885]

for High Treason.

means illustrative of innocence or guilt, and whether from a frail recollection by one witness, and a clear recollection in the other; or whether there was intentional falsehood in either. There are various gradations in accuracy of account and consistency of detail, from whence you are to draw the inference, as to the intention of the witnesses, and the degree of credit their evidence should have.

It is for you to judge upon all the circum-
stances of the case; but the most important
fact for you to determine is, whether the pri-
soner was armed with a pike, in furtherance of
the treason charged upon him; the fact of
seeing him with a pike, rests upon the testi-
mony of Gallagher; who, upon pursuing the
prisoner, cried out, "here is a rebel with a
pike," and whether that was said in the hear-
ing of the prisoner, you will also determine.
You have a serious task, when you are obliged
to draw inferences from facts; and there are
some facts upon which there is no controversy,
as they rest on the concurrent, and consistent
testimony of the witnesses to them; who
swear that the advanced man of lieutenant
Coultman's party, cried out, "there's a rebel
with a pike!" and immediately commenced
a pursuit, in which all the party join; the
pursuit continues to the deal yard, where the
prisoner is found at the instant, concealed
under an heap of timber; a pike is found
close to the place of his concealment, and on
searching the deal-yard closely, no other
person is found there. You have heard from
the witnesses, how the deal-yard was con-
nected with the depôt, which was near to it;
you have heard the statement which the pri-
soner made to account for his situation; I
have mentioned the contradictions which have
been relied upon, leaving it to you to de-
termine finally upon them. I will go to that
which has been set up as a defence.

[Here his lordship stated the evidence
given by Rourke, and the other witness
on behalf of the prisoner.]

This evidence is of importance, not only in point of character, with respect to honesty, and continued laborious industry, but also to the merits of the present case; because it is not probable, that the prisoner had bestowed much of his time, in forming this general plan of conspiracy, which has been deeply laid, if he was regularly engaged in laudable industry; but it is my duty also to tell you, that although a man may not have been engaged in forming schemes which require much time, yet if he joins them afterwards, he may be equally guilty with the others in contemplation of law. I could have wished, that upon such a night, so eventful, attaching upon the scene where the prisoner lived, having been cautioned by his employer to go home, and having been apprized of the mischief which had begun to rage, before he left Mary Carr's house, he had so far taken care of himself, as to be able to account in any

natural manner, for what he was doing be-
tween nine and twelve o'clock. I wish for
your satisfaction, that it was capable of proof;
perhaps it was owing to the agitation of the
time, that he lurked in some hiding place,
where he remained, though he cannot prove
it. I could wish he had brought the people
of his lodging, for the time is of considerable
extent; he was out at a late hour, and no
account appears in evidence, but of the time
he passed at the tailor's lodging, and the
situation in which he was afterwards found.
But it is for you to determine, whether the
overt act charged against him, has been sa-
tisfactorily proved; you must be satisfied,
that he bore a pike actually for the purpose of
rebellion. It is impossible for a judge to
presume to encroach upon the province of a
jury, but it is his duty to say, that if you have
a rational doubt, which prevents you from
drawing a necessary and just conclusion,
from all the circumstances of the guilt of the
party, you undoubtedly should acquit him:
on the contrary, if you see an accumulation of
facts, carrying conviction to your minds, that
this man was active in the rebellion, you will
convict him. I shall now conclude, with
again bringing to your recollection, that a
doubt, rationally existing upon the case,
should draw from you a verdict of acquittal,
and I shall beg of you to retire with minds,
cool and free from preconceived impressions,
which belong to the history of the times, but
which do not arise from the evidence of the

case.

Lieutenant Coultman was called again, at the request of one of the jury, who examined him.

Did you search the timber yard, so as to see whether there was any other man there?

I went over the yard with my sword, and some of the men with me, as accurately as possible, and did not find any other man

there.

The jury retired, and after deliberating for twenty-five minutes, returned a verdict of guilty; at the same time recommending him to mercy, on account of the character given of him by his employer.

He was then remanded.

On Monday the 5th of September, the prisoner was put to the bar, and the attorney general prayed judgment against him.

Lord Norbury then proceeded to pronounce the sentence of the law-he expressed the pain he felt, at the performance of this part of his duty. He called to the prisoner's recollection the favourable trial he had received-It was impossible that more attention could be paid to any case, or more caution used, to give the prisoner the advantage of every apparent contradiction in the evidence. The jury were men of excellent character, and clear judgment, who investigated the case with much patience, and discernment. Every man who heard the trial, must be fully convinced of the justice of the verdict-his

659. Trial of WALTER CLARE for High Treason; before the Court holden under a Special Commission at Dublin on Monday September the 5th: 43 GEORGE III. A. D. 1803.*

And afterwards to wit on the said twenty-third year of the reign of our said lord the third day of July in the said forty-third king with force and arms at Thomas-street year of the reign of our said lord the king aforesaid in the city and county of the city of with force and arms at Thomas-street afore- Dublin aforesaid with a great multitude of said in the city and county of the city of Dub- persons whose names are to the said jurors lin aforesaid the said Walter Clare as such false unknown to a great number to wit to the traitor as aforesaid in further prosecution of his number of one hundred persons and upwards treason and treasonable purposes as aforesaid armed and arrayed in a warlike manner to wit did arm himself with and did bear and carry with swords gunsand pikes being then and there a weapon called a pike with intent to associate unlawfully maliciously and traitorously assemhimself to and with divers other false trait- bled and gathered together against our said ors armed with guns swords and pikes whose lord the now king most wickedly maliciously names are to the said jurors unknown for the and traitorously did ordain prepare levy and purpose of raising levying and making insur- make public war against our said lord the rection rebellion and war against our said lord king his supreme and undoubted lord contrary the king and of committing and perpetrating to the duty of the allegiance of him the said a cruel slaughter of and amongst the faithful Walter Clare against the force of our said subjects of our said lord the king within this lord the king his crown and dignity and conkingdom trary to the form of the statute in such case made and provided.

And that afterwards to wit on the said twenty-third of July in the said fortythird year of the reign of our said lord the king with force and arms at Thomasstreet aforesaid in the city and county of Dublin aforesaid the said Walter Clare as such false traitor as aforesaid with a great multitude of persons whose names are to the jurors unknown to wit to the number of one hundred persons and upwards armed and arrayed in a warlike manner to wit with guns swords and pikes being then and there unlawfully and traitorously assembled and gathered against our said lord the king did levy ordain and make public war against our said lord the king against the duty of the allegiance of him the said Walter Clare 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

And the jurors of our said lord the king Mr. Attorney General.---My Lord, and upon their oath do further present that Gentlemen of the Jury;-- We shall offer to the said Walter Clare being a subject of our you, on the part of the crown, sufficient evisaid lord the now king and not having the fear dence to establish, without leaving any of God in his heart nor weighing the duty of doubt that a rebellious insurrection existed in his allegiance but being moved and seduced by this city upon the 23rd of July last, and we the instigation of the devil and entirely with- shall then apply ourselves to the particular drawing the love and true and due obedience part which the prisoner appears to have taken which every subject of our said lord the king in it. The evidence against him is, that an should and of right ought to bear towards our honest and loyal man, looking out of his winsaid sovereign lord the king and wickedly de- dow upon that calamitous night, saw a great vising and intending to disturb the peace and body of persons armed with pikes, and the public tranquillity of this kingdom on the prisoner and another person, also armed with twenty-third day of July in the forty-third pikes, in conversation with each other. One year of the reign of our said lord the king expression which will be proved to have been with force and arms at Thomas street afore-made use of was, “This is our night, we will said in the city and county of the city of Dublin aforesaid unlawfully maliciously and traitorously did compass imagine aud 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 him the said Walter Clare afterwards to wit on the said twenty-third day of July in the said forty

work pleasantly." From which of them this proceeded I do not exactly know: in point of law it is equally criminal in both; because if they were all collected upon a common confederacy and design, the expressions of one are evidence against all concerned; and you are to collect the guilt of each from all the circumstances which occurred. The overt act charged against the prisoner is, that he took up a pike for the purpose of aiding in the conspiracy. In point of law it is not ne

speaking the words you mentioned ?-Some
time; it was not immediately after they spoke
the words; but it was after the last volley
was fired.

Was the door opened?-Certainly it was.
And they went in?-They did.

Did you see the prisoner again that night?
-No more.

Court.-How long have yon known that other person?-The same time I knew the prisoner.

Mr. Townsend.-Had they lived long in that house?---They might, but not to my knowledge.

But they lived there you say, two months? -They did.

Is he a tradesman?--- He worked at a distillery; as I understood, they both worked there.

During the half hour you saw them walking up and down, had they their pikes?— They had.

In what direction did the people run when they heard the fire; was it towards the fire? -No, it was from the fire: they run in different directions; some down an alley; some down Rainsford-street.

Had they pikes ?---They had.

John Forrest cross-examined by Mr. Mac Nally.
After the volley was fired, the mob, you
say, ran some one way and some another?---
Yes.

They did not all run from the direction of the fire? There were various directions; they did not all go one way.

Did many of them turn to get into Thomas street? It was straight enough to Thomasstreet, but they went from Thomas-street.

How long have you lived in Thomas-court? -A year and a half.

The prisoner is a labourer and works at a distillery?--I do not know; I heard so.

You have seen him often?--I have. Was he a regular working man at his business; was he always a sober man?--I cannot say; I never sat with him; many men in drink walk without staggering; I never smelt his breath.

How soon did you give information ?---As soon as I could.

Did you give information for a fortnight?---
I did, before the prisoner was taken.
How soon?---The second day.
To whom?---To my shopmates.
Were they yeomen ?-They were.
Why did they not take up the prisoner?---
They were in dread and fear.

Do you mean to say, that the yeomen who turned out to defend the city were afraid?--They were afraid of me.

Why of you?That I would be in danger. Why did you not go to a magistrate ?---I always depended upon the yeomen taking him; they put it off one night after another, till I went to captain Bloxham.

Did you go to him before or after great re

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wards were offered ?---It was before; I did not do it for reward.

How soon did you go to captain Bloxham ? ---In ten days.

Was that before the rewards were offered? ---I believe it was.

Upon your oath, do you not know that rewards were offered three days after the 23rd of July ?---Upon my oath I do not know it.

On your oath, did you never see a proclamation offering rewards, posted in Thomascourt?---I never saw it in Thomas-court.

Where did you see it then ?---I saw it posted in Barrack-street, on the opposite side from where I was walking.

And could you read it from the opposite side?---No, but they told me it was a proclamation to take up all persons who carried arms that night.

Can you read and write?---I can.

Did you see the proclamation offering a reward of one thousand pounds?---I did not.

Did you never hear that there was a proclamation offering a reward of a thousand pounds for the murderers of lord Kilwarden? -I did not.

Did you hear there was a proclamation offering a reward of 501. for every one of the first hundred persons convicted for being concerned in the rebellion ?---I believe, I did.

Did you see the proclamation?---I did not.
But you heard of it?—I did.

The main body of the people you say ran away from the street ?—They did.

The two persons of whom you say the prisoner was one, did not go out of the street with them, so that they took the first oppor-To house themtunity they could get

selves.

I was not going to ask you that: do you know, I was going to ask you that?

[The witness smiled.]

You seem to make merry of it?--You would not have me cry.

Sir, I would have you conduct yourself with decorum. Did the two men go into their own house? They did, after the last volley.

Could they tell whether these vollies were from the mob or the army, could you tell which it was?-I could certainly tell that it was not from the mob; they could not make such a fire.

How came you to know how these men were armed?-I saw them in my window.

Did you hear that these who were in Thomas-street, had musquets and blunderbusses and pistols?-I did not.

Did you hear of their firing at all?—I did not.

Did you not hear of an officer being shot with a blunderbuss?—I did not, I heard he was piked.

Did you not hear he was shot?—I heard various stories; but a man is not to believe every thing he hears.

Did you never hear the officer was killed by a shot from a blunderbuss?--I never did.