HC Deb 18 June 1858 vol 151 cc16-26

said, he wished to ask the Attorney General for Ireland whether he has any objection to lay on the table of the House a copy of the Notes taken by the Solicitor General for Ireland in his examination of the informer Burke, after the revelations said to have been, made by Burke to the policemen and driver of the car who took him from Nenagh to Roscrea; and also a copy of Burke's evidence on the trial of the Cormacks. He was induced to give notice of this question by the great excitement which prevailed in the county he had the honour to represent on the subject of the execution of the two Cormacks for the alleged murder of the late Mr. Ellis. This excitement had its origin in no unworthy feeling of sympathy for the crime of murder, but from a general belief that the course adopted at the trial, and previous to that event, was contrary to the ordinary mode of judicial investigation in a free country, and evinced on the part of the authorities rather a desire to punish some one than a determination to discriminate carefully between the innocent and the guilty. If this unfavourable impression was not removed from the minds of the people by the removal of all unnecessary secrecy and mystery, the consequences to the cause of or- der would be most injurious, for the reliance of the people on the integrity and impartiality of the administration of justice would be seriously diminished. The circumstances of the case were so extrordinary that he trusted the House would allow him to recapitulate them. Mr. Ellis met his death in October last as he was returning from Dublin to Templemore. He left Dublin by the half-past seven train, and arrived at Templemore at eleven. The night was extremely dark. While a boy named Burke, about sixteen years of age, was driving home to Templemore on an outside car, he, suddenly perceiving an obstacle in the road, got down from the car to remove it. While thus engaged a shot was fired by some one concealed behind the hedge, or a stunted tree, and the result was the death of Mr. Ellis. The usual Coroner's inquest was held, and among the jurors sat one of the Cormacks, who was eventually executed for the murder. The boy Burke was one of the witnesses at the inquest. His evidence implicated no one. He, however, subsequently changed his mind, denied all that he had said, accused the Cormacks, and became the principal witness, on whose testimony they were sent to the gallows. Hence, it was very evident that Burke was a perjurer, for he must have sworn falsely, either at the inquest or at the trial. After the inquest Burke was taken in charge by the police, and from October to the 15th of January he was kept in the gaols of Thurles and Nenagh. The resident magistrate, Mr. Gore Jones, threatened to keep him in gaol until he rotted unless he told all he knew about the matter. That Mr. Gore Jones had thus threatened him appeared to be true, for although Burke's statement to that effect had been long made public, Mr. Jones had not contradicted it. One of the other witnesses was a man named Spillane, the son of a policeman, who had seen the placards offering a large pecuniary reward to any one who would bring the murderers of Mr. Ellis to justice; and another witness was Sadler, the gaoler at Thurles. The right hon. and learned Gentleman opposite had represented the Crown at the trial and he (Mr. O'Donoghoe) wished to be informed by him whether he did not think that Burke and Spillane, the two witnesses, were quite as culpable as the Cormacks, and whether he concurred in the summing up of the Judge, who told the jury not to regard Burke as an accomplice, because but for that expression of opinion it was, probable from the disinclination of the jury to believe Burke, that the Cormacks would not have been sent to a premature grave? At the first trial, which was that of only one of the brothers, the jury were discharged. That was on a Saturday. The whole of Sunday was spent in scouring the county for jurors. (On the Monday following both the brothers were placed on their trial, and the Crown stretched their right of challenge to the utmost—challenging persons because they were Roman Catholics, or on some equally justifiable plea. After some difficulty a jury was got together which seemed to have stomach for such a proceeding. The new trial commenced with the same witnesses, and the right hon. Gentleman opposite exhausted his eloquence and imagination in his cause; but the thing reached its climax when the learned Judge charged the jury in a way in which he trusted juries were seldom charged within these realms. The court was crowded, and there was not one of that large assembly that must not have been shocked and dismayed by the speech of the learned Judge, who, setting aside the calm and impartial bearing which ought to distinguish the judicial bench, addressed the jury in the excited tones and language of an impassioned advocate. Mr. Justice Keogh addressed the jury as if he were determined not to expound the law to them, but to frighten them into returning a verdict for the Crown. They did return a verdict for the Crown, and the result was that the estimation in which the law was held had been very seriously diminished, as had also been the reliance upon the impartiality of justice. The two Cormacks were sentenced to death, and between the sentence and the execution every effort was made to obtain a commutation of the sentence. He had himself, with an hon. Friend of his, waited upon the Home Secretary upon the subject, and they had been told that the matter rested in the hands of the Executive in Ireland; the Executive in Ireland however, acting no doubt upon the advice of Mr. Justice Keogh, allowed the law to take its course. Upon the 11th of May the two unfortunate men were hanged, and since that time many things had occurred to shake all reliance in the credibility of the witnesses who had given evidence on the trial. He did not know what had become of Spillane, but Burke, the principal witness, when he was being taken out of the country confessed to two policemen and the driver of the car upon which he was being driven, that the whole of his evidence upon the trial was a fabrication. That statement produced a strong impression upon the public mind, for it was impossible to forget the dying declaration of their innocence by the two unfortunate men, and also the fact that Burke had been proved to be a perjurer. The confidence also in the credibility of the witness Sadler had been much shaken by what had taken place at the petty sessions at Thurles last Saturday. Sadler had written to the professional gentlemen engaged on behalf of the Cormacks, stating that he was in possession of information which would enable them to test the falsehood of the statements made at the trial, and last Saturday, before a large bench of magistrates, he had acknowledged having written such a letter, but denied that there was a single word of truth in it. Now, that was a grave matter for investigation, and it was an extraordinary thing that Burke should be got out of the way, and thus prevented being examined upon the subject. It was said that Burke wrote that letter, in order to please certain persons, but it appeared to him that, if credible at all, which was very doubtful, he was as credible in the one case as the other. He hoped that the right hon. Gentleman would produce the documents he had asked for, but whether he did so or not he was determined not to abandon the subject until it should be made apparent who were the guilty parties.


said, that he thought the hon. Member had done great service in bringing the matter forward. He himself had received numerous communications from various parts of Ireland—from Dublin, Clonmel, Waterford, Cork, and other places—which clearly proved that the impression generally prevailed that the men who had been hanged were as Innocent of the crime for which they were executed as the learned Judge himself. He had to acknowledge the courtesy which he had received from the right hon. Gentleman opposite in all the communications which he had had with him on the subject; but the fact was, that it was generally believed in Ireland that there had been a failure of justice. In some of the newspapers opinions had been expressed that these men had not got a fair trial, and that they were innocent of the crime for which they had suffered. The Limerick Reporter spoke of the charge of the Judge as being violent and passionate, and as being more like the harangue of an advocate than the impartial summing up of a Judge. He was told that it was not an uncommon thing in Ireland to send witnesses who had given evidence on such trials out of the country. He regretted it should be so. He concluded by expressing a hope that the right hon. Gentleman would grant the paper asked for by his hon. Friend, and that the House would institute a most searching investigation into the subject in order to give security to human life in Ireland.


said, he wished to confirm in every respect the statements which had been made by the two hon. Gentlemen who had preceded him. He had no hesitation in saying that there had never been a trial which had created so much excitement, or in which there was so strong an impression that justice had not been done. Indeed, until the law of Ireland was made the same as the law of England with regard to the police, it would be difficult to satisfy the people of Ireland that justice was impartially administered in that country. At present, if any crime were perpetrated the executive had the power of sending any number of police they pleased to any district in Ireland, and keeping them at the expense of the district until there was a conviction, and, consequently, a readiness to convict was the very natural result.


said, that in bringing forward this question the hon. Gentleman was taking a course which was hardly legitimate, as it was making the House of Commons a Court of Appeal from the regular and ordinary tribunals for administration of justice. In this case two men had been tried and found guilty, according to law, for the crime of murder. They had been executed, and now, some two months after their execution, the statement which they had just heard had been made by the hon. Member. When he succeeded to office, he found that this case had been partly advised upon by his predecessor, and a most frightful case it was. The murdered gentleman (Mr. Ellis) was an agent, and, at the same time, an active and successful farmer in Tipperary. He was a Scotchman, and a strong man in the prime of life; and he attended the market in Dublin every Wednesday, on which day it was known that he usually returned. He was murdered within a short distance of his own home; and an investi- gation was instituted on the part of the Crown, in order to discover the perpetrators of the deed. There was, and there ought to be, sympathy for the accused; but there sometimes was a great want of sympathy for those who endeavoured to assert and maintain the law. The House was called upon to believe that twelve gentlemen, as grave, serious, and considerate as any panel he had ever seen in a jury box, had consigned two of their fellow-creatures to death upon insufficient evidence, and that the learned Judge who tried the case had not merely erred in point of law—for that was not pretended—but had taken a false and prejudiced view of the facts. The two prisoners had been in the employment of Mr. Ellis, whose wages they received; and the man Spillane, the informer, was likewise in his service. Burke, the driver of the car, a lad about eighteen years of age, was also the deceased's domestic servant. The two Cormacks lived a short distance from Mr. Ellice's residence; and that gentleman could not reach or return from the railway without passing by their door. It was said there was a popular impression in favour of their innocence. On the night of the murder there was a card party at their house; and, he must say, that though he had some knowledge of strange trials, he had been astonished to learn, in the course of that inquiry, the amount of the demoralization that existed. The card party broke up about half-past nine o'clock; and the accused were proved by independent evidence to have been not long after that time at a place within twenty minutes' walk of the spot where the murder was committed. Spillane stated that the Cormacks wanted him to wait till all the rest of the company had left, and they saw Mr. Ellis's car driven past by the boy Burke, whom they knew perfectly well to be going to the railway station for his master. Spillane also swore that they had arranged with him before for the murder of Mr. Ellis. No doubt this witness admitted that he had previously borne a hand with the same two men in a business of the same kind; but he said that they had missed the gentleman, and it was not necessary to name him because he was still alive. Spillane swore that the prisoners desired him to leave the house with the rest of the company, and then to return. The hon. Gentleman had omitted to mention a most material fact. An innocent man, who had come from Connaught in search of work, and who, with his family, occupied a room in Cormack's house, gave important testimony. He stated that he went out into the kitchen after the company had gone and saw the two Cormacks, and heard them talking about going to bed. This man retired to his own room, and he afterwards heard the latch of the door raised, and the sound of the footsteps of some persons leaving the house. These men had exhibited a dexterity and ability which, if applied to a better purpose, might have made their fortunes. They laid their plans skilfully. They went with a blunderbuss to the part of the road where the car must pass and placed a number of branches at a particular spot. As soon as the vehicle approached, Mr. Ellis naturally asked the driver to get down and see what was on the road. Burke got down accordingly. The blunderbuss had been loaded with pieces of iron and slugs obtained from a blacksmith's forge, and the whole charge was discharged at the body of Mr. Ellis, who fell without a groan. The blacksmith proved that the punch with which he punched his iron had a defect in it, and two bits of the charge found in the deceased's body contained exactly the same mark as was borne by the pieces of iron in the smithy of the blacksmith. The informer swore that to load the blunderbuss in the most deadly manner they sent to the forge for the pieces of iron. Burke, the driver, said he was much terrified; that to save his own life he stooped down and took away the branches, and that he looked into the very faces of the men. After the shot had been fired, what followed? The nearest house to go to was the Cosmack's; but instead of hastening there, the lad Burke galloped as fast as he could to the police station, then to the doctor's, and next to the clergyman's. Meantime the prisoners separated, one of them going to hide the blunderbuss in a haystack a mile distant. One of them was nearly arrested by the police before he got back to his house. These men had had the benefit of a fair trial. They challenged thirty or forty jurymen, and three or four were challenged on the part of the Crown. It was easy to say to the counsel for the Crown, "Why did you take that course?" Being a stranger in the county, if he were informed that there was a man in the jury box who was not indifferent between the parties, he had a right to ask him, while he was unsworn, to stand by. The counsel for the prisoner had thanked him for What he had done, because when the men were both put upon their trial they got the advantage of the full challenge; and there was not a scintilla of objection taken to the mode of proceeding. It was true that, connected with the coroner's inquest, there was this extraordinary fact—that one of the Cormacks was empannelled as a juryman; and that constituted one reason why the jury law ought to be corrected. And when the young man Burke was asked on the trial why he had not told the coroner that he knew who it was that had murdered his master, his answer was, "Because the murderer stood before me, and I was terrified out of my life." Nobody, who had not had personal experience of them, could tell the difficulties which encompassed those who had the task of administering justice in Ireland, and it was most unfair for the hon. Member to say that twelve gentlemen, every one of whom had given his verdict at the peril of his life, had given that verdict against his conscience, and contrary to the evidence. [The O'DONOGHOE explained that he had said nothing of the kind]. He certainly understood that the hon. Gentleman had impeached the trial, and spoken somewhat severely of the learned Judge. Now he could state that he had seen the Report of the trial, which had been drawn up by the Judge, and it was only due to that learned person to say that it was a most faithful and minutely accurate report. He (Mr. Whiteside) gave no opinion upon the case, the executive Government decided upon the advice of the Judge, assisted by the Lord Chancellor. He had only one word further to say. It was stated there were only two witnesses against them. That was not so. There was the third, who heard them leave the house; and the very circumstances were witnesses against them. There was one witness, Mr. Sadler, on whom some reflection was attempted to be cast; but what did he prove? He was the keeper of the Bridewell in which the Cormacks were at first confined. He swore that when the man named Connaught Jack, who had been arrested along with the other inmates of the house, was being taken to the Bridewell, one of the Cormacks asked the other, who could see the road from his cell, "Whom have they got now?" "Connaught Jack."—"What do they want with him?" "Because he was in the house."—"Has he been examined yet?" "No."—"Tben if you see him tell him to be sure and say we did not leave the house that night." That was all the evidence given by Mr. Sadler. Had this evidence been obtained by corruption or other unworthy means, of course it was worth nothing; but when one conspirator chose to address another, and was overheard, it was quite right to give in evidence what he said. It was true that on the Saturday, when only one of these men was tried, the jury did not agree; but he understood that there were ten for a conviction and only two against it. On the Monday morning he felt it his duty to put them both upon their trial. The hon. Gentleman complained that the whole country was scoured for jurors. It was true the usual notices were served, but the reason was that the panel was then nearly exhausted, and it was necessary to obtain additional jurymen. The summonses were sent out in the regular manner, and he denied that any man was set aside on account either of his politics or of his religion. Some one had said that the members of the jury were descendants of the old Cromwellians. He did not know whether or not that was the case, but he could say that they appeared to be honest and conscientious men, and to be affected by the solemnity of the occasion. They tried the case, they found their verdict, and that House had no authority to sit in review upon that judgment. He did not blame either the hon. Gentleman the Member for the county, or the other hon. Gentleman (Mr. Gilpin) who had spoken according to his own humane feelings and convictions. He had been before asked what had become of Burke and Spillane. If the Crown had allowed Spillane to be seen in Tipperary for an hour after he gave evidence he would have been torn into a thousand pieces. He would not tell the hon. Gentleman what had become of Spillane, because it might reach the ears of those who had no sympathy with a witness. As to Burke, he must say a more dangerous witness to an accused person could not be found, for he was an ingenuous young man, with a countenance which betokened innocence, and from whom the counsel for the prisoners were not able to extract the confession of a single act of which he need be ashamed. Burke, however, was not an informer, although Spillane was. He was the servant of the murdered man, and under such circumstances, was he to be censured for giving evidence of what he swore that he saw? After the trial, however, it was thought desirable to remove him from the country. The Crown never deserted a witness—and it was important that this should be known—whose life was put in jeopardy by his giving evidence of the truth, and so long as he had anything to do with the administration of justice it never would. It was necessary to send the young man to the seaport to embark. He was placed on a car with two policemen. The car driver began to question him, and said, "Are you the fellow that gave evidence against the Cormacks?" The whole of this notable charge was got up out of a conversation under such circumstances between the young man and the driver. Neither of them were on their oaths, and anything they said could not be allowed to impeach the testimony given on oath, sifted by cross-examination. The car driver's report spread through the country, and the hon. Gentleman was quite correct in stating it had created a great sensation; the local papers were full of charges against the administration of justice. As soon as the Solicitor General heard of the matter he had Burke fetched from Liverpool, a step which, although well intended, was not, in his (Mr. Whiteside's) opinion necessary, inquired into the facts to discover whether there was any reason to impute perjury to him, and came to the conclusion that there was not. The result was that Burke was sent to a place which he (Mr. Whiteside) would not name, even if he knew it. These were the facts of the case, and he trusted that after this statement the observations of the hon. Gentleman, with regard to the Judge, would not be thought to be any impeachment upon that learned person; because one Judge might speak more decidedly than another, and if he stated the law and the facts fairly to the jury, it would be unjust to censure him for what might be no more than his ordinary manner. The trial took place according to law, the judgment was submitted to Lord Eglinton, six weeks elapsed between the passing of the sentence and its execution, the learned Judge furnished his report upon the case; from first to last the proceedings were conducted according to law and ought to be satisfactory to that House.


said, that as might be expected, they had heard an excellent oration from the right hon. and learned Gentleman. But these unfortunate men had been tried and convicted upon evidence, particularly from one of the witnesses, of a most unsatisfactory nature, and he must add, after a most partial charge from the presiding Judge. He thought the whole of the evidence in this case was wholly un-substantiated, and the witnesses unworthy of belief. The ends of justice had not been attained in the manner in which they ought to have been. He believed that Burke spoke the truth when he stated that the whole of his evidence was a fiction, and therefore he trusted the right hon. and learned Gentleman would feel it to be his duty to lay the whole of the papers on the table of the House.