The second half of the nineteenth-century saw the struggle for Irish independence manifested in Fenianism, a movement which originated with the Irish Republican Brotherhood, a secret society formed by Irish emigres in the United States. Membership of the Brotherhood involved taking an oath to overthrow the English government of Ireland by violent means. It thus amounted, in itself, to a criminal conspiracy without any action being taken in furtherance of the oath. Not surprisingly, the judges held that ‘the Fenian conspiracy’ was itself a criminal association, and often the only question for juries was whether the accused had expressed support for the movement’s aims. By 1867, there were estimated to be 80,000 Fenians supported by numbers of Irish American officers who had fought in the American Civil War.
In March 1867, the Fenian-inspired Dublin rebellion led to twelve deaths and a number of conspiracy trials, including that of McCafferty which marked a clear extension of the law. McCafferty was charged with treason, and in particular with levying war and attempting to depose the queen. It was proved that he had been a member of the Directory of the Fenian conspiracy which had organised the rebellion during February 1867. McCafferty was arrested 23 February. Two weeks later the Fenians rose up in Dublin, allegedly as a direct result of the Directory’s plans. Mr Justice George held that McCafferty’s responsibility for the acts of the rebels did not cease on his arrest, since the Dublin insurrection was a substantive act done in furtherance of the conspiracy, in pursuance of commands given by the accused or by others for whom he was responsible. Evidence of the events of 5 March (the date of the uprising) was admissible against him. The case is stated by the 1979 edition of Archbold to be an example of the rule that the acts and declarations of any of the alleged conspirators done in furtherance of their common design may be given in evidence against any other conspirator.
The international nature of Fenianism was illustrated by the trial of Meany who was charged with treason felony. Some of the allegedly treasonable acts supporting the indictment were conspiracies against the king. Although the venue of the offence was Dublin, where the trial took place, no act of conspiracy was alleged within the venue: the Crown accepted that Meany had been in the United States at all relevant times. Evidence was given of the Fenian uprising in Dublin and of Meany’s supportive activities in America. Mr Justice Fitzgerald held that Meany was responsible for the acts of his co-conspirators – their acts were his, because they were in law his agents, and this satisfied the common law rule that an offence must be proved where the venue is laid.
The acts of conspiracy in the county and city of Dublin [said his lordship] are to be treated as the acts of the defendants; though his imagining was abroad, yet when he acts by his brother conspirators in the county, the moment he becomes amenable he may be tried, and I cannot think the defendant’s presence in the county necessary.
In legal terms, perhaps the most significant of the Fenian cases is Mulcahy, still cited by Archbold as a leading authority on the definition of conspiracy. Mulcahy and nineteen others were convicted of treason felony, having compassed to depose the queen by conspiring to make war and to aid the objects of the Fenian conspiracy. Mr Justice Willes confirmed that a conspiracy was an overt act of treason, explaining that the numbers of persons involved caused danger to the state:
…it seems a reduction to absurdity that procuring a single stand of arms should be a sufficient overt act to make the disloyal design indictable, and that conspiring with a thousand men to enlist should not.
Further:
A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more, to do an unlawful act or to do a lawful act by unlawful means. When two agree to carry it into effect, the very plot is an act in itself, and the acts f each of the parties, promise against promise, actus contra actum, capable of being enforced, if lawful, punishable if for a criminal object or the use of criminal means. And so far as proof goes, conspiracy is generally a matter of inference…
This definition, based on the Hawkins doctrine, helped to give authenticity to Hawkins’ views and remains essentially accurate as a statement of the law despite the limited reforms of the Criminal Law Act 1977. Cases like Mulcahy, concerned with treason felony rather than conspiracy, in which members of political organisations were prosecuted against a background of violent revolution, gave substance to vague common law doctrines which were eventually to gain acceptance and citation in successive editions of criminal law textbooks.
The Treason Felony Act was taken a stage further in Davitt and Wilson where it was held that supplying arms to the Fenians was a sufficient overt act of conspiracy for liability under the Act. Davitt was sentenced to fifteen years of imprisonment: after his release he founded the Irish National Land League, of which Parnell was to become President.
The last of the great Fenian trials was that of Deasy who, with five others, was charged with conspiracy to levy war against the Queen, to subvert and destroy the constitution and government of the United Kingdom, and to blow up ‘divers public buildings unknown’. The basis of the case against Deasy was that he had been found in possession of bomb-making materials and letters which linked him with two of the co-accused. A search of their lodgings unearthed firearms and explosive substances. Dalton, the fourth accused, had been seen taking notes outside the Houses of Parliament and had been in possession of documents linking him with the Fenians. All were convicted and imprisoned for life. The four-fold nature of the prosecution’s case – evidence of political beliefs, association, literature and explosive substances – reveals a pattern which has been repeated in a number of modern conspiracy trials with political overtones, most notably that of the Angry Brigade.
Later in the nineteenth-century, Charles Parnell MP assumed the leadership of the nationalist movement through the Irish National Land League, which aimed to improve the condition of rural tenants by reforming the land tenure system. In 1881 Parnell and four other leaders of the League were charged with conspiracy for their activities in persuading tenants to refuse to pay rent and to retake possession of their land by force if they were evicted. The jury refused to convict, but during the trial certain statements were made by the Bench which are still referred to by Archbold. Mr Justice Barry pointed out that there must be in conspiracy ‘considerable vagueness and uncertainty, which in many respects is contrary to our law, and I agree that it should be administered with very great care.’
Mr Justice Fitzgerald, having accepted the political nature of the trial and the function of conspiracy as a ‘catch-all’ offence, said that conspiracy was divisible into three heads. First, an agreement to obtain an end criminal in itself; second, to obtain a lawful object by unlawful means; and, third, a plot to injure some third party or class, although the wrong if inflicted by a single individual would not be a crime. His lordship also recalled
…a remarkable case at Cork, as singular and remarkable case as I ever met with. It was a case in which two persons had been connected with the American service in the late (civil war0. One was a captain of cavalry in the southern side, and the other a captain on the northern side. One was a native of this country, the other a native born of America. They had been opposed to each other during the war: they had never seen each other. They had been arrested when they arrived at Queenstown. The one had come to take command of a brigade of Fenian cavalry, and had brought with him as his whole equipment a saddle, a pair of spurs and two long pistols. The other was returning to Ireland but he was alleged to be a party to the Fenian conspiracy. They were put upon trial in the same dock, upon the same indictment, and the first time they saw each other was when they stood face to face in the dock. I mention this case as illustrating that the charge of conspiracy may be well-founded even though the parties never saw each other.