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 1 8 

 
 EEPOET OF THE PROCEEDINGS 
 
 IN THE CASE OF 
 
 FITZGERALD v. NORTHCOTE 
 
 AND ANOTHER. 
 
 TOGETHER WITH 
 
 AN INTRODUCTORY NARRATIVE AND OTHER 
 DOCUMENTS. 
 
 LONDON: 
 
 BURNS, LAMBERT, AND GATES. 
 DUBLIN: DUFFY. BIRMINGHAM: MAHER. 
 
 MDCCCLXVI.
 
 LONDON : 
 
 ROBSON AND SON, GREAT NORTHERN PRINTING WORKS, 
 PANCRAS ROAD, N.W.
 
 THE following Letter from the Bishop of the 
 Diocese to Dr. Northcote sufficiently explains the 
 circumstances under which this Report is published. 
 It is taken from the short-hand notes of Messrs. 
 GEORGE WALSH and Sons, 3 Little George Street, 
 Westminster ; and only such foot-notes have been 
 added as are necessary to correct either manifest 
 errors or misunderstandings, which could scarcely 
 fail to arise out of the evidence, if unexplained. 
 
 The Introductory Narrative is composed only 
 of authentic documents, or extracts from such 
 documents, and requires no explanation. 
 
 EDMUND J. KNIGHT, 
 
 Vice-President. 
 St. Mary's, Oscott, 
 March 1, 1866. 
 
 Stack 
 
 Ann;;:- 
 
 044- 
 4-lfc 
 
 1051384
 
 Birmingham, Feb. 10, 1866. 
 DEAR DR. NORTHCOTE, 
 
 Having only returned late last night from assist- 
 ing at Bishop Hogarth's funeral, I had not till to-day an 
 opportunity of reading through the proceedings in the case 
 of Fitzgerald v. Northcote. It was after young Fitzgerald 
 had left the College that you informed me of what had 
 passed with respect to him, and I then expressed the fullest 
 approval of the course you had taken ; and the facts that 
 have come out on the trial have but strengthened the 
 motives for the approval to which I then gave utterance. 
 I wish completely to identify myself with the position in 
 which that trial may have placed you, and to share with 
 you whatever annoyance it may occasion : although I am 
 disposed to believe that from all thinking men and persons 
 of honourable mind the verdict will be in your favour. 
 
 In my opinion you will do well to print the whole pro- 
 ceedings of the trial, from the best report obtainable ; for 
 the facts that come out, and the remarks of the Chief- 
 Justice as to what may be rightly done by the Head of an 
 establishment such as that you preside over, will always 
 stand for the complete vindication both of yourself and of 
 the College. As the Chief- Justice observed, " Beyond all 
 doubt, young Fitzgerald had certainly shown symptoms of 
 a mutinous disposition, and had given considerable trouble. 
 He ought to have shown a good example to the boys ; but, 
 nevertheless, he had contrived to get into as many scrapes 
 as he could possibly have fallen into." As to these being 
 " of a venial character," morally, and in the abstract, they 
 might be so, but most certainly not as bearing on the dis-
 
 cipline of the College, and the preservation of harmony 
 within it. As the Judge remarked, " It was to be borne 
 in mind that in so large an establishment it was most 
 important to keep up discipline and regular habits." Pre- 
 cisely for this reason, that discipline, where large numbers 
 of boyish spirits have to be kept under control, is most 
 important, its open and frequent violation by one whose 
 age and position rendered his conduct influential cannot be 
 considered as venial, that is to say, such as may be easily 
 overlooked or pardoned. 
 
 Speaking in detail of this conduct, the Chief-Justice 
 says, " As to going to public-houses, it was most fit that 
 there should be a rule against it ;" indeed, there are more 
 things than beer or any other beverage to which youths 
 are exposed in. drinking-houses ; and the Judge himself 
 drew the distinction between going for refreshment and 
 seeking diversion in public-houses. And again, as his 
 Lordship remarked, "it was most reasonable that there 
 should be a general rule against the use of fire-arms by 
 the boys in the school. And on the occasion in question 
 the answer of Fitzgerald as to the discovery of the pistol 
 was, to say the least, not satisfactory." 
 
 In the circumstances which form the main point in 
 this case viz. the young man's expulsion, consequent upon 
 his final act you acted yourself on the principle which the 
 Chief-Justice has laid down. His words are these : " Now, 
 if the fact really was that young Fitzgerald, after the ill- 
 feeling which had existed in former times between the lay 
 and tlie clerical students, really did organise a confederacy 
 among the students for the purpose of renewing that un- 
 happy and discreditable feud, and making the position of 
 the clerical students of inferior birth uncomfortable and 
 unpleasant, there could be no doubt that it was a most 
 unjustifiable, dangerous, and improper course of proceed-
 
 ing, and one which, if it did in fact exist, would call for 
 the intervention of the President and other authorities of 
 the institution in some marked and conspicuous manner, to 
 crush the attempt before it had reached a head, and thus 
 to preserve the peace and comfort of the establishment." 
 But you, the President, had evidence of the reappearance 
 of this spirit before you knew who was its originator or 
 promoter ; and the book, while it confirmed what you had 
 already learnt from other sources, served to point out the 
 originator. We may appeal to any unprejudiced man of 
 ordinary common-sense whether a youth under accusation 
 saying "It is all nonsense," can render null such proof of 
 his acts and of their natural tendency; his very style of 
 speech is an admission of the truth of the charge. 
 
 But alas for prejudices ! Although I advised you to 
 accept of no compromise, such as implied admission of 
 error, a compromise of such a character as was offered, 
 and even pressed upon you, yet I had pretty well cal- ' 
 culated that the verdict of your so-called peers would be 
 against you. We Catholics live in an atmosphere of pre- 
 judice; foregone conclusions follow us like our shadows. 
 Whenever a case affects the Catholic clergy, these pre- 
 judices have to be taken into calculation. The lawyers 
 refer to them by expressions quite proverbial ; and in this, 
 as in previous cases, the adverse Counsel played upon them. 
 Nor does the Court seem to have power to protect us from 
 them. Here, however, they came out into the light of day, 
 when, before a word of the Defendants' case had been heard, 
 the Jury expressed their readiness to decide, with the in- 
 tention of giving their verdict in favour of the Plaintiff. 
 
 We may accept the dicta of the Judge, that " the Prefect 
 of Discipline, Mr. Stone, had shown no symptoms of arbi- 
 trary temper ;" and that " it was impossible for any candid 
 mind to object to what was said by Dr. Northcote to the
 
 youth on occasion of pointing out to him the serious 
 character of his persistent disregard of discipline, and 
 warning him that his next offence must be punished by 
 expulsion." And, notwithstanding the remarks that fol- 
 lowed, as to what might or might not have been done, and 
 what was to be regretted as not having been done, the 
 moral rectitude and propriety of what you did have full 
 testimony borne to them by the Judge. 
 
 For, indeed, it was your extreme kindness and con- 
 sideration for the youth himself, and your solicitude to 
 save his reputation with his father, that left open for him 
 a way beyond all calculation to enter on "a course of 
 proceeding," to use the Judge's words, "most unjustifi- 
 able, dangerous, and improper," and which you were called 
 upon " in some marked and conspicuous manner to crush." 
 But the only marked and conspicuous manner in which, 
 under the circumstances, this could be done was by expul- 
 sion, for you had already exhausted all other means of 
 punishment in dealing with this youth. And it must be 
 remembered, as you yourself distinctly stated in your first 
 letter to Mr. Justice Fitzgerald, that you dismissed him 
 not for this last offence of his only, or even principally, but 
 for that taken in connection with all his previous offences 
 of the half-year. Your words are : " Even if this had been 
 his first offence, I should have felt it my duty to mark 
 my sense of such conduct by some very serious penalty ; 
 but after all his antecedents of this half-year, I had no 
 alternative but to dismiss him immediately." I do not 
 observe this point any where brought out in the course 
 of the trial as it should have been. Indeed, the Plain- 
 tiff's Counsel allowed himself to say the direct contrary ; 
 viz. that you had condoned all his previous offences, and 
 attached no importance to them whatever, and sent him 
 away solely on account of the A. B. C. ; and this he said
 
 IX 
 
 while professing to comment on the very letter from which 
 I have quoted. 
 
 Justice to the College requires me to notice that the 
 details embodied in this case do not fairly represent the 
 habitual spirit of the establishment. They are exceptional, 
 arising out of an exceptional course of conduct. Oscott 
 has always allowed as much freedom to its students as is 
 consistent with control, and with the responsibility of pro- 
 tecting their moral character. Nor do I believe that a 
 greater frankness or more manly openness of character 
 than prevails there is to be found in any public school. 
 
 Praying Almighty God to bless you, and to prosper the 
 establishment over which you have so successfully presided, 
 and over which I hope you will long preside, 
 
 I remain, dear Dr. Northcote, 
 
 Your faithful servant and friend, 
 
 & W. B. ULLATHORNE.
 
 INTRODUCTORY STATEMENT OF FACTS. 
 
 EARLY in the year 1793, a "plan of Oscott Seminary" was 
 published, under the sanction of the Hon. and Right Rev. 
 Thomas Talbot, Vicar- Apostolic of the Midland District ; 
 the Right Rev. Charles Berington, his coadjutor; with 
 the Hon. Charles Dormer (afterwards Lord Dormer), and 
 Thomas Clifford, Esq. (afterwards Sir Thomas Clifford 
 Constable, Bart.), as joint trustees. In this "plan" it is 
 stated that " the end of the Institution is to supply one 
 priest yearly to the Mission; and that, as the course of 
 education is limited to six years, it is necessary that the 
 Seminary be established for the education of six students."* 
 
 In the month of November of the same year, "some 
 Catholic noblemen and gentlemen, finding the necessity of 
 an establishment at home for the education of the Catholic 
 laity, determined to found a public school or college in 
 England, to be under the inspection of a certain number 
 of governors ; and a subscription was opened to defray the 
 expense of such an undertaking.''! 
 
 Amongst the subscribers were the Lords Petre and 
 Stourton, Sir William Jerningham, Sir John Throckmor- 
 ton, Mr. Towneley, Mr. Hornyold, Mr. Wheble, Mr. Ber- 
 nard Howard (afterwards Duke of Norfolk), and the Hon. 
 
 * Printed document in the archives of Oscott. 
 
 f Printed document in the archives of Oscott, signed " By order of 
 the Governors, William Cruise, Secretary."
 
 Charles Dormer, one of the trustees of the Oscott Semi- 
 nary. 
 
 In the following year these two plans were combined ; 
 and in October 1794, a prospectus* was published "of the 
 plan of education for the Catholic College at Oscott," " in 
 consequence of the union which has been formed by the 
 Governors with the Bishop and Trustees of the Seminary;" 
 and it was announced that the house would be " ready for 
 the reception of students on the first day of November next." 
 
 In 1808 "the College of Oscott, under the direction of 
 Dr. Bew and certain noblemen, &c., being dissolved as a 
 losing concern, the property on the premises was offered 
 to the Vicar-Apostolic, on condition of his paying the 
 debts of the former establishment to the amount of about 
 600Z., which was accordingly done ; and a new establish- 
 ment was formed at once as a college and a seminary, 
 seven ecclesiastical students, about thirty lay students."! 
 
 In 1835 it became necessary to provide more extensive 
 accommodation. A farm was purchased in the neighbour- 
 hood of the old college, and a new building begun, which 
 in 1838 was fit for occupation. On the opening of the 
 chapel (May 31, 1838) Dr. Weedall preached "on the 
 origin, object, and influence of Church Seminaries ;" and 
 the new college was conducted, as the old one had been, 
 " on the plan of a seminary for ecclesiastics and a college 
 for lay students both together."}: 
 
 In the beginning of 1865 there were one hundred and 
 twenty-three boys in the house, of whom twelve only were 
 being educated for the ecclesiastical state ; and amongst 
 the lay students were David, John, and Gerald Fitzgerald, 
 
 * Now in the archives of Oscott. 
 
 f Dr. Milner's Ms. Journal. 
 
 j Dr. Husenbeth's Life ofDr.Mllner, p. 158.
 
 sons of the Right Hon. Mr. Justice Fitzgerald, of Dublin, 
 and David, Martin, and James Fitzgerald, sons of Mr. 
 Thomas Fitzgerald, the judge's brother. 
 
 On Monday, March 13th, Dr. Northcote, the Presi- 
 dent of Oscott, wrote the following letter to Mr. Justice 
 Fitzgerald : 
 
 " St. Mary's, Oscott, March 13, 1865. 
 
 " MY DEAR JUDGE, How shall I break to you the very sad 
 news I have to communicate? I hope and suppose David 
 will already have done this for me. He will have given you 
 his own account of what has happened to oblige me to send 
 him away from amongst us this morning. I must now give 
 y6u mine. I will confine myself to the last circumstance 
 which has forced upon me so grave a measure. I pass over 
 the breaches of discipline and offensive conduct to his supe- 
 riors, which by degrees led to my having a serious conversation 
 with him, and inflicting a severe punishment, on Shrove Tues- 
 day, scarcely a fortnight ago. After depriving him of his 
 'privileges' to the utmost, I said, 'There is only one thing 
 which remains in the way of degrading you, and that is to 
 deprive you of your room, and put you into the dormitory. 
 I do not inflict this punishment because it would destroy the 
 only end and object for which you are here, study for your 
 University examination, and I shall not inflict this therefore, 
 happen what may. If you commit any fresh offence, nothing 
 remains but to send you away. With senior boys like you 
 I have no other remedy.' He assured me very solemnly, and 
 more than once, that he would not offend in any way again. 
 I said I hoped he would not, but that, by way of precaution, 
 lest he should, I must write to you and acquaint you with 
 the exact state of things. ' I have never written to your 
 father,' I said, ' any thing but good of you. If I were to dis- 
 miss you from the college without warning, he would have a 
 right to complain. He would think I had lost my temper, 
 and been unreasonably harsh with you for a first offence. To 
 protect myself, therefore, I must make him informed of all 
 that has happened.' And with this I dismissed him. He re- 
 turned to me at 9.30 P.M. to beg that I would not write to
 
 A 
 
 you. I repeated the reasons for which I considered myself 
 obliged to do so, and he again and again promised that he 
 would be most careful not to offend again in any way, so that 
 I should be running no risk. ' It comes to this, David ; I 
 am risking my character for prudence and moderation and 
 justice against your word of honour that you will not give 
 any fresh cause of offence. Is this safe ?' He immediately gave 
 his word of honour, and I accepted it, but not without dis- 
 tinctly setting before him again the two sides of the balance as 
 they appeared to me. , 
 
 " This conversation took place on the last day of last 
 month ; and although I now find he has given frequent cause 
 of complaint to his superiors by breaches of discipline since 
 that time, I had not been told of them, out of a considera- 
 tion for him, until this morning, when I was informed of the 
 discovery of an association amongst the boys, got up by David, 
 against the Church students of the college. He had prepared 
 lists of all Church students of the last few years, their places 
 of residence, ' with all particulars' (I quote from his Ms., now 
 lying before me) ' as to birth, parentage, qualifications, patrons, 
 &c.' By making all sorts of inquiries, he had discovered, or 
 imagined he had discovered, that ' A. B.'s brother or uncle 
 keeps a small grocery establishment ; D. C.'s father is a general 
 inspector of canal-locks, &c.;' and he had persuaded some ten 
 or twelve of his companions to join in this association. Any 
 thing more ungentlemanly in itself, or more mischievous in 
 its probable consequences, I have rarely, I may say never, met 
 with, since my connection with the college. Even if it had 
 been his first offence, I should have felt it my duty to mark 
 my sense of such conduct by some very serious penalty. But, 
 after all his antecedents of this half year, I had no alternative 
 but to dismiss him immediately. I need not say how much 
 it has cost me to have recourse to so extreme a measure with 
 a boy of his promise, and after so many years' residence 
 amongst us. But it is his extravagant conceit which has 
 brought this disgrace- upon him ; and sad as it is, I only trust 
 it may be the means of sparing him worse falls hereafter, and 
 be some warning also to his brothers, who show symptoms 
 of a similar disposition.
 
 " I write in haste, but I think I ought to send you as early 
 information as I can. He left us at three o'clock this after- 
 noon for Dublin. I remain, my dear Sir, yours very sin- 
 cerely, J. SPENCER NORTHCOTE." 
 
 On Tuesday evening Dr. Northcote received the fol- 
 lowing telegrams from Mr. Justice Fitzgerald : " Let John 
 and Gerald Fitzgerald return home by the early train to- 
 morrow morning ;" and from Mr. Thomas Fitzgerald : " I 
 wish my sons David and James to come home by the to- 
 morrow morning's train." 
 
 On Thursday evening Dr. Northcote received the fol- 
 lowing letter from Mr. Justice Fitzgerald : 
 
 " March 15, 1865. 
 
 "DEAR SIR, I received your letter of the 13th on my 
 arrival in Dublin yesterday. In order to enable me to form 
 a correct judgment of the course pursued towards David, I 
 desire to be informed of the details of ' the breaches of dis- 
 cipline and offensive conduct towards his superiors,' the ante- 
 cedents of this half year to which you allude now for the first 
 time. I also desire to see the Mss. from which you wrote. 
 In addition, I think I am not unreasonable in asking you 
 whether it was with your sanction that Mr. Stone, the prefect, 
 took from David's person, by superior force, a note-book con- 
 taining some papers, and amongst them the Mss. in ques- 
 tion ; and also, whether it is true that his private room had 
 been previously searched, and this note-book and Mss. secretly 
 inspected ? When I have received your reply, which I hope 
 for by return of post, I will be in a position to form an opinion, 
 and will write further to you on the subject. Your faithful 
 servant, J. D. FITZGERALD." 
 
 Dr. Northcote replied : 
 
 " St. Mary's, Oscott, March 17, 1865. 
 
 " DEAR SIR, Your note of the 15th inst. reached me last 
 night too late to be answered by return of post, and I confess 
 I was somewhat surprised at the request for information * to 
 enable you to form a correct judgment on the course pursued 
 towards David.' Two days before, I had received a telegram
 
 8 
 
 ordering the immediate removal of the whole family from col- 
 lege ; a course of proceeding which seemed to indicate in no 
 doubtful manner a judgment already formed. I will add, also, 
 that your note does not inspire me with confidence as to the 
 correctness of the judgment likely to be formed upon informa- 
 tion I' may give as to matters in which your own judgment 
 has been already so strongly committed to one side. You will 
 excuse me, therefore, if I write more briefly, perhaps, than you 
 might wish, and than my own inclination would have other- 
 wise prompted me to do. 
 
 " I will answer your inquiries in order. 
 
 " I. The catalogue of David's offences during the three 
 months before Shrove Tuesday comprises (inter alia) 1 . Smug- 
 gling into college a bottle of spirits, and entertaining his 
 friends, two of whom drank to excess (this came to my know- 
 ledge only a few weeks since). 2. Borrowing from the prefect 
 a pass-key, and taking a rubbing and a wax impression of it 
 before he returned it. 3. Going to an inn at Erdington ; and 
 this, too, at a time when he was already under penance for 
 minor breaches of discipline. 4. Three days after, being put 
 in penance by myself for the last offence, disregarding that 
 penance altogether, and enticing a companion into the plan- 
 tations, and shooting there. 5. Equivocating, and otherwise 
 misbehaving himself when detected, and then preferring a com- 
 plaint to me against the prefect, by way of forestalling the 
 prefect's report against himself. 
 
 " The sequel to these acts, and the immediate occasion 
 of his leaving, you are already in possession of; and farther 
 details connected with it will come out in the course of this 
 letter. 
 
 " II. I cannot consent at present to part with the Mss. 
 asked for ; but I enclose a copy of each page that concerns the 
 matter in hand, only omitting lists of names, which David 
 himself can supply. 
 
 " III. His room had been searched, and his note-book 
 examined the day before he left us, not by any express sanc- 
 tion of mine for this was not required but upon hearing of 
 its contents, I desired the prefect to ask David for it ; and, if 
 he refused to give it up, to take it from him, and bring it to
 
 9 
 
 me. And this was done in accordance with the practice of 
 this, and I suppose every other society, in proceeding against 
 those who are known to be conspiring against its rights. It 
 had been known to the authorities for the past week that 
 mischief was being concocted in the house against a certain 
 class of its members. One of these, in conversation with a 
 superior about the evil spirit on this subject in ' the bounds,' 
 had been asked who were the chief offenders ; and after naming 
 one boy, he added, that perhaps D. F. might have something 
 to do with it, but that he was so careful in all he did that 
 there was no finding him out. On Sunday evening the whole 
 history of the association was laid before the prefect by one 
 of the divines, who had received it from a lay student, and 
 who felt bound at once to denounce it. In this denuncia- 
 tion David's name was given as the originator and life of the 
 movement. 
 
 " On this information the prefect immediately proceeded 
 to his room, opened his pocket-book, and found the papers I 
 have quoted, and then for the first time laid the matter before 
 me. The sequel you already know, and painful as it is, it was 
 inevitable. Yours truly, J. SPENCER NO&THCOTE." 
 
 Extracts from D. F.'s pocket-book, made March 17, 1865 : 
 
 Page 1. "L. B. C. S., one dozen." 
 
 [Here follow the names of all Church students in the house, 
 with the names of the Bishops who send those who do not 
 belong to the diocese of Birmingham, the places of birth of 
 several, and some initials appended to other names, the mean- 
 ing of which I don't know ; therefore, I don't think it worth 
 while to copy. S. N.] 
 
 Page 2. " Uncle or brother keeps a small grocery esta- 
 blishment in Wednesfield Heath. Father, a general inspector 
 of canal-locks. Authority, honorary secretary, A. B. C." 
 
 [N.B. Examine Henry "Walter of Fred about C * * * (one 
 of the Church students) of Dudley. S. N.] 
 
 Page3. "A. B.C." 
 
 [Here follow the names of the members. S. N.] 
 
 " Governor Moody, elected March Gth, for his magnanimous 
 sentiment about Sedgely Park."
 
 10 
 
 F * * -j- jy[ > B i Consult hon. secretary for information about 
 this ' gentleman' [a former Church student of the house, now 
 and for the last year or more a priest in this diocese. S. N.] 
 
 Page 4. [Contains nothing that concerns the matter in 
 hand. S. N.] 
 
 Page 5. " List of members of A.B. Society." 
 
 Page 6. "We want all particulars about the under-men- 
 tioned, as to birth, parentage, qualifications, patrons." 
 
 [Two loose papers contain a list of all Church students 
 who have come into the college in and since '59, with names 
 of patrons, previous places of education, time of entering the 
 college, &c. S. N".] 
 
 On the 19th March Mr. Justice Fitzgerald wrote to 
 
 Dr. Northcote as follows : 
 
 " 19th March 1865. 
 
 " EEVEREND SIB, I have received your letter of the 17th, 
 in answer to mine of the loth. There was nothing in my 
 letter, nor in the subject to which it related, to call for or 
 warrant a sneering or offensive reply. You complain that my 
 judgment stands committed on one side by the removal of my 
 second and third sons. 
 
 " I ordered their return as, in consideration of your letter 
 of the 13th inst., I considered they were no longer safe at 
 Oacott. 
 
 " The course you have pursued has been to me cruel nay, 
 inhuman; but I pass over the deep wound inflicted on me, 
 although I might, perhaps, have put also to you the question, 
 was there no consideration due to me ? Since the receipt of 
 your first communication I have learned from my sons and 
 nephew a matter not alluded to by you viz. that imme- 
 diately after turning my eldest son out on the roadside you 
 addressed to the assembled members and pupils a harangue, 
 in which you endeavoured by poisonous slanders to complete 
 the moral ruin you had so recklessly begun. 
 
 " I cannot permit my son to enter life to join a high 
 and honourable profession with the stain you have thus fixed 
 on his name ; and I will, therefore, endeavour to procure for 
 him an opportunity for public investigation. In doing so I
 
 11 
 
 will be actuated solely by a desire to perform my duty to him 
 and to the public, in seeing that truth and justice shall pre- 
 vail. Your faithful servant, J. D. FITZGERALD." 
 
 Two or three weeks after the receipt of this letter the 
 usual legal notice of action was served on Dr. Northcote 
 and the Kev. W. Stone, Prefect of Discipline at Oscott.* 
 
 As soon as the rumours of these legal proceedings got 
 abroad, friends of both parties were anxious to interpose 
 their good offices, to obtain some other settlement of the 
 dispute. Before the end of April a friend of Dr. Northcote 
 wrote the following letter to a friend of Mr. Justice Fitz- 
 gerald : 
 
 " 27th April 1865. 
 
 " MY DEAR , I am very glad that you are willing to 
 
 communicate with me on the subject of the question between 
 David Fitzgerald and Oscott College. It seems to me very 
 desirable for all parties that some settlement should be arrived 
 at out of a court of law ; and it would be a great kindness if 
 you would act with me as a medium towards getting a refer- 
 ence of the question. 
 
 " I suppose that Judge Fitzgerald considers that his son has 
 been unfairly treated, and that imputations have been thrown 
 on his character undeservedly, which the action he has com- 
 menced may serve to remove. On the other hand, I am sure 
 that Dr. Northcote would not object to the adoption of means 
 that would bring the matter before the consideration of an 
 impartial tribunal, in which Judge Fitzgerald would also have 
 confidence. 
 
 " I would therefore propose that the question should be 
 submitted to two referees, one to be chosen on each side, with 
 power to choose a third if they do not agree. The question to 
 be submitted cannot be whether it was necessary or not that 
 D. Fitzgerald should leave the college, as Dr. Northcote would 
 not consent to such a point being referred to any one ; nor 
 
 * Mr. Stone had been ordained priest in March 18C4, and was made 
 Prefect in January 1865. His predecessor, Mr. Martin, was ordained 
 priest, and appointed to the office of Prefect, in March I860.
 
 12 
 
 indeed could it come in that shape into any court. But the 
 questions might be the same as those that would come before 
 the jury, with the same power to the referees to award the 
 damages. Or, as those questions turn on rather technical 
 points, the case referred, if Judge Fitzgerald so wished it, 
 might be drawn in such a way as to bear directly on the 
 moral and social aspects of it ; that is to say whether in the 
 mode in which the removal was effected, and the circum- 
 stances that accompanied it, David Fitzgerald was unjustly 
 or illegally treated, considering his age and standing and 
 antecedents. 
 
 " Of course, in making such a proposal I must not be taken 
 as admitting that such was the case, but merely that the 
 question should be put in such a way as to lead to a full 
 inquiry into the facts. The decision when given may be made 
 public, if it should be considered desirable on either side. 
 
 " Any thing you can do towards obtaining such a solu- 
 tion will be a kindness. I remain, &c. 
 
 " E. E. ESTCOURT." 
 
 On the 5th or 6th of May Dr. Northcote had in Lon- 
 don an interview with the gentleman to whom this letter 
 had been addressed, and who then communicated to him 
 Mr. Justice Fitzgerald's refusal to accept the proposed 
 reference. 
 
 Not long afterwards Canon Estcourt had an interview 
 with Mr. Justice Fitzgerald himself, in which the Judge 
 proposed to abandon all legal proceedings if Mr. Stone 
 were dismissed from his office (of Prefect of Discipline) at 
 St. Mary's College. Mr. Estcourt did not think it neces- 
 sary to communicate this proposal to Dr. Northcote, but 
 declined it at once. 
 
 On the 15th of June a mutual friend of both parties 
 wrote, on his own mere motion, to Dr. Northcote, suggesting 
 whether it would not be possible to leave the whole matter 
 to a distinguished Irish ecclesiastic, who should have the
 
 13 
 
 legal assistance of an eminent Irish barrister. Dr. North- 
 cote declined this offer, as not being so just and reasonable 
 as that which had been made before and declined by the 
 Judge ; but he added that if that proposal could be again 
 renewed, he considered the settlement of the affair " might 
 still be open to negotiation on such a basis." No further 
 communications passed upon the subject, and the trial was 
 expected to come on in November. It was postponed, 
 however, on the application of Mr. Justice Fitzgerald, who 
 was unable to leave Dublin in consequence of the Special 
 Commission for the Fenian trials. Finally, the cause was 
 heard before Lord Chief-Justice Cockburn and a Special 
 Jury in the Court of Queen's Bench on the 5th, Gth, and 
 7th February 1866.
 
 WESTMINSTER HALL, 
 
 February 5th, 1866. 
 
 In the Court of Queen's Bench. 
 
 TEN Special Jurors answered to their names. 
 
 A Tales is prayed by Mr. Coleridge, and two Common 
 Jurors having "been added, the Jury are sworn. The pleadings 
 are opened by Mr. Philbrick. 
 
 Mr. Coleridge: May it please your Lordship, Gentlemen of 
 the Jury, You will have gathered probably from the statement 
 of my friend Mr. Philbrick, that this is a case a little out of the 
 common way, depending upon circumstances not of every-day 
 occurrence, and which will therefore require at your hands some 
 patient attention, whilst I endeavour to make plain the grounds 
 upon which the action is brought, and what it is that is sought 
 by the Plaintiff in this action before you. 
 
 The Plaintiff on the record is the eldest son of the Eight 
 Honourable John David Fitzgerald, one of the Judges of the 
 Court of Queen's Bench in Ireland, who was for a good many 
 years Attorney-General for Ireland, and in the Parliament of 
 this country. The two Defendants are Dr. Northcote, the Pre- 
 sident of a Roman Catholic College at Oscott, and Mr. William 
 Stone, one of the assistants in the tuition at that place. 
 
 Young Mr. Fitzgerald, the Plaintiff, is, I think, just nine- 
 teen years of age. He is not therefore of age himself to be a 
 plaintiff, and the action is therefore brought by his father as his 
 next friend, under circumstances which I will mention to you 
 in a moment. It is brought for the purpose of recovering dam- 
 ages for what Mr. Justice Fitzgerald and his son allege to be 
 excessive violence towards him on the part of Dr. Northcote 
 and Mr. Stone, the President and Master at Oscott, expelling 
 him from the school under circumstances of great ignominy, as 
 I think you will see, and with a view of establishing to the
 
 satisfaction of those who may hereafter be unfavourably affected 
 by the conduct to which Mr. Fitzgerald has "been exposed, that 
 there was no foundation whatever for the treatment to which he 
 was subjected, and that those who have so treated Mm are 
 answerable in point of law in damages to him and to Mr. 
 Justice Fitzgerald. 
 
 Now, gentlemen, having mentioned the word " damages," I 
 may say at once that this is an action which the Judge could 
 not bring to put money into his pocket; nor is money the object 
 for which Mr. Justice Fitzgerald appears in this Court. He 
 appears in this Court because he conceives that he has a legal 
 ground of action against the two Defendants ; but he certainly 
 would not have made use of that legal ground of action, and 
 you would not have been here empanelled to try this case, if it 
 Avere not that interests far dearer to him than any amount of 
 money can represent are involved in the issue in this case, and 
 that it is brought, as he does not hesitate to avow, upon a legal 
 ground, but for the vindication of the character of his son, in 
 whom his best hopes in life were centred. 
 
 Now, gentlemen, young Mr. Fitzgerald went to Oscott a 
 good many years ago, when he was about eleven years of age, 
 and he was at the time of the transactions which have led to 
 this action there with his two brothers. I have stated to you 
 his age. He is about nineteen now, and his two brothers are 
 considerably younger. When he first went to Oscott, the Col- 
 lege was under the Principalship of Dr. Weedall, who was 
 President of it, and who died in 1859 ; and on his death a 
 gentleman of the name of Morgan succeeded to the Principalship 
 of Oscott. He died in 1860, and in 1861* Dr. Northcote was 
 appointed to the Presidentship of Oscott. Now, I desire to say 
 at once, that throughout this inquiry on the part of Mr. Justice 
 Fitzgerald no imputation is to be made, so far as I am con- 
 cerned, upon the personal or moral character either of Dr. 
 Northcote or of Mr. Stone. I have no right certainly to claim 
 to be a friend of Dr. Northcote's, but I am a very old acquaint- 
 ance of his, for we were at Oxford together before he became a 
 Koman Catholic ; and I may say that he is a most distinguished 
 man, of whom I never heard any thing but good, and against 
 * Dr. Northcote was made President of Oscott in July 18GO.
 
 16 
 
 whom certainly I do not desire to say a syllable of evil. Dr. 
 ^Torthcote, who was a very great loss to the Church which he 
 left, and is a very great ornament to the Church which he 
 joined, was made the Principal of Oscott in 1861; and certainly 
 in a great many respects the Eoman Catholic Communion could 
 not have selected a better person to put at the head of a great 
 institution than Dr. Northcote was. Dr. Northcote, however, 
 was a person who found the discipline of Oscott more lax than 
 he thought that it should be ; as soon as he joined it, and when 
 he became Principal, he enforced a very much severer code of 
 discipline than had up to that time obtained. The President 
 of Oscott, I understand, is appointed by the Roman Catholic 
 Bishops, and is responsible to the Eoman Catholic Bishops, and 
 to them alone. He appoints and removes all the officers in the 
 Institution. He is, in fact, subject to the control of the Bishops 
 of his Communion, the autocrat of the place ; and no doubt it is 
 very right that the head of a great establishment of that kind 
 should be absolutely at liberty to enforce what he thinks right 
 for the discipline of the school. The various officers the Pre- 
 fects of Discipline, the Prefects of Studies, and other details of 
 the Institution will appear by and by, when I come to explain 
 to you more particularly how these matters arose ; but originally, 
 I ought to tell you that as I understand it, the College at 
 Oscott had been a seminary chiefly for the instruction of priests * 
 but inasmuch as there was a difficulty in maintaining it for Want 
 of funds, it had for a great length of time become a lay college, 
 where the sons of some of the leading Roman Catholic families 
 in this country and in Ireland were educated ; and the fact was 
 that at the time when young Mr. Fitzgerald was sent there it 
 was a great place for lay education for some of the first Roman 
 Catholic families in the country. Mr. Fitzgerald was sent there 
 for the purpose of being amongst those with whom he would in 
 afterlife have to associate, and in order that he might obtain 
 the best education that a Roman Catholic institution can afford 
 to such persons. 
 
 The fact, however, of a large number of lay people being 
 sent there, and it being for such an institution rather an expen- 
 sive place of education, did not take away from it the character 
 * See Introduction, p. 3.
 
 17 
 
 of having priests there to be educated still. And the Bishops 
 were in the habit of sending (the expenses of their education 
 being defrayed out of the large fund which the lay gentlemen 
 paid*) young persons from various other seminaries in the 
 country to Oscott for the purpose of finishing their priestly 
 education. They usually came, I think, about the age of six- 
 teen, and they were drafted from time to time into the various 
 classes at Oscott which their state of preparation enabled them, 
 to join with effect. When they had passed through a certain 
 course of instruction at Oscott, they became what were called 
 "Divines." They were removed from the more stringent por- 
 tion of the discipline of the College. They were ordained 
 priests ; some of them were ordained for missions at home, and 
 some abroad ; and a good many of them were used for the pur- 
 pose of the education in the College itself. They had classes 
 put under them; part of the discipline of the College was 
 intrusted to them ; and thus it would often happen that young 
 men would come there from other colleges, and for the purpose 
 of being ordained priests they would at a very early age be 
 turned into masters of the College, and be placed over the heads 
 and in authority over young men not inferior to them in any 
 respect, and very little inferior to them in age. 
 
 If the necessities of the case require it, of course that is an 
 answer; but any body at all acquainted with education must 
 know that such a system must be very difficult to work, and it 
 must in given cases occasion considerable inconvenience and 
 considerable ill-feeling. Such, however, was the way in which 
 the discipline at Oscott was carried on. I think I told you 
 that the priests were there as free students, the expense of their 
 education being paid out of the profits which accrued to the 
 institution from the presence of the lay boys who Avere educated 
 there ; and no doubt an ill-feeling had sprung up, such as will 
 spring up, and such as exists very often where two classes of boys 
 are brought together under one roof and educated in the same 
 school. A bad feeling, I say, sprung up, and broke out from 
 time to time, as such feelings will, between the clerical and the 
 lay element in this College. 
 
 Now, the discipline at Oscott, as I understand, was exceed- 
 * See Dr. Northcote's evidence. 
 
 O
 
 18 
 
 ingly severe and strict. I do not know whether there was 
 flogging in the form with which I was familiar at an early 
 period of my life; "but corporal punishment was undoubtedly 
 practised there to a considerable extent; and the officers of the 
 institution being the President, Vice-President, a Prefect of 
 Studies, and a Prefect and a Sub-Prefect of Discipline, this per- 
 sonal part of the discipline of the College was in the hands of 
 the Prefect of Discipline, and he was the public executioner, so to 
 say, as I understand, with respect to the pupils at Oscott. There 
 were certain written rules as to how the discipline of the College 
 was to be carried on ; but at this College, if it was worth any 
 thing and I daresay it is worth a great deal of course written 
 rules were the least part of the governing authority in the place ; 
 and I presume that at Oscott, as at every great public school 
 with which I have any acquaintance, what really governs is not 
 the written rule, or the local act of parliament, or any thing of 
 that sort, but the great unascertained but perfectly well-known 
 conditions of the place, which every body who has ever been 
 at a public school even for a little while knows, and which 
 really guide his conduct. In such institutions boys are go- 
 verned by this unwritten code of laws, rather than by any thing 
 definite that a man could put his hands upon ; and just as there 
 are traditions at Eton, Winchester, the Charter-House, and other 
 great places of education, so no doubt there were traditions at 
 Oscott by which the boys were governed. 
 
 Mr. Stone, the second defendant on the record, it seems, 
 was a very young man. I believe that now he is only twenty- 
 three or twenty-four.* Mr. Stone at a very early age, having 
 been what they called a " Divine " at Oscott, was made Prefect 
 of Discipline. He was therefore put over the heads of all his 
 contemporaries, or boys who were very little younger than him- 
 self. He was placed in a position of very great responsibility 
 in the College ; and what was still more, he was allowed to ex- 
 ercise a direct and personal control over all the boys, whether 
 they were older or younger than himself. Of course we cannot 
 bring an action for a mistake in point of judgment ; but although 
 
 * He is in his twenty-sixth year ; and few boys, if any, in the College 
 would have been older than David Fitzgerald himself, who in March 1865 
 had entered on his nineteenth year.
 
 19 
 
 Dr. ISTorthcote is a most excellent and admirable person, at the 
 same time it seems to me that it was a mistake in judgment to 
 put so very young a man in the particular position of Prefect of 
 Discipline, who was to have the power of life and death, in 
 school language, over every other member in the school. That 
 was' the condition of Mr. Stone, and that was the condition of 
 Dr. Northcote. 
 
 Now young Mr. Fitzgerald was the eldest son of Mr. Justice 
 Fitzgerald. He was a young man gf very great ability and 
 very great promise. He had passed through the course at Oscott 
 with the highest possible distinction. He had never been sub- 
 jected, I believe, to any thing like corporal punishment at all, 
 and he had time after time carried away prizes upon the exami- 
 nations at Oscott; and his future was looked forward to both by 
 Mr. Justice Fitzgerald and by Dr. ISTorthcote, as I will show 
 from extracts from letters which I will read, with the greatest 
 possible hope and expectation. He had passed through the 
 College, and was to have left at the Christmas vacation in 
 1863. At that time, I think, Mr. Justice Fitzgerald had some 
 idea of sending him to Oxford ; but there were difficulties about 
 sending him to Oxford, and about sending him to other places. 
 Unfortunately it is not an easy matter for a Roman Catholic to 
 get educated at any place, except a place expressly belonging 
 to his own communion; and Mr. Justice Fitzgerald, although 
 he was anxious, as I have said, that his son should have the 
 advantage of the best English education, found that there were 
 difficulties about it; and so matters stood in September 1863. 
 Now on the 16th of September 1863 Dr. Northcote had 
 written to Mr. Justice Fitzgerald about his son, and about his 
 leaving, and what he wished him to do. He wrote to him in 
 these terms : 
 
 " MY DEAB, JUDGE, I have just read your letter of the 14th inst., as- 
 well as your first of last week ; and I have studied all the points referred 
 to in the Dublin Calendar, and sit down to write my impressions at once 
 whilst they are fresh. I was reading a few days ago the article in the 
 new Dublin Review on Catholic wants, &c., especially that portion of it 
 which treats of our need of university education." 
 Then he goes on and describes what his view of university 
 education is, and the great want of it among Roman Catholics. 
 He says :
 
 20 
 
 " If there were a number of good young Catholics under proper care 
 in Oxford, my love for the more ancient University and my own Alma 
 Mater would make me lean towards it in preference to Dublin. But 
 there is no such system of protection, and home would be far removed. 
 I take it for granted, then, that he will go to Trinity, as you have decided : 
 and the only question now is as to how and where he can be best pre- 
 pared for it. For mere cramming, it would be strange indeed if a private 
 tutor could not do more than the regular course of a college embracing 
 pupils aiming at many various ends ; and if this test is to be too rigidly 
 applied, I can scarcely hope you will approve of D.'s return to us after 
 Christmas. Yet on the whole, and for his real general good, I can con- 
 scientiously say that I believe he would do better to stay with us" 
 and so on. The rest of the letter is not material. 
 
 Then he writes to him also at Christmas, and says : 
 " I hope your three sons reached you in safety on "Wednesday, and 
 that they gave you the same satisfaction as they have given here during 
 the past half-year. You will see by the accompanying reports the high 
 average of marks obtained by John in all subjects, and by Gerald in all 
 but French. David, too, carried the report of his marks with bun, which 
 were eminently satisfactory. I shall be anxious to hear your decision as 
 to his destiny for the next four months. I very much wish to see him 
 return myself for many reasons, of which, however, I will only mention 
 one ; viz. that I am anxious to finish with him the reading of one of my 
 favourite books, Aristotle's Rhetoric, which I believe to be of very real 
 service to one destined for public speaking." 
 
 Dr. INorthcote has not had much experience of public speaking, 
 I should suppose; however Aristotle's Rhetoric shows that he 
 must have known something about Greek, Aristotle's Rhetoric 
 being a .pretty stiffish book. 
 " In my day it was very popular in Oxford," 
 
 I do not know what he means by " popular ; " in my time we 
 had to read it, but we certainly did not much like it. 
 
 " and I studied it well ; and when I wrote the other day to one of the 
 Oxford tutors on a subject connected with it, he said in his answer, ' I 
 am glad to see from your letter that Oscott is wiser than Oxford, and is 
 studying Aristotle's Rhetoric. Some of our best mental training was 
 founded on that and the Ethics ; but latterly it has gone out of fashion 
 here, and we are none the better for it.' Whether or not we are doing 
 the very best that could be done for David's making a display at Trinity 
 College, ' this deponent sayeth not ;' but I feel sure we are doing real 
 good for his education, and I only wish I could continue it for another 
 couple of years, instead of a few months only. It is a pleasure to teach 
 two such pupils as David and Redington, and to teach them together ;
 
 21 
 
 for although Eedington steadily keeps the lead, he cannot afford to 
 stumble without running a good chance of being overtaken. If David 
 goes, K. may grow careless. Hoping, then, to see the whole triumvirate 
 in good health and spirits, or at least in good working order, on Thurs- 
 day the 14th proximo, and wishing "you all the blessings of this festal 
 season, 
 
 " I remain, my dear Judge, 
 
 " Yours very sincerely, 
 
 " J. SPENCER NOETHCOTE." 
 
 It is quite plain that at that time (it is Christmas 1863) 
 young Mr. Fitzgerald was a hoy of great promise and ability, 
 and that Dr. Northcote was very fond of him, very reluctant to 
 let him go, and very anxious to have him back ; among other 
 tilings, for the purpose of his reading Aristotle's Rhetoric. 
 
 Now, in accordance with that wish so expressed by Dr. North- 
 cote, Mr. Fitzgerald did stay ; and he stayed after Christmas, and 
 up to July 1864. In July 1864 the regular Oscott course would 
 have been completed by him, and he would have been ready for 
 Dublin or for Oxford, if to Dublin or to Oxford Mr. Justice 
 Fitzgerald could have contrived to send him. On the 23d July 
 1864 Mr. Northcote wrote again to the Judge as to the state of 
 preparation, and as to what his son David was about at that 
 time, in these terms : 
 
 " MY DEAR JUDGE, I trust your sons reached you in safety on 
 Thursday last. I send the usual half-yearly Report of their places in 
 class and marks for examination, all of which are eminently satisfactory. 
 Indeed, the fact that they all return with double prizes almost supersedes 
 the necessity of a detailed report. David's translation of the speech of 
 Pericles in Thucydides would not have disgraced a first-class man's final 
 examination at Oxford, and his examination in Aristotle's Rhetoric was 
 scarcely inferior to it. I do not know how he may fare in his competi- 
 tive examination at Trinity, but I believe his faculties to have been well 
 trained, and to be in thoroughly good working order for any discipline 
 that may now be required of him. John's knowledge of history " 
 
 and so on. That is not material. He says, 
 
 " I was sorry not to have seen David before he went off, to have said 
 a parting word to him. But I hope when next he comes to England he 
 will pay us a visit. I shall expect to hear of him in afterlife at least, 
 even if we don't hear of his achieving success at College, which I look 
 for also." 
 
 Then there are some private letters, which I do not read. It 
 seems that young Mr. Fitzgerald was really anxious not to go to
 
 22 
 
 Dublin. Dublin, you know, is a Protestant University. Of 
 course in Ireland the sharp distinction between Eoman Catholics 
 and Protestants is much stronger than it is in almost any other 
 country in the world. I daresay that a Eoman Catholic student 
 in Dublin is at greater disadvantages than a Eoman Catholic 
 student in any other Protestant University. Mr. Fitzgerald was 
 extremely anxious not to go to Dublin, and his father yielded 
 to him. For reasons not now material to go into, he could not 
 manage to send bim to Oxford, and he determined to send him 
 to the London University. He had heard the highest account 
 of the discipline and the teaching there ; and so to London it 
 was agreed he should go ; and Mr. ISTorthcote wrote a letter on 
 the subject, in September 1864, in these terms : 
 
 " MY DEAB JUDGE, After Mr. Rowley's advice, I do not quite see 
 what you can do but conform to David's wishes, and send him through 
 the London University course, beginning with matriculation at Christ- 
 mas ; and for this I think he might just as well come here as any where 
 else." 
 
 He had left the regular course at Oscott at that time, but he 
 wished him to come back to prepare himself for the London 
 University : 
 
 " We shall not have a class preparing for it, and David must depend 
 in a very great measure upon himself for the preparation. But then he 
 is quite equal to this. I will undertake to get him all needful assistance 
 in each branch ; and of course we are well accustomed to this sort of 
 thing, so that you need not fear failure of any land by intrusting him 
 to us for the purpose. It will give you time to think about the future 
 consequent on this change, whether residence in London is advisable and 
 can be arranged here or elsewhere. I write in great haste. But if you 
 approve of the suggestion, David can come as soon as he pleases ; and, 
 indeed, should lose no time, as .one or two of the non-classical branches 
 of the examination would require regular going through to see that 
 there are no weak points in the harness. 
 
 " Tours very truly, 
 
 " J. SPENCEE NORTHCOTE." 
 Then there is a postscript : 
 
 " I have not told David that I recommend this ; only that we shall 
 be ready to receive him if you consent, and I have put before him the 
 disadvantages." 
 
 And there is a letter of the same date to young Mr. Fitzgerald 
 himself: 
 
 " MY DEAE DAVID, Twenty-five ' new boys' do not leave me much
 
 time for writing or thinking ; but I must write a few lines just to say, in 
 answer to yours received last night, that we shall be quite ready to 
 receive you, if your father determines on sending you to the London 
 University ; and we will undertake to get you through without fail for 
 the Christmas matriculation of course. But not having any class going 
 up at that tune, and having made our masters' arrangements for this 
 half-year, you would not have the ordinary advantages of a regular pre- 
 paration. I should be obliged to treat you as a sort of exceptional case, 
 trusting to your own getting up of most subjects, and only going over its 
 difficulties with you. It is for you to consider whether the advantages 
 of having distinct tutors for each branch (which I suppose you could 
 easily secure in Dublin), and the probable consequence of gaining a more 
 distinguished place among the ' honours,' counterbalance the pleasure 
 of a return to Alma Mater, who will be very glad to receive you. I have 
 no doubt that, with your industry, you will here secure for yourself a 
 higher place than" (some gentleman I need not name) " who stood No. 25, 
 you remember, among 200 matriculated. I think that if you had had 
 full time and advantages of preparation, you could have secured one of 
 the first half-dozen places, if not the first, and that you need not be 
 far below it now. But now you must think this matter over, weigh the 
 pros and cons, talk it over with your father, and come to a decision 
 speedily, because it would be a pity to lose any more tune for the special 
 preparation always desirable for every examination " 
 
 and so on. Then he says : 
 
 " As nobody expected you to return, and it is still so uncertain, I 
 have not interfered with ' so-and-so's' taking possession of the first Phi- 
 losopher's Koom, and some divine has claimed yours ; but we would find 
 you a decent room as an exceptional case altogether till Christmas ; 
 and by that time something definite will be settled about your future 
 residence." 
 
 That was written in September 1864. 
 
 Mr. Fitzgerald canio back inconsequence of these letters, and 
 he came back having already passed through the special Oscott 
 course. He came back, you see, as an exceptional guest alto- 
 gether ; and Mr. l^orthcote himself puts it both in the letter to 
 the Judge and to the young man, apart from the general system 
 of the college, as a sort of private pupil to receive instruction, 
 when Mr. ISTorthcote could give him time, in these more special 
 subjects for which there was no definite class ; and therefore he 
 was not there in the position of an ordinary pupil, but he was 
 there as a kind of private pupil, as an act of grace on the part 
 of Dr. Northcote, if you please, in order that he might have 
 the advantage of his abilities and his scholarship in training for
 
 24 
 
 his matriculation at the London University. Under those cir- 
 cumstances Mr. Fitzgerald goes back. He is fit to go to Oxford 
 or to Dublin. If he had gone there, he would have been in a 
 position in which young men are free from personal control, sub- 
 ject of course to that moral discipline which every well-regulated 
 college enforces on all its members ; but as to being struck, or as 
 to his being treated otherwise than as a young gentleman ought 
 to be treated, with perfect courtesy and respect by those above 
 him, that would have been out of the question in any college or 
 in any university that I ever heard of. That was the condition 
 under which he went back. The letter I have read was written 
 in September. There was a long vacation, I suppose, and the 
 Michaelmas Term would be from September to Christmas. That 
 was the state of things when he went back. 
 
 Now betAveen that time and Christmas nothing seems to have 
 happened to interfere with the thoroughly satisfactory course of 
 Mr. Fitzgerald's life at Oscott. He worked hard. He got such 
 assistance from Dr. Northcote as Dr. Northcote was able to give 
 him. They were on the best possible terms. There are many 
 letters which I do not trouble you by reading, because the tone 
 of them you will have gathered from those I have already read, 
 showing that there was the most friendly feeling on the part of 
 Dr. Northcote towards him ; and that feeling continued, and the 
 same pleasant relations existed between them down to Christmas 
 1864. At Christmas 1864 Mr. Fitzgerald went up for his matri- 
 culation at the London University. He was highly distinguished 
 there ; I think he was fourth or fifth in honours. I am told that 
 it is a very stiff examination. The result of his examination of 
 course highly gratified him, and highly gratified his father also, 
 who looked forward to his success and distinction. This was the 
 case at Christmas 1864. 
 
 There was still the period of time to be covered between the 
 matriculation and the examination for the Bachelor-of-Arts de- 
 gree, which would take place about nine months or a year after 
 the matriculation. Now, of course, you are aware that the 
 London University is a university, you may say, in idea only, 
 because there are no university buildings. It has no " local habi- 
 tation," although it has " a name ;" and as I remember hearing 
 (I protest that I do not know this myself, but only state ex rela-
 
 2 
 
 25 
 
 tione), the only place in which you can find the London Univer- 
 sity is a place where it is painted up in Somerset House on the 
 third floor at Burlington House, I understand but it used to 
 be at Somerset House. It has a Board of Examiners, and it exists 
 for the purpose of conducting, as I believe, an exceedingly stiff 
 system of classical, mathematical, and scientific studies. There 
 are large colleges all over the country and of very different sorts ; 
 some of them Protestant, some Roman Catholic, and some Dissent- 
 ing all being affiliated to this London University, which only 
 existing in idea has a Board of Examiners appointed, who exa- 
 mine from time to time students who come up to London from 
 all parts of the kingdom. I believe that King's College, London, 
 is one ; University College is another ; Ushaw another ; and 
 Oscott another. Besides which, there are a great many Roman 
 Catholic and Dissenting Colleges all affiliated to this London Uni- 
 versity, and forming part of it ; and the students who come up 
 from time to time to this Board in London to be examined be- 
 long in a certain idea to this University ; and when they have 
 been examined, and when they have passed to the satisfaction of 
 the Examiners, they have a right to put those emblematical 
 letters " B.A." after their names. And when the London Uni- 
 versity gets, as in the fulness of time no doubt it will get, a 
 right to return a Member to Parliament, they will be entitled 
 to a vote. It is a system, as I understand, of examinations for 
 the purpose of giving to persons who do not belong to the 
 Church of England, and to many who do, the advantage of 
 examinations which they cannot get or do not wish to get at 
 Oxford, Cambridge, or Dublin, or at other universities in the 
 country. As I have told you, young Mr. Fitzgerald was very 
 much distinguished ; and the question was, what was to become 
 of him between Christmas and the time when he was to go up 
 for his Bachelor-of-Arts degree. Dr. Northcote suggested that 
 he had better return to Oscott and continue the course of study 
 which had been found so successful before. Young Mr. Fitz- 
 gerald and the Judge were both well inclined that this should 
 be done, and that Mr. Fitzgerald should go back to a place where 
 he had been so happy and so distinguished, where ho knew the 
 Principal, where he had made friends, and, in short, where many 
 of those associations of pleasure were around him which were
 
 ' 
 26 
 
 excessively gratifying to him, and that did not in the least inter- 
 fere with his studies. "Well, he went back to Oscott soon after 
 Christmas, and he was to continue there till July 1865. 
 
 Now I think I have told you generally the nature of Oscott : 
 that it had been a priestly seminary ; that it was found necessary 
 to turn it into a large lay school, and out of the funds produced 
 by lay pupils the priests' education was carried on. Out of the 
 priests many of the ushers and persons who conducted the disci- 
 pline of the school were from time to time taken. There had been, 
 as I have told you, this feeling, which does and will break out 
 from time to time between different classes of persons when they 
 are associated under one head together ; and I really do not know 
 whether it is a mystical word of Fenian origin or what it is, but 
 it seems that the priests, or young people who were to become 
 priests, went by a name which is very emphatic, though I do not 
 know that it is very euphonious. The clerical students went by 
 the name of " Bunkers." At many places there are names given 
 to different classes of persons which it is not very wise to give ; 
 but boys have been boys for a great many thousands of years, 
 and if the world lasts they will remain boys till the end of time. 
 The lay boys called these clerical gentlemen " Bunkers." I sup- 
 pose if a man was a Bunker he did not like to be called so ; but 
 they were so denominated ; and one of these Bunkers was Mr. 
 Stone. When Mr. Fitzgerald came back he found Mr. Stone 
 promoted from the rank of Bunkers* into the chair of the Prefect 
 of Discipline. A gentleman named Martin had been prefect 
 before ; and Mr. Martin and Mr. Fitzgerald had always carried 
 on all necessary correspondence on the best possible terms and 
 with great felicity on both sides. Whether Mr. Stone thought it 
 necessary or desirable, because he was young, that he should hold 
 the reins tight, I do not know. There may have been that natural 
 mesmeric antipathy which we sometimes see between people, like 
 the man who did not like Dr. Fell, and could give no particular 
 reason for it. Whether that was so or not, I cannot tell ; but cer- 
 tainly, as soon as Mr. Stone and Mr. Fitzgerald came into the 
 relation of Prefect of Discipline and special private pupil, they did 
 
 * It is only the Church students in " the Bounds" who are called 
 Bunkers. Mr. Stone had left the Bounds more than five years before 
 this time, and had been a priest for nearly a year.
 
 27 
 
 not (to use a vulgar but colloquial expression) exactly hit it off. 
 One may have been possibly a little too lofty, and the other may 
 have been a little too severe ; but certain it is that Mr. Stone 
 and Mr. Fitzgerald did not at all agree, and it was not a happy 
 relation that existed between them. Mr. Stone was Prefect of 
 Discipline ; and Dr. Northcote being President, and having, as 
 president, of course a thousand things to attend to, was obliged 
 to see things very much through the eyes of Mr. Stone. And I 
 do not complain of that. Dr. Northcote, naturally enough, was 
 inclined to take the view which Mr. Stone took and laid before 
 him as president. I suppose it is always right for a commander- 
 in-chief to stand by his sub if he can ; and it was quite natural 
 that Dr. Northcote should be inclined to take the report of a 
 man in Mr. Stone's position. From the first moment of Mr. 
 Fitzgerald coming back Mr. Stone seemed to delight in putting 
 the very worst possible construction upon his conduct ; and it 
 appears that very early in the matter, as soon almost as he got 
 back, he used to tell him to take care of himself ; that his posi- 
 tion in the house was very fickle, and that a very little on his 
 (Mr. Stone's) part would send him away ; and that Dr. North- 
 cote had told him that he was there for his own purposes, and 
 not for the College's, and that a very slight provocation would 
 cause him to be sent away from the College. That was not 
 likely to be very acceptable to a gentleman so highly distin- 
 guished as Mr. Fitzgerald was, and the son of a Fitzgerald who 
 had within him the spirit of a gentleman, and who would there- 
 fore not like to have his coat perpetually brushed the wrong way 
 that being certainly not a very pleasant process for any body, 
 and which was not pleasant to this young gentleman of seventeen 
 or eighteen years of age. I daresay he may have resented it, 
 and may have shown Mr. Stone that he did not like it ; and he 
 may even have told him so, for aught I know ; but the result 
 was that this distinguished young man, having been allowed to 
 walk by himself, and to take his diversions abroad whenever he 
 thought fit, under proper restrictions, of course, was literally 
 reduced to the ranks. Of course he did not like that ; but I 
 agree that that is not actionable. 
 
 There were letters written from time to time by Dr. JSTorth- 
 cote, all of them being in the kindest possible tone. No hint
 
 28 
 
 was given to the Judge that any thing was going wrong. The 
 boy naturally did not like to worry his father about the quarrels 
 that took place between himself and this Mr. Stone. The Judge 
 was in entire ignorance that there was any thing going on other 
 than had always gone on, and he believed that the relations be- 
 tween his son and the authorities in the College were of the most 
 pleasant kind possible. His son was working hard, and was 
 likely to be extremely distinguished, and was patronised and 
 petted by every body. I think the last letter was a letter written 
 in January 1865 the expressions in that letter being of the 
 kindest possible description. There was not a word to suggest 
 that there was any change of feeling ; and Mr. Justice Fitzgerald 
 went his circuit with the full belief that he should soon see his 
 son back with flying colours. 
 
 He was excessively surprised one morning when he came to 
 his house in Dublin to find, without the smallest warning or 
 any thing having happened to prepare his mind for it, his son at 
 his breakfast-table ; and on inquiring how he came so suddenly 
 to appear in Dublin without warning, he found that he had been 
 expelled from Oscott under circumstances of the most cruel igno- 
 miny ; after treatment to which criminals are subjected, but to 
 which persons short of criminals are hardly ever subjected in 
 this country that he had been locked up in his room for hours; 
 that his meals had been handed to him by the servant through 
 the door ; that no opportunity had been given to him by Dr. 
 Northcote of defending himself ; and that he had been put into 
 a fly and sent off by train to Birmingham, with directions to go 
 at once to his father, without the slightest warning or notice to 
 his father of any kind. Mr. Justice Fitzgerald naturally makes 
 inquiries, and learns what the cause has been. It appears that 
 there were these " Bunkers " and it really is a sad thing that 
 such serious consequences should have followed from such an 
 absurd vagary it seems that there were these " Bunkers," and 
 that some boys in the school did not like them, and they got 
 up, or thought that they were getting up, an A. B. C., which 
 represented "Anti-Bunker Confederation" or "Club" I do not 
 know that the C. ever got finally developed into a " Club." It 
 was, however, either "Club" or "Confederation." It was some- 
 thing beginning with a C. My friend suggests that it was a
 
 29 
 
 " Conspiracy." It was something very dreadful and revolu- 
 tionary, no doubt ; and it appears that they passed resolutions. 
 There was a Mr. Moody, who was one of the tutors of the place, 
 a man of my own age. I remember him perfectly well. He was 
 at Eton and Oxford, and is now carrying on tuition at Oscott. 
 It seems that he had said something which they approved ; and 
 it appears from a note that they had a meeting, and that " Go- 
 vernor Moody" was elected a member of the "A. B. C., in con- 
 sequence of his magnanimous sentiments." This is the sort of 
 way in which the Anti-Bunker Confederation or Club carried on 
 its proceedings j and Governor Moody, one of the Jesuit fathers 
 of the place, was elected at once into the Club because he had 
 said something which pleased them, and that was the way in 
 which they testified their satisfaction. Mr. Stone had risen 
 from the ranks of a Bunker into the throne of the Prefect of 
 Discipline. He felt excessively annoyed at this ; and it appears, 
 according to Mr. Fitzgerald's account, that one morning he found 
 Mr. Stone in his room ; there was a pocket-book upon the table 
 and some letters, and he found Mr. Stone at the table. He will 
 not be able to say that Mr. Stone was reading his pocket-book ; 
 but it is obvious and Mr. Stone, I am sure, will not deny it 
 that he did read his pocket-book, and that he read his letters.* 
 Mr. Stone gave him a rough sort of shake, and said, " What are 
 you about ? You must come to the President." Mr. Fitzgerald 
 got up and put his pocket-book, with all the explosive papers 
 belonging to the Anti-Bunker Confederation, into his pocket. 
 He goes down and sees Mr. Stone, who uses very strong lan- 
 guage, and finally demands this pocket-book. There were other 
 names in the pocket-book besides his own. Mr. Fitzgerald did 
 not like delivering it up, and he refused to do so ; then Mr. 
 Stone and he came to a struggle. Twenty-four is stronger than 
 seventeen, cceteris paribus, and twenty-four succeeded in getting 
 the book out of young Mr. Fitzgerald's pocket. Mr. Fitzgerald 
 was considerably roughly handled. He was knocked about a 
 good deal, and he was shut up, as I understand, in Mr. Stone's 
 room while he went to the President. Shortly afterwards Dr. 
 Northcote sent for him. But Dr. Northcote would not hear 
 him. He told him that from information which he had derived 
 * See Mr. Stone's evidence.
 
 30 
 
 from his letters* (it appeared that his letters had been read, 
 but that Dr. JSTorthcote would have read them I do not believe, 
 and the contents had been communicated to him) he told him 
 that it was necessary he should instantly go away and leave the 
 College. 
 
 Mr. Fitzgerald in vain attempted to explain matters, and asked 
 to be heard ; no hearing was allowed him. He had committed 
 this gross offence against the laws and discipline of the College. 
 He had joined this terrible Anti-Bunker Confederation, and he 
 had offended the clerical element of the College too deeply to 
 -allow him to remain at all, and he was told that he must go at 
 once. He was sent to his room, and there he was locked up. 
 He asked whether he could see his brothers before he went ; and 
 I believe that his brothers were allowed to see him, but not out 
 of the presence of Mr. Stone, who, I believe, was present the 
 whole time that the two young Mr. Fitzgeralds were there. He 
 was locked up and kept in his room for two or three hours. His 
 dinner, or whatever meal he had, was sent up, as it would be to 
 a man confined in prison ; and there he was left to eat his dinner 
 by himself. Then Mr. Stone comes and either locks or bolts the 
 door. Mr. Stone makes him pack up his portmanteau and bag and 
 so forth, and hurries him away, telling him that any thing he 
 leaves behind will be sent after him. He takes hold of him, takes 
 him downstairs with his luggage, shows him into the carriage, 
 and sends him off, saying, " Get along with you out of Oscott." 
 
 And then Dr. Northcote addresses the school very well, I 
 daresay, in point of language, but using language exceedingly 
 vituperating the character of Mr. Fitzgerald. The pocket-book 
 was kept and all the papers and letters ;t and with all this utter 
 ignominy young Mr. Fitzgerald was expelled from the school. 
 
 The object of this action, as I told you frankly in the begin- 
 ning, and as I do not seek to disguise now, is not to put money 
 into Mr. Fitzgerald's pocket Mr. Fitzgerald not for one moment 
 saying that as a matter of money-compensation what has hap- 
 pened is to be considered. 
 
 The question is Has there, or has there not, been conduct 
 
 * See Mr. Stone's evidence. 
 
 f No letters were kept, and only those papers which concerned the 
 A. B.C.
 
 pursued towards bim which justifies Mr. Justice Fitzgerald in 
 bringing, this action ? Has there, or has there not, been a legal 
 cause of action ? and if there has, is he not perfectly justified in 
 bringing this case into court, and in challenging Dr. Northcote 
 and Mr. Stone, if they can meet that challenge, to explain under 
 what circumstances they dared to treat a gentleman in the posi- 
 tion of young Mr. Fitzgerald as they did treat him, and what 
 their defence is to be to the action which he brings ? 
 
 I admit, of course, as every lawyer and as every man of com- 
 mon sense must admit, that it is uncommonly difficult to define 
 what are the precise limits of authority which the head of every 
 educational institution ought to have over the property and the 
 persons of pupils who are domiciled therein. I suppose that in 
 the case of an indecent book, or I suppose that, in a Christian 
 place, the case of an openly infidel book, would be a case in 
 which the laws of property would disappear, and no pupil, of 
 whatever age, would have any right to say, " I have a property 
 in that." The master would have a perfect right to say, "I 
 insist on its being given up ; and if you choose to defy me, you 
 must get out of the place, for you must not stop here with your 
 abominable contaminating books, doing mischief to the rest of 
 the pupils." I admit that there are cases in which it is essential 
 for the general benefit of an institution of this sort that the 
 rights of property and the legal strictness of things should not 
 be viewed with too critical an eye, and that a man who has the 
 general benefit of the place in his mind and heart must act for 
 the best ; and no judge and no jury would let the consequences 
 fall heavily upon him. 
 
 But the question is, whether there are not reasonable limits 
 to that, and whether the limits which are prescribed by the law 
 to the authority of the head of an educational place are not 
 that he must do nothing inconsistent with the liberty and with 
 the property of those who are intrusted to his care, which is not 
 reasonably necessary for the well-being of the institution over 
 which he presides ? and whether this or that particular act is 
 an act reasonably necessary for the well-being of an educational 
 institution is a question of fact which a jury must decide. And 
 the question in this case, as I humbly conceive, is whether those 
 reasonable limits have or have not been exceeded ?
 
 Lord Cliiet-Justice Cockburn : There is this to "be said, that 
 there is an obvious distinction between the case of a school- 
 boy and a young man finishing his education in the position of 
 a private pupil. The one may be reasonably subjected to per- 
 sonal restraint or punishment to a much greater degree than 
 would be proper in the case of the other. 
 
 Mr. Coleridge: Certainly. I am much obliged to your 
 Lordship. I was going to point out that there are obvious 
 limits. Let us, for the sake of humanity, hope that the story is 
 not founded in truth ; but let me take such a case as the school 
 described by Mr. Dickens in Nicholas NicTdeby. "Who can 
 doubt that if the atrocious cruelties which are described in that 
 novel had been practised in reality, an action would have lain 
 at the suit of those pupils against Mr. Squeers ? It is quito 
 plain that an action would lie, because the cruelty which he 
 practised was not reasonably necessary in the case of the boys at 
 Dotheboys' HalL And certainly if I had been counsel for the 
 father of any one of the boys, I should have addressed the jury 
 with the greatest possible confidence. 
 
 In all cases there are limits which the law will not allow to 
 be exceeded, and those limits are what*s reasonably necessary 
 for the proper education of the children. 
 
 Then, again, my Lord has suggested another qualification ; 
 that what is reasonably necessary for a child of six or seven 
 years of age is not reasonably necessary in the case of a young 
 man of eighteen or nineteen. You may treat one in a very dif- 
 ferent way from the other. This young gentleman was a matri- 
 culated student in the London University. He was at Oscott, 
 that being one of the affiliated colleges of the London Univer- 
 sity; and it is absurd, as I conceive, to say that what might 
 have been perfectly legitimate treatment, such as no father 
 would complain of, if he had been a boy of nine or ten, when 
 he first went to Oscott, is treatment to which he ought properly 
 to be subjected when he comes to be seventeen, eighteen, or 
 nineteen years of age, and when he is entering on his career of 
 usefulness. 
 
 I need hardly point out to you that the consequences of his 
 expulsion must in this case be excessively serious to young Mr. 
 Fitzgerald. Just make the case your own, and consider what
 
 would necessarily be the consequence of a stigma such as this 
 cast upon a young man if left utterly unexplained. Here is a 
 lad of high promise, and of admirable character up to this time, 
 who suddenly finds himself collared, locked up in his room, 
 treated like a criminal, his things taken from him, and himself 
 ignominiously expelled from the college at a few hours' notice, 
 as a person utterly unfit for the society of those with whom he 
 has been associated, because it is considered that he is likely 
 to contaminate the rest of the inmates of the college. Not one 
 single complaint was made to the Judge. Not a syllable was 
 written to him to say, " Your son David is not going on very 
 well ; you had better come and see him, and take him away ;" 
 but instantly, with a word and a blow, the boy is ignominiously 
 expelled, and all for a few youthful follies such as all young men 
 will commit, and which all the wisest and best teachers of young 
 men perpetually overlook. Can you doubt that a few kindly 
 and generous words spoken by Dr. Northcote to Mr. Fitzgerald, 
 pointing out to Mm the probable mischief that would result 
 from the course he was taking pointing out the want of con- 
 sideration that he showed for the feelings of others, and (if he 
 will excuse me for saying so) his want of good breeding in in- 
 sisting on the difference of rank between himself and others; if 
 that had been pointed out by a generous man to an ingenuous 
 youth, who can doubt what the result would have been 1 The 
 fact would appear to be that this youth had set himself spor- 
 tively against the clerical element in the college, and the clerical 
 body had resolved to ruin him. It is a sad instance of that sort 
 of spirit of clerical exclusiveness and domination which did mis- 
 chief enough in the Church itself 400 years ago, and which, 
 whenever it reappears in Protestant or Catholic countries, re- 
 appears to the breaking up of the comfort of families, and to the 
 threatening of the fabric of society itself. And although I do 
 hot for a moment say that these two gentlemen, the defen- 
 dants, may not be most excellent people as divines, and although 
 I daresay they are most amiable and agreeable persons as scho- 
 lars, it is manifest that they do not comprehend the character of 
 boys, and that they do not comprehend how to deal with them 
 as gentlemen should be dealt with.
 
 34 
 
 EVIDENCE FOR THE PLAINTIFF. 
 
 DAVID FITZGERALD sworn. Examined by MB. BKOWN. 
 
 Q. Are you the son of Mr. Justice Fitzgerald ? 
 
 A. I am. 
 
 Q. His eldest son, I believe 1 
 
 A. Yes. 
 
 d He is one of the Judges of the Court of Queen's Bench. 
 In Ireland ? 
 
 A. Yes. 
 
 d And I believe he was Attorney-General for Ireland, under 
 Lord Palmerston 1 
 
 A. Yes. 
 
 Qr What is your age ] 
 
 A. I was nineteen on the 14th of January last. ./^ 
 
 Q. I believe you went to Oscott College when you were 
 eleven years of age? V {% 5^) 
 
 A. Yes. 
 
 Q. That college, I believe, is for the education of Roman. 
 Catholic boys ? 
 
 A. It is. 
 
 Q, Do you know under whose authority the college is placed 1 
 
 A. It is placed under the authority of the President, who, I 
 believe, is appointed by four Roman Catholic Bishops. 
 
 Q. I believe there is a Vice-President 1 
 
 A. There is. 
 
 d And two Prefects 1 
 
 A. Yes ; there is a Prefect of Studies, and a Prefect of Dis- 
 cipline. 
 
 Q. Does the President appoint the Vice-President and the 
 Prefects? 
 
 A. He does. 
 
 Q. When you entered the college I believe Dr. Weedall 
 was President ? 
 
 A. He was. 
 
 Q. And on his death, in 1859, who succeeded him?
 
 35 
 
 A. Dr. Morgan. 
 
 Q. And when did Dr. Northcote become President ? 
 A. In July 1860. 
 
 Q. When you joined the college did you make any inquiry 
 of Dr. Weedall about opening letters ? 
 A. Yes. 
 Q. What was the inquiry that you made of him ? 
 
 Mr. Karslake : You cannot ask that. 
 
 Mr. Brown : Dr. Weedall was President at that time. 
 
 Mr. Kar slake : I could not stop my friend in his opening of 
 the case, but this is an action which is brought for imprisonment 
 and for the taking of a book. My friend has gone very far 
 afield. Of course, I could not stop him. Unless what Dr. 
 Weedall said was communicated to Dr. Northcote afterwards, 
 what was said by him years ago cannot affect the defendants in 
 this case. 
 
 Mr. Brown : I will not persist in my right to put the ques- 
 tion, as my friend objects to it. 
 
 Q. After Dr. Northcote became President was a change 
 made in the discipline of the college ? 
 
 A. The discipline became somewhat stricter a new system 
 of impositions was introduced. 
 
 Q. I believe that corporal punishment was always practised 
 in the college. 
 
 A. Always. 
 
 Q. But on the younger boys only, I believe. 
 
 A. Yes ; until they were about sixteen or seventeen. 
 
 Lord Chief-Justice Coeklmrn : Boys as old as that ? 
 
 A. Yes, sometimes. 
 
 Mr. Brown : I believe that you never incurred that kind of 
 chastisement 1 
 
 A. Never. 
 
 Q. About how many students were there in the college ? 
 
 A. When I first entered, there were 140; they afterwards 
 declined, and the number was about 120. 
 
 Q. Were there two classes of students ? 
 
 A. There were. 
 
 Q. Clerical students? 
 
 A. Clerical students and lay students.
 
 36 
 
 Q. About how many clerical students were there ? 
 
 A. There were about twelve. 
 
 Q. Do you know by whom the clerical students were sent 
 there ? 
 
 A. They were sent there by certain Catholic Bishops. 
 
 Q. Did the clerical students after they had finished their 
 studies become what are called Divines ? 
 
 A. They did. 
 
 Q. And were they then placed as masters over some of the 
 lay classes. 
 
 A. They were. 
 
 Q. When the clerical students became Divines did they 
 wear a distinguishing dress 1 
 
 A. They wore a cassock and a biretta. 
 
 Lord Chief- Justice Cocltburn : What is a biretta? ! 
 
 A. A sort of cap ; and they also wore a Eoman collar. 
 
 Mr. Brown : Did they take their meals apart from the other 
 boys 1 
 
 A. They did. 
 
 Q. And had a separate room, I believe ? 
 
 A. Yes, a separate room. 
 
 Q. Were the lay pupils obliged to address them in any 
 particular way ? 
 
 A. They were obliged to address them as Mr. So-and-So, or 
 Sir* 
 
 Q. Was there any distinction between them and the lay 
 pupils ? 
 
 A. They were masters over all the junior pupils.f 
 
 Lord Chief-Justice Cockburn : How many were there 1 
 
 A. About twenty Divines. 
 
 Mr. Brown : You w r ere at the college, I think, six or seven 
 years altogether? 
 
 . A. I was ; seven years altogether. 
 
 Q. When clerical pupils joined the college, did you gene- 
 rally find them as well educated as the others ? 
 
 A. !N"o, I think not. 
 
 Q. Was there any impression prevailing, or was there any 
 
 * i. p. if they held any post of authority. 
 f i. e. ome of them were so employed.
 
 37 
 
 conversation among the boys, as to the clerical students acting 
 as spies over the others 1 
 
 Mr. Karslake : I must object to that. 
 
 Mr. Brown : It is really connected with this subject. 
 
 Lord Chief-Justice Cockburn : At all events, we have not 
 come to that part of the case yet. 
 
 M^r. Broivn : Were the lay or clerical students separated in 
 playing or not ? 
 
 A. No ; they took their play together. 
 
 Lord Chief-Justice CocJclurn: Do you mean the clerical 
 students or the Divines 1 
 
 A. The clerical students before they became Divines. 
 
 Mr. Brown : I suppose, when they became Divines they did 
 not play with the others 1 
 
 A . They did not, except occasionally ; some of them would 
 sometimes join in the games. 
 
 Q. About what age used they to become Divines ? 
 
 A. From twenty to twenty-two, or sometimes younger. 
 
 Q. When you joined the college, did you find that the cleri- 
 cal students went by any familiar name ? 
 
 A. Yes; they were called "Bunkers." 
 
 Q. Did you invent that name ? 
 
 A. No. 
 
 <2. You found it in use when you got there 1 
 
 A. I found it in use. 
 
 Q. Do you know what it meant 1 
 
 A. No ; I had no idea what it meant. 
 
 Q. I suppose that in point of fact it had no meaning. 
 
 Mr. Karslake : Do not assume that ; you will find that it 
 had a meaning. 
 
 Mr. Brown : Perhaps my friend knows what the meaning 
 was. If so, he knows more than I do. 
 
 Q. During the whole time you were at the college was 
 there really any annoyance practised by the lay students on the 
 clerical students 1 
 
 A. Never. 
 
 Q. I believe that among the lay students there were several 
 classes. 
 
 A. There were nine or ten.
 
 38 
 
 d Was the highest class^that which was called the " Philo- 
 sophers" ? 
 
 A. Yes, that was the highest. 
 
 Q. When did you enter that class ? 
 
 A. At Midsummer 1863. 
 
 Q. You became what is called a Philosopher, I believe ? 
 
 A. Yes. .-'- 
 
 Q. Had the Philosophers some peculiar privileges over the 
 others ? 
 
 A. They had great privileges. 
 
 Q. Among other privileges, had they liberty if they pleased 
 to go outside the college bounds and walk about the neighbour- 
 hood in parties of about three 1 
 
 A. They had the privilege of walking about the neighbour- 
 hood in parties of not less than three. 
 
 Q Unaccompanied by any master ] 
 
 A. Yes. 
 
 Q. I must ask you whether one of the privileges of the 
 Philosophers was going to a public-house for a little beer, if 
 they wanted it ? 
 
 A . It was not a privilege ; but they used to do so. 
 
 Q, Was that in the time when Mr. Martin was Prefect ? 
 
 A. Yes. 
 
 Q. He was Prefect, I think, down to the end of 18641 
 
 A. Till January 1865. 
 
 Q,. I suppose the Philosophers could not get on without a 
 little beer sometimes; was that sol 
 
 A. Yes. 
 
 Q. Did you remain in the Philosophers' class till Mid- 
 summer 1864? 
 
 A. I did. 
 
 Q. Did you then finish the course of education at the 
 coUege ? 
 
 A. I finished then. 
 
 Q. During the tune you were there, from 1859 to 1864, had 
 you taken several prizes ? 
 
 A. I had taken several. 
 
 Q. I believe as many as eight or nine 1 
 
 A. Yes.
 
 Q. For proficiency in classics and mathematics, and in the 
 Philosophers' examination ? 
 
 A. Yes. 
 
 Q. At Midsummer 1864 did you leave the college with the 
 intention of entering Trinity College, Dublin ? 
 
 A. I did. 
 
 Q. I believe that your father changed his mind ahout that, 
 and decided on sending you to the London University ? 
 
 A. He did. 
 
 Q. And in consequence of that did you return to Oscott 
 ahout September 1864? 
 
 A. I did. 
 
 Mr. Brown : I will now, my Lord, put in two letters. The 
 first is a letter dated the 10th of September 1864, from Dr. 
 Northcote to the witness, and the other is a letter of the same 
 date from Dr. oSTorthcote to the father. 
 
 [The letters are put in.] 
 
 Lord Clii&f-JusticQ Cockburn: Do you wish them to be 
 read? 
 
 Mr. Brown: I think not, my Lord. They were read by 
 my friend in his opening. 
 
 Mr. KarslaJce : Perhaps they had better be read, because 
 my friend and I differ entirely as to his having gone there in 
 the capacity merely of a private pupil. 
 
 Tlie Associate: The first letter is dated 10th September 
 1864 * the other letter is of the same date. 
 
 Mr. Brown : I daresay that is all my friend wishes to be 
 read. 
 
 Mr. Karsldke : Yes. 
 
 Mr. Brown : There is one letter that my friend Mr. Coleridge' 
 read of the 16th ; we will put that letter in, but it is unneces- 
 sary that it should be read again. 
 
 [The letter -is put in.] 
 
 Q. On your return in September 1864, were you attached to- 
 any class at all? 
 
 A. I was not. 
 
 Q. As regards your studies, were you left pretty much to 
 yourself? 
 
 * See p. 22.
 
 40 
 
 A. I was. 
 
 Q. Dr. Northcote, I believe, personally superintended your 
 studies 1 
 
 A. He superintended my classical studies. 
 
 Q. Had you a room to yourself? 
 
 A. Yes. 
 
 Q. Your studies, I believe, differed from those of the other 
 boys in the highest class 1 
 
 A. They did. 
 
 Q. I believe that Mr. Martin was Prefect at that time 1 
 
 A. He was. 
 
 Q. Were you allowed to take your books and go out of 
 bounds and in the plantations, and so on 1 
 
 A. I was allowed to study in the grounds, but not in the 
 plantations ; in the play-ground. 
 
 Mr. Karslalte : In the bounds ? 
 
 A. Yes. 
 
 Mr. Brown: "Were your studies there and your privileges 
 different from those of any other boys 1 
 
 A. They were. 
 
 Q. I believe that you remained at Oscott until the 1st of 
 January 1865. 
 
 A. I did. 
 
 Q. And then you left for the purpose of matriculating at 
 the London University? 
 
 A. I went to Ireland for a few days first, and then I went to 
 London to matriculate. 
 
 Q. Did you matriculate at the London University about the 
 14th. of January 1865 ? 
 
 A. I finished my matriculation on that day. 
 
 Q. I believe that you obtained the twelfth place out of 200 
 candidates ? 
 
 A. I did. 
 
 Q. And several of those candidates, I believe, were above 
 twenty-one years of age ? 
 
 A. Five of them were. 
 
 Q. After you had matriculated at the London University, 
 did you, about the last day of January 1865, return to Oscott ? 
 
 A. I did.
 
 41 
 
 Q. To prepare for your first Bachelor-of-Arts examination ? 
 
 A. Yes. 
 
 Q. You have, I believe, since been up, and have obtained 
 your Bachelor-of-Arts degree, with honours ? 
 
 A. I have. 
 
 Mr. Brown: We will put in a letter from Dr. Northcote, 
 dated 12th of December, /g^ 
 
 The Associate : It is a letter from the Defendant to the 
 Judge : 
 
 " MY DEAR JUDGE, I think you do wisely in leaving David here for 
 the Christmas vacation certainty, and we will take care that he does not 
 lose his time. You are of course aware that we must send his name 
 with baptismal certificate to the Registrar of the University two or 
 three weeks before the examination ; so that it would be well if you 
 would kindly send it me at once, that it may not be overlooked or 
 delayed too long. With regard to the future, I have just spent ah hour 
 on the study of the Calendar you sent me. and my impression is strong 
 that David will get more direct assistance for his first B.A. examina- 
 tion in July here than he would in University College. If I understand 
 the programme of their studies aright, he will read there but a very small 
 portion of the subject-matter for the Honours' Examination in July 
 only the Histories of Tacitus. We shall read here Terence and Plautus, 
 Lucretius and Cicero, as well as Tacitus ; and I think it is essential for 
 his object that he should read these here, or with some private tutor. In 
 other words, having a class of three candidates for honours, we shall do 
 our best to prepare a class directly for the examination. I do not pro- 
 fess to be A 1* in any thing ; but I think this direct preparation under 
 Professors B. will be more likely to attain the end aimed at than indirect 
 preparation under Professors A. ; to say nothing of what I should also 
 eet a high value on, the continuance for six months longer in statti 
 pnpillari and under quiet Catholic discipline. In London University the 
 discipline depends wholly on the individual : I am told a student may 
 run into all kinds of excess. After the July examination I should re- 
 commend a change. Then he will have more than a year before him 
 preparatory to the next examination ; and this year I think he would 
 do well to spend under one of the University Professors. 
 " I remain, my dear Judge, 
 
 t " Yours very sincerely, 
 
 " J. S. NOBTHCOTE." 
 
 Mr. Brown (to the Witness) : On your return in January 
 
 * This was in answer to Judge Fitzgerald's letter to Dr. Northcote, 
 in which he had spoken of the Professor of Mathematics at University 
 College, London, as standing A 1.
 
 42 
 
 1865, did you find that Mr. Stone had become Prefect of 
 Discipline 1 
 
 A. I did. 
 
 Q. Had he been one of the clerical students before ? 
 
 A. He had. 
 
 Q. He had been at the college some years, I suppose ? 
 
 A. He had. 
 
 Lord Chief-Justice Cockburn : When did you return ? 
 
 A. On the last day of January 1865. 
 
 Mr. Brown : He had been a clerical student, and then he- 
 became a Divine? 
 
 A. He did. 
 
 Q. Was he three or four years older than you 1 
 
 A. He was more. - v 
 
 Q. Had he taught the class of which you were a member 
 some of the minor branches ? 
 
 A. He had. 
 
 Q. Had you, down to January 1865, had any quarrel or any 
 unpleasantness with him ? 
 
 A. Never. 
 
 Q, Within a day or two after your arrival, had you a few 
 words with Mr. Stone about the key of your chamber ? 
 
 A. The night of my arrival I found my door locked when I 
 went. 
 
 Lord Of.- Justice Cockburn : That was on going to your room ? 
 
 A. Yes. 
 
 Mr. Brown : And you got the key from Mr. Stone, I think ? 
 
 A. I did. 
 
 Q. A day or two afterwards, did Mr. Stone say something to 
 you about your having taken an impression in wax of the key ? 
 
 A. He did. 
 
 Q. Just explain that, if you please. He made some com- 
 plaint to you about your having made an impression of the key 
 in wax? 
 
 A. Yes. 
 
 Q. What explanation did you give him. ? 
 
 A. I told him how it had occurred ; that I was in the 
 Philosophers' room, after dinner, on the day after my arrival. 
 
 Q. You were with the Philosophers, I suppose ?
 
 43 
 
 A. With the Philosophers. One of the Philosophers asked 
 me for a knife ; and I, in taking the knife out of my pocket, took 
 the key with it. The key was then looked at by some of the 
 Philosophers. I took the key out of my pocket and looked at 
 the Philosophers, and said, "By Jove, I must give this key Lack 
 to Stone." The key was then looked at by some of the Philoso- 
 phers, and some conversation took place among them about the 
 desirability of having another. This key, it was supposed by 
 them, would open all the boys' rooms in the passage in which 
 my room was situated. 
 
 Lord Chief-Justice Cockburn: Something was said about 
 the desirability of having another ? 
 
 A. One of the Philosophers, named * * * proposed that 
 it should be taken to the blacksmith at Erdington, and that 
 another one should be made like it. I said, " You do not sup- 
 pose that a blacksmith could make a key? I will show you a 
 simpler way." I then asked had any one any wax ? 
 
 Mr. Brown : You got a wax-candle, I believe ? 
 
 A. Nobody had any wax; I went and got a candle. 
 
 Q, What did you do with it ? 
 
 A. I melted it at the fire and made an impression of the 
 wards of the key ; and I also made a drawing either from the 
 wax or from the key, I forget which. 
 
 Q. A drawing on a piece of paper ? 
 
 A. Yes, on a piece of paper. I showed this to them. I 
 then went out of the room ; and just outside I met Stone, and 
 gave him the key. He looked at it, and saw a lot of wax stick- 
 ing to it, and said, " What have you been doing with this key? 
 have you been putting it in the fire?" I said, " No." He then 
 said, " Have you been putting oil upon it ?" I said, " No." He 
 then said, "Well, what have you been doing with it?" I said, 
 "I cannot tell," and I ran up stairs. This was all said in a 
 joking, pleasant sort of manner. I ran up to my room. I had 
 left the impression and drawing on the table, and forgot all 
 about them. 
 
 Q. Did you do any thing with them ? 
 
 A. No, nothing whatever. 
 
 Q. And then Mr. Stone found them, I think, and called on 
 you for an explanation ?
 
 44 
 
 A. Yes, he found them, and came to my room one night and 
 produced them out of his pocket, and he said, " Did you make 
 this?" and I said, "Yes, I did." 
 
 Q. Did you give him an explanation about it ? 
 
 A. Yes, I did. 
 
 Q. Did you tell him in substance what you have told us ? 
 
 A. I told him exactly the same. 
 
 Q. How did it end ? 
 
 A. It ended in his saying that he saw there was no harm in 
 the matter, and that he would say nothing more about it. It was 
 not in my room that this took place, it was in the cloisters. 
 
 Q. I believe that in the course of the explanation which you 
 gave him some angry words passed 1 
 
 A. Yes. 
 
 Q. But he was calmed down towards the end of it 1 
 
 A. He was calmed down. I did not give the explanation 
 then, but I did afterwards in the cloisters. 
 
 Q. Did he come to your room on the night of the 22d of 
 February, as you were going to bed ? 
 
 A. He did. 
 
 'Q. What did he say to you then ? 
 
 A. He looked in. 
 
 Lord Cliief- Justice Cockburn ; What day was this ? 
 
 A. The 22d. 
 
 Mr, Broicn : You were going to bed, you say ? 
 
 A. Yes, he looked in and said, " I take away your privileges 
 for the next three days," naming the days, Thursday, Friday, 
 and Saturday. 
 
 Q. Had he before that time used any angry expressions to- 
 wards you ? 
 
 A. Not before that time. 
 
 Q. It was after that time, was it? 
 
 A. It was after that time. I had been up till past 10 o'clock 
 that night and the night before, and I am not quite sure whether 
 it was that night or the night before. 
 
 Lord Cliief-Justice Cockburn: Was it after the usual time 
 for going to bed] 
 
 A. It was not in my case, but it was for the general body of 
 the students; 10 was the hour for them.
 
 45 
 
 Mr. Brown: That was the offence, was it? 
 
 A. That was the offence. 
 
 Q. During the time of the previous Prefect, Mr. Martin, did 
 you often sit up until that time? 
 
 A. Frequently. 
 
 Q. With his knowledge? 
 
 A. With his knowledge. 
 
 Q. What were you doing when you were up at these late 
 hours? 
 
 A. I stopped up generally for the purpose of studying and 
 preparing for my examination ; sometimes I wrote letters. 
 
 Q. Did Mr. Stone frequently come to your bedroom about 
 10 o'clock at night? 
 
 A. Yery frequently. 
 
 Q. Tor what purpose? 
 
 A. To see if I was in bed. 
 
 Q. Had that been usual with Mr. Martin? 
 
 A. No; most unusual. 
 
 Q. On these occasions when he came to your bedroom in the 
 night, had he made use of any warning expressions of any kind? 
 
 A. He had several times told me to take care of myself, 
 that my position in the house was very fickle. 
 
 Lord Chief -Just ice Coclcburn: Was that his word? 
 
 A. Yes, that was his expression. 
 
 Mr. Brown: Did he say any thing about Dr. Northeote? 
 
 A. Not on these occasions. 
 
 Q. Did he say any thing about keeping a strict watch? 
 
 A. He told me once or twice, " I am keeping a strict watch 
 over you, young man." 
 
 Q. Sometime in February, I believe, Mr. Stone found you 
 and three of the Philosophers in a little country inn; is that so? 
 
 A. He did. 
 
 Q. What were you and the Philosophers doing there? 
 
 A. We were playing bagatelle. 
 
 Q. I believe that was an inn that was patronised by the 
 college, where you used to have cabs and so on? 
 
 A. Yes, to a certain extent. The proprietor kopt a couple of 
 cabs, and whenever they wanted a cab at the college they used 
 to send there for it.
 
 46 
 
 Q. Was it against the rules for you to be in that country 
 inn? 
 
 A. It was against the rules for Philosophers to be there, "but 
 at that time I did not consider myself a Philosopher. 
 
 Q. I believe there were some Divines there, were there not, 
 two of them were Divines? 
 
 A. Three of them were Church students. 
 
 Lord Chief-Justice Cockburn: Church students? 
 
 A. Yes, clerical students. 
 
 Mr. Brown: For doing this, I believe, Dr. Northcote gave 
 you and the other students a lecture ? 
 
 A. He did ; he sent for us the next day but one, and gave 
 us a lecture, and then he sent me out of the room and continued 
 the lecture to the other three. 
 
 Q. I am afraid that on the 27th of February you got into 
 trouble again about a pistol ; is that so ? 
 
 A. Yes; on the 27th I went to shoot in a remote part of the 
 plantations, which went by the name of " Hell," with another 
 boy named * * * 
 
 Q. You had this little article with you, I believe (showing 
 witness a small pistol)? 
 
 A. That is the pistol. 
 
 Q. "Were you shooting birds, or what were you doing there ? 
 
 A. We were practising on the stump of a tree, against a 
 high bank, at the back there. Whilst we were shooting, * * * 
 suddenly exclaimed, " There is Stone." I said, " Did he see 
 us?" * * * said, " I do not know ; I think he did ;" and I said, 
 " 0, then, cut ;" and we ran away. 
 
 Q. And what did you do with the pistol ? 
 
 A. We ran along the hedge-row, and I flung it into the 
 hedge, and Stone ran after us. 
 
 Q, When he came up to you, what did he sayl 
 
 A. He said, "Which of you owns the pistol?" 
 
 Q. Well ; go on. 
 
 A. I said, " I do." He then said, " Give me up that pistol 
 at once." I said, " Can't hav'n't got it." He said, " Where 
 is it ?" I said, " I flung it into that hedge ; beyond that I do 
 not know." He said, " That is a lie." I said, " It is not a 
 lie." He repeated, " It is a lie, sir." I said, " It is not." He
 
 47 
 
 then said, " I will box your ears." I said, " No, you sha'n't." 
 He threatened several times to box my ears. 
 
 Q. What then? 
 
 A. He again asked me for the pistol, and I repeated the 
 statement that I had flung it into the hedge; and he said, 
 " Unless you find that pistol immediately, you shall leave the 
 house to-night." We then all three began looking for the 
 pistol ; after some search I found it. Stone came and took it, 
 and said, " It is well for you you have found it ; for if you had 
 not, you should not have slept another night in the house or 
 under the roof." 
 
 Q. He then ordered you back to the college, I believe ? 
 
 A. We then all three walked to the college, and after a bit 
 he sent * * * to the bounds. He told me to walk in front of 
 him, and I refused to do so. He told me to walk faster, and I 
 said I would take my time. 
 
 Q. What then? 
 
 A. He then took out his watch, and said that if I was not 
 in my room within five minutes, I should leave the house that 
 night. He told me to leave the cartridges for the pistol in his 
 room, which I did. He said to me, " Dr. Northcote told me 
 that you were here for your own purposes, and not for the 
 college's, and a very slight provocation would procure your 
 dismissal." 
 
 Q. When you got back to the college, did you go to Dr. 
 Nbrthcote and make a complaint to him ? 
 
 A. I went to Dr. JSTorthcote to make a complaint, but he was 
 not at home. 
 
 Q. You saw him, however, the same evening, I believe ? 
 
 A. I did. 
 
 Q. Did you complain to him ? 
 
 A. I complained to him of Stone calling me a liar, and 
 threatening to box my ears ; and I also made another complaint 
 of Stone, as to a conversation of his, part of which I had over- 
 heard, in which he said he knew lots and lots of things against 
 me, any one of which would be enough to get me expelled, 
 that I had never done any thing good that he knew of, but that 
 he knew lots of bad things. 
 
 Q, Did Dr. Northcote promise to see Mr. Stone about it ?
 
 m 
 
 A. He said lie would see him about it. 
 
 Q. On the evening of the next day did Dr. Xorthcote send 
 for you ? 
 
 A. He did. 
 
 Q. Just before night-prayers, I think ? 
 
 A. Just before night-prayers. 
 
 Q. What did Dr. Northcote say to you on that occasion ? 
 
 A. He was very angry with me, and accused me of carrying 
 malicious complaints. He said that Stone was justified in call- 
 ing me a liar, in imputing a lie to me. 
 
 Lord Chief-Justice GocTiburn : Was that what he said 1 
 
 A. Imputing a lie to me (I think that was what he said), 
 because I had used equivocation amounting to a lie. 
 
 Mr. Brown: Did you offer to exculpate yourself? 
 
 A. I did. 
 
 Q. Did Dr. [Xorthcote hear what you had to say? 
 
 A. He would not hear me at all. 
 
 d Did you make more than one attempt to excuse your- 
 self? 
 
 A. I did. He spoke very rapidly and very roughly, and 
 dismissed me as the bell was ringing for night-prayers. 
 
 Q. And he put an imposition upon you, I believe ? 
 
 A. Yes, he did ; that I should walk in the ranks, and study 
 in the common studying-place. 
 
 Q> After prayers did you go to the Doctor again ? 
 
 A. I did. 
 
 Q. And what did you say to him ? 
 
 A. I was beginning to excuse myself, and he would not 
 hear me. 
 
 Q. Was any thing said about writing to your father ? 
 
 A. He had said something before ; on this occasion he said 
 something about the next day being Ash Wednesday, and that he 
 hoped I should bear my punishment with humility. I asked him 
 if he was going to write to my father, because he had before 
 said that he should have to write a very bad account of me. 
 Q, What did he say then about writing to your father? 
 
 A. He said, "Well, I will tell you what I will do, David. 
 I will not write if you will promise to give no more trouble for 
 the future."
 
 40 
 
 Q. What did you say to that ? 
 
 A. I said, " Very well, I will promise ;" and then I left 
 him. 
 
 Q, Do you remember the night of the 12th of March? 
 
 A. I do. 
 
 Q. Had you then lying on the bedroom table a pocket- 
 book ? 
 
 A. I had. 
 
 Q. With some loose papers in it 1 
 
 A. I had. 
 
 Q. Lying there with some letters of yours ? 
 
 A. Yes. 
 
 Q. Had you ever attempted to conceal them ? 
 
 A. !Never. 
 
 Q. On the morning of the 13th of March did Mr. Stone 
 come and call you ? 
 
 A. He did. 
 
 Q. Was he standing by the table where the pocket-book 
 and the letters were 1 
 
 A. When I awoke I saw him standing by the table. 
 
 Q. This was about six in the morning, I think 1 
 
 A. It was half-past six. 
 
 Q. He told you to get up, I think.? 
 
 A. As soon as he saw me awake he said, " Get up," and 
 went out of the room. 
 
 Lord Chief-Justice, Oocldnirn : Was he in the habit of calling 
 you ? 
 
 A. Yes j he used to call mo every morning, but generally 
 ho only came to the door, and shook the foot of my bed till I 
 awoke. 
 
 Mr. Brown : I believe that about eleven o'clock the samo 
 morning he desired you to come into his room ? 
 
 A. He came to my room, and was rather surprised to cea 
 me there. He said, " Come down into my room ; I want a few 
 words of private conversation with you ;" and I went down into 
 his room. 
 
 Q. How did he begin the conversation 1 
 
 A. He unlocked the door, and we went in together, and my 
 impression is that ho bolted tho door ; but he tinned round 
 
 E
 
 50 
 
 to me from the door, and said to me with a triumphant sort of 
 smile, " You have ruined yourself." He also said, " Now you can- 
 not help yourself; "but you may help others." I was greatly sur- 
 prised at this, and I asked him what he meant, and he replied, 
 " You have got a pocket-book." I had put it into my pocket 
 some time in the course of the morning, and when he said this 
 I felt to ascertain if it was there, and he noticed the action and 
 said, "Have you got it on your person?" I said, "Yes." He 
 said, " Give me up that "book at once." I said, " No, I won't." 
 He said, " If you do not give me up that "book immediately, I 
 will tear it from you by main force." I said, " You will do so 
 at your peril." 
 
 Q. What then? 
 
 A. He then came up to me. I seized hold of the book 
 firmly in both hands, or seized hold of the pocket rather. He 
 caught hold of me, and after a struggle he succeeded in pulling 
 my hands from the pocket, and snatched the book out of my 
 pocket. 
 
 a What then? 
 
 A. He then proceeded to open the book, and was beginning 
 to say something to me, and I said, " I have nothing more to say 
 to you ; I will go to the President." He seemed rather amused 
 at this, and said, " O, come along." 
 
 Q. And then you both went to the President ? 
 
 A. Yes, we both went to the President. 
 
 Q. I believe that you did not find him in his room, and Mr. 
 Stone went to fetch "him 1 
 
 A. Yes ; he went down, and I think he met him on the 
 stairs, and came up with him presently. 
 
 Q. And then you all three, I believe, went into the room 
 together ? 
 
 A. Yes. 
 
 Q. And what passed there ? 
 
 A. As soon as we got in there, Dr. I^orthcote said to me, 
 "Well, what have you got to say for yourself?" I said, "I 
 should like to know first what I am charged with." He said, 
 " Has not Mr. Stone told you ?" I said " ISTo." And then Stone 
 said " Yes," or nodded to Dr. Northcote. 
 
 a What then?
 
 51 
 
 A. Dr. Northcote said, very sarcastically, " 0, I see," im- 
 plying that Stone had told me, and that I was denying it. 
 
 Q. Then did you say something ? 
 
 A. Dr. Northcote then continued, and said, "Well, I will 
 tell you ; you have been conspiring against the peace and welfare 
 of all the Church students in the house." I said, " I have not.'" 
 
 Q. What next took place ? 
 
 A. He then said something about playing with pitch and 
 not being defiled. He said, " You think you can play with pitch 
 and not be defiled." 
 
 <3. What further passed 1 
 
 A. Stone handed me my pocket-book, and said that he had 
 examined some of the members of the A. B. C., two or three of 
 whom said that they had been forced into it against their will. 
 Stone then left the zoom. 
 
 Q. Did you offer to give Dr. ISTorthcoto an explanation about 
 this A. B. CJ 
 
 A. He asked me some questions about it, which I answered. 
 I began explaining it, and he would not hear me. 
 
 Q. What did he say ? 
 
 A. He sat down in a chair and looked out of the window, 
 and pretended not to hear what I said. I then said that I was 
 not ashamed of any thing that I had done, and that I had told 
 my father about it. He looked as if he disbelieved this ; and I 
 offered to show him a letter from my father, in which the subject 
 was jocularly mentioned. I did produce the letter, but he re- 
 fused to look at it, unless I would let him read the whole of it ; 
 and this I refused to do. 
 
 Q. Why would you not allow him to read the whole of it ? 
 
 A. Because it was a private letter. I offered to show the 
 whole of that part of the letter which referred to this matter, 
 but he would not look at it unless I would let him see the whole 
 of it. It Avas a private letter, and there was nothing more about 
 that matter in it. 
 
 Q. Did Dr. Northcote give you any order ? 
 
 A. He then said, " You had better go to your room till I 
 send for you again." 
 
 Q. And then you went to your room, I suppose ? 
 
 A. I went to my room.
 
 52 
 
 Q, In consequence of something that you heard from one of 
 the hoys 
 
 A. I left my room afterwards for a short time, and on coming 
 hack I found the door locked; and I then went and sat in the 
 neighbouring room. In consequence of something I heard from 
 one of the Philosophers, I went down to Dr. Northcote's room. 
 I had heard that there had "been a meeting of the whole college 
 about me. I went down to Dr. Northcote's room, and met him 
 at the door of the room. He asked me where I had been, and 
 I told him, and he said, " I really thought you had taken your- 
 self off ; and under the circumstances it would have been the best 
 thing you could have done." 
 
 Q. What reply did you make 1 
 
 A. I said, "What have you done 1 ?" He said, "I have pub- 
 licly expelled you, that is what I have done." He then took 
 me into his room with him, and began to tell me what he had 
 said at the meeting. He said that he began by reading some 
 extracts from the works of Dr. Newman. He also abused me a 
 good deal, and said I was most conceited. 
 
 Lord Chief-Justice Cockburn : What was it that he read from 
 the works of Dr. NeAvman 1 
 
 A. It was some definition of a gentleman. 
 Mr. Brown : You cannot recollect which of Dr. Newman's 
 works it was 1 
 
 A. No ; I do not remember. 
 Q. Continue the conversation, if you please. 
 A. He said that my conceit had proved the ruin of me, and 
 would do so afterwards ; that I was not to be trusted ; that I 
 was not a gentleman ; and he said a great deal more, the sub- 
 stance of which I do not remember. And then Stone came in 
 with some money, which Dr. Northcote took and put into my 
 hands, and said, " Eeally I have nothing more to say to you." 
 
 Lord Chief- Justice Cockburn : That was money to enable you 
 to go home. 
 
 A. Yes ; to go home. 
 
 Mi'. Brown : Did he then order you to go to your bedroom 1 
 
 A. He then dismissed me. I \vent out with Stone, and 
 
 Stone followed me up to my room. As soon as I went into the 
 
 room, Stone locked the door on the outside. When I found this,
 
 53 
 
 I went to the door and kicked it till Stone came back. He had 
 only just gone a few paces, and came back immediately. He 
 unlocked the door. I protested strongly against his locking it, 
 saying, " You have no business to lock me up like a felon ;" to 
 which he replied, " Who would trust you?" and immediately 
 pulled the door to and locked it again. 
 
 Q. I believe that after that some dinner was brought to you 1 ? 
 
 A. Some dinner was brought to me by a servant on a tray, 
 and Stone left me and went away. 
 
 Q. About how long altogether were you locked up 1 
 
 A. I was locked up altogether nearly two hours. 
 
 Q, During this time did Mr. Stone come and look at you 
 three or four times 1 
 
 A. He came and looked at me once or twice, and when he 
 came I said, " I should like to see my brothers and cousins." 
 
 Lord Chief-Justice Cockburn : Did he say any thing when ho 
 came in on these one or two occasions 1 
 
 A. No ; he only opened the door and looked at nie, and then 
 locked it again. At first he said that, as I was expelled, I could 
 not see them ; to which I replied that I would not leave the 
 house before I saw them. He then said he would see about it, 
 and went away ; and he presently came up with my two brothers 
 and let them in; and then one of them went and fetched my 
 cousins. He stayed in the room with them while they were 
 there. I asked him to leave the room for a few minutes, that I 
 might talk privately with them ; to which he replied, in a very 
 insulting way, that although he did not fear any actual contami- 
 nation, still an expelled person was an expelled person, and 
 could not be permitted to have any communication with those 
 who were not so. 
 
 Mr. Brown : And you had to speak to them in his presence, 
 I suppose ? 
 
 A. Yes ; I was packing up some letters in my desk, and 
 Stone told me not to mind, that they would be sent after .me. 
 I said, " You do not think I am going to leave my letters behind 
 me T to which he said sneeringly, " Suspicion haunts the guilty 
 mind." 
 
 Q. From that time, I believe, he did not leave you till you 
 left the college 1
 
 54 
 
 A. 2S"o ; lie sent them away then, and did not leave the room 
 till I left the college. 
 
 Q. What passed while you were packing your things? 
 
 A. He hurried me a good deal, constantly saying, "Make 
 haste, make haste," and took out his watch, and said that if I 
 was not ready within so many minutes (I forget how many he 
 said), he would bundle me out, and send my things after me. 
 He said, "You had better not wait till three o'clock" (three 
 o'clock was the time when the boys came in from the bounds) ; 
 "for if any of them meet you, they will be disposed to handle 
 you roughly." I replied that I knew better. 
 
 Q. Did any tiling more pass while you were packing your 
 things? 
 
 A. He pushed me several times towards the door, saying, 
 " Come, get along, now ; I cannot allow you any more time." 
 He pushed me very roughly, and once very nearly knocked me 
 down. He would not let me lock my portmanteau, saying that 
 I could do that in the cab. I did lock it, however. 
 
 d You found a cab waiting downstairs ? 
 
 A. I did. 
 
 Q, And in that cab you set off to Birmingham ? 
 
 A. I set off to Birmingham. 
 
 <2- And from thence you went to Dublin I 
 
 A. Yes. 
 
 Mr. Brown : Now, my Lord, we will put in Dr. !N"orthcote's 
 letter of the 13th of March 1865. 
 
 Mr. Coleridge : There are a great many other letters that I 
 did not open; but if my friend thinks that any of the earlier 
 letters should be produced, he is very welcome to have them in. 
 The first letter I read is a letter of the 13th of March 1865 
 from the defendant to the Judge.* 
 
 Q, You have seen that letter of Dr. !S"orthcote's of the 17th 
 of March, in which he gives a catalogue of your offences ? 
 
 A. Yes. 
 
 Q. The first in order stands " Smuggling into the college 
 a bottle of spirits, and entertaining his friends, two of whom 
 drank to excess." "Will you state, if you please, what that was ? 
 
 A. On the night of the 21st of December 1864, that being 
 * See Letter, p. 5.
 
 the night "before the boys went home for the Christmas vacation, 
 I. gave a small party to my brothers and two other students. 
 What we had at this party consisted of what we call " prog,!' 
 cakes and biscuits purchased in the house. I also procured in 
 the course of the day from the inn about a pint of whisky 
 and brandy, with sugar and lemon. I had asked three or four 
 other fellows, who did not come; we boiled water, and made 
 punch. 
 
 Lord Cliief- Justice CocJcburn : Was this after the boys had 
 gone to bed ? 
 
 A. After most of the boys had gone to bed. We sat up 
 rather late; we separated about twelve o'clock, and up to this 
 time no one had drunk to excess. 
 
 Mr, Brown : Were either of you at all tipsy 1 
 
 A. No, certainly not ; none of us were. 
 
 Q. Did you drink up all the spirits 1 
 
 A. We drank up all, except a small quantity that was spilt. 
 
 Lord Chief-Justice Cockburn : A libation on the occasion. 
 
 A. One of the boys was sick in the course of the night and 
 the next day, and the doctor who saw him said it was the 
 change of the weather. 
 
 Q. ThisVas the breaking-up night, as I understand 1 
 
 A, Yes ; the boys all went off the next day, except a few 
 who stayed for the vacation. 
 
 Q. The next offence I see was " Borrowing from the Prefect 
 a pass-key, and taking a rubbing and wax impression of it 
 before he returned it." That you have explained. 
 
 A. Yes. 
 
 Q. Had any complaint been made to you about getting this 
 bottle of spirits 1 
 
 A. Not till long afterwards. No one knew any thing about 
 it till after the vacation; not for more than a month or six 
 weeks afterwards. 
 
 Q. The second offence about the key you have explained. 
 The third is about going to the inn that you have explained ; 
 the fourth offence is about the pistol, and that you have also 
 explained ; the fifth is " equivocating, and otherwise misbehav- 
 ing himself when detected," about the pistol : you have ex- 
 plained that.
 
 56 
 
 A. Yes. 
 
 Q. Now as to this charge about the A. B. C. ; what did the 
 A. B. C. mean ? 
 
 A. The A. B. C. meant Anti-Bunker Confederation ; L. B. 
 meant List of Bunkers; C. S. meant clerical students; C. M. meant 
 Churchmen; S. P. meant Sedgely Park ; N. S. M. meant national 
 schoolmen. I do not remember what the other initials were. 
 
 Q. Is this the pocket-book in question (showing a pocket- 
 book) ? 
 
 A. Yes ; that is the book in question. 
 
 Q. I will hand the book up to my Lord, while I ask you a 
 question or two about it (handing the book to the Lord Chief- 
 Justice). I believe the first page contains a list of clerical 
 students. 
 
 A. It does. 
 
 Q. With the places from which some of them are supposed 
 to have come ? 
 
 A. Yes. 
 
 Q. What did you make that list for ? 
 
 A. For fun ; for a lark. 
 
 Q. Was it made before the 28th of February, when Dr. 
 Northcote took away your privileges ? 
 
 A. It was. All that is in ink was made at the same date ; it 
 was made before the 28th of February. There were two loose 
 papers, which were also made at the same date. 
 
 Q. Did you tell Dr. Northcote that, when you were with 
 him 1 
 
 A. I told him that part had been made before that conversa- 
 tion, and part afterwards. 
 
 Q. I see in the second page there is this : " Uncle or brother 
 keeps a small grocery establishment in Wednesfield Heath ; 
 father a general inspector of canal locks." What was that for? 
 
 A. That was told me by the Honorary Secretary, who saw 
 .me scribble it down in pencil ; I do not remember now to whom 
 it referred. 
 
 Q. Who was the Honorary Secretary ? 
 
 A. His name was * * *. 
 
 Q. Who appointed him. ? 
 
 A. I appointed him.
 
 57 
 
 Q. Had he a very laborious office to perform 1 
 
 A. No. 
 
 Q. Had he any duties at all ? 
 
 A. Not that I know of. 
 
 .Lord Chief- Justice Cocklurn : Had he any salary ? 
 
 A No. 
 
 .Mir. Brown: The third page, I see, begins in this way 
 " A. B. C." What does that mean I 
 
 A Anti-Bunker Confederation. 
 
 Q. Then it contains your name, and * * *'s, and two or 
 three more. 
 
 A. A good many more. 
 
 Q. Then there is this : " Governor Moody, elected March 
 6th." Who was Governor Moody? 
 
 A. He was a master in the college. 
 
 Q. "Elected March 6th, for his magnanimous sentiment 
 about Sedgely Park." What is the meaning of that 1 
 
 A. He was supposed to have a great dislike to Sedgely 
 Park ; but the particular thing that is there referred to is, that 
 one day a boy was laughing very loud in class, and he said, 
 " Silence, So-and-so, one would think you were at Sedgely 
 Park." 
 
 a. What is Sedgely Park ? 
 
 A. It is a sort of preparatory school, where Church students 
 came from. 
 
 Q. In consequence of that you voted him a member ? 
 
 A. Immediately. 
 
 Q. I believe that you had not asked Governor Moody 's con- 
 sent 1 
 
 A. No. And a great many of those whose names are put 
 down there knew nothing about it ; and I also told that to Dr. 
 Northcote. 
 
 Q. What are the boys whose names appear down under the 
 A. B. C. 1 
 
 A. Some of them kneAV something about it, and some of 
 them knew nothing about it. 
 
 Q. Was this confederation any thing serious 1 
 
 A. Certainly not. 
 
 Q,. What object had it in view ?
 
 A. It had no object. 
 
 Q. Had you ever a meeting together ? 
 
 A. Never a meeting ; never a convened meeting. 
 
 Q. Had you agreed upon any design at all of any kind ? 
 
 A. We had not. 
 
 Q. Was there any design at all contemplated by you or by 
 the boys whose names "were put down in this book against the 
 clerical students ? 
 
 A. There was not. 
 
 Q. Or against the rights of the house ? 
 
 A. No; nor against the rights of the house. 
 
 Q. Did you tell Dr. Northcote as much? 
 
 A. Yes, I told him that there was nothing serious in it what- 
 ever. What I said was, that it was a bit of humbug and non- 
 sense, and that he ought not to take any notice of it; that it 
 had already died out, and that no entries had been made for 
 several days. 
 
 Q. Had you any plan of action of any kind for this con- 
 federation ? 
 
 A. We had not. 
 
 Q. When did the book come back to you ? 
 
 A. It came back to me about a fortnight after my expulsion. 
 
 Q. By post? 
 
 A. It came by post in a cover, directed in a handwriting that 
 I do not know. 
 
 Q. Did it come in that cover? (showing a paper to the 
 witness.) 
 
 A. Yes. 
 
 Q. Has it a date upon it ? 
 
 A. April the 9th. 
 
 Cross-examined by Mr. KARSLAKE. 
 
 Q. You went to Oscott, I think you say, when you were 
 eleven years old? 
 
 A. I did. 
 
 Q. Oscott is one large college, the whole of the masters, the 
 boys, the Divines, and every body are under one roof, are they 
 not? 
 
 A. They are.
 
 59 
 
 Q, I may take it that the boys and the students and others 
 who are under the control of the Presidentof the College munber 
 more than 200, may I not 1 
 
 A. No, I think not. 
 
 Q. When you went there were 140 ? 
 
 A. There were 144 boys and Philosophers. 
 
 Q. Those were students 1 
 
 A. Yes ; at that time there were, I should think, about 200. 
 
 Q. And when you went away there were 120, I think you 
 say, students and Philosophers? 
 
 A. Yes. 
 
 Q. Then there are Divines ? 
 
 A. Yes. 
 
 Q. And masters ? 
 
 A. And priests. 
 
 Lord Chief-Justice Cockburn: What is the distinction be- 
 tween Philosophers and students ? I suppose the Philosophers 
 are the upper class 1 
 
 A. That is the upper class : they have certain privileges, 
 they are still students. 
 
 Mr. Karslake : All the students in Oscott College, whether 
 they were lay or clerical students, belonged to the different 
 classes, I suppose 1 
 
 A. They did. 
 
 Q, All mixed up together ? 
 
 A. All mixed up together. 
 
 Q. I do not know whether it was the same there as it was in 
 the school I was at, were there forms ? 
 
 A. No, no forms, but there were ten classes. 
 
 Lord CJiief- Just ice Cockburn: It is the same thing under 
 another name. 
 
 Mr. Karslake : First of all there were Philosophers, they 
 were the head class? 
 
 A. Yes. 
 
 Q. And Poets ? 
 
 A. And Poets and Ehetoricians. 
 
 Q. Those were the three classes, and the Philosophers were 
 the highest of those 1 
 
 A. The Philosophers were the highest of those.
 
 
 
 Q. When you first went there, were there a great number of 
 clerical students ? 
 
 A. I think not; I did not know very well then. 
 
 Q. Eut when you saw a boy going along the cloister, you 
 heard him called after as a Bunker, did you not 1 
 
 A. No, never. 
 
 Q. When did the name " Bunker" first arise in your time ? 
 
 A. I heard it before I had been in the college a week. 
 
 Q. When you first went ? 
 
 A. When I first went. 
 
 Q. To whom was that term applied at that time 1 
 
 A. To Church students. 
 
 Q. And the Church students in almost every instance came, 
 I believe, upon funds provided by charitable institutions or by 
 the diocese they belonged to 1 
 
 A. I understood so. 
 
 Q. You say there was no combination at all formed against 
 them ] 
 
 A. There was not. 
 
 Q. Not at that time ? 
 
 A. Not at that time, 
 
 Q. The philosophy class you got through quickly, did you 
 not? 
 
 A. I was a year in it. 
 
 Q. Very often there are two years, are there not ? 
 
 A. Not now. 
 
 Q. But there used to be at that time 1 
 
 A. No. 
 > Q. Never more than a year 1 
 
 A. Sometimes a Church student, if he was not fit to go into 
 philosophy, was kept half a year, or it might be a year longer. . 
 
 d If he were going to become a priest, he would go into tho 
 divinity class after he had finished the philosophy class 1 
 
 A. He would become a Divine. 
 
 Q. You left in July for good, did you not 1 
 
 A. Yes. 
 
 Q. In what year? 
 
 A. 1864. 
 
 Q. As a Philosopher, you had your private room, I suppose ?
 
 61 
 
 A. I had. 
 
 d Which the Philosophers had ? 
 
 A. In common with the Rhetoricians and Poets. 
 
 Lord Chief-Justice Cocklurn : All these had private rooms? 
 
 A. Yes. 
 
 Mr. Karslcike : They were a sort of upper school, I presume, 
 and had their private rooms ? 
 
 A. Yes. 
 
 Q. The others used the dormitory ? 
 
 A. Yes. 
 
 Q. And I believe that, in addition, the Philosophers had a 
 sort of public room in which ihej studied, had they not ? 
 
 A. They had a room called the Philosophers' room. 
 
 Q. Was it a punishment to a Philosopher to be degraded 
 sometimes from his room and to be sent to the dormitory ? 
 
 A. That was never done. 
 
 Q, Did no instance of that kind occur while you were there? 
 
 A. :N T o. 
 
 Q. Did it ever occur to a Poet or a Rhetorician? 
 
 A. Yes. 
 
 Q. To be degraded and sent to his room ? 
 
 A. Yes. 
 
 Lord Chief-Jmtice Cocltburn : Which is the highest stage ? 
 
 A. Rhetoric; and below that, poetiy. 
 
 Mr. Karslalce : I believe that Philosophers were sent some- 
 times to the common room to study as penance, were they not ? 
 
 A. I never remember an instance of that except my own. 
 
 d When you went back in September, did you attend dif- 
 ferent classes? " v*r 
 
 A. ]S T o ; I studied privately by myself. 
 
 Q. Do you mean that you attended none ? 
 
 A. I did attend the philosophy class in one thing; they 
 were reading an author whose work would be useful to me. 
 Q. And so you attended that class ? 
 
 A. I attended that class in that particular thing. 
 Q. Did you attend the classical class ? 
 
 A. That was the one that I did attend. 
 
 Lord Chicf-JudicG Gockburn: For that one thing? 
 
 A. Yes ; the Georgics of Virgil.
 
 62 
 
 Mr. Karslalce : Your great object at that time was to improve 
 yourself in the ckssics ? 
 A. Yes. 
 
 Q. So, when that class was going on, you used to attend it ? 
 A. I used. 
 
 Q. Did you attend to all the other rules of the house ? did 
 you rise at the same time as the other Philosophers ? 
 A. No, I did not. 
 Q. What time did you rise 1 
 
 A. I rose at varying times, but generally at half-past six. 
 Q. Did you attend the morning prayers, and so on ? 
 A. There was half an hour's meditation in the morning, and 
 I did not attend that ; after that there was Mass, and I usually 
 attended that, but not always. 
 
 Q. In September, when you went back, were the rules read 
 out loud. 
 
 A. In September 1864 ? 
 Q. Yes. 
 A. No. 
 
 Q. In your presence ? 
 A. No. 
 
 Q. Was it the practice to read the rules ? 
 A. It was the practice to read the rules at the beginning of 
 each half-year ; that is, the boys' rules. 
 Q. And the Philosophers' ? 
 A. No. 
 
 Q. Was that never the practice 1 
 
 A. The year I was a Philosopher they were not read ; I can- 
 not say what was done before. 
 Q. You knew them before ? 
 A. Only by hearsay. 
 Q. Did you never hear them read ? 
 A. Not while I was a Philosopher. 
 Q. Before you were a Philosopher did you ? 
 A. No. 
 
 Q. Did you know that one of the rules for the Philosophers 
 was that they were allowed to go out in parties of three with 
 the permission of the Prefect ? 
 A. Certainly.
 
 63 
 
 Q. A list was to be given to the President or to the Prefect ? 
 
 A. No. 
 
 Q. You do not know that ? 
 
 A. It was to be put in the Prefect's room. 
 
 Q. Did you know that no Philosophers were allowed to go 
 into the town or village without express permission, or to go to 
 places of public amusement and such like ? 
 
 A. I heard that afterwards. 
 
 Q. How far is Oscott from Birmingham? 
 
 A. Six miles ; it is considered five miles and a half. 
 
 Q. And Erdington, how far is that 1 
 
 A. About a mile. 
 
 Q. Beyond the bounds 1 
 
 A. Certainly, beyond the bounds. 
 
 Q. In December 1864, just before you went away, .there 
 was this wine or spirit party which you gave, and you were 
 going to say, as I understood you, but you were stopped, that 
 at the time when you left nobody was drunk ? 
 
 A. No. 
 
 Q. Did nobody get drunk afterwards ? 
 
 A. No. 
 
 Q. Was nobody at all the worse for it ? 
 
 A. I did not say that nobody was at all the worse for it. 
 
 Q. You may make a fine distinction, perhaps, between get- 
 ting drunk and being intoxicated. 
 
 A. I say one fellow was sick. 
 
 Q. And the doctor attributed it to the change of the weather ? 
 
 A. Yes. 
 
 Q. I suppose you did not think much of that doctor, you 
 knowing what you did about it ? 
 
 A. I thought it rather funny. 
 
 Q. I will not mention boys' names, but I will ask you 
 whether, with these spirits which you had brought in, there 
 were not two boys intoxicated ? 
 
 A. Certainly not. 
 
 Q. Of course it was entirely against the rules of the college 
 to bring spirits in ? 
 
 A. There was no rule against it. 
 
 Q. But tradition ?
 
 64 
 
 A. Is"o, nor tradition either. 
 
 Q. Did you consider that it was according to the rules of 
 the house to get in spirits, and to drink them at night 1 
 
 A. N"o. I do not say that ; it was against the customs. 
 
 Q. Did you ever know an instance of half-a-dozen young 
 men sitting down together and drinking ? 
 
 A. I have known instances of it. 
 
 Q. And of their "being caught by the President ? 
 
 A. Xo ; I never knew an instance of that. 
 
 Q, They managed it too well for that ? 
 
 A. They did. 
 
 d Did Mr. Stone speak to you about this in January when 
 you returned ? 
 
 A. I think he had heard of it. 
 
 Q. Did he speak to you about it ? 
 
 A. I am not quite sure ; I remember Dr. Xorthcote did. 
 
 Q. Was it mentioned to you, and were you begged not to do 
 any thing of that sort again ? 
 
 A. Yes. 
 
 Q. How came it to be mentioned to you ] 
 
 A. Dr. Xorthcote said that if he had known it at the time, 
 he would not have let me come back. 
 
 Q, I suppose you promised never to do it again ? 
 
 A. I did not. 
 
 Q. Did you do it again 1 
 
 A. Not after that ; certainly not. 
 
 Q. Dr. Xorthcote said that he would not have let you come 
 back, to go on with your studies for matriculation at the London 
 University, if he had known of this before ? 
 
 A. He said, " If I had known of it, I should have thought 
 it my duty not to let you come back." 
 
 Q. You did come back ? 
 
 A. I did. 
 
 Q, About the end of February 1 
 
 A. The end of January, the last day of January. 
 
 Q. "Was there more than one occasion, or were there several 
 occasions, on wliich Mr. Stone came and said, " You must abide 
 by the regulations of the college, and must not stay up after ten 
 at night" 1
 
 65 
 
 A. I do not remember his saying that at all. 
 
 Q. Did he come to your room to tell you to go to lied ? 
 
 ^4. He came to me once when I "was in the Philosophers' 
 room, and told me to go to bed. 
 
 Q. He called you every morning, you say 1 ? 
 
 A. Yes. 
 
 Q. It was his practice to do so 1 
 
 A. Yes. 
 
 Q. On the 23d of February you were actually under penance, 
 were you not 1 
 
 A. I was not. 
 
 Q. "Were you confined to bounds 1 
 
 A. Stone had told me that he took away my privileges, but 
 he had no power to do so. 
 
 Q. The Divines were called " Mr." ? 
 
 A. Yes. 
 
 Q. Was it the custom to call the Prefects " Mr." 1 
 
 A. Yes. 
 
 Q. Because I observe that in your evidence you continually 
 speak of Mr. Stone as " Stone." "When you addressed Mr. Stone 
 did you address him as " Mr. Stone," or "Stone " ? 
 
 A. "Mr. Stone." 
 
 Q. He exercised authority over you, as Prefect of Disci- 
 pline 1 
 
 A. He did. 
 
 Q. Was it on the occasion of your coming back after your 
 matriculation that you borrowed the key of him 1 
 
 A. Yes ; he offered to lend it to me. 
 
 Q, Your own key of your room was lost 1 
 
 A. No ; he lent me his key. 
 
 Lord Chief -Justice Cockburn : The key of your room 1 
 
 A. A key that opened my room. I asked him to open my 
 room, and he gave me the key, and said, " Give it to me back 
 to-morrow." 
 
 Mr. Kar slake: What time next morning was it that you 
 took an impression of it in wax ? 
 
 A. About one o'clock in the day. 
 
 Q. Did you make a rubbing of the key also 1 
 
 A. No ; I do not know what a rubbing is.
 
 66 
 
 Q. Did yon make an impression of it on paper -with, a view 
 to get the shape of the key or the wards ? 
 A. No. 
 
 Q. Did any body else, to your knowledge ? 
 A. Not that I know of. 
 
 Q. When the key was given "back did not Mr. Stone tell 
 you that he had had brought to him an impression of the key ? 
 A. He did not. 
 
 Q. And did he not ask you for the key back again ? 
 A. He did not. 
 
 Q. Did you tell him, or did he intimate to you, that he 
 knew that an impression had been taken for the purpose of 
 having a duplicate key made ? 
 A. He did not. 
 
 Q. Did you know that that key was a master key, which 
 opened the masters' rooms and several other rooms 1 
 A. I did not. 
 
 Q. Did Mr. Stone tell you so ? 
 A. He did not. 
 
 Q. Now I will ask you whether, when Mr. Stone received 
 that key back from you, and commented on the wax upon it, 
 you did not admit to him that it was a dishonourable thing that 
 you had been guilty of, and did you not beg him not to mention 
 it to the President ? 
 A. I did not. 
 Q, Nothing of the sort ? 
 A. Nothing of the sort. 
 
 Q. Did you not say that you ought not to have done it ; and 
 did you not beg Mr. Stone to keep it secret, and not to mention 
 it to the President 1 
 A. I did not. 
 Q. Nothing of the sort ? 
 
 A. I said I ought not to have done it, but I never begged 
 him to keep it secret. 
 
 Q. You did say that you ought not to have done it ? 
 A. I said it was only done in humbug. 
 Q. Was that the expression that you used, that it was 
 only done in humbug ? 
 A. Yes.
 
 67 
 
 Q. I must put to you again my version of it. Did you not 
 say that you ought not to have done it, and did you not beg 
 Mr. Stone not to mention it to the President ? 
 
 A. I did not. 
 
 Q. You seem to have taken some interest in keys. "What is- 
 the meaning of the memorandum in the pocket-hook, " Key of 
 the bakehouse opens the paint-shop" ? 
 
 A. I suppose it does. 
 
 Q. What made you curious to ascertain that ? 
 
 A. I do not know that I was. 
 
 Q. You have not the least notion 1 
 
 A. No. 
 
 Q. All humbug. Just look at your own handwriting in 
 your pocket-book. Had you access to the bakehouse or paint- 
 shop? 
 
 A. Yes. 
 
 Q. How? 
 
 A. Through the door. 
 
 Q. How could you get through that door if you had not got 
 a key? 
 
 A. The door was very frequently open ; or if not, the key 
 was hung up on the outside. 
 
 Q. Did the same key open the bakehouse and the paint-shop? 
 
 A. I suppose it did. 
 
 Q. How came you to be so curious about keys ? 
 
 A. I have had that pocket-book a great many years, and I 
 do not know what entries there are in it. 
 
 Q. "Was not that the key that it was desirable to have a 
 duplicate made of? 
 
 A. I certainly was not going to have a duplicate made of it ; 
 certainly not. 
 
 Q. "What was the object of having a duplicate ? The students 
 thought it was desirable to have a duplicate ? 
 
 A. Because it opened their rooms, or they thought so. 
 
 Q. That was why it was thought desirable to take it to> 
 Erdington to have a duplicate made ? 
 
 A. Yes. 
 
 Q. Had you ever made impressions of keys before ? 
 
 A. Never.
 
 68 
 
 i You showed them the way to do it ? 
 
 Mr. Coleridge : What is written is this, " Mem. To get note- 
 took for logic ; key of bakehouse opens paint-shop. Mem. Got 
 off natural philosophy. Postage stamps, 5s. 6d." 
 
 Mr. Karslake : Then it was to open the doors of the other 
 students that they thought it desirable to have a duplicate ? 
 
 A. No ; to open their own doors. 
 
 d Did that key open all the doors in one gallery 1 ? 
 
 A. I do not know; I never tried. 
 
 Q. But that was thought to be the case ? 
 
 A. That was thought to be the case. 
 
 Q. On the 22d February something happened, you told us? 
 
 A. Yes. 
 
 Q. What was that ? 
 
 A. Stone came to me as I was going to bed. and looked in 
 and said, " I take away your privileges for three days," naming 
 the days. 
 
 Q. Was it the next day that you were at Erdington ? 
 
 A. Yes. 
 
 Q. "Who was with you on that occasion ? 
 
 A. Three Church students. 
 
 Q. There were three with you playing at bagatelle in the 
 public-house 1 
 
 A. Yes. 
 
 Q. Did you go before Dr. Northcote the day after ? 
 
 A. We did. 
 
 Q. What punishment was inflicted for that ? 
 
 A. We were docked of our privileges, that is, we were 
 obliged to keep within bounds. 
 
 Q. For how long ? 
 
 A. Till Easter. 
 
 Q. You were not allowed to go out in walking parties ? 
 
 A. No. 
 
 Q. There are two sets of bounds in the college, are there not ? 
 
 A. Yes ; big bounds and little bounds. 
 
 Q. Senior bounds they are called sometimes, are they not ? 
 
 A. Eig bounds. 
 
 Q. Is that where the head boys play ? 
 
 A. Yes.
 
 G9 
 
 Q. And the little bounds are where the smaller schoolboys play ? 
 
 A. Yes. 
 
 Q. Where did you play ? 
 
 A. In the big bounds. 
 
 Q. Was that what you were confined to 1 
 
 A. Yes. 
 
 Q. Was it while that was going on that you were in the 
 plantation with a pistol 1 
 
 A. Yes. 
 
 Q. Who was the boy you had taken with you there 1 
 
 A. A boy named * * *. 
 
 Q. A small boy ? 
 
 A. No ; I do not know his age, but he was the same size as 
 myself. I expect he was a couple of years younger. 
 
 Q. Do you know what punishment he got for it ? 
 
 A. He got licked. 
 
 Q. You say that on that occasion Mr. Stone found you thera ? 
 
 A. Yes. 
 
 Q. And you ran away, did you not 1 
 
 A. Yes , we did. 
 
 Q. Did you deny to him having a pistol. 
 
 A. Certainly not. 
 
 Q>. Do you mean to say that you did not deny to him having 
 the pistol or knowing where it was 1 
 
 A. I did not. 
 
 Q. Did Mr. Northcote tell you that he considered you had 
 been equivocating? 
 
 A. He did. 
 
 Q. When you saw Mr. Xorthcote upon that subject, had ho 
 a considerable conversation with you about your conduct 1 
 
 A. He had not a conversation with me. He gave me a very 
 harsh lecture. 
 
 Q. At that time, I believe that, in consequence of this former 
 offence against the discipline of the college, you were made to 
 study in the study-place, were you not ? 
 
 A. I was. 
 
 Q. Did Mr. ISTorthcote tell 'you that there was no other 
 punishment that he could inflict upon you but to deprive you of 
 your room and make you study in the study-place ?
 
 70 
 
 A. He did. 
 
 d Did he say that he was sorry to do that, and that it 
 was almost better that you should go home than have your 
 studies interfered with "by having to study in the study-place ? 
 
 A. No ; he did not. 
 
 Q. You had your room still, but you had to study in the 
 study-place ? 
 
 A. He said he would not deprive me of my room : I used 
 my room for studying except during study-hours. 
 
 Q. Did he say that if he had to deprive you of your room, it 
 would be better for you to leave the place at once, because it was 
 necessary for you to have a private room for you to study in 1 
 
 A. He did not. 
 
 Q. Did he tell you at that time that if you committed any 
 fresh offence he should be obliged to send you away, as he had 
 exhausted all the punishment that was applicable to a person in 
 ,your position ? 
 
 A. He said something to that effect. 
 
 Q. He did not say those very words ? 
 
 A. No ; not those very words. 
 
 d But it was to that effect 1 
 
 A. Yes ; to that effect. 
 
 Q. Did he tell you that he should write to your father and 
 say how precarious your position was in the college 1 
 
 A. K"o, he did not ; he said something about writing, but he 
 <lid not say that he would write. He said he thought he must 
 write, or something to that effect ; he did not say it categorically. 
 
 Q. Did he not expressly tell you that he should write and 
 tell your father how precarious your position in the college was ? 
 
 A. He did not. 
 
 Q. Did he dismiss you from him after having given you this 
 harsh lecture ? 
 
 A. He did. The bell was ringing for night-prayers, and he 
 went out of the room. 
 
 Q. Did you come back to him yourself and beg him not to 
 report you to your father ? 
 
 A. No. 
 
 Q. Did you ask him at all that day not to write to your 
 father?
 
 71 
 
 A. I did not. 
 
 Q. Did Mr. ISTorthcote tell you that he certainly must write; 
 for that if any fresh offence should occur, your father might justly 
 suspect him of having dealt harshly and unjustly "by you ? 
 
 A. He said something like that, but not those words. He 
 did not say certainly that he must write. 
 
 Q. Did he not say that unless he did write, your father might 
 consider he was acting harshly towards you if you were sent 
 away afterwards without notice 1 
 
 A. Yes, he said that. 
 
 Q. Did you say there was no danger, as you would commit no 
 fresh offence or transgression of the discipline of the college ? 
 
 A. I did not. 
 
 Q. What did you say 1 ? 
 
 A. He asked me Avould I promise to "behave myself 'to "give 
 no more trouble," was the expression he used, I think ; and I 
 said I Avould promise. 
 
 Q. Did he say to you, "David, I am risking my character 
 with your father for justice, prudence, and moderation, against 
 your word of honour. Is that safe ?" 
 
 A. He said that just before I left him. 
 
 Q. On that occasion ? 
 
 A. On the second interview I had with him. 
 
 d About the pistol 1 
 
 A. About the pistoL 
 
 Q. The one after prayers ? 
 
 A. The one after prayers. That was the last thing he said 
 as I was leaving the room. 
 
 Q. Did you say to him, " Your confidence shall not be 
 abused"? 
 
 A. I never said any such thing. 
 
 Q. Did you intend to do something afterwards, then ? 
 
 A. I did not. 
 
 Q. Did you give him your word of honour that you would 
 not do any thing, if your father was not written to ? 
 
 A. I promised to give no more trouble. 
 
 Q, I asked whether, when you went back after prayers, it 
 was for the express purpose of asking him not to write to your 
 father ?
 
 72 
 
 A. It was not. 
 
 Q. What did you go back, then, for? 
 
 A. To excuse myself for the injustice which had been put 
 upon me, and also to ask if he was going to write. I at that 
 time intended to write to my father, saying I had been very 
 unjustly treated, and asking him to remove me from the college. 
 In my conversation with Dr. o^ortheote, he promised that he 
 \vould not write, if I would promise to give no more trouble. I 
 intended to write myself, but I changed my mind. Easter was 
 near, and I thought I would not write. 
 
 Q. On the morning after that interview was the punishment 
 \vhich Mr. Xorthcote said he should inflict carried out 1 ? 
 
 A. It was. I voluntarily submitted to it. 
 
 Q. Did Mr. Stone come to you and tell you that it was to be 
 earned out? 
 
 A. No-, I went into the ranks of myself, and went into the 
 study-place. 
 
 Q. Did not Mr. Stone come to you that morning and say 
 " that the punishment was to be carried out, and that you must 
 go to the study-place" ? 
 
 A. I do not remember it. 
 
 Q. But you went to the study-place and studied there ? 
 
 A. I did, and I went to the ranks. 
 
 Q. When first had you any conversation with other boys 
 or students about the Anti-Bunker Confederation ? 
 
 A. I cannot say when. 
 
 Q. Was it after you came back in January? 
 
 A. It was. 
 
 Q. When were these names written that you have in your 
 pocket-book? Were they written at different times? 
 
 A. At different times. 
 
 Q. There are among you boys who are the sons of tradesmen 
 and professional men and others ? 
 
 A. Yes. 
 
 Q. What is the meaning of this which I find here, " Uncle 
 or brother keeps a small' grocery establishment" ? Did you be- 
 lieve it at the time you made this memorandum ? 
 
 A. I do not believe it. 
 
 Q. Did you believe it then ?
 
 73 
 
 A. I did. 
 
 Q. Was an inquiry to be made whether some boy's uncle or 
 brother did keep a small grocery establishment ? 
 
 A. It was not. 
 
 d Why, then, was this written down? 
 
 A. It was written down because it amused the honorary 
 secretary, and amused me too. 
 
 Q. You were a Philosopher, you know. 
 
 A. I was. 
 
 Q. Were you writing down this Avholly for your amusement? 
 
 A. Yes. 
 
 Q. " Uncle or brother keeps a small grocery' establishment in 
 Wednesfield Heath. Father a general inspector of canal locks." 
 Where did you get this information from ? 
 
 A. The honorary secretary. 
 
 Q. What were you ? 
 
 A. I was nothing at all. 
 
 Q. There are five Fitzgeralds who are members of the Con- 
 federation 1 
 
 A. No. 
 
 Q. They are put down here as such. " A. B. C. Fitzgerald 5." 
 What does that mean ? 
 
 A. That there wore five Fitzgeralds in the house, but not five 
 Fitzgeralds A. B. C.'s. 
 
 Q. Just look at this " A. B. C. Fitzgerald, 5;" and tell me 
 whether that did not mean that five Fitzgeralds in the college 
 should be members of the Anti-Bunker Confederation 1 
 
 A. I did not mean it so. 
 
 a * 1 ?" 
 
 A. One * * * 
 
 a "* 2; * 2 j * 1 ; * 1 ;" and so on fourteen in all? 
 A. Yes. 
 
 Q. What are those fourteen ? 
 A. They were not all members of the A. B. C. 
 Q. I ask you what they were 1 
 A. Boys at Oscott. 
 
 Q. So you put their names down and cast the numbers up, 
 and made the whole number fourteen ? 
 A. Yes.
 
 74 
 
 Q. The " A.B. C.," at all events, we know means " Anti-Bun- 
 ker Confederation" 1 
 
 A. Yes. 
 
 Q. Then underneath I see, " Governor Moody elected March 
 6th, for his magnanimous sentiments about Sedgely Park." Then 
 it was going on, at all events, "between January, when you came 
 back, and the 6th of March 1 
 
 A. No ; not in January. 
 
 Q, How soon after January ? February 1 
 
 A. I do not think any thing was done before the 26th of 
 February. 
 
 Q. What was done then ? 
 
 A. All the entries in ink were made on the 26th of February 
 by myself, singly, in my own room, and the entries on the two 
 loose scraps of paper. 
 
 Q. You had a conversation with other boys about this, had 
 you not 1 
 
 A. I showed the entries to some of the boys. 
 
 Q. To what boys 1 
 
 A. To W., for one. 
 
 Q. Did you speak to him about being secretary ? 
 
 -A. Yes. 
 
 Q. You appointed him, you say 1 
 
 A. Yes. I said, " Will you be honorary secretary ]" 
 
 Q. Was it his duty as honorary secretary to make inquiries 
 about these boys ? 
 
 A. No. 
 
 Q. What were his duties, then ? 
 
 A. He had no duties. 
 
 Q. Did he live in the locality? 
 
 A. I do not know where he lived. 
 
 Q. Sedgely Park was a proprietary school, you say, from 
 which a great many of these boys came 1 
 
 A. Yes. 
 
 Q. Were all the boys that came from Sedgely Park called 
 "Bunkers" 1 
 
 A. Most of them were. 
 
 Q. If they came upon charitable funds they were called 
 " Bunkers" ?
 
 75 
 
 A. If they were Church, students, they were called " Bun- 
 kers." I do not know what funds they came on. 
 
 Q. About how many of the Sedgely boys do you think* were 
 in the college altogether as Church students ? 
 
 A. At that time there were about six or seven or eight 
 Church students, and a great many of the " Divines" had come 
 from Sedgely Park. 
 
 Q. Did the " Divines" play in the upper bounds ? 
 
 A. They did sometimes, but not often. 
 
 Q. I suppose that some of these Sedgely students were in 
 such a position that they played there too 1 
 
 A. Decidedly. 
 
 Q. Where else did they chiefly come from, those who came 
 as Church students ? 
 
 A. They chiefly came from Sedgely Park. 
 
 Q. But there were others besides ? 
 
 A. There were. 
 
 Q. Why did you want " all particulars about any of the 
 under-mentioned as to birth, parentage, qualifications, and 
 patrons"? 
 
 A. There were no qualifications. 
 
 d That was written merely as a piece of idle amusement 1 
 
 A. Entirely. 
 
 Q. "Humbug?" 
 
 A. Yes. 
 
 Q. Was this also " humbug" " Consult honorary secretary 
 for information about this ' gentleman,' " with inverted commas ? 
 
 A. Yes. 
 
 Q. "Humbug?" 
 
 A. Yes. 
 
 ^2. Was the gentleman's name F * ""' * ? 
 
 A. Yes. 
 
 Q, Was there such a person at the college 1 
 
 A. Xo. 
 
 a Who was F ** *then? 
 
 A. He had been at the college. 
 
 Q. And I suppose he was a " Bunker " when he was there ? 
 
 A. Yes. 
 
 Q. And was the honorary secretary to inquire about F * * *l
 
 7.6 
 
 A. No ; the honorary secretary came to me one day and told 
 me to write that. I do not say those very words, but something; 
 to that effect. 
 
 Q. It was on the 6th of March that " Governor Moody" was 
 elected for his magnanimous sentiments about Sedgely Park? 
 Did you know, or were you told by Mr. Stone or by Mr. Northr 
 cote, that there had been complaints about the confederation I 
 
 A. Never. 
 
 Q. Were you told by Mr. Northcoto that it had come to his 
 ears that there was a confederation of this sort formed 1 
 
 A. JS T o. 
 
 Q. Did you tell Mr. Northcote that it was all " humbug" at 
 first ? 
 
 A. I did. 
 
 Q. Or nonsense 1 
 
 A. I did. 
 
 Q. Did you tell him afterwards that you admitted 
 
 Mr. Coleridge : Ask him what he said. 
 
 Mr. Karslake : Did you say to him that this society or con- 
 federation was on foot, and that this had been done by you in a 
 fit of spleen or spite ? 
 
 A. No ; but I said that one of the entries was written when 
 I was in a very splenetic mood. 
 
 & Which of the entries was that ? 
 
 A. The first entries of all 
 
 Q. Which are those ? 
 
 A. The entries in ink. 
 
 Q. That is the names of certain persons with the letters 
 " S. P." against them and " P. P."? 
 
 A. The entries in ink in the book and on those two loose 
 scraps of paper. 
 
 a It begins first of all with " L. B. C. S. (one dozen)." I 
 do not know what that means. 
 
 A. List of Bunkers, one dozen. 
 
 a "F. M * * * S. P." Is that Sedgely Park] 
 
 A. Yes. 
 
 a " J. E * * * S. P.," the same place; "E. S * * *,' 
 " M.D '* * * " "Dr. Amherst," is that right? 
 
 A. Yes.
 
 77 
 
 Q. What is Dr. Amherst 1 
 A. The Catholic Bishop of Northampton. 
 Q. Was he the patron of Mr. * * *? 
 A. Yes ; I believe he was. 
 
 a s. A * * * s.p.r 
 
 A. Yes. 
 
 Q. Then there are two more, "* * * *," and "Dr. Clifford," 
 after them ? 
 
 .4. He is the Bishop of Clifton. 
 
 Q. He was a patron, I suppose ? 
 
 A. He was, I believe. 
 
 Q. M * * *, S. P." " J. B * * * S. P. Query, Irish?" 
 Surely you did not object to him on the score of his being Irish ? 
 
 A. London Irish. 
 
 Q. That is a bad form of Bunker, is it ? He ranks before 
 *' J. C , of Stourbridge Potteries" ? 
 
 A. Yes, he does. 
 
 Q. The London Irishman is better than the Potteries' man ? 
 
 A. Decidedly. 
 
 Q. "C * * *f 
 
 A. He was not there at the time. He had left, I think. 
 
 Q. " A. D * * *, of the Bell Inn, Stourbridge." That is 
 smother objectionable form of " Bunker," is it 1 
 
 A. Yes. 
 
 Q. How many men had you spoken to yourself about being 
 members of this society 1 
 
 A. About three or four. 
 
 Q. "Was it to be one of the rules of the society that none of 
 the Bunkers should hold any of the offices which the boys had 
 arnong them ? 
 
 A. No. 
 
 Q. You say there were no meetings regularly convened ? 
 
 A. No ; nor were there any rules ; nor was there any society. 
 
 Q. You have an officer that is called " the public man" ? 
 
 A. We have. 
 
 Q. He is the man among you who manages the games, and 
 so on 1 
 
 A. Hois. 
 
 <3. And communicates with the President ?
 
 78 
 
 A. Yes. 
 
 Q. Is there a librarian also ? 
 
 A. There is. 
 
 Q. Were the " Bunkers" to be prohibited from being public 
 men or librarian ? 
 
 A. No. 
 
 Q. You had no arrangement of that kind 1 
 
 A. I believe that at that time the two librarians were 
 " Bunkers." 
 
 Q. But after that time that I am speaking of 1 
 
 A. There was no such arrangement, and there was no real 
 society at alL It was, in fact, like the mock prospectus. 
 
 Q. I understand you to say that there was no prospectus 
 issued, and that no meetings were convened ; but that you had 
 talked to two or three men about the " Anti-Bunker Confedera- 
 tion" ? 
 
 A. I said to some fellows, " "Will you be an Anti-Bunker ?" 
 
 Q. Did they understand what you meant by it 1 
 
 A. They had a general idea. 
 
 Q. What was the general idea that they had 1 
 
 A. That they were to bear the name of " Anti-Bunkers." 
 
 Q. How do you mean 1 
 
 A. They were to go by the name "Anti-Bunkers," the same 
 as other fellows went by the name of " Bunkers." 
 
 Q. You were to exalt yourselves into "Anti-Bunkers"? 
 
 A. And were so to be called. 
 
 Q. And the " Anti-Bunkers" were to be in opposition to the 
 "Bunkers"? 
 
 A. Yes. 
 
 Q. How was their opposition to be carried out in petty 
 annoyance ? 
 
 A. Certainly not. 
 
 Q. How then? 
 
 A. In no way. 
 
 Q. Then it was " humbug" from beginning to end? When 
 you had this interview with Dr. Northcote, and you talked about 
 it being an absurdity and all that sort of thing, did he tell you 
 that he understood what the character of the society was, and 
 that it was formed for the purpose of annoying these " Bunkers"?
 
 79 
 
 A. No ; he said it was a conspiracy against the peace and 
 -welfare of all the Church students. 
 
 Q. Did he not expressly refer to the Church students who 
 were supported out of charitable funds ? 
 
 A. I do not know how they Avere supported. 
 
 Q. Did he refer to the Church students as being the objects 
 of the confederation ? 
 
 A. He did. He said it was against the peace and welfare of 
 all the Church students in the house ; those were his very words. 
 
 Q. Do you remember his using this expression to you, " It 
 may be all very good fun for you, but it is death to the frogs"? 
 
 A. No. 
 
 Q. You do not remember that 1 ? 
 
 A, "No ; I remember another expression about pitch. 
 
 Q. But did he not say so in that conversation ? 
 
 A. I do not remember it. 
 
 Q. Was not that said by him when you were saying that 
 this was all " humbug" ? 
 
 A. He said something about pitch ; I do not remember that 
 he said any thing about frogs. 
 
 Q. Did you not admit that you were a member of that so- 
 ciety, and did you not say that you got it up in a fit of spleen, 
 or, as you say, in a splenetic mood ? 
 
 A. No ; I did not say any such thing. 
 
 Q. Mr. Stone saw you alone on the morning of the 13th. 
 
 A. He did. 
 
 Q. Did he tell you later in the day that Mr. Northcote 
 wanted to see you ? "Was the message brought by him ? 
 
 A. No. 
 
 Q, He did not 1 
 
 A. He did not. 
 
 Q. Did Mr. Northcote send for you 1 
 
 A. No. 
 
 Q. How came you to see Mr. Xorthcote ? 
 
 A. I said I would go to him myself, and Stone said, " Conic 
 along." 
 
 Q. Did he not at 11 o'clock send for you? Did not Mr. 
 Stone come and say he had been sent by Mr. IS T orthcote for you ? 
 
 A. He did not.
 
 80 
 
 Q. Did you take your book with you to Mr. Northcote \ 
 
 A. Stone took it. 
 
 Q. Was the conversation a long one ? 
 
 A. It was. 
 
 Q. Now I ask you whether the whole of that conversation 
 was not on the subject of the annoyance which this society was 
 going to cause to the boys ? 
 
 A. No ; I think not. 
 
 Q. What else was there ? 
 
 A. I do not remember. 
 
 Q. Did Mr. Northcote on that occasion desire you to go to 
 your room and wait until you were sent for 1 
 
 A. He did. 
 
 Q. And you went ? 
 
 A. I went. 
 
 Q. How came you to leave your room after having received 
 that order from him 1 Were you going down to the boys to see 
 them? 
 
 A. No. 
 
 Q. Where were you going 1 
 
 A. I went to chapel. 
 
 Q. I suppose all the students were there, were they not ? 
 
 A. No, they were not. 
 
 Q. None of them ? 
 
 A. No: 
 
 Q. Who else was there 1 
 
 A. Myself. 
 
 Q. Only yourself. 
 
 A. Yes ; only myself. 
 
 Q. How long were you there 1 
 
 A. About a quarter of an hour. 
 
 Q. Where did you go to then 1 
 
 A. Back to my room. 
 
 Q. Did you remain in your room 1 
 
 A. My room was locked. 
 
 Q. Mr. Stone let you in, I understand 1 
 
 A. Afterwards. 
 
 Q. Was it about half-past one when you say you saw Mr. 
 Northcote again when you went by his room ?
 
 81 
 
 A. Xo; immediately after one. 
 
 Q. How long did that interview last ? 
 
 A. It lasted a very short time. 
 
 Q. Was it at that interview that he said he had seen the 
 hoys and explained to them the reason why you were going ? 
 
 A. Yes ; he did not use those words. 
 
 Q. He told you what he had said to them 1 
 
 A. He said, "I have publicly expelled you, that is what I 
 have done." 
 
 Q. Did he refer to what he had said to the hoys and to a 
 passage he had read from Dr. Newman's hook ? 
 
 A. Yes. 
 
 Q. Was not the passage this? "It is almost a definition of a 
 gentleman to say he is one who never inflicts pain. The true 
 gentleman carefully avoids whatever may cause a jar or a jolt in 
 the minds of those with whom he is cast : he can recollect to 
 whom he is speaking ; he guards against unseasonable allusions 
 or topics which may irritate." Did he read that 1 
 
 A. I remember the first part. 
 
 Q, Did he also read a passage from Fuller's Worthies to 
 you ? 
 
 A I do not remember. He read some extracts from books. 
 
 Q. Did he read this 1 " If his birth be not, at least his quali- 
 ties are, generous. He endeavours by his own deserts to ennoble 
 himself. Thus valour makes him son to Crcsar, learning entitles 
 him kinsman to Tully, and piety reports him nephew to godly 
 Constantino. He is not in his youth possessed with the great 
 hopes of his possessions ; only his parents acquaint him that he 
 is the next undoubted heir to correction, if misbehaving him- 
 self." 
 
 A. I do not remember that. 
 
 Q. When you left 011 that occasion did he tell you to go 
 back to your room; that you were dismissed; and that when you 
 went back, a cab would be obtained for you, and you would 
 leave ? 
 
 A. He said, "Eeally I have nothing more to say to you." 
 
 Q. He had dismissed you before that 1 
 
 A. Yes. 
 
 * Newman's Lectures on University Education, p. 328. 
 
 O
 
 82 
 
 Q. And then you never saw him again? 
 
 A. I saw him again before I left. I asked him a question. 
 
 Q. What did you say ? 
 
 A . I said I was a member of the Oscotian Society ; and I 
 wanted to know whether he expelled me from that too. 
 
 Q. What is that society ? 
 
 A. A society which he has got up among the late students 
 of the college. 
 
 Q. Was what you asked him, whether you might come to the 
 Oscotian meeting ? 
 
 A. He said he would make inquiries; that it was a very 
 difficult case to decide ; that he did not see his way to it. 
 
 Q. That was the last you saw of him before you left ? 
 
 A. It was. 
 
 Q. At what time did you actually leave ? 
 
 A. About a quarter-past three. 
 
 Q. At what time had you been sent with Mr. Stone to your 
 room 1 
 
 A. At about a quarter-past one. 
 
 Q. When you went to your room, you were to pack up your 
 things and go as soon as you could ? 
 
 A. I was to have my dinner first. 
 
 Q. Was what Mr. Stone did, to urge you to get on with your 
 packing ? 
 
 A. Yes. 
 
 Q. And did he tell you that unless you chose to go on with 
 your packing, your things would be sent after you ? 
 
 A. He said he would bundle me out, and my tilings after me. 
 
 Q. You did not pack up your things ? 
 
 A. Yes ; I did pack them. 
 
 d Eventually? 
 
 A. Yes. 
 
 Q. Were you not delaying the packing, and was not Mr. 
 Stone urging you to pack ? 
 
 A. He was. 
 
 Q. Did he tell you expressly, when you asked about your 
 brothers, that your brothers could come to you, but that you 
 -could not see the rest of the students of the college ? 
 
 A. No.
 
 83 
 
 Q. Did you see your cousins ? 
 
 A. Yes. 
 
 Q. You have been talking about Mr. Stone saying this and 
 that to you. Did Mr. Stone expressly, on more than one occa- 
 sion, say, at your request, that he would not tell the President 1 
 
 A. No ; never. 
 
 Q. I ask you as regards the key, whether you did not ask 
 him not to tell about it, and whether he did not say he would 
 not? 
 
 A. I gave him an explanation of it. 
 
 Q. Did you not expressly ask him not to tell 1 
 
 A. No. 
 
 Q. Did you not afterwards say that you would release him 
 from the pledge of secrecy? 
 
 A. I thought he might tell. He had said that he knew 
 a great many things against me, but he would not say any thing 
 about them. He told Dr. Xorthcote that he was under a pro- 
 mise not to reveal them. I asked him what they were, and he 
 would give me no particular answer. I then said that if the 
 key matter was one, he might tell about that as soon as he 
 liked. I imagined that he might be under the impression that 
 he was bound not to tell because he had said he would not. Ho 
 said then he did not care to tell, because he knew it was only a 
 trick. 
 
 Q. When was this 1 
 
 A. This was the 28th of February. 
 
 Q, After the pistol affair? 
 
 A. It was. 
 
 Q. You are a student for the Bar now 1 
 
 A. Yes. 
 
 Q, When did you enter for that ? 
 
 A. In Easter Term 1865. 
 
 Q. Have you finished your University education 1 
 
 A. No; I am still at the University College. 
 
 Q. I must ask you one question. Do you mean that any 
 thing further was done by Mr. Stone as to the pocket-book beyond 
 putting his hand in your pocket and taking it out, when you 
 refused to give it to him ? 
 
 A. No.
 
 84 
 
 Q. You talked about violence ? 
 
 A. I did not say there was any violence. He said that if I 
 did not give it to him at once, he would take it by main force. 
 . Lord Chief-Justice Cockburn : You did your "best to keep it 1 
 
 A. I did. 
 
 Mr. Karsloke: And he took it ? 
 
 A. Yes, he took it. 
 
 Re-examined % Mr. COLERIDGE. 
 
 Q. About this Oscotian Society; did you hear any thing 
 about that, or what made you ask Mr. Jforthcote any thing 
 about it ? 
 
 A. I was a member of the Oscotian Society. 
 Q. Had any thing been said by him to you," when he told 
 you that he had told the boys he had publicly expelled you, as 
 to expelling you from the Oscotian Society 1 
 
 A. He said so to the boys, but he did not say so to me. 
 Q. You had heard that ? 
 A. Xo ; I merely asked him the question. 
 Q. It has been put to you whether you said to Mr. Stone 
 that you had been guilty of a dishonourable act. Did you say 
 any tiling of that sort ? 
 
 A. Certainly not. I gave him an explanation of the matter. 
 He said that he ought not to have been in my room ; that I had 
 explained the matter, and that he would say nothing more 
 about it. 
 
 Q. If this kind of notice had not been taken of the Confede- 
 ration, would it have died a natural death ? 
 
 A. It would have died a natural death. It had collapsed then. 
 Q. There are fourteen persons mentioned as members of the 
 Anti-Bunker Society. Did you speak to every one of those 
 persons or not ? 
 
 A. Not to more than four or five. 
 Q. You never spoke to the others at all ? 
 A. 2s T o. 
 
 Q. Their names were put down there, then, without their 
 authority, and they knew nothing at all about it 1 
 A. They did not. 
 Q. And they never would have known, probably ?
 
 85 
 
 A. They never would have known. 
 
 Q. Had you yourself friends among the Church students ? 
 
 A. I had personal friends among them. 
 
 Mr. JOHN FITZGERALD sicorn. 
 
 A Juror : I think, my Lord, we have heard quite enough j 
 and the jury seem rather to wish to come to a decision. 
 
 Lord Chief-Justice Cocklurn : You have not heard the other 
 side yet. 
 
 Mr. Coleridge : I am sure I do not want to keep the gentle- 
 men of the jury here. I do not know that we need trouble Mr. 
 John Fitzgerald ; but I will just call Mr. Justice Fitzgerald. 
 
 The Eight Hon. JOHN DAVID FITZGERALD sworn. Examined by 
 Mr. COLERIDGE. 
 
 Q. You are a judge of the Court of Queen's Bench in Ireland? 
 
 A. I am. 
 
 Q. And a member of the Privy Council 1 
 
 A. Yes. 
 
 Q. For some time you were Attorney-General for Ireland ] 
 
 A. I was Attorney- and Solicitor-General for five years. 
 
 a. You are the father of the Plaintiff? 
 
 A. I am the father of the Plaintiff. 
 
 d Up to the time at which you found your son in your house 
 in Merrion Spuare, had you any intimation whatever from Mr. 
 Northcote that matters were otherwise than perfectly harmonious 
 between them ? 
 
 A. Never. I had repeated communications with Mr. North- 
 cote, both personally and by letter, all the time he was President 
 of the College, and I never heard a word of complaint of my 
 son's conduct. My last letter to him was written on the 6th of 
 February previous, when I remitted him a sum of 176Z. in ad- 
 vance* for the current half-year that is, to the end of last 
 Midsummer; and in all that time I never heard a word from Dr. 
 Northcote except of praise. I am wrong. On one occasion, in 
 1862, I remember there was a complaint that on the breaking 
 up for the summer holidays of 1862, my son, with a young gen- 
 tleman of the name of * * * and three or four others, had been a 
 * i.e. a portion of this sum was the pension in advance.
 
 86 
 
 little turbulent, insisting on singing in the dormitory, " We will 
 all; go home in the morning." During the whole time that my 
 son was there, that was the only complaint that I ever heard of. 
 
 Q. Then it was a great surprise to you to see him at your 
 house? 
 
 A. It was more than a surprise ; it was a great shock to me. 
 
 Cross-examined by Mr. KARSLAKE. 
 
 Q. Did you know upon any occasion of his having been kept 
 back for some hours after the other boys ? 
 
 A. That is the occasion I refer to. It was at the time of the 
 Great National Exhibition. I had directed him to come to Lon- 
 don. His two brothers came, and he did not; and on my writing, 
 an explanation came from Dr. Northcote to that effect that is, 
 of the singing in the dormitory. 
 
 Q. Knowing that he had been kept back, you telegraphed, 
 did you not, for him to come ? 
 
 A. Not knowing why he had been kept back. 
 
 Q, But he was kept back? 
 
 A. Yes ; for three or four hours. 
 
 Q, You learnt that he had been kept back as a punishment 1 
 
 A. For singing in the dormitory on a sort of carnival night 
 the night of the break-up. 
 
 Q. You admit that that was a fit matter for the exercise of 
 Dr. Northcote's discretion ? 
 
 A. Yes ; I do not complain of that. 
 
 Q. Every letter from Dr. Northcote was written in a spirit of 
 kindness towards the boy always appearing to take the greatest 
 interest in him? 
 
 A. Yes ; always taking the greatest interest in him. 
 
 Q. Was there not a letter which you received in which he 
 pointed out to you that the fault, and the only fault that he could 
 find with your boys, was that there was a certain amount of grum- 
 bling and discontent on their part when they were subjected to 
 punishment? 
 
 A. No ; not exactly that. 
 
 Q. You have the letter I refer to ? 
 
 A. No, I have not. I do not know whether the attorneys 
 have such a letter. On that occasion, after they had been at
 
 8* 
 
 home some time for the summer>acation not at their instance, 
 but collecting from their conversation that they had some causes 
 of complaint about the food of the college, and some about the 
 absence of proper sanitary regulations I did write about those 
 complaints to Dr. Xorthcote ; and in his reply he complained, I 
 recollect, of their grumbling. 
 
 Q. I should be glad to see the letter. May I take it that 
 this is the substance of what he said, that the fatdt he had to 
 find -was, that when they were a little bit rebellious, they would 
 not take their punishment without complaining 1 
 
 Mr. Coleridge : This is the letter : 
 
 " Many thanks for the cheque : and as to the list of grievances which 
 accompany it, I am sure you will allow me to be as plain-spoken as your- 
 self ; and if I must say what I really feel about them, it would be this 
 that they quite come up to the popular English notion of 'Irish griev- 
 ances ;' a notion -which, as it is commonly held, I entirely dissent from. 
 They seem to me to savour strongly of what is supposed to be the na- 
 tional characteristic of supporting any thing ' against the Government.* 
 For if there is one thing on which Oscott would more willingly challenge 
 comparison with any college in England than another, it is the matter 
 of eating and drinking. ****** But, joking 
 apart, I am really extremely sorry to find your boys making complaints 
 of this sort. It is one of the principal faults in the characters of the 
 two eldest (I have not heard it spoken of in Gerald) that they seem 
 f to think nothing good enough for them, and that it ought to be some- 
 1 body's duty to shield them from every possible ill or inconvenience." 
 
 ; and so on. 
 
 The Witness : I now recollect, my memory having been re- 
 freshed by reading that letter, which I have not read since, that 
 the complaints which were made were complaints coming from 
 myself, in consequence of my having overheard the conversation 
 of the boys. The complaints principally referred to rancid 
 butter, and to the tea and sugar being mixed together, and 
 poured from a common vessel. I called Dr. Northcote's atten- 
 tion to that ; and I should add that these grievances were re- 
 moved afterwards, though Dr. ]S T orthcote expressed himself so 
 strongly against their existence.* 
 
 Mr. Karslake : Your son did not complain of them ? 
 
 A. I inquired into the matter. 
 
 * The tea never had been made in the way supposed ; nor was any 
 change whatever made in consequence of these complaints.
 
 88 
 
 Q. Did you receive a letter from Dr. Northcote, in which, 
 among other things, he told you that the fault he found with 
 the boys was grumbling when they were subjected to any sort 
 of punishment ? 
 
 A. I do not recollect any such thing, except in the letter 
 that has been read. 
 
 Q. Was there not a letter in which he said there was a great 
 spirit of pride and petty rebellion ? 
 
 A. Decidedly there was no such expression in any of his 
 letters. There was neither that expression, nor any thing in 
 substance like it. 
 
 Mr. Coleridge : If my friend likes to have all the letters put 
 in, he is exceedingly welcome to them, and, of course, may make 
 any use of them he can. 
 
 The Witness : I made a careful search for all letters, and I 
 sent them all across. 
 
 Re-examined by Mr. COLERIDGE. 
 
 Q. You say you do not know of any other letters being in 
 existence except those that have been produced here ? 
 
 A. No. 
 
 Q. Do you remember any letter containing such an expres- 
 sion as that which my friend has just put to you ? 
 
 A. Nothing like it, either in form or in substance. 
 
 Q. That the fault he had to find with them was their 
 grumbling and discontent when they were subjected to punish- 
 ment? 
 
 A. No. 
 
 Mr. Coleridge : That, my Lord, is the Plaintiff's case. 
 
 Mr. Kar slake : May it please your Lordship : Gentlemen 
 of the Jury, When you say that you have heard enough of the 
 case already, and that you are prepared to come to a decision 
 at once upon it, it is right that I should ask you, at all events, 
 to hear both sides before you come to a decision ; because, 
 gentlemen, it is not always that, when a plaintiff comes before 
 you and gives his own evidence, you can make up your minds 
 quite safely as to whether the issues (and they are somewhat 
 complicated ones in this case) ought, or ought not, to be found
 
 89 
 
 against the defendants ; and I am quite sure that you will sus- 
 pend your judgment until you have heard the Defendant's evi- 
 dence, and until you have heard from my Lord what the real 
 question is that you have to decide ; a question, let me say, of 
 very considerable importance to Dr. Northcote, who is the prin- 
 cipal defendant here, and who, of course, as President of this 
 College, over which he exercises jurisdiction, has a deep interest 
 in showing that he has not been guilty of that which my friend 
 designated as conduct which ought not to have been exhibited 
 to a youth such as Mr. Fitzgerald, and that he has not been 
 guilty of that cruel and heartless misconduct which he is alleged 
 to have exhibited towards Mr. Fitzgerald's father. 
 
 Gentlemen, there is one matter as to which I confess I 
 felt some surprise. My friend, in an amusing and somewhat 
 inflammatory address, with which he occupied some time this 
 morning, called your attention to several letters, and intimated 
 that young David Fitzgerald was sent away from Oscott College 
 without any letter, and without any intimation of any sort or 
 kind having been made to his father of the reason why he was 
 sent away. It may not have occurred to your minds that, 
 although no letter was taken by the hand of David Fitzgerald 
 when he left the college in March 1864, yet that there was a 
 letter written by Dr. Northcote to Mr. Fitzgerald's father, in 
 which the whole history Avas given as to the reasons which 
 actuated Dr. Northcote in sending him. away at once ; and I 
 think that my friend, before he closed his address, ought, in 
 justice and fairness to Dr. Northcote to have laid the terms of 
 that letter before you. Gentlemen, that letter was posted on 
 the very day on which David Fitzgerald left, and it reached 
 Judge Fitzgerald the next morning in due course of post imme- 
 diately after he had seen his son, Mr. David Fitzgerald. From 
 the first, therefore, the Judge knew perfectly well what the 
 charge was which was made against his son ; and I think that 
 when my friend was heaping the amount of odium on Mr. Xorth- 
 cote, and Mr. Stone his coadjutor, that he did this morning, 
 he might at least have told you that a letter was written, and 
 sent by the post on the very day on which Mr. David Fitzgerald 
 left, explaining all the circumstances under which Mr. Northcote 
 had found it necessary to order him to leave the college. Let
 
 90 
 
 me just call your attention generally to the letter which iny 
 friend did not read in his opening speech; and I pray your 
 particular attention to it, "because it is, in point of fact, the 
 case I am going to set up before you ; it is the case I am in- 
 structed to set up "before you ; and by the view you may take 
 of his conduct on that occasion, with the knowledge he then 
 had of the existing state of things, Mr. JSorthcote is ready to 
 stand or fall to-'day. 
 
 Gentlemen, I need not call your attention to the difficult 
 position in which Mr. Northcote was placed. He is a gentle- 
 man who has been elected for the purpose of acting as President 
 of this College. He is placed there to preside over an establish- 
 ment in which including boys and masters there are about 
 200 persons, all living under the same root Among those there 
 are 120 or 130 students of different grades, some of them being 
 the more privileged class as the Philosophers and Poets we 
 have heard of and some of them being comparatively small 
 boys. Over the whole of this establishment Mr. Northcote has 
 to exercise his supervision. The constitution of the college, and 
 the character of the boys who are sent there, and the circxim- 
 stances under which they are sent, will be explained to you; 
 and you will find that they have a very material bearing indeed 
 on Mr. ISTorthcote's conduct. Gentlemen, my friend is wrong 
 in stating to you that out of the moneys which are paid by the 
 richer students those who are not so well able to afford to pay 
 for their education are maintained. Such is not the case. There 
 are a certain number of students Avho, like Mr. Fitzgerald, are 
 the children of men of wealth and opulence, who are well able 
 to pay for their education in the college ; and there are others 
 who are sent there on charitable funds, or on funds subscribed 
 and obtained from different sources, and those are generally 
 Church students. The whole of those students are mixed up 
 together in the school ; and I need not tell you that if the 
 President of that institution were to allow young gentlemen 
 who prided themselves on their high birth and position like 
 Mr. Fitzgerald to snub and cold-shoulder those who do not 
 possess the same advantages as they themselves enjoy, the 
 college might as well be at once shut up ; for it would be impos- 
 sible for youths except in the rank of Mr. Fitzgerald to go
 
 91 
 
 there; or, if Mr. Fitzgerald and liis friends were allowed to go 
 there, then the other class of students must be excluded alto- 
 gether. 
 
 Now, gentlemen, I will call your attention to the state of 
 tilings which existed at the time when Mr. Northcote became 
 President of this College. Mr. JSTorthcote, when he came there, 
 knew perfectly well as every master and every person there 
 knew that there had been a strong feeling exhibited by some 
 of the boys in the higher classes in the school against those 
 whom they chose to call " Bunkers." I know that when these 
 things are described before a jury, they are calculated to raise a 
 smile ; and you laugh with and sympathise with young Mr. 
 Fitzgerald, who represents that all his acts were of an innocent 
 character, and that he simply did that which is continually 
 done by boys at every school ; but you will look a little deeper 
 into the matter by and by, and say whether it was possible for 
 Mr. JSTorthcote, having regard to the interest of the college of 
 which he was the superior, and having regard to the interests of 
 that class of boys who had to look to him for protection, in the 
 event of their being snubbed or ill-treated by other boys in the 
 school, to act otherwise than as he did. When he sent David 
 Fitzgerald away from the college, he did so most reluctantly, for 
 he was fond of the boy, and had taken more than ordinary care 
 of him, and felt more than an ordinary interest in him. He 
 had, however, good grounds for believing or, at all events, he 
 had what he considered good grounds for believing that there 
 was an improper feeling existing among some of the higher boys 
 in the school, and that measures were being taken for the pur- 
 pose of degrading those students who, as they considered, were 
 of a lower grade than themselves, and who were not able to 
 afford out of their own or out of their parents' funds the means 
 to pay for their education, and who were maintained out of funds 
 obtained from different sources. Gentlemen, years ago, in this 
 school, or in this college, which was originally established for 
 the benefit as I believe you will find of the clergy, or those 
 who had been educated for the Church, it was determined that 
 lay students should be admitted. They were admitted, and the 
 students in the college were then all mixed up together ; and 
 I believe that, after the change had been made, a feeling exhibited
 
 92 
 
 itself on the part of the lay students against the clerical students, 
 which produced a most disastrous effect. That feeling, however, 
 had died out to a very considerable extent ; and when young Mr. 
 Fitzgerald went there, as he told you, although he did not know 
 the name of " Bunker," he found very little distinction was made 
 between the clerical and the lay students ; and I believe he is 
 perfectly accurate in saying that until somewhere about February 
 or March 1864 the spirit which had once existed seemed to have 
 died out, and it had never been revived up to that time. 
 
 Gentlemen, I appeal to the letters which were written by 
 Mr. Northcote to Judge Fitzgerald, and I ask you to say look- 
 ing at the tone in which those letters are written whether Mr. 
 iNorthcote had any ill-feeling of any sort or kind towards young 
 David Fitzgerald. I find that in July 1863 (I think that was 
 the date), he had left, and at that time he did not contemplate 
 coming back again. It was upon the suggestion of Mr. iN^orth- 
 cote himself, after it had been found that it was not expedient 
 to send young David Fitzgerald to Trinity College, that he came 
 back, mainly for the purpose of being perfected in the classics, 
 he having at that time gone through the course of philosophy, 
 and having obtained the highest position in the college. He 
 came back, as you will find by the letters, not as my friend 
 suggests, as a 'sort of exceptional pupil, but he was to be bound 
 by the rules of the college and by the discipline of the college, 
 and he was to be under the President and Prefects just the same 
 as any other student in the college might be ; but he was to this 
 extent excused from, attending lectures, that he attended only 
 those lectures which bore on the particular class of studies that 
 he was anxious to pursue. For that purpose he attended the 
 classical classes, though he did not attend those for mathe- 
 matics, and so forth. That was the state of things in Sep- 
 tember 1864. If there were any distinction to be made be- 
 tween young Mr. Fitzgerald and the generality of the boys, 
 I should say that young Mr. Fitzgerald, being received there 
 as an act of kindness rather on the part of Mr. l^orthcote, ought 
 to have been doubly cautious that his conduct was of such 
 a character as could never give offence to the Principal of the 
 College ; and I should have thought also that, coming back to 
 the college in that way, he would have taken the utmost care
 
 93 
 
 never to come into collision with a person who, so far as we may 
 judge from his conduct in the box, he seems to have treated 
 with the most profound contempt, calling him "Stone," and 
 speaking of him as a person to whose control and authority he 
 was not bound to submit. What was the first thing that was 
 done 1 ? It is all very well for my friend to say that "boys will 
 be boys /' but I ask, was it right or proper for young Mr. Fitz- 
 gerald, when he came back, and before he left in 1864, to have 
 in his room a party of boys, and to give them spirits, knowing 
 that it was altogether contrary to the rules of the college to do 
 so, and that if he was caught at it, the consequences would be 
 most serious to him] Was it right or proper that he should 
 induce other boys to join him in doing that which both he and 
 they knew to be wrong 1 It happened that at the time he was 
 not found out ; and having gone away for the vacation, he re- 
 turned to the college at the end of January, it being intended 
 that he should continue there for some months before going to 
 University College, and before going to London to reside. Be- 
 fore this last occurrence, when, as Mr. Northcote thought, it 
 was utterly impossible, having regard to the interests of the col- 
 lege, and having regard to the welfare of the students, that he 
 should remain any longer in the college ; when, having first 
 confined him to his room, he sent him away in consequence of the 
 existence of what he believed to be a dangerous combination, 
 of which young Fitzgerald was the head, and which had been 
 formed for the purpose of annoying a large class of the members 
 of that college, Mr. Fitzgerald commenced a series of breaches 
 of discipline, to which I will call your attention shortly; because 
 you will find, in the course of the narrative, that they have a 
 very material bearing on the conduct of Mr. Northcote. First 
 of all, we find that, on the 23d of February, he being at that 
 time under punishment, and it being as well known to Mr. 
 Fitzgerald as it was to every other student, that it was entirely 
 against the rules of the college that he should go to any public- 
 house in the neighbourhood, he, being confined to the bounds, 
 broke those bounds, and was found at a public-house, where 
 in the afternoon he was, with other students, playing at baga- 
 telle. I know, when that is stated, and a boy comes and says, 
 " I went there with two other fellows, and I meant no harm
 
 94 
 
 "by it," one is very apt to say that the best thing is to take no 
 notice of it. But suppose all the boys in a public school are 
 doing the same thing ; and suppose the monitors, and those who 
 ought to set a good example to the other boys, are found to 
 be wilfully defying the masters and the authorities, and to be 
 taking the law into their own hands, and going to public-houses, 
 and going out of bounds, I do not say they -may not do it, and 
 do not do it, and that they will not continue to do it ; but I 
 do say, that if they are discovered, and if they receive such 
 punishment as the President thinks it proper to inflict upon 
 them for such an offence, neither they nor then- fathers ought 
 to turn round and complain that they are hardly used by the 
 President taking such a course as he thinks it essential to take 
 in order to maintain the discipline of the establishment. 
 
 Then, gentlemen, you will find that, only a few days after- 
 wards on the 27th he does that which again causes in court a 
 smile, and it is said there is no great harm in it. It is difficult 
 from the mere description given by a witness on one side or the 
 other to appreciate exactly the conduct of any boy or young 
 man on any particular occasion when it is detailed some few years 
 afterwards. What was the charge? It appears that he had 
 taken a boy, named * * *, out with him into the planta- 
 tions, and in defiance of all authority, and contrary to what he 
 perfectly well knew to be the rules of the school, he had done 
 that which, I will venture to say, at the public schools that were 
 mentioned by my friend in his opening speech would in all pro- 
 bability have induced the head-master especially if the boy had 
 committed other offences against the discipline of the school 
 to send him away. You find Mr. David Fitzgerald going out 
 into the plantations with a boy who was liable to suffer corporal 
 punishment which you hear is sometimes inflicted even at 
 Oscott with* a double-barrelled pistol, with which they were 
 amusing themselves. Of course David Fitzgerald knew perfectly 
 well that his being in the plantations with a pistol, when he 
 was under penance, was utterly against the rules of the house 
 and of the institution to which he belonged. But that was not 
 the worst. You will hear from Mr. Stone what occurred ; and 
 you will hear whether David Fitzgerald was not on that occa- 
 sion guilty at least of equivocation, when he was charged by Mr.
 
 95 
 
 Stone with having committed that breach of discipline ; and he 
 is degraded by having to study in the common room, instead 
 of in the room that is usually appropriated to the use of the 
 head boys in the establishment. He is told that that penance 
 is to be suffered by him until Easter ; and, under the circum- 
 stances, Mr. Northcote told him that it would be impossible for 
 him to overlook any future breaches of discipline, because he had 
 at that time done all he could do to punish and degrade him, 
 and that, in the position in which he stood in the college, there 
 was no other punishment that was applicable to his case. Young 
 David Fitzgerald tells you, " I was in such a position that cor- 
 poral punishment could not be inflicted upon me. I was in 
 such a position, as Mr. ISTorthcote told me, that having, as an 
 ordinary thing, a private room of my own, to which I might go 
 at all times, when I was not required to be at lecture, if that 
 private room was taken away from me, the very object of my 
 being at the college would be defeated." Mr. Northcote said, 
 " I can do nothing further ; if you choose to go on setting at 
 naught the rules of this house, the result will be that you will 
 have to leave the place altogether." I beg your particular atten- 
 tion to the warning that was given to him at that time. Mr. 
 Northcote said " Now mind, although I have overlooked other 
 faults, I must write to your father on this subject." That seems 
 to have created some impression on David Fitzgerald's mind, 
 for he came back, and begged Mr. Northcote most earnestly not 
 to write to his father, and gave him his word of honour, that if 
 he would not write, no further breach of discipline should be 
 committed by him, and that no further cause of complaint 
 against him should arise. Mr. Northcote may well regret now 
 that he took that boy's word as he did, though I have no doubt 
 that the boy at the time fully intended to keep it. Mr. North- 
 cote said to him, " You see you place me in a very serious posi- 
 tion ; because, if I do not write to your father, in consequence 
 -of your promise not to offend again, what will be the conse- 
 quence if your promise should not be kept 1 If you break your 
 promise, I shall have to dismiss you from the College ; and then 
 such treatment of you will be considered harsh and unkind." 
 Young Mr. Fitzgerald upon that gave his most solemn promise 
 to Mr. Northcote that nothing of the kind shoiild occur again ;
 
 96 
 
 and upon that promise being given, the young man was allowed 
 to remain in the college without any further notice being taken 
 of what had passed, and without any thing being said to the 
 father on the subject. 
 
 Gentlemen, I come now to that which immediately pre- 
 ceded the conduct which caused the dismissal ; and I refer to 
 it now particularly, because, when I come to say a few word* 
 to you upon the evidence as to Mr. Stone, I shall have to make 
 an observation or two as to the use of the key which was referred 
 to in the course of Mr. Fitzgerald's examination. 
 
 Xow I have told you that there was as Mr. David Fitz- 
 gerald himself says a class of students in this college who were 
 peculiarly circumstanced. I daresay I address some gentlemen 
 who have been at schools where a distinction has been made be- 
 tween " full boys" or " tug muttons" as they used to be called 
 and others ; and although it may sound ridicxilous enough in 
 court, yet you may know perfectly well the annoyance to which 
 boys are subjected from other boys, when they do not happen to 
 be in the same class as those who consider themselves the aristo- 
 cratic members of the school. It happened that in this college 
 there were a great number of clerical students and I pray your 
 attention to this that a great many clerical students were boys 
 who came originally from a sort of preparatory school, called 
 Sedgely Park, and they almost all came there for the purpose of 
 receiving such an education as would fit them afterwards for oc- 
 cupying the position of priests. Those were the boys against 
 whom persecution had arisen many of them not being in the 
 same class or in the same social position as Mr. Fitzgerald and 
 others with whom he combined for the purpose of annoying 
 these young men. I need not tell you that, if it be the fact 
 that there was an association formed, of which Mr. Fitzgerald 
 was a member, the object" of which was to cold-shoulder and 
 to insult those who were in the same school, and who used the 
 same playground as they used themselves ; if the object was 
 to keep them at arm's-length, and to insult them more by tone 
 and manner than by actual language; if the object -was to 
 insult those young men on account of their poverty, or because 
 they came there on funds provided by charitable persons or in- 
 stitutions you can well imagine that nothing could be more
 
 97 
 
 detrimental to the college of which Mr. Northcote was the head ; 
 and that nothing could be more cruel towards the young men 
 who were made the objects of that persecution. I shall have to 
 ask you whether you think young Mr. Fitzgerald's statement as 
 to what did occur in March is strictly right or not. Mr. Fitz- 
 gerald is a man against whose talents and learning I have nothing 
 on earth to say. Mr. I^orthcote, as you will find, had the greatest 
 possible pride and pleasure in his pupil, who I hope, and have 
 no doubt, has a distinguished career before him. The simple 
 question that you have to consider is not a question whether Mr. 
 David Fitzgerald was ever guilty of an act of immorality that 
 is not the question at all. The question is Was he, or was 
 he not, combining with others for the purpose of annoying these 
 young men, who were not in the same social position as himself 1 
 Was he, or was he not, forming a confederacy most dangerous to 
 the interests of the college, and which not only justified but 
 obliged Mr. Xorthcote to take the step he did take, of dismissing 
 him from the college, in which he was then sowing the seeds of 
 disaffection ? It came to the knowledge of Mr. Xorthcote, or to 
 the knowledge of one of the prefects of the school, some days 
 before the 1 3th of March, that there was a society in the course 
 of formation which was talked about and commented upon by tbe 
 Church students in the college a society to be called the " Anti- 
 Bunker Society ;" the objects of which were believed to be, and 
 which I think you will find were, to insult these "Bunkers" as 
 they chose to call the Church students who were maintained on 
 charitable funds, and to treat them as persons who were inferior 
 in degree and class to those who combined against them, who 
 called themselves the "Anti-Bunker Confederation;" of which 
 society Mr. Fitzgerald was the head and the prime mover. Before 
 the 12th of March this had been brought to the notice of Mr. 
 Stone and other persons in the college. An investigation was 
 made, and it was found or there was a widely-spread belief, at 
 all events that such a combination existed. On the 14th of 
 March Mr. Fitzgerald was mentioned to Mr. Stone as the ruling 
 spirit in that confederation ; and Mr. Stone, acting upon his own 
 judgment in the matter, did find that pocket-book of Mr. Fitz- 
 gerald's, which, as he considered, bore out to a very considerable 
 extent the statement which had been made to him, that there was 
 
 H
 
 98 
 
 such a society in existence, and that it had been formed for the 
 purposes I have mentioned. 
 
 ]Sow, gentlemen, let me call your attention to what is put 
 down by Mr. Fitzgerald himself, He says that all this -was -writ- 
 ten down by him merely as humbug, or for amusement It is a 
 question for you -whether that -was so or not. As late as the 6th 
 of March -we find an entry, -written by Mr. Fitzgerald himself, 
 stating that Governor Moody -was " elected March 6th, for his 
 magnanimous sentiment about Sedgely Park." "What was that 
 magnanimous sentiment 1 It -was, " Do not make such a noise ; 
 it is more like Sedgely Park than Oscott" You find that there 
 is an honorary secretary appointed. Then there is " L. B., C. S. 
 (one dozen);" that is said to mean " Last of Bunkers ;" and then 
 there are the names of a number of students put down, all of 
 whom have been sent from Sedgely Park. Besides those, there 
 are two others, who seem to have left in January 1865. There 
 are two men, named C * * * and D * * *, who seem also to 
 have been put down in the list of these Bunkers who were to 
 be avoided : and besides that there is a Mr. B * *, from Sedgely 
 Park, who seems to have been considered by Mr. Fitzgerald 
 as the lowest pariah because he was " London Irish." Then 
 there is a memorandum that the uncle or brother of some par- 
 ticular person " keeps a small grocery establishment in "Wednes- 
 field Heath : father, a general inspector of canal-locks; authority, 
 honorary secretary A. B. C. H * * * W * * * Then there are 
 put down the names of the Anti-Bunker Society, and they consist 
 of fourteen ; five Fitzgeralds, one W * * *; and so on. Then we 
 find there is a man named * * *, who seems to have been ob- 
 noxious ; for there is a note here, " Consult honorary secretary for 
 information about this gentleman;" the word "gentleman" being 
 in inverted commas, as much as to say the " honorary secretary 
 knows why we should not treat him as a gentleman." "We then 
 find, " "We want all particulars about any of the undermentioned 
 as to birth, qualifications, and patrons." Patrons are the persons 
 who send particular boys to the college, and they are generally 
 Roman Catholic Bishops. 
 
 Then, gentlemen, having discovered that there was the ex- 
 istence of this society, and it being known what the effect of it 
 TOS likely to be, you will hear from Mr. Xorthcote and Mr. Stone
 
 99 
 
 the steps that were taken. Mr. Xorthcote had young David 
 Fitzgerald before him, It is very well for him to say here that 
 he was expelled from the college without the least opportunity 
 being afforded to him of making his defence ; but you will find 
 that he was interrogated upon this subject that he denied all 
 knowledge of the society that he treated it as an absurdity or as 
 fun ; and that he was told by Mr. Xorthcote, "It may be very good 
 fun for you, but it is death to the frogs." You will hear from 
 Mr. Xorthcote that he talked to him upon the subject for some 
 time, and explained to him most fully the reason why he was about 
 to take the step he did ; that he told him that a society like this, 
 formed by those who set themselves up as the aristocrats of the 
 college, could not be permitted, and that the only course for him 
 to take was to tell Mr. Fitzgerald that he must leave the college 
 then and there, and no longer be among the boys, among whom 
 he was stirring up a spirit of disaffection. He was sent back to 
 his room. He remained in his room for some tune ; and after that 
 he was again seen by Mr. Xorthcote. Mr. Xorthcote again ex- 
 plained to him why he was to go, and why he could no longer 
 be allowed to continue at the college. He pointed out to him 
 that, if he was a member of such a conspiracy and such a confe- 
 deration, and still more, if he was the originator of it, it was in 
 his view absolutely necessary, having regard to the interests of 
 the college, that he should at once leave. Upon that, young 
 Mr, Fitzgerald was sent to his room, with instructions to pack up 
 his things as speedily as possible. His door was locked, in 
 order that he might not communicate with any of the boys who 
 had been members of the society, or with other members of the 
 college ; and at three o'clock in the afternoon, after having been 
 seen by Mr. Stone, he finally left the place. Mr. Stone will de- 
 scribe to you his own conduct; and. he will tell you that on that 
 occasion Mr. Fitzgerald said he would not hurry himself ; but 
 upon being told by Mr. Stone, that unless he packed up at once 
 he would be sent off, and his things would be sent after him, 
 he did proceed to pack up his things ; and at three o'clock a 
 cab came to the door, in which he went away. He went to 
 Ireland that night : and he was himself followed by the letter 
 to which I am now about to refer; which letter was written on 
 the very evening of the day on which he left.
 
 100 
 
 Before, however, I refer to that letter, I will just say a word 
 with reference to something that was stated by Mr. Justice Fitz- 
 gerald himself. You have heard that one of the things that \vas 
 thought most improper on the part of young Mr. Fitzgerald Avas 
 this, that when he came back in January 1865 he behaved 
 wrongly with regard to the use of a key which had been lent 
 to him by Mr, Stone. Mr. Stone had a key which fitted the 
 door of the room to which David Fitzgerald was to go when he 
 came back to the college in January; and he lent him that key, 
 which was a master-key, opening all the doors in that part of 
 the building, with express instructions to giye it back to him at 
 once. It was not returned until the next day, when Mr. Stone 
 found that something had been done to it ; an impression of the 
 key had been brought to him ; and he found that there was a 
 certain amount of wax sticking to the key itself. Mr. Stone 
 spoke to young Mr. Fitzgerald, and asked him what had been 
 done to the key. Mr. Fitzgerald, as was his custom, made light 
 of the matter ; but he afterwards stated that the object had been 
 to get a duplicate key made by a man at Erdington. He was 
 spoken to seriously about it by Mr. Stone. He expressed his re- 
 gret at what he had done ; admitted that he had been guilty 
 of dishonourable conduct in wishing to have a duplicate of that 
 key; and expressly asked Mr. Stone not to repeat it to the Pre- 
 sident. Mr. Stone, as you will find, was most forbearing on 
 that occasion, and on others also, by not reporting things that 
 would operate prejudicially against him with Dr. JSTorthcote. 
 
 Now, gentlemen, I will read to you what was written by 
 Mr. Northcote on the 13th of March, after the dismissal. 
 
 [Here was read the letter given in p. 5.] 
 
 That was followed by other letters, which you have heard read ; 
 Mr. Justice Fitzgerald having, immediately on the return of his 
 son David, taken away his other boys, and then having written 
 to Mr. N~orthcote to say that he waited for an explanation of 
 conduct which he considered most improper. 
 
 This, gentlemen, is the case which I have to lay before you. 
 As regards the position of this young man in the school, about 
 which so much has been said, I say that he was to all intents 
 and purposes one of the pupils in the school, and was subject to 
 precisely the same discipline as every other boy. It is true he
 
 101 
 
 was there mainly for one purpose and with one object, and that 
 object was kept in view. For all other purposes, he was in the 
 highest grade in the school ; but he was still in statu pupillari. 
 Let ma call your attention to a letter written by Mr. I^ortL- 
 cote on the 12th of December. In that very letter we rind Mr. 
 Northcote pointing out to him that certain books will be read; 
 and as regards other matters, that it is expedient he should not 
 attend the London University. He says : "In the London 
 University the discipline depends wholly on the individual : I 
 am told that a student may run into all kinds of excess." In. 
 December, therefore, it was expressly notified that if he came 
 back, he should remain for six months more in statu pupillari, 
 and should be subject to the discipline of the college until the 
 proper time should arrive for his going up to the London Uni- 
 versity, when that University having no local habitation he 
 would have to live either in London or elsewhere, without being 
 in any way subject to the control of the principals. It was under 
 those circumstances that he came back. 
 
 You have heard what the breaches of discipline were. The 
 issue for you to determine will be this, it is' an inconvenient 
 one to have raised in this form ; it is an inconvenient thing for 
 any head-master to be told that with respect to any punishment 
 he may have inflicted on a boy he is to be liable for it in a court 
 of justice ; the question for you will be, whether, under the 
 authority delegated to Mr. iNbrthcote by the father, and under 
 the authority which he had as ostensible and real head of this 
 college he being answerable for the discipline of the college, and 
 bond fide believing, as he did, that there was a scheme on foot 
 which, if carried out, would be extremely detrimental to the in- 
 terests of the college he had a right to imprison young David 
 Fitzgerald, as he did, and to inspect his pocket-book, as he did, 
 for the purpose of gaining information as to whether the disci- 
 pline of the college was being set at naught, and the interests of 
 the college compromised. 
 
 Lord Chief-Justice Cockburn : As I understand it, the pocket- 
 book was taken possession of after they had obtained the in- 
 formation. 
 
 Mr. Karslahe : It was necessary for them to get, if they 
 could, further information.
 
 102 
 
 Lord Chief- Justice Cockburn : Then there is what is alleged 
 to be the imprisonment. 
 
 Mr. Karslake : After the pocket-book had been taken from 
 him, he was told to go back to his room and not to leave it; and 
 he was told that he must leave the college at once, without any 
 further communication with any of the boys in the college. 
 
 Lord Chief-Justice Cockburn : There still remains the ques- 
 tion whether they had a right to shut him up. 
 
 Mr. Karslake : That, as I submit, is covered by the justifica- 
 tion. 
 
 Upon that subject I will just say one word. Mr. Northcoto 
 had made up his mind that it was necessary the boy should leave 
 the college; and Mr. Northcote considered that, in the exercise of 
 the large discretion which must be committed to any school- 
 master or person in the position of Mr. Northcote, it was not ex- 
 pedient or right that so long as he remained under the roof of 
 the college he should be allowed to speak to other boys or have 
 any communication with them; and accordingly he directed that 
 he should be sent to' his room to pack up his clothes, and that 
 he should not leave it till he went away. If Mr. JSTorthcote 
 found, as he believed he had found, that there was this conspiracy 
 or association, with objects such as those I have described, I sub- 
 mit that he was right in putting this young man in prison, as it 
 is called that is, in keeping him to his room while he was inves- 
 tigating the matter and that he was afterwards right in saying, 
 " I shall keep you under my own control until you leave the 
 college, because it is not right or safe that you should mix any 
 longer with those who I believe you have been setting yo\ir face 
 against and injuring in the way that has been described." This 
 is the justification that Mr. Northcote sets up. 
 
 I shall have an opportunity, after Mr. Xorthcote and Mr. 
 Stone have been called, of again addressing you. I ask you to 
 give your best attention to the case, because of its great import- 
 ance, not to Mr. Northcote only, but to all who have children 
 boys or young men committed to their charge. Mr. Northcote 
 was acting under a belief, at all events, that he was doing that 
 which he was entitled to do, and which under the circumstances 
 he was bound to do. It is clear, according to my friend's own 
 admission, and according to the view that common-sense would
 
 103 
 
 dictate, that where there is a head of a college of this description 
 he must be invested with large authority and with a large dis- 
 cretion. It is equally clear that he can only act on that which 
 he "believes to he true. The question for you to consider is not 
 the mere question whether there really was or was not a con- 
 spiracy existing, but whether Mr. Northcote was, under the cir- 
 cumstances, warranted in believing that there was a dangerous 
 association existing, and that David Fitzgerald was one of its 
 members, and whether he was justified in coming to the conclu-> 
 sion he did, that it was inexpedient that this young man should 
 be allowed to remain any longer in the college. The question as 
 to the expulsion has nothing whatever to do with the case. The 
 charge against Mr. Northcote is, that in the course of what he 
 did with regard to David Fitzgerald he told him to go to his 
 room, and kept him there. That Mr. Northcote justifies on the 
 ground that what he did was proper and expedient ; and I trust 
 that you, gentlemen, will be of opinion that although I have not 
 a word to say against the great talents of young David Fitzgerald 
 or against his moral character that had ooeurred during the last 
 few months of his residence at Oscott College, which obliged 
 Mr. Xorthcote to do that which he did ; or, at all events, that 
 his belief in the existence of the association, and in the part 
 young Mr. Fitzgerald had in it, justified him in what he did, 
 .and therefore that he has a clear answer to the charge which is 
 made against him. 
 
 Lord Chief-Justice Cockburn : We will go on with this case 
 to-morrow morning. 
 
 A Juror : My Lord, if we have really made up our minds, 
 it would seem, to be a waste of time to go on any further. 
 
 Lord Chief -Justice Cockburn : Gentlemen, you really must 
 hear the case out. 
 
 [Adjourned till to-morrow at 10 o'clock.]
 
 104 
 
 After this manifestation of feeling on the part of the 
 jury, it was easy to see on which side the verdict would 
 be given. And before leaving the court, it was suggested 
 by Plaintiff's Counsel that the case should be allowed to 
 end here ; that, by mutual consent, a juror should be with- 
 drawn on the following morning, Defendant having first 
 stated, by his Counsel, that " he had acted on the belief that 
 there was a dangerous association formed, of which Fitz- 
 gerald was the head and originator, and that its object was 
 to annoy and insult the Church students ; but that, after 
 the statement on oath of the Plaintiff, he was ready to be- 
 lieve that he had been mistaken, and that Plaintiff was not 
 intending to combine with others for the purpose of offer- 
 ing insult or annoyance to the Church students."* 
 
 It was urged upon Dr. Northcote that the result of 
 this arrangement would be, that there would be no adverse 
 verdict, in fact, no verdict at all, and therefore that each 
 party would have to pay their own costs ; whereas if the 
 trial was persevered in, Dr. N. might safely calculate upon 
 having to pay the Plaintiff's costs as well as his own. Dr. 
 Northcote, however, felt that there were higher interests at 
 Stake than the costs in question ; that not only his own 
 character, but that of the College over which he presides, 
 was altogether forfeited, if he allowed the statements that 
 had been made in court to go forth to the world uncontra- 
 dicted. If it were true that the Prefect of Discipline at 
 Oscott had behaved with great harshness and injustice to 
 one of the senior students, and that the President had not 
 only upheld him in such conduct, but had on two or three 
 
 * These are the terms which were submitted to Dr. Northcote by his 
 own Counsel after conference with Mr. Coleridge.
 
 105 
 
 several occasions refused to listen to what the boy had to 
 say in his defence, and finally had expelled him under a 
 "mistake," what parent could ever be again expected to 
 send his son to a college so grossly misconducted ? 
 
 Dr. Northcote felt that his true jury were not so much 
 the twelve men empannelled to hear the cause as the edu- 
 cated portion of the whole Catholic body, and especially 
 the parents who had intrusted then.' sons to his care. For 
 their sakes, then, he deemed it his bounden duty to take 
 no step which should prevent the real facts of the case 
 from being put fully and fairly before the public; and 
 supported in this view of his duty by the advice of those 
 friends whom he was able to consult, he declined the pro- 
 posed compromise ; and the trial was therefore resumed on 
 the following day.
 
 106 
 
 SECOND DAY. 
 
 The Very Eev. JAMES SPENCER NORTHCOTE, D.D., sworn. 
 Examined ~by Mr. KARSLAKE. 
 
 Q. You are a Doctor of Divinity and a Master of Aits ? 
 
 A. Yes. 
 
 Q. Were you formerly a scholar of Corpus Christi College, 
 Oxford ? 
 
 A. Yes. 
 
 Q. In the summer of 1860 were you appointed President of 
 Oscott College? 
 
 A. Yes. 
 
 Q. That, as we have heard, was a college of considerable 
 size, with a good number of members belonging to it ? 
 
 A. Yes. 
 
 Q. All under one roof? 
 
 A. Yes. 
 
 Q. When you were appointed, about what was the whole 
 number of students 1 
 
 A. I cannot say exactly ; but I should say about 120 or 125. 
 
 Q. Besides the students, is there a large staff of masters 
 belonging to the college 1 
 
 A. I think perhaps about ten or twelve clergymen, and about 
 three or four lay professors, and the body of Divines who were 
 spoken of in court yesterday, some of whom were used as teachers. 
 
 Q. By whom were you appointed ? 
 
 A. By the Bishop of Birmingham the Catholic Bishop of 
 Birmingham. 
 
 Q. Were you the responsible head of the college, both of 
 the masters and of the students ? 
 
 A. Entirely. 
 
 Q. For what purpose was the college originally founded ?
 
 107 
 
 A. I am hardly antiquarian enough to say, perhaps ; "but I 
 "believe it was originally founded "by a committee of Catholic 
 gentlemen and noblemen for the education of their own sons. 
 
 Q. Before your time had there been a body of students who 
 were studying for orders ? 
 
 A. Yes, for many years. 
 
 Q. And also lay students 1 
 
 A. Yes. 
 
 Q. Is it the fact that funds which were provided by the lay- 
 students, or any part of that which was paid for the lay students, 
 went for the support of other students in the college ? 
 
 A. Not a farthing. 
 
 Q. "Were many of the clerical students sent there upon funds 
 provided by charitable institutions or charitable persons 1 
 
 A. It is the Bishops who send thepi to me, and they 'are re- 
 sponsible to me for the pension; and I know nothing of the 
 funds from which the Bishops pay. 
 
 Q. I suppose they are what are called patrons of the boys 1 
 
 A. Yes. 
 
 Q. Do many of these clerical students come from Sedgely, 
 the place that we have heard mentioned ] 
 
 A. Yes. 
 
 Q. That is a preparatory school 1 
 
 A. Yes. 
 
 Q. And many of the boys there come to the college after- 
 wards 1 
 
 A. Yes. 
 
 Q. And are many of the Sedgely students students who are 
 sent there by patrons 1 
 
 A. Yes; I suppose all of them are who come to us. There 
 are not more than two or three in each year from Sedgely. 
 
 Q. About what is the number of clerical students in the 
 college at a time ? 
 
 A. It varies. I should think the number was never more 
 than twelve. In my time and at this moment I think it is not 
 half that number. 
 
 Q. Are there always at the college a considerable number of 
 lay students who are men of good birth and social position! 
 
 A. Yes.
 
 103 
 
 Q. Have you among the students, and especially among the 
 clerical students, hoys who are of humhler "birth 1 
 
 A. Yes. 
 
 Q. Some of them, I helieve, are the sons of tradesmen 1 
 
 A. Yes, some of them are. 
 
 Q. Is there under you a Vice-President ? 
 
 A. Yes. 
 
 Q. A Prefect of Discipline 1 
 
 A. Yes. 
 
 Q. And other prefects 1 
 
 A. Yes. 
 
 Q. We have heard (and I may go over this shortly) that the 
 higher classes in the college are called Philosophers, Khetori- 
 cians, Poets, and so on; 
 
 A. Yes. 
 
 Q. Have the Philosophers privileges which the others have 
 not? 
 
 A. All those three classes have. 
 
 Q. Are there, hesides the traditional rules, certain printed 
 rules applying to the college 1 
 
 A. Not printed ; they are written. 
 
 Q. Is it the practice to read those rules aloud at the com- 
 mencement of each quarter or half-year ? 
 
 A. At the "beginning of each half-year. 
 
 Q. Then there are certain rules which are peculiarly appli- 
 cable to the Philosophers, which are read to them alone ? 
 
 A. Yes. 
 
 Q. To the higher classes ; I call them Philosophers 1 
 
 A. Yes. 
 
 Q. I believe that that class is allowed more liberty than the 
 lower classes in the school 1 
 
 A. Yes. 
 
 Q. Among other privileges, are they allowed to go out in 
 parties ? 
 
 Mr, Coleridge : I should like to see the rules. 
 
 Mr. Karslalte (to the Witness) : Have you the rules here 1 
 
 A, Yes ; I have a copy of them. 
 
 Mr. Coleridge: I have a reason for wishing to see the 
 original.
 
 109 
 
 Mr. Karslake (to the Witness) : We have heard what David 
 Fitzgerald has called the big "bounds and the little bounds : are 
 there the upper bounds, where the higher classes have their play- 
 ground ? 
 
 A. Yes. 
 
 Q. And the lower bounds, to which the lower classes in the 
 school are confined ? 
 
 A. Yes. 
 
 Q. Is it against the rules for the higher classes to be in the 
 lower bounds, or for the lower classes to be in the higher bounds 1 
 
 A. Quite. 
 
 Q, Is it the fact that the Philosophers are, under certain 
 restrictions, allowed to go out in parties 1 
 
 A. In parties of not less than three. 
 
 Q. That is, in the grounds belonging to the college ] 
 
 A. Yes. 
 
 Q, I believe that the grounds themselves are somewhat ex- 
 tensive ? 
 
 A. Yes. 
 
 Q. And the Philosophers are allowed to go into a part of 
 the grounds into which the others are not allowed to go 1 
 
 A. Yes. 
 
 Q. The plantations, among other places ] 
 
 A. Yes. 
 
 Q. We will have the rules read, if necessary, by and by. 
 You went to the college, as you have told us, in 1860 1 
 
 A. Yes. 
 
 Q. When you went there, we understand David Fitzgerald 
 was there ? 
 
 A. Yes. 
 
 Q. And he continued there until March 1865 1 
 
 A. Yes. 
 
 Q. When you came to the college yourself, did you know of 
 'there being any feeling manifested towards the students who 
 came from Sedgely, who were sent by patrons ? 
 
 A. I had often heard before I came to the college that there 
 was a feeling against the clerical students. 
 
 Mr. Coleridge : Will you be kind enough to confine your- 
 self to answering the questions put to you ?
 
 110 
 
 Mr. Karsldke : Did you find that feeling manifested at all 
 yourself when you came there ? 
 
 A. I cannot remember to have seen it manifested, but I was 
 well aware of its existence. 
 
 Lord Chief- Justice Cockburn : You never saw any sign of it 
 yourself? 
 
 A. As President, I was hardly likely to come across it : the 
 Prefect has much more to do with the boys than I have ; and 
 he would have seen much more of it than I should. 
 
 Mr. Karslake : Was it the duty of the prefects to commu- 
 nicate to you from time to time any thing of that sort that they 
 found existing in the school? 
 
 A. It was the duty of the Prefect to report to me any thing 
 that was amiss in any way in the school 
 
 Q. I understand you to say that you personally were not 
 "brought so much into communication with the boys as the pre- 
 fects were ? 
 
 A. No. 
 
 Q. But you received reports from those who were Tinder 
 you? 
 
 A. Yes. 
 
 Q. "Was the term " Bunker" a term which was known to 
 you by communication with the prefects at the time you came 
 to Oscott and afterwards ? 
 
 A. I cannot at all remember when I first heard the word. 
 
 Q. Had you heard of it before the year 1865? 
 
 A. No doubt. 
 
 Q. And did you know to what class it was applied ? 
 
 A. Yes. 
 
 Q. "What was the particular class to which you always under- 
 stood the term was applied? 
 
 A. I always understood it was applied to the clerical stu- 
 dents. 
 
 Q. I am not sure whether I am right; were you Vice- 
 President before you were appointed President ? 
 
 A. For six months. 
 
 Q. You became President in 1860? 
 
 A. Yes ; at Midsummer. 
 
 Q. So far as you know, from the time you became President
 
 Ill 
 
 till 1865, had there been any annoyance at all given to this class 
 of clerical students in the college ? 
 
 A. I set myself to work from the first moment of my arriv- 
 ing at the college to abolish all distinctions between the two 
 classes, in order to destroy this feeling as far as possible ; and 
 I had reason to believe that I had succeeded almost entirely by 
 Midsummer 1864. 
 
 Lord Chief-Justice Cockburn : What were the distinctions ? 
 
 A. They were small petty distinctions, which I thought did 
 a great deal of harm. At Midsummer the lay boys went home 
 on Midsummer-day, and the clerical students were not permitted 
 to go till the end of the month, and their vacation was only 
 allowed to be a month, whereas I was anxious that they should 
 have seven weeks, the same as the lay boys ; in fact, with the 
 permission of the Bishops, I abolished all distinctions. 
 
 Mr. Karslake : And as far as you could do so, the clerical 
 students were placed on the same footing as the lay students ? 
 
 A. Precisely, in every way. 
 
 Q. At Midsummer 1864 you say you thought that every 
 thing was right, and that there was no feeling against the 
 clerical students ? 
 
 A. I do not know whether I am at liberty to mention my 
 reason for thinking so. 
 
 Q. Yes, if you please. 
 
 A. It was the report of the Prefect to myself. Two days 
 before the end of the half-year, there was a public cricket-match 
 between the boys at the school and old Oscotians ; and on that 
 occasion all the boys were in the same bounds both the junior 
 and senior boys were in the big bounds and the Prefect gave mo 
 to believe that there was not the smallest vestige of feeling against 
 the Church boys in the house. Many of those who were playing 
 in the cricket-match were themselves clerical students. 
 
 Q. I believe it happened that all of those who came to the 
 college having been sent by the Bishops from funds provided 
 by them did not succeed in becoming priests. 
 
 A. No ; they are sifted, in the course of the three or four 
 years that they remain with us, before they become ecclesiastics. 
 
 Q. I do not know whether you superintend particularly any 
 class of students 2
 
 112 
 
 A. I have always taught the Philosophers certain subjects. 
 
 Q. And we understand that David Fitzgerald in his last 
 year was one of that body ? 
 
 A. He was one of that body. 
 
 Q. I believe you found him a very promising boy indeed in 
 that class 1 
 
 A. Yes. 
 
 Q. And he had passed through it that being, as you say, 
 one of the highest classes at Midsummer 1864? 
 
 A. Yes. 
 
 Q. We have heard that there was a correspondence between 
 you and the Judge as to his coming back again 1 
 
 A. Yes. 
 
 Q. And when he came back at Midsummer 1864 (I think 
 in September), he had his separate room, as he had when he was 
 in the philosophy class ? 
 
 A. Exactly. 
 
 Q. We know that he was reading at that time for a parti- 
 cular purpose, in order to matriculate at the London University 
 in London ? 
 
 A. Yes. 
 
 Q. And did he attend some of the classes which were pur- 
 suing studies which were useful to him ? 
 
 A. Several ; three sets of classes to my knowledge. 
 
 Q. Were any terms made by you, either with him or with 
 the Judge, that he was to come back in any other character than 
 as a student of the college ? 
 
 Mr. Coleridge : You did not see the Judge personally ? 
 
 A. No. 
 
 Q. Then that would appear from the letters ? 
 
 A. Yes. 
 
 Mr. Karsl-dke : Was any arrangement made between you and 
 David Fitzgerald that he should come on any other terms than 
 as one of the students of the college 1 
 
 Mr. Coleridge : Whatever arrangement was made between 
 Mr. Fitzgerald, or Mr. Justice Fitzgerald, and you, was made, I 
 presume, before Mr. Fitzgerald came back 1 ? 
 
 A. There was no arrangement made whatever. 
 
 Q. But he came back after some letters had passed 1
 
 113 
 
 A. Some letters had passed as to where he could best be 
 prepared for his matriculation. 
 
 Q. Whatever had passed between you and Mr. Fitzgerald or 
 Mr. Justice Fitzgerald between the end of the summer vacation 
 and his return in September had passed on paper 1 
 
 A. Yes. 
 
 Mr. Karslalce : After he came back, did any thing pass be- 
 tween you and young Mr. Fitzgerald as to his being exempted 
 from the general discipline of the college ? 
 
 A. Nothing whatever. I should not have received him on 
 any other terms than those on which I received all the other 
 students. 
 
 Q. As far as the discipline of the college went, was he under 
 the ordinary control of the Prefect of Discipline ] 
 
 A. Precisely. 
 
 Q. And under the control of yourself and others 1 
 
 A. Yes. 
 
 Q. From September, until he left in December, did he con- 
 tinue to attend the classes you have mentioned '? 
 
 A. Yes. 
 
 Q. When other lectures were being given, he studied, he 
 says, alone 1 
 
 A. Yes. 
 
 Q. Up to the time when he left at Christmas 1864 for the 
 vacation, and afterwards to go up to matriculate, had you had 
 any information whatever of this feeling as to the Church stu- 
 dents having broken out at all 1 
 
 A. I think that between September and Christmas 1864 I 
 heard that this feeling had again shown itself. 
 
 Q. However, nothing was done at ah 1 up to Christmas 1864 1 ? 
 
 A. Nothing. 
 
 Q. That is, by you. 
 
 A. Nothing. 
 
 Q. We understand that Mr. David Fitzgerald returned about 
 the end of January 1865 1 
 
 A. Yes. 
 
 Q. And he was to stay until the middle of that year, was 
 he not ? 
 
 A. Yes. 
 
 I
 
 114 
 
 Q. Did lie after his return in January continue to attend 
 classes as before ? 
 
 A. Certainly, the same. 
 
 Q. I mean the classical classes. 
 
 A. Yes, and the French. 
 
 Q. Was he present at the times when, according to the rules 
 of the college, the other students were required to be present at 
 prayers, and on other occasions 1* 
 
 A. I cannot swear of my own knowledge that he was; and 
 of course, having heard him swear yesterday that he was not, 
 I believe he Avas not; but I cannot understand how he could 
 have been absent. 
 
 Q. You gave no sanction to it 1 
 
 A. 'No, none. 
 
 Q. He has told us that it was against the rules to go into 
 public-houses, and so on. I suppose we may take it that there 
 is an express rule upon the subject ? 
 
 A. Public-houses are not mentioned : they are not at liberty 
 to go into any private house without leave. 
 
 Mr. Coleridge: "Private house?" 
 
 Mr. Karslalte : I will read you the rule. 
 
 Mr. Coleridge : A private house is not a public house. 
 
 Lord Chief-Justice Cockburn : You had better leave out the 
 epithet, and then it will be no house at all. 
 
 Mr. Coleridge : I take it that it is a school very unlike other 
 schools, if they are not forbidden to go to any public-house. 
 
 Mr. Karslake : This is the rule " No Philosopher is allowed 
 to enter any house, town, or village, without express permission ; 
 to frequent places of public amusement, and such like." 
 
 Q. I need hardly ask whether, as far as you know, any of 
 the students, either of the higher or lower classes, were in the 
 habit of going to this public-house at Erdington ? 
 
 A. I never heard of it before the occasion when I had to 
 speak of it to David Fitzgerald. 
 
 Q. I believe that, according to the rules of the college, no boy 
 In the position of a Philosopher is liable to corporal punishment? 
 
 * Dr. Northcote misunderstood this question, if it was really asked 
 as here reported. He understood that he was asked whether Mr. Fitz- 
 gerald had been present at the usual reading out of the rules.
 
 115 
 
 A. No. 
 
 Q. Would corporal punishment be inflicted in any case ex- 
 cept by your orders ? 
 
 A. The corporal punishment of the ferula is inflicted with- 
 out any orders from me by the Prefect. 
 
 Q. And the flogging ? 
 
 A. I do not recollect an instance of that, except by directions 
 from myself; and I do not recollect that corporal punishment 
 has been inflicted in more than a very few instances in the 
 course of six years.* 
 
 Q. And as to boys about 16 years of age, I believe no corporal 
 punishment is allowed, except by permission of the President] 
 
 A. No. 
 
 Q. And the Philosophers are entirely exempt ? 
 
 A. Yes. 
 
 Q. After young Mr. Fitzgerald came back in January, did 
 you hear a complaint made of him with regard to something he 
 had done before Christmas 1 
 
 A. Yes. 
 
 Q. That was about having had spirits in the house ? 
 
 A. Yes. 
 
 Q. Of course that was against the rules ? 
 
 A. Yes. 
 
 A Juror : Was the complaint made before he came back, or 
 after? 
 
 A. After he came back. 
 
 Mr. Karslake : Was the fact of its being stated that he had 
 done so brought to your attention after he came back in January? 
 
 A. Yes. 
 
 Q. Did you speak to him upon the subject 1 
 
 A. I cannot recollect the circumstances, but I am quite sure 
 that I did speak to him. I did not send for him specially to 
 speak to him, because it was a thing that had happened in times 
 past, and bygones were bygones ; but I have no doubt that I 
 
 * This answer is incorrect. What Dr. N. should have said is, that 
 there had been very few of those exceptional cases in which his sanction, 
 was necessary for the infliction of corporal punishment. The ordinary 
 punishment is with the ferula ; but the Prefect is at liberty to use the 
 cane for graver offences which are of very rare occurrence.
 
 116 
 
 said "what Mr. Fitzgerald stated yesterday, that if I had known 
 of it before, I should not have allowed him to return. 
 
 Q. "With regard to the breaking-tip party at Christmas, and 
 so on, is it entirely against the rules of the college to hare such 
 a party 1 
 
 A. Entirely : it -was the first time I ever heard of it myself. 
 
 Q. On the 25th of February did you receive a complaint 
 from Mr. Stone, the prefect of discipline, of David Fitzgerald 
 and others having been at Erdington at a public-house 1 
 
 A. Yes. 
 
 Q. At that time did you know that Mr. Fitzgerald -was 
 under punishment for some other breach of discipline 1 
 
 A. Yes. 
 
 Q. And that he was confined to bounds ? 
 
 A. Yes. 
 
 Q. In consequence of that information, did you have David 
 Fitzgerald before you 1 
 
 A. Yes. 
 
 Q. Just tell us the substance of what passed between you at 
 that time, and what you did 1 
 
 A. I gave him a lecture, as he said, I have no doubt, upon 
 the subject. I believe that what I said was,, that, next to an 
 actual charge of immorality, th.e fact of being found in a public- 
 house was, to my mind, one of the most grievous offences he 
 could be guilty of; and that in his case it was especially culpable, 
 as he was already under punishment, so that it involved the 
 setting at defiance the authority of the Prefect. 
 
 d I believe that on that occasion you punished him and 
 the others by confining them within the bounds until Easter. 
 
 A. Yes. 
 
 Q. That was on the 25th of February : on Monday the 27th 
 of February did David Fitzgerald come to you and make a com- 
 plaint against the Prefect of Discipline ? 
 
 A. I think that those dates can hardly be correct, the 25th 
 and 27th of February; I think they can hardly have been so 
 near together. 
 
 Q. But do you remember, at all events, his coming to you 
 after this affair at Erdington and making a complaint ? 
 
 A. Yes ; that was on the evening of the 27th of February 
 certainly.
 
 117 
 
 Q. ]S"ow just tell us what passed between you when he came 
 to make this complaint. 
 
 A. Shall I give you the substance of his complaint 1 
 
 Q. Yes, if you please. 
 
 A. He first reminded me that he had promised me sometime 
 before never to bring any more complaints against his masters, 
 because he had made so many complaints before, and in each 
 case when it came to be examined into by myself 
 
 Lord Chief-Justice Cockburn : This is what passed ] 
 
 A, Yes ; this is what he said to me : he reminded me of 
 this this was the beginning of the conversation. 
 
 Q. You are going now to anterior circumstances'? 
 
 A. I was only repeating his expression to me; it was his 
 apology for making the complaint. He said that he now must 
 make a complaint against the Prefect; that the Prefect had found 
 him shooting in the plantation, and that in the altercation which 
 ensued between them, the Prefect had called him. a liar, and 
 had threatened to box his ears. I made no reply but to say 
 that I must hear the Prefect's version of the story before I made 
 any comment whatever. I heard the Prefect's version of the 
 story on the following day, and sent for David Fitzgerald in the 
 evening, and told him that, although he seemed only to have 
 equivocated, his equivocation under the circumstances was equi- 
 valent to a lie. I made no comment upon the complaint as to 
 boxing his ears, because I did not wish to comment on the con- 
 duct of the Prefect in any way to a student; but I went on to 
 lecture him on the many acts of insubordination which had been 
 brought before me, and upon his manifest purpose to measure 
 strength with the new Prefect ; that the authorities of the house 
 must be upheld, and that such insubordination from a boy in his 
 position must be visited by the severest punishment ; that I 
 should therefore do what I had never done before degrade him 
 to the ranks altogether ; that he must walk in the ranks and 
 study in the study-place; and that I only did not deprive him of 
 his room altogether and turn him into the dormitory, because 
 the effect of that would be to destroy the very object for which 
 he was here, and that I should not therefore inflict that punish- 
 ment upon him, whatever fresh offence he might commit, but 
 that I should send him away for the next offence; and that I
 
 118 
 
 must also -write to his father at once to acquaint him with the 
 state of affairs, because his next offence would certainly be 
 visited by expulsion, by his being sent away. We then left 
 the room together, because the bell for night-prayers had rung ; 
 and on our way I spoke no longer to him as a schoolmaster, 
 but simply as a father and friend. I pointed out to him how 
 his pride and conceit had brought him into trouble so con- 
 stantly, and that I knew how keenly he would feel the degra- 
 dation I had just put upon him, but that humiliations were 
 often the means of producing humility ; and the next day being 
 Ash- Wednesday, I hoped he would receive this punishment in 
 the spirit in which I had given it to him ; and from his manner 
 I gathered and hoped that I had made a favourable impression 
 upon him. That was the whole of that interview. 
 
 Mr. Karslake: Did he say any thing at that tune about 
 writing to his father himself? 
 
 A. No, certainly not. 
 
 Q. He says that he offered to exculpate himself, but that 
 you would not hear him at all ; is that the fact ? 
 
 A. Certainly not. 
 
 Q. Did you hear all that he had to say ? 
 
 A. I heard all that he had to say until it was the old story 
 over again that he was a persecuted man. I do not mean that 
 he used those words, but that it was the old story over again. 
 
 Lord Chief-Justice Coclcburn : What do you mean by the old 
 story over again ? 
 
 A. As I was about to say just now, when on former occa- 
 sions he had made appeals to me from his masters, I always 
 examined into them, and found so incessantly that I had to 
 justify the masters, and never give a verdict in favour of Mr. 
 David Fitzgerald, that I forbade him to bring any further 
 appeals, because I saw that it was his temper, and that his com- 1 
 plaints were unreasonable. 
 
 Q. When you speak of other appeals, had they been from 
 other prefects of discipline or other masters ? 
 
 A. Appeals from other masters, ever since I have known him. 
 
 Q. In former times ? 
 
 A. In former times. 
 
 Q. After prayers did you see him again ?
 
 119 
 
 A. Yes. 
 
 Q. Tell us what passed then. 
 A. He asked me not to write to his father. 
 Lord Chief- Just ice Cockburn: Did he come to you? 
 A. He came to me. I explained to him the necessity under 
 which I was to write to his father. 
 
 Mr. Karslalce : Just tell me what was said. 
 A. I said that I had never written any tiling to his father 
 hut good reports of him, and that if I sent him home, as I 
 certainly should for his next offence, if he committed it, his 
 father might justly complain of me for want of consideration ; 
 he would think that I had lost my temper, and inflicted a harsh 
 sentence upon him for one offence, when, in fact, the sentence 
 would be for an accumulation of offences. He told me that I 
 need not fear, for that he would commit no fresh offence. I 
 said, "You see, David, how the matter stands; I risk my cha- 
 racter with your father for justice, prudence, and moderation 
 against your word of honour ; is that safe T and he answered, 
 " It is safe, and your confidence shall not be abused," or words- 
 to that effect. I will not positively swear to each word. I said, 
 " I will take your word, David, and will not write to your 
 father to-night ;" but I again repeated to him in other words 
 precisely the same thing as I had said before, as to the balance 
 between us of his word of honour against my character which 
 was put into his hands. 
 
 Q. Did you refuse to hear what he had to say upon that 
 occasion at all ? 
 
 A. I do not remember that he offered to say a syllable, and 
 to the best of my belief he did not. I understood him to come 
 to ask for a grace, and not at all to justify himself in any way. 
 
 Q. He was under punishment from that time 1 
 
 A. From that time. 
 
 Q. That is, he was put into the ranks, instead of having the 
 privileges of the upper students. 
 
 A. Yes. 
 
 Q. And he was subjected to that punishment 1 
 
 A. Yes. 
 
 Q. I think he told us yesterday that the dormitory is where 
 the general body of boys sleep who are not in the higher classes 1
 
 120 
 
 A. Yes. 
 
 Q. And that is the place where they study when they have 
 private studies? 
 
 A. "No ; it is a different room altogether. I am afraid I 
 have not understood your question. 
 
 Q. You said you would not send him to the dormitory ? 
 
 A. Yes ; not to sleep there. If I had done so, the effect 
 would have "been to deprive him of the opportunity of reading 
 at extra hours, after the others had gone to "bed. 
 
 Q. "What is the rule at Oscott as to the hours at which 
 students go to bed 1 
 
 A. In the winter they all go to bed after night-prayers, 
 which are at a quarter-past eight o'clock, that is, all those who 
 sleep in the dormitories ; but all those who have private rooms 
 have a right to sit up till ten o'clock. 
 
 Q. Have they any right to sit up after ten o'clock, except by 
 express permission 1 
 
 A. Never. 
 
 Q. After this occasion, when you had the conversation with 
 him about writing to his father, did you hear between that time 
 and the time when you saw David Fitzgerald about the Anti- 
 Bunker Confederation ? Had you heard from the college authori- 
 ties any thing about a movement taking place in the college 1 
 
 A. Yes, exactly midway between the two things, just a 
 week after David Fitzgerald's last interview with me. 
 
 Q. Did you hear of that more than once before the time 
 when you saw David Fitzgerald ? 
 
 A. Before the time I saw David Fitzgerald ? Yes. 
 
 Q. "When was it that any communication was made to you 
 respecting David Fitzgerald ? 
 
 A. An unofficial communication was made to me on Sunday 
 night the 12th of March, I believe. 
 
 Q. That was not in the regular form of a complaint ? 
 
 A. It came to me from the Vice-President. It was the 
 report of a matter that had been brought before him by the 
 Prefect, I being absent that Sunday afternoon. 
 
 Mr. Coleridge: By the Prefect you mean Mr. Stone, I sup- 
 pose? 
 
 A. Yes.
 
 121 
 
 Mr. Kar slake : Was that with reference to this same move- 
 ment? 
 
 A. Yes. 
 
 Q. I understand you to say that David Fitzgerald's name 
 was mentioned to you in connection with that 1 
 
 A. It was given to me by the Vice-President. 
 
 Q. Had you, between the time when you first heard of that 
 movement and Sunday the 12th of March, when you heard 
 from the Vice-President, had information as to the objects of 
 the movement or the character of it ? 
 
 A. No ; I only heard that there were symptoms of distinc- 
 tion being made ; that there were lists afloat in the house of 
 what was called the Aristocracy of the place. 
 
 Q. You say that on the Sunday the Vice-President men- 
 tioned to you David Fitzgerald's name in connection with this 1 
 
 A. Yes. 
 
 Q. Nothing further took place that night, I suppose 1 
 
 A. No. 
 
 Q. On the Monday did you receive further information with 
 regard to David Fitzgerald ? 
 
 A. Yes. 
 
 Q. From whom ? 
 
 A. From the Prefect, my co-defendant, Mr. Stone. 
 
 Q. In consequence of what Mr. Stone told you, did you 
 give instructions to him to have David Fitzgerald before you 1 
 
 A. Not immediately. 
 
 Q. Before you gave any instructions to have him before you, 
 had you any meeting of the Superiors of the house 1 
 
 A. The Superiors of the house met in consequence of the 
 information which I had received. 
 
 Q. After that meeting did you give any instructions to Mr. 
 Stone as to David Fitzgerald ? 
 
 A. Not immediately after that meeting. That meeting was 
 held at nine o'clock, and the evidence was laid before me upon 
 which the charge was brought against David Fitzgerald. 
 
 Q. Did you yourself, between the time of that meeting and 
 the time when you had David Fitzgerald before you, have 
 further inquiries made with reference to this movement, and 
 with reference to the part which David Fitzgerald had taken 
 in it?
 
 122 
 
 A, There was nobody else of whom to make further inquiries. 
 
 Q. Did you, between the time when you had this meeting 
 of the Superiors and the time when you sent for David Fitz- 
 -gerald, make further inquiries as to the movement, and as to 
 David Fitzgerald being a party to it ? 
 
 A. We carefully went over the evidence at two meetings of 
 the Superiors before I saw David Fitzgerald. > 
 
 Q. When you speak of evidence, were statements made to 
 you by the Prefects 1 
 
 Lord Chief- Justice CocTcburn: You had better ask him what 
 the evidence was. 
 
 Mr. Coleridge : "Was there a minute kept ? 
 
 A. Kb. 
 
 Lord Chief- Justice Cockburn: What was the evidence that 
 was laid before you ? 
 
 A. The evidence was, that a lay student of the house had 
 reported to a Divine the existence of a conspiracy against the 
 Church students, known by its members as the A. B. C. ; that 
 each member had a list of the other members, and that David 
 Fitzgerald was the prune mover in it ; that the Divine said 
 that this matter was too important to be treated as a matter of 
 gossip, and that it must be reported to the authorities, and that 
 this Divine therefore had reported it to Mr. Stone ; that Mr. 
 Stone hafl, therefore, gone to David Fitzgerald's room to look 
 for this list of members ; that on his table he found an open 
 pocket-book, and that in this he had found not only a list of 
 members, but many particulars about the birth and parentage of 
 clerical students in the house, which left no doubt whatever 
 upon his mind of the truth of the report he had received as to 
 the conspiracy, and as to David Fitzgerald's part in it. 
 
 Mr. Karslake : Up to that time had you known any thing 
 about the Prefect of Discipline having seen the list 1 
 
 A. Yes ; I alluded before to a list of the Aristocracy that 
 was going about. 
 
 Q. But did you know, until this interview which you had on 
 the Monday, of the fact of the Prefect of Discipline having seen 
 the list in David Fitzgerald's pocket-book which was referred to ? 
 
 A. No. 
 
 Q. After that information had been received by you, did 
 you send for David Fitzgerald ?
 
 123 
 
 A. After our second meeting I did. 
 
 Q. Was the same statement which was made to you laid 
 "before the Superiors at the meeting ? 
 
 A. It was laid before us all in common. 
 
 Q. And did you act afterwards in consequence of the deter- 
 mination which was come to at the meeting ? 
 
 A. Yes, I sent for David Fitzgerald. 
 
 Q. At the time when you sent for David Fitzgerald after 
 this meeting, did you believe the information which you had 
 received to be true ? 
 
 A. Certainly. 
 
 Q. "What time was it when David Fitzgerald came to you iu 
 consequence of your sending for him ? 
 
 A. Just after eleven o'clock. 
 
 Q. Did Mr. Stone come with him ? 
 
 A. Yes. 
 
 Q. And was the book which had been referred to brought 2 
 
 A. Yes. 
 
 Q. By your directions ? 
 
 A. Yes. 
 
 Q. Did you give directions to Mr. Stone, when you sent 
 him for Mr. Fitzgerald, also to bring the book ? 
 
 Lord Cliief-Justice Cockburn : Did you send for Mr. Stone ] 
 
 A. Yes. 
 
 Mr. Karslake : Did you give Mr. Stone any directions about 
 the book ] 
 
 A. Yes. 
 
 Q. "What did you direct him to do ? 
 
 A. I desired him to bring the book with David Fitzgerald. 
 
 Q. Was it in the regular course of things at the college 
 when a boy was sent for under those circumstances that Mr. 
 Stone shoidd be the person, as Prefect of Discipline, to bring 
 him before you j 
 
 A. Certainly. 
 
 Q. Just tell us, in your own way, what happened when 
 David Fitzgerald came to you 1 
 
 A. Mr. Stone and David Fitzgerald came into the room, 
 and the book was at once put into my hand by Mr. Stone. I 
 opened it, and saw the lists and pages that you have seen. I
 
 124 
 
 asked David Fitzgerald what he meant by this ; and he answered, 
 " Nothing at all" 
 
 Q. Lord Chief -Justice Cockburn : Those were his words, 
 were they ? 
 
 A. As nearly as possible. He answered, " Nothing at all ;" 
 and went on to say that it was all nonsense. I said, " It may 
 be all nonsense and fun to you and your companions, but it is 
 death to the frogs." He again repeated that he meant no harm 
 by it ; to which I gave the answer which David Fitzgerald him- 
 self reported yesterday, that it was impossible to handle pitch 
 without being denied by it. I pointed to some of the entries in 
 the book, and asked him if he thought it was innocent amuse- 
 ment to ferret out particulars of the birth and parentage of those 
 of his companions who were beneath him in social position, and 
 asked him how he came to do such an ungentlemanly thing ; 
 to Avhich he replied, that he had done it in a fit of spleen. 1 
 reminded him that spleen had been the cause of many evils, and 
 that I feared his would cost him dear. He then fell back upon 
 the plea that it was all nonsense, and that if I would let him 
 go to his room to fetch a letter he had received from his father, 
 he would satisfy me that there was no harm in it. I told him 
 I should be only too glad to hear any thing he had to say in 
 justification of himself. He fetched the letter, and pointed to 
 two lines at the bottom of a page in it, and said that that was 
 all he could let me see. All I read was, " What is the sub- 
 scription to the A. B. C. ?" I said, " This shows me no tiling 
 as to the innocence of your association ; it tells me what I am 
 surprised to hear, that you have told your father of it, and I 
 should much like to know what he thinks of it. If, as I cannot 
 but believe, he condemns it as unworthy of your position, it 
 woidd show me that there was something in it ; but this mere 
 question shows me nothing at all." He, however, refused to let 
 me see any thing more. 
 
 Mr. Karslalce : You saw no more of it 1 
 
 A. No. 
 
 Q. What further happened ? 
 
 A. I asked him who " Governor Moody" was, because there 
 was a boy in the House, a son of Mr. Moody the Professor, 
 whose nickname I had heard was Governor Moody; and I
 
 125 
 
 thought, from my knowledge of his character, that it was impos- 
 sible he could have joined in such, an association. He explained 
 that it meant the father ; and he went on to say that there were 
 other names also down in the list without the knowledge or 
 consent of the boys themselves. I asked him to exonerate all 
 he could, that I might not punish the innocent with the guilty ; 
 and he said that his brother John had distinctly refused to join 
 the association, that his youngest cousin knew nothing about 
 it, and some of the other boys also ; and I remarked to him that 
 his brother John's refusing to join it did not seem to me to 
 indicate that there was no harm in it. I asked him who the 
 president of the association was, that was alluded to in the 
 paper 
 
 Mr. Coleridge : Just point out, if you please, where the pre- 
 sident is alluded to. Look at the pocket-book (handing it- to the 
 Witness). 
 
 A. (after looking at the poc7cet-boo7i) No ; I must have put 
 my question in some other way. I asked him distinctly "Who 
 was the president T I cannot have spoken of the president as 
 being alluded to in the paper ; but I will swear that I asked 
 him "Who was the president 1 ?" and that he said he himself was. 
 
 Mr. Karslake : What else passed at this interview 1 
 
 A. I asked him for an explanation of these different initials, 
 that I did not know myself. 
 
 Q. There is " F. M * * *, S. P.," I see : was any explanation 
 given as to the " S. P." 1 
 
 A. I believe there was, if I had not already guessed it; which 
 I think probable. 
 
 Q. Was any explanation given of the " L. B." 1 
 
 A. Kb. 
 
 Q. " L. B. C. S. (one dozen)" ? 
 
 A. I never knew what that meant until I was told yesterday. 
 
 Q. List of Bunkers ? 
 
 A. Yes. 
 
 Q. What is " C. S." 1 was any explanation given of that ? 
 
 A. Ko, I think not. 
 
 Q. " S. P." ? was any explanation given of that ? 
 
 A. I cannot swear that I asked him for it ; I think it pro- 
 bable that I should have guessed it without asking him.
 
 126 
 
 Q. Sedgely Park 1 
 
 A. Yes. 
 
 Q, That, we understand, is a school from which many of 
 these Church students come ? 
 . A. Yes. 
 
 Q. Were all these, with the exception of C * * and D * * 
 in the school at the time ? 
 
 A. Certainly, every one of them. 
 
 Q. Is it the fact that C * * * and D * * * had left the 
 school in January 1865 ? 
 
 A. They were two boys who had been dismissed during the 
 Christmas vacation. 
 
 Q. I see " E. S. * * * S. P. * * * N. S. M." : do you know 
 what that meant ] 
 
 A. Yes; I know what * * * *'s father was; and that 
 enables me to know what was meant. 
 
 Q. What was he 1 
 
 A. A national schoolmaster. 
 
 a " W. K * * *, S. P. W. * * *, C. M." Do you know 
 what he was ? 
 
 A. No. 
 
 Q. Was any explanation given to you of the meaning of 
 " C. M." ? 
 
 A. I do not remember that there was. 
 
 Q. In page 3 there is " A. B. C. Fitzgerald, 5," and so on : 
 was the A. B. C. explained to you ? 
 
 A. Yes. 
 
 Q, As what ? 
 
 A. My memory was, until I heard the statement of Mr. 
 Fitzgerald yesterday, that it was "Anti-Bunker Club." I do 
 not think I ever heard of " Anti-Bunker Confederation" until 
 I heard it yesterday. 
 
 Q. Were there five Fitzgeralds in the school 1 
 
 A. Yes. 
 
 Q. One * * * 
 
 A. Yes. 
 
 Q. Two * * *? 
 
 A. Yes. 
 
 Two * * 2
 
 127 
 
 ,4. Yes. 
 
 Q. And one of each of these others,* * *, * * *, * * *, 
 and " * *? 
 
 A. Yes; there were more ~ x " * ""'; but there was only one 
 they could reckon on. 
 
 Q. Who was * * * ; who is described as a " gentleman," in 
 inverted commas 1 
 
 A. He was a priest who had left the house, I should think, 
 more than twelve months before. He had been Sub-Prefect in 
 the house, I believe : he had certainly taught in the house, and 
 I think he was Sub-Prefect ; but I am not sure of this. 
 
 Q. Then there is somebody as to whom it is said, " Uncle, 
 or brother, keeps a small grocery establishment at Wednesfield 
 Heath." 
 
 A. From my knowledge of the clerical students I know who 
 that means ; but I would rather not mention his name. 
 
 Q. Then there is, " father, a general inspector of canal- 
 locks"? 
 
 A. I know for certain that there was a clerical student whose 
 father was an inspector of canal-locks. 
 
 Q. I see below, " Examine Henry Walter, of Fred, about" 
 (a certain person) " of Dudley." 
 
 A. I do not understand to this day what that means : " * * 
 of Dudley" was a clerical student in the house. 
 
 Q. Then I see in a memorandum at the back of p. 3 there 
 is a list of the names of some persons. Did he make you a 
 statement about that list of names ? 
 
 A. He made a statement that it had no reference whatever 
 to the Anti-Bunker Club. 
 
 Q. There are several names there ? 
 A. Yes. 
 
 Q. I see, at page 5, there is " a list of the members of the 
 A. B. C." Society, but no names following ; and in page 7, "We 
 want all particulars about any of the undermentioned as to birth, 
 parentage, qualifications, and patrons." Was there any explana- 
 tion of that 1 
 
 A. No ; it spoke for itself. 
 
 Q. Was what you have given us the substance of what passed 
 upon that occasion ?
 
 128 
 
 A. I think the whole of it. 
 
 Q. What did you do upon that 1 
 
 A. I desired him to go to his room, and to remain there 
 until he was sent for. 
 
 Q. We find, from the particulars, that the assault and im- 
 prisonment were on the 15th March 1865. Was he had before 
 you on that occasion, and kept in your room, for any other pur- 
 pose than for the purpose of examining him as to this society ? 
 
 A. For no other piu'pose whatever. 
 
 Q. And was the book used solely for that purpose 1 
 
 A. Solely for that purpose. 
 
 Q. You say you sent him to his room, and ordered him to 
 remain there until he was sent for, I think you say ? 
 
 A. Yes. 
 
 Q. What did you do upon that 1 
 
 A. I went to consult with the Vice-President. 
 
 Q. And did you consult with the Yice-President 1 
 
 A. Yes. 
 
 Q. And with any body else. 
 
 A. I think not in the Yice-President's room. I next saw the 
 Prefect; but I cannot swear whether that was with the Vice-Pre- 
 sident, or in my own room alone. The Prefect reported that 
 some news of what was going on had oozed out among the boys 
 as to the discovery of this Anti-Bunker Confederation, and that 
 it was causing some excitement. I thought the matter of suffi- 
 cient importance to summon the whole house together, and I 
 desired that David Fitzgerald should be brought to the meeting. 
 
 Q. He did not come, I believe ? 
 
 A. The Prefect reported that he could not find him. 
 
 Q. We understood from him that he had gone to the chapel, 
 I think he said. Was the bell rung, and was the ordinary sum- 
 mons given for the house to assemble ? 
 
 A. The bell was rung ; that was the ordinary summons for 
 all to assemble. 
 
 Q. Did you address them about this ? 
 
 A. Yes. 
 
 Q. He was not present ; but you afterwards stated to him 
 as he has told us some part, at all events, of what you said ? 
 
 A. Yes.
 
 129 
 
 Q. Did you tell him the substance of what you had said ? 
 
 A. Every thing, as far as I remember it. 
 
 Q. Then we can have it now ; and we had better take it 
 now as what you said to the boys ? 
 
 Lord Chief-Justice Cockburn: It is not necessary to go 
 through that. 
 
 Mr. Karslalce : I do not wish for it, my Lord ; only some- 
 thing was said about the cruelty of making a speech before the 
 boys. This is an action for an assault. 
 
 Lord Chief-Justice Cocklurn : It is not an action for what 
 was said. 
 
 Mr. Karslake : But my friend says that Dr. Northcote went 
 behind the back of Mr. Fitzgerald, and made a speech to the 
 boys ; and, of course, on the question of cruelty, and on the 
 question of expulsion, it is material for Dr. Northcote to justify 
 his conduct, which has been impugned. 
 
 Q. Perhaps you will have the goodness to state what you 
 did say ? 
 
 A. I told him that I had explained to the boys my notion of 
 a gentleman, and that I was very sorry to find that there were 
 some boys in the house who had very different notions as to 
 what a gentleman was, who measured gentility by the length 
 of their fathers' purse, or by any titles that they happened to 
 have; that I thought that "handsome was that handsome did;" 
 and that every boy, once received into the house, should be 
 received into equal companionship with the rest of the in- 
 mates; and that they were all to be treated alike, unless by their 
 own misconduct they had shown that they did not deserve to 
 be so treated ; and that I found that certain boys had formed an 
 association cigainst others not in an equal social position to their 
 own; that David Fitzgerald was at the head of it, and that I had 
 felt it my duty to expel him in consequence. The main part of 
 my speech was, I believe, on what gentlemanly conduct consisted 
 in, and especially on what I considered further was required of a 
 Christian gentleman; and I pointed out how diametrically op- 
 posed to these notions was the conduct of Fitzgerald and his 
 companions in this matter. I said that I did not read aloud the 
 names of the members of the association, because David Fitz- 
 gerald had himself exonerated some, and there might be some 
 
 K
 
 130 
 
 whose participation in guilt was not equal to the others' : that 
 I was very happy to see that there were not the names of boys 
 who held such a position in the house as would disgrace the 
 general character of the house, that they were boys much junior 
 to Fitzgerald; that the fact of his position had brought them 
 into it, they being so much younger than himself; and I am not 
 sure whether I told him also I suppose I did not what I had 
 said about the Oscotian Society, because he came to me after- 
 wards about this. 
 
 Q. Was that the substance of what you told him? ! 
 
 A. It was the substance. I did not go through all his mis- 
 demeanours for which these punishments had been inflicted, but 
 I named several of them; I am not sure whether I named them 
 specifically, but I spoke of his acts of insubordination and setting 
 the authorities at defiance. 
 
 Q. You say you mentioned that he was expelled and sent 
 away. Had you told him before you sent him to his room that 
 you should do so 1 
 
 A. I think my words were, " You know the consequences ;" 
 but, from what had passed between us on the last occasion, I 
 knew that he did know the consequences. 
 
 Q. You had intimated to him what they would be? 
 
 A. Yes. 
 
 Q. After this meeting had taken place, did you see him 
 again? 
 
 A. Yes. 
 
 Q. I suppose that it was at that meeting that you read the 
 extracts from Newman and Fuller ? 
 
 A. Yes. 
 
 Q. As to what constituted a gentleman ? 
 
 A. Yes. 
 
 Q. You saw him again, you say ? 
 
 A. Yes. 
 
 Q. What time was that ? 
 
 A. I think it was about a quarter-past one. 
 
 Q. Where did you see him 1 
 
 A. I found him at my room-door. 
 
 Q, What took place then? 
 
 A. I told him that I was surprised to see him; that I
 
 131 
 
 thought he had left the house; and that I was not surprised 
 that he should have done so, as I supposed it was only natural 
 that he should desire to avoid the humiliation of being present 
 whilst I publicly expelled him. He said he thought he had 
 been hardly dealt with ; and I reminded him of our conversation 
 together, and the terms on which we had parted, on Shrove- 
 Tuesday evening, and that this was the inevitable consequence 
 of what I had then said. I really do not remember much more, 
 or, indeed, any thing more, at this moment, unless my memory 
 is refreshed as to what I did say. 
 
 Q. How long was he in your room at that time 1 ? 
 
 A. I should think about twenty minutes, or it might be 
 half an hour. 
 
 Q. Was Mr. Stone there ? 
 
 A. Mr. Stone came there ; but whether I sent for him or 
 not, I am not quite sure. 
 
 Q. And how did it end 1 
 
 A. It ended in my saying that I had really nothing more to 
 say in the matter ; that he was expelled ; and that now I handed 
 him over to Mr. Stone, to get him his dinner, and to do all that 
 was necessary for sending him away. 
 
 Q. Did you give any instructions that he should go to his 
 room until he did leave 1 
 
 A. Certainly. 
 
 Lord Chief- Justice Cockburn : Till he left 1 
 
 A. Yes. 
 
 Q. Did you give any directions for locking him up? 
 
 A. I cannot undertake to swear whether I did or did not. 
 My own belief is that that is the usual course in all cases ; but I 
 cannot undertake to swear whether I did or not : probably the 
 Prefect (I have not asked him the question) would be able to 
 say whether I did or not. 
 
 Mr. Karslake : Was it at that interview that something was 
 said about the Oscotian meeting 1 
 
 A. No. 
 
 Q. You say you do not recollect whether you gave directions 
 to have him locked up or not ; have you had occasion to send 
 boys from Oscott before ? 
 
 A. I have done so.
 
 132 
 
 Q. Can you speak as to what has been the practice on 
 former occasions ? 
 
 A. I can only judge as to the practice from the practice that 
 prevailed at the school I was at myself, where, when a hoy was 
 expelled, he was locked up, and was not allowed to have any 
 communication with others. 
 
 Q. In your judgment, having regard to what you believed 
 Mr. Fitzgerald had done, was it proper or expedient that he 
 should mix with other boys between the time he left you and 
 his leaving the college 1 
 
 Lord Chief-Justice 'Cockburn : You cannot ask that. 
 
 Mr. Karslake: Then I will only ask you whether you 
 thought it expedient that he should go to his room ? 
 
 Lord Chief-Justice Cockburn : That is a very different ques- 
 tion. It is one thing to say you must leave, and another to put 
 him under lock and key. I mean it is a matter for the jury. 
 
 Mr. Karslake : In your judgment was it expedient and 
 proper, under the circumstances, that he should not mix with 
 the other boys before he left ? 
 
 A. Certainly. 
 
 Q. Were there in the same passage in which his private 
 room was a number of rooms belonging to boys of his own class ? 
 
 A. A great number. 
 
 Q. You say you do not know what was done; but was 
 there any thing to prevent the other boys in the house from 
 having access to him, unless some precaution was taken to keep 
 them away from him ? 
 
 A. Nothing whatever. 
 
 Lord Chief-Justice Cockburn: What time of the day was 
 thisl 
 
 A. About a quarter-past one; by the time he left my room 
 it would be perhaps twenty minutes to two, or half-past one. 
 
 Mr. Karslake: Where would the other boys be at that 
 time? 
 
 A. They would be just coming out from dinner. 
 
 Q. What do they do after dinner? Do they go to their 
 rooms ? 
 
 A. They play in the play-grounds. There was nothing to 
 prevent their going to their rooms.
 
 133 
 
 Q. You saw him, we understand, once again before he left 1 
 
 A. Yes. 
 
 Q. When was that? 
 
 A. I think it was exactly at three o'clock. 
 
 Q. Just before he left the house ? 
 
 A. Yes. 
 
 Q. And then it was that he spoke to you about the Oscotian 
 meeting. 
 
 A. Yes. 
 
 Q. Just tell me what he said about that 1 
 
 A. He asked me if he would be allowed to come to the 
 Oscotian meeting at Midsummer, as he was a member of the 
 Oscotian Society ; and I answered that it was a case that had 
 not occurred before; but that of course he could not come, as he 
 was expelled from the house. 
 
 Q. That is the last that you saw of him ? He then went 
 from the house, and went home ? 
 
 A. Yes. 
 
 Q. That same evening, in time for the post, did you write a 
 letter to the Judge ? 
 
 A. Yes. 
 
 Q. There was a further correspondence, and the other boys 
 were removed. When were they removed ? 
 
 A. They were removed by telegram the next day four of 
 them. 
 
 Q. Were they all brothers 1 
 
 A. No ; two brothers and two cousins. 
 
 Q. And they were all removed before you received the 
 Judge's letter in answer to yours ? 
 
 A. Yes. 
 
 Q. You say that David Fitzgerald came to you a second 
 time before you sent him back to his room. At that time did 
 you also believe that he was implicated in this Anti-Bunker 
 Society 1 
 
 A. Certainly. 
 
 Q. And was it on that ground, and because you thought 
 him not fit to remain at the college, that you sent him to his 
 room until he should leave ? 
 
 A. Certainly.
 
 134 
 
 Q. Suppose such, a society existed, as you thought at that 
 time did exist, in your judgment would it be very detrimental 
 indeed to the interests of the college ? 
 
 A. It would be ruinous to the college. 
 
 Q. And to the boys who were the objects of dislike to the 
 association ? 
 
 A. Certainly. 
 
 Q. I will ask you this question with reference to the new 
 assignment. You sent back the book after some little time, 
 having kept a copy of that part which has been read, and which 
 you considered contained the evidence against David Fitzgerald ? 
 
 A. Yes. 
 
 Q. Having done that, you sent the book over to Dublin ? 
 
 A. Yes. 
 
 Q. Something has been said about letters. Had you any 
 letters brought to you, or did you see any private letters of 
 David Fitzgerald's ? 
 A. Never. 
 
 Cross-examined by Mr. COLERIDGE. 
 
 Q, There was a telegraph between Oscott and Dublin, was 
 there not? 
 
 A. Yes ; that is, between Birmingham and Dublin. 
 
 Q, But you did not communicate with the Judge by tele- 
 graph? 
 
 A. No. 
 
 Q. You did not think that desirable ? 
 
 A. I did not see any possible use in it. 
 
 Q. As to these Church students you have spoken of their 
 numbers do you include in the Church students the Divines 1 
 
 A. No. 
 
 Q. But they are another form of Church students, are they ? 
 
 A. Not necessarily. 
 
 Q. They are Church students in the chrysalis state ? 
 
 A. Rather in the butterfly state ; but there are many Divines 
 who have never gone through the chrysalis state. 
 
 Q. There are a good many Divines ? 
 
 A. Yes. 
 
 Q. How many Divines would there be ?
 
 135 
 
 A. The number varies very much. I have known there to 
 be as few as fourteen, but at present there are about twenty-six. 
 
 Q. Those would have to be added to the twelve Church 
 students to make up what I may call the clerical element 1 
 
 A. I should say not. I do not think that there is any 
 feeling against the Divines. 
 
 d But they are persons who are about to become priests 1 
 
 A. Certainly. 
 
 Q. It is not common, I suppose, that a Divine relapses into 
 a layman ? 
 
 A. It is not at all uncommon. 
 
 Q. But the object of their being Divines is, that they may 
 become priests and go to missions ? 
 
 A. Yes ; but they are sifted, and some of them fall through, 
 just in the same way as Church students whilst yet in " the 
 bounds" do. 
 
 Q. When you speak of there being twelve Church students, 
 that does not include the Divines that is all I mean ? 
 
 A. No. 
 
 Q. You speak of their being sent by the Bishops, who are 
 answerable to you for the pension : do the pensions that are 
 paid by the Church students or Divines cover their expenses ? 
 
 A. Entirely. 
 
 Q. Could Oscott go on without the assistance of the laity ? 
 
 A. We could not keep so large an establishment we should 
 only occupy a twelfth part of the house, and keep a twelfth part 
 of the number of servants. 
 
 Q. Could the house go on simply as a seminary for priests, if 
 all the priests were Church students and paid only what the 
 Church students pay ? 
 
 A. I think so. 
 
 Q. Do you mean to say that it could be done at all t 
 
 A. I think so. 
 
 Q. The lay students are there, I suppose, at a profit 1 
 
 A. Of course. 
 
 Q. And the Church students are not, I suppose ? 
 
 A. I have never calculated with accuracy, but I should con- 
 sider that they more than pay their expenses. 
 
 Q. Do they go back at Christmas in the same way as the 
 others ?
 
 136 
 
 A. No ; they have not the liberty of going home at Christmas. 
 
 Q. Then the change which you made applies only to Mid- 
 summer? 
 
 A. Only to Midsummer. 
 
 Q. That is the only change you have made, is it 1 
 
 A. There are some minor changes ; that is the only one that 
 has been made with reference to the vacation. 
 
 Q. You say that when young Fitzgerald came back, there 
 were certain classes that he attended : do you mean to say that 
 he attended more than one classical book at a time 1 
 
 A. He attended two classical books at a time at least. 
 
 Q. Between September and Christmas 1 
 
 A. Yes. 
 
 Q. Two? 
 
 A. Yes. 
 
 Q. What were they ? 
 
 A. Cicero and Virgil. 
 
 Q. After Christmas was it Aristotle's Rhetoric only ? 
 
 A. I do not think it was Ehetoric at all it was the Cicero 
 continued, I think : he also attended the French, and I think 
 German. 
 
 Q. Did you give him private instructions as well? 
 
 A. In common with his two companions, who were going 
 up for the same examination. 
 
 Q. You gave him private instruction ? 
 
 A. With these other two. 
 
 Q. The regular Oscott course, if I understand, had been 
 finished by him at Midsummer 1864. 
 
 A. I suppose you may say that it was most boys would 
 leave then ; sometimes we have boys who stay for two years in 
 philosophy. I have one at this moment who intends to do so. 
 
 Q. He did not come back and stay for philosophy ? 
 
 A. No. 
 
 Lord Chief-Justice Coclcburn : What did the philosophy class 
 comprehend besides classics? 
 
 A. Logic and mental philosophy and natural philosophy. 
 
 Mr. Coleridge : He had so far completed that course, and he 
 came back for a special purpose : was any special arrangement 
 made, or did the pension go on the same as before ?
 
 137 
 
 A. Exactly the same. I think he was charged as other boys 
 would be charged who had any special private lessons in addition 
 to the usual course. 
 
 Q. That, I suppose, was arranged between the Judge and 
 you? 
 
 A. It was a matter of routine ; nothing was written about it 
 at all ; it is always done. 
 
 Q. He had been a very distinguished boy, had he not ? 
 
 A. Yes. 
 
 Q. And you had never, except in the letter that was referred 
 to yesterday, made any complaint about him to the Judge 1 
 
 A. ISTo ; I think not. 
 
 Q. You say that the corporal punishment of the ferula may 
 be inflicted without your knowledge : I am familiar with other 
 forms of punishment, but not with the ferula ; what is a 
 ferula ? 
 
 A. Upon the hand. I do not think I ever saw the instru- 
 ment myself, but I believe it is a thong of leather applied to the 
 hand. 
 
 Q. What is that punishment for which the interposition of 
 the President is required ? 
 
 A. In graver matters. 
 
 Q. I suppose in matters requiring a heavier punishment 1 
 
 A. Yes. 
 
 Q. What is that heavier punishment 1 
 
 A. With the cane, I should think. 
 
 Q. And that is only inflicted by the order of, and upon the 
 special interposition of the head, is it ? 
 
 A. I cannot say positively, because the discipline of the 
 house is carried on by tradition, and is in the hands of the Pre- 
 fects so much that my interference is only called for when any 
 special difficulty arises. 
 
 Q. As I understand, young Fitzgerald came there from 
 September to December ; and then there was this breaking-up 
 party of which you have spoken ? 
 
 A. Yes. 
 
 Q. You have not mentioned what school you were yourself 
 at before you went to Oxford 1 
 
 A. One of King Edward VI. 's Grammar Schools, which de-
 
 138 
 
 pends for its character entirely on the master at the time being 
 a school at Uminster. 
 
 Q. Were breaking-tip parties altogether unknown at Thnin- 
 ster? 
 
 A. Quite, so fax as I ever heard. 
 
 Q. Do you know whether in scholastic discipline, as in 
 moral theology, there is a distinction between venial and mortal 
 sins? 
 
 A. Yes, I daresay there is. 
 
 Q. Should you say that having a breaking-up party is a 
 mortal sin? 
 
 A. With spirits introduced into the house, it is. I should 
 consider introducing spirits into the house a mortal sin in any 
 
 Q. You did not ascertain that that mortal sin had been com- 
 mitted until some time afterwards, and therefore you let it pass ? 
 
 A. That was not the only reason. There had been a change 
 of Prefects at the time, and the matter was a little complicated 
 in consequence ; and therefore I thought it better upon the whole 
 to let it pass. 
 
 Q. You say that introducing a little whisky or brandy at a 
 breaking-up supper would be quite intolerable ? 
 
 A. Quite. 
 
 Q. I think you said that you also afterwards heard of his 
 having been in a public-house? 
 
 A. Yes. 
 
 Q. The house at Erdington is not like a public-house in 
 Seven Dials, or any thing of that kind, is it ? 
 
 A No. 
 
 Q. It is a modest auberge, is it not ? 
 
 A. It is a small inn. 
 
 Q. And that, you thought, was one of the very worst 
 offences that he could be guilty of? 
 
 A. If he was in the habit of frequenting the house. 
 
 Q. That is, if he was a public-house haunter ? 
 
 A. This was a case of one of our Philosophers going there. 
 
 Q. If he went there once, should you consider that to be one 
 of the worst offences that he could be guilty of? 
 
 A. It would depend entirely on circumstances.
 
 139 
 
 Q. If a young man, having taken a long walk, feels thirsty, 
 and goes into an inn to get a glass of beer, would that, in your 
 opinion, be one of the worst offences that he could commit ? 
 
 A. I should think that he had much better walk home first. 
 
 Q. But still you would not think it one of the worst offences 
 of which a man could be guilty ? 
 
 A. Xo, I should think not. 
 
 Q. I am glad to find that we have still so much in common. 
 You thought, however, that it was peculiarly wrong in him ? 
 
 A. Yes ; because of his being under punishment. 
 
 Q. That gave the thing a darker dye, did it 1 
 
 A. It made it worse certainly. 
 
 Q. Then he was to be reduced to the bounds ? 
 
 A. Yes. 
 
 Q, I think you say that you saw an indication in him of a 
 desire to measure strength with the new Prefect ? 
 
 A, Yes. 
 
 Q. It did not occur to you at all that the new Prefect wished 
 to measure strength with him ? 
 
 A. I should not have thought the cases parallel 
 
 Q. You never heard of a Superior wanting to annoy a boy 
 very little younger than himself? 
 
 A. The gentleman I appointed Prefect had been a priest 
 about twelve months before I appointed him. 
 
 Q. Then he would be twenty-four, and Mr. Fitzgerald was 
 nineteen ? 
 
 A. Only eighteen certainly there was about six years' dif- 
 ference in their ages. 
 
 Q. But is it quite a thing unknown for a person in the 
 situation of Prefect to bear a little hard upon those who are 
 under him ? 
 
 A. Such a case has never come before me in my experience 
 at Oscott. 
 
 Q. And probably your mind would not be readily accessible 
 to such an impression? 
 
 A. It would not naturally occur to me. 
 
 Q. I should suppose so. 
 
 Lord Chief- Justice Coekburn : How long was this gentleman 
 a Prefect?
 
 140 
 
 A. He was only appointed in January 1865. 
 
 Mr. Coleridge : New brooms, we know, are in the habit of 
 sweeping up rather clean ? 
 
 A. I think not always. 
 
 Q. Had Mr. Fitzgerald ever complained to you before of 
 any body besides Mr. Martin and Mr. Daly 1 
 
 A. I really cannot undertake to say. 
 
 Q. Will you undertake to say that he had 1 
 
 A. I believe he had; but I cannot undertake to swear it, 
 there are so many masters in the house. 
 
 Q. That is why I put two names to you. 
 
 A. I can swear as to those two that he has complained ; and 
 I believe I can swear that he has complained of another, Mr. 
 Williams. 
 
 Q. And in the case of Mr. Daly his sentence was reversed, 
 was it not ? . , . 
 
 A. There have been so many of those cases, I do not re- 
 member. 
 
 Q. When did this happen about Mr. Daly ? 
 
 A. I do not recollect. 
 
 Q. You do recollect the fact of an appeal against Mr. Daly ? 
 
 A. I believe I do. 
 
 Q. Do you believe that you upheld Fitzgerald, and reversed 
 the decision of Mr. Daly ? 
 
 A. No ; I think it is extremely improbable. 
 
 Q. So do I ; but still it was done, was it not ? 
 
 A. I do not think it was done ; I do not remember ever to 
 have reversed a master's sentence in Mr. Fitzgerald's case. 
 
 Q. Or in the case of others ? 
 
 A. Yes. 
 
 Q. You say that the authorities "of the house must be main- 
 tained, and that the discipline must be upheld 1 
 
 A. Yes. 
 
 Q. Your first impression would be, of course, against the 
 boy, and in favour of the master ? 
 
 A. It would depend entirely on the character of the boy. 
 Q. And on the character of the master also, would it not ? 
 
 A. Yes. 
 
 Q. Generally we know as a fact that an appeal to the head-
 
 141 
 
 master in a public school is not very often successful ; is not 
 that your experience ? 
 
 A. I was not at a public school myself. ] 
 
 Q. In King Edward's school ? 
 
 A. I do not think there were any appeals at the school I 
 was at ; I think that each master there was supreme. 
 
 Q. "Whenever Fitzgerald had talked to you, you had, in his 
 case, always upheld the master 1 
 
 A. I believe that I was always obliged to do so. 
 
 Q. When this matter occurred about the plantation, you say 
 you did not like the notion of Mr. Stone's having threatened to 
 " box his ears" ? 
 
 A. I believe it is contrary to the practice. 
 
 Q. But that you did not say any thing about ? 
 
 A. Not to him. 
 
 Q. That was upholding the authority of the master ? 
 
 A. It was not lowering his authority. 
 
 Q. What is the distinction ? 
 
 A. There is a little difference, I think. 
 
 Q. It was, I think you say, about a week after this answer 
 had been made by you about upholding the authorities of the 
 college that you heard of the A. B. C. : from whom did you 
 hear of that ? 
 
 A. Not of the A. B. C., but of the existence of a feeling. 
 
 Q. From whom did you hear it ? 
 
 A. The Vice-President. 
 
 Q. I understood you to say, that the first intimation you 
 had of this movement was about a week after your interview 
 with Mr. David Fitzgerald about the pistol ? 
 
 A. Yes. 
 
 Q. Was that from the Vice-President 1 
 
 A. We have a meeting every week of the Superiors, and it 
 was mentioned at this meeting ; but whether the Prefect of 
 Discipline, the Vice-President, or the Prefect of Studies, men- 
 tioned it, I cannot undertake to say. 
 
 Q. Was it not Mr. Stone ? 
 
 A. I cannot \indertake to say; it was mentioned at the meeting. 
 
 Q. You say that an unofficial communication was made to 
 you by the Vice-President on the subject ?
 
 142 
 
 A. Yes. 
 
 Q. That was something that had been uttered by Mr. Stone? 
 
 A. Yes. 
 
 Q. That, you say, struck you as very serious 1 
 
 A. Yes. 
 
 Q. So serious that you convened a meeting of the whole 
 house ] 
 
 A. Much more had happened before the whole house was 
 convened. I convened a meeting of the Superiors first. 
 
 Q. At that meeting, you say, the evidence was laid before 
 you] 
 
 A. Yes. 
 
 Q. And there was a second meeting ? 
 
 A. Yes. 
 
 Q. TThen was the second meeting ? 
 
 A. I think half-past ten. 
 
 Q. On the same day? 
 
 A. Yes. 
 
 Q. "Was the first meeting at nine o'clock in the morning ? 
 
 A. Yes. 
 
 Q. You say the evidence was gone into, and I think you 
 said it was sifted ? 
 
 A. I do not think I used that word. "We had only the 
 report of the Prefect as to what he had heard and read with his 
 own eyes. 
 
 Q. Mr. Stone told you that a Divine had said that a lay 
 student had said that there was this A. B. C. ? 
 
 A. Yes. 
 
 Q. And that young David Fitzgerald was at the head of iU 
 
 A. Yes. 
 
 Q. A lay student had reported to him the existence of a 
 conspiracy against the Church students, known by its members 
 as the A. B. C. ; that each member had a list of the other mem- 
 bers, and that the plaintiff was prime mover in it The evidence 
 was, that Mr. Stone had said that a Divine had said that a lay 
 student had said, what I will not repeat ? 
 
 A. Certainly. 
 
 Q. And then there was the pocket-book? 
 
 A. Yes.
 
 143 
 
 Q. That was the evidence 1 
 
 A. Yes. 
 
 Q. Did it occur to you that it would be well to send for 
 the lay student ? 
 
 A. 2fo. 
 
 Q. Or for the Divine ? 
 
 A. 2s T o. 
 
 Q. Did it not occur to you that it would be as well to go 
 to the fountain-head, in order to see what the value of the 
 evidence was ? 
 
 A. I had no more doubt of the accuracy of the report I had 
 received than I have of any thing I have stated myself; and 
 what I had heard was entirely confirmed by the pocket-book 
 and all its contents. 
 
 Q. Then it did not occur to you to go to the fountain-head ? 
 
 A. I did not do it. 
 
 Q. ]S"or did it occur to you to do it 1 
 
 A. I daresay not. 
 
 Q. If it had occurred to you, you would have done it ? 
 
 A. Perhaps so. 
 
 Lord Chief-Justice Cockburn: There was no evidence of what 
 we should call overt act 1 
 
 A. I have given evidence as to a list of the aristocracy of 
 Oscott that was afloat in the college. 
 
 Mr. Coleridge : Did you see the list 1 
 
 A. I think I saw the list. 
 
 Q. Where did you see itl 
 
 A. The Prefect found it. 
 
 Q. Where! 
 
 A. He came on a number of boys, to the number of eight 
 or ten, in a place where they had no right to be ; and at the 
 moment of his appearance he saw that they shuffled away some 
 paper, which he called for : that paper was given to him. The 
 next day he was called upon by one of the clerical students on 
 some other business, and this student told him that he had 
 heard that he had seized, the day before, a list of the aristocracy 
 of Oscott ; and he made further inquiries from this clerical 
 student as to what was going on in the bounds, and whether 
 they suffered any persecution.
 
 144 
 
 Q. Did you see the list! 
 
 A. I have said that I think I did 
 
 Q. Have yon got it? 
 
 A. Certainly not 
 
 Lord Ckief-Jugtice Cockburn : You say the inquiry was made 
 as to whether they suffered any persecution ? 
 
 A. Yes. 
 
 Q. Who made this inquiry t 
 
 A. Mr. Stone. 
 
 Mr. Coleridge : "Who produced the list of the aristocracy ! 
 
 A. It would be the Prefect, who had seen the list the day 
 before. 
 
 d By the Prefect I understand you usually to mean Mr. 
 Stone? 
 
 A. Mr. Stone. 
 
 Q, Has he got the list, do you know ? 
 
 A. I do not know. 
 
 a What was the length of this list? 
 
 A. I really do not know. 
 
 Q. You saw it? 
 
 A. From my recollection of it, I should think it was ten or 
 twelve names, perhaps. 
 
 Q. Ten or twelve names of the aristocracy of Oscott Was 
 it headed, "Aristocracy of Oscott"? "tfobbs"? or "Swells"? 
 or what ? 
 
 A. I do not think it had any heading at all 
 
 Q. A list of names ? 
 
 A. A list of names. 
 
 Lard Chief- Justice Codcburn: Was it a list of names as dis- 
 tinct from clerical students, or a list of the aristocracy? 
 
 A. I really do not at this moment remember a single name 
 in the list, because I treated the matter lightly, until further 
 acts came before me. 
 
 Mr. Coleridge: This was a formidable act; do you really 
 say that you felt your throne tottering under you? 
 
 A. No, certainly not ; but I felt that the peace of my sub- 
 jects was very seriously endangered. 
 
 Q. When the list was^produced to you, was any copy of the 
 pocket-book also produced?
 
 145 
 
 A. I think not. 
 
 Q, Did Mr. Stone merely tell you his recollection of it ? 
 
 A. I think so. 
 
 Q. And it struck you as a formidable thing, with ramifica- 
 tions ? 
 
 A. Certainly. 
 
 Q. You saw the pocket-book afterwards ? 
 
 A. Yes. 
 
 Q. And it confirmed your worst suspicions, did it ? 
 
 A. Yes. 
 
 Q. There seems to be a good deal which, I am sorry to say, 
 is unintelligible to me : there is a good deal about " cosines " 
 and " segments of circles," and so on ; do you think that those 
 segments of circles have any underhand meaning ? 
 
 A. I think not. 
 
 Q. Then there is something about Governor Moody being 
 elected by acclamation for his " magnanimous sentiments ;" did 
 not that strike you as an absurd thing 1 
 
 A. Yes ; I thought it perfectly absurd when I heard what 
 it was. 
 
 Q. And did not that, in your mind, cast a shadow of ridi- 
 cule over the whole of it ? 
 
 A. Xot of ridicule. 
 
 d Of absurdity] 
 
 A. Merely with reference to that entry, not with reference 
 to the other entries, which were substantial facts. 
 
 Q, It seems to be mixed up with a great deal of other mat- 
 ter ; he seems to have kept the documents of this confederation 
 very loosely ? 
 
 A. I think that the entries follow on, page after page. 
 
 Q. Excuse me. 
 
 A. I do not know that there are any other facts that inter- 
 vene. 
 
 Q. Here is one, at the beginning, I think. Xo ; that is 
 about the key of the bakehouse opening the paint-shop ; was 
 that told you at the same time ? 
 
 A. Xo. 
 
 Q. That you discovered on inspection ? 
 
 A. Yes.
 
 146 
 
 a And " * * *" and " * * *." Do you attribute any thing 
 to that 1 
 
 A. That is a page which he told me had no reference to the 
 society, and I asked him no further questions about it. 
 
 d And it seems to have no reference to the society, does it ? 
 
 A. I do not kno\v; I could not have understood the rest 
 without his explanation. 
 
 Q. I observe that in the list here a good many are struck out ? 
 
 A. I struck them out on David Fitzgerald's representation 
 that those boys had nothing to do with the society. 
 
 Q. You say that the book confirmed your worst suspicions ; 
 had you told Mr. Stone before any thing about Mr. Fitzgerald's 
 position in the house? had you told him that it was fickle and 
 frail? 
 
 A. I certainly did not say it was fickle. When he has 
 brought me complaints about David Fitzgerald, I have said, 
 " I have given him his warning ; his position in the house is 
 extremely precarious ; and if he commits any further offence, I 
 must send him away." 
 
 Q, Did you tell him that he was in the house for his own 
 purposes, and not for yours ? 
 
 A. Js"o ; that is a misrepresentation. I think what I said 
 was, that he was here for his own particular studies ; and that 
 if he did not conform to the discipline of the house, I must 
 send him away. 
 
 Q. The Prefects could not overrule you in any way? 
 
 A. TSo. 
 
 Q. However much you might consult them, you would be 
 the authority who did it ? 
 
 A. Yes. 
 
 Q. As I understand you, before you proceeded to see him 
 and the book, you had made up your mind that he should go ? 
 
 A. Certainly, if the book contained that which I was told it 
 did. 
 
 Q. Then he came, and you say that the book was brought 
 with him? 
 
 A. Yes. 
 
 a Did Mr. Stone tell you how he had obtained the infor- 
 mation that was in the book ?
 
 147 
 
 A, Yes ; he had told me on the Monday morning. 
 
 Q. How long did he say he had got it? 
 
 A. He said that as soon as he received information of the 
 existence of this association, and that each of the members of 
 it had a list of the other members, he went to David Fitzgerald's 
 room, to see if he could find the list ; that he found 'his pocket- 
 book on the table, and that in that pocket-book he found the 
 list. 
 
 Q. And the rest of the documents ? 
 
 A. And the rest of the documents. 
 
 d Had he gone there by your desire at all ? 
 
 A. JSTo ; I was absent from the college. 
 
 Q. Are you quite sure that no letters of his were read at all ? 
 
 A. Certainly perfectly sure of it. I never even asked such 
 a question, because such a thing is never done. I feel quite sure 
 that it was not done : I never asked the question, for I should 
 have considered it an insult. 
 
 Q. Had you told Mr. Stone to keep an eye upon him, and 
 to watch him ? 
 
 A. When he complained to me of him for breaches of dis- 
 cipline, I said, " If he goes on so badly, I shall be obliged to 
 send him away." But it is not likely that I told Mr. Stone to 
 keep an eye upon him, it being part of his duty to do so. 
 
 Q. When you sent for him, you had got the information and 
 the book, and you had made up your mind to act upon that ? 
 
 A. If I found that the book contained what I was told it 
 did contain. 
 
 Q. You say that the boy offered to show yon a letter from 
 his father. I ask you whether the passage in Mr. Justice Fitz- 
 gerald's letter was not, "What on earth is the A. B. C.1 Pray 
 enrol me as a member, and let me know what the subscription 
 is"? 
 
 A. I never saw such words. The words, to the best of my 
 recollection, were, "What is the subscription to the A. B. C.T 
 
 Q. You told young David Fitzgerald that you would like 
 to have seen what the Judge thought about it ? 
 
 A. Yes. 
 
 Q. But you did not think it right to give him any oppor- 
 tunity of letting you know what he did think about it)
 
 148 
 
 A. I could not. 
 
 Q. When you had made up your mind to expel him, you 
 say you summoned the house by bell to see the expulsion ? 
 A. Yes. 
 
 Q. I am sure I do not desire to see those notes; but you did, 
 in fact, make notes of your speech, did you not ? 
 
 A. You are perfectly welcome to see any notes I made. 
 Q. You must have written down, for instance, the passage 
 which you read from Dr. Newman 1 
 A. N"o ; I took the books with me. 
 
 Q. I suppose the point of your speech was that he was not 
 a gentleman ? 
 
 A. That he had behaved in a very ungentlemanly way. 
 Q. You say that you have had occasion to send boys away 
 before? "Were there two boys sent away in the month of 
 January or February, early in that same half-year ? 
 A. I think not. 
 
 Q. "Were there two boys who ran away 1 
 A. Yes. 
 
 Q. I do not want to know their names, very far from it ; 
 but had they been accused of some gross indecency? 
 
 A. They had been accused of holding immodest conversation. 
 Q. And they ran away? 
 
 A. Yes, while the matter was under investigation, which 
 they knew very well ; and I supposed therefore that they were 
 guilty. 
 
 Q. Did you then assemble the house ? 
 
 A. Certainly not ; the matter was not one on which I should 
 wish to speak to 120 boys. 
 
 Q. You did not speak to the boys at all ? 
 A. It was a very delicate subject to speak about to boys under 
 twelve years of age, of whom I had perhaps fifty or sixty ; and I 
 said as few words as possible to them. I said I found that it 
 was known to some of the boys that these two boys had in- 
 tended to run away; and I pointed out to them the extreme folly 
 of allowing them to do such a fatal thing without reporting it to 
 the authorities. 
 
 Q. Did you say that their case was not a case in which they 
 would have been expelled?
 
 149 
 
 A. I said that, as far as the matter had been investigated by 
 the Prefect and myself, we had not been able to find them guilty, 
 and that therefore if they had remained, I should probably have 
 thought them innocent ; but that from the fact of their having 
 run away, I could not help thinking they were guilty, and that 
 I should now refuse to take them back. 
 
 Q. Was that in this half-year ? 
 
 A. I thought myself that it was between September and 
 Christmas ; but I cannot say at all. 
 
 Q. Then he was expelled ? 
 
 A. Who was? 
 
 Q. Mr. Fitzgerald was publicly expelled ? 
 
 A. Yes. 
 
 Q. And are you sure that you said nothing about the Os- 
 cotian Society? 
 
 A. I think it most likely that I did. 
 
 Q, That he was also to be expelled from that ? 
 
 A. That he must be removed from that. 
 
 Q. Did you tell them also that he was a liar ? 
 
 A. No ; certainly not. 
 
 Q. Perhaps I do not use the right expression, but did you 
 convey to them the same idea ? 
 
 A. I should say certainly not. I do not know whether I 
 told them any of the circumstances of the pistol-case ; if I did, 
 I may have said that he had been guilty of gross equivocation 
 to a superior. 
 
 Q. Was it that he had been guilty of equivocation amount- 
 ing to a lie ? 
 
 A. Very likely. 
 
 Q. You say he went away from you expelled, and then you 
 ordered him to be locked up. Did you give any order for him 
 to be locked up ? 
 
 A. I do not think I did ; but I am responsible for it. 
 
 Q. Do you know the fact that he was locked up from that 
 time until he left the house 1 
 
 A. Yes ; I have heard a great deal of it since. 
 
 Q. Does the Anti-Bunker Confederation now present itself 
 to your mind in the same formidable light that it did in March 
 1865?
 
 150 
 
 A. I have never heard a word to alter my opinion of it. 
 
 Q. The evidence that Mr. Fitzgerald gave yesterday does 
 not alter your opinion ? 
 
 A. Hot the least. 
 
 Q. You still consider it a very formidable thing 1 
 
 A. I think it was a most mischievous thing for the rest of 
 the house, and for the happiness of the weakest part of the in- 
 habitants. 
 
 Q. I should be sorry to misrepresent you by and by. Is 
 that which you have stated really the whole of the evidence . 
 upon which you acted ? 
 
 A. The whole, so far as I know. 
 
 Q. And upon that evidence you felt compelled, as I under- 
 stand you, to expel David Fitzgerald 1 
 
 A. Yes; this being the last step in a series of .offences. 
 
 Q. As I understand you, you had made up your mind to 
 expel him upon that evidence, supposing the book should turn 
 out to be what Mr. Stone had represented it to be, before you 
 had heard him ? 
 
 A. Ho ; I heard him, but he was unable to say any thing 
 in his defence. 
 
 Q. You thought there was nothing in his defence when he 
 said it was nonsense ? 
 
 A. Ho, certainly not ; his mere assertion proved nothing. I 
 paw myself one entry on the 6th of March. 
 
 Q. About Governor Moody 1 
 
 A, Yes. 
 
 Q Ho doubt you considered that that was absurd ? 
 
 A. Quite so. 
 
 Q. And that is the last entry ? 
 
 A. Ho, it is not the last. 
 
 Q. However, there is nothing to show that any thing was 
 entered after that date ? 
 
 A. I speak from memory ; but I think you will see that 
 there was an entry after that date. 
 
 Q. When the other boys (the two other sons of Mr. Justice 
 Fitzgerald, and their cousins) were removed, did you make 
 another address to the house ? 
 
 A. I made another address in consequence of telegrams that
 
 151 
 
 I received. The boy was expelled on the Monday, and on the 
 Tuesday I received telegrams to recall the two other sons of Mr. 
 Justice Fitzgerald. The order was that they were to leave by 
 the first train on "Wednesday morning to meet the Irish mail. 
 I arranged for them to leave at seven o'clock, which was neces- 
 sary in order to catch the Irish mail; and I went to the boys in 
 the refectory at a quarter-past eight o'clock, to explain the cir- 
 cumstances under which four boys disappeared so suddenly from 
 the college. I thought that their leaving must necessarily cause 
 a talk, and I therefore considered it right that the other boys 
 should know under what circumstances they had gone. I said 
 that, with reference to John, the eldest son, there was the dis- 
 tinct testimony of his brother that he had had nothing to do 
 with the association, and that, so far as I was concerned, he 
 might have remained happily in the house ; that as to Gerald, 
 his name was down, and his brother had not excused him, and 
 I knew nothing about him ; as to the eldest son of Mr. Justice 
 Fitzgerald's brother, he was a boy who had been so long with 
 us, and who was so universally respected, that I was sure that 
 the mere fact of his name having been put down as a member 
 of the association would not be enough to condemn him in their 
 eyes, that he had probably been seduced into it out of respect 
 for the superior talents of his cousin, who was so much older 
 than himself; as to the youngest Fitzgerald, the cousin of David, 
 I forget what I said about him entirely, because he was so young. 
 I then went on to tell them that I thought it my duty to repeat 
 that when once a person was received into the college as a 
 student, he should be received upon terms of perfect equality 
 with the rest, and that I considered myself in loco parent is ; 
 that I was bound to look after and protect those who were least 
 able to protect themselves ; and that if I found any boy sowing 
 the seeds of discord among different classes of the house, I must 
 visit it with great severity, and that in proportion to the age of 
 the offender, and his position in the college, must be the in- 
 creased severity of his punishment. I believe that that is what 
 I said. 
 
 Q. The result of what you said was, that you considered Mr. 
 David Fitzgerald was the prime mover in the whole matter, and 
 that he was responsible ?
 
 152 
 
 A. Certainly. 
 
 Q. Did you say that something had come to your knowledge 
 with regard to him -which was so bad that you could not men- 
 tion it? 
 
 A. I think not. I think I know to what you allude ; it has 
 been rumoured, I am aware, that I made such a statement, but 
 I believe the origin of the rumour was this : I did not choose to 
 mention in the presence of 120 boys the offence of bringing 
 spirits into the house on an occasion when one of the boys cer- 
 tainly drank to excess ; but no imputation was made against the 
 moral character of the plaintiff. 
 
 Q. Did you say any thing about that or not ? 
 
 A. Certainly not; there was no offence to be laid to his 
 charge in that respect. 
 
 Q. I mean as to the spirits 1 
 
 A. I suppose that the sentence in my speech, which has 
 been misrepresented in a way which has reached my ears, is a 
 sentence in which I said there was another offence about which 
 I did not choose to speak to them. I should not hare liked to 
 tell those boys that there were some among them who had been 
 parties to the commission of such an offence as that of having 
 spirits in the house and getting drunk. 
 
 a I suppose that Horace is studied at Oscott College t 
 
 A. Yes. 
 
 Q. And the Saturnalia you do not consider to be excus- 
 able? 
 
 A. 3b, not at alL 
 
 He-examined by Mr. KABSLAKE. 
 
 Q. You would consider it most detrimental to the discipline 
 of tke school that boys should have spirits either at breaking-up 
 times or at any other time ? 
 
 A. Certainly. 
 
 Q. Especially if the effect is to produce drunkenness ? 
 
 A. Yes. 
 
 Q. Had you understood that on the occasion to which refer- 
 ence has been made they had drunk to excess? 
 
 A. I have no doubt that one boy had. 
 
 Q. You say that you never made, or intended to make, any
 
 153 
 
 charge of immorality against young Mr. Fitzgerald either di- 
 rectly or indirectly ? 
 
 A. Certainly never. 
 
 Q. I see here this, -which I had not seen before : there are 
 the names of John and James Fitzgerald in pencil, and * * * 
 and * * * are struck through in this list of the A. B. CJ 
 
 A. Yes. 
 
 Q. Are the words "John and James" in your handwriting ? 
 
 A. Yes. 
 
 Q. And were the names that are struck out in pencil struck 
 out by you ? 
 
 A. They were. 
 
 Q. Did you make those notes, "John and James," in the 
 presence of David Fitzgerald ? 
 
 A. I did. 
 
 Q. And did you strike them out in the presence of David 
 Fitzgerald ? 
 
 A. Yes, I did. 
 
 Q. How came you to put the names of John and James 
 against " Fitzgerald, 5" ? 
 
 A. Because David told me that he had asked his brother 
 John to join the association, and he had refused ; and I see 
 now that James the younger Fitzgerald was also not a member, 
 and therefore I struck out their names. 
 
 Q. Was it on the same occasion that you struck through 
 those other two names in pencil ? 
 * A. I did. 
 
 Q. What led you to do that ? 
 
 A. He told me that in one case only one of the brothers 
 had to do with it, and in another case that his name was put 
 down without the boy's leave ; and I therefore struck them out. 
 
 Q. Were the other two boys you have spoken of who ran 
 away foreigners ? 
 
 A. They were. 
 
 Lord Chief- Justice : What is the good of asking this ques- 
 tion, Mr. Karslake? 
 
 A. I don't know, my Lord ; but questions were asked about 
 this matter on the other side. 
 
 Lord Chief -Justice : I know; but when answers were given
 
 154 
 
 from "which it was impossible to elicit any thing on the plaintiff's 
 side, there is no use in pursuing the matter any further. 
 
 A Juror: Did you say that upon investigating the case as 
 to those two boys, you found there was nothing against them ? 
 
 A. I do not think I said I found there was nothing against 
 them, but that there was nothing to prove them guilty. 
 
 Q. And yet you expelled them ] 
 
 A. JS"o ; they ran away. 
 
 Q. You would not receive them back 1 
 
 A. No ; because I looked upon their running away as a con- 
 fession of guilt. I thought that if they were innocent, they 
 would not have run away. I thought they were afraid of the 
 result of the investigation; they did not know that we had 
 not proved any thing against them, and they were afraid, and 
 therefore ran away. 
 
 Mr. Karslake : There had been a charge made against them 
 of using indecent language, which charge was under considera- 
 tion ; the proof had' not been complete, and they ran away ; and 
 you told the assembled boys that as they had run away, though 
 the charge was not proved, you would not receive them back ? 
 
 A. I do not think I said any thing about receiving them 
 back; I never dreamt of their applying to be received back, 
 though one of them afterwards did apply and was refused. 
 
 Q. On the 12th you were absent from the college, I think 
 you say? 
 
 A. In the afternoon I was. 
 
 Q. You told my friend that you made inquiries of young 
 Fitzgerald about Governor Moody, and that he explained to you 
 that it was not young Moody, but the elder one ? 
 
 A. Yes. 
 
 Q. And upon his representation you believed that to be the 
 truth? 
 
 A. I believed that to be the truth. 
 
 Q. Mr. Stone had told you previously that there was, as he 
 understood, persecution in the bounds ? 
 
 A. Yes. 
 
 Q. Did he tell you that on the Monday morning ? 
 
 A. No ; that was the week before. 
 
 Q. Mr. Stone had informed you of that ?
 
 155 
 
 A. Yes. 
 
 Q. Was that also mentioned when the superiors met on 
 that morning 1 
 
 A. We met once a- week always ; therefore at what particular 
 meeting that was mentioned publicly to us I cannot say. 
 
 Q. You told my friend just now that still, according to the 
 rules, there is this distinction made with reference to the Church 
 students, that they do not go home at Christmas ? 
 
 A. Yes. 
 
 Q. Are there besides the Church students who have patrons 
 other Church students who come to the college 1 
 
 A. ]S"ot among the boys ; there are a great number among 
 the Divines. 
 
 Q. But among the boys are there students who are reading 
 for the Church ? 
 
 A. If they are, they do not make it public. 
 
 Q. They do not come distinctly as Church students 1 
 
 A. JSo. 
 
 Q. Then are all these boys whom you call Church students, 
 and who are not allowed to go home at Christmas under the 
 present state of things, persons who come from patrons ? 
 
 A. Yes. 
 
 Q. Upon funds supplied by Bishops ? 
 
 A. Yes. 
 
 Q. The place is very large, and it would never do to keep 
 it merely for the ecclesiastical students? 
 
 A. Certainly not. 
 
 Q. My friend has asked you some questions about young 
 Fitzgerald measuring strength with Mr. Stone ; Mr. Stone, you 
 say, was a priest in orders ? 
 
 A. Yes. 
 
 Q. Had he been educated at the college ] 
 
 A. He had been at the college, I believe, eight or ten or 
 twelve years ; long before my time. 
 
 Q. My friend asked you whether it occurred to you that 
 Mr. Stone might be measuring strength with Mr. David Fitz- 
 gerald; was Mr. David Fitzgerald under the control of Mr. 
 Stone as Prefect of Discipline ? 
 
 A. Certainly.
 
 156 
 
 Q. You say that you do not include Divines in the Church 
 students ; I believe that among what you call Divines there are 
 lay professors, are there not ? 
 
 A. No ; not lay professors among the Divines. 
 
 A Juror: About the public-house : you say the senior stu- 
 dents in parties of not less than three are allowed to go out 
 beyond the boundaries, and they may go for miles and not 
 return for two or three hours 1 
 
 A. Yes. 
 
 Q. Suppose they walk a long way on a very hot day, and 
 go into a house where they sell ginger-beer or soda-water, are 
 those boys, if they go there, to be visited with expulsion ? 
 
 A. No, not necessarily with expulsion certainly. 
 
 A Juror: My Lord, I can only say that I believe every 
 word that young Mr. Fitzgerald has said is gospel truth, and I 
 think it was a most disgraceful thing to dismiss him from the 
 college. That is quite clear to my mind. 
 
 Lord Chief-Justice CocJcburn: Eeally, gentlemen, I cannot 
 permit that. 
 
 Mr. Karslake : It is a very unusual course for a juryman 
 to make such a statement before he has heard the case half 
 through. 
 
 Lord Chief-Justice CocJcburn : I have to attend the House 
 of Lords now; and therefore the case must be adjourned to 
 to-morrow. 
 
 (Adjourned to to-morrow at ten o'clock.)
 
 157 
 
 THIRD DAY. 
 
 The Eev. WILLIAM STONE sworn. Examined by Mr. VERNON 
 HARCOURT. 
 
 Q. You are a priest, I believe ? 
 
 A. I am. 
 
 Q. And what is called the Prefect of Discipline at Oscott 
 College ? 
 
 A. Yes. 
 
 Q. What age are you ? 
 
 A. I am now in my twenty-sixth year. 
 
 Q. How long had you been at Oscott College before you 
 were appointed Prefect of Discipline 1 
 
 A. I had been at Oscott ten years and a half. 
 
 Q. When were you appointed Prefect of Discipline 1 
 
 A. In January 1865. 
 
 Q. I believe there are no written rules which prescribe your 
 authority over the students, are there 1 
 
 A. There are not. 
 
 Q. But of course there are certain traditions and habits 
 which are known to limit the authority of the Prefect of Dis- 
 cipline for the preservation of discipline in the school ? 
 
 A. Certainly. 
 
 Q. There are certain rules, are there not, for the government 
 and conduct of the students ? 
 
 A. There are. 
 
 Q. Are those rules read out every half-year ? 
 
 A. They are read out every half-year. 
 
 Mr. Harcourt (to Mr. Coleridge) : Have you the rules there 1 
 
 Mr. Coleridge : We had them yesterday. If you want to 
 refer to any thing, perhaps you will just call our attention to it. 
 
 Mr. V. Harcourt : The rules will be considered in, then. 
 
 Q. In all matters of discipline and breaches of discipline in
 
 158 
 
 the school, you have, in the first instance, authority to prescribe 
 punishment, have you not ? 
 
 A. I have. 
 
 Q. To the younger pupils, I suppose, corporal punishment ? 
 
 A. Yes. 
 
 Q. And to the elder students other punishment ? 
 
 A. Yes. 
 
 Q. From you, and from your sentence, the students can 
 appeal to the President ? 
 
 A. Yes. 
 
 Q. But, subject to such an appeal, you have the absolute 
 control of the discipline of the school 1 
 A. I have. 
 
 Q. Are all the students at Oscott, with the exception of 
 those who are over seventeen years of age, governed by the 
 same rules ? 
 
 A. Those who are over seventeen years of age are exempt 
 from corporal punishment. 
 
 Q. But in other respects are the students subject to the 
 same rules ? 
 
 A. Yes ; they are subject to the same rules, except in the 
 class of Philosophers, where there are certain extra privileges. 
 
 Lord CJiief-Justice Cockburn : Being above seventeen places 
 them beyond the reach of corporal punishment, independent of 
 the class ? 
 
 A. They are not subject to corporal punishment when they 
 are in the poetry class. The three higher classes are exempt, 
 and all those over seventeen years of age. 
 
 Mr. V. Harcourt : Except, of course, by the express orders 
 of the President ? 
 
 A. Yes. 
 
 Q. You say that the higher class that is, the class of Phi- 
 losophers have certain privileges ? 
 
 A. They have. 
 
 Q. Those are privileges which are well known and denned. 
 
 A. Yes. 
 
 Q. At the time you became Prefect of Discipline, the Plain- 
 tiff, young Mr. Fitzgerald, was in the class of Philosophers, and 
 had those privileges, had he not 1
 
 159 
 
 A. He had. 
 
 Mr. Coleridge : We dispute that ; you must not assume that. 
 
 Mr. V. Harcourt : Then I must ask you directly this ques- 
 tion : "Was Mr. Fitzgerald under you, and subject to that autho- 
 rity, in the same position as the Philosophers 1 
 
 A. He was in the same position as the rest of the Philo- 
 sophers. 
 
 Q. And subject to the same rules and discipline as the class 
 of Philosophers ? 
 
 A. With one exception ; I do not know on whose authority 
 it was, but he had permission to remain in bed an extra half 
 hour in the morning. 
 
 Q. Do you happen to know whether he had had that per- 
 mission for two years previously or not ? 
 
 A. I do not know. 
 
 Q. That is not within your knowledge, is it ? 
 
 A. No. 
 
 Q. I believe the matter about the drinking party occurred 
 before you became Prefect ? 
 
 A. Yes. 
 
 Q. And that did not come consequently under your cogni- 
 sance ? 
 
 A. No ; it did not come under my cognisance. 
 
 Q. Was the first occasion on which you had to find fault 
 with Mr. Fitzgerald on the subject of the matter which has been 
 spoken of, the pass-key? 
 
 A. Yes. 
 
 Q. Just tell us shortly, in your own words, what happened 
 about the key. 
 
 A. David Fitzgerald returned home from the vacation, I 
 think on the 31st of January, I am not exactly certain as to 
 the hour, but it was after ten o'clock. 
 
 Lord Chief-Justice Cockburn: After ten o'clock at night? 
 
 A. Yes; and I was undressing and going to bed. David 
 Fitzgerald came to my room, and asked me to open his room, 
 which had been locked during the time of vacation; and I lent 
 him a pass-key. 
 
 Mr. V. Harcourt: Just state what that key was. 
 
 A. It was a key that opened all the students' rooms, all the
 
 160 
 
 masters' rooms, and all the class-rooms of the house, and several 
 of the offices. I lent it him, with the express injunction that 
 he should bring it back to me the first thing in the morning. 
 About two o'clock on the following morning I met Fitzgerald 
 in the cloisters. 
 
 Q. In the afternoon, I suppose you mean ? 
 
 A. Yes, two o'clock in the afternoon. I met him in the 
 cloisters, and reminded him that he had not given me the key. 
 He produced it, and I remarked, " This is not the key, David." 
 He said, "It is, sir." I then looked at it more closely, and saw 
 that it was the key, but I noticed that it had been tampered 
 with. 
 
 Lord Chief-Justice Cockburn : Tell us what you saw. 
 
 A . First of all, it was blackened, and wax was adhering to 
 it ; and I asked him what he had been doing with it. I said, 
 "Have you been putting it to the fire?" He said, "No." I 
 said, " What have you been doing with it ?" He said, " Nothing 
 at all ;" and went upstairs. It then struck me that he had been 
 taking an impression of the key in wax ; and that same after- 
 noon a wax impression of the key, and a rubbing of the key 
 a drawing of the key on paper were put into my hands. 
 
 Mr. Coleridge: Which? 
 
 A. It was the wards of the key drawn with ink ; these two 
 were put into my hands by my assistant. I went to David 
 Fitzgerald's room after night-prayers, and I showed him the im- 
 pression in wax and the rubbing on paper, and I asked him if 
 he recognised them. He said that it was a very faithful impres- 
 sion ; he said it in a joking manner, passing it off as a joke ; he 
 said that it was a very faithful copy of the key. I then asked 
 him if he considered it an honourable thing to do. To which he 
 replied, that he saw no harm in it. I then said, " If you see no 
 harm in it, perhaps your superiors will not think so lightly of it, 
 and I shall inform them of it." I informed the Vice-President. 
 
 Q. That evening ? 
 
 A. That same evening. I do not know whether I went to 
 the Vice-President for the express purpose of informing him; but 
 I know that I informed him the same evening. 
 
 Lord Chief-Justice Cockburn : You did inform him ? 
 
 A. I did inform him.
 
 161 
 
 Mr. V. Harcourt : Well, go on. 
 
 A. Some time after, about a quarter of an hour, I should 
 say, David Fitzgerald met me again, and said to me, " I have 
 come to you to ask you not to mention my taking an impression 
 of the key to Dr. Northcote." He said he acknowledged that it 
 was a dishonourable thing to do, and that he would not do so 
 again. 
 
 Q. I must ask you this : did you say on that occasion, or on 
 any occasion, with reference to this pass-key, that you thought 
 there was nothing in it, and that it did not signify ] 
 
 A. I never did. 
 
 Q. Well? 
 
 A. I then told him that I would not mention it to Dr. North- 
 cote ; and I went straight to the Vice-President, and told him 
 that David Fitzgerald had "bee a to me, confessing that it was a 
 dishonourable thing to do ; and I begged him not to mention 
 the matter to Dr. Northcote ; which he never did. 
 
 Q. I must ask you this question : had you at that time any 
 desire to get David Fitzgerald into trouble 1 
 
 A. Not the least ; we had always been on very good terms, 
 on the very best of terms, I might say. 
 
 Q. Let me ask you about that key. Was that a key that 
 David Fitzgerald, or any boy in the Philosophers' class, could be 
 entitled to have at all ? 
 
 A. No. 
 
 Lord Chief-Justice CocJcbitrn : You may assume that. 
 
 The Witness : All the boys' rooms are opened with the same 
 key; and it was against the tradition, and- it was never allowed 
 for any boy to have the key of his private room. 
 
 Q. Fitzgerald said that he had got the wax from which the 
 impression was taken from the wax sacristy. Was that a room 
 that was locked 1 
 
 A. That was locked. 
 
 Q. With what key could that be opened ? 
 
 A. It could be opened by this pass-key. 
 
 Q. You say that this matter, after young Mr. Fitzgerald had 
 been with you, was not mentioned to Dr. Northcotc till subse- 
 quently, at the last moment ? 
 
 A. At the last moment.
 
 162 
 
 Q. Was that when Mr. .Fitzgerald's conduct was "being in- 
 vestigated 1 
 
 A. It was ; and he released me from my promise of secrecy. 
 
 Q. It was not until he released you from your promise of 
 secrecy that you mentioned it 1 
 
 A. It was not. 
 
 Lord Chief -Justice Cocldnmi: Would not that have come 
 "better when the circumstances had been investigated? How- 
 ever, we may take it for the present, that it was not mentioned 
 till that time. 
 
 A. There was no actual promise made. 
 
 Mr. V. Harcoiirt : That was the first occasion, as I under- 
 stand you, on which you had to complain, seriously at least, of 
 young Mr. Fitzgerald 1 
 
 A. That was the first occasion. 
 
 Q. After you were made Prefect of Discipline ? 
 
 A. Yes. 
 
 Q. Was your next subject of complaint about the 20th or 
 21st of February? 
 
 A. It was about the 20th or 21st of February. 
 
 Q, What did that relate to ? 
 
 A. I am not sure whether it was the 20th or the 21st ; but 
 I found him up one night at half-past eleven o'clock, when he 
 ought to have been in bed by ten o'clock. 
 
 Q. That was according to the rules ? 
 
 A. Yes. 
 
 Q. And was he subject to those rules ? 
 
 A. He was subject to the same rules as the others. 
 
 Q. There had been no exemption made in his case ? 
 
 A. Not that I ever heard of. 
 
 Q. What did you do upon that ? 
 
 A. I took away his privileges for three days. 
 
 Q. Was that the first tune that he had done it ; or had you 
 reason to believe that he had done so on former occasions ? 
 
 A. The first week I was in office I was told by a superior 
 
 Mr. Coleridge : I do not know how far we can go into that. 
 
 Lord Chief-Justice Coclcburn: It may account for what 
 otherwise may appear to have been a severe enforcement of the 
 jules.
 
 163 
 
 Mr. V. Harcourt: Did you say any thing to young Mr. 
 Fitzgerald about it having been done before 1 
 
 A. I am not sure whether I did ; I am pretty sure, but I 
 will not swear to it. 
 
 Q. When you inflicted this punishment upon him, did you 
 believe that it was a thing that had been done before 1 
 
 A. I did ; in fact, I knew it for certain. 
 
 Q. What did the punishment amount to 1 
 
 A. His privileges were suspended for three days ; he. was 
 confined to bounds, and he would not be entitled to go into the 
 plantations. 
 
 Q. He was confined to bounds for three days ? 
 
 A. Yes. 
 
 Lord Chief-Justice Cockbnrn: The plantations are beyond 
 'the ordinary bounds 1 
 
 A. Yes. 
 
 Mr. V. Harcourt : While he was so confined to bounds by 
 you, did you afterwards find him having broken those bounds ? 
 
 A. It happened the very next day, or the day after. I Avill 
 not be sure whether it was the 21st or the 22d that he went 
 out with a party of Philosophers. 
 
 Q. Just tell us what you saw about that 
 
 A. I took no notice of it at the time. It so happened that 
 at that time I was busily engaged in getting up plays for the 
 Shrovetide vacation; and although I remarked it, I had not 
 time to speak to him upon the subject 
 
 Q. Was that the occasion on which you saw him at the 
 Swan Inn ? 
 
 A. Xo ; that was the day following. 
 
 Q. Then you saw him out of bounds before the occasion at 
 the Swan Inn ? 
 
 A. I did not actually see him ; but he put a party in my 
 rooms, with his name at the head of the list. 
 
 Q. Let us go on to the next day : what happened the next 
 day? 
 
 A. The next day one of the superiors informed me (the Vice- 
 President) that he had seen two boys on the road, or two who 
 looked very much like our boys, and he told me that I had 
 better see into the matter. I was going to Birmingham that
 
 164 
 
 -afternoon, and I thought that they might very possibly be at 
 this inn ; and I turned out of my ordinary way about a quarter 
 -of a mile, and went into the inn, and found them. 
 
 Q. Whom? 
 
 A. I found those two, of whom David Fitzgerald was one, 
 together with two others three others altogether : himself, the 
 boy who was with him, and two others. 
 
 Lord Chief-Justice Cocklurn: Four altogether ? 
 
 A. Yes. 
 
 Mr. Harcoui-t : What was David Fitzgerald doing when you 
 went there ? 
 
 A. He was hiding himself. 
 
 Q. What did you do thereupon? 
 
 A. I knew, or at least I guessed, that David Fitzgerald was 
 there : the other three I saw ; but I could not see Fitzgerald. I 
 called his name oiit, and I discovered him covered up in the fire- 
 place. I said nothing to them at the time, but sent them home. 
 
 Q. What did you do then 1 did you report that ? 
 
 A. I went to Birmingham that same evening ; the President 
 was out on the following day; but I reported it on Saturday 
 morning the 25th. 
 
 Q. We have heard from Dr. Nbrthcote what he did upon 
 that. Did Dr. Northcote, or did young Mr. Fitzgerald, tell you 
 what punishment Dr. Northcote had inflicted on them 1 
 
 A. Dr. Northcote told me himself. 
 
 Q. That punishment, as we have heard, was that young 
 Fitzgerald was to be confined to the bounds until Easter ? 
 
 A. Until Easter. 
 
 Q. That was on Saturday? 
 
 A. That was on Saturday the 25th of February. 
 
 Q. On the Monday following which would be the 27th 
 did you again find young Fitzgerald out of bounds ? 
 
 A. I found him about five o'clock in the housekeeper's 
 room. 
 
 Q. Was that contrary to the bounds which Dr. Northcote 
 had inflicted on him ? 
 
 A. Yes. 
 
 Q. That was out of bounds ? 
 
 A. Yes ; and I told him so at the time.
 
 165 
 
 Lord Chief -Justice Cockburn : The housekeeper's room, I 
 suppose, is in the college ] 
 
 A. Yes. 
 
 Mr. Karslalce : If the rules are read, it will be seen that 
 there are certain parts of the college in which they are not to "be. 
 
 Lord Chief-Justice Coclcburn: That would hardly be within 
 the bounds ; it is more a general prohibition to be in that part 
 of the house : whether they have their privileges or not, they 
 are not allowed to go there ] 
 
 A. It is especially down in the rules that they are not al- 
 lowed to go there. 
 
 Mr. Harcourt : You told him, at all events, that he ought 
 not to be there 1 
 
 A. Yes. 
 
 Q. Did you tell him to return to Ms bounds ? 
 
 A. I did. 
 
 Q, Did you soon after that find him again out of bounds ? 
 
 A. A quarter of an hour after that I found him in the 
 plantations with another student. 
 
 Q. Were the plantations out of bounds ? 
 
 A. Certainly. 
 
 Q. Who was he with ? 
 
 A. He was with another student, of the name of * * *. 
 
 Q. Was * * * a boy who was entitled to be out of bounds 1 
 
 A. Certainly not. 
 
 Lord Chief-Justice Coclcburn : What class was ho in ? 
 
 A. He was in one of the lower classes. 
 
 Mr. Harcourt: Therefore he had no right to be in the plan- 
 tations at all 1 
 
 A. ]^o right whatever. 
 
 Q. What were young Fitzgerald and * * * doing ? 
 
 A. They were shooting in the plantations. 
 
 Q, Shooting with a pistol ? 
 
 A. Yes, shooting with a pistol. 
 
 Q. Just tell us what passed between you and young Fitz- 
 gerald on that occasion. 
 
 A. As soon as they saw me they took to their heels ; I fol- 
 lowed them, and called them back. I then said to them, " Who 
 owns that pistol that you are shooting with?" David Fitz-
 
 166 
 
 gerald answered, "! do." I then said, " Give it to me." He 
 said, " I have not got it," I then said, " Go and find it ;" to 
 which he answered, "I do not know where it is." I then said, 
 "That's a lie;" to which he answered, "It is not." I then 
 repeated the affirmation that it was a lie ; and I told him that 
 if he did not mind, I should box his ears. 
 
 Q. What happened about the pistol ? where was it ? 
 
 A. It was a few yards from where he was standing. 
 
 Lord Chief-Justice Codcburn : How was it found? 
 .. A. I forget whether it was actually found by himself or the 
 other student, but I believe it was found by himself. 
 " Mr. Harcourt : It was on the ground ? 
 
 A. It was lying close by the hedge. 
 
 Mr. Coleridge : Flung into the hedge? 
 
 Lord Chief-Justice : How near to where he was standing ? 
 
 A. I cannot exactly say the distance, but I should say that 
 it was not more than four or five yards at the very outside. 
 Previously to this, I had said to him, " If you do not instantly 
 give me up that pistol, you shall leave the house to-night." I 
 think that was the expression I made use of; it was more as a 
 threat 
 
 Mr, Coleridge : Xever mind that. 
 
 Mi\ Harcourt : He found the pistol, and you took it ? 
 
 A. I took it. 
 
 Q. What then happened ? 
 
 A. I told them to return to their bounds. 
 
 Q. And they went ? 
 
 A. I told Fitzgerald, at the same time, to go to his room, 
 and bring me every thing connected with his pistol -the car- 
 tridges and powder. 
 
 Q. Did you tell him that you should report him to Dr. 
 Korthcote? y; 
 
 A. I do not believe I made use of that expression then. 
 
 Q. Did you? 
 
 A. I did report it to Dr. Northcote. 
 
 & What passed further between you and Dr. Northcote ? 
 
 A. Dr. ISTorthcote sent for me. 
 
 Q. When you went to Dr. ^orthcote, did you find that young. 
 Fitzgerald had been, to see Dr, ISTorthcote upon the subject ?
 
 A. I found so. 
 
 Q. And did you give your explanation of the matter to 
 Dr. Korthcote ? 
 
 A. I gave my explanation of it. 
 
 Q. After that, as we have heard, Dr. Northcote again saw 
 young Fitzgerald. 
 
 A. He did. 
 
 Q. And after he had seen Dr. !N"orthcote the second time, 
 did you see young Fitzgerald again ? 
 
 A. David Fitzgerald came to me on the night of Tuesday 
 the 28th. 
 
 Lord Chief-Justice Cockburn : Was that the day on which 
 this had happened 1 
 
 A. The following day he came to my room about ten o'clock, 
 and he said he wished to have a conversation with me. 
 
 Mr. V. Harcourt : Did you ask liiui Avhat punishment Dr. 
 JS"orthcote had aAvarded him 1 
 
 A. That was almost the close of the conversation. He be- 
 gan by saying that he wished to speak to me on three points. 
 First of all he prefaced it by saying that he had been conducting 
 himself so badly, and that his character Avas so lowered in the 
 estimation of his superiors, that it Avould little avail him to try 
 to extenuate his faults ; or some words to that effect. 
 
 Mr. Coleridge : This is what you told him ] 
 
 A. This is Avhat he said to me ; and then he said, the lirst 
 point he wished to speak to me on was Avith regard to the ex- 
 pression I had xised to him in the plantations, " It is a lie," and 
 threatening to box his ears ; and he excused himself by saying 
 that he did not mean to tell a lie ; that it Avas not a lie, for that 
 he did not actually know Avhere the pistol Avas. I then pointed' 
 out to him that if it AVOS not a lie, it Avas certainly an equivoca- 
 tion, and almost amounted to a lie; and with regard to the 
 other expression, threatening to box his ears, I said, " Of course, 
 David, I should not think of carrying such a threat into execu- 
 tion. It is not generally customary for a superior to apologise 
 to a boy, but I am not ashamed to confess my faidt when I 
 have committed one." I think I also explained it by saying 
 that I Avas out of temper at the moment, and that I meant it as 
 nothing more than a tin-eat. He then came to the second point.
 
 168 
 
 He denied, or at least lie said it was his impression, that the 
 Prefect had not the power to take away the privileges of the 
 Philosophers. I knew perfectly well what had been done in 
 my own time ; and I told him. that the Prefect always had that 
 right, and frequently exercised it ; and he moreover added that 
 he had gone out in order to see if I should press the right. 
 
 Q. At the time Vvhen he was in the plantations, I under- 
 stand from you that he had been confined to bounds by Dr. 
 oSTorthcote ? 
 
 A. He had. 
 
 Q. That was not a taking away of the privileges by you, 
 but by the President] 
 
 A. That was by the President. 
 
 Q, Was that all that passed on that occasion ? 
 
 A. I think there was another point ; I forget at the present 
 moment what it was. It was then that I asked him what pun- 
 ishment Dr. Northcote had inflicted upon him. 
 
 Q. And he told you? 
 
 A. He told me, and the next morning 
 
 Q. Just tell us the punishment that had been inflicted upon 
 him. 
 
 A. He told me that Dr. Korthcote had degraded him to the 
 ranks, and told him to study in the common study-place. 
 
 Q. Did you proceed to put that order of Dr. Northcote's 
 into execution? 
 
 A. I went to Dr. Xorthcote the next morning ; and he then 
 told me himself of the punishment that he had inflicted upon 
 Fitzgerald, and I then proceeded to put it into execution. 
 
 Q. Did you after that, on a subsequent occasion, again find 
 him up after hours ? 
 
 A. I found him up, I should say it was about four or five 
 days after. I am not sure as to the number of days ; it may be 
 four or five, or seven or eight, that I found him up again at 
 night. 
 
 Q, What did you do then? 
 
 A. I told him that I did not wish to bring him to any fur- 
 ther trouble, and that I would overlook it ; but I think I also 
 reminded him that I should not overlook any further offences. 
 I think it was on that occasion that I made use of the word
 
 169 
 
 " fickle," which is attributed to me. I told him that his posi- 
 tion in the house was rather fickle. 
 
 Q. And I understand you to say that you said you would 
 overlook it at the time ? 
 
 A. I said I would overlook it. 
 
 Q. Had Dr. Xorthcote told you the substance of what had 
 passed between him and Fitzgerald as to his future position in 
 the school 1 
 
 A. He told me all about it. 
 
 Q. Before this occasion, when you said you would overlook 
 it on account of his fickle position, did you know that Dr. 
 Xorthcote had told young Fitzgerald that for the next offence 
 he would have to leave ? 
 
 A. I did. 
 
 Q. Was it with reference to that that you made that ob- 
 servation, and used that word " fickle" ? 
 
 A. It was. 
 
 Q. "Was it subsequent to that that it first came to your 
 knowledge of there being a party in the school against the 
 clerical students ? 
 
 A. The first tangible trace of the existence of the evil spirit 
 that came within my knowledge happened on the 4th of March, 
 on the occasion of my seeing this list. 
 
 Q. It was just about that time that you say the first tan- 
 gible knowledge came before you ? 
 
 A. I had previously heard from others that there was a very 
 ill-feeling in the bounds. 
 
 Q. What do you mean exactly by the bounds ? 
 
 A. It means the students in the bounds. 
 
 Lord Chief-Justice : You mean amongst the students 1 
 
 A. Yes, amongst the students. 
 
 Mr. V. Harcourt : Was that a feeling which in former days 
 had existed in your time ? 
 
 A. A most violent feeling existed in my own time. 
 
 Q, Had that died out before that ? 
 
 A. I was under the impression that it had altogether died 
 out, or pretty nearly died out 
 
 Lord Chief- Justice Cockburn: A bad feeling about what? 
 You say there was an ill-feeling amongst the students ?
 
 170 
 
 A. Amongst the lay students against the Church students. 
 
 Mr. V. Harecurt : And I understand you to say that your 
 impression. was, before this came to your knowledge at this^ 
 period, that that ill-feeling had died out ? 
 
 A. Certainly. 
 
 Q. Just explain to us (you can do it best) what was the 
 character of this ill-feeling of which you hare spoken; how did 
 it manifest itself? 
 
 A. It manifested itself in the frequent use of this word 
 "Bunker." 
 
 Lord Chitf-JiuKix CocHmrn: That is when it existed, to 
 your knowledge. 
 
 A. Yes; and in petty annoyances. 
 
 M,\ V. Harcourt : Had it been the cause of great annoyance 
 to the persons who were the objects of it ? 
 
 A. It had been the cause of very great annoyance, and it led 
 to very serious quarrels amongst the two bodies. 
 
 Lord Cliief Justice CocMnrrn : It manifested itself in the use 
 of the term " Bunker," and what else ? 
 
 A. Petty annoyances ; serious annoyances sometimes. 
 
 Mr. V. Harcourt : And you say these petty annoyances had 
 resulted previously in serious quarrels f 
 
 A. In my own time there was scarcely a week in which 
 there was not some open manifestation of this feeling. 
 
 Q. Had there been great pains token by the authorities to 
 remove this! 
 
 A. I do not believe that the authorities were aware of it up 
 to a certain point It came to an open issue on one occasion - r 
 I forget exactly now what date it was, but it was about 1857. 
 
 O. I think we need not go into the details about that ; but 
 what I want to ask you is this : Had it been Dr. If orthcote'& 
 object, and the object of the authorities, as much as possible to 
 remove all distinction and feeling of jealousy between the two- 
 classes of students I 
 
 A. It had. 
 
 Q. As fax as you can judge, had they succeeded in removing 
 the feeling between the two classes of students at the period we 
 are speaking of ? 
 
 A. So much so, that I had frequently denied to otiier people
 
 15HL 
 
 that there was an ill-feeling in the bounds ; I felt almost certain 
 that it had died out. 
 
 Q In your position of Prefect of Discipline, that was a 
 matter that would come very much under your observation ? 
 
 A. Certainly. 
 
 Q. Xow, if you please, tell us what were the circumstances 
 which led yon for the first time at this period to believe that 
 the old feeling was breaking out again \ 
 
 A. I had heard observations from other priests in the house 
 that the ill-feeling was springing up, and had manifested itself;. 
 but I refused to believe it until on the evening of the 4th of 
 March I went into the study-place, and there I found several 
 students, to the number of about a dozen, amongst whom was 
 the plaintiff, laughing, and perusing some paper that they had 
 before them. As soon as I appeared, the paper instantly dis- 
 appeared. I demanded it from one of the boys he gave it to 
 me rather reluctantly and I found it was a list of all the 
 students in the house, marked, some with a cipher, and others 
 with a cross, 
 
 Mr. Coleridge : What became of that ? 
 . A. I took it to my room. 
 
 Q. What has become of it 1 
 
 A. I am not sure whether I have it in my possession now, 
 but I almost imagine that I burnt it shortly after young Fitz- 
 gerald was sent away. I will not be sure whether I have it now 
 or not ;* I almost imagine that I burnt it, because I thought 
 
 Q. Xever mind what you thought ; have you looked for it 1 
 
 A. I know I had it in the vacation-time, but I was burning 
 a lot of papers. 
 
 Q. Have you looked for it for the purposes of this examina- 
 tion ? 
 
 A. I have not. 
 
 Mr. Coleridge : Then you cannot go into the contents of it 
 
 Mr. V. Harcourt : Then we will not go into that I men- 
 tioned it as the thing that led to the investigation. That was 
 the first thing seeing this paper I 
 
 A. Yes. 
 
 Lord Clnef-Justice Cockburn: How many ciphers were 
 * It has since been found, and is in Mr. Stone's possession.
 
 172 
 
 there, and how many crosses ? Can you^ tell me the proportion 
 of one to the other ? 
 
 A. I should say about ten to one. The crosses, I think, 
 were intended for the Church students. 
 
 Mr, V. Harcourt: Did the finding of this paper put you 
 upon further inquiries as to what was going on ? 
 
 A. The whole of that night and the next day I could not 
 come to any satisfactory conclusion as to what the paper meant, 
 although a thought did strike me that it might be intended for 
 this. 
 
 Mr. Coleridge : We need not go into that. 
 
 The Witness : The next night one of the Church students 
 met me and said to me : " So I hear you have a list of the 
 nobility of Oscott." And then for the first time positively I 
 was assured of the existence of this ill-feeling in the house that 
 it had begun to manifest itself again. 
 
 Mr. V. Harcourt: I understand you to say that you had 
 not heard any thing of this for some time before ? 
 
 A. I had not heard any thing. 
 
 Q. This put you upon further inquiries 1 
 
 A. It did not put me upon further inquiries then. He told 
 me of this ill-feeling that was springing up in the bounds. 
 
 Q. Who told you this? 
 
 A. This student. He also gave me two names of boys who 
 he felt sure were at the bottom of it. 
 
 & Did you hear from other quarters also of the existence of 
 this spirit ? 
 
 A. On the very next Sunday, March the 1 2th, one of the 
 Divines came to my room and informed me that he had just 
 heard that a conspiracy had been got up in the bounds that a 
 confederation or society had been got up in the bounds against 
 the Church students. I asked him where he got his information 
 from. After some time he told me that he had got it from a lay 
 student who had been asked to join the society. He also gave 
 me David Fitzgerald's name as the head and originator of it. 
 
 Q. In consequence of what you heard in the way you have 
 told us, what did you do ? 
 
 A. I went to David Fitzgerald's room. 
 
 Q, Before you go to that, tell me this : beyond Avhat you
 
 173 
 
 have told us, had you heard any thing else "before you went to 
 his room ? had you heard any thing about lists ? 
 
 A. I am not sure whether he told me that there were lists 
 afloat I am almost sure he did ; I think he told me that David 
 Fitzgerald had a list, hut I do not think he told me that the 
 others had. 
 
 Q. He told you that David Fitzgerald had a list? 
 
 A. I think so ; I will not "be positive. 
 
 Q. Tell us what you did upon the information that you then 
 received 1 
 
 A. I went to David Fitzgerald's room, and I found an open 
 pocket-hook lying on the table ; I opened it at random at one 
 page a certain page and turned the leaves over very quickly. 
 The first letters that caught my eye were the letters " A. B. C." 
 written on the top of one of the pages. 
 
 Q. Did you know what that meant ? 
 
 A. I had heard from this Divine that the society went by 
 the name of " The A. B. C.," and he interpreted it for me " Anti- 
 Bunker Club" or "Confederation" I do not know exactly which. 
 It was known generally by that name. 
 
 Mr. Coleridge : He did not say so 1 
 
 A. It was only known to the members. 
 
 Mr. V. Harcourt : What did * * * tell you 1 tell us what 
 further you did. 
 
 A. I found under this " A. B. C." a list of the members. 
 
 Q That is the list we have already seen 1 
 
 A. Yes. 
 
 Q, I think that Dr. Xorthcote explained most of these ini- 
 tials ; but I see opposite " * * * " there is " C. M." Can you 
 tell us what young * * * at Oscott was, or what his father was 
 by trade 1 
 
 A. I do not know whether I am at liberty to say what a 
 person told me no later than yesterday as to what he thought 
 the letters meant. 
 
 Q. Do you know what his father was ? 
 
 A. I did not know at that time. 
 
 Q. Do you know now ? 
 
 A. He did not tell me positively what it was, but he in- 
 ferred
 
 174 
 
 Mr. Coleridge : Do not tell us if you do not know yourself; 
 if you do not know, do not say. 
 
 Mr. V. Harcourt : What did you do further upon that ? 
 
 A. I found certain notes. 
 
 Lord Chief-Justice Cockburn : In this pocket-book ? 
 
 A. Yes. 
 
 Lord Cliief-Justice : We have seen all those, you know. 
 
 Mr. Vf Harcourt : I must ask you this question, which has 
 been put in the Plaintiff's case : did you open, or did you read 
 any letters of young Mr. Fitzgerald's on that occasion 1 
 
 A. ]STot one. 
 
 Q. After you had found these entries in the pocket-hook 
 with reference to this society, or whatever it is called, what did 
 you do? 
 
 A. After night-prayers I accidentally met the Vice-President, 
 and I told him what I had then discovered ; but he went away 
 at once. He had not tune to go into it, and nothing further 
 passed between us then. 
 
 Q. Did you tell Dr. Korthcote the next morning ? 
 
 A. I told him the next morning ; he was absent that night. 
 
 Q. Was that the first information, as far as you know, from, 
 you that Dr. Northcote had upon the subject 1 
 
 'A. I do not know whether the Vice-President told him the 
 night before. 
 
 Q. I mean from you 1 
 
 A. From me that was the first time. 
 
 Q. What happened next after you told Dr. Northcote 1 
 
 A. I think it was somewhere about nine o'clock 
 
 Q. Nine in the morning, you told Dr. Northcote ? 
 
 A. Yes, I told him before that time ; I told him, I think, 
 about eight o'clock ; and at nine o'clock we met in his room 
 the Yice-President and myself met in Dr. Xorthcote's room. 
 
 Q. And you gave him further information, I suppose, upon 
 the subject then ? 
 
 A. He asked me to relate the information then. 
 
 Q. After you and the Vice-President and Dr. iNorthcote had 
 been together, did Dr. Northcote tell you to do any thing ? 
 
 A. I think it' was at eleven o'clock that he gave me dis- 
 tinct orders to go and get the pocket-book.
 
 175 
 
 Mr. Coleridge : Dr. N"orthcote said there "were two meetings. 
 
 Mr. V. Har court : There was another meeting at eleven? 
 
 A. I think there was. 
 
 Q. After the meeting at .eleven, what did Dr. Xorthcote tell 
 you to do 1 
 
 A. He told me to go and get the pocket-book from David 
 Fitzgerald that he wished, to judge for himself. 
 
 Q. Did you go to his room] 
 
 A. I went to the study-place first of all, because he ought to 
 have been in the study-place ; but I believe I met the Prefect of 
 Studies on the way, who told me then that David Fitzgerald had 
 been studying in his room contrary to orders ; and having that 
 information, I went to his room and found him there again.' 
 
 Q. JSTow tell us as accurately as you can remember what 
 passed between you and him. 
 
 A. I told him I wished to speak to him, and I told him to 
 come to my room. As soon as I got inside, I bolted the door 
 to prevent intrusion. 
 
 Q. That was in your room 1 
 
 A. In my own private room. 
 
 Q. Let me ask this, as to bolting the door to prevent intru- 
 sion : was that a habit usual with you ? 
 
 A. Always, whenever I had any one in to punish, because I 
 did not know who might be coming up ; and I always did so 
 whenever I was punishing a boy or speaking to him, I always 
 had the practice of bolting the door inside. 
 
 Q. Was that the usual practice at Oscott ? 
 
 A. Yes ; and as soon as I had bolted the door, I said to him, 
 " David, I am afraid you have done for yourself at last ;" or 
 " David, I am afraid you have done for yourself now." He said, 
 " I do not understand you." 
 
 Q. I see that Mr. Fitzgerald says you said it with a trium- 
 phant smile. 
 
 A. My back was turned towards him at the time. I am not 
 aware of any triumphant smile. I then said to him, " You have 
 a pocket-book." He said, " I have;" and he put his hand upon 
 his pocket. I then said, " I want you to give it to mo ;" ho 
 said, " I do not see what right you have to demand it." I said, 
 " If you do not give it to me, I shall take it." He again said, " I
 
 176 
 
 do not see what right you have to demand it." I then said, 
 " Are you going to give it to me ?" to which he answered, " No." 
 I then said, " Very well, I must take it ;" and I took the book 
 without any opposition on his part. 
 
 Q>. Is it true that there was any struggle between him and 
 you about this pocket-book ? 
 
 A. Not the shadow of a struggle. 
 
 Q,. You took it out of his pocket, I understand ? 
 
 A. Yes. 
 
 Q. And did he resist at all 1 
 
 A. He did not resist at all. 
 
 Q. What passed after that ? 
 
 A. I opened the book. 
 
 Lord Chief-Jiistice Cocltburn : Did he draw his hand from 
 his pocket 1 
 
 A. He had his hand upon the pocket, but not to prevent me 
 at all ; I think he had hold of the corner of his coat : it was a 
 motion something like this (describing it). 
 
 Q. It was his coat-pocket 1 
 
 A. Yes ; it was a loose coat. 
 
 Mr. V. Hareourt : An outside pocket ? 
 
 A. Yes. 
 
 Q. The pocket in the flap of the coat 1 
 
 A, At the side. 
 
 Q. It was a shooting-jacket 1 
 
 A. I think it was. 
 
 Q. Then you took the book, and what passed after that 1 
 
 A. I opened the book to see if the information was there 
 if the notes were still there ; and when I had seen that they were, 
 I closed the book. I think I said, " It is all right." He then 
 said, " Are you satisfied T I said, " You may pretty well guess " 
 (or some words to that effect) " what the consequence of this 
 will be." He said, " What do you mean T 
 
 Q. This, as I understand, was subsequent to the two meet- 
 ings of the superiors in the morning ? 
 
 A. It was subsequent to the two meetings. 
 
 Q. He said, " What do you mean ?" 
 
 A. He said, " What do you mean T I then taxed him with 
 getting up this conspiracy this society in the bounds.
 
 177 
 
 Q. "Which term did you use ? 
 
 A. This " society." I will not be certain. 
 
 Mr. Coleridge : What did you say when you taxed him ? 
 
 Mr. V. Har court : Put it in your own words. 
 
 A. I said, " You have been getting up a society in bounds 
 ngainst the Church students." He put it all off as " humbug " 
 4ind " nonsense " he said it was humbug and nonsense. 
 
 Q. After that you took him to Dr. Xorthcote 1 
 
 A. I made some further remark, to the effect that it was, I 
 was afraid, too late for him to help himself, but that it was not 
 too late to help others I alluded to some of the other names 
 down on the list and he then asked me if he might see Dr. 
 Korthcote; and I said, "Certainly." 
 
 Q. And you went with him to Dr. .Xorthcoto 1 
 
 A. Yes ; Dr. Northcote had previously told me to get the 
 pocket-book from him and bring it to him. 
 
 Q. You were not present at the whole of the interview be- 
 tween Dr. K"orthcote and Mr. David Fitzgerald ? 
 
 A. 'Not at the whole of the interview. 
 
 Q. After young Fitzgerald left Dr. Uorthcote on that occa- 
 sion, when did you see him next ? 
 
 A. The next time I saw him, I think, was about a quarter 
 after one. 
 
 Q. Do you know what led to your seeing him? 
 
 A. I was under the impression that he had taken himself 
 away, in order to save himself the disgrace of public expulsion. 
 
 Q. Had Dr. Northcote given you any directions, after this 
 last intervieAV with young Fitzgerald, as to what you were to 
 do? 
 
 A. He told me that he was going to expel him publicly; and 
 I went to his room to find him, but I could not find him ; and 
 I therefore concluded that he had taken himself away. I looked 
 about the house for some time, and could not find him, and 
 therefore I concluded that it was very likely he had taken him- 
 self away. 
 
 Q. Then afterwards you saw him ? 
 
 A. I found him waiting at the President's room. 
 
 Q. That was after the very last meeting of the Superiors ? 
 
 A. Yes. 
 
 N
 
 178 
 
 Q. That was after the very meeting of the house at which 
 Fitzgerald was expelled ? 
 
 A. Yes. 
 
 Q. Now, tell us what you did then. 
 
 A. He went into Dr. Northcote's room ; I did not. Dr, 
 ]S"orthcote told me to go down to see about his dinner. I went 
 down and ordered his dinner into the parlour, and then I went 
 to get money from the Procurator, which the President had told 
 me to do. 
 
 Lord Chief-Justice Cackburn: You ordered the dinner into 
 the dining-room? 
 
 A. Yes; not the public refectory. There are two or three 
 dining-rooms. 
 
 Q. He was to dine alone, was he ? 
 
 A. He was to dine alone. 
 
 Q. It was a dining-room ? 
 
 A. Yes. 
 
 Mr. Harcowt : After that, what did you do 1 
 
 A. After that the President ordered me to take Fitzgerald 
 and to get him his dinner. I went up to David Fitzgerald's 
 room with him, and locked the door, this "being somewhere 
 about between half-past one and a quarter to two. He came 
 from the President's room ; and then I went down again to see 
 if his dinner was ready; but he previously called me as soon as 
 I locked his room. He kicked at the door, and he asked me as 
 a special favour to allow him to have his dinner in his own 
 private room. 
 
 Lord Cliief-Justice CoeTclwrn: "What did you lock him in 
 for? 
 
 A. Because it has always been the custom. 
 
 Q. Did you intend that he should dine downstairs ? 
 
 A. Yes. 
 
 Q. Then why lock him in to prevent him from dining down- 
 stairs ? 
 
 A, It was merely while I went out to see if his dinner was 
 getting ready. 
 
 Mr. V. Harcouri : The room you spoke of was the visitors'" 
 dining-room ? 
 
 A. Yes.
 
 179 
 
 Q. Was it your intention that ho should have dined down 
 there? 
 
 A. I had given orders to the servant to put his dinner im 
 that room. 
 
 Q. In that room he would have had no communication witk 
 the other boys 1 
 
 A. He would not; I should not have allowed it. There 
 would have been, nothing to prevent it. I do not believe that I 
 should have locked that door. 
 
 Q. You say he asked you as a special favour to allow him to- 
 have his dinner in his own private room 1 
 
 A. Yes ; and I consented without any demur. 
 
 Lord Chief- Justice Cockburn : Did he give any reason ? 
 
 A. He gave no reason whatever. 
 
 Mr. V. Harcourt : You say when he first went into his room 
 you locked the door 1 
 
 A. Yes. 
 
 Q. Why did you lock the door ? 
 
 A. It has always been the custom, as long as I can remem- 
 ber, when a person is expelled, that all communication between 
 him and the rest of the students should be forbidden. 
 
 Lord Chief- Justice Cocliburn: Have you so many cases of 
 expulsion, then? 
 
 A. In every case that I recollect in which a person has beeu 
 sent away that has been the case. 
 
 Q. How many cases of expulsion have you had ? 
 
 A. I can recollect one only for certain ; but I am sure it was 
 the universal custom. 
 
 Q. Universal custom depends upon the number of instances 
 in which the particular thing has happened. 
 
 A. I can give an instance of it. 
 
 Q. How many have you known in your time? within a 
 dozen ? 
 
 A. I should say it was within a dozen. 
 
 Q. Have there been a dozen expulsions ? 
 
 A. I really do not know ; I should say perhaps there have 
 been, I do not know. 
 
 Q. As far as your recollection goes, what do you put it at 
 in your time, the outside number ? Surely you can say 1
 
 180 
 
 A. It is a long time to go over. 
 
 Mr. V. Harcourt : You say there have been several expul- 
 sions at Oscott. In your recollection, on those occasions have 
 the boys, from the time of their expulsion to the period of their 
 leaving the school, been always locked up ? 
 
 A. Yes, if they are not sent away directly. 
 
 Lord Chief-Justice CocJiburn: What do you mean, by "di- 
 rectly" ? within what time ? 
 
 A. Immediately as soon as the President had seen them. 
 
 Q. They have always had time, I suppose, to pack their 
 things up, and so on? 
 
 A. I have heard of a case occurring in which the boy has 
 been sent away, and his luggage has been sent after him. I 
 know a case of several of the senior students being confined to 
 their rooms during the whole of the evening; and it was an 
 extra punishment to lock the students in their rooms. 
 
 Q. When you have expelled a boy, there is an end of it, 
 you knowl 
 
 A. He was not actually out of the house. 
 
 Mr. V. Harcourt: At all events, rightly or wrongly, that 
 had been the custom at Oscott 1 
 
 A. It had been always. 
 
 Q. After you became Prefect of Discipline in Oscott, in 
 your opinion would it have been injurious to the school if access 
 had been allowed to young Fitzgerald and the other boys 1 
 
 A. It did not strike me at the time ; I simply acted on the 
 custom. 
 
 Q. You simply acted because it had been the custom to do it? 
 
 A. Yes. 
 
 Q. If the door had been opened, of course the other boys 
 during play could have entered the room ? 
 
 A. They could have done so several of them not all of 
 them. 
 
 Lord Chief- Justice CocJiburn: It would depend on what 
 orders you gave them ? 
 
 A. If it were wet, for instance, they were at liberty to go 
 to their rooms at two o'clock. 
 
 Mr. V. Harcourt: I understand you to say that what yon 
 acted upon was the custom of the school ?
 
 181 
 
 A. Yes. 
 
 Lord Cliief-Justice CocJcburn: You must show a reasonable 
 ground under the circumstances of the case you must show it 
 to be a reasonable thing. 
 
 Mr. V. Har court : Young Fitzgerald's dinner was brought to 
 him in his room ? 
 
 A. It was brought to him in his room at his request. 
 
 Q. Did he ask to see any other boys there 1 
 
 A. He asked me, about ten minutes after that as soon as 
 his dinner was brought up if he might be allowed to see his 
 brothers and his cousins. I consented, and went down to bring 
 them up. I locked the door on him again. He then said, 
 " "\Vhy do you lock me up 1 I have done nothing disgraceful." 
 I said, "I must do so." I locked the door, and then went 
 down to bring iip his brothers and cousins. They came up I 
 should say it was about twenty minutes after two or a quarter- 
 past two they came into the room, and I came in with them ; 
 and after that the door was not locked. 
 
 Lord Chief- Just ice CocJcburn : Xot after they went up. 
 
 A. Xo j I was there with them. 
 
 Q. You remained with them 1 
 
 A. Yes. 
 
 Mr. V. Harcourt: That was the end of the locking -up, 
 was it? 
 
 A. Yes, that was the end of the locking-up. 
 
 Q. How long was he locked up 1 
 
 A. Xot more than thirty-five minutes. 
 
 Lord Chief -Justice Cocklurn : There is not much difference 
 between locking the door and the gaoler being present. You 
 would not have allowed him to go out ? 
 
 A. Certainly, if it was a matter of necessity. 
 
 Q. But, supposing he had proposed to go out ? 
 
 A. 1 should not have allowed it, certainly. 
 
 Mr. V. Harcourt: Did you see him about his packing-up 
 his things 1 
 
 A. I was with him while he was packing-up his things ? 
 
 Q. Something has been said about your pushing him ? 
 
 A. Only on one occasion I put my hands on his shoulders ; 
 I did not push him at alL
 
 182 
 
 Q. What led to that? 
 
 A. He was taking his time, and was rather tedious over 
 packing-up his things. I think he had been a long time over it, 
 and I told him that if he did not be quick and pack-up his 
 things, his things would be sent after him. 
 
 Lord Chief-Justice Cockburn: You put your hand on his 
 shoulder, did you ? 
 
 A. I did. 
 
 Mr. V. Harcourt : Did you use any roughness or violence 
 towards him on that occasion ?. 
 
 A. None whatever. 
 
 Q. Mr. Fitzgerald has said that you pushed him, so that he 
 nearly fell ; is that so ? 
 
 A. I have no recollection of having done any thing of the 
 Jdnd. 
 
 Q. Before he left he asked to see Dr. Northcote again ? 
 
 A. He did. 
 
 Q. Did you take him to Dr. Northcote's room ? 
 
 A. I did. 
 
 Q. You did not go with him, I think? 
 
 A. No. 
 
 Q. When he left Dr. Northcote, what did you do ? 
 
 A. I took him downstairs, and he got into the cab. 
 
 Q. And he went away ? 
 
 A. He went away. 
 
 Cross-examined ly Mr. COLERIDGE. 
 
 Q. I observe in these rules there are a good many altera- 
 tions, some are scratched out, and some are put in in another 
 handwriting : are they altered from time to time ? 
 
 A. There are certain rules that I think have been altered 
 according to circumstances. There have been alterations in the 
 building. 
 
 Q. Just take almost any page ; take that page which opens 
 quite at a chance. You will see there are a couple of the rules 
 there struck out and altered in pencil (handing the rules to the 
 Witness). 
 
 A. Yes.
 
 183 
 
 Q. First of all I Avill ask you, is it your duty, as Prefect of 
 Discipline, to keep the rule-book, or what ? 
 
 A. It is. 
 
 Q. It "belongs to you ? 
 
 A. It belongs to me. 
 
 Q. It belongs to the Prefect of Discipline at the college ? 
 
 A. Yes. 
 
 Q. Do you make the alterations in them yourself? 
 
 A. I think I have ; but this is one that is made by my pre- 
 decessor. 
 
 Q. I see throughout there seems to be a great number of 
 alterations and scratchings out 1 
 
 A. Yes ; they have been necessitated 
 
 Q. I do not find any fault with it ; but that is so as a fact ? 
 
 A. Yes. 
 
 Q. Are those done by your predecessor or by you ? 
 
 A. I think I have made one or two alterations ; but most of 
 them were made by my predecessor. 
 
 Q. Is that the only copy that there is of them 1 Is there no 
 fairer copy ? 
 
 A. I do not know of any. 
 
 Q. However, that is the one you keep 1 
 
 A. Yes. We have been compiling another for some time. 
 
 Q. You say they are read out. Who reads them ? 
 
 A. I do. The Prefect reads them in the presence of all the 
 superiors and all the boys. 
 
 Q. When is that done 1 
 
 A. At the beginning of every half-year. 
 
 Q. Do you mean that it is always done, that you have 
 always done it recently 1 
 
 A. I did not do it this half-year, because wo had not the 
 book. 
 
 Q. That is a very good reason for not doing it. But before 
 that w r as it done 1 
 
 A. I have done it for two half-years. 
 
 Q. Were you present when Mr. Mai-tin read them ever 1 
 
 A. Yes ; on every occasion. 
 
 Q. Did he always read them 1 
 
 A. He always read them when he was Prefect.
 
 184 
 
 Q. Did he not omit for some time to read them ? 
 
 A. I do not remember. 
 
 Q. Will you undertake to say that you have a distinct im- 
 pression that he did read them ? 
 
 A. Sometimes he would not read them when there were very 
 few new hoys, and most of those in the house knew the rules. 
 
 Q. They did, as we do in court sometimes, take them as 
 read, perhaps 1 
 
 A. Very likely. 
 
 Q. You knew, I suppose, that David Fitzgerald was there in 
 the house for a special and particular and limited purpose 1 
 
 A. I heard so afterwards. I thought, when he came, that 
 he was just the same as the others. In fact, I understood that 
 he was the same as the others. 
 
 Q. You were not Prefect of Discipline at that time 1 
 
 A. "When he returned after the vacation ? 
 
 Q. Yes ; between September and Christmas 1 
 
 A. No, I was not. 
 
 Q. Between September and Christmas 1864 Mr. Martin was 
 Prefect 1 
 
 A. Yes. 
 
 Q. That was when his course was over, and when he came 
 back for the purpose of reading for matriculation. 
 
 A. I had nothing to do with his studies. 
 
 Q. When you found him in this position in January 1865, 
 you assumed that he was there as he had been before 1 
 
 A. That he was there exactly under the same circumstances. 
 
 Q. That you assumed from seeing him there ? 
 
 A. Yes. 
 
 Q And from nothing else 1 
 
 A. Nothing else. 
 
 Lord Chief-Justice Cockburn : You assumed that he was sub- 
 ject to the ordinary rules 1 
 
 A. Just so. 
 
 Mr. Coleridge : As to the exalted people who go by the name 
 of Philosophers, have they a set of rules for themselves 1 
 
 A. Yes. 
 
 Q. Are these read out 1 
 
 A. Generally at the beginning of each academical year.
 
 185 
 
 Q. When does the academical year begin 1 
 
 A. After Midsummer. 
 
 Q. One reading does for the Philosophers for the year ? 
 
 A. Yes ; that does for the class of Philosophers. 
 
 Q. You say that Mr. Fitzgerald disputed with you as to 
 whether you could take away his privileges, and whether that 
 was not a matter reserved for the President 1 
 
 A. He did. 
 
 Q. And, as ^understand you, he had, after you had taken 
 thcra away, put his name down at the head of a party which 
 assumed that he had still a right to continue his privileges ] 
 
 A. It was after he had done it that he noticed that. 
 
 Q. That was not my question. He put the party down as 
 any other Philosopher would have done who was going out with 
 a party, and who had a right to do so 1 
 
 A. Yes ; I suppose so. 
 
 Q. Can there be any other interpretation put upon itl be- 
 cause if there can, put it. 
 
 A. I do not think there can. 
 
 Q. That being the only interpretation possible, he had given 
 you notice by that, as far as he could, that he meant to act in 
 defiance of your taking away his privileges ] 
 
 A. Yes. 
 
 Q. There was nothing underhand in it ? 
 
 A. He put the party in my room. 
 
 Q. With his own name at the head of it ? 
 
 A. Yes. 
 
 Q. You say you thought he might possibly be at the 
 Swan? 
 
 A. Yes. 
 
 Q. Had they been playing bagatelle 1 
 
 A. Some of them had. 
 
 Q. You found the bagatelle-table open, as if the balls had 
 been knocked about ? 
 
 A. One of them was playing at the time I went in. 
 
 Q. I suppose no more than one could play at once ? 
 
 A. It requires two for a game. 
 
 Q. But only one person can knock the balls about at the 
 same time ?
 
 186 
 
 A. I suppose so. 
 
 Q. You found some of them playing ? 
 
 A. Yes. 
 
 Q. Pray, have you ever played bagatelle ? 
 
 A. I have not played at that place ; I have played in the 
 ^college. 
 
 Q. Never in old days the days of your youth ? 
 
 A. Never. 
 
 Q. You have never dropped into the Swan ? 
 
 A. I did not say so. I said I never played at bagatelle. 
 
 Q. 0, I beg your pardon. Then you have dropped into 
 the Swan? 
 
 A. When I was a Philosopher I sometimes did as Philoso- 
 phers did. 
 
 Q. We know that Plato was very fond of a drop of the best 
 he could get we will not say beer but still he got something 
 which he drank ; was that your case 1 
 
 A. Circumstances were different in those days. 
 
 Q. You got the best you could 1 
 
 A. I suppose so. 
 
 Q. And I suppose so too ; and you would have been uncom- 
 monly surprised if you had been told that you had done some- 
 thing which was the worst possible offence you could be guilty of? 
 
 A. On the contrary. 
 
 Q. You hardly sinned against the light even at that time, 
 I suppose ? 
 
 A. I do not know : I did not go there frequently ; it was 
 not an ordinary thing. 
 
 Q. However, on the subject of this beer ; pray, has it a good 
 reputation the Swan for beer 1 
 
 A. I am sure I do not know. 
 
 Q. Where was the cover of the bagatelle-board ? 
 
 A. It was over David Fitzgerald. 
 
 Q. The cover of the bagatelle-board was against the place 
 where the fire might have been, and instead of the fire there was 
 David Fitzgerald ? 
 
 A. Yes. 
 
 Q. And then you dragged him out ; at least, I will not say 
 that you dragged him out, but you evoked him, and he came ?
 
 187 
 
 A. Yes. 
 
 Q. Was he in company, on that occasion, with any of the 
 (might I call them) Bunkers ? 
 
 A. I think he was. 
 
 Q. All but himself? 
 
 A. Yes. 
 
 Q. At all events he did not mind going and taking a drop 
 of Leer with them at the Swan 1 
 
 A. He was there with them. 
 
 Q. He was there with three "Bunkers. My learned friend 
 says I am wrong. Am I right or wrong 1 
 
 A. He Avas there with them. 
 
 Q I thought I was right. I suppose you, after this, looked 
 after him to see how he got on, and attended to him ? 
 
 A. Not particularly. 
 
 Q. Did you see who he associated with ? 
 
 A. I did not. 
 
 Q. Did you never observe who his friends were ? 
 
 A. He was confined to the bounds after this. 
 
 Q. But I suppose he might have friends in bounds ? 
 
 A. Yes, I think he had. 
 
 Q. Do you know that three of his intimate friends wero 
 ******* and***? 
 
 A. They were not his intimate friends. 
 
 Q. Were they friends ? 
 
 A. They were not friends. 
 
 Q. Did he associate with them ? 
 
 A. Very seldom. 
 
 Q. That you saw ? 
 
 A. That I saw. 
 
 Q. But you did see him with them ? 
 
 A. I do not remember ; he generally went about by himself. 
 
 Q, Solitary? 
 
 A. On almost every occasion he was by himself. 
 
 Q. When he was not by himself, was he either with * * *, 
 *** or***? 
 
 A. He was obliged to be, because they were the only Church 
 students in the class. I do not remember whether there were 
 any other lay students in the class.
 
 188 
 
 Q. Do you mean to say that you do not know perfectly 
 veil that ****** a nd * * *, were friends of David Fitz- 
 gerald's ? 
 
 A. I can say that they -were not friends of his. 
 
 Q. Did he not associate with them constantly ? 
 
 A. He did not. 
 
 Lord Chief- Justice CocTcburn: Were these the three at the 
 public-house ? 
 
 A. Yes ; "but he did not go out in company with three of 
 them. 
 
 Q. He went out in company with one ? 
 
 A. He went out with one, and joined the others. 
 
 Mr. Coleridge : "Were the three students that he was with, 
 ***,***, and* * *? 
 
 A. Xo ; one name was * * *. 
 
 Q. Put it right for me, if you please. 
 
 A. * *, * * * and * * *. 
 
 Q. I thought * * * was a Divine ? 
 
 A. There were two * * * one a Philosopher, and one a 
 Divine. 
 
 Q. Then he was there with these three, was he ? 
 
 A. He was. 
 
 Q. But you say he was not intimate with them ? 
 
 A. He was far from intimate with them. 
 
 Q. Who was the one he had gone out with 1 
 
 A.*** 
 
 Q. "Was he a Church student 1 
 
 A. He was. 
 
 Q. Was he intimate with him 1 
 
 A. He was not 
 
 Q. He merely chose him for this occasion. 
 
 A. I do not know what his motive was. I suppose he 
 chose him for this occasion because he could find no other. 
 
 d That is what you really suppose, is it ? 
 
 A. Yes. 
 
 & You mean that? 
 
 A. Yes. 
 
 Q. !Xow we understand you. Where do you suppose he 
 found the other two ?
 
 189 
 
 A. I believe he found them at the Swan. 
 
 Q. Did they conie home, and was it after that you took 
 away his privileges 1 
 
 A. I reported the matter to the President. 
 
 Q. We had not heard of this matter about the housekeeper's 
 room before. 
 
 Lord Chief-Justice CocJcburn : What was done with the 
 other students ? 
 
 A. They were subjected to the same punishment. 
 
 Mr. Coleridge : This is the first I heard about the house- 
 keeper's room. You say he was found in the housekeeper's 
 room ; was that where the wine is given out ? 
 
 A. It is. 
 
 Q. Had the Fitzgeralds wine to have ? 
 
 A. I do not know whether they had or not. 
 
 Q, Boys have wine, some of them, do they not 1 
 
 A. Yes. 
 
 Q. And if they have wine, it is in the housekeeper's room 
 that they get it, is it not ? 
 
 A. Yes. 
 
 Q. And they get it at what is called " beer-time" ? 
 
 A. They do. 
 
 Q. Was he there at beer-time ? 
 
 A. No ; it was not beer-time. 
 
 Q. What was he doing there ? 
 
 A. He was sitting in the chair; there was no one else in 
 the room. 
 
 d Was the housekeeper not there ? 
 
 A. No. 
 
 Q. What time in the day was it 1 
 
 A. I am not sure whether it was immediately before beer- 
 time, or shortly after. 
 
 Q. Then it was not beer-time, but it was very shortly be- 
 fore or shortly after ? 
 
 A. I think it was after. 
 
 Q. If he was going there to get his wine, would that have 
 been a mortal sin or not ? 
 
 A. No sin at all. 
 
 Q. I mean against school discipline ?
 
 190 
 
 A. It would have "been a very venial sin. 
 
 Q. But it is mentioned here as a thing yo\i had to overlook.- 
 If he wanted his wine, where eould he get it hut in the house- 
 keeper's room] 
 
 .A. He must get permission. 
 
 Q. Who had to give permission to him ? 
 
 A. I was to give permission to him. 
 
 Q. Had the other Fitzgeralds wine ? 
 
 A. I suppose what one had the others had. 
 
 Q. Had they, or not ? 
 
 A. I really do not know. 
 
 Q. "Will you undertake to say they had not 1 
 
 A. I will not. 
 
 Q. Will you undertake to say that he was not there, like 
 any one else, getting his wine ] 
 
 A. He was not getting his wine. 
 
 Q. Will you iindertake to say that he was not there for the 
 purpose of getting his wine ? 
 
 A. I will not. 
 
 Q. Would that have been any offence 1 
 
 A. He should have asked my permission first. 
 
 Lord Chief-Justice Cocltburn: As I understand you, the 
 place to get it is the housekeeper's room ? 
 
 A. Yes. 
 
 Q. Had they to ask leave every time ? 
 
 A. Yes, every day. 
 
 Mr. Coleridge : There is not a general permit ? 
 
 A. JSTo, there is not. 
 
 Q. I think you said you would overlook that ? 
 
 A. I overlooked it. 
 
 Q. But you mentioned it now ? 
 
 A. I mentioned it now. 
 
 Q. To do his general character a service 1 
 
 Mr. Karslalte : Do not make those observations, Mr. Cole- 
 ridge. 
 
 Mr. Coleridge : Now as to the pistol. You heard the pistol 
 go off, I suppose ; is that it 1 
 
 A. I did. 
 
 Q. Two or three times ?
 
 191 
 
 A. I did. 
 
 Q. And you came up when the pistol had just gone off ? 
 
 A. Yes ; it had gone off. 
 
 Q. Perhaps there was a Hue smoke in the air ? 
 
 A. I saw the smoke. 
 
 Q. It was not a very big pistol 1 
 
 A. It has been produced. 
 
 Q. It was manifest to every body that there had been a pistol 
 shot off ? 
 
 A. Yes. 
 
 Q. And it was hopeless to disguise the fact ? 
 
 A. Yes. 
 
 Q. And at that spot ? 
 
 A. Yes ; at that time. 
 
 Q. There was the smoke, as you tell me ? 
 
 A. Yes. 
 
 Q. "When you asked him for the pistol, he said it was his 
 pistol "? 
 
 A. He said it was his pistol. 
 
 Q. When he told you that he did not know where it was r 
 were you misled by it ; I mean when he denied that he had it ? 
 
 A. I was not led to that at all;* he told me he did not 
 know where it was. 
 
 Q. Now did you so understand him, for a moment, that he 
 wished to deceive you ? 
 
 A. I thought that he intended to deceive me most certainly. 
 
 Q. Did you see him throw it away 1 
 
 A. I did not. 
 
 Q. Did he not tell you that he had thrown it somewhere in 
 the hedge ? 
 
 A. That was some time afterwards. 
 
 Q. After you called him a liar ? 
 
 A. After I told him it was a lie. 
 
 Q. Had you ever heard him shoot a pistol before ? 
 
 A. I do not remember to have heard it before. 
 
 Q. Would that be a thing permitted or not ? 
 
 A. Certainly not. 
 
 Q. You say he came to you that night, and told you that ho 
 * Mr. Stone did not hear this question correctly.
 
 192 
 
 had been getting on so badly that it was useless to defend him- 
 self with his superiors ? 
 
 A. That it was useless for him to say much in excuse of 
 himself; or some words to that effect. 
 
 Q. And, as you say, you then said you were out of temper ; 
 and you said you were sorry for it, like a gentleman ; and there- 
 fore I will say nothing more about it. You were angry with him, 
 and you said that which afterwards you regretted ? 
 
 A. I did. 
 
 Q. Did he say, at that time, that he had gone out of 
 bounds, and had done this on purpose to see whether you had 
 or had not the right ? 
 
 A. He did. 
 
 Q. You say he was up at night. You knew he was then 
 reading, and reading hard, for his matriculation, did you not ? 
 
 A. He was not reading when I found him ; he was writing 
 a letter. 
 
 Q. You do not answer my question. You knew that he was 
 reading, and reading hard, for his matriculation, did you not 1 
 
 A. His matriculation was over. 
 
 Q. For his B. A. degree then ? 
 
 A. Yes ; I was aware of that. 
 
 Q. Is it, according to your notion, so very immoral a thing 
 for a boy who is reading hard to sit up reading till twelve 
 o'clock ? 
 
 A. It is not immoral at all. 
 
 Q. Is it an offence for which he was to be visited with 
 punishment, if you found him up at half-past eleven at night ? 
 
 A. Yes ; the rule is very strict. 
 
 Q. I suppose that your boys who are working hard if they 
 are like other boys do, in fact, sit up late a good deal at night, 
 when they have got separate rooms ? 
 
 A. No ; they do not sit up after ten. 
 
 Q. Well, there is some magic in your school, I suppose. 
 Do you mean when the examinations were coming on at Oscott, 
 when you were a boy there, you were not aware of the fact that 
 the boys sat up late at night 1 
 
 A. They may have sat up once or twice ; but the Prefect 
 has very soon been down on them.
 
 193 
 
 Q. That is, if he found them out ? 
 
 A. The Prefect goes round to the rooms every night at ten 
 o'clock to see if they are in bed. 
 
 Q. But you can light a candle after that, I suppose. But, 
 however, I daresay you do not do those things at Oscott. 
 Xow as to the great key case. As I understand, the key, it 
 had got sticky things \ipon it ; he made no disguise about it, 
 that there had been a copy taken of it, did he ? 
 
 A. He did not say any thing about it. 
 
 Q. He gave you back the key 1 
 
 A. Yes ; he gave me back the -key. 
 
 Q. And when you asked him about it, he told you 1 
 
 A. Yes ; when I asked him about it, he told me. 
 
 Q. Have you got the " rubbing" ? 
 
 A. I have not. I kept it for a few weeks afterwards ; but, 
 when looking over some things, I said, "This will never be 
 needed again ;" and I threw it into the fire. 
 
 Q. The wax impression 1 
 
 A. Yes, and the paper. 
 
 Q. Well, that is gone, and we cannot have it. You say 
 that the next thing that alarmed you or which you found 
 against him was the list. When did you last see that list of 
 the nobility ? 
 
 A. I think, this last Christmas. 
 
 Q. It is a good while since this action was brought : the 
 action nearly came on this last Christmas, you know ? 
 
 A. Yes. 
 
 Q. You saw it then 1 
 
 A. Yes ; I saw it then. 
 
 Q. You did not yourself see the student ; you trusted to the 
 narration of the Divine 1 
 
 A. I think I asked him the name before. 
 
 Q. You did not see him ? 
 
 A. I think I saw him the next morning. 
 
 Q. Before you saw Dr. Northcote 1 
 
 A, I forget whether it was before or after; I think it was 
 before. 
 
 Q. The boy was not there himself I mean Fitzgerald ? 
 
 A. He was not there. 
 
 O
 
 194 
 
 Q. What time did you go ? 
 
 A. I think it was just as they were going in to night- 
 prayers ; I went straight from my room when the Divine left 
 me. 
 
 d They were just going to night-prayers ? 
 
 A. Yes. 
 
 Q. Did you go to night-prayers yourself, or what ? 
 
 A. I went in afterwards. 
 
 Q. You did what you wanted, and then you went in after- 
 wards ? 
 
 A. I did. 
 
 Q, How long were you there ? 
 
 A. uSTot more than three minutes. - 
 
 Q. You saw enough to satisfy you in that time ? 
 
 A. I saw the list of names ; that is all. 
 
 Q. Did you see that about Governor Moody ? 
 
 A. I will not be sure, but I think I did : I thought it had 
 reference to the boy. 
 
 Q. And the " magnanimous sentiments" ? 
 
 A. I did not understand for some time afterwards what that 
 meant. 
 
 Q. But you thought that serious ? 
 
 A. !Xo ; my first impression was I could not understand 
 it at all I thought it was a boy who had been admitted into 
 the society. 
 
 Q The " magnanimous sentiments" 1 
 
 A. When I heard it explained by the person himself, then 
 I saw that it was a joke, and that there was nothing serious 
 about it. 
 
 Q. It did not throw a shadow of doubt upon the seriousness 
 of the whole thing, to your mind '? 
 
 A. It did not, to my mind. 
 
 Q. You were sent to get the book from him by Dr. !N"orth- 
 -cote, I think. 
 
 A. Yes. 
 
 Q, Was it necessary to have all this long conversation with 
 him before you got the book 1 
 
 A. It was not a very long conversation ; I think the whole 
 .thing did not take two minutes.
 
 195 
 
 Q. I mean about his having " done for himself," and so on ? 
 
 A. It did not take longer than two minutes. 
 
 Q. You positively aver that you did not use any force ? 
 
 A. I used no force further than my taking it out of his 
 pocket. 
 
 Q. Did he resist 1 
 
 A. He did not. 
 
 Q. You were aware of the correspondence between Mr. Jus- 
 tice Fitzgerald and Dr. Northcote, were you not ? 
 
 A. Yes. 
 
 Q. And you knew of the fact that the Judge had taken 
 away his sons, and was waiting to make inquiries 1 
 
 A. Yes. 
 
 Q. And I have no doubt you supplied Dr. Northcote with 
 information upon the subject of his letter ? 
 
 A. Dr. jNorthcote wrote the letter, and then asked me if it 
 was correct. 
 
 Q. Did you see the Judge's letter 1 
 
 A. Dr. Nbrthcote read it to me. 
 
 Q. Then you heard this, I suppose : "In addition, I think 
 I am not unreasonable in asking you whether it was with your 
 sanction that Mr. Stone, the prefect, took from David's person, 
 by superior force, a note-book, containing some papers ;" and so 
 forth. And then the answer of Dr. Northcote, which you say 
 was submitted to you, is : " But, upon hearing of its contents, 
 I desired the Prefect to ask David for it ; and if he refused to 
 give it up, to take it from him, and to bring it to me ; and this 
 was done in accordance with the practice of this, and, I suppose, 
 every other society, in proceeding against those who conspire 
 against its rights ;" and so on. Were you aware at that time 
 that David Fitzgerald represented it had been taken from him 
 by main force, or superior force ? you knew that that was what 
 Mr. Fitzgerald said 1 
 
 A. I do not know whether I did not tell him. 
 
 Q. "Will you say you did tell him ? 
 
 A. I will not say that I did ; I only told him, " Here is the 
 book." I do not think I made any observation about it. 
 
 Q. Here is the letter of the Judge, wliich was read to you 
 for the purpose of being answered.
 
 196 
 
 A. He authorised mo to use superior force, if necessary. 
 
 Q. Did you? 
 
 A. I did not. 
 
 Q. But here you are accused of doing it ; the Judge said 
 that that had been done ? 
 
 A. " Superior force" I might understand as moral force. 
 
 Q. "VYhy did you not deny that there had been any superior 
 force ? 
 
 A. " Superior force" might include moral force. 
 
 Mr. V. Harcourt: Vis major. 
 
 Mr. Karslalie : He means that he did not use any actual 
 physical force. 
 
 Mi: Coleridge: Do you really suppose that he meant that 
 by the moral energy of your looks you extracted it ? 
 
 A. I will not say that I did, and I will not say that I did 
 not. 
 
 Q. What time was it that young Mr. Fitzgerald left Dr. 
 Xorthcote's presence to be locked up in his room ; was it about 
 a quarter-past one 1 
 
 A. It was a quarter-past one when he first went into his 
 room ; I think that was when he first went into the President's 
 room. 
 
 Q. How long was he there ? 
 
 A. I should say a quarter of an hour, or a little more ; he 
 came out at half-past one. 
 
 Q. Did his brothers and cousins come to him at half-past 
 one? 
 
 A. They came to him about ten minutes to two, I think. 
 
 Q. How long did they stay ? 
 
 A. I should say they remained in his room about ten minutes 
 or a quarter of an hour. 
 
 Q. And then he was got rid of about three ? 
 
 A. About three o'clock. 
 
 Q. All that time he was locked up ? 
 
 A. No. 
 
 Q. Or you were present ? 
 
 A. He was only actxially locked up a little over half an hour. 
 Q, And you were present, preventing him going out, the rest 
 of the time ?
 
 197 
 
 A, Yes. 
 
 Q. He was locked up by superior force for half an hour, and 
 by moral force for the rest. Now I see how it stands. I should 
 really like just to pursue that matter about the expulsions and 
 the custom. Is there a custom as to expulsion at Oscott ? 
 
 A. If a boy is not fit to remain there, he is expelled. 
 
 Q. Is there a well-ascertained cursus cxpulsionis at Oscott ? 
 
 A. I never heard of one. 
 
 Q. You never heard of any ? 
 
 A. No. 
 
 Q. Tradition would do as well 1 
 
 A. I never heard of any. 
 
 Q. You only yourself recollect one 1 
 
 A. I only recollect one. 
 
 Q. And you are not sure about any more ? 
 
 A. I am morally certain about that. 
 
 Q. Then I cannot follow that. 
 
 A. I am sure that it was done. 
 
 He-examined ly Mr. KARSLAKE. 
 
 Q. You say by tradition you have known of it. Have there 
 been cases where boys have been sent away immediately ? 
 
 A. Yes. 
 
 Q. In this particular case a fly or a post-chaise had to be 
 brought in order that Mr. Fitzgerald might go to Birmingham 
 to catch the train, I believe? 
 
 A. Yes. 
 
 Q. And as soon as the fly did come, and he had prepared 
 his portmanteau, did he go ? 
 
 A. He went. 
 
 Q. I think he told us the fly had to be brought from Erding- 
 ton? 
 
 A. Yes, from Erdington. 
 
 d You have been asked about Governor Moody. Did you 
 know a boy in the school who had that nickname? 
 
 A. I thought that was his name;" I never heard his nick- 
 name till that time. 
 
 Q. You knew that there was a boy called Moody, and that 
 he had a father who was also a master ?
 
 198 
 
 A. Yes. 
 
 Q. I think you told us fairly that Fitzgerald, -when you 
 asked him for the book, did object to give it to you, and refused 
 to let you have it, and that you did take it from him against his 
 consent] 
 
 A. Yes. 
 
 Q. And, rightly or wrongly, you call that superior force ? 
 
 A. Yes. 
 
 Q. I do not want to mention the name of the student who 
 had told you things, "but you say you know the name of the 
 student who had stated this to the Divine, and I ask you this : 
 Did you believe that statement to be true 1 
 
 A. Yes, I did. 
 
 Q. Did you know the man who had made that statement ? 
 
 A. Yes. 
 
 Q. And you knew his character ? 
 
 A. Yes ; he gave the Divine permission to use his name. 
 
 Q. Some fun has been made about sitting up late at night, 
 and whether you did so or not 1 
 
 Mr. Coleridge : I did not make any fun about it. It was a 
 serious thing. 
 
 Mr. Karslcike : Was it the duty of the Prefect to go round 
 night after night to see that the boys were in bed ? 
 
 A. Yes, it was. 
 
 Q. And, as far as you know, where the Prefect had forbidden 
 the boys to do so, did they go on doing it in defiance of the 
 rules? 
 
 A. I cannot say. They would have been punished if it had 
 been found out. 
 
 Q. They were liable to punishment if they did so ? 
 
 A. Every time. 
 
 Q. You have been asked about the pistol I suppose there 
 is no written rule against fire-arms in the college ? 
 
 A. There is no written rule. 
 
 Q. I suppose that rests on tradition 1 
 
 A. Yes. 
 
 Q. You do not know of any rule 1 
 
 A. Xo ; and there are no rules against a great many other 
 things.
 
 199 
 
 Q. Did you know of its being the practice 1 
 
 Mr. Coleridge: I shall not say that shooting a pistol was 
 within the rules of Oscott College. 
 
 Mr. Karslalie : You have been asked about the public-house. 
 At the time that he was in the public-house he was actually 
 under orders to remain within bounds ? 
 
 A. He was. 
 
 Q. Just let me ask you this with reference to a question 
 which has been put to you as to his sending in his name to you. 
 It is one of the rules, is it not, applicable to the Philosophers 
 and to the higher classes only of the school the members of 
 the philosophy class are allowed to go out in parties of three 1 
 
 A. Yes. 
 
 Lord Chief-Justice CocA'ourn : AVe have got this two or three 
 times over. They can only go out in parties of three, and they 
 must hand in a list before they can go. 
 
 Mr. Karslalie : It has been suggested that he was contesting 
 the rules on that occasion, and I was going to ask whether it 
 was one of the rules. 
 
 Lord Chief-Justice Coclcburn: He was treating himself as 
 though he were not in the position of having had the Philoso- 
 phers' privileges taken away. 
 
 Mr. Karslalie : If it is admitted that he is a Philosopher, and 
 that he is under the Philosophers' rules, well and good. 
 
 Q. Did he give you any notice at all that in going out iu 
 that way he was testing your authority ? 
 
 A. So. 
 
 Q. Did he say any tiling at all about it until after the pistol 
 affair? 
 
 A. Xo. 
 
 Q. At tliat time, as we understand, he was under Dr. Xorth- 
 cote's punishment, and not yours ? 
 
 A. Yes. 
 
 Q. At the time you found him in the housekeeper's room 
 what did you say to him ? 
 
 A. I told him to go to his bounds. 
 
 Q. Did he say at the time that he had come to get his wine ? 
 
 A. He did not. 
 
 Q He made no such excuse 1
 
 200 
 
 A. No. 
 
 Q. Just let me look at these rules. You talk about there 
 having been alterations made from time to time. Are there 
 many of these rules which apply to parts of the house to -which 
 boys may go and may not go ? 
 
 A. Yes. 
 
 Q. And since these rules have been made are there parts of 
 the house that have been altered ? 
 
 A. Yes. 
 
 Q. And are many of the alterations in the rules made for 
 the purpose of meeting that ? 
 
 A. Yes. 
 
 Q. Now as to these Philosophers' rules, that I shall have 
 occasion to have read, were they all in existence at the time he 
 was there 1 
 
 A. I think they were. 
 
 Q. Just look at them. 
 
 A. (after looking at them] Yes. 
 
 Q, I believe the Philosophers are bound by the rules and 
 regulations that affect other students in the house except where 
 the rules are stated not to apply ? 
 
 A. Yes ; all these rules were in existence with the exception 
 of the last, about the academical cap and gown. 
 
 a What is that rule 1 
 
 A. They used to be required to go out with their caps and 
 gowns ; but the academical dress was abolished, and the rule 
 was altered. 
 
 Q. But the other rules remained in force ? 
 
 A. Yes; there was one other rule that was not strictly en- 
 forced it was against the rules, but it was not strictly enforced 
 and that is entering the Serpentine Walk. 
 
 Q. Were they allowed to do so, or not allowed to do so ? 
 
 A. It Avas tolerated. 
 
 Mr. Coleridge : The written word was one way, and the tra- 
 dition the other. 
 
 Mr. Karslake: You say you became Prefect in January. 
 When Fitzgerald came back, had you any orders from the Pre- 
 sident to alter your course as regarded him, or to do any thing 
 different with him than the rest of the Philosophers or students ?
 
 201 
 
 A. Xot the least. 
 
 Lord Chief-Justice Cockburn : Throughout the time that you 
 were Prefect when young David Fitzgerald was there, did he 
 ever arrogate to himself the right to be exempt from any of the 
 rules applicable to the philosophy class 1 
 
 A. On no single occasion. 
 
 d He never questioned your authority ? 
 
 A. No, 
 
 Q. The only tune he questioned your authority was so far 
 as it extended to taking away the privileges of the Philoso- 
 phers ? 
 
 A. Yes. 
 
 Q. On no other occasion did he assert that he was exempt 
 from the obligation to submit to the ordinary rules ? 
 
 A, He never asserted it. 
 
 Mr. V. Harcourt : Now, my Lord, I am going to read some 
 of the rules : my friend Mr. Karslake wishes them to be read. 
 They are the rules in reference to parties : "1. In all parties 
 which leave the bounds each student is required to keep in ad- 
 vance, within sight and call of the master. 2. Xo student on a 
 party is allowed to purchase or procure any article whatever. 
 3. No student or party is allowed to enter any town, village, or 
 house, without the permission of the President. 4. Xo party is 
 allowed to leave the bounds for any other object than that for 
 which special leave is given. 5. Every student is required to go 
 out with a party once a week unless excused by the Prefect." 
 
 Mr. Coleridge : There is a question which Mr. Justice Fitz- 
 gerald wishes me to ask him : it is as to the terms of his letter. 
 Mr. David Fitzgerald only mentioned that he had offered to 
 show the letter to Dr. Xorthcote, which he would not read. The 
 terms of that letter the Judge is very anxious that I should ask 
 him about. The learned Judge says that he had not the least 
 idea that there was any thing serious, or lie should have an- 
 swered it. It is that passage in the letter about the A. B. C. Club. 
 
 Mr. Karslake : no, certainly not. 
 
 Mr. Coleridge : He did not know in the least what it was 
 that was meant. 
 
 Mr. Karslake : I do not in the least degree impute that he. 
 did
 
 Mr. Coleridge : Then my learned friend has put in the letter. 
 
 Mr. Karslake : No ; you put it in. 
 
 Mr. Coleridge : I have put in a letter of Dr. Northcote's to 
 the Judge of the 12th of December; and I desire to put in a 
 letter to which that was an answer, of the llth of December : 
 
 " DEAR DR. NORTHCOTE, I have to thank you for yours of the 7th. 
 My intention at present is to meet David in London, on the 7th prox. I 
 can remain with him until the evening of the 12th, and I'll have no fear 
 of leaving him alone at Ford's Hotel for the remainder of the time. A 
 week's vacation then, another at Easter, would he, I think, sufficient. 
 As to the other two hoys, I leave it to themselves to determine whether 
 they will travel on the night of the 22d, or by day on the 23d ; and I have 
 no doubt what their decision mil he. My reason for suggesting that 
 David should remain at St. Mary's during the Christmas vacation was, 
 that he might have the benefit of that period for the active preparation 
 for the entrance examination, as I infer from his letters that he has yet 
 much to do to afford him a fair chance of honours ; he would do nothing 
 if at home. In relation to the future. You commanded me in Septem- 
 ber last to suspend my determination about David's future, i. e. as to his 
 entering University College immediately after his matriculation at the 
 University. I obeyed. I now transmit you a copy of the Calendar of 
 University College : I am informed that the Professors are generally very 
 superior teachers, and that the Professor of Mathematics stands A 1. The 
 distinction in favour of University College is, that the Professors not only 
 afford the students an opportunity of learning, but teach them ; and 
 their teaching is of the first character. The question seems to be whether 
 the advantages of St. Mary's will enable D. to compete on equal terms 
 with his competitors from University College. Praying you to excuse 
 me, I remain yours faithfully, J. D. FITZGERALD." 
 
 And it is in answer to that letter that the letter of the 12th was 
 written, which is before the Court. 
 
 Lord Chief -Justice Cockburn : I should like to see that 
 letter of the 12th. (It is handed to Ms Lordship.) 
 
 Mr. Karslake: Gentlemen of the Jury, There are cases, very 
 exceptional cases, in which an advocate may be justified, after 
 strong expressions by the jury, formed upon consideration of all 
 the facts of the case upon both sides, in declining to exercise the 
 privilege to which he is entitled of withdrawing from a case. 
 There are other cases, gentlemen, and this is one of them, in 
 which a barrister would betray his client and disgrace himself 
 in his profession if he took such a course. And, gentlemen, not-
 
 203 
 
 withstanding the expressions of opinion, somewhat unusual, by 
 some of those gentlemen whom I address, I have to discharge 
 my duty, and I shall do so to the best of my poor ability; and 
 then you, under the direction of my Lord, will have to discharge 
 your duty in the way in" which you think it ought to be dis- 
 charged. 
 
 Gentlemen, forgive me if I say, that although you may have 
 formed, or some of you may have formed, opinions which have 
 been pretty loudly expressed, you have done so before the whole 
 case has been heard, and before probably you really knew the 
 exact issues which you had to try. This case is put forward 
 as if Dr. Xorthcote was answerable to a jury for the exercise of 
 the discretion, the large discretion, which Mr. Justice Fitzgerald, 
 in common with all the parents of the children who were at 
 the college, had invested him with. This case has been put 
 forward as if some cruel act of expulsion had been committed 
 causelessly and unjustly, and that Dr. Northcote is to have 
 his judgment reviewed by a jury as to the justice of his acts; 
 acting, mind, upon the belief and the information which he 
 had at the time he did the acts which are complained of. Gen- 
 tlemen, I am quite sure of this, that if I can succeed in putting 
 before you the real issue which you have to try, I have no 
 fear that, if you will keep your minds open, you will do that 
 which any man has a right to do, and which as a gentleman 
 he may do properly, justly, and fairly, namely, to review the 
 decision to which he has come, and to ask himself whether his 
 first impressions are not incorrect ; and that is what I ask some 
 of the gentlemen of the jury who have expressed an opinion 
 here to do. 
 
 Gentlemen, Mr. Justice Fitzgerald because I do not view 
 this as the boy's action has asserted his right to bring this case 
 before a jury, in order to have their decision and their verdict 
 between himself and the defendants in this case. He appeals 
 not merely to you to decide the simple issues raised upon this 
 record between himself and Dr. JSTorthcote and his co-defendant, 
 but he appeals to society and to the public ; and to them I also 
 appeal for a justification of Dr. ^orthcote in what he has done. 
 Gentlemen, some of you may in your youth have been at a large 
 public school, or at all events a school in which it was necessary
 
 204 
 
 to keep up a considerable amount of discipline. To Oscott Col- 
 lege young David Fitzgerald went, knowing that the rules were 
 unusually strict; and when I read the letter to you which I 
 shall read, you will see that his own father sent him back there 
 in December 1864, at the suggestion of Dr. Northcote himself, 
 in order that he might be under the strict rules of that college ; 
 and by being under the strict rules of that college he might, to 
 some extent, get rid of a little of the pride and haughtiness 
 which had been his failing up to the time when he had passed 
 through his early degree and left the college in July 1864. 
 Gentlemen, whoever went to that] college knew perfectly well, 
 or ought to have known, that he was liable to every rule that 
 was made for the discipline of the students there. And when I 
 hear my learned friend suggest, or indirectly suggest, that each 
 of these different rules which were infringed by Mr. Fitzgerald 
 at the time he was there was a trivial rule, and that the matter 
 might have been looked over as one of no importance at all, I 
 say this, gentlemen : He was never charged with having gone to 
 a public-house for the purpose merely of getting a glass of beer ; 
 a thing which sounds ridiculous when placed in that way before 
 a jury. He was never charged with simply going into the 
 plantations for the purpose of shooting off a pistol. He was 
 never charged with merely abstracting the key, and then omit- 
 ting to return that key as speedily as he ought to have done, 
 Nor was he charged with having sat up late at night, when he 
 knew he had no right to do so ; and the Prefect, in exercising 
 his authority over him, only did that which, by Dr. Northcote's 
 commands and orders, he was bound to do. The tilings upon 
 which he was arraigned and charged were these : that, knowing 
 those rules which were applicable to his case, he wilfully mea- 
 sured his strength against that of Dr. Northcote and the Prefect ; 
 and at last, after the most solemn warning, when he had pledged 
 his word of honour that he would not again, infringe the rules 
 of the college, he advisedly did so, and for that fault he was 
 detained until he could be sent away ; and he was sent away at 
 the earliest moment at which he could be sent away, and to 
 return to his father, disgraced to the extent of this and only 
 to the extent of this that, having so much pride and so much 
 conceit in his composition, he would not obey the rules of the
 
 205 
 
 college in which he was ; and that he chose wilfully to infringe 
 those rules, after the most ample warning from Dr. N^orthcote 
 as to what would be the consequence. He infringed them onc& 
 too often, and received the punishment which Dr. iNorthcote- 
 had told him would be the necessary consequence of his next 
 offence. Therefore, gentlemen, let me get rid of the sort of 
 playful cross-examination which my learned friend administered. 
 Is it really a mortal or a venial sin to go to a public-house 1 
 Venial. Is it a mortal or a venial sin to shoot off a pistol in a 
 plantation ? Venial again. But is it in Mr. David Fitzgerald's 
 case, when you see the whole of the facts, a case in which Dr. 
 Northcote, in justice to himself and to those who appointed him 
 to Oscott, and to those who have boys there, could have over- 
 looked that which he believed to exist, and which he still be- 
 lieves to have existed, a combination or association, of which 
 David Fitzgerald was the head, which was formed for the express 
 purpose and the ungenerous purpose of annoying boys not in 
 the same position of life as young Mr. David Fitzgerald, and 
 rendering their lives at the college miserable so long as that 
 association was continued 1 Now, gentlemen, that is why Mr. 
 David Fitzgerald suffered as he did ; and that is the act which 
 is justified, on behalf of Dr. Northcote, in the face of you, and 
 in the face of the world, who shall judge of his acts. Gentle- 
 men, in July 1864 young Mr. David Fitzgerald left college, he 
 having passed through the classes. The first matter which was 
 suggested by my learned friend was this : that young Fitzgerald 
 came back again upon exceptional terms, and that young Fitz- 
 gerald when he came back was entitled to an immense amount 
 of respect, to which the other students in the college were not 
 entitled. Gentlemen, I deny that. I show you his own acts. 
 I submit he virtually remained in the same class as that in 
 which he had been before, namely, the highest class, that of 
 the Philosophers. The boys in that class were those who had 
 passed through the different classes, and had attained to the 
 highest degree in the college, and were, more than any other 
 boys, of course bound, so far as they could, to maintain disci- 
 pline, and bound also to take care that they did not infringe 
 the rules, when they knew there was no adequate punishment 
 except thp.t of being sent away.
 
 206 
 
 Now, gentlemen, let me call your attention to what I think 
 may he material for your consideration. Under what terms did 
 David Fitzgerald come hack ? He came hack upon the repre- 
 sentation made hy Dr. l^orthcote that there would he hut a very 
 small portion of the subject-matter for the honours which would 
 he discussed or lectured upon in the class, and that for many 
 reasons it would he expedient that he should have a private 
 tutor. " In other words," says Dr. Northcote, " having a class 
 of three candidates for honours, we shall do our hest to prepare 
 that class directly for the examination. I do not profess to he 
 A 1 in every thing ; hut I think this direct preparation under 
 Professors B will he more likely to attain the end than indirect 
 preparation under Professors A, to say nothing of what I 
 should also set a high value on, the continuance for six months 
 longer in statu pupillari, and under quiet Catholic discipline. 
 In London University the discipline depends wholly on the 
 individual. I am told a student may run into all kinds of 
 excess." Gentlemen, therefore, in 1864, after young Fitzgerald 
 had "been hack for one quarter, or term, or whatever they call it, 
 from July down to Septemher, when he was going up for the 
 London University matriculation, he was going to return to 
 Oscott for the purpose of resuming his studies, and continuing 
 in statu pupillan ; hecause his father helieved that the disci- 
 pline of that college would he "beneficial to him, and that, having 
 regard to all things, it would he "better that he should go hack 
 to that college and he subject to its discipline, rather than go to 
 a private tutor, or he at once launched in London at the London 
 University. Those were the terms on which he came hack again. 
 
 Gentlemen, I daresay that a great deal of that which young 
 Fitzgerald did he did from exuberance of spirits, or even from 
 that pride which is in his composition. But, gentlemen, Mr. 
 Fitzgerald might have remembered that, having "been taken 
 hack hy Dr. Northcote on the terms that he was taken hack, 
 rather as a matter of favour than otherwise, it was all-important 
 for him. to do nothing which could loosen the discipline of the 
 college, and do nothing which could either directly or indirectly 
 he deemed to he an infringement of the rules. Let me call your 
 attention to this. Supposing young David Fitzgerald, when he 
 chose to go out into the plantation, where he had no right to
 
 207 
 
 go. when he chose to go to Erdington, when he was under pen- 
 ance, or not alloAved to go out of bounds, had not had serious 
 notice taken of those acts of insubordination by Dr. Northcote 
 and those who were in the college, what right would Dr. North- 
 cote have to punish another boy in an inferior position ? He 
 would be at once told by that boy, "There is a system of 
 favouritism going on here. Fitzgerald comes back here, and 
 his peccadilloes are overlooked ; I come here, and find myself 
 punished for precisely the same fault which in young Fitzgerald 
 passes unnoticed." It was impossible that Dr. Northcoto could 
 do that ; for if he did, his whole authority as head master of the 
 school, I venture to say after having been at a public school 
 for nine years would, under such circumstances, be gone. He 
 could not in any one single instance allow a boy, hoAvever emi- 
 nent for talent, or however high [in position, to infringe the 
 rules, and then overlook that infringement ; and then the next 
 day punish a boy for an infringement of the same rules, because 
 that boy happens not to be in so high a position, or in a lower 
 grade than the boy who is passed by unpunished. 
 
 Now, just let me look at the evidence which is now before 
 you, as the history of what David Fitzgerald did. He returned 
 in January 1865. You will have to judge of these matters; 
 but there is one thing which I have to remind you of, that 
 Dr. Northcote and Mr. Stone, in acting as they do, have not 
 the power of submitting the whole of their scholars to exami- 
 nation, or cross-examination, for the purpose of sifting the truth. 
 They must act on the best of their judgment and to the best of 
 their belief, exercising that judgment and belief on what they 
 believe to be the facts brought before them. Now, just look 
 at the first instance in which Fitzgerald did that which unques- 
 tionably he ought not to have done, because nobody can doubt 
 that. Mr. Fitzgerald is in the position, as I say, of one of the 
 Philosophers, having a right therefore to occupy a room by him- 
 self. He has no right to have a key of that room, or so to 
 lock-up that room as that the Prefect of Discipline may not 
 have an opportunity of seeing what is going on there. Ho 
 has got a room, to which other boys may have""access ; but he 
 chooses to infringe a rule of the college, to which I will call 
 your attention. There is a master-key not only of that room,
 
 208 
 
 but of other rooms, and some of the offices and the masters* 
 rooms : it was lent by Mr. Stone for a special purpose to young 
 Fitzgerald, and was given back to Mr. Stone, bearing an im- 
 pression of wax upon it, or something which gave rise to some 
 suspicion. He is taxed with it, and admits that something has 
 been done to that key. I ask you, how can you have the least 
 doubt in the world that it had been arranged by David Fitz- 
 gerald and his companions that it would be useful as he him- 
 self says or desirable, that there should be a duplicate of that 
 made ; by which any boy, at any time, may have access to the 
 room of another boy, and to the masters' rooms, or if necessary, 
 the offices, which by means of that key could be opened 1 That 
 is what Mr. Stone tells you, when he taxed David Fitzgerald 
 afterwards with it ; and David Fitzgerald himself says it was 
 done by way of a lark. Of course, that is the explanation which 
 a boy always gives when he is found out doing something which 
 is wrong. But when he is afterwards taxed with it, and it is 
 pointed out to him that that key having been lent to him for 
 a particular purpose, it was an improper act, to say the least of 
 it, for him to have an impression of that key made, for the pur- 
 pose of getting a duplicate constructed in Erdington, or else- 
 where, he admitted to Mr. Stone that he had done an act which 
 was not an honourable act ; and he begged him to overlook that 
 act, and not to mention it to the President. He knew per- 
 fectly well that if that act had been brought before Dr. !N"orth- 
 cote, it was a matter which Dr. Xorthcote could not have failed 
 to take serious notice of. And supposing, as I say, gentlemen, 
 another boy a week afterwards had done the same thing, and 
 had been brought before Dr. ^orthcote for the offence of having 
 attempted to get a key made which should open different stu- 
 dents' rooms, and some of the offices and masters' rooms in that 
 establishment ; and he had come before Dr. Xorthcote, and Dr. 
 Northcote had degraded him for the remainder of the term, and 
 inflicted some severe punishment upon him, what would that 
 boy have done ? He would have turned round and said : 
 "Why, Dr. JTorthcote, this is the grossest injustice that could 
 possibly be. Young David Fitzgerald did the same thing only 
 last week. It is reported to the Prefect of Discipline; he knows 
 it ; he passes it by, and David Fitzgerald goes unpunished ; and
 
 209 
 
 now, because I do the same thing, you txirn round upon me and 
 give me the punishment which David Fitzgerald was subject to 
 at the time he committed a like offence, but which you did not 
 inflict upon him, either from his position, or because he was a 
 favourite of yours." Gentlemen, I take leave to say, that in 
 one of the public schools in this country there is nothing so 
 dangerous as not taking every case which is brought before the 
 head-master, and noticing the case at once ; because, if you do 
 not, you at once establish the precedent that one boy may go 
 unpunished, and the next boy who is brought before the master 
 for the same offence is to have a different punishment dealt out 
 to him, or the offence is to be punished in some way in which 
 the other boy has not been, and from which he has been allowed 
 to escape altogether. Gentlemen, it was never mentioned to 
 Dr. Xorthcote. It is said that Mr. Stone was a person who 
 had been conspiring from first to last against David Fitzgerald. 
 It was a little ungenerous, to say the least of it, to make that 
 statement until the statement was proved. My learned friend 
 knew that he would have another opportunity of making it. 
 I ask, on what grounds was that statement made ? Is there a 
 suggestion that Mr. Stone has, from first to last, attempted to 
 impose duties or burdens on this young man to which he was 
 not properly subject ? I say there is not the slightest founda- 
 tion for it. I will take the first instance, in which Mr. Stone 
 was perfectly justified and authorised, if he thought fit, in going 
 to the President, and mentioning to him that which was beyond 
 all doubt an infringement of the rules of the college. He did 
 not then make that known to the President, on account of the 
 promise which young David Fitzgerald made, that the thing 
 should never again occur. That was passed by without any 
 notice, upon an implied promise, perhaps, that it should not 
 be noticed ; and it never was noticed until Mr. Stone was re- 
 leased from that implied promise which had been given by him 
 to David Fitzgerald, just before the occasion when this dismissal 
 from the college took place. 
 
 Now, gentlemen, let us come to the next matter. The next 
 matter that I have to refer to, and about which a laugh has 
 been raised frequently in the course of this cause, because it 
 suits my learned friend to take that view of it, is the occasion 
 
 P
 
 210 
 
 when yotmg David Fitzgerald goes to Erdington and is found 
 there contrary to the rules and regulations of the college. It is 
 said it is not a very mortal offence to go to Erdington. Granted 
 that it is not; hut it is a perfectly well-known offence. Row 
 supposing on that occasion young David Fitzgerald, who is said 
 to have committed only a venial offence, were allowed to escape 
 without any punishment "being inflicted on him, could the other 
 three boys who were with him have had any punishment in- 
 flicted on them ? and if on a future occasion the hoys had been 
 found at Erdington, when punishment was about to have been 
 inflicted upon them, they would have quoted this, and said 
 they were only following the precedent which they would have 
 said was established in the case of Fitzgerald. How could Dr. 
 ^orthcote turn round and say, " I look upon the circumstances 
 of your case as different, and I intend to punish you, although 
 I did not punish David Fitzgerald and those who were found 
 with him in the Erdington public-house"? Eemember, that 
 which was done to David Fitzgerald upon that occasion was not 
 a punishment only for being in the public-house ; it was a punish- 
 ment for having acted contrary to the rules and discipline of the 
 house, and in a spirit of insubordination, because at the time he 
 did infringe a positive rule which he knew of as being among 
 the rules of Oscott College ; and that when he was under an- 
 other rule which forbade him to go out of the bounds at alL 
 Therefore he was doubly offending against the rules of the col- 
 lege. At the time he did so, the other boys who were with 
 him might have done that, which I daresay many other Philo- 
 sophers may have done. But in Fitzgerald's case it was a 
 determination on his part, to use the expression of Dr. 2sorth- 
 cote, " to measure his strength with the Prefect." He was at 
 that time under the orders of the Prefect that he should not go 
 beyond the bounds. He committed the double offence of going 
 beyond the bounds and going into the Erdington public-house. 
 That he knew he was doing wrong is proved beyond a question 
 by my friend's cross-examination, which established beyond all 
 doubt that he was hiding himself at the time he was in the 
 public-house, and attempting to screen himself from the vigil- 
 ance of the Prefect of Discipline, who was looking after him at 
 the time. If he was merely testing the authority of the Prefect,
 
 211 
 
 which is the sort of suggestion which has been put forward, 
 why did he not come forward boldly and say, "Here I am, 
 although confined to bounds ; I am here for the purpose of 
 testing your authority : I will go back with you to the Presi- 
 dent and contest your authority" ? He never suggested that the 
 Prefect of Discipline had not authority over him, until it suited 
 his purpose to do so by making a complaint against the Prefect 
 of Discipline when the next instance of insubordination mani- 
 fested itself. Before that time he had been told that it was 
 against the rules, as he perfectly well knew it to be, remaining 
 up until between eleven and twelve o'clock at night. He says, 
 " Stone came in and blew me up because I was sitting up be- 
 tween eleven and twelve o'clock at night." Now, gentlemen, 
 that sounds very harsh indeed : but it is not merely for his 
 being up late at night ; it is because he, being placed in a posi- 
 tion of considerable importance at all events very nearly, if not 
 quite, the head boy at the college had chosen to give a great 
 deal of trouble to the Prefect of Discipline, who is empowered 
 and authorised by the President of the college, who cannot him- 
 self control and look after all these boys, it is because of his 
 refusing to obey the Prefect, or because he is infringing the 
 discipline of the college, that the offence is looked at as an 
 offence of weight, and treated as an offence of weight. 
 
 Now I will go to the next occasion. In consequence of 
 what was done at Erdington, David Fitzgerald was then under 
 punishment ; and therefore his offence being not merely going 
 into the Erdington public-house, but having, at the time he 
 went there, done so in defiance of a sentence which had been 
 passed on him before confining him to bounds, he is brought 
 before the President of the college, Dr. Northcote ; and Dr. 
 Northcote at that time, in lecturing him upon the impropriety 
 of his conduct, confined him to bounds until Easter. Therefore, 
 beyond all question, he had no right to be in the plantation at 
 all. "What do you find, only a day or two after this? Dr. 
 N"orthcote's account is this : " I talked to him about the diffi- 
 culty there was in treating with him, placed in the position in 
 which he was." Why, he not only goes himself, but he induces 
 another boy of the name of * * *, who beyond all doubt had 
 no right to be, under any circumstances, in the plantation at all,
 
 '212 
 
 for the purpose of doing that which every boy, even at private 
 schools, knows is against the rules, namely, firing off a pistol, 
 'and amusing himself in that manner ; he knows perfectly well 
 that that is against every rule and regulation of the college to 
 which he belongs. But, gentlemen, it does not stop there. 
 Young David Fitzgerald gives his own account of the story ; and 
 according to his own account the insolence with which he treated 
 the Prefect was almost unparalleled. He treated the Prefect 
 as if he was his inferior in every respect. He told him he 
 would not go ; and because the Prefect told him to go faster, he 
 replied that he would go his own pace. He threw away the 
 pistol. He gave him, according to his own statement, a very 
 haughty and insolent answer indeed, when the Prefect was only 
 discharging his duty, and when he asked him where the pistol 
 was. You have heard the statement which is made on the 
 other side. Such was his conduct on that occasion that Mr. 
 Stone said he would do that which, according to the rules of 
 the college, he had no right to do, and which probably he never 
 intended to do, although he threatened it. It was very easy for 
 my learned friend to say that young David Fitzgerald stated 
 that he had thrown away the pistol. The way in which those 
 things are said makes all the difference. What Mr. Stone ob- 
 served about him was this, not that he mentioned that he had 
 possession of the pistol, but when he was asked where the pistol 
 was, he said he did not know where it was. He might not 
 literally have known where the pistol was at that moment, be- 
 cause he had thrown it into the hedge about four yards from 
 where they were standing ; and that is what Mr. Stone said he 
 considered was a lie, or, at all events, an equivocation equal to 
 a lie ; and it was beyond all doubt deserving of that appella- 
 tion, when you come to look at the circumstances under which 
 that statement was made by David Fitzgerald. What does he 
 do upon that ? He sets at defiance Mr. Stone's authority. He 
 goes to the college, and he goes to make a complaint against the 
 Prefect to Dr. Northcote. Dr. Northcote hears both sides. He 
 did not refuse to hear David Fitzgerald, as David Fitzgerald 
 chooses to say. He pointed out to him at that time that it was 
 bis intolerable conceit, and his refusal to be bound by the rules 
 and discipline of the college, which were bringing him into dis-
 
 213 
 
 grace, and when lie was there for a special purpose he ought to 
 "be taking particular care of what he did ; that he was infringing 
 the rules at the time when he was under punishment ; and that 
 his position in the college, if he went on in that way, was ex- 
 tremely precarious. Dr. Xorthcote pointed out to him, "You 
 are now in this position, David : I have almost exhausted 
 punishment upon you ; and the next time you do infringe the 
 rules of the college, I shall have nothing to do but to send you 
 away from it." He had taken from him his right to read except 
 at certain hours in his private room ; he was degraded to the 
 ranks ; he could not undergo corporal punishment, because that 
 was against the rules of the house ; he had had every punish- 
 ment inflicted upon him that it was in Dr. ]S"orthcote's power to 
 inflict, and he was told at the time by Dr. ^orthcote of what 
 would be the necessary consequence if he infringed the rules of 
 the college again. 
 
 JS"ow let me call your attention again, when the charge of 
 hardship is made against Dr. Northcote, to that which is Dr. 
 JSTorthcote's excuse for not having given warning before he sent 
 this boy away. On that occasion Dr. Northcote, when he sent 
 for young David Fitzgerald, told him, "You have no w committed 
 so many breaches of discipline and offences against the rules, 
 that it will be my duty to do that which I regret to do. I 
 have never yet written, David, to your father except in terms of 
 the highest approbation ; I must now write to him and tell him 
 how you are going on, because, unless I do so on this occasion, 
 after having told you that the next breach of discipline will 
 subject you to dismissal from the school, the consequence will 
 be that your father will turn round on me, and say that, never 
 having given him notice, or never having given liim any 
 warning, your dismissal will be a harsh act on any part." Xow, 
 gentlemen, how came Dr. !S~orthcote to give up his intention on 
 that occasion of writing to Mr. Justice Fitzgerald, and telling him 
 what was going on in the college 1 Young David Fitzgerald 
 said he was going to write to his father himself, or, at all events, 
 he intimated that he should do so. He came back after prayers 
 and begged and prayed Dr. Korthcote not to write to the Judge 
 to tell him of what his conduct had been, and what the conse- 
 quences of future breaches of discipline or of the rules would be.
 
 214 
 
 He promised him, on his honour as a gentleman, that he should 
 never have occasion to find fault with him again. It was after 
 that promise that Dr. Northcote said to him, " ISow mind, David, 
 you are placing me in a dangerous position, "because I am trust- 
 ing to your word of honour as a gentleman that you will not 
 infringe the rules again ; if you do infringe them again, I have 
 already told you the punishment which it will he my duty to 
 award to you. I am placing myself in this position : if that 
 punishment is awarded to you, your father may think it cruel 
 and harsh in my not having given him notice of your former 
 faults which you have committed, and in allowing the world to 
 'think that this was the first offence which you ever committed 
 against the rules of the college." Dr. Xorthcote, perhaps weakly 
 at the time, but trusting to the honour and promise of young 
 Fitzgerald, gave up his intention of writing to the Judge, and 
 allowed the young man to stay there without any complaint 
 being made of his conduct, on the solemn promise which he 
 gave, that he should never be found infringing the discipline of 
 the college again. You will remember, not only on that but on 
 other occasions Mr. Stone had passed over faults as well as Dr. 
 Korthcote ; and it was, as they believed, after punishment had 
 been exhausted, that his honour as a gentleman might be 
 trusted, that Dr. ]S"orthcote allowed him to stay, degraded as he 
 was, until the end of the term, on the promise that he should 
 never be found infringing the rules of the college again. 
 
 IvTow let me come to that which was done afterwards. You 
 have heard from Dr. Northcote and Mr. Stone what the con- 
 stitution of this college is : there are boys there who, like David 
 Fitzgerald, probably consider themselves the aristocracy of 
 Oscott. There are boys there who come for the purpose of 
 pursuing their studies aided by the funds which are found by 
 the Bishops, and who are sent there, as a matter of course, for 
 the purpose of being educated as priests. Many of those boys, 
 if not most of them, come from a preparatory school called 
 Sedgely Park ; and, as you hear, years ago the term " Bunkers" 
 had been applied to those boys, and there had been petty an- 
 noyances to which they were subjected, and there was a feeling 
 exhibited against them which made their position in that esta- 
 blishment any thing but an enviable one. I do not stop to dis-
 
 215 
 
 cuss the question as to whether the college could or could not 
 have been maintained with clerical students only, or whether it 
 was necessary to have lay students there also. This I do say, 
 that if young Fitzgerald could so far swallow the pride of the 
 Fitzgeralds, as I think my learned friend called it, " although 
 h.e was a Fitzgerald," said my learned friend, if he could so far 
 swallow his pride that he could, with his father's consent, come 
 and sojourn at that college for the purpose of pursuing his 
 .studies, he ought at least to have taken the rough with the 
 smooth there, and to have allowed those who came to it sup- 
 ported with charitable funds to pursue their studies there with- 
 out molestation or annoyance. He had been there for years ; 
 he knew what the character of these students was. He may 
 have had friends among some of them ; but one thing is mani- 
 fest, that years ago this feeling against the so-called Bunkers 
 was so manifest, that almost every person who had the interests 
 of Oscott at heart had done his best for the purpose of crushing 
 out the feeling which existed against the class of boys who were 
 subjected to this annoyance, which, as a matter of course, made 
 their lives miserable as long as it was allowed to be practised 
 upon them. Now, gentlemen, was Dr. Northcote Avrong in 
 applying his best energies for the purpose of preventing that 
 feeling getting into existence again 1 How could Dr. Xorth- 
 cote justify to the parents of those boys, or the patrons as they 
 are called, granting permission to any other boys to treat them 
 with slight or indignity, or practise annoyances, however petty, 
 upon them ? How could Dr. Nofthcote justify class being set 
 against class in that establishment, and boys who were meeting 
 daily in the playground, and in the study-rooms, to be setting 
 themselves up against another class of boys whom they found in 
 the same playground and study-rooms as themselves ? It was 
 one of those duties which Dr. Northcote had to discharge in the 
 most conscientious manner ; and he most carefully looked to see 
 .that there was no outbreak of that sort again, because if there 
 was, it Avas his duty to put it down with a strong hand the first 
 tune he saw that spirit manifested. Now what happened 1 
 Several days before this pocket-book was found, Dr. JSTorthcote 
 and Mr. Stone Mr. Stone being the person who is more par- 
 ticularly brought into communication with the boys and the
 
 216 
 
 masters of the college he had found, on what he believed to 
 be reliable information, that there was in existence an associa- 
 tion which had for its object the revival of this spirit against 
 the Church students in the college. He found that it had been 
 so far organised that boys were actually suffering annoyance from 
 it. He knew at Midsummer 1864 that the spirit had so com- 
 pletely died out, that Church students, old Oscotians, and others, 
 who could meet in the playground or the cricket-ground, met 
 there without the least disaffection or feeling one against another. 
 He finds all of a sudden, after David Fitzgerald had returned 
 in 1865, that it had manifested itself again, and that there were 
 students who were complaining of the existence of this spirit, 
 and who pointed out young David Fitzgerald as being the ring- 
 leader and originator of that association which it was suggested 
 was being formed for the purpose of annoying these Church 
 students. Further, Mr. Stone was informed, on perfectly re- 
 liable authority as he believes, that there had been this associa- 
 tion formed, or at all events in the course of getting up, and 
 that active measures had been taken, and that those measures 
 had already borne some pernicious fruit ; and he finds also that 
 there is a belief in existence that David Fitzgerald has in a 
 pocket-book various papers in his possession, and among them a 
 list of those whom it was proposed should join this association, 
 and a list of those against whom the association was going to 
 take active operations that is, whom they had made up their 
 minds to annoy and insult. On Sunday the 12th of March this 
 matter was unknown comparatively to Dr. Horthcote ; but the 
 history of it had been given to Mr. Stone. Mr. Stone ascer- 
 tained that there was this feeling in existence, and, according to 
 the best of his belief, upon the information he had, that associa- 
 tion was in existence and in active operation at the time. !Xow 
 let me call your attention to that which he did. On his own 
 behalf and on Dr. Korthcote's behalf, although Dr. Northcote had 
 no act or part in it at the time, I say I do fully justify in Dr. 
 Korthcote and Mr. Stone the taking of that pocket-book for the 
 purpose of ascertaining whether it was true that there was any 
 society in existence. If ow let me call your attention to what 
 the pocket-book discloses. The only answer which is given to 
 the entries or information which this book contains seems to be
 
 217 
 
 that which young Fitzgerald himself has given. It seems curious 
 that a young man, who was at that time about seventeen years 
 of age, who was pursuing his studies at Oscott, who had his 
 time so fully occupied that it is suggested that he might sit up 
 till midnight, although he had to rise at half-past six in the 
 morning, for the purpose of pursuing his studies, should have 
 been occupying his time on any thing so trivial as merely jotting 
 down on several pages of a pocket-book the history of an associ- 
 ation which had no existence. I ask you to place yourselves, if 
 you can, in the position of Dr. Xorthcote and Mr. Stone ; and, 
 having placed yourselves in the position in which they were, 
 knowing what the effect would be which would be produced in 
 this college by such an association carrying on its operations, ask 
 yourselves whether you would not have come to the same con- 
 clusion that in the result Dr. Northcote did, when he was in- 
 formed what was in this pocket-book, and had examined young 
 David Fitzgerald, as he did, with reference to the entries which 
 he found there. You have not seen this book yourselves, but it 
 is necessary you should see it. I will just call your attention to 
 some of the entries. You will find, " * * *, S. P.," Sedgely 
 Park; " * * *, S. P.," Sedgely Park ;***, K S. M." X. S. M. 
 means National schoolmaster. This young David Fitzgerald said 
 was all humbug, or merely for a lark. But he had taken care to 
 ascertain the calling of the father or relative of this boy against 
 whose name this !N". S. M. is placed. Against the next name is again 
 put " S. P." I will not mention the name. You will find that so 
 the names go down until we come to " J." Somebody, " S. P." 
 Then there is this mark against him, which has been explained 
 " London Irish;" the lowest class of pariah apparently, according 
 to Mr. Fitzgerald's view. Then come the names of two others, one 
 described as " The Bell Inn, Stourbridge ;" both of those having 
 left in January 1865. Now those are the names. On the next 
 page we find that young David Fitzgerald has taken the trouble 
 of investigating this matter still further ; because one of these 
 gentlemen appears to have an uncle or brother who keeps a small 
 grocery establishment on Wednesfield Heath, and another whose 
 father is a general inspector of canal locks. Authority, " Hono- 
 rary Secretary A. B. C." It is a fact beyond all dispute that 
 there is a boy there who has an uncle or brother who keeps a
 
 218 
 
 grocery establishment at that place ; and it is admitted that there 
 is another boy whose father is an inspector of canal locks. "What 
 on earth was David Fitzgerald doing when he was at college, 
 in taking the trouble to investigate the history of these boys and 
 the occupation of their parents, if it was not for the purpose of 
 carrying out those objects which it was believed at the time, be- 
 yond all question, he was carrying out ? Then AVC go on; and we 
 find in the next page that which I shall call your attention 
 very closely to. What is it that appears upon the next page ? 
 "A. E.G." We then find, " Fitzgerald, 5." There were five 
 
 Fitzgeralds in the house ; that is beyond all dispute. " * * *, 1 ; 
 *** o . # * * 9 . * # * i . # * # -i . # -x- -I.*** -| 
 * / ? " > > * > j > l > .* 
 
 That is the entry as originally made; but underneath that, and 
 apparently written at a different time, and it is written in pencil, 
 there is this, "Governor Moody elected for his magnanimous 
 sentiments about Sedgely Park." Some remark was made 
 against Sedgely Park by a master, which seems to have struck 
 them as being quite in consonance with their views; and there- 
 fore this memorandum is made. Then there is the name of an- 
 other person, and this entry : " N. B. Consult the Honorary Se- 
 cretary about this 'gentleman' " " gentleman" being in inverted 
 commas. We all know what that means. Then after that there 
 is a list of names with crosses against them, and there are other 
 marks against others, which it is said by young David Fitzgerald 
 have nothing at all to do with the A. B. C. Society. The next 
 page is prepared to contain a list of the members of the A. B. C. 
 Society, but that list of members did not find its way into the 
 book. Then, in a further page, we have this, "We want all 
 particulars about any of the undermentioned as to birth, parent- 
 age, qualification, and patrons." Now nobody could entertain 
 .a doubt on reading that book ; which book, you will remember, 
 was first seen by Mr. Stone, who conveyed the information, and 
 who looked at it in consequence of what he had heard; he 
 brought the information which he had acquired to the know- 
 ledge of the Vice-President on Sunday evening ; the Vice-Pre- 
 -sident mentioned it that evening non-officially to Dr. North- 
 cote ; and on the following morning Dr. Northcote called all the 
 Superiors of the College together, and the information which 
 .was in existence with reference to this movement was brought
 
 219 
 
 before them; and it was not until they had determined upon a 
 particular course of action that young David Fitzgerald was 
 summoned, and told to bring his book with him. Now, gentle- 
 men, you have the history. I am sure I do not think it 
 signifies Avhat occurred; but I fully admit that when David 
 Fitzgerald was sent for by Mr. Stone, and told to bring his 
 book with him, as he did, he positively refused to give up 
 the book to Mr. Stone. Mr. Stone took it from him, and I 
 venture to justify his taking it from him by what is called in 
 one of the letters " superior force." Mr. Stone says, "he did not 
 actually resist, but I took it from him after he had told me in 
 so many words that I should not have it." I have not the least 
 doubt in the world that I should have ventured to justify that 
 act if it had been asserted that superior force, in the sense in 
 which it was used by my learned friend, had been expended 
 upon young David Fitzgerald. I say, as a master of that school, 
 as Prefect of Discipline, that Mr. Stone was perfectly justified 
 in taking it from him by force if he should have found it neces- 
 sary so to do. But, however, it was taken from him. He is 
 then summoned before Dr. Northcote. When lie is summoned 
 before Dr. ^orthcote, he tells him tliat the whole of this is 
 humbug. Gentlemen, do not suppose that I for a moment 
 think that Mr. Justice Fitzgerald, when he gave implicit con- 
 fidence to his son, and put implicit faith in the statements 
 which he made to him, knew of the existence of the Anti- 
 Bunker Society as a dangerous society to some of the classes in 
 that college. But when young David Fitzgerald comes down 
 before Dr. Xorthcote, and tries to represent at first that which 
 he has represented here namely, that it was all humbug, and 
 only done for a lark there was a very important statement 
 which he made afterwards. He admits that a portion of this 
 book was written at a time when he was in a splenetic humour, 
 or something of that sort ; and Dr. Northcote teDs you that on 
 inquiring more closely into it, he had said it was all humbug, or 
 only done for a lark ; and after he had gone away to his room 
 for the purpose of fetching a letter from his father, which he 
 would not allow him to read, I think, from the position itt 
 which Dr. Iv'orthcote was towards him, he need not be trying 
 to exculpate himself if Dr. JSorthcote had read the whole of the
 
 220 
 
 letter from beginning to end. Whatever secrets it might have 
 contained were perfectly safe with him ; but he points to one 
 particular passage, and says, " This is my exculpation." This 
 is the passage, " Pray, what is the subscription to the A. B. C. f 
 Is that sufficient to satisfy Dr. Northcote that the whole thing 
 was humbug from beginning to end ? He says, " That is what 
 I vouch ;" and when he is first called upon to give an answer to 
 this, he admits afterwards that he has done it in a fit of spleen ; 
 he goes into the history of the diiferent boys whose names you 
 will find in his own book that his brothers John and James 
 have nothing to do with it ; and you will find Dr. Northcote's 
 own pencil-marks against John and James, showing that that 
 explanation was given at the time. You will find further that 
 as regards * * * 2 is put down. He explained to him that 
 there was only one of them who was a member of the A. B. C. 
 Club, and that the other had nothing to do with it ; and with 
 regard to * * *, who is mentioned afterwards, and against 
 whom the figure 1 is put, he says he refused to give in his 
 adhesion or alliance, and therefore he too had nothing to do 
 with it. That is the statement that is made to Dr. Northcote. 
 After young David Fitzgerald had tried to explain the thing by 
 saying, " This is all nonsense and humbug," he had been told, 
 " You may do this in a fit of spleen, and think nothing of it, but 
 remember that what may be a very good joke to you is death to 
 the frogs ;" meaning thereby that if this sort of association was to 
 exist, if this sort of feeling was again to be fomented in the 
 college, and manifested throughout the college, they might as 
 well shut up the gates of the college as far as the clerical 
 students were concerned, because it was impossible that the 
 clerical students could live there under that system of annoy- 
 ance which Dr. ]S"orthcote believed was again about to be re- 
 vived against them. I do say, then, that if Dr. Northcote had 
 not taken the strongest measures at once to crush out that 
 spirit that was again rising up in the college, he would have 
 failed most grossly in his duty towards those who appointed 
 him to the supervision and the presidency of that college, and 
 to the fathers and every one of those boys whose names are set 
 down as being boys who were to be the objects of insult and 
 annoyance at the hands of those who claim a superior position,
 
 221 
 
 namely, the Anti-Bunker Society, which Mr. Fitzgerald admits 
 himself to be the originator of. The whole thing is investigated. 
 Dr. JSTorthcote takes every means that he thinks right, and 
 which are at hand, for the purpose of ascertaining the extent of 
 this. He examines young Fitzgerald most carefully upon the 
 matter; he forms his opinion upon such materials as he has 
 before him. But that with which he is charged is proved 
 against him. He reminds him at that time of the promise 
 that he had made before ; he is told, " You know what must 
 necessarily be the consequence." Young Fitzgerald had freely 
 exculpated many of those boys whose names were mentioned 
 from any complicity in this association. After the whole inter- 
 view had taken place, Dr. ISTorthcote had told him, " You will 
 now go to your own room ; you know what the consequences, 
 as I called to your attention only a week or two ago, would be 
 of again infringing the rules and the discipline of this house : 
 I find you engaged now in doing that which is subversive of all 
 discipline, and dangerous to the inmates of the house, and the 
 consequence is that you must go at once, because you are no 
 longer to be trusted among your former companions here." 
 
 Now I will just call your attention to what David Fitz- 
 gerald does. It is said that he was dismissed from that time ; 
 and I hear a sort of suggestion that at that time, having been 
 dismissed, Dr. Northcote had no more power over him. Had 
 he not, gentlemen ? Was Dr. Northcote to let that young man 
 do any thing he liked until he left the roof under which he had 
 been? I say he was not removed from Dr. Northcote's care 
 and supervision until he was actually sent from that roof to his 
 father. So long as he was there, it was the duty of Dr. Xorth- 
 cote not only to protect him from the violence of the other boys 
 in the house, but also to protect the other boys from him, and 
 prevent his having any communication with them before he left. 
 He is told to go to his room, and he again evinces that spirit of 
 insubordination which he had evinced on so many other occa- 
 sions ; he leaves his room, after Dr. Northcote had expressly 
 told him to remain there. The bell is rung for the purpose of 
 summoning the boys in the house to hear the sentence, and the 
 reasons for the sentence, which was about to be inflicted upon 
 David Fitzgerald. He does not appear, and is not to be found
 
 222. 
 
 in his room, although. Mr. Stone goes for him. He is found 
 standing at the door of Dr. Northcote's room, having come there 
 for the purpose of meeting him; and it is upon that occasion, 
 after all that had passed between them, that he is again told to 
 go. "You must pack up your things, and be in readiness to 
 leave this afternoon." It is next suggested that he should dine 
 in the private room, or in the visitors' room ; but at his own 
 request, instead of dining there, he occupied his .own room, and 
 Mr. Stone saw his dinner taken up there. Then it is said that 
 he was locked in, which is a gross indignity. How on earth, 
 carrying out that which Dr. ISTorthcote believed to be necessary 
 namely, the exclusion of young David Fitzgerald from the other 
 boys that was to be effected without some such plan as that 
 being adopted, I do not know. What had he done before when 
 he was told to keep to his room ? He had refused to do so ; he 
 had left his room. What warrant was there that he would not 
 do exactly the same thing again 1 No one could doubt that he 
 would have done so, if he had been allowed. Therefore I say that 
 Mr. Stone, in locking him up in his own room when he goes 
 down for the purpose of giving orders, was merely locking him in 
 for the purpose of preventing him leaving his room and having 
 communication with the other boys, and also preventing the other 
 boys from having communication with him. The earliest time 
 at which he can go is about three o'clock, and a carriage is sent 
 for for the purpose of taking him to the station. He is requested 
 to pack up his things ; but he packs up his things very slowly 
 indeed, intimating to Mr. Stone that he will not obey his autho- 
 rity, and will not obey his orders, although Mr. Stone is only 
 carrying out Dr. Northcote's instructions. At last, having been 
 told that if he does not choose to pack up more quickly and to 
 go, his things will be sent after him, the carriage waiting there 
 to take him to the station at Birmingham, in order that he 
 might get on the railway on his return to Ireland, he does 
 pack up his things ; and he has one further interview with Dr. 
 Northcote after that time, and he leaves the house. 
 
 Now, gentlemen, that which is charged here is an assault 
 on Sunday the 12th of March by Mr. Stone; two upon the 13th, 
 when Mr. Stone saw him and took the pocket-book from him ; 
 and one other on the 13th, when Dr. Northcote ordered him to
 
 223 
 
 his room, and had him kept there. There are other matters,- 
 and I do not know that it may not be right to refer to them ; 
 but certainly it did strike me, having read the letter from Mr. 
 Justice Fitzgerald, that this charge of assault was placed on the 
 record, not for the purpose of determining the main question, 
 if that be a question for the jury at all, but for the purpose of 
 suggesting that in carrying out the object of Dr. Northcote the 
 book was kept a little too long, or that something was done in 
 excess of what was authorised ; and therefore the verdict may be 
 hung on that peg, if it cannot be hung on the main question 
 which is to be decided on this occasion. 
 
 Gentlemen, it is said that there should have been a telegram 
 sent. " Why did you not telegraph to me, Dr. ISTorthcote ]" I 
 know of no charge in this case which was made before to-day 
 about not telegraphing. We have been very far a-field in . the 
 charges which have been made. Charges have been made of 
 having imprisoned him during the time that he was in the col- 
 lege, and taking the book from him during the time he was in the 
 college. Dr. Korthcote did not then send any telegram; but 
 having sent off this young man by the evening train from Bir- 
 mingham, by that same night's post Dr. Northcote wrote the 
 letter which my learned friend would not read in his opening, 
 and which would have given you a very different impression 
 indeed at the outset of Dr. Northcote's conduct, if my learned 
 friend had thought fit to read it, instead of allowing the whole 
 of the examination of young Fitzgerald to be gone through be- 
 fore you were apprised of the contents of that letter. jS"ow, 
 gentlemen, I do not know whether, in addition to the charge 
 which Mr. Coleridge made against him, that he was utterly unfit 
 to deal with gentlemen in a school of this description, it is going 
 to be said that Dr. Northcote advisedly abstained from sending 
 any letter in order further to harrow up the Judge's feelings on 
 finding that his son was sent away from this place. I do not 
 trouble you with that. I appeal to every letter which my 
 learned friend has read, and I ask you whether Dr. Northcote 
 did not do that which he thought it necessary to do with the 
 utmost pain and reluctance, and only because he had found that 
 by his previous conduct he had rather encouraged young Fitz- 
 gerald to go on in that spirit of insubordination which ho
 
 224 
 
 manifested, and to prevent his committing otter acts of insub- 
 ordination, and that it was because he had found that there was 
 no hope of any amendment ; and it was with the deepest regret 
 that he sent him away from the college, without the slightest im- 
 putation, as was at one time suggested, that it was on account 
 of any breaches of the rules of morality, or on account of any 
 thing immoral in his conduct, but simply because young Fitz- 
 gerald, having attained high honours, had got so proud or so 
 full of conceit, as Dr. Iforthcote himself says, that he measured 
 his strength against the constituted authorities of the college. 
 At last, having been warned of what would be the consequence 
 of again infringing those rules which it was Dr. Northcote's 
 duty to support, having infringed one of those regulations made 
 for the discipline of the college, one of those rules which 
 although it was a traditional one, he knew to exist ; one which, 
 above all others, it was the duty of Dr. Northcote to take care was 
 not infringed, namely, that rule which had been known perfectly 
 well among all the boys, that, so far as the President and the 
 Master of that college could do it, the position of those boys who 
 had been admitted as accredited students should be considered 
 equal to those who considered themselves richer and stronger 
 than their humbler brethren, and who chose, because they were in 
 that position, to treat them with indignity and scorn now, gen- 
 tlemen, that was the reason why Dr. Northcote took this course. 
 Having said that, let me read you the letter which my learned 
 friend would not read, and which was on the table of Mr. Justice 
 Fitzgerald, I should think, a very short time after he found his son 
 under his roof in Merrion Square. It is suggested, gentlemen, that 
 a telegram ought to have been sent. Supposing a telegram had 
 been sent, saying, " David Fitzgerald is expelled," do you think 
 that would have been a kind course to have taken ? It was 
 impossible within the limits of a telegram to have explained 
 fairly and justly to the Judge, or towards the heads and autho- 
 rities of the college, what the reason was for David's going 
 home. Gentlemen, let me call your attention to the letter. I 
 think it was unnecessary, and I venture to say so in his pre- 
 sence, that Mr. Justice Fitzgerald should have taken the course 
 which he has taken in bringing forward this case to exculpate 
 his son. So far as we know now, he has passed through the
 
 225 
 
 London University, and is reading for the profession of which I 
 have the honour to be a member. I hope the youth will follow 
 in the footsteps of his father, and that his talent will enable 
 him to command a position such as his father holds in that 
 profession. It is said there may be some imputation against 
 his morality ; and it is necessary, therefore, to bring this action 
 on his behalf. Was there ever a suggestion in this letter, or 
 elsewhere, that there had been any such accusation made against 
 young David Fitzgerald 1 ? None whatever. The whole course 
 of his being sent away is explained at length to his father. He 
 might have been sent home without any explanation at all ; 
 but here is this letter. Therefore, to say that it may be sug- 
 gested that there was something which had happened which 
 was not explained, seems to me to be entirely in contradiction 
 to that which was the real state of the case. Let me just read 
 it, and you will then see how Mr. Justice Fitzgerald acts upon 
 it. I can perfectly understand that he hears the boy's own 
 account of what occurred. Every schoolmaster in the world 
 well knows that there is nothing more dangerous than to place 
 implicit confidence in a boy's account of what has happened 
 when he is subject to punishment, because he would not be a 
 human being if he did not make out as far as he could that he 
 was not to blame, and that the master was unnecessarily harsh. 
 Mr. Justice Fitzgerald acts at once on his son's statement, 
 although he has this letter from Dr. Northcote before him. 
 Now let me call your attention to what is explained here. I 
 read it before, but I will read it to you again, because it is a 
 justification, which I submit to you, of Dr. Northcote's conduct 
 on this occasion.* 
 
 What was done upon that 1 Mr. Justice Fitzgerald imme- 
 diately telegraphed to Oscott, and had all his sons and nephews 
 taken away. Some suggestion was made, as I understand, that 
 when Dr. Northcote, as he found it his duty to do, informed the 
 boys assembled on the 13th of what had been David's offence, 
 that he made use of expressions which were unnecessarily harsh. 
 You have heard what the observations were. I need not repeat 
 them. He pointed out that a gentleman does not consist merely 
 of a man who may be of gentle birth; but a gentleman consists 
 * See the letter, p. 5. 
 
 Q
 
 226 
 
 mainly in this, that you shall never give offence, by word or 
 act, to others who happen to be your inferiors in station. After 
 that lecture had been given it was, that David Fitzgerald, who 
 was not present at it, was dismissed from Oscott. The Judge 
 takes away his other sons and relatives ; and upon that occasion 
 also it was suggested that Dr. Northcote had done something 
 harsh or unkind. I will tell you exactly what he did. He 
 explained most fully that, as regards many of these young Fitz- 
 geralds, they had been exculpated by young David Fitzgerald 
 himself; and as regards the others, he thought they would not 
 have joined this association or this combination, if it had not 
 been that they had been led into it by the older boy. I think 
 the learned Judge must have been a little out of temper when 
 he received the letter dated March 17th from. Dr. Northcote, in 
 which Dr. Northcote said : 
 
 " I confess I was somewhat surprised at the request for information 
 to enable you to form a correct judgment of the course pursued towards 
 David. Two days before, I had received a telegram ordering the imme- 
 diate removal of the whole family from the college ; a course of pro- 
 ceeding which seemed to me to indicate in no doubtful manner a judg- 
 ment already formed." 
 
 He naturally thought it a little strange then to request infor- 
 mation to enable him to form a correct judgment on the course 
 pursued against David. I think Dr. I^orthcote not incorrectly 
 argued : "If you have taken your other sons away, I cannot 
 hope to alter the impression which you have already formed 
 upon it." What was the answer which was given by the 
 Judge? I cannot help saying that I think it is an answer 
 which Mr. Justice Fitzgerald ought hardly to have given to a 
 man in Dr. Northcote's position : 
 
 " EEV. SIE, I have received your letter of the 17th in answer to 
 mine of the 15th inst. There was nothing in my letter, nor in the sub- 
 ject to which it related, to call for or warrant a sneering or offensive 
 reply. You complain that my judgment stands committed on one side 
 by the removal of my second and third sons. I ordered their return 
 because, on consideration of your letter of the 13th, I felt convinced 
 they were no longer safe at Oscott." 
 
 I should like to know the passage in that letter of the 13th 
 (written bond fide, and in the belief that every thing there stated 
 was correct, and Mr. Justice Fitzgerald having no means what-
 
 227 
 
 ever of knowing that that statement was not strictly accurate) 
 which rendered it justifiable that Dr. Northcote should have 
 been written to in that way by the Judge, and his letter written 
 in answer to one that the Judge had sent him stigmatised as 
 "a sneering and offensive reply." Gentlemen, that was the 
 course which Dr. Northcote took in answer to Mr. Justice 
 Fitzgerald's letter. Then Mr. Justice Fitzgerald talks about 
 " poisonous slander," as to which there is not the least foun- 
 dation. Then he says : 
 
 " I cannot permit my son to enter life, to join a high and honourable 
 profession, with the stain that you have thus fixed on his name ; and I 
 will, therefore, endeavour to procure for him an early opportunity for 
 public investigation. In doing so I will be actuated solely by a desire 
 to perform my duty to the public and to him, in seeing that truth and 
 justice shall prevail." 
 
 And for .the purpose of making truth and justice prevail, I sup- 
 pose these long pleadings containing these technical pleas are 
 raised, in order that, if they can prove that the book was kept 
 one hour too long or one day too long, the verdict may be given 
 on that technical ground, although on the main points of the 
 case Dr. Northcote is entitled to succeed. 
 
 Gentlemen, you will hear again, I have no doubt, from my 
 learned friend, a very able speech on behalf I will not say of 
 David Fitzgerald, but of Mr. Justice Fitzgerald. I daresay 
 you will again hear Mr. Stone called a gaoler, and possibly you 
 will hear Dr. Xorthcote called an executioner, for aught I know ; 
 because it seems to me just as proper to call Dr. Northcote, who 
 orders a boy to be flogged, an executioner, as to call Mr. Stone, 
 who is ordered to confine a boy for breach of discipline to his 
 room, a gaoler. 
 
 Lord Chief-Justice CocJcburn: I think, Mr. Karslake, that 
 was my phrase. Do not blame Mr. Coleridge for that. 
 
 Mr. Karslake : I thought it was my learned friend's, my 
 Lord. 
 
 Lord Chief-Justice Cockburn : Not at all ; it was mine. 
 
 Mr. Karslake : I beg your Lordship's pardon. I was merely 
 endeavouring to point out that the imprisonment, as it is called, 
 under lock and key made no difference. I say, if it was neces- 
 sary to send him away from the college, as it was thought under
 
 the circumstances absolutely necessary, that then Dr. Northcote, 
 in the exercise of the wide discretion which was vested in him, 
 was "bound to take care that that young man should not have 
 any communication with the other students of the college, so 
 long as it was necessary to keep him within the walls of the 
 college, until his carriage could be sent for to take him away to 
 Birmingham. 
 
 Then, gentlemen, what does it result in? Dr. Northcote, 
 upon the grounds which he has stated to you, believing that 
 there was this association and combination existing at the time 
 that he took these measures towards young David Fitzgerald, 
 there was no other course for bfm to adopt than the course 
 which he did adopt. Gentlemen, my learned friend has asked 
 the question of Dr. Northcote, after having heard what young 
 David Fitzgerald has said here, " Do you still believe that you 
 were justified in what you did, even supposing this combination 
 existed?" Dr. Iforthcote knew what his previous conduct to- 
 ward the Church students had been. He had not only the 
 opportunity of making up his mind from the information which 
 had been furnished to hi, but from the very manner of young 
 Fitzgerald himself, when he came before him, as to whether this 
 association existed or not. That he believed it to exist, there 
 can be no question ; and that he acted on that belief, there can 
 be no question. He is a person who has a right, in a case of 
 this sort, to award such punishment as he thinks fit for such an 
 offence ; and if he thinks it right that he should be detained 
 as young Fitzgerald was detained either with some person on 
 guard over him, or some person who had authority to lock the 
 door, until he left the college, I contend that he was justified 
 in so doing, and that his discretion in such a matter as that 
 must be absolute ; and there can be no appeal from his discre- 
 tion, and no review of his discretion, by a jury, as to whether 
 he was right or wrong in so doing. 
 
 Lord Chief-Justice CocJcburn : There I should differ from you, 
 Mr. Karslake ; and I should lay it down that the jury have a 
 right to see whether he had reasonable grounds for the course 
 which he pursued. I hold that there is an implied contract 
 between the parent and the preceptor, when a parent sends his 
 child to be educated at that establishment, that the preceptor
 
 will continue to educate him, so long as the conduct of that 
 child does not warrant him in expelling him from the insti- 
 tution. He may cease to do that under reasonable circum- 
 stances ; but if he expels him, he does break his contract with 
 the father, so long as the conduct of the child has not rendered 
 his expulsion reasonably necessary. Then, when we consider 
 what the consequences are to the young man who is expelled 
 from an institution of this kind, it becomes the more essential 
 that that implied contract should not be broken. Therefore it 
 will be a question for the jury, whether they think that, under 
 all the circumstances, making due allowance for the discretion 
 which undoubtedly is vested in the master, and which certainly 
 ought not to be overruled upon light grounds, that the Defend- 
 ant has or has not broken his contract ; and if they think he 
 has, it is a question for them whether they think the circum- 
 stances of the case reasonably warranted him in exercising that 
 discretion. 
 
 Mr. Karslake: Of course, gentlemen, I bow to my Lord, 
 when he states what he shall lay down to you; and taking 
 what his Lordship says he shall lay down to you as my guide, I 
 contend that there are fair and reasonable grounds to warrant 
 Dr. Xorthcote in acting as he did. I submit to you, gentlemen, 
 there can be no doubt whatever, that if he did act in the belief 
 that there was an association in existence, that belief being 
 supported on grounds which would have made any person in 
 Dr. Korthcote's position act as he did, knowing, as Dr. Xorth- 
 cote knows better than any other man, what would be the con- 
 sequence if such an association or combination was not crushed 
 out at once ; having regard to the fact that young David Fitz- 
 gerald had already been warned that any future infringement of 
 the rules of that college would necessarily result in his dismissal, 
 that that is a complete justification of Dr. Korthcote in act- 
 ing as he has done. 
 
 Now, gentlemen, I have made these remarks to you, because 
 it was my duty to place the case before you as it seemed to mo 
 the facts warranted. I lay it before you with the confident 
 hope that when you have heard that which is much more im- 
 portant than any address which I can make to you, or any 
 address which my friend can make to you, because we are acting
 
 here merely as advocates on one side and on the other, when 
 you have heard what my Lord shall leave to you as being the 
 real issue for your determination in this case, that you will 
 pause before any one of you adopts an opinion which some of 
 you have already expressed without having had the most 
 ample means of knowing what the real issue before you to try 
 is. Although you may sympathise with a young man like David 
 Fitzgerald as you naturally do who comes and tells you that 
 although his position in society is injured in no way by what 
 has been done for no suggestion has ever been made that any 
 thing has been ever done in consequence of this expulsion, as 
 it is called, or dismissal from the school I submit to you, that 
 whatever sympathy you may feel for a young man so situated, 
 you will look at all the difficulties under which Dr. Northcote 
 was placed, and all the circumstances under which he deemed 
 it right to do that which he did with pain and with sorrow; 
 and I trust, gentlemen, that your verdict in this case will be 
 one of acquittal of Dr. Xorthcote, and those who acted with 
 him; and I venture to hope also that the opinion which you 
 express, justifying Dr. Jforthcote, will be an opinion which will 
 be endorsed and confirmed by that society to which the learned 
 
 (His Lordship and the Jury then retired for a short time.) 
 
 Mr. Coleridge : May it please your Lordship, Gentlemen of 
 the Jury, Dr. 2s"orthcote in this case has had his will He has 
 had this case tried out to the very dregs ; and it is now for you, 
 having heard his case presented to you by one of the ablest men 
 in England, to say what verdict you will pass upon him. 
 
 Most of you, I should think, must have hoped that at the 
 end of Mr. Fitzgerald's examination, at all events at the end of 
 the plaintiffs case, Dr. !N\>rthcote would have said, and have 
 gracefully said, " Whatever was my opinion at the time I ex- 
 pelled Mr. Fitzgerald, I have heard his account of the matter ; he 
 is a young gentleman who has manifestly told the truth j he has 
 told this story under the sanction of an oath ; I now see what 
 he has told is the truth, that this conspiracy was a pack of 
 stuff, and that I acted too precipitately and harshly ; I am sorry 
 for what I have done ; I acted for the best under the belief that
 
 231 
 
 it was as represented to me ; I now find I have made a mistake, 
 and am sorry ;" and there, gentlemen, as far as Mr. Fitzgerald is 
 concerned, would have been an end to the case. That has not 
 suited Dr. Xorthcote ; it has not suited Mr. Stone ; it has not 
 suited, I suppose, the interests which Dr. Xorthcote and Mr. 
 Stone represent; and one of the ablest men in England has 
 been put up to make a laboured attack on the character of Mr. 
 Fitzgerald, and, although not in words, yet in fact to suggest 
 that the account which Mr. Fitzgerald has given of the transac- 
 tions was not a correct one : that not only was Dr. Xorthcote 
 not mistaken in point of judgment, which any man might be, 
 but that he was not mistaken in point of fact, although Mr. 
 Fitzgerald has sworn that he was. I should think that any one 
 who has heard this case, and any one who has had any thing to 
 do with it, from the beginning to the end, must exceedingly 
 regret that it did not suit Dr. JSTorthcote, that it did not suit his 
 character, that it did not suit his position to do that which any 
 gentleman might have done with dignity and grace, and with ad- 
 vantage to his character and to all the best interests he represents. 
 
 But, gentlemen, it is my duty, as counsel for Mr. Fitzgerald, 
 to address you now in reply upon this case ; and I shall be as 
 brief as I can, because, divesting the case of all irrelevant mat- 
 ter, the points for your consideration are very few, and singu- 
 larly simple. First of all, was there on Dr. Xorthcote's mind 
 a reasonable belief, not a mere vain imagination, not a foolish 
 delusion, but was there a reasonable belief, such a belief as a 
 reasonable man in any other important affair of life would act 
 upon, that there was the existence of this conspiracy which he 
 has represented to you ; and did he do what was done in the 
 pursuit of that reasonable belief? 2s T ext, if there was that rear 
 sonable belief, did Dr. ]S"orthcote in what he did transcend or 
 not transcend those limits of reasonable necessity which you are 
 to "be the judges of, and which must be the limits under which 
 all persons in Dr. Northcote's position are to act ? 
 
 I said to you before, and I say to you again, that I admit, 
 as any man of common sense must admit, that a large discretion 
 is of necessity to be intrusted to a person who is at the head of 
 an educational establishment, no man of sound judgment will 
 attempt to interfere with even a strong exercise of that discre-
 
 tion if it is bond fide, but at the same time there are reason- 
 able limits, of which juries are to be the judges ; and it is for 
 you, gentlemen, to say, not for the purpose of catching a 
 miserable verdict, as my learned friend has a little unkindly 
 imputed to me not for the purpose of catching a verdict on a 
 peg too small to hang it upon but because it is the real ques- 
 tion in the cause. Admitting that Dr. Xorthcote must have a 
 reasonable discretion, as the head of an establishment of this 
 nature, has he or has he not transcended the reasonable limits 
 which must be reasonably imposed upon every such discretion 1 
 My Lord has pointed out the first question to you in language far 
 better than any I can use. There is on the part of every parent 
 who sends a child to an establishment of this sort a contract 
 entered into that he shall be there left until his expulsion from 
 the school shall become a reasonable necessity on the part of the 
 head. In the circumstances of that expulsion there must be a 
 limit of reasonable necessity to justify it ; and if a man acts 
 with unwarrantable harshness and cruelty, he is answerable to 
 a jury for so acting. 
 
 Gentlemen, the questions I have pointed out will be the 
 two main questions for your consideration. Then there is a 
 third question but one entirely unimportant compared with the 
 others, as far as Mr. Justice Fitzgerald or his son is concerned 
 namely, what amount of damages ought Dr. Xorthcote to pay 
 for the conduct of which he has been guilty in this case 1 
 
 N"ow, gentlemen, I have said to you that I thought Dr. 
 Northcote might gracefully have withdrawn from the case after 
 hearing Mr. Fitzgerald's evidence ; and I think I may repeat 
 that, on the authority of Dr. Iforthcote and Mr. Stone them- 
 selves, for you have had yesterday occupied, and the greatest part 
 of to-day occupied, with the contradiction of Dr. ]S"orthcote and 
 Mr. Stone ; and I appeal to you if in any material particular they 
 have contradicted or qualified the story which Mr. Fitzgerald has 
 told you. Does not the case remain, as far as the facts of it 
 are concerned, substantially where it was when young Mr. Fitz- 
 gerald left the box ? I am therefore relieved of a part of the 
 difficulty an onerous and a very disagreeable part very often of 
 an advocate's duty in reply the duty of sifting certain state- 
 ments against others, and pointing out why one set of statements
 
 233 
 
 is to be believed, and another set of statements is to be discre- 
 dited. In the present case, substantially speaking, the state- 
 ments are the same. About the main general features of the 
 transaction there is no dispute ; and I will not waste your time 
 about whether this particular form, of expression was used, or that 
 particular form of expression was employed, because you will all 
 agree that substantially Mr. Fitzgerald has told the truth. I do 
 not ask you to believe that, although you might reasonably do so, 
 from the frankness of manner and the general conduct of the 
 young man himself ; but because Dr. Xorthcote and Mr. Stone 
 do not contradict him : they do not substantially contradict one 
 single important fact which Mr. Fitzgerald has stated. 
 
 Now what appears from this? Why, I say, first of all 
 appears from it the entirely trumpery rubbish of the whole of 
 these miserable subjects into which we have been inquiring at 
 the instance of Dr. Northcote, and upon which he founds his 
 cruel and unjustifiable expulsion of this young man. Not a 
 thing has been proved against Mr. Fitzgerald which can be said 
 to be an act that is not done in every school in the kingdom by 
 hundreds of boys ; and when Dr. Xorthcote is asked the ques- 
 tion, he is obliged to say that, with the exception of the spirits, 
 there is not a single offence of which Mr. Fitzgerald was guilty 
 that he did not class under the head of venial sins. Then 
 nothing can be more trumpery or unworthy of consideration 
 than the fact upon which Dr. Northcote has based his extremely 
 strong and cruel proceedings in this case ; nay, as I before stated 
 with reference to an important part of this case, I assert this not 
 upon Mr. Fitzgerald's authority, but upon Dr. Xorthcote's own 
 authority ; for if you refer to the letter of the 1 3th of March, 
 which he writes to Mr. Justice Fitzgerald after he has expelled 
 his son, he treats these matters as not being worthy of con- 
 sideration,* and does not go into them, and puts the whole of it 
 upon this miserable " A. B. C." confederacy. He says : " I pass 
 over the breaches of discipline and offensive conduct to his Su- 
 periors, which by degrees led to my having a serious conversation 
 with him, and inflicting a severe punishment on Shrove Tues- 
 day," and so on ; therefore he does not pretend to say that 
 upon those breaches of discipline he would have undertaken, or 
 * The reader is requested to read the letter itself, p. 5.
 
 234 
 
 have justified to any body, the extreme measure to which he 
 had recourse ; but now, when an action is brought against him, 
 and" when he has to justify himself for having expelled Mr. 
 Fitzgerald, and having affixed a stigma for life upon that young 
 man, he goes back for years, and seeks to rake up these miserable 
 peccadilloes, and bring them as make- weights to justify the 
 course he adopted. 
 
 Mr. Harcourt : I think my learned friend has forgotten that 
 all these matters are referred to in the letter of March the 17th. 
 
 Mr. Coleridge: If I am misstating any thing that I am 
 dealing with, I am exceedingly glad to be corrected. I have 
 not yet arrived at the position of my learned friend Mr. Har- 
 court ; but I must tell my learned friend that no one in my 
 position can deal with more than one thing at a time. I have 
 been quoting from a letter of March the 13th ; when I come to 
 the letter of March the 17th, I shall deal with that : I cannot 
 deal with the two at one time, even to please my learned friend 
 Mr. Harcourt : I have not the power. 
 
 I am now on the letter of the 13th of March, and there the 
 passage occurs which I have already read to you. In that letter, 
 which he writes to explain on what grounds he expels Mr. 
 Fitzgerald, he says he passes over, and will not rely on, the 
 previous breaches of discipline of which the young man had 
 been guilty. Mr. Justice Fitzgerald, in answer to that letter, 
 says : "In order to judge of your conduct, I want to know of 
 these previous breaches of discipline ;" and when he asks for 
 an account of the previous breaches of discipline, in the letter 
 of March the 1 7th, it is true, upon the requisition of Mr. Justice 
 Fitzgerald, those answers are given ; but they were not given, 
 and would not have been given, if the Judge had acquiesced in 
 the course adopted, and had not inquired into its justice. I say 
 more : not only are these miserable matters raked up for the 
 purpose of attacking and casting a stigma upon the character of 
 Mr. Fitzgerald, but Dr. Uorthcote goes back into a matter which 
 he does not refer to in his letter of the 17th of March, and 
 which, as far as I am concerned, I never heard of, nor any body 
 else, I presume, until he came into court to support his case. 
 He actually goes back t<5 the Midsummer of 1862, at the time of 
 the International Exhibition, when it seems that Mr. Fitzgerald
 
 235 
 
 and two or three other persons were all guilty of the unpardon- 
 able offence of singing in the dormitory, " We will go home in 
 the morning." That is a thing he marked with the severity of 
 keeping him back for the best part of a day from his school- 
 fellows ; and that is raked up as a proof of what my learned 
 friend calls this young man's ungovernable conceit and indo- 
 mitable pride, because he sings " We will go home in the morn- 
 ing !" No doubt such conduct may have disturbed the gentle- 
 men in the dormitory, and doubtless it was annoying to those 
 who were not going home in the morning ; but as it affects Dr. 
 Northcote in a case like this, Vhere he makes no charge of a 
 moral kind against Mr. Fitzgerald, that he should rake up these 
 miserable peccadilloes to the discredit of the plaintiff, I leave 
 you to deal with it, and to say whether that is to his credit or 
 his discredit. 
 
 With regard to this conspiracy or society, one cannot help 
 remarking that a great deal of the feeling displayed arises from 
 the mistake which Dr. Northcote is not answerable for, but 
 wliich must be considered to be a grave mistake, of endeavouring 
 to mix up in the same educational institution the strict and 
 ascetic training of priests, which may be extremely necessary 
 for their education, with that more free and liberal education 
 which we, as laymen, are entitled to have, and do most of us 
 have. No doubt, speaking without prejudice, there may be some 
 positive advantages and disadvantages in each of the two sys- 
 tems ; and I am far from saying that there may not be good 
 reasons why the eminent men who conduct the Roman Catholic 
 system in this country should not be trained in separate esta- 
 blishments. We think it right that our clergy should be edu- 
 cated amongst us, and should be educated with no distinction 
 with laymen until they come to take the oaths of the Church. 
 That is our system, and that may or may not have advantages ; 
 but this is an attempt to mix up and commingle the two systems 
 in one public school for clergy and laymen; and I think that the 
 endeavour to conduct in the same institution a seminary for 
 priests, having regard to the strict discipline to which they are 
 subjected, with a public school for laymen, can only result hi 
 mischief to both, and certainly to the lay element in the institu- 
 tion, as has been abundantly shown in the present case.
 
 236 
 
 Now, what would have been the treatment dealt out to pro- 
 ceedings of this kind at the hands- of any sensible English 
 clergyman at the head of a public school ? Instead of making a 
 solemn matter of it and reducing the young fellow to the ranks, 
 and speaking about humiliation and Ash Wednesday and Lent 
 and so forth, I should think any sensible head-master would 
 have administered perhaps a little corporal punishment, or would 
 have sent for the boy and given him an imposition, or told the 
 young fellow in a few kind and generous words that it must not 
 happen again. He would have treated it with lightness, but at 
 the same time with temper, which most English public scholars 
 would appreciate; and which is the system that results in mould- 
 ing the scholars into high-minded English gentlemen. Now that 
 Dr. Northcote does not so treat his scholars, although he appears 
 to have done so, is evident from his own account ; for he says, 
 if he had known of the breaking-up supper, he would not have 
 allowed them to come back ; and it was only the interest which 
 he felt in young Mr. Fitzgerald and his position there which 
 induced him to overlook it; and after all, he does not pretend to 
 say that except on account of this miserable matter of the Anti- 
 Bunker Confederation would Mr. Fitzgerald have been sent away 
 from Oscott College. 
 
 Gentlemen, allow me in passing, with regard to this matter 
 about conceit and grumbling, and the various complaints which 
 we now hear of for the first time, to say that the only letter 
 which my learned friend called for, and which was put in, was 
 a letter in which it appears that all the young fellows complained 
 of their fare and want of cold water; and Dr. Northcote made a 
 reply on that, that he seemed to be a little too delicate, and that 
 nothing was good enough for him. Why, gentlemen, we all 
 know that it is not at all unknown to boy-nature to grumble 
 about such matters, and that there are boys who think that 
 nothing is good enough for them ; but after all, Dr. Northcote 
 hardly ventures to say that, except for this miserable matter 
 about the club, any thing serious would have been done to Mr. 
 Fitzgerald. 
 
 Then let us consider the question of the Anti-Bunker As- 
 sociation; and this Anti-Bunker Association is founded chiefly 
 upon the evidence supplied by this pocket-book which I have
 
 237 
 
 before me. I should have thought that the proper way to have 
 met this matter would have been to treat it with supreme con- 
 tempt ; or, if the matter really required notice, to have noticed 
 it in a way which I ventured to suggest when I opened the 
 case to you : it might have been noticed, namely, to have sent 
 for the boy and endeavoured to find out whether there was any 
 thing serious in the matter at all ; and if there was any thing 
 serious in the matter, to have pointed out to him that it was 
 unkind, ungenerous, nay, ill-bred and ungentlemanly, to set 
 himself up, or to set any one class against another class of 
 students, especially in regard to worldly means. Gentlemen, 
 I freely admit, and I agree with my learned friend, that 
 there is nothing so unworthy of a gentleman as to make any 
 distinction founded on birth and parentage. It is a mark of 
 a low mind, an ill-bred mind, and for which I have not a 
 shadow of sympathy. But at the same time it would have been 
 fair to the young man to have pointed out to him, if it was 
 found that he was serious and in earnest, that he was open to 
 great blame upon the score of his own feelings, and to great 
 blame upon the score of the feelings of those with whom he 
 might come in contact, and upon whom he might produce ex- 
 ceedingly painful and irritating impressions. Surely it was the 
 duty of Dr. Northcote to have dealt frankly with the young 
 man, and to have endeavoured to discover what really was the 
 foundation of the imputation which had been made against him, 
 and to have resisted it, if he found out that it really was a piece 
 of nonsense, that there was no confederation, that there were no 
 meetings, no objects, and no society at all : that it was simply 
 an effusion upon the leaves of this unhappy pocket-book, which 
 was poured forth in a moment of spleen, but which, the moment 
 his better nature was appealed to, he would have repudiated as 
 strongly as my learned friend "Mr. Karslake or I could do. 
 That would have been the way to treat a thing of this kind. 
 This, at all events, is clear, that so far from having his feelings 
 or his conduct seriously affected by the entries in the pocket- 
 book, Mr. Fitzgerald has stated to you upon his oath in the 
 witness-box that amongst these very Church students were some 
 of his friends ; and Mr. Stone, whose mode of answering the 
 questions on that matter I leave to your recollection, has not
 
 238 
 
 ventured to deny that at all times he did associate with clerical 
 students, and was out walking with them, and that the three 
 persons he was with when he was found in the public-house 
 drinking and playing at bagatelle, and when Mr. Fitzgerald 
 concealed himself under the bagatelle-table, were three Church 
 students; therefore, when he is accused of having conspired 
 against all the Church students in the house, that must be 
 taken as evidence of the unfounded nature of that charge ; and I 
 think Mr. Stone need not have put upon me that he went with 
 the three Church students because he could get no one else. 
 At all events he goes out and drinks at the public-house in com- 
 pany with three Bunkers ; therefore, whatever he chose to write 
 down in the pocket-book, and whatever he talked of to the 
 Secretary, he had no objection to the society of the Bunkers, 
 for he went out with them, and drank with them the best ale 
 he could get. It is known to Mr. Stone at the very time, and 
 on these very occasions, that three of the men whom he was 
 supposed to be conspiring against the peace and welfare of, 
 were his companions in a cross-country expedition ; and he is 
 actually found in the Swan public-house drinking ale with 
 them. If Mr. Stone had chosen to look at the circumstances 
 before his very eyes, it would have been apparent to him that 
 what the young man said was the truth, that it was a piece of 
 pure foolish nonsense. 
 
 But more than that, it was found that there was a Governor 
 Moody, and that Governor Moody, on account of his magnani- 
 mous sentiments, had been unanimously elected. Now, gentle- 
 men, it really does seem that the clerical mind is not apprecia- 
 tive of a joke ; they deal with serious things in a serious way : 
 they have grave responsible duties to discharge, and they are 
 quite right to discharge them gravely ; but I do think that any 
 layman reading this entry about Governor Moody, for his mag- 
 nanimous sentiments being unanimously elected, would have 
 seen that it was a joke : the very words themselves would have 
 suggested a joke. I once belonged to a society, a rule of which 
 was, that any one who did any thing offensive or contrary to 
 the government was to be had forth and publicly pitied ! No 
 one would seriously imagine that a member was to be actually 
 had out and publicly pitied ! Any one reading it, or hearing it
 
 239 
 
 read, must perceive that it was mere nonsense. Here, in the 
 midst of entries, here, in the midst of various other entries 
 of the most suspicious nature, we find this " Governor Moody 
 elected March 6, for his magnanimous sentiments about Sedgely 
 Park." Gentlemen, I ought to tell you that this is a memo- 
 randum-Look, in which these things seem to have been jotted 
 down with a singular disregard to dates. Here is this matter 
 about the key of the bakehouse opening the paint-shop, and so 
 forth, and the only date is October the 6th ; and then there are 
 some other entries about a chaffinch ; and then there is a note 
 concerning a bottle of rosemary which was to be obtained, which 
 I suppose was to make his hair greasy; and then there is a 
 lot about mathematics, and things which I do not understand, 
 although I daresay Mr. Fitzgerald does. Gentlemen, if you 
 take that book in your hands, you will find it is as innocent 
 a book as any jury need have to deal with, and you may 
 touch it without fear of finding any thing in it which can 
 militate against your peace of mind : it is as safe as it looks, 
 and you need not be afraid to handle it. But Dr. Northcote 
 and Mr. Stone put on their terrible magnifying-glasses, and 
 look at all these things through the haze of a strong clerical 
 imagination. They say they believe there was a conspiracy 
 against the house, and to invade the laws of the house ; and 
 the whole thing was treated as if we were living in the Dark 
 Ages, and as if the conspiracy was as dangerous as the con- 
 spiracy of Guy Faux. But even Dr. Northcote could not help 
 appreciating my question when I asked him, " Did you think 
 your throne was tottering ?" " No," he said, in reply to the 
 pleasantry ; " but I thought the peace of my subjects was seri- 
 ously endangered." Gentlemen, how could he think that the 
 peace of his subjects could be endangered by these entries in 
 the pocket-book amidst entries of bottles of rosemary and chaf- 
 finches 1 If Dr. ISTorthcote had not been a clergyman, and could 
 have gone back to what he was many years ago, and have looked 
 at the matter in the light in which he would have regarded it 
 in earlier days ; if he could have remembered what he was when 
 he was in King Edward VI. 's Grammar School; if he could 
 have allowed liimself for a moment to look at the matter as if 
 he were what no doubt he was once a schoolboy, he would
 
 240 
 
 have seen that Mr. Fitzgerald's account was true, that really it 
 was a mere piece of pleasantry, and that really all this con- 
 spiracy and A. B. C. was pure nonsense. 
 
 On the one hand you have had placed before you Mr. Fitz- 
 gerald's account, and on the other hand you have had placed 
 before you every thing which ingenuity could suggest by one 
 of the most able Counsel I know of, for the purpose of discre- 
 diting Mr. Fitzgerald. His books were taken away from him 
 when he was not in his room ; and his pocket-book lying open 
 upon the table was read by Mr. Stone. He was taken at a dis- 
 advantage : I will pass by whether that was right or not ; some 
 people would not do such a thing, others would; but at all 
 events, we find that every thing that could be raked up against 
 Mr. Fitzgerald has been raked up from the time he went to 
 Oscott to the present hour, and that really nothing has been 
 made of it. And remember this, gentlemen, that if what the 
 young man said was not true, there was a class of evidence at 
 the command of Dr. BTorthcote to prove that what he said was 
 not true. There are at least nine or ten members of the A. B. C. ; 
 there are some of the clerical students and the Divines, the per- 
 sons who gave the information upon which Dr. Xorthcote acted; 
 and there are boys still remaining in the school, who could, if 
 Mr. Fitzgerald was not correct, have come forward and told you 
 that he was utterly incorrect in what he has stated, for that 
 there was a conspiracy going forward. The names are before 
 you : there is the honorary secretary, whose name has been men- 
 tioned, and of whom Mr. Fitzgerald says, " I appointed him ;" in 
 fact he said, " I am the Confederation, I make you the secretary;" 
 and he is the person who is referred to for these various sources 
 of information. Mr. Fitzgerald said it was all nonsense. If that 
 is not true, where is this young gentleman whose name has been 
 mentioned ? If there was a syllable of actual foundation for this 
 supposed conspiracy, why do they not bring the conspirators 
 before you ? Why do they not bring the secretary and the other 
 young gentlemen who are at the school before you, and let them 
 say, "It is all a mistake of Mr. Fitzgerald's; it was a serious 
 thing, and he is mistaken in saying that there was nothing in it." 
 Gentlemen, they have not chosen to adopt that course ; and I am 
 therefore entitled to say that he is uncontradicted in the most
 
 241 
 
 important parts of his evidence ; for when it lay in the easy 
 power of Dr. J^orthcote and Mr. Stone to contradict him by the 
 means I have suggested, all they have done has been to bring 
 forward every sort of accusation except what might have been 
 substantial evidence namely, the evidence of his schoolfellows 
 to say that the colour he has put upon the matter is not the 
 true colour. 
 
 Xow, gentlemen, consider again the spirit in which this 
 matter has been conducted. I pass by my learned friend's re- 
 peated observations about the young man's conceit, pride and 
 conceit and so forth, which, considering his youth and all tilings, 
 might have been spared. Why did not Dr. Xorthcote, if he 
 really meant fairly by Mr. Fitzgerald, if he really meant fairly 
 bv his father, why did he not write to the Judge, or telegraph to 
 the Judge, not an entire account of Mr. Fitzgerald's expulsion 
 I never suggested any thing so absurd but why not telegraph to 
 the Judge and say, " Things are going on badly ; come and take 
 away David" 1 Can you doubt that the Judge in the course of 
 a few hours would have been at Oscott, and would have brought 
 his practised intellect to bear upon the matter, and that he would 
 have been able to show to Dr. Xorthcote that he was making a 
 mountain out of a molehill, and that the whole matter had 
 crumbled into the dust of which it was made ? But Dr. Xorth- 
 cote says in his letter and here I convict him out of his own 
 mouth : " I have never written to your father any thing but 
 good of you. If I were to dismiss you from the college without 
 warning, he would have a right to complain : he would think I 
 had lost my temper, and been unreasonably harsh with you for 
 the first offence. To protect myself, therefore, I must make him 
 informed of all that has happened." The boy was pressing him 
 not to write to his father ; and he says to the boy, " What will 
 the Judge say, if some morning you appear at the breakfast-table 
 without any explanation ?' That is his own account ; but when 
 the matter comes to be acted on, and when this A. B. C. Club 
 turns up, he does the very thing which in the letter he said would 
 justly excite the suspicions of Mr. Justice Fitzgerald. It is per- 
 fectly true, he says, that he did not write at that time owing to 
 the entreaty of the boy ; but it shows what he knew Mr. Justice 
 Fitzgerald would think of that conduct wliich he afterwards did 
 
 R
 
 242 
 
 pursue. When my learned friend says gravely that the safety 
 of Oscott House and the security of Dr. IS r orthcote's dominions 
 could not be secured for five or six hours that it could not be 
 maintained with the presence of young Mr. Fitzgerald there he 
 talks of course as an advocate, -who is obliged to say so in aid of 
 a very difficult and hopeless case. That is Dr. Northcote's own 
 view of what the Judge would say. Why on earth, that being 
 his own view, the letters showing that there had been intimate, 
 I may say affectionate terms of friendship between Dr. Xorth- 
 cote and Mr. Fitzgerald, the Judge being an eminent Eomaii 
 Catholic, why, I ask, did he not telegraph to him, if there was 
 not time to write, and say, " Pray come, for things are not going 
 on well, and your son must be removed ; pray come and satisfy 
 yourself of the necessity for his removal" 1 Gentlemen, I do say 
 that the cruel harshness of expelling this boy without any warn- 
 ing, sending him to his father his father being utterly unpre- 
 pared for any such proceeding, but being surprised and deeply 
 grieved and wounded at it was a want of consideration which, 
 if Dr. K"orthcote had been well advised, he might have said he 
 regretted, but for which he has not expressed any regret, insist- 
 ing, as of course he is entitled to insist, upon his rights in this 
 or any other Court. 
 
 Then, gentlemen, there is a matter which I approach with 
 regret, because it does show a spirit which I cannot help think- 
 ing is not creditable to Dr. ISTorthcote, and a spirit which I 
 think he ought not to have exhibited. You recollect the day 
 before yesterday, when Mr. Fitzgerald was in the box, he came 
 to a part of his narrative, when my learned friend was cross- 
 examining him as to what had become of him when Dr. Xorth- 
 cote sent him to his room, and when Mr. Stone went to his 
 room and did not find him." Young Mr. Fitzgerald said he had 
 gone into the chapel, for reasons which any body could appre- 
 ciate. ' He was overwhelmed with the calamity which had come 
 upon him, and he had gone into the chapel to pour out his 
 overcharged heart before the God and Father of us all. He 
 knew, I suppose, that " God will hear, if man will call to the 
 blue sky that bends over all;" and my learned friend, like a 
 manly and generous person, as he always is, declined to ask 
 liim why he went into the chapel, knowing why he went there,
 
 243 
 
 and appreciating and I may say, reverencing the feeling.. 
 But two days elapse, and my learned friend replies, as Dr. 
 oSTorthcote's advocate ; and then my learned friend charges as. 
 an act of disobedience that Mr. Fitzgerald went to pray to God. 
 for the calamity that had befallen him. Although he would', 
 not put a question in a marked way upon the subject, he after- 
 wards makes the charge ; and I think therefore I am justified 
 in saying, that Dr. j^orthcote has not shown that feeling which 
 a clergyman the head-master of a school and a priest might 
 be expected to have shown in dealing with a former pupil. 
 
 But more than that, the boy is subjected to every imagin- 
 able ignominy before he is locked-up : he is handed in by 
 Mr. Stone. Mr. Stone, as he says, did exercise superior force, 
 although he will not admit that he had a struggle with him. 
 That is the only point upon which Mr. Fitzgerald, Dr. JTorth- 
 cote, and Mr. Stone, are at direct issue. Now, you recollect 
 Mr. Fitzgerald says there was a struggle, and the book was 
 taken from him by force ; and on the 1 3th of March, when he 
 went home to Dublin, he told his father so; because Mr. Justice 
 Fitzgerald Avrites to Dr. Northcote in answer to his letter, and 
 asks : " Was the book taken from David with superior force 
 with your sanction V So that it is plain, at that time, that that 
 was the story the boy had told. Now, Mr. Stone admits that 
 the letter was read to him : Mr. Stone admits further, that 
 Dr. Northcote's letter was read to him, or he saw it, and sup- 
 plied the materials for it. What is Dr. Northcote's answer at 
 the time ? Not that it was not taken by force, but that he told 
 Mr. Stone to go for the book; and said, if Mr. Fitzgerald would 
 not give it, he was to take it from him. That is an answer 
 from Mr. Stone, because Dr. Northcote was not present; that 
 lies between Mr. Stone and Mr. Fitzgerald, for they only were 
 present. It is clear and Mr. Stone does not deny it that ho 
 used force ; and Mr. Stone must excuse mo when I say that he 
 quibbles about moral and physical force, when he said that 
 by "superior force" he thought was meant moral force. Mr. 
 Stone is a clergyman, and speaks under the solemnity of an 
 oath, and so does Mr. Fitzgerald ; but I see by the letter what 
 Mr. Stone said then, and that is contradicted by what Mr. Stone 
 says now, and is confirmed by what Mr. Fitzgerald says now. .
 
 244 
 
 Then I have a right to assume, in that state of facts, that you 
 will believe Mr. Fitzgerald, confirmed as he is by the contem- 
 porary Mr. Stone, and the letters of Mr. Justice Fitzgerald and 
 Dr. Northcote. Then, why is the boy to have this book taken 
 away from him after a struggle ? If it is wanted, let the boy 
 be taken to Dr. ISTorthcote, and let him say, " I want to see the 
 book. If you do not produce it, you know the inference I must 
 draw" ? Do you suppose that if that had been said to a boy 
 of sense, as Mr. Fitzgerald is not denied to be, that the book 
 would not have been produced? But it is taken from him, 
 and he is lectured ; and Dr. Northcote gives you the account of 
 the lecture. Upon what evidence did Dr. Northcote act 1 ? I 
 have his own words for that, and we will see. He says he 
 heard of it from an official communication by Mr. Stone, to the 
 effect that a lay student had reported to a Divine the existence 
 of a conspiracy against the Church students, known as the 
 A. B. C., or Anti-Bunker Confederacy ; and that there were 
 afloat in the institution lists of the aristocracy, as they were 
 called. One of these lists has been traced to the possession of 
 Mr. Stone. Now, I pass by the great key case, and will not 
 revert to the key and the wax ; but it seems that the documents 
 were in Mr. Stone's possession at Christmas. 
 
 Now this case stood for trial at Christmas, but was put off 
 because Mr. Justice Fitzgerald was engaged in Ireland, and 
 could not attend. Where are the documents and the lists of 
 the aristocracy now, which were in Mr. Stone's possession at 
 Christmas ? Why were they not treasured up in the archives of 
 Oscott College, and produced on the trial at Westminster Hall ? 
 They knew the importance of it. Mr. Stone had them at the 
 time the trial was to come off at Christmas. Where are they 
 now? Then it appears that the superiors met and went over 
 the evidence, and at the second meeting the evidence was gone 
 over again. Now what was the evidence ? The evidence was 
 that a lay student of the house had reported to a Divine the 
 existence of a conspiracy against the Church students, known 
 by its members as the A. B. C.; that each member had a list of 
 the other members, and that David was the prime mover in it. 
 Now Dr. Northcote had this evidence. Mr. Stone said that a 
 Divine said that a lay student said that there was a conspiracy
 
 245 
 
 against the Church students of the house : name unknown, 
 objects unknown, acts unknown, character undescribed. But 
 it was too important to treat it as gossip, and must be laid 
 before the authorities. It is laid before the authorities, and 
 they are going to proceed to the last extremity of expelling 
 Mr. Fitzgerald and fixing a stigma upon him for life. A poor 
 lawyer would say, you know, "You had better just look at 
 your evidence before you proceed." That is a poor vulgar way 
 we have of proceeding ; but of course you would expect that 
 evidence that did satisfy a lawyer would not satisfy a Divine ; 
 that a schoolmaster, and a man standing in loco 2Mrentis, if 
 he had evidence, would be glad to escape from the conclusion 
 that was unwillingly forced on his mind. I should have thought 
 so ; but not so Dr. Northcote, Mr. Stone, and the superiors at 
 Oscott House. No ; a lay student tells a Divine, who tells Mr. 
 Stone, who tells Dr. Northcote, and that is sufficient. I do not 
 know whether you know the " Game of Eussian News," where 
 a party of people being seated at a table, one man tells a story 
 to his neighbour in an undertone, and the neighbour tells it to 
 his neighbour, and so it travels on until it reaches the other end 
 of the table in a condition in which no one would recognise it 
 who had heard it at the beginning. Gentlemen, that is what 
 hearsay evidence comes to ; and, gentlemen, hard, dry, and tech- 
 nical as no doubt Dr. Northcote thinks all these proceedings 
 must be, let me tell him it is sometimes an exceedingly import- 
 ant thing, when you are going to act, to be quite sure of the 
 evidence upon which you are acting ; and when you are going 
 to convict a man of something that is excessively disagreeable, 
 and when you are going to punish him in a way from which 
 you cannot retract, it is very important to be sure of your facts. 
 Here A. tells B. something about C., upon which D. is to expel 
 C. The very least, surely, that could be expected would be that 
 before Dr. Northcote acted upon the evidence Avhich had so 
 reached him, an inquiry should be made, and all the students 
 should be seen upon the subject. The first thing to do would 
 be that. But I asked Dr. Northcotc, "Did you send for the 
 lay student T " No." " Did you send for the Divine V " No." 
 " Did you hear what they said ]" " No." " Then all you 
 trusted was the narration which Mr. Stone had given of that
 
 246 
 
 which somebody else had said that somebody else had said of 
 somebody else ?" Is that satisfactory 1 " Well," he says, " that 
 was not all : there was a pocket-book, and I sent for the pocket- 
 book, because if I had seen that the pocket-book did not con- 
 firm what the lay student had told the Divine, who told Mr. 
 Stone, who told me, I might then have altered my opinion ; 
 but things looked very black." " You did send for the pocket- 
 book?" "Yes." "And what did the pocket-book disclose]" 
 " It confirmed my worst fears." Gentlemen, the pocket-book is 
 before us ; and although the list of the aristocracy, and although 
 the key and the wax do not appear, here it is, a natural history 
 of chaffinches and so forth ; and you will say how far that does 
 or does not confirm the story which, entirely without sifting, 
 Dr. ^orthcote chose to act upon. 
 
 Well, gentlemen, Mr. Fitzgerald is expelled ; and what hap- 
 pens thereupon ? Why, that happens thereupon as to which it 
 is for you to consider the effect you will give to it when you 
 vcome to make up your minds in this case. The boy is expelled j 
 the boy is sent to his room by Mr. Stone ; he is locked up by 
 Mr. Stone ; he is kept, in fact, in confinement by Mr. Stone 
 from half-past one until something like three o'clock, and during 
 the whole of that time is not allowed to leave the room. He is 
 hurried in his packing, as Mr. Stone admits he did hurry him; 
 pushing him, and telling him he must make haste, for he wants 
 to get rid of him as soon as possible, and treating him with 
 about as much kindness and as little consideration for his feel- 
 ings as any human being could show a gentleman. He is sent 
 off to Mr. Justice Fitzgerald. He arrives at Mr. Justice Fitz- 
 gerald's house next morning without the smallest warning ; and 
 Mr. Justice Fitzgerald finds his eldest son the son in whom his 
 hopes were centred, upon whom he had fixed his best expecta- 
 tions in life expelled from a religious institution to which he 
 had been sent to be educated, as not fit for the society of its 
 members, and as a young man who was likely to contaminate 
 them if he had remained in the establishment any longer. Gen- 
 tlemen, I do not know whether any of you have children or a 
 child at school ; but I do think that if any of you are men of 
 feeling, it would almost break your hearts to have one of your 
 children sent home in that kind of way, without any explana-
 
 247 
 
 tion, a child of the highest promise, of whom you have heard 
 nothing but good, of whom the man who has himself expelled 
 him had written in the most flattering terms ; to find that tliat 
 child had been suddenly expelled from a school of this* kind as 
 being utterly unfit to remain an inmate expelled under ciiv 
 cumstances of peculiar hardship, for he was sent there, and his 
 pension paid in advance, I believe 
 
 Lord Chief-Justice Cockburn : That is not the gravamen of 
 the present charge, which is the assault and the imprisonment, 
 not the expulsion. 
 
 Mr. Coleridge : No doubt, my Lord, that is so ; he was there 
 with his pension paid in advance ; and no doubt, if it was ne- 
 cessary for the discipline of the institution, if it was essential 
 to the maintenance of order in the institution, that he should 
 subscribe to the rules, he was bound to do so. 
 
 Lord Chief -Just ice CocJcburn: But it is not the complaint 
 here. 
 
 Mr. Coleridge : To be sure, my Lord, that is true. 
 
 But still it is for you, gentlemen, to say, under all the cir- 
 cumstances of the case, whether it was necessary for the disci- 
 pline of the institution that he should be so expelled, and 
 whether the circumstances of his expulsion were such that you 
 can say the reasonable necessity of it was not exceeded. 
 
 Lord Chief -Justice Cockburn : The declaration does " not 
 complain of his expulsion; and therefore the only way the 
 question of expulsion arises is quite incidentally, as a stepping- 
 stone to the real complaint. 
 
 Mr. Coleridge : That, no doubt, my Lord, is true. 
 
 But, gentlemen, it must be a matter for you to consider 
 what has been the injury committed, in coming to a conclusion 
 upon the question of imprisonment and assault. That is a mat- 
 ter upon which you will take my Lord's direction. They ex- 
 pelled him ; and it will form a subject for your consideration in 
 estimating the damages which he has sustained from the legal 
 cause of action. They expelled him, as far^ as I can make out, 
 for something perfectly childish, for something that it was not 
 at all reasonably necessary should be treated in so serious and 
 harsh a manner. He was expelled from the walls of Oscott 
 College ; and in expelling him, they read to him a noble pass-
 
 248 
 
 age from the works of a great writer, who turns every thing he 
 touches into gold, which intimated to him and to those he left 
 behind that he was not a gentleman ; that he had not the 
 attributes of a gentleman ; that he was unfit to remain at Oscott 
 College, because he had not the attributes which that great 
 writer has laid down as necessary qualifications for the character 
 of a gentleman. But there is a much greater writer, who, in a 
 very much nobler passage, written 1800 years ago, whose just 
 authority, I hope, has not been impaired in Dr. Xorthcote's 
 estimation by any change of religious opinion through which he 
 has passed, and that greater writer describes, not the character 
 of a gentleman, but the grace of Christian charity; and he says : 
 " Charity suffereth long, and is kind : charity thinketh no evil, 
 is not puffed up, is not easily provoked, believeth all things, 
 hopeth all things, endureth all things." How far you will think 
 the spirit of priestly authority has or has not impaired the just 
 authority of that passage in Mr. Stone's mind is beyond our 
 province to inquire ; but it is not beyond my province to ask 
 you for, and it is not beyond your province to give, such 
 damages as, under all the circumstances of this case, you think 
 have been sustained by the injury inflicted upon young Mr. 
 Fitzgerald, under what I venture to call singularly slight provo- 
 cation. Do you think there was any justification for the assault 
 and the imprisonment ] I am sure you will be of opinion that 
 beyond all doubt there was none, and that you will say so by 
 your verdict. 
 
 SUMMING UP. 
 
 Lord Cl iicf -Justice Cockburn: Gentlemen of the Jury, 
 You must consider what are the causes of action which the 
 plaintiff brings forward to justify his claim to your verdict for 
 damages against the defendant. 
 
 You have heard many observations made upon the expulsion 
 of the plaintiff, young MX. Fitzgerald, from this scholastic insti- 
 tution ; and they have been made to you with all the feeling 
 and eloquence of which no one is more capable than the very 
 learned counsel who has just addressed you. But I am bound 
 to tell you that, except as incidentally connected with the
 
 249 
 
 question of the imprisonment, the expulsion of Mr. Fitzgerald 
 from that institution is not what is complained of in this action^ 
 I suppose there were some reasons, best known to those who 
 brought the action, or who advised it, for omitting that which 
 appears to me to be, after all, the essential part of the complaint, 
 if there was any complaint well founded : there was some 
 reason for omitting that from the declaration. But it is omitted ; 
 and therefore I am bound to tell you, that if you should be of 
 opinion that that expulsion was not justifiable under the circum- 
 stances, you cannot, in the conscientious exercise of your duty, 
 and you are not entitled to, give damages in respect of it. 
 
 What the plaintiff complains of in the present action is that 
 he was assaulted and that he was imprisoned, and that his pro- 
 perty, namely, his pocket-book, was taken from him and detained 
 from his possession. Those are the matters which are for your 
 consideration. The first question for you to consider is, whether 
 he was assaulted as he represents, and whether he was imprisoned 
 as he states ; and then you will consider whether his pocket-book 
 was taken from liirn, and whether the circumstances under which 
 these different matters took place were such as to justify the con- 
 duct which the defendants adopted towards the plaintiff. 
 
 ~Novr that the plaintiff Avas assaulted, so far as assault in the 
 eye of the law is concerned, I think there cannot be the slightest 
 doubt in the world. Whether the pocket-book was taken from 
 him by superior force, notwithstanding his resistance, as he 
 alleges; or whether he having the pocket-book in his pocket, it 
 was taken from hjs person by the hand of Mr. Stone, he object- 
 ing ; that in the eye of the law would be an assault. 
 
 Again, with regard to the imprisonment, it is alleged in the 
 declaration that he was twice imprisoned; once, I presume it is 
 intended to say, when the door was locked by Mr. Stone in order 
 to get the pocket-book from him, and when he was taken down 
 to the President. I suppose that is intended to be one of the 
 imprisonments; and the other is after he was expelled, or when 
 he had received notice that he was to be expelled, and he was 
 confined to his own room ; first, for half-au-hour under lock and 
 key, and afterwards by the corporeal presence of a stronger man 
 than himself, who tells you that if he had attempted to go out 
 of the room, he should not have allowed him to do so. There-
 
 250 
 
 fore, as to the fact of the imprisonment you cannot entertain 
 much, doubt ; and that his pocket-book was taken away is equally 
 beyond all question. That is admitted on all hands. But the 
 main, question which you have to consider is, whether the circum- 
 stances were such as to justify on the part of the defendants 
 what Avas done. The more active proceedings appear to have 
 been carried on by Mr. Stone; but if Mr. Stone assaulted and 
 imprisoned Mr. Fitzgerald, and did so by the authority of Dr. 
 Xorthcote, both Mr. Stone and Dr. Northcote would be respon- 
 sible, unless they can justify their proceedings. 
 
 K"ow then we come to the great question, which is, whether 
 or not the acts complained of were justifiable under the circum- 
 stances ? And the first branch that presents itself is, what was the 
 position in which Mr. Fitzgerald stood on his return to Oscott 
 College Avith reference to the authorities there ? You remember 
 he had gone through the usual course at Oscott College, and that 
 it Avas then intended that he should go to some University. For 
 some reason or other, which is not explained, it did not coincide 
 with the vieA\ r s of his father that he should go to any English 
 University, nor did it coincide with his A r ieAA r s that the youth 
 should go to Trinity College at Dublin; and it was determined 
 that he should become a member of the London University, and 
 take his degrees there. J^OAV the London University is unlike 
 the other Universities to AA r hich I have referred. It has two 
 colleges connected Avith it in the neighbourhood of the metro- 
 polis ; but it has other scholastic establishments affiliated to it, 
 in which the students may reside during the interval of time 
 that elapses betAveen their education at college and taking the 
 degree of bachelor of arts, Avhich is the first degree conferred by 
 the University. It Avas recommended on the part of Dr. North- 
 cote, and I have no doubt with the most honest desire to promote 
 the welfare of the young man, that under these circumstances he 
 should come back to Oscott College, and continue his studies 
 there during the interval that was to elapse; and consequently 
 we find that he does so come back. He goes up to London and 
 matriculates there ; and having gone through his matriculation, 
 he goes back to Oscott College, and continues his studies until 
 the time should arrive for his going up to take his first degree of 
 bachelor of arts.
 
 251 
 
 one can quite understand that a young man going back 
 under such circumstances, instead of being subjected to the ordi- 
 nary discipline in the school, and to the authority of the head- 
 master and the subordinate masters that is to say, his masters 
 relatively to a boy at school might be placed in a different posi- 
 tion; although his father paid a certain amount for him, he might 
 have gone back as a sort of pupil at large, or guest, and not sub- 
 ject to the general discipline of the establishment. The question 
 is, whether it can be said that young Fitzgerald stood in that 
 position; for that would make a material difference. Any body 
 can at once understand the difference in their relative positions, 
 both as regards the authority of the tutor or the master, and the 
 obligations of the young man so circumstanced. It would be a 
 very different position to that which each would hold towards 
 the- other if they stood in the relation of schoolmaster and 'school- 
 boy, call it what you will. 
 
 JS"ow I must say that it seems to me the evidence on this 
 point was all one way. I do not find, in any of the different 
 letters that passed between Mr. Justice Fitzgerald and Dr. 
 Northcote, that any claim is put forward, or any desire inti- 
 mated, that the -son should be exempt from the ordinary dis- 
 cipline of the school, or from, the authority of the master. On 
 the contrary, 'I find, in a letter in which Dr. Xorthcote recom- 
 mends Mr. Justice Fitzgerald to send his son to the establish- 
 ment, for him to continue his studies there with a view to his 
 progress at the London University, that Dr. Xorthcote especially 
 refers to the advantage it would be to the young man still to 
 continue in the relation of a pupil and in the position of a pupil, 
 subject to the authority of the institution. And I find that, 
 from the moment young Fitzgerald went back until the hour he 
 left, he never asserted the slightest shadow of a claim- to be 
 considered as in a different position from any of the other pupils 
 in the establishment; that he took his place willingly, and 
 without the slightest murmur of dissatisfaction, in the class to 
 wluch he had previously belonged; witli this distinction only, 
 that he did not pursue there the studies appropriate to that 
 class, because it would not have suited the position in which ho 
 was with regard to the object he had in view. But throughout, 
 step after step and time after time, we find the authority on the
 
 252 
 
 part of Dr. Xorthcote and on the part of Mr. Stone exercised 
 towards him, and invariably submitted to on his side, with as 
 much recognition that he -was subject to that authority as any 
 of the young men who were members of the institution were 
 subject to it. 
 
 Kow, supposing that to be the state of things, then fre 
 approach the question as to whether the treatment to which he 
 was afterwards subjected was justifiable. I cannot help think- 
 ing that his position was an anomalous and a somewhat unfor- 
 tunate one. He had gone through the whole course of that 
 school ; he had gone to the London University and matriculated 
 there, and had been admitted into that University. He went 
 back, therefore, in a different position from that in which he 
 stood at the time he was a schoolboy going through the school 
 course. It seems that in January a new Prefect had taken the 
 place of the former one ; and without saying any thing to the 
 disparagement of Mr. Stone, who does not seem to show any 
 semblance of ill-nature or ill-temper, as far as we could judge, 
 we do know that sometimes, when a man comes first into 
 authority he does exercise it rather more harshly than a man 
 who is well fixed in his seat, and who has been accustomed to 
 rule and govern others ; and it may be that, seeing this young 
 man in an anomalous position, and who, if we may judge from 
 liis antecedents, whatever merits he may have, seems to be a 
 young man who was not as submissive to authority as young 
 men generally are ; who seems to have been to a certain extent 
 of a somewhat mutinous disposition; who had complained, as 
 Dr. Xorthcote tells us, of his former Superior in the establish- 
 ment, although he was more mild and more moderate in the 
 exercise of his authority than Mr. Stone, young Fitzgerald and 
 Mr. Stone soon got into circumstances not perfectly pleasant to 
 each other; and one cannot be altogether surprised at that. 
 But I must say that I think there is a good deal as to which 
 Mr. Fitzgerald is open to blame. He had at this time passed 
 from the mere position of schoolboy ; he was a young man who 
 had become a member of a University, and he was bound to 
 show a good example to others in this institution, at all events, 
 he was bound not to lead them into mischief. But he does 
 certainly appear, between the month of January, when Mr.
 
 253 
 
 Stone entered into the office of Prefect of Discipline, and the 
 month of March, to have got into as many scrapes as a young 
 gentleman could well do, although possibly they were not of the 
 mortal character which Dr. Xorthcote appears afterwards to 
 have considered them to be. In the first place, it is an awkward 
 thing for a young man who has a pass-key lent him for the 
 night, to become a party with a number of other youngsters to 
 the taking of a wax impression of that key, with the avowed 
 purpose of going to the smith in the village and getting a key 
 clandestinely made, which would afford these young fellows 
 access to every room in the house, where they had no business 
 to be. Xo doubt all of us have done a great many things for 
 which we have deserved punishment, sometimes getting it, and 
 at other times escaping it ; but I must say that that was rather 
 a bold and daring thing to do, and few of us would probably 
 venture upon it. However, that he does; and then he gets 
 into another scrape, and his privileges are taken away from him 
 for three days. He was up after eleven o'clock, which was con- 
 trary to the regulations. It is all very well to make reflections 
 on Mr. Stone; but I must say that I think there are certain 
 things in an establishment of this kind which are so essential to 
 the welfare of the institution, that discipline ought to be enforced 
 with regard to them ; and one of those things is, that in a large 
 establishment where there are two hundred persons, young 
 people, those who are youths should retire to their beds at 
 night at a certain time, so that all lights and candles may be put 
 out, and the danger of fire, which may be mortally destructive 
 if it breaks out, to the utmost extent avoided. If a young man 
 chooses to remain up till half-past eleven o'clock, when the 
 regulations say that he shall go to bed at ten o'clock, I do not 
 think there is any reason to complain if the Prefect of Discipline 
 says : " You have violated a most important regulation, and you 
 must suffer for it : I take away your privileges for three days." 
 
 Mr. Fitzgerald says afterwards he questioned the authority 
 of the Prefect of Discipline, as such, to take away the privileges 
 of this class, which was called " The Philosophers," of which he 
 was at that time a member. But I do not find that Mr. Fitz- 
 gerald took the right course to bring that question to an issue, 
 if he desired to do so namely, by going to the President and
 
 254 
 
 asking the question whether Mr. Stone had the authority to do 
 what he had done ; but he takes upon himself the next day to 
 go out ; and inasmuch as they were always obliged to make up a 
 party of three, and put their names down on paper and hand 
 them in to the Prefect, he puts his own name down with the 
 others and hands in his paper with his own name, which might 
 have been done for the purpose of challenging the question 
 whether Mr. Stone had the authority or not. However, Mr. 
 Stone had not time to attend to the matter that day. But on 
 the next day comes another escapade. In the mean time Mr. 
 Fitzgerald had got into difficulty with Dr. Northcote, and I 
 think Dr. ISTorthcote had confined him to bounds; but he is 
 found at a public-house drinking and playing at bagatelle, 
 which was altogether contrary to the regulations. 
 
 Gentlemen, Mr. Coleridge has reminded you of your school- 
 days; and one of you asked a very natural question, whether, if 
 a young man is allowed to walk about the country, and happens 
 to get thirsty, it is an intolerable offence to call at a public-house 
 and ask for a draught of beer? Probably it is not ; but you see, 
 if you come to accumulate offences, any one of which may not 
 of itself amount to sufficient to justify sending a young man 
 away from such an establishment as this, each subsequent offence 
 assumes a graver aspect from the fact of it having followed very 
 speedily upon some other which went before it. If a young 
 man has been confined to bounds for some other offence, and 
 has -not only broken bounds, but is found breaking some other 
 important rule, and is discovered in a public-house playing at 
 bagatelle, you will not wonder that the master, whose authority 
 has been thus set at naught, treats the matter with some gravity, 
 and as somewhat important. Although it is necessary to make 
 such a regulation in a public school, even with regard to the 
 upper boys taking a more extended area than the others are 
 limited to, giving to them liberty to go about the country, and 
 so forth there is nothing unreasonable in requiring that they 
 shall subscribe to the general rules, which are necessary for the 
 government of the establishment, and that they shall not fre- 
 quent taverns, which is altogether inconsistent with the notion 
 of boys at school, however advanced the ages of those boys may 
 be. We may all agree that merely to stop at an inn and have
 
 255 
 
 a drop of something to refresh them, if they are really thirsty,, 
 would be a matter that the master might very naturally over- 
 look ; but it is nevertheless a breach of discipline ; and if that 
 breach of discipline comes to be cumulative upon former offences, 
 and violations of rules and regulations imposed upon the young 
 man, it assumes a graver aspect. I merely say that because re- 
 marks have been made upon the supposed hardship of Mr. 
 Stone's proceedings in this very matter. 
 
 But unfortunately the matter does not stop there. He is 
 confined to bounds, not only by Mr. Stone, but by the authority 
 of the President; and notwithstanding that, he is found out of 
 bounds, and he is doing that which it is quite clear no young 
 man in the position of a scholar at school can be allowed to do 
 using fire-arms, which may be attended with danger to him- 
 self, and very probably be attended with danger to other persons, 
 and which no master in any establishment can allow to be car- 
 ried on within the precincts of the institution. He is found 
 doing that, and there again unpleasantness arises. Mr. Stone 
 hears the report of a pistol, he sees the smoke, he is aware 
 that Mr. Fitzgerald is breaking the bounds, he is aware that 
 Mr. Fitzgerald is setting the authority of the President at 
 naught, and naturally and most properly Mr. Stone goes up to 
 inquire about the pistol ; he would have been wholly wanting 
 in his duty if he had not done so. He goes up and demands 
 the pistol, and asks, "Where is it?" and then there is an un- 
 satisfactory answer. No doubt, in one sense, if you have tlirown 
 a pistol into a hedge, you do not know where it is ; but in 
 another sense it is easy to say, " I have thrown it away ; it is 
 in the hedge ; I daresay we can easily find it." But an un- 
 seemly altercation takes place ; and there, I think, Mr. Stono 
 was to blame. The word " lie" is a word which grates on every 
 body's ear, whether it is applied to a man or a boy. But he 
 goes a step further, and acknowledges that he lost his temper. 
 Then this comes to the knowledge of Dr. Northcote. The boy 
 goes to complain. He anticipates the complaint of Mr. Stono ; 
 but although Mr. Stone had forgotten himself when he threat- 
 ened to box His ears, you will be satisfied that upon the whole 
 young Fitzgerald had misconducted himself, knowing well that 
 what he was doing was egregiously wrong. Being there, when
 
 256 
 
 confined to bounds, was a flagrant breach of discipline ; and in 
 point of fact, although he may not have laid himself open to 
 the imputation of telling a lie in the direct and positive terms 
 in which it had been imputed to him by Mr. Stone, yet never- 
 theless his answer to Mr. Stone's question, which he was per- 
 fectly justified in putting, had not been ingenuous and straight- 
 forward ; and accordingly Dr. Northcote expressed himself in a 
 manner as to this part of the matter which I think nobody can 
 fairly or candidly find fault with. Then the young man is told, 
 " Now you see you have been going on committing one offence 
 after another ; you will be obliged to leave if this conduct con- 
 tinues ;" and I think it was on that occasion that Dr. North- 
 cote said that matters had gone on so badly that he must write 
 to his father giving him warning that the young man had gone 
 beyond his control, and, in short, that it would be much better 
 to take him away. I own I regret that some such warning was 
 not given to Mr. Justice Fitzgerald. I think that the position 
 the young man occupied was fatal to himself. He was conscious 
 of being no longer in the position of the other boys, he was 
 something between a schoolboy and a University man ; and I 
 daresay he felt impatient at the restraint of the establishment, 
 and the discipline and authority which were exercised towards 
 him, the more so as he appeared to be somewhat mutinous. 
 However, he begs off; and Dr. Northcote with kindness, if not 
 with discretion, forgives it. If his discretion is to be blamed, 
 certainly his good feeling is not to be blamed. He says, " I 
 will give you another chance ; but I am putting myself in a false 
 position, because if any thing else happens, I am sure your father 
 will think I have not acted with due consideration towards 
 him ; I am risking my character upon your honour : can I trust 
 myself so to do ?" The young man says, " Depend upon it I 
 will not get myself into another scrape." 
 
 Then comes this unfortunate matter, into which so much 
 inquiry has been made ; and that is this story about the con- 
 federacy, or conspiracy, because that was the culminating point 
 of this young man's delinquencies, connected with which they 
 justify sending him away ; and incidentally to sending him 
 away, assaulting him and taking his pocket-book from him, and 
 imprisoning him prior to his being sent away. Now, if the fact
 
 257 
 
 really was and that is to be submitted for your consideration 
 that young Fitzgerald, after the HI feeling which had in former 
 times existed between the lay students and the clerical students 
 at that establishment, really did organise a confederacy among 
 the boys and young men at that establishment, for the purpose 
 of renewing that unhappy and discreditable feud, and for the 
 purpose of making the condition of these students who formed 
 the clerical part of the establishment who were men of inferior 
 birth, station, rank, and fortune to themselves uncomfortable 
 and unhappy, beyond all doubt that was a most unjustifiable, 
 ungenerous, and improper proceeding, which, if it did in point 
 of fact exist, would, on the part of the President and authorities 
 of that institution, call for intervention in some marked and 
 conspicuous manner, in order to crush such an attempt before 
 it had reached any thing like a head, and to prevent the peace 
 and comfort and happiness of that institution being seriously 
 affected, as it must have been if such a scheme had taken effect 
 and been allowed to be carried into execution. It appears 
 there is a great difference in point of social position between 
 the greater number of the lay students and the clerical students, 
 who come there to prepare themselves for the Roman Catholic 
 priesthood. It appears that in former times there was a very 
 considerable amount of bad feeling between these two portions 
 of the school ; and I think one can pretty well see why that 
 should be, or at least why there should be a tendency towards 
 that state of feeling. It seems that as soon as the clerical stu- 
 dents have gone through the course of the school, those who 
 are intended for the Church remain there, and are called by the 
 denomination of " Divines :" and from these Divines many of 
 the masters are taken. You know there always has been in 
 all ages, and I suppose will continue to be to the end of the 
 world, a sort of antagonism, more or less marked and denned, 
 between the schoolmaster and the schoolboy ; and if you sud- 
 denly convert a schoolboy into a schoolmaster, without much 
 difference of age between the two, and if the schoolmaster 
 comes from amongst that class of scholars which is not the most 
 distinguished in social position, one can quite understand that 
 there would spring up a certain amount of antagonism and un- 
 comfortable feeling between the two elements of the institution. 
 
 a
 
 258 
 
 Of course, that has at once to be kept down : so far from being 
 allowed to exist, every thing should be done to keep it down 
 and prevent it gaining a head ; but I doubt whether the proper 
 mode of doing that is by severity of discipline. You cannot by 
 severity root out ill feeling : you may smother it, you may make 
 it smoulder ; but you cannot extinguish it. You may, by evok- 
 ing generous sentiments and teaching men what constitutes the 
 true aristocracy of Life, induce them to give up any miserable, 
 petty, dirty feelings, which are more or less rife amongst boys, 
 and unfortunately exist sometimes in men, but which are never 
 otherwise than discreditable to those who entertain them, and 
 which are best got rid of by a high and noble training, and by 
 instilling into the breasts and hearts of men the true sentiments 
 of charity, love, and Christian virtue. Now, here it appears 
 from this evidence, that it had for a time, at all events ^been 
 demonstrated that these young men had associated on friendly 
 terms, as schoolfellows should do, without any reference to un- 
 pleasant distinctions ; but it certainly does appear, that about 
 this time certain indications of a different feeling manifested 
 themselves and gained ground, and, the old dissensions came up; 
 that is to say, one or two talked about this; and it certainly 
 appears that a list was made out, by somebody or other, of the 
 different students in the school ; and marks were pkced against 
 the names of the different students, indicating that they belonged 
 to the one class or the other ; and then somebody said a list 
 was made out of the aristocracy of the school ; and upon this, 
 it seems, Mr. Stone got alarmed. He saw this list, and some- 
 body told him it was a list of the aristocracy of the college; and 
 thereupon Mr. Stone thought that that meant that they were 
 going to bring up the old uncomfortable feeling again, and that 
 a system of persecution was about to be established against the 
 clerical students. I must say that that appears to be a con- 
 clusion drawn from very narrow and limited premises indeed. 
 He hears that there is a list, and he hears from somebody who 
 comes 'and tells him a Divine, I think that there is an Anti- 
 Bunker Club, or an Anti-Bunker Confederation, or something 
 of that kind ; and that somebody has got the list, and that 
 Fitzgerald^is at the bottom of it. Upon which Mr. Stone, instead 
 of inquiring which it seems to me would have been a wiser
 
 259 
 
 and more discreet course to pursue whether, supposing any 
 such society to exist, it had shoAvn itself in any thing like prac- 
 tical results, in any thing like persecution of the clerical part of 
 the students, or in annoyance exhibited towards them, the 
 first thing he thinks of is to get hold of the paper, and to see 
 the list; and he goes to the room of Mr. Fitzgerald, for the 
 purpose of seeing if he can discover any document, or any list, 
 from which, he can form an opinion as to whether the society 
 exists or not. Unfortunately, Mr. Fitzgerald had left his pocket- 
 book upon the table ; and I suppose, between the Master, the 
 Prefect, and Divine, and the young man who, although a 
 young man, is a member of the Philosophers' class there did 
 not exist the honourable forbearance which tells you that you 
 are not to open another man's pocket-book or read his letters. 
 Mr. Stone opens his pocket-book, and there he finds what you 
 have had read again and again, and which will bo submitted 
 for your own ocular inspection ; and from this he is perfectly 
 satisfied of the existence of this formidable conspiracy, which 
 was to shake to its foundation and rend in twain the establish- 
 ment namely, this frightful confederation of Anti-Bunkers; 
 and fearful of the efficacious power of this confederacy, he goes 
 to the President. And there I do not blame him ; I think it 
 was a proper matter for inquiry to be made into, and that it 
 should be ascertained whether these young men had formed any 
 association amongst themselves for the purpose of doing any 
 thing that would be annoying to any portion of the establish- 
 ment, whatever portion it might be. Dr. Northcote having 
 heard the complaint, tells Mr. Stone to summon young Fitz- 
 gerald, and at the same time to demand from him. this book ; 
 and if he would not give it him, to take it by force. Accord- 
 ingly Mr. Stone comes and asks him for the pocket-book. He 
 takes the young man into his room, and shuts the door ; and on 
 Fitzgerald refusing to give it up, he takes it from him I will 
 not say by superior force, but still he takes it from him against 
 his will, by putting his hand in his pocket. 
 
 Gentlemen, the first question will be tlxis : Had Dr. North- 
 cote, in the position in which he was placed with reference to 
 these young men, as the master of a scholastic establishment in 
 which Mr. Fitzgerald was a pupil, having reason to believe that
 
 2150 
 
 there was some tiling on foot with, regard to the organisation of a 
 society amongst the "boys for the purpose of putting themselves 
 into a state of antagonism with other members of the school, 
 which could only lead to discomfort and unhappiness in the 
 institution, had he a right to make such an inquiry as he could, 
 under the circumstances, to ascertain how that matter stood? 
 Xow, the power and authority of a schoolmaster is for the time 
 the same as a father would have under the same circumstances. 
 You place your child in the hands of a schoolmaster, delegating 
 to him all that is essential to the welfare and good conduct of 
 the child, and all the authority which is incidental to you as a 
 father. Suppose any one of you had reason to believe that a son 
 of yours was doing something which you would consider im- 
 proper, wrong, wicked; and you believed that evidence of that 
 conduct was to be found in a pocket-book which he had on his 
 person, would you or would you not think yourself authorised 
 to insist upon having that book handed over to you, and, on Ms 
 refusal to hand it over, to use that reasonable amount of force 
 which a father is entitled to exercise towards a son who is still 
 within the parental control, for the purpose of obtaining from 
 him that which, as a father, exercising a father's authority, you 
 might desire to see, with a view to the reasonable correction of 
 the boy, or for the purpose of bringing him into the right path ? 
 I cannot help thinking that, so far as this part of the case is 
 concerned, you will be of opinion, having heard what these au- 
 thorities have done, that Dr. Northcote, having been informed 
 by his subordinate officers that there were in this pocket-book 
 entries having reference to the organisation of a confederation or 
 association, which, if it really did exist for the purpose supposed, 
 could not be characterised as otherwise than mischievous and 
 pernicious, as head-master of that establishment, would be justi- 
 fied in insisting on seeing the pocket-book which was supposed 
 to contain evidence throwing light on the question which he was 
 so much interested in ascertaining, and which it was his duty to 
 settle to the satisfaction of all. But then comes the question 
 whether, when this pocket-book was seen, the contents were 
 such as to justify any reasonable person in coming to a conclu- 
 sion that it really had any serious object or meaning, or that 
 there really was any association amongst these lads organised
 
 261 
 
 and existing for the purpose of putting down, annoying, or in 
 any way molesting and offending these poor Bunkers, as they 
 Avere called, that is to say, the clerical students of the establish- 
 ment. That is a matter on which you must exercise your judg- 
 ment. As I said before, it is incidental to the authority of the 
 head of a scholastic establishment to expel and dismiss from the 
 school over which he presides any student or scholar whose 
 conduct is such that he can no longer be permitted to remain a 
 member of the establishment without danger to the other boys, 
 from the contamination of his example. On the other hand, when 
 a schoolmaster or the head of a scholastic establishment in my 
 days, I recollect, we used to call the establishment " school," the 
 head was " head-master," and the second the "second-master" or 
 " under-master," and so on ; but now they call them colleges, 
 heads, and principals : it used to be the fourth, fifth, and sixth 
 form, or the first, second, and third class, according to the mode 
 of enumeration then adopted in the one school or the other ; now 
 they are poets, rhetoricians, and philosophers. People now have 
 got to use larger and more grandiloquent expressions, as " head," 
 "president," "divine;" but it is the same thing. The head 
 undertakes the care of the schoolboys; and he is then to be in 
 the relation of schoolmaster to schoolboys, and it is one of the 
 incidents of that relation that if the schoolmaster takes your son 
 to educate him for a given time, whatever may be the time, he is 
 bound by the terms of that contract to keep your boy and edu- 
 cate him, unless the circumstances are such as reasonably to 
 warrant him in breaking his contract with you in reference to 
 that boy on account of his misconduct. I cannot at all go the 
 length which Mr. Karslake contended, of saying that is a matter 
 in the mere arbitrament of the master, that he may exercise a 
 mere capricious discretion that it is not to be questioned. I 
 admit that it ought not to be questioned lightly. The due exer- 
 cise of the great authority which a schoolmaster or the head of a 
 scholastic establishment enjoys, with reference to the general 
 welfare of all those committed to his charge, is of such immense 
 importance that a very large latitude must be allowed him. We 
 must assume that such a power Avill not be lightly, wantonly, 
 causelessly, and arbitrarily exercised; in other words, we are en- 
 titled to expect that it will be exercised reasonably : and if you
 
 are of opinion that here there has been an unreasonable exercise 
 of that authority, it is not because we ought in all cases to make 
 a very great allowance for the difficult position in which the 
 head-master is placed that the plaintiff is not entitled to obtain 
 your verdict. I cannot go the length that Mr. Karslake went, 
 but I am bound to tell you that I think you ought to make the 
 greatest possible allowance for the head-master of such an insti- 
 tution ; and that, unless you are of opinion that Dr. Korthcote 
 exercised it unreasonably, you ought not to say so by your ver- 
 dict ; because no doubt the master is called on to exercise his 
 authority in such a matter with more or less rapidity of decision, 
 he cannot deliberate over it as we have done but he must 
 form an honest judgment under the circumstances, and exercise 
 a reasonable discretion, and not be led away by any caprice or 
 any imaginary fancies of danger when none exists. 
 
 ~Novr, gentlemen, you will say for yourselves whether or not 
 you think that the evidence before you leads to any thing like a 
 reasonable conclusion that there was this association organised 
 amongst these young men for the purpose which is relied on by 
 the defendants. JSTow one thing I own that strikes me very 
 forcibly in this case is, that I do not find that amongst the 
 clerical students any one comes forward and says, " We have 
 been subjected to any annoyance or any molestation of any 
 kind ;" and I must say that I cannot help thinking that, instead 
 of being satisfied with the mere production of this pocket-book, 
 Dr. Xorthcote would have done much more wisely and sensibly 
 if he had extended his inquiry and given it a little wider scope, 
 and examined some of the clerical students with a view to 
 ascertain whether there had been any outward manifestation of 
 the motives and purposes for which this society was supposed 
 to have been organised or promoted by Mr. Fitzgerald. You 
 know the way in which it is put oh the part of the plaintiff is, 
 that this was mere nonsense ; that he had jotted down some 
 names for the amusement of himself or of some of those who, 
 with himself, did not quite like the Divines and the masters 
 who belonged to that portion of the institution : in a fit of 
 either spleen or anger against Mr. Stone, he had jotted down, 
 in a mere spirit of wanton frolic, the names of some of those 
 who, he supposed, would form a society what he called the
 
 263 
 
 "Anti-Bunker Society." If this had been merely done in a spirit 
 of frolic and fun, and never intended to go any further ; if it was 
 something between himself and one or two more, done in a 
 moment of idleness and thoughtlessness, and had never assumed 
 any thing like a practical form, probably you will agree with 
 me in thinking that the wiser course would have been for Dr. 
 Xorthcote to say, " Young man, this is a very foolish business ; 
 you do not stand on the safest ground ; you have been in several 
 scrapes this season ; I very much fear you have done this with 
 a bad motive, but I will inquire farther about it." And if ho 
 had inquired farther about it, he would have found that it 
 rested entirely upon theory ; that the parties to the A. B. C. had 
 gone no further than putting down these names ; that no one 
 had been molested, and that in fact the confederation had as- 
 sumed no tangible form whatever ; that young Fitzgerald had 
 gone out with his companions about the country just the same 
 as he did before, and that it had no meaning, no substance, but 
 was a sort of thing that existed only in an aerial imagination, 
 and dissipated in a moment if you attempted to grasp it. Then 
 if Dr. Korthcote had ascertained this, it would have been a 
 monstrous thing to say, and he would not have said probably, 
 "You shall have that stigma attached to your character, that 
 you have been expelled from a public establishment like this, 
 because your conduct was so unworthy of the character of a 
 gentleman, that you were not fit to associate with gentlemen." 
 I must say I think they were a little hasty, to say the least of 
 it. You must judge whether, upon the information they re- 
 ceived with respect to the pocket-book, there was any thing to 
 warrant a really well-founded charge against this young man of 
 being the promoter of a society which, if it existed and was 
 organised for the purpose for which Dr. Korthcote supposed it 
 was founded, was certainly of the most mischievous and per- 
 nicious character. You must judge for yourselves, not only 
 whether any such society was formed and existed, but also 
 whether Dr. Northcote had fair and reasonable ground to be- 
 lieve in its existence. As I have said before, the expulsion is 
 not a matter on which you can give any damages, because it is 
 not the ground of complaint in tliis action ; it is only necessary 
 to consider that incidentally, for this further purpose : they
 
 264 
 
 imprisoned him in his room and kept him there for a couple of 
 hoars, upon the ground that his conduct had been so bad that 
 it -was necessary to expel him ; and they felt it had been such 
 that, inasmuch as it was necessary to expel him, in order that 
 he might not be brought into contact -with the other students, 
 and so hare an opportunity of contaminating them, it was also 
 necessary that during the interval that elapsed between the 
 sentence of expulsion and his being taken away (he had to pack 
 up and so on), he should be kept isolated and separated from 
 the rest of the scholars. If the circumstances were such as to 
 call for his expulsion, then no doubt it would be a right thing 
 to say, " You have sought to sow dissension and to do mischief 
 and create an ill-will amongst your fellow students, that is the 
 reason why you shall not stay here ; and it is also a reason 
 why, during the time you must stay, you shall not be allowed 
 to come into contact with them." But if the first fells, then 
 the second falls also ; and even upon the second question I am 
 not sure whether you will be of opinion that, even if they were 
 justified in sending him away, they were justified in isolating 
 him to this extent, namely, that he should not be allowed to 
 hare communication with the rest of the students. Inasmuch 
 as a command from the proper authority to the other students 
 might hare been perfectly effectual to keep them in their bounds 
 or in their playground, and to prevent them holding communi- 
 cation with him, the question is, whether it was necessary to 
 turn the lock and confine him to the room during that time ? 
 Mr. Stone says, that is the fashion of the establishment when a 
 boy is expelled, that he shall be kept locked up before he is 
 removed, and that he acted on that " It did not occur to me," 
 he says, " at the time, that there was any particular expediency 
 in keeping him separated from the rest of the boys, but I acted 
 from the custom of the school" Gentlemen, it is for you to 
 say whether that custom is -reasonable. It is not because they 
 have done so on former occasions, that they are justified in 
 doing so when they say, " "We will have you no longer a mem- 
 ber of this establishment ; you are expelled from it ; your name 
 is erased from the list of members ; you no longer stand in the 
 position of scholar and pupil to us as masters ; we have done 
 with you." Whether, after that, they are entitled to lock him
 
 265 
 
 up is a very serious question. But, however, if you think they 
 were not justified in expelling him, then they were not justified 
 in putting him under lock and key. These are the matters 
 which are for your consideration. 
 
 I will just read to you the questions which I have put on 
 paper, for it is a matter so complicated that it is just as well to 
 have them in a tangible shape. The first question is, Whether 
 the facts alleged in the declaration are made out ? Whether the 
 plaintiff was assaulted by the defendants, or either of them ? 
 If by the defendant Stone, was the latter acting under the 
 authority of the defendant Dr. Xorthcote ? If so, both are 
 liable, unless the assault be justified. The same question applies 
 as to the imprisonment. The same question as to taking of 
 pocket-book. Xow, on the plea of justification. First, was the 
 plaintiff a pupil under the tutelage and government of the de- 
 fendant, and subject to the rules and discipline of the school ? 
 If he was not, he was not liable to be expelled, because he was 
 not a member of the school, for the breach of its rules or disci- 
 pline, because he was not subject to those rules. As to that, 
 the evidence is all one way, and I cannot help thinking you 
 ought to find that issue in favour of the defendant. Xow 
 conies this important question, Was a society or combination 
 formed and organised among certain of the students, injurious 
 to the school and to some of the pupils ? If so, was the plain- 
 tiff a member and promoter of such society ; or, fourthly, had 
 the defendant Dr. Xorthcote reasonable ground to believe such 
 a society or combination to exist, and that the plaintiff was a 
 a member of it ? Fifthly, was it necessary, with a view to main- 
 tain the good order and discipline of the school, that the de- 
 fendant Dr. Xorthcote should be made acquainted with the 
 constitution and objects of the society, and who were its mem- 
 bers ? If so, was it necessary, for this purpose, that the plain- 
 tiff's pocket-book should be examined, or had the defendant 
 Dr. Xorthcote reasonable ground to believe that such examina- 
 tion was necessary ? If so, I direct you that if the plaintiff 
 was subject to the authority of the defendant Dr. Xorthcote 
 as master, the plea of justification, so far as the taking of the 
 pocket-book is concerned, is made out, and also as to the assault 
 committed in order to obtain it, unless more violence was used
 
 266 
 
 than -was necessary. Then as to the imprisonment^ were the 
 circumstances such as to justify Dr. K" orthcote, in the reasonable 
 exercise of his authority, in expelling the plaintiff? I put that 
 to you not -with a view to damages, because you cannot give 
 damages. If so, was it necessary, for the purpose of preserving 
 the discipline of the school, that the plaintiff should be pre- 
 vented from communicating with the other pupils 1 Again, if 
 so, was it necessary that he should be confined in his own 
 room? Had the defendant Dr. Is orthcote reasonable grounds 
 for believing that the course pursued was necessary for pre- 
 serving the discipline and interests of the school ? As you find 
 the answers to those questions which I have put to you, we will 
 enter the verdict for the defendant or for the plaintiff. 
 
 There still remains one question, as to the detention of the 
 pocket-book. After the necessary purpose and object of taking 
 it had been fully accomplished and satisfied, certainly the 
 pocket-book might as well have been returned to him before 
 he left; but it was not; and in respect of its detention, the 
 plaintiff would be entitled to your verdict. But the defendants 
 meet that by paying a shilling into Court for the detention of 
 that, as nominal damages. It was no inconvenience not to 
 have that old pocket-book with the manuscript, and therefore 
 they say, "We pay a shilling into Court, and we say that wfll 
 abundantly meet the justice of the case." If that is so, the de- 
 fendant will te entitled to your verdict in respect of that deten- 
 tion. That leaves the real matter open. 
 
 Gentlemen, there was some manifestation of opinion elicited 
 from you in the course of the case yesterday. One or two gen- 
 tlemen were very anxious to stop the case in its outset. I can- 
 not help thinking you will be satisfied now that the case was 
 one which it was desirable on all accounts you should hear out 
 from its commencement to the end, and that you will feel that 
 there was more in it for your decision than may at first sight 
 have appeared. It is a question of great importance on the one 
 hand and on the other. It is for the general benefit of society, 
 and especially of the younger portion of it, that the authority 
 on the part of those who are at the head of our scholastic insti- 
 tutions shall be maintained, and on the other hand it is equally 
 important that the authority shall not arbitrarily, capriciously,
 
 267 
 
 and unreasonably be exercised ; and as you think it has been 
 exercised here reasonably or unreasonably (we cannot doubt 
 that it has been exercised honestly), so you will find your ver- 
 dict for the plaintiff or for the defendant. If your verdict 
 should be for the plaintiff, I do not apprehend that you would 
 desire to give any thing like vindictive damages. The distin- 
 guished individual who represents the plaintiff here can have 
 but one object, which is to perfectly rehabilitate his son, and 
 to restore him to that position in society which he is entitled to 
 occupy, without any stigma or stain attaching to him in respect 
 of his conduct at this institution. On the other hand, however 
 desirable that may be, if you think the plaintiff is not fairly 
 entitled to your verdict, you will not, in order to effect that 
 very desirable object, give him your verdict, whatever may be 
 your sympathies for the boy. 
 
 With these observations I leave the case entirely in your 
 hands, and by your answers to those questions I shall be guided 
 in directing the verdict. 
 
 Hi: Karslake : "Will your Lordship let us have a copy of the 
 questions ? 
 
 Lord Chief-Justice Cockburn: Certainly. 
 
 [The Jury retire to consider their verdict at 4*1 5. At 5 '40 
 the Jury return into Court.] 
 
 Tlie Associate : Gentlemen, are you agreed upon your ver- 
 dict? 
 
 Tlie Foreman of the Jury : AVe are (Juindiny in a j^Kiper). 
 
 Lord Chief-Justice Cockburn : You find for the plaintiff, 
 on the ground that he was imprisoned and assaulted, with 
 damages, 51. 
 
 The Foreman of the Jury : Yes, my Lord. 
 
 Lord Chief- Ju-st ice Cockburn: Hand in my paper. (It ictus 
 handed in to his Lordship.") Your answers in detail to these 
 questions are : That the plaintiff was assaulted by Stone, by the 
 authority of Dr. Korthcote ; that he was imprisoned ; that his 
 pocket-book was taken from him. You find that he was a pupil 
 subject to the discipline of the school; that there was not a
 
 268 
 
 society or combination organised ; that the circumstances were 
 not such as to justify Dr. Northcote, in the reasonable exercise 
 of his authority, in expelling the plaintiff; nor had he reasonable 
 ground for believing that the course pursued was necessary for 
 the purpose of preserving the discipline of the school. Then 
 you find upon the whole for the plaintiff : damages, 57. And 
 as regards the detention of the pocket-book, that one shilling is 
 sufficient. That is a verdict for the plaintiff : damages, 51. 
 
 Mr. V. Harcourt: There are in this case certain questions 
 of law which may properly and fairly be raised ; and under those 
 circumstances, I hope your Lordship will put us in a position of 
 raising those questions. 
 
 Lord Chief-Justice CocJcburn : What questions of law 1 
 
 Mr. V. Harcourt: I would of course much rather not go 
 into a detail of them ; but there are questions of law. 
 
 Lord Chief-Justice Cockburn: I must see that there are 
 some grounds on which I ought to stay execution. Neither of 
 you have suggested any question to the jury, other than those I 
 have put. 
 
 Mr. V. Harcourt : I might state, as a single question, the 
 question of the existence of a contract between the father of the 
 pupil and the schoolmaster with reference to the expulsion, and 
 the character of that contract. That is clearly a question of 
 law. 
 
 Lord Chief -Just ice Cocklurn: Yes; but it is one on which 
 I entertain no doubt whatever, and therefore I do not think I 
 ought to stay execution. 
 
 Mr. V. Harcourt : Again, your Lordship will see, even though 
 there were such a contract, this is not a person who was a party 
 to that contract. 
 
 Lord Chief-Justice Cochlurn : And I have told the jury that 
 they ought not to give any damages in respect of the expulsion ; 
 but inasmuch as it was necessary to determine whether they 
 were right in sending this young man away, with a view to the 
 question of imprisonment, it was necessary to look at that part 
 of the case. 
 
 Mr. V. Harcourt : I do not wish to persevere against your 
 Lordship's opinion ; but of course, without prejudicing our right 
 to move, I only make the application.
 
 269 
 
 Lord Chief- Just ice Cockburn: You do not want any leave 
 on my part for moving in the matter. On the contrary, I should 
 be very glad that you should do so, if you think, on reflection, 
 that^there is any thing that ought to be reviewed or reconsidered. 
 But I own I entertain such a confident view of the doctrine I 
 have laid down, that I do not think I ought to give any sanction. 
 
 Mr. V. Harcourt : This is out of Term, your Lordship sees ; 
 and it is not a question of money in any way, but a question of 
 merely discussing these points. 
 
 Lord Chief-Justice Cockburn : I quite agree ; but I think the 
 Judge implies some doubt when he does any thing to stay the 
 execution. 
 
 Mr. V. Harcourt : Your Lordship has said enough to remove 
 that impression. 
 
 Mr. Coleridge: Wjll your Lordship certify for a special 
 jury? 
 
 Lord Chief-Justice Cockburn: Yes. 
 
 Mr. Coleridge : And further, that it is a proper case to have 
 been tried here ? 
 
 Lord Chief-Justice Cockburn : Yes, certainly. 
 
 Mr. V. Harcourt: Will your Lordship allow us to have a 
 copy of the findings and the answers of the jury ? 
 
 Lord Chief- Justice Cockburn: Yes, certainly; I will take 
 care you have them. On the trover count there will be a ver- 
 dict for the defendant. 
 
 Mr. Coleridge: Certainly. 
 
 THE END. 
 
 LONDON : 
 
 UOBSON AND SON, CHEAT NORTHERN rKINTLKO WORKS, 
 PANCKAS BOAD, N.V.

 
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