The Case for the Defence
The Trial of John Fay continued.
The Case for the Defence
The witnesses produced on the part of the defence were first
Mr Daniel Sullivan sworn . Examined by Mr George Ponsonby.
Q. Do you know George Mullen, one of the traversers?
A. I do know him very well - here the witness pointed out George Mullen standing at the bar.
Q. Were you in any employment in the month of October last?
A. Yes, as Inspector of the works at the 3rd Lock on the Grand Canal.
Q. What distance is the 3rd Lock from Dublin? A. About two or three miles - My brother -in-law contracted for the repairing the 3rd Lock, I attended there from the 24th September last to about a week ago.
Q. During that time did you see George Mullen there?
A. Yes he was employed here from the 8th of October to the 19th of November - he came there on Monday the 8th of November and continued there every working day; was absent only two quarters of days on the 19th and 29th of October. They worked from sunrise to sunset. I called over the roll every morning and evening. The men worked very constantly. I have no account of the names of the men, - and the witness produced the original account book in court wherein the name of George Mullen was regularly entered.
Mr Ponsonby: The witness Lynch swore that George Mullen went to Mr Fay's house on a market day a fortnight before Mr Butler was shot on the 24th of October 1793. We shall prove that George Mullen was working on the Grand Canal at that time.
Question to Sullivan.
Q. Was George Mullen working at the 3rd Lock from the 8th of October to the 10th of November, and on the 24th October?
A. Witness read from his original account book that George Mullen was actually working on the Grand Canal the 24th October and from the 8th of October to November 10th.
Q. Did he work the whole of the 24th October? A. He did. I called the roll call every morning early.
Q. At whose request did you come here? A. By Mr Armstrong Fitzgeralds
Q. Did Mr Armstrong Fitzgerald pay your expenses? A. I must be paid for trouble and expenses on coming here. - I do expect to be paid.
Question from Mr Attoney General:
Q. Do you know the names of the persons who were employed on the Grand Canal? - who lives in the neighbourhood of the Grand Canal? A. I do not know particularly.
Question from Juror:
You said that on the 19th and 29th of last October, Mullen was on the 3rd Lock at work?
A. Yes, and William Mullen was absent two quarters of days, on the 19th and 29th of October on account of the weather being wet.
Question from Mr Macartney:
Q. Was George Mullen there on the 24th and 25th of October? A. He was.
Question from Mr Ponsonby:
Q. Could George Mullen have gone from his work on the Grand Canal to Navan without your knowledge? A. I do not think he could - My brother -in-law contracted for the works and I was overseer of the men.
Q. How far is the 3rd Lock of the Grand Canal from Navan? A. I do not know - I never was before in the county Meath.
Q. How far is the 3rd Lock from Dublin? A. About a mile and a quarter.
Q. Have you any particular reason for knowing that George Mullen the prisoner at the bar worked there? A. I have, because there was not a better workman than he was.
Question from Mr Macartney:
Q. Before the 7th of October, did you know George Mullen? A. I never saw him before that day.
Q. Did anybody else take an account of the attendance of the workmen at that time?
A. No I always took the names of the men morning and evening.
Mr Ponsonby: We desire Lynch to be called into court again, as all Mr Fay's clerks will attend in order that Lynch may point out the clerk he said he saw in Mr Fay's office.
Mr Attorney General: To be sure.
Lynch was again brought on the table, and five clerks who are in the employmen of Mr Fay produced. Lynch swore to one of them.
Mr Fay's Clerk sworn. Examined by Mr Recorder.
Q. Do you remember the month of October last? . A. Yes. Q. The whole of that month? A. Yes
Q. Were you ever in Mr Fay's office? A. Yes Q. Where is it situate? A. Eight or nine perches from the Barracks. Q. Is there any clock or fireplace in that office? A. There is Sir.
Q. How many market days are there in the week in Navan? A. Wednesdays only.
Q. Is there any grate in that office? A. No. Q. Was there any grate? A. I never saw any in it.
Q. Was there a 22inch grate there? A. Never to my knowledge.
Q. How far is Navan from Dublin? A. Twenty two miles reckoned.
Q. Do you do a great deal of business on market days in Navan? A. We do.
Q. What is your general dinner hour? A. Sometimes about one or two and sometimes in the evening according to my business.
Q. Is there a considerable resort of people about the hour of one o'clock on market days at Mr Fay's office? A. There is.
Q. What time of the day is there the greatest concourse? A. From eleven 'till one is the busiest time of the day.
Q. Upon the market day about a fortnight before Mr Butler was killed. do you remember seeing William Lynch in Mr Fay's office? A. I never saw him there.
Q. Did you ever see him there on a market day with ten men more? A. I never did see him there with ten men more.
Q. Did Mr Fay, on a market day, in the month of October, desire you to go out of the office when 10 men came in? A. He never did.
Q. Did you tell Mr Fay at one o'clock on a market day in October last, that you were going to your dinner? A. I never did. Q. How far is Ardbracken from Dublin? A. Twenty four miles.
Q. Did you know such people as Byrne, Cappagh, Logan and Sheerin? A. I know some of them.
Q. Did you ever see them and others to the amount of ten come in a body to Mr Fay's office?
A. I never did. Q. Did you see all those men come to Mr Fay's office, and he desired you to go out? A. I did not. Q. Did you ever see them all together in Mr Fay's office with Lynch? A. Never.
Q. Have you seen Lynch come to the office? A. I believe not, but there are many people come there who I do not know.
Q. Might he not have been there without you remembering him?
A. He might have come there.
Q. Might not Gibney, Byrne, Cappagh and Sheerin come there? A. They might.
Q. Has Mr Fay another office at the mills? A. He has.
Cross Examination - Examined by Mr Saurin
Q. Is not your hurry of business pretty well over at one o'clock? A. About two o'clock it is.
Q. Is not the business over at one o'clock? A. One o'clock is the busiest hour - sometimes the business is not over 'till night.
Q. Do not the gentlemen alluded to live in Navan? A. They all do.
Q. Do you pretend to say that you never saw those men come all together? A. Not that I recollect.
Q. Might they not come all together to speak to Mr Fay? A. They never did to my knowledge.
Q. Were they not intimately acquainted with Mr Fay? A. I do not know more than by hearsay.
Q. Is not the office frequented more on market days than other days? A. yes.
Q. Do any other clerks sit in that office? A. They sit in another office - I am the only clerk that sits in that office.
Q. Do you know Sheeerin; did he come to that office? A. There are a great many strangers who come to the office that I do not know.
Q. Then Lynch might have been there many times, for you did not take notes in your books of the looks of people? A. I did not, but I would know them again.
Q. Do you sell out flour to poor people? A. Yes.
Q. Might not a great resort of people come there? A. There might.
Q. By virtue of your oath might not there have been a private meeting with Mr Fay and some of his friends? A. There never was that I knew of.
Q. Have you heard of meetings anywhere else? A. There was a secret committee of gentlemen, I heard of that, but they did not meet in the office - I heard it reported in town, but I did not know it.
Q. Did you see Mr Fay and these men together? A. Never.
Q. Where did that committee meet? A. I never enquired after them.
Q. Upon your oath do you know what they met about? A. I did hear only by report.
Q. Was it about making defenders - by virtue of your oath did you hear was Mr Fay of that secret committee? A. I did not, positively.
Mr Curran: We shall give evidence to Mr Fay's character, as the charge against him might have made some impression on the minds of individuals.
Robert Waller Esq, sworn
Mr Blackburn questioning
Q. Do you know Mr Fay? A. I have known him a great many years.
Q. Do you know anything of his general character?
A. I never heard a better character - I have had great dealings with him; and all my friends who have, always found him to be a man of the greatest integrity.
Mr Curran: I offer to let the gentlemen on the other side produce any witnesses whatever in this country against Mr Fay - This is a species of evidence which is only proposed to be gone into under particular circumstances. Is there any man, gentleman, or not gentleman, who can contradict the character that has been given of Mr Fay?
The Honourable Mr Justice Downes
Gentlemen of the Jury: In this case Mr John Fay stands indicted for administering an unlawful oath to several persons therein named; whereby they swore , that they would not give evidence against each other at the King's Bench, or elsewhere against any true brother of defence.
The said Mr Fay stands further charged, that he, the said John Fay, did administer an unlawful oath to William Lynch, that he would not swear against Duffy, Logan and others, or any of them; the said John Fay not being qualified to administer oaths.
The only witness in support of the prosecution was William Lynch; he has proved, if you believe him, that the said John Fay did administer the oath in those words - to the purpose laid in the indictment - that the said Lynch and others were to kill the Reverend Thomas Butler, - that they would not give evidence against all true brothers of defence, - The latter part only of this charge is the present charge laid in the indictment, "that they would not swear or give evidence in the Court of King's Bench, or elsewhere, against all true brothers of Defence."
If you should believe the testimony of Lynch, he has given evidence that the oath which he has sworn was administered as charged in the indictment. Gentlemen, if you believe that it is proved to your entire satisfaction that the oath was administered, tho' not in the actual words laid in the indictment - the question is, whether you shall believe that the oath was administered by the prisoner - you will judge of the credit that you shall give to Lynch. He was the only witness produced. You must have observed the manner in which he gave his evidence; and you will consider whether it be in any degree probable.
In my mind you ought to expect proof of the charge, equal to the greatness of it, for it is a charge of a very atrocious nature.
Gentlemen , you will consider, if it is in any degree an improbable story. This gentleman at the bar is a merchant, in the town of Navan. Lynch says that Fay administered oaths to him of the nature mentioned in the indictment. If you believe it to be an improbable thing, you should have good evidence of that fact. In this case the man who swears to this charge, has confessed that he has committed the crime of murder, and he has told you that he has neither fear nor shame, and he has told you of the reverend Mr Butler's expiring; and in describing this, you must have observed his manner.
In the case of a man of this description, you must consider the manner in which he has attempted to fasten guilt in a court of justice upon the prisoner at the bar - you will consider what degree of credit such a man deserves. If you believe the fact as given in evidence by him, the most that can be said, is, it is admissable evidence to go to a jury.
Gentlemen of the jury, it is for your consideration, this is the testimony of an approver; there is no doubt that the law upon the subject is, that such evidence is admissable. But if you entertain a doubt that the facts charged in the indictment are not proved to your entire satisfaction, you ought to acquit the prisoner. But if you believe the testimony of Lynch, and have no doubts upon your mind, you ought to find the prisoner guilty.
I have already observed to you the situation in which this man is brought before the court, for the man himself admits he has been guilty of murder. You will therefore require very strong circumstances, to induce you to give credit to his testimony, where he charges another man as guilty of the charges laid in the indictment, and that charge rests solely on the testimony of Lynch.
There is an objection further to discredt Lynch. He has upon the table sworn a falsehood in a part of his testimony. If you believe the evidence of Sullivan, for he has sworn that George Mullen was working at the Grand Canal at the time that Lynch has sworn that Mullen had an oath administered by him by said Fay.
Lynch has sworn that about a fortnight before the murder of Mr Butler, which was on the 24th October last, that said Mullen was at Mr Fay's office. Sullivan has given evidence that Mullen was working at the Grand Canal from the 7th of October to the 10th of November, and was only absent a quarter of a day on the 19th and 29th of October. Compare this with the time Lynch has sworn that Mullen was at the office of Mr Fay about a fortnight before the murder of Mr Butler.
Now gentlemen, if you believe the evidence of Sullivan, that Mullen was working at the Canal at the time stated, it was impossible for him to have been at one o'clock at Mr Fay's office about a fortnight before the death of Mr Butler.
If you believe Sullivan, that Mullen was working at the Grand Canal, Lynch's evidence must have been a falsehood with respect to him, and it is for you to consider the whole of the testimony and the circumstances under which Lynch comes before you.
Gentlemen, a clerk to Mr Fay who was sworn to by Lynch, to have been in the office of Mr Fay, positively denies the circumstance as stated by Lynch of his having seen 10 persons in the office of Mr Fay, or of his leaving the office by Mr Fay's direction, and swears that he never saw one of them at that office; that he never saw Lynch there on the day mentioned, tho' he might have been there at other times without his observing him.
Gentlemen, I shall just observe to you, that from the conduct of this man, which must have made an impression upon your minds; he swore that he gave his testimony for the love and peace of his country, and not with any desire of being rewarded; and he said he did not expect to be hanged, - when any man comes forward to tell such a story without expecting reward, it does affect his credit. Upon the whole, the facts sworn to deserve your serious consideration.
Verdict of the Jury
We find the prisoner John Fay, not guilty of the charges laid in the indictment.
[ In 1794, Thomas Shieran and 3 men by the name of Lawless from Ardbraccan were convicted of the murder of the Revd. Butler and hanged.
Source: Navan by the Boyne Noel French 1986 ]