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

by A. M. Sullivan

My lords—I would say a word or two, but after Mr. Sullivan's grand and noble speech of last evening, I think it now needless on my part. I went to the procession of the 8th December, assured that it was right from reading a speech of the Earl of Derby in the newspapers. There was a sitting of the Privy Council in Dublin on the day before, and I sat in my shop that night till twelve o'clock, to see if the procession would be forbidden by government. They, however, permitted it to take place, and I attended it fully believing I was right. That is all I have to say.

This short speech—delivered in a clear musical and manly voice—put the whole case against the crown in a nut-shell. The appearance of the speaker too—a fine, handsome, robust, and well-built man, in the prime of life, with the unmistakable stamp of honest sincerity on his countenance and in his eye—gave his words greater effect with the audience; and it was very audibly murmured on all sides that he had given the government a home thrust in his brief but telling speech.

Then Mr. Martin rose. After leaving court the previous evening he had decided to commit to writing what he intended to say; and he now read from manuscript his address to the jury. The speech, however, lost nothing in effect by this; for any auditor out of view would have believed it to have been spoken, as he usually speaks, extempore, so admirably was it delivered. Mr. Martin said:—

My lords and gentlemen of the jury—I am going to trouble this court with some reply to the charge made against me in this indictment. But I am sorry that I must begin by protesting that I do not consider myself as being now put upon my country to be tried as the constitution directs—as the spirit of the constitution requires—and, therefore, I do not address you for my legal defence, but for my vindication before the tribunal of conscience—a far more awful tribunal, to my mind, than this. Gentlemen, I regard you as twelve of my fellow-countrymen, known or believed by my prosecutors to be my political opponents, and selected for that reason for the purpose of obtaining a conviction against me in form of law. Gentlemen, I have not the smallest purpose of casting an imputation against your honesty or the honesty of my prosecutors who have selected you. This is a political trial, and in this country political trials are always conducted in this way. It is considered by the crown prosecutors to be their duty to exclude from the jury-box every juror known, or suspected, to hold or agree with the accused in political sentiment. Now, gentlemen, I have not the least objection to see men of the most opposite political sentiments to mine placed in the jury-box to try me, provided they be placed there as the constitution commands—provided they are twelve of my neighbours indifferently chosen. As a loyal citizen I am willing and desirous to be put upon my county, and fairly tried before any twelve of my countrymen, no matter what may happen to be the political sentiments of any of them. But I am sorry and indignant that this is not such a trial. This system by which over and over again loyal subjects of the Queen in Ireland are condemned in form of law for seeking, by such means as the constitution warrants, to restore her Majesty's kingdom of Ireland to the enjoyment of its national rights—this system, of selecting anti-Repealers and excluding Repealers from the jury box, when a Repealer like me is to be tried, is calculated to bring the administration of justice into disesteem, disrepute, and hatred. I here protest against it. My lords and gentlemen of the jury, before I offer any reply to the charges in this indictment, and the further development of those charges made yesterday by the learned gentleman whose official duty it was to argue the government's case against me, I wish to apologise to the court for declining to avail myself of the professional assistance of the bar upon this occasion. It is not through any want of respect for the noble profession of the bar that I decline that assistance. I regard the duties of a lawyer as among the most respectable that a citizen can undertake. His education has taught him to investigate the origin, and to understand principles of law, and the true nature of loyalty. He has had to consider how the interests of individual citizens may harmonise with the interests of the community, how justice and liberty may be united, how the state may have both order and contentment. The application of the knowledge which he has gained—viz., the study of law to the daily facts of human society—sharpens and strengthens all his faculties, clears his judgment, helps him to distinguish true from false, and right from wrong. It is no wonder, gentlemen, that an accomplished and virtuous lawyer holds a high place in the aristocracy of merit in every free country. Like all things human, the legal profession has its dark as well as its bright side, has in it germs of decay and rotten foulness as well as of health and beauty; but yet it is a noble profession, and one which I admire and respect. But, above all, I would desire to respect the bar of my own country, and the Irish bar—the bar made illustrious by such memories as those of Grattan and Flood, and the Emmets, and Curran, and Plunket, and Saurin, and Holmes, and Sheil, and O'Connell. I may add, too, of Burke and of Sheridan, for they were Irish in all that made them great. The bar of Ireland wants this day only the ennobling inspirations of national freedom to raise it to a level with the world. Under the Union very few lawyers have been produced whose names can rank in history with any of the great names I have mentioned. But still, even the present times of decay, and when the Union is preparing to carry away our superior courts, and the remains of our bar to Westminster, and to turn that beautiful building upon the quay into a barrack like the Linen Hall, or an English tax-gatherer's office like the Custom House, there are many learned, accomplished, and respectable lawyers at the Irish bar, and far be it from me to doubt but that any Irish lawyer who might undertake my defence would loyally exert himself as the lofty idea of professional honour commands to save me from a conviction. But to this attack upon my character as a good citizen and upon my liberty, my lords and gentlemen, the only defence I could permit to be offered would be a full justification of my political conduct, morally, constitutionally, legally—a complete vindication of my acts and words alleged to be seditious and disloyal, and to retort against my accusers the charge of sedition and disloyalty. Not, indeed, that I would desire to prosecute these gentlemen upon that charge, if I could count upon convicting them and send them to the dungeon instead of myself. I don't desire to silence them, or to hurt a hair of their wigs because their political opinions differed from mine. Gentlemen, this prosecution against me, like the prosecutions just accomplished against two national newspapers, is part of a scheme of the ministers of the crown for suppressing all voice of protest against the Union, for suppressing all public complaint against the deadly results of the Union, and all advocacy by act, speech, or writing for Repeal of the Union. Now I am a Repealer so long as I have been a politician at all—that is for at least twenty-four years past. Until the national self-government of my country be first restored, there appears to me to be no place, no locus standi (as lawyers say), for any other Irish political question, and I consider it to be my duty as a patriotic and loyal citizen, to endeavour by all honourable and prudent means to procure the Repeal of the Act of the Union, and the restoration of the independent Irish government, of which my country was (as I have said in my prosecuted speech), "by fraud and force," and against the will of the vast majority of its people of every race, creed, and class, though under false form of law, deprived sixty-seven years ago. Certainly, I do not dispute the right of you, gentlemen, or of any man in this court, or in all Ireland, to approve of the Union, to praise it, if you think right, as being wise and beneficent, and to advocate its continuance openly by act, speech, and writing. But I naturally think that my convictions in this matter of the Union ought to be shared by you also, gentlemen, and by the learned judges, and the lawyers, both crown lawyers and all others, and by the policemen and soldiers, and all faithful subjects of her Majesty in Ireland. Now, gentlemen, such being my convictions, were I to entrust my defence in this court to a lawyer, he must speak as a Repealer, not only for me, but for himself, not only as a professional advocate, but as a man, and from the heart. I cannot doubt but that there are very many Irish lawyers who privately share my convictions about Repeal. Believing as I do in my heart and conscience, and with all the force of the mind that God has given me, that Repeal is the right and the only right policy for Ireland—for healing all the wounds of our community, all our sectarian feuds, all our national shame, suffering, and peril—for making our country peaceful, industrious, prosperous, respectable, and happy—I cannot doubt but that in the enlightened profession of the bar there must be very many Irishmen who, like me, consider Repeal to be right, and best, and necessary for the public good. But, gentlemen, ever since the Union, by fraud and force and against the will of the Irish people, was enacted—ever since that act of usurpation by the English parliament of the sovereign rights of the queen, lords, and commons of Ireland—ever since this country was thereby rendered the subject instead of the sister of England—ever since the Union, but especially for about twenty years past, it has been the policy of those who got possession of the sovereign rights of the Irish crown to appoint to all places of public trust, emolument, or honour in Ireland only such as would submit, whether by parole or by tacit understanding, to suppress all public utterance of their desire for the Repeal of the Union such as has been the persistent policy towards this country of those who command all the patronage of Irish offices, paid and unpaid—the policy of all English ministers, whether Whig or Tory, combined with the disposal of the public forces—such a policy is naturally very effective in not really reconciling, but in keeping Ireland quietly subject to the Union. It is a hard trial of men's patriotism to be debarred from all career of profitable and honourable distinction in the public service of their own country. I do not wonder that few Irish lawyers, in presence of the mighty power of England, dare to sacrifice personal ambition and interest to what may seem a vain protest against accomplished facts. I do not wish to attack or offend them—as this court expresses it, to impute improper motives to them—by thus simply stating the sad facts which are relevant to my own case in this prosecution, and explaining that I decline professional assistance, because few lawyers would be so rash as to adopt my political convictions, and vindicate my political conduct as their own, and because if any lawyer were so bold as to offer me his aid on my own terms, I am too generous to permit him to ruin his professional career for my sake. Such are the reasons, gentlemen of the jury and my lords, why I am now going through this trial, not secundum artum, but like an eccentric patient who won't be treated by the doctors but will quack himself. Perhaps I would be safer if I did not say a word about the legal character of the charge made against me in this indictment. There are legal matters as dangerous to handle as any drugs in the pharmacopoeia. Yet I shall trouble you for a short time longer, while I endeavour to show that I have not acted in a way unbecoming a good citizen. The charge against me in this indictment is that I took part in an illegal procession by the provisions of the statute entitled in the Party Processions' Act. His lordship enumerated seven conditions, the violation of some one of which is necessary to render an assembly illegal at common law. Those seven conditions are—1. That the persons forming the assembly met to carry out an unlawful purpose. 2. That the numbers in which the persons met endangered the public peace. 3. That the assembly caused alarm to the peaceful subjects of the Queen. 4. That the assembly created disaffection. 5. That the assembly incited her Majesty's Irish subjects to hate her Majesty's English subjects—his lordship did not say anything of the case of an assembly inciting the Queen's English subjects to hate the Queen's Irish subjects, but no such case is likely to be tried here. 6. That the assembly intended to asperse the right and constitutional administration of justice; and 7. That the assembly intended to impair the functions of justice and to bring the administration of justice into disrepute. I say that the procession of the 8th December did not violate any one of these conditions—1. In the first place the persons forming that procession did not meet to carry out any unlawful purpose—their purpose was peaceably to express their opinion upon a public act of the public servants of the crown. 2. In the second place the numbers in which those persons met did not endanger the public peace. None of those persons carried arms. Thousands of those persons were women and children. There was no injury or offence attempted to be committed against anybody, and no disturbance of the peace took place. 3. In the third place the assembly caused no alarm to the peaceable subjects of the Queen—there is not a tittle of evidence to that effect. 4. In the fourth place the assembly did not create disaffection, neither was it intended or calculated to create disaffection. On the contrary, the assembly served to give peaceful expression to the opinion entertained by vast numbers of her Majesty's peaceful subjects upon a public act of the servants of the crown, an act which vast numbers of the Queen's subjects regretted and condemned. And thus the assembly was calculated to prevent or remove disaffection, and such open and peaceful manifestations of the real opinions of the Queen's subjects upon public affairs is the proper, safe, and constitutional way in which they may aid to prevent disaffection. 5. In the fifth place the assembly did not incite the Irish subjects of the Queen to hate her Majesty's subjects. On the contrary, it was a proper constitutional way of bringing about a right understanding upon a transaction which, if not fairly and fully explained and set right, must produce hatred between the two peoples. That transaction was calculated to produce hatred. But those who protest peaceably against such a transaction are not the party to be blamed, but those responsible for the transaction. 6. In the sixth place the assembly had no purpose of aspersing the right and constitutional administration of justice. Its tendency was peaceably to point out faults in the conduct of the servants of the crown, charged with the administration of justice, which faults were calculated to bring the administration of justice into disrepute. 7. Nor, in the seventh place, did the assembly impair the functions of justice, or intend or tend to do so. Even my prosecutors do not allege that judicial tribunals are infallible. It would be too absurd to make such an allegation in plain words. It is admitted on all hands that judges have sometimes given wrong directions, that juries have given wrong verdicts, that courts of justice have wrongfully appreciated the whole matter for trial. When millions of the Queen's subjects think that such wrong has been done, is it sedition for them to say so peaceably and publicly? On the contrary, the constitutional way for good citizens to act in striving to keep the administration of justice pure and above suspicion of unfairness, is by such open and peaceable protests. Thus, and thus only, may the functions of justice be saved from being impaired. In this case wrong had been done. Five men had been tried together upon the same evidence, and convicted together upon that evidence, and while one of the five was acknowledged by the crown to be innocent, and the whole conviction was thus acknowledged to be wrong and invalid, three of the five men were hanged upon that conviction. My friend, Mr. Sullivan, in his eloquent and unanswerable speech of yesterday, has so clearly demonstrated the facts of that unhappy and disgraceful affair of Manchester, that I shall merely say of it that I adopt every word he spoke upon the subject for mine, and to justify the sentiment and purpose with which I engaged in the procession of the 8th December. I say the persons responsible for that transanction are fairly liable to the charge of acting so as to bring the administration of justice into contempt, unless, gentlemen, you hold those persons to be infallible and hold that thay can do no wrong. But, gentlemen, the constitution does not say that the servants of the crown can do no wrong. According to the constitution the sovereign can do no wrong, but her servants may. In this case they have done wrong. And, gentlemen, you cannot right that wrong, nor save the administration of justice from the disreputation into which such proceedings are calculated to bring it, by giving a verdict to put my comrades and myself into jail for saying openly and peaceably that we believe the administration of justice in that unhappy affair did do wrong. But further, gentlemen, let us suppose that you twelve jurors, as well as the servants of the crown who are prosecuting me, and the two judges, consider me to be mistaken in my opinion upon that judicial proceeding, yet you have no right under the constitution to convict me of a misdemeanour for openly and peaceably expressing my opinion. You have no such right; and as to the wisdom of treating my differences of opinion and the peaceable expression of it as a penal offence—and the wisdom of a political act ought to be a serious question with all good and loyal citizens—consider that the opinion you are invited by the crown prosecutors to pronounce to be a penal offence is not mine alone, nor that of the five men herein indicted, but is the opinion of all the 30,000 persons estimated by the crown evidence to have taken part in the assembly of the 8th of December; is the opinion besides of the 90,000 or 100,000 others who, standing in the streets of this city, or at the open windows overlooking the streets traversed by the procession that day, manifested their sympathy with the objects of the procession; is the opinion, as you are morally certain, of some millions of your Irish fellow-subjects. By indicting me for the expression of that opinion the public prosecutors virtually indict some millions of the Queen's peaceable Irish subjects. It is only the convenience of this court—which could not hold the millions in one batch of traversers, and which would require daily sittings for several successive years to go through the proper formalities for duly trying all those millions; it is only the convenience of this court that can be pretended to relieve the crown prosecutors from the duty of trying and convicting all those millions if it is their duty to try and convict me. The right principles of law do not allow the servants of the crown to evade or neglect their duty of bringing to justice all offenders against the law. I suppose these gentlemen may allege that it is at their discretion what offenders against the law they will prosecute. I deny that the principles of the law allow them, or allow the Queen such discretion. The Queen, at her coronation services, swears to do justice to all her subjects according to the law. The Queen, certainly, has the right by the constitution to pardon any offenders against the law. She has the prerogative of mercy. But there can be no pardon, no mercy, till after an offence be proved in due course of law by accusation of the alleged offenders before the proper tribunals, followed by the plea of guilty or the jurors' verdict of guilty. And to select one man or six men for trial, condemnation, and punishment, out of, say, four millions who have really participated in the same alleged wicked, malicious, seditious, evil-disposed, and unlawful proceeding, is unfair to the six men, and unfair to the other 3,999,994 men—is a dereliction of duty on the part of the officers of the law, and is calculated to bring the administration of justice into disrepute. Equal justice is what the constitution demands. Under military authority an army may be decimated, and a few men may properly be punished, while the rest are left unpunished. But under a free constitution it is not so. Whoever breaks the law must be made amenable to punishment, or equal justice is not rendered to the subjects of the Queen. Is it not pertinent, therefore, gentlemen, for me to say to you this is an unwise proceeding which my prosecutors bid you to sanction by a verdict? I have heard it asked by a lawyer addressing this court as a question that must be answered in the negative—can you indict a whole nation? If such a proceeding as this prosecution against the peaceable procession of the 8th December receives the sanction of your verdict, that question must be answered in the affirmative. It will need only a crown prosecutor, an attorney-general, and a solicitor-general, two judges, and twelve jurors, all of the one mind, while all the other subjects of the Queen in Ireland are of a different mind, and the five millions and a half of the Queen's subjects of Ireland outside that circle of seventeen of her Majesty's subjects, may be indicted, convicted, and consigned to penal imprisonment in due form of law—a law as understood in political trials in Ireland. Gentlemen, I have thus far endeavoured to argue from the common sense of mankind, with which the principles of law must be in accord, that the peaceable procession of the 8th of December—that peaceable demonstration of the sentiment of millions of the Queen's subjects in Ireland—did not violate any of the seven conditions of the learned judge to the grand jury in defining what constitutes an illegal assembly at common law; and I have also argued that the prosecution is unwise, and calculated to excite discontent. Gentlemen, I shall now endeavour to show you that the procession of the 8th of December did not violate the statute entitled the Party Processions' Act. The learned judge in his charge told the grand jury that under this act all processions are illegal which carry weapons of offence, or which carry symbols calculated to promote the animosity of some other class of her Majesty's subjects. Applying the law to this case, his lordship remarked that the processions of the 8th of December had something of military array—that is, they went in regular order with a regular step. But, gentlemen, there were no arms in that procession, there were no symbols in that procession intended or calculated to provoke animosity in any other class of the Queen's subjects, or in any human creature. There were neither symbol, nor deed, or word intended to provoke animosity, and as to the military array—is it not absurd to attribute a warlike character to an unarmed and perfectly peaceful assemblage, in which there were some thousands of women and children? No offence was given or offered any human being. The authorities were so assured of the peacefulness and inoffensiveness of the assemblage that the police were withdrawn in a great measure from their ordinary duties of preventing disorders. And as to the remark that the people walked with a regular step, I need only say that was done for the sake of order and decorum. It would be merely to doubt whether you are men of common sense if I argued any further to satisfy you that the procession did not violate the Party Processions' Act, such as it is defined by the learned judge. The speech delivered on that occasion is an important element in forming a judgment upon the character and object of the procession. The speech declared the procession to be a peaceable expression of the opinion of those who composed it upon an important public transaction, an expression of sorrow and indignation at an act of the ministers of the government. It was a protest against that act—a protest which those who disapproved of it were entitled by the constitution to make, and which they made, peaceably and legitimately. Has not every individual of the millions of the Queen's subjects the right to say so say openly whether he approves or disapproves of any public act of the Queen's ministers? Has not all the Queen's subjects the right to say altogether if they can without disturbance of the Queen's peace? The procession enabled many thousands to do that without the least inconvenience or danger to themselves, and with no injury or offence to their neighbours. To prohibit or punish peaceful, inoffensive, orderly, and perfectly innocent processions upon pretence that they are constructively unlawful, is unconstitutional tyranny. Was it done because the ministers discovered that the terror of suspended habeas corpus had not in this matter stifled public opinion? Of course, if anything be prohibited by government, the people obey—of course I obey. I would not have held the procession had I not understood that it was permitted. But understanding that it was permitted, and so believing that it might serve the people for a safe and useful expression of their sentiment, I held the procession. I did not hold the procession because I believed it to be illegal, but because I believed it to be legal and understood it to be permitted. In this country it is not law that must rule a loyal citizen's conduct, but the caprice of the English ministers. For myself, I acknowledge that I submit to such a system of government unwillingly, and with constant hope for the restoration of the reign of law, but I do submit. Why at first did the ministers of the crown permit an expression of censure upon that judicial proceeding at Manchester by a procession—why did they not warn her Majesty's subjects against the danger of breaking the law? Was it not because they thought that the terrors of the suspended habeas corpus would be enough to prevent the people from coming openly forward at all to express their real sentiments? Was it because they found that so vehement and so general was the feeling of indignation at that unhappy transaction at Manchester that they did venture to come openly forward—with perfect peacefulness and most careful observance of the peace to express their real sentiments—that the ministry proclaimed down the procession, and now prosecute us in order to stifle public opinion? Gentlemen of the jury, I have said enough to convince any twelve reasonable men that there was nothing in my conduct in the matter of that procession which you can declare on your oaths to be "malicious, seditious, ill-disposed, and intended to disturb the peace and tranquility of the realm." I shall trouble you no further, except by asking you to listen to the summing up of this indictment, and, while you listen to judge between me and the attorney-general. I shall read you my words and his comment. Judge of us, Irish jurors, which of us two are guilty:—"Let us, therefore, conclude this proceeding by joining heartily, with hats off, in the prayer of those three men, 'God save Ireland.'" "Thereby," says the attorney-general in his indictment, "meaning, and intending to excite hatred, dislike, and animosity against her Majesty and the government, and bring into contempt the administration of justice and the laws of this realm, and cause strife and hatred between her Majesty's subjects in Ireland and in England, and to excite discontent and disaffection against her Majesty's government." Gentlemen, I have now done.

Mr. Martin sat down amidst loud and prolonged applause.

This splendid argument, close, searching, irresistible, gave the coup de grace to the crown case. The prisoners having called no evidence, according to honourable custom having almost the force of law, the prosecution was disentitled to any rejoinder. Nevertheless, the crown put up its ablest speaker—a man far surpassing in attainments as a lawyer and an orator both the Attorney and Solicitor-General—Mr. Ball, Q.C., to press against the accused that technical right which honourable usage reprehended as unfair! No doubt the crown authorities felt it was not a moment in which they could afford to be squeamish or scrupulous. The speeches of Mr. Sullivan and Mr. Martin had had a visible effect upon the jury—had, in fact, made shreds of the crown case; and so Mr. Ball was put up as the last hope of averting the "disaster" of a failure. He spoke with his accustomed ability and dignity, and made a powerful appeal in behalf of the crown. Then Mr. Justice Fitzgerald proceeded to charge the jury, which he did in his own peculiarly calm, precise, and perspicuous style. At the outset, referring to the protest of the accused against the conduct of the crown in the jury challenges, he administered a keen rebuke to the government officials. It was, he said, no doubt the strict legal right of the crown to act as it had done; yet, considering that this was a case in which the accused was accorded no corresponding privilege, the exercise of that right in such a manner by the crown certainly was, in his, Mr. Justice Fitzgerald's estimation, a subject for grave objection.

Here there was what the newspaper reporters call "sensation in court." What! Had it come to this, that one of the chief institutions of the land—a very pillar of the crown and government—namely,jury-packing, was to be reflected upon from the bench itself. Monstrous!

The charge, though mild in language, was pretty sharp on the "criminality" of such conduct as was imputed to the accused, yet certainly left some margin to the jury for the exercise of their opinion upon "the law and the facts."

At two o'clock in the afternoon the jury retired to consider their verdict, and as the judges at the same moment withdrew to their chamber, the pent-up feelings of the crowded audience instantly found vent in loud Babel-like expressions and interchange of comments on the charge, and conjectures as to the result. "Waiting for the verdict" is a scene that has often been described and painted. Everyone of course concluded that half-an-hour would in any case elapse before the anxiously watched jury-room door would open; but when the clock hands neared three, suspense intense and painful became more and more visible in every countenance. It seemed to be only now that men fully realized all that was at stake, all that was in peril, on this trial! A conviction in this case rendered the national colour of Ireland for ever more an illegal and forbidden emblem! A conviction in this case would degrade the symbol of nationality into a badge of faction! To every fevered anxious mind at this moment rose the troubled memories of gloomy times—the "dark and evil days" chronicled in that popular ballad, the music and words of which now seemed to haunt the watchers in the court:—

"Oh, Patrick, dear, and did you hear The news that's going round? The shamrock is by law forbid. To grow on Irish ground. No more St. Patrick's day we'll keep— His colour can't be seen, For there's a bloody law again The Wearing of the Green."