Chapter 7

Please your worship, had the officials of the crown adopted towards me, in the first instance, the course which they have taken upon the present occasion, and had they not adopted the singular course which they pursued in my regard when I last appeared in this court, I should trouble you with no observations. For, as one of the 50,000 persons who, on the 8th of December, in this city, publicly, lawfully, and peacefully demonstrated their protest against what they believed to have been a denial of law and an outrage on justice, I should certainly waste no public time in this preliminary investigation, but rather admit the facts as you perceive I have done to-day, and hasten the final decision on the issues really knit between us and the crown. What was the course adopted by the crown in the first instance against me? They had before them, on the 9th, just as well as on the 29th--it is in evidence that they had--the fact that I, openly and publicly, took part in that demonstration--that sorrowful and sad protest against injustice (applause). They had before them then as much as they had before them to-day, or as much as they will ever have affecting me. For, whatever course I take in public affairs in this country, I conceal nothing, I take it publicly, openly, and deliberately. If I err, I am satisfied to abide the consequences; and, whenever it may suit the weathercock judgment of Lord Mayo, and his vacillating law advisers, to characterise my acts or my opinion as illegal, seditious, heretical, idolatrous, or treasonable, I must, like every other subject, be content to take my chance of their being able to find a jury sufficiently facile or sufficiently stupid to carry out their behests against me. But they did not choose that course at first. They did not summon me as a principal, but they subpoenaed me as a witness--as a crown witness--against some of my dearest, personal, and public friends. The attorney-general, whose word I most fully and frankly accept in the matter--for I would not charge him with being wanting in personal truthfulness--denied having had any complicity in the course of conduct pursued towards me; but where does he lay the responsibility? On "the police." What is the meaning of that phrase, "the police?" He surely does not mean that the members of the force, who parade our streets, exercise viceregal functions (laughter). Who was this person thus called the "police?" How many degrees above or below the attorney-general are we to look for this functionary described as "the police," who has the authority to have a "seditious" man--that is the allegation--a seditious man--exempted from prosecution? The police cannot do that. Who, then? Who was he that could draw the line between John Martin and his friend A.M. Sullivan--exempt the one, prosecute the other--summon the former as a defendant and subpoena the latter as a crown witness? What was the object? It is plain. There are at this moment, I am convinced--who doubts it?--throughout Ireland, as yet unfound out, Talbots and Corridons in the pay of the crown acting as Fenian centres, who, next day, would receive from their employers directions to spread amongst my countrymen the intelligence that I had been here to betray my associate, John Martin (applause). But their plot recoiled--their device was exposed; public opinion expressed its reprobation of the unsuccessful trick; and now they come to mend their hand. The men who were exempted before are prosecuted to-day. Now, your worships, on this whole case--on this entire procedure--I deliberately charge that not we, but the government, have violated the law. I charge that the government are well aware that the law is against them--that they are irresistibly driven upon this attempt to strain and break the law against the constitutional right and liberty of the subject by their mere party exigencies and necessities.

He then reviewed at length the bearing of the Party Processions Act upon the present case; and next proceeded to deal with the subject of the Manchester executions; maintaining that the men were hanged, as were others before them, in like moments of national passion and frenzy, on a false evidence and a rotten verdict. Mr. Sullivan proceeded:--

It is because the people love justice and abhor injustice--because the real crime of those three victims is believed to have been devotion to native land--that the Catholic churches of Ireland resound with prayers and requiem hymns, and the public highways were lined with sympathising thousands, until the guilty fears of the executioners proclaimed it illegal to mourn. Think you, sir, if the crown view of this matter were the true one, would the Catholic clergy of Ireland--they who braved fierce and bitter unpopularity in reprehending the Fenian conspiracy at a time when Lord Mayo's organ was patting it on the back for its 'fine Sardinian spirit'--would these ministers of religion drape their churches for three common murderers? I repel as a calumnious and slanderous accusation against the Catholic clergy of Ireland this charge, that by their mourning for those three martyred Irishmen, they expressed sympathy, directly or indirectly, with murder or life-taking. If an act be seditious, it is not the less illegal in the church than in the graveyard, or on the road to the cemetery. Are we, then, to understand that our churches are to be invaded by bands of soldiery, and our priests dragged from the altars, for the seditious crime of proclaiming aloud their belief in the innocence of Allen, Larkin, and O'Brien? This, sir, is what depends on the decision in this case, here or elsewhere. All this and more. It is to be decided whether, in their capacity of Privy Councillors, the judges of the land shall put forth a proclamation the legality or binding force of which they will afterwards sit as judges to try. It is whether, there being no constitution now allowed to exist in the country, there is to be no law save what a Castle proclamation will construct, permit, or decree; no mourning save what the police will license; no demonstration of opinion save whatever accords with the government views. We hear much of the liberties enjoyed in this country. No doubt, we have fine constitutional rights and securities, until the very time they are most required. When we have no need to invoke them, they are permitted to us; but at the only time when they might be of substantial value, they are, as the phrase goes, "suspended." Who, unless in times of governmental panic, need apprehend unwarranted arrest? When else is the _Habeas Corpus_ Act of such considerable protection to the subject? When, unless when the crown seeks to invade public liberty, is the purity and integrity of trial by jury of such value and importance in political cases? Yet all the world knows that the British government, whenever such a conflict arises, juggles and packs the jury--

Mr. Dix--I really cannot allow that language to be used in this court, Mr. Sullivan, with every disposition to accord you, as an accused person, the amplest limits in your observations. Such language goes beyond what I can permit--

Mr. Sullivan--I, at once, in respect for your worship, retract the word juggle. I will say the crown manipulates the jury.

Mr. Dix--I can't at all allow this line of comment to be pursued--

Mr. Sullivan--With all respect for your worship, and while I am ready to use any phrase most suitable for utterance here, I will not give up my right to state and proclaim the fact, however unpalatable, when it is notoriously true. I stand upon my rights to say, that you have all the greater reason to pause, ere you send me, or any other citizen, for trial before a jury in a crown prosecution at a moment like the present, when trial by jury, as the theory of the constitution supposes it, does not exist in the land. I say there is now notoriously no fair trial by jury to be had in this country, as between the subject and the crown. Never yet, in an important political case, have the government in this country dared to allow twelve men indifferently chosen, to pass into the jury-box to try the issue between the subject and the crown. And now, sir, if you send the case for trial, and suppose the government succeed by the juries they are able to empanel here, with 'Fenian' ticketed on the backs of the accused by the real governors of the country--the Heygates and the Bruces--and if it is declared by you that in this land of mourning it has become at last criminal even to mourn--what a victory for the crown! Oh, sir, they have been for years winning such victories, and thereby manufacturing conspiracies--driving people from the open and legitimate expression of their sentiments into corners to conspire and to hide. I stand here as a man against whom some clamour has been raised for my efforts to save my countrymen from the courses into which the government conduct has been driving them, and I say that there is no more revolutionary agent in the land than that persecution of authority which says to the people, "When we strike you, we forbid you to weep." We meet the crown, foot to foot, on its case here. We say we have committed no offence, but that the prosecution against us has been instituted to subserve their party exigencies, and that the government is straining and violating the law. We challenge them to the issue, and even should they succeed in obtaining from a crown jury a verdict against us, we have a wider tribunal to appeal to--the decision of our own consciences and the judgment of humanity (applause).

Mr. Murphy, Q.C., briefly replied. He asked his worship not to decide that the procession was illegal, but that this case was one for a court of law and a jury.

On this occasion it was unnecessary for Mr. Dix to take any "time to consider his decision." All the accused were bound over in their own recognizances to stand their trials at the forthcoming Commission in Green-street court, on the 10th of February, 1868.

The plunge which the crown officials had shivered so long before attempting had now been taken, and they determined to go through with the work, _a l'outrance_. In the interval between the last police-court scene described above, and the opening of the Green-street Commission, in February, 1868, prosecutions were directly commenced against the _Irishman_ and the _Weekly News_ for seditious writing. In the case of the former journal the proprietor tried some skilfully-devised preparatory legal moves and manoeuvers, not one of which of course succeeded, though their justice and legality were apparent enough. In the case of the latter journal--the _Weekly News_--the proprietor raised no legal point whatsoever. The fact was that when he found the crown not content with _one_ state prosecution against him (that for the funeral procession), coming upon him with _a second_, he knew his doom was sealed. He very correctly judged that legal moves would be all in vain--that his conviction, _per fas aut ne fas_, was to be obtained--that a jury would be packed against him--and that consequently the briefest and most dignified course for him would be to go straight to the conflict and meet it boldly.

On Monday, 10th February, 1868, the commission was opened in Green-street, Dublin, before Mr. Justice Fitzgerald and Baron Deasy. Soon a cunning and unworthy legal trick on the part of the crown was revealed. The prosecuted processionists and journalists had been indicted in the _city_ venue, had been returned for trial to the _city_ commission by a _city_ jury. But the government at the last moment mistrusted a city jury in this instance--even a _packed_ city jury--and without any notice to the traversers, sent the indictments before the _county_ grand jury, so that they might be tried by a jury picked and packed from the anti-Irish oligarchy of the Pale. It was an act of gross illegality, hardship, and oppression. The illegality of such a course had been ruled and decided in the case of Mr. Gavan Duffy in 1848. But the point was raised vainly now. When Mr. Pigott, of the _Irishman_, was called to plead, his counsel (Mr. Heron, Q.C.) insisted that he, the traverser, was now in custody of the _city_ sheriff in accordance with his recognizances, and could not without legal process be removed to the county venue. An exciting encounter ensued between Mr. Heron and the crown counsel, and the court took till next day to decide the point. Next morning it was decided in favour of the crown, and Mr. Pigott was about being arraigned, when, in order that he might not be prejudiced by having attended pending the decision, the attorney-general said, "he would shut his eyes to the fact that that gentleman was now in court," and would have him called immediately--an intimation that Mr. Pigott might, if advised, try the course of refusing to appear. He did so refuse. When next called, Mr. Pigott was not forthcoming, and on the police proceeding to his office and residence that gentleman was not to be found--having, as the attorney-general spitefully expressed it, "fled from justice." Mr. Sullivan's case, had, of necessity, then to be called; and this was exactly what the crown had desired to avoid, and what Mr. Heron had aimed to secure. It was the secret of all the skirmishing. A very general impression prevailed that the crown would fail in getting a jury to convict Mr. Sullivan on any indictment tinctured even ever so faintly with "Fenianism;" and it was deemed of great importance to Mr. Pigott's case to force the crown to begin with the one in which failure was expected--Mr. Sullivan having intimated his perfect willingness to be either pushed to the front or kept to the last, according as might best promise to secure the discomfiture of the government. Mr. Heron had therefore so far out-manoeuvered the crown. Mr. Sullivan appeared in court and announced himself ready for trial, and the next morning was fixed for his arraignment. Up to this moment, that gentleman had expressed his determination not only to discard legal points, but to decline ordinary professional defence, and to address the jury in his own behalf. Now, however, deferring to considerations strongly pressed on him (set forth in his speech to the jury in the funeral procession case), he relinquished this resolution; and, late on the night preceding his trial, entrusted to Mr. Heron, Q.C., Mr. Crean, and Mr. Molloy, his defence on this first prosecution.

Next morning, Saturday, 15th February, 1868, the trial commenced; a jury was duly packed by the "stand-by" process, and notwithstanding a charge by Justice Fitzgerald, which was, on the whole one of the fairest heard in Ireland in a political case for many years, Mr. Sullivan was duly convicted of having, by pictures and writings in his journal the _Weekly News_, seditiously brought the crown and government into hatred and contempt.

The government officials were jubilant. Mr. Pigott was next arraigned, and after an exceedingly able defence by Mr. Heron, was likewise convicted.

It was now very generally concluded that the government would be satisfied with these convictions, and would not proceed with the funeral procession cases. At all events, it was universally regarded as certain that Mr. Sullivan would not be arraigned on the second or funeral procession indictment, as he now stood convicted on the other--the press charge. But it was not to be so. Elate with their success, the crown officials thought they might even discard their doubts of a city jury; and on Thursday morning, 20th February, 1868, John Martin, Alexander M. Sullivan, Thomas Bracken, and J.J. Lalor,[A] were formally arraigned in the _city_ venue. [Footnote A: Dr. Waters, in the interval since his committal on this charge, had been arrested, and was now imprisoned, under the Suspension of the _Habeas Corpus_ Act. He was not brought to trial on the procession charge.]

It was a scene to be long remembered, that which was presented in the Green-street court-house on that Thursday morning. The dogged vindictiveness of the crown officials, in persisting with this second prosecution, seemed to have excited intense feeling throughout the city, and long before the proceedings opened the court was crowded in every part with anxious spectators. When Mr. Martin entered, accompanied by his brother-in-law, Dr. Simpson, and Mr. Ross Todd, and took his seat at the travelers' bar, a low murmur of respectful sympathy, amounting to applause, ran through the building. And surely it was a sight to move the heart to see this patriot--this man of pure and stainless life, this man of exalted character, of noble soul, and glorious principles--standing once more in that spot where twenty years before he stood confronting the same foe in the same righteous and holy cause--standing once more at that bar whence, twenty years before, he was led off manacled to a felon's doom for the crime of loving Ireland! Many changes had taken place in the interval, but over the stern integrity of _his_ soul time had wrought no change. He himself seemed to recall at this moment his last "trial" scene on this spot, and, as he cast his gaze around, one could detect on his calm thoughtful face something of sadness, yet of pride, as memory doubtless pictured the spectacle of twenty years ago.

Mr. Sullivan, Mr. Bracken, and Mr. Lalor, arrived soon after, and immediately the judges appeared on the bench the proceedings began.

On their lordships, Mr. Justice Fitzgerald and Mr. Baron Deasy, taking their seats upon the bench,

Mr. Smartt (deputy clerk of the crown) called upon John Martin, Alexander M. Sullivan, John J. Lalor, and Thomas Bracken, to come and appear as they were bound to do in discharge of their recognizances.

All the traversers answered.

Mr. Smartt then proceeded to arraign the traversers under an indictment charging in the first count--"That John Martin, John C. Waters, John J. Lalor, Alexander M. Sullivan, and Thomas Bracken, being malicious, seditious, and ill-disposed persons, and intending to disturb the peace and tranquillity of the realm, and to excite discontent and disaffection, and to excite the subjects of our Lady the Queen in Ireland to hatred and dislike of the government, the laws, and the administration of the laws of this realm, on the 8th day of December, in the year of our Lord, 1867, unlawfully did assemble and meet together with divers other persons, amounting to a large number--to wit, fifteen thousand persons--for the purpose of exciting discontent and disaffection, and for the purpose of exciting her Majesty's subjects in Ireland to hatred of her government and the laws of this realm, in contempt of our Lady the Queen, in open violation of the laws of this realm, and against the peace of our Lady the Queen, her crown and dignity." The second count charged that the defendants intended "to cause it to be believed that the three men who had been duly tried, found guilty, and sentenced, according to law, for murder, at Manchester, in England, had been illegally and unjustly executed; and to excite hatred, dislike, and disaffection against the administration of justice, and the laws of this realm, for and in respect of the execution of the said three men." A third count charged the publication at the unlawful assembly laid in the first and second counts of the false and seditious words contained in Mr. John Martin's speech. A fourth and last count was framed under the Party Processions' Act, and charged that the defendants "did unlawfully meet, assemble, and parade together, and were present at and did join in a procession with divers others, and did bear, wear, and have amongst them in said procession certain emblems and symbols, the display whereof was calculated to and did tend to provoke animosity between different classes of her Majesty's subjects, against the form of the statute in such case made and provided, and against the peace of our Lady the Queen, her crown and dignity."

The traversers severally pleaded not guilty.

The Attorney-General, the Solicitor-General, Dr. Ball, Q.C.; Mr. Charles Shaw, Q.C.; Mr. James Murphy, Q.C.; Mr. R.H. Owen, Q.C.; and Mr. Edward Beytagh, instructed by Mr. Anderson, Crown Solicitor, appeared to prosecute.

Mr. Martin, Mr. Sullivan, and Mr. Bracken were not professionally assisted.

Mr. Michael T. Crean, instructed by Mr. John T. Scallan, appeared for Mr. Lalor.

And now came the critical stage of the case. _Would the crown pack the jury?_ The clerk of the crown began to call the panel, when--

John Keegan was called and ordered to stand by on the part of the crown.

Mr. Sullivan--My lord, have I any right to challenge?

Mr. Justice Fitzgerald--You have Mr. Sullivan, for cause.

Mr. Sullivan--And can the crown order a juror to stand by without a cause assigned?

Mr. Justice Fitzgerald--The crown has a right to exercise that privilege.

Mr. Sullivan--Well, I will exercise no challenge, for cause or without cause. Let the crown select a jury now as it pleases.

Subsequently George M'Cartney was called, and directed to stand by.

Patrick Ryan was also ordered to stand by.

Mr. Martin--I protest against this manner of selecting a jury. I do so publicly.

J.J. Lalor--I also protest against it.

Thomas Bracken--And I also.

The sensation produced by this scene embarrassed the crown officials not a little. It dragged to light the true character of their proceeding. Eventually the following twelve gentlemen were suffered by the crown to pass into the box as a "jury"--[Footnote: Not one Catholic was allowed to pass into the box. Every Catholic who came to the box was ordered to "_Stand by_."]

SAMUEL EAKINS, Foreman. WILLIAM DOWNES GRIFFITH. EDWARD GATCHELL. THOMAS MAXWELL HUTTON. MAURICE KERR. WILLIAM LONGFIELD. JOSEPH PURSER. THOMAS PAUL. JAMES REILLY. JOHN GEORGE SHIELS. WILLIAM O'BRIEN SMYTH. GEORGE WALSH.

The Solicitor-General, Mr. Harrison, stated the case for the prosecution. Next the police repeated their evidence--their description of the procession--as given before the magistrates, and the government short-hand writer proved Mr. Martin's speech. The only witnesses now produced who had not testified at the preliminary stage were a Manchester policeman named Seth Bromley, who had been one of the van escort on the day of the rescue, and the degraded and infamous crown spy, Corridon. The former--eager as a beagle on the scent to run down the prey before him--left the table amidst murmurs of derision and indignation evoked by his over-eagerness on his direct examination, and his "fencing" and evasion on cross-examination. The spy Corridon was produced "to prove the existence of the Fenian conspiracy." Little notice was taken of him. Mr. Crean asked him barely a trivial question or two. Mr. Martin and Mr. Sullivan, when asked if they desired to cross-examine him, replied silently by gestures of loathing; and the wretch left the table--crawled from it--like a crippled murderer from the scene of his crime.