Government had directed that Cussen's trial should immediately take place. This was before Alicia Shelton had been betrayed into a recognition of the prisoner. She considered herself bound in honour not to give evidence to the detriment of one who had conferred a signal favour on herself. But, on the night of the attack, Cussen had also been seen and heard by her younger sister, whose bed-room window overlooked the back-yard, and who had witnessed the occurrence between them. Not considering herself bound by any personal ties of gratitude, and somewhat selfishly recollecting her own alarm rather than her brother's secured safety, Susanna Shelton declared that, for her part, she had no scruples in performing what she believed to be an act of justice to society. In addition, two of Cussen's followers, to save their own necks from the halter, promised, almost at the last moment, to turn king's evidence—but as there was no certainty of their remaining in the same mind, when put into the witness-box (or, rather, as it actually was, upon the table in the Court), not much reliance was placed upon them.
The Assizes being several months distant, it was resolved not to wait, and a special Commission was sent down for the immediate trial of all persons in custody under the Insurrection Act. At the same time, a messenger from the Castle of Dublin arrived at Rossmore with a subpœna to enforce the attendance of Miss Shelton and her sister, as witnesses on Cussen's trial, and they were taken away to Limerick, in a post-chaise, escorted by a troop of dragoons. Apartments and all suitable accommodation had been provided for them at Swinburne's—then the principal hotel in "the fair city of the Violated Treaty."
The trial is not forgotten by those who were present. The court-house of Limerick was crowded to the very roof. I am proud to say, as an Irishman, that among that large audience, there was not even one female. Irish propriety, by a conventional arrangement rather understood than expressed, very properly prohibits the appearance of any of the fair sex in a Court of Justice, except where necessarily present as a party, or called upon as a witness. I write of what was the rule some thirty years ago—matters may have changed since. On arraignment, Cussen pleaded "Not Guilty." After a long, fatiguing, and nearly inaudible speech—from Mr. Sergeant Goold—who had been eloquent, but, in his old age, had become the greatest proser, for a small man, at the Irish Bar—the evidence was gone into. The case had been skilfully got up, but, though no moral doubt could exist as to the prisoner's participation, if not leadership, in many Whiteboy offences, it may be doubted whether the proofs would have sufficed for a conviction in ordinary times. The two informers, on whose evidence much reliance had been placed, told their story volubly enough, but when the usher's wand was handed to them, that they might point at the prisoner in identification, each shook his head and affected never before to have seen him.
Cussen's equanimity was undisturbed throughout the early part of the trial. When Mr. Sergeant Goold, in stating the case, alluded to the attack on Churchtown, the prisoner said that, in the copy of the indictment with which he had been served, there was no charge against him save for certain transactions alleged to have taken place at Rossmore, and he desired to know whether it was purposed, or indeed whether it was legal, to state a case or give evidence out of the record? There was considerable sensation at this inquiry. The Judge replied that Counsel ought to confine himself to the charge in the indictment, and admitted that the prisoner had exercised no more than his undoubted right in checking the introduction of irrelevant matter. The Crown Counsel had only to bow and submit to the opinion and reproof of the Judge. The prisoner appearing disposed to speak again, the Judge asked whether he had any more to say? "Only this, my lord," said he, "that if it be my right, as prisoner, to check the introduction of irrelevant topics, having a tendency to prejudice me with the jury, it surely was your duty, as Judge, to have done so—particularly as mine is a case of life and death."
This was a well-merited reproof, given with a certain degree of dignity, and (for the Judge was a man of enlarged mind) did no injury to Cussen.
When Miss Shelton appeared on the table, Cussen appeared startled, for he had been given to understand that she had positively refused to appear against him—indeed, it had been reported that she had even gone to England to avoid it. Compelled to give her testimony, she detailed, in the plain and forcible language of truth, under what circumstances she had seen Cussen at Rossmore—what peril her brother had been threatened with—what supplications she had made in his behalf—how promptly the favour she had solicited had been granted—how kind the prisoner's words and demeanour to herself had been. She took occasion to add that her appearance as a witness was against her own desire. She was then asked to turn round and say whether she then saw the person who had acted as she had described. Not without great delay and hesitation—urged, indeed, by an intimation of the personal consequences of her contumacy—did she obey, but, at last, she did identify the prisoner, saying, "That is the man who saved my brother's life, at my entreaty, and stood between myself and outrage worse than death." Cussen respectfully acknowledged her evident feeling in his favour by making her a low bow as she went down.
Her sister, who was cast in a coarser mould of mind and body, exhibited no scruples, but gave her evidence with an undisguised antipathy towards the accused. The missing links, supplied by her testimony, made up a strong chain of evidence which, every one felt, it would be difficult for Cussen to beat down, in any manner. It was expected, almost as a matter of course, that he would trust to proving, by an alibi, the impossibility of his having been the person who was present on the occasion referred to by the witness. Every one who saw him in the dock, where his bearing was equally free from bravado and fear, anticipated some very ingenious, if not successful defence. He very slightly cross-examined the witnesses for the prosecution, and then only on points which bore on his personal conduct. He declined availing himself of the open assistance of counsel—though he had consulted eminent legal authorities on various technical points, while in prison. But for the place in which he stood, fenced in with iron spikes, and surrounded by the police, one might have thought him merely interested, as a spectator, in the circumstances evoked by the evidence, rather than one whose life depended on the issue. Cool, deliberate, and self-possessed, he entered on his defence.
It was of the briefest;—only a simple negation of the charge—a denial that, even with all probability of its being true, there was legal evidence of such a breach of the law as involved conviction and punishment—a regret that his identity should have been mistaken by the younger Miss Shelton, who, had he really been the person at Rossmore, had never, even on her own showing, been so close to him as for her to distinguish his features—an expression of gratitude to Alicia Shelton for her evident disinclination to injure one who she believed had treated her with kindness—a strong disclaimer of imputing wilful error to her, though he considered her sister not free from censure for her undisguised avidity in seizing upon every circumstance to convict him—a reckless assertion that, come what might, he had outlived the desire of existence, and was prepared for any fortune. Such was the substance of his address, delivered in a manner equally free from bravado and dread. He concluded by declaring that, already prejudged by public opinion (the newspapers, from the first, having roundly proclaimed that he, and none other, was or could be the true Captain Rock), and with the undue weight given to slight and evidently prejudiced evidence, he felt that his prospect of acquittal was small.
Mr. Sergeant Goold then arose to speak to the evidence for the Crown, and was interrupted by Cussen, who asked the Judge whether, when no evidence was called for the defence, the prisoner was not entitled, by himself or counsel, to the last word to the jury? Mr. Sergeant Goold answered that the Crown, in all cases, was entitled to the last speech, and appealed to the Judge for confirmation of the assertion. Cussen again addressed the Judge, and said that, in civil suits, the practice was certainly not to allow the plaintiff the last speech when the defendant did not call witnesses, for he had himself been a juryman, in the other court, when such a circumstance had occurred. The Judge's decision was that, if he pleased to insist upon it, the counsel for the Crown might desire and exercise the right of speaking to the evidence, even when, as in the present instance, the accused had called no witnesses, nor even made a defence. But, his Lordship added, perhaps under the circumstances, Mr. Sergeant Goold would not exercise the right. Goold grumbled, and fidgeted, and muttered unintelligible sentences about his duty, and finally, gathering up his papers, quitted the Court in a huff, with the air of a person mightily offended.