And he came from his work?-I suppose so. And you never observed his apron upon him?-No. When did you hear he was taken up?-On Monday. At what time was he there again?—He breakfasted there on Sunday morning. At what time?—I cannot say; he came before I returned home; it was past nine. Was he there on Sunday evening ?---I cannot say. Where were you on Sunday?--I do not recollect. Then probably it was Friday and not Saturday evening that you have been speaking of? -No, for there is a great difference between my work on those nights. When was the prisoner taken up ?---On Monday. Do you recollect where he had been on the Sunday?---No. was; I think he had a brown coat, and leather small-clothes. That was his common working dress?—I suppose so; it was a coat his former master gave him, and he wore it for decency. Did you remain all the evening in the kitchen?-I did not; I went up, and got the tea-things for my mistress; and my master was in the parlour. Was any body with him?I do not recollect, though he is seldom without somebody. Were there any persons with your lady?-Mrs. Siloe and Miss Pope. The former is a sickly woman?-She is. You called a chair for her?-No, I did not. What disorder did the bird die of?—None, for the cat killed it. Was it upon that day?-Yes, for the prisoner was getting worms for it, and the cat killed it, and it was buried in the garden. At what time was this?-About eight o'clock. Did your mistress go into the garden?-She did, and it was determined to bury it immediately. So you pretend to recollect what passed on Saturday, but you recollect nothing with respect to Sunday, though the prisoner was taken the next day ?---I do not. Connor Kelly sworn.---Examined by Mr. Mac this night?-On Sunday morning. When did you see the prisoner again after Nally. You are servant to Mr. Couzens ?---I am. Is he in town or in the country?---He is in the country. How long since?---Since Saturday fortnight. Is he in the habit of calling there to see his wife?---He is. At what time?-About nine, or something better. Had you heard of the disturbance before he came ?--I did. Had you any conversation with him about it?-No; for I had been out in the evening, and heard the drum beat to arms. Did you talk to him about it?—I told him I heard the drum; he said he was sure there was; for upon coming to us he heard of lord Kilwarden's death. Did you see him upon the 23rd of July ?--I did. That was the first he heard of the disturbWhere ?---At my master's house in Digges-ance?—It was, as I understood. street. Did he say, he was much surprised at hear At what hour?---At half past six I let himing it?—He was. in. At what time did he go away?—About nine. Where have you been during the last hour?--In court. You heard the last witness examined?---I did. You heard every thing she said ?She said nothing but what was true; I heard her mention what I knew to be true. You were not anxious to hear what she said?—No, I was not; I have been attending these five days. Has Mr. Couzens any other man servant ?--No, I am thorough servant. You let the prisoner in, you say?—Yes. He came fresh from the castle-yard ?—I cannot say. He laboured there?---He did. Did he not say he came from the castleyard? No, he did not. Was he in his usual dress?--I believe he Did you express any pleasure at hearing he got safe home ?---No such thing. Then was it upon the next morning he first heard of the disturbance? Yes. And not in the evening ?-Not at all; because he told me, it was upon coming to us that morning, that he heard of it. Were you not surprised that he had not heard of it before, living in Ormond-market? -No, I was not, for I knew of it by going into Grafton-street, to Mr. Wilkinson's, to get a cap for my mistress. Where did the prisoner lodge?—At Mrs. Walsh's. Have you seen her?--I have seen her at Mrs. Couzens's. Does she wait on your mistress?-She comes to see the prisoner's wife. Have you seen Mrs. Mac Owen ?-I have. Have you seen her within these fews days? Did any thing pass with regard to what evidence you could give?-No such thing; only she used to ask me how the trials went on, expecting the prisoner would be tried. Do you know the apprentice-boy?---I do. And you have talked with him?-Only to ask him what time the prisoner went home. Then you talked to them all about the evidence. Can you say why your mistress is not here?-If she thought it necessary she would come, for she has a regard for the prisoner, and every day asks something about him. Mr. Mac Nally said, he would give directions that Mrs. Couzens should be sent for. David Courtney sworn.--Examined by Mr. Do you know the prisoner?-I do. 1794. Have you known him from that down to the present time?—I have. I presume you are acquainted with his general character?-I am. What character does he bear, as to affection to the government of the country?—I cannot say any thing as to that. You never knew any thing as to his politics?---Never, till this affair. Has he had the character of a peaceable man? ---During the time he lived with me, till 1796, no man could conduct himself more quietly; he left me, and I could not tell the reason, but he wished to go to the country, as he said. I met him in 1800, and he said he was out of place; I told him I had not room for him; he said he would labour, and I employed him till May, 1802, when I took him as an inside servant; and in May, 1803, I discharged him for drunkenness, and neglect in consequence of that. Jury. To what part of the country did he go when he left you?-To Meath or Westmeath. [Not cross-examined.] Joseph Blood sworn.-Examined by Mr. Mac Nally. You have a situation at the castle?—I have. Was the prisoner recommended to you?— He was. By whom?-By Mr. Courtney's clerk. Do you know his general character?—I cannot say. I never heard any thing as to his affection for the government. I under. stood he was honest. [Not cross-examined.] Doran the prisoner was then servant to Mr. Nangle, and escaped out of a window in the house, and never stopped till he got across a bog to alarm my father and mother; my father happened to be at Clonard, as I said; but Doran told my mother, and gave her the first information of the approach of the rebels, and he got a conveyance for her, and the rest of the family to Mullingar: my father gave a certificate of this, and if it was necessary, I was to prove his hand writing; the prisoner's brother lives with my father, and he has an high opinion of him; he is a proper and well conducted man. Court.-Do you entertain the same opinion of the prisoner?-I have no reason to form an opinion, only from what I have stated; I heard nothing to the contrary, until the prisoner was charged with this business. Mr. Mac Nally stated to the Court that the prisoner had no other witness to examine; but that Mrs. Couzens had been sent for; and in case of her arrival, he hoped the Court would permit her to be examined. Lord Norbury.—By all means; we will wait any reasonable time for her. [After waiting some time, Mrs. Couzens came into court, and was examined.] Mrs. Barbara Couzens sworn.—Examined by Mr. Mac Nally. You are the wife of Mr. Couzens, the attorney?—I am. I Do you remember the 23rd of July last?— do. Pray, madam, do you remember the trifling circumstance of burying a bird?—I do, sir. It was on that day?—It was. You were present at its being put into the grave?—I heard it was; but was not present. Do you know Doran?—I do, my servant woman. I mean her husband, the prisoner; do you know him?-I do. Was he there that night ?-He was; for I put the bird into his hand and made him bury it. Did you see him after, in the course of that evening?—No, I did not; I was up stairs with some company. What are their names?-Mrs. Siloe was one. She is in an ill state of health?—Yes. There was a young lady also there?—Yes. Did the prisoner stay to bury the bird?—I am sure he did; they had not done their tea Joseph Haughton, esq. sworn.-Examined by in the kitchen. Mr. Mac Nally. Do you know the prisoner?—I do. How long?-Several years; I cannot say what length of time: he was born in the county where my father lives. What was his general character, particularly as to his being peaceable, or otherwise? -As I have lived mostly in Dublin, I cannot say much; but in 1798, when the rebels went to attack Clonard, where my father was, Was it usual with the prisoner to drink tea with his wife at your house?—It was. Mrs. Barbara Couzens cross-examined by Mr. Solicitor General. Pray, madam, how was the prisoner dressed that evening?—In a brown coat. Do you recollect any other part of his dress? I do not. Had he an apron upon him?—He had not. Can you safely say, he had not an apron ?— I can; I can safely say, I never saw an apron upon him, when he came to my house. dence upon the table.---By the former, he does say, that he saw several persons to the number of three hundred marching up Newstreet, which is not consistent with what he William Harrow called again.-Examined by has sworn now.---Possibly this may arise from the Court. When you saw the people with pikes, you were standing in the alley?—Yes. You did not go from your father's door that evening?--I did not. You did not see a great number of persons at the end of the alley?-No. Who drew your examinations?—Mr. Kemmis. Is that your name and hand writing? [Showing the witness his information.]---It is. Did you read your examination before you swore it ?---No, major Sirr read them. Mr. Solicitor General.---My lords, under the circumstances of this case, we think it our duty to say, that there appears that kind of doubt which prevents us from pressing the case farther against the prisoner.---We think the jury may with propriety discharge their duty by acquitting the prisoner, rather than by convicting him. Lord Norbury.---I think it right also to say, that the officers of the crown directed the attention of the Court to a comparison of the information sworn by the boy with his evi mistake at the time he swore the informacircumstances, and the identity of the prisoner tions, or at the present. But, under these depending upon the single testimony of this boy, and the officers of the Crown having should acquit the prisoner. candidly given up the case, we think the jury Verdict.---NOT GUILTY. right to observe, that nothing had appeared The Counsel for the Crown said, it was but to impeach the moral character of the boy. Mr. Mac Nally said, that the Court and the counsel for the Crown would do him the justice to recollect, that he did not attack the boy's credit upon any other ground than that of mistake. The Jury expressed their satisfaction of the pure intention of the witness; but said, they thought it possible he might be mistaken as to the prisoner's person. Mr. Mac Nally then said, the prisoner was willing to take the oath of allegiance. But the Court did not require it, and he was instantly discharged. 663. Trial of THOMAS DONNELLY, NICHOLAS FARRELL (alias NICHOLAS TYRRELL), LAURENCE BEGLEY (alias LAURENCE BAYLY), and MICHAEL KELLY, for High Treason; before the Court holden under a Special Commission at Dublin on Saturday September the 10th: 43 GEORGE III. A. D. 1803.* mas-strect in the city of Dublin and in the county of the city of Dublin yeoman Nicholas Farrell late of Thomas-street aforesaid in the city of Dublin and in the county of the city of Dublin yeoman otherwise called Nicholas Tyrrell Laurence Begley late of and in the county of the city of Dublin yeoThomas-street aforesaid in the city of Dublin man otherwise called Laurence Bayly, Miof Dublin and in the county of the city of chael Kelly late of Thomas-street in the city Dublin yeoman subjects of our said lord the now king not having the fear of God in their hearts nor weighing the duty of their allegiance but being moved and seduced by the in County of Dub-THE jurors of our lord lin to wit. Sthe king upon their oath present that Thomas Donnelly late of Tho-stigation of the devil as false traitors against From the Report of William Ridgeway, esq. Barrister at Law. The preliminary proceedings will be found at the commencement of Kearney's trial. our said lord the now king their supreme true lawful and undoubted Tord the cordial love and true and due obedience which every true and dutiful subject of our said sovereign lord the king towards him our said lord the king should bear wholly withdrawing and third year of the reign of our said lord contriving and intending the peace and com- the king with force and arms at New-street mon tranquillity of this kingdom to disquiet aforesaid in the county of Dublin aforesaid molest and disturb and the government and the said Thomas Donnelly Nicholas Farrell constitution of this realm to change subvert otherwise called Nicholas Tyrrell Laurence and alter and our said lord the king from the Begley otherwise called Laurence Bayly and royal state title honour power imperial crown Michael Kelly as such false traitors as aforeand government of this kingdom to depose said in further prosecution of their treason and deprive and our said lord the present king and treasonable purposes aforesaid with a great to death and final destruction to bring and put multitude of persons whose names are to they the said Thomas Donnelly Nicholas the jurors unknown to wit to the number Farrell otherwise called Nicholas Tyrrell Lau- of one hundred persons and upwards armrence Begley otherwise called Laurence ed and arrayed in a warlike manner to Bayly and Michael Kelly on the twenty-third wit with guns swords and pikes being then day of July in the forty-third year of the and there unlawfully and traitorously assemreign of our said lord the king at New-street bled and gathered together against our said aforesaid in the county of Dublin aforesaid lord the king did levy ordain and make public with force and arms falsely wickedly and trai- war against our said lord the king against torously did compass imagine and intend our the duty of the allegiance of them the said said lord the king then and there their su- Thomas Donnelly Nicholas Farrell otherwise preme true and lawful lord of and from the called Nicholas Tyrrell Laurence Begley royal state crown title power and govern- otherwise called Laurence Bayly and Miment of this realm to depose and wholly de-chael Kelly against the peace of our said prive and our said lord the king to kill and bring and put to death And that to fulfil perfect and bring to effect their most evil and wicked treason and treasonable imaginations and compassing aforesaid they the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrell Laurence Begley other wise called Laurence Bayly and Michael Kelly as such false traitors as aforesaid on the said twenty-third day of July in the fortythird year of the reign of our said lord the king at New-street aforesaid in the county of Dublin aforesaid with force and arms falsely maliciously and traitorously did conspire confederate and agree together and to and with each other and to and with divers other false traitors whose names are to the jurors aforesaid unknown to raise levy and make a public and cruel insurrection rebellion and war against our said sovereign lord the king within this kingdom And afterwards to wit on the said twentythird day of July in the forty-third year of the reign of our said lord the king with force and arms at New-street aforesaid in the county of Dublin aforesaid the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrell Laurence Begley otherwise called Laurence Bayly and Michael Kelly as such false traitors as aforesaid in further prosecution of their said treason and treasonable purposes aforesaid did arm themselves with and did bear and carry certain weapons called pikes with intent to associate themselves with divers other false traitors armed with guns swords and pikes whose names are to the said jurors unknown for the purpose of raising levying and making insurrection rebellion and war against our said lord the king and of committing and perpetrating a cruel slaughter of and amongst the faithful subjects of our said lord the king within this kingdom And that afterwards to wit on the said twenty-third day of July in the said forty lord the king his crown and dignity and contrary to the form of the statute in such case made and provided And the said jurors of our said lord the king upon their oath do further present that the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrell Laurence Begley otherwise called Laurence Bayly and Michael Kelly being subjects of our said lord the now king and not having the fear of God in their heart nor weighing the duty of their allegiance but being moved and seduced by the instigation of the devil and entirely withdrawing the love and true and due obedience which every subject of our said lord the king should and of right ought to bear towards our said sovereign lord the king and wickedly devising and intending to disturb the peace and public tranquillity of this kingdom on the twenty-third day of July in the forty-third year of the reign of our said lord the king with force and arms at New-street in the county of Dublin aforesaid unlawfully maliciously and traitorously did compass imagine and intend to raise and levy war insurrection and rebellion against our said lord the king within this kingdom and in order to fulfil and bring to effect the said traitorous compassing imaginations and intentions last mentioned of them the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrel Laurence Begley and Michael Kelly they the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrell Laurence Begley otherwise called Laurence Bayly and Michael Kelly they the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrell Laurence Begley otherwise called Laurence Bayly and Michael Kelly afterwards to wit on the twentythird day of July in the said forty-third year of the reign of our said lord the king with force and arms at New-street aforesaid in the county of Dublin aforesaid with a great multi tude of persons whose names are to the said jurors unknown to a great number to wit to the number of one hundred persons and upwards armed and arrayed in a warlike manner to wit with swords gunsand pikes being then and there unlawfully maliciously and traitorously assembled and gathered together against our said lord the now king most wickedly maliciously and traitorously did ordain prepare levy and make public war against our said lord the king their supreme and undoubted lord contrary to the duty of the allegiance of them the said Thomas Donnelly Nicholas Farrell otherwise called Nicholas Tyrrell Laurence Begley otherwise called Laurence Bayly and Michael Kelly against the peace of our said lord the king his crown and dignity and contrary to the form of the statute in such case made and provided. The prisoners severally pleaded Not-Guilty; and being asked whether they were ready for trial, answered, that they would be ready on Monday the 5th. On Friday, the 9th of September, they were brought up for trial, when Michael Kelly said he could not be ready for his trial till the next day, and thereupon the attorney-general consented that their trials should stand over till the next day. Accordingly, they were this day, Saturday, the 10th of September, put to the bar again, said they were ready for trial, and consented to join in their challenges. The following jury was then sworn, after two persons were set by on the part of the crown -one challenged by the prisoners for want of freehold, and three were challenged peremptorily. William Pemberton, George Cuppaidge, Robert Walker, James Cuppaidge, Daniel Sullivan, Thomas Macready, Arthur Keene, Charles Mulvany, Bennet Dugdale, William Davis, Anthony Davis, Richard Browne. The prisoners were given in charge. The Counsel and Agents for the Crown and for the prisoners were the same as on the preceding trial. Mr. O'Grady opened the Indictment. Mr. Attorney General.---My Lords, and Gentlemen of the Jury;-It appears from the indictment against the prisoners, which has been read by the clerk of the crown, that they stand charged with the crime of high treason. Gentlemen, that charge is grounded upon two distinct species of treason, one for compassing and imagining the death of the king, and the other for levying war against him. This crime is constituted by the traitorous imagination of the heart, the moment it conceives the design ;-in the language of the law, the moment a man compasses and imagines the death of the king (which means any alteraVOL. XXVII, tion by force of the laws, constitution, and government of the country), he is guilty of the crime of high treason. But it requires that the traitorous imagination of the heart should be made known by some visible and outward act, which will demonstrate to any body the intention of the man. This is called in the law an overt act, and is in itself but evidence of the crime of treason, the greatest which a subject can commit, whatever the nature of the overt acts may be, or however they may differ in their degree of atrocity: for the nature of the evidence alters not the guilt of the party accused; for instance, in this indictment, it is attributed to the prisoners, that they armed themselves with pikes for the purpose of associating with other false traitors to alter by force the law and government of the kingdom. The death of the king must be supposed necessarily to result from the successful execution of such a design; therefore that single act, being an overt act of this species of treason, is sufficient in itself, if it be clearly proved to have been done with an intent to alter the government and constitution by force, is as direct evidence of the crime of treason, as if we had specifically laid, as an overt act, the death of any persons who were unfortunately murdered during the insurrection. You, gentlemen, know that no atrocities all confined to the city, but the moment we were committed in your county; they were attach this crime upon any man in the county, that he armed himself with a pike, the same weapon that was used in the city, and that he disturbances began, you are to consider whether he did so for the purpose of joining other false traitors against the king and government; and you are to collect from all the circumstances, whether he promoted the general design. If you believe that the person accused took up the pike with that inten. tion, every act which was done in Thomasstreet will be evidence against him, although he did not individually take any part in the transactions. When a furious and lawless mob collect together for any barbarous purpose, it falls to the lot of few to be actors in it; but every person is guilty in the eye of the law, if he be voluntarily present, aiding and supporting those who commit the fact; for if they were not so present, the few who are actually employed would not pursue their schemes; they derive aid and encouragement from the numbers who attend. marched out at the same hour in which the Gentlemen, I call your attention to these facts, because you will have nothing to do, but first to inquire whether there existed in the city a treasonable insurrection and rebellion; and your next object will be, to inquire how far the prisoners at the bar participated in it. It is not necessary that they should be guilty of any one atrocity committed on that evening; and even if you should be of opinion that they did not originally know the 32 |