An affidavit was to be made, and the affidavit was to be sworn by Edward Smith ?-.Yes. And it was prepared, and you stood by, and saw Ferris put the name Edward Smith to the affidavit?--I did. And without ever being sworn by Edward Smith, or any other person, it was to be made use of to set aside the nonsuit; and you stood by and saw it done ?---I did. Was not that a wicked transaction, as you are in the presence of God ?--I knew no better, as he advised me. You knew no better; to see an affidavit drawn up and signed by a name of a person who did not appear, and it was to be made use of in a court of justice. Do you mean to say you are so ignorant, or so wicked, as not to know it was a fraud, or to disregard it ?—I did it by his advice. Were you so ignorant or so weak as not to know, that it was not a fair transaction?-Any man's sense would tell him it was not fair, and that was the reason I did not proceed farther upon it. Was it because you thought it wrong, or were told it was improper?--I thought it would be of no use. You said upon your direct examination, that you were told it would not answer; was not that the reason?---No; I thought no more of it. Your name is Edward Smith ?---My name is Edward Smith Farrell. I signed a note Edward Smith Farrell to make a distinction between others, which were signed by Edward Farrell. Why did you sign Smith ?-Because my mother's name is Smith, and to make a distinction. There was a promissory note you say drawn in favour of Sylvester Farrell ?--Yes. Ferris desired me to go to the drawer of it, and I would get twenty guineas, that I should have ten, and he would have ten more. You took the note upon those terms ?---Yes, but I did not go; it shows I had no design, or I would have gone to the drawer. Why not give it to Sylvester Farrell?--I did not see him. Did you ever look for him ?--I was to hold it for him. Did you look upon it as an honest transaction?---No, I did not. Where does Sylvester Farrell live ?---He keeps a tea-house in Drumcondra. How long are you in the Marshalsea ? Since the 18th of February last, And James Ferris applied to you to become a United Irishman. When was that ?-In the latter end of February or beginning of March. You are in the Four Courts Marshalsea ? I am. When were you removed from the Sheriff's prison?-On the 6th of May. What did Ferris apply to you for?---To be an assistance to him, What did he say --He told me I had an opportunity of making my fortune, and put me past shoe-making. I asked what were the means he had; he said he had a pull that I was not up to. I asked him what it was. He hesitated, and then said, you are a blabbering sort of a fellow. I said, no, that I had stuck to him. He said, there are great sums of money to be had. Your objection was, that you had no friends to extricate you ?---Yes. If you had friends to extricate you, you would have agreed?---No, I would not. You were true to him till that time, although you saw a false name put to an affidavit, and saw a name put to a note, and you were true to him; and would become a United Irishman if you had a friend to extricate you from the gallows?---No, Sir, I gave you my reasons, and excellent ones they were. You were faithful to this man down to the month of March. Had you any quarrel with him?--No. Have you had any communication with him?---No, I could not visit him, and he was not kind enough to visit me. That vexed you ?---No, I thought the ab. sence would be better on my side. You look upon him as a very bad fellow? ---I do; and myself as bad for knowing him. Did you ever write to him?--I did. You said you had no communication with him?--I wrote a bit of a note to him. His father brought me a bit of a note, and I sent word by the father to buy shoes from me, if he wanted them; to take three pair of shoes, and pay a guinea for them, as I looked upon him to be full of money. Was the guinea to be paid before the shoes were made?--No: if he had sent the order, I would have made the shoes. When I got no answer, I sent the maid with another note. You were upon good terms with him then? And I am so still. Is that name, Sylvester Farrell, Ferris's usual writing?---No, he made three or four offers before he hit off this: he had a paper with the name of Sylvester Farrell upon it. What was that you said of Reily, was that before or after the nonsuit ?--You put me to a stand; I cannot recollect. Was it before or after the indorsement upon the note ?--I cannot say. Then you were upon friendly terms with him, and are so still?--No, the bands are broke. Were you ever in the gaol of Newgate ?---I go. And you never sent it?-No, I could not But you had a mode of sending?--I did not know where he lived. [Here the counsel for the prisoner produced a note, which the witness swore he believed to be Ferris's writing, and which the witness said was brought to him by an apprentice boy of one Hanly, a tailor in Thomas-street. The note was read, viz. malice prepensed, to kill and murder the earl of Carhampton. Gentlemen, the attorneygeneral did very properly state, that by our law, conspiracies to murder were capital ofcapital, and became a misdemeanor. But a fences. But after some time, it ceased to be modern statute has made the combining and confederating together to commit a murder, a capital offence, and it is determined by the highest authority, that the very agreeing to do the act is the crime, and that it is not ne "Mr. Ferris_requests to know from Mr. Edward Smith Farrell, if the affidavit of Ed-cessary to prove an overt act in consequence ward Smith be in F.'s hand-writing, as an indictment for personating another man may be preferred against him at the next commission."] Did you hear that James Dunn made an affidavit to put off his trial last July?—I know nothing of any of the persons sworn against; I never saw Dunn. I did not ask you; but whether you heard, that an affidavit was sworn?—No, I did not. Who told the friends of Dunn, that you received that note?-I showed it to Cronyn, and several in the Marshalsea. He said, do not write to the villain; he wants something under your hand. Mr. Curran. My lords, I am aware that I am not entitled to speak to the evidence, but I beg leave merely to suggest one point to your lordships-It is this: putting out of the case altogether the [testimony of Ferris, contradicted as he is, the case would be confined to the testimony of lords Carhampton and Enniskillen of the declarations of the prisoner, which evidence does not support the present indictment for the particular conspiracy therein described, any thing said by the prisoner, with allusion to what was mentioned by Ferris, can receive no illustration from it. Any general admission of an intention to murder made by the prisoner with a mind ever so clear and unbiassed cannot be illustrated by Ferris's testimony, if that be put out of the case. The prisoner may have had an intention to murder, that may appear by his own declaration; but yet that will not support the present indictment, because to support it, there must be evidence of a conspiring and confederating with the persons named in the indictment, of which there is no evidence beyond the testimony of Ferris. Mr. Prime Serjeant.-My lords, it is not my intention to avail myself of my right to address the jury upon this case. Mr. Justice Boyd-Gentlemen of the Jury; the prisoner is indicted, for that he with others, being evil disposed and designing persons, on the 7th of May, in the 37th year of the king, wilfully, maliciously, and feloniously did conspire and confederate together, of their words of the statute are, combining, confeof that agreement as in case of treason. The derating and agreeing together, &c. Therefore the agreeing to do the act constitutes the crime, although no act be done in consequence of it; and it is not necessary for a prosecutor to prove an overt act. Gentlemen, there are a number of persons indicted for this offence. The only one for your consideration now, is the prisoner at the bar. To prove this conspiracy, the first witness produced was James Ferris. [Here the learned judge recapitulated the testimony of Ferris.] Gentlemen, the cross-examination of this witness went to show, that he does not deserve credit. The fact of his saying, that he issued the writ with Hickson's permission is material, because Hickson positively de nies it. I am to observe to you, that if you do not think the testimony of Ferris is supported by the testimony of lords Carhampton and Enniskillen, their testimony fails, because the confession of the prisoner does not go to prove the identical conspiracy laid in this indictment. If you believe Ferris, and think him supported by the evidence of lords Carhampton and Enniskillen, you will then find the prisoner guilty. Gentlemen, Thomas Carey was produced. [The learned judge then stated the affidavit and subsequent evidence.] These, gentlemen, are the facts to discredit Ferris: he gave a long history of the proceedings. That he attended these meetings is to be taken as true, as he gave information by letter to loru Carhampton, which was proved. That to be sure is a mere assertion of his own, but in consequence of it the prisoners were appre hended, and Ferris did not know the prisoner till he joined the society, and the prisoner admitted he knew Ferris. The testimony of Farrel, which went to impeach Ferris, shows him to be a participator in every guilty act, which he imputed to Ferris. Gentlemen, much depends upon the credit of Ferris: if his doubtful testimony be set up by the evidence given by lord Carhampton and Enniskillen, that goes to establish the conspiracy in the indictment. But if you do not believe him, their evidence is not suffcient to support this indictment. Mr. Justice Downes.-Gentlemen of the for both parties in a suit, and suspended by one of the courts, for refusing to obey their order. Thus he represents himself. Jury; I must make a few observations to you upon the most important duty, which you have to perform. The prisoner is indicted upon a statute, making conspiracy for murder a capital offence. Gentlemen, I need not tell you, that it calls for particular caution in forming your verdict, where the consequence affects the life of the prisoner. At the same time I should hope that caution would apply in every case, let the consequence be what it may. A conspiracy of the most abominable and dark nature is related to you by Ferris. I shall not go through all the particulars; it is enough to say, that if he obtains credit from you, he has stated a most abominable conspiracy, such as this (statute meant to punish, and has brought home to the prisoner, the deliberately purposing to commit a murder, attending at two or three times, proposing his plan, hearing objections to it, and adopting another proposed by some members of the meeting. A plan, the more extraordinary, as not founded in private malice towards the person conspired against. But it is made the more alarming and astonishing, as it is made, if you believe the witness, in pursuance of a plan by a party, rejoicing in the scheme, as one of the greatest benefits which could accrue to their cause. Such, gentlemen, is the charge, and if you believe Ferris, it is fairly and fully brought home to the prisoner. The credit of Ferris is attacked, in my apprehension very powerfully; first by the testimony of Hickson, then by the testimony of Farrell; and by a comparison between his own testimony and his affidavit formerly sworn. But I have said supposing the conspiracy to be true, you cannot expect an account of it from a man, against whom it would be impossible to allege an objection. If you believe the witness, he has fully established the fact. Gentlemen, there has been evidence laid before you, deserving your most serious attention you are to consider whether that evidence has made the account given by Ferris receive your implicit credit: I mean the testimony of lords Carhampton and Enniskillen : whether that evidence has made you believe, without any rational doubt, that the account given by Ferris is true; because you must adopt the truth of that story told you by Ferris, where his credit appears in no favourable light, contradicted by himself, by Hickson and by his own former affidavits, all going to impeach his credit. But however if after the account given by those two other witnesses you credit the account given by Ferris, there is a case upon which you should find the prisoner guilty. For, as my brother Boyd has stated, you must believe, that Ferris told complete and perfect truth, or in my apprehension, the evidence, supposing his testimony out of the case, will not go to support the conspiracy in this indictment; because it is an indictment for a conspiracy to murder the noble lord, at a certain time, by certain persons named in the indictment, the knowledge of which circumstances comes alone from Ferris. If his account be true, it establishes the indictment. If, I say, notwithstanding the impeachment of his testimony, you take it to be true, the case, in my apprehension, is estaGentlemen, I must observe, that the parti-blished against the prisoner. cular facts, which form the ground upon which his credit is impeached, have no direct reference to the case before you. Those facts were examined to, in order to show, from the mouth of Ferris himself, that he is a man of such conduct as renders him undeserving of credit. This they endeavour to show from his own mouth by what he swore upon a former occasion, and by the testimony of others. As to Hickson, his evidence is confined to the simple fact, whether he had given authority in a particular cause to issue a writ, which authority Ferris swears positively he had. In that fact, Hickson flatly contradicts him, for be says, he positively forbid him to use his Dame. With regard to Farrell, it has been observed by my brother Boyd, and I concur in the observation, that in every act in which he delineates Ferris, he is a participator of the guilt, if you believe him. But upon the examination, Ferris's account of himself puts him in no favourable point of view. Indeed, you must not expect a witness from such a conspiracy above all exception. He appears to be a practising attorpey of no fair character, asting I still must remind you, gentlemen, that in all cases of credit, it is not for us to give any opinion. It is for you alone to determine. We lay before you such observations as occur to us. But it is for you alone finally to decide. As to the evidence, I have already stated what has been given. It is not necessary to go minutely through it. I have in general alluded to the objections to the credit of the witness. But the case on the part of the crown does not rest upon the testimony of Ferris, with respect to the whole of the fact, though I again repeat, that you must believe that account before you can convict. You have the evidence of lord Carhampton stating an admission from the prisoner's mouth. This is evidence always to be received with caution. There is no manner of doubt, that the declarations, the expressions of a man accused may be brought in evidence against him. But it is always necessary to examine in what manner those expressions were uttered; and how they were induced, and whether any pains were taken to procure them from the prisoner. Gentlemen, I will state to you, what I take to be law without any manner of question. The rule of law is drawn from a wise consider ation of the crime, and an impression of the various facts. I take the law to be as laid down and the reason of it given in a book which I shall read to you. "The human mind," says the law book, "under the pressure of calamity is easily seduced, and is liable in the alarm of danger to acknowledge indiscriminately a falsehood or a truth, as different agitations may prevail. A confession therefore whether made upon an official examination, or in discourse with private persons, which is obtained from a defen- | dant either by the flattery of hope, or by the impressions of fear, however slightly the emotions may be implanted, is not admissible evidence."* I take that to be clear and undoubted law. Where the declarations of a prisoner are to be given in evidence against him, the Court in the first instance is to see under what circumstances such evidence comes before them: and if they see in the introductory testimony of the witness, that he held out hopes or fears; that he threatened the party, or gave hopes of pardon to induce the confession, if any thing, I say, of that sort appears, it will be the duty of the Court to stop it altogether. Accordingly in this case, inquiry was made, and lord Carhampton said, he held out neither hopes, nor fears. That being the case, it was the duty of the Court to receive that evidence. We were bound not (to stop that evidence from going to you; but to leave it to you to determine what weight it should have as well with respect to the credit of the first witness, as other parts of the case. From the whole of the transaction, and from the manner in which the words were uttered by the prisoner, as brought in evidence before you, you are to judge, whether lord Carhampton held out such hopes, or fears, as induced this confession. If in fact he did, then you are to discard that confession. But if he did not, then you will judge what the effect of the confession is. Lord Carhampton told you, he went not to ask the prisoner any thing respecting himself, but with respect to others, and the question he put seems to go no farther: he asked, where these men were? The prisoner refused to give any information, and having refused to make the slightest disclosure, lord Carhampton says, "I little thought you would have attempted to murder me;" and he said it was an exclamation that broke from him in wonder and astonishment, that the prisoner should have undertaken so abominable a murder. Upon this, you find the man, who had refused to disclose any thing respecting others, frankly stating his own guilt, stating his motives, not from any personal objection, *Hawk. P. C. lib. 2, c. 46, s. 3; in notis. See too the summing up of lord chief justice Eyre in the case of Crossfield, p. 215 of this Volume, but as he says, for the good of the party, and this admission comes from a prisoner, refusing to disclose any thing, respecting any other person. Gentlemen, we find, according to the testimony of lords Carhampton and Enniskillen, that the prisoner, not only upon that occasion, but upon the following day, in the presence of lord Enniskillen, upon the question being put to him, gave directly the same account, as he did the first day to lord Carhampton. Lord Carhampton then gave directions, that the prisoner's wife should be admitted to see him. It seems that before that she was excluded. After this, upon Wednesday, lord Carhampton goes again, and then you find, that the prisoner flatly denied all he had said before, alleging he was mad when he said what he did. He was asked, was he prepared to deny all he had said, he said he was, and he refused to say any thing more. Gentlemen, when the confessions of a party are given in evidence, it is a sound rule to carry them no farther than the expressions in which they are made naturally convey; and upon these declarations as sworn to by lords Carhampton and Enniskillen, you find the prisoner express a determination to destroy the noble lord, stating that it is not for any particular enmity, but for the benefit of a party; that he would not take the advantages he had from time to time, because he would not do it alone, but only with a party, and for the benefit of a party. Now, gentlemen, if this evidence of the declarations strikes your mind to be fairly ob tained, without any hopes, or fears held out, and that you will consider from the circumstances of the case altogether as well as from the direct testimony; if I say, you believe, that these declarations fell voluntarily from the prisoner; that they fell from him as the dictates of a brutal heart, resolved upon the destruction of the man he was speaking to, and careless of the consequences; if you be lieve that, and that they were not induced by hopes or fears, then you will consider, how far they corroborate the account given by Ferris. You will consider the declarations in that point of view, whether they induce you to believe that account to be true; because you must believe that, in order to convict the prisoner; because no expressions of the most brutal disposition, even although they allude to his even acting with a party, and for a party, will be sufficient to convict the prisoner, unless you believe that party to have been, and that conspiracy to have existed with, the very persons named in the indictment, or one of them. You must believe that, and that single fact does not come from either lord Carhampton or lord Enniskillen, but from Ferris alone: he alone spoke of the names mentioned in the indictment Gentlemen, if upon the whole of the case, you do believe, notwithstanding the objections I have alluded to as bearing upon the credit of Ferris, from his account of the transaction, and enced by the circumstance of the noble lord from what you have heard from lords Carhamp-being known to be armed, is all matter for ton and Enniskillen, without any rational your consideration. If you do believe, that doubt upon your minds, that account of Ferris these declarations were induced by hope or to be true, and that the prisoner was involved fear, reject them altogether; then the case in the conspiracy in the manner Ferris told stands upon the testimony of Ferris, and if you, then, in my apprehension, a case is made upon his statement merely, you cannot safely against the prisoner. But if you utterly dis- rely upon it, then acquit the prisoner; but if believe what Ferris has said, then notwith- you have no rational doubt, collected from the standing the declarations proved by lords testimony of Ferris, and that it is supported Carhampton and Enniskillen, in my appre- by the testimony of lords Carhampton and hension, you ought to acquit the prisoner, I Enniskillen, then you ought to convict him. say, notwithstanding these declarations, if they do not induce you to believe the account given by Ferris. But whether these declarations are fairly obtained, or whether the prisoner was influ The jury retired for half an hour, and returned with a verdict of Guilty.* * See the next case. 624. Proceedings on the Trial of PATRICK CARTY for conspiring to Murder the Right Honourable Henry Lawes Luttrell, Earl of Carhampton; tried before the Court holden under a Commission of Oyer and Terminer at Dublin, on Wednesday October 25th: 38 GEORGE III. A. D. 1797.* Wednesday, October 25th, 1797. PATRICK CARTY was this day brought up and put to his challenges, when the panel was called over as follows: William Thompson, esq. challenged peremptorily by the prisoner. James Vance, esq. same. Maurice Magrath, merchant challenged peremptorily by the prisoner. Patrick Carroll, merchant, set by on the part of the crown. Robert French, merchant, sworn. Francis Hamilton, merchant, challenged pe remptorily by the prisoner. Arthur Keene, merchant, sworn. Charles Williams, merchant, challenged peremptorily by the prisoner. Alexander Stillas, merchant, sworn. Francis Brady, merchant, sworn. Benjamin Simpson, merchant, same. Alexander Pitterton, merchant, set by on the part of the crown. William Leet, esq. challenged peremptorily by the prisoner. David Clarke, merchant, set by on the part of the crown. Thomas Wilkinson, merchant, sworn. Edward Druit, merchant, challenged pe- Arthur Keene, remptorily by the prisoner. William Harkness, merchant, sworn. remptorily by the prisoner. Edward Rice, merchant, same. Robert Neville, merchant, challenged peremptorily by the prisoner. Richard Wilson, merchant, sworn. Christopher Ormsby, merchant, challenged peremptorily by the prisoner. Alexander Stillas John Evatt, To whom the prisoner was given in charge. James Ferris Examined by Mr. Townshend. Do you know the prisoner at the bar?-I do; I have seen him before. Where did you first see him?--In Strandstreet. Was it in the street, or in a house?—At the house of a publican of the name of Maurice Dunn. Was he alone, or in company with any and Reported by William Ridgeway, esq. ba- what person?-He was in company with a rister at law. See the preceding case. man of the name of James Dunn, and three |