Rebels in the Dock: The Prosecution of the Dublin Fenians, 1865–6

Abstract

REBELS IN THE DOCK: THE PROSECUTION OF THE DUBLIN FENIANS, 1865–6* R.W. KOSTAL the autumn of 1865 was a time of grim reckoning for the Fenian Brotherhood in Dublin. In mid-September most of its leadership was arrested and jailed in a well-planned and coordinated police sweep. Although not entirely unanticipated, the speed and thoroughness of the action struck the Brotherhood “like a thunderbolt.”1 Among those arrested were Thomas Clarke Luby, John O’Leary, and Jeremiah O’Donovan Rossa, the principal editors and agents of the journalistic voice of Fenianism in Ireland, the Irish People. They were prosecuted along with thirty-eight others before a special commission of the Court of Queen’s Bench. When the commission completed its work in February 1866, all but five of the accused stood convicted of offenses under the Treason-Felony Act and were sentenced to long terms of imprisonment. Historians have generally discounted the treason prosecutions of 1865–6 as the “end of the first stage of Fenianism,” a minor prelude to the more dramatic events of 1867.2 Most of the pertinent histories have been written either by Fenian memoirists or by historians with perceptible sympathy for the Fenian movement.3 According to these accounts, Dublin THE PROSECUTION OF THE DUBLIN FENIANS, 1865–6 70 * The research for this article was supported by a grant from the Social Science and Humanities Research Council of Canada. I am profoundly grateful to David King, LL.B., for his indispensible contribution to the research and early development of this essay. I am also indebted to Dr. W.E. Vaughan of Trinity College, Dublin, for his patient willingness to advise an Irish history novice, and to Professor Gary Owens for painstaking editorial work. I alone am responsible for errors. 1 Thomas Clarke Luby to John O’Leary, 19 June 1892, Luby Papers, MSS 331–3, National Archives of Ireland (hereafter cited as NAI). 2 E.E.R. Green, “The Beginnings of Fenianism,” in The Fenian Movement, ed. T.W. Moody (Cork, 1968), 22. For an overview of the Fenian trials of 1865–6, see Terence de Vere White, The Road of Excess: A Life of Isaac Butt (Dublin, 1946), 207–16. 3 See Marcus Bourke, John O’Leary: A Study in Irish Separatism (London, 1967), 92–106; John O’Leary, Recollections of Fenians and Fenianism (Shannon, 1969), 2: 217–25; Jere- Castle schemed to “thwart the course of justice” in the wake of the arrests, turning the trials of the Dublin Fenians into politically corrupted shams.4 R.V. Comerford conveys a much different picture of the prosecutions. He argues that in the summer of 1865 Dublin Castle correctly discerned that the Fenians did not yet pose a significant military threat.5 Acting on this premise, the government suppressed the Fenian agitation by “ordinary legal processes.”6 The dominant characteristic of the British response to Fenian agitation was the “principled adherence to the due process of law, even in the face of subversion.”7 While Comerford’s revisionism is characteristically perceptive and bold, it is not supported by a methodical examination of the relevant historical sources. This study focuses on the trials of Luby, O’Leary, and O’Donovan Rossa and is grounded in a close reading of trial transcripts, memoirs, government papers, and newspaper reports. It explores two sets of questions that historians have either ignored or examined superficially. The first questions relate to the form and content of British criminal justice as rendered by the Dublin special commission. The prosecutions of Luby, O’Leary, and Rossa were state trials that concerned the security and legitimacy of British rule in Ireland. The trials were tests of political will, but they were also tests of political integrity and legitimacy. To what extent, then, was the British justice system in Ireland able to adhere to its own principles and ideals as it prosecuted rebels? Was the putative impartiality of the commission judges and juries a sham? Were the key legal decision-makers “instruments” of Dublin Castle, as nationalist historians have suggested? The second set of questions concerns the leading Fenian defendants and the peculiar stance that they adopted toward the law of their...