From Douglas Jerrold’s Weekly Newspaper, 14 September 1850:

“CHARGE OF MANSLAUGHTER AGAINST CAPTAIN BUSHE, OF THE 59^TH REGIMENT

An inquest was held at Mallow, on Friday, on the body of a respectable child, named John Dennehy, between six and seven years of age, alleged to have come by its death in consequence of a blow from a whip, said to have been inflicted by Henry Kendal Bushe, captain, of the 59^th Regiment. 

On the evening of the 21^st ult., the deceased with his nurse was playing with a whip, and it appears struck a dog belonging to the captain. When the latter heard the dog screech he turned back with a large whip in his hand, and said ‘You young ruffian, why did you strike my dog?’ striking the deceased at the same time violently across the head. It was a large thong whip. The child ran away quickly, and in the confusion knocked himself against a wall.

When they came back, the maid said ‘Oh ma’am, the child is destroyed.’  The mother stripped the child but saw no mark on the body; there was a lump, however, on the top of the forehead, as if it had received a blow, and the child had also a welt across the cheek. The child looked flushed. On asking him if he was hurt, he at first said he was not; but on her repeating the question he said, he was struck on the head with a whip.

In the morning, the child was looking very pale and heavy.  The child’s stomach and bowels were greatly disordered. It used frequently to start, as if about to get convulsed, and cry out, ‘Mamma, catch me-hold me-look at him-look at him!’ Convulsions ensued the Sunday following the Wednesday he was struck, and notwithstanding the attentions of a medical attendant, the little fellow died on the 6^th instant. 

Dr Berry, who attended the deceased, was asked by the coroner if he could say what was the cause of the death.

Witness – ‘Yes; the child died from water on the brain, which appeared to follow an attack of fever.’ 

The witness continued to depose that the chest of the child was also examined, and one of the lungs was found diseased. There were other manifestations of disease, which must have existed prior to the child’s last illness.

Coroner-‘Would the blow of a whip cause the injuries you describe?’ 

Witness-‘Certainly not.  However, let me qualify it by saying that the blow of a whip, if severe enough, would predispose the child to fever; or, if given on the head, to water on the brain.’ 

To a juror – ‘The disease in the lungs had nothing to do with the child’s death.’ 

The jury, after some deliberation, returned with a verdict of ‘Manslaughter against Captain Bushe.’  The crowd that thronged the outer part of the court seemed overjoyed at the result, and some of them left the place, crying ‘Bravo.’”

Captain Kendal Bushe was the grandson of the recently deceased and very popular Lord Chief Justice of Ireland, Charles Kendal Bushe – something which the Clonmel Chronicle of 11 September 1850 appeared to think must surely prove his innocence.  Republishing the report of the inquest from the Cork Southern Reporter,  the Chronicle added

“We know our cotemporary’s (sic) accuracy, respectability, and love of truth; but will be permitted to say that there must be some delusion, for how could it be possible for a soldier – a man – and perhaps a father, to cruelly strike an infant, because the infant struck a dog.  We had the honour of knowing the late Lord Chief Justice Bush (sic), and we are not going too far, when we assert, that we cannot believe that a son of that upright judge could be guilty of so inhuman an act.”

Captain Bushe (whose first name was in fact Charles rather than Henry) was subsequently tried for manslaughter at the Cork Assizes of March 1851. The procedure at Assizes was that criminal cases first went before a Grand Jury to decide whether there was sufficient evidence to go to trial.

As reported in the Morning Herald (London) of 20 March 1851, the Hon. William Hedges-White, foreman of the Grand Jury, asked Mr Justice Ball, presiding, if they could see the informations taken before the coroner at the inquest, in order to test the credibility of the witnesses.

When Judge Ball asked Mr Plunket QC, the leading counsel for the Crown, if there was any objection to the Jury having the documents in question, Mr Plunket QC – the son of another Irish legal luminary, the late Lord Chancellor Plunket, whose family had intermarried with the Bushes – replied that he was concerned for the accused, who was his nephew, and that he had taken no part in the prosecution. The other counsel for the prosecution, Mr Coppinger QC, stated that the Crown had no objection to the informations being sent to the Grand Jury.

After reading the informations, the Grand Jury substituted a charge of common assault for one of manslaughter.  Several witnesses were examined, including Julia Hallissey, John Dennehy’s nurse, who had been with him at the time of the assault, and gave evidence that she had seen him struck by Captain Bushe with his whip. Isaac Butt QC, counsel for Captain Bushe, told the jury that he had been instructed by Captain Bushe to state to them, most emphatically, that he never struck the child a blow.

A local doctor, who also attended the military at Mallow, gave evidence that he had attended the child within three days of the assault but saw no sign of the blow. Some days later, when the child’s head had to be shaved, he saw a bump on his head underneath where his hair had been, but felt it was a natural bump. A second doctor gave evidence that he had seen no injury in the post-mortem, but that the trace of a whip would have faded by then in any event. He does not seem to have been asked if he had seen any sign of the ‘natural bump’ referred to by the other medical witness.

The jury, after a few minutes’ absence, brought in a verdict of not guilty against Captain Bushe, who subsequently rose to the rank of Lieutenant Colonel and Brevet Colonel in the 59^th Foot, retiring on half pay in August 1873.

At the time of the above events, an accused could not give evidence in their own defence, and this may have influenced the Grand Jury in Captain Bushe’s favour. But should they have received the inquest notes – which included his evidence -prior to making their determination on the manslaughter charge? Why did the prosecution team allow these to be furnished without objection? And why was Mr Plunket QC included as part of that team at all, even on a nominal basis, given his close relation to the accused?

All in all, not a case which reflects entirely creditably on the two greatest legal families of 19th century Ireland!