December 1883. Russell conducted the defence with
great skill. ' Rarely,' says a leading legal journal, ' has
it been the lot of an advocate to find himself confronted
by such difficulties as Mr. Charles Russell had to en-
counter in defending O'Donnell for the murder of Carey,
and it may be interesting to our readers to have it
pointed out in some detail how these difficulties were
dealt with. The case for the Crown was : On July 6
last, James Carey, under the alias of Power, sailed with
his wife and family in the Kinfauns Castle for the
178
JEr. 51] R. v. O'DONNELL
Cape. O'Donnell and a woman who was known on
board as " Mrs. O'Donnell " were among the passengers.
Up to the time of the ship's arrival at Cape Town, on
July 27, Carey's incognito was preserved ; but it then
became known that Mr. Power was none other than
the notorious Irish informer. O'Donnell, among others,
became aware of this fact at Cape Town. On July 20
Carey and O'Donnell sailed in another ship the Mel-
rose Castle for Natal. On Sunday, July 29, both men
between whom more or less friendly relations existed
during the voyage outwards, and up to the date were
in the second saloon cabin, " Mrs. O'Donnell" being also
present. O'Donnell and Mrs. O'Donnell were sitting
upon a settee, the latter having her arm round the
former's neck, while Carey stood a few feet distant.
O'Donnell and Carey were quietly engaged in conversa-
tion when the former suddenly, and without the least
provocation, drew a revolver from his pocket and shot
the former in the neck. Carey endeavoured to fly from
the cabin, but had only moved a few feet when O'Donnell
fired two more shots at him, causing his death in less
than a quarter of an hour. The evidence adduced by
the Crown in support of this narrative was the following :
James Parish, one of the crew of the Melrose Castle,
stated that he went into the cabin before the first shot
was fired, that he saw O'Donnell take the pistol out of
his pocket and fire the three shots that killed Carey, and
he swore that prior to the first shot there was no sign
of quarrel between the men. Carey's son, a lad of about
sixteen years of age, stated that he was in the cabin some
minutes before the first shot was fired, and that he saw
it and the other shots fired, and denied that his father
179 N 2
LORD RUSSELL OF KILLOWEN [1883
had done anything to provoke O'Donnell. The boat-
swain of the ship saw the second and third shots fired,
and Marks, one of the passengers, observed the men
talking quietly immediately beforehand. Mrs. Carey
stated that after her husband's death she said to the
prisoner O'Donnell, " Did you shoot my husband ? " and
that he answered, " Shake hands, Mrs. Carey, I was
sent to do it." Finally, Robert Cubitt, another passenger,
swore that, prior to leaving Cape Town, he had handed
O'Donnell a portrait of Carey, on seeing which the
prisoner said, " I'll shoot him." When O'Donnell was
arrested this portrait was found in his possession. The
witnesses were subjected to searching cross-examination,
but, with the exception of young Carey, their evidence
was not disturbed in any essential particular. Thus,
when the case for the Crown was closed, and when
Mr. Russell rose to make his speech for the defence,
the difficulties which had confronted him at the beginning
of the case remained almost wholly unremoved a cir-
cumstance which added immensely to the weight of his
task. It is necessary to bear this in mind in order to
appreciate properly the power of his speech, and the
remarkable effect it produced on the minds of the jury.
' In opening the prisoner's case, Mr. Russell, with
characteristic directness, mentioned at once the point on
which he meant to rely. That O'Donnell had killed
Carey was beyond dispute. What his advocate intended
to show was that he had killed him in self-defence,
because his own life was placed in immediate danger by
the violence of the deceased. But, having stated what
the line of defence was, Mr. Russell, contrary to general
expectation, instead of at once developing the theory
1 80
. 51] R. v. O'DONNELL
thus suggested, immediately diverged to another topic.
He thought it necessary to clear the minds of the jury
of any impressions which they might have formed
respecting O'Donnell's connection with any secret
societies, reminding them that, notwithstanding the vast
resources at the command of the Crown, no attempt had
been made by the Attorney-General to show that
O'Donnell had been sent to murder Carey.
' Having apparently satisfied the jury that O'Donnell
had not gone on a murderous mission, and so opened
their minds to the reception of what he had to say in
favour of the prisoner, Mr. Russell next proceeded to
portray him as a hard-working, peaceable man of good
character, contrasting his reputation with that of Carey,
whom he described as an inhuman monster, who, having
planned a dozen murders or more, turned round and,
while utterly unrepentant, gave evidence which hanged
his confederates. Hated by his own countrymen, the
informer went forth with his hand against every man,
and every man's conscience against him. Here it is
obvious that Mr. Russell was treading on dangerous
ground. If Carey was universally hated by his own
countrymen, what more natural than that one of those
countrymen should have murdered him ? The question
thus suggested Mr. Russell anticipated with consummate
skill, pointing out that Carey went about in hourly terror
of his existence, and ready,- on the slightest suspicion,
to shoot any Irishman who might cross his path, lest
his own life might be taken. And now at last, having
described Carey as a monster, and O'Donnell as a quiet
and peaceable citizen, Mr. Russell set forth in detail
the theory of the defence. O'Donnell had discovered at
181
LORD RUSSELL OF KILLOWEN [1883
Cape Town that Power was James Carey, and he resolved
on the voyage from Cape Town to Natal to avoid him,
and, in point of fact, told Carey he would do so. But
Carey would not keep aloof. On the 29th, when Carey,
O'Donnell, and Mrs. O'Donnell were in the cabin,
O'Donnell declared to Carey that he would "have
nothing to do with an informer." " What do you mean
by an informer?" replied Carey. "You are James
Carey, the Irish informer," answered O'Donnell.
On this, Carey sprang to his feet and produced a
weapon ; but O'Donnell, with more quickness, pulled
out his pistol and fired first, with the results already
mentioned. The case was a plausible one, but on what
evidence did it rest ? Simply upon a statement of the
prisoner, made not immediately upon his arrest, or
before a magistrate, but to his solicitor, and now set
forth for the first time by Mr. Russell. Not only was
there absolutely no evidence in support of the theory,
there were two witnesses who swore they were present
when the first shot was fired, and they did not see Carey
produce any weapon. These witnesses were young
Carey and Parish. After the death of Carey, two
pistols, and only two, were found one in the pocket of
O'Donnell, and one in the pocket of young Carey. The
question was how young Carey came by the pistol. He
had sworn that, after the firing of the first shot, he had
taken it out of a bag to give his father. How was this
to be met ? Mr. Russell boldly asked the jury to
believe that young Carey's evidence was unreliable, and
to credit the statement that the pistol had dropped from
Carey, senior, and been picked up by his son. In
support of this view he had already called the only
182
Mr. 51] R. v. O'DONNELL
witness produced for the defence, Young, a cab pro-
prietor at Port Elizabeth, who swore that young Carey
had said to him, some days after the occurrence, that the
reason he did not shoot O'Donnell was because he could
not find the pistol in the bag, " for my father had it."
Supported by this evidence of Young an unimpeach-
able witness, it must be observed Mr. Russell seems
almost to have persuaded the jury that Carey had a
pistol, and that he drew it on O'Donnell before the
latter fired. This was the advocate's greatest achieve-
ment in the case an achievement which might, perhaps,
have saved the prisoner but for the firing of the second
and the third shots. With these shots Mr. Russell
dealt very briefly, using the greatest efforts to fasten
the attention of the jury on the first shot alone which,
as he said, had been fired in self-defence and repre-
senting the other shots, which had been fired in quick
succession, as part and parcel of the one transaction
that transaction being an effort on the prisoner's part to
save his own life. This vulnerable point, however, did
not escape the learned judge's notice, and it was
probably in the three points emphasised by him the
total absence of any evidence to support the theory of
the defence ; the want of any theory to explain
adequately the second and third shots ; and the fact that
the woman who accompanied O'Donnell, but who was
not even alleged to be his wife, was not called that
the verdict ultimately turned. That the verdict of
"guilty" was only reached after nearly three hours'
deliberation is a testimony at once to the fairness with
which the trial was conducted, and to the ability and
power of the advocate for the defence.'
'83
LORD RUSSELL OF KILLOWEN [1883-84
O'Donnell was found guilty of murder, and con-
demned to death. Russell made a strenuous effort to
get the capital sentence reduced to penal servitude, on
the ground that O'Donnell had fired in hot blood,
believing (rightly or wrongly) that Carey meant to shoot
him. With characteristic earnestness Russell not only
wrote to the Home Secretary, but to the Prime Minister
as well :
3 Brick Court, Temple :
Dec. 10, 1883.
DEAR MR. GLADSTONE, I have long hesitated before
coming to the conclusion that I ought to trouble you
with this communication on the subject of Patrick
O'Donnell, now under sentence of death for the slaying
of James Carey. There is more than a departmental
question involved in this case, viz. the question of public
policy, to which I respectfully invite your earnest atten-
tion. If justice does not imperatively demand that
O'Donnell's life be forfeited, I feel strongly that the
interests of peace would best be served by commuting
his sentence to penal servitude. I fear his execution
would involve injurious consequences. It would add to
your labour unnecessarily were I here to repeat the
grounds on which I urge that the man's life might
properly be spared. Those grounds appear sufficiently
in the copy of my letter to Sir William Harcourt (which
I enclose), together with copies of the documents therein
referred to (which I also enclose).
I am, dear Mr. Gladstone,
Always faithfully yours,
C. RUSSELL.
Mr. Gladstone replied :
December 13, 1883.
DEAR MR. RUSSELL, I can well understand the
motives which may lead counsel, especially in a case of
life, to use every effort which may seem in any way
184
JEr. 51-52] AN AMERICAN VISITOR
allowable on behalf of a client. I am, however, in fair-
ness, bound to say that, so far as I am able to judge,
I should not, had I been in the place of the Secretary
of State, have arrived at any other judgment in the case
of O'Donnell than that which he has, I believe, made
known to you.
Believe me, faithfully yours,
W. E. GLADSTONE.
The law was allowed to take its course, and
O'Donnell was hanged.
In 1884 Russell changed his quarters from 3 Brick
Court, Temple, to 10 New Court, Lincoln's Inn. Some
time previously I had taken chambers in New Court
too. Henceforth we saw more of each other than ever.
I was writing a book on Ireland, and had occasion to
consult Hansard frequently. He had a complete set in
chambers, and placed them at my disposal. I was at
his chambers pretty well every day. ' It seems to me,'
he would say, ' that I bought these Hansards for you.
You certainly get all the benefit of them.' I used to sit
with him* at luncheon constantly. Finding me work-
ing away at Hansard on coming in from Court, he
would say, ' Come into the other room and have a talk.'
These talks were very pleasant ; but they generally
turned on some question of practical politics. He was
always homely and genial. One day he told me a story
which amused him very much. He was talking of his
American tour, and of the kindness which had been
shown to him in the States. An American friend had
arrived in London. ' I was anxious,' said Russell, ' to
pay him every attention. I thought he would like
specially to meet some of our celebrated men Glad-
185
LORD RUSSELL OF KILLOWEN [1884
stone, Bright, Salisbury, Randolph Churchill, Parnell,
Chamberlain, the Speaker, the Lord Chancellor, the
leaders of the Bar, some famous generals or artists, and
so on. I said, " If I cannot myself introduce you to any
of these men whom you might like to meet, I think I
can promise to get an introduction for you." " Well,"
said he, "there is only one man I want to meet, and if
you can get me an introduction to him I shall feel very
much obliged." " Certainly," I said ; " I will do my best."
And I cudgelled my brains to think of some impossible
personage whom he was going to name. " Well," said
he, " the only man I want to meet is Mr. Henry
Labouchere."
One day I came into his room and found him at his
accounts ; fee books, bank books, cheque books were
strewn around. ' I am glad,' I said, * to see you at
your accounts.'
Russell: 'Why?'
' Because I should like to know your income.'
Russell : ' That's a very impertinent question ! '
I admitted that it was.
Russell: ' So impertinent that I think I'll answer it.'
He then told me that he had in one year made
something approaching 2O,ooo/.
' That's a lot,' I said, ' to work out of a man's brain ! '
Russell: ' It is, but I get good help. There are
some young fellows who work for me. They learn
their own business and help me in mine.'
' They say you never read a brief,' I said.
Russell : ' Who says so ? '
' Every one. 1
Russell : ' Who is every one ? '
1 86
JET. 52] INTUITION
' You know who every one is ; when you have no
specific authority you say " Every one."
Russell : ' Just so ; but how do these people think
that I get up my cases by intuition ? '
' Yes ; that is just what they do think. You can see
the real point in a case at a glance, and you don't bother
about anything else.'
Russell : ' That's all nonsense. You don't know
anything by intuition. You have to work hard and to
think hard. I get some good help, as I tell you. My
mode of work is this : One of these young men reads
the brief and makes a note a full note. I go through
the note with him (smiling), cross-examining him if you
like. Sometimes, I admit, it may not be necessary for
me to read the brief; the note may be so complete, and
the man's knowledge of the case so exact, that I get
everything from him. But it often is in fact it generally
is necessary to go to the brief. You have seen me
reading briefs here. I admit that I am quick in getting
at the kernel of a case, and that saves me some trouble ;
but I must read the brief with my own eyes, or somebody
else's.'
I said, ' Sir John Karslake went blind because he
could only read his brief with his own eyes. It is a great
point to be able to read your brief with somebody else's
eyes ! '
Russell : ' Well, well, well, that's so ! but it is not
intuition.'
I said, ' It has been said that O'Connell never read
his brief when he appeared for the defendant. He
made his case out of the plaintiff's case.'
Russell: ' I don't think that is likely. I think
187
LORD RUSSELL OF KILLOWEN [1884
O'Connell knew his case the vital points in his case
before he went into Court. There is often a great deal
in a brief which is not vital, which is not even pertinent.
I can read a brief quickly ; I can take in a page at a
glance, if you like ; I can throw the rubbish over easily, and
come right on the marrow of the case. But I can only do
that by reading the brief or by the help of my friends.
I learn a great deal at consultations ; I am not above
taking hints from everybody, and I think carefully over
everything that is said to me ; (holding his hand up with
open palm) I shut out no view. If I have a good point,
it is that I can see quickly the hinge on which the whole
case turns, and I never lose sight of it. But that is not
intuition, my friend, it is work.'
In truth it was both. Russell worked hard. There
is no doubt about that. He spent himself over every
case big or little in which he was engaged. But his
intuitions were extraordinary. One of his ' devils ' has
told me this story :
' I had made a full note for him in a case. He did
not read the brief himself. He spoke from the note. I
sat behind him as he was addressing the jury. Suddenly
I remembered that I had omitted one most important
fact. I was horrified. I felt the cold perspiration run-
ning down my back. What was I to do ? If I inter-
rupted him he would be angry, and if I let him close his
speech without mentioning this fact, he would be angry too.
What was I to do ? It was not at all an easy thing to
pull him up and go into this new matter. There I sat still
in doubt, while Russell rattled along. Gradually he got
to the point where this fact ought to come in, while I sat
undecided, when suddenly, to my astonishment, out came
188
JET. 52] INTUITION
in its proper place in the narrative the fact in question.
I was amazed and relieved. How did he get it ? He had
never opened the brief that I knew. As we walked
away from Court I told him how sorry I was to have
left out that fact, and what a funk I was in all the time
he was speaking. He was not a bit angry. He took
it very well. " But how," I asked, " did you know it ?
You never read the brief; you had nothing but the
note." " Quite true, my boy," said he, "but I felt sure
it must be so from the lie of the other facts." The
courage of the man, his faith in himself amazed me. He
felt assured from the general bearings of the case, with-
out any special knowledge, that this particular thing
had happened, and he said so with complete confidence.
I remember another instance of his assurance. There
was a consultation in his chambers. At this time he was
hard pressed in fact, overwhelmed with work. He had
not read his brief, and had no note. He knew nothing
about the business. The solicitor and the parties were
in his room waiting for him. I ran across to Court just
to tell him something of the case on the way back.
" Well, my boy," said he, " what is it all about ? " I told
him shortly : " An action against an insurance company
on a life policy. We are for the company. The defence
is that it was a bad life, and that some important facts
were not disclosed." " What's the point ? " " Well, the
point against us is that our doctor passed the life." By
this time we had reached his door. He did not hesitate
for a moment ; he walked straight in without further
question, sat in his chair, took off his wig, and, looking
the master of the whole situation, said: "Well, gentle-
men, isn't this an awkward business about our doctor ?
189
LORD RUSSELL OF KILLOWEN [1884
Let me see his opinion." The solicitor rummaged
among the papers ; the clients were anxious and ner-
vous. Russell read the doctor's opinion, cross-examined
every one, and soon got a grip of the case. But no one
could have guessed that he had practically only heard
of it about ten minutes before he entered the room.'
' Did you ever/ I asked this devil, ' witness any
scenes at consultation ? '
' Oh yes,' he answered, laughing, ' I remember one
consultation which was attended by an imposing-looking
solicitor from Manchester. He wore an Astrachan coat.
Russell could not bear Astrachan coats. We were all
assembled at chambers, waiting for the great man to come
in from Court. Soon he appeared, went straight to his
chair, as usual, and took off his wig. Then he shot a
glance at the Manchester solicitor. "What do you
mean," he said, " by coming in here with that coat ?
Take it off." We all felt very uncomfortable, the man
took off the coat, and Russell plunged into the case as
if nothing unusual had occurred. In these bursts of
impatience and irritability, he, of course, did himself
great injustice. He did not mean to hurt or give offence.
If he reflected for a moment, and thought that he had
wounded you, no one could feel more sorry. I will give
you an instance of what I mean. I was once his junior
in a big commercial case. Some of the directors of the
company for which we appeared City magnates were
in Court. There was one critical moment, and Russell
was away at the time. The directors got nervous,
and said, " Send for Mr. Russell." I said there was no
necessity, that we should get through all right. The
directors, however, were urgent, and I sent for Russell.
190
52] POPULAR
By the time he came the crisis was over, and everything
was going on smoothly. "Why was I sent for?" said
Russell. " There's nothing to do ! " The directors
looked in a blue funk, while Russell shot angry glances
all around, and then stalked out of Court. Later on he
said to his clerk, " I wonder if I offended Mr. [me]
yesterday. I was rather brusque." Next day he came
to my room. " Well, my boy," he said, " I am afraid I
was rather rough yesterday ; I am very sorry, but really
there was nothing for me to do and I was wanted else-
where. Forgive me, my boy." I was not a bit annoyed
with Russell, but I was with the confounded directors
who had caused the whole row, and then looked as if
they knew nothing about it. He was always off-hand,
generous, manly, and, despite his occasional bursts of
passion, had a thoroughly kind heart.'
One day Russell said to me, speaking of MacMahon,
' I think MacMahon liked me.'
I said, ' I don't think he did.'
Russell : ' What do you mean ? '
I said, ' He admired you ; he was proud of you as an
Irishman '
Russell : ' No, no, no, that won't do ; he liked me.'
I repeated, ' He did not ; few people like you.'
Russell : ' What do you mean ? '
I said, ' Well, you know that you are not a popular
man.'
Russell'. ' I know nothing of the kind.'
I said, ' You are the most reasonable man in the
world ; and how do you think that you can be popular
when you have been riding rough-shod over every one all
your life judges, barristers, attorneys, all sorts of people?'
191
LORD RUSSELL OF KILLOWEN [1884-85
I was much struck by his answer. He was standing
near the window ; while I was talking he was looking
into the court. He then turned round, looked at me for
an instant steadfastly, and said :
'Well, my friend, I am more popular than you
think.'
And he said what was absolutely true.
Subsequently I asked a distinguished member of the
Northern Circuit if Russell was ' liked ' ; that I knew
the men were proud of him ; ' but did they like him ? '
' Yes,' he said, ' despite his roughness they liked
him. People liked to see Russell about. He contri-
buted nothing to the amusement of the mess ; but the
men liked to have him there. He entered into the fun,
though he did not help to make it, and we liked to see
him enjoy himself. He was more popular than many a
milder-mannered man.'
On another occasion he gave me a photograph of
himself.
' It is not good,' I said.
1 What is wrong with it ? ' he asked.
4 The mouth is too amiable,' I replied.
He took it out of my hand, looked at it, then threw
it on the table and said :
' Ah, my friend, that mouth is ugly enough for any-
thing.'
It was about this period that Russell cross-examined,
with much severity, a lady in a case to which I have
already referred. 1 The cross-examination began one
day. The next day the lady had disappeared. After-
wards Russell received an anonymous letter of ' a very
1 Ante, p. 146.
192
JET. 52-53] GENERAL ELECTION, 1885
abusive character.' He wrote to the counsel who repre-
sented the lady :
DEAR [ ], An anonymous letter has been sent to
my house which has greatly annoyed my people. It is
of a very abusive character (which I do not mind), but it
charges me with having been guilty of conduct in my
cross-examination of Mrs. which no gentleman
should pursue towards any woman.
I should be sorry to think this was true, but I am not
the best judge of my own conduct. Will you, who re-
presented the lady, tell me and tell me frankly and
candidly what you say to this charge ?
I need not add your letter will be ' private ' as
mine is.
Faithfully yours,
C. RUSSELL.
The other counsel replied :