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[From the Dublin Evening Mail, October 525, 1867.]
THIS DAY.—COMMlSSl0N OF OYER AND TERMINER.
The commission of oyer and terminer for the county and city of Dublin was opened this morning, before the lord mayor, the lord chief baron, and Mr. Justice Morris.
The Fenian prisoners, thirty-one in number, were conveyed from Kilmainbam jail in two prison vans, under escort of a detachment of the metropolitan cavalry police and a troop of the 12th lancers. No demonstration took place along the route.
Tlie court-house, Green street, was nine crowded, but no inconvenience arose, in consequence of the excellent police arrangements made by Mr. Superintendent Hawe.
The attorney general, the solicitor general, Mr. Longfield, Q. C., Mr. James Murphy, Q. C,. and Mr. Robert H. Owenes, Q. C., instructed y Mr. Anderson, Crown solicitor, appeared to prosecute in Fenian cases. ~
Messrs. Heron, Q. C., Dowse, Q. C., and Constantine Molloy, instructed by Mr. John Lawless, were of counsel for the risoners General Nagle and Colonel Warren, whose defence it is stated will be conducte at the expense of the American government.
Mr. Scallan, solicitor, attended on behalf of the Dungarvan prisoners.
Their lordships took their seats on the bench at a quarter ast eleven o’clock.
The crier having made the usual proclamation, Mr. Smart, eputy clerk of the Crown, called over the grand panel, when the following gentlemen-w'ere swom on the respective grand nries 2 '
J City: William Graham, (foreman.) William Longfield,- Andrew W. Ferguson, Robert Long, John De Burgh Morris, John Judkin Butler, Bernard Cannon, James Malins, Samuel WV. Tyndall, Thomas French Williamson, Edward O'Connor, Caleb Paln'er, Thomas Ord, Geor e Morrow, ‘ Edward Leachman, Patrick Langan Nicholas Tallon, John McMahon, Char es Holy, William McGuire, Joseph R. Kirk, William McDowell, and Andrew Joseph Nowlan. _
Count : Alexander Terrier, (foreman) Edward Walpole, Ashley La Touche, John Richardson, ohn Chambers, Henry Peile, John Malina‘, David Alexander, Frank Barrington, Hugh Browne, Robert Close, Trevor Hamilton, Richard Salter. William Reynolds, Daniel Sullivan, George O’Neil, John Fry, Joseph Johnstone; Charles D. Ingham, James Gillker, Charles Goodwin, James Whyte, and George Lynch.
The lord chief baron. addressing the city grand jury. enumerated the various items of the calendar, and observed that they were all offences of an ordinary character, and such as might be ex ected to occur from time to time in a large population like that of the city of Dublin. T ere was only one exception, and that was a case in which a person was charged
- with what was called Fenianism. With the particulars of that case he was unacquainted,
but as he would have to address some observations to the county grand jur , he would request their attention to them. Having given the usual instructions as to t e duty of a grand jury in respect to the finding of bills, the lord chief baron turned to the county grand jury and said that the ordinary ofi'ences appearing on the calendar were not more numerous than might be expected. There were. however, several cases of what was called treason-felony, an offence created by a statute passed in the year 1848, for the purpose of mitigating the law of high treason in certain cases, and reducing it from a capital offence to a felony punishable by transportation or imprisonment. Shortly after the passing of that act of Parliament, on one of the first occasions on which it became necessary to resort to a court of justice for the vindication of the law, it fell to his lot to make an exposition of the statute to a grand jury sitting in that box. Unfortunately, since then, and within the first two years, the enactment
had been the subject of exposition from the bench, and in several instances from the bench ‘ '
he now occupied. The law was so‘defined, in terms so freefrom all ambiguity, that at this moment, and alter the experience that had_ been had in courts of justice since behad so ‘addressed the grand jury, he did not think it necessary to refer to the former state of the law~ or to the general scope of the amending statute. By the third section of the treason-felony statute, it was provided that if any person whatever, after the passing of the act, should, within the United Kingdom or without, compass, imagine, invent, devise, or intend to deprive or depose our most gracious Queen from the style, title, dignity, or royal name of the imperial Crown of the United Kingdom of Great Britain and Ireland, or of any other of the dominions owing obeisance to her Ma'esty, or should compass, imagine, invent, devise, or intend to levy war against her Majesty by force or constraint to compel her to change her counsels, or overawe both or either house of Parliament, or to move or stir any foreigner or stranger by force to invade the United Kingdom or any other of her Majesiy's dominions, and such compassing, imagination, device or intention should express, utter, or declare by publishing any printing or writing, or by opened and advised speaking, or by any overt act or deed, every such person so offending shall be guilty of treason-felony, and shall be liable to be transported for the term of his natural life, or for any eriod not less than seven years, or be imprisoned for a period not more than two years. T e punishment of transportation having been superseded by penal servitude, the penalty, instead of seven years’ transportation,
was novsffive years’ penal servitude.' They would observe that the otfence was the comI
passing, imagining,devisin , or intending to deprive or depose the Queen from the Crown of Great Britain and Irelan , and this was the portion of the statute which became material for their consideration. » The compassing, imagination, device or intention was to be proved by one of three things: by publishin any printing or writing; by open or advised speaking-—-but this no longer existed, for t e act in respect of it expired in two years; or by the doing of overt or open acts. Two things were required: in the first place the party must compass or design the object stated by the legislature to deprive or depose the Queen from the style, dignity, honor, and royal name of the imperial Crown of the United Kingdom of Great Britain and Ireland ; and secondly, it was essential that the compass and design should be expressed by an overt act or deed. It was essential for the protection of the whole people, for the maintenance of good order and good government, and the security of life and property. that the ‘monarch should be safe in the possession of his royal authority, and therefore the compassing or devising anything that affected his royal authority, either under the law -of treason, by affecting his life or person, or under this statute, by affecting his power, was an offence punishable by severe penalties. But while the law was for the protection of the monarch and the people, it was essential, in order that no man should be unjustly convicted, that certain requirements of that law should be complied with. Accordingly it was enacted that the compassing, design, and so forth, should be proved by some overt\ act on the part of the person accused. Now, the overt or open acts by which he might declare the purpose of his mind were as various as the contrivances of mankind to reach the objects they might have in view. They were not and could not be defined by the law a priori,
‘and could only be stated when judges and juries came to consider them. As their good
sense would suggest, if a man conspired with another to effect a certain object, nothing could be plainer than that the object for which he conspired was the object which he designed. In this instance it was charged that .the conspiracy which these men entered into bad, for its design, the deprivation or deposition of the Queen, and_ in order to establish this
ropositim it was alleged that they combined together to establish an Irish republic. As an
I rish republic and the Queen’s government in Ireland could not coexist, it was plain that
any person who conspired to establish a republic intended to dep ose the Queen, and if this was proved it was an overt act of treason going to sustain the indictment which would be submitted to the grand jury. Again, a variety of means might be made the-subject of planning and conspiring to effect these objects. If there were a eonfederacy existing in America ; if there were a confederacy existing in Ireland; if these confederacies be for one and the same
object; and if, in fact, they constituted one and the same confederacy, comprising various .
persons, more or less numerous, some of them in America, some of them in Ireland, some of them in England, and some on the high seas, all engaged in the one common design of efiecting the establishment of a republic in Ireland, each of them, by the fact of membership in the confederacy, did an act which testified a design to do that which was the object Of the confederacy. But mankind could not do these things_without taking means fortheir accomplishment; and if it formed a portion of the means devised and planned for the carrying out of the object of the confederacy-to import arms into Ireland for the purpose of bein-g
' used in the establishment of a republic, to come in more or less numbers to Ireland for the
attainment of that object, to induce others to associate with them for the purpose of making war and invading this country with the view of raising an insurrection, to put arms into the hands of people here, to meet in council or in public assembly for the purpose of enlarging their own numbers or increasing the energy of their associates, or encouraging them by precept or example, acts of that kind would be overt acts or deeds indicating a design or purpose to depose the Queen. There were several overt acts charged in the indictment, and it would be for the grand jury to say whether or not they prime f(l0l8 amounted to proof of the existence of the design alluded to in the act of Parliament. Having referred to the law bearing on the liability of every member of a conspiracy for the acts of his co-conspirators. his lordship instructed the grand jury as to the proof they should require of the alleged overt acts, and told them that where the offence charged was one so grievous as that of an attempt to overthrow the established government of the country, they were in point of law to give the cases not alone a careful but such a charitable consideration as was consistent with common sense.‘ It was impossible to consider such charges brought before a court of justice without some feelings of amazement that such designs could bejentertained by reasoning men, still more that they should be charged to-day against men of education, still more that they should -be charged against men of military habits and military knowledge. This country was united to England, one of the most }i0Wel‘fl1l states in the world. England had at its disposal a vast navy and a large army. t was a nation thoroughly organized with magistracy, with police, with troops, with commanders, with a steam navy calculated to convey, in the course of a few hours, almost any amount of troops across the small channel that divides the two islands. In Ireland itself there'existed a population, he believed—and he was sure they who knew what was passing around them did so too—the enormous majority of which were perfectly free from all sympathy with the confederacy. There was hardly an interest that could exist in a civilized community, the interest of property or life, that was not arrayed against the designs of the conspirators. They in every town in Ireland were engaged, and largely engaged in trade,_and upon them the agricultural population almost depended for its existence, for they all know that the largest portion of the transac
tions of the country took place between the inhabitants of the towns and those of the country districts. The interests of theagriciiltural population were consequently bound up with those of the trading classes, for whom ii. state of tranquility was a matter of essential importance. Nay, more. In the complicated society in which we exist credit is absolutely essential in carrying on the ordinary transactions of life, and in view of an insurrectionary movement having for its object the levellin of the ovefnment of the country. and calculated to diffuse confusion and disorder, cre it shrank and disap cared. The Fenian conspiracy has iinperilled the existence of order in the country, an induced confusion, which must have a most baneful effect upon trade and commerce. The experience of the past had proved how entirely free from all participation in schemes of this kind were the great mass of the inhabitants of Ireland. The country itself, from circumstances which could not be ieferred to from that bench, was divided in opinion, and therefore to obtain united co-operation for such a design as this was one of those wild dreams which sane men could scarcely entertain.
Again, it was well known that the island was not fortified, and consequently was not tenable by an invading force for any time. When it was alleged that persons should organize a scheme of this kind without a navy, without an army, without arms, without artillery, and without any settled organization or unanimity among the people themselves, and intend to sever the connection between England and Ireland, and throw off the authority of the Crown of Great Britain, and do this in the face of the whole force, military and naval and social, that England would bring against them, constituted another illustration of the old adage, “ Truth is more wonderful ghan fiction."
In making these observations to them, which he did in the same spirit in which similar observations had been urged by those in whom all classes should have confidence, the grand jury would understand him as telling them that they were in no way to be considered as affecting the interests of the persons charged here, and whose cases the ' would now proceed to inquire into. After some further observations the grand jury retire to considegr the bills submitted to them.
FINDING OF TRUE BILLS.
Tlie grand jury found true bills for treason-felony against the following risoners : John Vllarren, William Nagle, Octave Fariola, Augustine Costello, William alpin, Patrick Npgent, John Fitzimmons, Frederick Fitzgibbon, and John Cade, the alleged Fenian
P Octave Fariola having been placed at the bar, Mr. Lawless handed in an atiidavit to the court, which was sworn to by the prisoner, upon ,which to ground an application for a postponement of the trial.
The attorney general stated that more than two months ago the prisoner had been informed
_ that the application could not be complied with on the part of the Crown.
Mr. Lawless said that he had been away out of the country, and that the prisoner had no means of communicating with him until his return.
The chief baron suggested that the matter should stand until Monday. In the mean time the attorney general could consider what course he would adopt.
The suggestion of his lordship was complied with.
The attorney general then proposed that William Halpin should be put forward.
The chief baron asked if the prisoner was represented by counsel.
It not appearing that he was, the chief baron suggested that some prisoner who was represented should be put forward.
The attorney general said he wanted to see what course the prisoner would take.
The chief baron thought it would be better to let the prisoner stand back until Monday.
_The attorney general said he would ask his lordship to tell the prisoner to be ready for his trial on that day.
The PRISONER. I am ready now ; any time at all.
Mr. HERO_N. I understand that the prisoners for whom I am concerned will not be arraigned until Monday. _
The chief baron said that it was proposed to arraign them now. If any question arose on the arraignment, he would let it stand until Monday, when Mr. Justice Keogh, whose term it was at commission, would be in attendance.
Mr. Heron was of opinion that a question would aiise. He would, therefore, ask that the prisoners for whom he and Mr. Dowse were concerned should not be arraigned until that day.
The ATTORNEY GENERAL. That does not apply to the prisoner at the bar. ~
Tlhe chief baron thought that, as the prisoner was inops ccmsilii, the same rule ought to a y.
pifhe attorney general said he had better state in court that he proposed to try the prisoner on Monday morning. _ _ '
The prisoner asked for a copy ofthe indictment, and was informed by the attorney general that he would be furnished with it forthwilsli.
He was then removed.
The trial of some minor cases was afterwards proceeded with.
No. 2082.] Dana R’i“.\'IE.\I'I‘ or S'I'A'rr._. - Wdflibtnglflfl, October 31, 1867.
SIR; Your despatch of the 19th of October, No. 1466, has been received. I learn with satisfaction that her Majesty's government has so far changed its position in regard to citizens of the United States arbitrarily" arrested, under a suspension of the habeas corpus, in Ireland, as to concede them a prompt and, as I hope the result may prove, a fair trial.
Under these circumstances the execution of my instructions, 2068 and 2069, may properly besuspended.
Your decision to authorize the employment of only one person to act as"counsel in the cases of Colonels Nagle and Warren, leaving the selection, however, to be determined by friendly' consultation with the accused, is satisfactory. Your further decision to refer to this department applications for the employment of counsel in other cases is judicious, especially so since you have authorized the counsel to employ SOIII one to Watch the cases and report in the event of any injustice being done. This last mentioned proceeding is approved.‘
Mr. Adams to Mr. Seward.
No. 1472.] . LEGATION on THE Umrsn S'r'A'rns, London, November‘ 1, I867.
SIR: I have the honor to transmit a copy of the Dublin Evening Post of yesterday, containing a further report of the proceedings in the case of John' Warren, now on trial for treason-felony at Dublin.
After accepting the offer of assistance by counsel in his defence, it appears that Captain Warren has preferred to attempt to raise a question of citizenship in connection with a demand for a jury composed one-half of aliens, under the provisions of the common law de medietate linguw. It is evident enough that he expects by this to effect the object so long desired by parties connected with
these movements in Ireland, of raising a difficulty between the two countries '
on the question of the right of expatriati0n._
The claim of a jury of ‘half foreigners appears to rest entirely upon the special provisions of the English law, and is stated to be recognized nowhere else. I cannot find that it is admitted in the United States federal courts. Indeed, from the very limited authorities within the control of this legation, I find that the service of an alien at all on.a jury, if taken notice of and challenged in season, has been rejected as inadmissible. Hence it does not seem as if any question could be raised, by this proceeding, on the ground of international law. It seems to be a privilege which the courts of Great Britain may be expected in courtesy to concede, but the refusal of which does not constitute a ground for reclamation as a wrong done. Captain Warren seems to have overlooked this important distinction, which would -appear to render the other question, whether he be an alien or not, of secondary interest, at least in his own case, compared to his defence. _ ‘ '
The first effect of this proceeding is that Captain Warren is deprived of the
assistance which he might have had, and disabled from taking as much advan
tage as he could of any legal defects in "the prosecution. I am not ‘advised of the course proposed to. be taken by Colonel Nagle. ‘ I have the honor to be,, sir, your obedient servant,
CHARLES FRANCIS ADAMS. Hon. WILLIAM H. Saw/mo, ' Secretary of State, IVa.s7u'nglon, D. C.
_The lord chief baron and Mr. Justice Keogh took their seats on the bench shortly after 10 o’clock this morning, and proceeded with the trial of Colonel John Warren. A large number of policemen were stationed in the court, but very few persons were in the gallery. As on the previous days, the Fenian prisoners were conveyed to the court-housein the prison van, guarded by a troop of dragoons and an escort of mounted police.
The prisoners being put forward and the jury havi answered to their names, Daniel Buckley was sworn and examined, and deposed as follows: I was born in Ireland; I am 25 years of age ; I was born in Munster; shortly after my birth my parents emigrated to America; I remember being in New York when very young; I enlisted in the northern army in 186] ; I served through the American war,'and I left the service in August, 1865; I became for a time a Fenian after leaving the army; I pledged myself not to divulge the objects for which the organization was established, namely, to ievolutionize Ireland and change the governmen, by making Ireland a republic; I paid subscriptions at the rate of tenpence a. week for a year or more; last‘ year I joined an expedition ; I went with other members to the State of Maine; I came back again ; in February of this year I was introduced in New York to C01
onel James Kelly; he was at that time the head of the military department in New York ; . '
Kelly told me of an expedition, but he did not.tell me when it was to start; it was a Fenian expedition, and I agreed to join it; I met Kelly frequently at the headquarters in New York ; I took an oath that I would not divulge the secrets of the expedition; I went to a house in East Broadway, for which I received an intimation from Colonel Kelly through John Hogan ; I was to meet others in connection with the expedition ; that was on the 12th of April in the present year ; I was told to follow others to the foot of Canal street in New York ; I was not told what I was to do there; I went to the place, and met those whom I had parted with in East Broadway, coming in ones, twos, and threes; I had met about forty persons in East Broadway ; I had no baggage with me ; some of the others had baggage ; Canal street opens on the river; when we get there we went on board one of the steamers ; the steamer then left the quay and went to the outer bay of New York, a distance of fifteen or twenty miles ; we remained there from the 12th until the 13th of April, and all that time we stopped on board the steamer; James Kelly and John Hogan had spoken of a vessel‘ which was to convey arms ; the vessel not appearing, we intended oing back to New York; we met on the way a two-masted vessel, and we steamed close to er and jumped on board ; she was called the Jacknell Packet ; about four hours after our going on board she set sail; she was not very well rigged, and her crew consisted of four sailors, two oflicers, a cook, and a boy, besides
‘ the captain; I learned that we took the course usually pursued by West Indiamen, in order
to avoid capture; I don’t recollect seeing any colors, but during the voyage she hoisted English colors, especially when hailing vessels; the West Indian tack was changed after the 14th, and on the 15th we pursued the ordinary European tack, but a little more south; we continued that tack; a man named General James E. Kerrigan was in command of the expedition ; he had been a colonel in the American army; I knew him as a congressman of the United States of America; I did not know he was connected with the expedition until I got on board ; I obtained one commission in New York from Colonel Kelly, and another on board from General James Kerrigan; I threw one of them away, and the other I did not bring with me; I got the rank of captain ; there were others—Colonel Nagle, Colonel Wari"en, Colonel Taylor, Colonel Prendergast, Colonel Cecilian, Colonel Jerein, Colonel Doherty, Captain Costello, Captain Greene, Captain W. Simmons, Captain Kane, Captain Leonard; Lieutenants Fitzgibbons, Roche, William C. Nugent, James Lawless, Cade, alias Murray, L. Doyle, Daniel Lee, Thomas Fernan, Patrick Nugent, James Coffey; there were more whom I don’t recollect; I got my commission about an hour after getting on board the vessel; I saw Kerrigan giving commissions to other parties; I did not see the prisoner getting his commission; my commission was signed by Colonel Kelly and by Captain Hogan; its contents were: “To all whom it may concern, greeting: VVe by these presents do appoint (name) in the army of the Fenian Brotherhood;” it was in print, and on aper; nothing happened until Easter Sunday, and then the green flag with the sunburst was oisted before noon ; at its hoisting there was a salute fired, after which the order delivered to Kavanagh (captain) to land