Part 7

While all commend the recent action of the government, and give the executive full credit for the repression by proclamation of processions avowedly intended to be protests against authority and law, it is generally regretted that prosecutions should have been instituted against some of those who had taken part in these processions. Had these menacing assemblages been held after the proclamations were issued, or in defiance of the authorities, the utmost power should have been exerted to put them down, and the terrors of the law would properly have been invoked to punish the guilty. But, bearing in mind the fact that these processions had been declared by the head of the government--expressing, no doubt, the opinion entertained at that time by the law officers of the crown, that these processions were "not illegal"--remembering, too, that similar processions had been already held without the slightest intimation of opposition on the part of government; and recollecting, also, that the proclamation was everywhere implicitly obeyed, and without the least wish to dispute it, we cannot avoid regretting that the government should have been advised, at the last hour, to institute prosecutions of such a nature. Once, however, it was determined to vindicate the law in this way, the utmost care should have been taken to maintain the dignity of the proceedings, and to avoid everything calculated to create annoyance, irritation, or offence. If we except the moderate and very able speech of Mr. Murphy, Q.C., there is no one part of the proceedings in the police-court which merits commendation. Some of the witnesses utterly broke down; opportunity was given for utterances not calculated to increase respect for the law; and disloyal sentiments were boldly expressed and cheered until the court rang again. Great and serious as was the mistake in not obtaining an accurate legal opinion respecting the character of these meetings at the first, and then prohibiting them, a far greater mistake is now, we think, committed in instituting these retrospective prosecutions. For this mistake the law officers of the crown must, we infer, be held responsible. Were they men of energy and vigour, with the necessary knowledge of the world, they would not have suffered the executive to permit processions first, and then prohibit them, and at the same time try men for participating in what had been pronounced not to be illegal. We exonerate the attorney-general from the error of summoning to give evidence persons who openly gloried in the part they had taken in these meetings. To command the presence of such witnesses was of the nature of an offence. There was no ground, for instance, for supposing that Mr. Sullivan would have played the informer against the friends who had walked with him in the procession--such is not his character, his feeling, or his sense of honour. The summoning of those who had moved with, and as part of, the multitude, to give evidence against their fellows, was not only a most injudicious, but a futile expedient, and naturally has caused very great dissatisfaction and annoyance. The circumstance, however, proves that the prosecutions was instituted without that exact care and minute attention to all particulars which are necessary in a case of this kind.

Even the Daily Express, the, all-but subsidised, if not the secretly subsidised, organ of the ultra-orange section of the Irish administration, had to own the discomfiture of its patrons:--

Are our police offices to become a kind of national journals court? Is the "national press of Ireland" then and there to bid for the support immediately of the gallery, and more remotely of that portion of the population which is humourously called the Irish Nation? These speculations are suggested by a curious scene which took place at the inquiry at the police office yesterday, and which will be found detailed in another column. Mr. Sullivan, the editor of the Nation, seized the opportunity of being summoned as a witness, to denounce the government for not including him in the prosecution. He complained "of endeavouring to place the editor of a national journal on the list of crown witnesses in this court as a public and personal indignity," and as an endeavour to destroy the influence of the national press. It is certainly an open avowal to declare that the mere placing of the name of the editor of a "national" journal upon the list of crown witnesses is an unparalleled wrong. But Sir John Gray was still more instructive. From him we learn that a witness summoned to assist the crown in the prosecution of sedition is placed in an "odious position." Odious it may be, but in the eyes of whom? Surely not of any loyal subject? A paid informer, or professional spy, may be personally odious in the eyes of those who make use of his services. But we have yet to learn how a subject who is summoned to come forward to assist the government fills an odious position in the opinion of his loyal fellow-subjects. We should rather have supposed him to be entitled to their gratitude. However that may be, Sir John Gray came gallantly to the rescue of several "gentlemen connected with his establishment," whom, he was informed, the government intended to summon as witnesses. This, he knew, they would all refuse. "I suggested, if any unpleasant consequences should follow, that they should fall on the head of the establishment alone." He called upon the authorities to summon him. We do complain of our police-courts being made the scenes of open avowals of determination to thwart, or, at least, not to assist the government in their endeavours to prosecute treason and sedition. We can imagine no principle on which a subject could object to assisting the crown as a witness, which, if followed to its logical consequences, would not justify open rebellion. It is certainly a dangerous doctrine to preach that it is allowable, nay, even praiseworthy in a subject to refuse to give evidence when called upon to do so by the crown. There is a disposition too prevalent in this country to regard the law as an enemy, and opposition to it, either by passive obstruction or active rebellion, as a praiseworthy and patriotic act. Can we wonder at this when we hear opposition to constituted authority openly preached by the instructors of "the nation," and witness the eagerness of the "national press" to free itself from the terrible suspicion of coming to the assistance, even involuntarily, of the government in its struggle with sedition and treason?

It was amidst such an outburst of vexation and indignation as this, even from the government journals themselves, that the curtain rose next morning on Act II. in the Head Police Office. A very unique episode commenced the proceedings on this day also. At the resumption of the case, Mr. Murphy, Q.C., on behalf of the crown, said:--

Mr. Sullivan and some other gentlemen complained yesterday of having been served with summonses to give evidence in those cases. I am directed by the attorney-general to state that he regrets it, and that it was done without his authority. He never gave any directions to have those persons summoned, nor was it done by anyone acting under his directions. It occurred in this way. General directions were given to the police to summon parties to give evidence in order to establish the charge against those four gentlemen who are summoned for taking an active part in the procession. The police, in the exercise of their discretion thought it might be necessary to summon parties who took part in the procession, but there was no intention on the part of those aiding on behalf of the crown to summon parties to give evidence who themselves took part in the procession, and I am sorry it occurred.

Mr. Dix--I may mention that a magistrate when signing a summons knows nothing of the witnesses. If they were all living in Jamacia he merely signs it as a matter of form.

Mr. A.M. Sullivan--I thank your worship and Mr. Murphy, and I think it will be seen that had your worship not allowed me yesterday to make the protest I did, the attorney-general would not have the opportunity of making the disclaimer which it became the dignity of the government to make. The aspect of the case yesterday was very adverse towards Sir John Gray, myself, and other gentlemen. Although my brother signed his name to the notice, he was not summoned as principal but as a witness, but if necessary, he was determined to stand side by side in the dock with Mr. Martin.

Mr. Allen--I am very glad of the explanation, because I was blamed for allowing persons making speeches here yesterday. I think if a man has any ground of complaint the sooner it is set right the better.

Mr. Sullivan--I have to thank the bench.

Mr. Allen--I am glad that a satisfactory arrangement has been come to by all parties, because there is an objection entertained by some persons to be brought into court as witnesses for the crown.

Mr. Sullivan--Especially a public journalist.

Mr. Allen--Quite so.

Mr. Heron then proceeded to cross-examine the witness.

It was elicited from the government reporter, that, by a process which he called "throwing in the vowels," he was able to make Mr. Martin's speech read sufficiently seditious. Mr. D.C. Heron, Q.C., then addressed the court on behalf of Mr. J.J. Lalor; and Mr. Michael Crean, barrister, on behalf of Dr. Waters. Mr. Martin, on his own behalf, then spoke as follows:--

I admit I attended the procession. I admit also that I spoke words which I consider very grave and serious words upon that occasion. For my acts on that occasion, for the sense and intention of the words I spoke on that occasion, I am perfectly willing to be put upon my country. Not only for all my acts on that occasion--not only for the words which I spoke on that occasion; but for all my acts or all the words I either spoke or wrote, publicly or privately, upon Irish politics, I am perfectly willing to be put upon my country. In any free country that has real constitutional institutions to guarantee the liberty of the subject--to guarantee the free trial of the subject charged with an offence against either the state or his neighbour, it would be quite absurd to expect a man could be put upon his country and convicted of a crime for doing that and using such words as the vast majority of his fellow-countrymen approve. In this case I believe that a vast majority of my fellow-countrymen do not disapprove of the acts I acknowledge on that occasion, and that they sympathise in the sentiment of the words I then spoke. Therefore the mere fact that a prosecution is preferred against me for that act, and for those words, is the expression of an opinion on my part that this country does not at present enjoy real constitutional institutions, guaranteeing a free trial--guaranteeing that the man accused shall be really put upon his country. Therefore it is absurd to think that any twelve honest men, my neighbours, put upon their oaths, would declare that to be a crime which it is probable that, at least, four-fifths of them believe to be right--right both constitutionally and morally. I am aware--we are all aware--that the gentlemen who represent the crown in this country, have very powerful means at their disposal for obtaining convictions in the form of law and in the form of justice, of any person they think proper to accuse; and without meaning either to sneer or to joke in this matter, I acknowledge the moderation of the gentlemen who represent the government, since they chose to trouble themselves with me at all. I acknowledge their moderation in proposing to indict me now for sedition, for the language which they say I used, because it is possible for them, with the means at their disposal, to have me convicted for murder, or burglary, or bigamy (laughter). I am sorry to say what seems like a sneer, but I use the words in deep and solemn seriousness, and I say no more than I am perfectly ready to be tried fairly or foully (applause in court).

The magistrates reserved their decision till next day; so that there might be decent and seemly pause for the purpose of looking up and pondering the legal precedents, as the legal fiction would have it; and on next day, they announced that they would send all the accused for trial to the next Commission at Green-street, to open on the 10th February, 1868. The several traversers, however, were required to enter merely into their own recognizances in £500 each to appear for trial.

In this police court proceeding the government, confessedly, were morally worsted--utterly humiliated, in fact. So far from creating awe or striking terror, the prosecution had evoked general contempt, scorn, and indignation. To such an extent was this fact recognised, that the government journals themselves, as we have seen, were amongst the loudest in censuring the whole proceeding, and in supporting the general expectation that there was an end of the prosecution.

Not so however was it to be. The very bitterness of the mortification inflicted upon them by their "roll in the dust" on their first legal encounter with the processionists, seemed to render the crown officials more and more vindictive. It was too galling to lie under the public challenge hurled at them by Mr. Bracken, Mr. O'Reilly, and Mr. Sullivan. After twelve days' cogitation, government made up its mind to strike.

On Saturday, 28th December, 1867--just as everyone in Ireland seemed to have concluded that, as the Conservative journals said, there was "an end of" the foolish and ill-advised funeral prosecutions--Mr. Sullivan, Mr. Bracken (one of the funeral stewards), Mr. Jennings, of Kingstown (one of the best known and most trusted of the nationalists of "Dunleary" district). Mr. O'Reilly, (one of the mounted marshals at the procession), and some others, were served with citations to appear on Monday the 30th, at the Head Police Office, to answer charges identical with those preferred on the 16th against Mr. Martin, Dr. Waters, and Mr. Lalor.

Preliminary prosecution No. 2 very much resembled No. 1. Mr. Murphy, Q.C. stated the crown case with fairness and moderation; and the police, as before, gave their evidence like men who felt "duty" and "conscience" in sore disagreement on such an occasion. Mr. Jennings and Mr. O'Reilly were defended, respectively, by Mr. Molloy and Mr. Crean; two advocates whose selection from the junior bar for these critical and important public cases was triumphantly vindicated by their conduct from the first to the last scene of the drama. Mr. Sullivan, Mr. Bracken, and the other accused, were not represented by counsel. On the first-named gentleman (Mr. Sullivan) being formally called on, he addressed the court at some length. He said:--

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.