The "Wearing of the Green," or The Prosecuted Funeral Procession

by A. M. Sullivan

Mr. Sullivan—I, at once, in respect for your worship, retract the word juggle. I will say the crown manipulates the jury.

Mr. Dix—I can't at all allow this line of comment to be pursued—

Mr. Sullivan—With all respect for your worship, and while I am ready to use any phrase most suitable for utterance here, I will not give up my right to state and proclaim the fact, however unpalatable, when it is notoriously true. I stand upon my rights to say, that you have all the greater reason to pause, ere you send me, or any other citizen, for trial before a jury in a crown prosecution at a moment like the present, when trial by jury, as the theory of the constitution supposes it, does not exist in the land. I say there is now notoriously no fair trial by jury to be had in this country, as between the subject and the crown. Never yet, in an important political case, have the government in this country dared to allow twelve men indifferently chosen, to pass into the jury-box to try the issue between the subject and the crown. And now, sir, if you send the case for trial, and suppose the government succeed by the juries they are able to empanel here, with 'Fenian' ticketed on the backs of the accused by the real governors of the country—the Heygates and the Bruces—and if it is declared by you that in this land of mourning it has become at last criminal even to mourn—what a victory for the crown! Oh, sir, they have been for years winning such victories, and thereby manufacturing conspiracies—driving people from the open and legitimate expression of their sentiments into corners to conspire and to hide. I stand here as a man against whom some clamour has been raised for my efforts to save my countrymen from the courses into which the government conduct has been driving them, and I say that there is no more revolutionary agent in the land than that persecution of authority which says to the people, "When we strike you, we forbid you to weep." We meet the crown, foot to foot, on its case here. We say we have committed no offence, but that the prosecution against us has been instituted to subserve their party exigencies, and that the government is straining and violating the law. We challenge them to the issue, and even should they succeed in obtaining from a crown jury a verdict against us, we have a wider tribunal to appeal to—the decision of our own consciences and the judgment of humanity (applause).

Mr. Murphy, Q.C., briefly replied. He asked his worship not to decide that the procession was illegal, but that this case was one for a court of law and a jury.

On this occasion it was unnecessary for Mr. Dix to take any "time to consider his decision." All the accused were bound over in their own recognizances to stand their trials at the forthcoming Commission in Green-street court, on the 10th of February, 1868.

The plunge which the crown officials had shivered so long before attempting had now been taken, and they determined to go through with the work, a l'outrance. In the interval between the last police-court scene described above, and the opening of the Green-street Commission, in February, 1868, prosecutions were directly commenced against the Irishman and the Weekly News for seditious writing. In the case of the former journal the proprietor tried some skilfully-devised preparatory legal moves and manoeuvers, not one of which of course succeeded, though their justice and legality were apparent enough. In the case of the latter journal—the Weekly News—the proprietor raised no legal point whatsoever. The fact was that when he found the crown not content with one state prosecution against him (that for the funeral procession), coming upon him with a second, he knew his doom was sealed. He very correctly judged that legal moves would be all in vain—that his conviction, per fas aut ne fas, was to be obtained—that a jury would be packed against him—and that consequently the briefest and most dignified course for him would be to go straight to the conflict and meet it boldly.

On Monday, 10th February, 1868, the commission was opened in Green-street, Dublin, before Mr. Justice Fitzgerald and Baron Deasy. Soon a cunning and unworthy legal trick on the part of the crown was revealed. The prosecuted processionists and journalists had been indicted in the city venue, had been returned for trial to the city commission by a city jury. But the government at the last moment mistrusted a city jury in this instance—even a packed city jury—and without any notice to the traversers, sent the indictments before the county grand jury, so that they might be tried by a jury picked and packed from the anti-Irish oligarchy of the Pale. It was an act of gross illegality, hardship, and oppression. The illegality of such a course had been ruled and decided in the case of Mr. Gavan Duffy in 1848. But the point was raised vainly now. When Mr. Pigott, of the Irishman, was called to plead, his counsel (Mr. Heron, Q.C.) insisted that he, the traverser, was now in custody of the city sheriff in accordance with his recognizances, and could not without legal process be removed to the county venue. An exciting encounter ensued between Mr. Heron and the crown counsel, and the court took till next day to decide the point. Next morning it was decided in favour of the crown, and Mr. Pigott was about being arraigned, when, in order that he might not be prejudiced by having attended pending the decision, the attorney-general said, "he would shut his eyes to the fact that that gentleman was now in court," and would have him called immediately—an intimation that Mr. Pigott might, if advised, try the course of refusing to appear. He did so refuse. When next called, Mr. Pigott was not forthcoming, and on the police proceeding to his office and residence that gentleman was not to be found—having, as the attorney-general spitefully expressed it, "fled from justice." Mr. Sullivan's case, had, of necessity, then to be called; and this was exactly what the crown had desired to avoid, and what Mr. Heron had aimed to secure. It was the secret of all the skirmishing. A very general impression prevailed that the crown would fail in getting a jury to convict Mr. Sullivan on any indictment tinctured even ever so faintly with "Fenianism;" and it was deemed of great importance to Mr. Pigott's case to force the crown to begin with the one in which failure was expected—Mr. Sullivan having intimated his perfect willingness to be either pushed to the front or kept to the last, according as might best promise to secure the discomfiture of the government. Mr. Heron had therefore so far out-manoeuvered the crown. Mr. Sullivan appeared in court and announced himself ready for trial, and the next morning was fixed for his arraignment. Up to this moment, that gentleman had expressed his determination not only to discard legal points, but to decline ordinary professional defence, and to address the jury in his own behalf. Now, however, deferring to considerations strongly pressed on him (set forth in his speech to the jury in the funeral procession case), he relinquished this resolution; and, late on the night preceding his trial, entrusted to Mr. Heron, Q.C., Mr. Crean, and Mr. Molloy, his defence on this first prosecution.

Next morning, Saturday, 15th February, 1868, the trial commenced; a jury was duly packed by the "stand-by" process, and notwithstanding a charge by Justice Fitzgerald, which was, on the whole one of the fairest heard in Ireland in a political case for many years, Mr. Sullivan was duly convicted of having, by pictures and writings in his journal the Weekly News, seditiously brought the crown and government into hatred and contempt.

The government officials were jubilant. Mr. Pigott was next arraigned, and after an exceedingly able defence by Mr. Heron, was likewise convicted.

It was now very generally concluded that the government would be satisfied with these convictions, and would not proceed with the funeral procession cases. At all events, it was universally regarded as certain that Mr. Sullivan would not be arraigned on the second or funeral procession indictment, as he now stood convicted on the other—the press charge. But it was not to be so. Elate with their success, the crown officials thought they might even discard their doubts of a city jury; and on Thursday morning, 20th February, 1868, John Martin, Alexander M. Sullivan, Thomas Bracken, and J.J. Lalor, [^[A]] were formally arraigned in the city venue.