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oration of the story of his having been a member antecedently is only supplied by the fact of his having been found a member subsequently, namely, at a period so near to the 5th of March as the 12th of April, holding then the rank of colonel. Will you come to the conclusion, that his being so on the 12th of April is a corroboration of the statement that he was so for two years, or for upwards of a year before? In connection with the fact that he held high rank, you are to consider whether he is likely to have attained that rank unless he was for a substantial period belonging to the confederation. He was a person that was then selected as one of the trusted leaders of this expedition, if you believe the testimony of Buckley. You will consider whether he would have been so selected as one of its trusted leaders unless he was, prior to that time, a member of the confederacy. If you are satisfied that he was a member prior to that time, that is evidence that I feel bound to leave to you, as evidence to corroborate the testimony of Corydon; and you will then consider whether you believe the evidence of Corydon. You are entitled to take into account the way in which he gave his evidence. Gentlemen, the case stands against the prisoner thus: first, with respect to the Jackmel expedition, it depends on the testimony of an accomplice, Buckley, who must be corroborated; that corroboration is afforded by the testimony of Gallagher, if you believe it, subject to the observation on Gallagher's testimony which I have offered to you. The further corroborating testimony connecting the prisoner with the expedition is only that as to his landing, and there he is brought into connection with the vessel, if you believe the identification of the persons by whom his arrest and his transit from Ring to Waterford are proved.

You will see, then, that the questions before you lie within a very narrow compass. You are to determine whether he compassed, that is, intended to depose the Queen; whether he manifested that intention by overt acts; whether he manifested it by the act of becoming a member of this confederation-did he? Whether he manifested it by the act of being engaged in the Jackmel expedition-did he? Was there such an expedition, and was it such as has been described? Two overt acts, one done within the county of Dublin, and the other without the county, would support the indictment; for overt acts done outside the county of Dublin may connect him with the confederacy, so as to make him answerable for the acts of his confederates within that county; and one overt act within the county of Dublin would support the indictment. Was he a member of the Fenian confederation when the transactions in the county of Dublin occurred? Were these a levying of war? Were they done by members of a confederacy of which he was a member? Do you believe the testimony of Corydon, deposing to his being a member of the confederacy before the 12th of April? Do you consider [Page of report No. 119.]

the corroboration arising from the prisoner's having, on the 11th or 12th of April, held the high rank that he is proved to have done, at that time, in the confederacy, sufficient to show that he was a member of it for a substantial antecedent period? Does that, in your judgments, so corroborate Cordyon's as to satisfy you that the prisoner was a member of the confederacy on the 5th of March? Gentlemen, upon the whole, you will have to consider whether or not you are satisfied beyond any reasonable doubt of the prisoner's guilt. The law of the land, in that mercy which is part of its justice, declares that before any man can be convicted there must be affirmative proof, to the satisfaction of the jury, removing that presumption of innocence which, up to the giving of the verdict, stands around him like armor. That is only another way of saying that the jury are called on, not as a matter of mercy or of favor, but as a matter of right and law, to acquit the prisoner, if they have any reasonable doubt of his guilt. But in determining whether or not there be a reasonable doubt, which, of course, must be considered with reference to all the evidence and to every part of it, a jury are not called on to acquit on a fancy of the possibility of innocence. A possibility of mistake may, perhaps, be considered as existing in almost every inquiry that is human. What a jury are called on to do is, to apply to the matter before them that sound sense which each of them would himself apply in dealing with the ordinary concerns of life in which he had an interest. The law defines in no other way the manner in which a jury are to determine whether a reasonable doubt exists. The law does not otherwise define it, but leaves it to the jury to apply that judgment which they will apply in the ordinary concerns of life in which they have themselves an interest; and, acting upon these lights, to deal between the prisoner and the crown. If you entertain a reasonable doubt, you are bound to acquit him; but if you do not entertain a reasonable doubt, you are bound by the most sacred of all obligations, the obligation of the oath taken by you as jurors; you owe it to yourselves, to your country, and to your God, to give a true verdict according to the evidence.

PRISONER. My lord, will you permit me one word? I respectfully beg to submit, with reference to the rank you have referred to, that there is no corroborating evidence; it is simply referred to by Buckley. I would also impress upon the jury that I was not identified by Gallagher till the 12th of October, after his being five or six weeks in one jail with me, exercising in the same yard, and hearing my name called every day, and knowing that I was suspected of belonging to that expedition. I would respectfully

submit that there is no evidence as to the cargo of that vessel, no evidence to prove that that landing at Dungarvan-admitting a landing for the sake of argument-was for any illegal purpose, but only the admission made by Buckley, of a lot of hungry men running away from the vessel.

The CHIEF BARON. Most of these matters I have presented to the jury. Gentlemen, you cannot believe Buckley, unless his evidence is corroborated; but if you believe (Page of report No. 120.]

Buckley about the whole story of the Jackmel expedition, then, and then only, the fact of his rank is proved. With respect to the other matters, I have already observed upon them. You will take into account what the prisoner has said as to his own case. PRISONER. You have not referred to the identification of me by Gallagher.

The CHIEF BARON. O, yes; I have said that there was evidence of identification by Gallagher. There is no question about the identification of Gallagher. You are G. Roche, I think.

PRISONER. Gallagher, my lord? You did not refer to it at all.

The SOLICITOR GENERAL. The prisoner was eventually examined by the magistrates, and identified by Gallagher, on the 12th of October.

The attorney general referred to that information of the 12th of October, in which Gallagher said the prisoner John Warren is one of the persons named in it.

PRISONER. That information was not given until after his being five or six weeks in the same jail with me.

The SOLICITOR GENERAL. The evidence was this: Gallagher made his first information before Mr. Labatt, in Sligo; then he made an information on the 15th of June, in Sligo, before Mr. Coulson. Some short time after that it appears that he was committed to Kilmainham or Mount Joy prison, some three or four weeks afterwards. Then on the 12th of October he made the information before Mr. Barton, in which he identified Warren.

The CHIEF BARON. He named Warren and Nagle.

PRISONER. My name was never mentioned until the 12th of October. What I want to impress on you is, that he never identified me until after he had been five or six weeks in prison with me in the one yard.

The CHIEF BARON. There was an information on the 12th of September.

The SOLICITOR GENERAL. Not by Gallagher, but by Buckley.

PRISONER. He was never brought before me until the 12th of October.

The SOLICITOR GENERAL. That answers what you say yourself. It was at Sligo he made his information, and not in the presence of the prisoner at all.

PRISONER. It appears that this is an important, question, by the manner in which it is evaded.

The SOLICITOR GENERAL. There is no evasion.

PRISONER. There is a direct evasion.

The CHIEF BARON (to the jury.) No doubt Gallagher was examined on the 27th of May, and then he made no statement in detail at all. Gallagher was examined on the 15th of June, and then he made no statement of a portion of the details that are important, as I pointed out to you; he made no statement at all of that portion of the case that occurred in the cabin and that implicates Warren. Gallagher never made any statement implicating Warren until the 12th of October.

PRISONER. Yes; he never was brought to identify me.

The CHIEF BARON. The information of the 12th of October is in these terms: "In the [Page of report No. 121.]

presence and hearing of Patrick Nugent, John Warren, and William Nagle, who stand charged with treason-felony, and with being members of a treasonable conspiracy.", PRISONER. I don't refer to that information at all, but to the circumstances of his having been five or six weeks in jail with me, and of his being then brought to identify me on the 12th of October.

The CHIEF BARON. The information of the 12th of October states that "he, the said prisoner Warren, was present all the time, and told me to take the book."

PRISONER. He was put into a yard with me, and then brought to identify me.
The SOLICITOR GENERAL. We must object to these matters.

The CHIEF BARON. The first time he made any statement implicating Warren was on the 12th of October, and I pointed out to the jury that that was after several persons were arrested, and that the whole of the evidence of Gallagher is to be taken with reference to the time at which he made his last disclosure, which necessarily affects his credit. But it is for the jury to say to what extent, if at all, it affects his credit.

PRISONER. My lord, it is a question of identification. This man was brought to Kilmainham prison and put into the same yard with me. He is not brought to identify me, but is discharged after five or six weeks; he is brought back after five or six weeks more, and is then brought to identify me.

The CHIEF BARON. All that is for the jury; that he was in jail, and that after he had been liberated from jail the information of the 12th of October, which first implicated

you, was sworn, is true. All that is before the jury, and all that the jury are bound to consider on your behalf.

The PRISONER. That is what I want to impress on the jury, and the question is, could he identify me when he was brought first?

The CHIEF BARON. Both of them had been previously in confinement. You heard the evidence as to the identification, gentlemen, and you will consider how far it goes to affect the testimony of the witness.

A JUROR. The date of the first information is the 26th of May.

The CHIEF BARON. Yes; and the second was made on the 15th of June, and that deposition was in Sligo.

The jury retired at 20 minutes after 4 o'clock, and returned to court at minutes to 5 o'clock.

The CLERK OF THE CROWN. How say you, gentlemen, have you agreed to a verdict? FOREMAN.

Yes.

The CLERK OF THE CROWN. You say John Warren is guilty on both counts.

FOREMAN. Yes.

The CHIEF BARON. Remove the prisoner for the present.

The court adjourned to Monday morning.

[Page of report No. 122.]

SENTENCE ON THE PRISONERS.

SATURDAY, November 16, 1867.

The court sat at 11 o'clock to-day, when

The clerk of the Crown directed that John Warren, William Halpin, and Augustine E. Costello, you and each of you, have been indicted, tried, and found guilty of treason-felony, for compassing to depose our Lady the Queen; have you anything to say why the sentence of the court should not be pronounced on you?

The prisoner WARREN. My lord, I claim the privilege established by precedent; I have had no opportunity of making any remarks on my case, and I would now wish to say a few words.

The CHIEF BARON. State what you have to say. We are ready to hear you.

The PRISONER. I desire, in the first place, my lord, to explain, while ignoring the jurisdiction of this court to sentence me, and while assuming my original position-I wish to make a few remarks with reference to my reasons for interfering in this case at all. I know I can see beyond my present position the importance of this case, and I was desirous to instruct the jury, either directly or indirectly, of the importance of their decision, while never for a moment deviating from the position which I assumed. I submit, my lord, that I effectually did that, and they incautiously, and foolishly for themselves and for the country of which they claim to be subjects, have raised an issue which has to be settled by a higher tribunal than this court.

The CHIEF BARON. That is a subject upon which we cannot allow you to address us. We cannot suffer the place in which you stand to be made the arena for appeals to those who may sympathize with you in opinion either here or elsewhere. We cannot allow you to refer to any ulterior consideration beyond that which belongs to the business in which we are now engaged, and that is, the pronouncing of sentence upon you. As to that, you are at liberty to state anything you may have to say against that being done.

The PRISONER. I have said, my lord, all I intend to say on that subject. I will now refer to the nature of the evidence upon which I have been convicted; I consider that is a duty which I owe to myself, and I deem it a privilege which your lordship will allow me.

The CHIEF BARON. It is right for me to tell you that this is not the time or stage of these proceedings in which you are entitled to comment in detail on the evidence, with the view to show that the verdict should not be what it has been. We are not at liberty to act on a discussion of the propriety of the verdict, unless you can point out something in point of law which shows infirmity in that verdict.

[Page of report No. 123.]

The PRISONER. I propose, my lord, to show that the verdict is contrary to the evidence.

The CHIEF BARON. I must again tell you that you are not at liberty to do that. The PRISONER. I propose to state briefly, in answer to the question put to me, why the sentence of the court should not be pronounced on me. Do I understand your lordship to refuse me that privilege positively, and to stop and interrupt me by every means f

The CHIEF BARON. Certainly not to stop and interrupt you by every means, nor to refuse you anything to which you are entitled. But you are not entitled to impeach the verdict by a discussion at large of the evidence. We are bound by that verdict just as much as you are; that is the law.

The PRISONER. Have I not, my lord, the privilege of commenting on the evidence? The CHIEF BARON. You are not at liberty to comment at large upon the evidence for the purpose of showing that the verdict was wrong. What in strictness you are entitled to do is, to show any matter of law which may affect the propriety of pronouncing of sentence upon you, assuming the verdict to stand.

The PRISONER. I have, therefore, to state that if you are determined, my lord, to take from me the privilege established by precedent in this court

The CHIEF BARON. There is no such privilege.

The PRISONER. Has it not been accorded to every political prisoner sentenced in this court for the last three or four years?

The CHIEF BARON. They have been allowed to address the court. We will allow you to address us, and hear all you have to say, within the limits of what the law permits, in these, the last words which you can speak to us. The law does not allow us

to permit, at this stage, the verdict of the jury to be impeached by detailed comments upon the evidence; the time for those comments was before the jury gave their verdict; but after the verdict has been pronounced, it binds us, as it binds you. I am now speaking as to a matter of fact. Anything in point of law that attaches infirmity to the verdict we will hear; and you are entitled to comment on all that, in point of law, tends to show why sentence should not be pronounced upon you.

The PRISONER. What position do I stand in now, my lord? I have been indicted with a number of others for taking part in the Dungarven landing; some of those have been tried; the case against others is virtually abandoned. I have been tried and convicted. Then what position do I stand in, my lord? Am I convicted on the evidence of Corydon, who swears that I belonged to the Fenian confederacy in 1863? Does that prove that I belonged to it in 1867? Am I guilty of the overt act of the 5th March, on which I stand convicted and await your sentence now?

The CHIEF BARON. You heard the law laid down by me to the jury, which I was bound to lay down according to established authority, that if they believed you belonged, on the 5th of March, to the Fenian confederacy, having for its object the [Page of report No. 124.]

deposition of the Queen, you were guilty of the acts done on the 5th March, whether you were present at them or not; for you were answerable for all the acts done by your co-conspirators in that confederacy in furtherance of its designs. That is the law laid down, and that law we were bound to administer.

The PRISONER. You instructed the jury at the same time, my lord, that the circumstance of my holding the position of a colonel, and belonging to the Fenian organization in '63, was sufficient corroboration of the evidence that I belonged to it in '67, and that is the point of your instructions on which I was found guilty.

The CHIEF BARON. You are under some misapprehension. I stated to the jury that your holding the rank of colonel was evidence for their consideration, in considering whether you had belonged to the confederacy at a period anterior to the 12th of April. I told them that they were at liberty to consider whether or not you would have been appointed to that rank if you had joined it then for the first time. I did not tell them that proved the truth of the testimony of the accomplices, but that it was a matter on which they were at liberty to consider that testimony.

The PRISONER. It is precisely the same thing, but expressed in different phraseology. Am I to understand, my lord, that I have not the privilege of addressing the court as to why sentence should not be passed against me?

The CHIEF BARON. You are not so at liberty to consider. You are at liberty to address the court, but you are not at liberty to comment at large on the evidence, and to prove that the verdict was wrong.

The PRISONER. Have I not the privilege of commenting on the evidence, my lord? The CHIEF BARON. I have answered that already.

The PRISONER. What can I speak on, my lord? To what can I speak, if not to something connected with my case I am not here to refer to a church matter, or any political question.

The CHIEF BARON. I have told you what we are bound to rule.

The PRISONER. I will state, my lord, that as an American citizen I do protest against the whole jurisdiction of this court, from the commencement, in arraigning me, in trying me here forcibly, and in convicting me on the evidence of a man whom your lordship termed to be of the most odious character. You instructed the jury pointedly and strongly on one occasion-but your subsequent instructions modified that instructionthat no respectable jury could act on his evidence, and that it was a calamity for any government to have to use him. You instructed the jury to that effect, my lord, and the jury afterwards found me guilty on his uncorroborated evidence. I do not want to say anything disrespectful to the bench or to the jury, but I want to refer to the nature of the evidence, and to see why I stand here as a felon to-day. It is a privilege which has been accorded to every one who stood in the same position previously as I now stand in. I will, my lord, further refer to matters in connection with this case, which, I sub

[Page of report No. 125.]

mit, are extraordinary. There is one part of it, especially, that which is called the cabin oath, to which so much importance has been attached. Let the jury look at me, and say if they believe that I am such a scoundrel or such an idiot as to take into the cabin a man like Gallagher, an ignorant man, and place a pistol to his head to compel him to take the oath, and then allow him to go on shore. I ask you, my lord, not to believe that I am such a scoundrel or such an idiot. I ask you to believe that no Christian man would be guilty of such an act of idiocy, and I ask you not to place any reliance on Gallagher's oath. I say, my lord, I never saw Gallagher until I saw him in Kilmainham. You see the nature of, and the manner in which the evidence against me was got up. It appeared to be by the interposition of the Godhead that each of these men was allowed to tell lie after lie; for though they were well trained, and received their lessons under able and experienced masters, they contradicted themselves word by word. These are what are called respectable men, forsooth, and their respectability is guaranteed by their evidence; but they have, I submit, perjured themselves. Gallagher, my lord, swore at first but one information, and that information, I submit, was the truth; it bore the impress of truth on it. He then swore a second information, and that second one was false. I say, my lord, that it is contrary to law to convict a prisoner on the evidence of a person who swore he was a perjurer; and, my lord, I may tell you that I have seen hundreds of times in America, cases where the judge sentenced the witness who perjured himself on the stand and sent him at once to prison. What is the fact, my lord? Gallagher was imprisoned in Kilmainham with me; he was taken to the same exercising yard with me; he was brought there first on the 1st July; he was exercising in the same yard with me; he knew my name well; he heard it called several times; he knew the acts for which I was imprisoned; and he was taken away on the 1st August. During all the time while he was in Kilmainham he never once identified me. He is brought back to Kilmainham on the 12th October, and out of 40 or 50 men he identifies only three. You will see, my lord, the impress of lies on the face of the whole of his testimony; for if he came on board the vessel in the ordinary capacity of pilot, he would do his duties as pilot, and when he had done them he would leave the vessel and get his pay. That is what would ordinarily happen in the case of a pilot, but not so in the case of the respectable Gallagher, for he swears that he was not only asked to pilot the vessel, but that he was taken down into the cabin, let into all the secrets, and made to swear he would not tell them when he went on shore. I submit, my lord, that what he swore in his first information had the impress of truth on it, and that all the subsequent informations were false, and that he purjured himself in them. I submit that from the commencement to the end of this case there is not the least shadow of evidence to show that there was any hostile intention to land on the coast of Ireland, and that the evidence as to the identity of the vessel would not stand for a single moment in a court where evidence and law would be respected, and where the [Page of report No. 126.]

evidence of perjurers and informers would not be tolerated. On the supposition that this phantom, this Flying Dutchman-which would be the better name to give herexisted, in what way does your lordship connect my name with it? The evidence is that the vessel seen in Sligo bay and the vessel seen off Dungarven harbor are one and the same. My lord, I fail to see that they are one and the same. In the first information sworn by Gallagher, there is nothing said about the dimensions or the tonnage of the vessel; but in his second information they are made to correspond with some scribbled figures found on Nagle, and she is set out as being 81 feet and 115 tons burden. The coast guard swore that she had double topsail yards, and that she looked like an American-built vessel; while Brown, the Dungarven fisherman, swore that she looked like a brigantine, with white sail, and about 350 tons burden. What evidence, then, is there, my lord, I ask, that the vessel seen in Sligo bay and the vessel seen in Dungarven harbor are one and the same vessel? Not a particle of evidence, I submit. I submit, also, that there is not a particle of corroborative evidence to prove that the vessel seen off the coast of Donegal, and the vessel seen in Dungarven harbor, with which you connect my name, are one and the same vessel, except the evidence of Buckley, who committed himself as a perjurer, the very first question he was asked with reference to his age, on that stand. As to the so-called landing at Dungarven, I submit, my lord, that you have no proof whatever that I shipped from an American brigantine in a hooker, or that I landed from the hooker at Dungarven, or any other proof to connect my name with that matter, except the evidence of the informer and perjurer, Buckley. Your evidence is that a number of men were seen to land at Helvick Head from a fishing-boat, which, it is plain from the evidence, took them off a vessel that was out at sea; and that two persons afterwards presented themselves on the road, who were not disguised in any way; that they hired a cart and drove them on towards Youghal. I submit, my lord, that the verdict of the jury is contrary to the evidence, and that there is not a particle of evidence corroborative of Buckley's to show that I was one of the men that were landed at Helvick Head or at Dungarven. Though you deprived me of liberty, though you indicted, arraigned, and convicted me as a British subject, while protesting against it,

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