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The (show?) trial of Robert Emmet

On 19 September 1803 Robert Emmet was tried for high treason in Green Street courthouse, found guilty, and sentenced to be hung, drawn and quartered. He was executed the next day in Thomas Street. It is often thought that the case against Emmet was one of irresistible strength, so that, for example, the corruption of his leading defence counsel, although deplorable, made no difference. This view was repeated by some eminent historians during the bicentennial year. But contemporary records disprove this, both in terms of the evidence that was available and of the applicable law.

Show trial

Emmet was condemned to death after what was essentially a show trial. His nominated counsel, John Philpot Curran, was compelled to withdraw under threat of having his daughter’s liaison with Emmet exposed. His replacement, Leonard McNally, the leading radical lawyer of the day, was also a government spy who received a special supplement to his annual secret pension for betraying Emmet. His reports to the Castle, both before and after the trial, are extant. Emmet himself was prevented from making any defence by the threat of the exposure of Sarah Curran as the author of letters found in his possession which, the attorney-general had told him, implicated the writer in treason. By these means the government were able to produce at the trial, as Emmet’s work, several highly incriminating documents even though their contemporary correspondence reveals that they could not prove authorship in accordance with law. Finally, Emmet was executed for the offence of high treason, contrary to the Treason Act, 1351 (the same act under which Roger Casement was executed in 1916). But the law of treason was dictated by the judge to the jury in a way radically different from the way in which it had been applied in England in a great state trial less than ten years previously, a way that made conviction a virtual certainty.

The government’s needs and the case against Emmet

The government of Ireland, led by Philip Yorke, Lord Hardwicke, as lord lieutenant and William Wickham as his chief secretary, had been caught napping by the events of Emmet’s rebellion on 23 July 1803. Only the total disorganisation of the rebels saved them from catastrophe. The London government were highly critical of Hardwicke, and his very survival was in part due to the fact that his brother, Charles Yorke, was home secretary. The correspondence between the brothers and their respective officials makes it quite clear that London expected dramatic and highly visible progress in stamping out rebellion. A large number of rebels had been captured in arms, and from late August the Irish government had one or more capital trials each day, followed (except in the case of two prisoners who were acquitted) by public executions the next day. But all of the prisoners were ‘miserably poor’, as Wickham himself said, and plainly not leaders. There was, from a government point of view, a crying need for a prominent, preferably Protestant, victim on whom the rebellion could be blamed.
Emmet, unlike the other state defendants, had escaped from Dublin after the failed rebellion. There was no hue and cry for him specifically: he had not been recognised as the gorgeously uniformed figure who read a proclamation and led a motley group on Thomas Street. He was captured in Harold’s Cross on 26 August, and, although not immediately identified, it was plain to Major Sirr, the city’s chief of police, that he was a person of consequence despite his youth. This was evident from a number of documents, including a letter to the government, found in the house where he was staying. Once identified as Robert Emmet, brother of Thomas Addis Emmet, the United Irish leader of 1798, who had himself been expelled from Trinity College in Lord Chancellor Clare’s political cleansing of that year, his symbolic and political value became obvious.

Cross purposes

In the days after his arrest Emmet and the Castle authorities eyed each other warily. Each had a very serious problem. Dwarfing everything in Emmet’s mind was the fact that on his arrest he had been in possession of unsigned letters from his inamorata, Sarah Curran, daughter of the very prominent lawyer and politician John Philpot Curran. These are plainly love letters, though cryptically expressed in places: they also suggest a knowledge of Emmet’s plans for a rebellion and contain bitter reproaches of those who by their ‘barbarous desertion and want of unanimity’ led to its failure. Sarah had repeatedly asked Emmet to burn the letters but he had not done so: this omission now tortured him and, according to McNally’s later secret reports, he thought of nothing else. By an extraordinary irony, when the letters were read in Dublin Castle, the government did not interpret them as love letters, much less guess at the identity of their author. They believed that ‘the language of a love intrigue had been assumed as a means of misleading the government’ and that the letters were military communications in a cipher that had not been cracked. Emmet, on the other hand, assumed that Yorke and Wickham had identified Sarah as the author of the letters.
The government were immensely excited at the idea of portraying Emmet, an educated Protestant from a family with a revolutionary pedigree, as the linchpin of the rebellion. They were preoccupied, however, with their perception that there was so little hard evidence against him that he might well be acquitted if they put him on trial. On 28 August 1803 Wickham wrote to Yorke’s private secretary and surveyed the evidence against Emmet in a very pessimistic fashion. He listed that evidence under seven headings, five of which were documentary, including the letter to the government and the original draft of the rebels’ proclamation of a provisional government. The other two were circumstantial only.  Wickham’s problem was that Emmet’s handwriting could not be proved: it could not be established that he was the author of the documents. He said that he had failed to find anyone who could ‘say that they believed the papers of which we are in possession to be written by him . . . we cannot, I fear, convict him without producing as his handwriting different papers written apparently by different persons’, so that ‘on account of the dissimilarity of the handwriting it would probably be thought more prudent not to produce them’. Worse, since Emmet ‘was very much beloved in private life’ he was pessimistic about getting other witnesses to testify as to Emmet’s handwriting.
So pessimistic was Wickham that he contemplated a desperate measure, only to reject it:

‘The question of bringing forward secret information has been well considered and discussed, and there is but one opinion on the subject—viz., that it were a thousand times better that Emmet should escape than that we should close for ever a most accurate source of information.’

In this letter Wickham is reporting not merely his own views but also those of the chancellor, Redesdale, the attorney-general, O’Grady, and the under-secretary, Marsden. It appears that they considered producing some agent who had for some time been ‘a most accurate source of information’ in a desperate attempt to convict Emmet. But they decided not to do so, even if it meant that Emmet would escape, because the source was so important. Dublin in the late eighteenth and early nineteenth centuries was full of spies and informers, so it is impossible to be sure who this person was. It is tempting in the circumstances, however, to speculate that it may have been Leonard McNally himself.

Interrogation and the muzzling of the defence

On 30 August Emmet was taken from Kilmainham jail to Dublin Castle for interrogation before the Irish privy council. He was refused the opportunity to consult a lawyer, so that he confronted the lord chancellor and the attorney-general—plus Wickham and Marsden—alone. The meeting was noted by Marsden in a surprisingly full way that brings out its drama. Emmet confirmed his identity but otherwise refused to answer questions. This stand-off continued for a significant time until he was asked, ‘By whom are the letters written that were found on your person?’ Emmet replied, ‘As to the letters taken out of my possession by Major Sirr, how can I avoid this being brought forward?’
This was the turning point of the interrogation, and indeed of the whole case against Emmet. He spoke freely and emotionally for the rest of the meeting and his interrogators spoke quite naturally too. Extraordinarily, although they noted that ‘Mr Emmet’s feelings are a good deal affected’, the Castle men did not guess at the true cause of this.
The attorney-general told Emmet that the letters were important evidence against him and would have to be produced at the trial. They implicated him, and also the author of the letters, in treason. Emmet then imagined, it seems, that Sarah Curran had been arrested and asked anxiously whether ‘anything has been done in consequence of those letters being taken’. He said that the author was a woman, and in a definitely pre-feminist attempt to exculpate Sarah he added, ‘I can only say that a woman’s sentiments are only opinions and they are not reality . . . I declare on my honour that the person had only opinions’. Emmet attempted to appeal to contemporary sensibilities and concepts of honour, ‘with notions of honour in common persons might have different principles but all might be agreed as to what a person might owe to a female’. But he got no assurances of any kind and eventually said:

‘I will go so far as this: if I have assurances that nothing has been done and nothing will be done upon those letters I will do everything consistent with honour to prevent their production . . . I would do anything to prevent the production of those letters’.

A fatal gaffe

The meeting in the Castle ended inconclusively and Emmet was taken back to prison. On 8 September he was sufficiently distracted to write a letter to Sarah Curran under her own name and at her father’s address in Rathfarnham. This he entrusted to a prison warden whom he thought was trustworthy: it was immediately placed in the hands of the authorities. Curran’s house was raided by Major Sirr, though Sarah’s sister seems to have been able to dispose of most incriminating documents. Sarah herself seems to have suffered a sudden nervous collapse. She was, however, treated very gently by the authorities. Her letters were regarded as curiosities and passed for the private perusal of the home secretary and the king himself. The former observed that ‘Mademoiselle seems to be a true disciple of Mary Wollstonecraft’.
Once the interception of the letter to Sarah Curran became known to him, Emmet apparently thought of nothing but how to protect her. Thirty years later his junior counsel, Peter Burrowes (who was not in the pay of the Castle), told the poet Thomas Moore, a college friend of Emmet’s, that he ‘made the most earnest entreaties to the government that if they suppressed the letters at this trial he would not say a word in his own defence but go to his death in silence’.

The arrangement

There is no doubt that an arrangement was made between the government, who agreed not to identify Sarah, and Emmet, who agreed to mount no defence. This was probably done through Leonard McNally, who told the Castle three days before the trial that Emmet was wholly preoccupied with the risk to Sarah and was ‘cruelly afflicted’. He ‘does not intend to call a single witness, nor to trouble any witness for the Crown with a cross-examination, unless they misrepresent facts… He will not controvert the charge by calling a single witness’.
This, of course, was an extraordinary and absolutely corrupt letter for defence counsel to write to the prosecution before a trial. McNally was well paid for his treachery. He had, in any event, an annual pension from the government in respect of his work as an informer of £300 a year, which he drew from 1794 until his death in 1820. For his actions and omissions to act in Emmet’s case he was paid a special bonus of £200. One hundred pounds of this was paid on 14 September 1803, five days before the trial: it is tempting to link this with his conveying an absolute assurance that the trial would be a walkover.

Effect of the Crown’s blackmail

That an agreement was in fact made along those lines is demonstrated by two things in particular that happened in the course of the trial. The attorney-general in opening the case actually quoted from one of Sarah Curran’s letters a passage in which she raised the question of whether French assistance was or was not desirable. This, however, he ascribed to ‘a brother conspirator acquainted with his schemes and participating in his crimes’. He also quoted a passage suggesting that the Irish people were ‘incapable of redress and unworthy of it’, and that this accounted for the rebellion’s failure.
The other revealing event occurred during the evidence of Major Sirr. He said that he had found certain letters on Emmet at the time of his arrest. The letters were produced and laid on the table of the court. Lord Norbury said, ‘If the prisoner wishes to have any other part of these papers read [other than the part already read by the attorney-general] he may’. This appears to be a judicial intervention of the utmost fairness but its true significance is apparent from the response of Peter Burrowes, his uncompromised defence counsel: ‘My Lord, the prisoner is aware of that, and throughout the trial will act under that knowledge’. Emmet was being reminded of what precisely his position was and that any attempt at defence would lead to Sarah Curran’s exposure. Immediately afterwards, Burrowes attempted to address the jury but, according to what he later told Thomas Moore, Emmet stopped him from doing so, saying, ‘Pray do not attempt to defend me—it is all in vain’.
Just before this intervention the attorney-general had attempted to get Sirr to read from a very incriminating letter to the government allegedly found in the room where Emmet had been arrested. No objection was taken but the court intervened, saying that ‘nothing can be read but what is legally proved’, an attitude that of course was embarrassing to the prosecution since they had no proof of handwriting. Extraordinarily, McNally declared that no objection was being taken to the admissibility of the letter. Norbury said that the court had wanted to protect Emmet from the admission of any evidence ‘which is not strictly legal’ but, having consulted with his colleagues after McNally’s intervention, admitted it.
Any possibility that the attorney-general’s misrepresentation of the gender of Emmet’s correspondent might have been accidental is removed by a letter from the chief secretary to the British home office on the day of the trial:

‘Mister Yorke [the home secretary] will have observed that the attorney-general when he gave in evidence such parts of the young lady’s letter found upon Emmet as it was found necessary to produce, stated boldly that the letter from which the extract was made had been written by a brother conspirator [emphasis in original].’

Definition of treason

One of the most obvious defects in the defence of Robert Emmet was the failure to even raise the question of whether his activities constituted treason as alleged in the indictment. Treason had always been a controversial charge because of its peculiar constitution in English law. It was the first common law offence to attain statutory definition, in 1351 under a statute of King Edward III. This, ironically, was introduced because the vagueness of the offence in common law made it an overly flexible political weapon. Accordingly, the indictment against Emmet charged treason in the classic form, that of ‘compassing or imagining the death of the king’. This mental act was the offence: specific physical acts were merely the evidence of it. Over the centuries, there had been a tension between a narrow interpretation, requiring an actual intention physically to kill the king, and a broader approach that validated an offence of implied or ‘constructive’ treason, whereby an intention to depose the king was regarded as including an intent to kill him.
The 1790s were a decade of considerable radical activity in England as well as in Ireland. In 1794 there was a great state trial of leaders of the London Corresponding Society, a group favouring universal suffrage, annual parliaments and, it was alleged, the deposition of the king. In the trial for high treason of its leader, Thomas Hardy, and others, the prosecution and defence were conducted by two great luminaries of the English bar, Lord Eldon and Thomas Erskine respectively. Eldon contended that it was sufficient if the persons charged intended ‘to put the king in circumstances in which, according to the ordinary experiences of mankind, his life would be in danger’. Erskine contended for a literal construction of the act, requiring an intention physically to kill the king. He admitted that an intention to depose was something that entitled the jury to draw an inference that the prisoner intended to kill the king, but that was a matter for the jury and unless they did draw that inference Hardy could not be convicted of treason even though he had an intention to depose the king. Chief Justice Eyre then left the issue of intention to kill to the jury. This was not done in Emmet’s case, where the jury were simply told that if they accepted the evidence of the witnesses the offence of treason was complete. This deprived Emmet of the very point on which Hardy and his colleagues were acquitted.
Immediately following their acquittals, Pitt’s government introduced an act, 36 George III, chapter VII, that extended the definition of treason from compassing the death of the king to any form of violence against the government, including conspiring with any foreigner to invade any part of the king’s dominions. This would certainly have captured Emmet’s actions as we know them. But this act did not apply in Ireland.
In the Irish state trials between 1798 and 1803 a much broader definition of treason than that available under English common law was used. Specifically the question of intent to kill the king was regarded by the judges as conclusively established by proof of an act of rebellion or an intention to depose, and was never left to the jury. According to Sir James Fitzjames Stephens’s History of the Common Law:

‘The doctrine against which Erskine is supposed to have prevailed in the trials of 1794 was applied to many later cases without hesitation. This occurred in the trials for the Irish Rebellion in 1798 and in particular of the two brothers Henry and John Sheares.’

That is the very point: the cases in which the English decision of 1794 was ignored were all Irish cases.
The statute of 1795 also required that the overt acts of treason be proved by not less than two witnesses. In the case against the Sheares brothers there was only one relevant witness, the notorious felon-setter Captain Armstrong. When this point was taken by Curran on their behalf, the Irish court held that the requirement for two witnesses arose by statute only and in England only and not in Ireland, i.e. that the act of 1795 did not apply here.  Fifty years later, when the Treason Felony Act of 1848 was introduced after the rebellion of that year, it recited that ‘doubts were entertained whether the provisions (of the said 1795 Act) extended to Ireland’: this is an understatement since it is perfectly clear from the decision of Lord Carleton in the Sheares case that the act did not apply here.
It should also be noted that there was an additional difficulty in contending for an implied intention to kill the king based on an act of rebellion in Ireland. King George III had never resided in or even visited Ireland. In the English state trials Lord Eldon had contended that deposing the king endangered his life ‘according to the ordinary experiences of mankind’. This is much harder to maintain if the overt acts of rebellion take place on a different island. But this point, too, was ignored.

Did it make any difference?

Although it might be said that Emmet would very likely have been convicted even if he had been defended by honest and competent counsel and allowed to make whatever defence he wished, and to cross-examine the witnesses, I think it is too easy to jump to this conclusion. The Crown did not go to the lengths described in this article for any reason other than fear that their case might collapse. Two of the trials in September 1803 ended in acquittal after a vigorous defence and thorough cross-examination, and Wickham himself feared that Emmet would be acquitted. As it was, the Crown was guaranteed its moment of glory as the leader of the Rebellion went to the scaffold; McNally got his money, Sarah Curran her immunity and Emmet his martyrdom. As a bonus, the Crown also got John Philpott Curran: a month later, contemplating another legal difficulty, the Castle consoled itself that ‘Mr Curran is completely in our power’.

Adrian Hardiman is a history graduate of University College Dublin and a judge of the Supreme Court.

Further reading:

M. Elliott, Robert Emmet: the making of a legend (London, 2003).

P.M. Geoghegan, Robert Emmet: a life (Dublin, 2002).

R. O’Donnell, Robert Emmet and the Rebellion of 1798 and Robert Emmet and the Rising of 1803 (Dublin, 2003).

R. O’Donnell, Remember Emmet: images of the life and legacy of Robert Emmet (Bray, 2003).