Alleged Conspiracy against a Police Magistrate in Dublin, 1845–46
[NOTE: The following incident takes place in Ireland rather than in England, but is nevertheless of interest to historians of homosexuality in nineteenth-century Britain.]
In June 1845 Thomas Connell Duffy, Esq., a Police Magistrate for the City of Dublin, began a prosecution of two men and a boy for conspiring to accuse him of indecent assault. The case opened at the Court of Queen's Bench, and was attended by many people, as it had excited great interest. Seven counts were in the indictment, which charged that Peter Scully, Paul Hanville (later called Hanvey), and John Milchreest (sometimes called Millcreest, and other spellings), "being persons of evil mind and disposition, did, on the 10th of April last, at Dalkey, unlawfully and maliciously amongst themselves conspire, combine, confederate, and agree to charge and accuse Thomas Connell Duffy with having attempted to commit the crime of sodomy." Some of the counts charged attempted sodomy, and some of them "imputed an object of obtaining money by so conspiring." The men pleaded Not Guilty.
Mr Brewster, counsel for the prosecution, apologised to the jury for having to present to them such a "very painful and distressing case". He would do so, he trusted, in the same way that prosecutions ought always to be opened". He acknowledged that Mr Duffy was a well respected gentleman in the area, and was in fact personally known to many members of the jury and the legal profession, "and on terms of friendship and intimacy with some of them for years; and it was no common aggravation of the crime imputed to the defendants, that they endeavoured to blast the character of such a man as Mr. Duffy for the attainment of a few shillings."
In opening the case, Mr Brewster acknowledged that the men could not have anticipated that Mr Duffy would have come to the place where the offence occurred, but suggested that they had made a general plan to accuse whoever had shown up that day (hence it was slightly different from other cases of conspiracy), and also that they had to take it for granted that they had intended to obtain money from the threat of accusation (as money had not actually been given to them after the accusation). It was fortunate that a man of Mr Duffy's strength of character was the victim in this instance – "Most men would rather suffer the matter to pass than expose themselves to the misery and pain of even being the objects of suspicion; for unfortunately it happened that all mankind looked with such just horror and disgust on the offence that the very suspicion of being guilty of it brings a condemnation. People shunned the man against who such an imputation was made, and no doubt these defendants knew that nine men out of ten would submit rather than come forward and bring them to justice. Mr. Duffy had taken the better and more manly course; he at once took measures to bring the parties to a knowledge of their crime, adn subject them to that punishment for it which the law provided."
After Mr Brewster detailed the facts of the case, he asked the jury especially to observe that "It was perfectly plain that as soon as Mr. Duffy announced himself a magistrate they abandoned their imputations; but if Mr. Duffy had made the attempt, was it to be supposed they would not have followed him out of the house and to the railway station; was it to be supposed they would not have taken the advantage of preferring the first charge? The moment he announced himself to be a magistrate, that moment they suffered him to go, for they were glad to escape the consequences of the act. These were the facts of the case which he would now leave in the hands of the jury. He trusted they would give such a verdict as would be satisfactory to their own consciences, and clear Mr. Duffy of one of the foulest and beastly imputations ever cast upon man."
The examination began with Mr Duffy describing the incident:
When cross-examined, Mr Duffy stated that "Mrs. Duffy sat on a bench outside the station-house; she was inside the ticket-gate, and after I had left her there I returned to see the engine-house; I tapped at the door seeing the light inside; the men in the station-house told me that I had about eighteen or twenty minutes before the starting of the next train; Scully opened the door; the other three men were standing very close to the window; I cannot say positively whether the engine was then at work or not; when I went up I cannot say whether the flywheel was at work or not; there is a railing all round the machinery to prevent persons from interfering with it or meeting with accident; when the machinery is at work there is considerable noise in the building."
At this stage a model of the engine-house was exhibited, and Mr Duffy "pointed out in the model the relative position occupied by him and the boy Scully." He then continued replying to the cross-examination, as follows:
A Mr. White corroborated the evidence of Mr. Duffy up to the time when the latter proceeded to the engine house; and added, "when I went to the engine house for the purpose of calling Mr. Duffy, I hear him say with a great deal of indignation, "I never heard of such a thing;" we then went to the house; I left them at Kingstown, and Mr. and Mrs. Duffy proceeded to Dublin. I did not ask Mr. Duffy for any explanation of the words, more than one or two indirect questions; I thought that the men might have been asked him for money; this was before we came up to where Mrs. Duffy was, and he might have told me of the circumstance before."
Thus closed the case for the prosecution.
Mr Hatchell, counsel for the defence, argued that "Assuming all that had been sworn was perfectly true, the indictment was not, in his opinion and that of his learned friends, made out. There were seven counts in the indictment, all of which charged a conspiracy between the three traversers #150; namely, Pat Scully, Hanville and Milcreest, premeditatedly concocted a conspiracy to extort money from the prosecution by charging him with an attempt to commit an indecent crime with Scully. Now, a conspiracy should of course precede an accusation, and this conspiracy was said to have taken place between those persons for the purpose of accusing a particular individual, the gentleman who had just been examined, and there was no proof of it – even upon assumption, from the testimony adduced, they should be acquitted. . . . It was manifest upon the evidence, and admitted by the prosecutor, that he never communicated his name, or was ever known to the parties previously; and yet he was the individual set out in the indictment as the person against whom they had previously conspired. They did not know him as Mr. Duffy, or as a magistrate. In fact, he was a perfect stranger to them at the time of their making the accusation, and it was not until after it was made that he stated who he was. How, then, could the parties have preconcertedly conspired to charge Mr. Duffy when they knew him not? In point of law it was not possible to sustain the indictment in that view of the case; and then, supposing that the parties had arranged amongst themselves that the first individual who came in should be charged with the offence, and that Mr. Duffy happened to be that individual, still he (Mr. Hatchell) contended that there was no evidence to sustain the charge, for Mr. Duffy himself had proved that all the money he gave – which was only sixpence – was given to Scully before he went up stairs at all, and he confessed that there was no demand or application for money made to him. There was not a particle of evidence on that point; and from the manner in which the prosecutor gave his evidence it was plain that nothing of the kind had occurred, and that when he communicated his name and stated his position, the traversers said, as if there were some mistake about the matter, "the door is open, Sir, and you may go away." It therefore occurred to him (Mr. H.), and his learned friends agree, that taking the whole case as it appeared in the worst point of view for the traversers, that there was nothing satisfactorily proved against them to sustain the indictment or any part of it, or upon which they could be found guilty of the henious offence imputed to them, for there was nothing to show that they had conspired to charge any persons who came into the house, or Mr. Duffy individually."
The Chief Justice, however, declined to direct the jury to acquit the defendants, and to let them decide the question of conspiracy. The counsel for the defence went on to observe that "if the jury should be of opinion that the whole transaction arose from a misconception or mistake, they should find a verdict of acquittal; and he (Mr. Hatchell) was happy to say that as jurors they could upon the evidence find such a verdict without leaving the slightest imputation upon the character of the prosecutor." He argued that "Mr. Duffy's case was that they were assembled in the telegraph room, when the boy and two men repeated the charge which one of the men alone had made in the gallery. That, however, was not the course taken. It was that those three persons formed a plan – had hatched and arranged to bring the present charge against Mr. Duffy, whom they never saw, or against any person – the first who might come it. Now to sustain that the jury should be satisfied that the traversers had plotted premeditatedly together and concoted a conspiracy to make money by charging the first visitor to the gallery with making an attempt of the kind against the boy, and they should go further and believe that they had such a design in view when Mr. Duffy was going up stairs at a time when they did not know his name. But now, he (Mr. Hatchell) would ask, could that take place – how could Scully, Hanville, and Milcreest conspire after Mr. Duffy went in, for Scully, went up at once with him to the room, or gallery, as it was called, while the two other remained below? The learned gentleman then recapitulated the evidence adduced for the prosecution at considerable length, and contended that no proof whatever of a conspiracy had been given. The first of the traversers to whom he would allude individually was Hanville who was in fact the fireman in attendance. That person was constantly there, passing back and forward between that and the telegraph room, watching the time by which alone the movements of the machinery were regulated. The second, Milcreest, the engineer of the establishment, watching the engine; and Scully was the look-out boy, whose duty it was to stand at the window in the upper room and callout when he saw the train passing under the second bridge, almost quarter of a mile from the terminus. These being the positions of the parties, and the engine being at work, was there anything extraordinary in the circumstances that Hanville, when he heard a cry, or whistle, as it had been called, although he would show that it was a cry, that he should run up for a moment and say, when he saw Scully near the windows and not attending to his business, "What is all this about?" That was the way in which he (Mr. Hatchell) could account for the expression imputed to Hanville; and then, when the other man came up and they saw Mr. Duffy's confusion, for he admitted that he was confused, it was no wonder that they should suspect and charge him with the offence. . . . Another strong fact in favour of the traversers was this – the prosecutor said that the machinery was not at work when he went in, but that it commenced to work shortly afterwards. Now, it was very well known that the engine was no sooner at work that it was accompanied by a most stunning noise coming from the air-pump, in addition to the ordinary one, something like second guns. In that state of things, he goes up, or he finds the engine working where he is, for he admitted it, and Hanville and Milcreest were of course both below minding their business, and if they heard a noise up stairs there was nothing more natural than to run up, fearing perhaps that the boy or Mr. Duffy had in some way come in contact with the machinery, and were in danger. And then, when it was seen that there was, in point of fact, no accident, but that Scully was not in his proper place, it was perfectly natural that he should call out in the manner described. What was then done? He returned almost immediately after making this remonstrance, and went to attend to the machinery, although Mr. Duffy denied that he made any remonstrance; but they would show from facts from which conclusions might be drawn, that he did – that he checked Scully for not being at the window, and then went down the returned again. Milcreest was differently circumstanced from the other men that evening; he was one of the engineers, and had been in the employment of the company from its formation, and always retained the highest character; but it so happened that from two o'clock that day he was not on duty; at that hour another engineer named Thompson relieved him, and went with a friend to Kingstown to fish, from which place he did not return until the half-past eight train, when he went into the engine house to see that all was right, and being there he went down to arrange one of the valves of the air pumps, as would be proved in evidence. After setting all to rights he had just come up from where the tube was situated, when Mr. Duffy came to the door, and he was talking to Hanville when he knocked, and when Scully opened the door and brought him up stairs. The machinery was then set to work, and Milcreest was talking still with Hanville, Thompson being at the engine, when the cry was heard, and he followed up Hanville fearing an accident had occurred. Thompson of course would not stir from the engine, and the other knowing the short interval that was for him to remain above as the train was to arrive in a few minutes after calling out – "what is all this about," he descended to mind his business, and the boy went to the "look-out" window when the train came up, and the engine was stopped, and they had all a respite from duty, and had come down stairs; the boy made the charge, and they made it, and the question was, did they do so to extort money, or did they do so by accident, suspecting that there was just ground for their supposition from the position of the parties? If they would be of opinion that there were no conspirators, and that there was not evidence to sustain such a charge, they should acquit the traversers, in acquitting them it was not, as he had before stated, at all necessary to impute to Mr. Duffy that he had any intention to commit the crime alleged; on the contrary, he (Mr. Hatchell) felt firmly persuaded that the whole matter might have originated in a misconception; therefore, he thought that the traversers might be declared innocent, and Mr. Duffy honourably acquitted of the slightest imputation which might be supposed to exist. The learned gentleman, in conclusion spoke very highly of the character of the traversers, which, he said he would prove to be most excellent by a host of witnesses. And in such a case he would say, under the direction of the court, that if there were even grounds for suspicion, and strong grounds, where there was still a doubt, they should get the benefit of it; for the law presumed that men of heretofore good character would not be guilty of any crime until it was proved in such a way as not to leave the faintest shadow of a reasonable doubt upon the minds of the jury."
The first witness for the defence was John Thomas Bergin, managing director of the Dublin and Kingston Railway Company:
Mr Bergin described the defendants as being of good character:
"Mr M'Henry Pim, managing proprietor of the late firm of James Pim and Col, City Quay Brewery, deposed that he knew John Millcreest from the year 1836 to 1838, when he had charge of the steam engine in their establishment, and he considered him a man of perfectly irreproachable character. He never knew him to be guilty of the slightest fault of any kind in his attendance or anything else. He was parted with very great regret."
"Mr. John M'Kenna, grocer and wine merchant, proved that Scully was in his employment at Dalkey, for six months, as messenger, before he went to the Kingstown Railway Company, and he never heard anything during that period in the slightest degree injurious to the boy's character."
"Mr. John Robinson deposed that he knew Hanville for a period of eighteen years, and he considered him to be a man of excellent character, and correct in every respect."
"Mr. John R. Fleming knew all the prisoners for upwards of a year and a half, and generally understood their characters to be excellent; he was particularly acquainted with Scully, and frequently entrusted him with money."
"Mr. Edward Hayes, proprietor of the Kingstown Hotel, deposed that Hanville was a member of a total abstinence society, over which witness acted as vice-president; and so far as came with his knowledge he bore a most excellent character; Scully also belonged to the society; he never heard anything which reflected on either of their characters."
Mr Curran, counsel for the prosecution, cross-examined Mr Hayes: "You are the vice-president of the Kingstown Total Abstinence Society: – I am, Sir. And a teetoller yourself Mr. Hayes? – The vice-president, sir. Surely you do not sell or recommend your liquors or wines to others. You know you are bound to discountenance intemperance. – What is that sir? It is not contrary to the pledge for a teetoller to recommend liquor in any shape to others? – I am sure you would not sell it. Did you every try me Mr. Curran?" (laughter in the court).
"John Molloy, a grocer and provision merchant, residing in Dalkey, deposed to he knew Scully for a long time, and he never heard the slightest insinuation against him until the present charge, whatever it might turn out to be."
John Leonard was examined by Mr Hatchell, counsel for the prosecution:
John Clare then testified: "I am employed as helper at the Dalkey engine-house; I recollect the evening of the 16th of April; my business on that particular evening was in the fireroom; I went into the engine-house at halfpast eight o'clock when the train came up; I was called upon to assist in doing something to repair the air pump; I was obliged to go down under the stair-case; Thompson was on duty; but he also assisted; Millcreest came in to help; I went down with Thompson to where the arrangement was required, and held the candle while he made some mechanical repair; we were about ten minutes there at that work; it wanted three minutes to nine o'clock when I came up, and I then proceeded to the fire room right through the building; I saw witness outside the glass door but not inside."
John Thompson, assistant engineer on the Dalkey line, was then examined: "I recollect the evening of the 16th of April when the nine o'clock train was expected up; the machinery in the engine house was at work, and in the discharge of my duty I was standing by the engine; it was my duty to remain there and not to stir until the train reached Dalkey; I did not go up to the gallery that night nor could I; I saw Mr. Duffy going out of the engine house by the back door; that was not the same way that he came in; before he went out there was some unpleasant language near the clock room between him and the other men; at that time there was no other person but Clare, Hanville, Millcreest, Scully, and Leonard about the place."
Richard Stephens was examined: "I reside at Kingstown; I knew the traverser Millcreest; on the afternoon of the 16th of April, he and I were fishing with rods off the Eastern pier of Kingstown harbour. When the clock struck eight he said it was time he should go, and we parted; Millcreest went in the direction of Dalkey. We were amusing ourselves fishing, but we drank nothing together that evening."
The case for the defence having closed, Mr. M'Donagh, Q.C., addressed the jury on behalf of the prosecution:
The Lord Chief Justice proceeded to charge the jury, and talked mainly about points of law and the definition of conspiracy:
The jury retired at five o'clock, and after a few minutes' deliberation, returned with a verdict of "Guilty" against all the prisoners, "amidst marked manifestations of approval from a crowded court."
Mr. Duffy (the prosecutor) addressed the Lord Chief Justice: "I implore your lordship to extend mercy to those unfortunate men. I have no vindicting feelings to gratify. My mind is now at perfect ease, as my character is fully relieved from all imputation by the verdict of twelve honest men. I have, therefore, to entreat that, under such circumstances, your lordship will be graciously pleased to attend to this recommendation."
The Foreman of the jury said that the jury also recommended mercy.
The Lord Chief Justice acknowledged the recommendations for mercy, but declined to pass sentence that day, and the court adjourned. The defendants were allowed to remain out on their own recognisance.
[SOURCE: Freeman's Journal and Daily Commercial Advertiser (Dublin, Ireland), Monday, 23 June 1845.]
After reporting the case so extensively, the Freeman's Journal in its editorial congratulated the jury for their Guilty verdict, and observed that the offence of which Mr Duffy was accused was "an offence unknown in Ireland – save as some incredible rumours of brutality reach us from the assizes of the sister Island. Out upon the revolting sisterhood!" The editors offered their congratulations "not only to Mr. Duffy, but to the Irish public, on the result of the judicial proceedings of Saturday. It is horrible to think that the exigencies of commerce, in introducing among us new importations of Englishmen, must introduce with them the possibility of so unnatural an offence ever taking place upon our soil. It is, if possible, still more frightful that the introduction of such characters introduces the probability of innocent persons – persons, perhaps, whose thoughts have never been sullied even with a knowledge of the existence of this offence in any land – being charged with its committal, for the purpose of extorting money. The circumstances in which Mr. Duffy was placed were most trying. The mere association of a man's name with the lightest rumour of such a charge, is a calamity of so horrible a nature, that the boldest might feel appalled by the breath of any ruffian who would dare to hint it, and a moment's weakness – nay, if the trap were well laid, a moment's prudence – might readily lead, even a bold man, into purchasing silence at any price that villany [sic] might desire to extort. Fortunately, Mr. Duffy, with a promptitude, a judgment, a courage, and a resolute perseverance, not often equalled, has dragged the whole case into the broadest light; and by doing so has not only maintained his own character unsullied under the most difficult ordeal, but has – who can doubt it? – saved many equally pure men from the alternative of extortion or infamy!" [Freeman's Journal, 23 June 1845]
No sentence seems to have been passed against the three convicted conspirators during the sitting of the Queen's Bench. This may have been postponed because the judge was aware of a significant new development: a new, separate case against Mr Duffy.
Early in August the county Grand Jury found a true bill against Thomas Connell Duffy, charging him with soliciting the youth Thomas Masons "to commit an unmentionable offence". The trial opened on 11 August 1845, at the Commission of Oyer and Terminer at the Queen's Bench. (Freeman's Journal, 11 Aug. 1845)
The Freeman's Journal for Tuesday 12 August 1845 reported that "the court was crowded to excess. Mr. Duffy came into court accompanied by the Right Rev. Dr. Kinsella, R.C. Bishop of Ossory, the Venerable Archdeacon of Lismore, Sir Richard Lanrishe, Bart.; Sir Richard Cox, Bart, Castleetown; Sir John Power, Bart., Kilfane; P.S. Butler, M.P.; Edward Lowler, D.L., county Kilkenny; Peter Connellan, D.L., county Kilkenny; William F. Fynn, J.P.; Robert Langrishe, Henry Baker, Loftus Fox, Thos. Bushe, Arthur Bushe, Frank Loyd Thomas, Edward Smithwick, ex-Mayor of Kilkenny; Richard Sullivan, and several other gentlemen."
Messrs. Armstrong, Q.C., and D'Dwyer, appeared for the crown, and Messrs. F.M'Donagh, Q.C., Monahan, Q.C., and John A. Curran, were for Mr. Duffy. "Mr. Curran applied to the court for liberty to allow Mr. Duffy to remain at the table with his counsel (where he was sitting)." The judges consulted, but declined this request, the Chief Justice said "it was better to adopt the usual course, and let Mr. Duffy take his place at the traverser's bar in order to have no distinction in the case." Mr Duffy according took his place at the defendant's bar, and the Clerk of the Crown then read an extract from the indictment, which charged that "on the 10th March last, at Beggar's Bush, the traverser did solicit one John Mason to commit an abominable crime. There were ten counts in the indictment; the fourth count was for an assault; and the 5th for a common assault; and the five remaining counts charged traverser with soliciting John Mason on the 19th March, at Newtown Park, &c." Mr Duffy pleaded Not Guilty. The prosecutor "then applied to the court for a postponement of the trial on the ground of a witness, named Garret Fennell, being absent. He was anxious for a full and fair investigation, but he could not proceed in the absence of the witness." The defence did not object, but asked for reassurance that the trial would begin the next day, otherwise it would be a great inconvenience and expence for the defence witnesses if it were postponed further. "The Court inquired where the witness resided, and was informed that he lived at Newtown Park, and that he was served personally." In the meantime, Mr Duffy was allowed out on his own recognisance. (Freeman's Journal, 12 Aug. 1845).
However, the Crown witness did not appear on the following day, and the trial was again postponed. On the day after that, when the trial resumed, the Crown witness still had not appeared, and the prosecution asked for a further postponement. "It being understood that Mr. Duffy's trial would take place the court was crowded to excess from an early hour, and much interest was evinced." They began reading several affidavits, "when Mr. M'Donagh said – Oh, my lord, I understand that Garrett Fennell is here. Mr. Walker, an officer of the court, says he saw him this moment at the door. Call him in. (Here two or three of the detectives left the court, and returned in a few seconds, with Fennell between them.)"
The court was crowded to excess, and Mr. Duffy was accompanied by the gentlemen who came into court with him on the previous days. After the jury was sworn in, there was a long legal discussion about whether or not a list of all witnesses for both sides needed to be drawn up before the witnesses could be asked to leave the court (and appear later one at a time, when they were called) so they would not hear one another's testimony. A list was not insisted upon, and the witnesses withdrew.
Mr Duffy stood at the bar, was read the five counts of the indictment (as given on the first day of the trial), and pleaded, in a firm voice, Not Guilty.
"Mr. Armstrong, Q.C., rose amid breathless attention to state the case for the crown. He said – My lords, and gentlemen of jury, I do entreat of you to believe that I rise to address you, on the part of the crown, in this case, with the most unaffected regret. I do assure you that I approach the consideration of this case with feelings of pain and regret, such as I seldom have had occasion to feel in the discharge of my professional duty. Gentlemen of the jury, I have this day to charge a gentleman, known it may be to most of you, but wholly unknown to myself except by character – a gentleman who, I understand, has, up to this time, maintained an unblemished reputation, and whom I know to have held a responsible employment in this city, as a magistrate of police. I have, I repeat, in the discharge of my duty, to charge that gentleman with the revolting offence, which you have heard described in the indictment. Gentlemen, on the part of the crown, in justice to Mr. Duffy, as well as to the public, I solicit your calm deliberation, and patient investigation of this case. If the case which I am instructed to bring forward be true, and be so regarded by you, your duty will be a plain, though painful one. If it be untrue, and that you be satisfied of the innocence of Mr. Duffy, no one, except himself, will leave this court with more heartfelt feelings of pleasure at his acquittal, than he who has the honour to address you. Gentlemen of the jury, Mr. Duffy is charged by this indictment with having, upon two several and distinct days, committed an assault upon a boy named John Mason, with the felonious intent which you have heard described. You will therefore have to consider first, whether the assault was committed on either of these days – next, whether if committed, it was committed with the intent stated; and thirdly, if you be of opinion that the assault was committed, but not with the intent charged in the indictment, you will have to find him guilty only of the common assault. Gentlemen, the principal witness in this case is a lad named John Mason, a boy 16 years of age, the son of a man respectable in his line of life, residing at Newtown Park, where he carries on the trade or calling of a smith and farrier. I am not aware that any evidence is furnished on either side of this case to show that previous to the transactions to which I shall have to call your attention any acquaintance or connection existed as between Mr. Duffy and this family of the Masons. It does not appear, as far as I am aware, that Mr. Duffy ever employed young Mason's father in his business as smith and farrier; on the contrary, the first introduction between them, as far as I can ascertain, appears to have taken place on the first occasion charged in the indictment. That occasion I will detail to you. Mason's father had a sow which, some time about the latter end of December last or the beginning of January, he sent from his residence in Newtownpark to receive the service of a boar which was the property of a man of the name of Newman who resided at Beggar's-bush, near Dublin. Young Mason was directed by his father to bring the sow to Beggar's-bush, and upon that occasion he was accompanied by a boy named Walsh who was employed for the purpose of aiding him to drive the sow. It will appear from the evidence to be adduced before you that when young Mason and the boy Walsh arrived in a field in which cabbages were growing or had been growing – not far from the barracks at Beggar's-bush – Mason was accosted by a gentleman who entered into conversation with him and asked him what his father's name was – where he lived, where he was going to, what was the object of his journey, and other questions of that kind. There is nothing very unnatural or unusual in that, but you will, perhaps, consider it somewhat remarkable that Mr. Duffy (for the traverser was the gentleman in question), not content with receiving answers to the questions which he had put to the boy, should have thought fit to accompany him to the place where the boar was lodged. Such, however, was the fact. He accompanied him to the yard where the boar was confined, and asked him, amongst other questions, what he was to pay for the service of the boar. The boy replied that he was to pay a shilling. Mr. Duffy made no observation just then, but continued to walk with Mason and Walsh until they came to a road which runs in front of the barracks, at Beggar's-bush. When they arrived there it will appear, from Mason's evidence, that Mr. Duffy went in advance of Mason, who, however, passed him immediately afterwards, and went on in the direction of the place where the boar was. It was not long, however, before Mr. Duffy again overtook the boy, and again addressing him asked him to accompany him and see what something was which he (Mr. Duffy) said he had himself discovered in a little garden close to the place. Mason deposited the sow in the yard with the boar, and having done so repaired to the garden pointed out by Mr. Duffy. there is a low wall bounding this garden abutting on the road. Mr. Duffy told the boy to look over that wall and tell him if he saw anything; Mason leaned over the wall accordingly, and it was while he was in this position, looking into the garden, that Mr. Duffy came behind him and acted in the manner which constituted the offence described in the indictment (counsel entered into some particulars unfit for publication). It will appear from the evidence to be adduced before you that this proceeding on the part of the traverser was repeated several times that day. Having left this spot Mason then went to the yard where the sow and boar were, and it will appear from the evidence, that while he was waiting for the sow, and leaning over the wall of the yard where [it] was, he was called again by Mr. Duffy, who again acted in the same manner as on the previous occasion. Now, gentlemen, if this be proved to your satisfaction it established an assault by Mr. Duffy on this boy; and then you will have to consider with what intent the assault was committed. At this stage of the narrative an extraordinary occurrence took place. Mr. Duffy is the person who pays the owner of the boar the shilling to which he was entitled as a fee. Now, if all this be true, does it not appear to you somewhat singular what motive could have induced Mr. Duffy to enter into conversation thus familiarly with a boy to whom he was an utter stranger – to walk by his side all along the road, and then voluntarily and of his own accord to pay the shilling which the boy of right should have paid. However, so it is – or so at least the evidence runs. That Mason was accompanied by the boy, Walsh, there can be no doubt whatever. That a gentleman met them and accompanied Mason on his way, is also a matter on which you can entertain no doubt, and the only question that remains for your consideration is, who that gentleman was? If you believe the evidence there can be no doubt that he was the traverser. But the transaction does not end there. When Mason, his business having been disposed of, was returning home, Mr. Duffy walked back again with him. – Now, remember that at this time they were at Beggar's-bush. Mr. Duffy lives, I believe, in Pembroke-street, but instead of going in that direction, he turns his back on home, and walks with Mason and Walshe in the direction of Newtown Park. It is for you to say with what object and intent he did so. When they again came to that little garden I have spoken of, where the first transaction took place. Mr. Duffy against asked Mason to look over the wall, and see if he could see anything. Mason did so accordingly, and the same proceeding was again resorted to by Mr. Duffy. The journey was resumed. Mr. Duffy and Mason still continued to walk together, and just before crossing Ball's-bridge, Mr. Duffy called at the gate lodge of a place called Brook lawn, and made some inquiries there of a woman respecting a little dog he had lost, and which he said he heard was in her house. They then walked on to Merrion, during their progress to which place many of those assaults to which I have already alluded took place on the part of Mr. Duffy. While they were on the road to Merrion, they were overtaken by a hackney car, on which were seated a lady and gentleman. We have not been able to discover that lady and gentleman – nor their car, nor the driver; but it will be given in evidence to you, that when the car came up, the persons seated on it appeared to be acquaintances of Mr. Duffy, and invited him to get up. He did so, and drove with them on the car for a short period, but when the car arrived at the road near Booterstown which leads to the railway station, Mr. Duffy got off and walked for a while in the direction of the station-house. As soon, however, as the car was out of sight he turned back without going to the station-house, and walked on the Rock road in the direction of the Rock. About this time Mason was overtaken on the road by the witness, Garrett Fennell, whom Mason requested to remain by his side, until he should have passed a gentleman on the road before him whom he did not wish to meet. Fennell did remain with him until that gentleman was passed and that gentleman was Mr. Duffy. Now it is clear that this Fennell is a most important witness for the ascertainment of the truth of this case. If he tells the truth and proves what I detail, you can ascertain no doubt, I take it, of the truth of the entire story. Fennell had abundant opportunity of being acquainted with Mr. Duffy's person, having repeatedly seen him at the Victoria Baths where he was an attendant, and he, I understand, will have no difficulty in identifying the traverser as the person whom he and Mason passed on the road, and whom Mason was anxious to avoid. – Such, gentlemen, is the history of the first transaction with which the indictment is conversant. The next occasion on which this boy met Mr. Duffy was in a month or three weeks afterwards, when he met him at the gate of Sir William Betham's demesne, at Stradbrooke, near the Newton Park-road. Mason was returning home after bringing to Mr. Lecky, of Longford Terrace, a horse belonging to that gentleman which had been shod by his father. When he arrived at the part of the road I have described Mr. Duffy came up. He was sitting on a car, and when he saw Mason he got off and dismissed the driver. If you believe the story this will be an important consideration – what brought Mr. Duffy out in that direction that day? and why did he get off the car as soon as he saw Mason? That he did so will be proved to you. I should state, however, before I go farther, that on that very day he called at the house of Mason's father to inquire after the boy who had been driving the sow some weeks before. He was told that he had gone with a horse to Longford Terrace. Mr. Duffy asked where that was, and having been informed, went in the direction of it. What brought Mr. Duffy to the house of Mason's father that day? or what business had he to inquire for his boy, who had been driving the sow. If you believe that he did so, Mr. Duffy's identity and connection with the transaction of the first day is at once established. These, gentlemen, are the considerations with which your attention will be occupied. Gentlemen, it will appear from the evidence that Mr. Duffy having again fallen into Mason's company near Newtown Park, asked him to walk down a portion of the road with him, which Mason, after some hesitation, consented to do. They came to a portion of the road where there is a hedge, and Mr. Duffy told him to look through and see if he saw anything in the field; the boy did so, and Mr. Duffy repeated the same description of assault which he had committed on the previous occasion. It will also appear in evidence that while the boy was leaning thus over the wall Mr. Duffy put his hands into his trousers and —— (the sequel of the statement is unfit for publication). The boy felt indignant, and asked the traverser what he was about. The traverser replied "Oh nothing, nothing," and offered him a shilling; Mason refused it, but Mr. Duffy slipped it into the breast of his leathern apron, where it remained till he reached home. The next occasion which Mr. Duffy appears to have been with Mason was on the 18th June, when Mr. Duffy on that day called at Mason's father's house upon a car and offered young Mason a pocket-book (containing 4 silver coins) which he said he had found upon the road; Mason refused them and Mr. Duffy thereupon offered them to George Byrne, the foreman, telling him that he should give it to the owner if he called to claim it, but that if no owner appeared he might keep it himself. That pocket book will be produced before you. Mason handed it over to the police, and in their possession it has remained from that hour to the present. Gentlemen of the jury, I have now discharged my painful duty; I implore of you to sift this case with patience and anxiety for Mr. Duffy's sake as well as for the sake of the public. If the evidence does not satisfy you of the traverser's guilt it will be your happy duty to send him free and unblemished out of this courthouse, but if on the other hand, the evidence leaves no doubt of the charge, no sympathy, no feelings of sorrow or of compassion, should prevent you from fearlessly discharging that duty which, as citizens, you owe to society and which the deep obligation of your owath has imposed on you."
John Mason was then called and examined. The news reported observed that "He is an intelligent lad of rather prepossessing appearance, but with an inharmonious and effeminate voice." He deposed as follows:
"I am going on sixteen years of age;; my father's name is William Mason; he is a smith and farrier; he lives at Newtown Park, which is, I think, a mile from the Blackrock; I recollect going sometime ago with a sow to Beggar's bush for my father; I wanted to procure the service of a boar for the sow; I think this was in January last, but I am not sure; James Walshe went along with me to help me to drive the sow; after crossing Ball's-bridge I was joined by a gentleman; that gentleman was Mr. Duffy; I did not then know who he was; he entered into conversation with me; he asked me different questions, such as my father's name and trade, and the name of my landlord and other questions; I think I told him Mr. Thomas was my landlord, but I am not sure; Mr. Duffy walked on before me in the direction of the place to which I was going with the sow; I told him where I was going, and how much I had to pay for the service; the board was at Beggar-s-bush; the owner of it was a Mr. Newman; I went with the sow; I brought her into the yard where the boar was; I left her there; I had to wait for some time, for the man was not at home; while I was waiting there Mr. Duffy asked me to go down with him to a little garden where he said he had seen something; he wished me to go with him and tell him what it was; he said he did not know himself what it was; I complied; I went down to a little garden wall; in the garden were some cabbages and I think some apple-trees also; he asked me to look over the wall to see could I see any thing; I looked over the wall; while I was leaning over the wall Mr. Duffy began to bump against me. (The witness described the particulars of the alleged assault which are unfit for publication.) I told him I could not see anything; he went a little bit higher and looked over the wall himself; he told me to follow him and see could I see anything there; I did so and looked over the wall; he treated me in precisely the same manner again; I am not sure how often this happened at the garden wall; I was dressed in a barragon suit; I then went to where the sow was; the gentleman accompanied me to the place where the sow was; the sow was not ready; I was standing against the wall waiting for her when Mr. Duffy came up to me again and treated me as before; the wall was about breast high; I was stooping over it looking into the yard; Mr. Duffy paid for the service of the boar; I did not ask him to do so; I told him I had money for the purpose myself and I took it out of my hand; when the sow was ready I went home by Mr. Turner's road at the back of Beggar's-bush; Walsh was driving the sow; Mr. Duffy came on with me still; I walked part of the time on the footway and part on the road; Mr. Duffy called at a gate-lodge, and asked something about a dog of his, which he said he was told was there; after I came out of the yard with the sow, and before we arrived at the lodge, I again looked over the wall at his request; he told me again to look, and try if I could see anything; I did so, and again he treated me as before. (Witness again described the alleged assault.) At the lodge he first asked a child, and then a woman, about the dog; I would know the woman again; after leaving the gate-lodge, I went in the direction of Ball's-bridge, on the Rock Road; I know where Merrion Churchyard is; at different placed along the road between Ball's-bridge and Merrion he asked me to look over the wall and try could I see anything; the sea was on the left-hand side; the wall between the sea and us was about as high as my breast; he repeated the assault again when we had arrived near a public-house on the Rock Road, kept by a man named Flannagan; there is a small wall and a little cabbage-garden there, as well as I remember; he looked over the wall first himself, and then bade me do so; I complied and we acted as on the previous occasions; I am not sure if this occurred more than once before I came to Merrion Churchyard; at Merrion Churchyard a car overtook us, with a lady and gentleman on it; I do not know who they were; Mr. Duffy was walking before me at the time; they seemed to know him and, I think, they asked him to get up; he did get up; the car drove on, and stopped at Botterstown, at the corner of the road leading to the railway station; he got off the car there, and went down that road; the car with the lady and gentleman went on in the direction of the Rock; Mr. Duffy turned back after he had gone a short way down the road to the station-house, and went a short way down the Rock road, in the direction of the Rock, which was the direction in which I was going; a boy overtook me coming from Dublin about this time; I can't tell how far I was at the time from the road leading to the station; that boy's name was Garrett Fennell; he lives at Stradbrooke, half-a-mile from my father's place; I knew him for a long time before; I walked with that boy, from the time he overtook me, until we met with Mr. Duffy again; I called Fennell's attention to a gentleman on the road that day; the gentleman whom I thus pointed out was Mr. Duffy; I can't exactly say whereabouts he was at the time; I think I had passed the turn down to Booterstown station at the time I pointed him out; I saw no more of the gentleman that day after that. (Witness identified the traverser.) I saw Mr. Duffy again in some short time after; I can't exactly say how soon after; I met him on the second occasion opposite Sir William Betham's back gate on a road, which leads from Newtown Park, to the Bray road; it was in the evening; I think I had dined; I had been at Mr. Lecky's, at Longford-terrace, whither I had gone with a mare that had been shod by my father; Mr. Duffy was on a car; it was an outside hackney car; he got off the car at Sir William Betham's gate; he dismissed the carman; he asked to go down the road with him in the direction of the Bray road; I was dressed in my barragan dress – the dress I work in; he asked me to look in through a hedge that was broken which I did; it is a large hedge; I do not know whether it is a clipped hedge; it is a high one; there is a wall inside the hedge; he told me to look in and see could I see any thing; he put his hand down my trowsers while I was looking through the hedge; my face was towards the hedge; I turned round and aske him what he wanted; he replied, "Oh, nothing, nothing;" he offered me a shilling, which I said I would not take; I had a leathern apron on me; he put the shilling into the breast of it; after that he again asked me to go down the road with him; I said I had not time as my father was from home; he said he would not keep me long; I went as far as the corner; people were passing to and fro; I said I could wait no longer and went home; he turned towards Temple Hill then, and I went home to my father's place; I know George Byrne; he is my father's journeyman; I can't say that when I got home that evening I gave any directions to Byrne respecting Mr. Duffy if he should call any more; I think it was on the next day I gave directions before the gentleman parted with me and after he gave me the shilling he said he would call to me again in a short time, and bring me something worth while or something good; that evening after I went home I saw my mother; I am not sure whether I gave her any directions respecting Mr. Duffy that evening; I remember the 18th June last, the review day; I saw Mr. Duffy that day; I don't remember what time of the day it was when I saw him; I saw him at the door either of my father's dwelling-house or of his forge; I came out of the house and saw Mr. Duffy; Mr. Duffy offered me a pocket-book, which he said he had found; he showed me coins that were in it; I think they were foreign coins; there were four in it; two of them looked like large shillings; a third had the figure three on it, and the fourth was like a sixpenny piece; he told me he had found the pocket book; I did not take it from him, for I said something might have fallen out of it before I got it; and that it might perhaps be laid to my account hereafter; he then gave it to George Byrne and told him to keep it till he would get an answer; he came on a hack car; the driver told him he ought to give it to the first policeman he met; Mr. Duffy said that Byrne would do as well, for that he would give it to any one who would call for it, and that if not he might keep it; I did not see Mr. Duffy again until I was swearing my informations before Mr. Studdert (witness again identified the traverser as the person who called at his father's house); my father never to my knowledge did any work for him; I never saw him in my life until I met him when I was driving the sow (witness identified the pocket book and three of the coins)."
Mason was then cross-examined by the counsel for the defence, who tried to confuse him about the dates when he saw Mr Duffy. Mason, exasperated, said "I can't say whether it was this year or last; it was either in the latter end of the one or the beginning of the other; I can't tell you what day of the week it was, nor whether it was in the early or latter part of the month . . .". Mason added some further information: "when we were together we met a policeman; the policeman and Mr. Duffy exchanged some words; I know the celebrated Inspector O'Connor; I never since that day saw the policeman we met; I never to my knowledge saw him in O'Connor's company; he was dressed in police uniform, but I don't know whether he was a detective; I know some of the detectives; I hear that Mr. O'Connor is a detective; I have the proud privilege of Mr. Barnes' acquaintance (laughter); I know another detective of the name of Prender or Hender . . .".
Mr D'Donagh, for the defence, continued his cross-examination: "That assault which took place at some hour, of some day, of some week, of some month, of some year, that you are unable to specify – an assault in the face of the whole world, and in the blaze of noon day! What a likely story!" He also tried to confuse Mason as to how many times the assaults occurred. As the detailed cross-examination proceeded, Mason said "I don't remember whether it was a thick or a thin apron I had on me, but as I am only an apprentice I suppose it was a thin one; I don't consider myself the cleverest chap wot is, nor any way clever at all". Mason was forced to admit that two or three years previously he had made up a story about a coachman's mother being sick (unconnected with the present case, and unconnected with any sexual accusations). After two and a half hours, Mason retired, having (in the view of the defence) exposed himself as a person with a weak sense of morality.
Garrett Fennel then took the stand, and confirmed most of Mason's story, also confirming that it was difficult to remember exactly when the incident happened: "I cannot tell at what time of the year, or whether it was before or after Christmas; it is so long ago that I cannot say, or what part of the road I met them; when Mason came up he pointed to a gentleman who was standing over against a wall on the road side; I know the Victoria Baths at Kingstown; I was two years or two seasons there as attendant; during that time I believe I had seen Mr. Duffy, the traverser, at those baths, but I am not quite sure; ;to the best of my opinion it was Mr. Duffy, but I cannot exactly say; to the best of my belief I had seen the person pointed out on the road by Mason at the baths; I do not know that I ever attended him; I saw him there about ten times; that was before Mason pointed him out to me." Upon cross-examination, Fennell that to the best of his knowledge the man pointed out by Mason was Mr. Duffy, but that upon his oath he could not be absolutely certain that Duffy was the man he saw at the Baths. Fennell further acknowledged that he had tried to avoid being called as a witness. He further acknowledged that he could not be absolutely certain he could identify Mr Duffy, as it had been three years since he worked in the Baths: "I am not sure he was the same gentleman; I would not, of course, be able to recognise every person I ever saw at those baths." Regarding his hesitance at appearing, "Mason had some conversation with me; he said that I should not be at any loss for any time; he did not tell me that I would be rewarded for giving evidence; it is a bit word to say 'that I should not be at any loss,' but all I understood it to convey was that I should not be without payment for the loss of my time in going in and out from Newtown Park to the Castle." He acknowledged that Surperintendant O'Connor, of the detective police, " gave me 11s. 6d. for the time I had lost coming into the investigation."
James Walsh, "a young lad apparently not more than nine years of age", confirmed to Judge Jackson that he knew the nature of an oath, and was then examined. He confirmed that he had been with Mason to Beggar's-bush on 29th March, and that he saw Mr Duffy speak to Mason on the footpath near one of the railway arches, and that Duffy later walked with Mason along the road. He said he had noted the incident in his copy-book for the 29th, and denied that the police had told him that the 29th was the day given in the indictment. After being badgered during his cross-examination, he contradicted himself about when he first knew Mr Duffy's name, before or after the incident. One Juror said "Had you any idea, witness, that you are giving testimony under the obligation of an oath?" But another Juror pointed out that "He is under the influence that a child of his years must necessarily be in such a position, and on such an occasion." "The witness appeared greatly confused, and tremblingly hung down his head."
It transpired that Sergeant Barnes of the detective police had brought Walsh into the public gallery on the day that Duffy was indicted. He had been instructed either by a policeman or someone else to identify Mr Duffy as the man in a blue neckcloth who was pointed out to him in the hall outside the court, before he appeared to give his testimony. "The witness's statement in reference to the conduct of those who had direct his attention to Mr. Duffy, with the view of identification, created marked sensation in court. Judges, jury, counsel, and spectators, appeared literally astounded."
Thomas Newman then gave evidence. He confirmed that John Mason had come, accompanied by a gentleman with large whiskers, to his house last winter with a sow. He declared that Mr Duffy (who was clean-shaven) did not resemble that gentleman.
George Byrne was then examined, and confirmed that Mr Duffy had asked for young Mason at his father's forge sometime between the 12th and 18th February, and renewed his visit on 18th June. Under cross-examination, the counsel for the defence tried to undermine his character: "the witness admitted that on one occasion he had been to a house of ill fame in Goat-alley where he was robbed of a set of horse-shoe tools; that happened in the daylight when he was perfectly sober; he prosecuted the girls who committed the theft; on one occasion he was fined 2s 6d for being drunk, and suffered 48 hours' imprisonment; he was not an habitual swearer" etc. He swore he did not know Mr Duffy's name before February.
Brian Devlin, the car driver, confirmed that he had driven Mr Duffy from Kingstown around by Newtown Park, and that Duffy had seen the pocket book in the road, and stopped by Mason's father's forge, where he gave the pocket book to George Byrne. Byrne "asked in a sort of whisper – evidently wishing that Mr. Duffy should not hear him – 'who is the gentleman with you?' and was told it was Mr Duffy.
Bridget O'Hara testified about the gentleman in the company of Mason calling at Dawson Grove to inquire about a dog that he had lost, but she declared that that gentleman was a fat round-faced person and definitely was not Mr Duffy.
This ended the case for the prosecution. Mr M'Donagh then addressed the jury in defence of Mf Duffy, "in a brilliant, powerful, and most eloquent speech". He asserted that "insidious efforts were made [by the prosecution] to foster prejudices, to excite hostile feelings, to poison the public mind against the unfortunate gentleman then on his trial, through the instrumentality of indistinct yet malicious rumours and ambiguous voices, cause for embarrassment existed. The activity and skill of the detective force had been wickedly set in motion to achieve the ruin the compass the destruction of Mr. Duffy." He went on to say that Mr Duffy's unimpeachable character would persuade the jury "to acquit him from the imputation of an abominable, disgusting, unnatural crime – a crime that stood without parallel in the catalogue of infamy – a crime disgraceful to manhood, but that, he thanked his God, was unknown in the land of Mr. Duffy's birth, as it also was in the sister countries. Mr. Duffy came from Kilkenny. Gentlemen connected with the county would be produced to attest to Mr. Duffy's sedateness, morality, and high sense of religion. The Catholic bishop of Kilkenny who had known Mr. Duffy from his childhood, would speak as to the opinion he entertained regarding him. But it was not merely to the circle of Mr. Duffy's friends that he would confidently appeal for character. Two divines of the Protestant church, to which Mr. Duffy did not belong, would depose to his general reputation for a number of years that he passed in his native county – men who had flocked up from Kilkenny would swear upon their solemn oaths that they did not believe him guilty of the crime laid to his charge." He noted that Mr. Duffy was 50 years old, and with an unblemished reputation. "Having alluded to the monstrous improbability of the story got up against his client, the veryi contemplation of the supposed guilt sickening the understanding, and declared that nothing more wicked or more foolish could be imagined, the learned gentleman minutely described the scene of the alleged offence, and asked was it credible that in such a place, so exposed and so public, a man of sound judgment as Mr. Duffy unquestionably was, and not tained by madness or eccentricity would have perpetrated to beastly and so fearful a crime."
Counsel for the defence pointed out that all the evidence rested upon the solitary statement of Mason. The fact that Mason did not bring charges immediately, but apparently concealed it for several months, weakens any trust in it. "To an innocent boy the occurrence would have appeared so extraordinary that he would not have failed to mention it; and if they supposed him other than innocent, then no credit was due to a conscious participator in such an odious crime." Mason had simply fallen in with a conspiracy: "Mr. Duffy, it appeared, on some occasions, had given offence to the members of the police force. That was the extent of his guilt and misfortune. It was on that account they found him arraigned at a bar of justice, to answer a charge, devised, concocted, and deliberately planned by some of that force." "Why, it was an insult to the common sense of an intelligent jury, to ask them to credit the monstrous, the preposterous, the nonsensical story which was narrated on the part of the prosecution. . . . he fearlessly appealed to the experience of the jury to say whether a narrative so incoherent, so disjointed, so unnatural, so monstrously preposterous, as that which was conveyed in that evidence, had ever been submitted to their consideration. The collateral evidence was unnatural, incoherent, inconsistent, and contradictory; and the main body of the evidence was utterly without confirmation. What witness had bene produced to substantiate and confirm the ridiculous story of Mason? Not one. And would the jury convict a respectable gentleman of unblemished character, on the unsupported evidence of the companion and confidante of the heartless, graceless profligate – George Byrne? No doubt Mason was a clever, shrewd boy – a cleverer he had never met; but the disposition he had evinced to enter every moment into logical disquisitions and casuistical subtleties was not calculated to produce a very favourable impression on an intelligent and respectable jury, such as the present, for it afforded grounds for suspecting that his mind was not a candid or ingenuous one, nor his cause the case of truth." "The spy system was outdone. The detectives had transcended themselves. . . . Who had they made their tool and instrument in his unheard-of prosecution? A child – an innocent child of nine years old! . . . he knew no more about Mr. Duffy than he knew of Prince Hamlet. They never produced this boy at the police-office; but from day to day they kept training him like a parrot or a pigeon. They brought him into the gallery and pointed out a gentleman with a blue handkerchief on his neck. 'Look,' said they, 'look, child, at the gentleman with the blue stock – never take your eye from off that blue stock – the wearer is Mr. Duffy." Mason was an acknowledged liar, and George Byrne "most probably would leave court to spend his crown-money in Goat-alley." "Heavens, what a narrative or dark and deadly guilt had been concocted upon so slight a matter as the finding of a pocket-book".
The Right Rev. Dr. Kinsella, Roman Catholic Bishop of Ossory, was examined. He said he had known Mr Duffy for 16 years, and confirmed his morality, integrity, religion, and veracity. "I never met a more affectionately attached husband".
The Rev. Sir Richard Langrishe examined. He had known Mr Duffy since he was a little boy; he confirmed his character for morality and religion. "I never saw a more affectionate or more attached husband than he always proved himself to be."
The case was then adjourned to the following morning. "The Court remained crowded until the adjournment was announced, and a vast mass of persons were collected outside the building in expectation of hearing the result. When Mr. Duffy made his appearance in the street he was loudly cheered." (Freeman's Journal, Thursday 14 Aug. 1845)
On Thursday 14 August 1845 the trial resumed to great expectation. "At an early hour yesterday [i.e. Thursday8] the streets in the vicinity of the court was much crowded biy persons anxious to obtain admittance, adn through town generally the deepest interest was felt for the result. The doors of the court were thrown open soon after half-past nine, and immediately every available space, not even excepting the bar seats, was filled to inconvenience. Mr. Duffy, accompanied by several friends, arrived at a quarter past ten, adn precisely at half-past ten the Lord Chief Justice and Mr. Justice Jackson took their seats on the bench." The jury was recalled, and the case for the defence resumed.
A host of religious and respectable persons appeared to testify to Mr Duffy's honest, upright, moral, and religious character, and his kind affection for his wife: the Venerable Archdeacon Power of Lismore; Peter Connellan, Esq., a magistrate and deputy lieutenant for the county Kilkenny; Wm. Francis Finn, Esq., Member of Parliament; Sir John Power, baronet; Arthur Bushe, Esq., son of the late Lord Chief Justice of the Queen's Bench – I am father of a family; he is intimate with my family, and would not be so if he were not a moral and religious man"; Thomas Bushe, Esq., brother of Thomas Bushe – "he and his lady live on the best and most affectionate terms"; Henry Baker, Esq.; the Rev. Robert H. Langrishe; the Rev. Charles Joseph Finn, parish priest of Donnybrook and Irishtown – a Juror objected that Mr Finn did not know Mr Duffy personally, only his general character as a member of his parish, and Judge Jackson agreed this was not legal evidence; Richard Sullivan, Esq., M.P., who knew him as a schoolfellow; Dr. Graves; Robert Bushe Fox.
Margaret Riordan confirmed that Thomas Newman kept a boar, and remembered seeing "a boy with a pig" (i.e. Mason), and "some one like a gentleman", but she had known Mr Duffy for twelve years, "and upon my oath Mr. Duffy was not the man, "he was a yellow man with black whiskers; I am positive that he was not Mr. Duffy, nor was there any resemblance except in the side figure" (i.e. in the side view). Her sister Maria Porter corroborated her story. Their mother Esther Newman was examined, and confirmed that Mr Duffy was not the gentleman. She also said that "Mr. Studdert asked to see my husband, and he pulled another man who was with him by the sleeve, saying, 'come on, we can get no satisfaction here, it is the man himself we want to see.'" Judge Jackson ordered that the three women should be kept in court. These three women had previously mentioned to Mr Studdard and detective O'Connor that Duffy was not the gentleman, but they were not asked to give them information in the original investigation.
John E. Roche, a solicitor engaged professionally in the case, said they were not allowed to produce any witnesses at that original examination, hence the non-examination of the women at the Castle, and said he was kept from being present at the examination of other witnesses. Judge Jackson observed that "We are not going to try the conduct of O'Connor, he not being here to defend himself." The case for the defence closed.
John O'Dywer addressed the court in reply for the Crown (i.e. the prosecution). He said it was not the duty of the jury to try the actions of Superintendant O'Connor or the members of the detective police, nor was it his duty to defend them. That was outside the scope of this trial. He did not question the honesty of the character witnesses for Mr Duffy, "but character, valuable as it was, and powerful as it was as a shield and a protection, could not, he respectfully submitted, extend any farther than a strong – and, as in this instance, he fully admitted – the strongest presumption of innocence. But, unfortunately for human nature, it had so happened that persons bearing the highest moral, virtuous, and religious character, had forfeited that character which they had previously borne, and upon the evidence of sworn witnesses in a court of justice, been convicted of crime. . . . No matter what might have been a man's private character . . . these could not do away with proved, sworn testimony, . . . and upon the faithworthiness and value of that testimony the jury were to decide. The case had been assailed in very strong language by Mr. M'Donagh as a fabrication, and as a conspiracy, and it would be for them to say, upon their oaths, did they believe that young Mason and Byrne, and the other witnesses, were embarked in a reckless and abominable conspiracy to take away the character – a character dearer to him than life, of Mr. Duffy. That was the proposition submitted to them by Mr. M'Donagh, and though in the latter part of his speech he endeavoured – plausibly as he always did – to show that it was consistent to acquit Mr. Duffy, and at the same time not to convict Mason of perjury – yet, the nine-tenths of his speech was a direct charge and accusation, that the entire matter was the result of a deep laid conspiracy, fabrication, and combination."
He then reviewed the evidence of Mason, "dwelling on the clear and positive manner in which it was given, and the corroboration it had received from other witnesses, for the purpose of proving that the evidence was a simple detail matter of fact, and not a concocted or fabricated story." He did not think that the subtle argument that another unknown gentleman might have been mistaken for Mr Duffy could hold: "Mason should either be swearing a palpable, deliberate, and determined falsehood, or he was right in the identification." He pointed out that the three women had claimed to have known Mr Duffy for twelve years, whereas Mr Duffy had been a resident in Dublin for no more than six years – so either they were committing perjury, or their evidence concerned an entirely different occasion, irrelevant to the present case.
The prosecution ended its address, and Justice Jackson proceeded to charge the jury. He began to review the evidence, beginning with the fact that Mr Duffy had "as high character as ever was given to any person ever charged with an offence in a criminal court", and that he was accused of "One of the most abominable and disgusting offences which it is possible to lay to the charge of a man" – (in other words, he clearly felt there was an impossible discrepancy here). He pointed out that "The charges contained in this indictment do not amount to felony. The crime which it is alleged the traverser contemplated is not stated to have been consummated. And nothing is charged against him on the face of the indictment beyond that which in point of law amounts to a misdemeanour. Still, gentlemen of the jury, there is involved in it, so far as the mind and intention are concerned, the full amount, in my opinion, of the moral turpitude and abomination which is involved in the commission of that detestable crime itself." Though the indictment involved ten separate counts regarding separate acts, the whole case could be considered as having three possible points of view: First, that Mason's account was true in its details and that Mr Duffy was the person engaged in these acts. Second, that all the facts and circumstances were true, but there is a mistake as to who took the part imputed to Mr Duffy – i.e. it was some other gentleman. The third view is "that this charge is from the beginning to the end a gross fabrication." And furthermore, the suggestion had been made that this fabrication involved the conspiracy of justice, i.e. police detectives. There was also a fourth view, that most of the details of facts were accurate, but that the imputation was incorrect. The judge also attempted to explain that Duffy was being charged with intent to commit sodomy, and that if his intention specifically to commit sodomy was not proven, then he must be acquitted because of the precision of the indictment. "If you should be of opinion that any other improper liberty with the person of Mason – any other indelicacy – any other abomination that those which are precisely and distinctly described in the indictment, were contemplated by Mr. Duffy (supposing him to have been the guilty party), it will still be your duty to return a verdict of acquittal. The indelicacies contemplated by the person who assaulted Mason may have been equally shameful, equally atrocious, equally abominable in point of morality – equally detestable as those charged in the indictment, but if they be not identically the same with them, the offence charged in the indictment will not have bene proved, and you will have no option but to acquit." While emphasising that it was entirely a matter for the jury to judge the honesty of the witnesses, he would give them some of his observations. Regarding John Mason, "He says he is about sixteen years of age, and I certainly must do him the justice of saying that he appears to be a youth of singular intelligence." But it was possible to accept all his evidence except for his claim that the gentlemen concerned was Mr Duffy. "Unless you be of opinion that this is a base conspiracy, and a concocted charge from first to last, I think it must be conceded on all hands that Mason did drive a sow to Beggar's-bush some time about December or January last, and that he fell into the company of somebody or other who walked with him to the yard where the boar was, and paid for the service of the boar. This does not rest solely on Mason's evidence. This testimony is corroborated by Newman himself, the owner of the boar. . . . It is for you to say what in your opinion could have been the object, motive, or purpose, which could have induced the persons who fell into Mason's company to volunteer to pay the shilling, which Mason himself ought byi right to have paid. . . . but even after you shall have decided the point, there still will remain behind this yet more momentous question – who was the person who acted in this manner?" The judge noted the improbability of acts as alleged having taken place in localities so public – but he went on to say, that "if this were a concocted and deliberately planned story – why should those who put the details together have fixed upon a place much resorted to when it would have been equally easy for them to have determined on a private locality as the scene of the criminality."
Regarding the alleged second incident at Sir William Betham's gate, the judge asked "Why did Mason accompany Mr. Duffy after the transaction described to have taken place at the pigsty? Why should he even have looked over the wall at his bidding? If Mason were dissatisfied, displeased, disgusted, and angry with Mr. Duffy's conduct on a previous occasion, why did he not leave Mr. Duffy, and at once go away instead of consenting to accompany him into a private place? These are observations that fairly suggest themselves. If any species of abomination were practised towards Mason at Beggar's Bush, his subsequent conduct must be well weighed by you when considering his evidence, and you must determine whether the manner in which he described himself to have acted does not detract from the credibility of his evidence. In my opinion it does. . . . If he were a willing and consenting party to the conduct which he swore Mr. Duffy was guilty of, then, indeed, gentlemen, his testimony ought to be most guardedly received, for it comes before the court tinged with criminality."
After reviewing Duffy's evidence, the judge asked the jury: "did that boy demean himself on the table as a person who had engaged in this abominable offence, and was now put forward as a witness by the ministers of justice? Did he seem like a boy well brought up for one in his rank of life? Did he give his evidence flippantly, or with that caution and deliberation which belongs to a person anxious for a conviction? All this is for your consideration. . . . If, however, it does appear on the whole that he is not a witness deserving of credit at your hands unless he be corroborated to some extent by other witnesses, as to the commission of the crime imputed – and I don't see that he is – it would then appear that the crime has not been brought home."
The judge then recapitulated the evidence of Garrett Fennell. "I do not see in this case the slightest ground of imputation on Mr. Kent or Mr. Roche, for it was their duty undoubtedly to exert themselves in their client's favour; nor do I see any ground for the slightest imputation upon Superintendant O'Connor, or any member of the detective force. . . . And here I must allude to the case of the boy Walsh. It was stated that he was brought into court and pointed out the man he was to identify. It is most improper thus to tamper with a witness. A witness should be left to his own recollection and to his own knowledge; but still I do not think the evidence fixes that conduct upon the police. . . . It remains for you to say whether, on the evidence of Walsh, there is proof of identity." At this point the Crown prosecutor advised they were willing to strike out the testimony of Walsh, and the Jury therefore at liberty to disregard Walsh's evidence.
With regard to the case for the defence, the judge observed that "No less than fourteen in number, all of them, from first to last, of great respectability, and of entire trustworthiness, have come forward to bear testimony for Mr. Duffy. In fact I never saw such an array of witnesses as to character in my existence, and, no doubt, character is of great value indeed. . . . Is it probable I would ask that a gentleman so affectionately attached to his wife as Mr. Duffy is proved to have been, would be guilty of an abomination of this kind. I do not say that the thing is impossible, but I asks the question with the view of showing how necessary it is to weigh the probabilities and improbabilities of the case. . . . I put it to you as persons entertaining feelings of the most kindly and affectionate nature towards your nearest and dearest relation, is it probable that a man affectionately attached to a wife still living could be guilty of this abominable, unmanly, unnatural offence, which indeed amounts in this case almost to a propensity. . . . I am far, indeed, from saying that many men to not carry a fair face which their secret acts do not entitle them to. I am free to believe that many men bearing the highest character for integrity and strict morality may have been guilty of acts which if known would destroy their reputation. But I ask you, is it likely that a gentleman whose general reputation has been testified to by so many persons of the highest respectability could be, without their knowledge, the subject of an abominable propensity of this kind. . . . Evidence as to character, no matter how high or how respectable the source whence it comes, cannot contravene direct evidence calculated to satisfy a jury as to the facts of a case; but if after a fair review of all the circumstances of a case the jury feel a doubt, the character comes in with powerful effect, and then it ought to turn the scales in favour of the accused." He pointed out that several witnesses who saw Mason with a gentleman, positively swore that Mr Duffy was not that gentleman, although there was some question as to whether the three women were speaking of the same occasion, or of a different occasion.
The jury then withdrew to consider their decision, at 5.25. At 6.30 it was intimated through the sub-sheriff that at the moment there was no likelihood of an agreement. Bailiffs and Police Constables were sworn to prevent any communication with the jury, who were locked up in their room, and the court was adjourned to 8.30. "About this hour the street became almost impassible in consequence of the crowds pressing in from all quarters of the city, and the eager inquiries and anxious glances of the people told how much they were interested in the result of the proceedings. Shortly afterwards a loud and prolonged cheer in the street announced the arrival of Mr. Duffy and his friends. In a few minutes he, accompanied by the highly respectable gentlemen who attended him during the two previous days, entered the court, which was thronged almost to suffocation by a most respectable audience. The entire assembly rose and received Mr. Duffy with a loud and prolonged cheer, clapping of hands, waving of hats and handkerchiefs, and it was some minutes before this ebullition of popular feeling subsided, notwithstanding that several efforts were made by the police to suppress it." But the jury had still not reached a decision. At 10.00pm Justice Jackson entered court, "and the most breathless anxiety prevailed for the issue." Judge Jackson asked the sub-sheriff to ask if the jury had agreed. The sub-sheriff came back in a few seconds, saying they had not agreed, and that they were divided by eleven to one, eleven for acquittal and one for conviction. There were sounds of widespread approval in the court. Judge Jackson determined that if they agreed before 12 midnight, they would be conducted to the house of the Lord Chief Justice, where their verdict would be taken. If they had not yet agreed, they would remain carefully guarded from any outside communication until the morning. Mr Duffy was allowed out, but required to be available should a verdict be reached by midnight.
"When the court adjourned a large crowd of gentlemen pressed round Mr. Duffy, and shook him most cordially by the hand, and on entering his car he was again greeted with loud and continuous bursts of applause. The crowd continued to increase as the vehicle proceeded, and though Mr. Duffy and his immediate friends who accompanied him in vehicles drove at a rapid pace, the people ran along, keeping in front of and around them, huzzaing and cheering. In this manner the procession, for such it was in size, proceeded along Capel-street, Parliament-street, Dame-street, and College-green. Here the crowd became so dense that the drivers were compelled to walk their horses, and Mr. Duffy's immediate friends, fearing that some inconvenience might be caused by the increasing crowds in the leading thoroughfares pulled up, and requested the people not to accompany them any further. The request was answered by repeated cheers for Mr. Duffy, and cries of 'we wish to see him home,' 'let us see him home.' The care once more went on their way, but were again compelled to stop, when Dr. Gray, who happened to be in the neighbourhood came up, and having communicated with Mr. Duffy and his friends, explained their wishes to the people. On this intimation a ring was formed in the street, beyond which none but those on cars were permitted to pass, and after giving several enthusiastic cheers for Mr. Duffy,t he crowd separated in the most orderly manner."
The jury had reached no agreement by midnight, and remained locked up in their room. The streets remained crowded with a dense mass of spectators. About 12.30, "some of the jurors appeared at one of the windows of the jury-room,. overlooking Green-street, and entreated of the spectators to procure them a little cold water, wherewith to allay their thirst." Their request was not complied with.
On Saturday 16 August, the Freeman's Journal noted that the man who tutored Walsh to identify Mr Duffy as the man in the blue neck-cloth was Mr Sergeant Barnes, a plain-clothes detective, and they launched an attack on the detective force: "is this infamous system to be suffered longer to exist? . . . Simple, honest-minded citizens! You are alarmed because of this expose of the tampering with evidence. Little know you of the depths of infamy with which this infernal Detective system is fraught. Could yo probe it to the bottom, could you see the secret workings of it, could you unveil the disguised ruffian who prowls about your door, who gossips with your servants and domestics, who follows you to your counting-house, your bank, your club; who minutely chronicles, and transmits to the bureaus of the Castle your diurnal transactions, the names of those with whom you walk, drive, speak, sit, dine, sup, the details of your business, the manner and number of your visitors, the hours of your ingress and egress – you would not confine yourselves to asking what shall be done, but with one vigorous effort you would rise in your might, and demand of the government that this infernal system be at once abandoned." They reviewed other cases of abuse, and demanded that the Detective Corps be abolished.
The Freeman's Journal fully expected Mr Duffy to be acquitted. "It will be seen by our report of the scenes within and without the court the feeling that this case created throughout our entire city. Having been in part witness of that scene we can testify that never was a verdict of honourable acquittal more fully, more emphatically, more universally pronounced that that pronounced yesterday on Mr. Duffy by the citizens of Dublin of every class, and grade, and sect, and party. From this verdict we heard of but one dissentient voice – that of one of the jurymen. On which of the minor counts this juror wished to record a verdict against the opinion of eleven other jurors and the entire public opinion of the city, has not yet transpired." [
By 10.30am on the Friday, the crowds in the vicinity of the court "had increased to such an extent as to render the streets wholly impassable. Indeed we have not witnessed so much excitement for some time. Persons the most prejudiced, or wh appeared to have doubts on the subject before, were (and they openly expressed it) fully convinced from reading the evidence pro and con that Mr. Duffy was completely exonerated from the foul imputatino sought to be case on his character as a Christian and a gentleman. By twelve o'clock the number of persons present could not be much under 3,000." (Freeman's Journal, Saturday 16 Aug. 1845).
Mr Duffy arrived with his friend, and was greeted with a warm reception by the crowds. The Lord Chief Justice and Justice Jackson entered and asked if the jury had agreed a verdict. He was informed by the foreman that the jury had not agreed, and he ordered that the chamber door be closed again. The prosecution asked that they jury be informed that an acquittal of Mr Duffy would not involve the guilt of perjury of Mason. Judge Jackson said there should be no interference with the jury at this stage. The court proceeded to sit on several other cases before them. The jury sent in a written message to say they had not agreed, and the judge asked that the jury be recalled to court. "Nothing could exceed the anxiety depicted on the countenance of every man in court at this moment, each stir in the passage through which the jury were to come produced that buzz peculiar to such a scene, and on their appearance in the box the most perfect stillness prevailed. Judge Jackson asked if they had agreed their verdict. The foreman replied "No, my lord, nor is there any likelihood, for although –. Judge Jackson stopped him from proceeding further. The judge addressed the jury, apologising for the necessity of having kept them in overnight, and for not providing them refreshment. "The law does not allow refreshments for jurors once charged to find a verdict; however, as the commission has now arrived at its close, as we have discharged all our public duties and as you have not agreed to your verdict you must be discharged. Gentlemen, you are therefore discharged." As there was no verdict, there would have to be a new trial.
Mr Duffy left the court, again on his own recognisance, "and the shout that hailed his appearance outside proclaimed his ENTIRE ACQUITTAL more strongly and emphatically than could the verdict of any jury. . . . This demonstration of feeling was not confined to the vicinity of the court alone. Hundreds followed his car cheering and waiving their hats, and in every street through which he passed there was the same warm outburst of the popular mind."
When the jury left the court, "Some of the number were cheered loudly and heartily, but on the discovery of Mr. Graham, on whom rumour fixed as the recusant 'ONE ' there burst forth a torrent of popular indignation such as we have never seen equalled – shouts of disapprobation met him at every turn, and he returned to the court-house. Here a circumstance occurred which attracted much notice. In the hall Mr. Graham met a Mr. Kerr, who was one of the witnesses examined against Mr. Duffy before the grand jury, and who, it is stated, took a prominent part in the case from the commencement, and both men shook each other's hands warmly." Mr Graham then asked the judge for protection, and the Sheriff was asked to ensure that he received safe conduct home. The court was adjourned to 24 October. (Freeman's Journal, Saturday 16 Aug. 1845)
There were complaints that that the Freeman's Journal had unfairly stirred up public opinion against Mr. Graham, and it was claimed that there was no basis for their claim that eleven members of the jury were for acquittal and only one for a verdict of guilty. The newspaper defended its claim for overhearing a discussion with the sub-Sheriff which indicated the eleven-to-one division, and they said it was not the newspaper who had suggested that Mr Graham was the recalcitrant one, but his own behaviour after the jury was discharged. The sub-sheriff denied that he had made the statement attributed to him. (Freeman's Journal, Saturday 23 Aug. 1845)
One of the jurors wrote to the Freeman's Journal complaining of the treatment the jury had been subjected to. "None of the jury were allowed to leave the room after we were locked up at a quarter past five o'clock until we were released at half-past twelve o'clock the following day, being a period of nearly twenty hours, and you may imagine the state twelve men must be in during that time locked up in a room without the least accommodation. No food – not even a drop of water was allowed us, and I firmly believe that the line of conduct adopted towards us – I care not by whose orders – was in a strong degree calculated to injure the free course of justice. This I fearlessly assert to be true, but as a juror I shall say no more on that part of the subject. One of my fellow-jurors became almost frantic from thirst, and was only constrained from smashing the door or leaping out of the window by his brothers in captivity. He begged that some person in the street might be allowed to throw him up even a wet towel, but this was refused in consequence of a guard of policemen being placed under the window so as to prevent any person approaching it. In this state we remained all night, and I boldly assert (although there was a likelihood in the early part of the evening of our coming to a verdict) that many of the jury knew not what they were either saying or doing, and I consider from the treatment we received that the jury were not in a state to do justice to the case we were considering, for their (the jurors) physical and mental faculties were so completely prostrated that they were totally incapable to enter into a proper consideraiton of the case before them, and some gentlemen who expressed the strongest opinions in the early part of the investigation took a different view of the matter afterwards, and without giving any reason, except the bewilderment (if I may use the term) into which they were thrown, and which they freely admitted was owing to the want of accommodation and necessary food. . . . Fortunately, the room was tolerably large, adn but for that circumstance we might have had a 'black hole at Calcutta' in miniature in Green-street. Several of the jurors felt so ill after they were discharged that they had to call in medical advice, and I am only just able to write myself at this moment, having been confined to bed since. . . . In reference to the opinion of the jury I shall say nothing, but I repeat it was likely we would have come to a verdict were we allowed the means of properly consulting with each other on the case." (Freeman's Journal, Tuesday 26 Aug. 1845)
The new Commission of Oyer and Terminer opened on Friday 24 October 1845, under the Lord Chief Baron and Mr Justice Burton, and the Grand Jury. The court was very full when Mr Duffy entered. There was discussion with the judges, the prosecutor, and the defence, as to whether the case should be postponed to the following Monday, since it was likely to last some time – as had the previous case. The Chief Baron observed, "it would be very inconvenient to take up a case of such magnitude on Friday or Saturday – If I am rightly informed the jury did not agree, and were locked up for an entire night – now that is a powerful reason why we should not go on; if the trial lasts for two days, as it did last, there is a possibility of the jury being locked in on the Sabbath." Mr O'Donagh, for the prosecution, said "Oh, my lord, we always find juries to agree best on Saturday night." He also stated the inconvenience to witnesses who would have to be accommodated if proceedings did not begin now. It was decided not to proceed with the case until the Monday. (Freeman's Journal, Saturday 25 Oct. 1845)
A startling new development occurred on Saturday 15 October. At the Commission of Oyer and Terminer, the Lord Chief Baron and Justice Burton received an application on behalf of Scully, Hanville – now called Hanvey – and Milchreest (who had earlier been convicted of conspiracy against Mr Duffy, but their conviction was still pending) for permission to bring a bill of indictment before the grand jury charging Mr Duffy with indecent assault upon Scully the previous 16th or 18th April. The Lord Chief Baron asked why the charge had not been brought before a magistrate in the regular way, since two Commissions had now passed since the alleged incident. Mr Rollestone (counsel for Scully, Hanvey, and Milchreest) said this was due to "very peculiar circumstances". There was a long legal argument about the propriety of accepting such an application. Mr M'Donagh, acting on behalf of Mr Duffy, said "The persons for whom Mr. Rollestone appears are three individuals who, at the prosecution of Mr. Diuffy, were convicted before the Lord Chief Justice at the after sittngs of last term for conspiracy to charge him with a certain unnatural offence. One or two commissions have intervened since then, and they have now come forward to prefer a bill of indictment for that very offence. They never went to the magistrates for the purpose of having their informations received since that time until now, the eve of term, when they will be called up to receive the judgment of the court – they come here, to a different tribunal, to send up bills, there being a trial pending in this court against the gentleman who prosecuted them to conviction, and that act being calculated to disserve him and prejudice his case. If they have a case they can go into the Queen's Bench on the first day of term, and there apply to have bills sent up. That court would have the facts before it, not only of this but of the former trial, and that court, therefore, would be the proper tribunal for them if they had an honest cause. . . . He said the proper course was to go before a magistrate – prefer informations, and not to come ex-parte to send up bills of indictment. Such a course would be improper, unusual, and against the law, when another prosecution was pending against the very party seeking to send up the bills. It would be the most monstrous thing ever heard of to allow bills to go up now."
The Chief Baron was concerned why no attempt had been made to indict Mr Duffy earlier. Mr Rollestone said that "we were taken by surprise, and prosecuted before we had time to commence a prosecution. . . . An offence was stated to be committed by these persons and immediatley after that there was an investigation held which eventuated in the prosecution by Mr. Duffy of my clients for conspiring to charge him wth an offence for which we now seek to indict him. The magistrates received the informations and returned them to be tried at the commission here. My clients came here prepared to stand their trial at that commission, but before that commissionn took place Mr. Duffy abandoned the case – refused to bring it on before a commission jury, and had it removed to the Queen's bench by special application. At that term we might have sent up bills against Mr. Duffy, but I ask you would it be fair, or right, or reasonable to send them up to the same grand jury who had previously believed Mr. Duffy's oath. They did not do so, but they prepared to stand their trial. Mr. Duffy applied for liberty to send up bills so late in the term that had we chosen the case could not have been tried until the ensuing term in November; but we forced him on – we signed consents in order to stand our trial – we were tried – the oath of Mr. Duffy was of course taken by the jurors of his own class against the three men whose tongues he tied by his profession." The Chief Baron still pressed his central concern: "If you had a good ground of prosecution, why did you not prefer your complaint at a police-office?" Rollestone said, first, that their indictment could not proceed for as long as Mr Duffy's indictment against them was pending; and second, that they would have been content if he had been convicted in the present case; and third, the public would have accused them of deliberately jeopardising Mr Duffy's defence in the current case against him just when his acquittal seemed certain. The counsel for Mr Duffy said their attempt to raise such an indictment was clearly intended to prejudice Mr Duffy's retrial. The Chief Baron reiterated that he saw no reason why they had not pressed charges against Mr Duffy prior to the eve of his retrial, and refused applciation to send forward an indictment to the grand jury against Mr Duffy. (Freeman's Journal, Monday, 27 Oct. 1845)
On Monday, 27th October, Mr Duffy's retrial came on at 10.30 in the morning. They quickly went through the same evidence given at the previous trial. One additional witness, a Richard Berry, who lived in the area of Newman's piggery, testified that he saw Mr Duffy with the boy Mason walking towards the piggery, and he swore that it definitely was Mr Duffy. He said he had not previously been asked to give evidence. Thomas Newman then testified that the gentleman with Mason was not Mr Duffy. Bryan Develin testified that that the purse found by Duffy was handed to Mason's father, and that at that time there was no recognition between Duffy and the young Mason. Several witnesses were examined in an effort to determine if the three women had identified Mr Duffy or only someone who looked like Mr Duffy. The case for the prosecution ended. The counsel for the accused had barely begun to explain how their defence would proceed, when the Foreman of the Jury said it would not be necessary for him to proceed further, for the jury had made up their minds on the case. They declared Mr Duffy Not Guilty. Mr Duffy was discharged from the court.
"The announcement was received amidst the most vociferous and continued cheering, clapping of hands, &c., by the crowd who occupied the court. The crowds outside quickly caught up the fire, and within and without the court the people gave full expression to their delight at the acquittal." A correspondent reported there were great celebrations: "on the announcement of Mr. Duffy's liberationn bonfires were lighted in the locality of Baggot-street. Several temperance bands enlivened the scene with excellent music, and the gentry of the neighbourhood associated to greet him upon his happy and honourable acquittal. Dancing was kept up around the bonfires until a late hour at night." (Freeman's Journal, Tuesday 28 Oct. 1845)
The Freeman's Journal launched an attack upon the police detectives whom they considered to be behind the prosecution. "The Commission Court on yesterday witnessed a significate and signal defeat of the Detectives. . . . Mr. Duffy was not put upon his trial yesterday by his country; it was by the Detectives that act was done. We neither know nor care to inquire what can have been the filthy motives which urged the dark corps to attack the individual whom they succeeded in twice bringing to the bar of a court of justice. We know not, and care not to inquire, who were behind the scenes, though the pertinacity with which the case was prosecuted, and the eagerness with which all advantages against the accused were seized would lead us to suppose that Barnes and the rest were instruments as much as movers in this extraordinary exhibition. We know that the Detectives were managers of the evidence in this – we have the testimony of their own witnesses to the fact that they were drilled for the job. . . . Mr. Duffy's triumph is felt to be a victory over espionage and the insidious villany [sic] of the Detective system. When are we to have an end of this plotting, scheming, crime-concocting force?" (Freeman's Journal, Tuesday 28 Oct. 1845)
The Freeman's Journal continued their exposure of the detective police force in the case of Mr Duffy. "Upon the day of the alleged offence a pliceman encountered the boy Mason upon the road adjacent to the place where it was alleged Mr. Duffy was in his company. The policeman saw the boy drive a pig, and remarked his dress. He saw also a gentleman walking on the footpath beside the boy. The policeman knew Mr. Duffy well – he could not possibly be mistaken as to his person – he could have proved that the gentleman whom he saw with the boy was not Mr. Duffy. Now, the Commissioners of Police knew the particular policeman on duty in the locality of Blackrock on the day named in the indictment; they knew what he could prove; he was examined by the authorities, who also knew what he could prove, and that his evidence must at once acquit Mr. Duffy. This gentleman did not know the policeman, but he applied to the Commissioners to produce the constable, or give his name, so as to enable his law agents to serve a subpoena upon him. Will any honest or honourable citizen – will any Christian believe that those functinoaries not only refused to produce the man, but refused to give Mr. Duffy's solicitor the slightest clue by which he could secure his attendance on the trial? Nay, more; the policeman was cautioned, as he valued his livelihood, not to disclose to Mr. Duffy or his agent the fact that he was able to give important evidence upon the trial!" (Freeman's Journal, Thursday 6 Nov. 1845)
On 6 November 1845, Mr Hatchell, Q.C., appeared at the Court of Queen's Bench to apply for a new trial of Scully, Hanville (now called Hannay, or Hanvey, or Hanvy etc.), and Milchreest, on the grounds that there was no proof of conspiracy against Mr Duffy and that the previous conviction had been misdirected. They had new evidence of a conversation with a third party, whose testimony had been objected to in the original trial. They were granted a conditional order. (Freeman's Journal, Friday 7 November 1845)
On Saturday 8th November, a Mr Fitzgibbon appeared at the Court of Queen's Bench and applied for permissionn to send an bill of indictment to the grand jury, charging Mr Duffy with indecent assault upon Scully on 16th April in the engine house at Dalkey. They were granted consent. (Freeman's Journal, Monday 10 Nov. 1845)
When the Court of Queen's Bench opened on 11 November, there was some confusion about whether they were to hear the new trial of Scully, Hanvey and Milchreest for conspiracy against Mr Duffy, or the new trial against Mr Duffy for assault on Scully. The paperwork was not complete. (Freeman's Journal, Wednesday 12 Nov. 1845)
The next day, in the case of the Crown against Duffy for assault upon Scully, the prosecution submitted affidavits to the Court for consideration as to whether or not they could be presented as evidence. (Freeman's Journal, Saturday 15 Nov. 1845)
On 20th November the Court began considering legal objections to the conduct of the case of Duffy vs. Scully, Hanvey and Millchreest for conspiracy, and challenging the validity of the verdict. (Freeman's Journal, Friday 21 Nov. 1845)
The case kept being "stood over", almost indefinitely. More than two months later, on 30th January 1846, the court again met to consider the application for a new trial in the case of Duffy vs. Scully, Hanvey and Millchreest. The counsel for the latter argued that (a) some evidence given in the original trial was inadmissable; (b) some evidence that was rule inadmissable really should have been allowed; and (c) there was not enough proof of an actual conspiracy (e.g. no money had been demanded) to justify a verdict of guilty. After extensive legal discussions, the Lord Chief Justice "said the court were of opinion that the verdict ought to be set aside" because some evidence given at the original trial was inadmissable. Scully's counsel then applied for permission to send up bills of indictment to the grand jury against Mr Duffy. The Lord Chief Justice declined to allow that at present, because he had not had time to consider the merits of such action, and because it would not be right while the new trial in the conspiracy case was pending. (Freeman's Journal, Saturday 31 Jan. 1846)
The conspiracy case was finally re-tried in June 1846. The defendants were again Peter Scully, John "Milchriest" and "Paul Hannivin" or "Hanvin" (it's not clear to me why the latter's name constantly changes over the course of all these trials). (Freeman's Journal, Saturday 13 June 1846). The re-trial opened on 23 June, in which Duffy charged the three men "with a conspiracy, with the view of extorting money from the prosecutor by charging him with an attempt to commit a crime, &c.", expressed in seven different but essentially similar counts. Mr Monahan, for the prosecution, explained to the jury "that the line of defence taken on the former trial was not that Mr. Duffy had been guilty of any offence, but that the men had made a mistake with regard to the person of Mr. Duffy. [Whereas now] the allegation was a charge of an offence against Mr. Duffy, and had not Mr. Duffy been exposed since the last trial to other attacks they would not have heard of an application for a new trial of the present case or the defence that would be set up by the traversers differing as it did from the former." But in any case, said Mr Monahan, "the story that would be told for the defence was utterly improbably and impossible, and he confidently looked forward to their verdict of guilty as doing justice between the parties."
Thomas Connell Duffy took the stand, and gave his evidence, as in the former trial. In fact the trial proceeded in virtually the same way as the former trial. The case for the defence opened with testimony from a new witness, John Thompson: "I am in the employment of the Dublin and Kingstown Railway, as engineer, for near nine years; I see Mr. Duffy here, and first saw him about the 17th of March, 1845, in the engine-house at Dalkey; it was inside the house I first saw him, but did not observe him coning in; the three prisones were present; there was another man named Clare there, but he has been discharged; Mr. Duffy was on the first landing of the spiral staircase, and I asked him where he was going. . . . He said he was going to see the uper part of the machinery, and I said I could not let him without an order from Mr. Pim; that was in the day, about half-past three o'clock; Scully was there, and heard that; I was taking notice of Scully. . . . Because he was off with a message for Dublin. Scully was in in about ten minutes; I gave Mr. Duffy leave to go, and told Hanvin to go up with Mr. Duffy and show im the place before the train came by when Mr. Duffy said – 'No, I will have no one but my own boy;' and said, 'come up, my own boy,' and he caught him by the shoulder and pulled him; he said no more about Scully at that time, and I saw no more of Mr. Duffy that day. . . . saw Mr. Duffy again on the 16th April ten minutes before nine o'clock at night; he was coming down stairs from the gallery; I had not seen him before that evening; did not know him then; never heard his name or knew who or what he was; recognised him as the person I saw on the 17th March; heard noise that attracted my attention; the engine was at work two minutes and Scully cried out as if in distress, and knew it to be Scully's voice; was examined on the former trial but did not state certain facts that I have stated to-day as I was not asked the questions; Saw Mr. Studdert on the 17th April in Dalkey engine house." Under cross-examination, he repeatedly said that although he was sworn to tell the truth at the previous trial, he had not been asked these questions and hence did not make a statement at the previous trial. The cross-examination also tried to belittle his evidence by raising the issue of him having a wife and many children, a servant at a public-house, who repeatedly left him and didn't really live with him.
Further witnesses gave testimony and were cross-examined, and it was clear that the case would have to continue the next day, but before it was adjourned they heard from John Clare, who had been present at the Dalkey engine house on 16th April, but who had not testified in the previous trial. The prosecution asked: "Now, Sir, on your oath did you know that this trick was about to be played on Mr. Duffy." Clare responded:
The trial continued the following day, with a very crowded court. As before, various men came forward to give the three defendants a good character. The counsel for Mr Duffy criticised the counsel for the defendants for taking the blame upon himself for not having previously insisted that Duffy be charged with an offence, rather than arguing that the defendants had perhaps mistaken what had happened, and would not have accused him if Duffy himself had not immediately taken action against them. The counsel for Duffy also tried to demolish the character of Thompson, "a man who showed an utter disregard of all the finer feelings of humanity, who married thirteen years ago, who had seven children, three of whom were dead; who had deserted his wife and the remaining four children, and allowed lthem to live in poverty" &c. – for Thompson's new evidence against Duffy was the most important material in this re-trial. He also emphasised the inconsistencies in the evidence. "He then proceeded to ask if the charge against Mr. Duffy were true, why did not the prisoner come forward in June, '45, after having had three months time for preparation, and make it then, instead of waiting for a year, before they preferred this abominable charge, which was of so unnatural a character that no man should be considered guilty of it without the most complete and conclusive evidence? What was there intrinsically in the facts to induce them to disbelieve Mr. Duffy, and believe such a wretch as Thompson? Was it to give encouragement to men of that character to make such charges against respectable gentlemen?"
The Chief Justice then addressed the Jury, pointing out to them the salient features of the evidence. Regarding the charge of conspiracy, "The motive for this conspiracy did not appear at the close of the evidence for the prosecution; and until the cross-examination of Clare, who was produced for the defence, he (the chief Justice) was prepared to say that the count of the indictment charging the prisoners with an attempt to extort money by this false charge had not been sustained. If they believed Clare's evidence on cross-examination the charge had been fully proved; but his testimony in that particular was attended with such peculiar circumstances that he would advert To it more particularly before he closed his observations. There were two propositions involved in the charge – first, that of conspiracy; and second, whether the charges made against Mr. Duffy were false or not? They must be satisfied both that there was a conspiracy, and the charge was false, in order to find the prisoners guilty. If they were not satisfied that there was a conspiracy, even though Mr. Duffy were innocent, they could not find them guilty."
The Chief Justice reviewed some of the complications: "the prisoners never themeselves preferred the charge which they now sought to fasten on Mr. Duffy. The reason of this was that three days after these men had been examined before Mr. Studdart, a magistrate of the highest character and soundest judgment, they were served with summonses to stand their trial for a conspiracy, and instead of being the prosecutors they were made the prosecuted. It was also said by Mr. Monahan in his opening statement that the case made on the former trial by the traversers was, not that Mr. Duffy had been guilty of this offence, but that circumstances had occurred which justified a suspicion – and no more than a suspicion, and perhaps an unfounded one – that he had made the attempt. Now, Mr. Hatchell [counsel for the defence] had stated in a manly and straightforward way that the line of defence was solely to be attributable to him, and that he adopted it in order to avoid the necessity of convicting Mr. Duffy, and to obtain the acquittal of his clients at the same time. But, he now said, that he would give evidence to involve Mr. Duffy, and he accordingly did so. It might be that the present was the true case, and the former the specious one; but it was for the jury to decide that point on their own unbiassed judgments. The next circumstance that was urged as disparaging to the defence was, that there had been a verdict before in the case by which the prisoners had been found guilty; but that should be dismissed from their consideration altogether, and should not be suffered to weigh one feather in the scale, for this reason, that the court, on a deliberate review of the case, were of opinion that illegal evidence had been admitted on the former trial. Discredit had been attempted to be thrown on Thompson, and on other witnesses, because they had not given the same evidence on the former trial as they had on the present; but it should be recollected, that witnesses were examined by interrogatories, and that it was their duty simply to answer the questions which were put to them; and that when they attempted to ramble or go into details they were often prevented by counsel. With respect to the charge of conspiracy, he had seldom seen a case in which the evidence with respect to that charge lay in so narrow a compass. Mr. Duffy stated that he arrived at the engine-house twenty minutes before the train started; that he was sitting in the railway carriage ten minutes before it started, and consequently, unless the persons had previously conspired to charge Mr. Duffy with this offence whenever he came there, the conspiracy must have been hatched within eight or ten minutes. The present case of conspiracy did not rest on positive evidence, but on the acts of the traversers themselves, and if the jury believed what Mr. Duffy stated, there would still be a quesation as to whether a conspiracy really took place or not. The learned judge then recapitulated the evidence of Mr. Duffy, and said the most important part of it was, where he stated that when he and Scully were in the gallery, the latter gave an extraordinary whistle. His lordship then referred to the evidence of Mr. Henderson, which, if it were a correct statement, would alter the entire character of the case. Mr. Henderson stated that the day after the occurrence took place, Mr. Duffy stated to him, in the presence of Mr. Studdert, that the boy called out to the men below stairs that he (Mr. Duffy) was taking improper liberties with him. – If Mr. Henderson's statement were correct, and he was above suspicion, it would put an end to the charge of conspiracy. His lordship then referred to the testimony of Clare, which he considered totally destitute of credit."
The jury then retired, and after about 45 minutes returned to court and handed in their verdict: The three men accused of conspiring against Mr Duffy were found Not Guilty, and were immediately discharged. (Freeman's Journal, Thursday 25 June 1846)
Mr Duffy had not acted as a police magistrate since the beginning of this case, the government having suspended him pending the investigation. (London Daily News, Friday 26 June 1846) The case and its sensational outcome was widely reported in all the Dublin papers.
On 8 July, John Clare was arrested, and charged by Scully, Hanvin and Milcreest with having committed perjury in the testimony he gave in their conspiracy trial. Clare had claimed that he had heard one of them say "that he would make Mr. Duffy shake his purse", but others testified that no such conversation had taken place. Clare was committed for trial in August. (Dublin Evening Packet and Correspondent, Thursday 9 July 1846, and Freeman's Journal, 9 July 1846) At John Clare's trial for perjury, on 12 August, John H. Milcreest responded to cross-examination: "Thompson and the others were very seldom with me; I had conversations with Scully about business, but nothing else; don't recollect having a conversation with Scully about a gentleman taking liberties with him, but it might have occurred, and I might forget many things; had no conversation with Thompson before the 16th April; can't say if Thompson told me anything that Scully told him; Hanvin might have told me about a gentleman, and I might forget it; we never take money, but if a gentleman leaves money there, of course, we take it up (loud laughter)." The jury, after an absence of two minutes, gave their verdict that Clare was Guilty of wilful and corrupt perjury. (Freeman's Journal, Thursday 13 Aug. 1846). Clare was sentenced to seven years' transportation (Athlone Sentinel, Friday 21 Aug. 1846). On Tuesday 2 October, Clare "was transmitted with other convicts, on board the convict ship Tory, lying in Kingstown harbour. On Wednesday an order came from the government for his transfer back to the convict depot, Smithfield, where he now is, his bolts being struck off. The ulterior object of this man's return has not been made public." (Saunders's News-Letter, Tuesday 3 November 1846). I haven't determined what subsequently happened to John Clare.
By mid-November 1846, Thomas Connell Duffy had resigned as a police magistrate, and James O'Dowds, Esq., Barrister-at-Law, was appointed a Divisional Magistrate for the metropolis, for the police district of Henry Street, in his place. (Saunders's News-Letter, Thursday 19 Nov. 1846). According to another report, "It is said this evening that Mr. O'Dowd, barrister, has been appointed to the chair in Henry-street Police-office, vacant by the retirement of Mr. Thomas Connell Duffy; who, it is further stated, is to enjoy a pension equal to his salary as divisional magistrate. Mr. O'Dowd is a tolerably constant attendant at Conciliation Hall, and a thorough-going supporter of Old Ireland." (London Evening Standard, Friday 20 Nov. 1846).
By this point, all of the parties have disappeared from the newspaper record. Duffy was not re-charged for indecent behaviour with Mason.
"I am a magistrate of the city of Dublin, and have been so for eight years; I live at No. 7, Pembroke-place; I dined on the 16th of April at Mr. Waldron's, near Dalkey; I was accompanied by my wife and Mr. White, jun.; Mr. White is son to the inspector of prisons; the terminus of the atmospheric railway [i.e. steam railway] is about a quarter of a mile from Mr. Waldron's; I left Mr. Waldron at or about a quarter to nine o'clock; I was accompanied at my departure by my wife and Mr. White; we were to proceed to Dublin; Mr. White proposed to go by the Dalkey station, and I proposed to take a car. I proposed to go in a covered car to Dublin; I understood that the train was to start from Dalkey at nine, but when we arrived at the terminus the train had left ten or twelve minutes; I secured my tickets for the next train, and I proposed to my wife and Mr. White to walk about for a short time; my wife objected, as she was tired from the previous walk, and sat down on a bench outside the station-house; Mr. White and I walked about for a few minutes; I then proposed to Mr. White to go into the engine-house; he did not adopt my proposal, though I pressed him very much to do so; I left Mr. White near the door of the engine-house and walked in; that house is very near to the bench where my wife sat; there is no waiting room for passengers at Dalkey; Mrs. Duffy sat in the open air; I proceeded to the engine-house; the door is a glass door, at least the upper half of it is. When I went to the door I saw a light inside; there were some men there also; I knocked at the window and immediately a boy, whom I had not seen before, crossed over with a light in his hand; some of the men whom I then saw are the men now on trial; and the boy whom I saw with the light is the boy now on trial. [i.e. Scully] The boy opened the door, and I asked to be admitted to the gallery from which the engine is to be seen; I gave him sixpence, and he desired me to walk up the stairs; I went up accordingly and proceeded to the gallery, which traverses the area of the building; the machinery is visible from that gallery; the boy Scully was a little in advance of me with a candle in his hand; the machinery is of a curious description; there is a windlass or wheel at the remote end of the gallery; I asked the boy about the machinery, and he was describing something about the windlass when I crossed over to that side; something attracted my observation near the windlass, and I asked him to hold the candle forward to enable me to see; he stooped forward, leant over the rail with the light, and at that moment I laid my hand on his head, or on his shoulder; at that instant the candle went out, whether by design or accident, I don't know; the by then gave a peculiar kind of whistle; almost at the instant a man stood at the end of the gallery; that man was Hanville, one of the traversers [i.e. defendants]; when he appeared, and before anything had been said by the boy, he called out, "what is all this about?" I walked immediately over to the man; he was standing at a distance I believe of eight or nine yards; I asked him what was the matter – he called out "lock the doors;" another man then made his appearance – that man was the traversers Milchreest; both Hanville and Milchreest then assailed me in very course [i.e. coarse] language; they charged me with taking indecent liberties with the boy; the boy had remained in very nearly the position he was in when he held the candle; he did not come near us at the time, nor did he speak while on the gallery; I then walked down the stairs; the men came down also, and I am not quite certain whether they went before or followed me; when I got down I saw another man; I would not be able to identify that man positively; when I got down stairs they abused me in the same course language, and to the same purport; the boy then for the first time charged me with taking indecent liberties; that charge was false; one of the men said that I had been often there before; I think Milchreest was the man who made the statement; he said I had been often there before for the same purpose. When I say it was false, I mean to say that I never, on any occasion, attempted indecent liberties. When they said this I told them to be very cautious, that I was a magistrate of Dublin, and that I would make them accountable for their conduct; one of the men in quite an altered tone said, "Sir, the door is open and you may walk out;" I can't say which of the men told me that the door was open; there was no further language used after that, and I then walked out; I have stated that one of the men alleged I had been often there before for the same purpose; I was there about five weeks before, and that was the only other occasion I was ever there; I don't recollect having seen the men Hanville or Milchreest there; I saw the boy Scully; he was standing near the terminus when the train arrived, and he asked me to go see the engine; I did so; I gave him a fourpenny piece on that occasion.
At that time he showed me the engine; it was not then working; it was working the last time I was there. After leaving the engine-house on the last occasion I went to the train where I found Mrs. Duffy and Mr. White; I did not mention anything of the occurrence to either; Mr. White left us at Kingstown; on arriving at Dublin I took a covered car and went immediately to Mr. Stoddert, the magistrate; I never before saw the boy Scully except on the two occasions which I have mentioned."
"Scully did not lean upon the windlass or explain anything relative to its use or action; he was leaning over the rail when the light was extinguished; the machinery was then going; on making the peculiar noise I have described, Hanville made his appearance; another man also appeared; I don't think Hanville went down before Milchreest came up, for both attacked me at the same time; I don't recollect that either of them said anything to the boy; I did not hear any of them say to him, "why are you not at your place at the window"; there is a window from which the approach of the trains is watched in order that the engine may be stopped; I can't say whether I left the house by the back door or by the front door; I was so confused at the time in consequence of the nature of the charge made upon me that I can have no recollection on that point; I had been sitting a long time in the carriage – I would say seven or eight minutes – before the train started; I was not more than five or six minutes in the engine-house altogether; I am quite positive of that; I handed Scully 6d. before I went up stairs; when I stated I was a magistrate of he city of Dublin I did not mention my name; I am sure they did not know my name; there was no demand of money made by any one; on the previous occasion when the boy showed me the machinery I gave him 4d.; I have no recollection of having seen him at Kingstown, and I may here mention that the boy has stated such a thing, but it is totally false; I don't know if he came down in the same train with me; I have stated before, and I now repeat it, that the boy made a very peculiar noise – a something like a shrill whistle when the light went out; I remember having gone the morning after with Mr. Stoddert to the railway office; I there stated what had occurred the night before at the engine house; I do not recollect having said upon that occasion that the boy called out to the people below that I was pushing him, and I am sure I did not state so – I mean as to what occurred on the gallery; but I state that the boy when he came down stairs accused me of having pushed him."
"I am acquainted with the general working of the Dublin and Kingstown and Kingstown and Dalkey railways; I knew all the traversers and have regulated their duties; when the train is about starting from Kingstown to Dalkey, or a couple of minutes previously, the first duty on the part of the fireman or stoker is to go into the room off the engine-room – the boiler room – it is generally called the boiler room – and open the valves that communicate with the cylinders of the machinery; he observes by the clock when the period has arrived for performing this portion of his duties; there is no signal on the atmospheric line for starting the trains by but the clock is very regular; a telegraph is fitted up, however it is not often used; generally speaking the trains on the atmospheric line start every half hour from the either terminus; the machinery at the Dalkey terminus, when the trains are light, is set in motion from one minute and a half to two minutes before the actual time for starting has arrived; in heavy trains from 3 to 4 minutes, because the greater the weight to be drawn on the line, the greater degree of exhaustion of air from the tube is necessary; six or seven minutes generally elapse from the commencement of working the machinery until the arrival of each train from Kingstown; that is the ordinary time of the engine and wheel being at work for the purpose of acting on each train; of these six or seven minutes, the train is actually in motion from four and a half to five minutes; of course, during the entire seven minutes, each half hour, the men in the Dalkey atmospheric house are most actively, and, I might add, most anxiously engaged; each train returns to Kingstown by its own gravity descending on an inclined plane; Millcreest is one of the engine men in the Dalkey house; Hanville is the fireman, and Scully the boy who keeps the look out."
"I have known John Millcreest since the year 1824 some time previous to the Dublin and Kingstown line being opened for traffic; he has not been ever since in the employment of the company; we parted with him for some time in order to accommodate the proprietors of the City-quay brewery who asked the directors of the Kingstown Raileay Company to recommend them a good, steady, careful man to whom they could entrust the management of the machinery of their brewery; we selected Millcreest as the best man at our disposal, and sent him to them; Millcreest remained at the City-quay brewery about two years, and then returned to the Kingstown Company, so that with the exception of that period he has been in our employment since 1824; his present wages as steady engine man at the Dalkey Atmospheric House are thirty-five shillings a week; I have had considerable intercourse with him, and I never knew a man of more unexceptionable character; there have not been any complaints against him for neglect of duty; the other traversers have been working in the Dalkey engine house for nearly two years; Hanville is a steady, sober, proper, well-conducted person; Scully also bears a very good character, and he has been frequently entrusted by the pay clerk to carry the wages of the Dalkey enginemen; I have given positive directions to the engine men to keep the door of the engine-room closed when the machinery in the Dalkey house is at work, and if it were reported to me that they had disobeyed those orders they would be subjected to heavy punishment; a great deal of caution is required in going through the engine-room when the machinery is at work, and hence the necessity for keeping the door closed."
"I am in the employment of the Dublin and Kingstown Railway Company as watchman at the Dalkey station, and have been so since the line was opened; I recollect the evening of the 16th of April, when the transaction about Mr. Duffy took place; I know the clock room, or the telegraph room off the engine-house; about nine o'clock when the last train started from Kingstown to Dalkey I was in that room, but I did not remain there many minutes; I stopped while the machinery was working; the room that I am speaking of is the small room that adjoins the machinery; Hanville was on duty in the passage between the boiler room and the engine; Thompson was attending to the steam engine; the room I was seated in is called the clock room. . . . When Mr. Duffy came into the clock-room, the men were all at their work; Millcreest, Hanville, Scully, and Thompson were all there; the engine was stopped working shortly after Mr. Duffy entered; the lights were all burning in the building, and the telegraph-room was lighted up; I did not say a word, nor can I tell who spoke; but when Mr. Duffy came down from the gallery-room, he appeared to me as if he were frightened and excited; he immediately asked for the door to be unlocked, and said that he was a magistrate of the city of Dublin; some of the men present told him that he had got on with highly improper conduct up stairs, and Millcreest said to Mr. Duffy, that "if he were magistrate, King, or Devil, he should not leave the house until he gave him in charge of the police"; Hanville then opened the back door, for the purpose of going to the fire-room, to put out the fires, and then Mr. Duffy went away unprevented or unmolested.
Mr. Duffy came into the room where I was; I did not know he was in the house until he made his appearance in the clock room; it is my duty at times to be in that room; I take charge of it when the men are working; I was there I should say about a quarter of an hour; it was the duty of either Thompson or Millcreest to be in the room looking at the clock in order to regulate the working of the machinery; there was a train coming up the line at the time I was in the clock room; there was no occasion then for either Thompson or Millcreest to look at the clock; during the time of the working of the machinery to bring up the nine o'clock train some of the men were in with me; I cannot tell which of them; I am not able to state what length of time elapsed before they all came in; I did not take particular notice of the men going backwards or forwards; I did not hear any bad language used before Mr. Duffy came down into the clock room; I heard no noise or bustle further than the working of the engine; the door was open, and it is always so when the engine is at work; Millcreest used the words, "If you were magistrate, king, or devil": no person said in my hearing "The door is open, and you may now go"; Hanville went out on the back door before Mr. Duffy; some minutes previously, but not many, when I heard Milcreest say that he would not let Mr. Duffy go out until he gave him in charge to the police, I did not assist him to detain Mr. Duffy, because the door was then locked; when the door was opened no person attempted to stop Mr. Duffy; I believe that none of the men went out after or attempted to follow Mr. Duffy; I went first; I went to the carriage shed; Milcreest I am positive did not make any attempt to stop Mr. Duffy from going out when the door was opened; he did not follow him; the carriages had not left the shed when I went there; I saw Hanville after I left the shed when the train started for Kingstown; I did not see Mr. Duffy in any of the carriages, nor did I look to see if he were in one of them; it was not my duty to do so; I merely went to the shed for the purpose of putting out the lights and locking up the place after the last train had started."
"The defence, he said, chiefly and mainly depended upon proof given of the characters borne by the traversers for a number of years, which he should take the liberty of saying should not be attended to in a criminal case except under certain circumstances. It was not an answer to a charge properly proved, nor was it sufficient to make a jury disbelieve a charge, but it was so far of value, that if a case was involved in a rational doubt, or surrounded with difficulties, so that a jury would fall under an embarrassment how they should decide, then a good character was of the utmost value, and should turn down the scale in favour of the accused. Character per se was not enough to acquit a man of a crime solemnly sworn to, but was alone sufficient to be considered in his favour if a rational doubt existed. He (Mr. M'Donagh) appeared before the jury to uphold character on the part of his friend Mr. Duffy, 3whose character, always before unimpeached, was assailed with a false and foul accusation; and when alluding to character and the character of the traversers, he could not very well understand how persons of unblemished fame and of good repute, could so very readily and simultaneously come to the one conclusion, acting in mistake, as was alleged, and charge a gentleman with one of the most revolting offences recorded in history. It was hard to suppose that men of good character heretofore could be guilty of such a charge; but when the evidence was conclusive, as it was in the present case, there could be no doubt about it. He could very well imagine three or four persons thinking it very fine fun to take a start out of a gentleman, by making a charge of this nature. He could also imagine a weak minded man giving them money rather than be charged. Many difficulties had been suggested by the learned genlemen who acted for the trave4rsers; and it was stated that they should, if at all, have been indicted under the 4th section of the statute, which, however, he (Mr. M'Donagh) considered wholly inapplicable, because it applied to cases where the object of extortion had been successful. The learned gentleman proceeded at great length to comment on the evidence adduced at both sides, and with reference to the statement of Mr. Hatchell ascribing the transaction to a mistake, he (Mr. M'D) denied that there could be a mistake, when three persons at one and the same moment, and in one and the same breath, accused the prosecutor. It could not be supposed for a moment, by reasonable men, that simultaneously they would fall into a common error. Now, what were the real facts of this very painful case – a charge of an injurious nature had been made upon his client by three servants of a public company, and here was that public and powerful company coming forward to assist them in, and pay for their defence, and endeavouring to sustain the idea started by their ingenious counsel, that, forsooth, these poor innocent, much maligned men were mistaken, and that the prosecutor had no reason to complain, though he had suffered seriously, and thought amongst the thoughtless of the world, the acquittal of these men would be the condemnation of Mr. Duffy. A mistake might be committed from a species of conviction – a moral certainly arising from circumstances, that would justify any party in making charges against another. But where was the evidence of any such circumstances in this case – where did there appear the slightest reason for making the charge, or that could justify it. Under these circumstances Mr. Duffy was obliged to come before his countrymen to give a description of this revolting scene – he a man holding the Queen's commission, bound by that commission to protect the peace and not to violate the law, had the imputation cast upon him that he, forgetful of the duty he owed his sovereign – his duty to God – his feelings as a gentleman, and his sentiments as a man – did degrade himself in the scale of manhood. There was but one course open to him under these circumstances, that was, to come before his fellow countrymen, to take the book of God in his hand, and to adjure, by the solemn obligation imposed by an oath, that these charges were made upon him, and that these charges were false. He (Mr. M'D.) asked did the jury believe him or not? That he submitted was the only question in the case. Did these men concur in making the charge, and was that charge false? Did not Mr. Duffy's station, position, and character recommend him to their notice, and was it likely that he would be guilty of perjury? After some further observations Mr. M'Donagh concluded by reminding the jury that in fact it was Mr. Duffy they were trying, and expressing his belief that they would give such a verdict as would be consonant with right and justice adn satisfactory to their consciences."
Gentlemen of the jury, I am quite certain that from gentlemen of your consideration this case will receive every attention that itsimportance demands. The scene of the transaction is not of long duration; at the same time it is put forward to your consideration by the able and learned gentlemen who have stated their clients' cases respectively in such very different points of view, and subject to such very different lights, that it requires the consideration of men accustomed to public business – of men of your sense and habits of thinking, to give it the weight of deliberation which it properly requires. Gentlemen the indictment contains seven counts: every one of these counts is a count of conspiracy. If men through false charges and menaces obtain money, each individual thereby subjects himself to the penalties &1#50; and very heavy penalties they are which the laws of this country thought right and necessary to inflict upon crimes of this nature. But it has been properly observed to you in answer that the statutable offences are where the money has been procured through the medium of the false charges. That, gentlemen, is not the case in conspiracy. A conspiracy may be complete though the objected intended or attempted by the conspirators was never carried into effect; and therefore though it may not be necessary at all to account to you why the prosecutor has proceeded at common law in preference to the remedies given under the statute, that which I have not assigned, and which you have heard already from the lips of counsel, may without further inquiry be considered satisfactory by you. We shall see now and confine our attention to the charges contained in the indictment. A conspiracy is an unlawful combining and agreeing of two or more persons to do, or procure to be done, an unlawful act or even a lawful act by unlawful means or for an unlawfull end, whether anything have been actuqlly effected or not. Now, gentlemen, if the parties here indicted conspired in the manner that brings them with the definition I have stated to you of what is a conspiracy at common law, you will see by that definition that two or more of the parties accused must be convicted in order to bring them within the charge of conspiracy. They must have conspired and agreed, and you must be satisfied of that fact before it would be competent for you to find them guilty upon the charges now preferred, though you might be satisfied that every one of the three traversers individually had an unlawful object to achieve an unlawful end. In order to convict the traversers or any of them of the charge of conspiracy, it is necessary that you shoudl be satisfied not only of the guilt individually of the respective traversers, but you must be satisfied in your consciences that they did agree and conspire to bring about that unlawful object, or by unlawful means to procure its accomplishment. Now, as I have said upon a former occasion, I do not mean that you should have ground to surmise, but that you should have such evidence before you as would convince your consciences that they or some of them did respectively and in common combine or agree to do an unlawful act – whether that act be unlawful in its original design, or become so by the unlawful means by which it was agreed to be brought about. – It is not necessary to constitute the crime of conspiracy that the thing agreed upon should be done – the crime of conspiracy is complete, though in point of fact the criminal end was never attained Another observation to be made to you is, and I state it in the words of one of the English judges – It is not necessary that the several parties charged with a common conspiracy should have met to concoct that conspiracy." It will not be necessary to convince so as to justify a conviction, that these three several traverseers, or any two of them, did at any one time meet together, and did then and there concert and agree amongst each other for the accomplishment of the purpose. It is enough if, on the facts proved, you are satisfied that the traversers were acting in concert in this matter – if you are satisfied that there was a concert between them – that is, an illegal concert – I am bound to say that, being thus convinced of conspiracy, it is not necessary that you should find the traversers doing each particular act, as, after the fact of conspiracy once established, whatever is said or done by either of them in pursuance of the common design, is, in law and common sense, considered to be the act of all. What are the traversers here charges with? They are charged with conspiracy to falsely charge and accuse the prosecutor, Mr. Duffy, with having attempted to commit the crime of sodomy, and that in pursuance of such conspiracy they did charge and accuse the prosecutor of that crime. (The learned judge here recited the several counts in the indictment, and having remarked on Mr. Hatchell's objection that there was no case made in law against the traversers, proceeded to say). Now, having said so much, and having put out of your way the points of law, it becomes my duty to suggest to you that you are to consider with great care and great deliberation the evidence that has been given, and to say whether or not it satisfies you that the traversers entered into the conspiracy. Gentlemen, the crime of conspiracy imputed in this case is of a most painful, a most odious nature – a crime from which – and every thing connected with it – every honest, upright, and feeling mind will turn with disgust; but in proportion as that feeling exists, we are to guard ourselves and watch the more carefully, lest we be carried away by our feelings and rendered unable to bring our better judgment to bear upon the facts sworn to in evidence. It will be necessary, in order to justify you in finding the traversers guilty, that you are satisfied beyond any reasonable and rational doubt of the guilt of the parties. I will add that in a charge of this nature, if the result of the evidence at both sides should impress upon your minds not a decided conviction of their guilt, but only that which may amount to a certain degree of doubt and no further, that will not warrant you in coming to a conclusion of their guilt; on the other hand if your judgments and consciences lead to a conviction of their guilt, so as to leave upon your minds no rational, substantial, or fair doubt, it will be your duty to the public, and to the performance and satisfaction of the oaths you have taken, to find the prisoners guilty. And here I may observe, that if you do not make up your minds to a conviction of two out of the three, though you may be satisfied of the individual guilt of each of them, however the law may dispoise of them otherwise or afterwards; you would not be warranted in convicting them of conspiracy. (The Chief Justice here recapitulated and commented on evidence). He observed that from beginning to end there was no attempt made on behalf of the traversers or any of them to show that any improper liberties had been taken by Mr. Duffy, and adding his loss to account for any justification in law of the two elder prisoners making the charge at one and the same time, and before the boy Scully had ever opened his lips on the subject, his lordship amongst other points in the evidence, dwelt upon the threat used by Millchreest, of "Be he magistrate, king, or devil," he should be given in charge to the police, observing that there was no attempt made to follow him – no alarm given; and after the announcement that he was a magistrate, no effort made to detain him in the engine-house. The learned judge next adverted to the excellent character received by the traversrs and then proceeded – I don't mean to say a more general character is to overcome absolute testimony absolutely swort to; but if there be facts i the case which are incapable of being absolutely sworn to; for instance, of the actual conspiracy which is not sworn to, but which you are to collect from the general acts of the case; I saw, if you have a doubt whether that conspiracy did exist or not, the admirable character given of these men is of the highest value and greatly to be relied on. But, gentlemen, it is to be said that former character is no shield when the parties are seen departing from it, and actually preparing to fall into the grossest courses of abominable perjury by taking away the fair fame of a highly respectable gentleman by a false and unfounded accusation of one of those crimes at which our nature shudders. And yet it is undoubted but that a charge of that nature, if you believe the evidence of Mr. Duffy, was imputed, falsely imputed, to him by two out of the three men, together with the boy; and yet these persons bore this excellent character, of which they were unworthy if the facts be true. You have heard the observations of Mr. M'Donagh as applicable to this point, and those observations I do not think proper to take from you; they were that the best character was not to stand in competition with the absolute positive testimony of a credible witness swearing absolutely as to matter of fact. Now that proposition is perfectly correct. I subscribe to that law. The value of character is, as he has said, where there is a soubt existing – it is not to be put in opposition to the absolute testimony of an unblemished witness. With these observations I commit the case to your deliberate consideration – reminding you again, that if you are not perfectly satisfied that a conspiracy existed, you are then in that case to give the traversers the benefit of every such fair and reasonable doubt – such as reasonable, and fair, and upright men may entertain – if you entertain such a doubt as that – even though he be nnot satisfied of the innocence of these men – you are, nevertheless, bound to acquit them; but it, upon the other hand, beyond all reasonable doubt, you feel convinced that the charge was made in common, and entered into with mutual design by these three persons, or any two of them, then, upon the oath you have taken, you are bound to convict them."
Judge Jackson – Did you know Mr. Duffy by name on the day that you went to Beggar's-bush? No Sir.
Judge Jackson – Then you did not know him on that day? Yes, sir, I did (great sensation).
The witness sobbed bitterly, and appeared greatly bewildered.
Mr. M'Donagh – Did the police tell you that the gentleman's name was Duffy? No, Sir, never.
[SOURCE: Freeman's Journal, Friday 15 August 1845]
Witness – On my oath I did. (This announcement caused deep sensation in court); I know that Hanwell and Scully determined to play this trick on Mr. Duffy, and I heard Milcreest say that the next time Mr. Duffy came there he would make him shake his purse; Thompson, Hanwell, and Scully were present then.
On this note of confusion (i.e. did the conspiracy to extort money begin before or after Duffy had first made made indecent advances to Scully), the court adjourned for the day. (Freeman's Journal, Wednesday 24 June 1846).
Counsel – At what time was it that you heard this?
Witness – It was three days after.
Counsel – Three days after what?
Witness – Three days after the 16th of April.
Counsel – But did you har them threaten this before the last occurrence?
The Court – The witness has distinctly stated that it was after the 16th of April, and I cannot allow him to escape from that statement.
Mr. D'Donough then, with permission of the court, put the followintg question:– Did you at any time before the 16th of April hear these men say anything about extorting money from Mr. Duffy?
Witness – I did, about a week after the first occurrence.
Counsel – When was that?
Witness – On the 16th of April. (To further questions the witness answered that he was aware of two occasions on which Mr. Duffy went to the engine-house; and the remarks about extorting money from Mr. Duffy were made by the men between the last time he went to the engine-house and the first).
Rictor Norton (Ed.), "Alleged Conspiracy against a Police Magistrate in Dublin, 1845–46",
Homosexuality in Nineteenth-Century England: A Sourcebook, 2 June 2017
<http://rictornorton.co.uk/eighteen/1845duff.htm>.
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