible to the general reader,
who may now, perhaps, be enabled to see the bearing, and understand
the importance of many struggles, which, to the unlearned, might
probably appear to be wholly beside the real question now at issue
between the crown and Mr O'Connell. Whatever be the result of that
prosecution, whether those indicted be found guilty, or acquitted, of
the misdemeanours laid to their charge; we feel assured, on the one
hand, however long and grievous may have been the "provocation," that
while there will be "nothing extenuate," neither will there be "set
down aught in malice;" but that the measure of the retribution now
demanded by the state, will be so temperately and equitably adjusted,
that while the very semblance of oppression is carefully avoided, the
majesty of the law, and the powers of the executive, will be amply and
entirely vindicated. On the other hand, if Mr O'Connell, and his
companions, in guilt or misfortune, should break through the cobwebs
of the law, and hurl a _retrospective_ defiance at the Government; we
feel the utmost confidence, that the learning, foresight, and ability,
of the eminent lawyers who represent the crown, together with the
firmness and integrity of the Irish bench, "_sans peur et sans
reproche_," will demonstrate to the millions who look on, that the
constitutional powers of the state still remain uninjured and
unimpaired in all their pristine and legitimate energy and vigour; and
that neither in the machinery now set in motion, nor with those who
conduct or superintend its action, but with others on whom, in the
course of these proceedings, will be thrown the execution of a grave
and all-important duty, must rest the real blame, if blame there be,
of the failure of _this_ "State Prosecution."

* * * * *


No. III.


I had been but three or four months in Texas, when, in consequence of
the oppressive conduct of the Mexican military authorities, symptoms
of discontent showed themselves, and several skirmishes occurred
between the American settlers and the soldiery. The two small forts of
Velasco and Nacogdoches were taken by the former, and their garrisons
and a couple of field-officers made prisoners; soon after which,
however, the quarrel was made up by the intervention of Colonel Austin
on the part of Texas, and Colonel Mejia on the part of the Mexican

But in the year '33 occurred Santa Anna's defection from the liberal
party, and the imprisonment of Stephen F. Austin, the Texian
representative in the Mexican congress, by the vice-president, Gomez
Farias. This was followed by Texas adopting the constitution of 1824,
and declaring itself an independent state of the Mexican republic.
Finally, towards the close of 1835 Texas threw off the Mexican yoke
altogether, voted itself a free and sovereign republic, and prepared
to defend by arms its newly asserted liberty.

The first step to be taken was, to secure our communications with the
United States by getting possession of the sea-ports. General Cos had
occupied Galveston harbour, and built and garrisoned a block-fort,
nominally for the purpose of enforcing the customs laws, but in
reality with a view to cut off our communications with New Orleans and
the States. This fort it was necessary to get possession of, and my
friend Fanning and myself were appointed to that duty by the Alcalde,
who had taken a prominent part in all that had occurred.

Our whole force and equipment wherewith to accomplish this enterprise,
consisted in a sealed despatch, to be opened at the town of Columbia,
and a half-breed, named Agostino, who acted as our guide. On reaching
Columbia, we called together the principal inhabitants of the place,
and of the neighbouring towns of Bolivar and Marion, unsealed the
letter in their presence, and six hours afterwards the forces therein
specified were assembled, and we were on our march towards Galveston.
The next day the fort was taken, and the garrison made prisoners,
without our losing a single man.

We sent off our guide to the government at San Felipe with news of our
success. In nine days he returned, bringing us the thanks of congress,
and fresh orders. We were to leave a garrison in the fort, and then
ascend Trinity river, and march towards San Antonio de Bexar. This
route was all the more agreeable to Fanning and myself, as it would
bring us into the immediate vicinity of the _haciendas_, or estates,
of which we had some time previously obtained a grant from the Texian
government; and we did not doubt that we were indebted to our friend
the Alcalde for the orders which thus conciliated our private
convenience with our public duty.

As we marched along we found the whole country in commotion, the
settlers all arming, and hastening to the distant place of rendezvous.
We arrived at Trinity river one afternoon, and immediately sent
messengers for forty miles in all directions to summon the
inhabitants. At the period in question, the plantations in that part
of the country were very few and far between, but nevertheless by the
afternoon of the next day we had got together four-and-thirty men,
mounted on mustangs, each equipped with rifle and bowie-knife,
powder-horn and bullet-bag, and furnished with provisions for several
days. With these we started for San Antonio de Bexar, a march of two
hundred and fifty miles, through trackless prairies intersected with
rivers and streams, which, although not quite so big as the
Mississippi or Potomac, were yet deep and wide enough to have offered
serious impediment to regular armies. But to Texian farmers and
backwoodsmen, they were trifling obstacles. Those we could not wade
through we swam over; and in due time, and without any incident worthy
of note, reached the appointed place of rendezvous, which was on the
river Salado, about fifteen miles from San Antonio, the principal city
of the province. This latter place it was intended to attack--an
enterprise of some boldness and risk, considering that the town was
protected by a strong fort, amply provided with heavy artillery, and
had a garrison of nearly three thousand men, commanded by officers who
had, for the most part, distinguished themselves in the revolutionary
wars against the Spaniards. Our whole army, which we found encamped on
the Salado, under the command of General Austin, did not exceed eight
hundred men.

The day after that on which Fanning and myself, with our four and
thirty recruits, reached headquarters, a council of war was held, and
it was resolved to advance as far as the mission of Santa Espada. The
advanced guard was to push forward immediately; the main body would
follow the next day. Fanning and myself were appointed to the command
of the vanguard, in conjunction with Mr Wharton, a wealthy planter,
who had brought a strong party of volunteers with him, and whose
mature age and cool judgment, it was thought, would counterbalance any
excess of youthful heat and impetuosity on our part. Selecting
ninety-two men out of the eight hundred, who, to a man, volunteered to
accompany us, we set out for the mission.

These missions are a sort of picket-houses or outposts of the Catholic
church, and are found in great numbers in all the frontier provinces
of Spanish America, especially in Texas, Santa Fe, and Cohahuila. They
are usually of sufficient strength to afford their inmates security
against any predatory party of Indians or other marauders, and are
occupied by priests, who, while using their endeavours to spread the
doctrines of the Church of Rome, act also as spies and agents of the
Mexican government.

On reaching San Espada we held a discussion as to the propriety of
remaining there until the general came up, or of advancing at once
towards the river. Wharton inclined to the former plan, and it was
certainly the most prudent, for the mission was a strong building,
surrounded by a high wall, and might have been held against very
superior numbers. Fanning and I, however, did not like the idea of
being cooped up in a house, and at last Wharton yielded. We left our
horses and mustangs in charge of eight men, and with the remainder set
out in the direction of the Salado, which flows from north to south, a
third of a mile to the westward of the mission. About half-way between
the latter and the river, was a small group, or island, of muskeet
trees, the only object that broke the uniformity of the prairie. The
bank of the river on our side was tolerably steep, about eight or ten
feet high, hollowed out here and there, and covered with a thick
network of wild vines. The Salado at this spot describes a sort of
bow-shaped curve, with a ford at either end, by which alone the river
can be passed, for although not very broad, it is rapid and deep. We
resolved to take up a position within this bow, calculating that we
might manage to defend the two fords, which were not above a quarter
of a mile apart.

At the same time we did not lose sight of the dangers of such a
position, and of the almost certainty that if the enemy managed to
cross the river, we should be surrounded and cut off. But our success
on the few occasions on which we had hitherto come to blows with the
Mexicans, at Velasco, Nacogdoches, and Galveston, had inspired us with
so much confidence, that we considered ourselves a match for thousands
of such foes, and actually began to wish the enemy would attack us
before our main body came up. We reconnoitred the ground, stationed a
picket of twelve men at each ford, and an equal number in the island
of muskeet trees; and established ourselves with the remainder amongst
the vines and in the hollows on the river bank.

The commissariat department of the Texian army was, as may be
supposed, not yet placed upon any very regular footing. In fact,
every man was, for the present, his own commissary-general. Finding
our stock of provisions to be very small, we sent out a party of
foragers, who soon returned with three sheep, which they had taken
from a _rancho_, within a mile of San Antonio. An old priest, whom
they found there, had threatened them with the anger of Heaven and of
General Cos; but they paid little attention to his denunciations, and,
throwing down three dollars, walked off with the sheep. The priest
became furious, got upon his mule, and trotted away in the direction
of the City to complain to General Cos of the misconduct of the

After this we made no doubt that we should soon have a visit from the
worthy Dons. Nevertheless the evening and the night passed away
without incident. Day broke--still no signs of the Mexicans. This
treacherous sort of calm, we thought, might forbode a storm, and we
did not allow it to lull us into security. We let the men get their
breakfast, which they had hardly finished when the picket from the
upper ford came in with news that a strong body of cavalry was
approaching the river, and that their vanguard was already in the
hollow way leading to the ford. We had scarcely received this
intelligence when we heard the blare of the trumpets, and the next
moment we saw the officers push their horses up the declivitous bank,
closely followed by their men, whom they formed up in the prairie. We
counted six small squadrons, about three hundred men in all. They were
the Durango dragoons--smart troops enough to all appearance, capitally
mounted and equipped, and armed with carbines and sabres.

Although the enemy had doubtless reconnoitred us from the opposite
shore, and ascertained our position, he could not form any accurate
idea of our numbers, for with a view to deceive him, we kept the men
in constant motion, sometimes showing a part of them on the prairie,
then causing them to disappear again behind the vines and bushes. This
was all very knowing for young soldiers such as we were; but, on the
other hand, we had committed a grievous error, and sinned against all
established military rules, by not placing a picket on the further
side of the river, to warn us of the approach of the enemy, and the
direction in which he was coming. There can be little doubt that if we
had earlier notice of their approach, thirty or forty good
marksmen--and all our people were that--might not only have delayed
the advance of the Mexicans, but perhaps even totally disgusted them
of their attempt to cross the Salado. The hollow way on the other side
of the river, leading to the ford, was narrow and tolerably steep, and
the bank was at least six times as high as on our side. Nothing would
have been easier than to have stationed a party, so as to pick off the
cavalry as they wound through this kind of pass, and emerged two by
two upon the shore. Our error, however, did not strike us till it was
too late to repair it; so we were fain to console ourselves with the
reflection that the Mexicans would be much more likely to attribute
our negligence to an excess of confidence in our resources, than to
the inexperience in military matters, which was its real cause. We
resolved to do our best to merit the good opinion which we thus
supposed them to entertain of us.

When the whole of the dragoons had crossed the water, they marched on
for a short distance in an easterly direction: then, wheeling to the
right, proceeded southward, until within some five hundred paces of
us, where they halted. In this position, the line of cavalry formed
the chord of the arc described by the river, and occupied by us.

As soon as they halted, they opened their fire, although the could not
see one of us, for we were completely sheltered by the bank. Our
Mexican heroes, however, apparently did not think it necessary to be
within sight or range of their opponents before firing, for they gave
us a rattling volley at a distance which no carbine would carry. This
done, others galloped on for about a hundred yards, halted again,
loaded, fired another volley, and then giving another gallop, fired
again. They continued this sort of _manege_ till they found themselves
within two hundred and fifty paces of us, and then appeared inclined
to take a little time for reflection.

We kept ourselves perfectly still. The dragoons evidently did not
like the aspect of matters. Our remaining concealed, and not replying
to their fire, seemed to bother them. We saw the officers taking a
deal of pains to encourage their men, and at last two squadrons
advanced, the others following more slowly, a short distance in rear.
This was the moment we had waited for. No sooner had the dragoons got
into a canter, than six of our men who had received orders to that
effect, sprang up the bank, took steady aim at the officers, fired,
and then jumped down again.

As we had expected, the small numbers that had shown themselves,
encouraged the Mexicans to advance. They seemed at first taken rather
aback by the fall of four of their officers; but nevertheless, after a
moment's hesitation, they came thundering along full speed. They were
within sixty or seventy yards of us, when Fanning and thirty of our
riflemen ascended the bank, and with a coolness and precision that
would have done credit to the most veteran troops, poured a steady
fire into the ranks of the dragoons.

It requires some nerve and courage for men who have never gone through
any regular military training, to stand their ground singly and
unprotected, within fifty yards of an advancing line of cavalry. Our
fellows did it, however, and fired, not all at once, or in a hurry,
but slowly and deliberately; a running fire, every shot of which told.
Saddle after saddle was emptied; the men, as they had been ordered,
always picking out the foremost horsemen, and as soon as they had
fired, jumping down the bank to reload. When the whole of the thirty
men had discharged their rifles, Wharton and myself, with the reserve
of six and thirty more, took their places; but the dragoons had almost
had enough already, and we had scarcely fired ten shots when they
executed a right-about turn, with an uniformity and rapidity which did
infinite credit to their drill, and went off at a pace that soon
carried them out of reach of our bullets. They had probably not
expected so warm a reception. We saw their officers doing every thing
they could to check their flight, imploring, threatening, even cutting
at them with their sabres, but it was no use; if they were to be
killed, it must be in their own way, and they preferred being cut down
by their officers to encountering the deadly precision of rifles, in
the hands of men who, being sure of hitting a squirrel at a hundred
yards, were not likely to miss a Durango dragoon at any point within

Our object in ordering the men to fire slowly was, always to have
thirty or forty rifles loaded, wherewith to receive the enemy should
he attempt a charge _en masse_. But our first greeting had been a
sickener, and it appeared almost doubtful whether he would venture to
attack us again, although the officers did every thing in their power
to induce their men to advance. For a long time, neither threats,
entreaties, nor reproaches produced any effect. We saw the officers
gesticulating furiously, pointing to us with their sabres, and
impatiently spurring their horses, till the fiery animals plunged and
reared, and sprang with all four feet from the ground. It is only just
to say, that the officers exhibited a degree of courage far beyond any
thing we had expected from them. Of the two squadrons that charged us,
two-thirds of the officers had fallen; but those who remained, instead
of appearing intimidated by their comrades' fate, redoubled their
efforts to bring their men forward.

At last there appeared some probability of their accomplishing this,
after a most curious and truly Mexican fashion. Posting themselves in
front of their squadrons, they rode on alone for a hundred yards or
so, halted, looked round, as much as to say--"You see there is no
danger as far as this," and then galloping back, led their men on.
Each time that they executed this manoeuvre, the dragoons would
advance slowly some thirty or forty paces, and then halt as
simultaneously as if the word of command had been given. Off went the
officers again, some distance to the front, and then back again to
their men, and got them on a little further. In this manner these
heroes were inveigled once more to within a hundred and fifty yards of
our position.

Of course, at each of the numerous halts which they made during their
advance, they favoured us with a general, but most innocuous discharge
of their carbines; and at last, gaining confidence, I suppose, from
our passiveness, and from the noise and smoke they themselves had been
making, three squadrons which had not yet been under fire, formed open
column and advanced at a trot. Without giving them time to halt or
reflect--"Forward! Charge!" shouted the officers, urging their own
horses to their utmost speed; and following the impulse thus given,
the three squadrons came charging furiously along.

Up sprang thirty of our men to receive them. Their orders were to fire
slowly, and not throw away a shot, but the gleaming sabres and rapid
approach of the dragoons flurried some of them, and firing a hasty
volley, they jumped down the bank again. This precipitation had nearly
been fatal to us. Several of the dragoons fell, and there was some
confusion and a momentary faltering amongst the others; but they still
came on. At this critical moment, Wharton and myself, with the
reserves, showed ourselves on the bank. "Slow and sure-mark your men!"
shouted we both. Wharton on the right and I on the left. The command
was obeyed: rifle after rifle cracked off, always aimed at the
foremost of the dragoons, and at every report a saddle was emptied.
Before we had all fired, Fanning and a dozen of his sharpest men had
again loaded, and were by our side. For nearly a minute the Mexicans
remained, as if stupefied by our murderous fire, and uncertain whether
to advance or retire; but as those who attempted the former, were
invariably shot down, they at last began a retreat, which was soon
converted into a rout. We gave them a farewell volley, which eased a
few more horses of their riders, and then got under cover again, to
await what might next occur.

But the Mexican caballeros had no notion of coming up to the scratch a
third time. They kept patrolling about, some three or four hundred
yards off, and firing volleys at us, which they were able to do with
perfect impunity, as at that distance we did not think proper to
return a shot.

The skirmish had lasted nearly three quarters of an hour. Strange to
say, we had not had a single man wounded, although at times the
bullets had fallen about us as thick as hail. We could not account for
this. Many of us had been hit by the balls, but a bruise or a graze of
the skin was the worst consequence that had ensued. We were in a fair
way to deem ourselves invulnerable.

We were beginning to think that the fight was over for the day, when
our videttes at the lower ford brought us the somewhat unpleasant
intelligence that large masses of infantry were approaching the river,
and would soon be in sight. The words were hardly uttered, when the
roll of the drums, and shrill squeak of the fifes became audible, and
in a few minutes the head of the column of infantry, having crossed
the ford, ascended the sloping bank, and defiled in the prairie
opposite the island of muskeet trees. As company after company
appeared, we were able to form a pretty exact estimate of their
numbers. There were two battalions, together about a thousand men; and
they brought a field-piece with them.

These were certainly rather long odds to be opposed to seventy-two men
and three officers' for it must be remembered that we had left twenty
of our people at the mission, and in the island of trees. Two
battalions of infantry, and six squadrons of dragoons--the latter, to
be sure, disheartened and diminished by the loss of some fifty men,
but nevertheless formidable opponents, now they were supported by the
foot soldiers. About twenty Mexicans to each of us. It was getting
past a joke. We were all capital shots, and most of us, besides our
rifles, had a brace of pistols in our belts; but what were
seventy-five rifles, and five or six score of pistols against a
thousand muskets and bayonets, two hundred and fifty dragoons, and a
field-piece loaded with canister? If the Mexicans had a spark of
courage or soldiership about them, our fate was sealed. But it was
exactly this courage and soldiership, which we made sure would be

Nevertheless we, the officers, could not repress a feeling of anxiety
and self-reproach, when we reflected that we had brought our comrades
into such a hazardous predicament. But on looking around us, our
apprehensions vanished. Nothing could exceed the perfect coolness and
confidence with which the men were cleaning and preparing their rifles
for the approaching conflict; no bravado--no boasting, talking, or
laughing, but a calm decision of manner, which at once told us, that
if it were possible to overcome such odds as were brought against us,
those were the men to do it.

Our arrangements for the approaching struggle were soon completed.
Fanning and Wharton were to make head against the infantry and
cavalry. I was to capture the field-piece--an eight-pounder.

This gun was placed by the Mexicans upon their extreme left, close to
the river, the shores of which it commanded for a considerable
distance. The bank on which we were posted was, as before mentioned,
indented by caves and hollows, and covered with a thick tapestry of
vines and other plants, which was now very useful in concealing us
from the artillerymen. The latter made a pretty good guess at our
position however, and at the first discharge, the canister whizzed
past us at a very short distance. There was not a moment to lose, for
one well-directed shot might exterminate half of us. Followed by a
dozen men, I worked my way as well as I could through the labyrinth of
vines and bushes, and was not more than fifty yards from the gun, when
it was again fired. No one was hurt, although the shot was evidently
intended for my party. The enemy could not see us; but the notion of
the vines, as we passed through them, had betrayed our whereabout: so,
perceiving that we were discovered, I sprang up the bank into the
prairie followed by my men, to whom I shouted, above all to aim at the

I had raised my own rifle to my shoulder, when I let it fall again in
astonishment at an apparition that presented itself to my view. This
was a tall, lean, wild figure, with a face overgrown by long beard
that hung down upon his breast, and dressed in a leather cap, jacket,
and mocassins. Where this man had sprung from was a perfect riddle. He
was unknown to any of us, although I had some vague recollection of
having seen him before, but where or when, I could not call to mind.
He had a long rifle in his hands, which he must have fired once
already, for one of the artillerymen lay dead by the gun. At the
moment I first caught sight of him, he shot down another, and then
began reloading with a rapid dexterity, that proved him to be well
used to the thing. My men were as much astonished as I was by this
strange apparition, which appeared to have started out of the earth;
and for a few seconds they forgot to fire, and stood gazing at the
stranger. The latter did not seem to approve of their inaction.

"D---- yer eyes, ye starin' fools," shouted he in a rough hoarse
voice, "don't ye see them art'lerymen? Why don't ye knock 'em on the

It certainly was not the moment to remain idle. We fired; but our
astonishment had thrown us off our balance, and we nearly all missed.
We sprang down the bank again to load, just as the men serving the gun
were slewing it around, so as to bring it to bear upon us. Before this
was accomplished, we were under cover, and the stranger had the
benefit of the discharge, of which he took no more notice than if he
had borne a charmed life. Again we heard the crack of his rifle, and
when, having reloaded, we once more ascended the bank, he was taking
aim at the last artilleryman, who fell, as his companions had done.

"D---- ye, for laggin' fellers!" growled the stranger. "Why don't ye
take that 'ere big gun?"

Our small numbers, the bad direction of our first volley, but, above
all, the precipitation with which we had jumped down the bank after
firing it, had so encouraged the enemy, that a company of infantry,
drawn up some distance in rear of the field-piece, fired a volley, and
advanced at double-quick time, part of them making a small _detour_
with the intention of cutting us off from our friends. At this
moment, we saw Fanning and thirty men coming along the river bank to
our assistance; so without minding the Mexicans who were getting
behind us, we rushed forward to within twenty paces of those in our
front, and taking steady aim, brought down every man his bird. The
sort of desperate coolness with which this was done, produced the
greater effect on our opponents, as being something quite out of their
way. They would, perhaps, have stood firm against a volley from five
times our number, at a rather greater distance; but they did not like
having their mustaches singed by our powder; and after a moment's
wavering and hesitation, they shouted out "Diabolos! Diabolos!" and
throwing away their muskets, broke into precipitate flight.

Fanning and Wharton now came up with all the men. Under cover of the
infantry's advance, the gun had been re-manned, but, luckily for us,
only by infantry soldiers; for had there been artillerymen to seize
the moment when we were all standing exposed on the prairie, they
might have diminished our numbers not a little. The fuse was already
burning, and we had just time to get under the bank when the gun went
off. Up we jumped again, and looked about us to see what was next to
be done.

Although hitherto all the advantages had been on our side, our
situation was still a very perilous one. The company we had put to
flight had rejoined its battalion, which was now beginning to advance
by _echelon_ of companies. The second battalion, which was rather
further from us, was moving forward in like manner, and in a parallel
direction. We should probably, therefore, have to resist the attack of
a dozen companies, one after the other; and it was to be feared that
the Mexicans would finish by getting over their panic terror of our
rifles, and exchange their distant and ineffectual platoon-firing for
a charge with the bayonet, in which their superior numbers would tell.
We observed, also, that the cavalry, which had been keeping itself at
a safe distance, was now put in motion, and formed up close to the
island of muskeet trees, to which the right flank of the infantry was
also extending itself. Thence they had clear ground for a charge down
upon us.

Meanwhile, what had become of the twelve men whom we had left in the
island? Were they still there, or had they fallen back upon the
mission in dismay at the overwhelming force of the Mexicans? If the
latter, it was a bad business for us, for they were all capital shots,
and well armed with rifles and pistols. We heartily wished we had
brought them with us, as well as the eight men at the mission. Cut off
from us as they were, what could they do against the whole of the
cavalry and two companies of infantry which were now approaching the
island? To add to our difficulties, our ammunition was beginning to
run short. Many of us had only had enough powder and ball for fifteen
or sixteen charges, which were now reduced to six or seven. It was no
use desponding, however; and, after a hurried consultation, it was
agreed that Fanning and Wharton should open a fire upon the enemy's
centre, while I made a dash at the field-piece before any more
infantry had time to come up for its protection.

The infantry-men who had re-manned the gun were by this time shot
down, and, as none had come to replace them, it was served by an
officer alone. Just as I gave the order to advance to the twenty men
who were to follow me, this officer fell. Simultaneously with his
fall, I heard a sort of yell behind me, and, turning round, saw that
it proceeded from the wild spectre-looking stranger, whom I had lost
sight of during the last few minutes. A ball had struck him, and he
fell heavily to the ground, his rifle, which had just been discharged,
and was still smoking from muzzle and touchhole, clutched convulsively
in both hands; his features distorted, his eyes rolling frightfully.
There was something in the expression of his face at that moment which
brought back to me, in vivid colouring, one of the earliest and most
striking incidents of my residence in Texas. Had I not myself seen him
hung, I could have sworn that _Bob Rock, the murderer_, now lay before

A second look at the man gave additional force to this idea.

"Bob!" I exclaimed.

"Bob!" repeated the wounded man, in a broken voice, and with a look
of astonishment, almost of dismay. "Who calls Bob?"

A wild gleam shot from his eyes, which the next instant closed. He had
become insensible.

It was neither the time nor the place to indulge in speculations on
this singular resurrection of a man whose execution I had myself
witnessed. With twelve hundred foes around us, we had plenty to occupy
all our thoughts and attention. My people were already masters of the
gun, and some of them drew it forwards and pointed it against the
enemy, while the others spread out right and left to protect it with
their rifles. I was busy loading the piece when an exclamation of
surprise from one of the men made me look up.

There seemed to be something extraordinary happening amongst the
Mexicans, to judge from the degree of confusion which suddenly showed
itself in their ranks, and which, beginning with the cavalry and right
flank of the infantry, soon became general throughout their whole
force. It was a sort of wavering and unsteadiness which, to us, was
quite unaccountable, for Fanning and Wharton had not yet fired twenty
shots, and, indeed, had only just come within range of the enemy. Not
knowing what it could portend, I called in my men, and stationed them
round the gun, which I had double-shotted, and stood ready to fire.

The confusion in the Mexican ranks increased. For about a minute they
waved and reeled to and fro, as if uncertain which way to go; and, at
last, the cavalry and right of the line fairly broke, and ran for it.
This example was followed by the centre, and presently the whole of
the two battalions and three hundred cavalry were scattered over the
prairie, in the wildest and most disorderly flight. I gave them a
parting salute from the eight-pounder, which would doubtless have
accelerated their movements had it been possible to run faster than
they were already doing.

We stood staring after the fugitives in perfect bewilderment, totally
unable to explain their apparently causeless panic. At last the report
of several rifles from the island of trees gave us a clue to the

The infantry, whose left flank extended to the Salado, had pushed
their right into the prairie as far as the island of muskeet trees, in
order to connect their line with the dragoons, and then by making a
general advance, to attack us on all sides at once, and get the full
advantage of their superior numbers. The plan was not a bad one.
Infantry and cavalry approached the island, quite unsuspicious of its
being occupied. The twelve riflemen whom we had stationed there
remained perfectly quiet, concealed behind the trees; allowed
squadrons and companies to come within twenty paces of them, and then
opened their fire, first from their pistols, then from their rifles.

Some six and thirty shots, every one of which told, fired suddenly
from a cover close to their rear, were enough to startle even the best
troops, much more so our Mexican dons, who, already sufficiently
inclined to a panic, now believed themselves fallen into an ambuscade,
and surrounded on all sides by the incarnate _diabolos_, as they
called us. The cavalry, who had not yet recovered the thrashing we had
given them, were ready enough for a run, and the infantry were not
slow to follow them.

Our first impulse was naturally to pursue the flying enemy, but a
discovery made by some of the men, induced us to abandon that idea.
They had opened the pouches of the dead Mexicans in order to supply
themselves with ammunition, ours being nearly expended; but the powder
of the cartridges turned out so bad as to be useless. It was little
better than coal dust, and would not carry a ball fifty paces to kill
or wound. This accounted for our apparent invulnerability to the fire
of the Mexicans. The muskets also were of a very inferior description.
Both they and the cartridges were of English make; the former being
stamped Birmingham, and the latter having the name of an English
powder manufactory, with the significant addition, "for exportation."

Under these circumstances, we had nothing to do but let the Mexicans
run. We sent a detachment to the muskeet island, to unite itself with
the twelve men who had done such good service there, and thence
advance towards the ford. We ourselves proceeded slowly in the latter
direction. This demonstration brought the fugitives back again, for
they had, most of them, in the wild precipitation of their flight,
passed the only place where they could cross the river. They began
crowding over in the greatest confusion, foot and horse all mixed up
together; and by the time we got within a hundred paces of the ford,
the prairie was nearly clear of them. There were still a couple of
hundred men on our side of the water, completely at our mercy, and
Wharton, who was a little in front with thirty men, gave the word to
fire upon them. No one obeyed. He repeated the command. Not a rifle
was raised. He stared at his men, astonished and impatient at this
strange disobedience. An old weather-beaten bear-hunter stepped
forward, squirting out his tobacco juice with all imaginable

"I tell ye what, capting!" said he, passing his quid over from his
right cheek to his left; "I calkilate, capting," he continued, "we'd
better leave the poor devils of dons alone."

"The poor devils of dons alone!" repeated Wharton in a rage. "Are you
mad, man?"

Fanning and I had just come up with our detachment, and were not less
surprised and angry than Wharton was, at this breach of discipline.
The man, however, did not allow himself to be disconcerted.

"There's a proverb, gentlemen," said he, turning to us, "which says,
that one should build a golden bridge for a beaten enemy; and a good
proverb it is, I calkilate--a considerable good one."

"What do you mean, man, with your golden bridge?" cried Fanning. "This
is no time for proverbs."

"Do you know that you are liable to be punished for insubordination?"
said I. "It's your duty to fire, and do the enemy all the harm you
can; not to be quoting proverbs."

"Calkilate it is," replied the man very coolly. "Calkilate I could
shoot 'em without either danger or trouble; but I reckon that would be
like Spaniards or Mexicans; not like Americans--not prudent."

"Not like Americans? Would you let the enemy escape, then, when we
have him in our power?"

"Calkilate I would. Calkilate we should do ourselves more harm than
him by shooting down his people. That was a considerable sensible
commandment of yourn, always to shoot the foremost of the Mexicans
when they attacked. It discouraged the bold ones, and was a sort of
premium on cowardice. Them as lagged behind escaped, them as came
bravely on were shot. It was a good calkilation. If we had shot 'em
without discrimination, the cowards would have got bold, seein' that
they weren't safer in rear than in front. The cowards are our best
friends. Now them runaways," continued he, pointing to the Mexicans,
who were crowding over the river, "are jest the most cowardly of 'em
all, for in their fright they quite forgot the ford, and it's because
they ran so far beyond it, that they are last to cross the water. And
if you fire at 'em now, they'll find that they get nothin' by bein'
cowards, and next time, I reckon, they'll sell their hides as dear as
they can."

Untimely as this palaver, to use a popular word, undoubtedly was, we
could scarcely forbear smiling at the simple _naive_ manner in which
the old Yankee spoke his mind.

"Calkilate, captings," he concluded, "you'd better let the poor devils
run. We shall get more profit by it than if we shot five hundred of
'em. Next time they'll run away directly to show their gratitude for
our ginerosity."

The man stepped back into the ranks, and his comrades nodded
approvingly, and calculated and reckoned that Zebediah had spoke a
true word; and meanwhile the enemy had crossed the river, and was out
of our reach. We were forced to content ourselves with sending a party
across the water to follow up the Mexicans, and observe the direction
they took. We then returned to our old position.

My first thought on arriving there was to search for the body of Bob
Rock--for he it undoubtedly was, who had so mysteriously appeared
amongst us. I repaired to the spot where I had seen him fall; but
could discover no signs of him, either dead or alive. I went over the
whole scene of the fight, searched amongst the vines and along the
bank of the river; there were plenty of dead Mexicans--cavalry,
infantry, and artillery, but no Bob was to be found, nor could any one
inform me what had become of him, although several had seen him fall.

I was continuing my search, when I met Wharton, who asked me what I
was seeking, and on learning, shook his head gravely. He had seen the
wild prairieman, he said, but whence he came, or whither he was gone,
was more than he could tell. It was a long time since any thing had
startled and astonished him so much as this man's appearance and
proceedings. He (Wharton,) had been stationed with his party amongst
the vines, about fifty paces in rear of Fanning's people, when just as
the Mexican infantry had crossed the ford, and were forming up, he saw
a man approaching at a brisk trot from the north side of the prairie.
He halted about a couple of hundred yards from Wharton, tied his
mustang to a bush, and with his rifle on his arm, strode along the
edge of the prairie in the direction of the Mexicans. When he passed
near Wharton, the latter called out to him to halt, and say who he
was, whence he came, and whither going.

"Who I am is no business of yourn," replied the man: "nor where I come
from neither. You'll soon see where I'm goin'. I'm goin' agin' the

"Then you must come and join us," cried Wharton.

This the stranger testily refused to do. He'd fight on his own hook,
he said.

Wharton told him he must not do that.

He should like to see who'd hinder him, he said, and walked on. The
next moment he shot the first artilleryman. After that they let him
take his own way.

Neither Wharton, nor any of his men, knew what had become of him; but
at last I met with a bear-hunter, who gave me the following

"Calkilatin'," said he, "that the wild prairieman's rifle was a
capital good one, as good a one as ever killed a bear, he tho't it a
pity that it should fall into bad hands, so went to secure it himself,
although the frontispiece of its dead owner warn't very invitin'. But
when he stooped to take the gun, he got such a shove as knocked him
backwards, and on getting up, he saw the prairieman openin' his jacket
and examinin' a wound on his breast, which was neither deep nor
dangerous, although it had taken away the man's senses for a while.
The ball had struck the breast bone, and was quite near the skin, so
that the wounded man pushed it out with his fingers; and then
supporting himself on his rifle, got up from the ground, and without
either a thankye, or a d---nye, walked to where his mustang was tied
up, got on its back, and rode slowly away in a northerly direction."

This was all the information I could obtain on the subject, and
shortly afterwards the main body of our army came up, and I had other
matters to occupy my attention. General Austin expressed his gratitude
and approbation to our brave fellows, after a truly republican and
democratic fashion. He shook hands with all the rough bear and buffalo
hunters, and drank with them. Fanning and myself he promoted, on the
spot, to the rank of colonel.

We were giving the general a detailed account of the morning's events,
when a Mexican priest appeared with a flag of truce and several
waggons, and craved permission to take away the dead. This was of
course granted, and we had some talk with the padre, who, however, was
too wily a customer to allow himself to be pumped. What little we did
get out of him, determined us to advance the same afternoon against
San Antonio. We thought there was some chance, that in the present
panic-struck state of the Mexicans, we might obtain possession of the
place by a bold and sudden assault.

In this, however, we were mistaken. We found the gates closed, and the
enemy on his guard, but too dispirited to oppose our taking up a
position at about cannon-shot from the great redoubt. We had soon
invested all the outlets from the city.

San Antonio de Bexar lies in a fertile and well-irrigated valley,
stretching westward from the river Salado. In the centre of the town
rises the fort of the Alamo, which at that time was armed with
forty-eight pieces of artillery of various calibre. The garrison of
the town and fortress was nearly three thousand strong.

Our artillery consisted of two batteries of four six, and five
eight-pounders; our army of eleven hundred men, with which we had not
only to carry on the siege, but also to make head against the forces
that would be sent against us from Cohahuila, on the frontier of which
province General Cos was stationed, with a strong body of troops.

We were not discouraged, however, and opened our fire upon the city.
During the first week, not a day passed without smart skirmishes.
General Cos's dragoons were swarming about us like so many Bedouins.
But although well-mounted, and capital horsemen, they were no match
for our backwoodsmen. Those from the western states especially,
accustomed to Indian warfare and cunning, laid traps and ambuscades
for the Mexicans, and were constantly destroying their detachments. As
for the besieged, if one of them showed his head for ten seconds above
the city wall, he was sure of getting a rifle bullet through it. I
cannot say that our besieging army was a perfect model of military
discipline; but any deficiencies in that respect were made good by the
intelligence of the men, and the zeal and unanimity with which they
pursued the accomplishment of one great object--the capture of the
city--the liberty and independence of Texas.

The badness of the gunpowder used by the Mexicans, was again of great
service to us. Many of their cannon balls that fell far short of us,
were collected and returned to them with powerful effect. We kept a
sharp look-out for convoys, and captured no less than three--one of
horses, another of provisions, and twenty thousand dollars in money.

After an eight weeks' siege, a breach having been made, the city
surrendered, and a month later the fort followed the example. With a
powerful park of artillery, we then advanced upon Goliad, the
strongest fortress in Texas, which likewise capitulated in about four
weeks' time. We were now masters of the whole country, and the war was
apparently at an end.

But the Mexicans were not the people to give up their best province so
easily. They have too much of the old Spanish character about
them--that determined obstinacy which sustained the Spaniards during
their protracted struggle against the Moors. The honour of their
republic was compromised, and that must be redeemed. Thundering
proclamations were issued, denouncing the Texians as rebels, who
should be swept off the face of the earth, and threatening the United
States for having aided us with money and volunteers. Ten thousand of
the best troops in Mexico entered Texas and were shortly to be
followed by ten thousand more. The President, General Santa Anna,
himself came to take the command, attended by a numerous and brilliant

The Texians laughed at the fanfarronades of the dons, and did not
attach sufficient importance to these formidable preparations. Their
good opinion of themselves, and contempt of their foes, had been
increased to an unreasonable degree by their recent and rapid
successes. They forgot that the troops to which they had hitherto been
opposed were for the most part militia, and that those now advancing
against them were of a far better description, and had probably better
powder. The call to arms made by our president, Burnet, was
disregarded by many, and we could only get together about two thousand
men, of whom nearly two-thirds had to be left to garrison the forts of
Goliad and Alamo. In the first named place we left seven hundred and
sixty men, under the command of Fanning; in the latter, something more
than five hundred. With the remaining seven or eight hundred, we took
the field. The Mexicans advanced so rapidly, that they were upon us
before we were aware of it, and we were compelled to retreat, leaving
the garrisons of the two forts to their fate, and a right melancholy
one it proved to be.

One morning news was brought to Goliad, that a number of country
people, principally women and children, were on their way to the fort,
closely pursued by the Mexicans. Fanning, losing sight of prudence in
his compassion for these poor people, immediately ordered a battalion
of five hundred men, under the command of Major Ward, to go and meet
the fugitives and escort them in. The major, and several officers of
the garrison, doubted as to the propriety of this measure; but
Fanning, full of sympathy for his unprotected country-women, insisted,

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