evidence undoubtedly worthy of your consideration as regards the testimony of Buckley, because it brings these two persons in close proximity to the place where a large number of men unquestionably landed, according to the testimony of the police.

Now, gentlemen, do you come to the conclusion that the vessel that was sighted at Sligo bay was the same vessel from which the men were landed at or near Dungarvan? There is no evidence except the testimony of Buckley that arms were on board this vessel; there is no other evidence except that of Gallagher in reference to Fenianism on board the vessel. I do not now speak of the evidence given by Buckley. If you believe the evidence, at Sligo bay she was, in Sligo bay she remained, in the Bay of Sligo she was piloted, in the Bay of Sligo she discharged the pilot after some communication with the person called the agent; a transaction which may have been innocent, irrespective of the testimony of Bradley; but with this large number of persons on board-far beyond what was necessary for navigating the vessel-with this large number of persons on board she leaves Sligo, she goes to the southeast coast from the northwest, and there 30 persons are landed, leaving others on board. Here you have to consider what these 30 persons stated of themselves, and how far you consider these statements inconsistent with the circumstances I have mentioned. I am now dealing with the fact of this vessel being at Sligo, and afterwards at Waterford, and I am suggesting to you whether in the movements of the vessel, and in what occurred on the coast of Waterford, there is that which would lead you to believe the statements these men made. They stated that a vessel in which they were fishing took fire, and that they were taken up by the vessel which they had left. Is that a matter which you would consider so improbable as not to warrant implicit credit?

The PRISONER. That statement only referred to the two individuals arrested in Youghal, Nagle and Warren.

[Page of report No. 110.]

The CHIEF BARON. Then you have to account for so large a number of persons being at Sligo, afterwards at Streeda, and afterwards at Dungarvan, in a vessel charged with a cargo of fruit, the circumstance of the vessel discharging so large a number of men, the whole story of Buckley, and the other circumstances which I have suggested, and which appear to me to be fitting for your consideration, with the view to the corroboration of Buckley's story.

Before adverting further to the evidence of Buckley, let me deal with the testimony of Gallagher; because if you believe the testimony of Gallagher, it very strongly tends to confirm one important part of the testimony of Buckley, namely, that in which he refers to the transactions that occurred in the cabin; and tends to corroborate it further by the reference to Fenianism that was made to Gallagher when he went down to the cabin and was in communication with Warren. If you believe the testimony of Gallagher he is no accomplice. There is nothing in the evidence of Buckley, or in the evidence of Gallagher, to prove Gallagher an accomplice. But there is evidence on which it is for you to consider whether he was in fact an accomplice. There were unquestionably suppressions by Gallagher in his former testimony, which go very considerably to shake the confidence that would otherwise be attached to his evidence, provided you think it material; and if Gallagher did voluntarily, and in order to shelter the parties who are charged, or who were on board that vessel, forbear to give information when he was first examined, and, still more, if he voluntarily withheld that information, that would be some evidence from which it might be inferred that he participated in their designs. But upon his story there is no confession of his being an accomplice. And it is only with respect to that part of the evidence that I think any question would arise. It is of some importance, with a view to his credit, to consider what his occupation is; and it is established, I think, that he is, and has been for a considerable time, following the occupation of a fisherman and pilot; therefore it is natural that he should be on the lookout for employment, and that he should be taken on board as a person to be employed; that he went on board is proved not alone by his evidence, but by other evidence. You have to deal, no doubt, with the credibility of that witness; but before you discredit him you should be very careful of the ground upon which you come to such a conclusion.

I will now bring to your attention the portions of Gallagher's evidence upon which the impeachment rests. Gallagher was first examined on the 27th of May; and he said that on Friday, the 24th, he observed a brig in the bay, and boarded her about 12 o'clock to ascertain whether she required a pilot, and having been told that a pilot was required, he was engaged. He said he was told that the captain had left and had gone on shore to get provisions, and that he was expected back at 6 o'clock in the evening. He then says that the man in charge told him that the vessel was a Spanish vessel from Spain bound to Glasgow, but that he did not tell him the cargo. That was on the 27th of

[Page of report No. 111.]

May, the day but one after the transaction occurred. Well, upon an information which he swore in the month of June following, the 15th of June, he undoubtedly does say that he asked the person in charge where he was from. He said he was from Spain, and bound to Glasgow with fruit. That is a positive statement, made upon the 27th of

June, and it is in direct contradiction to what he had said on the 27th of May, namely, that the person told him he was from Spain and bound to Glasgow, and did not tell him the cargo. Well, the telling of the cargo, especially if it was stated it was fruit, was certainly not a very material circumstance; but at the same time the prisoner has a right to have your attention called to the contradiction. He said he received no money from them for his services, as the man in charge said they had no money until the captain came back. It turns out that he received 58. or 68. when he said that his family was poor; but he meant, probably, not that he got nothing at all, but that he was not paid his stipulated pilotage for his services. I therefore suggest that that alone is not a reasonable ground for discrediting him. But then comes this portion of the information of the 27th of May, which I think is material: "A short distance from where I landed, about two miles, I met two coast guards, who made inquiry about the vessel." The coastguard men were examined, and told you what he stated, and they told you he did not make any statement whatever in reference to the transactions the details of which he deposed to here; so that in his conversation with the coast-guard men, and in answer to their interrogatories, he withheld that portion of the information which is now material. He then says: "I told them all I knew." Now, if he had merely withheld the information from these coast-guard men, it would be hardly possible to discredit his evidence on that ground alone. But upon the 27th of May he pledges his oath to this: "I told them all I knew. They said they had been watching her, and they proceeded on towards the shore." That is a positive statement, and it certainly is not true. He did not tell them all he knew.

Then comes this further statement, which must have been a subject of interrogation by the magistrate. He had been apprised that the coast guard had been watching, and he must have recollected what passed in the cabin; and he states, upon his oath, upon that occasion, "I know nothing further concerning the said vessel." Does that mean that he knows nothing more of what occurred upon the vessel, or that he does not know anything more concerning the vessel or her destination? Does that mean that he intended to withhold the information from the magistrates? Unfortunately, upon his evidence the latter is what he says, for he tells you the reason why he said he told all he knew. He said the reason he said he did not know anything further concerning this vessel was that he had given this engagement on oath that he would not disclose it; and that, in consequence of the oath he had thus taken, and which he desired not to violate, he took an oath which was a false one-saying that he had told all he knew about the ship. When he was examined this morning, he said that some of the state

[Page of report No. 112.]

ments contained in his information were taken down wrong. But I do not think he applies that to either of the two statements I have referred to. In one information he says it was 7 o'clock in the morning he saw the vessel, and in another he says it was 7 o'clock in the evening. He says in the information sworn on the 15th of June, "I did not ask her name, nor did I hear it. I did not ask the captain's name, who was said to be on shore." In his information subsequently made, in October, he said," I asked the name of the captain, but the man in charge would not tell me, and I could not get the name of the captain." So it would appear he inquired into both of these things, although in his information in June he stated what I say. Gentlemen, the important part that I have suggested to you is, of course, momentous with a view to the prisoner's interest in this inquiry. That statement in May, upon Gallagher's oath, is inconsistent with the statement he subsequently made; but there is this, further, which it is always important to consider with a view to evidence of this kind, that, although he might have been mistaken on the 27th of May, and had been examined again on the 15th of June, and was for some time in custody, yet it was not until the 12th of October, which was about the time that Buckley's information was ultimately sworn, that he, for the first time, gave a detail of that transaction which occurred in the cabin. Nothing of that was said upon the first or second information. In the last (the third) information he gave a larger account of what occurred, for he says that about 2 o'clock he was taken down to the cabin by the man in charge, and saw two persons, the prisoner and Nagle. He could not say whether there was any one else in the cabin. Nagle then asked him would he like to be a Fenian. In the statement to you he said what he was asked was would he be a Fenian. "I told him not, and he asked me were there any Fenians in the county," &c. "The man in charge of the vessel then told him to swear me not to give any description of the vessel when I would get on shore. I would not, and the man in charge took a pistol and told me to take the book. I then took the book and swore not to give any information about anything I would see in the vessel."

In his evidence yesterday he said, "anything I would see done about the vessel." That appears, thus on the third information, for the first time; and where the witness for the Crown has the full opportunity of telling the entire of his story in the first instance, and does not tell the entire, and then adds to it afterwards upon the very point upon which his evidence is all important for the Crown, it is undoubtedly a matter open to grave suspicion, and it will be for the jury to so judge of his evidence by the ordinary rules of life, common sense, and common honesty; whether or not they treat

the omission to make this declaration in the first instance as sufficient to induce them not to give credit to it when made upon the second occasion. But, notwithstanding all that, there is always to be considered by the jury the manner in which the witness gives his evidence, the circumstances, under which he becomes connected with the

[Page of report No. 113.]

transaction to which he deposes, and the circumstances under which the evidence is originally given. When this man was sworn, as described, he must have known perfectly well that the persons who swore him had something to do with the Fenian conspiracy, to which they asked him did he belong. He does not say himself he was afraid of making the disclosures when he was examined, but he does say he was affected by the oath he had taken. He was originally employed, as I have already suggested to you, in his ordinary avocations. He went with a number of persons, and was employed as a part of his ordinary occupation; and the nature of that occupation is proved by the members of the coast guard examined before you. He himself swears positively that he is not and never was a Fenian, or connected with the rebellious proceedings of last year. You have had an opportunity of seeing how he gave his evidence; and although you are called upon to scan it narrowly, with a view to those circumstances alleged to affect its credit, to which I have just called your attention, yet you have ultimately, upon your oath, to say, do you or do you not believe him? Do you believe him an accomplice, because he did not tell all in his first information? Having regard to the fact of his occupation and the way in which he was employed, do you think there is reason to attach impeachment on him against his positive oath that he had nothing to do with Fenianism? If you do not believe he had anything to do with it, there is nothing whatever to indicate that he is a witness whose credit is not to be regarded like any other witness, not requiring corroboration if you believe him, and lending corroboration, if you believe him, to the story of Buckley.

With respect to Buckley himself, you will see how the case stands as to his statement. In Buckley's original evidence he omitted several persons whose names he supplies in his evidence upon the table. He appears to have been originally sworn upon the 12th of September, and re-sworn upon the 12th of October. At the time his first information was sworn, I may say that no considerable number of these parties was arrested. He omits some persons holding the rank of colonel whose names he supplies in the evidence given before you. He omitted the names of Phelan, Doran, and O'Doherty, who were colonels; he omitted the name of James Lawless as one of the parties. He says that he forgot them, and that he was in some excitement at the time he swore his first information. It is difficult to conceive how he could have been excited upon the 15th of June; he must have been arrested some time before that; and he says himself that it was some days after he was arrested that he was in communication with the Crown solicitor for the purpose of giving the information he was able to afford. He had, therefore, time for consideration. Nevertheless, while I bring that to your notice on behalf of the prisoner, it is proper to suggest to you that in that information of the 16th of June he totally omits the name of James Lawless, and who that Lawless was. Why, he was the man who landed with himself, Buckley, who, I believe, was

[Page of report No. 114.]

arrested with him, and, consequently, must have been perfectly known to the Crown as a participator with the man who was giving the information, from which information he appears also to have withheld the statement about Phelan, Doran, and O'Doherty. If he forgot Lawless, who was really his known associate, that is certainly a matter very favorable, tending to sustain the truth of his own statement that he omitted the others because he forgot them too.

The SOLICITOR GENERAL. He says in his information, "I do not just now recollect the names of any others."

The CHIEF BARON. Yes, and in his evidence given upon the table I think he omits the names of one or two persons whom he mentioned in his informations; for in his information he stated there were four colonels, and seven captains, and four lieutenants, and eleven persons who were not lieutenants. In his evidence upon the table he makes seven colonels instead of four, and five captains in place of seven, and three lieutenants instead of four, and six persons who held no rank instead of eleven. When, therefore, he was examined before you, he omits the names of several whom he names in his informations; and you will say whether the account he gives you (and apply it to your own good sense) whether such forgetfulness is or is not natural. You have to deal with men of all kinds, some of them deficient, some of tenacious memory, and it is for you to say whether this witness satisfactorily explains to you why he omitted at one time names which he supplied at another.

The next matter of impeachment is of somewhat more importance. Gallagher, for the first time in his last information, swore on the 10th of October, and Buckley, for the first time in his evidence before you, gave evidence as to what passed in the cabin. Buckley, in his information, does not say a word of what passed in the cabin. He now says he heard what passed in the cabin. He knew that what passed there was the administering of an oath. He says he only heard so much of what passed as indicated

that they were asking some one to take an oath. He says there was a door between the cabin and the part of the vessel where he was, and at that time the colonels were in the cabin. Gallagher only speaks of two. He says they could not be anywhere else in the ship. "I only heard part of the conversation. It was an excuse of Gallagher for not taking the Fenian oath." Gallagher was asked, according to his own statement, not to take the Fenian oath, but to swear that he would not divulge anything he saw on the vessel; but Gallagher says they asked him was he a Fenian, and, therefore, there was a talk about Fenianism. Buckley then says, "he said he was too old, and that was all I could hear." Gallagher said, not that he was too old, but that he was advanced in life, and had children, a mother, and a wife. What then occurred was certainly a material fact to be disclosed; and he was asked by me why it was that he made no statement of that at the time? He said he did not speak about it, and did not think about it, and was not asked. Again, in disclosing all the transactions connected with that vessel, in disclosing the designs of the conspiracy and the purposes for which the vessel was to be applied, it was a most important matter to have stated [Page of report No. 115.]

that there was a determination formed by the members of the expedition to take the town of Sligo, and that that determination had been abandoned, and that that was the reason why they went towards Cork, and abandoned the attack on Sligo in consequence of the Fenians having been quieted by the failure of their former attempts. That was a material circumstance, and you will say whether it was likely he could have forgotten it; whether in making that detailed statement of the voyage how they left America; how they changed their course to avoid detection; the putting on shore the wounded men; the coming on board of the pilot; the putting ashore of the pilot; the coming on board of the person who had communication with the officers; the sending ashore of the colonels, and of two more men upon another occasion; the transactions near Dungarvan, which were stated with considerable detail; whether, when he says he did not recollect, when he gave his information, the circumstances of the determination to take Sligo, he could have reasonably forgotten it. Another important matter is this: he says that the arms were packed in boxes-large-sized boxes. He says there were some sewing-machines boxes and some piano cases, and then he says, "The cases in which the arms were opened during the voyage, they were so placed as to be ready to be distributed." He was asked how they were placed, and he says, "They were put in twos and threes; they were rearranged in the same boxes." In his informations he swore that they had a quantity of arms; he could not tell what quantity; that they were packed in cases as pianos and sewing machines, and included a quantity of carbines and revolvers; that the boxes were consigned to a firm in Cuba; and that many of those cases were opened during the voyage and the arms packed in smaller boxes. What he says now is, that the boxes were one within another, and that they were placed in the way he describes them, ranged in twos and threes, in the inner boxes. Whether that is a sufficiently satisfactory account, you will consider. He omitted to make, or did not make, in either of his informations, any statement as te ammunition having been on board, but he has given, in his evidence on this trial, an account of a very large quantity of ammunition, and placed in a most extraordinary manner, in open boxes, between the decks, where he had constant opportunities of seeing it. Now, gentlemen, these are the circumstances inherent in the testimony of this witness itself, independent of the fact of his being an accomplice, on which you are called on to decide. He has been examined before you. You have had the great advantage of hearing the witness himself. If you believe the testimony of Gallagher, if you do not consider him to be an accomplice, he sustains part of the story of Buckley; and it being so sustained, the question you then have to determine is, whether, notwithstanding all that has been suggested with respect to Buckley, you really, upon your consciences and oaths, believe he is telling the truth. If you so believe him, as far as relates to the Jackmel expedition, it is plainly and clearly established. If you entertain any doubt with respect to his evidence, having regard to all the other parts of the case, of course you are bound [Page of report No. 116.]

to give the prisoner the benefit of it. With respect to the other portions of the case there is very little indeed to be observed.

His lordship here, addressing the counsel for the Crown, said it was important for him to know in what manner they contended that the case should be left to the jury as regarded the alleged overt act in the county of Dublin.

The ATTORNEY GENERAL. We think that the fact of Warren having been proved to have joined the confederation after the date of the overt act in question, is quite sufficient to sustain the indictment according to Watson's case. But, irrespective of this view of the case, we submit that there is evidence to go to the jury that the prisoner was connected with the conspiracy before the 5th of March.

The CHIEF BARON. It was laid down in Watson's case, in conformity with other anthorities, that the acts of conspirators, done before another conspirator joins the conspiracy, are evidence against him, to show the nature and object of the conspiracy, which he adopts by joining it. But there is no case, that I am aware of, in which pre

vious acts have been, ex post facto, treated as the prisoner's acts for the purpose of fixing him with it as an overt act, indicating crime in him, of which he was innocent when it occurred. I am not prepared so to hold; but I am prepared, in conformity with the decision in Meany's case, to direct the jury, that overt acts done in the county of Dublin, if done by the prisoner's co-conspirators in furtherance of the objects of the conspiracy, were in law overt acts of the prisoner, if, at the time when they were done, he was a co-conspirator, although he not only was not himself present, but was not within the county of Dublin, when those overt acts were done.

The ATTORNEY GENERAL. I am content that the jury should be so directed, having regard to the circumstances of this case.

The CHIEF BARON (to the jury.) Gentlemen, there are two ways in which, in point of law, this question might, possibly, be left to you, one of which appears to me to be clear, according to a recent decision of the court of criminal appeal, while the other must be subject to controversy. On that subject I won't trouble you with any of those views of the law which influence me at present in leaving the question as I shall leave it to you. But I shall tell you what the law is, and you will be perfectly able to understand it, for it may be stated in a few simple sentences. The law has declared, by a very recent decision of the highest court of criminal jurisprudence in this country, that if a man be a member of an unlawful confederacy, what is done by those who are co-conspirators with him at the time when he is such member, although done in a distant place, and without his personal intervention, is his act as well as theirs. If you should find that the prisoner was a participator in the Jackmel expedition, and that that expedition was of the character which has been described, that would establish that at that time he was a member of the Fenian confederation. But that would not

[Page of report No. 117.]

be enough to support this indictment; because all the acts in which he was at that time engaged, and of which evidence has been given, occurred outside the county of Dublin, which is the district within your jurisdiction and that of the court which is now trying this case. In order, therefore, to establish this indictment, it must be proved that, in addition to any other overt act, there was an overt act in the county of Dublin for which he is responsible. If members of the Fenian confederation, in prosecution of the common design, attacked the three police barracks, and in so doing levied war against the Queen, those were overt acts of all the persons who were then members of the confederation, wheresoever they were at that time. And if he was, at the time when those acts were done, a member of the Fenian confederation, the acts done there were acts of his, and he was guilty of the levying of war at Stepaside, Glencullen, and Milltown, just as much as if he were bodily present with the parties who acted there. Now the evidence of his being a confederate at that time, which was the 5th of March, depends upon the testimony of Corydon; because no other portion of the evidence shows that Warren was a conspirator until the commencement of the Jackmel expedition, and that was on the 12th of April. On the 12th of April, according to the evidence of Buckley, he became one of the party, and proceeded to the Jackmel packet; and therefore at that time there is of course evidence, if you believe Buckley, that he was a member of the confederation. But that was subsequent to the attack made upon those various police barracks, upon the 5th or 6th of March. Corydon, however, deposes, that Warren was a member of the Fenian confederacy long anterior to that time. If Corydon be believed, he establishes that the prisoner was a member of the confederacy prior to that time; the other evidence proves that he was a confederate after that time; and consequently there is evidence that he was a confederate at the time when the acts were done in the county of Dublin. But upon Corydon's evidence you cannot act unless it is corroborated; for Corydon stands, as I have told you, in the double capacity of an accomplice and of an informer or spy. Is there then evidence to satisfy you that Corydon's story with respect to the prisoner is corroborated in a material part of it? The material and substantial part of Corydon's testimony is, that he was a member of the Fenian confederacy. He was at that time in America. On the 12th of April, a period of time very recent after the 5th of March, you find him-if you believe on Buckley's evidence that he was a participator in the Jackmel expedition-not only a member, but an active member of that confederacy; not only was he an active member of that confederacy, but he held high rank in it. He held the rank of colonel. And finding him in the confederation in April, you will say whether or not that so satisfies you of the truth of Corydon's story that it connects him, as a member, with the confederation, so as to lead you to believe that Corydon rightly and truly extends his participation in it to a period antecedent to the 5th of March, Corydon spoke of him as having been a confederate long antecedent to that date; I forget exactly how long before, but I think it was 1865.

[Page of report No. 118.]

Gentlemen, that is the way in which the case stands. If you believe Corydon's evidence, it is perfectly clear that the prisoner was a confederate at the time to which it refers. Corydon's evidence you cannot act on unless you think it is corroborated, unless you think the corroboration of it is such as to satisfy you of its truth. And that corrob