He is rather unfortunate. Did not Mr. Sirr That he, Mr. Hevey, was active during the say to Hevey, "Have you a protection," an-period of the rebellion?-I have heard he was swer to that?-No, he did not. Did not Mr. Sirr say to Hevey, “You have been a yeoman"?-I do not recollect that. I ask you was Mr. Hevey a yeoman?-I think he was in the Roebuck Cavalry. Were there any people whom you knew in the coffee-house, during this transaction?There were. Who? I cannot immediately call to my recollection. Did you see Mr. Hall in the Commercial coffee-house?-He was there. Was Mr. Hevey a yeoman?-I recollect seeing him in uniform; I believe he was a yeoman. Have you not heard that Mr. Hevey was tried at Kilkenny?-I believe he was. Mr. Curran. He was tried at Kilkenny, and was pardoned; and when Mr. Sirr saw him in September, 1801, in the Commercial coffee-house, and had the conversation stated, then said Mr. Sirr, "I arrest you in the king's name." Mr. Greene. Did you not observe remarks made about an orange handkerchief during the evening?-None. Did you not see one in the hands of the plaintiff ?-No. Nor any jarring observations?-None. Do you know Mr. Sirr?—I do. Do you know Mr. Hevey?—I do: I never saw him to know him before September last. I went to the Commercial coffee-house on the evening of the 8th of September last. After some conversation, Mr. Sirr said to Mr. Hevey, "I will let you know who I am." Mr. Hevey made answer, and said, "I defy you." Some other words passed; Mr. Sirr said to Mr. Hevey, "You ought to be hanged;" then Mr. Hevey answered," By God you lie." Mr. Sirr then said, "I will make you prove it." Did Sirr tell Hevey what he arrested him for?-Not that I heard; they went out together. I returned to the coffee-house. Mr. Samuel Rainey cross-examined by put on his trial. Did you not hear he was what was called an active citizen before the rebellion?—I heard he was active. What do you mean by the word active? Mr. Curran. Why to be sure, he means an active young man; is it not so? Witness.-Yes. Do you believe he was found guilty?—I cannot tell whether or not. Mr. Barrington.-The whole proceedings of the court-martial were set aside by lord Cornwallis, who reversed the sentence of the Court. Mr. Patrick Maguire sworn.-Examined by Mr. Wallace. Do you know Mr. Sirr?-I do. Do you know Mr. Hevey?-Yes. Do you recollect the month of September last?—I do. Have you heard of any thing which then happened to plaintiff?-Yes; he was taken into custody by Mr. Sirr, and committed to the Provost. Had you any difficulty in getting to see him?-Yes; by much, as I could not see him. Did you do any thing in consequence?-I did; I went by the order of major Sandys, to see Mr. Hevey in the Provost. He said he was in custody of major Sandys, under a warrant from Mr. Sirr. What did you then do?-I returned to major Sandys, and said to him, I wondered he would detain Mr. Hevey on so trifling a matter, and Sandys replied, it was not a trifle to insult Sirr, who was in the trust of government; and Mr. Hevey would be humbled, or else he should stay where he was; that he should make a public apology, ere he would be enlarged; and if you call on Sirr, and tell him this is done, and if Mr. Sirr is satisfied, I will then discharge him on your interference. Did you call on Sirr?-I waited on him on the 9th of September, and he replied, he did not wish to hold him longer, but to show you it was not Hevey that should be detained, he said, if I would find out the fellow who told Hevey what I said, he would punish him. I then said, if you write now to Mr. Sandys, he will discharge Hevey, and I required a letter, and he replied, you will tell Mr. He was a good deal employed in taking up Sandys, by the same token, the last conversapersons who were active in the rebellion?-Ition I had with major Sandys in the castlewas told so. yard, was on Hevey's business, he will be Do you know was Mr. Sirr a magistrate for the county of Dublin?-I was told he was, and believe so. Had you not heard that Mr. Hevey was discharged. arrested? Yes. sessions, for a month's imprisonment, for having assaulted a Mr. Labertouche, with whom he had quarrelled about some words used by the latter in a tavern, respecting his transaction with major Sirr.-Orig. Ed. Did you then call on Sandys?—I did. What did he then say?-He told me the token was right, and that if Hevey signed the apology he left him, he would discharge him, and desired I would go into the room, and cause him to sign said paper. Did you then go?—I did. What sort of place did you see Mr. Hevey in ?-I saw him in the Provost Prison. Describe the prison, or where you have seen Mr. Hevey?-I cannot describe it properly. You must describe it.-I saw Mr. Hevey in a small room (to the best of my recollection), where the first object I saw was, a man sitting in a situation that delicacy prevents me from repeating, with a yellow shirt, and seemingly quite exhausted. Five or six beds; in one of the beds was a man sitting up in it, his person filthy and a long beard, with a soldier's old coat laid over his shoulders. I saw a third man walking about reading. I suppose it was a prayer-book, and he reading the office of the dead. Lord Kilwarden.Did you see the book ?— No, my lord. Then how can you swear it was a prayerbook?-My lord, I thought it was from the horrid appearance of the place; I was so alarmed, and the stench was so offensive from the room, that I refused to go farther than the door, lest I should get some disorder, for the beds seemed to be full of people in sickness. I spoke to Mr. Hevey about his dreadful situation, and requested him to sign the apology that major Sirr required, or to do any thing to get out of such a place; which Hevey refused. I then went to Sirr in the castle-yard, and begged of him to liberate Mr. Hevey. I told Mr. Sirr 1 would pay Mr. Hevey's expenses. After some conversation, he said, he had arrested Mr. Hevey in vindi cation of his own honour, and said he would leave it to Mr. Sandys to get Mr. Hevey discharged. Mr. Sirr gave me no note to Mr. Sandys, to get Mr. Hevey discharged; who I then told, that the friends of Mr. Hevey must get him liberated, by applying to the law for redress. I then went to Mr. Sandys, this was the next day after Mr. Hevey was arrested. I saw Mr. Sandys, I told him what Mr. Sirr had said, and Mr. Sandys said, I must excuse him; I am, said he, in an awkward situation; as Mr. Hevey is confined under a general officer's warrant, and that it must be an order from Mr. Abbot only, that could now do it. However, if proper authority is left with me, I will discharge him forthwith; and he advised me to go into Mr. Hevey's room, to get him to sign an apology; and then, said he, I will discharge him, but except he signs that paper, he said he could not; he said he would not discharge Mr. Hevey, unless he signed that apology. I then went to Mr. Hevey again, and intreated him to sign the apology; at first he refused, but at last he said he would sign it; and he having signed it, we parted. Mr. Sandys told me, that if Hevey signed the apology, he would have him discharged that day. When was Mr. Hevey liberated?-On the 11th of September, about twelve o'clock at noon. VOL. XXVIII. Cross-examined by Mr. Jonas Greene. Were you present at the conversation be、 cial coffee-room?-I was not. tween plaintiff and defendant in the Commer You say that Mr. Hevey objected at first to sign the apology?—Yes; but he afterwards signed an apology to major Sirr. You called at the prison to see Mr. Hevey? I did. Did you see Mr. Sirr there?-I never saw Mr. Sirr there. but I have been in habits of intimacy with Are you a relation to Mr. Hevey?-No: him a considerable time back. You have been in company with him?Yes. He was a yeoman ?-Yes: I saw him in uniform. When did he cease to be a yeoman?— Some time about the year 1799; I do not know the time precisely. before that period?-I had been out of the Did you ever hear of any act done by him kingdom, and returned 1st of June 1798. I was not a yeoman. brought to trial at Kilkenny?—I have heard · Have not you heard, that Mr. Hevey was it, and do believe it to be the case. Did you hear that Mr. Hevey was senfor seven years?—Yes; but to what part of tenced to transportation out of the kingdom the world I never heard. Did you never hear that Hevey had been confined in the Royal Exchange?-I was not present, if he was confined in the Royal Exchange. Did you not hear he was taken up as a suspected yeoman ?-I never heard that to my knowledge; I am positive I never heard it. Have you heard why the sentence of transportation was not put in execution?—I cannot answer that question. Lord Kilwarden.-You cannot ask the witness as to the motive that induced lord Cornwallis to liberate that man; it has been stated he was liberated by lord Cornwallis; of course Hevey has been forgiven. The witness cannot know the motive that produced his lordship's clemency. No; here is an apology drawn up by major Did Hevey make an apology to Mr. Sirr? Sandys, which Mr. Hevey would not sign. Whereas I, on the night of the 8th of September last instant, in the coffee-room of the Commercial Buildings, made use of improper expressions to Mr. Sirr; I am very sorry for it, and beg your's (Mr. Sirr's) pardon, and assure you, I had, nor have not, any wish to insult any officer of this government; to whose clemency I owe my release from a sentence of a court-martial, by reversing the sentence inflicted on me, by that court-martial, &c. 11th September, 1801. Mr. Fletcher. There was an apology made by plaintiff? C yours, &c. &c. 11th September, 1801. JOHN HEVEY. To Major Sandys. Mr. Curran. Here was not any thing like an authority to discharge him. Lord Kilwarden.-At present I think Mr. Sandys acted merely as agent of Mr. Sirr-he was committed to his custody by Mr. Sirr. Mr. Barrington.-There was no charge of high treason against Mr. Hevey in September Tast. Counsel for Defendunt.-We have the evidence of the former witness he did say, that Mr. Sirr said, he did not want any apology at all; and when he heard that Mr. Hevey said he would appeal to the law, then said Mr. Sirr to the witness, I will go to Mr. Abbot and get the man released. Court. Do you rest the case here on the part of the plaintiff? Counsel for Plaintiff.-Yes, my lord. William Fletcher, esq.-My lord, and gentlemen of the jury; In this case I am of counsel for major Sirr, the defendant in this action. Gentlemen of the jury, I should have been the last man, that would have been called upon as counsel for the defendant, had he been such a man as has been represented to you. This action is brought to recover the enormous sum of 5,000l.; that sum my eloquent and ingenious friend Mr. Curran has told you is so trivial, that you ought to find the verdict to the full amount of the damages laid in the declaration. He has in this statement mentioned many things that are totally irrelevant to the present case; he has lamented that the damages were not laid at 10,000/-he has attributed the conduct of my client to the plaintiff, as if malice was prevailing in his mind against the plaintiff; such an assertion is not capable of being given in proof on an action for an assault; but malice had no share in the transaction; we cannot give in evidence the intentions of a man; no-to harbour a malicious intention would degrade the dignity of human nature. he was incapable of feeling resentment against the plaintiff. The defendant did know, that there had been the sentence of transportation awarded by a court-martial held at Kilkenny, against a man of the name of Hevey; but as to any knowledge the defendant had of him, he was as ignorant as he is of a man in South America. Mr. Sirr was informed, in the coffee-room of the Commercial Buildings, that such a man sitting there was of the name of Hevey; and recollecting there was a man of that name tried at Kilkenny, he did, after some little conversation, ask him was he not once in the Provost Marshalsea, and had he not been tried and found guilty at Kilkenny; and asked him to show found at large; Hevey refused to give defenhis protection, and to account why he was dant Sirr told him, if he did not, he must arrest any satisfactory answer; and then Mr. him till he found out the truth: and for this conduct of the defendant, the plaintiff now applies to you, gentlemen of the jury, to be recompensed in damages to the amount of 5,000l.! I shall not, gentlemen, attempt to display that profusion of eloquence you have heard from my ingenious and learned friend; but I will state the facts that will appear in evidence, on behalf of the defendant, my client in this case; and you will consider what injury the defendant has sustained, before you on your oaths would find a verdict to the amount of the enormous sum of 5,000!. You will consider the evidences which have, and those that will be, produced to you. There have been many circumstances mentioned in the statement of plaintiff's case, by his ingenious advocate, that are incapable of being given in evidence. You may therefore venture to put out of your minds threefourths of the statement, there being, as I have already mentioned, many circumstances stated, that could not be sent up to you for your investigation and consideration. We shall produce evidence to prove facts of a public nature:-as to common fame, it is no foundation to state to gentlemen of your understandings any facts grounded on reports of common fame. I must observe to you, gentlemen, that my learned friend has stated to you, that the liberty of this country was in danger of being destroyed; as if liberty was only to be found within these walls; but I trust this representation is not the case, for liberty exists in every part of Ireland as well as within these walls, and the liberty of the press is preserved inviolable, and I doubt not but you may read, in some of the newspapers that may be published in a few days, that there was on such a day, a trial wherein Mr. Hevey was plaintiff, and Mr. Sirr defendant, on an action for an assault and false imprisonment, when Mr. Curran displayed his usual great abilities on behalf of his client, with amazing eloquence and energy, and the witnesses were produced to prove the facts stated by the learned counsel, when it appeared, the jury did not give credit to their testimony, for they found a verdict in favour of the defendant; peradventure such a paragraph may appear in the public newspapers; for I have no doubt but that you will find your verdict in favour of my client, and against the plaintiff in this action. I shall not, gentlemen of the jury, state any thing on the part of my client, Mr. Sirr, that will not be proved in evidence; it ap pears that the defendant accidentally went he had a right to do, if such a man had been into the coffee-house of the Commercial Buildings, with some other gentlemen; they sat down and took coffee, and there happened to be sitting in the same coffee-room, the plaintiff in this action, and some person having said, you live, sir, a good deal in the country where persons live who were accused of being active in the late rebellion; to which Mr. Sirr replied, I am not in the least afraid of any of them; it was then pointed out that there was a man in the room of the name of Hevey, who had been charged and tried on an accusation of that nature, and had been sentenced to transportation; to which Mr. Sirr, in a low voice made answer, "he deserved to be hanged;" and then some busy intermeddling officious person, went to Hevey and told him what Mr. Sirr, in a low voice, had said; and then the conversation took place which will be given in evidence I demand to see your protection; you know me-yes, said plaintiff, I know you are major Sirr; but would give him no answer, as to showing how he became at large; and when Mr. Sirr brought him to his office in the castleyard, he again asked him to show his protection; and then plaintiff, in a swaggering, blustering manner, said, " as to my protection, go ask your betters for it." Now if Mr. Hevey had thought proper to have told Mr. Sirr, "true it is, I was tried at Kilkenny, and was found guilty, and was sentenced to transportation, but I have been, by lord Cornwallis, set at liberty:-if Mr. Hevey had mentioned those words to Mr. Sirr, you never would have heard of this action. and Gentlemen of the jury, you will judge of this case merely upon the evidence adduced to you, and not from any statement of the counsel on one side or on the other; I am sure you must have in your recollection the mild and lenient government of this country, under the administration of the marquis Cornwallis; he did think proper in mercy to reverse the sentence of several courts-martial, where persons charged with high treason See, gentlemen, the evidence that has been were found guilty; he liberated from death given on the part of the plaintiff in support many persons, and surely a man so liberated, of this action; the first witness was Mr. could easily have said, "I have been pardoned Molloy the second was Mr. Rainey-and through the clemency of the marquis Cornthe third witness was Mr. Maguire. [Here wallis," and therefore the sentence of the the learned counsel, on the part of the defen- court-martial was not carried into execution; dant, with great accuracy and perspicuity, and thus Mr. Hevey would have been cleared recapitulated the testimony which those from any stigma whatsoever. It will appear three gentlemen had given, on their direct most clearly in evidence, that the arresting of and cross-examination; and which the reader Hevey by Mr. Sirr in the Commercial coffeewill see set out in the foregoing part of this house, was not through wantonness, or mareport; it is therefore deemed unnecessary to liciousness-Mr. Hevey has been since enrepeat it.] It does appear, that in the course larged, and that also appears to be the fact. of the conversation, Mr. Sirr did ask Hevey The plaintiff has not attempted, by a single to show his protection, if he had any, which scintilla of evidence, to say, he was arrested Hevey refused to do, and the said witnesses wantonly or maliciously. You are to presaid, that Mr. Sirr did say to Hevey, "you sume, that the government of this country deserve to be hanged," and Hevey answered acted wisely and mercifully in pardoning you lie, you are a liar." This is not the many persons who had been found guilty by case of an ordinary person; here was a man courts-martial, of high treason--you have no who had been accused of high treason, to the evidence, on which you can infer, that Mr. defendant's own knowledge, had been tried Sirr arrested Mr. Hevey out of malice; or for for that offence, and had been convicted; the gratification of any purpose of his own. and he afterwards appeared at large, and de- The learned judge who now tries the cause fendant seeing him at large, asked him to will correct me, in point of law, in any matter show his certificate of a pardon; or, said he, I in which I may mistake;-but I hold the law must detain you till I investigate, whether to be, that a magistrate does not do his duty you ever received a pardon or not, and on as such, who, if told a man charged with high Hevey still refusing to give the defendant any treason, and convicted, is seen at large, does satisfactory answer, he did hold him in cus- not inquire why he appears at large. Gentletody, which as one of his majesty's subjects men of the jury, it is a matter of notoriety, that Mr. Sirr was an active magistrate during the time of the late rebellion; and by his exertions in apprehending rebels, he did essentially contribute to save this commercial country from scenes of blood. You cannot presume that Mr. Sirr knew the fact, that lord Cornwallis had pardoned Hevey, and yet knowing that fact, he apprehended Hevey out of malice. You are not entitled to make such a presumption; for the law will not permit you so to do-this man did stand his trial on a charge of high treason; and the courtmartial found him guilty; that was a fact known to defendant-he was afterwards pardoned, that was a fact that was then not known to defendant-and therefore he asked Hevey, had he a protection, and if he had, to produce it. At the time of the rebellion, the trial by courts-martial, of persons accused of treason, was expedient, and it was judged so by the legislature; to suppress the rebellion, there were at that time particular duties en trusted to particular persons, and in the exercise of a particular duty, several matters came under the discretion of the person in discharge of that duty; and the law will presume a magistrate acts uprightly, unless the contrary is proved. A person employed in the exercise of a particular duty, may from proper, fair, and laudable motives, inquire of a man whom he knew to have been convicted by a courtmartial, why he appears at large; the man could easily have said, I have received a pardon from lord Cornwallis. Would you not give a man credit for making such an inquiry? A man may have been charged with treason in 1798, he may have been tried, the evidences may have been mistaken in the man, he may by mistake be found guilty; but when the proceedings of a court-martial are laid before the lord lieutenant, he may set aside the sentence, and liberate the man, as not being a man active in the rebellion, although charged with being so; for a person is presumed innocent, until the contrary appears. Gentlemen of the jury, let me ask you, what evidence has there been laid before you, sufficient for you on your oaths to find, that Mr. Sirr acted from malicious motives towards the prisoner?-it is for the Searcher of all hearts alone, to investigate the motives of human actions, in the present case, however, it appears to be developed by the man himself; you have evidence under his own hand, that he had been charged with the crime of high treason, and was found guilty, and received afterwards his pardon through the clemency of the late lord lieutenant. It does not appear that Mr. Sirr had any malice towards him; he met him accidentally in the coffee-room; he took him to his office in the castle-yard, and asked him his name and residence; and then said, as you were tried and convicted, show me your protection, if you have one; but Hevey, instead of producing the certificate to Mr. Sirr, or directing him where he could see it, bid him ask his betters for it. As to the plaintiff having a favourite mare taken from him by any person, no evidence of it has been given; and therefore I do not know what foundation there was to introduce any thing about her in this case. Let me ask you, on what ground is my client to be deprived of the common benefit in this case? are you to suppose there was malice in Mr. Sirr's mind against the plaintiff? By the general law of the land, you cannot impute malice unless proved; and the evidence is totally silent as to the charge of malice.-On what ground, then, are you to find a verdict for the enormous damages of 5,000l.?-By the general rule of evidence, every man shall be deemed innocent until the contrary appears; my client, therefore, shall have the benefit of the law, which every other man has. As to what has been given in evidence, respecting Mr. Sandy's conduct to Hevey, my client is not called upon to answer for the conduct of Mr. Sandys: Mr. Sirr is only accountable for his own conduct; I am not vindicating Mr. Sandys; the plaintiff is at liberty to bring an action against Mr. Sandys, if he thinks proper. It appears that Mr. Sandys is the keeper of the prison called the Provost, a prison appropriated for the safe custody of persons charged with the crime of high treason. In the period of 1798, Mr. Hevey was charged with the crime of high treason, and he was brought to the Royal Exchange in custody, and from thence taken to the Provosthe was brought to trial, convicted, and afterterwards pardoned. I see no ground on which the learned gentleman who preceded me, bestowed the phillipic on the government of this country-we have the same liberty remaining among us we ever had. In the year 1798, this country was infested with a horde of vipers, who were guilty of rebellious practices against the liberty and welfare of their own country. The liberty of this country, and the peace of this country, is now restored-The liberty of the press is as much revered and esteemed now as in any age whatsoever; you will no doubt see in the newspaper (for the press is not silent) a paragraph, stating, that this day a case was tried, of Hevey versus Sirr, in which case Mr. Curran appeared of counsel for the plaintiff, and in the most eloquent speech we ever remember to have heard, made some strictures on the government of this country, in very strong terms, and represented that the defendant ought to be assessed in very heavy damages; we have only to lament that the jury was not of that learned counsel's opinion, for they found a verdict against his client. In truth, gentlemen of the jury, you are to decide this case upon the evidence: Mr. Maguire has told you what passed in the prison of the Provost; but it was the other two witnesses, who gave evidence of the arrest of Mr. Hevey in the Commercial Buildings. As to Mr. Hevey being put into the room where |