Misc: Case of Francis Doyle of Carrick-on-Suir - 1798
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CASE - FRANCIS DOYLE OF CARRICK-ON-SUIR
A report of an interesting case, wherein Mr. Francis Doyle
of Carrick-on-Suir, merchant and cloth-manufacturer, was
plaintiff, and Sir Thomas Judkin Fitzgerald, high-sheriff of
the county of Tipperary, in the year 1798, was defendant
tried and determined at Clonmel spring assizes, Monday,
April 9, 1801, before Lord Avonmore. REPORT, &c. COUNSEL FOR
PLAINTIFF FOR DEFENDANT Mr. Fletcher, Mr. Burrowes, Mr.
Driscol, Mr. Bush, Hon. Mr. Yelverton. Mr. Egan, Mr.
O'Dwyer Mr. Lloyd, Mr. Pennefather, Mr. Going
THIS important and interesting cause, a cause which engaged
the attention, and excited the expectation of the public
mind for these three years past, was tried at the last
Spring assizes for the county of Tipperary, held in Clonmel,
on Monday the 9th of April, 1801, before Lord Avenmore, who
presided as Judge, and an uncommonly crowded Court. The
Honourable Mr. YELVERTON, as counsel for the plaintiff,
opened the case : after which, Mr. FLETCHER, on behalf of
the plaintiff also arose, and in an animated, energetic and
argumentative speech, addressed the Jury nearly to the
following purport: Gentlemen of the Jury ?The present case
is one of the most extraordinary and aggravating, ever
before introduced into a court of justice. It is an action
of trespass, vi et armis, instituted by
4
my client, to recover damages for an assault, battery, and
false imprisonment, committed by the defendant, at
Carrick-on-Suir, in this county, against the plaintiff, on
Friday, June the 22d, 1798. The damages, my client has laid
at five thousand pounds. The defendant has pleased the
general issue, and also a special justification under the
acts of parliament; notwithstanding which he has, for these
three years past, under various pretences, evaded a trial.
Mr. Francis Doyle, my client, and plaintiff in the case, is
a respectable inhabitant of the town of Carrick-on-Suir, and
there follows a respectable trade, amassing a rapid fortune
by the well directed exertions of his honest industry. He is
a man not less distinguished in society for his punctuality,
his steady principles and irreproachable character, than his
unimpeached loyalty to his king, obedience to the laws, and
attachment to the constitution of his country. The
defendant, Colonel Fitzgerald, is a man of great hereditary
property, and has been, from his infantine age, employed in
the cultivation of his mind, and in the acquisition of
science and literature; thus imbibing from the celebrated
sages of Greece and Rome, those principles of knowledge,
which so strongly inculcate the love of virtue, the
abhorrence of despotism, and the dignity of human nature.
After thus receiving all the advantages of a highly polished
education, we find him engaged in the honourable profession
of the law, the study of which, above all others, eminently
qualifies men for the magisterial offices of the state, by
rendering them intimately a acquainted with the various
obligations of social order. I knew Col. Fitzgerald at
College, and
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when studying the law. I then thought him a man of a good
disposition; but what was my subsequent astonishment and
surprise, on hearing that by some unaccountable fatality,
his soul became totally transformed, his blood corrupted,
and the mild of human kindness curdled into gall. In the
year 1798, Col. Fitzgerald was high sheriff of this county,
in which capacity it was peculiarly incumbent on him rather
to prevent than promote every atrocious outrage of the
nature here complained of. To you, Gentlemen of the Jury,
who are all men of sensibility, honour and information, I
appeal, whether he can plead ignorance in extenuation of
excuse for the illegality of his proceedings, and inhumanity
of his conduct, toward my unhappy client. On you, then,
Gentlemen of the Jury, I call for damages.?I call upon you
for damages.?Yes, Gentlemen, I again?I again call upon you
for damages, as far as money can be deemed an equivalent
atonement for my client's unparalleled sufferings. On the
22d of June, 1798, the defendant, Col. Fitzgerald, entered
Carrick-on-Suir, at that time in the most perfect state of
peace and tranquility. He came, attended by a troop of
foreigners and a corps of yeomanry. He was accompanied by a
man of the name of Stephen Devany; a man, long before,
notorious for his abandoned and infamous character, who was
taken from the jail of Clonmel, and, as a ransom for his
forfeited life, became one of these abominable pests of
society, a common informer. Among his attendants, were some
drummers too, the dreadful instruments of his torture. There
he found the miserable plaintiff, who was a member
6
of Captain Jephson's yeomanry corps, and in that era of
universal alarm, had always been uniformly attentive to the
duties of a soldier. Him the defendant found in the act of
accoutering himself preparatory to the performance of such
services as his officer may deem necessary for maintaining
his sovereign's authority, and a due subordination to the
laws. He was instantaneously attacked and assaulted by the
sheriff, and charged on the unsupported information of the
perjured Devany with being a rebel, and supplying the
disaffected with pikes. Doyle foolishly thinking innocence a
sufficient protection against the fury of this barbarian,
denied the charge. Fitzgerald declared he would flog. Doyle
threw himself on his knees, implored, entreated, and
besought him by every argument that conscious innocence
could supply, to grant him that which has been hitherto
deemed the unalienable right of every subject under our
constitution?a trial. The respectable gentlemen of the
neighbouring country, whose duty necessitated them to
accompany the chief magistrate of the county, in order to
assist him with their abilities and advice, convinced of
Doyle's innocence from their personal acquaintance with him,
and that intimate knowledge of his private character, which
their local situation afforded them, joined him in his
solicitations for a trial. Ineffectual was the interposition
of the neighbouring magistrates, who, from similar motives,
interceded for Doyle.--- To no purpose they knew Doyle to be
a loyal man---to no purpose did they urge Doyle's uniform
propriety of conduct in life, and consequently the
improbability of committing the crime laid to his
charge---to no purpose did they represent the small degree
of credit to be attached to Devanny's evidence---to no
purpose did they urge their personal knowledge of that
infamous informer's perjury. Deaf to all arguments, and
equally inexorable to all entreaties, Fitzgerald ordered the
fatal ladder to be erected, and after repeatedly striking
the miserable victim, still prostrate on his knees, in the
degrading posture of a petitioning suppliant, he dragged him
to the ladder, had his hands tied, and got him flogged.
After his mangled flesh was lacerated and torn off from
between his shoulders, the unfeeling Fitzgerald ordered his
breeches-strings to be untied, and as if stimulated by a
brutal and sanguinary passion for flagellation, he caused
the stripes to be inflicted on the writhing victims bare
posteriors, in a manner so dreadfully sever, so shocking to
the feelings of humanity, as must affect the breast of every
person, who deserves the appellation of man. Thus, with
unrelenting severity, did he receive on hundred lashes! But
why dwell upon so dreadfully disgusting a subject, or harrow
up your sensibility by a further description. You shall take
it from the mouths of the witnesses. I shall not pollute
mine by a further recital. Scarce were fifty stripes
inflicted, when the miserable sufferer fainted under the
torture. His fleeting senses were recalled; but to what
purpose? To inflict fifty more! Good God, Gentlemen of the
Jury, can you believe it---on his being let down from the
ladder, the humane colonel, after thus mangling his flesh,
still adding insult and mockery to his sufferings,
tauntingly told him, he should undergo the same operation,
and receive a similar number of lashes, next day! What must
the principles, nay the Roman fortitude of that man be? What
the feelings of his
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relatives and family? What the sympathy of his fellow-yeomen
who were arrayed on the occasion , and drawn up to be tame
spectators of this ignominious fight??what??were they
rebels??they must be men of more than human patience,
submissively to bear with such a dreadful spectacle, as that
of having their neighbour, friend and fellow-soldier, thus
contumeliously punished before them, and that with arms in
their hands. On what evidence, Gentlemen of the Jury, was
this done? On the unsupported evidence of a perjured
informer; one of those wretched tools of tyranny; one of
those execrable instruments of despotism, resorted to in the
unhappy reign of Tiberius. Well did the cobbler know, that
he may here vent his rage and malice with impunity. But what
actuated the defendant, Colonel Fitzgerald, to these acts of
wanton and unprovoked cruelty??Loyalty it could not be.
Could a person whom we have seen disregarding all law, and
mocking all religion, be esteemed loyal? Could the person
whom we have seen provoking the well-affected to acts of
insurrection by his arbitrary and illegal actions, what to
ascribe his conduct to. You, Gentlemen of the Jury, must
cogently feel what will induce you to grant him a verdict.
The defendant is a lawyer, and consequently conversant in
all the intricate subtleties of the law, notwithstanding
which, he rests not his defence on the fair justice of his
cause, but puts his total reliance on the two indemnity
acts. The more particular interpretation of those acts you,
Gentlemen of the Jury, will hear from the noble
9
Lord, who presides on the Bench. I shall only observe,
Gentlemen, that the fist states, that disturbances existed
in the country; that many persons have illegally acted in
order to suppress them. To all who have so acted, it grants
an indemnity with this condition, however, that they have so
acted on reasonable grounds. Under this act the defendant
cannot screen himself. The reasonable grounds fail him.
Where was the urgency of inflicting instantaneous
punishment, especially in the town of Carrick, a town which,
as shall be satisfactorily proved in the evidence to be
immediately adduced, was then in a state of the most
profound tranquility and peace. Why was not Doyle detained,
if the defendant thought there were the least grounds of
suspicion against him? Or why did he not hold some court of
inquiry, composed of the officers or magistrates then
present, on Doyle, before the infliction of torture. The
second act limits the time of bringing actions of this kind;
this part does not bear against my client's café, for the
present action has been brought within the time prescribed.
This act next enacts, that to render a verdict for the
plaintiff of any avail, in café the defendant set up state-
necessity for his defence, the Jury must find that the
defendant acted maliciously. Now, Gentlemen of the Jury, his
Lordship will tell your from the Bench, that the malice here
meant, is not personal malice towards the individual, but
what in law is called legal malice. It is that species of
malice, which the Sheriff's conduct in Carrick on that day
sufficiently evinced, whereby it is evident, that the
operating principle by which he was actuated towards the
inhabitants of that town, was an evil disposition towards
mankind.
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It is not, it cannot be an individual malice to any
particular man, but it is the same malice with that which,
in law, constitutes murder. To justify you, Gentlemen of the
Jury, in refusing to certify, you must be thoroughly
convinced that it was necessity, imperious in its nature,
and admitting of no delay, which compelled him to the
illegal commission of those atrocious enormities against the
peaceable inhabitants of that town. But supposing for a
moment his motives were pure. Consider, Gentlemen, the means
employed by the defendant. Good God! What could justify a
High Sheriff, one of the first officers of the land, in the
commission of the most wanton acts of indiscriminate and
unprovoked aggression and outrage, ever perpetrated; in
branding with the promiscuous appellations of traitors and
rebels; in violently assaulting all with his sword; in
forcibly pulling off their hats from their heads; in
compelling them to kneel down before him, at the same time,
in a mandatory tone, and with a terrific countenance?"how
dare "the rebels stand with their hats on in the presence
"of majesty." But what, above all, could instigate him to
the infliction of torture, a species of punishment, now
thank God, banished from every civilized state in Europe,
and scarcely known among the rude and uncultivated subjects
of northern despots. Torture has been always prohibited,
even during the darkest ages of superstition and ignorance,
by our constitution; and on taking a retrospective view of
this present period, what will posterity say, when they find
that torture has been resorted to, at the close of the
eighteenth century, recognized under the British government,
and inflicted in the reign of George
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the Third, a beneficent prince, who has extended his empire
over the hearts of his people, and secured their obedience,
not by terrific measures, but by the more conciliatory means
of affection and regard. Need I call your attention to the
opinion, delivered in the Imperial Parliament by the
Attorney General of England, a kingdom now constituting a
part of the same empire with our own, on a motion for
inserting a clause in the Martial Law Act, then passing
there, in order to prohibit the use of torture. He opposed
the clause, "be" cause," says he, "it cannot but be known to
"every one, that neither martial law, nor any "other law,
either human or divine, can justify "its application, or
authorize its infliction." It was well-observed by that
great philosopher and martyr, who, though living under the
frowns of tyranny and despotism, soared nobly superior to
the prejudices of his countrymen and the superstitions of an
ignorant age, that "truth can "never be ascertained by the
torture;" for tho' the guilty culprit may be induced to
acknowledge his offense, in order to obtain a temporary
respite from that punishment due to the enormity of his
crimes, the innocent man, under the agonizing pressure of
unmerited torture, will readily own the commission of
imaginary guilt, for hastening his dissolution, and ridding
him of his material part, in order to expedite his arrival
at that desirable point, whence he may wing his way to the
regions of eternal bliss. I shall conclude, Gentlemen, by
observing, that the divine spirit of our happy constitution
remunerated a poor tenant in a neighbouring county for the
oppressive conduct of his landlord
12
towards him, with damages amounting to £ 1500, and that with
the approbation of the noble Lord, who now presides here as
Judge. Gracious God! Gentlemen, if a bare imprisonment could
warrant such damages, what can be esteemed a sufficient
recompense for the undeserved sufferings of my unhappy
client? Who can appreciate, with equivalent damages, the
writhing agonies of his tortured body, and the consequent
injury done to his health? Add to these irreparable wrongs,
the anguish of his mind for the ignominy of his treatment,
and the impeachment of his hitherto irreproachable
character. With you alone, Gentlemen of the Jury, it remains
to wipe away this foul imputation, this infamous stain from
off the land, by not withholding from a miserable victim, on
whose lacerated limbs the defendant's eyes were feasted with
more than savage complacency and satisfaction, those
pecuniary damages, to which he is confessedly entitled. On
this extraordinary occasion, Gentlemen, your conduct and
determination, as Jurors will be minutely canvassed. Look
around this crowded court; here you see the eyes of the
county fixed on you, while the province, the kingdom at
large, nay the whole empire are in anxious expectation of
the decision of this important trial. You see then the
necessity of showing your abhorrence of such acts of wanton
cruelty against outraged humanity. Let the damages laid, be
to the full extent, I conjure you, as your verdict this day
will highly tend to the establishment or extinction of the
liberties of your fellow-subjects, and the constitutional
rights of your country.
13
Stephen Russell, Esq. sworn and examined by Plaintiff's
Counsel.
Do you know F. Doyle, the plaintiff, and Col. Fitzgerald,
the defendant?
A, Yes, I do.
Q, Did you see them on the 22nd June, 1798, in
Carrick-on-Suir?
A. I did.
Q. In what capacity did you go to Carrick, on that day?
A. I went there as a yeoman, under the command of Mr.
Parsons, a Lieut. in Captain Hutchinson's yeomanry corps.
Q. Who commanded the detachment sent to Carrick, that day?
A. Col. Fitzgerald seemed to have the command of it.
Q. Did you see a man of the name of Devany, with the
detachment going to Carrick that morning?
A. Yes, I did.
Q. What was this man's general character?
A. A most infamous one.
Q. Did Col. Fitzgerald give any particular orders respecting
Doyle on that day?
A. He gave directions to have him tied to a ladder erected
there.
Q. Did the Colonel use any violence in bringing Doyle to the
ladder?
A. Col. Fitzgerald endeavoured to force Doyle forward.
Q. Why did Doyle struggle thus?
A. In order, perhaps, to gain time for collecting fortitude.
14
Q. When Doyle came to the ladder, what did he then do?
A. He threw himself on his knees, begging of the Colonel not
to flog him.
Q. What reply did the Colonel make to Doyle's entreaties?
A. He replied, that Doyle was a chicken-hearted fellow, and
would be soon compelled to declare what he knew or had to
say.
Q. What was next done with Doyle?
A. He was tied up to the ladder and received fifty lashes on
his bare back.
Q. What was Mr. Fitzgerald doing, during the infliction of
the torture?
A. Walking up and down, sometimes three or four yards from
the ladder, but mostly at the ladder
Q. Did the Colonel say any thing on hearing Doyle moan?
A. He said, he only wanted Doyle to declare the truth.
Q. Did Doyle faint while under the torture or did his back
bleed?
A. Doyle's back was bleeding, he fainted, and some person,
whose name I recollect not, called for some water for him.
Q. Was Doyle flogged again, after he recovered from
fainting?
A. He was.
Q. What was Colonel Fitzgerald doing in the meantime?
A. He conversed with some Gentleman who seemed much
affected.
Q. Can you call to mind any of the conversation that he
passed?
A. Yes; a Mr. Wall in particular, told the
15
Colonel the informer was a man of the most infamous
character.
Q. What was next done to Doyle?
A. His breeches-strings were now cut, and Mr. Fitzgerald
said, double or quit.
Q. Where was the Colonel during this flogging, and what did
he say to Doyle?
A. Quite close to the ladder, repeatedly desiring Doyle to
tell the truth.
Q. Where were the second fifty lashes inflicted?
A. On the bare breech.
Q. Were these parts cut?
A. Severely cut.
Q. Did the plaintiff Doyle address Mr. Fitzgerald during
this second flogging?
A. Yes, several times, but I was so affected I cannot
recollect the particulars.
Q. Did Fitzgerald say any thing to Doyle, when taken from
the ladder?
A. Yes, he told Doyle he should receive the same number
again the next day.
Q. Did you see or hear of any disturbance in Carrick on that
day?
A. I saw not the least symptom of disturbance while I was
there.
Cross-examined by Defendant's Counsel.
Q. About what time did you reach Carrick that morning?
A. About eight of the clock in the morning.
Q. Did you hear of any informations received by Mr.
Fitzgerald or Parsons, relative to the alarming state of
Carrick then?
A. I did not hear of any such.
16
[On being asked by defendant's counsel as to his belief of
any such informations being given, Mr. O'Driscol, of counsel
for the plaintiff, objected to his giving in evidence, his
belief thereon, as in the case of Wright versus Fitzgerald,
which was an action of a similar nature with the present,
Lord Yelverton, assisted by Mr. Justice Chamberlain, would
not permit the defendant to give in evidence a written
information on which he acted.]
Q. Did you hear of believe that any of Captain Jephson's
corps acknowledged themselves United Irishmen after the
flogging?
A. I heard and believe they did, in a few days after.
Q. Was not your brother's house, about twenty-six or
twenty-seven miles from Carrick, robbed of arms?
A. It was, but the arms were returned in three or four
months after.
Q. Do you believe Colonel Fitzgerald and Doyle were
acquainted before this time?
A. I believe they were perfect strangers to each other.
Q. Do you believe the defendant acted thus from pure
motives?
A. Yes from the purest and most loyal motives.
Rev. James Smyth sworn and examined by Plaintiff's Counsel.
Q. How did you and Colonel Fitzgerald become acquainted?
A. I got myself introduced to him, in order to intercede
with him for the priest of my parish.
17
Q. Had you any conversation with him respecting Devany?
A. Yes, I told him Devany was a man of a very infamous
character.
Q. What were your reasons for believing and thinking so?
A. Because I was present at Waterford Spring Assizes, 1798,
when Lord Yelverton turned Devany off the table, and ordered
him to be confined for perjury.
Q. Did any other Gentleman apprize Colonel Fitzgerald of
Devany's bad character?
A. Yes; Charles William Wall, of Coolnamuck, Esq; also
apprized him of it.
[It being object, that this was not admissible evidence,
Lord Avonmore declared it as his opinion, that it was, as he
took it for granted that Devany's informations would be
produced, the examination proceeded.]
Q. Were you present when Doyle was flogged?
A. I was at the beginning, but was so shocked that I
afterwards went away.
Q. Did Doyle beg of the Colonel to grant him a trial?
A. Though on his knees, imploring for a trial from the
Colonel, adding, that if found guilty he would willingly
forfeit his head, nay his life; yet Doyle got no trial of
any sort whatsoever, but was tied up in a few minutes after.
Q. Was Captain Jephson then expected?
A. He was every moment expected, as several messengers went
for him.
Q. Who flogged Francis Doyle?
A. Two drummers, who attended on the sheriff, Colonel
Fitzgerald.
18
Q. How were the lashes laid on?
A. They were severely and dreadfully inflicted.
Q. Do you know Doyle this long time?
A. I know him for several years past.
Q. What is Doyle's general character?
A. He has always borne the character of an honest,
industrious, and loyal man. Cross-examined by Defendant's
Counsel.
Q. Don't you believe that the county Tipperary was in an
alarming state at the time?
A. In a dreadful state, indeed.
Q. Do you believe that any regular system was then organized
for assisting the Ross rebels in their co-operation with
those of Wexford?
A. I heard of such, but I did not believe their was any
foundation for it.
Q. Did you never hear that General Fox gave such
information?
A. I never did.
Q. Did you hear that several of Captain Jephson's yeomen
corps were United Irishmen?
A. I believe that in his corps there were some United
Irishmen, according to the original acceptation of that
Society; but I do not believe they were rebels: but which I
mean United Irishmen, deeply implicated in the rebellion.
Q. What is your belief as to the loyalty of Doyle's family?
A. There is not, or cannot be a more respectable or loyal
family.
Q. Were any of Doyle's brothers implicated in the rebellion?
A. None of his brothers were in the least concerned in the
rebellion.
19
Q. Did not magistrates from your town apply for military aid
to government?
A. I heard they did.
Q. Do you not believe that Quin acknowledged himself a
rebel?
A. I believe he did.
Q. Was not Quin a yeoman in Captain Jephson's corps?
A. He was.
Q. Pray, Sir, what is your motive for being so interested in
Doyle's cause, as to come forward with your testimony thus
in his favour?
A. Had I not believed Doyle a loyal and injured man, I
should not thus interest myself in his behalf, or support
him with my testimony.
Q. What are your reasons for supposing Doyle a loyal man?
A. My reasons for believing Doyle a loyal man, are founded
on the company he kept, as he was always a young man of a
serious cast, always associating with the grave and
respectable inhabitants of the town, and never consorting
with the thoughtless, giddy or profligate of his own age.
Joseph Anthony Esq., and examined by Plaintiff's Counsel.
Q. Have you seen Doyle on the 22nd June, 1798, in Carrick?
A. I saw him on his knees, begging for a trial from Colonel
Fitzgerald, who was unmoved by his entreaties.
Q. Did Colonel Fitzgerald take any notice of what Doyle then
said?
A. He made no reply whatsoever to Doyle.
20.
Q. Did you speak to Colonel Fitzgerald in behalf of Doyle
then?
A. I requested of Colonel Fitzgerald, in the most pressing
manner, to postpone the flogging for a quarter of an hour,
or ten minutes.
Q. What reply did Colonel Fitzgerald make to your request?
A. He asked, why I requested that delay ; I answered,
because Captain Jephson was instantly expected to town , as
a messenger just returned, who said he left the Captain on
the road very near the town.
Q. What did the Colonel say then ?
A. He said Captain Jephson had no right to interfere in his
business.
Q. In what posture was Doyle during this conversation ?
A. His coat was off and his shirt was open.
Q. Were you on duty on Carrick on that day ?
A. I was as an officer, and in the uniform of my corps.
Q. Were you long before in Carrick ? Do you know Doyle's
character?
A. I was for a month before in Carrick; have been often
enough there to have a perfect knowledge of the inhabitants,
and know Doyle to have always conducted himself as an
honest, industrious and loyal man.
Q. Did any other Gentleman intercede for Doyle?
A. Yes ; Charles William Wall, Esq; also applied in his
behalf, but to no purpose, as the Colonel made no reply to
him, only desired the Drummers do their duty;
Q. Did Colonel Fitzgerald shew you a list of those informed
against?
A. He did shew me a list, and gave it to me in order to read
it.
21
Cross-examined by Defendant's Counsel
Q. Do you recollect to have seen Doyle's name in the list?
A. I believe the name of Doyle was in the list ?
Q. Was there any symptom of disturbance in Carrick then?
A. I saw no appearance of symptom of disturbance in or about
Carrick at that time, except the rout occasioned by the
Sheriff's proceedings.
Q. Do you know a man of the name of Brazil in that
neighbourhood ?
A. Yes, and I believe him to be a great rebel.
Q. What is your opinion of Devany's character?
A. That he was a most infamous character.
Charles William Wall, Esq. sworn and examined by Plaintiff's
Counsel
Q. You know Colonel Fitzgerald, I presume ?
A. I do ; I am married to a relation of his.
Q. Did you see Colonel Fitzgerald on the day of Doyle's
flogging ?
A. I did ; I met Colonel Fitzgerald before Doyle's flogging.
And hearing that it on Devany's evidence he was to be
punished, I informed the Colonel that Devany was a man of
the most infamous character ; and in Devany's presence, I
told Colonel Fitzgerald, that being on the Grand jury of the
County Waterford, I saw Devany turned off to the dock from
the table for perjury, by Lord Avonmore's directions.
22
Q. What reply did the Sheriff make to this ?
A. Nothing ; but Devany answering, said to me, "you lie, and
the Lord of Tyrone knows better than you."
Q. Had you any further conversation with the Colonel
respecting Doyle ?
A. I told him Doyle was an honest, quiet and loyal man ; and
then I withdrew, on seeing Doyle prepared for punishment.
Cross-examined by Defendant's Counsel
Q. Have you not heard that many of Captain Jephson's corps
were United Irishmen ?
A. I have heard there were some United Irishmen in his
corps.
Q. Which was it before or after the flogging they gave
themselves up?
A. I heard it was after the flogging they were found out.
Q. Were you not obliged to remove out of that country ?
A. I did, in some time after.
Q. For what reason ?
A. On account of the dreadful state in which the country was
then.
Q. Did you know a man of the name of Brazil, in that
neighbourhood ?
A. I did ; he was turned out of the corps to which I
belonged.
Q. Did he not attack a Gentleman's house in your vicinity ?
A. He, with some others, attacked the house of Mr.
Mansfield, in my neighbourhood.
Q. When was this attack on Mr. Mansfield's house ? A. It was
in September, 1799.
23
Q. Did you not dread an attack on your own house ?
A. I did for some time after.
Q. Don't you believe, and did you not hear this prosecution
is supported by subscription ? A. I never heard it was.
John Power, Esq. M. D. sworn and examined by Plaintiff's
Counsel
Q. Were you not called in to attend Doyle after the flogging
?
A. I was.
Q. How soon after the flogging did you attend on him ?
A. About three or four hours afterwards.
Q. In what state did you find him ?
A. He was severely mangled and bruised.
Q. How long did you attend him then ?
A. About twenty days.
Q. How long was it 'till Doyle recovered of the wounds ?
A. In about twenty-one Days.
Q. Has this flogging affected Doyle's general health ?
A. I believe it has.
Q. What are your reasons for believing so ?
A. Because since that time he has been subject to bilious
complaints, of which I have not known him to complain
before, and which I attribute to the outrage committed
against him.
Q. Was not Doyle's wife also indisposed at that time ?
A. She was.
24
Cross-examined by Defendant's Counsel
Q. Pray, Sir, are you not by profession a Doctor in Physic?
A. I am.
Q. Will you take it upon you to swear that Doyle might not
have been affected with this bilious complaint without the
flogging?
A. I will not
Here evidence on behalf of the plaintiff closed.
Colonel Fitzgerald, the defendant, stated his own case; and
in a long, bold speech, addressed the Jury nearly as
follows:
It is with great satisfaction I present myself before you,
this day, in order to vindicate my honour and reputation;
and, happy for me, Gentlemen of the Jury, that you know what
I have atchieved [sic] and undergone, both abroad and at
home, for my king and country. To you, Gentlemen, it is well
known, that when first I was invested with the dignified
office of High Sheriff of the county of Tipperary, the whole
resembled a great volcano; a hidden subtile flame pervaded
through every part, ready to burst forth on some unexpected
event, and bury all in one indiscriminate heap of ruin and
devastation. To you, Gentlemen of the Jury, it is well
known, that your tenants, dependants, and your very
servants, were embodied and organized in one general
confederacy for massacreing [sic] you all. No private family
was safe. Your domestics were all
25
sworn rebels. In this time of universal apprehension and
alarm, I came forward; I interposed my powers (a general
laugh.) Yes, Gentlemen, I acknowledge I exceeded my powers,
but for what? To protect your properties, and save you all
from the hands of assassination and massacre. At the very
gallows, I often offered pardon to criminals sentenced by
the Judges of the land. (Here again the court was
discomposed by a general laugh). Yes, I suspended
executions, on condition that they would become approvers,
give useful information, and deliver up their pikes; yet so
infatuated were the unfortunate people, that they would not
discover; and why? Because they knew, that though themselves
suffered, their families would be supported. What did one
man, more than sixty years of age, at the place of
execution, say? Why he said, I die innocent, for I do not
die for an action reputed a criminal offence among us.
I well knew, Gentlemen Jurors, that I had no power to stay
executions or grant pardons, however I did so, as supreme
magistrate and governour of the county, and standing in the
king's place.
Thus, Gentlemen, you all know, that every method hitherto
adopted for procuring information, proved ineffectual. Free
quarters had been tried?burning houses had been tried?all to
no purpose. They were productive of no information. The
magistrates of the county, alarmed at this dreadful state of
affairs, were convened at Cashel, on the 27th March, 1798.
Here a Secret Committee was sworn in, and three thousand
pounds subscribed. By this mode, however, no information
could be procured.
I then adopted other measures more efficacious and decisive
in their operation. Were there any
26
discoveries made? Yes. Were any informations received? Yes.
Was the rebellion detected? Yes. Did rebels acknowledge?
Yes. Was their system disorganized? Yes, Gentlemen. Where?
Every where. By whom? By me. This time three years ago, I
came into this court, I stated what I had done; and for my
conduct, and the propriety of the measures I adopted,
received the thanks of the Judges of the Court, of the
county at large, and of the government of the country.
On the conviction of Roger O'Connor, I found this county was
to rise. I went to Dublin, and I informed Government of the
matter. A man of the name of Brien O'Leary, resided at
Nenagh, in this county: he was then the chief rebel of the
place, though at that time I thought him an honest man, and
as such, I must acknowledge, I gave him a pass on the
recommendation of a neighbouring Gentleman, a Mr. Kingsley,
to go to Dublin. But what use did he make of this pass? Why,
upon his arrival in Dublin, he waited on Lord Edward
Fitzgerald, and had repeated interviews with him, respecting
the organization and subsequent arrangement of his district.
On the 12th of May, 1709, I convened a meeting of the
Magistrates at Nenagh; and having information that they were
busily employed in organizing and getting ready their pikes
and arms about that district, I came to Nenagh again, and on
the 16th I got some flogged. Then I got more informations,
which confirmed all in the opinion of a general rising.
The baronies of both Lower and Upper Ormond having been thus
organized, I sent notices to the several chapels, that I
would attend to receive their submission
27
and their pikes, and grant them pardon upon informing
against and delivering up their leaders. So I myself went in
their chapels, I informed them of my being in full
possession of their rebellious practices, and earnestly
exhorted them from the very altar to come in, being in their
arms, give in the names of their seducers, their serjeants,
and such officers of their districts as they knew. Thus many
came in, confessed their crimes, and gave up their leaders
arms, both at Knocksheegownah, Nenagh, and elsewhere, in the
parishes and public places where I preached; and you all
know, Gentlemen, that I was poisoned at Nenagh; (here the
Colonel was for some time interrupted by an involuntary
burst of laughter through the whole court, which as soon as
it was somewhat composed, the Colonel resuming his oration
said ) Yes, Gentlemen, I say I was poisoned in Nenagh, but
God in his infinite mercy preserved me.
For obtaining informations, detecting rebellion, and
enforcing discovery, I acknowledge, Gentlemen, that I
adopted decisive measures and illegal means. Yes, I still
avow it, but I have got the sanctions of Government for
them. I have the protections of Parliament, which passed the
Indemnity Acts in my favour. Such acts are perfectly
agreeable to our constitution, as may be seen by a perusal
of Littleton, Coke, and other lawyers and statesmen's works.
Such acts of amnesty passed often in England. Has not an act
of amnesty passed in the 12th of Charles the Second? One
passed even in 1658. Was there not one here in the reign of
King William? And every body knows that an indemnity act
passed in the year 1715, and a similar one in 1745.
28
Need I mention Lord Carhampton? You all know he would not be
alive to-day, but for an indemnity bill passed in his
favour; and must I alone be denied that protection, who by
my spirited conduct have prevented the rebellion from
spreading.
You all know the general signal for rising throughout the
whole kingdom was, the burning of the mail-coaches. A fire
was to have been lighted on Oxmantown-hill. General Egan was
to have risen at Nenagh. General Egan was to have opposed
the army of Sir James Duff. General Fox was to have attached
Captain Milward, to have his right wing extended to Carrick,
his left to Roscrea, and to have seized upon Cashel. But in
the mean time the plan was totally disorganized by General
Fox's being apprehended. He was immediately brought to
Clonmell. I informed Mr. Jacob here, who is a magistrate of
your county, of what I had discovered respecting General
Fox, and his rebellious measures. My worthy friend Jacob
(than who there exists not a more honourable, gallant, and
loyal man) went to General Fox, then in confinement, and
begged of him to acknowledge what he knew respecting the
rebellion. General Fox not only persisted in declaring his
total ignorance of the rebel organization, but so far
persuaded Mr. Jacob of his innocence, that Jacob interceded
for him with me, as for an injured man. Fox was then sick.
On the 23d of May, the mail-coaches were stopped and burned.
The judge were prevented from arriving, and every rebel was
up and appeared with his arms and uniform. In this
emergency, I waited on General St. John, addressed him on
the state of affairs, and suggested to him
29
the propriety of adopting vigorous measures. I then brought
out General Fox, and flogged him. On General Fox's receiving
one hundred and eleven lashes, he who heretofore so strongly
persisted in the avowal of his innocence, declared that he
was a rebel general: that he was in company with Lord Edward
Fitzgerald, who shewed him a map of the county of Tipperary,
parceled out into subdivisional sections, and that a general
was sent down to command the whole.
General Fox also informed against Colonel Devereux of
Callan, and Colonel Quin of Carrick-on-Suir; same time
declaring, that the Carrick Yeomen were all rebels. General
Fox said, that the rising in this county was to be on the
29th of May; and that Colonel Devereux was to meet Colonel
Quin and Colonel O'Brien at Clonmel, for the final
adjustment of that business; and that the rebels were sixty
thousand strong. All this General Fox declared before
Colonel Deering, of the Romney Fencibles. I sent for Captain
Jephson, and before him and Colonel Burton of the Clare
Militia, had General Fox again examined, who confessed the
whole of their plan, and the part that Captain Jephson's
corps of Carrick Yeomen were to act; that they amounted to
112 men, and that half that number were sworn rebels, who
were to be under the command of Colonel Quin. General Fox
also informed against other rebels officers and generals at
the same time. Fox left Dublin on the 22nd of May, and on
his way down he dropt a general officer at Naas, another
officer at Carlow, and came here himself.
I sent orders to Carrick to have Colonel Quin taken up, and
forwarded me to Clonmel, where I got him flogged, but
refusing to confess, I de-
30
livered him to Colonel Burton, in order to be put to death.
Colonel O'Brien went to the fair of Ballingary on the 28th
of May, in order to organize for the intended rising, and to
ascertain how far the expedition against Clonmel was likely
to succeed. Colonel O'Brien, however, was taken up in
Fethard on his way hither, and requesting time to shave
himself, he cut his throat. His reasons for so doing (as
afterwards found by a note among other papers in his
pocket-book) were, that he could not bear the tortures of a
flogging, and therefore he made away with himself, lest he
may be forced to betray his honour or his accomplices.
Having thus obtained ample informations of the whole system
of rebellion, and got possession of the rebel generals and
commanders, whom I delivered up to General St. John, I went
to Killenaule, where I met fifteen hundred rebels, who all
acknowledged their guilt, and gave up their arms. Here I was
also informed by one Mara, that Wells, who is plaintiff in
another action of a similar nature with the present against
me, and who only awaits the issue of this, was an officer
among the rebels. He is a yeoman of Captain Jephson's corps,
and was to have possessed himself of Carrick.
On thus discovering the organization of his Yeomen, and the
alarming state of Carrick, so convinced was Captain Jephson
of the necessity of having a military guard for the
protection of that town, that he applied to General St. John
for some of the Hompesch regiment, some flank companies, and
some artillery: which on entering the town, found it
illuminated, as they all had candles lighting in their
windows: all this may
31
be seen in General St. John's orderly book, which must be
allowed to be good evidence in my behalf. Neither was it
from my own head I went to Carrick; for I was directed by
General St. John, upon his receiving the informations of
Devany, forwarded to him from Thurles by Captain Cheshire. I
even refused to comply, unless the informer was sent along
with me, in order to identify the rebels there, and unless I
was invested with full powers on the occasion; and I can
prove by the evidence of Cosgrave here, that Devany gave me
full information, on which I repeatedly refused to act,
until he persisted in his knowledge of those persons who
swore him in as a United Irishman. When I arrived at
Carrick, as I had informations against Wells, I ordered him
to the ladder, and flogged him. While I was there, Captain
Jephson arrived, came up to me in the centre of the town,
and told me, that sooner than I should proceed in this
manner, he would put himself at the head of his corps, and
fire upon me. I drew out my men, I defied him, and I flogged
two more afterwards. I did it in order to prevent the rebels
at Carrick from attacking the rere [sic] of the military at
Ross.
I flogged them, I avow it, though they were all innocent
then. Yes, I did flog them; but what was the consequence?
twenty-six of the Carrick Yeomen then acknowledged to
Captain Jephson, that they were United Irishmen, and six
more confessed next morning. Then it was that Captain
Jephson applied for the men. Then it was that Colonel
Leggett was ordered down to Carrick, in order to take up
Captains Carey, Foran, and Carrigan; one of whom, on being
brought up, said, you must flog me first, as I have
32
a wife and children at home, who would inevitably starve, if
I informed, until I was forced to it by the application of
the torture.
So convinced were General St. John and Captain Jephson of
the necessity of applying the torture, that they requested
of me to continue it, and flog other rebels, as they now
adopted a new oath, which was, not to make any discoveries
with respect to their accomplices, until forced thereto by
the torture and the flogging. At Coolnamuck, near Carrick,
there was a great meeting of the rebel officers convened at
one Wall's. Here, General McCabe, Commander in Chief of the
Munster forces, Colonel Devereaux from Callan, and Colonel
Quin of Carrick, with seven or eight of the Carrick Yeomen,
assisted for the purpose of settling the plan of attack
against Clonmel, and such other means as may tend to promote
the interest and ends of the United Irishmen, but all their
schemes I frustrated by my timely and decisive measures.
Among you, Gentlemen, who compose that Jury, do I not see
some who were to be boiled in their own coppers ? do I not
see others who were to be roasted alive ? and were not all
of you to be murdered by your own very favourite servants,
had not my timely exertions totally counteracted their
system and frustrated their schemes of organization and
massacre.
Yet, Gentlemen of the Jury, you all see that this dreadful
spirit of proscription and assassination has not yet
subsided ; as is evident to you all, Gentlemen, from the
recent murder of Mr. Price, a gentleman of the most amiable
manners, humane disposition, and benevolent heart, who was
assassinated on his own ground, and in the noonday!
33
You see then, Gentlemen of the Jury, the necessity of that
timely severity employed by me for putting down rebellion
and preserving you. Were it not for my vigorous endeavours,
not one among you would have a head on his shoulders before
now. And must the immaculate Quin be allowed to enjoy
himself in peace and tranquillity in Carrick, and I thus
persecuted ? Must Colonel Devereaux be permitted to taste
the sweets of security and happiness in Callan, while I am
thus forced to stand here as an object of proscription,
supported by the public contribution of protected rebels.
It may be asked, Gentlemen of the Jury, by what authority I
have presumed to act thus. Standing in my sovereign's place,
I considered myself invested with his power. In the king's
absence I hold the authority by virtue of my office as High
Sheriff, and as such am empowered by my commission to
command the troops. Nay, should his majesty be present in
person, I as chief magistrate of the county, would command
on his right.
In the time of terror and trepidation, when I took it upon
me the administration of your county, all was sunk into
distrust, apathy, and dismay. But by my strong measures,
treason was soon discovered, traitors hunted down, and the
rebellion quelled. Are you not all, Gentlemen, witnesses to
my manly exertions for the preservation of your lives and
properties?
Have I not routed the revels in every direction, from the
Shannon to the Suir ? And have I not thereby cut off all
communications between the Munster and Leinster rebels. As
the strength of the rebellion was now founded on the murder
of
34
all informers, I was under the necessity of concealing their
names.
You all know, Gentlemen of the Jury, that according to the
preconcerted plan of the union, the rebels stopped the
mail-coaches near Lucan, at Santry, and Kilcullen, on the
23d, and broke or burnt them, and that there was a general
rising in the counties of Carlow, Kildare, Dublin,
Westmeath, Wexford, and Wicklow.
[Here Colonel Fitzgerald entered into a minute detail of the
various operations of the King's forces with the rebels, and
with their skirmishes and battles ; as also the battle of
Ross, on the 6th of June, and of Vinegar-Hill on the 20th of
the same month ; with the massacres of Scullabogue, and on
the bridge of Wexford, the former on the 5th, and the latter
on the 20th of June, &c.&c.&c. (when Lord Avonmore rising
from the bench, said, "I declare to God, my patience has
been exhausted ; as for an hour and a half's attendance
here, I have not heard five minutes argument to the point.
But he is just like a puppet-shew man, with his magic
lanthorn playing off his various tricks, and crying out,
"Here you shall see Jack o-the lanthorn, then
Will-o-the-Wisp---here the battle of Ross---there the Battle
of Vinegar-Hill, and the Devil and Doctor Faustus !" with
such unmeaning trash) the Colonel then resuming his speech,
said in a low voice : That the country would be in a bad
state, if there was nothing to be adduced but legal evidence
; then proceeding in a loud tone of voice as before, he said
]
I am next, Gentlemen, to shew you, quo animo, or whether I
had a malicious intent on my departure for Carrick. You all
know, Gentlemen, from my puerile age, I have been always a
stout,
35
spirited, magnanimous, and merciful youth. By General St.
John's orderly-book (which you must allow to be admissible
evidence) you may see the state of Carrick, whither I went
by order of General St. John, with the informer Devany.
[Then the Defendant began to read some letters address to
him by General St. John, when Lord Avonmore prevented him,
conceiving them not to be admissible evidence.]
You see, Gentlemen, I had General St. John's approbation and
directions for going to Carrick ; and though the gentlemen
of that town were white-washed by that gentleman there
(alluding as is supposed, to the Rev. Mr. Smyth) yet you see
the immediate good effects that followed from my flogging
there. Discovery followed from it, and the rebels there were
thus timely prevented from co-operating with those of
Waterford, who were then ready to rise, but were kept down
by the timely arrival of the Roscommon Militia from Ross to
that city. Since I undertook the office of Sheriff of your
county, have I not done everything for the general welfare
of all ? have not the lives of loyal subjects been saved
through my means ? I have taken up thirty-six car-loads of
pike-heads, and twenty-two thousand stand of arms : and
during my whole administration of that important office, I
have done nothing through private pique, peevishness, or
self-interest. No, I have done nothing on the whole but what
was honourable, tender hearted, and humane.
It has been said, Gentlemen of the Jury, that I have kept
back my trial these two years past; the reverse is the case.
I applied in this court a year ago to bring it forward
before Judge Kelly. I would have then benefited by General
St. John's
36
testimony, of which I cannot avail myself now. Then
frivolous causes were heard, and mine rejected. I have been
since ordered on foreign service to Minorca and other parts,
whither I am immediately to return, on the issue of this
trial, a trial by which I have been five thousand pounds out
of pocket already.
I shall only add, Gentlemen of the Jury, that I have cut off
all communication between the Munster and Leinster rebels,
and have prevented the rising which took place at Cashell
and Carrick-a-Chlear, from becoming general. To your
consideration, Gentlemen, I submit the propriety of my
conduct ; well knowing, that in the determination of my
cause, you will never, I am sure, punish me for my loyalty.
Peter Hynes sworn and examined by Defendant's Counsel
Q. Are you keeper of Clonmel jail ?
A. I am, Sir.
Q. Do you know where was Devany sent from your jail ?
A. He was sent from this to Geneva, and as I afterwards
heard by general reputation (which Lord Avonmore admitted to
be evidence of the fact) he was sent from New Geneva to
Chatham ; but I cannot say whether as a recruit or as a
convict.
[ Here Lord Avonmore declared that before they could give
Devany's declaration in evidence, they must shew, that they
used due diligence for ascertaining what was become of him ;
but as that was not then done, his lordship could not admit
Devany's informations, to be read.
37
Captain Cheshire sworn and examined by Defendant's Counsel
Q. Do you recollect a prisoner of the name of Devany being
in custody with your men, when quartered in Thurles?
A. I do.
Q. Did he communicate any informations to you?
A. He did, he swore to examinations before me.
Q. Pray Sir, are you a magistrate?
A. I am not.
Q. What did you do with these informations?
A. I transmitted them to Colonel Deering, and by his
directions sent them afterwards to Colonel Fitzgerald.
[Here Captain Cheshire was shewn a paper, which he
identified, as the informations he enclosed to the Colonel,
and which the defendant's counsel offered to read in
evidence, but they were objected to, as not being on oath,
having been sworn before a person, who was not empowerd to
administer an oath. Lord Avonmore thought the letters and
informations given by any one to Colonel Fitzgerald
admissible evidence, to shew the intent with which he acted.
How else could the Jury judge whether he acted from malice
or otherwise ? The informations were now read, and in them
it was stated, that the name of Doyle, and several others
whose names were mentioned therein, were rebels.
38
John Cosgrave sworn and examined by Defendant's Counsel
Q. Are you not a police-officer ?
A. I am.
Q. Was the man whom the Sheriff flogged at Carrick, on 22
June 1798, the Doyle whom Devany swore against ?
A. I believe he was, as Devany pointed him out.
Cross examined by Plaintiff's Counsel
Q. Pray, Sir, is there no other man of the name of Doyle at
Carrick, who was implicated in the rebellion ? A. Yes, Sir,
there was the plaintiff's first cousin, whose name is
Richard Doyle. Q. Would you know that man ? is he in court ?
A. I would know him. He is now in court. Q. Take the rod,
and point him out.
[ Here the witness took the rod, and pointed to James Doyle,
a brother to the plaintiff Francis Doyle, who was not at all
implicated in the rebellion.]
Q. Pray, Sir, do you know the plaintiff's character ?
A. I know him to have always been an honest, industrious and
loyal man.
Q. May not Devany have mistaken Francis Doyle, the
Plaintiff, for his cousin Richard Doyle, who was implicated
in the rebellion ?
A. He may.
Q. Pray, Sir, what was Devany's general character ?
39
A. He was well known in the country, to be a man of the most
infamous character.
Q. Were you present at the flogging ?
A. I was, and counted the strokes by Colonel Fitzgerald's
directions.
Lieutenant Ducket sworn and examined by Defendant's Counsel
Q. Pray, sir, where were you on 22d June, 1798 ?
A. I went to Carrick-on-Suir with some of the Germans, by
Colonel St. John's orders.
Q. Were there any appearances of rebellion in Carrick on
that day ?
A. I saw no appearance of rebellion there.
Q. In what state was the country then ?
A. It was in a very bad state.
Cross-examined by Plaintiff's Counsel
Q. Did you see the Plaintiff Doyle on that day ?
A. I saw him on his knees.
Q. Did you hear that Doyle was a man of very good character
for loyalty and honesty?
A. I heard and believe Doyle always had a good character for
loyalty ; I heard it given him that day.
Q. Pray, Sir, could not Colonel Fitzgerald give Doyle a
trial that day ?
A. He could, if he pleased.
Colonel O'Connor sworn and examined by Defendant's Counsel
Q. You are the Colonel of the Nottingham Fencibles.
A. I am.
40
Q. Were you in any command on 22d of June 1798 ?
A. I was second in command under general St. John.
Q. Where is general St John now ?
A. He is gone to the East Indies.
Q. In what state was the country then ?
A. It was in a bad state, we apprehended an attack on
Clonmell and other towns.
Q. Did Captain Jephson make any application for the military
aid at that time ?
A. He did, in three days after the flogging.
Q. What were the orders given the military on that occasion
?
A. The orders given the party were, to stop at this side of
Carrick, and to keep close together.
[ Here witness proved a letter which was produced and shewn
him, was in the hand-writing of General St. John. Witness
was also shown a letter signed William Bagwell, which he
proved to be the hand-writing of William Bagnell, a
Brigade-major. It bore date June the sixth 1798, was
directed to the Defendant, and among other expressions state
to Mr. Fitzgerald that, " If he found " good to arise from
flogging, he may go " on with it, but not to let it reach
his " ears." ]
Laurence Hickey Jephson, Esq. Captain of the Carrick Corps
of Yeoman Infantry, sworn and examined by Plaintiff's
Counsel, in order to rebut the Case made for the Defendant.
Q. Pray, Sir, do you recollect your having
41
a conversation with General St. John about Mr. Fitzgerald's
conduct in Carrick ?
A. I do : I complained to general St. John of Colonel
Fitzgerald's behaviour in Carrick, at which General St. John
was very angry, and declared that Fitzgerald was a man not
to be trusted, and that he himself would never trust him
again.
Q. Do you know Doyle ?
A. I do, and know him to be a remarkable loyal man.
Q. Did you know Devany's character then ?
A. Yes, he was a man of the most infamous character.
Q. What were your reasons for writing for troops ?
A. I wrote for troops for two reasons ; first, because I
thought, that from Colonel Fitzgerald's conduct no loyal
yeoman would bear arms. This I thought from the despair
manifested by the inhabitants of the country, on hearing of
the flogging. Secondly, I was afraid that not only the
Yeomen would not bear arms, but that the cruelty exercised
in inflicting the torture, would infuse the spirit of
disloyalty into the most loyal, and consequently encourage
the disaffected rebels.
Q. What is your opinion of the Sheriff's conduct then ?
A. I am clearly of the opinion, that such a conduct was
calculated to promote rebellion ; for had it not been for my
being possessed of superior information, the oath of
allegiance I had taken, the property I had in the country,
and my being Captain of a Yeomanry Corps, I would, on seeing
such wanton cruelty, have joined the rebels.
42.
Cross-examined by Defendant's Counsel.
Q. Do you not believe that Colonel Fitzgerald acted from
pure motives.
A. I am of opinion he did not act from pure motives, but
rather with a view to private emolument.
Q. What are your reasons for suspecting the purity of his
motives?
A. I should have no reasons for suspecting the purity of his
motives, had he not accepted a regiment from government; but
by his present situation, I consider his conduct to have
been influenced by a desire of rendering himself
conspicuous, and thereby obtaining a reward from government.
Here the evidence on both sides closed.
LORD AVONMORE, with those comprehensive, clear and
discriminating powers, for which his Lordship is so
eminently distinguished, summed up the evidence on both
sides, in his charge to the Jury, of which the following is
an abstract:
This, Gentlemen, is an action brought to recover damages
from the defendant, Colonel Fitzgerald, for an act admitted
to be against law. The defendant himself has repeatedly told
us so, and, lest we may not believe him, he has quoted Coke
and Littleton to convince us. If, therefore, the acts of
indemnity which have been cited to you had not passed, no
damages, that you could
43
give, would be too great. These statutes recite the
existence of a rebellion in the country, and the illegal
acts exercised by several magistrates and officers for its
suppression; under these acts, if you believe that the
defendant was forced, through imperious necessity, to commit
this abominable outrage against the plaintiff, a man of
acknowledged loyalty, you are certainly bound to find for
him.
The defendant has told you, that he has acted from
information; but what are these informations? They are the
informations of a vile, perjured and infamous informer, and
these too, not upon oath.
The justification of his conduct he has also rested upon the
two letters he has received from General St. John and a
Major Bagwell; but, Gentlemen, let us look at the letter of
the 6th of June, long before the perpetration of the wanton
outrage here complained of. What does that letter authorise
him to do? It advises him to bring all suspected people to a
court-martial, and directs him to enforce confessions
according to law; but should it appear to him that other
methods not warranted by law, should be deemed necessary -
to adopt them - and act in such a manner, at least, as it
may not reach his ears.
You all see, Gentlemen, that the plaintiff is a man of
acknowledged loyalty. The Gentlemen of the country, nay the
witnesses for the defendant, have borne ample testimony to
his loyalty. Yet, Gentlemen, can it be credited, that the
defendant refused them a respite of even ten minutes. For
you it is, Gentlemen, to determine whether his conduct has
arisen from impe-
44
rious necessity, and was more likely to promote the cause of
loyalty, than to fill the mind of every one with disgust,
and inspire the well-disposed with sentiments of abhorrence
and disaffection.
Much, Gentlemen, has been here spoken respecting loyalty;
and, left the clamours of pretended loyalty should drown all
considerations of justice, it is incumbent on me to inform
you what loyalty is, and in what true loyalty consists.
Loyalty is another term for legality; and he who acts with
legality, acts in strict conformity to the laws. That man
therefore is to be esteemed the most loyal, who is a steady
and faithful adherent to his lawful prince, and a strenuous
supporter of the established constitution, by paying due
obedience to the laws of his country, respecting social
order, and preserving every member of the state in his just
rights and possessions.
Another ground of defence has been set up, that the town of
Carrick-on-Suir had then been in a disturbed state; but,
Gentlemen, the evidence of both plaintiff and defendant
negative that idea, as from the joint testimony of their
witnesses it manifestly appears, that there was no manner of
disturbance in that industrious town; nay, that all were in
the most profound state of composure and tranquillity, until
wantonly disturbed by the outrageous conduct of the
defendant.
It has been said, that there was no kind of personal
acquaintance between the plaintiff and defendant, and that
consequently no personal malignity could exist between them;
But I consider it my duty to tell you, that personal malice
is not
45
necessary to be proved; but a depraved and general
indisposition towards mankind. To find for the defendant,
you must not only believe that there was no malignity in his
general conduct, but that the commission of the outrage
complained of, was absolutely necessary to put down
rebellion. Not that it was so in the defendant's opinion,
but that its probable consequences may be such; for you
cannot suppose that the Legislature meant to indemnify a man
for perpetrating wanton and unnecessary cruelties or acts,
which in the mind of every rational person were alone
calculated rather to excite and promote than to suppers
insurrection and rebellion.
True it is, Gentlemen, one of the witnesses on behalf of the
plaintiff, said that he believed Colonel Fitzgerald acted
from pure motives. If you attach a full belief to the
testimony of that witness, and are of opinion that the act
was likely to suppress rebellion you must find for the
defendant. It is my duty to inform you, Gentlemen, that your
verdict, in that case, will saddle the plaintiff with double
costs. Should you not think so, but entertain an opinion
that the defendant's motives were malicious, or that the act
was not such as a prudent man would employ for suppressing
rebellion and preserving the public peace, it is your duty
to find for the plaintiff. It is exclusively your province
to determine the amount of the damages. However (here his
Lordship took up the act and perused it) to render a verdict
for the plaintiff of any avail, you must find that the
defendant acted maliciously, and not with the intent of
suppressing the rebellion or saving the state, according to
the words of this act, (throws it on the cushion) which
places an insu-
46
perable bar between injury and redress, and sets all equity
and justice at defiance.
The Jury retired, and after half an hour's consultation,
gave a verdict in favour of the defendant.
In consequence of this verdict, the defendant entered
judgment, and issued an execution against the plaintiff for
treble costs, to the amount of nearly £450.
NAMES OF THE JURORS:
Edw Taylor, Esq. Foreman William Quin
Stephen Hastings Richard Millet
Purefoy Poe Southwell Moore
Wills Crofts William Despard
George Tuttle Richard White Denis
Duone (?) William Going, Esqs.
Sir T.J. Fitzgerald, Bt.Plaintiff.
Francis Doyle, Defendant.
RECEIVED from the Defendant, Francis Doyle, Four Hundred
and Twenty-our pounds two shillings and eight pence
Sterling, being the sum marked at the foot of the Fieri
Facias directed to the Sheriff of the County of Tipperary
in this cause. Dated this second day of November, 1801.
SAMUEL WALLER, Sub-Sheriff, County Tipperary. ???? £424 2
8 ????
Transcribed by Patricia McGill, Agnes McFarland, Ann Quinn,
Karen Miele, Peggy Quinn, Don Kelly, Christina Hunt & Jude
Wynne.