CHAPTER II.
Trial by Court-martial—A Prisoner's Rights before a British Military Tribunal—The Stories of Two Informers—Found Guilty and Sentenced to Death—Commutation of Sentence—Mountjoy Prison—How O'Reilly repaid a Traitor.
ON Wednesday, June 27, 1866, the eve of his twenty-second birthday, his trial by court-martial began in the mess-room of the Eighty-fifth Regiment at Royal Barracks. The charge was, "Having at Dublin, in January, 1866, come to the knowledge of an intended mutiny in Her Majesty's Forces in Ireland, and not giving information of said intended mutiny to his commanding officer."
His fellow prisoners were Color-Sergeant Charles McCarthy, Privates Patrick Keating, Michael Harrington, Thomas Darragh, and Capt. James Murphy, the last named being the American soldier who was charged with having deserted from the British camp at Aldershot at a time when, as he was happily able to prove, he was serving his country in Western Virginia.
The court-martial was constituted as follows: President, Colonel Sawyer, Sixth Dragoon Guards. Prosecutor, Captain Whelan, Eighth Regiment, assisted by Mr. Landy, Q. C. The Judge Advocate was advised by Mr. Johnson. The prisoner was defended by Mr. O'Loughlen, advised by Mr. John Lawless, solicitor.
The other officers of the court were: Lieut.-Col. Maunsell, Major Drew, and Capt. Gladstone, Seventy-fifth Foot; Capt. Wallace and Lieut. Caryvell, Ninety-second Gordon Highlanders; Capt. Skinner, Military Train; Capt. Kingston and Lieut. Garnett, Fifth Dragoons; Capt. Barthorp, Tenth Hussars; Capt. Telford and Lieut. Meade, Sixtieth Rifles; Capt. Taylor, Eighty-eighth Foot; Capt. Fox and Ensign Parkinson, Sixty-first Foot.
The prisoner pleaded "not guilty." Capt. Whelan, the prosecutor, opened the case against Private O'Reilly, as follows:
"The enormity of the offense with which the prisoner is charged is such that it is difficult to find language by which, to describe it. It strikes at the root of all military discipline, and, if allowed to escape punishment which it entails, would render her Majesty's forces, who ought to be the guardians of our lives and liberty, and the bulwark and protection of the constitution under which we live, a source of danger to the state and all its loyal citizens and subjects, and her Majesty's faithful subjects would become the prey and victims of military despotism, licentiousness, and violence. Our standing army would then be a terror to the throne, and a curse, not a blessing, to the community; but at the same time, as is the gravity of the offense, so in proportion should the evidence by which such a charge is to be sustained, be carefully and sedulously weighed. It will be for you, gentlemen, to say whether the evidence which will be adduced before you, leaves upon your mind any reasonable doubt of the prisoner's guilt."
The prosecutor, in continuation, said that evidence would be laid before them to show that the prisoner was an active member of the Fenian conspiracy, and that he had endeavored to induce other soldiers to join it.
The first witness called was Lance-Corporal Fitzgerald, Tenth Hussars. He said:
He brought me there. I was introduced by the prisoner to a man named Devoy. There were then present, Tierney, Rorreson, Bergin, and Sinclair of the Tenth Hussars.
Prosecutor. Was there any conversation in presence of the prisoner? If so, state what it was.
Prisoner. I object, sir, to that question. It relates to a conversation previous to the date of the charge, and can have no reference to it.
The court ruled that the evidence was admissible, and the question was put.
Witness. Prisoner introduced me to Devoy and said: "This is Corporal Fitzgerald," and I spoke to him. Devoy said O'Reilly had spoken to him several times about me, and said he should like to get me. We three sat down together and I asked Devoy who was carrying on this affair. He said Stephens. I asked, were there any arms or ammunition. He said there was, and they were getting lots every day from America, I asked who were to be their officers. He said there would be plenty of officers. He said it was so carried on that privates did not know their non-commissioned officers, nor they their officers. Devoy then left the room and the prisoner went after him. After a few minutes prisoner came and told me that Devoy wanted to speak to me. I went down to the yard and found Devoy there. He said, "I suppose O'Reilly has told you what I want with you."
Prisoner. I respectfully object, sir. What the witness now states to have taken place, was not in my presence.
Court decided that the answer should be given.
Witness. I said that I did not know. He said that it was for the purpose of joining them he wanted me, and that there was an oath necessary to be taken. I said I would not take the oath, and he then said that he would not trust any man that did not take the oath. We then returned upstairs. Nothing further took place.
President. What did you mean by using the words, "This business"?
Witness. I meant the Fenian conspiracy. When I went upstairs I saw the prisoner, who bade me good-night. The next time I saw him was one evening I met him in town coming from the barracks. Some arrests took place that day, and I said, "This business is getting serious." He said it was, and that my name had been mentioned at a meeting a few nights before. I asked what meeting, and he said a military meeting. I asked him who mentioned my name, and he said he did not know exactly, but that it was a man of the Fifth Dragoon Guards. He added, "If you come home to-night I will take you to a similar meeting." I gave him no decided answer. I afterwards met him in the barracks. This all occurred before the meeting at Hoey's, of which I stated. When I met him in the barracks he asked me was I going out. I replied that I was. He said, "Will you meet me at the sign of the 'Two Soldiers'? "I said yes, and went there and waited until O'Reilly came in. He called for some drink, and after we drank we left the house, but came back again to get my gloves, and he said, "I want to introduce you to a person." I said that I had no time and should go, but he said, "I shall not detain you a minute." I then went with him to Hoey's public house. It was on that occasion that I had the interview with Devoy of which I have given evidence.
Here the court adjourned for half an hour.
On its reassembling Corporal Fitzgerald continued his testimony:
The conversation of which I have last spoken took place either toward the end of November or the beginning of December, 1865. Prisoner never told me the object of the military meetings of which he spoke. I know Pilsworth's public house, James's Street. I met prisoner in that house on the 13th of January, 1866. There were with him Denny, Mullarchy, Hood, Lof tus, Crosby, and Sinclair, all Tenth Hussars, and two deserters from Fifth Dragoon Guards. They were in civilian clothes. There was a man named Williams present, and also Devoy. On that occasion I had no conversation with O'Reilly, nor with any other person in his hearing. I never had any further conversation with the prisoner about Fenianism.
To the Court:
Prisoner never asked me the result of my conversation with Devoy.
On cross-examination by the prisoner, witness said:
When I was in Hoey's public house there were no soldiers of any other regiment but the Tenth Hussars present. That was the only time I met the prisoner at Hoey's. It was a few days after the conversation which took place when I met the prisoner coming from the barracks, that he introduced me to Devoy. I am twelve years in the army. The prisoner was in the army only three years.
To the Court:
I made no report to my commanding officer of my conversation with Devoy or the other meeting at Pilsworth's. I never took the Fenian oath.
The next witness. Private McDonald, Tenth Hussars, testified:
I know Pilsworth's house. I was there about Christmas last, with the prisoner. I went with him to the house. There were other persons there but I cannot say who they were. There were some civilians, but I did not know their names. Since then I heard that Devoy was one of them. The prisoner did not introduce me to any one on that occasion. Any drink the soldiers had they paid for themselves. There was no conversation relating to Fenianism in the presence of the prisoner.Here the President deemed it advisable to give the witness a hint that his evidence was not satisfactory.
Witness. Prisoner was sitting near me for a quarter of an hour or more; he was not far away from me. He was sitting alongside me, close as one person sits to another. I knew prisoner before that night.
I had some conversation with O'Reilly while he was sitting by me. I cannot now tell what it was about, but it was not about Fenianism.
Devoy was not sitting near me that night; he was sitting at the same table, but I did not speak to him, nor he to me. I know Fortune's public house in Grolden Lane. I have been once in that house with O'Reilly, but I cannot say in what month. It was after Christmas, I think. There were some civilians and soldiers there; the soldiers were infantry men. Devoy was one of the civilians, but I knew no one else's name.Here the President again interjected a threatening hint.
Witness. I did not know their names.
President. What regiments did they belong to?
Witness. Some of Sixty-first, some of Eighty-seventh; there were no other cavalrymen but prisoner and myself. The prisoner did not introduce me to any one on that occasion. We were in Fortune's for an hour and a half. I had no conversation with the prisoner on that occasion; the people who were there were talking to themselves and I did not hear any conversation that night. Some of the civilians treated me to some^drink. Devoy treated both me and the prisoner. I have met a man known by the name of Davis. He was not in Fortune's that night. Devoy, prisoner, and myself all drank together that night. After leaving Fortune's we went to Doyle's public house. Devoy came with two other civilians and some infantry soldiers. I was in Doyle's from half-past eight until after nine. In Doyle's we were again treated to drink by the civilians and by Devoy; it was he asked us to go there. O'Reilly was in the room when he asked me to do so, but I could not say how near he was to us when Devoy was speaking. I think prisoner might have heard Devoy speaking. When Devoy asked us to go to Doyle's he said it was quieter than Fortune's. In Doyle's we were not exactly sitting together, there were some civilians between me and Devoy. I do not know their names.
Here the Court adjourned to next morning.
McDonald's examination resumed:
When I was in Doyle's, prisoner was not sitting; he was standing between me and Devoy. He was in front of me. I had no conversation with the prisoner or with any person in his hearing. I was with the prisoner in Barclay's public house about a fortnight after I was in Doyle's with him. There were some soldiers and civilians there. Devoy was there. I don't know any other names, but I know their faces. They were the same men who had been at Doyle's. We remained at Barclay's from seven till nine o'clock. On that occasion I had no conversation with the prisoner, I had no conversation in presence of prisoner. I went to Barclay's with John O'Reilly. The next public house I was in with him was Hoey's, in Bridgeport Street, about a week after. I went there with prisoner. Same civilians were there that I met before, and some infantry soldiers. Prisoner did not remain; he went away after I went into the house. I had no conversation with. O'Reilly that night. I afterwards, in the same month, went with prisoner to Bergin's, James's Street; remained there from half-past eight to quarter-past nine; did not know any persons present, they were all strangers; there were four infantry soldiers, one of them, I think, of the Fifty-third. Prisoner was there the whole time; there was no conversation between prisoner and those present. There was singing.
President. No conversation !
Witness. None.
President. Public houses must be mortal slow places according to your account.
Witness. Singing was in presence and hearing of prisoner. Prisoner did not join in the singing; he was sitting down; we were both drinking some beer. Some civilians asked us to drink, but we treated ourselves. Prisoner told me that he belonged to the Fenian brotherhood in Cahir. He told me so in conversation as we were coming down from Island Bridge Barracks, in April, twelve months ago.
Cross-examined by Prisoner:
At Pilsworth's there were three or four sitting at the same table with us and Devoy. When I said there was no conversation between me and the prisoner at Fortune's I meant no conversation about Fenianism. When Devoy asked me to go to Doyle's, prisoner might not have heard him do so. We went upstairs at Barclay's. When I said I had no conversation with the prisoner at Hoey's, I meant none about Fenianism. I think I saw Corporal Fitzgerald at Hoey's one night, but I can't tell the date. I never was in company with Fitzgerald at Hoey's public house; it is over twelve months and more since the Tenth Hussars were quartered in Cahir; I had no conversation with prisoner in Pilsworth's about Fenianism. Strange civilians often asked me to take a drink in public houses. I never was a Fenian. The Tenth Hussars were quartered in Cahir for nine months.
To the Court:
The prisoner told me who Devoy was in Pilsworth's. I have known the prisoner since he enlisted, three years ago. It was in Pilsworth's I met the man called Davis, that was in January; I never saw him before or since. I cannot recollect the subjects of which we talked in the various public houses.
To the Prisoner:
Was not in Hoey's when Fitzgerald was there. I cannot tell prisoner's motive in asking me to go to the various public houses with him. In Fortune's there were civilians present. We left it to go to Doyle's, as we did not like to talk before them. There was nobody in the room at Doyle's when we went in. There were seven or eight of us came from Fortune's to Doyle's. I do not know who the civilians were that were left behind.
President. Why were you so confidential with some of the civilians you met at Fortune's for the first time, and not with all? And what was the mysterious conversation about?
Witness. It was the civilians proposed to go to Doyle's and it was they who held the conversation. I do not remember any of the songs that were sung at Bergin's. Davis was a low-sized man whose hair was cut like a soldier's. When the prisoner told me to go to the public houses at night, he used to say, "Go to such a house and you will meet John there, and tell him I am on duty."
President. Who was John?
Witness. Devoy.
President. Then Devoy was a great friend of the prisoner?
Witness. He appeared to be.
President. Now answer a direct question: Were the songs sung Fenian songs?
Witness. No, sir; they were not.
Prisoner. Were the songs chiefly love songs?
Witness. I don't know.
Prisoner. Did I ever tell you Devoy was an old friend of my family?
Witness. No, he did not. John O'Reilly never spoke to me about Fenianism, and I never heard Fenian songs in his company.
President. Recollect what you say: Did you not swear that prisoner told you he was a Fenian?
Witness. He said he was one at Cahir.
President. How do you know what a Fenian song is?
Witness. I don't know. I suppose they are Irish songs.
Prisoner. Did you not state to the President that I told you I had been a member of the Fenian Brotherhood while I was at Cahir?
Witness. Yes, that you had been a Fenian at Cahir.The unprejudiced reader, accustomed to the rigid impartiality of an American court, will be surprised at the hardly concealed hostility of this court-martial president toward his prisoner. Private MacDonald's testimony is so favorable to the accused that it does not please the Court at all. The President accordingly reminds him that he is "under oath," sneers at his refusal to "identify" men whom he does not know, and makes it generally clear to succeeding witnesses that evidence tending to prove the prisoner's innocence is not of the kind wanted in that, court.
I remember the evening of the 1st January, last. I was in the "Two Soldiers" public house with the prisoner. He told me that if I went to Hoey's with him he would show me the finest set of Irishmen I ever saw in my life. We went there and found a number of civilians assembled. The prisoner, after some time, took me out of the room and told me that the Fenians were going to beat the English army and make this country their own. He ask me to take an oath to join the Fenians. I answered that I had already taken an oath to serve my queen and country and that was enough for me. I then came down and went into the yard and he again asked me to be a Fenian. I told him no. He then went away and a civilian came and said—
Prisoner. I object to anything being put in evidence relative to a conversation at which I was not present.
Court adjourned for half an hour to consider the objection.
On its reassembling. Private Denny continued:
After returning upstairs prisoner was there and I saw him. I had no conversation with him. I met O'Reilly in Island Bridge Barracks about a week before I was in Hoey's with him. I had then no conversation with him.
Cross-examined by Prisoner:
I am eight years in the Tenth Hussars. I had spoken before that evening with the prisoner, but nothing about Fenianism. I cannot say at what period of the day on the first of January this took place, but it was in the evening, about seven or eight, I think. There was nobody but the prisoner with me when I went to Hoey's. Lance-Corporal Fitzgerald was not in our company. I never, so far as I know, was in Fitzgerald's company at Hoey's. We went back to the "Two Soldiers " that evening by ourselves. We went back to have a glass of beer. I had been drinking before that evening. I was arrested at Island Bridge Barracks and confined in the regiment cells at Richmond Barracks. I was taken on duty to Dublin Castle in aid of the civil power.
Prisoner withdrew this last question.
Witness. I made no report to my superior officers of what took place at Hoey's before my arrest. I was arrested on the 5th of March. I made a statement of what took place before I was transferred to Richmond barracks, I was arrested on a charge of Fenianism and was for two days in the cells at Island Bridge, during which time I was visited by Provost-Sergeant Delworth. He did not tell me what I was charged with. It was told to me by my commanding officer on 5th of March, when I was arrested. I did not know O'Reilly was arrested until he spoke to me through the wall of the cells; that was the first time I knew he was arrested. Sergeant Delworth came to visit me, but I cannot say if it was before then that prisoner spoke through the wall to me. I was only once at Hoey's public house that I am aware of—that was on 1st of January, 1866. I made no statement to the provost sergeant at all. I made none while in the cells. I swear that the conversation at Hoey's took place on 1st January, 1866.
By the Court:
Before prisoner told you that the Fenians were going to beat the English army out of the country and make it free, had there been no conversation about Fenianism in presence of the prisoner?
Witness. No.
President. What reason had you for not reporting this conversation?
Witness. I did not wish to get myself or any one else into trouble by doing so.
The next witness was Private' John Smith, Tenth Hussars:
I was in Hoey's with prisoner some time after Christmas, about 1st January, 1866. I went there by myself; no one took me. When I went there I was directed into a room where I saw the prisoner. Room was full of soldiers playing cards. There were some civilians there, but I knew none of them but O'Eeilly. I since learnt that a man named Doyle, of the Sixty-flrst, was there. I saw him just now outside this room. Prisoner introduced me as a friend to a civilian.
Here Court adjourned to reassemble next morning, when Private Smith continued his evidence:
I left the room with the civilian and he spoke to me.
The prisoner objected to the question and the objection was allowed.
Witness. I had some conversation with the civilian, but I do not know if the prisoner was near enough to hear it. After I left the room with the prisoner he said the movement had been going on some time, but he did not say what movement. After that he returned into the room, and when I went back I found him there. There was no conversation louder than your breath among those who were in the room. When I left the room with the civilian he asked me to do so. When I left the room I went to the back of the house with him, but the prisoner did not come out at all while we were there. It was on the lobby that the prisoner told me that he had known of the movement for some time. That was said before I went into the yard with the civilian. There was no one else but the civilian present at "the time with us. The observation was made in the course of conversation between me and the civilian. We were all standing on the lobby at the time.
President. What was the conversation about, at the time the observation was made?
Prisoner. I beg to object to that question, sir. The witness has already said that he cannot say whether I heard the conversation or not.
The Judge-Advocate said that the question was a legal one. Th© prisoner had introduced the civilian to the witness and the conversation took place when the three were standing within a yard of one another. The observation was part of the conversation.
Witness. I cannot say what the conversation was about. It was the civilian that asked me to go down to the yard. I don't know whether prisoner left before he asked me to go. About three days after, I met the prisoner at Walshe's public house. No one took me there. The house was full of soldiers. I did not know any of the civilians, but there were some men of my regiment there.
President. Do you know the names of any of the soldiers?
Witness. I did, but I cannot now recollect what their names were.
Prisoner. I think that the witness said, sir, that Walshe's is a singing saloon.
President. Is it a public house or a music hall exclusively?
Witness. It is both; none of the civilians present had been in Hoey's when I was there; the prisoner told me that he wanted to see me the next night at Pilsworth's public house; he said that he wanted to see some friends and to bring me to them; I met him as he appointed; there were two of the Sixty-first there when we got to Pilsworth's, neither of whose names I know; there was nobody else there during the time we stopped; the prisoner and I had some conversation, but I forget what it was; we left the room shortly after; the only conversation that took place was that we asked each other to drink; O'Reilly came away with me, and we went to Hoey's; it was the prisoner who asked me to go there; he said, "Perhaps we will meet the friends who promised to meet us at Pilsworth's"; he told me that some of them were the same that we had to meet at Hoey's before; on our way he spoke about different men who used to meet him at Hoey's; he told me that those he was in the habit of meeting there were Fenian agents, and men from America, who had been sent here to carry on business; that is the purport of what the prisoner said; nothing else that I can recollect passed between us; the prisoner told me the business the American agents came to carry on; Fenian business, he said, of course.
President. Why, "of course"? You give us credit for knowing more than we do.
Witness. When we got to Hoey's we met the same civilian that we had met there before, and some more strangers; we stayed in Hoey's about three-quarters of an hour; I had no conversation there with the prisoner; we separated, I to play cards and he to talk with some civilians; there was none but ordinary conversation going on; when we left Hoey's we went back to Pilsworth's; a civilian asked us both to go to Pilsworth's along with some other soldiers; some civilians were there, Americans, I think; I cannot remember what the conversation was about; it was no louder than a whisper; when we left we called into a public house near the barracks; we had some talk about the civilians we had left.
President. It is not about the civilians you are asked, but about the conversation.
Witness. I met prisoner without any appointment in Barclay's public house in James's Street in about a week; there were some soldiers and civilians there. Among the soldiers was Private Foley, of the Fifth Dragoon Guards. The civilians were those I had met at Hoey's. I had no conversation with the prisoner. I left Barclay's first that night. At Barclay's the prisoner was sitting at a table with some soldiers and civilians. I had seen some of the civilians before at Hoey's, I do not know the names of the civilians I met at Hoey's. The prisoner never told me the object of "the movement." O'Reilly never spoke to me about "the movement," except what he said at Pilsworth's and at Hoey's.
Cross-examined by the Prisoner:
The night I went to Hoey's and Pilsworth's was, I think, in January. I cannot say what time in January. It might have been in February. I cannot say. I know Lance-Corporal Fitzgerald; he is in my troop. I know Private Denny, Tenth Hussars; he is in my troop. I cannot say if I was in his company on New Year's night; I spent that night partly in Mount Pleasant Square and partly at the "Bleeding House" in Camden Lane. I am not able to say whether I ever saw Denny at Hoey's. I was speaking to him fifteen minutes ago; I am not able to say if I spoke to him to-day or yesterday, about the trial; I did speak to him about it; I have spoken to him about his evidence or he to me. I don't know which. It was after I read the paper and I don't think any one heard us.
Prisoner. Were you by yourself? . . . . If the Deputy Judge Advocate would be kind enough to read the last two questions and replies.
The questions and replies were read over.
Prisoner. Do you not know whether you and Denny were by yourselves?
President. You must know, in a matter that only occurred fifteen minutes ago.
Witness. I only spoke to him as we were coming across here at two o'clock. When I was speaking to Denny, there were some other men in the room, but I cannot say if we were by ourselves.
President. That makes the thing worse. When did you read the newspaper—this morning! Did you talk to Denny then about the evidence?
Witness. About nine o'clock, when I was preparing to come here, I might have spoken to him. The paper was read. I spoke to him at the bottom of the stairs. There were other men in the room at the time. I again spoke to him when coming here at two o'clock. I can read "some" print, but not writing. I have never tried to read a paper. It was Denny who read the paper this morning; he read it out for me.
President. What paper was it?
Witness. The paper in Sackville Street.
President. That is the Irish Times.
Capt. Whelan. Oh no, it is the Freeman's Journal!
Witness. When Denny read the paper, there were two men present; it was after this we had the conversation about the evidence.
Here the court adjourned, and having reconvened on the following day, Private Dennis Denny was recalled and examined relative to a statement made by Private Smith, the prisoner's witness, that they had a conversation the previous day concerning the evidence he had given.
Witness. I had no conversation yesterday about the evidence with Private Smith.
To the Prosecutor:
I was not aware that I read the paper yesterday in presence of Smith. He may have been there when I was reading it. I have no knowledge of having had any conversation with anybody about the evidence of Smith. Before I was recalled into court I had no conversation with any one relative to the evidence I had given previously. I am not aware that I had any conversation with Private Smith with reference to my evidence. I read a paper yesterday morning. I would not swear what men were present. I cannot say if Smith was in the room when I read it.
To the President:
I do not recollect a man who was in the room.
Prisoner. With your leave, sir, I would wish to ask Private Denny a few questions in the absence of Private Smith.
President. Leave the room, Smith.
Private Denny to Prisoner. I did not buy the paper that I read. I took it out of Private Robert Good's bed.
President. We have decided, prisoner, not to put these questions yet. You will reserve them.
Prisoner. Very well, sir.
President (to witness). Were there any persons in the room?
Witness. Four or five.
President. Were you reading aloud?
Witness. No, sir; I cannot read aloud, because I have to spell the words.
President. Have you had no conversation with any one about Smith since you read the paper?
Witness. I spoke to Lance-Corporal Fitzgerald, I now recollect, about Smith.
President. What did you say about him?
Witness. I was talking to him about the time Smith and I were arrested. He might have been in the room when the paper was reading, but no one read aloud when I was in the room.
President. What did you and Smith talk about yesterday?
Witness. I did not talk to him yesterday, unless I might have spoken to him outside the door, while we were waiting.
President. If Private Smith swore yesterday that you had told him your previous evidence, would it be true?
Witness. No, sir.
Private Smith (recalled). The two Sixty-first men we met at Pilsworth's did not come to Hoey's. Private Denny never spoke to me about Fenianism. I have often played cards for drink in public houses. When the prisoner introduced me to the civilian at Hoey's it was as a friend of his in the regiment. My regiment turned out for the field yesterday at half-past seven. It was about nine o'clock when Denny made out the paper for me.
Court. If Denny swore that he did not read the paper aloud, would he be swearing what was true?
Witness. I say again that Denny read the paper aloud; if he did not I could not hear him.
President. You must answer "Yes or no."
Witness. It would not be true, sir.
To the Court:
I have heard Denny reading the newspaper aloud on other occasions; I do not know what part of the paper Denny read, but it was about this trial; when speaking to Denny yesterday it was about the trial; about his evidence and mine; when the prisoner introduced me to the civilian at Hoey's, he merely said that I was a friend of his; I cannot repeat the precise words used in introducing me; Denny and I had only a few words about this trial when we spoke together yesterday.
President. The civilians to whom you were introduced you said yesterday were Fenian agents; did they ever ask you to become a Fenian?
Witness. They did.
President. As a rule did you always pay for your drink or were you treated?
Witness. As a rule I was treated.
President. Were those civilians that you met Americans and Fenians?
Witness. I was told so.
President. What were they talking about when the prisoner spoke of the movement?
Witness. About the Fenians.
President. You said that a civilian asked you to go down to the yard at Hoey's house; did he assign any reason?
Witness. He asked me to go with him; and said that he belonged to the Fenians, and wished me to join them.
President. Did you notice at any time that the prisoner had more money than you would expect a soldier to have?
Witness. No.
President. Did you take the Fenian oath?
Witness. I did not; I never was asked to take an oath or join the Fenians in the prisoner's hearing.
Prosecutor. Was it after your interview with the prisoner on the lobby at Hoey's that you were asked to take the oath? Witness. It was.
Colonel Baker, Tenth Hussars, being sworn, testified: I know the prisoner. He never gave me any information of an intended mutiny in her Majesty's force in Ireland.
Prisoner. Did any private of the Tenth communicate with you in reference to an intended mutiny, before the first of March?
Col. Baker. No.
Prisoner. What character do I bear in the regiment?
Witness. A good character.
Colonel Cass, sworn and examined. I never received information from the prisoner with reference to an intended mutiny. I believe his character is good.
Head Constable Talbot, the notorious informer, was the next witness. He was not called upon to furnish evidence of the prisoner's direct complicity in the conspiracy, but only of the fact that a conspiracy existed. He had testified on the trial of Color-Sergeant McCarthy, that the latter had agreed to furnish the Fenians with countersigns, barrack and magazine keys, maps and plans of the Clonmel Barracks, and other aid necessary for the surprise of the garrison.
He also testified that not a single regiment in the service was free from the same taint of rebellion, and that part of the conspirators' scheme was the enlistment of revolutionary agents in the various branches of the British service. O'Reilly was such an agent.
His testimony was brief. In reply to a question by the prisoner, he said:
My real name is Talbot, and I joined the constablery in 1846.
The arch-informer was succeeded by Private Mullarchy, Tenth Hussars.
In January last I was in a public house, in James's Street, with the prisoner. He took me there to see a friend of mine, as he said that about a fortnight or three weeks previously a young man was inquiring after me. There were present there two civilians to whom he introduced me as two of his friends, but whose names I don't know. From the room we first entered we went into a larger one, where there were three or four soldiers belonging to the Sixty-first Regiment and Tenth Hussars, another civilian, and a young woman.
Prosecutor. Did you see the prisoner stand up and whisper to one of the civilians?
Witness. Yes, to the civilian sitting opposite to him. Very shortly afterwards the prisoner left the room and did not return. I then had a few words with the civilian to whom the prisoner had whispered.
Prosecutor. Did you see a book on that occasion?
Witness. Nothing more than the book the civilian to whom the prisoner introduced me had taken out of his pocket; the prisoner was not then present. I had no conversation afterwards with the prisoner as to what occurred in the public house, or about the friend of mine of whom he spoke. I never ascertained who that friend was.
Cross-examined by the Prisoner:
Witness. I did ask you to go to the theater on the night in question. I told you I had got paid my wages, that I was going to the theater, and that I should like to go and see the friend of whom you had spoken.
Prisoner. Is that what you call my taking you to Pilsworth's.
President. We have not got as far as Pilsworth's yet, as far as I can see.
Prisoner. Is that what you call my taking you to the public house in James's Street?
Witness. It is; I asked you to show me where this friend was, and you said you would take me to the public house, which was the last place where you had seen him.
To the Court:
I returned to the barracks at twelve o'clock that night. The friend of whom the prisoner spoke was a civilian, so he told me. The civilian who spoke to me in the public house asked me if I was an Irishman and I said I was. He asked me if I was going to join this society. I asked what society. He said, the Fenian society. I did not know what that was. Since I was in the public house with the prisoner no one spoke to me of the evidence I was to give here or at this trial.
Private Rorreson, Tenth Hussars: I was in Private Bergin's company at Hoey's public house in January last. On that occasion there were present besides Private Bergin and myself a number of footsoldiers and two civilians, none of whose names I know. The prisoner was also present, but I cannot say if he was in the room when I entered or whether he came in afterwards. I saw Lance-Corporal Fitzgerald, of the Tenth Hussars, there too. He was in the prisoner's company.
Prosecutor. Did you see anything occur on that occcasion between prisoner and the civilians?
Witness. I saw prisoner go up to Fitzgerald, and immediately the latter and the civilians went out. Previous to this I also saw him whispering to the civilians. Any time he did speak it was in a whisper.
Prosecutor. Did you see the prisoner go out of the room on that occasion?
Witness. Yes; the three of them left at the same time. I did not see the prisoner go out of the room more than once. When the three left they were absent for about ten or fifteen minutes, and they returned one after the other. When they returned, one of them spoke to a footsoldier, said good-by to his comrade, and then left the room. There was singing in the room that evening. A foot-soldier sung one of Moore's melodies. I particularly remember the words of one of the songs—
We'll drive the Sassenach from our soil.
Cross-examined by the Prisoner:
I have been at Hoey's since the occasion in question, but I cannot say how often. I never saw Private Denny there.
Question. If Lance-Corporal Fitzgerald swore that on the occasion in question there were no soldiers at Hoey's but those belonging to Tenth Hussars, would he be swearing what was true?
Witness. No, there were infantry there. I can't say that I was at Hoey's with Lance-Corporal Fitzgerald in November last.
Here the court adjourned, and the examination of Private Rorreson was resumed on the following day.
In reply to the Court:
The infantry soldiers were sitting alongside of me in Hoey's. There were not thirty of the Sixty-first Regiment there. The civilians were sitting at my right. I cannot say whether the soldiers came in first, or whether they were in the room when I went in. I will not swear what time the meeting took place; it was in January. No one spoke to me about my evidence. I was not asked to become a Fenian at Hoey's. Bergin spoke to me elsewhere of it, but never in the prisoner's presence. Any time I ever went to Hoey's it was with Bergin, and the civilians always paid for the drink. I never heard the names of the civilians, but afterwards I heard one was named Devoy. I never heard the names of the others. Devoy appeared to be a born Irishman. I never heard any singing but on that occasion, and the prisoner took no part in it. I think it was before the night in January that Bergin spoke to me of being a Fenian, on the way to the barracks going home. We had been in Hoey's; the prisoner was there. Bergin had been speaking of Fenianism on the way to the barracks. He said there was such a thing "coming off."
President. What do you mean by "such a thing coming off"?
Witness. Like a rebellion breaking out.
Prisoner. When you say you since heard one of the civilians was called Devoy, when did you hear it, and who told you?
Witness. I cannot tell who told me; Bergin told me he was employed at Guiness's, but I cannot say who told me his name.
Prisoner. I respectfully submit that all evidence given by the last witness relative to Bergin should be expunged. I did not object during his examination, as the questions were put by the Court, but I do now.The court did not accept this view of the case. In admitting the hearsay evidence it indorsed the following astounding propositions made by the Deputy Judge Advocate:
It is too late to object. The prisoner should not have allowed the examination to go on and taken his chance of something favorable to him being elicited by it. For the rest, I submit that the acts or conversations of co-conspirators are admissible as evidence against each other, even though one of them on his trial was not present at those acts or conversations. All the matters of fact sworn to, show that the prisoner and Bergin were participators in the Fenian plot. Therefore the prisoner's objection is unsustainable, particularly after the examination of the witness.
Having thus summarily disposed of the prisoner's few nominal rights, the prosecution took hold of the case in the good old-fashioned way, by putting on the stand an informer of the regulation Irish character—one who had taken the Fenian oath in order to betray his comrades, and excused himself for the perjury by saying, that, although he had a Testament in his hand and went through the motion of kissing it, he had not really done so. The testimony of this peculiarly conscientious witness is interesting, because it is typical. He can juggle with the Testament, in the hope of cheating the Devil; but when pressed he owns up: "Most decidedly I took the oath with the intention of breaking it. I cannot see how that was perjury." And again, "I told the truth on both trials, as far as I can remember." Without further preface the reader is introduced to the delectable company of
Prisoner. I object to this evidence. I was not in the house when the questions were asked.
The objection was admitted.
Witness. At the time I saw the prisoner at Hoey's, there were a number of people there, principally civilians. Devoy was one, Williams was another, and Corporal Chambers, who used at that time to appear in civilian's clothes. Hogan and Wilson, both deserters from Fifth Dragoon Guards, were also there in colored clothes. There were many others whose names I do not know. I took part in a conversation that night, but I cannot say whether prisoner was present.
To the Court:
The prisoner spoke twice to me during January and February.
President. The question refers only to one occasion.
Witness. I spoke to the prisoner in February at Barclay's public house. I do not know on what day. I went to the bar and found the prisoner there. He asked me to drink. We both then went into a room, and the prisoner sat at a table with some of his own men. The conversation was among themselves, but it could be heard at the off side of the room. It was on Fenianism and the probable fate of the state prisoners who were on trial at that time. There was also something said about electing a president as soon as they had a free republic. They were all paying attention to what was being said, but I cannot tell if the prisoner said more than the remainder. Devoy was there, and Williams. There were other civilians present whose names I do not know. I had a previous conversation in January with the prisoner at Hoey's, but I cannot remember what it was about. It was regarding Fenianism, but I cannot tell the words made use of. I met the prisoner at Waugh's public house some time toward the end of 1865. The civilians I have mentioned were there and some soldiers. In all these places the conversation was relating to Fenianism, but I cannot say if they were in hearing of the prisoner, but everybody heard them. Devoy was at Waugh's, I think. I frequently met Devoy in company with O'Reilly. I have heard Devoy speak in presence of the prisoner about Fenianism, but I cannot remember that he said anything about what was to be done in connection with it.
Prosecutor. Was there at any of these meetings of which you spoke, and at which the prisoner was present, any conversation of an intended outbreak or mutiny?
Prisoner. I object to that question, because the witness has already stated the substance of the conversations As far as he can remember. The prosecutor had no right to lead the witness, and put into his mouth the very words of the charge.
The prosecutor submitted that the question was perfectly fair and legal.
The Deputy Judge Advocate ruled that the question should be so framed as not to suggest the answer to it.
Witness. There was a conversation of an intended mutiny that was to take place in January or the latter end of February. The prisoner could have heard the conversation that took place in Hoey's, in January, and in Barclay's, in February. I reported to my colonel in February the subject of the conversation.
Court adjourned for half an hour.
Cross-examination of Private Foley:
I can read and write. I took the Fenian oath. I did not call God to witness I would keep it. I know the nature of an oath. It is to tell the truth, and the whole truth. I had a Testament in my hand and I went through the motion of kissing it, but I did not do so. I swore on two previous occasions I took the Fenian oath. Most decidedly I took the oath with the intention of breaking it. I cannot see how that was perjury. I had to take the oath, in a way, or I would have known nothing about the Fenian movement. I was examined on the trial of Corporal Chambers. I was sworn on the trial to tell the whole truth. I was sworn by the president. I told the whole truth on both trials, as far as I can remember. I know Private Denny of Tenth Hussars by appearance. I know Lance-Corporal Fitzgerald of the Tenth, also by appearance. I know Fitzgerald personally, I only knew him at these places of meeting. I think I knew him in January. I knew him to speak to him. I know Private Smith, Tenth Hussars, by appearance. I know him only by speaking to him in the month of February. I cannot say whether I ever saw Private Denny in Hoey's public house or at Barclay's or Bailey's. I cannot say how often I was at meetings in these houses in February. When I took the Fenian oath, most decidedly I intended to become an informer. I kept no memoranda of the meetings I attended, as I reported them all to my commanding officer in the mornings after they took place. My reports were verbal ones, and I never took down the names of those I met at the meetings.
Question. Have you met Corporal Fitzgerald at any of those meetings?
Witness (to President): I am very near tired, sir, answering questions.
President. If you are tired standing, you may sit down.
Witness. I met Fitzgerald at Barclay's and at Hoey's, but I cannot say how often; prisoner was present when I saw Fitzgerald at Barclay's. I knew him personally at the time. I cannot say whether I then spoke to him. At Corporal Chambers's trial I was asked to state, and did so, who were present at the meeting at Hoey's. I did name the prisoner as having been there.
Court here adjourned for the day.
Cross-examination of Private Foley resumed, on July 5.
Lance-Corporal Fitzgerald was present on the occasion when I said he was at Barclay's, at the time the conversation about Fenianism took place.
Lance-Corporal Fitzgerald was here confronted with the witness, and stated that he did swear that he met the prisoner at Hoey's and at Pilsworth's, but not at Barclay's. Private Foley would not be swearing what was true if he swore that he (Fitzgerald) made a speech on Fenianism at Barclay's, or was present at a conversation there about electing a president, "when we would have a free republic."
To the President:
I was never at Hoey's public house in the prisoner's company, but I was there two or three days after his arrest, when a man named Williams came up to the barracks and told me there was to be a Fenian meeting at Barclay's. On the 13th of January, prisoner absented himself, and on the 14th inst. (Sunday) he was taken from the barracks by a detective policeman.
To the Prosecutor:
I have never made a speech on Fenianism to my recollection, at Barclay's. I might have said things when I was drunk that I would not answer for afterwards. I swear positively that I was never present on any occasion when there was talk of electing a president of a republic. I might have been present at such conversation and not know anything about it.
Prisoner contended that this evidence should have been given in direct examination but was not admissible in cross-examination.
The prosecutor contended that the witness, who was recalled by the prisoner, for the purpose of confronting him with another, was not asked anything that was not perfectly fair and proper for the purpose of eliciting the truth.
Deputy Judge Advocate ruled that the evidence was legal and proper.
Witness to Prosecutor:
I never made a speech on Fenianism, to my recollection, at any place. I might have said things when I was drunk that I would not answer for afterwards. I was drunk every time I went there afterwards. I swear positively I was never present on an occasion when there was a conversation about electing a president of a republic. I might have been present at such conversation when drunk, and not know anything about it.
The Court. Why was Williams sent to tell you of the Fenian meeting if, as you say, you had previously refused to become a Fenian?
Witness. He was sent, I don't know by whom, but he used to go round to Island Bridge and Richmond Barracks for that purpose.
Private Foley (re-examined by prosecutor):
Having heard the evidence of Lance-Corporal Fitzgerald, I have not the least doubt that I met him at Barclay's in February last. The reason I did not, on Corporal Chambers's trial, mention prisoner, as being present at Barclay's in February, was that I had some doubts of his name. I have now no doubt that he was present.
To the Prisoner:
I did mention your name to the prosecution about a fortnight ago.
This ended the examination of Informer Foley. He was followed by a duller, but more malicious knave, Private Meara, who boasted, with low cunning, that he had taken the Fenian oath out of curiosity, and with the intention of betraying his fellows; repeated his own smart repartees, and put into the mouth of the prisoner the wholly imaginary atrocious promise, that he would hamstring the cavalry horses in case of emergency. One can almost form a picture of this ruffian from his own words. The official report reads:
The President. You are asked what was said.
Witness. Devoy said he wanted a few men out of the Hussars to give them instruction what to do, and he wanted about ten men out of each regiment in Dublin. The prisoner spoke of cutting the hamstrings of the horses in the stables in case of any emergency. The conversation then turned on a rising in the army and how the men would act. I said the Irishmen in the army saw no prospect before them, and they would be great fools to commit themselves. Devoy said they would not be asked until a force came from America. I said it was all moonshine, and that they were a long time coming. He told me I seemed chicken-hearted, and that they required no men but those who were willing and brave. I told him I was as brave as himself, and that he should not form soldiers in a room for the purpose of discussing Fenianism. That is all the conversation I can remember on that occasion.
Cross-examined by the Prisoner:
I was examined on Corporal Chambers's trial. I am not sure whether I named you as one of the soldiers present on the occasion referred to in my evidence. I took the Fenian oath, out of curiosity to see what the Irish conspiracy or republic, as they called it, was. If any serious consequences would arise I would have given information of the movement. I had an opportunity of seeing into the Fenian movement, and I saw that nothing serious was going to happen. If there was I would have known it days before, and then given information. I heard Stephens himself say at Bergin's, that the excitement should be kept up while aid from America was expected. In last March I made a statement affecting you.
This closed the case for the prosecution.
At the request of the prisoner the Court adjourned to Saturday, July 7, to give him time to prepare his defense.
Court having assembled on that date, the prisoner requested that some member of it be appointed to read his defense.
Lieutenant Parkinson, Sixty-first Regiment, was then requested to do so.
The defense commenced by thanking the Court for the patient and candid consideration which had been bestowed by the members throughout the trial, and stated that the prisoner had no doubt but that the same qualities would be exhibited in consideration of the points which would be submitted to them for his defense. The charge against him was one involving terrible consequences, and he had no doubt the greater would be the anxiety of the Court in testing the evidence brought against him.
There was only one charge which the Court had to consider, and that was: "Having come to the knowledge of an intended mutiny."
To sustain that charge the prosecutor should prove, first, that there was a mutiny actually intended; second, that he (the prisoner) had a knowledge of that intention, and third, that he possessed that knowledge in January, 1866, and did not communicate it to his commanding officer. The prosecutor was hound to prove each and every one of those allegations, by evidence on which the court might safely act. After referring to his services he asked the court to bear in mind his good reputation, while considering the evidence against him, as it must have observed that, from the character of some of the proofs upon which the prosecutor relied, in conversations with no third person present, and no date fixed, it was impossible to displace such testimony by direct evidence.
The defense then pointed out various discrepancies between various witnesses and the contradiction between the evidence of Privates Denny and Smith, where Denny had clearly committed perjury. But even if these men's evidence were true, it would not bring home to him one fact to bear out the charge.
None of these witnesses can say that in his presence one word was ever said respecting the designs or the plans of the Fenians, and it only amounted to this, that one day, in a casual conversation, he said to Smith that some persons they had met were Americans and Fenian agents. In the whole evidence, which, in the cases of Foley and Meara was that of informers, there was much to which the addition or omission of a word would give a very different color to what it had got. What was the amount of credit to be given to those men, when it was remembered that they both took the Fenian oath, the one, as he said, through curiosity, the other with the deliberate design of informing?
Meara's oath, on his own admission, had not been believed by a civil court of justice; and would this court believe it and convict a man of crime upon such testimony? He (the prisoner) asked the court to reject this testimony and rely upon that of his commanding officer, Col. Baker, who had deposed to his good character as a soldier. In conclusion, the prisoner appealed to the Deputy Judge Advocate, to direct the court that unless he had personal knowledge of an intended mutiny in January, he was entitled to an acquittal. Guilt was never to be assumed, it should be proved; for suspicion, no matter how accumulated, could never amount to the mental conviction on which alone the court should act.
The defense having concluded, prisoner called Capt. Barthorp, Tenth Hussars, who was a member of the court. In reply to questions put, Capt. Barthorp said:
He was captain of the prisoner's troop, and had known him for three years. His character was good.
Mr. Anderson, Crown Solicitor, was sworn and examined by prisoner with regard to a portion of Private Meara's evidence on Corporal Chambers's trial, relative to the alleged meeting. Meara did not mention the prisoner as having been present at the alleged meeting, when giving evidence at Chambers's trial: but on the present one he swore that he was present.
In reply to the Prosecutor:
Deputy Judge Advocate said he could not state whether the meeting of which Meara had deposed at Chambers's trial was the same mentioned on this.
Prisoner. I would wish to ask the Deputy Judge Advocate a question which arises out of his answer: Did you not hear Private Meara asked on my trial to name the persons he had met at the meeting which he deposed to at Corporal Chambers's trial, and did he not do so?
Deputy Judge Advocate. I did hear that evidence given; I did hear him state the names.
Adjutant Russell, Tenth Hussars, in answer to prisoner, said: He (prisoner) was put under arrest on the 14th of February. The prisoner was in hospital for several days in February, from 19th to 26th.
President. I do not wish to interrupt the prisoner, but I wish to point out that these dates are all subsequent to the charge.
At this point court adjourned to eleven o'clock Monday morning.
At the reopening of the court, Capt. Whelan (the prosecutor) proceeded to answer the defense of the prisoner. His reply entered elaborately into the whole evidence that had been given, and commented on the various points raised for the defense. Capt. Whelan defended strongly the various witnesses from the charge brought against them by the prisoner, of being informers, and insisted that they were all trustworthy and credible, and that the discrepancies pointed out in the defense were such as would naturally arise.
The Deputy Judge Advocate then proceeded to sum up the whole evidence. In doing so, he said:
The court should bear in mind that the existence of an intended mutiny should be proved before the prisoner should be found guilty of the charges upon which he was arraigned. The court should also bear in mind that it was for it to prove charges and not for the prisoner to disprove them. To experienced officers, like those composing the court, it was not necessary for him (the Judge-Advocate) to state what the law was, bearing on those charges. He might say, however, that if the prisoner did come to the knowledge of an intended mutiny, it would be for them to say whether the prisoner had given notice of any such intended mutiny to his commanding officer. This, his commanding officers state, he did not do; so that it became the subject of inquiry whether any such mutiny was intended. They had the evidence of Head Constable Talbot on that point, and they should attentively weigh it. Assuming that it was intended, and that the prisoner was aware of it and an accomplice in the design, they had then no less than eight witnesses to prove that complicity. The Deputy Judge Advocate then went minutely through the whole evidence, which he recapitulated in a lucid manner, pointing out to the court where it was favorable for the prisoner or bore against him.
The Judge Advocate concluded by saying: "Now, on a calm and fair review of the evidence, determining in favor of the prisoner every, thing of which there was reasonable doubt, straining nothing against him, is the court satisfied that the facts are inconsistent with any other conclusion than the prisoner's guilt? Is the court satisfied that the Fenians intended mutiny as one of the essentials of that plot?
"Are they satisfied that the prisoner knew of that intention? If you are not satisfied that the evidence adduced for the prosecution has brought home to the prisoner the charges on which he is indicted; if you can fairly and honestly see your way to put an innocent construction on the prisoner's acts, it is your duty to do so.
"But, on the other hand, if the court has no rational doubt of the prisoner's guilt, then it is bound, without favor, partiality, or affection, to find their verdict accordingly. Remember, though, that although you may feel very great suspicion of the prisoner's guilt, yet if you are not satisfied that the charge is proved home to him beyond rational doubt, no amount of suspicion will justify conviction. Apply to your consideration of the evidence, the same calm, deliberate, and faithful attention and judgment which you would apply to your own most serious affairs, if all you value most and hold most dear, your lives and honor, were in peril. The law demands no more, and your duty will be satisfied with no less."
At the conclusion of the Judge Advocate's address, the court was made private, to consider their finding. After a short time it was reopened, and
Adjutant Russell, Tenth Hussars, was called to give testimony to the prisoner's character. He said that it had been good during his three years and thirty-one days of service.
The court was then again cleared and the result was not known until officially promulgated by the Horse Guards.
On July 9, 1866, formal sentence of death was passed upon all the military prisoners. It was only a formality. The same day, it was commuted to life imprisonment in the cases of O'Reilly, McCarthy, Chambers, Keating, and Darragh. The sentence of O'Reilly was subsequently commuted to twenty years penal servitude.
Adjutant Russell, referred to in the preceding report, better known as Lord Odo Russell, had pleaded successfully for leniency in behalf of the youthful prisoner. The first step in execution of the sentence was taken on Monday afternoon, September 3, in the Royal Square, Royal Barracks, in the presence of the Fifth Dragoon Guards, Second Battalion, Third Regiment, Seventy-fifth Regiment, Ninety-second Highlanders, and Eighty-fifth Light Infantry. The prisoner was then and there made listen to the reading of his sentence, stripped of his military uniform, clothed in the convict's dress, and escorted to Mountjoy prison.
Before dismissing the story of his trial, I may here relate a curious sequel, which occurred some six or seven years later in the city of Boston. O'Reilly had many strange visitors in his newspaper office, but perhaps the strangest of all was one of the two informers before mentioned. This fellow, after O'Reilly's conviction, found himself so despised and shunned by his fellow-soldiers, both English and Irish, that his life became unendurable. He deserted the army and fled to America, where the story of his treachery had preceded him. He was starving in the streets of Boston when he met his former victim, and threw himself upon his mercy. Almost any other man would have enjoyed the spectacle of the traitor's misery. O'Reilly saw only the pity of it all, and gave the wretch enough money to supply his immediate wants, and pay his way to some more propitious spot.