§ On the Motion of Lord Althorp, the House resolved itself into a Committee on this Bill.
§ The twelfth Clause having been put,
Mr. Rolchsaid, that at a late hour last night, he had moved, as an Amendment on the last clause, that the party accused should have a right to be present whilst the Judge-advocate, or his deputy, was addressing the Court-martial in reply to any objection, which he (the party accused) might have taken to the proceedings against him. He had then said, that it was customary for the court to be cleared of the prisoner and his friend, as his advocate was called, whilst the Judge-advocate was left with the court to assist its deliberations. On his stating that such was the practice he was contradicted. At that late hour of the night he was unwilling to enter into the argument, especially as his unsupported assertion might not have had much weight against the assertion of Gentlemen who were speaking upon a point connected with the practice of their own profession. He 885 had, however, now brought down with him to the House the report of a Court-martial, certified to be correct by the signature of the deputy Judge-advocate, from which it appeared that on an objection taken by the prisoner, the court was cleared; that in the absence of the prisoner, the Judge-advocate replied to his argument in a speech which occupied a closely printed page; that after that argument the court made its decision, and that the court was then again opened, the prisoner called in, and the decision of the court read to him. Having thus established the fact that the Judge-advocate, or his deputy, were allowed to address the court, after it was cleared, against the prisoner in the absence of the prisoner, he should propose to add as an Amendment to this clause, a proviso enacting that no Judge-advocate, or his deputy, should act as counsel against the party accused in any such Court-martial. He contended that from the very constitution of human nature, a Judge-advocate, who had to marshal the evidence, and to examine the witnesses for the prosecution, could not be an impartial member of the court, nor could avoid acting, if he acted at all, as counsel against the prisoner.
Mr. O'Connellbegged pardon of the hon. and learned Gentleman opposite; but he had an Amendment to propose, which, in point of form, must be put before that just proposed by the hon. and learned Gentleman. The clause stated, that the Lord-lieutenant should nominate and appoint one of his Majesty's serjeants-at-law, or counsel learned in the law to act as Judge-advocate. The responsibility attached to the appointment of counsel belonged, therefore, to his Majesty's Government. Now, he proposed to leave out the words "counsel learned in the law," and to substitute in their stead "or any barrister-at-law of not less than five years standing." This would give the Government the power of choosing a Judge-advocate almost from the whole bar. To limit their choice to King's Counsel would be inconvenient, for King's Counsel in great business would not give up their ordinary professional emoluments to go into the disturbed districts, and King's Counsel not in great business might not possess those qualifications of capacity which, in cases like the present, were so desirable. An intelligent barrister of less standing would be much preferable to such a man; and, such being his opinion, he should propose the Amendment which he had already described.
§ Lord Althorphad no objection to the Amendment of the hon. and learned Gentleman. His chief reason for confining this appointment to King's Counsel was his desire to secure the attendance of professional persons of experience before the Court-martial.
§ Amendment agreed to.
§ Mr. Rotch then proposed his Amendment, as we have given it already.
§ Lord Althorpobjected to the Amendment. It was monstrous to assert that, because it was the duty of the Judge-advocate to examine the witnesses against the prisoner, he was therefore so biassed against the prisoner as to be incapacitated from deliberating with the court. At the Quarter Sessions where counsel was not employed for the prosecution, it was the custom of the court to examine the witnesses against the prisoner, but he did not think that the hon. and learned Gentleman would, on that account, contend that the court acted as counsel against the prisoner.
Mr. Wynnhad stated, last night, his objection to this part of the Bill—that objection had not been removed nor diminished by the observations of the noble Lord. His noble friend compared the functions of the Judge-advocate, at a Court-martial, with the duties of the Chairman at a Quarter Sessions, where no counsel was employed for the prosecution. There was a great difference between the situations of the two. The Chairman of a court of Quarter Sessions knew nothing of the charge against the prisoner until it was brought into court, when the deposition taken before a Justice of the Peace was, for the first time, handed up to him. But the Judge-advocate was the legal adviser who must be consulted before the prosecution was commenced. In point of fact, he was the public prosecutor; and whoever acted in that capacity must prepare the charge against the prisoner, and examine the witnesses, to support the prosecution before they came into court. "There was, besides, another duty belonging to the Judge-advocate, as public prosecutor, which rendered it expedient that some such provision as that proposed by the hon. and learned member for Knaresborough should be adopted—he had to make an opening speech, describing the nature of the charge against the prisoner, and detailing the facts upon which it was founded, with these duties, his duties according to this clause would be inconsistent. In the case of General Whitelock, he remembered that the late 887 Mr. Ryder, then Judge-advocate, made an opening speech against the accused, and examined witnesses upon all occasions. It appeared to him that the best way of guarding against the evils of this system would be for Government upon every occasion, to appoint a fit and proper person to conduct the prosecution, and that the Judge-advocate should only appear as the adviser of the court. It was highly desirable that every member of a tribunal, of such a kind as it was proposed to institute, should come into court with his mind unprejudiced—which, with the duties which the Judge-advocate in his present capacity had to perform, was scarcely possible—and that after he had taken his seat he should be made acquainted for the first time with the charge and the evidence against the prisoner.
Mr. Stanleydefended the clause as it stood at present. It was not intended that the Judge-advocate should get up for the prosecution the cases which were to be tried before these Courts-martial. His duty would be limited to advising the members of the court upon the evidence that was admissible, the legal bearing of the evidence, and other points of a similar character. He thought that there were other clauses in the Bill which showed that prosecutions instituted before these courts must be instituted by the Government; but if the Bill were not deemed sufficiently distinct upon that point, he should have no objection to introduce a clause providing that there should be a public prosecutor, and that that public prosecutor should not be the Judge-advocate.
§ Mr. Cobbettsaid, that no Amendment which could be made upon this, or any other clause of the Bill could cure the objection which he had to these Courts-martial altogether. The fault was in their constitution. They consisted of officers, whose promotion, whose degradation, whose very bread, depended on their subservience to the views of Government.
§ Sir Robert Peelagreed with the hon. Gentleman opposite that it would be indecent if a party sent to assist the deliberations of the Court-martial were to act as counsel against the prisoner. If he did so act, undoubtedly he ought not to be permitted to reply to the arguments of the prisoner, whilst the prisoner was absent and could not tell what fallacies of fact or argument he might press on the court. He was also of opinion, that if such a person had assisted in getting up the 888 evidence for the prosecution, he was by that very circumstance incapacitated from acting impartially as a Judge. He would take that opportunity to say, that if he had been present at the division last night, he should have voted along with the majority, for he thought that all the benefits of the Trial by Jury were at present quite suspended in Ireland. He was sorry, however, that the tribunals created by this and the preceding clauses, as they had been so materially altered, were still suffered to retain the name of Courts-martial, They were not Courts-martial. They were very different in their construction from Courts-martial appointed under the Mutiny Act. Why, then, when they had abandoned the substance, did they retain a name that was so obnoxious? Nothing could be easier than to alter the name of these tribunals.
§ Lord Althorpadmitted, that the remarks which had just fallen from the right hon. Baronet were deserving of consideration, but it was impossible to alter the title of these courts now, as the clauses which created them had been passed by the Committee.
Mr. O'Connellsaid, he would not prolong the discussion by proposing a new title for those courts, but if his Majesty's Ministers were at a loss for a name for them, he would suggest that of "revolutionary tribunals."
§ Mr. Warburtondid not think that the Judge-advocate should be both prosecutor and Judge, and he should therefore propose an Amendment to that effect. Such an Amendment would prevent his having an opportunity of tampering with witnesses.
§ The Solicitor Generalsaid, that an Amendment was quite unnecessary, as it had never been intended by the Government that the Judge-advocate should be both Judge and prosecutor. It was intended that a separate prosecutor should always be appointed by the Lord-lieutenant. It would be considered even a breach of trust in the Judge-advocate if he were to take part in the trial as counsel against the prisoner.
§ Mr. Warburtonthen suggested that, as there were several kinds of Courts-martial, and as it might be difficult to ascertain, by a general reference to the Mutiny Act, how far the provisions of that Act referred to the present tribunals, it might be proper that the special provisions of the Mutiny Act which had reference to the present Act should be especially mentioned.
Mr. O'Connellexpressed a hope that some provision would be made for having the Courts-martial open courts. There was nothing in the Bill as it stood for or against that course; but he should wish to see it made a subject of positive enactment. He thought also that the counsel or agent of the accused should have power to take notes of the evidence. This was the more necessary, as cases had occurred where it was held by Courts-martial that none had a right to take notes of the evidence but the Judge-advocate. He wanted these two things—that the court should be open, as the Courts of Oyer and Terminer; and that the counsel of the accused should have power to take notes. The hon. and learned Gentleman moved an addition to the clause to that effect.
§ The Solicitor Generalhad no objection to the courts being open, with only this limitation—that they should be closed while the members considered their verdict. [Mr. O'Connell expressed his assent to this limitation.] As to the power of taking down the evidence by the counsel or agent of the accused, he did not think the mention of such a permission necessary, but he had no objection to its introduction.
§ Amendment withdrawn.
§ Clause agreed to, as were the 13th, 14th, 15th, and 16th clauses.
§ The 17th Clause, which enacts "that any person liable to be prosecuted within any proclaimed district for any offence against 27th George 3rd, 50th George 3rd, 1st and 2nd William 4th, and 2nd and 3rd William 4th, or for any offence against the Act, may be tried by such Courts-martial as the Bill appoints; and which Courts-martial may sentence to transportation for life or for a term of not less than seven years; but not to impose the penalty of whipping," &c.
Mr. O'Connellsuggested that some provision should be introduced so as to make it quite clear, that offences committed before the Bill was passed should not be prosecuted under it.
Mr. Stanleythought such a case was already amply provided for by the Bill, but he had no objection to introduce words agreeable to the hon. and learned Gentleman's suggestion. Finally words were introduced, exempting all offences from being prosecuted under this Bill committed subsequent to its passing, and before any district was proclaimed.
Mr. Ruthvenproposed an Amendment, 890 to prevent these Courts from inflicting any other corporal punishment than whipping.
§ Mr. Warburtonthought, that words like those suggested were proper, to make the Bill accord with the provisions of the Mutiny Act.
Mr. Stanleyhad no other objection to the words, but that they implied the possibility of such tortures being now used as had formerly been employed.
§ Mr. O'Dwyerthought that some limitation was necessary. He recollected that four years ago a case of horrid cruelty occurred at a gaol in Dublin. Thumb-screws were applied; bolts were put in the mouth. The evidence of what he stated was on the Table of the House; and the gaoler, who had for these cruelties been found unfit for his office, had been made a stipendiary Magistrate of in a distant county. That showed the baneful ascendancy of faction in Ireland.
§ Amendment agreed to, and Clause agreed to; as was the 18th clause, with verbal Amendments.
§ The Solicitor Generalobserved, that the Committee had now come to one of the most important clauses of the Bill—that which related to domiciliary visits by the Magistrates, or in virtue of their warrants, between sunset and sunrise, for the purpose of ascertaining the presence or the absence of the inhabitants. It was allowed on all hands to be of the greatest importance that the inhabitants of any House in a proclaimed district should be compelled to furnish the means of ascertaining whether they were at home or abroad; and for that purpose it had been supposed necessary to give the Magistrates, or the persons authorised by the Magistrates, the power of breaking and forcing an entrance into any House under the circumstances in question. His Majesty's Government, however, were very anxious to mitigate the severity of this enactment, and to lessen the inconveniences which it might occasion. They had, therefore, prepared an Amendment, which he should have the honour to propose, and which they hoped would meet the approbation of all parties, and at the same time secure the object which the clause had in view, without rendering it necessary to break or force an entrance into any of the houses. It was proposed that, in the first instance, the Justice, or any person with warrant of justice, accompanied by a Commissioned Officer or Chief Constable, should go to the house, and require the male inhabitants to come forth, and thus enable the authorities 891 to ascertain that they were not absent; and that if, on the ground of illness, or on any other ground, the male inhabitants, above the age of fourteen, should refuse to come forth, the persons authorised should then have power to demand admission into the House, but should not have power to enter without the leave of the inhabitants, and that if they were not allowed to enter with such leave, then the male inhabitant or inhabitants should be deemed and taken to be absent, and should be subject to the operation of the Act. Such was the substance of the proposed Amendment; it would have the effect of preserving every man's house as his castle; and none of the inconveniences or abuses which had been anticipated by the hon. and learned member for Dublin, and other hon. Members, could possibly arise.
§ Lord Althorpobjected to it, as, through a mere mistake the object of the Bill might be defeated.
Mr. O'ConnellYet you would make a man liable to the punishment of a misdemeanor without knowing his name.
§ Captain Yorkesaid, that the Bill had been so altered and modified since its introduction, that it could answer no useful purpose whatever. Indeed its only effect would be to add to the irritation of the Irish people, so that the sooner it was thrown into the fire the better,
Mr. O'Connellwould willingly second that Motion, but there was no chance of its being made, and if made, not the least chance of its being agreed to. At the same time he must say that he was so anxious to put down Whitefootism, that he would add to the efficiency of the present clause by making it compulsory on every farmer and cotter to furnish the police authorities with a list of the male inmates of his dwelling, a duplicate of which should be posted behind his door.
Mr. Walkerwas indeed surprised that a proposition for adding to the coercive measure against the Irish peasant and small farmer should, of all men, have emanated from the hon. and learned member for Dublin, who was ever vaunting himself as being their uncompromising defender.
Mr. O'Connellwould not be deterred by any absurd calumny from doing his duty to the people of Ireland. It would be a protection to the farmer to have his inmates called over by name, and be would, therefore, move as an amendment upon the So- 892 licitor General's Amendment, that the persons summoned should be called over, and answer "by name."
Mr. Stanleyhad no objection to the learned Gentleman's suggestion, provided that the whole clause were, in a future stage, so modified as to enable the police to obtain lists of the names of the inmates.
Mr. O'Connell'saddition of the words "by name," and the Solicitor General's amendment, agreed to.
On the "search for arms and other offensive weapons, with a penalty on detecting them on the premises of a person not duly authorized to possess them," Clause being read,
Mr. O'Connell.proposed, as an Amendment, that the penalty should obtain only when it was proved that the arms were "knowingly" in the possession of the individual on whose premises they might be found, the onus probandi to lie on the finding party. Without some such provision, no man would be safe from the malice of an enemy who might hide arms on the premises of a person he might wish to injure, and who could hardly be expected to prove his ignorance of their being so concealed.
§ The Solicitor Generalconceived that the Amendment of the learned Gentleman would defeat the efficiency of the clause altogether. In larceny it was sufficient to show that stolen goods were found in the possession of a person accused, who was thereby compelled to prove that he had obtained them in a proper manner, if he could; if he could not, it was fairly assumed that he had obtained them in an unlawful manner. And so with respect to the search for arms clause. Besides, how could it be proved that the person was "knowingly" aware that arms were on his premises?
Mr. O'Connellmaintained that the constitutional principle was, that the man should be presumed to be innocent till he was proved to have been guilty. In larceny previous ownership, which was always proved on the outset of the charge, was a primâ facie evidence of guilt. No such primâ facie evidence was required by the present clause. If his Amendment should not be adopted, he trusted at least that the penalty would only be for arms found in the "dwelling-house."
§ The Amendment negatived.
§ The Solicitor Generalhad no objection to make a compromise with the hon. and 893 learned Gentleman. He had no objection to exclude from the operation of this clause, arms found in outhouses, unless the person in whose outhouse they were found were proved to be knowingly in possession of them. If the hon. and learned Gentleman would consent to include within it arms found in any tenement under the lock of the owner.
Mr. O'Connelldefended the propriety of his Amendment, but would have no objection to close with the proposition of the hon. and learned Gentleman, and to include arms found in any tenement under the lock of an Irish peasant. The lock of an Irish peasant! The hon. and learned Gentleman knew little of the condition of the Irish peasantry or he would not have used that phrase. The Irish peasant was not rich enough to buy a key, let alone a lock to his cabin. If he were, you would hear no more of these Whitefoot outrages; for having property of his own to preserve, he would not dream of injuring the property of others.
§ Amendment negatived, and the Clause was ordered to stand part of the Bill.
§ The 21st Clause, which proposed to enact "that any person selling or circulating any seditious paper in a proclaimed district should be deemed guilty of a misdemeanor, and should by and under the sentence of a Court-martial be liable to imprisonment for not more than twelve months, unless he discovered by whom he was so employed," was struck out of the Bill.
§ The 22nd Clause read.
Mr. O'Connellcalled the attention of the Committee to the passage which rendered any person guilty of a misdemeanor who should "by menaces or otherwise," deter any witness from giving evidence. Now there were legitimate menaces, as, for instance, if a man went to another, and informed him, that if he did not give his evidence honestly and fairly, he should be indicted for perjury. Now you ought not to prevent such a caution, or it might be called such a menace, from being made to a witness. The words "by menaces or otherwise" were at once too vague and too comprehensive.
§ The Solicitor Generaldefended the clause. Such a menace as the hon. and learned Gentleman had described was a most improper menace when applied to a witness who had not been examined. It would certainly pervert the course of justice and tend to deter witnesses from coming forward, if the accused party were permitted to say to them, "If you give evidence 894 against me, I will indict you, I will have you set in the pillory, or, it may be, sent to Botany-bay to repent of your perjury."
Mr. O'Connellcontended that there was no menace in telling a witness that if he swore falsely, he should be indicted for perjury. He objected to the words of the clause, because "menace or otherwise" included every kind of dissuasion, even of friendly dissuasion, which one man might employ in conversation with another to prevent him from swearing unintentionally to that, which in point of fact was false, although he did not know it to be so. He had no objection to let the words stand, so far as Jurors were concerned, for menace and persuasion were equally illegal as applied to them; but he could not allow them to stand as applied to witnesses, for in matters of identification it might be necessary to dissuade a person who was mistaken as to the identity of another from swearing as be originally intended.
§ Lord Althorpthought, that the hon. and learned Gentleman had argued this clause very partially. He was to be deemed guilty of a misdemeanor who "by menaces or otherwise "deterred a witness, not from giving false evidence, but from appearing" at all as a witness.
§ Mr. Cutlar Fergussonthought the words of which the hon. and learned Gentleman complained to be absolutely necessary to the Bill. Instead of weakening, he would rather strengthen the enactments of this Clause.
§ Clause amended, to stand part of the Bill.
§ The 23rd Clause agreed to.
§ House resumed; Committee to sit again.