This is one of those great stories that you stumble across every so often if you’re lucky. This has the intriguing addition of “Miss O’Bryen”, the wronged wife, and the help from “Mr O’Bryen” her brother, and “Dr. O’Bryen, another brother,”, as the principal witnesses; the defence barrister censures “the conduct of the O’Bryens in imputing matters which had nothing to do with the case.” Are they members of the family?
(Before Mr Serjeant GASELEE)
Eugene Plummer Macarthy, 44, a man of gentlemanly exterior, described in the calendar as “formerly a soldier”, with a superior education, was indicted for stealing six printed books, the property of the trustees of the British Museum.
Mr. Serjeant Parry (specially retained) and Mr. Poland (instructed by Messrs. Brae and Co, Great Russell-street, Bloomsbury) appeared for the prosecution; Mr. Ribton (instructed by Mr. Morris, of Beaufort-buildings, Strand) defended the prisoner.
This was a somewhat extraordinary case, and the facts, as detailed by the learned counsel who conducted the prosecution, appeared to be as follows :-
A short time ago the prisoner was tried at the Central Criminal Court on a charge of bigamy, there being two indictments against him he pleaded guilty to one of them, and there was no evidence offered in support to the other, and only a short term of imprisonment was passed upon him. At the termination of his sentence he was apprehended on the present charge, taken before a magistrate, and committed for trial The charge against the prisoner was for stealing six books from the British Museum about five yeas ago, he then having the privilege of admission as a reader to the reading-room. It seemed that the prisoner obtained a ticket of admission to the building upon the recommendation of Mr. W. H. Gordon, of Princess- street, Cavendish-square, on the 22nd of July 1857, upon which day be attended and signed the book required to be signed by readers on their first admission. In the letter of recommendation he was stated to be a member of the Irish bar, and that he was desirous of prosecuting some researches into Irish history connected with his name and family, having for some years ceased to practise at the bar, and that in the interval he had been residing at Toulouse with Vicomte de Macarthy, his father, and that his stay in England would not be protracted. He came frequently to the reading-room, and had the use of a great number of books and MSS., and it would seem that on the very day after his first admission a book which he had, entitled Christian Instruction, was missing from the library.
On the 23rd of June, 1858, he was expelled from the library for writing on a manuscript, but on his representing to Mr. Panizzi [Sir Antonio Genesio Maria Panizzi (1797 – 1879). He was the Principal Librarian at the British Museum from 1856 to 1866, having been first Assistant Librarian (1831–37), then Keeper of Printed Books (1837–56). He was knighted by Queen Victoria in 1869] that he merely corrected an error, and believed that he was rendering a service to future readers, he was re-admitted to the reading-room in the following month of July. The prisoner represented that he was collecting materials for biographies of his country-men engaged in foreign services, and that some of them had appeared in the Dublin University Magazine, and it was important to a certain degree, as five out of the six of the books which the prisoner was charged with stealing bore upon Irish history and titles of honour.
Three of the books were kept on shelves in the reading-room, from which readers were allowed to help themselves, and they were missed in 1858. The other three required a ticket to be filled up, with the title and reference to the museum catalogue, but it was supposed some fraud had been perpetrated in respect of the tickets for these books, so that they should not be produced against him. Since the prisoner was committed by the magistrates access had been obtained to his papers, and among them had been found a ticket upon which he obtained one of the books,but two other tickets were not forthcoming.
At the August Sessions, at the Central Criminal Court the prisoner was indicted for bigamy, in having married Miss O’Bryen, in 1844, his former wife being then alive. There was also a second indictment for marrying a third wife, the other two being alive, and when he was on bail on these charges, he wrote to Mr Miller the solicitor who was acting for Miss O’Bryen, a letter, requesting that some books which were in Miss O’Bryen’s possession, and belonging to him might be returned to him. When Miss O’Bryen discovered that she was not his lawful wife, she ceased to live with him, and the books and papers were kept in a bag ready to be delivered to the prisoner whenever he should apply for them. Upon the receipt of this letter an examination of the books and papers was made by Mr. O’Bryen, the brother of Miss O’Bryen .
On the 19th of August Dr. O’Bryen, another brother, being at the house in Westbourne place, observed on the table two books, the subject of these proceedings, which he immediately supposed to belong to some public library, and on a little further examination he was led to think that they belonged to the British Museum. On the same day he took these books to the British Museum, and, having shown them to Mr. Rye, the assistant-keeper of the printed books, he at once identified them as belonging to the Museum library. Mr. Rye on the same day went to Westbourne-place, and made a further examination, when other books belonging to the British Museum were found and identified. No doubt being entertained that the prisoner had become unlawfully possessed of the books in question, it was determined to institute a prosecution against him on behalf of the trustees of the British Museum, and he was arrested and charged with the theft, and after being remanded, Mr. Henry committed him for triaL.
Several witnesses having been called to substantiate these facts,
Mr. Ribton rose to address the jury for the prisoner, and said the first thing which would be for their consideration was,-Did the books in question belong to the British Museum, and if so were they removed by the prisoner ? If they were satisfied of that, the next and most important question they would have to consider was,-Were they taken away by him with an intention of stealing them ? That was a very important question to consider, for in point of law the mere taking of an article away was not stealing, unless at the time of taking it there was an intention of stealing it, and to deprive the owner of it altogether. The mere act of applying the article to his own use was not sufficient, and unless they were satisfied that there was an animo furandi, they could not find the prisoner guilty of stealing. Having paid attention to the facts of the case, he would ask the jury whether they could safely and conscientiously say, supposing Mr. Macarthy took these books from the British Museum, that he intended to steal them, by permanently depriving the trustees of the British Museum of them and appropriating them to his own use. There was every presumption that the prisoner intended to return the books, for he attended the British Museum for a legitimate and honourable purpose, for he had written an article called the O’Byrnes of Wicklow, inserted in the Dublin University Magazine, and sometimes wrote for newspaper and periodicals. He had no intention of felony, for when he took them he did so that he might carefully peruse them, and although it might be a breach of the regulations of the Museum to take books away, that was a very different thing from stealing them. Having censured the conduct of the O’Bryens in imputing matters which had nothing to do with the case, he said, even if the jury had a doubt in the case, the prisoner was entitled to acquittal at their hands, and he trusted the benefit of it would be cheerfully acceded to him.
Mr Serjeant Gaselee very carefully summed up the evidence.
The jury, after a few minutes’ consultation, returned a verdict of Guilty of stealing.
Mr. Serjeant Gaselee said it was painful to see a person in the position in life of the prisoner charged with such an offence, as from his education he ought to have set an example, and was not exposed to the same temptations as those they were in the habit of punishing every day. He could well understand that the prisoner felt his position painfully, but the Court had a public duty to perform, and to show that the administration of the law was equal with high and low, rich and poor, and, as the position in society of the prisoner made his offence the more heinous, it would be his duty to pass a severe sentence.
Prisoner.-Oh ! my Lord, I pray you to temper justice with mercy.
Mr Serjeant Gaselee said that was the feeling of the whole bench, but, having given the case the fullest consideration, they had come to a conclusion upon it, and the sentence of the Court was that he be imprisoned and kept to hard labour for 18 months.
Prisoner. –I did not expect so severe a sentence as that.
The prisoner was then removed to the cell.
The Times, September 3, 1862. p. 9