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CHAPTER VI. – THE TRIAL

Much alarm was created, through the county of Limerick, by the attack upon Mr. Shelton of Rossmore. The neighbouring gentry argued from it, and not without cause, that if a gentleman whose advanced years and bodily ailments had kept him aloof from the actual exercise of his magisterial functions, were thus singled out, there was little hope for escape for those who had made themselves marked men, by determined and acknowledged resistance to and denunciation of the Whiteboys Accordingly, zeal being now quickened by fear for personal safety, it was resolved that neither trouble nor expense be spared to discover the persons implicated in this last affair. Many circumstances tended to establish a conviction that the leader of the Whiteboys must be some one greatly superior to those whom he commanded. The brief conversation which had been held with the officer at Churchtown, and Miss Shelton at Rossmore, almost proved that one and the same person had commanded on both occasions, – that he was a man of education and gentle bearing, – and that it was necessary, above all, if the insurrectionary conspiracy was to be put down, to strike at him, its life and soul.

Weeks passed by, and though many were suspected, and several taken into custody by the police, no clue to the discovery of the veritable Captain Rock was yet discovered. At last, one of the persons apprehended on suspicion – faint-hearted as a weak woman, and far less faithful – let fall some words which first excited suspicion against John Cussen. No notice appeared to be taken of them at the time, but the prisoner, who was kept in solitary confinement for some time, was gradually worked upon by promises of large payment in the event of the conviction of the actual leader of the Whiteboys. He vacillated between cupidity and fear of his own personal safety. At last, he stagged– that is, he gave some information, on the solemn promise that his having done so should never transpire, that he should not be required to give any evidence in public, and that he should immediately be conveyed out of the country for safety.

At first, the magistrates hesitated to believe that John Cussen could be concerned in the outrages which had spread alarm far and near, and directed particular inquiries to be made respecting his habits, way of living, haunts, occupation, and companions. They ascertained, from this scrutiny and espial, the fact of his frequent absences from home at night; they obtained proof of his having been seen, within the prohibited hours, in remote places where outrages had been committed; and the conviction came upon their minds that Cussen, and none other, was the much-dreaded and long-concealed Captain Rock.

Orders were given to arrest him, and also to search his house. Among his papers were found some documents which could scarcely have been in possession of any but a leader of the disaffected. They were insufficient of themselves, however, to fix him as such.

The police and the military, charged with the warrant to arrest Cussen, received strict injunctions to avoid unnecessary violence. It was anticipated, from his determined character and great personal strength, that he would resist any attempt to make him a prisoner. Contrary to expectation, he surrendered himself without struggle or hesitation. He was found sitting tête-à-tête with old Frank Drew, at Drew's Court, – the same to whom he had spoken so freely about the particulars of the attack on Churchtown Barracks, – and when he heard the measured tread of the military, as they came up the avenue, he paused in his conversation, and exclaimed, "They have come for me."

In custody his deportment, equally devoid of effrontery and fear, was apparently that of an innocent man, and impressed very many with the idea that he was unjustly suspected. The magistrates, who knew better, but were compelled to conceal the source of their information, even incurred some blame, from public opinion, for having apprehended and detained him.

The difficulty was – how to prove that John Cussen was identical with Captain Rock. In accordance with his compact with the authorities, the craven who had given the clue had been quietly shipped off to England. The most liberal offers were secretly made, on the part of the Government, to induce some of the other prisoners to turn king's evidence, but without avail. They knew, one and all, what share Cussen's had been in the Whiteboy movements; but they were fully aware, also, that to appear in evidence against him would, in effect, be equivalent to the signing of their own death-warrant. They continued faithful to him – and from higher motives, perhaps, than that of personal fear. For he was a man who possessed the power of winning hearts, and there were many – very many of his followers, who had become so warmly attached to him that they would have laid down their own lives to protect his from harm.

It was believed that Miss Shelton, if she was so minded, could have recognized his figure, his features, and the very tone of his voice. She was strongly urged to do so, in order "to promote the ends of justice;" but, grateful for the service which he had rendered to her brother, and remembering his personal courtesy to herself, she invariably declined doing so, and, to avoid all compulsion or persuasion in the matter, was secretly preparing to pay a visit to her elder sister, who had married an English gentleman, and resided at Bath. On her repeated refusal to assist the Crown, it was determined that, by means of a stratagem, she should be trepanned into identifying him.

Accordingly, Major Eeles, Captain Johnstone, and another officer of the Rifle Brigade, made a morning-call at Rossmore, and, as if by accident, asked Miss Shelton and her sister whether they would not like to see the barrack at Ballingarry, which they had repeatedly promised to visit. A party of six or seven was made up on the instant. The horses were ordered out, and very soon the party reached the barrack, in which Cussen was detained until his final removal to the county-prison of Limerick. That such a person was there, was unknown to all the visitors. Accompanied by some of the officers' wives, whom they knew, the ladies from Rossmore entered the room occupied by Cussen, heavily ironed and closely guarded. As they were passing through it, Cussen was purposely provoked, by one of his guards, to speak loudly – angrily, indeed – to some taunting remark. Alicia Shelton, recognizing the peculiar and unforgotten tone, seized her sister's arm, with a sudden impulse, and exclaimed – "It is the very man!" and would have fallen, but for support immediately rendered.

Cussen started at her exclamation, looked at her, "more in sorrow than in anger," rose from his chair, raised his hat, and courteously saluted the party. Miss Shelton, who avoided a second glance at him, restrained her feelings, and did not again open her lips; but what she had involuntarily said, slight as it was, sealed his fate – and he knew it. So did the officers who had planned the trick.

Government had directed that Cussen's trial should immediately take place. This was before Alicia Shelton had been betrayed into a recognition of the prisoner. She considered herself bound in honour not to give evidence to the detriment of one who had conferred a signal favour on herself. But, on the night of the attack, Cussen had also been seen and heard by her younger sister, whose bed-room window overlooked the back-yard, and who had witnessed the occurrence between them. Not considering herself bound by any personal ties of gratitude, and somewhat selfishly recollecting her own alarm rather than her brother's secured safety, Susanna Shelton declared that, for her part, she had no scruples in performing what she believed to be an act of justice to society. In addition, two of Cussen's followers, to save their own necks from the halter, promised, almost at the last moment, to turn king's evidence – but as there was no certainty of their remaining in the same mind, when put into the witness-box (or, rather, as it actually was, upon the table in the Court), not much reliance was placed upon them.

The Assizes being several months distant, it was resolved not to wait, and a special Commission was sent down for the immediate trial of all persons in custody under the Insurrection Act. At the same time, a messenger from the Castle of Dublin arrived at Rossmore with a subpœna to enforce the attendance of Miss Shelton and her sister, as witnesses on Cussen's trial, and they were taken away to Limerick, in a post-chaise, escorted by a troop of dragoons. Apartments and all suitable accommodation had been provided for them at Swinburne's – then the principal hotel in "the fair city of the Violated Treaty."

The trial is not forgotten by those who were present. The court-house of Limerick was crowded to the very roof. I am proud to say, as an Irishman, that among that large audience, there was not even one female. Irish propriety, by a conventional arrangement rather understood than expressed, very properly prohibits the appearance of any of the fair sex in a Court of Justice, except where necessarily present as a party, or called upon as a witness. I write of what was the rule some thirty years ago – matters may have changed since. On arraignment, Cussen pleaded "Not Guilty." After a long, fatiguing, and nearly inaudible speech – from Mr. Sergeant Goold – who had been eloquent, but, in his old age, had become the greatest proser, for a small man, at the Irish Bar – the evidence was gone into. The case had been skilfully got up, but, though no moral doubt could exist as to the prisoner's participation, if not leadership, in many Whiteboy offences, it may be doubted whether the proofs would have sufficed for a conviction in ordinary times. The two informers, on whose evidence much reliance had been placed, told their story volubly enough, but when the usher's wand was handed to them, that they might point at the prisoner in identification, each shook his head and affected never before to have seen him.

Cussen's equanimity was undisturbed throughout the early part of the trial. When Mr. Sergeant Goold, in stating the case, alluded to the attack on Churchtown, the prisoner said that, in the copy of the indictment with which he had been served, there was no charge against him save for certain transactions alleged to have taken place at Rossmore, and he desired to know whether it was purposed, or indeed whether it was legal, to state a case or give evidence out of the record? There was considerable sensation at this inquiry. The Judge replied that Counsel ought to confine himself to the charge in the indictment, and admitted that the prisoner had exercised no more than his undoubted right in checking the introduction of irrelevant matter. The Crown Counsel had only to bow and submit to the opinion and reproof of the Judge. The prisoner appearing disposed to speak again, the Judge asked whether he had any more to say? "Only this, my lord," said he, "that if it be my right, as prisoner, to check the introduction of irrelevant topics, having a tendency to prejudice me with the jury, it surely was your duty, as Judge, to have done so – particularly as mine is a case of life and death."

This was a well-merited reproof, given with a certain degree of dignity, and (for the Judge was a man of enlarged mind) did no injury to Cussen.

When Miss Shelton appeared on the table, Cussen appeared startled, for he had been given to understand that she had positively refused to appear against him – indeed, it had been reported that she had even gone to England to avoid it. Compelled to give her testimony, she detailed, in the plain and forcible language of truth, under what circumstances she had seen Cussen at Rossmore – what peril her brother had been threatened with – what supplications she had made in his behalf – how promptly the favour she had solicited had been granted – how kind the prisoner's words and demeanour to herself had been. She took occasion to add that her appearance as a witness was against her own desire. She was then asked to turn round and say whether she then saw the person who had acted as she had described. Not without great delay and hesitation – urged, indeed, by an intimation of the personal consequences of her contumacy – did she obey, but, at last, she did identify the prisoner, saying, "That is the man who saved my brother's life, at my entreaty, and stood between myself and outrage worse than death." Cussen respectfully acknowledged her evident feeling in his favour by making her a low bow as she went down.

Her sister, who was cast in a coarser mould of mind and body, exhibited no scruples, but gave her evidence with an undisguised antipathy towards the accused. The missing links, supplied by her testimony, made up a strong chain of evidence which, every one felt, it would be difficult for Cussen to beat down, in any manner. It was expected, almost as a matter of course, that he would trust to proving, by an alibi, the impossibility of his having been the person who was present on the occasion referred to by the witness. Every one who saw him in the dock, where his bearing was equally free from bravado and fear, anticipated some very ingenious, if not successful defence. He very slightly cross-examined the witnesses for the prosecution, and then only on points which bore on his personal conduct. He declined availing himself of the open assistance of counsel – though he had consulted eminent legal authorities on various technical points, while in prison. But for the place in which he stood, fenced in with iron spikes, and surrounded by the police, one might have thought him merely interested, as a spectator, in the circumstances evoked by the evidence, rather than one whose life depended on the issue. Cool, deliberate, and self-possessed, he entered on his defence.

It was of the briefest; – only a simple negation of the charge – a denial that, even with all probability of its being true, there was legal evidence of such a breach of the law as involved conviction and punishment – a regret that his identity should have been mistaken by the younger Miss Shelton, who, had he really been the person at Rossmore, had never, even on her own showing, been so close to him as for her to distinguish his features – an expression of gratitude to Alicia Shelton for her evident disinclination to injure one who she believed had treated her with kindness – a strong disclaimer of imputing wilful error to her, though he considered her sister not free from censure for her undisguised avidity in seizing upon every circumstance to convict him – a reckless assertion that, come what might, he had outlived the desire of existence, and was prepared for any fortune. Such was the substance of his address, delivered in a manner equally free from bravado and dread. He concluded by declaring that, already prejudged by public opinion (the newspapers, from the first, having roundly proclaimed that he, and none other, was or could be the true Captain Rock), and with the undue weight given to slight and evidently prejudiced evidence, he felt that his prospect of acquittal was small.

Mr. Sergeant Goold then arose to speak to the evidence for the Crown, and was interrupted by Cussen, who asked the Judge whether, when no evidence was called for the defence, the prisoner was not entitled, by himself or counsel, to the last word to the jury? Mr. Sergeant Goold answered that the Crown, in all cases, was entitled to the last speech, and appealed to the Judge for confirmation of the assertion. Cussen again addressed the Judge, and said that, in civil suits, the practice was certainly not to allow the plaintiff the last speech when the defendant did not call witnesses, for he had himself been a juryman, in the other court, when such a circumstance had occurred. The Judge's decision was that, if he pleased to insist upon it, the counsel for the Crown might desire and exercise the right of speaking to the evidence, even when, as in the present instance, the accused had called no witnesses, nor even made a defence. But, his Lordship added, perhaps under the circumstances, Mr. Sergeant Goold would not exercise the right. Goold grumbled, and fidgeted, and muttered unintelligible sentences about his duty, and finally, gathering up his papers, quitted the Court in a huff, with the air of a person mightily offended.

The Judge then summed up the evidence, and charged the jury very minutely – dwelling, more than was anticipated, on the remote probability that the younger Miss Shelton might have been mistaken as to the identity of the accused. But, said he, even if she were so situated that recognition of his person were even impossible, there is the evidence of her sister, given with a reluctance which was creditable to her humanity, gratitude, and womanly feeling, which undoubtedly declared that the prisoner in the dock, and none but he, was the leader in the attack upon her father's house on the night named in the indictment.

The jury retired, and after a long deliberation, returned a verdict of "Guilty." Perhaps, of all persons in the court, the prisoner was apparently the least moved by this announcement. His cheek did not blench, his lips quiver, nor his limbs tremble. He was called upon to declare whether he had anything to say why the sentence of the law should not be passed?

Cussen, drawing himself up to his full height, declared, in a sonorous voice, which filled the Court, and in the same collected manner which had characterized him during the whole trial, that nothing which he could say was likely to mitigate the sharp sentence of the law. "I have had a fair trial," said he, "as from the excited state of the country, and the fears and feelings of the jury, I could reasonably expect. It is evident, from the time they have spent in deliberating on their verdict, that some of the jury, at least, had doubts in my favour. But," he added, "I make no calculation upon that, for I am aware that you, my lord, even while you comply with the formula of asking me whether I have anything to say against my sentence, have no alternative but to pronounce it. For my own part, I have faced death on the battle-field, too often and too boldly, to dread it in any shape. And for the ignominy, I hold with the French philosopher, whose writings your lordship is familiar with, that it is the crime, and not the punishment, which makes the shame. My lord, I stand, as it were, on the threshold of another world. My path is already darkened by the fast-advancing shadows of the grave. Hear me declare, then, that even if I were the Captain Rock whom your jury declare me to be, my death, nor the death of hundreds such as I am, cannot and will not put an end to disaffection arising from laws oppressive in themselves, and rendered even more so by being harshly and partially administered. The spirit of the people is all but broken by long-continued and strong oppression. Between middlemen and proctors they have been driven almost into despair. Exactions, for rent and tithes, press increasingly upon them. Whatever little property they may have possessed has gradually melted away. Their cattle, under distraint for rent, crowd the pounds. Their miserable cabins are destitute of fuel and food. They feel their wrongs, and have united with the energy of despair to avenge them. Cease to oppress these men, and the King will have no better subjects. So much for them. A concluding word for myself. My lord, I have not called evidence, which I might have done, to show that my general character is that of a man indisposed towards bloodshed and cruelty. It may be too late to hear them now – but for the sake of others I would stand before the world as one who is not the blood-stained ruffian which the learned counsel for the Crown has proclaimed me to be. I would tell him, were he here, that whatever else I have done, I have never been publicly branded by the Legislature as a liar. My lord, I have done."

This bold attack on Mr. Sergeant Goold, who, three years before, had been publicly reprimanded by the House of Commons for having prevaricated, when giving evidence before the Limerick Election Committee, was received with applause.

The Judge intimated that he was ready to hear evidence as to Cussen's character, on which several gentlemen of high standing in the county came forward and bore testimony greatly in his favour. The sentence of death was then pronounced, with the usual formalities.

But Cussen's hour was not at hand. A memorial to the Government, from Alicia Shelton, strongly setting forth the humanity which the convict had manifested towards herself, was immediately forwarded. With it went a petition, signed by several who had been interested with Cussen's conduct on the trial, and believed that to execute their leader was the least likely way of conciliating the Whiteboys. In due course, the Judge who had presided at the trial was called upon to state his opinion. It was said that, viewing the case as it came out in the evidence, and without touching on the suspicion or presumption that Cussen had been guilty of other breaches of the law, the report of the Judge was strongly in his favour. At all events, the Government complied with the urgent solicitations in Cussen's behalf, and commuted the sentence of death into transportation for life.

As Cussen had heard his death-doom without any apparent emotion, his reception of the mitigation of punishment was wholly devoid of exultation. He requested that the prison authorities would convey his thanks to Alicia Shelton and the others who had interested themselves in his favour.

It was said that an intimation was made to him, on the part of the Executive, promising him a full pardon if he would give them a clue to the Whiteboy organization, which they greatly desired to put down. It was reported, also, that, in his reply, he declared himself incapable of betraying any confidence which had been reposed in him, – that family circumstances must prevent his desiring to remain in Ireland, on any terms, – and he trusted there was a Future for every man who desired to atone for the Past. This was the nearest approach he ever made to an admission that he had been involved in the Whiteboy movements. The "family circumstances" to which he alluded consisted of his having been privately married to a Miss Fitzgibbon, with whom he lived so unhappily, that even an enforced residence in New South Wales appeared a lesser evil than to remain with her in Ireland.⁷

This, however, did not transpire until some time after he had quitted the country.

He was transmitted to the convict-ship at Cove, on board of which the narrator of this story, then a lad, had the curiosity to visit him. Of course, no conversation arose as to the question of his guilt or innocence. When Cussen learned that his youthful visitor was related to Miss Shelton, he manifested some interest, inquired after her health, begged she would accept his thanks for the favourable manner in which she had given her evidence, and said that she had strongly reminded him of a lady whom he had formerly known, and whose death had led to the circumstances which had brought him to his present position.

The impression which remains on my mind, after the lapse of so many years, is very much in favour both of Cussen's appearance and manners. He was neatly dressed, and looked very unlike what might have been anticipated – considering that he was the veritable Captain Rock. His voice was low – "an excellent thing" in man as well as in woman. There was no appearance of bravado in his manner. The two turnkeys from Limerick jail, who were in charge of him, spoke very highly of his gentle disposition and uniform civility. They declared, such was their conviction of his truth, that if, at any time, he had desired to leave them for a week, with a promise to return by a particular day and hour, they were certain he would not break his parole.

On reaching Spike Island, he was attired in the convict costume, – and the humiliating livery of crime appeared a great annoyance to him for a day or two. After that, he showed no feeling upon the matter. The "authorities" at Spike Island, who were much prejudiced against him, at first, speedily came to treat him with as much kindness as their rough nature and scanty opportunities permitted them to show.

Within three weeks of his conviction, John Cussen was en route for Botany Bay. During the voyage, a dangerous epidemic broke out among the convicts and the crew. The surgeon of the ship was one of the first victims. The commander, who had heard the report of the trial at Limerick, recollected that one of the witnesses had stated how gallantly Cussen had fought at Waterloo, when an army-surgeon, and asked his prisoner whether he thought himself capable, in the existing emergency, of taking medical charge of the ship. Cussen replied in the affirmative, but positively declined doing anything so long as he wore the convict-dress. His desire being complied with, he was released from his irons, intrusted with the care of the sick, and succeeded in mitigating their sufferings by the remedies he applied. The disease was checked, so that the mortality was much less than was expected, and this favourable result was mainly attributable to Cussen's skill. On arriving in New South Wales, this was so favourably represented to the authorities, that a ticket of leave was immediately given to him. Proceeding up the country, he took a small sheepwalk, and was getting on prosperously, when a party of bush-rangers attacked and devastated his little place. He immediately devoted himself to a contest with this predatory band – long the terror of the colony – and did not rest until he had so completely routed them, that the leaders were apprehended and executed, while the rest, one by one, came in and delivered themselves up to justice.

The result was that, for this public service, Cussen received a pardon (the only condition being that he must not return to Ireland), within two years after his arrival in the Colony. He practiced for some time, as a surgeon, at Sydney, and having realized about five thousand pounds, proceeded to the United States. One of his first acts, after arriving in New York, was to send to Ireland for the son of John Sheehan (the man who had been shot on suspicion of Whiteboyism), now doubly orphaned by his mother's death. He adopted him, in fulfilment of his promise at the Wake, as related in the first chapter. His own wife and daughter, whom he had liberally supplied with funds from New South Wales, declined rejoining him there or in America, and were actually residing in Limerick a few years ago. Cussen eventually settled in one of the Western States, where his capital at once enabled him to purchase and cultivate a large tract of land. He has been heard of, more than once, by those who knew his identity, as a thriving and influential citizen, under a slightly changed name.

The fact that Cussen had led the attack upon Churchtown Barracks was not positively ascertained for several years after his departure from Ireland. In a death-bed confession, one of the party avowed it. To this day, however, very many of the people in the County of Limerick, who were well acquainted with Cussen, will not believe that he ever could have participated in such a cold-blooded massacre. They appeal, in proof of the gentleness of his nature, to the kind feelings which he exhibited during the attack on Rossmore.

It is clear, at all events, that by the conviction of Cussen, the Whiteboys lost a leader. The confederation was speedily broken up, for want of its Captain Rock. Nor, since that time, have the disaffected in Ireland been able to obtain the assistance of any one so competent for command as was John Cussen. His successors, from time to time, have been bold, ignorant men, at the highest not more than one degree above the peasantry whom they contrived to band together as United Irishmen, Ribbonmen, or Whiteboys. The peasantry were taught, too, that the redress of grievances is not likely to be brought about by illegal confederations – that agitation within the law, may virtually place them above the law, – and that he who commits a crime gives an advantage to the antagonist. This was the great principle which O'Connell always endeavoured to enforce. We have seen the last of the Whiteboys, and I have told the story of the undoubted Captain Rock, the will-o'-the-wisp of Irish agrarian disturbances.